MIDYEAR MEETING OF THE COMMITTEE ON SCOPE AND PROGRAM UNIFORM LAW COMMISSION. January 7, 2011 Naples, Florida

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1 MIDYEAR MEETING OF THE COMMITTEE ON SCOPE AND PROGRAM UNIFORM LAW COMMISSION January 7, 2011 Naples, Florida The meeting of the Committee on Scope and Program was convened at 8:00 am on Friday, January 7, 2011, at the LaPlaya Beach and Golf Resort in Naples, Florida, by Chair Harriet Lansing. Committee members James C. McKay, Jr., Anita Ramasastry, Larry L. Ruth, Harry Tindall, and Robert Tennessen were present. Also present were Robert A. Stein, President, Michael Houghton, Chair of the Executive Committee, and Martha Lee Walters, Immediate Past President. Staff members present included: John A. Sebert, Executive Director; Katie Robinson, Communications Officer/Scope and Program Liaison; Michael R. Kerr, Legislative Director/Legal Counsel; and Elizabeth Cotton-Murphy, Chief Administrative Officer. Michelle Groman was present for a portion of the meeting. Commissioners Fred Miller, Carlyle C. Ring, Jr., and David English, and Kathryn Tucker, Andrew Taslitz, and Tom Sullivan participated via conference call for a portion of the meeting. Chair Lansing welcomed the committee and discussed the agenda for the meeting. Upon a motion duly made, the minutes from the July 2010 meeting were unanimously approved. Study Committee Reports Study Committee on Model Tribal Legislation on Probate Transfers of Interests in Real Property (Dale Higer, Chair) Scope Liaison Jim McKay Commissioner McKay reported that the study committee has submitted funding requests to the Special Trustee for American Indians within the U.S. Department of the Interior, and the Bureau of Indian Affairs. No funding has been confirmed yet, and the study committee is exploring other funding options. The study committee requests that it continue its work to find funding sources and seek more support from Tribal interests. committee. Study Committee on Model Tribal Legislation on Child Custody and Domestic Issues (Candace Zierdt, Chair) Scope Liaison Larry Ruth Communications Officer Robinson reported briefly on the work of the study committee. The study committee chair requests that the study committee be continued, and that it continue its outreach to interested groups and its research of relevant tribal statutes in the area. The study committee hopes to determine by July 2011 whether there is enough support and need to 1

2 recommend moving forward with drafting in this area. committee. Study Committee on Payment Issues (Fred Miller, Chair) Scope Liaison Anita Ramasastry Commissioners Fred Miller and Connie Ring participated via conference call in this discussion. The charge of the Study Committee was recently expanded to address note and mortgage foreclosure issues. The Study Committee requests the appointment of a drafting committee to address the issues of promissory notes and the foreclosure of mortgages securing those notes. The Study Committee also requests authorization to hold a stakeholders meeting in the spring with interested entities. After discussion, the Committee on Scope and Program recommended that a drafting committee be appointed. The Committee on Scope and Program approved the following resolution: RESOLVED, that a Drafting Committee on Promissory Notes, Mortgages and Related UCC Article 3 Issues be formed to undertake the following projects: Continue to study what issues are involved with promissory notes, the mortgages securing them, and their enforcement and foreclosure, and to what extent these issues can feasibly be dealt with under the Uniform Commercial Code and related state law; Identify interested constituencies to assist the Committee in developing and resolving such issues; Meet with such constituencies to discuss issue development and resolution, how best to implement the decisions made, and to develop for subsequent discussions drafts of possible resolutions of issues at the most appropriate governmental level; and Report to Scope and Program and the Executive Committee for their approval and suggestions on the progress made in identifying the issues and nature of revisions or legislation that is appropriate and feasible for state enactment. During the first half of 2011 the Drafting Committee should undertake at least the following tasks and report back to the Scope and Program Committee with its recommendations concerning the scope of this project for consideration in July 2011: 2

