March 2011

IN THIS ISSUE

Message from the President

News from the ABA Midyear Meeting

Legislative Update

Development Update

New Drafting and Study Committees

Message from the President
Robert A. Stein

MESSAGE FROM THE PRESIDENT
Robert A. Stein

New Website
By now, I hope you've had the chance to visit the ULC's new website at www.uniformlaws.org. Please take the time to familiarize yourself with our new online home; you can log on at any time to see the new design and observe its new capabilities. We designed the new website to be more user-friendly, and to make it easier to find the extensive material we have posted related to the work of the ULC. You can find up-to-date legislative information, meeting and registration information – you can even log on to update your own commissioner profile.

I would like to thank the many talented people who have worked so hard to bring about this new website. They include: Kristina Shidlauski for her excellent project management; Leang Sou, Katie Robinson and Casey Elliot for their technical assistance; Michael Kerr and Elizabeth Cotton-Murphy for their oversight; and Commissioner Howard Swibel for negotiating favorable terms with our vendors. Additional thanks to the website advisory committee for their input and guidance. I would also like to thank the Uniform Law Foundation for providing funding for a substantial part of the cost of this new website project.

Enjoy our new website, and let us have your feedback on your experience.

Update on Federalism Project
In August 2009, the ULC established a Committee on Federalism and State Law to study and make recommendations to the States, Congress, and the Executive Branch of the federal government on ways to ensure a more cooperative and productive relationship between States and the Federal government and reduce conflicts regarding whether and to what extent Federal law preempts State law.

Under the leadership of its Committee Chair Commissioner Raymond Pepe, the Federalism Committee has developed a Draft Statement of Federalism Principles, and co-sponsored a day-long Symposium on Federalism, Preemption and State Law that was held on October 29, 2010, at George Washington University Law School in Washington, DC. More than 100 persons attended the Symposium, including representatives of the following organizations: American Law Institute, Conference of Chief Justices, National Association of Attorneys General, National Association of Secretaries of State, National Center for State Courts, National Conference of State Legislatures, National Governors Association, and Council of State Governments.

Moving forward, the Federalism Committee plans to make available the scholarship and insights offered at the Symposium and gained through consultation with partner organizations through a series of one to two hour educational briefings regarding federalism and preemption. Some of the topics the briefings might include:

  • Principles of Federalism;
  • Impact of expanding Federal authority;
  • Role of judges, legislators, and regulators;
  • Clarifying the existence and extent of Preemption.

We will continue to keep you updated about the work of this very important committee.

2011 Annual Meeting in Vail, Colorado
Registration for the 2011 Annual Meeting is now open. The ULC is excited to be able to offer online registration again this year. Just go to www.uniformlaws.org to register. As always, tours will be filled on a first-come, first-served basis, so it’s important to register early.

The 120th ULC Annual Meeting will be in Vail, Colorado, July 7-13, at the lovely Marriott Vail Mountain Resort & Spa. Note that the meeting will be a seven day meeting, a day shorter than our traditional eight day meeting, and it will begin on Thursday rather than Friday. By beginning our meeting on Thursday, we were able to negotiate a more favorable rate in our beautiful meeting hotel.

Our Opening Reception will take place at the Ford Amphitheater in the beautiful Betty Ford Alpine Gardens; our Farewell Banquet and dance will be in the European-inspired village of Arrabelle Square. The 10th Annual Uniform Law Foundation Gala on Friday evening will be at Spruce Saddle located on Beaver Creek Mountain; this rustic venue offers breathtaking views of the surrounding mountains and wilderness.

The whole week will be a time to do our important work and enjoy the splendor of Vail. Attendees will have their choice of a wide variety of optional tours and activities from which to choose, including a tour of a frontier mining town, white water rafting, nature walks, fly fishing, and even hot air ballooning. The hotel will also host a cooking class to demonstrate how to prepare a fabulous meal with local ingredients. We are also making arrangements for the second annual Spouses' Art Fair. You’ll find detailed information on all of these events and more, along with our business agenda, on our website.

So mark your calendars to be 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 and discuss and debate others on the floor, and we’ll have a terrific time of fellowship with one another in the Rocky Mountains at the Vail Resort. I look forward to seeing you all there.

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

Five uniform acts were approved by the American Bar Association’s House of Delegates at its Midyear Meeting in Atlanta, Georgia, February 10-14, 2011.

The 2010 Amendments to UCC 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.

Uniform Military and Overseas Voters Act
Military personnel and overseas civilians face a variety of challenges to their participation as voters in U.S. elections, despite repeated congressional and state efforts to facilitate their ability to vote. The federal Uniformed and Overseas Citizens Absentee Voting Act of 1986 (UOCAVA) and Military and Overseas Voter Empowerment Act of 2009 (MOVE), as well as the various state efforts, have not been wholly effective in overcoming difficulties that these voters face. Further, American elections are conducted at the state and local levels under procedures that vary dramatically by jurisdiction, and many are conducted independent of the federal elections to which UOCAVA and the MOVE Act do apply. Lack of uniformity, and lack of application of the federal statutes to state and local elections, complicates efforts to more fully enfranchise these voters.

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.

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.

The Uniform Faithful Presidential Electors Act (UFPEA) 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.

The Uniform Partition of Heirs Property Act (UPHPA) 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.

