D R A F T
FOR APPROVAL
UNIFORM UNSWORN FOREIGN DECLARATIONS ACT
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
MEETING IN ITS ONE-HUNDRED-AND-SEVENTEENTH YEAR
BIG SKY, MONTANA
JULY 18 - JULY 25, 2008
UNIFORM UNSWORN FOREIGN DECLARATIONS ACT
WITH PREFATORY NOTE AND PRELIMINARY COMMENTS
Copyright ©2008
By
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
The ideas and conclusions
set forth in this draft, including the proposed statutory language and any
comments or reporter’s notes, have not been passed upon by the National
Conference of Commissioners on Uniform State Laws or the Drafting
Committee. They do not necessarily reflect
the views of the Conference and its Commissioners and the Drafting Committee
and its Members and Reporter. Proposed
statutory language may not be used to ascertain the intent or meaning of any
promulgated final statutory proposal.
DRAFTING COMMITTEE ON UNIFORM UNSWORN FOREIGN
DECLARATIONS ACT
The Committee appointed by and representing
the National Conference of Commissioners on Uniform State Laws in drafting this
Act consists of the following individuals:
KAREN ROBERTS WASHINGTON, 2929 Carlisle,
Suite 250, Dallas, TX 75204, Chair
JAMES M. CONCANNON, Washburn University
School of Law, 1700 College Ave., Topeka, KS 66621
ROBERT H. CORNELL, 573 Arkansas, San
Francisco, CA 94107
JOHN S. GILLIG, P.O. Box 4285, 91 C Michael
Davenport Blvd., Frankfort, KY 40604
KEVIN P.H. SUMIDA, 735 Bishop St., Suite 411,
Honolulu, HI 96813
KERRY TRICHE, Louisiana State University,
University Station, Paul M. Hebert Law Center, Room W-127, Baton Rouge, LA
70803-1016
JOSEPH
A. COLQUITT, University of Alabama School of Law, Box 870382,
Tuscaloosa, AL 35487-0382, Reporter
EX OFFICIO
MARTHA LEE WALTERS, Oregon Supreme Court,
1163 State St., Salem, OR 97301-2563, President
H. KATHLEEN PATCHEL, Indiana University,
School of Law-Indianapolis, 5715 E. 56th St., Indianapolis, IN 46226, Division
Chair
AMERICAN BAR ASSOCIATION ADVISORS
GUY STANFORD LIPE, First City Tower, 1001
Fannin St., Suite 2500, Houston, TX 77002- 6760, ABA Advisor
EXECUTIVE DIRECTOR
JOHN A. SEBERT, 111 N. Wabash Ave., Suite
1010, Chicago, IL 60602, Executive Director
Copies of this Act may be obtained from:
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
111 N. Wabash Ave., Suite 1010
Chicago, Illinois 60602
312/450-6600
www.nccusl.org
UNIFORM UNSWORN FOREIGN DECLARATIONS ACT
TABLE OF CONTENTS
Prefatory
Note. 1
SECTION
1. SHORT TITLE. 3
SECTION
2. DEFINITIONS. 3
SECTION
3. APPLICABILITY.. 4
SECTION
4. VALIDITY OF UNSWORN DECLARATION.. 5
SECTION
5. REQUIRED MEDIUM... 6
SECTION
6. FORM OF UNSWORN DECLARATION.. 6
SECTION
7. UNIFORMITY OF APPLICATION AND
CONSTRUCTION.. 7
SECTION
8. RELATION TO ELECTRONIC SIGNATURES IN
GLOBAL AND NATIONAL COMMERCE ACT 7
SECTION
9. REPEALS. 8
SECTION
10. EFFECTIVE DATE. 8
REPORTER’S
NOTES & COMMENTARY.. 9
UNIFORM UNSWORN FOREIGN DECLARATIONS ACT
Declarations of persons abroad are
routinely received in state and federal courts and agencies. Many of the
declarations are affidavits and other documents sworn to by declarants before
authorized officials in United States embassies and consulate offices. Federal
and some state courts and agencies may receive unsworn foreign declarations.
