RE: [legalxml-enotary] [FWD: Uniform Unsworn Foreign Declarations Act]

["Mark Ladd" <mark.ladd@addison-one.com>]

John,

It was my understanding that the federal courts accept unsworn declarations.  If this is correct I think the eNotary TC should continue on its current path of including these in our scope.  


Mark Ladd
Addison/One, LLC
262-498-0850
 
mark.ladd@addison-one.com
 

-----Original Message-----
From: John Messing [mailto:jmessing@law-on-line.com] 
Sent: Friday, June 20, 2008 1:11 PM
To: legalxml-enotary@lists.oasis-open.org
Subject: [legalxml-enotary] [FWD: Uniform Unsworn Foreign Declarations Act]

NCCUSL is not going to do anything domestically with unsworn declarations under penalty of perjury that are domestic (within the US).
Does this affect the need to have unsworn declarations in the enotary 1.0. Should we encourage SciTech to require it if this is possible, or just "go with the flow"? This could affect our scope.
> -------- Original Message --------
> Subject: Uniform Unsworn Foreign Declarations Act
> From: "Lipe, Guy" <GLipe@velaw.com>
> Date: Fri, June 20, 2008 7:55 am
> To: JMessing@law-on-line.com,gilwhittem@aol.com
> 
> 
> I am the ABA liaison to the Uniform Law Commission drafting committee 
> on the Uniform Unsworn Foreign Declarations Act.  The Science and 
> Technology Law Section previously provided comments to the drafting 
> committee, and those comments have been considered by the committee.
> The purpose of this email is to update you on the drafting committee's 
> work and the status of the project.
>  
> Attached is the draft of the uniform law that is expected to be 
> presented for final approval at the Uniform Law Commission's annual 
> meeting on July 21.  In preparing this revised draft, the drafting 
> committee considered the comments of the Science and Technology Law 
> Section and reached the following conclusions regarding those comments:
>  
> 1.    The Science and Technology Law Section's comments raised an issue
> concerning the authentication of signers, particularly in the context 
> of electronic signatures.  The drafting committee noted that under the 
> federal statute that has been in place since 1976 (28 USC 1746) and 
> the similar statutes that are in place in numerous states, there are 
> no provisions regarding the authentication of signers, and no problems 
> have been noted on this issue in any reported cases.  The federal 
> courts have held that electronic signatures are permitted under 28 USC 
> 1746.  See, e.g., United States v. Hyatt, 2008 WL 616055, *3 (S.D. 
> Ala. March 2, 2008); Western Watersheds Project v. Bureau of Land 
> Management, 2008 WL 1806194, *4 (D. Nev. April 18, 2008); Wingate v. 
> Gage County School District, 2007 WL 2904094, *1 (D. Neb. Sept. 28, 
> 2007).  Because the uniform act is designed to extend to the state 
> systems the procedures available in the federal system for use of 
> unsworn declarations by foreign witnesses, the committee felt it 
> unnecessary to add requirements to the uniform act relating to the 
> authentication of signers that are not imposed under the federal statute.
>  
> 2.    The Science and Technology Law Section's comments also raised the
> issue of whether the uniform law should be limited to declarations by 
> foreign witnesses or should be extended to domestic witnesses as well.
> The drafting committee has given extensive consideration to this 
> question and has concluded that (1) the need for a uniform law in the 
> domestic context is not nearly as great as the international context, 
> in light of the easy availability of notaries in the United States, 
> and (2) the expansion of the uniform law to include domestic witnesses 
> would jeopardize adoption of the law on a uniform basis in light of 
> anticipated opposition in some states to the elimination of notary 
> requirements in the domestic context.
>  
> 3.    In its comments, the Science and Technology Law Section also
> suggested that the drafting committee consider the comments of the 
> National Notary Association, which questioned the validity of the 
> assertion that difficulties in obtaining officially witnessed 
> documents from U.S. embassies and consulates have increased in recent 
> years.  The drafting committee did consider those comments.  The 
> statistics regarding the number of notary acts performed by U.S. 
> embassies and consulates before and after 9/11 that were relied on by 
> the National Notary Association do not take into account the delays in 
> obtaining notarial services since 9/11 resulting from increased 
> security requirements.  The drafting committee concluded that a 
> uniform act for foreign witnesses is appropriate.
>  
> 4.    The Science and Technology Law Section raised the question of
> whether the proposed uniform law might implicate federal preemption 
> issues or violate treaty obligations.  The preemption issues were 
> investigated extensively by a working group of the International 
> Litigation Committee of the Section of International Law in connection 
> with the report that led to the ABA's recommendation to the Uniform 
> Law Commission for the formation of a drafting committee, and the 
> result of that investigation was that a uniform law was the 
> appropriate approach to the problem, as legislation regarding evidence 
> that may be submitted in state court proceedings is an issue that 
> should be addressed by the states and not the federal government.  
> With regard to treaty obligations, the question of whether written 
> evidence must be in the form of an affidavit or an unsworn declaration 
> is not the subject of an existing treaty obligation of the United 
> States, as evidenced by the fact that unsworn declarations of foreign 
> witnesses have been permitted in federal proceedings since 1976.
>  
> I would be happy to discuss any of these issues with you in greater 
> detail.
>  
> Best regards,
>  
> Guy Lipe
> Vinson & Elkins L.L.P.
> 2500 First City Tower
> 1001 Fannin
> Houston, Texas  77002
> 713-758-1109
> glipe@velaw.com
> 
> 
>  
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