PAGENO="0001" Ti/if _JL(O; J~)1~ LAW REVISION COMMISSION FOR THE DISTRICT OF COLUMBIA ~ HEARING BEFORE THE SUBCOMMITTEE ON THE J~UDICIARY OF THE COMMITTEE ON THE DISTRICT OF COLUMBIA HOUSE OF REPRESENTATIVES NINETY-THIRD CONGRESS FIRST SESSION ON H.R. 7412 and H.R. 7658 TO ESTABLISH A LAW REVISION COMMISSION FOR THE DISTRICT OF COLUMBIA, AND FOR OTHER PURPOSES JULY 11, 1973 Printed for the use of the Committee on the District of Columbia US GOVE~NT P~N~NG OFFICE c?4~::'~~l' /j/~~~_/ I Ti PAGENO="0002" DONALD M. FRASER, Minnesota W. S. (BILL) STTJCKEY, JR., Georgia RONALD V. DELLUMS, California THOMAS M. REES, California BROCK ADAMS, Washington WALTER E. FAUNTROY, District of Columbia JAMES J. HOWARD, New Jersey JAMES R. MANN, South Carolina ROMANO L. MAZZOLI, Kentucky LES ASPIN, Wisconsin CHARLES B. RANGEL, New York JOHN BRECKINRIDGE, Kentucky FORTNEY H. (PETE) STARK, California ANCHER NELSEN, Minnesota WILLIAM H. HARSHA, Ohio JOEL T. BROYHILL, Virginia GILBERT GUDE, Maryland HENRY P. SMITH III, New York EARL F. LANDGREBE, Indiana STEWART B. McKINNEY, Connecticut STEVEN D. SYMMS, Idaho WILLIAM M. KETCHUM, California GENE TAYLOR, Missouri E. G. SHUSTER, Pennsylvania COMMITTEE ON THE DISTRICT OF COLUMBIA CHARLES C. DIGGS, Ja., Michigan, Chairman DOROTHY E. QUARKER, Chief of staff ROBERT B. WAsHINGTON, Jr., Ch4ef Counsel JOHN E. HOGAN, Minority Counsel SUBCOMMITTEE ON THE JuDICIARY WALTER E. FAUNTROY, District of Columbia, Chairman THOMAS M. REES, California HENRY P. SMITH III, New York JAMES R. MANN, South Carolina WILLIAM H. HARSHA, Ohio CHARLES B. RANGEL, New York WILLIAM M. KETCHUM, California JOHN BRECKINRIDGE, Kentucky E. G. SHUSTER, Pennsylvania (II) PAGENO="0003" CONTENTS Page H.R. 7412 1 H.R. 7658 STATEMENTS Aaronson, Prof. David E., American University Law School 144 Diggs, Hon. Charles C., Jr., a U.S. Representative in Congress from the State of Michigan 18 Lazar, J., Institute of Law and Society, University of Colorado 63 MacDonald, Hon. John, Chairman, New York State Law Review Com- mission 40 Murphy, C. Francis, Corporation Counsel for the District of Columbia~ 21 Nelsen, Hon. Ancher, a U.S. Representative in Congress from the State of Minnesota, as presented by John Hogan, Minority Counsel 20 Reilly, Hon. Gerald D., Chief Judge, D.C. Court of Appeals, accompanied by Hon. Frank Q. Nebeker, Associate Judge 29 Wahlen Frank, Esq., of Spencer, Whalen & Graham 53 Wilson, Dorothy, D.C. Bar Association 169 MATERIAL SUBMITTED FOR THE RECORD "Pennsylvania General Rules of Practice and Procedure-A Surprising By-Product of a State Register System," article by William E. Zeiter - 5 Washington, Hon. Walter E., Mayor, letter to Congressman Diggs, dated Julyll,1973 27 SUMMARY OF HEARING Administrative Law 48 Administrative Procedure 59 Administrative Procedure Act 32 Amendments Proposed 22,33,58,161 Background of D.C. Law 29 Background of New York Commission 41 Benefits of Commission 60 Codification of Code 24 Codifying of D.C. Code 36 Commission's Budget 48 Commission Composition: 163 Compensation 159,167 Consultants 47,159 Court Procedures 30 Criminal Code 160,165 D.C. Code 23,59,62 D.C. Code Provisions 31 H.R.7412and11.R.7658 19,32,57 Lifeof Commission 23,26,35,52,159,168 Need for Commission 55 New York Commission 56 New York Commission Procedure 42 New York Commission's 40 Years 44 New York Court Cases 43 Non-Lawyers 35,45,63,65,163 Pending Legislation 20 Recommendations 64, 170 Reorganization Plan of 1967 30 Report of New York Law Revision Commission: 1969 67 1971 100 1972 116 Scope of Commission 22,34,46,49,54,60,143,160,164 Scope of Commission Work 24 State Law Revision Commissions 64 (Ill) PAGENO="0004" PAGENO="0005" LAW REVISION COMMISSION FOR THE DISTRICT OF COLuMBIA WEDNESDAY, JULY 11, 1973 HOUSE or REPRESENTATIVES, SUBCOMMITTEE ON JUDICIARY OF THE COMMITTEE ON THE DISTRICT OF COLUMBIA, Wa~s1th~gton, D.C. The subcommittee met, pursuant to notice, at 2:15 p.m., in room 1310, Longworth House Office Building, Hon. Walter E. Fauntroy, chair- man of the subcommittee [presiding]. Present: Representatives Fauntroy [presiding], Diggs chairman of the Full Committee, Breckinridge, and Nelsen. Also present: Dorothy E. Quarker, chief of staff; Robert B. Wash- ington, chief counsel; Harley Daniels, subcommittee counsel; James Clark, legal consultant; Daniel Freeman, staff counsel; and John E. Hogan, minority counsel. Mr. FAUNTROY [presiding]. The committee hearing will come to order. I have convened this meeting of the Judiciary Subconmiittee today for the purpose of hearing testimony on both H.R. 7412, introduced by Chairman Diggs, and H.R. 7658, introduced by Mr. Nelsen. The bills referred to follow: [H.R. 7412, 93d Cong., 1st seas. by Mr. Diggs on May 2, 1973] A BILL To create a Law Review Commission for the District of Columbia Be it enacted by the senate and House of Representatives of the United ~1tates of America in Congress assembled, That a Law Review Commission is hereby created to consist of the Chairman of the United States House of Rep- resentatives Committee on the District of Columbia or his designee, the Chair- man of the United States Senate Cpmmittee on the District of columbia or his designee, the Corporation Counsel of the District of Columbia, the Chair- man of the City Council of the District of Columbia, and five additional mem- bers to be appointed by the Mayor. The members first appointed by the Mayor shall be appointed for such terms that the term of one member will expire on each succeeding thirty-first day of December. The term of a member thereafter appointed, except to fill a vacancy occurring otherwise than by expiration of a term, shall be five years from the expiration of the term of his predecessor. A vacancy in the office of a member appointed by the Mayor occurring otherwise than by expiration of a term shall be filled by the Mayor only for the re- mainder of the term. The Mayor shall designate one of the appointed members as the Chairman of the Commission. Upon the appointment of a successor to the Chairman of the Commission, the Mayor shall designate such successor or other member of the Commission as the Chairman. Three members appointed by the Mayor shall be attorneys and counselors at law who are members of the District of Columbia Bar, and at least one of them shall be a member of a law faculty of a law school within the District of Columbia. (1) PAGENO="0006" 2 DUTIES OF THE COMMISSION SEC. 2. It shall be the duty of the Law Review Commission: (a) To examine the common law and statutes of the District of Columbia and current judicial decisions for the purpose of discovering defects, anachro- nisms, and inequities in the law and recommending reforms to correct them. (b) To receive and consider proposed changes in the law rceommended by the American Law Institute, the commissioners for the promotion of uniformity of legislation in the United States, any bar association, or other learned body. (c) To receive and consider suggestions from judges, justices, public officials, lawyers, community leaders and organizations, and the general public as to proposals for reforms in the law. (d) To recommend such changes in the law as it deems necessary and desir- able to modify or eliminate antiquated or inequitable rules of law, and to bring the law of the District of Columbia, both civil and criminal, into harmony with modern conditions. (e) To report its proceedings anr~ually to the legislature, and if it deems advisable, to accompany its report with proposed legislation to effectuate its recommendations. POWERS OF THE COMMISSION SEC. 3. (a) The Commission, acting through its Ohairman, is authorized to request from any department, agency, or instrumentality of the executive branch of the Federal and District Governments, including independent agencies, any information for carrying out the purposes of this Act; and each department, agency, instrumentality, and independent agency is authorized and directed, to the extent permitted by law, to furnish to the Commission the requested information. (b) The Commission, or subject to such rules and regulations as may be adopted by the Commission, the Chairman, shall have the power to appoint and fix the compensation of an Executive Director, and such additional staff personnel as are necessary, without regard to the provisions of title 5, United States Code, governing appointments in the competitive service, and without regard to the provisions of chapter 51 and subchapter III of chapter 53 of such title relating to classification and General Schedule pay rates, but at rates not in excess of the maximum rate for GS-18 of the General Schedule under section 5332 of such title. (c) The Commission shall have the power to procure temporary and inter- mittent services to the same extent as is authorized by section 3109 of title 5, United States Code, but at daily rates for individuals not in excess of the maximum daily rate for GS-18 of the General Schedule under section 5332 of such title. (d) The Commission is authorized to enter into contracts with Federal or State agencies, private firms, institutions, and individuals for the conduct of research or surveys, the preparation of reports, and other activities necessary to the discharge of its duties. COMPENSATION OF COMMISSION MEMBERS SEC. 4. (a) Full-time officers or employees of the United States or the District of Columbia shall receive no additional compensation on account of their service on the Commission. The other members of the Commission shall be entitled to receive compensation for each day they are engaged in the actual performance of their duties as members of the Commission at the rate now or hereafter provided for grade GS-18 of the General Schedule for employees under subchapter III of chapter 53 of titleS, United States Code. (b) While traveling on official business in the performance of service for the Commission, members of the Commission shall be allowed expenses for travel, including per diem instead of subsistence, in accordance with subchapter 1 of chapter 57 of titleS, United States Code. APPROPRIATIONS AUTHORIZED SEC. 5. For the purpose of carrying out this Act, there are authorized to be appropriated, out of moneys in the Treasury not otherwise appropriated, such amounts as may be necessary to carry out the purpose of this Act. PAGENO="0007" 3 [H.R. 7658, 93d Cong., 1st sess. by Messrs. Nelsen and Fuqua on May 9, 1973] A BILL To establish a law revision commission for the District of Columbia, and for other purposes Be it enacted by the senate and House of Representatives of the United states of America in Congress assembled, That this Act may be cited a's the "District of Columbia Law Revision Commission Act of 1973". SEC. 2. (a) There is established for the District of Columbia a District of Columbia Law Revision Commission (hereafter in this Act referred to as the "Commission") which shall consist of fifteen members appointed as follows: (1) Two members, each shall be appointed by the Commissioner of the District of Columbia, the Chairman of the District of Columbia Council, the District of Columbia Corporation Counsel, and the United States attorney for the Dis- trict of Columbia. (2) One member, each shall be appointed by the Speaker of the House of Repre- sentatives, the leader of the majority party in the Senate, the leader of the minority party in the House of Representatives, the leader of the minority party in the Senate, the Chief Judge of the Superior Court of the District of Colum- bia, and the chief judge of the District of Columbia Court of Appeals. (3) One member, who shall be the Chairman of the Commission, shall be appointed by the President, with the advice and consent of the Senate. (b) All persons appointed to the Commission shall be attorneys who have been admitted to practice either in the District of Columbia or in any of the several States. Each appointment shall be made, without regard to political party affiliation, on the basis of the ability of that person to perform his duties with the Commission. (c) The members first appointed to the Commission under subsection (a) (2) shall be appointed to serve for a term expiring on the first March 31st occurring after the date of enactment of this Act. The members first appointed under sub- section (a) (1) shall be appointed to serve for a term expiring on the second March 31st occurring after the date of enactment of this Act. Thereafter each member, except the chairman, shall be appointed to serve a two-year term or, in the event the Commission is not extended as provided in section 4, until the expiration of the Commission, and in any case may not serve more than two full consecutive terms. (d) The Chairman of the Commission shall have the same qualifications, and shall be appointed on the same basis, as a member of the Commission. The Chairman shall serve `for a four-year term or, in the event the Commission is not extended as provided in section 4, until the expiration of the Commission and in any case may not serve more than two full consecutive terms. (e) Appointments made to fill vacancies on the Commission shall be made in the same manner, and on the same basis, as original appointments to the Com- mission are made. A member, including a chairman, appointed to fill a vacancy shall serve only until the expiration of the term of the member, or chairman, whose vacancy he was appointed to fill. (f) Each member and the chairman of the Commission shall be entitled to receive $100 for each day (including traveltime) during which they are engaged in the actual performance of duties vested in the Commission, except no member chairman shall `receive more than $3,000 for the performance of such duties during any tweh c-month period. PAGENO="0008" 4 (g) While away from their homes or regular places of business in the per- formance of the duties of the Commission, members, including the chairman, of the Commission shall be allowed travel expenses, including per diem in lieu of subsistence, in the same manner as persons employed intermittently in the Government service are allowed expenses under section 5703 (b) of title 5 of the United States Code. (h) The Commission may appoint and fix the compensation of such personnel as it deems advisable. Such personnel shall be appointed subject to the provi- sions of title 5 of the United States Code, governing appointments in the com- petitive service, and shall be paid in accordance with the provisions of chap- ter 51 and subchapter II of chapter 53 of such title relating to classification and General Schedule pay rates. Persons appointed to the staff of the Commission shall be so appointed solely on the basis of their ability to perform the duties of the Commission without regard to political party affiliation. SEC. 3. (a) It shall be the duty of the Commission to- (1) examine the common law and statutes relating to the District of Columbia, the ordinances and regulations of the District of Columbia Coun- cil, and all relevant judicial decisions for the purpose of discovering defects and anachronisms in the law relating to the District of Columbia and recommending needed reforms; (2) receive and consider proposed changes in the law recommended by the American Law Institute, the Commissioners for the Promotion of Uni- formity of Legislation in the United States, any bar association or other learned bodies; (3) receive and consider suggestions from judges, justices, public officials, lawyers, and the public generally as to defects and anachronisms in the law relating to the District of Columbia; and (4) recommended, from time to time, to the Congress, and where appro- priate to the Commissioner of the District of Columbia and the District of Columbia Council, such changes in the law relating to the District of Columbia as it deems necessary to modify or eliminate antiquated and in- equitable rules of law, and to bring the law relating to the District of Colum- bia, both civil and criminal, into harmony with modern conditions. (b) In addition to those duties of the Commission specified in subsection (a), the Commission shall prepare and recommend proposed uniform rules of prac- tice, including rules relating to the conduct of hearings, for administrative agen- cies of the District of Columbia, including both independent and subordinate agencies, which conduct on-the-record hearings. The Commission shall also make a study of the District of Columbia Administrative Procedure Act for the purpose of preparing a manual, including relevant legislative history and legal precedence, for the guidance of the respective administrative agencies. SEC. 4. (a) The Commission shall make an annual report of its proceedings to the President, to the Congress, to the Commissioner of the District of Columbia, and to the District of Columbia Council by March 31 of each year. All reports of the Commission to the Congress, including reports made under section 3(a) (4), shall be filed with the Qlerk of the House of Representatives and the Secretary of the Senate and, where appropriate, include drafts of proposed bills to carry out any of its recommendations. (b) Upon the filing of the Commission's annual report at the end of the fourth full calendar year after the date of the enactment of this Act, the Commission shall cease to exist, unless extended by Congress. PAGENO="0009" 5 Each bill proposes the establishment of a Law Revision Commission for the District of Columbia. The establishment of a Law Revision Commission is one of the recommendations of the Nelsen Commission. The Nelsen Commission Report emphasizes the need for an independ- ent agency to review the common law and statutes and to discover anachronisms and defects in the law, as well as to bring the District of Columbia code into conformity with current judicial decisions. Presently, the Corporation Counsel, as chief legal officer, is em- powered to undertake the general duties of the proposed Law Revi- sion Commission. However, this arrangement has not been satisfactory, because the Corporation Counsel has little time and inadequate re- sources to engage in any serious, in-depth study of the law for the pur- pose of law reform. Therefore, the Law Revision Commission could fulfill thes3 respon- sibilities and ease the burden of the Corporation Counsel. The two bills which are under consideration by the subcommittee are similar in nature, but their differences raise a number of issues, such as the number of members to serve on the Commission, their terms of service, and the jurisdiction of the Commission to consider uniform rules of practice before administrative agencies. it is my pleasure to welcome our visitors, our witnesses, and I want to extend a special greeting to Dr. J. Lazar from Colorado, and Prof. John McDonald from New York, who have traveled so far to be with us here today. At the outset of the hearing, without objection, I shall insert into the record an article by William E. Zeiter, entitled "Pennsylvania General Rules of Practice and Procedure-A Surprising By-Product of a `State Register System." [The article referred to follows:] [23 Administrative Law Review 27.5 (1971)1 PENNSYLVANIA GENERAL RULES OF PRACTICE AND PROCEDURE-A SumPRIsING BY-PRODUCT OF A STATE REGISTER SYSTEM (By William E. Zeiter, member of the Pennsylvania and District of Columbia J3ars; Public Member and Secretary of the Pennsylvania Joint Committee on Documents) For many years administrative law practitioners on both federal and state levels have treated the subject of uniform rules of agency practice and procedure like the weather-everyone talks about the subject but there have been few (and generally unsuccessful) attempts to do anything about it. The situation would probably be the same in Pennsylvania if any direct attempt had been made to introduce uniform rules as an independent project based on the intrinsic merit of the concept. Instead Pennsylvania in 1971 adopted a compre- hensive set of General Rules of Administrative Practice and Procedure as a by- product of implementation of a documents program patterned after the Code of Federal Regulatiams and the Federal Register. COMMONWEALTH DOCUMENTS LAW Interest in a document publication program in Pennsylvania spans more than a generation. Beginning in the late 1930's the Joint State Government Commission (a re- search arm of the General Assembly), in conjunction with the Civil Procedural Rules Committee of the Pennsylvania Supreme Court and the Pennsylvania Bar Association, undertook a comprehensive study of the then existing practice and procedure before the various Commonwealth administrative tribunals. By 1942 appropriate `bills had been drafted, which were recommended the next year to the General Assembly by the Joint `State Government Commission. PAGENO="0010" 6 The Commission made the following recommendations (1943 Leg. Jour. 4487) "1. An official medium, `similar to the Federal Register, should be estab- lished within this Commonwealth for the publication of rules, regulations, etc., in force and those adopted from `time to time. "2, The Register shall be under the direction of the Director of the Legis- lative Reference Bureau who shall consult with administrative agencies as to the form and substance of intended rules and regulations. "3. Notice of the intended adoption of new general rules and regulations affecting `the rights and privileges of persons outside *of the agency shall be given in the register and opportunity for public hearing had thereon. The existence of an emergency shall justify waiver of the above .position. "4. The Joint State Government Commission which is composed of mem- bers of the General Assembly shall have the power after conference with the agency to nullify any~ rule or regulation in whole or in part if, in its opinion, `there is a violation of the intent of an act of the General Assembly. "5. Every person aggrieved `by a rule or regulation shall have the right of appeal therefrom to a court of record, but no such rule or regulation shall be decl'ared invalid unless it was improperly adopted or is in violation of the Federal or `State Constitutions." The Join't State `Government Commission's report noted tha't the Pennsyl- vania Bar Association did not concur in recommendation No. 4 relating to legislative veto of regulations. The 1945 `Session enacted both the "Administrative Agency Law," (P.L. 1388), and the `Pennsylvania Register Act" (P.L. 1392). As enacted, the `bills in- corporated only the first two recommendations of the Joint `State Government Commission, omitting the latter `three. The Administrative Agency Law pro- vided in general that no regulation should be valid unless published in `the Pennsylvania Register within 45 days after adoption. The Legislative Reference Bureau proceeded to codify all regulations and, despite the post-war paper shortage, published in June of `1946, a 1,167-page bound volume. In October and December 1946, and in February, 1947 (bound with the December issue), paperbacked `supplements `to this volume were issued. The first `bound volume represented about one-half the projec't, and a volume containing building standards and public utility regulations was scheduled to complete the work. `Such a volume never appeared, however, because the whole project was terminated by the absolute repeal of the Pennsylvania Register Act by the act of July 3, 1947 (P.L. 1245). Contemporary reports attribute this action to the opposition of state agencies and the physical impossibility of expediting the printing of the proposed second bound volume. As a `substitute measure the Administrative Agency Law was amended by the act of July 7, 1947 (P.L. 1367) to provide that regulations would be of no effect unless printed and made available upon written request within 30 days after adoption. The General Assembly went further and referred the whole administrative procedure matter, including the question of codification of regulations, back to the Joint State Government `Commission. In 1948 the Pennsylvania Bar Association adopted a resolution urging `the `Commission "to re-establish either the Pennsylvanj.a Register or some other satisfactory medium for publication of regulations." The `Commission's March 1949 report (1949 Leg. Jour. 6026) recommended that: "2. Regulations of each such administrative agency (1) be certified on behalf of `the agency, (2) be approved as to legality by the Department of Justice, (3) be filed with the Department of State in the form and size prescribed by `the Department of State and (4) copies be made available by the agency free of charge upon request. "3. The Department of `State (1) keep a permanent record of all regulations filed with it, (2) prepare and maintain an index of `all such regulations to be available for inspection, and (3) furnish certified copies of any regulation upon payment of a proper charge." `The Commission's recommendations ultimately were enacted as the act of September 28, 1951 (P.L. Th61), with further revisions elimin'ating the 1947 reqmrement that all regulations be printed. The 1951 act was a dead letter. A decade later the Pennsylvania Bar Associ- ation reported `that no manuscript index existed in the Department of State, much less a published work; that the files were hopelessly out of date, with PAGENO="0011" 7 obsolete regulations mixed in with the current; and that formal demands upon agencies for a free copy of their regulations in some cases produced only sug- gestions that photocopies be purchased from the Department of State at 65 cents per page. This condition resulted in renewed interest in the General Assembly. Accord- ingly, in the closing days of the 1962 Session the General Assembly under bipartisan sponsorship resolved: "Many rules and regulations issued by administrative agencies of the Oominonwealth of Pennsylvania have the force of law in their effect on indi- viduals and business as fully as the statute law. "Since almost all administrative rule-making authority is legislative in nature and its exercise by administrative agencies is derived from the General Assembly, adequate review over the exercise of this authority is an important phase of the lawmaking function of the General Assembly: therefore be it "Resolved (the Senate concurring), That each administrative department, board and commission (except the Public Utility Commission), is hereby di- rected to file within sixty (60) days with the Legislative Reference Bureau a copy of all rules and regulations issued by their respective agencies which are now in force, together with the citation of the statutory authority for the rule or regulation; and be it further "Resolved, That the Legislative Reference Bureau, with such additional technical assistance as may be required, is hereby instructed to compile and codify by department, board and commission: "(a) All formal rules and regulations issued and required by law to be filed with the Secretary of the Commonwealth; "(b) All formal rules and regulations issued but not required by law to be filed with the Secretary of the Commonwealth; "(c) All formal and informal rules, regulations and administrative rules issued under the authority of and pursuant to any statute." The documents were filed as required and the Legislative Reference Bureau prepared a manuscript Code, comprising 50 titles. The next step was taken at the 1963 Session, which enacted the act of June 26, `1963 (P.L. 180), amending the Administrative Agency Law to require all regulations (including those of the Pennsylvania Public Utility Commis- sion, which were excluded from the Resolution) adopted after September 1, 1963, to be approved by the Department of Justice as to legality, to be printed or reproduced by the adopting agency and made available for public distri- bution upon request, and to be filed with the Legislative Reference Bureau. The prior requirement of filing with the Department of State was continued. This amendment ensured that the Legislative Reference Bureau's manu- script code was kept up-to-date, but it failed to provide either for regulations issued during the hiatus between the 1962 effective date of the Resolution and the 1963 effective date of the amendment, or for the fact that the Resolu- tion had omitted the many important regulations of the Public Utility Commission. While the manuscript code doubtless was quite useful to those in Harrisburg who took the trouble to seek out the Bureau's copy, the code could not fulfill its urgent functions until it had been published and incorporated into, a system which ensured tI~at the published text is both authoritative and up-to-date. To accomplish this result the Section on Administrative Law of the Pennsyl- vania Bar Association drafted a proposal bill, the "Public Documents Law" and accompanying report (36 P.B.A. Quarteriy 99). The bill and accompanying report were unanimously approved by the Association at its 1965 winter meeting. The report noted that the adoption of a system for the centralized publication of administrative regulations stems from a recognition of two elemental principles of governments (36 P.B.A. Quarteriy 101): "First. A valid and enforceable regulation is nothing less than `a law. A regu- lation therefore, as any law, has two essential offices. It must deter undesirable conduct and encourage desirable conduct, `and it must form a constitutional and effective `basis for the punishment of those who violate its terms. However, it is obvious that a regulation which remains for all practical purposes `lodged in the bosom of the `agency which adopted it constitutes an unstegdy foundation for the punishment of those who unknowingly violate it, and wholly fails to perform its principal function of shaping public conduct in a socially desirable direction. "Second. Dollar-for-dollar, the sums spent for the publicity of an agency's regu- lations and statements of policy are the most efficient dollgrs spent by the agency PAGENO="0012" 8 in the enforcement of its policies. Indeed in sharp contrast, the customary practice in this Commonwealth, whereby agency time and money is expended to detect violations of the agency's privately circulated regulations, followed by the mail- ing to the violator of a copy of the regu1~ation and a demand for compliance there- with, is as inefficient a use of public funds as it is unfair to the unwitting violator." The bill ultimately was enacted as the Commonwealth Documents Law, act of July 31, 1968 (No. 240) (45 P.S. 1101 et seq.) ("CDL"). The publications issued under the CDL are divided into three types. The principal publication, of course, is the Pennsylvania Code, which corre- sponds roughly to the Code of Federal Regulations. The Pennsylvania version is broader, however, in that it is a residual publication codifying, in addition to administrative regulations, all documents (other than statutes) which have the force of law, e.g., rules of the Senate and House of Representatives, court rules and other judicial documents of a regulatory nature (such as the Code of Pro-~ fessional Responsibility), home rule charter documents, etc. The Code is a loose-leaf service and is supplemented by a quarterly Pennsyl- vania Code Reporter which serves as a vehicle for the distribution of additional or superseding loose-leaf pages. Current information is provided in a weekly official gazette entitled the Pennsylvania Bulletin,1 closely patterned after the Federal Register, which carries notices of proposed rule m~king, notices of hearing and other matters in addition to the text of newly adopted rules. When the Pennsylvania Code was in the planning stage a number of sources questioned the advisability of a loose-leaf system on the ground that it would be difficult to establish the legal validity of a given regulation ~it a given time in view of the destruction of superseded pages, misfiling of pages, etc. However, several relatively simple techniques permitted the use of the loose-leaf system with complete assurance of the integrity of the system. As each new or changed page is made up it is assigned a unique serial number, e.g., "(2014)", which is printed on the corner of the page. Each title of the Code is preceded by a Title Transmittal Sheet consisting of several pages which con- tain a table in page number order giving the serial numbers of the current version of each page in the title. The first page of the Title Transmittal Sheet advises of the serial numbers of the pages making up the Title Tr~tnsiuittal Sheet itself, so as to cover the possibility that a page may be missing from the title transmittal sheet. Of course, a particular title may be in use for several years without an ~imend- ment, and the reader must be afforded a method whereby he can determine whether `his copy of the title contains the latest available supplemental pages, i.e., whether his copy has been supplemented through the latest available Title Trans- mittal Sheet for the title in question. Thus, preceding Title 1 of the Code is a "Master Transmittal `Sheet" (incorporated into the Pennsylvania Code Reporter for the current quarter) which consists of several pages containing a table in title number order setting forth for each title the identifying number and date of issue of the most recent Title Transmittal Sheet issued for each title. Next, to advise the user whether his Master Transmittal Sheet is the latest available, each weekly issue of the Pennsylvania Bulletin contains a notice on the reverse of the front cover stating the identifying number and issue date of the most recent Master Transmittal Sheet (i.e., Pennsylvania Code Reporter). Finally, no administrative regulation or change therein is valid for any pur- pose until filed by the Legislative Reference Bureau as required by CDL ~ 207, 208 and 409 (45 P.S. ~ 1207, 1208 and 1409) and no filed document required to be published in the Code (except a rule of court) is valid against any persen who has not had actual knowledge thereof until the Pennsylvania Bulletin containing such document has been deposited in the United States mail for distribution.2 Thus by definition, no administrative regulation has the effect of law until published in the Bulletin; the Bulletin advises of the current Master Transmittal Sheet; the current Master Transmittal Sheet identifies the latest Title Trans- mittal Sheet; `and the latest Title Transmittal Sheet specifies the serial numbers of all currently effective pages of the title. 1 The technically correct name "Pennsylvania Gazette" had been preempted by a local alumni magazine. 