National Legislation, One State at a Time

Now 118 years old, the Uniform Law Commission has over the years quietly developed and shepherded through the state legislatures an array of legislation that serves and simplifies the practice of most lawyers. Minnesotans are among its leaders and a number of Uniform acts will be before the Minnesota legislature when it convenes in 2010.

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.  They are the Uniform Law Commission.

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 into the state legislatures.

The legal system has been profoundly shaped by the ULC.  Uniform and Model acts like the Uniform Commercial Code already govern trillions of dollars of interstate transactions and the Uniform Electronic Transactions Act is used daily by most lawyers.  Many other Uniform and Model acts form the backbone of regulations governing interstate commerce, family law, and consumer protection.

Robert (Bob) Stein, Minnesota commissioner and since July of 2009 president of the ULC Executive Committee, views the ULC as “Nothing less than an effort to guarantee federalism.”  Stein explains that the ULC plays a critical role in ensuring that state laws continue to have a proper role that is not overshadowed by federal legislation that usurps traditional state rights.  He points out this issue was at the core of the first meetings of the Continental Congress and, at the very first meeting of the American Bar Association, this was one of two central issues discussed.

Stein identified four benefits of Uniform acts at a recent CLE.  He noted that historically Uniform acts have facilitated the flow of commercial transactions across state lines, resolved conflict-of-law problems, provided reciprocity and remedy between states, and codified common-law concepts.  Stein added that this final role has become more important as more law has become statutory rather than common law.

Drafting Uniform Acts

The process begins with the ULC Committee on Scope and Program, which meets twice a year to discuss ideas that have been submitted by commissioners or other persons.  They judge if an idea meets the standard set forth by the ULC: “the subject … shall be such that uniformity of law among States will produce significant benefits to the public through improvements in the law … or will avoid significant disadvantages likely to arise from diversity of state law.”

The Committee on Scope and Program may hear more than 30 proposals in a meeting, of which they may recommend only a handful for consideration by the Executive Committee.  The Executive Committee then moves the idea to a study committee that looks further at issues of importance and feasibility.  These study committees often take testimony and invite participation from outside the commission.  Study committees can meet for up to two years before they recommend action back to the Executive Committee.

If the Executive Committee approves, the idea enters the drafting process.  The drafting process takes a minimum of two years as drafting committee members meet with as many constituents as they can get to participate, according to Minnesota Commissioner Robert Tennessen.  In recalling the work on Article 9 of the Uniform Commercial Code, he explained:

In [formulating] the securities act we would have 45 people at a meeting and only nine would be commissioners.  The Federal Reserve, SEC, the securities industry were all involved along with others.  Through that process, we had people who fundamentally disagreed to begin with and ultimately we were able to get an agreement.  That is pretty remarkable but that is how we do it.

This two-year drafting process takes a great deal of time and energy, involving drafting committee chairpersons and members.  The American Bar Association also appoints a representative to each committee—typically someone from the ABA section most affected by the proposed law—to keep the ABA informed and report concerns to the drafting committee.

After intense committee scrutiny, the act is moved to the agenda of the Committee of the Whole at an annual meeting where it gets a line-by-line reading in front of the 315 commissioners.  Commissioners analyze the bill for clarity and policy issues.  The bills also are posted on the internet where commissioners and anyone else can provide feedback.

Submission to States

After being approved by the Committee of the Whole, the acts are passed to the states, where the commissioners begin the second part of their task, getting the bills introduced into state government.  “You go through all that and you still don’t have anything until the state acts,” Bob Stein commented.  In Minnesota, the Minnesota State Bar Association reviews all Uniform and Model acts.

One of the most difficult parts of the process can be in finding legislators to carry the acts in the state House and Senate.  “There are no big kudos for carrying these acts,” said Tennessen.  “We are always appreciative of legislators who are willing to do this because I think they are doing it in their responsibility as a lawyer and a legislator.”
In addition to the challenges that face any piece of legislation, ULC legislation comes with unique problems.  One problem is convincing people that the Uniform act is needed in the state, particularly since many of these are acts focused on legal process.  Most of the time, the acts do not raise hot-button issues.

As former legislators, Minnesota Commissioners Jack Davies and Bob Tennessen do much of the work finding authors for the bills, although all commissioners are involved.  “I try to find people who are on the right committees and interested in the bills and ask them to do it,” Tennessen said.

Uniform Acts in 2010

Minnesota has been receptive to ULC initiatives over the years, and ranks fourth among states in the number of Uniform and Model acts it has enacted.  This year, there are ten Uniform acts in the Minnesota commissioners’ work plan.  This is typical, according to Commissioner Harry Haynsworth, who noted that of these ten usually three to four will see passage each year.

