March 2010

IN THIS ISSUE

Message from the President

Legislative News

Adult Guardianship Adopted in Iowa

New Drafting and Study Committees

News from the ABA Midyear Meeting

ULC in the News

Message from the President
Robert A. Stein

The current economic crisis is having an impact not only on the states and on state budgets, but on the Uniform Law Commission as well. However, the ULC is not sitting back hoping that the crisis passes; we are taking affirmative steps and making adjustments to our structure and operations in response to the current fiscal situation.

This past January at our midyear meeting, the Executive Committee voted to impose an across-the-board freeze on state dues, effective with the upcoming 2010-11 Fiscal Year. Second, we have instituted a hiring freeze in the current year, and have decided to leave one of our legislative attorney positions unfilled for the foreseeable future. Third, we have made a number of operation changes to reduce costs, including switching from paper publications to electronic documents wherever possible. You will have noted we implemented electronic registration for the annual meeting this year.

Unfortunately, for the kind of substantive work we do, there is simply no replacement for in-person meetings. Our drafting committees spend 20 hours over the course of each meeting weekend, and, after a number of experiments with web-based meetings and conference calls, we have concluded that it is simply not feasible to do sustained drafting work remotely. When practical, however, we now do many other types of meetings using conference calls and web meetings.

Because the current economic crisis has hit so many states particularly hard, we are anticipating a significant (and hopefully temporary) reduction in our overall revenues next fiscal year. We are working hard to close an expected budget gap – for instance, we are trying to raise additional funds from publications and donations, and we are applying for a wide variety of grants. A further report on the current fiscal situation of the ULC will be given this summer at our annual meeting.

New Initiatives
Last summer the Executive Committee authorized the appointment of two new committees: a Committee on Federalism and State Law, chaired by Pennsylvania Commissioner Ray Pepe, and a Committee to Review the ULC Drafting Process, chaired by Virginia Commissioner Lane Kneedler.

The Committee on Federalism and State Law met in October 2009 and again very recently in Washington, DC. This Committee is charged with identifying strategies to improve recognition and respect for the role of state laws within the bifurcated federalism system. Additionally, the Committee will develop strategies to integrate successfully uniform state laws with federal law. The Committee sought and received the cooperation of the National Governor’s Association, the National Association of Attorneys General, the National Association of Secretaries of State, the Council of State Governments, the National Conference of State Legislatures and numerous other groups. The involvement of such an expansive group has helped provide guidance and focus for the Committee’s work. The Committee has drafted a set of “Federalism Principles” which will be presented to the ULC this summer. The Committee will host a symposium in the fall of 2010 to bring together leading academics and lawmakers to discuss the modern role of state law. An educational program for Members of Congress and their Staff is planned subsequent to the symposium.

The Committee to Review the ULC Drafting Process met in person last fall and additional times by conference call. The Committee’s charge is to review our drafting process from start to finish, and make recommendations on ways in which we can improve this process. This committee will have a number of recommendations for the ULC to consider at our annual meeting this summer in Chicago.

Further information on the work of both committees will be provided to Commissioners this summer.

Our annual meeting this summer in Chicago promises to be one of the most enjoyable and productive meetings we have ever had. We have a large number of acts up for final reading, and we have enjoyable social events planned for all. We look forward to seeing you in Chicago.

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Legislative News
Big News from the U.S. Virgin Islands

Planning for the 2010 legislative year got started last summer, before we had closed the books on the 2009 legislative year. Of course, 2009 turned out to be a record year, with 130 enactments – an all-time record. For a number of reasons, including the fact that even years are “off” years in many states, and the fact that so many state legislatures are engrossed with the economic crisis, we won’t see the numbers that we posted last year. Even so, it looks like 2010 is shaping up to be another good year.