2 Each Issue of the Bulletin contains a numerical finding list which specifies the Code section affected by rules and proposed rule-making notices published during the current quarter. PAGENO="0013" 9 When a change is made in a section of a regulation, the superseding page gives the effective date of the change, a reference to the volume and page citation of the Pennsylvania Bulletin in which the order effecting the eh~ange was printed, and the serial number of the Code page at which the immediately preceding version of the section appeared. Looseleaf pages of the (lode are bound in serial number sequence and deposited in regional law libraries, and thus a researcher can trace `back the history of a provision by simply following the chain of earlier serial page citations through the bound volumes. `Certain rebuttable presumptions are raised by the publication of a document in the Bulletin or the (lode (CDL 505 [45 P.S. 1505]). The text of regulations and certain other documents published in the Bulletin or the (lode is declared to be the only valid and enforceable text of such documents (CDL 501 [45 P.S. 1501]). The text of home rule charter documents published in the Bulletin or the (lode is prima f'acie evidence of the text approved by the electors (CDL 414 [45 P.S. 1414]). Courts are required to take judicial notice of the contents of the Bitlletin `and the (lode (CDL 604 [45 P.S. 1604]). ADMINISTRATION OF THE COMMONWEALTH DOCUMENTS LAW The Joint Committee on Documents, ~t departmental administrative board in the Pennsylvania Department of Property and Supplies created by CDL 608 (45 P.S. 1608), consists of the Attorney General, the Director of the Legislative Reference Bureau, the President Pro Tempore of the Senate, the Speaker of the House of Representatives, the Secretary `of Property and Supplies and two public members appointed by the Governor from among attorneys at law or other mem- bers of the `public who represent the c~ass who may be expected to refer to the documents to be published under the act. The gevernmental members are author- ized to designate alternates to serve for them. The presence of the leadership of the General Assembly and cabinet-level officers on the Joint Committee is required by reason of two broad powers necessarily vested in the Committee. The existing unpublished administration regulations were a mass of paper of random style, containing a large amount of obsolete material, and drafted in indifferent English. Thus the statute (CDL 403 (b) and (c) [45 P.S. 1403 (b) and (c)] )3 authorizes the Joint Committee to adopt a revised text of the regula- tions of an agency in order to expedite publication of the original (lode and to insure the uniformity of style. Since existing statutes are understandably silent on a requirement to publish notice of agency hearings and other action in the newly-established Bulletin, the statute (CDL 405 (b) [45 P.S. 1405 (b) ]4 authorizes the Joint Committee to impose such a requirement by regulation. It is anticipated that as the Pennsyl- vania statutes are recodified such requirments will be added to the statutes them- selves, thereby gradually superseding publication requirements imposed by Joint Committee action. The editing and publication of the Btilletin and the compilation, editing and, supplementation of the Pennsylvania (lode is performed by the Legislative Refer- ence Bureau under the policy supervision and direction of the Joint Committee (CDL 301 [45 P.S. 1301]). The (lode is entirely computer prepared, and peridocafly magnetic storage media containing updated versions of the entire (lode are made available in form for computer searching. ~ CDL 403 (b) and (c) : "(b) The bureau, or a qualified contractor selected by the bureau with the approval of the joint committee, may review any or all such manuscript code of administrative regulations as amended and supplemented, before it has been released for publication, and may prepare in active cooperation with each agency a rvised text of the administrative regulations thereof which conforms fully to the format established for the Code, which eliminates all obsolete, unnecessary or unauthorized material, which has been prepared in such a manner as to lend to the published Code as a whole uniformity of style and clarity of expression, and which does not effect any change in the substance of the prior text of such regulations. Whenever any such revised text with respect to each agency is completed, two duplicate original copies thereof, with proof of service of a third copy thereof upon the executive officer, chairman or secretary of sucn agency, shall be filed by the bureau with the joint committee, and shall immediately be made available by the bureau for public inspection and copying." `(c) Such revised text shall become the initial agency text of such regulations for the purposes of this act sixty days after such filing unless, within such sixty day period, the agency shall file `with the joint committee written objections to such revised text. In that event, the joint committee shall consult with the agency, shall make such alterations, if any, in such revised text as may be necessary in order to retain the substance or the prior text of such regulations in a manner consistent with the standards of the code, and shall by order prescribe the text of such regulations which shall become the initial agency text thereof for the purposes of this act. A decision of the joint committee under this section shall be final and shall not be subject to any form of judicial review." PAGENO="0014" 10 DISTRIBUTION The Joint Committee on Documents determined that only a few subscriptions could be obtained for the Bulletin and Code if the subscription prices were fixed on the basis of cost, i.e., at an unsnubsidized level. Pursuant to statutory authority (CDL 412 [45 P.S. 1412]) subscriptions to the Bulletin (at the established price of $9 per year) and to the appropriate titles of the Code were automatically purchased in the name of all banks, insurance companies, public utilities and other entities which are assessed for fthe cost of regulation, and the price of the `subscriptions was simply added to their assessment bills. The Commonwealth purchases subscriptions to the Bulletin for a wide variety of state government officials and furnishes one copy to each county, city, `borough, township and school district, to each judge of a court of record, and to certain law libraries. Con- sequently the Bulletin had a paid circulation of about 15,000, including approxi- mately 8,500 nongovernment subscriptions. The Code, which is expected to exceed 15 binders in size (four binders have been published thus far) is sold at a price of only $29 for the whole set. This pricing technique has proved successful and approximately 2,900 subscriptions have been received for full sets, of which approximately 1,200 are nongovern- mental subscriptions. The Commonwealth purchases subscriptions to the Code for certain law libraries, each judge of a court of record, and various other public officials, and individual titles are furnished to a wide variety of state officials who require ready access to the contents of the titles involved. DEVELOPMENT OF THE GENERAL RULES OF ADMINISTRATIVE PRACTICE AND PROCEDURE Section 9 of Article V of the Constitution of Pennsylvania was amended in 1968 to provide for a constitutional right `of appeal from an administrative agency to a court of record or an appellate court. This provision was implemented by the act of December 2, 1968 (No. 354), which broadened the scope of the Administra- tive Agency Law, .su.pra, by extending the scope of AAL ~ 31 through 35 (71 P.S. ~ 1710.31 through 1710.35) to all adjudications by Commonwealth agencies ex- cept certain proceedings relating to the collection, review or refund of taxes, bonus, interest or payments made into t'he Commonwealth Treasury. See AAL 47.50 and 51(c) [71 P.S. ~ 1710.41, 1710.50 and 1710.51(c)]. As a result of the foregoing constitutional and statutory changes it appeared that a statutory requirement existed for formal adjudicatory proceedings, if demanded, before any agency in any non-tax proceeding leading toward a "final order, decree, decision, determination or ruling by an agency affecting personal or property rights, privileges, immunities or obligations of any or all of the parties to the proceeding . . ." other than certain forefeitures, paroles, pardons or re- leases. See AAL 2(a), [71 P.S. 1710.2(a)]. However, the Joint Committee's review of existing administrative regulations, revealed that, with the exception of a few agencies such as the Pennsylvania Public Utility Commission, Unemployment Compensation Board of Review and Workmen's Compensation Board, Commonwealth administrative agencies had few, if any, procedural rules and regulations. Of course, the courts had established, minimum standards of procedure which must be maintained under due process of law. However, these standards are not necessarily the same with respect to each `type of Administrative proceeding. Goldberg v. Kelly, 397 U.S. 254, 266-271 (1970). The Joint Committee analyzed the problem facing it as follows (1 Pa. B. 490) "We are under a statutory duty to produce a Code w'hich manifests uniformity of style and clarity of expression.... See CDL, 403(b), 45 P.S. 1403(b). While a Code containing numerous voids where one would ordinarily expect to find ap- propriate rules of practice and procedure may perhaps manifest a certain uni- formity of style, it can hardly be thought to exhibit "clarity of expression. . . ." Thus, with a certain reluctance in view of the scope of the task, we have under- taken to canvass the options open to us. CDL i 4Oi~ (b) : "(b) Whenever the joint committee finds, after notice to the agency affected arid opportunity for hearing, that public notice of any agency action or proceeding or ciacs of actions or proceedings is required by due process of law, or in the discretion of the jOiflt committee should otherwise be given for the information of the public, the joint committee may by regulation require the agency to prepare and deposit under this act not~ca of each' such action or proceeding at such time and containing in each case such thformation as the regulations of the joint committee may require. If an agency fails to deposit a notice required pursuant to this subsection the action of the agency or the results of the proceeding shall not be valid for any purpose." PAGENO="0015" 11 "One solution would be to reserve appropriate chapter or subchapter numbers in connection with the regulations of each agency with the expectation that the agency would develop and promulgate its own rules of practice. We see several drawbacks in this approach: (1) it is doubtful that the Joint Committee, apart from the initial publication of the Code under CDL, 403(b), could under its existing authority, enforce a requirement for such development and promulga- tion, (2) the mass of individual and duplicating rules of practice would add significantly to the bulk and cost of tl~e Code, and (3) the large number of varia- tions in the procedures adopted would unduly burden the Department of Justice, which must service all of the agencies through a relatively small corps of law~ yers, and would present a complex mass of rules to the public and the bar. "Another ~olution s~ould be for the Joint Committee to draft a set of General Rules of Administrative Practice and Procedure, which could be incorporated by reference into the regulations of an agency by any agency which so desired. We have caused our staff to prepare a draft of such general rules and they are the subject of this notice of proposed rulemaking. A drawback, however, in this uipproach is that there would be no requirement that an agency take action to incorporate the general rules into its administrative regulations and, given the widespread limits on available agency manpower and the competitive claims on that manpower, we question whether such an approach would be a realistic one. "A third solution is for the Joint Committee to adopt the full text of the gen- eral rules as the agency text applicable to all Commonwealth agencies, with the recognition that any agency which does not now have procedural regulations will be free at any time to adopt for itself different and superseding regulations on any specific subject. We assume that under this third approach an agency would not, simply adopt a blanket regulation rendering the general rules inapplicable, but would focus on selected subjects of particular interest where the general rules prove to be inadequate or inappropriate and would promulgate specific and hence superseding regulations on that subject. An outstanding advantage of this approach is the provision for almost all Commonwealth administrative agencies of a complete and nearly uniform set of adjudiciatory and other administrative l)rOcedures. "In this rulemaking proposal we are considering the desirability of such third alternative. Accordingly, we are treating the annexed proposed General Rules of Administrative Practice and Procedure as a "revised text," as that term is cacti in CDL, 403(b), of the procedural rules of all Commonwealth administrative agencies and are directing the Documents Law Section of the Legislative Refer- ence Bureau to serve copies of the issue of the PennsylvanIa Bulletin containing this notice upon all agencies. We shall assume that the agency representatives heretofore designated pursuant to 1 Pa. Code 13.45 (relating to designation) are authorized to receive service under CDL, 403(b) on behalf of the executive officer, chairman or secretary of the agency, unless the representative or the executive officer, chairman or secretary of the agency advised the Documents Law Section to the contrary within 30 days after the publication of this notice. "In addition to considering all public comments which are submitted, we shall treat all agency comments filed with the Bureau within 60 days after service of the notice on the agency as formal appeals under CDL, 403(c), 45 P,S. 1403 (c). Thereafter we will be in a position to take such action, if any, on the pro- posal as may be warranted, including the adoption of an order promulgating Part II of Title 1 of the Code as an initial agency text adopted by all agencies for the purposes of the act. "In order that there may be no question concerning the continued applicability of 403 (c) of the act, we are hereby expressly reserving jurisdiction over Title 4 et seq. of the Pennsylvania Code (including units of the Code bearing a certifi- cation date before, but physically released after, the date of publication of this notice) for the purpose of adding or revising such material as may be necessary in order to conform to any subsequent orders in this rulemaking docket." Service of the Pennsylvania Bulletin containing the proposal upon the agency representatives theretofore duly designated was effected as provided in the no- tice. No agency advised the Documents Law Section that the agency representa- tive for the agency was not authorized to receive service of the proposal on be- half of the agency under CDL 403(b) [45 P.S. 1403(b)]. Additional copies of the proposal were made available to the Pennsylvania Public Utility Commission, at the request of its Acting Counsel, for distribution to all of its Examiners and members of its Staff. Similarly, additional copies of the proposal were furnished to the Pennsylvania Bar Association ("PBA"), which distributed a copy thereof prior to January PAGENO="0016" 12 1971 annual meeting of that association, to each person who was either a mem- ber of its Administrative Law Section or its Public Utility Law Section. The PBA Administrative Law and Public Utility Law Sections scheduled a public program at the 1971 annual meeting, dealing with the proposal. At that time, the Secretary of the Joint Committee, accompanied by the Director of the Docu- ments Law Section of the Legislative Reference Bureau, participated in an in- formal discussion covering the desirability in general of the approach under consideration and the advantages and disadvantages of a number of specific features of the proposal. The Joint Committee, in its April 1971 order finally adopting the regulations (1 Pa. B. 1179), analyzed the issue under three separate heads: (1) whether the proposed approach was generally correct, (2) detailed modifications and im- provements in the draft text of the proposed General Rules, and (3) the appro- priate effective dates to be used in making the General Rules applicable to the several Commonwealth agencies. General Approach. Those persons who commented on the proposal were unani- mous in their support of the general approach of a single set of General Rules in Title I of the Pennsylvania Code which would be applicable to all Common- wealth agencies except to the extent expressly provided otherwise by a particular agency or by statute applicable to proceedings before an agency. Further, no agency took an appeal to the Joint Committee from the proposal within the 60- day period provided by CDL 403(c) [45 P.S. 1403(c)]. Thus the substantial issues before the Joint Committee related only to the appropriate final text of the General Rules and their effective date. Effective Dates. The matter of an effective date for the General Rules was complicated by a number of factors. First, the General Rules may not be completely satisfactory to any given agency, and thus each agency may desire to compare its own rules with the General Rules to determine whether an appropriate inconsistent and supersed- ing agency rule on any specific subject is required, and if one is so required, whether such a rule exists or whether a new one should be drafted and promulgated. Second, there were at least three classes of agencies affected: (1) agencies whose rules were contained in titles which had already been published, (2) other agencies which had rules or regulations on file with the Legislative Reference Bureau, and (3) agencies which had no rules or regulations on file with the Bureau. With respect to agencies whose roles were already published, it was too late to effect the review mentioned above in connection with the codification process, and thus sufficient time had to be allowed before the effective date of the Gen- eral Rules to permit such review and the promulgation of any necessary special agency rules. With respect to agencies with unpublished rules and regulations on file, the special agency rules could be developed during the codification process, but ade- quate time had to be allowed after the general distribution of the particular title to permit the public and agency personnel to become familiar with the new arrangement. With respect to agencies with no rules and regulations on file, it was Important that the deficiency be corrected at the earliest practicable date. Taking the foregoing into account, the Joint Committee made the General Rules applicable immediately (actually on November 1971, to allow time for the printing and distribution of their final text) as to agencies with no rules of any kind (procedural or swbstantive) on file. As to other agencies a "rolling" effective date was adopted of 60 days after notice that the regulations of the agency had been codified, printed and distributed. Thus, "Scope Notice No. 1" (1 Pa. B. 1966) advised that Titles 1, 4 and 7 of the Code had been initially published and gen- erally distributed (titles of the Code have been assigned to the sequence 1 . 4 . . . etc. to allow for future expansion) resulting in the application of the General Rules to approximately a dozen agencies in December 1971. A second Scope Notice was issued in February 1972 (2 Pa. B. 294). Further Scope Notices will be issued as additional binders are published until the scope of the General Rules becomes universal. The "rolling" effective date was recommended by admlnistrdtlve law practi- tioners, who pointed out that the appearance of a binder containing the codified (and hence somewhat rewritten) regulations of an agency would remind the practitioner that the new General Rules had become applicable to proceedings before the agency. PAGENO="0017" 13 As noted above, the General Rules contemplate that an agency may, if it so desires, adopt inconsistent and hence superseding rules of practice and proce- dure on any subject covered by the General Rules (the coverage of the General Rules is indicated by the section headings of the Rules reprinted in Appendix A). However, unless such superseding special agency rules were in some manner keyed to the General Rules, the usefulness of the latter would be seriously restricted. The Code contains a computer-based capability of citing in a cross-reference note under any particular section of the Code any other section of the Code which makes specific reference to that particular section. Accordingly, the Joint Committee adopted a uniform rule of style (1 Pa. Code 13.38) which requires each superseding special agency rule of practice and procedure to cite expressly each section or provision of the General Rules intended to be superseded by such special rule. As a result, the citation to a superseding special agency rule auto- matically appears in the cross reference note following the superseded provision of the General Rules. Thus, a user may safely adopt the practice of referring first to the General Rules on the subject in question, and then checking immediately following the General Rule in question to determine whether the agency with which he is concerned has adopted such a superseding special rule. If the agency has adopted such a special rule, the cross reference note sets forth the specific ci- tation, including title and section number, of the superseding rule. The relatively brief experience of Pennsylvania agencies and courts with the concept of uniform rules of administrative practice and procedure indicates that the experiment will be successful, and that relatively few agencies will exercise their authority to establish special nonuniform procedures.5 Eternal vigilance is the price of uniformity. The Joint Committee on Documents in the Spring of 1972 recommended that a new CDL 209 be added vesting the committee with statutory powers in the following terms to control the potential proliferation of individual agency rules of procedure: "Whenever the joint committee finds after notice to the agency affected and opportunity for hearing, that any special rules of administrative practice and procedure promulgated by the agency are unnecessary for the effective performance by the agency of its functions and are not expressly required by statute applicable to proceedings before the agency, the joint committee may by order rescind and delete such unnecessary special rules of practice and procedure. The joint committee shall administer this section with a view toward developing uniform agency rules of practice and procedure to the maximum degree which is consistent with the due administration of public affairs." The proposal was introduced on May 16, 1972 as H.B. 2187. 28-238 0 - 74 - 2 PAGENO="0018" PAGENO="0019" APPENDIX A: GENERAL RULES OF ADMINISTRATIVE PRACTICE AND PROCEDURE CHAPTER 31. PRELIMINARY PROVISIONS SUBCHAPTER A. GENERAL PROVISIONS Sec. 31.1. Scope of Part. 31.2. Liberal construction. 31.3. DefInitions. 31.4. Information and special instructions. 31.5. Communications and filings generally. 31.6. Amendments to rules. SUBCHAPTER B. TIME Sec. 31.11. Timely filing required. 31.12. Computation of time. 31.13. Issuance of agency orders. 31.14. Effective dates of agency orders. 31.15. Extensions of time. SUBCHAPTER C. REPRESENTATIONS BEFORE AGENCY Sec. 31.21. Appearance in person. 31.22. Appearance by attorney. 31.23. Other representation prohibited at hearings. 31.24. Notice of appearance. 31.25. Form of notice of appearance. 31.26. Service on attorneys. 31.27. Oontemptuous conduct. 31.28. Suspension and disbarment. CHAPTER 33. DOCUMENTARY FILINGS SUBCHAPTER A. GENERAL REQUIREMENTS Filings Generally Sec. 33.1. Title. 33.2. Form. 33.3. Incorporation by reference. 33.4. Single pleading or submittal covering more than one matter. Eaecution and Verification Sec. 33.11. Execution. 33.12. Verification. Copies Sec. 33.15. Number of copies. Fees Sec. 33.21. Filing fees. 33.22. Mode of payment of fees. 33.23. Copy fees. (15) PAGENO="0020" 16 SUBCHAPTER B. SERVICE OF DOCUMENTS Sec. 33.31. Service by the agency. 33.32. `Service by a participant. 33.33. Effect of service upon an attorney. 33.34. Date of service. 33.35. Proof of service. 33.36. Form of certificate of service. 33.37. Number of copies. SUBCHAPTER C. MISCELLANEOUS PROVISIONS Amendments and Withdra'wals of Subm4ttals Sec. 33.41. Amendments. 33.42. Withdrawal or termination. Docket Sec. 33.51. Docket. Waiver of Rules Sec. 33.61. Application for waiver of formal requirements. CHAPTER 35. Fou~&i~ PROCEEDINGS SUBCHAPTER A. PLEADINGS AND (YPHER PRELIMINARY MATTERS Applications Sec. 35.1. Applications generally. 35.2. `Contents of applications. Informal (Jomplaint8 Sec. 35.5. Form and content of informal complaints. 35.6. Correspondence handling of informal complaints. 35.7. Discontinuance of informal complaints without prejudice. Formal (lomplaints Sec. 35.9. Formal complaints generally. 35.10. Form and content of formal complaints. 35.11. Joinder of formal complaints. Orders to Show Cause Sec. 35.14. Orders to show cause. Petitions Sec. 35.17. Petitions generally. 35.18. `Petitions for issuance, amendment, waiver, or repeal of regulations. 35.19. Petitions for declaratory orders. 35.20. Appeals from actions of the staff. Protests Sec. 35.17. Petitions generally. 35.24. Effect of protest. PAGENO="0021" 17 Intervention Sec. 35.27. Initiation of intervention. 35.28. Persons eligible to intervene. 35.29. Form and contents of petitions to intervene. 35.30. Filing of petitions to intervene. 35.31. Notice and action on petitions to intervene. 35.32. Limitation of participation in hearings. Answers Sec. 35.35. Answers to complaints and petitions. 35.36. Answers to petitions to intervene. 35.37. Answers to orders to show cause. 35.38. Respondents seeking affirmative relief. 35.39. Replies to respondents seeking affirmative relief. 35.40. Answers to amendments of pleadings. 35.41. Satisfactibn of complaints. Consolidation Sec. 35.45. Oonsolidatlon. Amendment and Withdrawal of Pleadings Sec. 35.48. Amendments of pleadings generally. 35.49. Amendments to conform to the evidence. 35.50. Directed amendments. 35.51. Withdrawal of pleadings. ill otions Sec. 35.54. Motions as to complaint. 35.55. Motion as to answer. SUBCHAPTER B. HEARINGS AND CONFERENCES General Sec. 35.101. Waiver of hearing. 35.102. Hearing calendar. Notice of Hearing Sec. 35.103. Preliminary notice to Department of Justice. 35.104. Notice of rulemaking proceedings. 35.105. Notice of nonrulemaking proceedings. 35.106. Contents of notice of nonrulemaking proceedings. Prehearinji Conferences Sec. 35.111. Conferences to adjust, settle or expedite proceedings. 35.112. Conferences to expedite hearings. 35.113. Initiation of conferences. 35.114. Authority of presiding officer at conference. 35.115. Offers of settlement. 35.116. Refusal to make admissions or stipulate. Hearing See. 35.121. Initiation of hearings. 35.122. Consolidation of formal proceedings. 35.123. Conduct of hearings. 35.124. Appearances. 35.125. Order of procedure. 35.126. Presentation by the parties. 35.127. Limiting number of witnesses. 35.128. Additional evidence. PAGENO="0022" 18 Transcript See. 35.131. Recording of proceedings. 35.132. Transcript corrections. 35.133. Copies of transcripts. SUBCHAPTER C. EVIDENCE AND WITNESSES General Sec. 35.137. Oral examination. 35.136. Expert witnesses. 35.139. Fees of witnesses. Subpoenas Sec. 35.142. Subpoenas. Depositions Sec. 35.145. Depositions. 35.146. Notice and application. 35.147. Authorization of taking deposition. 35.148. Officer before whom deposition is taken. 35.149. Oath and reduction to writing. 35.150. Scope and conduct of examination. 35.151. Status of deposition as part of record. 35.152. Fees of officers and deponents. Stipulations Sec. 35.155. Presentation and effect of stipulations. Evidence Sec. 35.161. Form and admissibility of evidence. 35.162. Reception and ruling on evidence. 35.163. Designation of relevant portions of documentary evidence. 35.164. Documents on file with agency. 35.165. Public documents. 35.166. Prepared expert testimony. 35.167. Records in other proceedings. 35.168. Form and size of documentary evidence. 35.169. Copies to parties and agency. Official Notice Sec. 35.173. Official notice of facts. Mr. FAUNTROY. I am pleased also to invite our distinguished Chair- man, Mr. Diggs, to make the opening presentation at this time. STATEMENT OF HON. CHARLES C. DIGc+S, JR. Mr. DIGGS. Thank you very much, Mr. Chairman. I am pleased to join you here at this hearing of the Commission bill. As you so ably pointed out, there is a great need for a Law Revision Commission in the District of Columbia, as recognized in the report of the Nelsen Commission. You may recall, Mr. Chairman, that when you and I discussed the need for `a corevision earlier in the year, we were thinking at that point in terms of a Select Committee of the House District Committee that might undertake this very significant project. But after further reflection and consultation with representatives of the bar, besides yourself, judges and various groups concerned with law revision, and an indepth analysis by your staff, in which I shared, we concluded PAGENO="0023" that within the spirit and the context of self-determination that we are committed to, that a Law Review Commission would be a better vehicle for such a task. H.R. 7412 AND H.R. 7658 And therefore, on the 2d of May, I introduced H.R. 7412 to estab- lish a Commission, and I have been very much encouraged by the bipartisan support which subsequently came a week later in the intro- duction of the bill by the ranking minority member of this committee. And, of course, this bill deals with law revision also. There are some differences between the bill which I have introduced in connection with, or vis-a-vis, Mr. Nelsen's bill. But let me make it clear that there are no insurmountable problems in the differences between the bills, considering questions of composition of the Commission and of the size of it. In other words, the differences between the two bills, as I see it, are more in form rather than in substance. Mr. Nelsen's bill, for example, suggests a 15-member Commission, whereas my bill recommends a 9-member Commission. I recognize that a 15-member Commission would be broader based, and I have no problem with that. I merely state that the bill which I introduced was based primarily on New York Law Revision statute, and the New York Law Revision Commission is the most respected such commission in the country, and we felt that we could utilize the wealth of experience of the New York Commission and its format in setting up our own. And I am particularly pleased to see that Mr. John MacDonald from the New York State Law Review Commission on the witness list. The other differences between the bills, relative to the appointment of members, again, is not significant, and in my view, both these measures can accommodate one another with respect to that. I think, perhaps, the major difference in the two bills is thwt my bill provides for a permanent Commission, whereas the Nelsen bill sets up only a 4-year Commission. I note that Mr. Whalen, a distinguished member of the bar, will be one of the witnesses before this Oonuuis- sion-before this subcommittee-supports the position that a Law Review Commission should be a permanent part. I might also add that my bill also provides for an authorization for the necessary appropriations to effectuate the Commission, which is a provision silent in the Nelsen Commission recommendations. I think that we ought to assume the responsibility for the financing of this project under the circumstances. The Nelsen Commission recommendations set up uniform rules of practice for the administrative agencies and the preparation of a manual on the District of Columbia Administrwtive Procedures Act are embodied in Congressman Nelsen's bill. They are not in my bill, but I fully support this provision, and it is upon that basis that I am of the firm belief that the concepts and the ideas embodied in both bills can be quickly meshed together or put into legislative form to create this most-needed Commission. And I conclude my testimony in full confidence that your usual objectivity, and in reviewing the list of the witnesses, have further confidence that the product of this subcommittee is going to be one which will accomplish a long needed objective. Mr. FAUNTROY. Thank you so very much, Mr. Chairman. PAGENO="0024" 20 And we will at this time enter into the record, or have read into the record, a statement prepared by our distinguished ranking mi- nority member, Mr. Nelsen, who at this time, unfortunately, has two other subcommittee meetings which he must attend. So I will defer at this time to Mr. Hogan, who will present the statement for the record. STATEMENT OP HON. ANCHER NELSEN, AS PRESENTED BY JOHN HOGAN, MINORITY COUNSEL Mr. HOGAN. Congressman Nelsen expresses his regrets that he could not be here. He requested that the minority member present or myself present or myself read this into the record. As you indicated, he has a 2 o'clock meeting with the Full Com- mittee of the Foreign Commerce, and a subcommittee meeting at 2:30 with the Public Health Subcommittee. I will proceed to read the statement which he has prepared. Law Revision Commission legislation, H.R. 7658, statement of Con- gressman Ancher Nelsen. I appreciate the opportunity to appear before the Subcommittee on Judiciary today in support of H.R. 7658, which I introduced with Congressman Fuqua as a cosponsor on May 9. PENDING LEGISLATION This bill places in legislative form the recommendation for a law revision coimnission contained in the report of the Commission on the Organization of the government of the District; of Columbia, of which I served as chairman, and which was filed with the Speaker of the House on August 17, 1972. The provisions contained in H.R. 7658 as proposed in the report are preferable to me for a number of reasons. First, I believe that H.R. 7658 is very comprehensive and reflects the work of the Oommissioners, such as myself, who served on the Nelsen Commission. Also, I believe it clearly reflects the vast ex- perience of New York State with its law revision commission, and it also reflects the developments of the American Law Institute on the subject. Furthermore, the provision calling for Congress to review the work of the Law Revision Commission 4 years after the date of enactment of a bill, a provision which Congressman Fuqua strongly urged, is, in my view, a provision which the House as a whole would tend to endorse. It provides for a meaningful reexamination, even though I think one could assume that the Commission would continue on indefinitely; and certainly this continuation is implicit in the election system provided for in the membership of the Commission. The composition of the membership of the Commission as contained in H.R. `7658 gives balance and expresses congressional, as well as Presidential, interest in the law revision commission concept. No matter what is done in the area of home rule, congressional oversight will certainly always remain. Accordingly, it seems to me that it should be in the interest of Congress what the Law Revision Commission does and to whom it PAGENO="0025" 21 reports. Certainly, the President would have an interest in the work of the Commission; and if the recommendations of the Commission had Presidential support, it would tend `to aid in their implementation. Finally, I believe that the provision in H.R. 7658 dealing with the establishment of uniform rules of practice and involving the Com- mission in the administrative law field is a particularly desirable feature, which we who served on the Nelsen Commission consider should be provided for in any law revision commission. I would also like to point out to those who may misunderstand exactly what the work of the Law Revision Commission was intended to be, that it was not intended to totally recodify and revise the District of Columbia Code. As we state in the Nelsen Conunission Report, the Commission is one designed to conduct continuing study into anachronisms in the law, among other things. However, it was never designed either in the State of New York and other jurisdictions where it exists today, in my view, or was it designed by the Nelsen Commission for the District of Columbia, as a vehicle for recodifying and revising the entire District of Columbia Code. For the information of the committee members, I have attathed hereto the pages from volume II of the Commission Report, pages 763 to 766, that set forth the Nelsen Commission views on this particular subject. In conclusion, Mr. Chairman, I wish to express my appreciation to you and the subcommittee for the opportunity to express my views and to indicate my support for this legislation, H.R. 7658. Thank you, Mr. Chairman, and other members of the subcommittee. Thank you, Mr. Chairman. Mr. FAUNTROY. Thank you, Mr. Hogan, and that is appropriately a part of the record. We will now hear the first of our list of several witnesses this afternoon. I call upon C. Francis Murphy, corporation counsel of the District of Columbia. Thank you, and welcome to the committee, Mr. Murphy. STATEMENT OF C. FRANCIS MURPHY, CORPORATION COUNSEL FOR THE DISTRICT OF COLUMBIA Mr. MURPHY. Thank you, Mr. Chairman, Mr. Breckinridge. I am pleased to appear before you today to present the views of the District government on H.R. 7412 and H.R. 7658, which are su~bstan- tinily similar bills authorizing the establishment of a commission to review and study the present civil and criminal codes of law and pro- cedure of the District of Columbia and make recommendations to the Congress for their modernization. H.R. 7412 provides for the creation of a nine-member Commission composed of the chairmen of the Committees on the District of Co- lumbia of the Senate and House of Representatives, the corporation counsel, the chairman of the District of Columbia Council, and five per- sons appointed by the Commissioner of the District of Columbia. H.R. 7658 would establish a 15-member commission, all of whom would be appointed by officials in the legislative, executive, and ju- dicial branches of the Federal or District governments. The chairman PAGENO="0026" 22 of the Commission, under H.R. 7658, would be appointed by the Presi- dent of the United States. Both bills would empower the Commission to examine `and study the common and statutory law of the District of Columbia, municipal ordinances and regulations, and judicial decisions, and to consider suggestions and recommendations of the American Law Institute, the National Conference of Commissioners on Uniform State Laws, bar associations, the judiciary, lawyers, community groups, and others, for the purpose of n~aking recommendations to the Congress for the improvement and modernization of present law. In addition, H.R. 7658 would authorize the Commission to propose uniform rules of practice and procedure relating to hearings before administrative agencies of the District government, and to prepare a manual for the guidance of District agencies in carrying out the mandates of the District of Columbia Administrative Procedure Act. The enactment of H.R. 7412 or H.R. 7658 will enable, for the first time since the turn of the century, a comprehensive review of the Dis- trict's code of laws, both civil and criminal, to be undertaken. The failure to modernize the local code of laws by eliminating unnecessary or undesirable statutes and by updating and streamlining other statu- tory provisions has fostered needless litigation, complicated law en- forcement responsibilities, and resulted in a steady flow of remedial and amendatory legislative proposals to the Congress. A study of the kind `authorized by the bills is long overdue. The District government, accordingly, strongly recommends the favorable consideration of H.R. 7412 or H.R. 7658. AMENDMENTS PROPOSED We would like to invite the attention of the committee to certain provisions which are contained in one of the `bills but not the other. H.R 7658 makes no provision for an authorization of appropriations to carry out the work of the Commission, and we suggest that a sec- tion to this effect be added to the bill. H.R. 7412 does not provide a definite period for the life of the Com- mission, as does H.R. 7658, and we recommened that H.R. 7412 be amended to include a stated period of time in which the Commission is expected to conclude its activities, unless extended by the Congress. With respect to the technical provisions of the bills relating to the compensation of the members of the Commission and the appoint- ment and classification of its staff, we suggest that the committee seek the views of the Civil Service Commission. That concludes my statement, Mr. Chairman. Thank you. Mr. FAUNTROY. Thank you, Mr. Murphy. SCOPE OF COMMISSION One of the questions that is before us is, of course, whether or not the Commission should be empowered to establish a set of uniform rules of practice for the administrative agencies. What system of rules and practice is presently used by the administrative agencies in the District government? PAGENO="0027" 23 Mr. MURPHY. Well, Mr. Chairman, when you say administrative agencies, it covers, obviously, a wide variety of activity. Essentially, the agencies that are conducting adjudicatory functions have separate rules of procedure, but for the most part, they are relatively uniform. Beyond that, you would have rules in connection with rule making processes. And under the APA, these essentially consist of notice in accordance with the APA provisions, opportunity for written com- ments or oral presentations, so that I think to a large extent, while there is not complete uniformity in connection with rules and pro- cedures, there is substantial uniformity existing in the agencies. Mr. FAUNTROY. So that what would be your judgment on the em- powering of the Commission to, in effect, set up uniform rules and facts? Mr. MURPHY. I read the act-and perhaps I misread it-I read the act as authorizing, in effect, a recommendation or the development of uniform procedures, which would be recommended for adoption. I don't read the act as authorizing the Commission itself to, in effect, enact or adopt those procedural regulations. Mr. FAUNTROY. Not at all, no. But the actual drafting of them is consistent with administrative practice and direction in this. You re- call, or as you may know, under the Nelsen bill, the development of a manual which would be available to all persons who for some reason or another have to come before one of these three agencies. Mr. MURPHY. Mr. Chairman, we have no objection to these pro- visions. D.C. CODE Mr. FATJNTROY. We also are faced with `the question of whether or not the Commission would be empowered t'o undertake a complete co- dification of the District of Columbia Code. And you already made reference to that. Who presently codifies the District of Columbia `Code? Mr. MURPHY. Well, t'he District of Columbia Code, except for a few titles, is not an enacted code of laws. It is a compilation by way of compilation of laws in the District of Columbia. There is a Subcommittee of the House Judiciary Committee which is charged with the `compilation, so the compiler when a new law is en- acted determines what ti'tle land in what section that should `be placed in the code. Mr. FAUNTROY. And that resides now in the District Committee and its `Subcommittee on Judiciary? Mr. MURPHY. That's right, sir. Mr. FAUNTROY. There's one other question that your testimony evoked for me. Oh, yes, there are two questions. LIFE OF COMMISSION One, you suggest that we should have a period for the life of the Commission subject to review by the Congress, what period would you suggest? And you note that H.R. 7658 has a 4-year period for expiration, and H.R. 7412 has no expiration date. What is your judg- ment on that? Mr. MURPHY. I think we believe that the 4-year period initially is probably an adequate time period or time frame within which to begin PAGENO="0028" 24 this operation. It may well develop that after 2 years, it will become obvious that perhaps additional time is needed. On the other hand, it may well develop that additional time will not be neMed, but I `belive that is an adequate period of time to get into the operation and to make it a determination after a couple of years as to how much time will be required. Mr. FAtTNTROY. Mr. Breckinridge ?