October 2010

IN THIS ISSUE

Message from the President

Legislative News

UIFSA Update

New Acts

New Drafting and Study Committees

The Conference is off to another very productive year. Already Drafting Committees have met on two separate weekends this fall.

As you know, last year the Executive Committee authorized the appointment of two new committees: a Committee on Federalism and State Law and a Committee to Review the ULC Drafting Process. Both committees have been hard at work since their appointment, and you heard an update from the chair of each committee at this summer’s annual meeting in Chicago. Their hard work has continued into the fall.

Federalism and State Law

The Committee on Federalism and State Law, chaired by Pennsylvania Commissioner Raymond P. Pepe, has been working with the George Washington University School of Law to host a symposium later this month in Washington, DC, on Federalism, Preemption and State Law.

The Symposium will explore the roles of federal, state and local governments when there is a need for legislation that affects the responsibilities of multiple levels of government in our federal system.

Senator Thomas Carper of Delaware will give the luncheon keynote address at the Symposium, drawing on his experience as both a Governor and a United States Senator. The Senator will discuss the challenges and opportunities that current nationwide problems pose for federalism and the allocation of power and responsibility among the various levels of government.

The Symposium is co-sponsored by a number of other national organizations, including the National Governors’ Association, the National Conference of State Legislatures, the Council of State Governments, the Conference of Chief Justices, the National Center for State Courts, and the National Association of Attorneys General.

The Symposium represents the beginning of a dialogue among representatives of federal, state and local governments, and organizations such as ULC, that are interested in the intersection of and balance between state and federal law in areas of shared federal/state interest. In particular, the program will explore when it is appropriate for federal law to preempt state law; when the exercise of legislative and regulatory power should be reserved to the states; and how best to facilitate the interaction of federal and state law in areas of shared responsibility.

Professor Daniel Farber of the University of California, Berkeley, School of Law, will open the symposium with an exploration of the history of federalism and discussion of the factors that have led to expansion or contraction of federal power and scope of federal legislation and regulation. A distinguished group of commentators will provide a broad range of expertise and perspectives on the issues introduced by Professor Farber. Panelists include former members of the Obama administration, state legislators, representatives of state and federal government agencies, academic scholars, and practitioners experienced with the interplay of state and federal law.

Visit this link for full agenda and list of speakers for the symposium: Symposium Program.

Review the ULC Drafting Process

The Committee to Review the ULC Drafting Process, chaired by Virginia Commissioner Lane Kneedler, held a series of "workshops" during the Chicago annual meeting, to solicit input directly from commissioners on ways to improve the drafting process.

The committee recently met by conference call to review the many suggestions received from commissioners. Suggestions being reviewed include ways to speed up the drafting process while maintaining the quality of our drafts, using new technologies to facilitate drafting, increasing participation in the drafting process by our commissioners, and reviewing whether changes are needed in the deliberation process at our annual meetings.

The committee is currently working on a draft of "best practices," which will be presented at our 2011 annual meeting in Vail, Colorado.

Legislative Update

It's official: for the second year in a row, we tied an all-time record for enactments in a legislative year. Last year, we had 130 enactments, which tied us for the best year ever (in 1999 we also had 130 enactments). We ended this year with 93 enactments, which tied the record set in 1996 for most enactments in an even-numbered year.

Success like this doesn’t just happen; it takes a lot of hard work and dedication on the part of commissioners from all over the country.

I want to especially thank the members of the Legislative Council, chaired by Minnesota Commissioner Bob Tennessen, for the support and guidance they give to all commissioners on legislative matters.

I'd also like to thank all of the legislative liaisons who work tirelessly all year long making sure that bills are drafted, sponsors are found, and legislative deadlines are met. Many of our liaisons are not lobbyists or legislators, but they nevertheless take the time necessary to be at the capitol, meet state legislators, meet with relevant bar committees or stakeholders, and testify in support of our uniform acts when necessary. The work isn’t easy, but it is extremely important.