The biggest news of the year so far is the enactment of 18 – yes, 18 – uniform acts this year in the U.S. Virgin Islands. Enactments there include the Uniform Probate Code, the Uniform Anatomical Gift Act, the Uniform Debt Management Services Act, the Uniform Power of Attorney Act, the Uniform Prudent Management of Institutional Funds Act, the Uniform Real Property Electronic Recording Act, and the Uniform TOD Security Registration Act. Congratulations to our U.S. Virgin Islands Commissioners – Tom Bolt, Lisa Harris-Moorhead, and Yvonne Tharpes – for working so hard to make this happen. This was the culmination of many years work, which certainly paid off. There’s a good chance that there will be even more enactments in the U.S. Virgin Islands before the year is over.

UIFSA Update
Late last year, the Senate Foreign Relations Committee recommended acceptance of the Hague Convention on Family Maintenance. The Convention has been sent to the Senate floor for advice and consent. The ULC has been told that implementing legislation will be introduced as part of the annual HHS departmental bill. The implementing legislation mandates that states – in order to retain IV-D funding – will need to conform to the updated 2008 UIFSA (Uniform Interstate Family Support Act) by later of October 1, 2011, or January 1 of the calendar year following the first session following enactment of the federal bill; effectively, January 1, 2012.

While it is unclear when the federal legislation will pass, there seems to be little doubt that it will pass. Therefore, we are recommending that each state consider introducing UIFSA 2008 if it is feasible to do so this year. It may be wise to engage your state child support offices and discuss the changes in UIFSA 2008.

The Chicago office has put together a chart showing Federal funds distributed to the states as part of the IV-D funding for five consecutive fiscal years, which may be useful in demonstrating just what is at stake if states do not pass UIFSA 2008. For a copy of the chart, or for further information on this act, please contact Legislative Counsel Eric Fish in the Chicago office at eric.fish@uniformlaws.org.

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Adult Guardianship Adopted in Iowa

Commissioner David Walker Attends Bill Signing
The Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, House File 734, was signed into law by Iowa Governor Chet Culver on March 22, 2010. The new law will assist in the resolution of interstate guardianship issues which will benefit Iowans with dementia, especially those who have guardianships in Iowa but spend winters in other states, caregivers in other states and/or those who may wander across state lines. The Alzheimer’s Association, Iowa Chapter Network, along with the Uniform Law Commissioners of Iowa, advocated for this legislation. On hand to witness the signing, from left to right, were Carol Sipfle, Executive Director of the Greater Iowa Chapter, Marian Johnsen, Public Policy Coordinator for the Greater Iowa Chapter, John Sandblom, advocate, Debbie Jones, Board Member of the East Central Iowa Chapter and David Walker, Uniform Law Commissioner and Professor of Law at Drake University.

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New Drafting and Study Committees

At its 2010 Midyear Meeting in Tucson, Arizona, the ULC Executive Committee authorized the appointment of two new drafting committees and two new study committees.

The new drafting committees are:

Drafting Committee on Marital and Premarital Agreements Act
This committee will draft an act that provides standards and procedural requirements concerning the scope and enforceability of marital and premarital agreements between persons in legally recognized relationships. This project was jointly recommended by the Joint Editorial Boards on Uniform Family Laws and Uniform Trust and Estate Acts. Arizona Commissioner Barbara Atwood is the Chair of this new drafting committee.

Drafting Committee on Manufactured Housing
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 committee will draft an act on manufactured housing that 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. Vermont Commissioner Carl Lisman is the Chair of this new drafting committee.

The new study committees are:

Study Committee on an Act to Implement the Consular Notification Requirements of Article 36 of the Vienna Convention on Consular Relations
Article 36 of the Vienna Convention on Consular Relations (1963), which the United States ratified in 1969, provides that when a national of a foreign country is arrested or detained on criminal or immigration charges, the detainee must be advised of the right to have the detainee’s consulate notified and that the detainee has the right to regular consultation with consular officials during detention and any trial. A number of states and law enforcement agencies implement these requirements through rules, regulations, or policies, but only a small number of states have legislation on this matter. This committee will consider and make recommendations concerning the need for and feasibility of drafting a uniform act that implements the consular notification requirements of Article 36 of the Vienna Convention. Alaska Commissioner Grant Callow is the Chair of this new study committee.

