UNIFORM UNSWORN FOREIGN
DECLARATIONS ACT
Drafted by the
NATIONAL CONFERENCE OF COMMISSIONERS
ON
UNIFORM STATE LAWS
and by it
APPROVED AND RECOMMENDED FOR ENACTMENT
IN ALL THE STATES
at its
ANNUAL CONFERENCE
MEETING IN ITS ONE-HUNDRED-AND-SEVENTEENTH YEAR
IN BIG SKY, MONTANA
JULY 18 – 25, 2008
WITH PREFATORY NOTE AND COMMENTS
COPYRIGHT 8 2008
By
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
November
8, 2008
ABOUT ULC
The Uniform Law
Commission (ULC), also known as National Conference of Commissioners on
Uniform State Laws (NCCUSL), now in its 117th year, provides states
with non-partisan, well-conceived and well-drafted legislation that brings
clarity and stability to critical areas of state statutory law.
ULC members must be
lawyers, qualified to practice law. They are practicing lawyers, judges,
legislators and legislative staff and law professors, who have been appointed
by state governments as well as the District of Columbia, Puerto Rico and the
U.S. Virgin Islands to research, draft and promote enactment of uniform state
laws in areas of state law where uniformity is desirable and practical.
• ULC strengthens the federal system by providing rules and procedures that are consistent from state to state but that also reflect the diverse experience of the states.
• ULC statutes are representative of state experience, because the organization is made up of representatives from each state, appointed by state government.
• ULC keeps state law up-to-date by addressing important and timely legal issues.
• ULC’s efforts reduce the need for individuals and businesses to deal with different laws as they move and do business in different states.
• ULC’s work facilitates economic development and provides a legal platform for foreign entities to deal with U.S. citizens and businesses.
• Uniform Law Commissioners donate thousands of hours of their time and legal and drafting expertise every year as a public service, and receive no salary or compensation for their work.
• ULC’s deliberative and uniquely open drafting process draws on the expertise of commissioners, but also utilizes input from legal experts, and advisors and observers representing the views of other legal organizations or interests that will be subject to the proposed laws.
• ULC is a state-supported organization that represents true value for the states, providing services that most states could not otherwise afford or duplicate.
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
UNIFORM UNSWORN FOREIGN DECLARATIONS ACT
TABLE OF CONTENTS
SECTION
4. VALIDITY OF UNSWORN DECLARATION
SECTION
6. FORM OF UNSWORN DECLARATION
SECTION
7. UNIFORMITY OF APPLICATION AND
CONSTRUCTION
SECTION
8. RELATION TO ELECTRONIC SIGNATURES IN
GLOBAL
AND NATIONAL COMMERCE ACT
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. Affiants in foreign countries with information relevant to U.S.
proceedings or transactions could visit the U.S. consular office to finalize
their affidavit or statement in a manner similar to a person within the U.S.
visiting a notary public.
In recent years,
though, particularly after the September 11, 2001 terrorist attacks, access to
U.S. embassies and consulates has become 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.
The Uniform Unsworn
Foreign Declarations Act (UUFDA) was promulgated by the Uniform Law Commission
at its Annual Meeting in 2008 to address this situation and to harmonize state
and federal law.
UUFDA affirms the use
in state legal proceedings of unsworn declarations made by declarants who are
physically outside the boundaries of the United States when making the
declaration. Under the UUFDA, if an unsworn declaration is made subject to
penalties for perjury and contains the information in the model form provided
in the act, then the statement may be used as an equivalent of a sworn
declaration. The UUFDA excludes use of unsworn declarations for depositions,
oaths of office, oaths related to self-proved wills, declarations recorded
under certain real estate statutes, and oaths required to be given before
specified officials other than a notary.
The UUFDA will extend
to state proceedings the same flexibility that federal courts have employed for
over 30 years. Since 1976, federal law (28 U.S.C. § 1746) has allowed an
unsworn declaration executed outside the United States to be recognized and
valid as the equivalent of a sworn affidavit if it contained an affirmation
substantially in the form set forth in the federal act.
Several states also
allow the use of foreign declarations (e.g., Cal. Civ. Proc. Code § 2015.5 ), but the state procedures are not uniform. Further,
courts have ruled that 28 U.S.C. § 1746 is inapplicable to state court
proceedings.
