June 2011

IN THIS ISSUE

Message from the President

2011 Annual Meeting

Legislative Update

UPMIFA Turns 50!

UCCJEA Turns 51!!

President Stein Interviewed on Minnesota CBS Radio

Message from the President
Robert A. Stein

MESSAGE FROM THE PRESIDENT
Robert A. Stein

ARE YOU READY FOR VAIL?

The ULC's 120th Annual Meeting will be held in Vail, Colorado, July 7-13, at the Marriott Vail Mountain Resort & Spa. As you have noted, our meeting this year will be a seven-day meeting rather than an eight-day meeting, and it will begin on Thursday rather than the traditional Friday opening.

This meeting will mark the seventh time that we have met in Colorado. The first time we gathered in Colorado was in 1901 in December for our 10th Annual Meeting. The last time was in 1999 for our 108th Annual Meeting. We’ve met twice before in Vail, but the last time was in 1977 – much has changed in this beautiful mountain resort!

In addition to our week-long business sessions, we have some wonderful tours and events planned that will showcase this amazing part of the country. Just a few of the exciting events that are waiting for you in Vail include:

  • Opening Reception at the Gerald R. Ford Amphitheater in the Betty Ford Alpine Gardens;
  • ULF Gala at Spruce Saddle located on Beaver Creek Mountain;
  • Farewell Banquet in picturesque Arrabelle Square.

In addition there are many optional events, including:

  • Walking tour of Vail village;
  • Tour of the legendary, frontier mining town of Leadville, home of Baby Doe Tabor and the Matchless Mine;
  • White water rafting;
  • Fly fishing;
  • Hot-air ballooning.

Also, you won't want to miss the second annual Art Fair, which will feature items from some of our more creative members of the ULC family. The hotel will also host a cooking class to demonstrate how to prepare a fabulous meal with local ingredients. Most mornings we will again be featuring the popular "Morning Speakers" series. Speakers will discuss a wide variety of topics, including "Great Cases" and "The Legend of Baby Doe." You’ll find detailed information on all of these events and more, along with our business agenda, on our website at www.uniformlaws.org.

So plan to be with us in Vail for our Annual Meeting, July 7 – 13, 2011. We'll have plenty of important work to do as we complete five new acts or amendments to acts and discuss and debate others on the floor. Our annual meetings are also a time to greet old friends and make new ones. I look forward to seeing you all there, and I know we can all look forward to another great meeting.

New ULC Advisory Member

At the Midyear Meeting in January, the Executive Committee approved a request from the Council of State Governments (CSG) to become an "Advisory Member" to the ULC, as provided in the ULC Constitution. An invitation was subsequently extended to CSG to designate a representative to be the Advisory Member. I'm pleased to announce that Jason C. Moseley, General Counsel of CSG, is now an Advisory Member. We expect that this relationship will prove beneficial to both organizations. Mr. Moseley will be attending the ULC Annual Meeting in Vail, so you will have a chance to meet our newest Advisory Member this summer.

Update on Committee on Federalism and State Law

The Committee on Federalism and State Law, chaired by Pennsylvania Commissioner Raymond Pepe, was established in 2009 to study and make recommendations on ways to promote the importance of state law in maintaining the balance of federal and state law in our federal system; on ways to ensure a more cooperative and productive relationship between States and the Federal government; and on ways to avoid unintended or unclear federal preemption of state law by federal statutes and regulations.

The Federalism Committee co-sponsored a very successful Symposium on Federalism, Preemption and State Law that was held last fall at George Washington University Law School in Washington, DC, and the committee has developed a Draft Statement of Federalism Principles. Our co-sponsoring organizations included the Council of State Governments, the National Conference of State Legislatures, the National Center for State Courts, the National Governors Association, the National Association of Attorneys General, and the Conference of Chief Justices, among other state organizations. It was especially pleasing that many of our co-sponsoring organizations look to the Uniform Law Commission for leadership on these important questions. I believe our leadership and influence among the many state governmental organizations has never been higher.

Moving forward, the Federalism Committee plans to make more broadly available the scholarship and insights presented at the Symposium and gained through consultation with partner organizations. Follow-up activities include scheduling briefing sessions with staffs of Congressional Committees and Federal Agencies about federalism, preemption and the work of the ULC.

You will hear more about the work of this very important committee this summer in Vail.

Update on Committee to Review ULC Drafting Process

The Committee to Review the ULC Drafting process, chaired by Virginia Commissioner Lane Kneedler, held a series of "listening sessions" during the 2010 annual meeting, to solicit input from commissioners on ideas to improve the drafting process.

