California Commission on Uniform State Laws
State Capitol, Room 3021
Sacramento, California 95814
916/341-8005
916/341-8020 facsimile
Meeting of the California Commission on Uniform State Laws
Date: October 23, 2012
Time: 10:00 a.m. – 3:00 p.m.
Location: Office of Legislative Counsel
Bion M. Gregory Conference Room
925 L Street, Lower Lev
Sacramento, California 95814
Final Agenda
1. Introductions
2. Approval of Minutes – October 5, 2011 meeting and July 13, 2012 meeting
3. Update – legislative program for the second half of the 2011-2012 Legislative Session
4. Legislative program for the first half of the 2013-2014 Legislative Session
• UCC Article 9-Secured Transactions
• Additional uniform acts for introduction (Note: If a commissioner wishes to propose an act for the legislative program, please inform the CCUSL Chair of the act name and of the likely entities in support and in opposition to the act immediately so we can ensure their perspectives are heard by the commission.)
5. Process for making sure Commissioners hear all sides before introducing legislation
6. Commission/Legislature relations
7. Adoption of Procedural Manual
8. Other administrative matters
Minutes
Meeting of the California Commission on Uniform State Laws
October 23, 2012 10:00 a.m. – 3:00 p.m.
Attendees: Pamela Bertani; Diane Boyer-Vine; Marty Carr; Dave Clark; Bob Cornell; Elihu Harris; Dan Robbins; Byron Sher; Nat Sterling; Shaun Naidu, Legislative Aide to Senator Corbett; Saul Bercovitch, State Bar of California; George Carrier, American Bar Association-UCC Working Group, Wells Fargo; Kevin Gould, California Bankers Association; Thomas Gump, State Bar of California-Commercial Transactions Committee; Michael Knudsen, Wells Fargo; Peter S. Muñoz, California Bankers Association; Neil Rubenstein, California Bankers Association; Harry C. Sigman, State Bar of California-Commercial Transactions Committee; Susan Ballew, note taker.
Chairman Nat Sterling called the meeting to order at 10:00 a.m. He read the roll call of the California Commission and determined that a quorum was present.
1. Introductions
Commissioners and other attendees introduced themselves.
2. Approval of Minutes
October 5, 2011 meeting – A motion was made and seconded to approve the October 5, 2011 meeting minutes. The minutes were adopted.
July 13, 2012 meeting – A motion was made and seconded to approve the July 13/July 17, 2012 meeting minutes. The minutes were adopted.
Diane Boyer-Vine reported that $118,000 was paid to the national ULC for California’s 2012-2013 dues.
3. Update – legislative program for the second half of the 2011-2012 Legislative Session
Diane Boyer-Vine reported that California enacted four uniform laws in the second half of the 2011-2012 legislative session:
California Revised Uniform Limited Liability Company Act (S.B. 323)
Uniform Commercial Code-Funds Transfers (UCC Article 4A) (S.B. 708)
Uniform Electronic Material Act (S.B. 1075)
Uniform Military and Uniform Overseas Voters (A.B. 1805)
Senate Bill No. 12, to repeal Uniform Commercial Code Article 6, was introduced but did not pass.
Diane recognized the Commissioners who worked on each bill, and Nat Sterling thanked the Commissioners for their efforts.
4. Legislative program for the first half of the 2012-2013 Legislative Session
Uniform Commercial Code Article 9 – Secured Transactions
Nat Sterling began the discussion on UCC 9 by telling the meeting attendees that there were two issues for discussion: possible introduction of the 2010 amendments to UCC Article 9 and possible introduction of amendments to Section 9312 of the California Commercial Code.
Amendments to UCC 9
The controversial item of the 2010 amendments is the means of identifying the debtor in a financing statement. As a compromise, the language promulgated by the national Uniform Law Commission allows each state when enacting the amendments to choose between an Alternative A (requiring use of a driver’s license as identification) or an Alternative B (making use of a driver’s license a “safe harbor,” among other options).
Nat explained that at the CCUSL meeting held in October 2011, the Commission heard a presentation by Harry Sigman to the effect that Alternative B is preferable. At that time, the Commission agreed with him but decided to discuss it with representatives of the banking community before a final decision was made. After representatives from banking institutions were consulted, the Commission decided to wait and not seek introduction of the UCC 9 amendments until it had an opportunity to hear from both sides at this meeting.