The United States Code (28 U.S.C. § 1746) authorizes the use of unsworn foreign
declarations if they meet the requirements of the statute. Some 19 states have
statutes of like nature, but these statutes are not uniform and some apply only
in specific types of litigation, proceedings, or situations. Moreover, state
courts that have addressed the issue generally hold that the federal statute is
inapplicable to state actions.
In recent years, particularly after
September 11, 2001, access to United States embassies and consulates has been
more difficult because of closings or added security. Thus, obtaining
appropriately sworn foreign declarations for court or agency use is much more
difficult in the post-9/11 environment.
In its Report 110, the American Bar
Association identified the pressing need for an alternative to sworn
declarations in the form of a uniform act for state courts and agencies. This
need was communicated to the National Conference of Commissioners on Uniform
State Laws, which decided to convene a drafting committee to address the
issue. Commissioner Karen Roberts
Washington was designated chair of the Drafting Committee. Professor Joseph A.
Colquitt, University of Alabama School of Law, was named reporter for the
project.
The Reporter, relying on both the
ABA memorandum and a preliminary review of existing statutory and rules-based
schemes, prepared an initial report for the Committee’s first meeting in Salt
Lake City, UT, on April 20-22, 2007. This report outlined and discussed the
existing unsworn declarations provisions (focusing primarily on the federal,
California, Florida, Kansas, and Alaska statutes), identified issues to be
considered by the Committee, and suggested several statutes as initial models.
At the first meeting of the Drafting
Committee in April, 2007, the Chair outlined the project. Although the
Committee had reviewed the reporter’s initial memorandum, the Reporter reviewed
for the Committee selected examples of unsworn declarations acts. Thereafter,
the Committee discussed at length the need for such provisions, their content,
and alternatives available for Committee consideration. Through these
discussions and a series of votes, the Chair and the Committee informed the
Reporter of the provisions which should be included in the proposed Act. During
a recess of the Committee meeting, the Reporter prepared an initial draft of the
proposed Act, which was then circulated to the Committee and other interested
parties. The Committee reconvened and discussed the draft of the proposed Act
and how to proceed. It was decided that due to the pressing need for such a
uniform law, the narrow scope of the proposal, and the Committee consensus in
support of the proposal, the draft should be edited for style and submitted for
a first reading at the 2007 Annual Conference.
Following the first meeting, a draft
of the proposal was submitted to the Style Committee, and added to the calendar
for the Annual Meeting in Pasadena, CA, in July 2007. The Style Committee
finished its first review of the Act in June 2007. The Style Committee’s
suggestions were incorporated into the draft for consideration at the Annual
Meeting.
The revised draft was presented in a
first reading at the Annual Meeting in Pasadena, California, on July 29, 2007,
with Commissioner Norman L. Greene, of New York, presiding. A number of
comments and suggestions were received by the Committee at the Conference.
The Drafting Committee next met at
Boise, Idaho, on October 5-6, 2007. The Reporter submitted a revised draft of
the Act to the Committee members in advance of the Boise meeting. At the
meeting in Boise, the Committee reviewed and considered the comments and
suggestions received at the Annual Meeting, several written reports from
interested organizations, and the comments of members of the Drafting Committee
and other persons in attendance, such as several representatives of
organizations representing notaries. Once again, the draft was revised to
incorporate some of the proposed revisions and to address some of the comments
about particular provisions of the uniform Act.
After the Boise meeting, the
Drafting Committee submitted the revised draft to the Style Committee. The
Style Committed finished its second review of the Act in January 2008. Once
again, the Style Committee’s suggestions were incorporated into the draft in
preparation for the 2008 Annual Meeting in Big Sky, Montana. During May 2008,
the Style Committee submitted its third report on the Act. The Reporter
incorporated the Committee’s style suggestions into the Act and the Style
Committee’s comments on substantive issues were circulated to the members of
the Drafting Committee.
UNIFORM UNSWORN FOREIGN
DECLARATIONS ACT
SECTION
1. SHORT TITLE. This [act] may be cited as
the Uniform Unsworn Foreign Declarations Act.