~ Mr. BRECKINRIDGE. Thank you, Mr. Chairman. SCOPE OF COMMISSION WORK Mr. MURPHY, to what extent are we contemplating or excluding the duties usually attributed to a revision commission, statutory com- mission, which has a continuing responsibility to the legislative body for the purpose of codification `and construction and some times even modification or revision of the language that is adopted by the legisla- tive body? Mr. MURPHY. To what extent would this `be a revision? Mr. BREOKINRIDGE. To what extent have you contemplated that function in the proposals which we have here before us, as `an ongoing `and continuing function? Mr. MURPHY. Well, as I view it, there would be essentially `the deter- mination by the committee as to which laws should be updated, in which laws there should be recommended changes made; and I don't see a direct mandate that all law,s be revised, and certainly no mandate that there `be a codification of all laws. CODIFICATION OF CODE Mr. BRECKINRIDGE. Let me just understand this in terms of time. Let's say this Commission has sat for 2 years and has come forward with a body of laws in a proposed codified form. And I take it, they submit that to the legislative counsel, and as amended, that then be- comes the code for the District of Columbia. Now, from that point `forward in time, what `authority, if any, would that revise or revision commission have either jurisdiction or responsibility for the adaptation of subsequent legislation, be it called an ordinance or whatever it is in the District? Mr. MURPHY. I don't see that it would have any. If you got to a point where there was enacted a complete code of laws for the District of Columbia, an enacted code, then subsequent laws would amend the various titles of the enacted code, or create new titles in addition to it. Mr. BRECKINRIDGE. Well, will that be a continuing function within the commission to do this, as you view it? Mr. MURPHY. As I view it, I don't see that there would be. As I see the principal purpose of these commissions, if I `might use the expression, it's a little loose, but it's sort of catchup ball. Mr. BRECKINRIDGE. Two years or four years, I don't know what the volume of legislative activity is with the District of Columbia. In fact, I'm `ashamed to say I don't even know how many volumes of codes you have. PAGENO="0029" 25 I have written for a copy, which I'm told I'm entitled to. I'm going to put on my shelf at home and look `at it some day. But continuing, it seems to me a continuing function and responsi- bility should, perhaps, exist here rather than just leave it up to a compiler in order that the city `and people, both the administrators as well as the counsel can h'ave brought into continuing focus the recent act that counsel as they relate to prior acts. Sometimes the enacting language creates by itself ambiguities with- out intending to, and the revision process contemplates, on the part of the reviser, not the `amendment of what the Council has done `but the construction of that in such a w:ay as to arrange it without creating ambiguities to the law as it is existing to affect the intent of the cap- sule. And this way, you don't come back every 2,4, 10 years to a quag- mire, and then again do that with-which you have once done, and sort of Herculean effort like this. Mr. MURPHY. I certainly don't disagree with the proposition, Mr. Breckinridge, as to the value of a continuing commission of this na- ture for that particular purpose. I `may only point out that as I see the principal task of this commission it is to take what is in existence now and perform a near Herculean task of modernizing those laws, and updating them. After that is done, it may well be that this commission should be continued for the purposes which you point out, or that perhaps some other type of commission should be created for that particular pur- pose, perhaps one smaller in scope. Mr. BRECKINRIDGE. Thank you. Mr. FAUNTROY. Mr. Murphy, I'm sure you mean recommending and updating of the relationship, because it will still be the Congress or the Council that would act. Mr. MURPHY. Yes, sir. Mr. FAUNTROY. Counsel for minority? Mr. HOGAN. Thank you, Mr. Chairman. Mr. Murphy, there's a fundamental difference, obviously, in the thrust of both of these bills. The bill which has been introduced here as H.R. 7412 obviously looks to a total recodification and revision of the code. The history that we found in the Nelsen Commission in examin- ing this subject as that which we incorporated in H.R. 7658, the bill introduced by Congressman Nelsen and Congressman Fuqua, and that is a relatively small commission with a relatively small budget, hope- fully with individuals named to that commission who would perform their functions more out of devotion than for pay. These would be lawyers of high reputation in the community who would volunteer a considerable amount of their time and energy to reviewing the code to determine, on the basis of their own work or things brought to their at- tention by other lawyers, or for that matter, anyone in the community to solve particularly erroneous interpretations of the law as they see it; placed on the law either by the executive, the Commissioner, by the District Council, or for that matter, by the courts, or where some other problem arose inthe law by reason of the passage of time that some particular subsection, let's say, of some larger section of the law hav- ing to do with the law of descent should be changed, because of changes in circumstances or in the way in which the law has been interpreted in other jurisdictions. PAGENO="0030" 26 I think you have basically a fundamental difference between the two bills here. If, as I gather from Chairman Diggs, that H.IR. 7412 is to be used for a total recodification and revision of the code, that was not the intention in recommending this by the Nelsen Commission. It was not the intention of Congressman Nelsen or Congressman Fuqua in introducing H.R. 7658. They saw the more narrow use of the commission than that of a total recodification. Now, I might just point out that the New York State, and to my knowledge, most of the law revision commissions that we studied-and I might add that that applies also to Minnesota, Congressman Nelsen's home State. The law revision commissions in those States have tended to do the lower level, less complete types of revisions. LIFE OF COMMISSION The revision that would call for a total recodification of the District of Columbia code would, I think, at least initially and I think within the first 8 or 10 years, whatever it would take to do this, would be a substantial amount of work and would require some considerable staf- fing. In my opinion, Congressman Fuqua, who is the cosponsor of H.R. 7658, with Mr. Nelsen, was the one who urged upon Congressman Nel- sen the insertion in that bill that the life of the commission be limited to 4 years initially. It was not his intention, and he expressed that to me, because I brought him the `bill in draft form, it was not his intention that this should not be .a continuing type of commission. But he said based on his experience, some 10 years or something as a member of the House District `Committee, he felt that he would be well advised and that Congressman Nelsen would be well advised if they put the provision `in there limiting it 4 years, so that it would come back to Congress for them to review it based on the work product of the Commission to the date. Then hopefully, having had that experience for 4 years, the Congress could then make this a continuing commission which would address it- self to anachronisms and inequities that might arise in the law. This was his belief, and you know in the selection of the members it does provide for a somewhat different selection, but implicit in the selection of the members of the commission is the suggestion that the commis- sion would continue. It would merely provide this 4-year limitation. This 4-year limitation would merely provide that Congress would have a look at the coimmission to determine how it was operating, and he wanted to insure that the legislative history of the bill when it came before this committee would insure that it was not his intention, as a cosponsor of the bill, and certainly it is not Mr. Nelsen's intention as the one who introduced the bill, that this commission necessarily be limited to 4 years; unless the Congress in its wisdom would determine at the end of 4 years that it was either not doing its job, or for some other reason it should not continue. And based on the experience in New York and other States, I can't conceive of how that provision would be harmful to this legislation. I don't think I have any questions, Mr. Chairman, I just want to make sure that there is a difference in the two bills, and that it's made abundantly clear. PAGENO="0031" 27 Mr. FA1JNTROY. Thank you. Mr. MURPHY. Thank you. Mr. FAUNTROY. Counsel for the subcommittee? Mr. DANIELS. Thank you, Mr. Chairman. I have one technical point, and then I would like to address a ques- tion to Mr. Murphy based on Mr. Hogan's comments. Mr. Murphy, we have a letter signed by Walter E. Wa$hington, Commissioner-Mayor, dated July 11, which I believe states the substance of the testimony you just have to the subcommittee. Would you like us to put that into the record in this hearing in addi- tion to your testimony? Mr. MURPHY. Yes; I would request it. But I would make one point. We had anticipated clearance of OBM iii connection with that. We were advised shortly before we came up here that we do not have that. clearance; therefore, we would have to inform the committee that the report is being submitted without clearance. Mr. FAUNTROY. The committee is so informed, and the letter may be put in the record. [The letter referred to follows:] THE DISTRICT OF COLUMBIA, Washington, D.C., July 11, 1973. Hon. CHARLES C. DIGGS, Jr., Chairman, Committee on the District of Columbia, U.S. House of Representatives, Washington, D.C. DEAR MR. CHAIRMAN: The Government of the District of Columbia has for report H.R. 7412, a bill "To create a Law Review Commission for the District of Columbia." A substantially similar bill, HR. 7658, would establish a law revision commission for the District of Columbia. H.R. 7412 provides for the creation of a nine-member Commission composed of the Chairmen of the Committees on the District of Columbia of the Senate and House of Representatives, the Corporation Counsel, the Chairman of the District of Columbia Council, and five persons appointed by the Commissioner of the District of Columbia. H.R. 7658 would establish a fifteen-member Com- mission, all of whom would be appointed by officials in the legislative, executive, and judicial branches of the Federal or District Governments. The Chairman of the Commission, under H.R. 7658, would be appointed by the President of the United States. Both bills would empower the Commission to examine and study the common and statutory law of the District of Columbia, municipal ordinances and regula- tions, and judicial decisions, and to consider suggestions and recommendations of the American Law Institute, the National Conference of Commissioners on Uniform State Laws, bar associations, the judiciary, lawyers, community groups, and others, for the purpose of making recommendations to the Congress for the improvement and modernization of present law. In addition, H.R. 7658 would au- thorize the Commission to propose uniform rules of practice and procedure relat- ing to hearings before administrative agencies of the District Government, and - to prepare a manual for the guidance of District agencies in carrying out the mandates of the District of Columbia Administrative Procedure Act. Other provisions of the bills relate to the terms of office and compensation of members of the Commission and authorize the `Commission to hire and com- pensate a staff and acquire services to carry out its duties and responsibilities. With respect to the technical provisions of the bills relating to the compensa- tion of the members of the Commission and the appointment and classification of its staff, we defer to the views of the Civil Service Commission. The enactment of H.R. 7412 or H.R. 7658 will enable, for the first time since the turn of the century, a comprehensive review of the District's code of laws, both civil and criminal, to be undertaken. The failure to modernize the local code of laws by eliminating unnecessary or undesirable statutes and by updating and streamlining other statutory provisions has fostered needless litigation, complicated law enforcement responsibilities, and resulted in a steady flow of remedial and amendatory legislative proposals to the Congress. A study of the PAGENO="0032" 28 kind authorized by the bills is long overdue. The District Government, accord- ingly, strongly recommends the favorable consideration of H.R. 7412 or H.R. 7658. We would like to invite the attention of the Committee to certain provisions which are contained in one of the bills but not the other. H.R. 7658 makes no provision for an authorization of appropriations to carry out the work of the Commission and we suggest that a section to this effect be added to the bill. H.R. 7412 does not provide a definite period for the life of the Commission as does H.R. 7658 and we recommend that H.R. 7412 be amended to include a stated period of time in which the Commission is expected to conclude its activities, unless extended by the Congress. The Office of Management and Budget has advised that, from the standpoint of the Administration's program, there is no objection to the submission of this report to the Congress. WALTER E. WASHINGTON, Mayor-Commissioner. Mr. DANIELS. Now, Mr. Murphy, Mr. Hogan observed that there were some major differences in the two bills, and I agree that there are some differences. One difference that he pointed to, or one difference that he thought he saw was in the mandate to the commission to under- take a complete codification of either a major part of the code or the entire code; that authorization occurring in Mr. Diggs' bill and not in Mr. Nelsen's bill. I'm not certain that I see that major difference. Have you looked at the bills, and do you see the difference in approach that Mr. Hogan mentioned? Mr. MURPHY. When I read the bills, I did not appreciate that par- ticular difference. I read the bills as both having essentially, except for references to administrative procedures and whatnot, a similar thrust. Mr. DANIELS. In reading it, it occurred to me that the language was essentially identical, and that any differences were essentially editorial ones as opposed to substantive ones with the exception of the matter dealing with uniform rules and practice for administrative matters. Mr. MURPHY. I read it, frankly, the same way. Mr. FAUNTROY. Any questions? Mr. FREEMAN. I have no questions. Mr. HoGAN. Mr. Chairman, just for the record, I think that as far as the intention of the individual authors of these bills then, we do have a difference apparently in the language of their own bills be- cause Congressman Nelsen obviously interprets this as addressing anachronisms, inequities in the law, and other less complete recodifi- cations then obviously the chairman does. I think the language may have to be changed in the ultimate bill that comes out of this subcommittee, so that the full committee knows clearly what it is that is being recommended here. There is no question in my mind what the Nelsen Commission was recommending; I served on the Commission, and I know what they were recommending. I believe I know what Mr. Fuqua and Mr. Nelsen were recommending in the bill. And it was important to me at this time, because if I understood Mr. Murphy's testimony, he saw this Commission performing a major recodification and revision of the District of Columbia Code. Is that not correct? Mr. MURPHY. If I gave the impression that it's a major recodifica- tion, I did not mean to give that impression. I see it as a major project PAGENO="0033" 29 in looking at the present status of the laws `to seek out the inequities and anachronisms which should be *changed, `and `a modernization where required. Mr. FAUNTROY. Well, I think the Chair at th'is time will move on. If there are difference in the interpretation of the language, I think the intent apparently is the same; `so we will take that up later. Mr. HOGAN. Thank you, Mr. Chairman. Mr. FAtTNTROY. Thank you, Mr. Murphy, Mr. Robinson for coming before us. And a't this time, I call our next witness, Chief Judge Reilly, District Court of Appeals. We're pleased to have you come, and thank you so much for taking the time out of, what I know, is a very busy schedule. STATEMENT OF HON. GERALD B. REILLY, CHIEF JUDGE, D.C. COURT OF APPEALS, ACCOMPANIED BY HON. FRANK Q. NEBEKER, ASSOCIATE JUDGE Judge REILLY. Thank you, Mr. Chairman. I have with me my colleague, Judge Nebeker of the District Court of Appeals. At this time, Mr. Chairman, members of the committee and counsel to the committee, I wish to thank you for inviting me to express my views on H.R. 7412 and H.R. 7658, for in my opinion legislation creat- ing a Law Revision Commission would accomplish reforms which the bench and bar of this jurisdiction have long recognized as being needed. I refer particularly to the basic objective of both bills which is to examine the common law and `statutes of the District of Colum- bia and judicial decisions cons'truing them for the purpose of dis- covering defects, anachronisms, and inequities in the law, and recom- mending corrective legislation. The Commission would also be authorized to consider proposals for changes in the law ma'de by the American Law Institute, the Com- missioners on Uniform Laws, and suggestions from ju'dges, lawyers, and the general public. BACKGROUND OF D.C. LAW Before commenting upon the details and differences between the two bills, I should like to sketch briefly the current background of local law which suggests the compelling need for such legislation. The acts of Congress which are exclusively applicable to the Dis- trict of Columbia have been codified from time to time `by a subcom- mittee on Revision of Laws of the House Committee on the Judiciary. I might `say parenthetically, Mr. Chairman, that I think the impression was given earlier in an exchange that it was this subcommittee. It's not. It was the subcommittee of the main House Judiciary. But the most recent codification, District of Columbia Code, 1967 edition, consists of three hard cover volumes divided into 49 titles, each of which is subdivided into several chapters. Since 1967, the House Judiciary Committee has also published an annual supplement to the hard cover volumes, the current supplement consisting of some 1,126 pages, officially known as supplement V. 28-238 0 - 74 - 3 PAGENO="0034" 30 Thus, far, I might point out this year, that the House Committee of the 93d Congress hasn't published any supplement as yet, so we're still using the addition of a year ago. So that `actually, that does not include whatever statutory changes were made in the law in the 2d Session of the 92d Congress. REORGANIZATION PLAN OF NO. 3 1967 In addition to this codification of statutes, `the body of law for the District also includes published regulations in the District of Colum- bia Council to implement numerous acts of Congress which, prior to reorganization plan No. 3 of 1967-~that was the plan which estab- lished the single Commissioner and the City Council-had delegated rulemaking power to the three District Commissioners. The reorganization plan lists more than 430 statutes or sections of statutes authorizing rulemaking. Moreover, there are also regulations which emanate from the Police Department and various administra- tive agencies. Compilations of these printed regulations are almost as voluminous as the `code itself. This is not all, however. The Organic Act creating the District of Columbia, as modified from time to time by Congress provides as follows: The common law, all British statutes in force in Maryland on February 27th, 18(11, the principles of equity and admiralty, all general Acts of Congress not locally inapplicable in the District of Columbia, and all Act of Congress by `their terms applicable to the District of Columbia and to other places under the juris- diction of the United States, in force in the District of Columbia on March 3, 1901, shall remain in force except in so far as the same are inconsistent with, or are replaced by, subsequent legislation of Congress. COURT PROCEDURES Thus, it is necessary in any case or controversy not governed by some provision of the code for the courts of this jurisdiction to apply the common law of Maryland, as modified by Acts of Parliament and its own legislature, prior to February, 1801. This is not an easy task, for there were very few courts of record in colonial Maryland. Hence trial and appeflate judges here, in the absence of any relevant section of our code, frequently must rely on principles of law set forth by the judges of King's Bench and the House of Lords in the centuries which antedated the creation of the District of Columbia. Illustrative of this problem is our lengthy decision in Perndl v. Soutliall Realty, which is now pending in the Supreme Court on a writ of certiorari, which was recently granted. In that decision, it was necessary to consider the nature of writs issued in Plantagenet times to decide a challenge to an act of Congress abolishing right to jury trials in landlord suits for summary possession. As a result of some of these earlier laws being shrouded in the mists of ant'iquity, Congress to clarify the situation has reenacted oc- casionally some of these ancient statutes for application in the District with the consequence that some of the language even in the District of Columbia Code is permeated with archaic phraseology. PAGENO="0035" 31 D.C. CODE PROVISIONS One of my favorites when I was in private practice was the Code provision relating to the dower rights of widows in real estate. Until a new act of Congress in 1965, Section 18-201 of the District of Colum- bia Code 1961 provided: A widow, after the death of her husband, incontinent, and without any dlif- ficulty, shall have her marriage and her inheritance and shall give nothing for her dower,. her marriage, or her inheritance, which her husband and she held the day of the death of her husband, and she shall tarry in the chief house of her husband by 40 days after the death of her husband, within which days her dower shall be assigned her, if it were not assigned her before, or that the house be a castle; and if she depart from the castle, then a competent house shall be forthwith provided for her, in the which she may honestly dwell, until her dower be to her assigned, as it is aforesaid; and she shall have in the meantime her reasonable estovers of the common; and for her dower shall be assigned unto her the third part of all the lands of her husband, which were his during the coverture, except she was endowed of less of the church door. While this section of the code has been modernized, archaic provi- sions still abound. A few examples may be of interest to the sub- committee. We recently entertained appeals from convictions under a section of the code, Title 22-1506, which reads as follows: Whoever shall in- the District deal, play or practice, or be in any manner ac- cessory to the dealing or practicing, of the confidence game or swindle known as three-card monte, or of any such game, play, or practice, or any other con- fidence game, play or practice, shall be deemed guilty of a misdemeanor, and shall be punished by a fine not exceeding $1,0~X~ and by imprisonment for not more than five years. - You'll notice in addition to the quaint term "three-card monte," that while it is taken for granted that the distinction in this jurisdiction between `a misdemeanor and a felony is that a misdemeanor cannot be punished by more than year's imprisonment. Here the code states that this shall be a misdemeanor and punishable by a fine or imprison- ment of not more than 5 years. In title 47 of the current edition of the D.C. Code, captioned "Taxa- tion and Fiscal Affairs," is a section `forbidding racial discrimination in service at public eating and drinking places. This section was enacted in the reconstruction era. While the thrust of its provisions is certainly timely, its application is certainly not confined to restaurants, hotels, and bars but also includes an "ordinary" and a "tippling place." In title 16, dealing with particular civil action, is a section, section 16-1702, enabling a person who loses more than $25 in a card. or dice game to recover the amount paid with costs in a suit brought within 3 months after payment. If 3 months elapse, however, without suit by the loser, any person can recover treble the amount in an action against the winner, but must turn over half the proceeds of the suit to the District government. This odd enactment derives from a 1710 Act of Parliament, passed in the reign of Queen Anne, which was reenacted by the Maryland legislature in 1780. A footnote to this section of the code shows that the amount of $26.67 was rounded by the revisers to $25, the approxi- mate American equivalent of the British sum specified in the original statute. PAGENO="0036" 32 I should also add that the absence of any reported cases in the anontation to this ancient section indicates that few persons, if any, have taken advantage of its provisions. Such anachronisms, however, present only minor problems of con- struction. More serious defects in the code are the presence of seem- ingly conflicting and inconsistent provisions, some of quite recent date. For example, there appear to be two different statute of limitations on claims filed by creditors on decedents' estates. Recent legislation has brought some incongruities. ADMINISTRATIVE PROCEDURE ACT Section 10 of the Administrative Procedure Act of 1967 provided for direct and final review of the administrative agency orders by the District of Columbia Court of Appeals. But in the Judicial Reorga- nization Act of 1970, review of Unemployment Compensation Board decisions was transferred in one section from the U.S. District Court to the superior court. As our court deemed this provision mistaken in light of the earlier enactment of the Administrative Procedure Act, this was corrected by judicial decision in a case called Riley versus Unemployment Com- pensation Board. However, a subsequent enactment for the licening of psychologists provided for an nppe.al, for a license which was revoked or suspended by the licensing agency, to our court in the first instance and then to the U.S. Court of Appeals. This is title 2, section 492. To add to the confusion, jurisdiction to enjoin the unlicensed prac- tice of psychology is vested in the Federal District Court. H.R. 7412 AND H.R. 7658 Under both bills, now before the subcommittee, it would be the duty of the proposed Commission to examine the common law and the stat- utes of the District as well as decisions of the courts for the purpose of recommending the elimination of such defects and anachronisms. The Nelsen bill also directs the Commission to examine the ordi- nances and regulations of the District of Columbia Council for the same purpose. This, I think, should be included in whatever legislation is reported out by your committee, as many of these regulations have had to be invalidated by the courts as not being in conformity with the authorizing statute, or issued in conformance with the Administrative Precedure Act. Both the Diggs bill and the Nelsen bill require the Commission to consider proposed changes in the law recommended by the American Law Institute and the Commissioners on Uniform Legislation as well as suggestions from judges and public officials, lawyers, and others. I also regard this provision as desiraible. Too frequently, State legislatures and the Congress have adopted the draft of laws proposed by the Uniform Law Commissioners without extended analysis on the part of standing committees themselves. I'm afraid there's been a tendency to regard those drafts as almost sacro- sanct. My own experience has been that despite the imprimatur of the Uniform Commissioners, some of this legislation is not only am- biguous but very difficult to construe. The Uniform Commercial Code PAGENO="0037" 33 eventually adopted by Congress for the District of Columbia is an example. The proposed Commission should also be an invaluable aid to this committee on such problems as the pending proposal for adopting a uniform code of evidence for the Federal District Courts. Should Congress approve this measure, steps should be taken to bring the rules of evidence now prevailing in the superior court into conformity with the new Federal rules, as it would be awkard for trial lawyers in this jurisdiction to contend with difficult rules in local forums. The task of bringing the rules into conformance, however, is not an easy one, as there are various provisions in the D.C. Code itself modify- ing common law rules of evidence by statute. Only a Commission of the sort envisioned by these bills would have the time to engage in an adequate study. The Diggs bill requires annual reports and recommendations to be made by the Commission. I am referring to section 2(e). I should like to see this provision in the final bill reported out by this committee, so that legislative committees would be in a position to consider periodi- cally the interim recommendations of the committee, rather than rely- ing upon one complex and final report. AMENDMENTS PROPOSED I recommend the inclusion in the reported bill of section 3(a) of the Diggs bill providing for cooperation by Federal and local agencies. The information thus gleaned should be helpful to the Commission when it confronts the task of clarifying and updating the Administra- tive Procedure Act, and particularly, I should add, in preparing a manual of uniform practice before a local administrative agency, as this legislation contemplates. May I also suggest that the subcommittee, in defining the Commis- sion's powers and objectives, might well adopt some of the wording of Public Law 89-801, a 1966 act of Congress establishing the National Commission on Reform of Federal Criminal Laws. You will note that the mandate of that Commission was broadly worded, the act using such terms as "unnecessary or undesirable" in contradistinction to the more restrictive terms "defects and anachronisms." In one respect, I think the time limits fixed by the Nelsen bill may be a bit too short in view of the enormous task envisaged for the Com- mission, and the time lag probable between the passage of this bill and subsequent appropriation act. In any event, rather than limiting the terms of 6 of the 15 members to 1 year, I think all members should serve for at least 2 years and be eligible for reappointment. The two bills differ in one major respect and that is in the method for selecting the members of the Commission. Under the Diggs bill, the chairmen of the House and the Senate District Committees, or their designees, would actually serve on the Commission, together with the Corporation Counsel, the Chairman of the City Council, and five appointees of the Mayor, three of whom are to be lawyers, including one member of a law school faculty. The Mayor would designate one of his appointees as chairman. The Nelsen bill contemplates a 15-member Commission selected as follows: Two members appointed by the Mayor, two by the City Coun- cil, two by the Corporation Counsel, and two by the U.S. Attorney; PAGENO="0038" 34 then one each to be designated by the Speaker, the House minority leader, the Senate majority and minority leaders, and the Chief Judge of the District of Columbia Court of Appeals and the Chief Judge of the superior court. The chairman of the Commission would be ap- pointed by the President with the advice and consent of the Senate. My own preferences in respect to appointments is for the appoint- ment set out in section 2 of the Nelsen bill. Under this plan, the com- position of the Commission would more fully represent the Federal and local concernnien~ts in District of Columbia affairs, in contra- distinction to the Diggs bill which seems to contemplate predominancy of the municipal executive branch to the exclusion of the President, the Department of Justice, and the judiciary. Moreover, the Nelsen plan would seem to accord the Commission a bipartisan character, better calculated to cause both parties in Con- gress to give weight to their recommendations. I also have some doubt as to the desirability of placing such busy public officials as the chairman of committees of the House and Senate, the Corporation Counsel and the Chairman of the Council on what, 1 visualize, is essentially a Commission of technical advisers, and not policymakers. It must be remembered that the Commission itself, under both bills, has no power to pass legislation and that its recommenda- tions will be subject to extensive scrutiny by the chairman of the House and Senate District of Columbia Committees, before being sub- mitted to Congress as a whole. Consequently, I favor the approach of H.IR. 7658 in that respect. Mr. FAUNTROY. Thank you so much, Judge Reilly, for a very thor- ough presentation on this measure and one which was sprinkled with a lot of spice, some of which I've noted looking through the record I came upon the statute written in 1267, and I've been trying to figure out how in the world that got into our code. And I'm sure you would be able to explain all of that to me, but I won't bother at this time with that. SCOPE OF COMMISSION I am interested, however, in a number of things which you men- tioned. And I guess I'll start with the question of the revision of the District of Columbia Code, and whether or not in your judgment we need to have a single Commission in charge of both civil and criminal codes. Judge REILLY. I would think that a single Commission could handle both revisions. I would expect, for example, that the members of the Commission, that the judges would appoint, that we would consult the District of Columbia Bar Association and get their suggestions as to those scholarly lawyers who could serve, and that they in turn would suggest some lawyers who are specialists in the criminal field, some in the civil field, some in the probate field. That, of course, would also suggest the desirability of having a larger Commission than the Diggs bill contemplates, especially as on the Diggs bill where the public officials who have only four or five lawyers left, to kind of be the hard working members, if I may put it that way. PAGENO="0039" 35 NON-LAWYERS Mr. FAUNTROY. Yes. I was about to go to that question, and you've already answered it in advance. On the question of that membership, do you think it would be useful to have nonlawyers at all sitting on such a Commission, such an expanded Commission or a large Commis- sion, such as Mr. Nelsen recommends? Judge REILLY. I don't really think so, Mr. Chairman, because I re- gard the role of a nonlawyer as primarily helpful on advice and on policy. But I don't regard these commission as policymaking com- mission, but purely technical to ferret out the inconsistencies. And also, there are some provisions in the code that are no longer opera- tive because of decisions of the courts. For example, we have a replevin statute here, and it is still in the code. But actually the kind of replevin procedure that is in this statute is in statutes of other States. In a case not involving the District of Columbia it was held to be unconstitutional, so that means that our section of that statute is somewhat inoperative; and there are quite a number of other sections of the code that the same may be said about. LIFE OF COMMISSION Mr. FAUNTROY. As you probably point out, the Diggs' measure does not have a date of expiration; the Nelsen-Fuqua meaure does sug- gest 4 years. You indicate that perhaps 4 years is a little bit too tight. What in your judgment would be a better formulation-no expiration date or a more specific one? Judge REILLY. I would tend a little bit to no expiration date. Of course, there is something to be said for a 4-year date, and that is so that people do not put off forever. But I would think that this kind of a Commission would be worthwhile as a permanent adjunct to the House and Senate Subcommittees of the District of Columbia, just as the staff of the Joint Committee on Taxation is kind of a perma- nent body that helps Ways and Means and Senate Finance. Mr. FAUNTROY. Thank you. Mr. Breckinridge. Mr. BREOKINRIDGE. Mr. Chief Justice, I want to thank you for a nice afternoon. The only difference I can ascertain between the Dis- trict of Columbia and the Commonwealth of Kentucky is our gam- blers have better odds. Judge REILLY. I thought that with such gentlemen in Kentucky that it would never be done. Mr. BRECKINRIDGE. I think that is the temper, the disposition on some occasions. I have been very interested in your testimony. I get the feeling from what you had said that at that time you viewed this as perhaps a larger and continuing function, looking perhaps even more to the substance than to the semblance; functional point of view that it is ongoing and continuing; that it should draw on all sources that are available to it for such guides and models as have been set up and established by others. PAGENO="0040" 36 CODIFYING OF D.C. CODE I think I heard you correctly say-perhaps this is not a correct state- nTent of a factual situation-but not since the 2d session of the 92d Congress have any of the ordinances or the legislative acts of the Dis- trict have been codified, is that correct? Judge REILLY. That is right. There should be an edition out. Al- most 7 months have elapsed of the current calendar year, and there has been no codification of acts of Congress affecting the District of Columbia which were adopted in the 2d session of the 92d Congress. Mr. BRECKINRIDGE. So we are talking there, Mr. Chairman, about an 18-month, or longer than 18-month period. Judge REILLY. Eighteen-month lag. Mr. BRECKINRIDGE. I take that that observation would indicate per- haps your support for any proposition that would see that there would be a continuing and a regular codification; so that on a routine publication basis that a branch of our code would be current. Judge REILLY. Yes. That would be a very worthwhile reform, sir. Mr. BRECKINRIDGE. Let me, perhaps without diverging too much, but an area that has troubled me a lot. I wanted to ask your thoughts in one regard, and I am not at all persuaded that the Commission revision is a proper place, but then I do not know where such a place exists. Let me illustrate the question. We create here a body of mem with expertise and access to all the necessary data and information to do a recodification and continuing on an ongoing basis. In doing that, I note you also observe that a significant, or at least an appreciable portion of the rules and regulations that are published under the power and the authority of various Departmental agencies, either are so ambiguous or beyond the authority of the District authority that they create a problem for the courts. Various techniques have been tried in various places to head off this problem. Some places require, for example, that a pre-publication period of 3Q, 60, or 90 days or a layover for public comment; others refer them at the State level to a committee on the legislature and let the legislature correctly or incorrectly-it is a very cumbersome procedure-determine whether or not as a matter of fact, or as a matter of law, the proposed regulation meets the intent of the legislature that adopted the statute under which they operate. Judge REILLY. Yes. Mr. BREOKINRIDGE. Others, in