Study Committee on an Act on the Recovery of Stolen Cultural and Artistic Property
Most states do not have specific legislation directed to the recovery of stolen cultural or artistic property, but rather treat such matters under the state’s general property law. This committee will consider and make recommendations concerning the need for and feasibility of drafting a uniform act that provides for private rights of action to recover stolen cultural or artistic property and illegally exported artifacts. In its study, the committee also will consider the relationship between any uniform state legislation and existing federal laws and international treaties. California Commissioner Nathaniel Sterling is the Chair of this new study committee.

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News from the ABA Midyear Meeting
Three Uniform Acts Approved by ABA House of Delegates

Three uniform acts were approved by the American Bar Association’s House of Delegates at its Midyear Meeting in Orlando, Florida, February 4-8, 2010.

The Uniform Collateral Consequences of Conviction Act 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 required to create a collection of all collateral consequences, with citations and descriptions of the relevant statutes. At or before arraignment, individuals will be advised of the particular collateral consequences associated with the offense for which they are charged. Notice is also to be given at the time of sentencing, and if an individual is sentenced to prison, at the time of release. Formal advisement promotes fairness and compliance with the law.

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.

The Uniform Collateral Consequences of Conviction Act has been introduced in Wisconsin.

Asset-specific mechanisms for the non-probate transfer of property and funds are now common – the proceeds of life insurance policies and pension plans, securities registered in transfer on death (TOD) form, and funds held in pay on death (POD) bank accounts, are good examples of property that have benefitted from this trend in modern property law. However, a straightforward, inexpensive, and reliable means of passing real property, which may be a decedent’s major asset, directly to a beneficiary is not generally available. The Uniform Real Property Transfer on Death Act (URPTODA) enables an owner of real property to pass it to a beneficiary upon the owner’s death by a similar mechanism – simply, directly, and without probate. Under URPTODA, the property passes by means of a recorded transfer on death (TOD) deed. URPTODA sets forth the requirements for the creation and revocation of a TOD deed, and clarifies the effect of the TOD deed for all parties while the transferor is living and after they pass away. A TOD deed is effective without consideration, and without notice or delivery to the beneficiary. Beneficiaries take the property subject to allowed claims against the transferor’s estate. If the intended beneficiary wishes, they may disclaim all or part of their beneficiary interest in the property. Finally, URPTODA provides optional language for forms to create and revoke TOD deeds.

The Uniform Real Property Transfer on Death Act has been introduced in Hawaii, Nebraska, Oklahoma, South Dakota, and Utah.

The Uniform Statutory Trust Entity Act (USTEA) addresses the need for a uniform law to regulate statutory business trusts. This need arises from the increasing popularity of statutory trust entities, chiefly in the structured finance and mutual fund industries. Practitioners, entrepreneurs, and scholars struggle to understand the law governing statutory trusts. The case law on statutory trusts is sparse. USTEA validates the statutory trust as a permissible form of business organization and brings the disparate and often inadequate existing state laws into uniformity.

USTEA more closely resembles a generic corporate code or unincorporated entity law than it does the Uniform Trust Code (UTC). However, nothing in this Act displaces the common law of trusts, or the UTC, with respect to such trusts. The USTEA uses Delaware Statutory Trust Act as a starting point for the Act but adds several innovations. The USTEA will be used primarily as a business organization tool and will clarify this area of law.

The Uniform Statutory Trust Entity Act has been introduced in the District of Columbia.

Information on each of these acts is available at the ULC’s website at www.uniformlaws.org.

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ULC in the News

In recent months the ULC, along with specific uniform acts, have been spotlighted in numerous news articles. Highlights of some recent news articles on ULC acts can be found below. Click on the highlighted link to read the entire article.

FORBES MAGAZINE
February 2010
“A Case for Uniformity”
By V. Gerard Comizio

Between state and federal banking and related consumer regulation, which should reign supreme? Banks and their lawyers refer to this quandary as the pre-emption doctrine debate.

Pre-emption is the legal theory that enables national banks to operate nationwide under uniform national standards. It is a regulatory regime composed of a federal and state system. Federal laws have been criticized by state regulators and consumer groups for not adequately protecting consumers; however, the alternative, state regulations, presents a complex patchwork of 50 different state laws – a regulatory nightmare for national banks. As Congress contemplates new financial regulations, it is weighing both sides of the argument.

