If a Mexican national walks into an Illinois notary's office holding only a Mexican consular ID card, must the notary accept it for identification, or can the notary refuse and demand a U.S. driver's license?

Opinion 10-002: Illinois notaries must accept Mexican consular identification cards because notaries are State officers under § 10 of the Consular Identification Document Act

Plain-English summary

Representative Edward Acevedo asked whether Illinois notaries must accept the Mexican Consular Identification Document ("CID") when notarizing signatures, or whether they could insist on a U.S. driver's license or other state or federal ID. The question matters because consular IDs are widely held by Mexican nationals living in the United States who lack U.S.-issued identification but still need to open bank accounts, register for utilities, or have documents notarized.

The AG concluded that notaries must accept the Mexican CID, with two narrow exceptions. The chain of reasoning:

The Consular Identification Document Act (5 ILCS 230/1 et seq.) requires "each State agency and officer and unit of local government" to accept consular ID documents that meet the Act's security and content requirements (5 ILCS 230/10(a)). The Mexican CID, with its hologram, ultraviolet image, machine-readable technology, and other security features, satisfies the Act's requirements.

Notaries qualify as "State officers" within the meaning of § 230/10. Applying the test in Midwest Television, Inc. v. Champaign-Urbana Communications, Inc. (a position is a public office if it has statutory creation, exercise of sovereign power, continuing position, fixed tenure, oath, liability for misfeasance, and independence from employer control), the notary position has every marker. Notaries are created by statute, take an oath, post a bond, serve four-year terms, are subject to civil liability and criminal misconduct penalties, and exercise independent professional judgment. Most importantly, by administering oaths and taking verifications, notaries exercise a portion of the State's sovereign power; their attestations are entitled to full faith and credit.

The 2009 amendment to § 6-102 of the Notary Public Act (Public Act 95-988) added language that "[u]ntil July 1, 2013, identification documents are documents that are valid at the time of the notarial act, issued by a state or federal government agency, and bearing the photographic image of the individual's face and signature of the individual." This new language seemed to limit acceptable IDs to U.S. state or federal documents. But the legislative history of the bill (Senate Bill 546) showed it was a Cook County mortgage fraud pilot program. Representative Brosnahan, the bill's co-sponsor, explained: "[Senate Bill 546] only involves notaries when they're dealing with conveyance of real property and that real property is located in Cook County, Illinois. And it's a pilot program for up to three (3) years." The amendment did not displace the Identification Act's broader rule.

When two statutes conflict, courts construe them harmoniously and treat a particular provision as an exception to a general one. The harmonious reading: the Notary Public Act's stricter ID rules apply to Cook County real estate conveyances, and the Consular Identification Document Act's general rule applies everywhere else. So a notary doing a general-purpose notarization for a Mexican national must accept the Mexican CID, but a notary doing a real estate conveyance in Cook County may insist on U.S. state or federal documents.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The Cook County mortgage fraud pilot program referenced in the opinion was originally set to sunset July 1, 2013; verify the current status of that program before applying the AG's analysis to a current real estate matter.

Background and statutory framework

Consular ID cards have been issued by foreign embassies and consulates for over a century, but demand grew dramatically after September 2001. The U.S. Department of the Treasury recognizes the Mexican CID as a valid customer identification for financial institutions, and it is accepted by hundreds of cities, counties, financial institutions, and police departments across the United States. The City of Chicago and Cook County have both adopted ordinances recognizing the Mexican CID and similar Latin American consular IDs.

Illinois enacted the Consular Identification Document Act (5 ILCS 230/1 et seq.) to require state and local government acceptance of qualifying consular ID documents. Section 5 sets the requirements: the document must be issued through a foreign government's consular offices, the foreign government must require proof of nationality, identity, and residence in the consular district, and the document must include specific security features (unique identification number, optically variable feature like a hologram, ultraviolet image, encoded information, machine-readable technology, micro printing, secure laminate, integrated photograph and signature). Section 10(a) requires acceptance by "each State agency and officer and unit of local government," with exceptions for driver's licenses, voter registration, federal preemption, and certain other narrow circumstances.

The Notary Public Act (5 ILCS 312/) governs Illinois notaries. Section 6-102, as amended by Public Act 95-988 (effective June 1, 2009), provides that notaries may rely on identification documents to verify signatures, with "identification documents" defined (until July 1, 2013) as documents issued by a state or federal government agency. The amendment was part of a Cook County pilot program targeting mortgage fraud, where false IDs had enabled identity-theft-driven real estate fraud.

