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Uniform Law Commission:An Update For Legislative L

Uniform Law Commission:An Update For Legislative Lawyers

by Michael Kerr, Legislative Director and Legal Counsel, Uniform Law Commission

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INTRODUCTION

The Uniform Law Commission (ULC, also known as the National Conference of Commissioners on Uniform State Laws) has worked for the uniformity of state laws since 1892. It was originally created by state governments to consider state law, determine in which areas of the law uniformity is important, and then draft uniform and model acts for consideration by the states. For well over a century, the ULC’s work has brought consistency, clarity and stability to state statutory law. Included in this important work have been such pivotal contributions to state law as the Uniform Commercial Code, the Uniform Anatomical Gift Act, the Uniform Partnership Act, the Uniform Probate Code, the Uniform Interstate Family Support Act, the Uniform Electronic Transactions Act, and the Uniform Prudent Management of Institutional Funds Act.

The ULC’s major asset is its commissioners – more than 300 of the best legal minds in the country. Commissioners are appointed by every state, the District of Columbia, Puerto Rico and the U.S. Virgin Islands, and must be lawyers qualified to practice law. Each jurisdiction determines the method of appointment and the number of commissioners appointed; most jurisdictions provide for the commission in statute. While some serve as state legislators or employees of state government, many are private practitioners, judges or law professors. Commissioners donate their time and expertise as a pro bono service and receive no salary or fee for their work with the ULC. In addition to the appointed commissioners, the principal legal officer of the bill-drafting agency for each jurisdiction is an associate member of the ULC (see box).

The procedures of the ULC ensure meticulous consideration of each uniform and model act. The ULC generally spends a minimum of two years on each draft, although the drafting work sometimes extends much longer. No single state has the resources necessary to duplicate this meticulous, careful, nonpartisan effort.

The ULC seemed like a very good idea to its founders in 1892. Today, the ULC continues to be a very good idea. The states have chosen to maintain the ULC because it has been useful to their citizens. Every day, when a person conducts business, enters a contract, makes a purchase or sale, or takes care of a family matter, rules of law originated by the ULC probably apply.

Equally important, the ULC continues to strengthen the role of state law in the federal system. As new technology wears away geographical borders and matters of law implicate more than one state, consistency in rules and procedures becomes ever more critical. The Uniform Law Commission continues its commitment to help sustain the independence of the states while achieving a uniform legal system for the nation.

Information about existing uniform acts, current drafting projects, up-to-date legislative information and other information about the ULC is available at www.uniformlaws.org.

WHAT’S NEW

In 2010, the ULC approved 10 new acts and amendments to existing acts. A number of these acts may be of interest to legislative lawyers.

2010 Update to Model State Administrative Procedures Act

State agencies, much like their federal counterparts, are capable of exercising powers characteristic of all three branches of government.  An individual agency generally possesses only powers of the branch that set it up and typically exercises its powers through rulemaking.  The Model State Administrative Procedure Act (MSAPA) creates a framework for state administrative agencies.

Unlike a uniform act, the MSAPA is a model intended to serve as resource for states to draw upon as particular issues and needs arise. The ULC recognizes that, particularly in the area of internal agency procedures, one solution is not necessarily appropriate for all. From time to time, as a service to our member states and as developments warrant, the ULC convenes experts and advisors to update t MSAPA provisions in light of emerging best practices. The first version of the MSAPA was published in 1946, about the same time the Federal Administrative Act was drafted.  The MSAPA has since been revised three times: in 1961, 1981 and most recently in 2010.

The MSAPA 2010 revision project was intended to address several developments. For example, there now exists a substantial body of legislative action, judicial opinion and academic commentary that explains, interprets and critiques the substantive provisions of both the 1961 and 1981 MSAPA revisions as well as the Federal Administrative Procedure Act. During the past two decades, state legislatures have enacted statutes that modify administrative adjudication and rulemaking procedure. It’s important to note that the emergence of the Internet as a medium for notice, comment, publication and hearing was not anticipated in the 1981 MSAPA. All these factors make the MSAPA 2010 revisions timely.