turn, provide that such rules and regu- lations must be approved not as to substance but as to form and legality by the Attorney General's Office. Everywhere throughout the country in the system we seem to be trying to come to grips with this problem but never really resolving it. Is just occurred to me as I was listening to you and looking at this that perhaps a Commission like this would be a place they could pass upon the legality of the proposed regulation before it did in fact issue and become law. And I wonder if that would make any sense? Judge REILLY. It might in the long run. This huge mass of regu- lations that I spoke of, of course, they all have not been adopted by the current City Council. That has only been in existence for 5 years, 5 or 6 years. What they did was to kind of repeat hundreds of sets of regulations which had been passed by their predecessor bodies, and PAGENO="0041" 37 they printed those in the District of Columbia Register. And that was all right, that was all they were required to do by the Administrative Procedures Act. But the questions of their legality and their ambiguousness and their overlapping have really been raised except in the courts. But it might be a much better method to have some of the questions resolved in advance by a representative body like this Commission. Conceivably, their approval might only be prima fade, but that is still a present point of litigation. But at least I would think it would tend to bring about much greater scrutiny, because I had the impression that so many of these different administrative agencies, because of the very length of the agenda on the City Council that were just delegated back and not really reviewed. Mr. BRECKINRIDGE. The problem, Mr. Chairman, just for the record that I am trying to get to here is, I am not familiar with the District's operation, but at the State level you frequently find administrative agencies attempting a certain bill, and its passage will fail for what- ever reason is sufficient at the moment. Then in the absence of the legislation those agencies will come back under their rulemaking or regulatory powers and undertake and enact into law by way of regu- lation that which the legislature did not enact. And the result is really a very confusing and highly unsatisfactory status of the law. Now, if a device could be found that would avoid that, this might well be such a device. It would certainly serve a useful purpose, not only for the District but for other areas. Thank you very much. Judge REILLY. Thank you. Mr. FATJNTROY. I am not sure that does not happen here. Counsel for the minority. Mr. HOGAN. Thank you, Mr. Chairman. Again, I think to some extent, from listening to the testimony, we may be talking about two different types of commissions. When I first came to the committee as a staff member in the 91st Congress there was established at that time, I think through the Judiciary Committee, a Commission that would have recodified and revised the Criminal Code, must as the subcommittee of the Judiciary Committee is doing it over there now. Except that they were going to do a com- plete re-indexing and submission of recommendations, as I recall it, that that Commission would have presumbaly submitted the proposed Code up here, and the variety of the titles, such that it could have been incorporated into law as the U.S. Code is primarily codified. What we are talking about here, at least in the Nelsen bill, is some- what different, as I think I explained it to you while you were listening when Mr. Murphy was testifyillg. Judge REILLY. Yes. I did not realize that you visualized a more limited function for the Commission. I kind of assumed as I read the bill that you did have- Mr. HOGAN. Well, when Mr. Nelsen introduced his bill, he accom- panied it with a statement in the Congressional Record that indicated what he intended when he introduced this bill. And I have here the final report of the National Commission on Reform of Federal Crim- inal Laws, which is a substantial amount of work. This, I think, was the product of about 2 years of work with a substantial staff. Judge Nebeker served on the Commission, as I remember. PAGENO="0042" 38 SCOPE OF COMMISSION Do you recall, Judge Nebeker, if I may ask you, how much funding was provided for that particular Commission? And do you think that you can mix up a Commission such as this National Commission on the Reform of Federal Criminal Laws with the proposed Coimnission which I have explained here, in exchange with Mr. Murphy, that is somewhat different in the function it performs? Do you think you can have one Commission handle both? You see, one is looking at more individual defects and anomalies in the law, rather than reindexing, a recodification, and a total revision. The one, I think, that Mr. Nelsen was thinking of but for the fact of the 4-year look by Congress again, is one of a continuing nature that consistently helps the courts, the Executive, the District Council, and the Congress, and everyone, to bring to their attention idio- syncracies, and maybe some big ones in the law, such as Chief Judge Reilly has indicated. Judge NEBEKER.. Well, Mr. Hogan, the National Commission on Reform of Federal Criminal Laws was indeed funded at rather large amounts. I do not know the exact amount, but I am confident that it exceeded $1 million a year. Of necessity, they had their own capital investment in the sense of an office space, furniture, and so forth; and they had full staff in addition to the actual Commission itself. And they, of course, had substantial travel expenses and per diem expenses. I also recall that the life of that Commission was extended on one occasion because its task had not been capable of completion in the originally contemplated period, again because of a lack of funding at the beginning of it. I also recall that they spent much effort and time staffwise simply on budget matters and on subsequent appropriations. They were, quite true, concerned with matters of policy in the sense of a complete re- form of law, which perhaps the present bills do not really contemplate. Whether they should is another question. With respect to your question on having a single commission under- take both civil and criminal reform, I think that it can be done. I think you would find that such a commission would have a tendency to polarize, not in terms of philosophy, but in terms of function; and you would have your experts in the civil area and your experts in the criminal area each operating somewhat independently. If you then in- clude additionally an administrative law type reform or scrutiny, you may very well have that as a sort of a third function. Whether you contemplate in a bill something, or in an enactment of this kind, a commission which would then be housed and have a staff somewhere here in the District of Columbia, you are talking about a substantial outlay of money. I believe you had reference to a commission which had been estab- lished about the time of your coming here, to the staff of the committee. I recall, and if I think we are talking of the same one, a commission that was established in the Omnibus Crime Control and Safe Streets Act of 1966. I recall it to be a commission for criminal law only; and it, like the Federal Commissions, dealt more with the need for sub- stantive changes than doing away with anachronisms or unnecessary pieces of legislation. PAGENO="0043" 30 That, I think, is behind Judge Reilly's suggestion that the commit- tee may wish to consider language which is different and broader in scope than defects and anachronisms, and go on to more substantive, positive approaches which probably there is a great deal of room for also. Mr. HOGAN. But then, Chief Judge Reilly, your concern-what you are talking about here and what you are recommending to the com- mittee that the commission at this point in time would address itself not to general substantive law reform, as it was undertaken by the National Commission on Federal Criminal Laws, but looking at anarchronisms in the law. Judge REILLY. Primarily focused on the need for clarification and the need for eliminating inconsistencies. Mr. HOGAN. The problem is-and I hope the individuals who .are here from New York will explain in some detail what has been done up there-the bill that Congressman Nelsen has introduced is tailored considerably after the New York State law that has been on the books, as I recall, since sometime in 1952-maybe it was earlier than that- but it has been in effect up there for some time. They put out an annual report, and they have very scholarly statements in portions of the re- port addressed to decedent's law and thinks like that and the need for reforms. But it is not, I believe, a commission which addressed itself to the substantive reform of the criminal laws of the State of New York suggested reforms, substantive reforms in the way that the language was stated in New York State laws on big chunks or titles of the New York Code. Thank you, Mr. Chairman. Mr. FATJNTROY. Thank you. And I appreciate so much your taking the time to be with us. Mr. BREOKINRIDGE. Mr. Chairman. Mr. FAIJNTROY. Yes, Mr. Breckinridge. Mr. BREOKINRIDGE. I am going to look forward to reading, with a great deal of interest, so much of the language as Mr. Nelsen read into the record explaining and, indeed, limiting his bill. I am fascinated, John, by a commission that is going to examine the common laws and statutes of the District, the ordinances and regulations of the District, all relevant to judicial decisions of the District, for the purpose of discovering not only defects and anacronisms, but also inequities and recommending needed reforms; receiving from all sources proposed changes in the law; and really, bringing both the civil and criminal law into harmony with modern conditions, which I consider one of the most far-reaching statements and ambitious recodification programs I can imagine. That has nothing to do with that other portion that goes on to the appropriation and recommendation of proposed uniform rules of practice concerning conduct of hearings and administrative act prac- tices and procedures act, a manual involving relevant legislative his- tory and legal precedents. I think that is a tremendously important function and a lot larger than what I hear you talk about here. Mr. HOGAN. Well, as I indicated Mr. Breckinridge, this language in the Nelsen-Fuqua bill is taken from the New York State Code. I think it may be enlightening to listen to the individuals who are here from the State of New York testifying on this and I hope it clarifies the issue. PAGENO="0044" 40 But I think, as you are indicating, the Committee can make this what it wants to. And I suspect that in the State of New York-and that is why in the Nelsen bill Congressman Nelsen and Congressman Fuqua did not establish an open-ended authorization for this. I think you can appreciate the fact that they saw this as a rather scholarly group of people who would address themselves to questions-the ques- tions which are enumerated there-and then to a larger extent, rather than having a large professional staff such as the National Commis- sion on the Reform of Criminal Laws, they would have a relatively small staff, and there would be a substantial amount of volunteer serv- ices provided by the legal community. Mr. BRECKINRIDGE. I would subscribe to the principle of that gen- eral approach. We codified the laws of Kentucky with just that sort of a man with a volunteer commission who would be able to recognize practitioners; and he did the whole thing in a containment period of time. It is not some seven or eight volumes compared to that. It is main- tained by a revisor and a secretary and some clerical assistants. You can make anything you want of that, but it is still the breadth of the reach of a program is what I think we are discussing. Mr. HOGAN. That is correct. Yes, sir. And I think that perhaps the other-the testimony for the individuals for New York State, will be helpful; and of course, it is up to the subcommittee to determine what scope you want to study, and if you want it broader, certainly the lan- guage is there to provide it. Mr. BRECKINRIDGE. I just thought the language was very interest- ing, particularly that part "in the harmony of modern conditions." I do not know whether I prefer that personally or not. I think I would like that back there a rather narrower term. Mr. HOGAN. Maybe the drafters for the New York law got carried away, and we emulated them. Mr. FAUNTROY. Thank you. And I appreciate so much your coming. We do have, certainly, one of the more distinguished lawyers in our company, who is the chairman of the New York State Law :Review Commission, in the presence of Mr. John MacDonald; and we are going to ask that he come forward now and give us the benefit of your very considerable experience with the task which you want to give to the Commission. STATEMENT OP HON. IOHN ?AaCDONALD, CHAIRMAN, NEW YORK STATE LAW REVIEW COMMISSION Mr. MACDONALD. Thank you, Mr. Chairman, members of the com- mittee, and staff. The New York Law Review Commission has been in existence since 1934, and I went on in 1934 as executive secretary and director of research of the commission. I bought the first pencil and the first yellow pad, and in 1956 I went on the commission'; in 1958 I became its chairman, and I am chairman yet. What I am going to present in this written presentation is a sort of a background of the New York Commission. It is spread all over the world today in the English common law countries. Practically every province in Canada has one; practically every province in Australia has one. After the war, the English Commission was set up. In 1934 PAGENO="0045" 41 when we were set up, 2 months earlier a commission was set up with comparable prowers in England, but it disappeared during the war. There are certain differences. The differences primarily are in what can be studied. In England the only things that can be studied are what the Lord Chancellor proposes to them. Now, as a practical matter that does not really mean an awful lot, because I talked with the chairman of the British Commission when he was first appointed, and he said that is not going to be a problem at all. The Lord Chancellor will suggest to us that which we suggest to him. In California, which has our statutes in the sense of the powers of the commission, the commission is required to report to the Calif9rnia Legislature that on which it is going to study in the coming year, and the legislature may veto any proposed study that they make. We have a complete jurisdiction, and in both of these bills, they are substantially copied out of our bill so far as the jurisdiction is concerned. With that as a sort of an introduction, let me present tins written material which gives the basis of our organization. BACKGROUND OF NEW YORK COMMISSION In 1921, Judge Benjamin N. Cardozo, then a judge of New York's highest court and later a justice of the Supreme Court of the United States, proposed the establishment of an agency, which he called a Ministry of Justice, "to mediate" between the courts and the legisla- ture. And that "mediate" was really to be a messenger between the courts and the legislature. In an article published in the Harvard Law Review, he stated in characteristically beautiful prose: The courts are not helped as they could and ought to be in the adaptation of law to justice. The reason they are not helped is because there is no one whose business it is to give warning that help is needed. . . . We must have a courier who will carry the tidings of distress. . . . Today courts and legislature work in separation and aloofness. The penalty is paid both in the wasted `effort of pro- duction and in the lowered quality of the product. `On the one side, the judges, left to fight against anachronism and injustice by the methods of judge made law, are distracted by the conflicting promptings of justice and logic, of con- sistency and mercy, and' `the Output of their labors bears the token of the strain. On `the other side, the legislature, informed only casually `and intermittently of the needs and problems of the courts, without expert or responsible or disinter- ested or systematic advice as to the workings of one rule or another, patches the fabric here and there, and mars often when it could mend. Legislature and courts move on in proud and silent isolation. Some agency must he found to mediate between them. This task of mediation is that of a ministry of justice. It was in response to this plea for the creation of a ministry of jus- tice that the Law Revision Commission was created in New York in 1934 as a permanent body vested with the responsibility of examining the laws of the State, both statutory `and decisional, with a view to their revision in the light of modern conditions. The Commission was charged with the following duties: 1. To examine the common law and statutes of the State and current judicial decisions for the purpose of discovering defects and anachronisms in the law and recommending needed reforms. PAGENO="0046" 42 2. To receive and consider proposed changes in the law recommended by the American Law Institute, the commissioners for the promotion of uniformity of legislation in the United States, any bar association, or other learned bodies. 3. To receive and consider suggestions from judges, justices, public officials, lawyers, and the public generally as to defects and anachronisms in the law. 4. To recommend, from time to time, such changes in the law as it deems nec- essary to modify or eliminate antiquated and inequitable rules of law, and to `bring the law of this State, civil, and criminal, into harmony with modern conditions. By express provision of its enabling statute the membership of the Commission is limited to five Commissioners, appointed by the Gover- nor, four of whom must be attorneys admitted to practice in New York State, and "at least `two of them shall be members of law faculties of universities `or law schools within the State." In addition, the chair- men of the Judiciary and Codes Committees of the Senate and As- sembly are ex-officio members of the Commission. NEW YORK COMMISSION PROCEDURE One of the first acts of the 1934 Commission was to appoint an Executive Director and Director of Research, these dual functions being for many years assigned to one individual. It was his respon- sibility to acquire a research and clerical staff `and to organize the work of the Commission. Headquarters were established at Cornell Law School in Myron Taylor Hall, thus making available `to the Commis- sion's research staff the excellent facilities of the university's law li- brary. This arrangement continued until July 1970 at which time the Oommission transferred its headquarters to Albany, New York's cap- ital city and center of State government. Once organized and headquartered, it became necessary to develop a plan of research for the Commission. It was decided that instead of members of the staff being assigned to individual commissioners with duties comparable to law clerks to judges, the Director of Research would be responsible to the organization as a unit and would direct the entire research program of the Commission. The Director of Research submits a projects report annually to the full Commission, which determines the calendar for the ensuing year. This calendar of topics for study falls into three main divisions: (1) The immediate study list, i.e., those projects `on which study has been authorized and which will be assigned by the director of research; (2) The reserve list, i.e., those topics not rejected or referred elsewhere on which study has not yet been authorized and which will be reexam- ined; (3) The suspended study list, i.e., those topics which have been previously studied, including in large part subjects which reached the stage of a proposal being submitted to' the legislature but which was n'ot accepted by it, and also subjects as to which it was decided after study to make no recommendation for legislation; and including, in lesser part, those subjects on which study was begun but, for Some reason, was not completed. The basic research of the Commission i's carried on by research as- sistants, who are members of its regul'ar staff, and by research con- sultants engaged only for a particular topic. The consultants are usually law professors or lawyers with offices remote from the Com- mission's headquarters. Research assistants are employees of the State and are part of the State civil service, although not a part of the clas- PAGENO="0047" 4~ sifled competitive service. Research consultants are independent con- tractors reimbursed by an "honorarium." For the most part a typical research assistant is a high-ranking recent law school graduate who takes the job as a temporary step in obtaining experience and prestige. The research consultant, on the other hand, is usually a member of a law school faculty, sometimes of outstanding prestige and authority, and sometimes, as is equally possible, a* young professor who desires to supplement his income and to obtain the professional prestige which attaches to an appointment as consultant to the Commission. In the case of a very large study which is engaged in over a period of 6 years by the direction of the government, namely the study of the uniform commercial code for recoimnendation for changes, after it had been enacted in Pennsylvania but prior to the time that it had been enacted in any other State, we made the study. We had over 20 research consultants on the study. They represented some of the great- est authorities in the country in the area of commercial transactions- members of the Harvard faculty, members of the Columbia faculty, members of the Ohio State faculty, members of the Cornell faculty, members of the Columbia Law School faculty, there were over 20. For 6 years we engaged in no work at all except reporting on the Uniform Commercial Code. Projects suggested for study by the commission are received from outside individuals or groups, or are developed internally from the Commissions' own study of New York law. NEW YORK COURT CASES We have examined over three times all of the opinions of the New York courts published in the miscellaneous reports, published in the appellate reports, and published in the court of appeals' reports, for any indication of the reluctance on the part of the court to follow precedent. We had all sorts of keys with regard to that, and except for such and such a case we would have decided differently. To this, we rec- ommend this particular topic for the New York Law Revision Com- mission for study. It goes even to the point that in deciding certain cases, the New York courts have decided a case and passed a resolu- tion to the subject of the case to the Commission for study. We decided a case on the basis of Jones against Smith; except for Jones against Smith we would not have decided it this way. We recommend, we resolve to refer this to the law revision for study. Outside suggestions follow no particular patterns, and may be well detailed or only briefly stated. Usually they give no more than a mere idea of the nature of the desired change-an unbriefed, unresearched idea. This is true whether the suggestion comes from the courts, from the Governor, from the legislature, from public officials, from lawyers, or from the public. At least half a dozen times in the last 10 years studies on our pro- gram have come by direct reference to us from the Governor of the State. Half a dozen times problems have come to us by resolution of a house of legislature or of both houses of the legislature. When the project suggestion comes from the Commission itself- either from one of the members or from the staff-it usually has been PAGENO="0048" 44 very carefully considered before being proposed. This is the source of most topics for consideration. The research study is the heart of the revision process. When you start up, if you do start it up, this Commission in the District, that is gomg to be something that the head of the staff has got to realize; that the research study is the heart. The purpose of each study is to provide the Commission with a thorough review of the problem in all its varied and related aspects, so that a correct conclusion can be reached as to wether or not legis- lative action is required, and if such action is to be recommended, how it is to be formulated. The studies made for the Commission are pub- lished in its annual reports. When the Commission decides that legislative action is desirable the proposed statute is drafted by the Commission, although in New York we have a bill drafting commission which will draft anything for anyone in the legislature. I always use as one illustration, they drafted during prohibition, they drafted a statute that permitted the dismemberment of New York and the secession of the long New York counties and the Long Island counties from the State. They will be perfectly willing to draft any statute at all, anything that is referred to; but we draft our own in bill form accompanied by a short, explanatory, statutory note. This is a short, small 10-line summary printed right on the bill. It is a bill recommended by the law revision, and its purpose is to do such and such; and a recommen- dation of the Commission, which is a concise review of the problem, is presented in the research study. Since its creation in 1934, the Law Revision Commission has func- tioned as an intermediary between the courts and the legislature. In doing so, it has confined its activities to the field of substantive law following the guiding hand of Cardozo who felt that this was the proper area for its activity, for here were needs not articulated, and voices that were not heard. There is another reason for that. We have in New York-we had in New York at this particular time in 1934 a judicial council which had procedure, and we have now a judicial conference which suc- ceeded it, which takes up procedure. So we just have a very sharp dif- ferentiation between the procedure and substantive law. As others have testified, it has done its job well and has been ac- cepted by both bench and bar, and by its creator, the legislature, as "the official medium for fashioning proposed statutory correctives for maladjustments in the substantive law." NEW YORX COMMISSION'S 40 YEARS The New York State Law Revision Commission is about to enter its 40th year. It is one of the oldest continuous agencies for the ac- complishment of law reform through legislation in the common-law world. It has studied and recommended its conclusions on hundreds of topics, large and small, and it has seen a very active stage legisla- ture accept those conclusions by the enactment of statutes in an im- pressive number of cases. Significantly also, and this is a very important thing that it has done, it has pinpointed problems for the courts so that in some cases where no recommendation was made, and even in some cases where PAGENO="0049" 45 the legislature has not accepted its recommendations, the courts have reconsidered old rules and principles and have rejected them and started out on new paths, released from the binding shackles of the old cases. I will give you two examples. In 1934 we studied the question as to the liability of a negligent tort feasor for prenatal injuries, and we recommended no legislation. Fifteen years later the court of appeals overruled the case and cited this study. A second illustration in a very important field was in the field of liability on breach of warranty, where there was lack of privity be- tween the parties. In other words, New York had a very strict privity rule. The person who purchased got the benefit. The husband might have gotten the benefit through principles of agency, but no child or no guest would get the benefit. Through the functioning of the Commission to adjust and perfect the law through revision, an attempt has been made, and successfully continued, to bring the common law at it has been developed through the doctrine of judicial precedent and through statutory enactment into line with modern concepts of justice and equity. The progress that has been made has been due to the intervention of the legislative branch of the government of the State. But in order for the legislature to act to change a law, it has got to know that a need exists. In order that it might know, it has had to be informed and assisted with expert, disinterested, responsible, and systematic advice. This advice, I submit, the New York Law Revision Commission, through its recommendations, has provided during the past 39 years. Thank you. Mr. FATJNTROY. Thank you so very much, Mr. MacDonald. Your testimony was certainly to the point of many questions that we have to deal with in shaping this legislation; and I hope you will bear with me as I ask a number of questions based on our need to take the best ad- vantage of your experience in New York. NON-LAWYERS First of all, you mentioned that four of your five members of the Commission are lawyers. Do I take it that it is not a requirement they all be lawyers? Is that it? Mr. MACDONALD. It is not a requirement that they all be lawyers. Now, I have got to make a very significant comment with respect to that. Since we were organized, there has oniy been one nonpracticing lawyer appointed to the Commission, and `he had an LL.B. and from that time on everybody that has been appointed has been a lawyer. Mr. FAUNTROY. You have noted our dilema between-with respect to the size of the Commission. Mr. MACDONALD. Right. Mr. FAUNTROY. We have one recommendation of 9 and the other of 15. Given the task as you understand it in in the District of Columbia, what would you recommend as the size? Mr. MACDONALD. Well, this is a very hard question to state jurisdic- tion. Two years ago, I was before the Alabama Bar Association at Mobile when they were just establishing-in fact, they had just es- tablished the law revision commission for Alabama. They had 150. 28-2380-74-4 PAGENO="0050" 46 Now, I'll tell you where they got that. About the time that we were organized, Louisiana established a State law institute. They modeled it on the American Law Institute, and they put on something like 150 or 200 lawyers. Now, it's been a really successful commission, but obviously it's had to rely on-it must have-on some few of them for the work. When I was in Alabama, I said I wouldn't see how it could be done, but in a certain sense, I was talking out of 39 years with my own Commission. The mere fact of getting a meeting together with five people, and get- ting 5 separate days with five practicing lawyers is itself a difficulty. We have to meet with the five. The five is a quorum of nine. We have really nine with the ex officio members, but the ex officio members are ex officio members of a lot of things, and they just don't come to this regularly. And the burden of the work-and incidentally, the salaries are all in the appointed five. Now, the five have got to include two law teachers, four have got to be lawyers. it could be that at any time a Governor could appoint a noniawyer. Mr. FAUNTROY. Thank you. SCOPE OP COMMISSION Should there be an emphasis by our Commission in your judgment on the criminal code revision, as against a civil? Mr. MACDONALD. Well, let me tell you the history on that. In `about 1934 due to the interest of the then chairman of `the Commission, we took on a study of the criminal law of New York. We were taking on a lot of studies, too, so we never intended this to be an immediate study. By 1940, the study completely disappeared, and the reason was this. With the coming of the war, we couldn't get staff. We just couldn't get staff. The young lawyer was in the Army or the Navy or the Air Force, and he just wasn't there and available. And it disappeared. By 1950, when the thing started upward again, we kept going all through the war, but by 1950, we were on the Uniform Commercial Code, and so a special legislative committee-on which, incidentally, Herbert Wecksier, the present director of the American Law Insti- tute, was a member. And they took over the Criminal law. Now, I've written with respect to this problem, the problem of the existing legislative committee to study certain matters in the St. Louis Law Review. And what I said in that was this, that at no point did I think that the law revision commission should take on everything. It's just too much. They've got to keep in mind Cardozo's point, that the point is that you're there to look at a lot of little things. Is it a good thing for a rule to be implied in the courts that imputes contributory negligence to children non sui juris? If I was walking down the street, two children on the side of me, one of 9, 12 and 3, my negligence under a decision of 1830 in New York would `be imputed to the child of 3, to prevent him from suing. Now, that's a bad rule of law. There were hundreds of these problems of judicial decision. As I have been listening to the colloquoy that's been going on so far, the statutory law is not the main source of what you're going to be doing. The main source of what you're going to be doing are doctrines PAGENO="0051" 47 and decisions of the court. Sixty precent of our work goes back to de- cisions of courts even yet. We've cleared up the statutes pretty well. You get the statutes cleared up, and these well publicized anachronisms, you can get them cleared up in 3 or 4 years. You're going to be there looking at the com- mon law, the decisions of the courts; and those decisions never stop. They constantly are coming along. Mr. FAUNTROY. Well, do you see any particular problems in having a single commission to deal with both? Mr. MACDONALD. None whatever; it was only an accident in New York that we didn't do it, the war, the Second World War. Mr. FAUNTROY. Should the Commission, in your judgment, be em- powered to initiate projects, or should it be in its undertaking only projects that are referred to it by, in our ease, by the Congress, or the Corporation Counsel? Mr. MACDONALD. I think it should be enabled to go as wide a choice as it wants, because always the commission has got to deal with Con- gress, and it's going to have a very, very effective control over it. And it's going to have to realize that Congress gave and Congress can tak3 away; that is Congress created and Congress can abolish. And it's going to have a very careful set-up with Congress. Believe me, when I was very young, and the executive secretary, a very wise old chairman of the judiciary at New York, the senate, said look, MacDonald, don't become the third house of the legislature. In other words, don't you get the idea that you can give and you can take and you can recommend, and talk in terms like that because we can abolish you. CONSULTANTS Mr. FAUNTROY. Well, should this Commission be empowered to contract with outside consultants, or should all research be done by its own staff? Mr. MACDONALD, Well, let me give you the type of thing that we did in the Uniform Oommercial Code. We studied the impact of the commercial code on the law of contracts. For that, we had Prof. E. W. Patterson of the Columbia Law School. We had the code as a code. I've been listening a lot to your District of Columbia Code. The code is a code. A code is something in which all the law is right in the code. Your District of Columbia Code obviously is not quite that kind of code. It's a consolidation more than it's a code. You can go to the law of Maryland, and you must go to the law of Maryland in certain instances. We had Prof. John Hanna, Columbia. You should be able to go to the best you can find. And incidentally, by the way, the expense of getting these people is much less than you would expect~ These people will take that kind of job for the prestige of it as much as anything else. Mr. FAUNTROY. Can you estimate the size of the appropriation that might be necessary for our commission to take on? Mr. MACDONALD. I can tell you what we had. Mr. FAUNTROY. it might be helpful. Mr. MACDONALD. $350,000, but we have to pay rent out of that. Mr. FAUNTROY. What kind of staff does that include? PAGENO="0052" 48 Mr. MACDONALD. It includes-we've got some vacancies at the pres- ent time. It includes an executive director, an assistant executive di- rector, and three or four staff attorneys. These are well paid at the present time. The day of getting people at $1,800, which I used to get back in 1934, is gone. Mr. FAUNTROY. I see. Thank you. Minority counsel, do you have questions? Mr. HOGAN. Yes, Mr. Chairman. Do you see any problem-you've had an opportunity, I assume, to read both bills? Mr. MACDONALD. Well, I didn't have much of an opportunity. I got them yesterday. ADMINISTRATIVE LAW Mr. HOGAN. Well, in the bill that was introduced by Congressman Nelsen, as you probably may have noticed, there was some authority given to the Commission to get into the administrative law side of the business. Do you have any views on that? Mr. MACDONALD. Yes, I think it would be a good idea. We've gotten into the administrative law in this sense of the word; we were charged by the legislature and the legislative resolution that was passed to study the desirability and feasibility of an administrative procedure act for New York. And we don't have an administrative procedure act. We don't have one yet. I mean each agency has its own procedure, and some of the proce- dures are very satisfactory, and some are atrocious. The general problem of judicial review is solved primarily by a statutory extension of the old writ of certiorari. And we proposed an administrative procedure act for New York. And it was study that took 2 or 3 years. We interrogated every agency that we could lay our hands on through the same budget and whatnot. And it was finally vetoed on a very, very minor point, but it's never been able to get passed, either a conference between the Judiciary Committee in one house and the Governor's office. So it's fallen by the wayside. I don't know whether we would have had anything further to do. We were ready to move on to administrative procedures so far as the municipal corporations for the State are concerned. And we started that out by a very elaborate study of zoning. And we were going to make a zoning study and work into the general administrative proce- dures with regard to other types of municipal corporations; which of course in New York is far different from the District. I mean we've got counties, cities, towns, and villages, and each one have their own procedures. So it would have been a very elaborate study, but we haven't gone on with it because we haven't yet got the State procedure act. COMMISSION'S BUDGET Mr. HOGAN. Now, as far as your budget is concerned, you say it's currently $350,000? PAGENO="0053" 49 Mr. MACDONALD. Approximately. Mr. HOGAN. And this- Mr. MACDONALD. Well, that includes the commissioners' salaries, because the commissioners get $14,000 a year. Mr. HOGAN. I mean to ask you about that also. I assume-how much time do they spend? Is this on a ~er diem- Mr. MACDONALD. About a third; no, it's on a regular State salary. Mr. HOGAN. Regular State salary, I see. Mr. MACDONALD. But they are required by law to be practicing lawyers in the case of at least four of them. Mr. HOGAN. I assumed this is based on their prestige in the commu- nity and the salary they command other than the time they spend here. $14,000 is probably far inadequate to recompensate them for the salary they might command elsewhere, other than serving on this committee. Mr. MACDONALD. That's right. Mr. HOGAN. As far as the $350,000 budget is concerned, would you think that there