What the AG concluded at the time

Notaries are State officers. Applying the Midwest Television seven-factor test (statutory creation, exercise of sovereign power, continuing position, fixed tenure, oath, liability, independence), the AG found that notaries satisfy every factor that matters. The most important factor (exercise of sovereign power) is met because notaries administer oaths, take verifications upon oath or affirmation, and produce official attestations entitled to full faith and credit. Although a California opinion has reached a different conclusion in the context of incompatible-offices rules, the AG followed the Wisconsin and Kansas approach, which treats notaries as exercising state sovereign power.

Section 10 of the Identification Act therefore applies to notaries. Notaries must accept Mexican CIDs (and any other consular IDs satisfying the Act's criteria) for general identification purposes. The narrow statutory exceptions in § 10 (driver's licenses, voter registration, federal preemption, fingerprint requirements, reasonable suspicion of forgery) still apply.

The 2009 Notary Public Act amendment is narrow. Public Act 95-988's restriction of "identification documents" to U.S. state or federal documents was a Cook County mortgage fraud pilot program. The legislative history is explicit: Representative Brosnahan, the bill's co-sponsor, said the bill applies only to real property conveyances in Cook County and is a three-year pilot. Nothing in the legislative debate suggested an intent to override the Identification Act for general notarial work.

Harmonious construction. Where two statutes might conflict, Illinois courts construe them to give effect to both. Here, the specific Cook County real estate conveyance rule (5 ILCS 312/3-102) operates as an exception to the general acceptance rule in 5 ILCS 230/10. A notary handling a Cook County real estate conveyance may apply the stricter ID requirement; for any other notarial purpose, the notary must accept the Mexican CID.

Common questions

As a notary, can I refuse a Mexican CID because I personally do not trust it?
No. The Identification Act treats acceptance as mandatory. The narrow grounds for refusal in § 10(f) include forgery, fraud, or alteration where you "reasonably believe" the document is suspect. Personal preference is not a ground.

What if the Mexican CID does not include all the security features the Act requires?
Section 5 of the Identification Act lists the required security features. The current Mexican CID has them. If a particular consular ID does not satisfy the Act's requirements (a card from a different country with different features, for instance), the acceptance mandate does not apply to that card.

Does this mean a Mexican national can use a Mexican CID to register to vote or get a driver's license?
No. Section 10(c) of the Identification Act expressly excludes voter registration and driver's licenses from the acceptance mandate.

As a real estate buyer in Cook County, can I show my Mexican CID at closing?
Probably not, if your closing is for a real property conveyance falling within § 3-102 of the Notary Public Act. The Cook County pilot program intentionally requires U.S. state or federal documents for those transactions to combat mortgage fraud. Talk to your closing attorney; a Mexican passport plus a U.S. visa typically satisfies even the stricter requirement.

What if my notary refuses to accept my Mexican CID for a non-real-estate document?
The notary is in violation of § 10 of the Identification Act. You can ask the notary to reconsider, citing this opinion and the statute. Persistent refusal could be reported to the Secretary of State, which appoints and oversees Illinois notaries.

Is the AG's opinion binding on every notary?
AG opinions are persuasive authority. The Identification Act and the Midwest Television test on which the AG relies are the actual binding authority. A court applying the same statutes and case law should reach the same conclusion.

Citations

Statutes:

• 5 ILCS 230/1 et seq. (Consular Identification Document Act)
• 5 ILCS 230/5 (definition of consular identification document)
• 5 ILCS 230/10 (mandatory acceptance by State officers and local governments)
• 5 ILCS 312/2-101 to 7-107 (Notary Public Act)
• 5 ILCS 312/6-102 (verification requirements)
• 5 ILCS 312/3-102 (Cook County real estate conveyance ID rules)
• Public Act 95-988 (Cook County mortgage fraud pilot program)

Cases:

• Midwest Television, Inc. v. Champaign-Urbana Communications, Inc., 37 Ill. App. 3d 926 (1976)
• People v. Brady, 302 Ill. 576 (1922)
• Bernal v. Fainter, 467 U.S. 216 (1984)
• Ramsay v. VanMeter, 300 Ill. 193 (1921)

Source

• Index page: https://illinoisattorneygeneral.gov/opinions/
• Original PDF: https://illinoisattorneygeneral.gov/dA/f49ce6ad7f/2010%2010-002%20STATE%20MATTERS%20Acceptance%20of%20Mexican%20Consular%20Identification%20Cards%20by%20a%20Notary%20Public.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS
Lisa Madigan, Attorney General

December 29, 2010
FILE NO. 10-002
STATE MATTERS: Acceptance of Mexican Consular Identification Cards by a Notary Public

The Honorable Edward Acevedo
Assistant Majority Leader
State Representative, 2nd District
1836 West 35th Street
Chicago, Illinois 60609

Dear Representative Acevedo:

You have asked whether notaries are required to accept the Mexican Consular Identification Document ("Mexican CID") for identification purposes when performing their duties. For the reasons stated below, it is my opinion that notaries are required to accept the Mexican CID for identification purposes, except as specifically provided in section 10 of the Consular Identification Document Act (the Identification Act) (5 ILCS 230/10 (West 2008)) or in certain real estate transactions described in section 3-102 of the Notary Public Act (5 ILCS 312/3-102 (West 2008)).

