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The Time is Nigh for States to Eliminate Sworn Testimony with Notary Requirements for Affidavits

March 31, 2020 | Sebaly Shillito + Dyer

In 1976, with no looming or present global pandemic, Congress enacted, and President Ford implemented, Title 28 U.S. Code Section 1746 permitting the use of “declarations under penalty of perjury” in instances for which a sworn affidavit was previously required. The statute provides:

“Wherever, under any law of the United States or under any rule, regulation, order, or requirement made pursuant to law, any matter is required or permitted to be * * * established * * * by the sworn * * * statement, oath, or affidavit, in writing of the person making the same * * *, such matter may, with like force and effect, be * * * established * * * by the unsworn * * * statement[] in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form: ***
“(2) If executed within the United States * * *: ‘I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date).

The legislative history explains that “[t]he requirement that the person who signs an affidavit must appear before a notary and be sworn can be inconvenient” and this statute “provides an alternative to affidavits and sworn documents.” H.R.Rep. No. 94-1616, 1976 U.S.C.C.A.N. 5644, 5645.

Some, but certainly not all, states have followed the lead of the federal government over the last 4 decades and eliminated the requirement to appear before a notary, swear an oath, and affirm the first-hand knowledge of facts recited. The Great State of Ohio – which is currently under a stay home order for all “non-essential business” – specifically refused to eliminate this potential “inconvenience” in a thorough opinion of the Ohio Supreme Court. Toledo Bar Assn. v. Neller, 102 Ohio St. 3d 1234 (2004). Indeed, Ohio is so committed to the sworn affidavit that a notary may not certify an affidavit containing a jurat without actually administering a formal oath to the witness or they will lose their certification. See Ohio Rev. Code Section 147.14. (One cannot imagine that this would possibly occur!) The Ohio Supreme Court professed its commitment to the affidavit, with accompanying jurat, in an usual circumstance, that gave short shrift to the notion of convenience. Neller was a disbarred attorney who was required to submit “an affidavit showing compliance with [the Court’s disbarment] order.” Id. at 1234 (emphasis in original opinion). However, this erstwhile barrister submitted a declaration under penalty of perjury citing the federal statute that recognized the validity of the document.

The Ohio Supreme Court, for the most part, was unimpressed by this pro se maneuvering around its requirement, and ordered “the document … rejected and stricken from this court’s files.” Id. at 1237. Certainly, according to the Court, Congress may allow such short cuts, but that only applied to federal proceedings. One justice, however, brilliantly dissented. Justice Paul Pfeiffer simply stated, “I would accept the filing and move on. This issue is not worthy of the paper it has consumed.” Id. (Pfeiffer, dissenting).
With the current restrictions on business activities and guidelines on social distancing, it is time for legislatures and courts to follow Justice Pfeiffer’s wisdom. Courts remain open and lawyers are predominantly considered “essential” services. But, requiring a person to leave their shelter and meet with a notary, particularly an innocent third-party witness, is far from a minor “inconvenience.” It is hard to imagine what the jurat and notary signature add to a declaration made “under penalty of perjury” that overrides the present concerns.

Yes, states have taken some additional steps such as Remote Online Notary (RON) statutes, and Ohio is among them. See Ohio Rev. Code. Chapter 147. RON certification requires application, education, and for non-lawyers, an examination. Floods of attorneys rushing for such certification in this environment is not the answer. Amending the statutes, or accepting the declaration under penalty of perjury during the crisis, are the answers.

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