3 The Committee should review the charge with Thomas Baxter, General Counsel of the Federal Reserve Bank of New York, and his colleagues to ascertain the extent of support for the proposed project by General Counsel Baxter and the Federal Reserve Banks of New York and Atlanta. If Mr. Baxter is supportive, he should be asked to accompany the leadership of the Committee, the ULC Executive Director, and representatives of the American Law Institute, to meetings with interested organizations, to seek to obtain those organizations support for and willingness to participate in the proposed drafting project. The Committee is authorized to sponsor a one-day stakeholders meeting that will be attended by the leadership of the Committee, the ULC Executive Director, leaders of banking and other potentially interested entities, and representatives of the American Law Institute, in order to obtain further information concerning the need for and likely success of the proposed project, and to identify specifically the issues that should be considered in the drafting project. Take all appropriate steps to obtain the funding required for this project to proceed from sources that include the Federal Reserve Board and the Treasury Department. The Committee should present a report to the Scope and Program and Executive Committees in July 2011, or as soon thereafter as possible. The Scope and Program and Executive Committees will review the report and determine whether to proceed to Phase 2 of the project, with the following charge: On an expedited basis finalize drafts of legislation for enactment at the appropriate governmental level of appropriate rules for the transfer of obligations secured by mortgages that are consistent with modern practice and proper public policy; Within the above note/mortgage work, and to the extent efficient, deal with similar or related issues with respect to other types of instruments or methods of payment; and Develop and address by prospective legislation or regulation for enactment at the appropriate governmental level appropriate rules for payment methods within the original charge of the Committee. At its meeting on January 8, 2011, the ULC Executive Committee approved this resolution. Study Committee on Mortgage Subrogation 3

4 (Carl Lisman, Chair) Scope Liaison Jim McKay Commissioner McKay reported on the work of the study committee, which recommended in July 2010 that a drafting committee on mortgage subrogation be appointed. The Joint Editorial Board for Uniform Real Property Acts (JEB/URPA), which had originally submitted the proposal, no longer supports the appointment of a drafting committee on this subject. Following its November 2011 meeting, JEB/URPA researched similar law in Virginia, to try and determine whether it has actually resulted in a meaningful simplification in refinancing transactions in Virginia, and whether it has produced a reduction in refinancing costs. The JEB concluded there was no evidence that Virginia statute has reduced the cost of title insurance premiums. Based on that information, JEB/URPA affirmed its recommendation that Scope and Program not recommend appointment of a drafting committee. The Scope and Program committee also considered a memorandum from Commissioners David Clark and Thomas Edmonds, members of the Study Committee, recommending that the Scope and Program and Executive Committees approve the Study Committee s original recommendation that a drafting committee on mortgage subrogation be appointed. After discussion, the Committee on Scope and Program recommended that the study committee be discharged. The Committee on Scope and Program approved the following resolution: RESOLVED, that the Committee on Scope and Program recommends to the Executive Committee that the Study Committee on Mortgage Subrogation be discharged with a letter of thanks to the committee. At its meeting on January 8, 2011, the ULC Executive Committee approved this resolution. Study Committee on Recovery of Stolen Cultural and Artistic Property (Nat Sterling, Chair) Scope Liaison Anita Ramasastry Commissioner Ramasastry reported that the study committee has submitted a preliminary report stating its conclusion that a uniform act on determination of title to cultural and artistic property and recovery of stolen cultural and artistic property is advisable. The committee s preliminary findings will be circulated to stakeholders for review and comment. The committee requests that it continue its work and consultation with interested groups, and that it hold a stakeholders meeting in the spring The study committee expects to submit a report to Scope and Program with final recommendations for consideration at the July 2011 Annual Meeting. committee. Study Committee on Consular Notification Requirements of Article 36 of Vienna Convention (Grant Callow, Chair) Scope Liaison Anne McGihon 4