BACKGROUND

Consular identification cards have been issued since at least 1871. Embassies and consulates of foreign states encourage their citizens abroad to register with the consulates so that they can receive standard consular services, be notified if necessary, and be located upon inquiry by relatives and authorities. The demand for the cards has grown dramatically, however, since the terrorist attacks of September 2001. A number of countries issue consular identification cards to their citizens who reside in the United States. The identification cards are accepted for several purposes, including opening bank accounts, registering for local services (e.g., telephone and other utilities), and providing identification when requested by police.

Your opinion request specifically addresses the use of the Mexican CID, which is issued by the Mexican government to its citizens living in the United States when they register with a Mexican consulate. The Mexican government issues the Mexican CID for a five-year period upon the payment of the appropriate fee. The most recent version of the Mexican CID, which became available in the United States in March 2002, contains the photograph, name, signature, date and place of birth, and United States address of the holder, a serial number, a date of issuance and expiration of the CID, and the name of the issuing consulate. Further, the current version of the Mexican CID has a number of security features intended to make the cards tamper-proof and non-duplicable.

To obtain a Mexican CID, an applicant must appear in person at a consulate office and present: (1) an original birth certificate or other document demonstrating Mexican citizenship; (2) an official, government-issued photo identification document demonstrating identity; and (3) proof of a local address in the United States, such as a utility bill.

The United States Department of the Treasury recognizes the Mexican CID as a valid form of customer identification for financial institutions. Further, the Mexican CID "is accepted as valid identification in 377 cities, 163 counties, and 33 states, as well as 178 financial institutions and 1,180 police departments in the United States." Moreover, both the City of Chicago and Cook County have adopted ordinances recognizing the CID as a valid form of identification.

ANALYSIS

The Consular Identification Document Act

The Identification Act (5 ILCS 230/1 et seq. (West 2008)) provides for the acceptance and use of consular identification documents with regard to specified government activities. Section 10 of the Identification Act provides:

(a) When requiring members of the public to provide identification, each State agency and officer and unit of local government shall accept a consular identification document as valid identification of a person.

(c) A consular identification document may not be accepted as identification for obtaining a driver's license or registering to vote.

(e) The requirements of subsection (a) do not apply if:
(1) a federal law, regulation, or directive or a federal court decision requires a State * * * officer * * * to obtain different identification;
(2) a federal law, regulation, or directive preempts state regulation of identification requirements[.]

(f) Nothing in subsection (a) shall be construed to prohibit a State * * * officer * * * from:
(1) requiring additional information from persons in order to verify a current address or other facts that would enable the State * * * officer * * * to fulfill its responsibilities, except that this paragraph (1) does not permit a State * * * officer * * * to require additional information solely in order to establish identification of the person when the consular identification document is the form of identification presented;
(2) requiring fingerprints for identification purposes under circumstances where the State * * * officer * * * also requires fingerprints from persons who have a driver's license or Illinois Identification Card; or
(3) requiring additional evidence of identification if the State * * * officer * * * reasonably believes that: (A) the consular identification document is forged, fraudulent, or altered; or (B) the holder does not appear to be the same person on the consular identification document. (Emphasis added.)

Pursuant to section 5 of the Identification Act (5 ILCS 230/5 (West 2008)), a "consular identification document" is an official identification card issued by a foreign government that meets all of the following requirements: (1) it is issued through the foreign government's consular offices for the purpose of identifying foreign nationals living outside of the nation; (2) the foreign government requires an individual to provide proof of nationality, proof of identity, and proof of residence in the consular district; (3) the foreign government includes the following security features in the consular identification document: a unique identification number, an optically variable feature such as a hologram or color-shifting inks, an ultraviolet image, encoded information, machine readable technology, micro printing, secure laminate, and an integrated photograph and signature; (4) the consular identification document includes the name and address of the individual to whom it is issued, the date of issuance, the date of expiration, the name of the issuing consulate, and an identification number; and (5) the issuing consulate has filed with the Department of State Police a copy of the issuing consulate's consular identification document and a certification of the procedures used to satisfy the requirements of (2) and (3). The Mexican CID appears to satisfy each of the foregoing requirements.