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

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Legislative Update
2011: Another Record 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. Our goal for this year is not to tie the all-time record, but to break it. The goal for enactments set by the Legislative Council for the 2011 legislative year is 135 enactments.

We currently have 199 introductions in the various states, with 20 enactments.

The District of Columbia has already gotten off to a great start. Just last month it enacted 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 important new act. DC also adopted the Act on Appointment of Commissioners, and has five other acts pending.

New Mexico is quickly catching up, with 13 introductions, and 10 acts and amendments to acts that have passed the legislature there. Massachusetts has introduced 17 acts, Mississippi introduced 11 acts, Nevada has introduced nine acts, and North Dakota introduced seven acts.

The Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act has already been enacted in five states this year, bringing its total to 25. It is currently pending in nine more states.

The Uniform Military and Overseas Voters Act has been introduced in 11 states, and the 2010 Amendments to UCC Article 9 have been introduced in 12 states.

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 2008 Amendments, and Uniform Military and Overseas Voters Act.

There are now 15 Target Acts:

1. Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act: 25 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: 14 enactments
7. Uniform Interstate Depositions and Discovery Act: 17 enactments
8. Uniform Interstate Family Support Act 2008 Amendments: 5 enactments
9. Revised Uniform Limited Liability Company Act: 5 enactments
10. Revised Uniform Limited Partnership Act: 17 enactments
11. Uniform Military and Overseas Voters Act: 0 enactments
12. Uniform Principal and Income Act 2008 Amendments: 24 enactments
13. Uniform Real Property Electronic Recording Act: 26 enactments
14. Uniform Trust Code: 23 enactments
15. Uniform Unsworn Foreign Declarations Act: 10 enactments

Enactment Committees
Four 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 four 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 Collaborative Law Act/Rules
4. Uniform Collateral Consequences of Conviction Act
5. UCC Articles 1 and 7
6. UCC Article 9 Amendments
7. Uniform Emergency Volunteer Health Practitioners Act
8. Uniform Interstate Depositions and Discovery Act
9. Uniform Interstate Family Support Act Amendments
10. Uniform Military and Overseas Voters Act
11. Uniform Power of Attorney Act
12. Uniform Principal and Income Act Amendments
13. Uniform Prudent Management of Institutional Funds Act
14. Uniform Real Property Transfer on Death Act
15. Uniform Trade Secrets Act
16. Uniform Unincorporated Entity Acts
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.

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Development Update

Fundraising for the 2011 Annual Meeting is heavily underway! Many thanks to the Colorado Host Committee for all its hard work in the letter-writing campaign to law firms and corporations. A special thanks to our most recent Gold Sponsor, LexisNexis, for its $10,000 sponsorship of the Opening Reception. If you haven't done so already, please register for the ULF Gala at ULF Gala Registration. Sponsorship opportunities for the Annual Meeting and the ULF Gala remain available, so please contact Amy Steinback at amy.steinback@uniformlaws.org if you are interested in supporting this year's endeavors.

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New Drafting and Study Committees

At its 2011 Midyear Meeting in Naples, Florida, the ULC Executive Committee authorized the appointment of one new drafting committee and two new study committees.

The new drafting committee is:

Drafting Committee on a Powers of Appointment Act
This committee will draft legislation concerning powers of appointment. The power of appointment is a core device in modern estate planning practice, and powers of appointment are routinely included in trusts both for tax reasons and to add flexibility to the property arrangements. Only a few states have enacted powers of appointment legislation, but the Restatement (Third) of Property, approved by the American Law Institute in 2006, contains extensive provisions on powers of appointment. The Joint Editorial Board for Uniform Trust and Estate Acts recommended that this drafting committee be formed. The purpose of the new drafting committee is to prepare a uniform act that will clarify and modernize the law governing powers of appointment. Kentucky Commissioner Turney P. Berry is the Chair of the Drafting Committee on a Powers of Appointment Act.

The new study committees are:

Study Committee on an Eyewitness Identification Procedures Act
This committee will consider and make recommendations concerning the need for and feasibility of drafting and enacting an act concerning procedures to be used when police and prosecutors conduct eyewitness identifications. Mistaken eyewitness identifications are the single most frequent cause of wrongful convictions. An act on this topic might include, for example, provisions concerning the conduct of lineups (usually conducted at a police station) or “showups” at the scene of a crime, instructions that should be given to eyewitnesses prior to a lineup or showup, jury instructions and expert testimony concerning eyewitness identifications, and other matters. Connecticut Commissioner David D. Biklen is the Chair of the Study Committee on an Eyewitness Identification Procedures Act.

Study Committee on a Relocation of Easements Act
This committee will consider and make recommendations concerning the need for and feasibility of drafting and enacting an act that permits the owner of land subject to an easement (the “servient landowner”) to relocate the easement despite the objections of the easement holder when that relocation would be beneficial to the servient estate and would have little or no negative effect on the easement holder. Under the common law, the servient landowner cannot relocate an easement without the approval of the easement holder, but the Restatement (Third) of Property – Servitudes (2000) provides the landowner some ability to relocate an easement over the easement owner’s objection. The Joint Editorial Board for Uniform Real Property Acts recommended that this study committee be established. Texas Commissioner Rodney W. Satterwhite is the Chair of the Study Committee on a Relocation of Easements Act.

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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