Making Justice RealThe Official Blog of the Legal Aid Society of the District of Columbia
Superior Court Eliminates Notary Requirement for Unsworn Declarations
As we noted when the Court changed its in forma pauperis procedures, sometimes important law reform can take place well below the radar screen, involving ostensibly dry, technical changes that can nevertheless positively impact hundreds, if not thousands, of low-income District residents in the years to come. Now, approximately a year after the IFP change, the Court is promulgating a change to the notary requirement in the civil division that, too, should make life easier for hundreds, if not thousands, of litigants a year.
Effective March 7, 2011, there will be a new Civil Rule 9-I, which will allow litigants in civil cases to swear to a statement under penalty of perjury without having to have the document notarized. With these reforms, an anachronistic barrier that disproportionately affected low income and pro se litigants has been eliminated. Indeed, with this change, D.C. has adopted a practice with respect to unsworn declarations that is consistent with the modern trend adopted by the federal government and twenty other jurisdictions.
Under terms of the new law and Civil Rule 9-I, unsworn declarations may be given legal effect if they if the declarant states “I declare (certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date).” If the declaration is made outside the United States or territories, the declarant must also specify where they are making the declaration. The provisions do not apply to depositions, oaths of office, oaths before an official other than a notary, or a declaration to be recorded by the Recorder of Deeds. Moreover, the new form accompanying the rule cannot be used “to supplement a verified complaint in the Landlord and Tenant Branch or Small Claims Branch. See D.C. Code §§ 16-1501, 3902 (2001).”
A Barrier Without Benefits: Although notary requirements are intended to deter fraud, we have been arguing for years that such requirements have little actual benefit, while creating barriers for low income and pro se litigants to access the courts. A notary public is a person authorized by the D.C. government to act as an impartial witness that verifies the identity of a person signing a document and that they signed the document voluntarily. Prior to the changes effective today, a litigant had to get a document notarized in order for the document to be submitted in civil cases in D.C. The notarization requirement is rarely a burden on a law firm, businesses, or government office—those organizations have support staff who become certified as notaries. Indeed, Legal Aid has several notaries. But the requirement meant a low income resident who does not have Legal Aid for a lawyer had to pay a notarization fee and spend the time and money it takes to find a notary, take time off work, and travel to them. Though these costs may seem small to a person of means, they can be significant burdens on low-income litigants whose ability to devote time to their court case is often very limited. Indeed, a study we conducted in the context of a D.C. Court of Appeals case involving the notarization requirement revealed that, as of 2008, a public phone book listed only four notaries in the Southeast quadrant and five in the Northeast quadrant.
While the costs imposed on the District’s low income residents are real, it has long been our view that notarization requirements come with little actual benefit. In theory, there is supposed to be special solemnity involved when a person takes an oral oath before a notary public prior to the signing of official documents. But, as a commentator and notary public himself noted, “[o]verwhelming evidence shows that most notaries do not honor their legal obligations (and sound notarial practices) to administer oaths or affirmations to document signers who execute jurats.” Moreover, due to recent action at the D.C. Council, a person making an unsworn declaration is subject to the penalty of perjury, which can carry up to five years in prison if convicted. Notarizing a document thus has no actual effect on the likelihood that a declarant will be truthful. The fact that notarization does not deter fraud was vividly illustrated by the recent foreclosure scandals, which revealed that banks and title companies used notaries as “robo-signers” to speed along foreclosures without checking the authenticity of the documents. As that scandal demonstrates, the fact that a document is signed by a notary has little bearing on whether the declarations in the document are true or verified.
A Modern Trend: The District’s elimination of notarization requirements is in keeping with a modernizing trend begun by Congress and followed by twenty other jurisdictions. In 1976, Congress recognized that notarization costs outweighed their benefits, and passed 28 U.S.C. § 1746 which provided that unsworn declarations subject to penalty of perjury had the same legal effect as sworn declarations. Since 1976, twenty jurisdictions have followed Congress, including in the District of Columbia in limited situations. Prior to these changes, D.C. had already enacted a provision giving unsworn declarations subject to a penalty of perjury legal effect in filings before the Office of Administrative Hearings, and D.C. Courts gave unsworn declarations legal effect Domestic Relation’s Proceedings and for affidavits submitted to the D.C. Court of Appeals. Thus, Civil Rule I-9 simply expands and regularizes current D.C. practice, bringing it in line with the modern trend in other jurisdictions.
Summary: Legal Aid is pleased that the D.C. Superior Court has enacted these changes to eliminate the needless notarization requirement. Modernizing rules in order to eliminate barriers to justice is an important part of Legal Aid’s mission. As of today, D.C.’s legal system became that little bit easier for thousands of low income and pro se residents to navigate.
 See Brief for the Legal Aid Society of the District of Columbia, et al. as Amici Curiae Supporting Petitioner at 11, Cormier v. D.C. WASA, 959 A.2d 658 (D.C. 2008); see generally Cormier v. D.C. Water & Sewer Auth., 959 A.2d 658 (D.C. 2008), available at http://caselaw.findlaw.com/dc-court-of-appeals/1171209.html.
 See Michael L. Closen, To Swear . . . Or Not to Swear, Document Signers: The Default of Notaries Public and a Proposal to Abolish Oral Notarial Oaths, 50 Buff. L. Rev. 613, 645-46 (2002).