Enactment of the UUFDA
harmonizes state and federal treatment of unsworn declarations. The act
alleviates foreign affiants’ burden in providing important information for
state proceedings, while at the same time helping to reduce congestion in U.S.
consular offices and allowing consular officials to increase focus on core
responsibilities. Further, UUFDA will reduce aspects of confusion abroad
regarding differences in federal and state litigation practice and help prevent
potential negative connotations about cumbersome and inconsistent legal
proceedings in the U.S. It should be enacted in every state.
UNIFORM
UNSWORN FOREIGN DECLARATIONS ACT
SECTION 1. SHORT TITLE. This [act] may be cited as the Uniform Unsworn
Foreign Declarations Act.
SECTION 2. DEFINITIONS. In this [act]:
(1) “Boundaries of the United States” means the
geographic boundaries of the United States, Puerto Rico, the United States
Virgin Islands, and 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 or order, a rule of court, an
executive order, and an administrative rule, regulation, 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) “State” means a state 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.
(6) “Sworn declaration” means a declaration in a signed
record given under oath. The term
includes a sworn statement, verification, certificate, and affidavit.
(7) “Unsworn declaration” means a declaration in a signed
record that is not given under oath, but is given under penalty of perjury.
Comment
1. The District of
Columbia is included in the definition of “boundaries of the United States” 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 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.).
SECTION 3.
APPLICABILITY. This [act] applies to an unsworn declaration
by a declarant who at the time of making the declaration is physically located
outside the boundaries of the United States whether or not the location is
subject to the jurisdiction of the United States. This [act] does not apply to
a declaration by a declarant who is physically located on property that is
within the boundaries of the United States and subject to the jurisdiction of
another country or a federally recognized Indian tribe.
Comment
In keeping with the
limited scope of the act, 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 federally
recognized Indian lands, should not be deemed “outside the boundaries of the
United States” for the purposes of this act. The act, so limited, meets the
immediate needs addressed by the act. Moreover, notaries and officials
authorized to administer oaths are more readily available in the United States.
SECTION 4.
VALIDITY OF UNSWORN DECLARATION.
(a) Except as otherwise provided in
subsection (b), if a law of this state requires or permits use of a sworn
declaration, an unsworn declaration meeting the requirements of this [act] has
the same effect as a sworn declaration.
(b) This [act] does not apply to:
(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].
Legislative Note: Enacting states will need to ensure that the
perjury laws of the enacting state include unsworn declarations.
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 unsworn declarations should not be used, and these
contexts are listed in this section.
Except as provided in
section 4 of this act, pursuant to this section, an unsworn declaration meeting
the requirements of this act may be used in a state proceeding or transaction
whenever other state law authorizes the use of a sworn declaration. Thus, if
other state law, permits the use of either sworn
testimony or an affidavit, an unsworn declaration meeting the requirements of
this act would also suffice. Additionally, if other state law authorizes other
substitutes for a sworn declaration, such as an affirmation, then as provided
in subsection (a) of this section, an unsworn declaration meeting the
requirements of this act could serve as a substitute for an affirmation.
SECTION 5. REQUIRED MEDIUM. If a 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 geographic boundaries of the United
States, Puerto Rico, the United States Virgin Islands, and any territory or
insular possession subject to the jurisdiction of the United States.
Executed on the ___
day of ______, _____, at ___________________________,
(date) (month) (year) (city or other
location, and state)
__________.
(country)
________________________
(printed
name)
________________________
(signature)
Legislative Note: Enacting states will need to ensure that the
perjury laws of the enacting state include unsworn declarations.
Comment
Section 3 of this act
authorizes the use of unsworn declarations made outside the boundaries of the
United States as defined in Section 2(1). The formal declaration in this
section recites the areas defined as within the boundaries and does not rely on
the definition in Section 2(1) because the person making the formal declaration
might believe, and therefore declare that he or she is outside the boundaries
of the United States even though at the time of the declaration the person
making the declaration is in the Virgin Islands, Puerto Rico, or one of the
other territories or insular possessions of the United States. The form of the
declaration lessens the opportunity for mistake or fraud.
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 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.