The Criminal Records Accuracy Drafting Committee concluded its final in-person meeting in preparation for the act’s second reading at the ULC annual meeting in San Diego. The act requires criminal justice agencies to use biometric information to accurately identify individuals, maintain accurate records, report dispositions of arrests and charges, and provides remedies by which an individual can seek correction of their criminal history record. By complying with the requirement that they report the disposition of arrests and dispositions of cases, criminal justice agencies will greatly reduce, if not eliminate, a major cause of inaccurate criminal records. It also provides an important measure to guard against mistaken arrests by creating a mistaken identity registry. Persons whose name or identifying characteristics are similar to that of a person who has a criminal history record may apply to have their names included in the mistaken identity registry and receive a document which they can use to demonstrate that they are not the person with a criminal history record.
Robert J. Tennessen, Chair Drafting Committee on Criminal Records Accuracy
The Drafting Committee on an Electronic Registry for Residential Mortgage Notes met March 17 and 18, 2017, in Bethesda, Maryland. The primary issue for the Drafting Committee was whether to move forward with drafting a state electronic mortgage note registry at this time or to continue for now to monitor and provide comment on the Federal Reserve Bank of New York proposal for a federal electronic registry for residential mortgage notes.
The Committee was assisted in its deliberations by four very informative presentations. Mr. Bill Beckmann, CEO of MERSCORP Holdings, Inc., gave a presentation regarding MERSCORP’s electronic registries, MERS System and MERS eRegistry. Corinne Milliken, Esq., an attorney with the New York Federal Reserve, presented an overview of the latest draft of the New York Federal Reserve’s proposed National Mortgage Note Repository Act of 2017. Mr. Tod McDonald, Co-Founder, COO, and Head of Partnership for R3, LLC, and Isabelle Corbett, Esq., Senior Counsel and Director of Regulatory Affairs for R3, gave a presentation on distributive ledger technology and its possible use with regard to an electronic registry. Eric Fish, Esq., Senior Vice President for Legal Services, Federation of State Medical Boards, gave a presentation on development of an interstate compact among the states. The Committee is very grateful to all of the presenters for taking the time to share their knowledge with the Committee.
The Committee also received input from stakeholders, including representatives of the FHFA, Fannie Mae and consumer interests, and from its ABA Advisors, Prof. James Durham and Barry Nekritz, Esquire. After a thorough discussion, the Committee had a good idea of what might be the likely structure and contours of a state electronic mortgage note registry. The consensus of the Committee, however, based on the input it received, was that it was not inclined to begin drafting of a state electronic mortgage note registry at this time. Instead, the Committee agreed that for now it will continue to monitor and comment upon the New York Federal Reserve’s proposed National Mortgage Note Repository Act as that draft act moves forward through the Federal Reserve’s vetting process and is presented for consideration by Congress.
The Committee also provided Ms. Milliken with its comments on the latest draft of the proposed National Mortgage Note Repository Act.
H. Kathleen Patchel and Carlyle C. Ring, Co-Chairs Drafting Committee on Electronic Registry for Residential Mortgage Notes
The Regulation of Virtual Currency Businesses Act drafting committee met for its final drafting committee meeting in Chicago on March 3 and 4, 2017. The focus was on deciding a number of open issues and polishing the act for its final reading before the Conference this summer in San Diego. One major change occurred when the drafting committee, in order to clarify the application of commercial law rules, particularly those of UCC Article 9, to virtual currency transactions, voted to mandate the application of UCC Article 8 treating virtual currency as a financial asset. The act will be worked on by the Style Committee at its May meeting, and simultaneously will be distributed to the committee roster for comments, before preparing the draft that will be submitted to the annual meeting in San Diego.
Fred Miller, Chair Drafting Committee on Regulation of Virtual Currency Businesses Act
The 2016 drafting committee season is now over. On December 2nd and 3rd, I attended the meetings of our Uniform Commercial Code Committee and of the Permanent Editorial Board for the Uniform Commercial Code in Philadelphia.