Tennessen predicts six acts are likely to gain focus and attention at the Minnesota legislature this year: the Uniform Arbitration Act, Uniform Child Abduction Prevention Act, Uniform Foreign Country Money Judgments Act, Uniform Collaborative Law Act, Uniform Interstate Depositions and Discovery Act, and Uniform Unsworn Foreign Declarations Act.

  • Uniform Arbitration Act. Of the Uniform acts set for consideration this year, the Uniform Arbitration Act has waited the longest for passage.  Assistant Majority Leader Terry Morrow (DFL—St. Paul) will carry the bill in the House and recently spoke at a continuing legal education seminar in support of the act and in support of the work of the ULC.  He noted that it took several meetings with different constituencies to work through initial resistance to the act, but this year a strong coalition is behind it.First passed out of the ULC in 2000, The Uniform Arbitration Act updates the 1956 Uniform Arbitration Act adopted by 49 states.  The update modernizes the act by providing protections for both the arbitrators and the participants.  Under the new act, arbitrators would have the same civil liability protections a judge has.  Participants would get additional protections through a new requirement that arbitrators, before they take a given case, disclose any personal or financial interests that may affect their impartiality in that matter.
  • Uniform Collaborative Law Act. Another pending act that speaks to the core of how the practice of law is changing is the Uniform Collaborative Law Act.  Widely used in family law cases, collaborative law is a growing technique of alternative dispute resolution.  In collaborative law, there is a greater sharing of information between parties in order to achieve win-win solutions.  Existing state statutes vary, and since collaborative law is used to address disputes that cross state boundaries, the commission saw a need to provide uniformity in this area.  The growth of collaborative law was seen as a primary reason to introduce uniform legislation.  “There will be a lot of interest and I’d like to see Minnesota be a leader,” Stein commented.
  • Uniform Child Abduction Prevention Act. The Uniform Child Abduction Prevention Act is the latest in a series of Uniform acts in the family law area which recognize the changing dynamics of family life.  This act builds on the foundation of the Uniform Child Custody Jurisdiction and Enforcement Act.  The ULC took on this area of law in response to a report from the Office of Juvenile Justice and Delinquency Prevention that an estimated 262,100 children were abducted in 1999 alone and 78 percent were abducted by a family member.  In the vast majority of cases, the resolution of custody raises cross-jurisdictional issues as parents or family members flee across state lines or even international borders.  One provision of the act would provide for temporary emergency injunctions and other tools to help prevent abductions.
  • Uniform Interstate Depositions and Discovery Act.  The Uniform Interstate Depositions and Discovery Act is designed to make the legal system function more efficiently.  The act provides a set of procedures to produce discoverable material when deposing out-of-state individuals.  In the act, the ULC set about to create efficient and inexpensive procedures in response to the increasing number of cases that cross state boundaries.
  • Uniform Foreign Country Money Judgments Act.  Commerce has been at the core of Uniform acts for decades.  The Uniform Foreign Country Money Judgments Act has already been adopted in 12 states, and revises the Uniform Foreign Money Judgments Recognition Act of 1962, which “simplified international business by recognizing money judgments obtained in other nations for the purpose of enforcement,” according to the legislative briefing of the ULC.
  • Uniform Unsworn Foreign Declarations Act. The Uniform Unsworn Foreign Declarations Act also deals with helping facilitate international business.  The act would affirm the validity of unsworn foreign declarations made by persons outside of the United States when they do not have access to a notary.  The proposed legislation lays out a number of instances where unsworn declarations would not be allowed and provides a model form for unsworn declarations.  If the Uniform act passes, use of an unsworn declaration, like a sworn declaration, would be subject to penalties for perjury.

Looking Ahead

There are many big issues in the pipeline for the ULC.  Stein described it as “a snake eating a watermelon,” noting that the amount of work at the annual meeting has grown each year.  Despite the length of the process of enacting Uniform acts, Stein’s goals for the ULC during his tenure as president reflect many contemporary legal and social problems.

His first priority is developing a better system for the implementation of international treaties in areas that fall traditionally within states’ rights. For example, the Vienna Convention on Consular Relations requires a country must notify a foreign citizen’s consulate if the citizen is charged with a capital crime.  Since capital charges may be brought in state court, where terms of this treaty may be little known, spotty adherence to the treaty can lead to strained foreign relations.  The issue came before the United State Supreme Court in Medellin v. Texas in 2008.  The state of Texas did not inform Medellin of his right to contact the Mexican consulate after he was charged in a gang-related rape and murder.  The case eventually ended up in the World Court as well, raising a number of diverse legal questions. According to Stein, this is one place where Uniform and Model acts could facilitate not only state laws, but international relations.