Since last summer, the committee 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's report will be presented at our 2011 annual meeting in Vail, Colorado.

Executive Committee's Strategic Planning

The Executive Committee has had a series of discussions regarding strategic planning for the ULC over the past two years and has already implemented some of the decisions that resulted from these discussions. The shortening of our annual meeting by one day this year is one of the changes adopted. In these times of busy schedules, it is increasingly difficult for commissioners to free up time for a long annual meeting. We will continue to review this issue in the future as to whether our work can be adequately accomplished in seven days and whether a further shortening of the meeting should occur in a future year.

Another conclusion reached in the Executive Committee's strategic planning discussions was that the number of Acts we have under development has been too large in recent years. Last year we reached a historic high with 12 acts up for final approval. Concern was expressed by some commissioners that this high workload has prevented us from giving each of our acts the appropriate time and consideration. With the help of the Scope and Program Committee, the Executive Committee has made a concerted effort in the last two years to reduce the workload in the pipeline to a more manageable level. This year we will have only five acts up for final approval.

I will talk about other strategic initiatives that have been adopted when we meet in Vail. I'd like to thank Commissioner Tom Bolt of the Virgin Islands, who facilitated our initial strategic planning session, for assisting the Executive Committee in this important work.

I'’m looking forward to seeing you all in Vail!

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2011 Annual Meeting
Preview of Acts to Be Considered in Vail

The business agenda for our upcoming annual meeting is now complete. There are five acts up for final approval, and five more acts are on the agenda for debate and discussion. Here is a brief summary of each act to be debated this year.

Uniform Electronic Legal Material Act

With the advent of the Internet, and the rapid adoption of online publication of laws, agency regulations and decisions, and court rules and decisions, it has become much easier for individuals to access government documents. At the same time, however, it has also become easier for electronic materials to be duplicated and stored in multiple locations. That makes it difficult to determine whether the decision or statute or rule that was accessed online is in fact the official and authentic text.

The Uniform Electronic Legal Material Act provides a clear answer to the question of who is the official publisher of a given governmental record, and how official publishers can authenticate the fact that a given electronic record is, in fact, the official record for citation and other purposes.

Uniform Certificate of Title Act for Vessels

The purpose of this act is to establish a certificate of title system for boats. Many states do not have certificate of title laws governing watercraft, and those that do are non-uniform.

The major objectives of the act are to: (1) qualify as a state titling law that the Coast Guard will approve; (2) facilitate transfers of ownership of a vessel; (3) deter and impede the theft of vessels by making information about the ownership of vessels available to both government officials and those interested in acquiring an interest in a vessel; and (4) accommodate existing financing arrangements for vessels.

Model Protection of Charitable Assets Act

The Model Protection of Charitable Assets Act will articulate and confirm the role of the state Attorney General in protecting charitable assets. The Attorney General’s authority is broad and this Act will not limit or narrow that authority.

The Act provides the Attorney General (the term is used in the act to mean the charity regulator in the state) with an inventory of basic information without overburdening the charities or the Attorney General with excessive reporting requirements. The Act specifies which transactions and legal proceedings require notice to the Attorney General and provides for registration and annual reports for some charities.

The Act does not cover governmental entities and businesses, except to the extent that those non-charities hold charitable assets.

Harmonized Business Organizations Code

The primary purposes of this harmonization project are to (1) harmonize the language of all of the unincorporated entity acts, and (2) to revise the language of each of those acts in a manner that permits their integration into a single code of entity laws.

The harmonization process has involved the revision of the following acts:

  1. Business Organizations Act
  2. Model Entity Transactions Act ("META")
  3. Model Registered Agents Act ("MORAA")
  4. Uniform Partnership Act (1997)
  5. Uniform Limited Partnership Act (2001)
  6. Uniform Limited Liability Company Act (2006)
  7. Uniform Statutory Trust Entity Act
  8. Uniform Limited Cooperative Association Act
  9. Uniform Unincorporated Nonprofit Association Act (2008)

Amendments to the Uniform Debt-Management Services Act

In October 2010, the Federal Trade Commission amended its Telemarketing Sales Rule to cover the business of debt-management services. Several of the provisions of the amended Rule are inconsistent with provisions in the Uniform Debt Management Services Act. To avoid any inconsistency between this Act and the newly revised federal law, amendments are proposed to address the timing of fee collection and the use of powers of attorney. Several other changes have been made throughout the Act, to clarify the disclosure and reporting requirements and to address circumstances that have changed since 2005.