Our legislative staff, headed by Michael Kerr, and including Katie Robinson, Eric Fish, Nicole Julal and Kieran Marion, deserve congratulations and our great appreciation for their hard and effective work in facilitating the introduction and enactment of this record-tying level of uniform acts.

And I would be remiss if I did not recognize the commissioners from the U.S. Virgin Islands – Tom Bolt, Lisa Harris-Moorhead, and Yvonne Tharpes – who, together, set an all-time record for most enactments in any jurisdiction in a single year with 19 enactments in 2010.

ULC Website

Lastly, I’d like to mention that the ULC will soon be rolling out a new website. Now that the work has been completed on installing and updating the new database in the headquarters office, we are getting ready to launch our new website. The Website Advisory Committee has been working with ULC staff on the final touches. We are hoping that our new and improved website will launch around the new year. We will keep you posted.

Thanks to each of you for your time and contributions to the work of the ULC. I have been enormously impressed with the dedication and commitment of commissioners during the past year, and I look forward to continuing our great work in the coming year.

Back to top

Legislative News
2010: Another Great Year

We’ve closed the books on the 2010 legislative year, and again, we can look back on another great year. While last year was a record year – tying the mark for most enactments in a single year with 130 enactments and 272 introductions – 2010 has just tied the mark for most enactments in an even-numbered year with 93 enactments.

The biggest legislative news of the year was the enactment of 19 acts in the U.S. Virgin Islands this year. That broke the record of 12 enactments, set just a few years ago by Nevada.

Although no other state came close to the enactment total set in the U.S. Virgin Islands, many other states had exceptional years. Wisconsin enacted six uniform acts, Tennessee enacted five acts, the District of Columbia and Kentucky each enacted four acts, and Connecticut, Indiana, Iowa, Kansas, Maryland, Minnesota, and Oklahoma each enacted three acts.

The planning for the 2011 legislative year has been underway for some time now, and that work continues.

Target Acts

In 2010, the Legislative Council recommended the addition of four new acts to the Target List: Uniform Collaborative Law Act/Rule; UCC Article 9 2010 Amendments; Uniform Interstate Family Support Act Amendments, and Uniform Military and Overseas Voters Act.

There are now 15 Target Acts:

1. Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act: 20 enactments
2. Uniform Collaborative Law Act/Rules: 1 enactment
3. UCC Article 9 2010 Amendments: 0 enactments
4. Uniform Emergency Volunteer Health Practitioners Act: 13 enactments
5. Uniform Environmental Covenants Act: 25 enactments
6. Uniform Foreign Country Money Judgments Recognition Act: 13 enactments
7. Uniform Interstate Depositions and Discovery Act: 16 enactments
8. Uniform Interstate Family Support Act 2008 Amendments: 5 enactments
9. Revised Uniform Limited Liability Company Act: 4 enactments
10. Revised Uniform Limited Partnership Act: 16 enactments
11. Uniform Military and Overseas Voters Act: 0 enactments
12. Uniform Principal and Income Act 2008 Amendments: 23 enactments
13. Uniform Real Property Electronic Recording Act: 25 enactments
14. Uniform Trust Code: 23 enactments
15. Uniform Unsworn Foreign Declarations Act: 10 enactments

Enactment Committees

Three years ago the Legislative Council approved the creation of a limited number of “Enactment Committees” in an effort to improve the ULC’s overall legislative activity. Enactment Committees for specific acts may be authorized upon the completion of an act, and are separate from Standby Committees. Enactment Committees are made up of two or three members from the drafting committee and are charged with preparing an enactment plan for that act and actively working for enactments.

In 2010, the Legislative Council recommended the creation of five new Enactment Committees for: Uniform Military and Overseas Voters Act; Uniform Collaborative Law Act/Rule; UCC Article 9 Amendments; Uniform Interstate Family Support Act Amendments; and a joint Enactment Committee on the Revised Uniform Law on Notarial Acts, Uniform Real Property Electronic Recording Act, and Uniform Electronic Transactions Act.