International relations is also the focus of Stein’s second priority, the harmonization of international laws, particularly in the area of commerce.  Stein describes the goal of these international efforts as harmonization rather than uniformity.  The ULC is already in talks with similar Canadian and Mexican organizations seeking to harmonize trade laws related to NAFTA, but Stein hopes to identify a common legal problem in Europe to apply harmonization concepts.

Among the other issues keeping drafting committees busy are: developing legislation which may standardize the process for Americans voting from overseas, providing a state statutory remedy if a presidential elector does not vote the wishes of those that sent him or her, and establishing a system for recording certificates of title for boats.  Study committees are looking at the 1996 Hague Convention on the Protection of Children, the authentication of state legal materials online, and multiple other issues.

Wherever the ULC turns its attention, Uniform and Model acts affect the work of most lawyers.  For clients, these acts provide benefits because their local lawyer can effectively represent them across state lines in matters from family law to probate.  For lawyers, Model acts can provide confidence when their practice crosses state lines, saving time and money.  As Stein points out, at times of national crisis such as the housing crisis people look for federal solutions.  Inevitably, this can lead to the erosion of state rights in situations where states are the best positioned to make significant change.  The NCCUSL provides an important avenue for more localized solutions to the problems that affect the nation. s

The Minnesota Commissioners

In Minnesota the governor, the chief justice of the supreme court, and the attorney general appoint the Uniform Law Commissioners to promote a nonpartisan group.  Historically, the commission has attracted such top-flight talent as Woodrow Wilson, David Souter, and William Rehnquist so the standards for appointment are high.  Nor are these positions for the faint-hearted. “This organization exacts a greater burden on its leadership than any group I know of,” said Commissioner Bob Stein.  As the president of the national Executive Committee of the ULC, Stein estimates that he spends about a third of his weekends annually at ULC meetings.

The commissioners have two roles according to Commissioner Harry Haynsworth.  The first is to work on drafting committees that draft the Uniform acts.  The second is to work for their passage.

According to Stein, Minnesota has a strong delegation: “I think the lawyers of Minnesota can be proud that Minnesota is well-respected in the conference.  These are top-notch people.”  The current commissioners from Minnesota are:

  • Robert (Bob) Stein is the Everett Fraser Professor of Law and former dean at the University of Minnesota Law School and serves of counsel to the law firm of Gray, Plant, Mooty, Mooty & Bennett.  Previously he served 12 years as the executive director and chief operating officer of the American Bar Association (ABA).  He has contributed to the ULC since his appointment in 1973.  He is now a Life Member, as are several of the other commissioners from Minnesota.  Individuals become Life Members when they serve more than 20 years as part of the ULC.
  • Jack Davies is retired from the Minnesota Court of Appeals and is a former state senator.  He is the longest serving Minnesota commissioner, appointed in 1966.  He is an ex-officio member of 12 committees for the ULC.
  • Michael Sullivan is of counsel to Gray, Plant, Mooty, Mooty & Bennett and is a former president of the ULC.  He was appointed in 1971.
  • Harry Walsh is the former Minnesota Revisor of Statutes. He was appointed to the ULC in 1971.
  • Bob Tennessen is a former state senator, appointed to the ULC in 1989.  Currently in private practice at Tennessen Law, PLC, he chairs the Legislative Committee of the ULC.
  • Harry Haynsworth, of Briggs and Morgan and dean emeritus of the William Mitchell College of Law, chairs several drafting committees of the ULC.  Haynsworth was appointed in 1992.
  • Harriet Lansing, a judge on the Minnesota Court of Appeals, has served as the vice president of the ULC since her election in 2007.  She also chairs the Committee on Scope and Program.  She was appointed to the ULC in 1993.
  • Michele Timmons is the Minnesota Revisor of Statutes.  She was appointed to the ULC in 1998.

Chato Hazelbaker is the University of St. Thomas School of Law director of communications.  In that role he is responsible for public relations and marketing communication for the law school.  Previously he served as marketing director at Crown College in St. Bonifacius, Minnesota and as director of marketing at Montana State University–Billings.  In his spare time he does freelance writing and works as a communication consultant along with serving as an adjunct faculty member.  He can be contacted at chatohaze@yahoo.com.

 

Leave a Reply

Articles by Issue

Articles by Subject