5 Executive Director Sebert reported that the study committee has reviewed relevant federal instructions to state and local law enforcement officials on the subject of consular notification requirements, has reviewed the California statute on the subject, has identified the topics that it believes should be included in a act on this topic, and has worked to identify relevant stakeholders. The committee requests that it continue its work and, after consultation with interested groups, expects to submit a report to Scope and Program with final recommendations for consideration at the July 2011 Annual Meeting. committee. Study Committee on Revision of Uniform Residential Landlord and Tenant Act (Shelly Kurtz, Chair) Scope Liaison Larry Ruth Commissioner Ruth reported that the study committee has prepared a preliminary report which has identified issues that might be included in a revision of the act. The committee requests that it continue its work, and that it hold a stakeholder meeting in the spring. The committee expects to submit a report to Scope and Program with final recommendations for consideration at the July 2011 Annual Meeting. committee. Study Committee on Prevention of and Remedies for Human Trafficking (Michael Wilkins, Chair) Scope Liaison Bob Tennessen Commissioner Tennessen reported that the study committee has prepared a preliminary report with topics that a uniform act might address, including criminal penalties, remedies for victims, and assistance to victims. The committee requests that it continue its work, and will have a conference call in January to discuss scope of a potential drafting project. committee, and requests that the study committee report back to the Scope and Program Committee as soon as possible with final and specific recommendations to what the scope of the project would be and whether a drafting committee should be appointed. At request of study committee, Scope and Program is prepared to consider request for appointment of a drafting committee as soon as it receives the study committee s recommendations, and before the July 2011 annual meeting. The Scope and Program Committee also indicated that it did not think it necessary to vet this project with stakeholders before the study committee makes its recommendation concerning the creation of a drafting committee. Study Committee on Protection of Genetic Information in Insurance (Joe Willis, Chair) Scope Liaison Harry Tindall 5

6 Executive Director Sebert reported on the work of the study committee, which has reached out to some insurance commissioners and staff of the National Association of Insurance Commissioners. The committee requests that it continue its work and consultation with interested groups. committee, but indicated that, unless positive development as to the feasibility of this project is reported by July 2011, the Committee on Scope and Program will at that time recommend that the study committee be discharged. Joint Editorial Board Written Reports and Recommendations JEB/Uniform Family Law (Harry Tindall, Chair) Scope Liaison Harry Tindall There were no proposals from the JEB/UFL. JEB/Uniform Trust and Estate Acts (David English, Executive Director) Scope Liaison Jim McKay Proposal: Powers of Appointment Drafting Committee Commissioner McKay reported that the JEB/UTEA has submitted a proposal recommending the creation of a drafting committee on powers of appointment, a power that enables the donee of the power, acting in a nonfiduciary capacity, to designate recipients of beneficial ownership interests in the appointive property. The JEB recommends that a drafting committee be appointed to draft an act patterned closely after the power of appointment provisions of the Restatement (3 rd ) of Property, Because the Restatement provides detailed information, the JEB concluded that there is no need to appoint a study committee. The JEB Report included a comprehensive memorandum from Thomas Gallanis, the JEB s assistant executive director, outlining the specific issues that might be included in a powers of appointment act. After discussion, the Committee on Scope and Program recommended that a drafting committee be appointed. The Committee on Scope and Program approved the following resolution: RESOLVED, that the Committee on Scope and Program recommends to the Executive Committee that a drafting committee be formed to draft an act on powers of appointment. At its meeting on January 8, 2011, the ULC Executive Committee approved this resolution. 6

7 Proposal: Palliative Care/Physician s Orders for Life-Sustaining Treatment This proposal was discussed in conjunction with agenda item #23, end of life counseling. See below for discussion and the decision of the Scope and Program Committee. Discussion: Future Interests and the Rule Against Perpetuities Commissioner McKay reported that the JEB/UTEA has studied the issue of future interests and the rule against perpetuities, and that currently the JEB does not recommend drafting an act on these issues. After discussion, the Committee on Scope and Program accepted the report of the JEB regarding future interests and the rule against perpetuities. The Committee on Scope and Program will await a further report from the JEB for Uniform Real Property Acts as to feasibility of drafting legislation that would address future interests and the rule against perpetuities. JEB/Uniform Real Property Acts (Wilson Freyermuth, Executive Director) Scope Liaison Larry Ruth Proposal: Relocation of Easements Commissioner Ruth reported that the JEB/URPA has studied the issue of relocation of easements, and recommends the appointment of a study committee. Relocation of easements concerns the right of an owner whose land is subject to an easement (the servient landowner ) to relocate the easement over the objection 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. After discussion, the Committee on Scope and Program recommended that a study committee be appointed. The Committee on Scope and Program approved the following resolution: RESOLVED, that the Committee on Scope and Program recommends to the Executive Committee that a study committee on relocation of easements be formed. At its meeting on January 8, 2011, the ULC Executive Committee approved this resolution. JEB/International Law (Michael Sullivan, Chair) Scope Liaison Anne McGihon There were no proposals from the JEB/IL 7