Comment
In February
2008, the Executive Committee designated the Uniform Foreign Declarations Act a
“Uniform” Act. The word “Uniform” was added to the title of the Act by
replacing “Certification of” with “Uniform.”
SECTION 2. DEFINITIONS. In this [act]:
(1) “Boundaries of the United States”
means the geographic boundaries of the United States, the District of Columbia,
Puerto Rico, the United States Virgin Islands, or any territory or insular
possession subject to the jurisdiction of the United States.
(2) “Law” includes the federal or a
state constitution, a federal or state statute, a judicial decision, a rule of
court, an executive order, or an administrative rule or order.
(3) “Record” means information that
is inscribed on a tangible medium or that is stored in an electronic or other
medium and is retrievable in perceivable form.
(4)
“Sign” means, with present intent to authenticate or adopt a record:
(A) to execute or adopt a
tangible symbol; or
(B) to attach to or
logically associate with the record an electronic symbol, sound, or process.
(5) “Sworn declaration” means a
declaration in a signed record given under oath. The term includes a sworn statement,
verification, certificate, and affidavit.
(6)
“Unsworn declaration” means a declaration in a signed record that is not given
under oath.
Comment
1. The
District of Columbia was added to the definition of “boundaries of the United
States” at the suggestion of the Style Committee to eliminate any potential
ambiguity.
2. The definition of “law” is drafted in an
open-ended manner to give it the widest possible application. The term is not
ordinarily defined in uniform acts but in this context it is important that
judges applying the act be in no doubt about its breadth. The wording, as
suggested by the Style Committee, is taken from the definition contained in the
Revised Model State Administrative Procedure Act.
3. A “record” includes information that is in
intangible form (e.g., electronically stored) as well as tangible form (e.g.,
written on paper). It is consistent with
the Uniform Electronic Transactions Act and the federal Electronic Signatures
in Global and National Commerce Act (15 U.S.C. § 7001 et seq.).
4. The definition of “sign” is broad enough to
cover any writing containing a traditional signature and any record containing
an electronic signature. It is
consistent with the Uniform Electronic Transactions Act and the federal
Electronic Signatures in Global and National Commerce Act (15 U.S.C. § 7001 et
seq.).
5. Section
2(6) was amended to address suggestions made at the National Conference.
6. A
Commissioner at National Conference suggested that the Act define the term
“electronic.” The Reporter searched a number of uniform acts and none of them
defined the term although those acts also included similar references to
records and federal acts.
SECTION
3. APPLICABILITY. This [act] applies to a
declarant who at the time of making an unsworn declaration is physically
located outside the boundaries of the United States whether or not that
location is subject to the jurisdiction of the United States. This [act] does
not apply to a declarant who is physically located on property within the
boundaries of the United States and subject to the jurisdiction of another
country.
Legislative Note: Enacting states will need
to ensure that the perjury laws of the enacting state include unsworn
declarations.
Comment
The
Committee discussed a number of options, but focused on two: Limiting the Act
to declarants in foreign jurisdictions (i.e. outside the United States and its
territories), and extending it to declarants outside the state in which the
unsworn declaration is to be used but within the United States (e.g., a
declarant in Michigan making an unsworn declaration for use in an Arizona court
or agency). The Committee decided that the Act should be limited to declarants
in foreign jurisdictions, subject to expansion at some later time should the
need arise.
At the 2007
National Conference in Pasadena, California, several Commissioners questioned
the Committee’s decision to limit the Act to declarations made outside the
United States. The Committee discussed its decision at length at its meeting in
Boise, Idaho, in October 2007, and decided to restrict the Act as originally
drafted, although the definition in Section 3 was amended to clarify the
provision. Thus, in keeping with the limited scope of the Act, the Drafting
Committee decided that an unsworn declaration made within the geographical
boundaries of the United States, even if the location is under the control of
another sovereign, such as foreign embassies or consulates or Indian
reservations, should not be deemed “outside the boundaries of the United
States” for the purposes of this Act.