The crux of the continued debate between national banks and the states should be understood for what it is: a mutual plea for uniformity. …

Similarly, and perhaps more significantly, the idea of uniformity among state laws is an established notion. In fact for our 117 years, it has been the primary – and successful – mission of states through the National Conference of Commissioners on Uniform State Laws to adopt uniform corporate, commercial, and financial laws.

Click here to read entire article.

DETROIT LEGAL NEWS
March 18, 2010
“Getting 50 Clocks to Strike as One”
By John Minis

In 1818, reflecting on the American Revolution, John Adams wrote: “Thirteen clocks were made to strike together – a perfection of mechanism, which no artist had ever before effected.”

He would have been even more impressed had he been alive 80 years later to witness the formation of the National Conference of Commissioners on Uniform State Laws. Over its 118 years, the Uniform Law Commission, as it is now known, would make 50 clocks strike as one – as well as the District of Columbia, the Commonwealth of Puerto Rico, and the U.S. Virgin Islands.

Click here to read entire article.

NEW YORK DAILY RECORD
February 9, 2010
“New York nonprofits push for change in downtime; act could provide needed relief”
By Eric Walter

It’s a paradox, some in the non-profit sector say: In rough economic times, when demand for their services is highest, their ability to fund those services is at its most limited. It is for that reason some nonprofits support changes to regulations governing the financial management of nonprofit organizations now before state lawmakers.

Already adopted by 44 states and … introduced to the New York State Legislature and Senate last year, proponents say the Uniform Prudent Management of Institutional Funds Act would make it easier for charitable organizations, churches, universities, hospitals and others to make it through tough economic times while continuing to fund important programs and services.

Click here to read entire article.

WASHINGTON BUSINESS JOURNAL
January 21, 2010
“DC considers changes to corporate laws”
By Jonathan O’Connell

DC is considering a major update to its code for organizing corporations, business and nonprofit organizations, rules that business leaders and some members of the D.C. Council consider antiquated, disorganized, and incomplete. Councilwoman Muriel Bowser and the D.C. Chamber of Commerce held an information session on hundreds of pages of proposed changes assembled by an ad hoc group of lawyers led by James McKay Jr., chairman of the D.C. Uniform Law Commission.

Click here to read entire article.

BENCH AND BAR OF MINNESOTA
December 2009
“National Legislation, One State at a Time”
By Chato Hazelbaker

Mention “state’s rights” and folk with an historical bent will summon memories of John C. Calhoun, the Civil Rights Movement, or perhaps some other major standoff between state or regional interests and federal authorities. But not all efforts to affirm the federal structure of government make the headlines. In fact, the lawyers arguably making the greatest national impact in this area do not hold national office or receive party backing. They do not worry about election cycles; they view the legislative process in decades. They seek to pass legislation in the states that will strengthen the federal system. In Minnesota, the group is a who’s who of lawyers working outside the spotlight to strengthen the legal system with legislation crafted by legal professionals with practicing attorneys in mind.

The Uniform Law Commission (ULC) is formally known as the National Conference of Commissioners on Uniform State Laws (NCCUSL). As an arm of state government, the commission is funded through dues from the states and staffed primarily by volunteer commissioners from the 50 states, the District of Columbia, Puerto Rico, and the U.S. Virgin Islands. The commission works to provide consistent rules and procedures across states through Uniform and Model Acts that are introduced in the state legislatures.

Click here to read entire article.

ST. LOUIS LAWYER
December 2009
“Making the Case for Uniform Law in Missouri”
By John Fox Arnold

Uniform laws are not new to Missouri. There were five different uniform acts introduced in the Missouri General Assembly in 2009 and two of them … were enacted. As a matter of fact, the first Uniform Act was adopted in Missouri more than 100 years ago. The Uniform Negotiable Instruments Law, promulgated in 1896, was adopted in Missouri in 1905. Since then, Missouri has enacted more than 50 Uniform Acts.

Uniform Laws are the product of the Uniform Law Commission

Click here to read entire article.

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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