would be more work for a commission in New York than there would be for one here in the District of Columbia? Mr. MACDONALD. The work is practically in its own hands; I mean, each particular local law revision commission is going to decide what it itself does. We shoot for about a third of the time of the Commission. Mr. HOGAN. Now, turning for a moment to the- Mr. MACDONALD. I can break that $350,000 down. Mr. HOGAN. That's fine. Do you have a budget or something for the Commission? Mr. MACDONALD. Well, I have the allocation which you might find of interest. Mr. FAtTNTROY. Are you able, sir, to leave that for the record? Mr. MACDONALD. No, I'm not able to leave that for the record. And what it is, it's a certificate of the director of the budget that's allocating our next year's appropriation. Mr. FAUNTROY. It might be useful, and you'll send it to us? Mr. MACDONALD. Okay. I'll send it. [The information referred to was not received in time to be included in the record.] Mr. HOGAN. Turning to the discussion we had here earlier on that- Mr. MACDONALD. I just thought if I could put this in-we always have to consider about $25,000 or $30,000 for printing of our reports. Mr. HOGAN, That's all part of your budget? Mr. MACDONALD. That's all part of our appropriation. SCOPE OF COMMISSION Mr. HOGAN. Turning to the discussion we had earlier with some of the witnesses, we have had a problem heretofore up here, and Con- gressman Nelsen wanted to insure that his bill did not get tied up with that controversary having to do with where the jurisdiction would lie for the reform and recodification, such as that carried on by this National Commission on the Federal Criminal Laws. Originally, as you probably heard, Judge Nebeker testified there was a commission established, apparently about 4 years ago, that was PAGENO="0054" 5~O made up of a number of Members of Congress, other lawyers in the community. And. they were going to, in effect recodify the District of Columbia Criminal Code. And that would be a substantive recodifice tion. Thence, it would be referred to the Congress, and presumably, they would adopt the criminal code as a particular or as a total title, such as has been done with title 18 of United States Code. He did not want to get this type of commission which he had incor- porated in H.R. 7658 involved in that type of reform. Now, does your commission do that kind of thing? Mr. MACDONALD. The answer is that after 39 years we probably wouldn't do it on our own initiative, but we would do it if we were directed to do it, by whether the legislature or the Governor. Mr. HOGAN. In other words, in the case when you did it with the Uniform Commercial code, I assume that the Uniform Commerical Code- Mr. MACDONALD. That was done by direct assignment of Governor Dewey. Mr. HOGAN. So that New York City comprises one title of the New York State Code? Mr. MACDONALD. It's just one of the New York consolidated laws. Mr. HOGAN. So that, you received a specific mandate? Mr. MACDONALD. A mandate from Governor Dewey. Mr. HOGAN. Well, see, the problem here is that we do have some jurisdictional problems between this committee on the one hand and the Judiciary Committee on the other, and Congressman Nelson did not want to get involved in a jurisdictional dispute. That's fine. Thank you. Mr. FAUNTROY. We are getting to the point where we're going to have to go to the 5-minute rule on questions. Maybe the record could also show, I think, Mr. Hogan, that while that codification of crim- inal law was authorized in 1966, it began in 1967. It was not funded until 1970, 1 year before the Commission was to go out of business; and therefore, never was done- Mr. HOGAN. That's correct. It never performed its function. I think it went out of existence in September 1970. Mr. FATJNTROY. Mr. Breckinridge? Mr. BRECKINRThGE. I thank Chairman Mr. MacDonald for taking time out from what I know is a very full and busy life to let the com- mittee and to let the Congress have the benefit of your many years of experience in what is recognized as one of the leading agencies of its kind in the country. Mr. MacDonald, I get the feeling, John, as I listened to our witness and reviewed his remarks-I'm sorry I had to leave, but we've got a bill on agriculture over there, and we've got 150 amendments, I think. So I missed a part of your testimony. But I was saying, I believe from what I heard and from what I said, the language of the New York act is subject to a much broader construction then, perhaps, Mr. Hogan has been giving it. I think you heard the discussion that took place earlier. Would I be correct in that assumption? Mr. MACDONALD. I think so. We've never had a bit of trouble with jurisdiction. PAGENO="0055" 5.1 Mr. BRE0KINRIDm. As I review the last two or three pages of your testimony, Mr. MacDonald, I have a difficulty in distinguishing between what I would refer to, and perhaps look at the language of the Statute Revision Commission function, or a statute revision func- tion on the one hand, and a legislative research commission or counsel, for the purpose of general assembly on the other hand? Mr. MACDONALD. There's a sort of distinction between the Wiscon- sin reviser of statutes and us. It was-the Wisconsin reviser of stat- utes is in a completely revision sense of the word. He looks at the mechanical words of the statute, and he has got a sort of general power to put the statutes into the Wisconsin, whatever kind of organi- zation. And he has that power on his own, unless the legislature changes it. He can edit. And we did some of that work at one time. It's interesting work, but it's not the most stimulating work. Mr. BRECKINRIDGE. Is that where you get the so-called anachro- nism? Mr. MACDONALD. Repeals by implication and declarations of uncon- stitutionality? Mr. BRECKINRIDGE. Right. Now, am I correct in understanding that there is no other agency or board or commission in conjunction with the legislature of New York State that works with it in drafting and the preparation of re- peals, and the conduct of research resulting in legislation? Mr. MACDONALD. There's a half a dozen joint legislative commit- tees that are set up every year to take on big, enormous jobs like the whole revision of the decedent, estates law that surrogates' court act, the real property law, the estates powers and trust. `Mr. BRECKINRIDGE. This is on ad hoc basis? Mr. MACDONALD. This is on an ad hoc `basis entirely. Mr. BRECKINRIDGE. This is the only continuing? Mr. MACDONALD. Except the judicial conference, which takes care of procedure. You have to remember that in New York procedure is practically a great god. I mean, it was the first State that adopted a code, the code of procedure, in 1848. And in fact, there's a codes com- mittee of the legislature, of each house of the legislature, that goes back to that particular time. Procedure is absolutely separate `at a substantive level. Up until 3 or 4 years ago, we gave a 1-day examination on the bar examination on procedure, and procedure alone. Mr. BRECKINRIDGE. Well, then, I think, Mr. Chairman, I would be correct in stating for the record, subject to contradiction by the wit- ness, that the draftmen who put together this piece of legislation under which New York Commission operates, contemplated the broadest duties and responsibilities that are comprehensible. Mr. MACDONALD. That's right in the area of substantive law. Mr. FAUNTROY. Thank you, Mr. MacDonald. Mr. BRECKINRTDGE. I want to thank you very much. Mr. HOGAN. Mr. Chairman, may I just state, I don't know whether Congressman Breckinridge was here. My only concern is that where you have a reform of a substantive law, such as you have here in title 18 of the United States Code. there are jurisdictional problems here in the Congress that we have had in the past. And Congressman PAGENO="0056" 52 Nelsen wanted to insure that we did not get into a dispute with another committee of the Congress. Now, if I understand correctly, yours is a very broad general man- date, as contained in the New York law. Mr. MACDONALD. Our bills go to every committee of the New York Legislature. Mr. HoGAN. But on the other hand, you don't undertake to revise Title 23 of the New York State Code. You didn't undertake to revise the uniform commercial code without the New York Legislature tell- ing you to do that? Mr. MAcDONALD. That's right. We won't enter into any area of law in which there's an existing State Department with a counsel. We won't do anything in the tax field, for instance. Mr. FAtTNTROY. I think you've made your point very clearly. Counsel has a couple of questions. Mr. DANIELS. Professor MacDonald, am I correct in assuming that the New York Law Review Commission statute was originally passed and contained no restriction as to the life of the Commission? Mr. MACDONALD. That's right. There's only one thing to say about that is that every year there's always a restriction about the life of the Commission. Mr. DANIELS. Well, I assume you seek an appropriation. Mr. MACDONALD. We have to get in the budget. Mr. DANIELS. So there is some oversight in your need? Mr. MACDONALD. I can give you a histbry on that on the New York Judicial Council. It was going along great. Everything was fine until all of a sudden the day before a session adjourned it was abolished, and that was the end of the New York Judicial Council. LIFE OF COMMISSION~ Mr. DANIELS. As you probably gathered from the discussion we had earlier, one of the bills before us contains a 4-year term. Mr. MACDONALD. I don't think it will hurt in the slightest. I don't think it will help in the slightest. Mr. DANIELS. You don't think it makes any difference? Mr. MACDONALD. I don't think it makes a particle of difference, because I think even within that 4 years. the Commission has got to justify itself. And if it doesn't work, and if it doesn't produce-wait until I tell you what happened to the California Law. Revision Commission. It just was organized, and all of a sudden the California Supreme Court established the rule with regard to State and municipal im- munity from liability for its torts. And then all of a sudden, the Cali- fornia le~isl*ature passed a law that directed that that not go into effect until the California Law Revision Commission had reported with respect to it. And their work was completely determined for it on a 6-day basis. I mean the minute that bill passed everything that they did was dropped, and they lust went into that. They're absolutely_they're the creatures of the le~islature. And your Commission will he a complete creature of Congress, and believe you me. they better know it. PAGENO="0057" 53 Mr. DANIELS. I understand that your Commission does do periodic reports to the legislature. Mr. MACDONALD. It does it annually. Mr. DANIELS. Do you have a copy of your most recent annual report? Mr. MACDONALD. Yes. I can send it to you. Mr. DANIELS. Mr. Chairman, may we have that inserted? Mr. MACDONALD. We bind them. Mr. DANIELS. How long is this report? Mr. MACDONALD. 700 or 800 pages. Mr. DANIELS. Perhaps, Mr. Mr. Chairman, we could have that put in as an exhibit, to be placed in the committee record of this hearing, so that someone examing it Mr. MACDONALD. I `can send you a complete set except for those that are outof print. Mr. DANIELS. I think it would be sufficient to receive the 1973 bulletin to the New York State Legislature. [The material referred to will be found in the files of the subcom- mittee.] Mr. FREEMAN. Mr. MacDonald, what's your batting average over the course of years? Mr. MACDONALD. I'd say about 60 percent, although I never talk about a batting average because the fact that we consider that our work is done when we've reported to the legislature. We do no lobby- ing, no lobbying at all. Mr. FREEMAN. You mentioned that a lot of your work is done based on getting the law in line with your new judicial philosophies. On the question of permancy of the Commission, is it your opinion thst there will `always `be work to be done by this type of commission? Mr. MACDONALD. Oh, heavens, yes. Right now, we've engaged in what might be called the abolition of the distinctions between real and personal property, so far as warranties are concerned. But we've got what we call a housing merchant bill. And if you don't think that there is just absolutely general hell to pay with respect to that-oh, brother. Mr. FREEMAN. We're well familiar with hell to pay on the Hill. Mr. FAUNTROY. Thank you so much, Professor MacDonald. Now, we will hear from Mr. Frank J. Whalen of Spencer, Whalen, and Graham. Mr. Whalen, I want to express to you also my appreciation for com- ing and taking the time to share your thoughts with us. STATEMENT OP PRANK WAHLEN, ESQ, OP SPENCER, WHALEN & GRAHAM Mr. WITALEN. Thank you very much, Mr. Chairman. I have a statement. I will try while I read the statement to comment on the questions that have been raised here, so that I tie down what I say to what has gone before. I must say this, lest I forget it, that I brought summary reports of the New York work which appeared in the session laws of New York State for 1972, 1971, `and 1969. We didn't bring the intervening one, be,cause I got a report frOm my law clerk that it was rather a sparse area, and he thought these would be more interesting. PAGENO="0058" 54 And I would be glad to leave these with the committee so you could fill that gap immediately. Mr. Chairman and members of the subcommittee, my name is Frank J. Whalen, Jr. I have resided in the District of Columbia or in nearby Prince Georges County for 27 years. I have been engaged in general private law practice since 1950 in the District of Columbia. I am most grateful to the Judiciary Subcommittee for this oppor- tunity to present my views on the proposal for the Law Revision Com- mission which was recommended by the Commission on the Organiza- tion of the Government of the District of Columbia, which is embodied in III.R. 7412 and }I.R. 7658. I wish to make it clear that I am appearing as an individual and not on behalf of any organization. I'm presently director of the Bar Association of the District of Columbia, and it has been my good fortune to have had fairly extensive advisory functions with reference to the District of Columbia Court Reform and Criminal Procedure Act of 1970, and the subsequent development of procedures particu- larly in the superior court, but I appear today only as an individual. I might say parenthetically that I'm a member and have been, since its beginning in 1970, of the advisory committee in the superior court on civil rules, and I think that has given me some insight that can bear on matters such as the size of the Commission. SCOPE OF COMMISSION I concur in the reasons which are stated in the report of the Nelsen Commission urging t;he establishment of a Law Revision Commission. In addition to the reasons articulated in the report, itwould be my expectation that the government of the District of Columbia would be assisted materially by the work of such a commission in the fol- lowing ways: one, proposals for legislative enactment, modification of existing rules of law, and deletion of antiquated and unsuitable provisions would, I believe, be exposed to study and comment by a much broader segment of the community than occurs under the pres- nt system. The appointment of the members of the Commission from a broad spectrum of the community should engender an attitude within the Commission and its staff of studying issues from all possible points of view, with the objective of determining accurately what the remote consequences of changes in law will be and of exercising appropriate judgment in selecting among alternative solutions. Two, the bias involved in many legislative proposals can be detected and more equitable solutions given fuller consideration. In many in- stances proposals for new legislation or for amendment of existing legislation come, quite properly, from a specifically interested segment of the population. Such proposals are introduced in the Congress or before the Dis- trict of Columbia Council and made the subject of hearings, but it is rather left to chance whether or not adverse conditions-extending beyond the bias of the particularly affected segment of the community -ever are appropriately discovered in the course of the legislative process. It should be, as I see it, specifically the business of the Law Revision Commission to delineate the probable competing considerations, to PAGENO="0059" 55 have staff studies made with reference to them, and to insist upon spe- cific inquiries of those persons in the community who might be affected by the proposed change, in order to assure that their views are received and given due consideration. As I am sure the subcommittee is aware, a substantial part of the ad- visory effort in modernizing various portions of the D.C. Code has come, for decades past, from the Bar Association of the District of Columbia. That is the old volunteer association, which is over 100 years old. This has been almost an entirely volunteer effort, with only incidental administrative support from the rather small association staff. On account of its volunteer nature, this effort has had to depend for its rather extensive accomplishments, which include such items as the new business corporation law, 1954, the nonprofit corporations law, 1962, and the modified wage garnishment law establishing percentage limitations, 1963, upon the interest of particular individuals who, for professional reasons, or out of sheer intellectual dedication, have un- dertaken the extensive effort to make the necessary studies, do the drafting, and prepare the necessary explanatory material. Subject matter such as the Court Reform Act of 1970 and the de- velopment of the Unified Bar for the District of Columbia, which was immediately related to it, comes very close to the activities of lawyers and their concern for their own profession, only it is comparatively easy to encourage sufficient volunteer effort with reference to problems of that type. On the other `hand, a much more organized effort-and one which has substantial governmental sanction and support-is needed to pro- vide a focus so that over a reasonable period of time a relatively sys- tematic revision of all the laws would take place. NEED FOR COMMISSION I am proud of and admire profoundly the bar association's effort, but a few examples of what has happened in the past demonstrate, for me at least, the desirability of the Law Revision Commission. About 1961 when the wage garnishment la.w was being substan- tially modified in order to establish percentage limitations similar to those which `had previously existed in New York State, the modifying legislation was approved by a subcommittee in the House although it contained no exception to cover the support of wives and children. Eventually before enactment, this omission was observed and, after a long delay, was corrected by the insertion of what is now section 16-577 of the District of Columbia Code. The recently enacted legislation with reference to establishment of professional corporations in the District of Columbia was originally submitted, admittedly by the bar association, for introduction, despite the fact that it would have had a serious adverse and unfair tax effect upon persons who did not wish to engage in professional practice in corporate form and were continuing as sole proprietorships or partner- ships. . . . It would be reasonable to expect that the Law Revision Commission would be able to observe and' correct problems at a much earlier stage and be able to recommend to the ultimate legislative bodies provisions PAGENO="0060" 56 that would be free from the so-called "omitted case" and in technically more precise language. Haste has a tendency to create difficulties with legislation. Perhaps two of the best known examples that we have had in the District of Columbia have been the so-called Clark Proviso-so called because it was introduced by Senator Clark-relating to the property rights of spouses which was adopted in 1.957 and caused considerable grief until ultimately corrected in 1961. More recently, although the Consumer Credit Protection Act of 1971 was adopted with technical provisions which seem to me to make it clear that only attachments before judgment on wages were abol- ished, at least one judge in the District of Columbia has construed the legislation as abolishing all attachments before a judgment, despite the fact that such a step would mean the obliteration of quasi in rem jurisdiction and make the District of Columbia a haven for deposit of assets without fear of judicial power being exercised over them. In the massive .and generally brilliantly done Court Reform Act of 1970, there were several inadvertant misunderstandings about the prior-existing jurisdiction of the Court of General Sessions, and the statutory changes effected for the Superior Court actually left the Superior Court in some instances with reduced jurisdiction, despite the fact that the Court Reform Act in general was aimed at expansion of jurisdiction in that court. Accordingly, it is realistic to expect that the Law Revision Commis- sion would indeed, by systematic review, improve the results substantially. As the report of the Ancher Nelsen Commission indicates, the ex- perience of New York State with the Law Revision Commission is a persuasive precedent. I might say by way of apology to Mr. MacDon- ald, I never met the gentleman. Today, he has a tremendous reputation. I used a case book that was prepared by him a long time. What I have written prior to my meeting him, and I hope he'll bear with me if I've missed the boat. NEW YORK COMMISSION The New York Commission was established in 1934 largely as the result of writings and speeches by Justice Benjamin Cardozo, during an era which included not only the establishment of the Law Revi- sion Commission in New York and subsequently elsewhere, but also the development of the American Law Institute and its publication of the Restatement of the Law, which concerns itself largely with judge-made law. That the Law Revision Commission in New York is indeed a viable organization is demonstrated by the fact that some of their studies are undertaken at the direction of the legislature~ some at the direction of the Governor, and some at the request-indeed expressed in opinions- of the courts. It is obvious that the New York Law Revision Commission has exer- cised great selectivity as to the matter which it studies in any depth. It typically maintains a docket of; (a) work in progress, (b) topics carried on the calendar for future study, and (c) proposals for future consideration. Consequently, it reacts to what might be considered PAGENO="0061" 57 external forces and at the same time maintains its own internal func- tions for determining, in its own discretion, areas of study. It would be a reasonable estimate that the work of the New York Law Revision Commission during 1971, for example, concerned itself with not less than 200 pieces of legislation. Nevertheless, New York has developed a considerable degree of sensitivity as to which matters to expect the Law Revision Commission to deal with and which matters to leave to other study committees or commissions. For example, the Not-for-Profit Corporation Law, which became effective September 1, 1970, after 10 years of study, was the work of a- separate staff established by the Joint Legislative Committee. In adopting the new Business Corporation Law a similar technique had been employed, with the work extending from 1956 to 1963. With reference to the complete redraft of the law involving estates, powers and trusts, a special commission was established and worked nearly a decade. It would be my view that similar extensive work should not be under- taken by a District of Columbia Law Revision Commission, certainly in the beginning, because such major projects might well cause it to lose its general oversight function. However, the Commission could discern such areas and make appropriate recommendations. I might say that having heard the various colloquoys that I would opt for an unlimited jurisdiction. My experience in dealing with lawyers in the District of Columbia for a quarter of a century has taught me that they're very jurisdiction conscious. And it seems to me it would be better to have no doubt that the Commission has the ~uris- diction, and then leave it to the Commission to exercise its restramt as to how it proceeds. There are budgetary considerations. There are what you might call the general sociological and political considerations that can be brought to bear, and they will make themselves felt. H.R. 7412 AND H.R. 7~58 With respect to the choices presented as between H.R. 7412 and H.R. 7658, it is my view that the organizational provisions and appointing provisions contained in H.R. 7658 are preferable. I would hope that a substantial number of the members of the Com- mission would be individuals who are not on the District of Columbia or Federal payrolls. I might say that I had an opportunity to observe the kind of attendance at meetings that we get in the Civil Advisory Committee on the Superior Court, which is made up of approximately 15 people-5 judges and 10 lawyers-appointed from a very broad spectrum in the community. There's a representation from the Corporation Counsel's Office. There are people from the neighborhood legal services, and people from the plaintiff's bar and the defense bar, and some others that have had more generalized types of practice. And our experience has been that we get a good attendance. Now, if you take other organizations, such as the zoning commission or the board of zoning adjustments, where there are slots that are des- i~nated for public officials to come in, or their designees to come, some- times it's very difficult to raise quorum. PAGENO="0062" 58 tfleit~ nas been discussion of that in the Ancher Nelsen report it- s~1f with reference to the zoning act. And consequently, what I really envision is something of this sort; the work of the Court Reform Act of 1970, which was largely the work of the so-called Ellison Commis- sion. It was originally chaired by Judge Gesell, now a judge of the U.S. District Court. AMENDMENTS PROPOSED When he went on the bench, Mr. Ellison, who was a very eminent local attorney and who was in the process of retiring-he was well over 70-undertook the chairmanship, and did a tremendous job. He was appointed at the behest of the Judicial Conference. And it seems to me .that at least some of the staffing of this Commission can be of people of that calibre. It's a little bit like buying an absolutely super lawyer for about 10 cents on the dollar, and I don't think you can do anything more in the interests of the District and the country than going at it in that way. Indeed, I would anticipate that the optimum results from the Law Revision Commission would be obtained if a very substantial number of the Commission members were not governmental employees of any kind. Having a Commission composed of 15 members rather than 9 would conform more to my opinion that this should be indeed a work- ing commission and not merely a commission for supervision of a staff. A better cross-pollination of ideas and a stronger likelihood of having a reasonable balance between what I call creative legal imag- ination on the one hand, and solid knowledge of the existing statu- tory and other legal materials and judgment about them on the other, can be expected with the larger number of people. Although H.R. 7658 contains quite properly a provision which would require meaningful reexamination into the activities of the Commission before the end of the fourth year. I believe it should be understood from the beginning that the intention is that the Commis- sion will continue indefinitely. I would hope that the selection of the initial members of the Commission and the establishment of the staff would be accomplished in that expectation. I might say in response to the suggestion of Congressman Breckin- ridge that this volume that is here, Mr. Breckinridge, it's almost-it's 1,126 pages. That's 4 years. We had a District of Columbia Code in 1967, and this amount covers only 4 years. It has statutory materials and annotations in the usual way, but only the cases decided in a 4-year cases and some other material about the reorganization provisions in the District of Colum- bia government and that type of thing. The notion that a full review of the District of Columbia Code in any period of time, I think, is an impossibility. I don't think it can possibly be done. I don't think anybody can say we can do it in 10 years and do it, or 15 years and do it; because one of the things that you need to do is find out what it is that you have is going to be de- clared unconstitutional. You heard Chief Judge Reilly comment about the Replevin Act, which if enforced in accordance with its terms probably is uncon- stitutional in accordance with the decision of the Supreme Oourt. What has happened is that the committee, which I am a member, has devised the rules of the court to make it work constitutionally, PAGENO="0063" 59 and I think that Judge Reilly in his court will sustain us in that if they have to. So it's an absolutely immense job in my opinion. I would also prefer the provisions which are contained in H.R. 7658 dealing with the establishment of Uniform Rules of Practice and in general concerning the Commission substantially with admin- istrative law applicable to District of Columbia agencies. ADMINISTRATIVE PROCEDURE I might say with reference to the questioning of my friend, Mr. Murphy, that the history of the District of Columbia Administrative Procedure Act, which went into effect in 1968, demonstrates to me that we do not have uniform rules and regulations governing the agencies. The Nelsen report is very eloquent on that. If you read the newspaper clippings about the compliance of Dis- trict of Columbia Code section 1-1507, you'll find that that was a provision which required all the rules to be deposited within a period that was 1 year after the effective date of the legislation. And the plain answer was that it wasn't done. It was not done at all. It was done very poorly. It was really completely inadequate. And accordingly, I feel very strongly that a heavy role is to ad- minister the laws appropriate to this Commission. In that connection, I think it should be remembered that the District of Columbia is not only a quasi-State, so to speak, but it is basically a municipal cor- poration; and therefore, the volume of small nitty-gritty regulations that have to be dealt with is equivalent to that of any large metro- politan city. D.C. CODE It would seem desirable to me for the publication of the District of Columbia Code to be coordinated with, if not made a function of, the Law Revision Commission staff. Many of the misunderstandings about the District of Columbia Code relate to delays, errors and omissions. For example, a very recent newspaper feature emphasized the supposed exemption of females from jury duty, which was actually made compulsory for both sexes in 1968, by the Jury Selection and Service Act, which was basically Federal legislation and which is not adequately explained in the Supplement to the District of Colum- bia Code. Now, if I could comment on the jurisdictional problem that Mr. Hogan has mentioned to the subcommittee the situation basically about the District of Columbia Code is this; that there is a subcommittee in the House Judiciary Committee that is charged with doing this. And it has been done for years, and I've been from time to time inVolved it it even when Dr. Zinn was still alive. I see it, one of the problems is that although the Judiciary Com- mittee, because of its experience with the United States Code, has a tendency to have know-how that is difficult to transport to other com- mittees. In that type of thing, they don't know what is happened in the District of Columbia, to the extent that his Law Revision Com- mission would have knowledge, nor do they have knowledge of it to the extent that staff of the committee on the District of Columbia does know what happened. PAGENO="0064" 60 And from time to time, they misunderstand completely; and so with reference to this compulsory jury duty item, for example, the Federal law spoke in its early days in 1968 of the old generalizations in Juvenile Court of the District of Columbia quite specifically, and it was revised in the District of Columbia Code. There was simply a reference which said, it shall be controlled by Federal law, but it doesn't say that the effective Federal law is to be abolished, a long existing section, that made it possible for women to appear as jurors, but they couldn't be compelled to appear as jurors. BENEFITS OF COMMISSION One consequence which I would hope could result from the establish- ment of the Commission would be that the activities of the local law school community with reference to the local problems would be expanded. Law faculties in the District of Columbia have, of course, been ac- tive in many areas, particularly in reference to the representation of indigents, both in civil and criminal cases, but with notable exceptions, such as the studies which were made in the mental health care and legal proceedings field under the auspices of the Judicial Conference with the cooperation of the Research Foundation of the Bar Associa- tion of District of Columbia, they have not generally been involved in studies relating to the functioning of the District of Columbia government. Another fringe benefit that I would expect to come from the Law Revision Commission would be the development of statutory and other materials which would be of such general applicability that they would be helpful on the State and local level elsewhere in the United States. The Law Revision Commission, like so many other institutions es- tablished in the District of Columbia for the advantage of the local residents, would operate for the advantage of the country as a whole. In closing, I would like to observe that I have no doubt that if a District of Columbia Law Revision Commission is established, it will be supported widely by the members of the ba.r of the District of Co- lumbia. I am. confident that individuals of great talent in one of the largest and most learned bars in the whole world would be ready to support activity of this type. The recent experience of the work done by members of the bar acting in advisory committees, entirely uncomnensated, for the Superior Court particularly, but also for the District of Columbia Court of Appeals, and indeed, the U.S. District Court for the District of Co- lumbia, has demonstrated the readiness of members of the bar to assist and the value of their assistance. I urge the subcommittee to report favorably on this legislation, and I thank the subcommittee for the opportunity to appear before it. SCOPE OF COMMISSION Mr. FAUNTROY. Thank you. Mr. Whalen. Your testimony has cov- ered a num:ber of questions which we had~ in addition to your very fine statement that was made. And I would like to thank you for it. PAGENO="0065" 61 I would just like to ask one question, then move on to Mr. Breckin- ridge, and that is that you've noted the fact that the New York Com- mission acts on the request of the Governor, the State legislature and the courts. Do you think that our local Commission should be moved into action, say, at the request of the legal committee or the public at large. Mr. WHALEN. Yes; I do. It seems to me that it might be a mistake to put the Commission in a position where outside influences could control their docket without their having anything to say about it. I think you wouldn't get the appropriate judgment about what needed to be considered? But I would think, for example, that if the Mayor or the District of Columbia Council communicated to the Law Revision Commission a concern about such-and-such a subject, that they would-they ought to receive it very seriously. We have one example of that working right now in an opinion in Judge Reilly's court. One of the judges complained that the District of Colubmia probate law was so antiquated, and the result is that a study that has been going on, now, for nearly 2 years in the bar asso- ciation of the District of Columbia by volunteers is very nearly completed. What they're trying to do is to take the model probate code, ac- commodate it to the District of Columbia, and make it as close to the law of Maryland, which has a very recent reenactment. And that will be in shape, I think, probably in the fall to be submitted to the Congress. Mr. FAtTNTROY. Thank you. Mr. Breckinridge? Mr. BREOKINRIDGE. Thank you, Mr. Chairman. I want to thank you, Mr. Whalen, for a very comprehensive over- view of the problem that confronts the country, not just this com- mittee. Mr. WHALEN. Thank you. Mr. BRECKINRIDGE. And your statement of it, I'm sorry I keep seem- ing to run off and vote somewhere on something I don't understand very well, and I won't be able to explore this further. But I'm glad you~r~ a resident and member of the bar, and I look forward to a chance to talk to you. Mr. WHALEN. Thank you very much. Mr. FAUNTROY. Does counsel have any questions? Mr. HOGAN. Just one question. As I understand it, Mr. `Whalen. you're suggesting that the revising that is done now by the Judiciary Committee, ~ho performs the re- viser function which Mr. MacDonald suggested was done separately in the State of Wisconsin, that function be assumed by the Law Re- vision Commission? Mr. WHALEN. Or its staff. Mr. HOGAN. I understand that- Mr. WHALEN. It seems to me that it might be one of those things where the function of the Commission members themselves with ref- erence to it would be relatively nominal. But the work and the. nitty- gritty that's involved in that, I think, could well be put over into that staff. 