There are now 18 enactment committees to promote enactment of the following acts:

1. Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act
2. Uniform Anatomical Gift Act
3. Uniform Business Entities Acts
4. Uniform Collaborative Law Act/Rules
5. Uniform Collateral Consequences of Conviction Act
6. UCC Articles 1 and 7
7. UCC Article 9 Amendments
8. Uniform Emergency Volunteer Health Practitioners Act
9. Uniform Interstate Depositions and Discovery Act
10. Uniform Interstate Family Support Act Amendments
11. Uniform Military and Overseas Voters Act
12. Uniform Power of Attorney Act
13. Uniform Principal and Income Act Amendments
14. Uniform Prudent Management of Institutional Funds Act
15. Uniform Real Property Transfer on Death Act
16. Uniform Trade Secrets Act
17. Uniform Unsworn Foreign Declarations Act
18. Joint Committee on Uniform Law on Notarial Acts, Uniform Real Property Electronic Recording, and Uniform Electronic Transactions Act.

There is a legislative staff liaison assigned to every Enactment Committee. For more information about how an Enactment Committee can help a specific enactment effort in your state, please contact the Chicago office.

Back to top

Update on the Uniform Interstate Family Support Act

In late September, the U.S. Senate gave its advice and consent to the 2007 Hague Family Maintenance Convention. This convention was the impetus for the drafting of the 2008 Amendments to the Uniform Interstate Family Support Act (UIFSA).

Because the Hague Convention is not self-implementing, Congress must now pass implementing legislation. The Department of State, together with the Department of Health and Human Services, worked to introduce federal implementing legislation for consideration by both chambers of Congress. Sen. Robert Menendez (NJ) and Sen. Chuck Grassley (IA) have co sponsored “The Strengthen and Vitalize Enforcement (SAVE) Child Support Act of 2010” which contains among other things the UIFSA implementing legislation.

Similar to the federal mandate of UIFSA 1996, the SAVE Child Support Act mandates that UIFSA 2008 be enacted in every jurisdiction within 2 years of passage of the federal legislation as a condition for continued receipt of federal funds supporting state child support programs. According to the federal bill, in order to retain IV-D funding, states will need to conform to the updated 2008 UIFSA by January 1, 2013. Failure to enact these amendments by that time may result in the loss of this important federal funding. ULC staff has figures for each state from 2003-2007 provided by the US Department of Health and Human Services for those interested.

Although the implementing legislation has been introduced, it has not yet moved out of committee. It is expected that the legislation will be passed this fall in a lame duck session or attached to an appropriation bill at some point before Congress adjourns.

It is strongly recommended that you submit legislative drafting requests for a bill to conform your state’s UIFSA to the 2008 language for introduction in next year’s legislative session. It is also recommended that you contact your state IV-D agencies to inform them of the impending changes and to coordinate legislative activity.

If you have any questions, please contact Eric Fish in the Chicago office.

Back to top

New Acts 2010

At the Annual Meeting in Chicago, the ULC approved a record 10 new uniform acts or amendments to uniform acts. Here’s a brief summary of each new act.

Uniform Military and Overseas Voters Act

The 2010 Uniform Military and Overseas Voters Act (UMOVA) establishes reasonable, standard timetables for application, registration, provision of ballots and election information for covered voters, and submission of ballots, and provides for the determination of the address that should be used for active-duty military and overseas voters. The act simplifies and expands, in common sense fashion, the class of covered voters and covered elections. UMOVA allows voters to make use of electronic transmission methods for applications and receipt of registration and balloting materials, tracking the status of applications, and expands use of the Federal Post Card Application and Federal Write-In Absentee Ballot. Finally, UMOVA obviates non-essential requirements that could otherwise invalidate an overseas ballot. The new Act uses and builds upon the key requirements of UOCAVA and MOVE, and extends the important protections and benefits of these acts to voting in applicable state and local elections.

