Uniform Acknowledgment Act Takes a Back Seat in Michigan (Briefly)
Like Pennsylvania and the other 48 states and the District of Columbia, Michigan state law includes a version of the Uniform Acknowledgement Act (UAA), providing that notarial acts performed in one state are accepted in any other state.
So a team of malpractice attorneys were caught completely off-guard when a Michigan Court of Appeals recently ruled that an affidavit of merit taken by a Pennsylvania notary was invalid because it did not include a certificate of authentication. In other words, the affidavit did not include proof—the certificate of a county or state official—that the notary was authorized to perform notarial acts in Pennsylvania.
In Aspey v Memorial Hospital, the plaintiffs filed suit against the hospital, alleging malpractice on the part of two doctors employed there. In every malpractice case, the initial complaint must be accompanied by an affidavit of merit, the sworn, written testimony of a medical expert. Because the expert testimony in this case was executed in front of a notary commissioned in another state, the judge ruled that it must also include authentication of the notary’s credentials. According to court documents, attorneys for the plaintiffs subsequently obtained the required authentication, but failed to do so before the statute of limitations ran out on the case.
Although the fatal issue of the case was that the plaintiffs failed to act within the time limit granted to all malpractice suits, their attorneys complained to the press that the court had used against them a “universally-ignored,” 126-year old law “that makes it harder to get documents notarized out of state.” [Brian Dickerson, DetroitFreePress, May 11, 2005.]
The law they refer to can be found in the state’s evidence code as far back as 1846 and has been updated and reaffirmed through court decisions and legislative actions in 1857, 1871, 1879, 1897, 1909, 1948, 1961 and 1963. It’s a provision of the Revised Judicature Act (RJA).
The plaintiffs appealed, asking the court judges to interpret the URAA and the RJA--two apparently conflicting laws—and decide which should prevail in their case. Following lengthy discussions of the intent of each law and several precedent-setting cases, the judges released their opinion, which states, “Where a specific statuary provision differs from a related general one, the specific one controls.” In other words, the URAA applies to notarial acts generally, the RJA applies to a specific notarial act: an affidavit submitted as evidence in a judiciary proceeding. In this case, the RJA prevailed.
What Does This Mean for Notaries?
In Aspey, the main problem was timing. Contrary to what the Detroit Free Press reported, obtaining the required authentication is not difficult or complicated, but it can take time to accomplish. The attorneys for the plaintiffs simply did not meet certain deadlines.
It is important to note that the notary in this case did nothing wrong. Notaries in Pennsylvania or Michigan do not have any obligation (or authorization!) to tell their customers when authentication is required, whether at the local, state or federal level. Also keep in mind that not all states have the authentication requirement for out of state notarization written in state law.
If you perform a notarization for a customer who then asks how to get the notarization authenticated for use in another state or country, you can refer them to your county clerk of courts or the Department of State.
(As of the time of publication, the court was reconsidering its decision in this case. An update will be posted on USNA’s web site when the reconsideration opinion is published. Go to www.enotary.org.)
