D R A F T
FOR DISCUSSION ONLY
UNIFORM UNSWORN FOREIGN DECLARATIONS ACT
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
May 2008 Interim Draft with Style Committee
Revisions
With Prefatory Notes and
Comments
Copyright 82008
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
DRAFTING COMMITTEE ON UNIFORM UNSWORN
FOREIGN DECLARATIONS ACT
The Committee appointed by and representing the National Conference of
Commissioners on Uniform State Laws in preparing this Act consists of the
following individuals:
KAREN ROBERTS WASHINGTON, 2929 Carlisle,
James M. Concannon,
Robert H. Cornell, 573
John S. Gillig,
Kevin P.H. Sumida,
Kerry Triche, Louisiana State University, University
Station, Paul M. Hebert Law Center, Louisiana State Law Institute, Room W-127,
Joseph Colquitt, University of Alabama School of Law, Box
870382, Tuscaloosa, AL 35487-5829, Reporter
EX OFFICIO
MARTHA LEE WALTERS,
H. KATHLEEN PATCHEL, Indiana University,
School of Law-Indianapolis, 5715 E. 56th St., Indianapolis, IN 46226,
Division Chair
AMERICAN BAR ASSOCIATION ADVISOR
Guy Stanford Lipe, First City Tower, 1001 Fannin St., Suite 2500,
Houston, TX 77002-6760, ABA Advisor
EXECUTIVE
DIRECTOR
JOHN A. SEBERT,
Copies
of this Act may be obtained from:
NATIONAL CONFERENCE OF
COMMISSIONERS ON UNIFORM STATE LAWS
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
In recent years, particularly after
September 11, 2001, access to
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,
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
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
After the
UNIFORM
UNSWORN FOREIGN DECLARATIONS ACT
SECTION 1. SHORT TITLE. This [act] may be cited as the Uniform Unsworn Foreign Declarations Act.
Comment
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
(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
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
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 a Florida 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
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
States that already have statutes
that permit out-of-state declarants in the
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 substantially in 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
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 National Conference.
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, two reviews by the Style
Committee, and the initial reading of the Act at the 2007 Annual Meeting in
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
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
(Date and Place) (Signature)
28
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
(Signature)''.
(2) If executed within the
(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.