28-238 0 - 74 - 5 PAGENO="0066" 62 Mr. HOGAN. Well, this is one area that Congressman Nelsen and Fuqua did not want to get into, because of the jurisdictional question. I'm sure you can understand why they did not want to. Mr. WHALEN. I understand. D.C. CODE Mr. HoGAN. Just one further question; on the reform programs of the titles of the code, the Criminal Code or other titles~ would you think that the language here is broad enough to permit it? If the leg- islative history made it clear that that is what the Congress wanted to do, it could undertake almost anything. But do you think it's a good idea to include that authority? Mr. WHALEN. The way I think it should work is, I think-let's take two examples, that I can mention. The Criminal Cod~ has not been thoroughly revised for a long time. That's a big project. On the other hand, the exemption provisions in title 15 dealing with how much property you can take away from somebody if you obtain a judgment against them has not been reexamined in that same period of time. The exemption provisions, I would think, could well be an item that the Law Revision Commission could do itself. I would think the function of the Law Revision Commission as between the two would be to say well, do the exemption provision. It's there, and we can get a hold on that without too much trouble. We recommend that a commission or a committee or a staff attached to the District of Columbia Committee, or attached to the District of Columbia Council, or whatever the situation may be at the time, be formed in order to deal with this extremely large; and that there be a separate project, more or less, to do that. That's what New York in fact has done, except apparently they stuck Mr. MacDonald with the 11CC, which was a difficult job for them to undertake. I think that especially in the beginning if a big project of that type is undertaken, that the whole thing can collapse from just too much to be done. Mr. HOGAN. Thank you, Mr. Chairman. I would like to express my appreciation to Mr. Whalen as a member of the staff. Mr. Salwin of of the Nelsen Commission staff could not be here today, and he worked closely, I know, with Mr. Whalen during the course of the Nelsen Commission study. And I know that Mr. Whalen was very helpful to him. And certainly, I want to thank him now on behalf of Congressman Nelsen, and others of the staff, for the help be gave us with the Commission. Thank you, Mr. Chairman. Mr. FAtTNTROY. Thank you, Mr. Chairman. Subcommittee counsel? Mr. DANIELS. Mr. Whalen, you in your testimony spoke favorably on representation on the Commission by law school faculty members. Would you favor a specific requirement in the bill that certain num- ber-perhaps one or twG or three members-of the Commission be law school professors? One of the bills, I believe it's Chairman Diggs' bill, does contain the requirement of one being a law school professor. PAGENO="0067" 63 Mr. WHALEN. I found myself, it's relatively unpredictable as to who's going to be available to do what. You don't know what kind of compensation will be available. It may well be that you can get- my ideal about the law school input is not so much as members of the commissions. I'm not at all sure that it isn't better to have really broad people as members of the Commission, and then go to the Jaw schools on the contract basis or some technique of that sort and bring in the law school expertise in that manner. I might say that I have no doubt that the housekeeping provisions ought to be enlarged, and whatever you come up with in a provision makes it clear that thereis an authorization for contract arrangements. It's a classical way to do, and I endorse that completely. NON-LAWYERS Mr. DANIELS. You mentioned that the members of the Law Revi- sion Commission should be broadly reflective of the community as is possible. Do you believe that the Commission should be composed entirely of lawyers, or do you see a role for nonlawyers? Mr. WHALEN. My feeling about it is that the Commission will move very much faster, and much more effectively if the Commission is composed of lawyers, but I think the duty should be on that staff and on that Commission to talk to nonlawyers all the time, and to get from the outside every bit of information that they possibly can. But you can see the difficulty in communication that can be involved, even among lawyers. If I have to talk with somebody who is familiar with a certain aspect of antitrust law, for example, he and I can make a lot of progress in 5 seconds; whereas, it might take 5 hours with somebody else who doesn't have that knowledge of the vocabulary and the other things that go with it. Mr. DANIELS. Thank you. Mr. FAUNTROY. Questions? Mr. FREEMAN. I have no questions. Mr. FAUNTROY. Thank you, sir. Mr. WHALEN. Thank you very much. Mr. FAUNTROY. Now, we move on to Mr. J. Lazar, who has come a long way to be available to us here in the committee and `the Congress. And as he comes forward, I would like to express again my heartfelt appreciation for his presence and for the material which he has pro- vided us, which should be of immeasurable help to the committee. You may proceed if you wish. STATEMENT OP 1. LAZAR, INSTITUTE OP LAW AND SOCIETY, UNIVERSITY OF COLORADO Mr. LAZAR. I am very pleased, Chairman Fauntroy, to be able to share my views with the Judiciary Subcommittee on the subject of establishing a Law Revision Commission in the District of Columbia. I have recently made a national and international survey of law revision commissions, and I have made copies of the survey materials available to your counsel, Mr. Harley Daniels. PAGENO="0068" 64 STATE LAW REVISION COMMISSIONS In the United States, California, Michigan, and Oregon have established commissions modeled after the pioneering commission of New York, which is also the model for the proposed commissions for the District of Columbia. And in other countries, the English, Scottish, Northern Ireland, Queensland, New South Wales, Indian, Jamaican, Canadian Provinces of Saskatchewan, Newfoundland, Labrador, Nova Scotia and Ontario law reform commissions bear close resem- blance to the model New York commission. Materials on these juris- dictions, and on others, are in the survey materials made available to Mr. Daniels or your committee. It is clear that law review commissions have been adopted and have been found to be effective in numerous jurisdictions. They are not to be thought of as experimental. They work and accomplish the goals of ministries of justice. Although the commissions vary in their compositions, staffs, proj- ects, budgets, et cetera, it is clear that the legislative bodies receiving the fruits of the commissions' research and recommendations as a general rule adopt the comimssions' proposals. The concept and oper- ation of law review commissions, in my opinion, need no defense. RECOMMENDATIONS I believe that your committee favors the elimination of defects and anachronisms in the law, and favors the reform of antiquated and inequitable rules of law so as to `bring law relating to the District of Columbia into harmony with modern conditions. This was the funda- mental purpose of Judge Cardozo in his plea for a ministry of justice, and this was the basic objective for the model New York Law Revision Commission. I urge your committee, however, to consider the modern need for systematic legal research going to the vary essence of justice outside the sphere of lawyer's law. The need for revision of technical lawyer's law is one thing. The cries for justice in areas of welfare, housing, education, criminal law, juvenile delinquency, employment, domestic relations, consumer law, `health law, day care licensing, corrections, women's rights, minority rights, environmental and urban design, pollution controls, court procedure, administrative law reform, and a host of other social problem areas is another thing. Systematic and scientific legal research into the problem areas of future shock should be provided for before the social problems reach painfully critical proportions. In a number of jurisdictions, such as Kentucky's legislative research commissions or legislative council research commissions, with their staffs, seek wise legislation on the basis of thorough~ systematic, and scholarly research. The scope of their work goes far beyond the reform- ation of antiquated lawyer's law, and I might add, goes far beyond the concern of commercial law, the Uniform Corporate Code and other matters of significance to the practicing commercial lawyer. `Their recommendations, articulated with the work of the legisla- tures, yield law revisions substantially attuned to current problenis and modern conditions. PAGENO="0069" 65 I suggest that many of our serious social problems have come upon us without adequate legislation for the simple reason that our legisla- tive bodies have not been adequately staffed and the complexities of modern society cannot be comprehended by legislators alone who func- tion on the basis of 19th century institutions. NON-LAWYERS Atomic energy and space sciences together with communication, transportation, electronic, and other modern technologies require new understandings if social problems and human rights are to be dealt with intelligently. Specialists in accounting, economics, engineering, transportation, urban design, ecology, medicine, psychology, psy- chiatry, sociology, political science, pharmacology, social welfare, ge- netics, management science, and many, many more disciplines must bring their analytical understandings to the service of the legislator so that law can cope with modern conditions. The lawyer legislator, or the lawyer law review commissioner, does not possess the required understandings needed for the perception, study, and recommendation of adequate law. Most law review commissions generally consult with specialists in relevant disciplines in connection with particular projects. Thus, for school financing or educational matters, fiscal or educational specialists are consulted; or for commercial law, practitioners or businessmen may be consulted; or for medical matters, physicians or psychiatrists, et cetera, may be consulted. The usual practice, however, is for the staffs as well as the commis- sioners to be made up of lawyers, solely. Consequently, in my opinion, the staffs and the commissioners view their functions primarily as the review of technical lawyer's law and the elimination of defects and anachronisms and inequities in such law. This is to be expected. They re not specialists in housing, transpor- tation, consumer needs, minority problems, women's rights, employ- ment, pollution, corrections, education, et cetera, and consequently cannot be expected to perceive, study, and make recommendations for appropriate legal changes in these areas. I realize that the view I suggest of the competence of a lawyer is a view which is addressed to lawyers, as being considered by lawyers, will be acted on by lawyers. Mr. FAUNTROY. With the exception of the chairman. Mr. LAZAR. I recognize, however, that in the grand tradition of lawyers there is a degree of openmindedness, a willingness to search out the empirical facts and realities, that lawyers are openminded. Nevertheless, since there are so many different sciences, so many dis- ciplines, it is a most unique conceit, I suggest, amongst lawyers to ththk they know everything, or to think that they can perceive the problems requiring legislation; when as a matter of reality, this is clearly impossible for them. The question is; can we at the onset of a perception of a problem have the kinds of inputs needed for the correction of defects and anachro- nisms in the law. The welfare worker probably has insights into the operation of welfare law, which the lawyer doesn't see. The physician or the psychiatrist may see things which the lawyer doesn't see when it comes to reform of the criminal law. PAGENO="0070" 66 The criminal law itself is so clearly connected to social conditions that, it's obvious that we need more than the lawyer to be able to bring about reform in the criminal law. Basically, as I see it, the question is whether the scope of the pro- posed Law Review Commission for the District of Columbia must be limited to technical lawyer's law revision. If the committee considers it desirable to cope with social problems related to the District of Columbia, I think the committee should provide for some multi- disciplinary membership on the commission and on its staff. The very difficult task of communication between lawyers and other specialists in other disciplines is a very real problem. It has troubled me, and I'm sure it troubles Professor MacDonald and others. The problem, `however, is not quite `as immense as may `appear, because we find psychiatrists w~ho are also trained in the law; that is they have degrees in law and in psychiatry. We find economists who are `also trained in law. We find educators. We find accountants. We find management people who are trained in law. There is in a sense within the same stall multidisciplinary intelli- gence, and I urge the committee to make possible bringing the wider intelligence to the service of the Commission; `so that it will be able to perceive the problems early enough in order to bring about the needed correction. In a sense, there is a system of knowledge that can only be under- stood as a whole and lawyers who traditionally examine these ouestions as a whole are handicapped by not having the analytical understand- ings of the various disciplines. It's too late to get this kind of under- standing in at the staff level, because policy is frequently made already. It's too late to get this understanding in after the consultants `are being used, or contract research is being engaged, because at that point basic decisions have already been made as to the scope and nature of the problem. The very perception of the prcthlem i~ critical here, and we ought to `be able to perceive these problems early enough, and as a whole, prior to the efforts to get the opinions and views of inter- ested parties. Requirements for project approval, or for project reference to the Commission, prior to research and recommendation by the Commission should adequately safeguard the integrity of the established legisla- tive authority. I am grateful to this committee for this opportunity to share my thoughts on this v~ery important matter, `and I should `be most pleased to be of any further assistance to the committee. Mr. FAUNTii0Y. The committee is `certainly grateful to you for bringing us the benefit, really, of your national and international survey on law review revision commissions. And I may say that you submitted this for the record with the instruction that counsel will edit. down and bring out the pertinent illustrations and points taken up in our bill. May I say also that we will include Mr. Whalen's material indicated earlier for the record. [The information referred to follows:] PAGENO="0071" McKINNEY'S SESSION LAWS OF NEW YORK, 1969-VOL. 2 THE LEGISLATURE - LEGISLATIVE REPORTS REPORT AND RECOMMENDATIONS OF LAW REVISION COMMISSION FOR 1969 1969 Leg. Doc. No. 65 The text of the I~aw Revision Commission's 1969 Report and Recommendations follows: January 31, 1969 To the Legislature of the State of New York~ In conformity with article 4-A of the Legislative Law, we present the annual report of the Law Revision Commission for 1969. JOHN W. MacDONALD, CJ:airnuz,~ WILLIAM HUGHES MULLIGAN EMIL SCHLESINGER ARTHUR H. SCHWARTZ PAUL J. YESAWICH, JR. JOHN H. HUGHES, ex officio EDWARD F. CRAWFORD, ex officio EDWARD J. SPENO, cx officio PRESCOTT B. HUNTINGTON, ex officio ROSEMARY EDELMAN Director of Research. REPORT OF THE LAW REVISION COMMISSION FOR 1969 At the opening of the 1969 legislative session Assemblyman Edward F. Crawford, us Chairman of the Assembly Judiciary Committee, and As- semblyman Prescott B. Huntington, as Chairman of the Assembly CodN Committee, became members cx officio of the Commission. I. THE COMMISSION'S ORGANIZATION AND PROCEDURE The Law Revision Commission was created by chapter 597 oF the Laws of 1934, which enacted article 4-A of the Legislative Law. It consisN of the chairmen of the Committees ott the Judiciary and on Codes of di~ Senate arid Assembly, as members cx officio, and five members appoint- ed by the Governor, each for a ternr of five years. The statute provnl~ that four members appointed by the Governor shall be attorneys and counselors at law, admitted to practice iii the courts 01 this State, and at least two of tlieni shall he members of law faculties of universities or law schools within the State. The Coat mission is eharge(l by statute with t lie following duties: 1. To examine the (oniirron law and statutes of the state arid current judicial decisions br the purpose of discovering defert~ and anachronisms iii the law an(l recomniruending needed reforms. ~. To receive and comisniler proposenl changes iii t lie law reroci- niendea by the American Law Institute, the commissioners for the pronnotion of unibornnity of legislation in the United States, any bar association or other learned bodies. 3. To receive and consider suggestions from judges, justices, pub- lic officials, lawyers and the public generally as to detects and anachronisms in the law. 4. To recoin mend, from time to ti rue, such changes in the law is it chorus necessary to nno(li iv or eliminate anticluate(l and inequitablt rules of law, and to b ri rig I he law of this sta to, civil and criiiimah into harmony with nnoth-rmi conditions. (67) PAGENO="0072" 68 The offices of the Commission are at Ithaca, `sew York in Myron Taylor Hall. A number of studies undertaken by the Commission have been made at the direction of the Legtslatuie Studies ha~e also been made in response to requests by the Governor and by other officers of the State govern-. meat Some ~tudies ha~e in'~ohed problems suggested by bar as~ocia tions and other org'tnizations and by public officers, judges, lai~yers and laymen. In other instances, the Commission through its own examination - of statutes, case law and legal literature, has ascertained the need for new legislation or for the ~mendment of existing statutes E~tch year the Commis~ion re'.ie~s the problems that has.. been brought to its attention `md selects `t number of them for study In makiri~ its selection the Comnussion con iders ~~hether the pioblem is such that a legal. study is needed and whether there are questions involved on which the opinion ot the Commis ion ~sould he helpful to the Leg~dature Proposals relating solely or primarily to matters within the special fields * of other departments and agencies of. the government are referred to those bodies Bills to carry out its recommendations are drafted by the Commission and their- introduction in the Legislature is made or arranged by the e.r officio members of the Commission. Multilithed copies of the formal recommendations of the Commission are placed on the desk of each mem- ber of the Legislature following the introduction of the hills. The .r officio members bring to the attention of the Commission questions relating to the bills which niay arise during their consideration by the Legislature. During the lcgislatne se~ion the Commission distubutes multilithed copies of its recommendations to bar associations throughout the State, - to official and unofficial agencies concerned with legislation, and to all interested persons who request them. The research reports considered by the Commission iii its study of topics on which recommendations aje made are not printed at the time the recommendations are presented to the Legislature. Multilithed copies, in the form in which they ~vere prepared for use by the Com- mission, are made available as unpublished and unedited material to members of the Legislature who request them and, to the extent per- mitted by the limited number of copies, to members of bar associatiun committees who prepare reports on the bills recommended by the Com- mission. While the bills are before the Legislature, the Commission seeks to inform itself of all criticisms of the hills and suggestions for improving them, and this material is carefully considered. On some occasions the Commission has withdrawn a recommendation for further study in the light of objections; on others, it has recommended anienclment of its bills To qllo~~ tmnie foi conunent ind con~ideiatjon of criticism action on the Commission's bills has customarily been deferred by the Legis- lature until after a public hearing on the hills held jointly by the Senate and Assembly (`onirmiittees on the Judiciary and on Codes. It has been customary to hold this public heaiing after the middle of Febru'iry IL PROCEEDINGS OP TUE COMMISSION IN 1968 A. Report and Recommendations The Commission presented its thirty-fourth annual report to the Legis- lature on January 31, 1.968. (Leg.Doc. (1968) No. 65.) During the course of the 1968 legislative session, eleven recommendations were submitted, with twelve bills drafted by the Commission to make the recommended changes in the lnw. The bills introduced on the recommendation of the Commission in 1968 are listed in Part IV of this Report, entitled "Legis- lative History of the Commission's Recommendations Submitted in 1968." PAGENO="0073" 69 Supplementing its 1968 Report to the Legislature, the Commission sub- nutted as Legislative Documents (1968) Nos. 65(A) through 65(K) the texts of the eleven recommendations presented in 1968, together with the texts of the bills to which they related and copies of the research studies supporting them. The Commission also submitted, as Legislative Docu- ment (1968) No. 65(L), a report to the Governor and a study, without a recommendation for legislation, relating to a statute of limitations applicable to an action for damages arising from deficiencies in the de- sign or supervision of the construction of improvements to real property. The Commission will publish a bound volume containing its 1968 Report, Recommendations and Studies, including an appendix showing the legis- latis e history of bills introduced in 1968 B Study on Administrative Procedure Directed By The Legis'ature In 1982, the Law Revision Commission was directed by Concurrent Resolution of the Senate and AssembLy (1962 Senate Resolution- No~ 103) to study the question whether legislation is advisable to provide general standards for hearing procedures and rule making of admin strati~e agencies within the State and for judicial review, and to report to the Legislature its recommendations, including proposals embodying such legislation as it may recommend. On March 15, 1963, the Commission presented to the Legislature a preliminary report of the progressT of the study. (Leg.Doc. (1963) No. 65(A).) Pursuant to a Concurrent Resolution adoptet~ January 13, 1964 (Sen~ ate Resolution No. 9), limiting the study- to the administrative procedure of State agencies (eliminating any reference to the political subdivisions of the State), the Commissioa made a report and recommendations to the Legislature on March 31, 1965, accompanied by three proposed bills (Leg.Doc. (1965) No. 65(A); 1965 Report, Recommendations and Studies of the Law Revision Commission 19.) The first was for a State Administrative Procedure Act which dealt comprehensively with all as- - pects of administrative procedure-adoption of rules, rule making, judi- cial review of rules, adjudicatory procedures, licensing, public informa- tion, and representation,-exccpt the subject of judicial review of admin- - istrative determinations. The second proposal was for a State Athninis- trative Rule-Making Procedure Act which \VtIS intended for legislative consideration in the event that the Legislature should decide to deal only ~~ithi nile making act~vities ot Srite ~t~encie The thud piopos il ~ foi a State Di\ ision ot Adnutusti ati~ e Pt ocedui e in t he I `~ iiti~ e Dc partnient under a director whose duties were to be somewhat analogous to thio~e of `iii Oi1il)iLdsIndIi The 1965 bills were not reported out of conunittee. They were resub- mitted by the Commission in 1966 (Leg.Doc. (1966) No. 65(A); 1966 Report, Recommejidations and Studies of the Commission 23), and again they were not reported. - Time Comnn siOll decided not to i esubmit the bills until it h'id studied further the question of which agencies, it any, should be exempted front the operation of the proposed State Administrative Procedure Act. This it di(l, begini.ingia 1967. Time first of two ihases of the study related to the exemption hlovisions of administrative Proceclule statutes of other states. The second phase, undertaken in 196~, consisted of an appraisal of the impact of the proposed administrative procedure act upon the existing rule-making and adjudicatory pioc(~.lumes of New York State departments and agencies. These depart meats and agencies cooperated with the Commission by providing, in answer to a questionnaire sent to them, the in formation necessary for the appraisal. Tb rough - studies, public and legislative hearings, and the replies to its questionnaire, the_ Commission came to the conclusion that certain agencies should be PAGENO="0074" 70 exempt from the propo ed idnuriistiqti~e procedure `ict Accordingly, the proposed act to he submitted to the Legislature this year contains a hst of specific agency exemptions. The Commission will also resubmit to the 1969 Legislature its proposal for a State Division of Administra- tive Procedure in the Executive Department. The proposed Rule-Making Administrative Procedure Act will not be resubmitted. In his Annual Message to the 1969 Legislature, the Governor said: I propose the adoption of an Administrative Procedures Act that would establish uniform administrative procedures in van- mis State agencies. This uniforniity would provide citizens with procedures that are both fair and easier to tollov~ in their dealings ~ ith our State agencies. The State's Law Revision Commission has prepared compre- hensive and invaluable studies in this area. C. Cooperation and Assistance of Public Officers, Associations of the Bar and Other Groups The Commission has continued to receive the cooperation and as- sistance of public officers, associations of public officers, bar associa- tions and other groups which have an interest in State legislation. In 1964, at the request of the New York Commission on Uniform State Laws, the Law Revision Commission made a study of a Report of the Committee on Uniform State Laws of the Association of the Bar of the Cit~ of ~ Xoik iehtin~ to ih~tn~rs in Neu York st'ttutes iequired by the enactment of the Tjniforrn Commercial Code. One suggestion for amendment l)ertaine~l to sections of the General Municipal Law, Local Finance Law, Private Housing Finance Law, Public Authorities Law and Public Housing Law governing the issue of bonds and other evi- dences of indebtedness, and containing references to the former Nego- tiable Instruments Law as well as references to the Uniform Commercial Code which mmiv be inaccurate in some instances. The Commission sub- nutted bills on this subject to the Legislature in 1967 and 1968. The 1968 hill passed the Legislature hut was vetoed by the Governor. The bill will he resubmitted this year with certain changes. The recommendations of the Coniniission submitted at the 1968 session of the Legislature were studied by the New York State Bar Associa- tion Committee to Cooperate with the Commission and discussed with the Commission at a joint meeting held January 27, 1968. Materials showing tentative conclusions of the Commission on topics on which it was expected that recommendations would he subniitted at the 1969 Cssmon to,ether ~ ith rese treh matei i ils ~ ere sent to the Committee be fore the opening of the 1969 session in preiaration for discussioa of the 19b9 P101)0 I~ at a joint meetin0 to be held on Fehru~u'~ 1 1969 III. RECOMMENDATIONS PRESENTED IN 1969 The Commission will submit to the Legislature recommendations on five subjects accompanied by six bills. A Recommendations (1) State Administrative Procedure Act; State Division of Admin- istrative Procedure Law. (Leg.Doe. (1969) No. 65(A).) Senate ~ o 4308 Assembly `~o 6304 Senate No. 4310. Assembly No. 5858. (2) Amendment of Provisions Pertaining to the Issue of Bonds arid Notes of Public Agencies Under the General Municipal Law, Private PAGENO="0075" 71 Housing Finance Law, Public Authorities Law and Public Housing Law, To Reflect the Enactment of the Uniform Commercial Code. (Leg. Doe. (1969) No. 65(B).) Senate No. Assembly No. 5693. (3) Legitimacy of Children of Void or Annulled Marriages. (Leg.Doc. (1969) No. 65(C).) Senate No. 3930. Assembly No. 5376. (4) Arbitration: Stay of Pending Action. (Leg.Doe. (1969) No. 65(D).) Senate No. Assembly No. 5409. (5) Late Notice of Claim Under MVAIC Law (Insurance Law, 608 (a)). (Leg.Doc. (1969) No. 65(E).) SerLate No. Assembly No. IV. LEGISLATIVE HISTORY OF THE COMMISSION'S RECOMMENDATIONS SUBMITTED IN 1968 Twelve bills were introduced in the Legislature in 1968 on the recom- mendation of the Commission. Six bills became law with the approval of the Governor. A. Recommendations Enacted (1) Derivative Actions by Limited Partners. A recommendation of the Commission on this subject and the study submitted therewith were published in.Leg.Doc. (1967) No. 65(B); 1967 Report, Recommendations and Studies of the Law Revision Commission 99. The legislative history of the bill introduced in 1967 is set forth in the thirty-fourth annual report of the Commission to the Legislature. (Leg.Doc. (1968) No. 65; 1968 R~port, Recommendations and Studies of the La~v Revision Commission .) The 1968 recommendation of the Commission was published in Leg. Dec. (1968) No. 63(B), and will be included in 1968 Report, Recoin- mendatioiis and Studies of the Law Revision Conunission. The bill in- troduceil on the recommendation of the Commission was (1968) Senate No. 5025; Assembly No. 2885. The Assembly bill passed the Assembly on March 19 and the Senate on May 20. It was approved by the Gover- nor on Juzie 5. (Laws of 1968, c. 496.) (2) Effectiveness of Recording of Option Agreement To Purchase or Lease Real Property. The recommendation of the Commission on this subject and the study submitted therewith were published in Leg.Doe. (1966) No. 63(E); 1966 Report, Becommendations and Studies nt the Law Revision Com- mission 173. The legislative history of the bill introduced in 1966 is set forth in the thirty~third annual report of the Commission to the Legis- latire. (Leg.Doe. (1967) No. 65; 1967 Report, Recommendations and Studies of the Law Revision Commission 14.) The 1967 recommendation of the Commission was published in Leg. Doe. (1967) No. 65(E); 1967 Report, Recommendations and Studies of the Law Revision Commission 165. rfle legislative history of the bill in- troduced in 1967 is set forth in the thirty-fourth annual report of the Commission to the Legislature. (Leg.Doe. 1968 No. 65; 1968 Report, Recommendations and Studies of the Law Revision Commission .) The 1968 recommendation of the Commission was published in Leg. Doe. (1968) No. 65(E), arid will be included in 1968 Report, Recommen- PAGENO="0076" 72 dations and Studies of the Law Revision Commission. The bill intro- duced on the recommendation of the Commission was (1968) Senate No. 5033; Assembly No. 3090. The Assembly bill passed the Assembly on March 11 and the Senate on May 16. It was approved by the Gover- nor on June 5. (Laws of 1968, c. 489.) (3) Right of Surety to Compel Creditor to Proceed Against the Prin~ cipal Debtor. A recommendation of the Commission on this subject and the study submitted therewith were published in Lcg.Doc. (1967) No. 65(K); 1967 Report, Recommendations and Studies of the Law Revision Commission 281. The legislative history of the bill introduced in 1967 is set forth in the thirty-fourth annual report of the Commission to the Legis- lature. (Leg.Doc. 1968 No. 63; 1968 Report, Recommendations and Studies of the Law Revision Commission .) The 1968 recommendation of the Commission was published in Leg. Doe. (1968) No. 65(K), and will he included in the 1963 Report, Recoin- mendations and Studies of the Law Revision Commission. The bill jn~ troduced on the recomniendation of the Commission was (1968) Senate No. 5028; Assembly No 28S6. The Assembly bill passed the Assembly on March 4, and the Senate on April 20. It was approved by the Gover- nor on May 31. (Laws of 1968, c. 419.) (4) Removal of Federal Tax Lien Files from Town and City Clerks' Offices to County Clerks' Offices. The recommendntion of the Commission on this subject and the study submitted therewith were published in Leg.Doe. (1968) No. 63(F), and ~vill he included in the 1968 Report, Bccoinniendations and Studies of the Law Revision Commission. The bill introduced on the reommenda- tion of the Commission was (1968) Assembly No. 3185-A. The bill passed the Assembly on April 10, and the Senate on May 24. It was ap- proved by the Governor on June 16. (Laws of 1968, c. 762.) (5) Completion of Service of Process on Unauthorized Foreign Cor- porations. The recommendation of the Commission on this subject and the study submitted therewith were published in Leg.Doc. (1968) No. 65(H), and will he included in the 1968 Report, Recommendations and Studies `)f the Law Revision Commission. The bill introduced on the recommenda- tion of the Commission was (1968) Senate No. 3582; Assembly No. .3184. The Senate bill passed the Senate on March 5, and the Assembly on March 1~. It was approved by the Governor on March 19. (Laws of 1968, c. 60.) (6) Privileged Communications of Psychologists and Social Workers. The recommendation of the Commission on this subject and the study submitted therewith were published in Leg.Doc. (1963) No. 65(I), and ~vill be included in the 1968 Report, Recommendations and Studies of the Law Revision Comnriiission. The bill introduced on the recOlflhilefl(latiofl of the Commission was (1968) Assembly No. 3187. The bill passed the Assembly on February 19 and the Senate on March 28. It was approved by the Governor on May 14. (Laws of 1968, c. 274.) B Bills That did not Become Law (1) Amendment of Provisions of General Municipal Law, Local Finance Law, Private Housing Finance Law, Public Authorities Law and Public Housing Law Pertaining to Issue of Bonds and Notes to Reflect Enactment of the Uniform Commercial Code. A recommendation of the Commission on this subject was published in Leg.Doc. (1967) No. 65(L); 1967 Report, Recommendations and PAGENO="0077" 73 Studies of the Law Revision Commission 32o The legislative history of the bill introduced in 1967 is set forth in the thirty-fourth annual re- port of theY Commission to the Legislature. (Leg.Doc. (1968) No. 6~; 1968 Report, Recommendations and Studies of the Law Revision Coin- mission .) The 1968 recommendatiort'of the Commission on this subj~et was pub- lished in Leg.Doe.. (1968) No. 65(A) and will be included in the 1968 Report Recommendations and Studies of the Law Revision Coinnussion The bill introduced on the recommendation of the Commission was (1968) Assembly No. 6593. It passed the Assembly on March 29 and the Senate on May 15. It was disapproved by the Governor on June 16. (Memo # 113) (2) Liability of Housing Merchants for Personal Injuries and Breach of Warranty A recommendation of the Commission on. this subject and the study submitted therewith, relating also to the subject of the bill listed as item (3) infra, were published in Leg.Doc. (1967) No. 65(A); 1967 Report, Recommendations and Studies of the Law Revision Commission 21. The legislative history of the bill introduced in 1967 is set forth in the thirty fourth annual. report of the Commission to the Legislature. (Leg.Doc. (1968) No~ 65; 1968 Report, Recommendations and Studies of the Law Re% ision Commission he 1968 recommendation of the Commission on this subject was pub lished as Leg.Doc. (1968) No. 65(C),. and will be included in the 1968 Report, Recommendations and Studies of the Law Revision Commission. This bill was introduced as (1968) Senate No. 5027; Assenibly No. 3089. The Senate bill was not reported. The Assembly bill advanced to third re~tding and was committed to the Rules Committee (3) Bonds to be Tendered by Housing Merchants with Deeds or Other Instruments of Conveyance. A recommendation of the Commission on this subject and the study submitted therewith, relating also to the sul)ject of the bill listed as item (2) supra, were published in Leg.Doc. (1967) No. 63(A); 1967 Report, Recommendations and `~tu(lies ot the I iw hii,ion Commission 21 the legislative history of the bill introduced in 1967 is set fort~h in the thirty- Fourth annual report of the Commission to the Legislature. (Leg.Doe. (1968) No. 65; 1968 Report, Recommendations and Studies of the Law Rei isiCfl Commission ) The 1968 recommendation of the Commission on this subject was pub- lished as Leg Do (19b8) \o Ga(( ) and ~i ill hi includ d in the 1098 Report Recommend itions and studies ot the I i~ Re~ I iO~ ( OmmisSlou This bill was introduced as (1968) Senate No. 5031; Assembly No. 3091 The ~,enqte bill w is not iepoit~l the ~\~seIiihl) bill adiaziced to third reading and was committed to the Rules Committee. (4) Piling Notice of Claim under Motor Vehicle Accident Indemnifica- tion Corporation Law. The recommendation of the Commission on this subject and time study submitted therewith were published us Leg.Doe. (1968) No. 65(1)), and will be included in the 1968 Report, Recomiiiendntions and Studies of the Law Revision Commission. ~The bill was introduced as (196~) Semi- ate No. 4394-A; Assembly No. 3192.~ The Senatc bill was not repOrte(l. The Assembly bill passed the Assembly and was referred to the Senate Insurance Committee It was iepoited and athaneed to thud iead ing PAGENO="0078" 74 (5) Gonservators of the Property of Persons Unable to Manage Their Affairs. A recommendation of the Commission on this subject and the study submitted therewith were published in Leg.Doe. (1966) No. 65(0); 1986 Report Reeominendations ~tnd Studies of th~ I ~iw Revision Commission 261. The legislative history of the bill introduced in 1966 is set forth in the thirty-third annual report of the Commission to the Legislature~ (Leg Doe (1967) ~o 63, 1967 Report, Recommendations and Studies of the Law Revision Commission 16.) The 1967 recommendation of the Commission on this subject was pub- lished in Leg.Doc. (1967) No. 65(0); 1967 Report, Recommendations and Studies of the Law Revision Commission 209. The legis!ative history of the bill introduced in 1967 is set forth in the thirty-fourth annual report of the Commission to the Legislature. (Leg.Doc. (1968) No. 65; 1968 Report, Recommendations and Studies of the Law Revision Com- mission .) The 1968 recommendation of the Commission was published as Leg. Doe. (1968) No. 65(0), and will be included in the 1968 Report, Recom- mendations and Studies of the Law Revision Commission. The bill was introduced as (1968) Senate No. 5029; Assembly No. 3116. The Senate bill was not reported. The Assembly bill passed the Assembly and was referred to the Senate Mental Hygiene Committee. (6) Standardization of Labor and Material Payment Bonds for Private Improvement.