Under the plain and unambiguous language of section 10 of the Identification Act, "each State * * * officer * * * shall accept a consular identification document as valid identification of a person[,]" except as otherwise provided. Based on this language, to answer your question concerning whether notaries must accept the Mexican CID, we must determine whether they are State officers for purposes of section 10 of the Identification Act.

In Midwest Television, Inc. v. Champaign-Urbana Communications, Inc., 37 Ill. App. 3d 926, 931 (1976), the appellate court delineated the criteria to be used when determining whether a position constitutes a public office, stating:

The characteristics of a public office are generally agreed upon, although the distinction between an office and employment may be vague in particular fact situation. The characteristics of a public office include: (1) creation by statute or constitution; (2) exercise of some portion of the sovereign power; (3) a continuing position not occasional or contractual; (4) fixed tenure; (5) an oath is required; (6) liability for misfeasance or nonfeasance; and (7) the official has an independence beyond that of employees.

The court further indicated that "[n]ot all [of] these factors are required in order to determine that a position is an office." Midwest Television, Inc., 37 Ill. App. 3d at 932. The most important of the factors, however, is the exercise of some portion of the sovereignty of the State. People v. Brady, 302 Ill. 576, 582 (1922).

Applying this criteria to the position of notary public, that position qualifies as a public office. The notary position is created by section 2-101 of the Notary Public Act (5 ILCS 312/2-101 (West 2008)). Notaries have the authority to perform their duties throughout the State. 5 ILCS 312/3-105 (West 2008). They may take acknowledgments, administer oaths or affirmations, take verifications upon oath or affirmation, and witness or attest to signatures. 5 ILCS 312/6-101 (West 2008). Although their duties are ministerial in nature, the official attestation of duly appointed and commissioned notaries are entitled to full faith and credit. 5 ILCS 312/3-106 (West 2008). Thus, notarial acts represent the exercise of a portion of the sovereign power of State government. See 5 ILCS 255/1, 2 (West 2008); Wis. Att'y Gen. Op. No. 43-85, issued November 7, 1985 (notaries public exercise some part of the sovereign power of the State); Kan. Att'y Gen. Op. No. 83-48, issued April 4, 1983 (a notary public holds a public office).

Illinois residents who are appointed and commissioned by the Secretary of State as notaries serve a four-year term of office. 5 ILCS 312/2-101, 3-105 (West 2008). All notary applicants must give a bond (5 ILCS 312/2-105 (West 2008)) and sign an oath of office (5 ILCS 312/2-104 (West 2008)). A notary and the surety on the notary's bond are liable for all damages caused by the notary's official misconduct. 5 ILCS 312/7-101 (West 2008). Further, a notary who commits official misconduct is guilty of a criminal offense. 5 ILCS 312/7-105 (West 2008). Finally, the statutory duties of notaries reveal a degree of discretion not generally granted to employees. A notary possesses exclusive authority to determine whether the person appearing before him or her is the person whose signature is on an instrument and whether the notary will affix his or her notarization to a particular document.

When considered as a whole, the position of notary, in my opinion, satisfies the criteria for public office. The notary position satisfies the most important criteria: by administering oaths and taking verifications upon oath or affirmation, notaries exercise a portion of the sovereign power; their positions are created by statute; they take an oath of office; and they have an independence beyond that of an employee. Given these factors, notaries are State officers for purposes of the Identification Act. Accordingly, section 10 of that Act requires notaries to accept Mexican CIDs for identification purposes.

The Illinois Notary Public Act

You have also inquired whether the recent amendment to section 6-102 of the Notary Public Act (5 ILCS 312/6-102 (West 2008)) contained in Public Act 95-988, effective June 1, 2009, changes this analysis. Pursuant to section 6-102, when taking acknowledgments or verifications, notaries must determine, "either from personal knowledge or from satisfactory evidence," that the person appearing before them is the person whose true signature is on the instrument or verified statement. Section 6-102 provides:

(d) A notary public has satisfactory evidence that a person is the person whose true signature is on a document if that person:
(1) is personally known to the notary;
(2) is identified upon the oath or affirmation of a credible witness personally known to the notary; or
(3) is identified on the basis of identification documents. Until July 1, 2013, identification documents are documents that are valid at the time of the notarial act, issued by a state or federal government agency, and bearing the photographic image of the individual's face and signature of the individual. (Emphasis added.)