8 JEB/Unincorporated Organization Acts. (Bob Keatinge, Chair) Scope Liaison Bob Tennessen There were no proposals from the JEB/UUOA. PEB/Uniform Commercial Code (John Sebert, Chair) Scope Liaison Anita Ramasastry There were no proposals from the PEB. Executive Director Sebert reported that the PEB unanimously recommended that the ULC re-designate the pre-2003 version of UCC Articles 2 and 2A, together with various amendments made after 2003, the official uniform text. The PEB recommends that the 2003 revisions be preserved in some fashion and not be withdrawn, and that the leadership of the ULC and the ALI determine how to categorize the 2003 revisions. This recommendation will be considered by the ULC Executive Committee on January 8 and by the ALI Council later in January. On January 8, 2011, the ULC Executive Committee approved this recommendation. New Business Proposal: Amend the Uniform Conflict of Laws Limitations Act (Joel Boon, Esq.) Scope Liaison Larry Ruth Communications Officer Robinson addressed this proposal to amend the 1982 Uniform Conflict of Laws Limitations Act. The UCLLA was enacted in five states, and was declared obsolete in Proposal: Tribal Transfer of Litigation Act (Commissioner Mark Ramsey) Scope Liaison Harry Tindall Commissioner Tindall addressed this proposal to draft an act that would allow the transfer of litigation between state and tribal court systems with an appropriate balancing of the rights of state and tribal governments and private litigants. After discussion, the Committee on Scope and Program requested that this proposal be forwarded to the Committee on Liaison with American Indian Tribes and Nations for further study, with request that the Liaison Committee report back to Scope at the 2011 Annual Meeting. Proposal: Choice of Law for Non-Contractual Claims Act (Prof. Symeon Symeonides) Scope Liaison Larry Ruth 8

9 Commissioner Walters addressed this proposal to draft a state choice of law statute that is limited to non-contractual claims. She noted that the Oregon Uniform Law Commission has endorsed this proposal and that legislation consistent with the proposal has been adopted in Louisiana and Oregon. Executive Director Sebert reported on what he learned from ALI Director Liebman concerning the reasons that the ALI has not undertaken a revision of the 1971 Restatement of the Law (Second) of Conflicts. Report: Choice of Law Issues in Uniform Acts (Prof. Ken Kettering) Scope Liaison Larry Ruth Executive Director Sebert addressed this report which discusses choice of law issues in uniform acts. This is not a proposal, but Professor Kettering has submitted this report to highlight issues with choice of law provisions in uniform acts. After discussion, the Committee on Scope and Program requested that Prof. Kettering be thanked for his report. Proposal: Eyewitness Identification Statute (Prof. Andrew Taslitz; Thomas Sullivan) Scope Liaison Anita Ramasastry Professor Taslitz and Mr. Sullivan participated via conference call, and reported on their proposal to draft a statute that would provide clear guidelines for law enforcement contacts with eyewitnesses, specifying the manner in which pretrial eyewitness identification processes are to be conducted and how eyewitness trial testimony is to be treated. After discussion, the Committee on Scope and Program recommended that a study committee be appointed. The Committee on Scope and Program approved the following resolution: RESOLVED, that the Committee on Scope and Program recommends to the Executive Committee that a study committee on eyewitness identification procedures be formed. At its meeting on January 8, 2011, the ULC Executive Committee approved this resolution. Proposal: End of Life Counseling (Kathryn Tucker, Esq., Compassion and Choices, Michelle Groman, Esq., Jenner & Block) Scope Liaison Jim McKay 9