The reasons
for this decision are that the Committee believes that the Act, so limited,
meets the immediate needs expressed to the Committee by the ABA committee that
recommended the project, and that limiting the Act to truly foreign-based
declarants will enhance the likelihood that states will adopt the provision in
a timely manner. Moreover, notaries and officials authorized to administer
oaths are more readily available in the United States.
States that
already have statutes that permit out-of-state declarants in the U.S. to make
unsworn declarations may be unlikely to modify their statutes to restrict the
reach of those statutes. Their experiences with the broader statutes serve as a
laboratory for future review of the reach this Act.
SECTION 4. VALIDITY OF UNSWORN DECLARATION.
(a) Except as otherwise provided in
subsection (b), if the law of this state requires or permits the use of a sworn
declaration, an unsworn declaration meeting the requirements of this [act] has
the same effect as a sworn declaration.
(b) An unsworn declaration may not be
used for:
(1) a deposition;
(2) an oath of
office;
(3) an oath required to be
given before a specified official other than a notary public;
(4) a declaration to be recorded
pursuant to [insert appropriate section of state’s real estate law]; or
(5) an oath required by [insert
appropriate section of state’s law relating to self-proved wills].
Comment
The use of
unsworn declarations is not limited to litigation. Unsworn declarations would
be usable in civil, criminal, and regulatory proceedings and settings. However,
there are certain contexts in which the Committee concluded they should not be
used, and these contexts are listed in this section.
SECTION 5. REQUIRED MEDIUM. If the law of this
state requires that a sworn declaration be presented in a particular medium, an
unsworn declaration must be presented in that medium.
Comment
Courts and
agencies often restrict the medium in which pleadings, motions, and other
documents may be filed. This section
recognizes that such a restriction is binding on a person seeking to introduce
a foreign unsworn declaration.
SECTION 6. FORM OF
UNSWORN DECLARATION. An unsworn declaration under this [act] must
be in substantially the following form:
I declare under penalty of perjury under the law of [insert name of enacting
state] that the foregoing is true and correct, and that I am
physically located outside the United States, the District of Columbia, Puerto
Rico, the United States Virgin Islands, or any territory or insular possession
subject to the jurisdiction of the United States.
Executed on the
___ day of ______, _____, at ___________________________, __________.
(month) (year)
(city or other location, and state)
(country)
________________________
(printed name)
________________________
(signature)
Comment
“Insert
name of enacting state” was added to the original version based on suggestions
made at the 2007 National Conference in Pasadena, California.
SECTION 7. UNIFORMITY OF
APPLICATION AND CONSTRUCTION. In applying and construing this uniform act,
consideration must be given to the need to promote uniformity of the law with
respect to its subject matter among states that enact it.
Comment
This
section recites the importance of uniformity among the adopting states when
applying and construing the act.
SECTION 8. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL
AND NATIONAL COMMERCE ACT. This [act] modifies, limits, and supersedes
the federal Electronic Signatures in Global and National Commerce Act, 15
U.S.C. Section 7001, et seq., but does not modify, limit, or supersede Section
101(c) of that act, 15 U.S.C. Section 7001(c), or authorize electronic delivery
of any of the notices described in Section 103(b) of that act, 15 U.S.C.
Section 7003(b).
Comment
This
section responds to the specific language of the Electronic Signatures in
Global and National Commerce Act and is designed to avoid preemption of state
law under that federal legislation.
SECTION 9. REPEALS. The following acts
and parts of acts are repealed: __________.
Comment
Any state
enacting the Uniform Unsworn Foreign Declarations Act likely will need to amend
the state’s laws by repealing any conflicting statutory provisions. This
Section was added based on comments at the National Conference.
SECTION 10. EFFECTIVE
DATE. This [act] takes effect [date].
Comment
This act
will become effective in the enacting jurisdiction on the designated date.
This draft
of the Act came after just three meetings of the Drafting Committee, the
initial reading of the Act at the 2007 Annual Meeting in Pasadena, California,
and three reviews by the Style Committee. The Act in its present form will be
presented for final review and approval at the 2008 Annual Meeting in Big Sky,
Montana. There are four principal reasons for the expedited process.