The Act has also been revised to adopt the position that the debt-management services business should be open to both for-profit and not-for-profit entities. Removal of the option to restrict the business to not-for-profit entities has the incidental benefit of simplifying the Act.

Five other acts will be debated in Vail:

Uniform International Choice of Court Agreements Act

At the request of the U.S. State Department, the ULC undertook to draft uniform state legislation and appropriate declarations and understandings to assist in the implementation and ratification of the Hague Convention on Choice of Court Agreements.

Asset Freezing Orders Act

This draft act 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 is considering 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.

Deployed Parents Visitation and Custody Act

This draft act provides standards and procedures for resolving visitation and custody issues affecting military personnel and their families, which may include resolution of matters in intrastate, interstate, and international contexts.

Manufactured Housing Act

The uncertainty about whether a manufactured home is characterized as "personal" or "real" property creates significant impediments to the financing of manufactured homes, particularly upon resale or attempts to re-finance, and also makes it difficult to securitize debt secured by manufactured homes. This draft act will alleviate those problems and address at least the following issues: the appropriate characterization of manufactured housing as either personal property or real property, including in particular the point in time at which an interest in manufactured housing converts from a personal property interest to a real property interest; whether the fact that manufactured housing is located on leased land affects that characterization; the continued priority and appropriate characterization of security interests in manufactured housing after conversion; and appropriate transition provisions.

Premarital and Marital Agreements Act

This draft act provides standards and procedural requirements concerning the scope and enforceability of marital and premarital agreements between persons in legally recognized relationships.

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Legislative Update
2011: No Records Broken, But Still an Excellent Year

In 2009, the ULC tied an all-time record for the most enactments with 130 enactments and 272 introductions. In 2010 we tied another all-time record for the most enactments in an even-numbered year with 93 enactments. And although it doesn't look as though we will break or tie any more records this year, 2011 is still shaping up to be an excellent year. Given the continuing economic problems, with states focusing on budget problems, as well as the number of new legislators elected in 2010 which resulted in a change in party control in many states, our numbers are better than might be expected.

We currently have 221 introductions of uniform and model acts, with 91 enactments. We'll have a few more enactments by the time of the annual meeting.

The District of Columbia leads all states with nine enactments this year. That includes its enactment of the DC Business Organizations Code, which contained eight uniform and model acts, including Revised Uniform Partnership Act, Revised Uniform Limited Partnership Act, Model Registered Agents Act, Model Entity Transactions Act, Revised Uniform Limited Liability Company Act, Uniform Limited Cooperative Association Act, and the Revised Uniform Unincorporated Nonprofit Association Act. The DC Business Code also included the Uniform Statutory Trust Entity Act, making the District of Columbia the first jurisdiction to adopt this new act. DC has five other acts pending, and more acts may be introduced before the end of the year.

Nevada finished close behind DC, with eight enactments, including the first enactment of the new Uniform Partition of Heirs' Property Act.

New Mexico finished with seven enactments, and also enacted some clean-up amendments to previously enacted uniform acts. North Dakota also enacted seven uniform acts, including the first enactment of the Revised Uniform Law on Notarial Acts.

The Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act leads all acts with 16 introductions, and nine new enactments, bringing its total to 29.

The 2010 Amendments to UCC Article 9 have been introduced in 13 states and enacted in eight; and the Uniform Military and Overseas Voters Act has been introduced in 12 states, and enacted in six.

The Legislative Program in Vail

Once again, all commissioners will be expected to attend one of two legislative breakfasts that the Legislative Council will be hosting during our annual meeting in Vail this summer. Our legislative breakfasts continue to evolve, though the basic format remains unchanged. All commissioners from particular states are expected to attend the large, "all-commissioner" breakfasts, while the legislative liaisons for each state will have a separate, smaller breakfast meeting.

These breakfasts are critical to the ULC legislative program. They are not only the forum for showcasing new acts, but they also provide opportunities for state delegations to meet and plan their legislative agendas, obtain answers, get to know the staff and Legislative Council members, learn of the staff and material support available, and learn how to be more effective.

This year, as in the past few years, there will be two breakfasts at which all commissioners are invited. There will be a separate legislative liaison breakfast prior to the all-commissioner breakfasts. The purpose of the liaison breakfast meeting is to provide liaison commissioners with information to assist them in planning for the meeting of their state delegations at the all commissioner breakfasts.

Schedules for the legislative breakfasts will be posted in Vail. Please make plans to attend your appropriate legislative breakfast. It is important that all commissioners participate. If you have any questions, please contact the Chicago office.