10 This proposal was discussed in conjunction with JEB/UTEA proposal on palliative care (agenda item #12). Michelle Groman appeared before Scope in person, and Kathryn Tucker and Commissioner David English participated in the discussion via conference call. The proposal is to draft a uniform state law mandating that health-care providers offer terminally ill patients counseling concerning all end-of-life care options legally available in the forum state. The JEB/UTEA, in addition to proposing a project on end-of-life counseling, also proposes that a study committee consider the need for and feasibility of including provisions on Physician s Orders for Life-Sustaining Treatment (POLST) in an act. Proposal: Tenants in Common Act (Commissioner Harry Tindall) Scope Liaison Bob Tennessen Commissioner Tindall reported on his proposal to study the issue of ownership of property by tenants in common. After discussion, the Committee on Scope and Program requested that this proposal be forwarded to the JEB/URPA for further study, with request that JEB report back to the Scope and Program Committee for consideration at the 2011 Annual Meeting. Proposal: Debtor-Creditor Statute (Commissioner Jack Davies) Scope Liaison Harry Tindall Commissioner Tindall addressed this proposal to study the law governing creditor and debtor relations. Other Business Proposal Revise Uniform Unclaimed Property Act (Commissioner Bob Tennessen) Scope Liaison Bob Tennessen This proposal to revise the UUPA first came before Scope at 2009 midyear meeting; it was subsequently taken up at 2009 annual meeting, and again at 2010 midyear and annual meetings. During that time, Commissioners Michael Houghton and Bob Tennessen, with ULC Legislative Counsel Nicole Julal, solicited input on the subject of revising UUPA from interested parties. NAUPA (National Association of Unclaimed Property Administrators) was asked to submit a formal position on the question of revising UUPA. A resolution was passed by NAUPA in July 2010 which indicates that NAUPA does not support any recommendation to revise UUPA. 10

11 Proposal: State Law to Assist Minority Voters (Commissioner Fred Miller) Scope Liaison Anne McGihon Commissioner Miller submitted proposal to Scope in July 2010 to study the feasibility of drafting a state law on the subject of voting assistance for language minorities. At that time, the Committee on Scope and Program requested that Commissioner McGihon, with the assistance of ULC staff, do more research into the viability of such a project and report back to Scope. To date, no organizations have been found that would be supportive of the proposal, and Executive Director Sebert reported that the Federal Voting Assistance Project is considering regulations on this topic. Proposal: Regulation of Energy Transmission Lines (Commissioner Brandon Shaffer) Scope Liaison Anne McGihon Commissioner Shaffer submitted proposal to Scope in July 2010 to draft an act that would regulate energy transmission lines in and across the states. At that time, the Committee on Scope and Program requested that Commissioner Shaffer, with the assistance of ULC staff and Commissioner McGihon, do more research into the viability of the project and to provide specific information on what would be included in any such uniform state law. An updated proposal was submitted, which includes an examination of current state law as well as applicable federal law. Proposal: Sex Offender Registration and Notification Act (Commissioner Daniel Ivey-Soto) Scope Liaison Harry Tindall Commissioner Ivey-Soto submitted proposal to Scope in July 2010 to draft an act that would establish consistent rules under which sex offenders would live in all states adopting the act, and to be compliant with the federal Adam Walsh Act (AWA). At that time, the Committee on Scope and Program requested that Commissioner Ivey-Soto, with the assistance of ULC staff and Commissioner McGihon, do more research into the current status of state law and how any uniform act would work with the federal AWA. An updated proposal was submitted, which recommends the establishment of a study committee to work with the U.S. Department of Justice (which oversees AWA-compliance). 11

12 Proposal: Revise the Uniform Trade Secrets Act (Commissioner Bob Cornell) Scope Liaison Jim McKay Commissioner Cornell submitted a proposal to Scope in July 2010 to consider appointing a study committee to determine the necessity of amending or revising the Uniform Trade Secrets Act, which was originally promulgated in 1979 and which has been enacted in 47 states. At that time, Commissioner Cornell was asked to develop the proposal further, with help from ULC staff. Communications Officer Robinson reported that Commissioner Cornell and the Enactment Committee for UTSA have requested that Scope defer discussion of this proposal until completion of 2011 legislative year, since the Enactment Committee is attempting to secure adoption of UTSA in the remaining states (NY, NJ, MA, NC). A further report is expected at 2011 Annual Meeting. Proposal: Revise the Uniform Motor Vehicle Accident Reparations Act (Commissioners Jack Davies, Jim Bush, and Roger Henderson) Scope Liaison Anita Ramasastry Commissioners Davies, Bush and Henderson submitted a proposal to Scope in July 2006, and again in January 2009, to appoint a study committee to investigate the feasibility of updating UMVARA in order to draft new legislation dealing with an auto accident reparations system that would include no-fault auto insurance. This current proposal renews past proposals. Report: Uniform Law Conference of Canada Commissioner Stein reviewed for the committee the current projects of the Uniform Law Conference of Canada. The Committee on Scope and Program was then adjourned. 12