First, the
Committee was informed and believes that there is a pressing need for a uniform
Act that will allow state courts and agencies to receive unsworn foreign
declarations.
Second, two
acts—one federal and one state—provide splendid models for the Committee to
work from during the drafting process. These acts have been used in their
respective systems for some time, and provide the Committee with an experience
base for the proposed Act. Additionally, a number of other states have
non-uniform statutes that authorize the receipt of unsworn declarations. These
non-uniform provisions demonstrate the need for an Act permitting the use of
unsworn declarations as well as reinforce the need for uniformity.
Third, the
uniform Act is rather concise and straightforward. There is no need for an
extensive, rigorous drafting process. The Committee has been able to refine and
polish the Act since the 2007 Annual Meeting in Pasadena, California.
Fourth, the
Committee has been able to reach a consensus on the key issues that it has
confronted to date, and as issues have been raised during the drafting and
approval process about particular provisions the Committee has reached
consensus on those issues.
The state
statute which has served as a model for the uniform Act is CAL. CIV. PROC. CODE
§ 2015.5. The federal version of this statute is 28 U.S.C. § 1746. They state
as follows:
CAL. CIV. PROC. CODE § 2015.5.
Certification or Declaration Under Penalty of Perjury.
Whenever, under any law of this
state or under any rule, regulation, order or requirement made pursuant to the
law of this state, any matter is required or permitted to be supported,
evidenced, established, or proved by the sworn statement, declaration,
verification, certificate, oath, or affidavit, in writing of the person making
the same (other than a deposition, or an oath of office, or an oath required to
be taken before a specified official other than a notary public), such matter
may with like force and effect be supported, evidenced, established or proved
by the unsworn statement, declaration, verification, or certificate, in writing
of such person which recites that it is certified or declared by him or her to
be true under penalty of perjury, is subscribed by him or her, and (1), if
executed within this state, states the date and place of execution, or (2), if
executed at any place, within or without this state, states the date of
execution and that it is so certified or declared under the laws of the State
of California. The certification or declaration may be in substantially the
following form:
(a) If executed within this state:
“I certify (or declare) under
penalty of perjury that the foregoing is true and correct”
------------------------------------------ -------------------------------------------
(Date and Place) (Signature)
(b) If executed at any place, within or
without this state:
“I certify (or declare) under penalty of
perjury under the laws of the State of California that the foregoing is true
and correct”:
------------------------------------------ ---------------------------------------------
(Date and Place) (Signature)
28 U.S. CODE § 1746.
Wherever, under any law of the
United States or under any rule, regulation, order, or requirement made
pursuant to law, any matter is required or permitted to be supported,
evidenced, established, or proved by the sworn declaration, verification,
certificate, statement, oath, or affidavit, in writing of the person making the
same (other than a deposition, or an oath of office, or an oath required to be
taken before a specified official other than a notary public), such matter may,
with like force and effect, be supported, evidenced, established, or proved by
the unsworn declaration, certificate, verification, or statement, in writing of
such person which is subscribed by him, as true under penalty of perjury, and
dated, in substantially the following form:
(1) If executed without the United
States: “I declare (or certify, verify, or state) under penalty of perjury
under the laws of the United States of America that the foregoing is true and
correct. Executed on (date).
(Signature)”.
(2) If executed within the United
States, its territories, possessions, or commonwealths: “I declare (or certify,
verify, or state) under penalty of perjury that the foregoing is true and
correct. Executed on (date).
(Signature)”.
As noted in
the Legislative Note to Section 3, any state enacting the Uniform Unsworn
Foreign Declarations Act likely will need to amend the state’s perjury laws to
impose the penalties of perjury on false unsworn statements. At the 2007
National Conference, a Commissioner suggested that a citation to the enacting
state’s perjury statute be incorporated into the text of the uniform Act (i.e.,
instead of “as provided by the law of this state,” the provision should be “as
provided by [insert citation of perjury statute]”). After some discussion, the
Committee left the provision as originally drafted.