2010 Amendments to Article 9 of the Uniform Commercial Code

The 2010 amendments to Article 9, which governs secured transactions in personal property, address filing issues as well as other matters that have arisen in practice following over a decade of experience with the revised Article 9 (last revised in 1998 and enacted in all states and the District of Columbia). Of most importance, the 2010 amendments provide greater guidance as to the name of an individual debtor to be provided on a financing statement. The amendments also improve the system for filing financing statements. More detailed guidance is provided for the debtor’s name on a financing statement when the debtor is a corporation, limited liability company or limited partnership and when the collateral is held in a statutory or common law trust or in a decedent’s estate. Some extraneous information currently provided on financing statements will no longer be required. In addition, the amendments provide greater protection for an existing secured party having a security interest in after-acquired property when its debtor relocates to another state or merges with another entity. Finally, the amendments also contain a number of technical changes that respond to issues arising in the marketplace and a set of transition rules.

2010 Amendments to Uniform Collateral Consequences of Conviction Act

The Uniform Collateral Consequences of Conviction Act, promulgated by the Uniform Law Commission in 2009 and subsequently amended in 2010, improves the understanding of penalties that attach when an individual is convicted of an offense, and in appropriate circumstances, offers a mechanism to provide partial relief from the disabilities. The Act facilitates notification of collateral consequences before, during, and after sentencing. Under the provisions of the Act, states are to create a collection of all collateral consequences, with citations and descriptions of the relevant statutes. Individuals will be advised of the particular collateral consequences associated with the offense for which they are charged at or before arraignment. Notice is also to be given at the time of sentencing, and if an individual is sentenced to prison, at the time of release. The Act mandates the essential elements of disclosure and discussion between prospective parties in order to guarantee that all parties enter into the collaborative agreement with informed consent.

Amendments approved in 2010 responded to the Supreme Court decision in Padilla v. Kentucky. This decision mandated that defense counsel must advise a defendant of certain collateral consequences associated to the crime. The need for attorneys to provide clear and impartial descriptions of the options available to the party prior to deciding upon a course of action is stressed throughout the Act.

The Act provides mechanisms for relieving collateral sanctions imposed by law. The Act creates an Order of Limited Relief, designed to relieve an individual from one or more collateral consequence based on a showing of fitness for reentry. The Order does not automatically remove the consequence, but does remove the automatic disqualification imposed by law. A state agency remains able to disqualify an individual on a case by case basis. The Act also creates a Certificate of Restoration of Rights. The Certificate is granted to individuals who demonstrate a substantial period of law-abiding behavior consistent with successful reentry and desistance from crime. Issuance of a Certificate facilitates reintegration of those individuals who have demonstrated an ability to live a lawful life.

Uniform Electronic Recordation of Custodial Interrogations Act

The Uniform Electronic Recordation of Custodial Interrogations Act addresses difficult problems that accompany interrogations conducted by law enforcement officials. These issues include false confessions and frivolous claims of abuse that ultimately waste court resources. By requiring law enforcement to electronically record custodial interrogations, the Act promotes truth-finding, judicial efficiency, and further protects the rights of law enforcement and those under investigation. The Act is carefully drafted to avoid undue burdens and technical pitfalls for law enforcement officials and prosecutors. The Act does not require law enforcement to make recordings that are unfeasible or that would endanger confidential informants, nor does it punish law enforcement for equipment failures. A uniform statute governing the electronic recordation of custodial interrogations will provide consistent rules between the states improve the administration of justice.