~. A recommendation of the Commission on this subject and the study submitted therewith were published in Leg.Doc. (1967) No. 65(J); 1967 Report, Recommendations and Studies of the Law Revision Commission 245. The legislative history of the bill introduced in 1967 is set forth in the thirty-fourth annual report of the Commission to the Legislature. (Leg.Doc. (1968) No. 65(A); 1968 Report, Recommendations and Studies of the Law Revision Commission .) The 1968 recommendation of the Commission on this subject was pub- lished in Leg.Doc. (1968) No. 65(J), and will be included in the 1968 Report, Recommendations iind Studies of the Law Revision Commission. The bill was introduced as (1968) Senate No. 5026; Assembly No. 2o~2.. The bill Vv as not reported in either house V. CALENDAR OP TOPICS FOR STUDY A Work in Progress Studies on the follo~ung topics aie in pro~ress (1) Administrative law and procedure; procedures relating to zon- ing, planning and urban renewal. (2) In rem jurisdiction; study, in conjunction with the Advisory Committee of the Judicial Conference of the State of New York, of certain aspects of Seider v. Roth (17 N.Y.2d 111, 269 N.Y.S.2d 99, 216 N.E.2d 312, conformed to 28 A.D.2d~698, 280 N.Y.S.2d 1005) as noted in Simpson v. Loehmann (21 N.Y.2d 303, 287 N.Y.S.2d 633, 234 N.E.2d 669). (3) Revision of consolidated laws to transfer provisions to more appropriate chapter or to a new chapter; Consolidation of Real Property Law and Personal Property Law. (4) Powers of trustees and of other fiduciaries to act by majority vote under Estates, Powers and Trusts Law. (5) Relief for persons who erect structures under mistaken assunip- tion they are fee owners of building site. (6) Abandoned Property Law 600; subdivision 1(d) (ii) as a~ exclusion from subdivision 1(a). PAGENO="0079" 75 (7) Lost and Found Property Act (Personal Property Law art 7- B); clarification as to property found on residential premises. (8) Contracts for instruction or use of physical or social training facilities (General Business Law ~ 394-b 394-c), clarification of statutes B Topics Continued on Calendar for Further Study On the following topics studies have been made of part of the prob~ lems indicated or ot one or more pioblems relating to the i~eneial sub ject matter~ The items are continued on the Commission's Calendar for further study of recommendations not enacted~ or of matters on which no recommendation was made at the time of a previous study, oi for the study of additional problems or new developments. (1) Constructive notice arising from recording under the real prop- erty recording statutes notice of trust from use of word "trustee", effect of recording of memorandum of lease as con structive notice of provisions of lease not set forth in memo rnndum, effect of late recorthng, indexing methods to give warning of covenants and easements affecting other property, recording of memoranda of trusts of real property (2) Procedure for correction ot procedural and juiisdictional defects affecting titles establishing marketability of titles acquned by adverse possession, proceduie for clearing tax titles (3) Short forms of conveyance t4) Inconsistencies or conflicts in the Consolidated and Unconsoli- dated Laws with the provisions of the Uniform Commercial Code (5) Scope and applicability of doctrine of collateral estoppel (6) Quieting title to propeity, condemnation of piopeity by rail road inteiests in plol)eity subsequent to abandonment of iailioad line (7) Fedeial couits State legislation id iting to abstention when points of local law iii~~~ ne decl(led (8) Recoiding extinguishment and modification of eeitiin iestnc tions on use of land (Real Property Law 345); modernizing * conveyancing in New York by marketable title legislation. (9) Binding effect of pieliminaiv offeis to l)iLiCllasC ieal piopeity sufficiency of notice to buy ci C Proposals for Future Consideration The follo~s lug topics i epiesent ~1 opo~ ils i tCCi\ ed by the Commission and placed on its Calendar as separate items but not yet studied by the Commission (1) Compensation when Property ~5 taken by eminent domain; itenis of ~hunage ~ ~iIu ition of ~ep a ite imitei ests in pi opei ty taken dictubution of ~ iid (2) Incompetency, authomity of committee of incompetent to lease real property; effect of execution of lease before commence- ment of term. (3) Incompetency, prousmon by ~~hich person committed as an in competent, or his ielati~es, could obtain specifa~ paiticulais of diagno is and pi ogimosms and sy mptoms on s~ huh they aie b ised (4) De,,iee of nient'il capacity necessaly for execution of a con tvuct (5) rornial errors and iiregul~irities in statutes PAGENO="0080" 76 (6) Workmen's Compensation Law, ~ .34, 26; public filing of corn- pensatiori award; priority of interest of bona (ide purchaser of real property under conveyance recorded before public fil- ing. (7) Right of privacy; Civil Rights Law, ~ 50, 51, application to use of name of deceased person; unauthorized publication of private letter. (8) Actions between parents and children; parents' immunity from liability for torts against children. (9) Contract to obtain policy of life insurance, right of person who - was to have been named beneficiary to damages for breach. (10) Conversion of intangibles. (11) Consent to cancellation of mechanics' liens to peimit convey..- ance of real property. * (12) `Malicious prosecution; interference with person or property as * -. - necessary element. * (13) Responsibility of unincorporated association for acts of its of- ficers. (14) Uniform security requirements for various bank deposits. (15) Registration and enforcement of foreign judgments. (16) Creation of joint tenancies; abolition of the "four unities" requirement. (17) Remedy to prevent premature publication of information about kidnapping. (18) Automobile liability insurance; payment of or offer to provide for medical expenses as admission of liability. (19) Short statute of limitations for violation of building codes and zoning ordinances with reference tu front and side yard restric- tions. (20) Real Property Law, 311(2); authentication of notary's sig- nature on documents notarized outside the state; reciprocity between states. (21) Real Property Law, 223; liability for breach of covenants for title where property or lease is transferred. (22) Landlord and tenant; implied warranty of title in assignment of leasehold. (23) State Finance Law, 137; application to subcontractors of sub- contractors. 1969 RECOMMENDATIONS OF THE COMMISSION Report and Recommendations Relating to a State Administrative Procedure Act and a State Division of Administrative Procedure Law 1969 Leg. Doe. No. 65(A) S. Intro. No. 4308 A. Intro. No. 6304 S. Intro. No. 4310 A. Intro. No. 5858 I. Background of the Study The Law Revision Commission, by concurrent resolution of the Legis- lature in 1962, was directed to study the question of the advisability of legislation to provide for general standards for hearing procedures and rule making of administrative agencies in the State and for judicial review. The Commission was further directed to submit to the Legis- lature such proposals as might appear to be appropriate. By further PAGENO="0081" 77 cthicurrent resolution in 1964, the scope of the onginal study ~as nar- rowed. to focus upon the procedures of State administrative agencies only, as distinguished from those of political subdivisions of the State. In accordance with these resolutions the Commission submitted three legislative proposals in 1965 and again in 1966.' The firstproposal was for a State Administrative Procedure Act, to deal comprehensively with all facets. of administraUve procedure-adoption of rules, rule making, judicial review ot rules, adjudicatory procedures, licensing public in formation and representation e'cept with the subject of judicial review of adrnimstrative determinations The bill did ~iot deal broadly with this subject because the Commi&,ion believed that the thea recent enact meat of CPLR 7803 made new law on the subject inadvisable The second proposal was for a State Administrative Rule Making Procedure Act It was intended for legislative consideration in the event that the Legislature decided to deal only with rule making activities of State administrative agencies and no~ with their adjudicatory functions The third proposal, for a State Division of Administrative Procedure in the Executive Department presented a different approach That bill could have been enacted separately without enactment of the first proposed bill, or it could have been enacted in conjunction `with it II The Ba.sic Question of Desirability The threshold question for the Commission was whether or not ad ministrative procedure legislation of any soit was desiiable for the State A major consideration was the report to the Legislature in 1942 of Fobert J Benjamin who was appointed Moreland Act Commissioner by Governor Herbert H. Lehman. Commissioner Benjamin believed that a general code of procedure for quasi-judicial activities of State adminis- trative agencies ~as not feasible or desuable ~ This condusion has, without question, been of considerable influence in this State since 1942 Since the time of the Benjamin Report, however, despite the increased number of administrative agencies, many jurisdictions have adopted adlninistrati%e proceduie legislation establishing at least general pio cedural standaids The Federal ~.dministxative Pioceduie Act `wis enacted in 146 (See 5 U.S.C. ~ 551-576), and in the same year the National Conference of Co~nmissioners on Uniform State Laws approved the Model State Administrative Procedure Act. The acts have since been amended or revised, and some thirty-five states now have some type of admmistiati~e proceduie legishtion About h~tlf of these states hase legislation of the compichensise ~auet~ siniilai to the admiius I For a full summary and legisla to -414 (Supp 1)67) Me Rev Stat tive history of these proposals, see Ann. tit. 5, ) 2301-2452 (1968); Md. Leg.Doc. (1966) No. 65(A), 1966 Re- Ann.Code art. 4i. 9 244-56 (1957): port. Recommendations and Stud- Mass.Gen.Laws Ann. ch. 10A. 9 1-17 ies of the Law Revision Commission (i966, Supp.1967); Mich.Stat.Anri. 9 23. . 3.560(7)-(2i.i0) (1961); Minn.Stat. 9 2. See Part VII infra. 15.0411-0426 (Supp.1963); Mo.Rev. 3. Benjamin, Administrative Adjudi- Stat. 9 536.OiO-.140 (1987); Neb.Rev. cation in the State of New York Stat. 09 84-901 to -919 (1966); N.H. 24-36 (1942). . Itev.Stat.Ann. 9 541:1-:22 (1955); N. 4. The following states have admin- Y.Const. art. IV. 8; N.Y. CPLLI istrative procedure legislation: Alas- 9 7801, 7803-05; N.C.Gen.Stat. 9 ka Stat. 9 44.62.010 to .650 (1962); 143~195 to -198.1, 306 to -316 (1964); Ariz.Rev.Stat.Ann. 9 12-901 to -914; N.D.Cent.Code 9 28-32-01 to -22 9 41-1001 to 1008 (1956); :Ark.Stat. (1960); Ohio Rev.Code Ann. 9 119.- Ann. 0 5-701 to 725 (Supp.3987); 01-13 (Baldwin 1967): Okla.Stat. tit. CaI.Gov't Code 5 11370-11521 (Deer- 75, 9 301-25 (1965); Ore.Rev.Stat. 9 ing 1958. Supp.1966); Colo.Rev.Stat. 183.010-5i0 (1965); Pa.Stat.Ann. tit. Ann. 9 3-16-1 to 3-16-6 (1963); 7i, 9 1710.1-51 (1962, Supp.1967); Conn.Gen.Stat.Rev. 9 4-41 to 50 R.I.Gen.Laws Ann. 9 42-35-1 to -18 (1958); Fla.Stat. 9 120.011-071, .09, (Supp.1967); S.D.Code 9 33.4201- .20-28. .30-331 (1968); Hawaii Rev. .4216, 65.0106 (1919): Tenn.Code Ann. Laws 9 SC-i to -18 (1963); Ill.Rev~ 5 4-501 to -506. 27-901 to -914 (1955); Stat. ch. 110, 9 264-79 (1963); 2nd. Va.Code Ann. 5 9-6.1-14 (Supp. Ann.Stat. 5 63-3001 to -3030 (Supp. 1963); Wash.Rev.Code 5 34.04.010- 1968); Iowa Code 5 17A.i-.15 (Supp. .930 (1968); Wis.Stat. 95 27.01-26 1963) Nan Gen Stat Ann 9 77-40s (West 19 7 Supp 1968) 28-238 0 - 74 - 6 PAGENO="0082" 78 trative procedure act now proposed by the Commission.5 At least seven states have substantially adopted the Mode! Act.6 Oklahoma has sub- _stantially followed the Revised Model Act. Many of the remaining states, whether by comprehensive or partial legislation, have followed the Model Act in some measure.7 New York has only a statute on ju- dicial review of administrative determinations (revised in CPLR 7803), and a constitutional provision and statute dealing with filing and publics.. tion of administrative regulations (N.Y.Const. art. IV, 8; N.Y. Execu- tive Law 102). In contrast, the period following the Benjamin Report has been characterized by extensive legislative activity elsewhere in the field at both the state and federal level. The Commission has concluded on the basis of its study that an ad- ministrative procedure act for the State of New York is iow feasible,. desirable and neeessary~ Accordingly, the Commission submits to the. 1969 Legislature a proposed State Administrative Procedure Act as amended on the basis of studies carried out since 196l~, and a proposed Division of State Administrative Procedure Law, which has not been substantially modified. Like its predecessor, the latter of the two pro- posed bills may he enacted either in conjunction with the former or without enactment of it. The following parts of this report will describe the studies and in- vestigations undertaken by the Commission in the course of preparing the newly proposed legislation,5 and will set forth a detailed analysis of, and commentary upon, the proposed bills as they are submitted herewith.9 Special emphasis is placed upon the Commission's conclusions concerning the questioii of exemptions from the requirements of the proposed Ad- ministrative Procedure Act. III. The Conduct of the Study This is the first comprehensive study of ndniinistrative procedure made in this State since the 1939-1942 study by Commissioner Robert M. Benjamin. it was realized from the outset of the project in 1962 that an examination of the administrative process in the State entailed an under- taking of considerable scope because of the large number and great variety of regulatory programs and agencies in State government. More- over, the original concurrent resolution directing the study encompassed agencies of local government as well as agencies of the State governm'rnt. It was therefore recognized that the study would have to be pursued simultaneously at several levels, and by use of a variety of methods. Within the limits of budgetary and personnel resources, the Commis- sioll has pursued the following avenues of investigation and has taken the following steps: (1) A study was completed which analyzes the law dealing with the right of parties to be heard in connection with various types of adminis- trative proceedings." 5. Califorrnia, Florida. Hawaii. thire Act. 17 Okla.L.Rev. 1. 2, n. 3 Maine, Maryland. Massachusetts. (1964). Michigan. Mi~sourl, North Dakota. 8. See Part lit n/re. Oklahoma. Oregon, Rhode island. 9. Changes made since 1966 In the Virginia, Washington, West Virgin- proposed Administrative Procedure ia. Wl~consin. Act are noted in Part V. in/re; see 6. Maryland, Michigan, Missouri. also Part Vt. Oregon, Washington, Wisconsin. 10. In addition to the resources of Its Hawaii. own staff, the Commission has had, 7. See Law Revision Commission, in the pursuit of this study, the ben- Preliminary Report to the Legisla- efit of the services of Professor Kurt ture Relating to Study of Advisabil- L. Hanslosve and Professor Robert ity of Legislation Providing General S. Pasley. of the Cornell Law Standards for Hearing Procedures School. Dean Samuel M. Hesson, and Rule Making of Administrative Professor Ralph D. Semerad and Agencies and Providing for Judicial Professor Robert H. Bowmar of the Review. Leg.Doc. (1963) No, 65(A). Albany Law School, and Philip L. App. 1V, 1963 Report, Recommenda- Evans, Esq., of Utica. New York. tions and Studies of the Law'RevI- 11. Semerad, Constitutional Law with elm Commission 23: Merrill, Okia- Respect to Administrative Adjudjca- homa's New Administrative Proce- tion. See Leg.Doc. (1965) No. 65(A) PAGENO="0083" 79 (~) A second study was completed, dealing with judicial review of rules and adjudications of administrative agencies, and analyzing such problems as method and scope of judicial review.12 (3) An extensive collection and analysis of administrative procedure legislation was made. This included study of the Federal Administrative Procedure Act (1946) as amended (5 U.S.C. ~ 551-59), the Model State Administrative Procedure A,~, and the Revised Model State Administra- tive Procedure Act, and the administrative procedure statutes of the other states.. (4). A survey was undertaken of the activities of a number of major administrative agencies in New York to determine the extent to which they are authorized to engage in adjudicatory and rule-making activities, and the procedures they employ in connection therewith. The size and complexity of the State's administrative and regulatory organization, as well as limitations of time. and personnel, dictated a questionnaire approach for this phase of the~Commission's study. The questionnaire which was distributed was designed to identify the more important activities of some of the State's major administrative agencies, as well as to secure a sampling- of the written materials they use in accomplishing their work. (5) Relying upon the data and information obtained from the in- vestigations described, the Commission, early in 1964, embarked upon several months of intensive bill drafting. These efforts resulted in a draft whose chief purpose was to elicit comments that would aid the Commission in making a determination. This draft relied on various sources, important among which were the Uniform Law Commissioners' Model and Revised Model State Administrative Procedure Acts, the Massachusetts State Administrative Procedure Act (Mass.Ann.Laws, ch. 30A, ~ 1-17), and the Federal Administrative Procedure Act. It sought to deal comprehensively with the adoption of administrative rules and procedures, with judicial review of rules, with adjudicatory proce- dures and with licensing. In preparing the draft, the Commission took note of such suggestions as had been received in answer to inquiries sent to labor organizations throughout the State, to chambers of com- merce, to trade associations and other organizations representing business and industry, and to organizations representing the professions. These suggestions indicated concern over such matters as inadequate notice of administrative rule making, the need for greater use of advisory or declaratory rulings by agencies, and the improper commingling of the prosecutory and adjudicatory functions within agencies. The draft was widely distributed in August of 1964, accompanied by a form inviting comment on each of the (Iraft's sections. It was sent to some eight hundred persons, including members of the bar, especially those with a Particular concern for administrative law and practice, such as inenibers of the several adnurustrative law committees of bar associations; counsel for numerous agencies of the State; a number of legal scholars specializing in the field of administrative law; and repre- sentatives of business and labor. A substantial proportion of those re- ceiving the draft made comments on it, which were most helpful to the Commission in its subsequent work. All those receiving the drnft act, and all others interested, were in- vited, either by mail or by published notice, to participate in a series of public hearings held by the Commission in the following cities: 13 Buffalo, New York October 14, 1964 Syracuse, New York October 15, 1964 Binghamton, New York October 16, 1964 Albany, New York October 22, 1964 New York, New York October 23, 1964 12. Hesson, Judicial Review of Rules 13. For Stenographic Transcript, see and Adjudications of Administrative LegDoc. (1965) No. 65(A) 141. Agencies. See LegDoc. (1965) No. 65(A) 47.. PAGENO="0084" 80 On the basis of the very helpful comments ntade during the course of these hearings, as well as of those submitted in writing, the Commis- sion made several significant changes in its draft and the three bills ,liscussed earlier were introduced in the 1965 Legislature. In 1966 additional changes ~sere made in response to certain objections by agency counsel, bar association committees, and interested individ uals 14 Ill Exemptions From the Proposed Admrnzstratwe Procedure Act \%ith respect to ~s'hat agencies should be subject to the proposed ad ministrative procedure act, the Comnussion said in its 1963 report to the Legislature "Agency' is defined to include all administrative bodies of the State government having rule snaking or ad)udleatorv au thority. The only exceptions set forth are agencies of the legis- lative or judicial branches and the Co'. ernor Any other excep tions should be made only by legislative enactment (Leg Doe (196D) No 6o(A) 13) However, as a result of the criticisms and suggestions advanced at the public hearings and at the legislative hearing on the proposed bills held on May 11, 1965, before the Senate and Assembly Committees on the Judiciary, and on the strength of memoranda later submitted to the Com- mission, it was concluded that this approach to the subject of exemptions from the operation of the proposed statutes was impracticable. The Commission therefore decided that a separate study on the ques- tion of exemptions should be made and that conclusions relating to specific agencies should be incorporated in the proposed legislation. The first of two phases of the study was commenced in 1967. It con- sisted of an examination and analysis of exemption provisions contained in the administrative procedure legislation of other states, in the hope of finding some uniform pattern of exclusion. There was none, nor could the Commission find any underlying philosophy which might have in- fluenced other state legislatures in granting exemptions.13 In 1968 the Commission undertook the second phase of its study' of ~which agencies in New York should be exempted from the operation of the proposed act. This study was an appraisal of the anticipated efi:ect of the proposed administrative procedure act on the rule-making and ad- judicatory powers of State departments and agencies.16 Using a list of State agencies provided by the Division of the Budget, the Commission, on June 25, 1968, sent to each agency a copy of the bills proposed in 1965 nnd 1966, together with the following questionnaire: 1. Does your agency have rule-making, adjudicatory, or licensing powers, and if so, as to any of these powers, do your present procedures as to rule making, adjudication, or licensing differ materially from the procedures provided by the proposed stat- utes, and specifically in what way? Would the changes pro- vided in the proposed statutes compel you materially to change your present procedures, and howl 2. Do you believe your agency should be exempt as to either rule making, adjudication, or licensing, and if so, why? The Commission stated in the letter that a failure to reply would be taken as an indication that the agency would be able to comply with the proposed act. Approximately two-thirds of the agencies responded. 14. See Schedule of Changes Made in 16. Bowmar. Exemption of New York 1966. Leg.Doc. (1966) No. 65(A) 27. State Agencies From Proposed State 15. Bowmar. Exemption Provisions of Administrative Procedure Act, in/re State Administrative Procedure at -. Statutes. infra at -. PAGENO="0085" 81 A ~ew agencies simply indicated that they had none of the powers men- tioned; others replied that although they did have one or more of these powers, they envisioned no difficulty in complying with the proposed act. Some requested exemption-either total or partial; others merely raised objections to specific provisions of the bill which directly affected them. The responses are collected in the Commission's files as part of its work- ing papers. -. The Commission had initially concluded that agencies in the Judicial and Legislative branches, and the Governor, should be exempt. The Commission has reaffirmed that conclusion and recommends that the following agencies be granted exemption: agencies specified in the Pub- lic Authorities Law; agencies created by interstate compact or inter- national agreement; agencies whose primary function is the financing, construction, or maintenance of public works; Department of Audit and Control and Division of the Budget; Division of Military and Naval Affairs; Office of Planning Coordination; Division of Parole; Division of State Police; Division for Youth; Department of Civil Service; De- partment of Correction; State Insurance Fund; Workmen's Compensa- tion Board; Unemployment Insurance Appeal Board; and the Depart- ment of Agriculture only with respect to its adoption of federal regula- tions. The bases for these exemptions are as follows: 1. Agencies specified in the Public Authorities Law. These agencies fall within the definition of public benefit corporations whose functions for the most part are concerned with the operation and the financing of public facilities. 2. Agencies created by interstate compact or international agreement. New York cannot unilaterally alter or affect a compact with another state, or an agreement between New York and a subdivision or agency of a foreign nation. 3. Agencies whose primary function is the financing, construction, or maintenance of public works. The reasons for exempting public au- thorities also apply here. 4. Department of Audit and Control and Division of the Budget. Tue Department has very limited adjudicatory junctions and the procedures used meet the standards of administrative procedure prescribed in the proposed act. The Division has neither adjudicatory nor licensing fune- tions. The rule-making functions of both agencies relate only to the in- ternal management of government insofar as it is concerned with the expenditure of state monies and, further, in the case of the Division, with state employee organizations. Specifically, the Division monitors and controls agency expenditures, regulates certain employee compensa- tion and reimbursement matters, and has the final review and approval of schedules of medical fees and hospital rates for the Medical As~i~tance Program and all other State purchases of medical care (excluding work- men's compensation). 5. Division of Military and Naval Affairs. The regulations of the agency apply primarily to the internal management of the forces of the Organized Militia, and there must be compliance with standards imposed by the United States Department of Delouse. 6. Office of Planning Coordination. Its primary function is to advise and assist the Governor in the coordination of the development and planning activities of the State with those of the federal government. local governments and other state governments. With respect to that function, it has rule-ni~king powers only. PAGENO="0086" 82 7. Division of Parole; Division of State Police; arid Division for Youth. None of these agencies has regulatory powers affecting the public generally. 8. Department of Civil Service. The Department has no adjudicatory functions, apart from disciplinary proceedinirs affecting State em- ployees, and rio licensing powers. It is the central personnel agency the State in its capacity as an employer, and its functions, like those of budgeting, auditing and purchasing, are merely a part of the State's internal management. 9. Department of Correction. The Department was established pri- niarily for the confinement, care and treatment of prisoners. 10. State Insurance Fund. Although the Fund is a governmental agency, it is also a competitive insurance carrier. Its unique situation in this respect justifies its exclusion front the coverage of the proposed act. 11. Workmen's Compensation Board, Unemployment Insurance Appeal Board. Both of these agencies are concerned primarily with contro- versies between private interests. 12. Department of Agriculture. The Department has requested, and the Commission proposes, au exemption only with respect to its pro- cedures for the adoption of federal regulations. In reaching its conclusions on specific exemptions, the Commission applied one primary test: Do the regulatory activities of the particular a~cncy affect only its relationship with pcrsonnel within the structure of State government or within its own internal structure and adminis- tration, or do they affect its relationship, or the relationship of the State, with third parties, that is, with members of the public. 1". The Proposed State Administrative Procedure Act The proposed bill deals with the subjects of rule making, adjudicatory proceedings, licensing, public in formation and representation before administrative agencies. Judicial review is dealt with only in the lim- ited area of the validity or applicability of rules. The general structure of the proposed bill is as follows: Article 1 contains clef initions and deu~ls with the application and construction of the proposed act. Herein are found the exemptions. Article 2 deals with the adoption of rules and rule-making procedure. Article 3 governs adjudicatory proceedings. Article 4 relates to licensing. Article 5 provides for public information concerning rules and adjudicatory orders. Article 6 deals with repre- sentation before adniinistrative agencies. Article 7 simply states the effective date of the act. The following analysis of the proposed act mentions several common misconceptions on the part of state agencies as to the applicability of the proposed act, considers criticism of the bill made in replies to the questionnaire, and explains amendments made in 196.9 to meet objections. A. Coverage. "Agency" is defined to include all administrative bodies of the State government having rule-making or adjudicatory powers (~ 3.02(1)). B. Applicability of the Statute. On the basis of the Commission's 1968 study of the question of exemptions, section 103 was added to the proposed act. It enumerates the agencies to which the provisions of the act will have no application. The exemption of these agencies is the subject of the text in Part IV above. C. Construction of the Statute. A new section 104 prov~cles that, except in two instances (~ 202(1) (c) and 202(2) (c)), the statute PAGENO="0087" 83 does not limit or repeal additional procedural requirements imposed by statute or otherwise. It is thus generally intended to set forth only minimum safeguards. Section 104 now also provides that the statute does not require any agency to change its existing procedures if such pro- cedures meet or exceed *the standards prescribed in the act. D. Rules. Rules are ..broadly defined to include all ~eneral state- ments of law or policy issued by agencies to interpret or implement gov- erning statutes or- to -prescribe agency. procedures (~ 102(2)). Thus, both procedural and substantive- rules are included. The following are excepted Statements - or memoranda concerning the internal manage- ment of the agency (~ 102(2) (a)); rules relating to the use of public works, including streets and highways, where signs and signals are used to indicate the substance of such rules (~ 102(2) (b)); advisory rulings issued-by- agencies pursuant to the proposed bill (~ 102(2) (c)); orders issued in adjudicatory-proceedings- (~. 102(2) . (d)); and forms and in- structions,- interpretive statements and statements of general policy which in themselves have- no legal effect, but are merely explanatory (~ 102(2) (e))~ -. . .~ .. - - - The exception under subdivision (e) is designed to exclude from the rule-making requirements--so-called interpretive rules not having the force of law. Such statements are frequently issued by agencies (in the forni of bulletins or otherwise) for the guidance of the public. Because this is a highly desirable-practice, it seemed appropriate to the Comniis- con not to discourage agencies from employing this useful device by imposing procedural restrictions on the process. A few agencies interpreted the rule-making provisions in general as somehow prescribing the content of rules to be adopted by the agencies. This is an error. There are provisions ( 201) which call upon an agency to adopt rules relating to certain aspects of its operations-for example, i-tiles relating to petitions for the adoption of rules (~ 203), to petitions for declaratory fulings (~ 206), and to public inspection and publication (~ 501)-but, in each instance, the agency itself determines the content of a rule. E. Adoption of Rules. All agencies are required to adopt procedural rules (~ 201). Underlying this requirement is the idea that, whereas dii terent agencies may well itt-ed to use varying procedural approaches, it is desirable for each agency to regularize such l)rocedulres as are ap- propriate to its particular task or tasks. Indeed, the Commission's study of State agencies has revealed that many of theta already have procedural rules to govern their operations. P. Rule-Making Procedures. There is at present considerable variety in the procedures used in connection with the adoption of rules. They range front no hearings or other formal procedures whatever, through in formal consultation, consultation with formally established advisory bodies, and hearings of a legislative type, to formal trial-type hearings. An important choice in connection with rule-making procedures is between requiring a hearing in (oiillectlon with the adoption of all or of ce:tain categories of rules (subject only to an emergency exception coin- monlv found in administ ive procedure statutes) and leaving agencies free to employ either written or oral procedures, at their discretion. The Revised Model Act, as well as the administrative procedure statutes of Hawaii, Iowa, Massachusetts, Minnesota, Nebraska, Ohio, Oklahoma, Rhode Island, Virginia and Wisconsin are among those requiring hear- ings in sonic or all instances. The Federal Administrative Procedure Act and the Model State Administrative Procedure Act, as well as the administrative procedure statutes of Alaska, Arizona, California, Cob- i-ado, Florida, Maine, Maryland, Michigan, North Dakota, Oregon, Wash- PAGENO="0088" 84 ington and West Virginia, permit agencies to employ written or oral procedures at their discretion. The Commission concluded that a third choice was proper. This would reaffirm judgments previously made by the Legislature. The proposed bilL therefore r~quires a hearing procedure only where another statute requires a hearing prior to the adoption of `t rule ( 202(1)) In other cases, the propo~ed bill requiras notice and opportunit~ to present data views, or arguments with or without opportunity for public hearing as the agency may decide (~ 202(2)). Contrary to a frequently-voiced ob- jection the proposed bill itself does not require a hearing in either rule niakuig or adjudication The notice required for Proposed rule making in all ir stances is as foIIo~s (1) notice must be in accordance with the requirementa speeified in any applicable statute (2) if no such notice is specified then at least 21 days notice must be given in one ot more newspapers of general cir culation or in such trade indu~,tr~, or professional publications as the agency may select The disjunction under (2) represents an important change made in 1969 in the requirements for effecting. proper notice of rule making The original bill uoiild h~t%e required nev~spaper publica tion in all cases It `i~ill often be the c'tse that `in agency s already established means of gi~ ing notice to persons interested in `igency rule making are at least as effective as newspaper publication would be. Sec- tions 202(I) (a) (1) and (2) (a) (1) now make newspaper publication merely an alternative to the other means therein suggested; the lan- guage makes it clear that the choice of means lies entirely with the agency In `iddition to the abo%e the proposed bill requnes each agency to give personal notice, by mail or otherwise, to persons who place their names on a list to receive notice of proposed action which may affect them. Requests to receive such personal notice are renewable annually in December, to keep the mailing lists current. The proposed bill (~ 202(3)) makes clear that public hearings held in connection with rule making need not comply with the formalities of trial-type hearings such as are held in connection with adjudicatory proceedings. In other words, rule-making hearings may be of the in- formal, legislative, and argument type. Hence they need not employ the formalities of sworn testimony, examination and cross-examination of witnesses, except to the extent that an agency may decide that some par- ticular issue is of the sort best resolved through such formal methods. The Commission's proposed bill does not affect such existing procedures. The proposed bill contains emergency escape clauses from all or part of the procedural requirements concerning notice and hearing, (~ 202(1) (c), (2) (c)), which are effective irrespective of the requirements of any other statute. The two emergency clauses differ somewhat from each other, the first being the more narrow of the two. This is because subdivision 1 deals with situations where a public hearing prior to the adoption of a rule is ordinarily required. The requirements of notice and public hearing may be wholly or partly dispensed with only if the agency finds the adoption of a rule to be necessary as an emergency measure for the preservation of the public health, safety, or general welfare. Such an emergency measure may remain in effect no longer than sixty days, unless within such time the agency gives notice and holds a public hearing and takes final action concerning the measure. The escape clause in cases where a public hearing is not required (~ 202(2) (c)) enables an agency to dispense with all or part of the requirements of notice and opportunity to present views, if the agency finds this to be necessary in the public interest. This gives agencies somewhat more leeway than did the emergency clause previously dis~. cussed, because of the somewhat broader scope of the term "public in- PAGENO="0089" 85 tere~t" than of the phrase "public health, safety, and welfare." The agency must state the reasons for the exercise of emergency powers. The proposed bill (~ 202(4)) makes clear that other statutory provi- sions requiring the filing with or approval by designated persons or bodies remain unaffected. It is also made clear (~ 204) that the re- quirements of section eight of article four of the State Constitution and of the laws enacted pursuairt thereto remain unaffected by the proposed The Commission's proposed bill (~ 202(5)) provides that rules are invalid if they have not been adopted in substantial compliance with its rule-making procedures. It seemed desirable, however, to specify that inadvertent failure to mail personal notice of propoi~ed rule making should not result in invalidation. Thus, clerical oversight or some .ini- nor, mechanical failure in the addressing or mailing of notices would not invalidate rulei otherwise properly a~dopted A statute ot limitationi, of four months is specified for proceedings to contest rules for non- compliance. with procedural requirements. This conforms to the limita- tion period contained in article 78 of the CPLR, and seems, in any event, adequate in connection with the challenge of the validity of rules for purely procedural defects in their adoption. The validity or appli- cability of a~ rule may, however, be tested more than four. months after the effective date of the rule ( 205). G. Petition for Adoption o Rules. Each agency is required to adopt a rule specifying the procedure by which petitions for the adoption ~of rujes are to be submitted, considered, and disposed of. To assure prompt handling of such petitions, the proposed bill requires that such petitions be dealt with within ninety days, either by lenial in writing or by the initiation of rule-making proceedings (~ 203). A provision that the denial of such a petition shall not be reviewable has been added to section 203. H. Judicial Review of Rules.. The Commission's proposed bill (~ 205) provides that the validity or applicability of rules may be tested upon a petition under article four of the CPLR or in an action for declaratory judgment. This provision b~ooines available upon a showing that the rule or its threatened application impairs legal rights, property, or priv- ileges of the petitioner, or threatens to do so. Grounds for declaring a rule invalid or inapplicable are violation of constitutional provisions and absence of statutory authority for the rule. It was decided, however, to circumscribe this right of judicial review by first requiring resort to the agency involved, in accordance with the widely accepted and generally sound requirement of prior exhaustion of administrative remedies. The Commission believes agencies should be given an initial opportunity to pass upon their own alleged errors with the object of correction, when correction is required. This serves to reduce the work load of the courts, and also allows for more informed judicial review. Section 205 leaves unaffected the right to challenge the validity or applicability of a rule iii any other proceeding (such as a prosecution for alleged violation of the rule) in which such invalidity or inapplicability is asserted, except that the provision will not be applicable where an exclusive remedy is provided by statute. This newly-added exception is designed to obviate the difficulty of reconciling the proposed act with certain exclusive procedure provisions in the governing statutes of some agencies; for example, section 626 of the Labor Law relating to the appeal procedures of the Division of Employment. I. Advisory Rulings. Agency officials render informal advice in many instances by telephone, letter, and in conversation. It is highly de- sirable that they do so. It is also desirable that such advice be as reliable as is practicable, so that persons are not misled to engage in conduct PAGENO="0090" 86 which the agency subsequently determines to be unlawful. Yet it is dif- ficult to make such infornial advice binding upon the agency in all in- s~nces, as