The General Assembly added the emphasized language in Public Act 95-988. Prior to this amendment, the Notary Public Act did not include a definition of "identification documents" or any indication of the type of documents to which the term was intended to refer. See 5 ILCS 312/6-102 (West 2006).

Under the plain and unambiguous language of section 6-102, it is clear that notaries may rely on "identification documents" as evidence to establish the identity of a person. It is not clear, however, whether the term "identification documents" is limited to only those documents "issued by a [United States] state or federal government agency" that bear the individual's photographic image and signature, or whether documents issued by foreign governments and consuls, such as a Mexican CID, may also constitute "identification documents." It is appropriate, therefore, to review the legislative history of section 6-102.

Section 6-102 was included in the original enactment of the Notary Public Act (see Public Act 84-322, effective July 1, 1986) and, to date, Public Act 95-988 contains the only amendment of section 6-102. The legislative debates for Senate Bill 546, which became Public Act 95-988, clearly indicate that the amendments were part of an effort to prevent mortgage fraud in Cook County through the use of a pilot program imposing stricter identification requirements when notaries are involved in real estate conveyances in Cook County. Representative Brosnahan, the bill's co-sponsor, explained the bill as follows:

[Senate Bill 546] only involves notaries when they're dealing with conveyance of real property and that real property is located in Cook County, Illinois. And it's a pilot program for up to three (3) years.

Everybody came to an agreement that this was something worth doing in an effort to at least attempt to prevent mortgage fraud in the future. That's why we settled on a three-year term, it sunsets in three (3) years. But I know of no opposition. We are just trying ... there have been many instances, especially in Cook County, where mortgage fraud takes place because identity theft is occurring. And when the transaction is complete, it's finalized. The police have nowhere to go to look for the person because false identification was used. So this was just an attempt to combat a very serious problem, especially in Cook County. Remarks of Rep. Brosnahan, October 10, 2007, House Debate on Senate Bill No. 546, at 47-48.

Given this clear legislative intent, it is my opinion that the language added to subsection 6-102(d)(3) is applicable only to those documents that may be used as identification documents with regard to real estate transactions in Cook County. The additional language was not intended to be an all inclusive definition of the term "identification document." Further, nothing in the legislative history of section 6-102 indicates that the amendment is intended to limit the use of CIDs by foreign nationals to establish their identities generally.

As explained above, section 10 of the Identification Act requires notaries to accept consular identification documents for identification purposes, subject to certain limited exceptions. While that Act creates exceptions for Federal laws, regulations, or directives setting forth different identification requirements, it does not contain an exception for State laws such as the Notary Public Act. In contrast, section 6-102 of the Notary Public Act appears to require notaries to accept only identification documents issued by a State or Federal agency.

Where two legislative enactments may conflict, it is appropriate to construe the statutes in a manner that avoids inconsistency and gives effect to both statutes, if such a construction is reasonably possible. Chavda v. Wolak, 188 Ill. 2d 394 (1999). Further, if there are two statutory provisions, one of which is general and designed to apply to cases generally and the other is particular and relates only to one subject, the particular provision must be treated as an exception to the general provision. Paszkowski v. Metropolitan Water Reclamation Dist., 213 Ill. 2d 1, 8 (2004). Here, the legislative debates for Senate Bill 546, amending the Notary Public Act, clearly indicate that the General Assembly intended to impose stricter identification requirements for real estate conveyances in Cook County. The General Assembly did not express an intent to impose stricter identification requirements for all notarial acts. Accordingly, when the Identification Act and the Notary Public Act are construed together, it is my opinion that notaries are required to accept Mexican CIDs as identification documents under the Notary Public Act, except as provided in section 10 of the Identification Act or for the specific real estate transactions described in section 3-102 of the Notary Public Act.

CONCLUSION

Notaries public are State officers under section 10 of the Consular Identification Document Act. As such, they are required to accept Mexican consular identification cards from Mexican nationals for identification purposes with limited exceptions. Section 6-102 of the Illinois Notary Public Act, which provides that identification documents include those "documents * * * issued by a state or federal government agency," applies only to certain real estate conveyances in Cook County, as contemplated by section 3-102 of the Notary Public Act. Accordingly, construing the Notary Public Act and the Consular Identification Document Act so as to give effect to both statutes, it is my opinion that notaries are required to accept the Mexican consular identification card for identification purposes, subject only to the exceptions set out in section 10 of the Identification Act and for real estate transactions contemplated by section 3-102 of the Notary Public Act.

LISA MADIGAN
ATTORNEY GENERAL