Uniform Faithful Presidential Electors Act

The Uniform Faithful Presidential Electors Act addresses the problem of a presidential elector who decides to vote inconsistently with the way they were elected to vote by the people of the state. The UFPEA creates a procedure that assures that states attempting to appoint a complete complement of electors will succeed and maintains the sanctity of the electoral process. Under the UFPEA, electors take a pledge of faithfulness. A vote in violation of that pledge constitutes resignation from the office of elector. Correspondingly, the Act provides a mechanism for filling a vacancy created because of this constructive resignation. The UFPEA disallows faithless voting and assures that faithful votes are substituted for faithless ones. In doing so, it provides the voters of the state with the confidence that the votes they have cast will be honored when the Electoral College meets.

Uniform Partition of Heirs Property Act

The Uniform Partition of Heirs Property Act establishes a hierarchy of remedies for use in those partition actions involving heirs property. The remedies are designed to help those who own heirs property to maintain ownership of their property when possible or to insure at the very least that any court-ordered sale of the property is conducted under commercially reasonable circumstances that will protect the owners from losing substantial wealth upon the sale of their property. Courts use the act’s guideline to determine if tenancy in common property is heirs property that must be partitioned in accordance with the act. UPHPA provides the procedures by which notice is provided to cotenants and appraisers and brokers are hired. The act also mandates that any commissioners, referees, or partitioners that are appointed by the court must be disinterested. Importantly, UPHPA incorporates an option and statutory procedure for cotenants to buy-out the interests of those other cotenants seeking partition by sale. In those instances in which a buy-out doesn’t resolve the action, the act retains the widespread current preference for a partition in kind but outlines specific criteria a court must consider in determining whether a partition by sale may be justified. The UPHPA provides a supplementary mechanism for existing state partition law to help preserve the character and integrity of family-owned property and to protect a family’s property-based wealth while still allowing a fair partition action to proceed.

Model State Administrative Procedure Act

The Model State Administrative Procedure Act (MSAPA) was first promulgated by the Uniform Law Commission (ULC) in 1946. The MSAPA has since been revised three times: 1961, 1981 and the most recent revision was completed and adopted by the ULC in July of 2010. The 2010 MSAPA maintains continuity with the provisions of the 1961 Act, and to a lesser degree, the 1981 Act. This Act returns to the external hearing rights approach followed in the 1961 Act, but also includes constitutionally required hearings in the mix of sources of hearing rights law. This Act is designed especially for adoption by states that currently have the 1961 Act, but would like to replace that act with a more modern up to date administrative procedure act. The Act is composed to ensure fairness in administrative proceedings, increase public access to the law administered by agencies, and promote efficiency in agency proceedings by providing for extensive use of electronic technology by state governments. The Act has been drafted to be less detailed and less comprehensive than the 1981 Act. Consistent with both the 1961 MSAPA and the 1981 MSAPA, the Act provides for a uniform minimum set of procedures to be followed by agencies subject to the act. The Act creates only procedural rights and imposes only procedural duties. Throughout the Act there are provisions that refer generally to other state laws governing related topics. When specific state laws are inconsistent with the provisions of the Act, those specific state laws will be controlling.

Uniform Protection of Genetic Information in Employment Act

The need for regulation of genetic information and the desirability of uniformity in the area was recognized at the federal level with the enactment of the Genetic Information Nondiscrimination Act (GINA) of 2008. However, much in the same way that states have supplemented federal employment nondiscrimination acts with their own fair employment acts, there is a role for states in the regulation of genetic information in the workplace.

The Uniform Act is designed to eliminate the preemption problems created by GINA for existing state statutes. It thus incorporates the key definitions and concepts of GINA. It also complements and supplements GINA with additional provisions that are more protective of employees, following the pattern of many state fair employment laws that supplement Title VII and other federal statutes. The Act comprehensively regulates acquisition, use, retention, and disclosure of genetic information in the employment setting.