Consistent with both the 1961 and the 1981 MSAPAs, the 2010 revision provides for a uniform minimum set of procedures to be followed by agencies subject to the act.  The 2010 act creates only procedural rights and imposes only procedural duties.  Throughout the 2010 act, provisions refer generally to other state laws governing related topics.  When specific state laws are inconsistent with the provisions of the 2010 act, those specific laws will be controlling.

The 2010 version of the MSAPA is divided into eight articles.  Article One contains extensive definitions of key terms used in the act. Article Two contains provisions to ensure public access to agency law and policy.  Article Three contains provisions governing rulemaking by agencies. Important new provisions regarding rulemaking are include

  • agency record in rulemaking, which provides for the rulemaking documents to be maintained by the agency and facilitates judicial review based on an agency rulemaking record;
  • negotiated rulemaking, which provides for a process by which an agency can obtain feedback from various stakeholder groups appointed to a committee and can attempt to obtain advisory information concerning consensus on the terms or substance of a proposed rule through committee process; 
  • direct final rulemaking, which provides for a streamlined process for adoption of rules that are expected to be noncontroversial;
  • and guidance documents, which include an agency interpretive statement and other statements that are issue by an agency but are not supported by the force of law. 

Article Four contains provisions for adjudication in contested cases.  Article Five contains provisions governing judicial review of final agency action.  Article Six contains provisions governing central hearing agencies, typically named the office of administrative hearings.  Article Seven contains provisions related to legislative review of agency rules.  Finally, Article Eight recognizes electronic communications.

The MSAPA 2010 updates the 1981 version to recognize recent state procedural innovations.  The ULC invites state agencies to review the updated provisions of the MSAPA, and stands ready to help states that are interested in adopting any of the recommendations.

Facilitating state and local voting for deployed military and overseas civilians: The Uniform Military and Overseas Voters Act (UMOVA) (2010)

U.S. military personnel and overseas civilians encounter many challenges to their participation as voters in U.S. elections, despite repeated congressional and state legislative efforts to facilitate their ability to vote. These obstacles, identified by independent studies and government analysis, a include difficulty in registering abroad; frequent address changes; slow mail delivery and insufficient turnaround time for paperwork, ballots and ballot applications that never arrive; difficulty in obtaining information about candidates or issues; and the inability to comply with notarization or verification procedures, or the voter’s failure to properly comply with nonessential requirements for absentee materials. Military personnel encounter these difficulties both while serving abroad and here at home, as they train and remain ready to serve our country. 

The federal Uniformed and Overseas Citizens Absentee Voting Act of 1986 (UOCAVA) and Military and Overseas Voter Empowerment Act of 2009 (MOVE) have not been wholly effective in overcoming issues faced by these voters. American elections are conducted at the state and local levels under procedures that vary dramatically by jurisdiction, and many are conducted independent of federal elections, which are not covered by UOCAVA and MOVE. Following passage of the MOVE act, many states took legislative steps to better assist military and overseas voters, and many of these effected positive change. A great deal of work, however, needs to be done. In particular, inconsistencies in election law between jurisdictions will continue to complicate efforts to fully enfranchise these voters, and represent a major impediment to their ability to vote. 

At its 2010 annual meeting, the national Uniform Law Commission promulgated the Uniform Military and Overseas Voters Act (UMOVA) to address these issues, with the benefit of expertise and input from a wide array of interested parties and observers. UMOVA extends to state and local elections the assistance and protection for military and overseas voters currently found in federal law, and seeks greater harmony for the military and overseas voting process for all covered elections. Specifically, UMOVA implements the core federal law requirement that ballots and materials be sent to military and overseas voters at least 45 days prior to an election, ensuring enough time for these citizens to receive and return their ballots. UMOVA codifies enhanced electronic transmission and tracking systems for registration, ballot requests and materials; enhanced, comprehensive use of theFederal Write-In Absentee Ballot (FWAB) and the Federal Post Card Application (FPCA) for registration and ballot requests; asand voting in state and local elections. For covered voters, UMOVA eliminates non-substantive procedural impediments that might prevent military and overseas citizens’ votes from being counted. The act provides reasonable statutory time frames for timely submission and receipt of ballots of covered voters, and a safe harbor mechanism for destroyed or illegible postmarks. UMOVA requires election notices well in advance of Election Day, providing military and overseas citizens with critical information about candidates and other ballot issues to better inform their vote. It also provides an avenue for equitable relief so that covered voters can ensure that the law is observed.