The representatives of interest groups in attendance explained the pros and cons of adopting each alternative. Commissioners were given the opportunity to ask the representatives questions. The Commissioners then discussed the issues amongst themselves.
Since both Alternatives carry significant opposition from different interest groups and since legislators are reluctant to introduce a bill of this sort having opposition, Commissioners were concerned that it would be difficult to find an author to carry the bill.
Nat asked for motions regarding introducing the amendments.
A motion was made to move forward with introducing the 2010 amendments to UCC 9 with Alternative A. The motion was seconded. The vote was taken: four in favor; four opposed; one abstention. The motion failed.
A motion was made to move forward with introducing the 2010 amendments to UCC 9 excluding the amendment pertaining to the debtor’s name – i.e., existing law on the subject would remain unchanged. The motion was seconded. The vote was taken: five in favor; one opposed. The motion carried.
Commissioners were reminded that the California Commission has not taken a position on the debtor name amendment.
Dave Clark volunteered to assist with moving the amendments through the legislative process.
Diane Boyer-Vine asked the Commission to give her and Dave Clark authority to discuss UCC 9 issues if a California legislator introduces a bill relating to Alternative A or Alternative B. The Commission granted permission.
Section 9312 of the California Commercial Code
Diane Boyer-Vine told the Commission that Section 9312 of the California Commercial Code will expire in January 2013 and explained the provisions of that section. Diane also stated that Steve Weise, who works on UCC issues, and Gene Erbin, who represents the Directors Guild of America, are working on a compromise solution in order to introduce an urgency bill with retroactive effect.
Diane asked the Commission to give her authority to negotiate with interested parties on issues pertaining to Section 9312. The motion was made, seconded, and unanimously carried.
Additional Uniform Acts
Diane Boyer-Vine reviewed the suggested 2013 Legislative Introduction Plan for California prepared by the national Uniform Law Commission. Diane asked Commissioners if they had any suggestions for introducing uniform acts.
Nat Sterling proposed a process when discussing a uniform act for possible introduction. He suggested Commissioners propose uniform acts but with the caveat that the Commission hear from interested parties before making a decision.
• Uniform Manufactured Housing Act
Gene Erbin, representing the California Manufactured Housing Institute, told the Commission that this organization opposes the uniform act and explained the reasons why. Possible introduction will be discussed again at the CCUSL meeting in Fall 2013.
• Adult Guardianship and Protective Proceedings Jurisdiction Act
Diane Boyer-Vine reported that the California Law Revision Commission is reviewing the act.
• Collaborative Law
Diane Boyer-Vine and Nat Sterling reported that they had spoken with staff from the Judiciary Committees a few years ago and there was no support for the uniform act. Marty Carr volunteered to check with collaborative law attorneys and find out if there is any interest in the uniform act.
• Certificate of Title for Vessels Act
No discussion.
• Emergency Volunteer Health Practitioners Act
Diane Boyer-Vine reported that Assembly Member Berg introduced this bill on her own and it did not pass.
• Real Property Electronic Recording
After a brief discussion about which groups support and oppose the act, the Commission decided to conduct outreach to interested parties and present findings at the Commission’s 2013 Fall meeting. Marty Carr volunteered to contact interested parties.
• Trust Code
Nat Sterling explained that the Trust Code is drawn from California law. The uniform act is similar to California law, but differs in many respects. Nat will talk to the State Bar Trusts and Estates Section about its attitude towards the uniform act.
• Unsworn Foreign Declarations
Diane Boyer-Vine explained that this uniform act is based on California law and Bob Cornell explained that Californians actually have more protection under California law than the uniform law. Diane told the Commission that she is talking with ULC staff and is trying to get California credit for having passed this act.
• Athlete Agents
Diane Boyer-Vine reported that this act has been introduced three times in California under three different Governors and has never passed. Diane recommended not trying again.