Revised Uniform Law on Notarial Acts

The 2010 Revised Uniform Law on Notarial Acts (RULONA) comprehensively revises and replaces the earlier, 1982 Uniform Law on Notarial Acts (ULONA). Since the original promulgation of ULONA, society and technology have advanced considerably, requiring notarial officers and their practice to adapt. In particular, RULONA recognizes the ascendance of electronic commerce and transactions in the public and private sectors, and brings the law governing electronic notarial acts on par with laws governing other forms of electronic transactions. RULONA continues to focus on preservation of the integrity of the notarial transaction, whether tangible or electronic. References to the notarial seal are replaced with an “official stamp”, and RULONA provides for affixing an official stamp to a notarial certificate for tangible documents or logically associating it with an electronic one. RULONA provides minimal standards for commissioning notarial officers, and handles recognition of notarial acts from other states and certain foreign equivalents. Finally, the revised act addresses deceptive and fraudulent practices and advertising, transactions in which the notary or a spouse is a party or has an interest, and prohibitions on unauthorized practice of law.

Insurable Interest Amendments to the Uniform Trust Code

Personal life insurance trusts are a key component of most modern estate plans, and trust and estate planners create them routinely. The trustee is typically designated as the owner, and usually also as the beneficiary, of one or more insurance policies held on the life of the trust’s creator (i.e., the “grantor” or “settlor”). These trusts are extremely useful devices for ensuring that life insurance proceeds are managed competently for the beneficiaries of the trust, and, in the case of irrevocable life insurance trusts (“ILITs”), for removing life insurance proceeds from an insured’s gross estate. A recent federal district court decision (Chawla ex rel Giesinger v. Transamerica Occidental Life Insurance Co, aff’d in part, vac’d in part, 440 F.3d 639 (4th Cir. 2006)) inserted doubt into the estate planning world by stating in dicta that that a trust did not have an insurable interest in the life of the insured who was the settlor and the creator of the trust. The amendment attempt to clarify, with respect to trusts, what constitutes an “insurable interest” for purposes of insurance law, while at the same time allowing for the transfer of interest in insurance as property.

Back to top

New Drafting and Study Committees

At the 2010 Annual Meeting in Chicago, the Executive Committee authorized the appointment of two new drafting committees and two new study committees.

The new drafting committees are:

Drafting Committee on Asset Freezing Orders
This committee will prepare an act that provides authority for the granting of in personam orders that prevent a defendant in an action pending in one jurisdiction from dissipating assets that the defendant holds in another jurisdiction and that are necessary to ensure that assets are available to ensure payment of a judgment granted in the other jurisdiction. The committee will, among other matters, consider provisions that should be included in the act to provide appropriate protection for the interests of defendants in such actions. The act shall exclude coverage of asset freezing orders against consumer debtors or in domestic relations matters, and other similar matters. Illinois Commissioner Michael B. Getty chairs this committee.

Drafting Committee on Implementation of Hague Convention on the Protection of Children
This committee will draft uniform state legislation that will implement the recognition and enforcement provisions of the Hague Convention on the Protection of Children. The committee will be appointed upon confirmation that the Secretary of State has authorized United States’ signature on the Convention.

The new study committees are:

Study Committee on an Act on Prevention of and Remedies for Human Trafficking
This committee will consider and make recommendations concerning the need for and feasibility of drafting a uniform act that provides sanctions against those who engage in human trafficking and that provides remedies for and assistance to victims of human trafficking. Utah Commissioner Michael Wilkins chairs this committee.

Study Committee on a Revision of the Uniform Residential Landlord and Tenant Act
This committee will consider and make recommendations concerning the need for and feasibility of revising the Uniform Residential Landlord and Tenant Act. The committee will, in particular, consider whether to recommend that the Act be amended to include provisions on the handling and status of security deposits, and possible rights or remedies under a lease for a tenant who is a victim of domestic violence. The committee also will consider the feasibility and enactability of a broader revision of the URLTA. Iowa Commissioner Sheldon Kurtz chairs this committee.

Back to top