UMOVA has been introduced for consideration in 12 states in 2011, and has been recommended for enactment by the Council of State Governments and included as “suggested state legislation.”   The act, approved by the American Bar Association’s House of Delegates, also is supported by numerous military interest associations.

Other acts approved by the ULC in 2010 included: 2010 Amendments to UCC Article 9; Uniform Electronic Recordation of Custodial Interrogations Act; Uniform Faithful Presidential Electors Act; Revised Uniform Law on Notarial Acts; Uniform Partition of Heirs Property Act; Uniform Protection of Genetic Information in Employment Act; and the Insurable Interest Amendment to the Uniform Trust Code. Information about all the 2010 acts, as well as all current Uniform Acts, can be found at www.uniformlaws.org.

 

ACTS TO BE COMPLETED IN 2011

 In 2011, the ULC is expected to approve five new uniform acts. One— the Uniform Electronic Legal Material Act— should be of particular interest to all legislative attorneys.

 Uniform Electronic Legal Material Act (2011)

State governments increasingly are publishing laws, statutes, agency rules, and court rules and decisions online. In some states, important state-level legal material no longer is published in books, but is available only online. Although electronic publication of legal material has facilitated public access to it, this practice also has raised concerns. Is the legal material official, authentic government data that has not been altered? For the long term, how will this electronic legal material be preserved? How will the public access the material 10, 50 or 100 years from now? The Uniform Electronic Legal Material Act, which is ready for final approval by the ULC in 2011, is intended to provide a consistent, outcomes-based approach to solving these problems that can be adopted in every state and territory.

The Uniform Electronic Legal Material Act (UELMA) is designed to provide 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. At a minimum, the state constitution, session laws, codified laws or statutes, and state agency rules with the effect of law are covered. In addition, states may choose to include court rules and decisions, state administrative agency decisions with precedential effect, or other state-level legal material.

For each type of legal material, the state must specifically name a state agency or official as the “official publisher.” For official electronic legal material of that type, the official publisher is responsible for authenticating, preserving and providing access.

If an electronic record is authenticated as the official record, a presumption is created that it is an accurate copy of the underlying legal material. If one state enacts UELMA, the presumption that its authenticated electronic legal material is accurate applies in every other state that has enacted UELMA. Adoption of UELMA thus will set standards for acceptance of electronic legal material across jurisdictional boundaries.

The UELMA also requires the publisher of an official record to preserve it for future reference by ensuring the integrity of the record, providing for its back-up and recovery, and ensuring its continued usability. Official publishers also must ensure that official records are reasonably accessible by the public. The act does not affect any relationships between an official state publisher and a commercial publisher; it leaves those relationships to contract law. Copyright laws also are not affected by the act, nor are the rules of evidence under which judges make decisions about the admissibility of electronic evidence in their courtrooms.

By providing clear and consistent standards and a balanced process for implementing decisions about those standards, the UELMA will provide greater certainty and clarity for those who use electronic governmental records. The act provides a mechanism for official publishers to set standards across jurisdictional boundaries and to create and develop best practices with regard to their responsibilities of preservation and access. The act requires official publishers to consider the most recent standards for preservation of, authentication of and access to electronic legal material.  By using an outcomes-based, technology-neutral approach, UELMA recognizes that technology will continue to grow and evolve. It should be adopted in every state and territory.

ALSO OF INTEREST

Child Support Enforcement and Recognition in a Global Society – 2008 updates to the Uniform Interstate Family Support Act.

In approximately 150,000 of the child support cases currently pending in state courts and child support enforcement agencies, one of the parties is not located in the United States.  While the United States routinely recognizes and enforces orders from other countries, the same reciprocity is not always enjoyed when parties from the United States seek enforcement in foreign countries.  Although the international framework for family support enforcement has been fragmented in application, recent changes to international and domestic law are designed to increase reciprocity between countries.  The 2008 amendments to the Uniform Interstate Family Support Act (UIFSA) are designed to implement these improvements and help ensure that more family support orders issued in the United States are recognized and enforced abroad.