• Uniform Choice of Court Agreements Convention Implementation Act
Dan Robbins told the Commission that this is the implementation of the Hague Convention. He and Bob Cornell explained the purpose of the act. Dan also told the Commission that there is a dispute in the U.S. Senate resulting in a breakdown in negotiations. If the breakdown in the U.S. Senate is resolved, Dan Robbins and Bob Cornell will work together to try and get it passed in California.
• Uniform Deployed Parents Custody and Visitation Act
Diane Boyer-Vine volunteered to compare the uniform act with existing California law and the Commission can review it next year.
The following uniform acts will be added to the agenda for the CCUSL Fall 2013 meeting to be discussed for possible introduction in the second half of the 2013-2014 legislative session:
Real Property Electronic Recording
Collaborative Law
Trust Code
Uniform Deployed Parents Custody and Visitation Act
Uniform Manufactured Housing Act
To prepare for discussing these uniform acts at the Fall 2013 meeting, Commissioners should determine which interest groups should be invited. Diane Boyer-Vine told Commissioners that if they have a concept of a group to invite, she can help identify a representative.
5. Process for making sure Commission hears all sides before introducing legislation
Nat Sterling stated that it is important to hear from all interested parties before deciding whether to introduce a uniform act in California. He emphasized that the Commission must make an informed decision when it decides to introduce and advocate a bill.
There was discussion about the situation where pending legislation to enact a uniform law is not sponsored by CCUSL. The Commission may be asked to support the bill, but it is difficult for the Commission to do this so late in the process. Nat suggested that in an unusual case the Commission may want to have a teleconference meeting to discuss whether to support the bill. But in the ordinary case, the Commission will not take a position on such a bill, not having had the chance to fully consider and debate its merits at a regular Commission meeting. That would not preclude an individual Commissioner from taking a personal position on the bill, but in that case the Commissioner should make clear that is the Commissioner’s personal position and not necessarily that of the California Commission, which has not taken a position on the bill.
6. Commission/Legislature relations
Nat Sterling expressed concern that the California Commission is not well-known and the Legislature does not know what we do. Elihu Harris commented that the Legislature is transitory, and it is important that the Legislature be kept informed about the work and benefits of the California Commission and get their support.
Diane Boyer-Vine explained that she takes the CCUSL flyer to “meet and greet” appointments with new Members. It was suggested to consider having a “legislative day” when Commissioners can meet with legislators and staff and promote the California Commission. Diane Boyer-Vine volunteered to organize “meet and greet” appointments with the Chairs of the Senate and Assembly Judiciary Committees when new Chairs are named.
Diane also pointed out that uniform laws often are not favorably received when heard in legislative committees. The Commission agreed that legislators should be educated about the principles of “federalism” – the benefit of having state legal control of an area that enables it to avert federal preemption. Nat Sterling asked that a short description about the federalism benefit of uniform laws be included in the CCUSL brochure and on the CCUSL web site.
Dan Robbins distributed copies of a CD that was produced by the national Uniform Law Conference. It was suggested that they could be useful when promoting uniform laws.
7. Adoption of Procedural Manual
Nat Sterling drafted a CCUSL Procedural Manual so procedures adopted by the California Commission could be more easily referenced. Nat asked the Commission to adopt the manual and noted that it would be revised periodically.
Revisions were recommended before adopting the manual: renumber code sections to reflect newly-enacted legislation; revise language pertaining to FPPC; correct miscellaneous typographical errors.
A motion was made and seconded to adopt the CCUSL Procedural Manual, with revisions. The manual was adopted.
8. Other administrative matters
Dan Robbins told the Commission that he was contacted by Anita Ramasastry of the national ULC about the Uniform Deceptive Trade Practices Act. Dan wanted to check with the Commission about any known problems with the act before talking with her.
Diane Boyer-Vine explained why the UCC 9 bill must be an urgency bill.
Since the CCUSL email box receives no emails, other than spam, Diane Boyer-Vine recommended eliminating it. There was discussion that the public should have access to the Commission via email. A decision was made to add a “Comment Box” on the CCUSL web site and questions and comments would be directed to Nat Sterling for response.
Dave Clark reminded Commissioners to send suggestions for uniform acts and studies of subjects to the ULC Scope and Program Committee.
The meeting was adjourned at 2:30 p.m.
Respectfully submitted,
Susan Ballew