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UPMIFA Turns 50!

Florida recently became the 50th state to enact the Uniform Prudent Management of Institutional Funds Act (UPMIFA), important legislation that establishes rules for the management of endowment funds. UPMIFA was introduced by Rep. Kathleen Passidomo (R-Naples) as HB 599, and was recently signed into law by Florida Governor Rick Scott. UPMIFA is now the law in every state except Mississippi, Pennsylvania, and Puerto Rico.

During the current economic times, nonprofits and foundations have suffered on several fronts. Donations have declined and the value of many endowment funds has decreased. Before UPMIFA, the law on expenditures was inflexible – to the point that a large number of charities could not use their funds because of the restrictions placed on investments or spending. UPMIFA provides a better framework that gives nonprofits and foundations more flexibility to meet their core missions through use of the funds that are meant for these purposes, but will also provide a more robust standard for preserving these funds long term and guarding against inappropriate expenditures in both good and bad times.

UPMIFA was approved by the ULC in 2006. It is a revision of the Uniform Management of Institutional Funds Act (UMIFA) of 1972, which was adopted in 48 states.

UPMIFA expressly addresses the needs of charities by providing for diversification of assets, pooling of assets, total return investment, and whole portfolio management. It does so in a comprehensive manner that is consistent with modern practices in trust and not-for-profit corporation law.

Under UPMIFA, the rules governing expenditures from endowment funds have been modified to give a governing board more flexibility in making expenditure decisions, so that the board can cope with fluctuations in the value of the endowment. It does this by providing investment freedom, and by providing updated rules on the expenditure of funds.

The Uniform Prudent Management of Institutional Funds Act provides the nonprofit sector a better legal foundation to weather today's economy, continue to meet their core missions, and maintain the strongest measures of accountability to donors and to the public.

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UCCJEA Turns 51!!

Vermont is now the 51st state or territory to adopt the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). It was introduced as HB 88 by Representative Alison Clarkson and was signed into law by Governor Peter Shumlin on May 17. The UCCJEA is now the law in 49 states, the District of Columbia, and the U.S. Virgin Islands. Massachusetts and Puerto Rico are the only states which have not enacted this act.

The UCCJEA is an important step forward in establishing clarity and predictability with regard to interstate custody rules, and resolves several significant jurisdictional questions that arose over the years concerning the Uniform Child Custody Jurisdiction Act (UCCJA) of 1968. The UCCJA was designed to prevent a fairly common legal standoff of the day, whereby one parent gained legal custody of a child in one state, and the other parent managed to take the child to a "haven state"" in search of a court willing to change the initial lawful custody order. Developments of federal law addressing parental kidnapping created interpretive differences across the country and further confused the clarity once provided by UCCJA. The UCCJEA addresses these differences and ensures effective custody orders.

The UCCJEA harmonizes federal law and developments in case law by prioritizing home state jurisdiction. Additionally, the UCCJEA sets forth the concept of "continuing exclusive jurisdiction." The order of a state with continuing exclusive jurisdiction is entitled to be enforced in every other state. No other state can modify the order unless the first state relinquishes jurisdiction. This brings certainty to custody and visitation determinations.

Moreover, the UCCJEA provides enforcement mechanisms which prevents kidnappers from hiding behind divergent state laws and ensures that missing children return home even if they cross state lines. The act also expands protections for victims of domestic violence. Additionally, the act establishes procedures for interstate enforcement of custody orders including registration, expedited enforcement, and the use of other civil remedies by prosecutors and law enforcement.

The UCCJEA was approved by the ULC in 1997.

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President Stein interviewed on Minnesota CBS Radio

ULC President Robert A. Stein was recently a guest on "Minnesota Law," a one-hour program broadcast every Saturday at 11 am on CBS Radio WCCO AM 830 in Minneapolis/St. Paul, Minnesota. This program focuses on interesting legal facts and important new developments in the law, and is presented by the law firm of Moss & Barnett.

Mr. Stein was the featured guest of Tom Shroyer and Kevin Busch of Moss & Barnett, and spoke about the current work of the ULC.

A direct link to the audio file of the interview is available here: http://moss-barnett.co/WCCORadio061111.mp3

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ULC Quarterly Report Published by the Uniform Law Commission
Kate Robinson, Editor |
katie.robinson@uniformlaws.org

Uniform Law Commission (ULC)
111 N. Wabash Ave., Suite 1010 | Chicago, IL 60602 | Ph: (312) 450-6600 | Fax: (312) 450-6601 | www.uniformlaws.org