UIFSA provides universal and uniform rules for enforcement of family support orders by setting basic jurisdictional standards for state courts, determining the basis for a state to exercise continuing jurisdiction over a child support proceeding, and providing rules for modifying or refusing to modify another state’s child support order.  The Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance extends similar jurisdiction and enforcement rules in the international context; U.S. accession to this international mechanism necessitates amending UIFSA. The U.S. Senate consented to the Hague Convention in 2009.  However, the United States will not be in operative compliance with the Convention until underlying state laws (specifically, UIFSA) change in all 50 states.

To implement the terms of the Convention, the Uniform Law Commission amended UIFSA to add a new article governing cases involving countries that are signatories to the Hague Convention. Specifically, the new article provides that a support order from a country that has acceded to the Convention must be registered immediately unless a tribunal in the state where the registration is sought determines that the language of the order is prohibited under the fundamental public policy of the receiving state.  Once registered, the responding party receives notice and is allowed an opportunity to challenge the order on certain grounds. Unless one of the grounds for denying recognition is established, the order will be enforced. Documents submitted under the Convention are required to be submitted in both the original language of the issuing court and in English. Orders from foreign countries that are not signatories to the Hague Convention also may be recognized by a state court on the basis of comity. Other than minor technical improvements, the rules for interstate cases remain in place.

Universal passage of UIFSA will be realized through a cooperative approach between federal and state governments.  This approach is not unfamiliar to state child support agencies.  A requirement in President Clinton’s 1996 welfare reform package encouraged states to pass UIFSA to in order maintain eligibility for federal funding of child support programs. Just as in 1996, the U.S. Department of Health and Human Services intends to condition continued eligibility for federal funding of child support under Title IV-D on state passage of the updated version of UIFSA. Congress has yet to act on the federal implementing legislation, but such action is anticipated in 2011.

Even though the conditional funding requirement is not yet in place, several states are moving to enact the 2008 UIFSA amendments. Maine, Nevada, New Mexico, North Dakota, Tennessee, Utah and Wisconsin have enacted the amendments.  Several of these states have added a conditional clause to ensure that UIFSA 2008 does not become effective until the instruments of ratification are deposited at the Hague.  The ULC stands ready to serve as a resource to states as they review and implement this important legislation.

CONCLUSION

The work of the Uniform Law Commission simplifies the legal life of businesses and citizens by providing rules and procedures that are consistent from state to state. The ULC works efficiently for all the states not only because individual lawyers are willing to donate time to the uniform law movement, but also because it is a genuine cooperative effort of all states.  Well over a century since its founding the ULC continues to be a good idea,. The states have chosen to maintain the ULC because it has been useful to their citizens and because it strengthens the states in the federal system of government. Differing laws in the various states continues to be a problem. Either the states solve the problem, or the issues are removed to Congress. The Uniform Law Commission continues its commitment to help sustain states’ independence, while working to achieve a uniform legal system for the nation.

WHO ARE ASSOCIATE MEMBERS OF NCCUSL?

According to the ULC Constitution, in addition to the Uniform Law commissioners appointed by every state, the District of Columbia, Puerto Rico and the U.S. Virgin Islands:

a)   The principal administrative officer of each state legislative reference bureau or other agency charged by law with the duty of drafting legislation at the request of the legislative or executive officers of the State, or an alternate named from within the bureau or agency by its principal administrative officer, is an Associate Member of the Conference.

b)   An Associate Member has the privilege of the floor and is eligible to serve on and to chair any committee, including the Committee of the Whole, with right to vote in committee, but an Associate Member is not eligible to be an Officer or to participate in a vote by States or in other votes of the Conference.

All states are entitled to have an associate member. Over the history of the ULC, however, not every state has identified the appropriate associate member. The ULC encourages each state to identify its associate member and urges all associate members to participate in ULC proceedings. For additional information, call the ULC National Office at (312) 450-6600.

 

 

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