UNSWORN DECLARATIONS S.B. 688 & 689: COMMITTEE SUMMARY
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Senate Bills 688 and 689 (as introduced 9-20-11)
Sponsor: Senator Tonya Schuitmaker
Committee: Judiciary


Date Completed: 10-11-11

CONTENT Senate Bill 688 would amend the Michigan Penal Code to specify that the penalty for perjury for willfully swearing falsely in an oath would apply to a person who willfully made a false declaration in a signed record.


Senate Bill 689 would add Chapter 21A, the "Uniform Unsworn Foreign Declarations Act", to the Revised Judicature Act (RJA). Chapter 21A would apply to an unsworn declaration by a declarant who was physically located outside the boundaries of the United States and its territories or insular possessions, whether or not the location was subject to U.S. jurisdiction. The chapter would do all of the following:

-- Specify that an unsworn declaration meeting the requirements of Chapter 21A would have the same effect as a sworn declaration.
-- Provide that the chapter would not apply to a deposition or certain oaths or declarations.
-- Describe the form required of an unsworn declaration under the chapter.
-- Require an unsworn declaration to be in the particular medium, if any, required for a sworn declaration under Michigan law.
-- Specify that Chapter 21A would modify, limit, and supersede the Federal Electronic Signature in Global and National Commerce Act, except for certain purposes.


The bill also would amend Chapter 21 (Evidence) of the RJA to delete a provision for authentication by a consul general of an affidavit taken outside of the United States.

The bills are tie-barred and would take effect on July 1, 2012.

Senate Bill 688
The Penal Code provides that any person authorized by a Michigan statute to take an oath, or any person of whom an oath is required by law, who willfully swears falsely in regard to any matter or thing respecting which the oath is authorized or required, is guilty of perjury. The felony is punishable by up to 15 years' imprisonment.


Under the bill, the prohibition and penalty also would apply to a person who willfully made a false declaration in a record that was signed by the person and given under penalty of perjury.

"Record" would mean information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form. "Signed" would mean the person did either of the following to authenticate or adopt the record:

-- Executed or adopted a tangible symbol.
-- Attached to or logically associated with the record an electronic symbol, sound, or process.

Senate Bill 689
Uniform Unsworn Foreign Declarations Act


Chapter 21A would apply to an unsworn declaration by a declarant who, at the time of making the declaration, was physically located outside the boundaries of the United States whether or not the location was subject to U.S. jurisdiction. The chapter would not apply to a declaration by a declarant who was physically located on property that was within the boundaries of the United States and subject to the jurisdiction of another country or a federally recognized Indian tribe.

"Unsworn declaration" would mean a declaration in a signed record that is not given under oath, but is given under penalty of perjury. "Boundaries of the United States" would mean the geographic boundaries of the U.S., Puerto Rico, the U.S. Virgin Islands, and any territory or insular possession subject to the jurisdiction of the United States.


If a Michigan law required or permitted use of a sworn declaration, an unsworn declaration meeting the requirements of Chapter 21A would have the same effect as a sworn declaration.


Chapter 21A would not apply to any of the following:

-- A deposition.
-- An oath of office.
-- An oath required to be given before a specified official other than a notary public.
-- A declaration to be recorded with a register of deeds.
-- An oath required by Section 2504 of the Estates and Protected Individuals Code (which governs self-proved wills).


If a Michigan law required that a sworn declaration be presented in a particular medium, an unsworn declaration would have to be presented in that medium.


An unsworn declaration under Chapter 21A would have to be in substantially the form outlined in the bill.


In applying and construing Chapter 21A, consideration would have to be given to the need to promote uniformity of the law with respect to its subject matter among the states that enact the Uniform Unsworn Foreign Declarations Act.


Chapter 21A would modify, limit, and supersede the Federal Electronic Signature in Global and National Commerce Act (15 USC 7001 to 7031). It would not modify, limit, or supersede Section 101(c) of that Act or authorize electronic delivery of any of the notices described in Section 103(b) of the Act. (Section 101(c) deals with consumer disclosures and rights in the use of electronic records and signatures in commerce. Section 103(b) provides that the use of electronic records and signatures in commerce does not apply to certain court orders or notices; the cancellation or termination of utility services; certain actions under a credit agreement including default, repossession, foreclosure, or eviction; the cancellation or termination of health insurance or benefits or life insurance benefits (excluding annuities); product recalls; or any document required to accompany any transportation or handling of hazardous materials, pesticides, or other toxic or dangerous materials.)


Authentication of Affidavit


 Under the RJA, if by law the affidavit of a person residing in another state or in any foreign country is required or may be received in judicial proceedings in Michigan, in order to entitle the affidavit to be read, it must be authenticated either by a judge as having been taken and subscribed before him or her, or by the consul general, deputy consul general, or some consul or deputy consul of the United States resident in the foreign county, to have been taken and subscribed before him or her.


The bill would delete the provision for authentication by a consul general, deputy consul general, or other consul.


MCL 750.423 (S.B. 688) Legislative Analyst: Patrick Affholter 600.2102 et al. (S.B. 689)

FISCAL IMPACT
The bills would have no fiscal impact on State or local government.

Fiscal Analyst: Matthew Grabowski

Analysis was prepared by nonpartisan Senate staff for use by the Senate in its deliberations and does not constitute an official statement of legislative intent. sb688&689/1112