These Committees continue to shepherd the signature work of the Conference, the Uniform Commercial Code. Under the leadership of Commissioner Carl Bjerre of Oregon, work continues on the identification and republication of an “Official Text” of the Code. The Committees also reviewed the present status of the articles of the Code to assess whether the time for modernization or revision has arrived. Have you ever considered whether we need to continue UCC Articles 10 and 11, the transitional articles? Well, your Committees have. (And so far the answer is still, “yes.”)
We also reviewed the status of the Federal Reserve Bank of New York’s effort to draft a federal statute for a national mortgage registry and of our complementary efforts to modernize UCC Articles 1, 3 and 9 to provide for electronic residential mortgage notes and for a state law based residential mortgage note registry.
On Saturday December 3rd, the last meeting of the season, the Joint Editorial Board for Uniform Trust and Estate Acts occurred in Chicago. Since the Conference does not yet own a Star Trek-style transporter machine, I did not attempt to make that meeting. (A transporter machine for the ULC heads my Christmas wish list!).
Speaking of meetings and travel, your leadership team, Executive Committee Chair Anita Ramasastry, Vice-President Melissa Hortman, Treasurer Tom Buiteweg, Secretary Dan Robbins, Division Chairs H. Lane Kneedler, Cam Ward, Bill Barrett, Nora Winkelman, Pam Bertani, and John McGarvey, together with Liza Karsai and members of the ULC staff, covered 10 different drafting or editorial board meetings, in Washington, Chicago, Philadelphia, Minneapolis, and Louisville during the second half of this year. They helped to coordinate the work of our many committees. Thanks to all of them and to the Committee chairs, reporters and members for advancing our work.
Your leadership team is now preparing the last details (primarily budgetary) before the Scope and Program and Executive Committees meet in January in Point Clear, Alabama at the ULC’s midyear meeting. Then it is on to our spring drafting committee meetings and the 2017 Annual Meeting in San Diego, July 14 through 20, 2017. Although it is snowing as I write, I can almost feel the warm Southern California sun!
Richard T. Cassidy, President, Uniform Law Commission
The Model Veterans’ Court Act Drafting Committee met for a third time on October 14th and 15th, 2016, in Washington, DC. The drafting committee focused on addressing concerns that were raised this past summer at the ULC Annual Meeting in Stowe, Vermont. Two of the biggest issues that the drafting committee is currently working through are who is eligible to be admitted into a veterans’ treatment court and prosecutorial discretion of individuals admitted into a veterans’ treatment court. The drafting committee made further progress in drafting language that will properly balance how these issues are treated. The act itself will not create a veterans’ treatment court, but rather enables local jurisdictions to create a veterans’ treatment court docket. The drafting committee will seek the permission of the Uniform Law Commission Executive Committee to have the name of the model act revised to be named the “Model Veterans’ Treatment Court Act” to further reflect the act’s focus on the treatment court model, similar to drug treatment courts. The drafting committee continues to work with stakeholders in the domestic violence community to refine the drafted language in order to appropriately address crimes of domestic violence.
The meeting was attended by Justice for Vets and the National Center for State Courts whom have been instrumental in helping the drafting committee craft the model act. The drafting committee expects to meet again this coming spring before the model act undergoes a final reading at the Annual Meeting this summer in San Diego, California. In the interim, the drafting committee plans to hold one or more conference calls in order to fine-tune the act language. Drafting committee members are working cohesively in making important policy decisions in the draft act and the draft is rounding into good shape as it wraps up its final year of drafting.
Harry L. Tindall, Chair, Model Veterans’ Court Act
Becky and I are just home from Fredericton, New Brunswick. Together with International Legal Developments Committee Chair Bob Stein, we represented the Uniform Law Commission at the Annual Meeting of the Uniform Law Conference of Canada.
Our Canadian colleagues are a hospitable bunch, and they made us feel right at home. They do work that is very similar to ours, but they do it in a different way. As befits the smaller population of their country, they are a considerably smaller group than we are. For the bulk of their meeting, they are divided into two groups, a Civil Section and a Criminal Section. This makes particular sense for them, as in Canada, Criminal Law is essentially federal in nature. Most of the work of the Criminal section is considering adopting resolutions recommending changes in criminal law to the Canadian federal government.
Both sections seem to work extensively from white papers prepared by very small working groups.
Even on the Civil Side, things look very different. Like us they are drafting uniform and model acts. The Civil Section considers and adopts resolutions on policy principles that professional drafters convert into statutory language for consideration by the provincial and territorial parliaments.
And, of course, all this work is taking place in two languages. One truly feels an international flavor when the headphones come out for simultaneous translation.
In both Sections, debate seemed sedate by our standards, even when disagreements were sharp. Perhaps we could learn something from that.
Although the methods of work are quite different, I was struck by the fact that both organizations grapple with many of the same legal issues and underlying human problems. Let me give you a few examples. On Monday, the Civil Section discussed the Uniform Access to Digital Assets by Fiduciaries Ac. The next day, the Civil Section spent considerable time on Domestic Arbitration. Then I went to the Criminal Section, which was discussing treatment courts, (which they call wellness courts) targeted at first nations’ peoples. They went on to discuss the extent to which persons convicted of violating their criminal laws against the distribution of intimate images should be required to register as sex offenders.
All these topics no doubt sound familiar to you, as we have done, or are doing, work on the same problems.
Back in the Civil Section, the members finished work ironing out the coordination of French and English texts on a project that we completed jointly, the Uniform Recognition of Substitute Decision Making Documents Act.
I addressed a joint session of both sections, and reported in some detail on the current status of our work.
Both organizations obviously value the relationship. The nature of our next cooperative effort is not yet clear, but I feel confident that a new chapter of our long history of collaboration and cooperation is just around the corner.
Richard T. Cassidy, President, Uniform Law Commission
The Drafting Committee on Employee and Student Online Privacy Protection (formerly known as the Drafting Committee on Social Media Privacy) met in Dallas on February 26-27, 2016 and made great progress. This was our fourth face-to-face meeting in less than a year working on this challenging topic. Although we contemplate some telephone follow up, this was also our last face-to-face before formal consideration by Style Committee and then final consideration at the Annual Meeting in Stowe, Vermont, in July 2016.
At the meeting, the Committee addressed a wonderful revised draft prepared by Reporter Dennis Hirsch. A great deal of effort has been put into the current draft, and not surprisingly, the project is attracting more and more attention and input, including significant input from various technology, social media, and other groups. Based on input from a variety of different sources and after a good deal of discussion, the Committee made a number of important decisions. Among them were the following:
The final draft will not expressly protect “metadata” for a variety of reasons, including definitional, but it will address the topic in its provisions on protected information. There was a consensus that protected information would include any information accessible to an account holder. A significant amount of time was spent discussing whether the act needed to capture this concept in a definition of “content” or “protected content” or whether it can be handled in the substantive provisions. The Reporter will consider the best method of implementation.
A discussion of the civil action provisions (Section 6 of the current draft) yielded various changes. In an action by an Attorney General, the draft will now provide that the relief may include a civil penalty of up to $[1,000] per violation with a cap of $[100,000] per occurrence. In a civil action brought by an employee or student, the draft will now provide that the relief may include actual damages, without a statutory minimum damage provision. In deference to other local law provisions, the draft will now not contain a statutory directive for an award of attorneys’ fees for a frivolous action.
It was agreed that an employer or educational institution would not be limited in its use of information about an employee or student acquired incidentally from a third party except that it will be barred from using the information to require, request, or coerce the employee or student to give it access to a protected account unless the information falls within specified exceptions (e.g., it implicates health or safety).
The Committee determined that the act should apply to public and private educational institutions and leaned towards limiting it to post-secondary institutions. However, strong arguments were made to extend the act to secondary and perhaps pre-secondary schools and it was agreed that a final decision would be made in a follow-up conference call.
The Committee continues to make a number of other changes intended to simplify and clarify the draft. We look forward to presenting an outstanding draft for final approval this summer in Stowe.
Samuel A. Thumma, Chair, Drafting Committee on Employee and Student Online Privacy Protection Act