the very informality of the circumstances under which such advice is often rendered means that it cannot always be based on Lull anti careful consideration of all factois. A requirement that declaratory rulings by agencies he always binding would have two consequences: one, destruction of the informality of the process; and two, sharp reduction in the quantity of informal advice rendered. The Commission's proposed bill (~ 206) attempts to conipro- mise the problem by first, authorizing agencies to issue declaratory rul- ings; second, requiring them to adopt rules for the submission, considera- tion, and disposition of petitions for such rulings; third, ~`uipozccring, without requiring, agencies to state such rulings to be binding (unless altered or set aside by a court). If a ruling is stated to be binding, the agency may not change it retroactively, although it may do so prospectively. Rulings so stated to be binding are subject to judicial review under article iS of the CPLR. The Commission believes that these provisions will preserve the im- portant and useful informal administrative process, while at the same time allowing for expeditious final (lisposition of issues by declaratory ruling whenever both petitioner an(l agency find it desirable that this be done. J. Adjudicatory Proceedings. The proposed bill (art. 3) seeks to deal with adjudicatory prO(VcdingS in a manner which is tlexihle and at the same time sets forth the fundamental ingredients of due process. Ad~ udicatory proceeding is detinod to include any agency proceeding in which a deternunation of the legal rights, duties, or privileges of named parties is required by law (statutory, decisional, or (OnstitU- tional) to be made only on a record and alter an o~)portunity for hear- ing (~ 102(3) ).17 Notwithstanding the pre~isioti in the use ot the ox- pression "required by law" in some provisions of the statute, and the ex- pression "required by statute" in others, several agency responses to the Commission's 1068 questionnaire ovitied some confusion as to the mean- ing and SCO~C of the latter. It is clearly confined to enactments of the Legislature, in contrast with the hroader anibit of the former expression. It must also be emphasized that unless the statute governing the agency -or constitutional or decisional law-requires that a record be flta(le. the prOvisionS of article 3 of the propos(d bill, (lealing with adjudicatory proceedings, are not applicable. For this reason, several of the agencies that made Objection to the act would not ho covered by it. Party is defined to include those persons named or admitted as par- ties, and also those who properly assert a right, based oti statute, deci- sion, or constitution, to be admitted ( 102(7)). The Commission's ~i~opos~(l bill ( 301 (1)) speciFies that parties to an adjudicatory l)rodeetl ing shall have an opportunity for hearing without undue delay. It also specifies a right to reasonable notice of the matters at issue, including a further statement of Particulars where necessary and appropriate ( 301(2)). The nature of the hearing to which parties to adjudicatory proceedings are entitled is specified in the proposed bill (~ 301(3)). This provision makes clear that there is a right to present oral or written argument on issues of law and policy, and a right to present evidence and argument on issues of fact. The provisiOfl is prelflise(l on the idea that presenta- tion of evidence is the nppropriate method of developing the factual is- sues in a case, whereas argument is the appropriate method of litigating questions of law and policy. An addition to subdivision 3 gives the agency discretion to decide at what point in the proceedings the op- 17. Supra, note 10. PAGENO="0091" 87 ~rtunity for oral argument shall be granted. The record, presidin~ officers, and the powers of presiding officers in adjudicatory proceed- ings are also dealt with in the proposed act (~ 302, 303, 304). Complete- ness of the record is, of course, the chief desideratum so that both the parties involved and any.reviewing court may be apprised of those mat- ters upon which an administrative determination is based. The proposed bill estab4~shes the right of the parties to a copy of all or part of the record in an adjudication, upon payment of the cost thereof, except in those cases where an agency's own governing statutelrequires the preparation and furnishng of a transcript of the record without cost to parties (~ 302(2)). Two changes were made in this provision. The first, in the interests of confidentiality, narrowed the category of those who may request a transcript from "any party or person" to "any party." The second, in the interests of administrative efficiency and convenience, added the qualification that a request for a transcript be timely, and made in advance of the bearing. It should be noted that. the Commission's proposed bill does not re- quire, but allows, the use of hearing officers and of procedures involving- preliminary or proposed decisions. Such flexibility seemed appropriate in view of the present widely differing practices employed by New York State agencies. Thus, sonie agency heads hear and decide cases them~ selves; others use referees, trial examiners, or other heaiing officers who hear cases and render decisions which are then subject to a further ad- ministrative step. Some agencies decide cases by panel; others use I earing officers but not preliminary or intermediate reports or reconi- mended decisions, and the agency itself renders the decision on the iec- ord made before the heating officer. There seems to be no widespread dissatisfaction with this variation in practice, and the proposed bill seeks to accommodate the variety. `rhts, the powers of presiding officers may be either broader or more restricted than those provided for in the proposed act ( 304), depending upon particular agency practice as authorized 1w the agency's governing statute. The practice of some agencies to hold a hearing in various parts of the State before more than one hearing officer, i. e. a "spht" hearing, is also permitted (~ 303). The proposed bill similarly gives agencies discrction to employ, without requiring them to do SC), discovery 1)roeethue~ ( 305), depositions ( :304(3) and ~ 305), and submission of evidence in written form (~ 306 (1)). Section 304(3) has been modified to make clear its limited ap- plication only to the taking of testimony by deposition. K. Evidence. The proposed act provides that irrelevant and un- duly repetitious evidence may he excluded ( 306 (1) ). It Itirt her Pro- ~ides that "except as otherwise provide(l by statute, the burden ot Proof shall be On the patty who initiated the proccethng." and that "no decision, deterniination or order shall he made except upon consideration of the record as a whole or such portion thereof a~ may be cited by any party to t lie proceeding and as is supported by and in accordance with the reliable, probative and substantial evidence." ( 306(1)). The piopose~i act does not deal with judicial review ot detenninations in adjudicatory proceedings, as defined in section 102(3). in this connect ion, some oh- jOCtiOfl Was made to the language "reliable, probtit ive and substantial evi(lenee," as used in section 305(1), in cent inst to the expression "sub- stantial evidence", as used in CPLR section 7803(4). The inoic stringent standard imposed by the proposed act is applicable only to proceedings before the agency itself, and not to judicial review of ad- ininistiative deterrnination~. It is also provided that, unless otherwise required by statute, agencies nc-ed not observe the technical rules of evidence obsei ~ed by cou its ( 306(l)). PAGENO="0092" 88 L. Official Records and Official Notice. The proposed bill (~ 302(1), (3)) provides that the record is to include a statement of matters of- fieially noticed, except when the matter is so obvious that a statement of it would serve no useful purpose, and that findings of fact are to be based exc1usr~ely on the e~idence and on matters oftiet'ilIv noticed W'hile permitting incorporation by reference in the record of `aritten materials possessed by the a~,enev the proposed bill requires that such materials be made available by the agency for examination by the parties (~ 306(2)) The proposed bill permits of tictal notice to be taken of JudLelally noticeable facts `md `of other facts ~ ithmn the specialized knowledge ot the agenc3 When official notice is t'iken of the latter tspe of fact, partIes must be notified and `mrc entitle(I prim to final deciskon to dis- pute the noticed fact or its materiality (~ 306(4)). The procedure in this respct can be fle~ihle &~encies ma~ use preliminar~ inter mediate, tentative, or proposed (lecisions in which to apprise parties of such officially noticed facts M. Ex parte Consultations and Institutional Decisions. 1n adjudica- tory proceedings, deciding officers are forbidden ex parte comniunica- tions concerning issues of fact with any person or party, and concerning issues of law ~vith any party or his representative (~ 307(2)). Agency members niav, however, have the aid and advice of agency staff other th'mn peisonnel th'mt has b&en oi is eng'm~ed in insestigiti~e ot piosetut- in.~ duties in connection with the c'i~ mmndet considei'itton or `t factually iel'ited cq~e (~ 307(2) (b)) Ihe piopo ed bill thus seeks to est'iblish the principle of infernal separation ot' functions which is already accept- ed by a number of agencies of the State. This provision ( 307(2)) does not affect disposition of ex parte mat- tem authorized by law. Indee(l, to the extent that determinations are authorized by law to be made on an cx parte basis (such as by means of testing or in pection) the piosisions re~pe~ting ~tdiudic'itor~ piooeed in~,s do not hecomi opei'itne `m~ the definition of adjudicatory pioceed- in.~ makes ciei.r (~ 102(3)) N Licenses The proposed act (art 4) provides th'mt the pio%isions concerning `tdjudic'ttory pioceedings shall ipply to licensing metiuties of a.encies when such licensing `mcti~ities `ue iequiied to be piecede~l l)V notice `mud oppoitunit~ Ioi lue'mnng (~ 401(1)) This l'migels incoipo vites existing l'i.w coaceining the ii~ht to `m heaiing in connection with ~he grantmn~ dciii ii om renew ii of a license The proposed bill deals with the problem of license renewals in connec- tion with `mctiutie'~ of a continuing n'mtuie (~ 401(2)) In such e'mses, when a timely and sufficient renewal application has been filed, the existing license w oul(l meni un in effect until time m'mtter Ii is been tin mily deteinuned b~ the `mgenc~ and if the ienem~'ml `mpphcation is refused until the last day for seeking judicial review of the agency's denial. An cx- ception is made for summary emergency suspensions of licenses. Several responses to the Commission questionnaire indicated a lack- of awareness that the eniergency suspension provision in section 401(3) can be invoked during the pendency of an application under 401(2). In connection with license revocation or suspension, personal or - mailed notice of the conduct on which the action is based is required, with an opportunity available to the licensee to show compliance with all lawful requirements for license retention (~ 401(3)). This provision is limited by the summary suspension provision mentioned above. Sum- mary action must be followed by prompt institution of proceedings for revocation or other action, and determination of the issue. - 0. Public Inspection and Puphication. The Commission's proposed bill (art. 5) deals with public inspection of rules and other statements - PAGENO="0093" 89 of policy, or interpietations, including descriptions of forms and instruc- tions used by the agency in the discharge of its functions (~ 501(1)). Excepted from this requirement are statements and memoranda concern- ing the agency's internal management that do not affecf the rights of, or procedures or practices available to, the public. Unless otherwise pro- vided by law, final orders, determinations and opinions, and the records on which they are based, must also be made available for public inspec- tion (~ 501(2)).. If the~need for confidentiality is recognized by law, these documents need not be made available for public inspection. The proposed bill .(~ 501(3)) sets forth a~ new requirement concerning publication of agency rules Each agency is to publish all its rules in pamphlet loose leaf, oi other appiopiiate foini, in printed iuimeo- graphed, or other written manner, and make the publication available on request. Except when otherwise. provided by statute, agencies may chaige no moze than cost for the publication Tl~e Commission has found not only that many agencies ha~ e prepaied such compilations of their rules but also that this foi m of publication is the most useful and practical for the practicing bai P.. Representation.. The proposed bill (art.. 6) provides that any peison compelled to appear or ~oluntanly appeaiing betoie an agen~ has the right to be accompanied or represented by counsel. In agency pioceedings, all paities oi persons aie ~,i~ea the n~,ht to appeat in peison or by or with counsel. It is further provided that "nothing herein shall be construed either to grant or to deny to any person who is not a lawyer the right to appeai foi or iepiesent otheis betoie any ~igencv ` `ilie status of 1a3 iepiesentation betote ndimnistiati~e a~,encies is thus lett w holly unaffected VI. Schedule of Changes Made in 1969 in Proposed State 4dniiui.st;atz e P~occdurc Act iS 102(1) `Agency' means an~ st'ite l)oaid buie in comnusSlOn de pai tment authotity di~ isbn oi oIti( ci tuthot i7ed b~ la~~ to in the rules or to make final decisions. in adjudicatory proceedings [, except those in the l( ~i~l tti~ I oi lici~l 1)1 11i lies nit! the go~ ci noi 102(2) (e) forms and instructions, interpretjVe statements nut! st~utements of ~eneial polic~ w hun h in theni,el~ Cs Ii t~ ( no le~,al et feet but are merely explanatory. 103. Application. The provisions of this chapter shall not apply to 1 The ~oi ci noi 2 A~ ncirs in the legNl'utI\ e md lutlI( i'il hi `inches 3 Art nc ies siie( itl( d in thu pnblu iutlioi itiu ~ I itt 4. Anoncies created liv interstate coiiipact or mt ernational agree ment. 5. Agencies whose primary function is the financing, construction 01 in'iintt n uiie of publa W 01 k 6. The division of the budget. the division of military and naval af fairs, the office of planning coordination, the division ot parole, the division of state police, and the division for youth, in the executive & IYU tnient 7. The department of audit and control. 18 See 13x11 `mbmitted in 1961' (Leg .Iic'ited 1w [ 3 new matter b) Un DoC (191'G) `to 65(A)) tieletion in lercoring PAGENO="0094" 90 8. The department of civil service. 9.The department of correction. 10. The state insurance fund, the unemployment insurance appeal board and the workmen's compensation hoard. 11. - The department of agriculture and markets insofar as it pro- * poses to adopt applicable regulations promulgated under the federal act or acts pursuant to section two hundred fourteen-b of the a~ricul ture and markets law. S 104. Construction; severability. 1. Except as provided in para graph (c) of subdivision one and in paragraph (c) of subdivision two of section two hundred two of this chapter. the provisions of this chapter shall not he construed to limit or repeal a(lditional requirements imposed by statute or otherwise, or to change existing agency procedures where such procedures meet or exceed the standards of administrative procedure prescribed in this chapter. 2. The provisions of this chapter shall not be deemed to repeal section six hundred fifty-nine of the labor law. 3. The provisions of this chapter shall not he applied to pending pro ceedings. 4. If any provision of this chapter or the application thereof to any person or circumstance is adjudged invalid by a court of competent jurisdiction, such judgment shall not affect or impair the validity of the other provisions of the chapter or the application thereof to other persons and circumstances. 201: Adoption of rules of practice. In addition to other rule-making requirements imposed by statute, each agency shall[: 1. Prescribe by rule the general course and niethod of its operations and the methods whereby the public may obtain information or make submissions or requests. 2.] [A]adopt rules of practice setting forth the nature and require- ments of all [formal and informal] procedures available. 202(1) (a): The agency shall, within the time specified by any statute, or if no time is specified, then at least twenty-one days prior to the public hearing, (1) publish notice of such hearing in such manner as is specified by any statute, or if no manner is specified, then in such newspaper or newspapers of general circulation [and] or, when appro- Priate. 202(2) (a): The agency shall, within the time specified by any statute, or if no time is specified, then at least twenty-one days prior to the adoption, amendment, suspension or repeal of a rule, (1) publish notice of its proposed action in such manner as is specified by any stat- ute, or if no manner is specified, then in such newspaper or newspapers of general circulation [and] or, when appropriate. 202(5): (Second sentence) A proceeding to contest any rule on the ground of noncompliance with the procedural requirements of this section [, other than one brought under section two hundred five of this chapter,] must be commenced within four months from the effective date of the rule. 203: (Add a final sentence) The denial of such a petition shall not he reviewable. PAGENO="0095" 91 * ~ 205: Right to judicial review of validity or applicability of rules. Unless an exclusive procedure or remedy is provided by the statute gov erning the agency, the validity or applicability of any rule may be de- termined. 205: (Last two sentences) The court shall declare the rule invalid or inapplicable if it finds that it violates constitutional provisions or exceeds the statutory autirority of the agency [or was adopted without substantial compliance with required rule-making procedures]. Nothing * in this-~ section shall. be construed. to prohibit the determination of the validity or applicability of the rule in any other action or proceeding in which its invalidity or inapplicability is asserted, and nothing in this section shall be construed to limit any rights which may exist under ar ticle se~ entv eight of the civil practice law and rules 301(3) All parties shall be afforded an opportunity to present oraL [or] and s~ritten argument on issues of law and policy and an op pm tunity to present evidence and argument on issues of fact The a~eney shall have discretion to provide when and before whom an op portunitv for oral argument shall be afforded. 302(2) The agency shall make a full transcript of all proceedings before it when the statute governing it requires it, and in the absence of such iequirement shall~ [at the] upon timely request [ot any paity or person,] made in advance of the hearing by any party~ have prepared and furnish him with a copy of the transcript or any part thereofL upon pay- ment of the cost thereof unless the statute provides that it shall be fur- nished w ithout cost 304(3): Provide for the taking of testimony [of witnesses before any member of the agency or a hearing officer designated to hold hear- ings tnd such testimony shall be reduced to writing and subscitbed by * the witness and shall be filed with the agency prior to the adjournment of the hearings] by deposition 305: [Discovery] Disclosure. Each agency having power to conduct adjudieatoiy pioceedings may adopt rules p~o~idiiig foi discovery~~ * depositions to the extent and in the manner appropriate to its proceed- ngs ~ 501(2) Unlt ss othet~~ ise provided by la~ [M]iwike `uailable foi public inspection e~ery fitial oidu decision Aiticle 7 ARTICLE 7 -[CONSTRUCTION OP ACT AND SEVERABILITY I EFFECTIVE DATE 701 [Constiuction of act se~erability 1 Except as provided in paragraph (c) of subdivision one and in paragraph (c) of subdivision two of section two hundred two of this chapter, the provisions of this chapter shall not be construed to limit or repeal additional requirements imposed by statute or otherwise nor shall they be applied to pending proceedings. 2. If.any provision of this chapter or the application thereof to any pei son or circumstance is adjudged in~alid by a couit ot competent juris * diction, such judgment shall not affect or impair the validity of the other pio~isions of the chapter or the application theteof to other peis)115 and en cumstances PAGENO="0096" 92 702.] Effective date. This act shall take effect September first, - nineteen hundred [sixty-seven] seventy. ~ 1/11. The Proposed Stair Divi~ioa of Administrative * Procedure Law The Commission's second proposed act provides for the establishment of a State Division of Administrative Procedure in the Executive Depart- ment, which would carry into effect the recommendation of Commissioner Benjamin, who wrote in his report: * I recommend setting up in the Executive Department a new divi- * sion, which might be called the Division of Administrative Procedure, headed by a Director of Administrative Procedure appointed by the Governor and holding office during his pleasure. The Division would have, within the field of its activity, powers of investigation similar to those conferred by Section 8 of the Executive Law. It would have no other powers of compulsion: Its functions would be the following: 1. To continue permanently an objective and detailed examination and study of quasi-judicial and quasi-legislative procedures and of problems of judicial review. 2. To act as a source of technical information and expert as- sistance to the departments, boards and commissions of the State government with respect to their procedures. 3. To assist, on the request of an agency, in the preparation or revision of its procedural rules. 4. To receive from the public (oinplnints and suggestions with respect to procedures that are considered objectionable or subject to improvement. 5. To assist in an advisory capacity in reconciling differences that arise out of conflicting or overlapping jurisdiction or procedures of different agencies. 6. To administer the legislation that must be enacted (pursuant to Article IV, Section 8, of the Constitution) to provide for the publication of rules and re~rulations. `7. To report to the Governor, annually or at more frequent intervals, on the results of its study and examination and on i~s other activity; such reports to include recommendations for any legislation that is thought to he desirable. I have suggested in the preceding part of this report reasons why the problems of aclniinistrative law are not to be solved at one stroke. Certainly they are not all finally solved in this report. Even if the criteria for their solution could be laid down with certainty, there would still be continued problems in the application of those criteria to particular instances. There is in this field constant change, calling for constant attention. To a certain extent, changes sug- gested in this report are necessarily experimental, and if they are adopted there will be advantage in observing them critically in op- eration. It seems to inc important, therefore, that there should be continuing study and examination. It will be observed that I have suggested no powers of compubion beyond the powers of investigation necessary to insure thorough and comprehensive examination. This arrangement has, I think, a double advantage. It leaves ultimate responsibility with the administrator, where responsibility should be lodged if effective and satisfactory administration is to be accomplished. At the same time the activity of the Division of Administrative Procedure would serve to assure that continuous awareness arid attention on the part of the adminis- trator which are necessary if his responsibility is to be properly dis- charged, and would supply to the administrator the technical in- formation and expert assistance which he may need for that purpo~e. PAGENO="0097" 93 I have suggested that the Division of Administrative Procedure should assist, on the request of an agency, in the preparation or revision of its procedural rules, as I have done on such request in several instances. Without impairing the responsibility of the ad- ministrator, it might be provided further that all such rules must be filed with the Divisio*~, for its comment and criticism, before being made effective. I do not, however, advocate giving the Division power to dictate as to the content or form of such procedural rules. To a considerable-extent the existence- of a Division of Adminis- trative Procedure would meet one purpose of those who advocate broad judicial review, without raising the difticulties that such re view encounters. . .1 have said before that there is force in the argu- nient that the prospect of judicial review may have a cautionary and - beneficial effect on administrative procedure and determinations; but I have suggested also that bzoad judicial ieview runs the risk of undermining administrative responsibility Constant investigation - and examination-by the Division would go far towards- supplying that cautionary-and beneficial effect without incurring that risk. The function of the Division o Administrative Procedure in re- ceiving complaints and suggestions from the public should contribute to this result. Comment of this kind from those with whom the agencies deal might be expected to supply, as it has supplied in my study, valuable material for the critical appraisal of administrative piocedures Beyond that, the existence of a Division to ~hich such complaints and suggestions might be made would, I think, go far towards making the public feel that the State is concerned with removing the causes of real or apparent injustice. If my experience is a guide, there will be instances where the complainant will desire to make his complaint in confidence. It should be understood that this may be done. There will be other instances where the com- plainant is willing or anxious that his specific complaint should be disclosed to the agency concerned. I do not contemplate that the Division~ should undertake in behalf of complainants to reopen, or otherwise affect the result of, particular cases; though discussion of the procedural question by the Division with the administrator con- cerned might incidentally have that effect. It is probable that the Division would be called on only infre- quently to act in cases where the jurisdiction or procedures of dif- feient agen( e~ conflict oi o~eml ip W htie `,ucli iii~tances do ause however, they may be a source of annoyance and difficulty not only to the outside interest affected but to the agencies as well. The I)iu~ion ~~ould of fei convenient macninei~ toi ~~oiking out such difficulties; here again, I should not advocate any power of com- pulsion. (Benjamin, Adniinistrative Adjudication in the State of New York (1942), at 18-20.) Similar agencies have been established in other jurisdictions, both in the United States and abroad. Thus, there was established in the Depart- ment of Justice an Office of Administrative Procedure with the following duties: (a) To carry on continuous studies of the adequacy of the pro- *cedures by which Federal departments and agencies determine the rights, duties, and privileges of persons; (b) Initiate cooperative efforts among the departments and agencies and their respective bars to develop and adopt so far as practicable uniform rules of practice and procedure; (c) Collect and publish facts and statistics concerning the pre- cedures of the departments and agencies; and (d) Assist departments and agencies in time formulation and mi- provenient of their administrative procedures. 28-238 0 - 74 - PAGENO="0098" 94 One of the recommendations of the Administrative Conference of the United States was that the Office of Administrative Procedure in the Department of Justice "he more adequately staffed and budgeted than at p~'sent . . . " (Recommendation No. 2 of the Administrative Conference of the United States, reproduced Sen.Doc. No. 24? 88th Cong. 1st hess at ~9 (1963~ California has established an Office of Administrative Procedure under the direction and control of a presiding officer. This office not only supervises the state's hearing officers for the various state agencies but also has the follo~%in?, adthtion'il duties and po~ers The office is authorized and directed to study the subje t of ad rninlstratt%e l'i~ `irid procedure in all its aspects to submit its suggestions to the v'irious `Leilcies in the interests of fairness, unitoimity and the expedition of business, `intl to report its recorn niendations to the Go~ernor `md Legislature `it the comnienceh~ent of eah gener'il session \ll (lepaitnients i,,encies, officers and era pioyees. of the State shall give the office ready access to their rec- ords and full information and reasonable assistance in any mat- ter of research requiring recourse to them or to data within their. knowledge or control.~ (Cal.Gov't Code ~ 11370.5.) Tncrea~,ing ittention has ilso been ,,iien to `t ,,osernmental oftice utilized abro id to at unt'iin I iii tie anon.. idnuiiistm ttl% e officials The office is kno~mn as that of Ombudsman ` Its use appeats to hase been pioneered in the Scandinavian countries. In 1967, Great Britain created by Act of Parliament the of fice of Parliamentary Commissioner, which is analogous to that of the Ombudsman. The key to the Ombudsman's effectiveness is the authority to study, continuously, the administrative process, to receive complaints concerning alle.,ed adlnimstr'mti%e failings to consult ~~ith the adminlstrati%e offi cials, to suggest to such officials improvements in their operations, and to invoke the sanction of publicity, in the form of suggestions, legislative or otherwise, to the executive or legislative branch. The Division of Administrative Procedure proposed by the Commission would be headed by a director, appointed by the Governor, by and with the advice and consent of the Senate. The director would hold office at the pleasure of the Governor. (~ 652.) The Division would he empowered, and it would be its duty, to make a continuing study of the efficiency anti fairness of administrative pro- cedures, to act as a source of technical inforniation and expert assistance to agencies with respect to their procedures, to receive complaints from the public concerning administrative practices, to collect information and statistics relating to administrative processes and report thereon, and to make recommendations for improvement in procedures to the Governor, the Legislature or the agencies. .(~ 653.) To discharge these duties, the director of the Division would he em- powered to request, and agencies of the State would be authorized to give, relevant assistance and information. (~ 654.) He would also be authorized to appoint assistants, consultants, and advisory committees within budgetary limitations. (~ 652.) VIII Judicial Reillezu The Commission has ~tlready noted the recent revision itt the Civil Practice Law and Rules of former article 78 of the Civil Practice Act to codify the results of judicial decisions relating to the scope of judicial review of administrative determinations. The Commission believes that no new legislation should be proposed at this time without consideration of the developing experience under the new Civil Practice Law and Rules provisions, a study of the various criteria such as "substantial evidence on the whole record," "clearly er- PAGENO="0099" 95 roneous on the whole record," "clearly erroneous in view of the reliable, probative and substantial evidence on the whole record," "contrary to the overwhelming weight of the evidence," "clearly wron~ in view of the sub- stantial evidence on the whole record," and "against the weight of the evidence," and a survey of specific statutes in New York which provide for review using criteria different front those of the Civil Practice Law and Rules. IX. Effective Dates The Commission has concluded that the proposed State Administrative Procedure Act should take effect on September 1, 1970, and the proposed bill to. establish a State Division of Administrative Procedure on April 1, 1970. Amendment of Provisions Pertaining to the Issue of Bonds and Notes of Public Agencies Under the General Municipal Law, Private Hous- ing Finance Law, Public Authorities Law and Public Housing Law, to Reflect the Enactment of the Uniform Commericial Code 1969 Leg. Doe. No. 65(B) A. Intro. No. 5693 Before the enactment of the Uniform Commercial Code in this State, ~ertaini provisions of the Consolidated Laws which affected the issue of bonds and notes by various public agencies declared that such evidences of indebtedness should be negotiable instruments within the meaning of and for all the purposes of the Negotiable Instruments Law, subject only to the provisions of the bonds or notes for registration. In some enses the statutes further provided that the obligations were to be negotiable whether or not they were of such form as to be negotiable instruments under the Negotiable Instruments Law, or notwithstanding the fact that they might be payable out of a special lund. The use of this language was necessary for two reasons. First, tire obligation was usually paYable out of a l)aiticular lurid and thus deprived of the quality of a negotiable instrument because it did not contain an unconditional promise to PitY a suni certain inn money. (Bull V. Sims, 23 N.Y. 570 (1861).) Second, the obligation was usually iii registrable form, which did not meet the requirement that to be negotiable an inrstru- merit must be payable to order or bearer. (See Negotiable Instruments Law 20.) Iii order to make tire obligations attractive to investors, attributes of negotiability were expressly conferred on them. Under the Uniform Commercial Code, obligations of public agencies may be governed by either article 3, relating to "Comnnrercial Paper," or article 8, relating to "Investment Securities." Article 3 replaced the Negotiable Inst rirments Law. It changed the rule of Bull V. Sims, supra, with respect to inistruniemits iasired by a governnrent or governmental agency or unit so that a promise otherwise unconditional is riot made coirtlitionial by tire tact that the instrunrerrt is limited to payment out of a larticulat lurid. ( 3-103(1) (g).) Tire instrument, however, must he payable "to order or to i)earer." Govern- merit paper may now qualify as negotiable rrnder these provisions. Article 8 rrnakes ito reference to unconditional l)ror~r~ses Payment and registration limitations do not affect the negotiability of any imrstrumnient~ governed by tins article. "Securities," as defined therein, are ipso facto negotiable imrstrurrments. (~ 8-105(1).) The only relevant fornral re- (juiremnent is that they be issued `.ini hearer or registered form." (~ 8-102 (1) (a) (ii).) When the Code was enacted in New York, some of the provisions relat- ing to the issue of bonds and motes of State ngemreies were amemrded to PAGENO="0100" ft; conform to the Code; others, however, were not changed. For the most part, the amendments went only so far as to substitute for the reference ro the Negotiable Instruments Law in the old statute a reference to the Uniform Commercial Code, usually to article 8. While it seems reason- * ably clear that the majority of the obligations will fall under article 8, if some agency notes should he issued "to order" rather than in "heaL'- er or registered form," they would conform to article 3. The single statutory reference to article 8 is, therefore, inadequate. Furthermore, the limited nature of the amendments has left meaning- less and superfluous language in the statutes. For example, such phrases as "notwithstanding that the bonds and notes may be payable * from a special fund," and "subject only to the provisions of the bonds * or notes for registration," should be deleted. - The Commission believes that the statutes which empower public agencies to issue negotiable bonds and notes should he made uniform in their relation to the Uniform Commercial Code for the sake of ac- curacy and clarification. To accomplish this purpose, it has adopted a single basic formula to be inserted in each of the pertinent statutes, namely, the issuance of bonds or notes "in conformity with applicable provisions of the uniform conimercial code." The proposed statute places upon the draftsman of the particular instrument the respon- sibility of complying with the terms of the enabling act as to substance and with article 8 or article 3 of the Code as to formal requisites. In 1961 and 1968, the Commission submitted recommendations on this subject to the Legislaturc.~ In 1968, objection was raised to the bill by virtue of its inclusion of amendments to the Local Finance Law. Upon review of the objections. the ComlnissiorL believes that no amendment of the Local Finance Law is desirable. The Commission therefore recommends: I. The amendment of section 559(1) (a) of the General Municipal Law set forth in the bill submitted herewith. II. The repeal of section 559(5) of such law. III. The amendments of sections 46(1) (a), 47-a(2) (h) and 47-b(2) (b) of the Private Housing Finance Law set forth in the bill submitted herewith. IV. The repeal of section 46(1) (d) of such law. V. Amendments of sections 108(1), 157(1), 206(1), 365(1) (a), 431 (1), 462, 532(1), 532-a, 561(1), 581(1), 661(1), 703-a(1), 706(1) (2), 829(1), 881(1), 882, 1009-a, 1010(1) (2) (3), 1056(1), 1057, 1080(1), 1080-a, 1098(1), 1099, 1156(1). 1157, 1187(1), 1207(1), 1207(3), 1207-b (1) (3), 1236(1), 1237, 1269(1) (a), 1290(1) (a), 1299-i(1) (a), 1317(1), 1318, 1349-iii(l), 1349-n, 1363(1), 1364, 1388(1), 1389, 1408(1), 1409, 1433(1), 1434, 1438(1), 1439, 1483(1), 1484, 1508(1), 1509, 1533(1), 1534, 1533(1), 1554. 1558(1), 1559, 1569-i(1), 1569-,j, 1585-i(l), 1585-i, 1595-i(1). 1595-j, 1596-i(1), 1596-j, 1597-i(1), 1597-j, 1598-h(1), 1598-i, 1608(1), 1631(1), 1657(1), 1632(1), 1710(1), 1711, 1730(1), 1731, 1770, 1771(1), 1305(1), 1860(1), 1910(1), 1911, 1958(1), 1959, 1976(1), 1977, 1984(a) and 1985 of the Public Authorities Law set forth in the bill submitted herewith. VI. The repeal of sections 365(1) (d), 461(5), 532(6), 1269(1) (d), 1290(1) (d), 1299-i(1) (d), 1805(5). and 1860(4) of such law. VII. The amendment of section 41(1) (2) (2-a) (3) of the Publje Honsing Law set forth in the bill submitted herewith. VIII. The repeal of section 43 of such law. - * Leg.Doc. (1967) No. 65(L): Leg.Doc. 1967 and 1968 Reports, Recomnmenda- (1968) No. 65(A). Such Legislative tions and Studies of the Law Revi- Documents and the legislative his- sion Commission at pages 325. -. tory of the bills are included in the and -. -, respectively. PAGENO="0101" 97 Legitimacy of Children of Void or Annulled Marriages 1969 Leg Doe No 65(C) S Intro No 3930 `A Intro No o376 At common law a child born out of "lawful wedlock" is illegitimate in the absence of a statute which gises him the status of a legitimate child A child born of a void marriage is illegitimate from his birth and remains so in the absence of a statute which confers upon him the status of legitimacy A child born of a marriage ~ hich is valid in its inception but subsequently annulled is rendered illegitimate by the retro- acti%e operation of the judgment of annulment unless this iesult is avoided by statute The purpose of the bill submitted herewith is to legitimatize children whose parents have intermariied, notwithstanding the fact that such marriage may be ~oid or voidable, or has been judicially declared to be void or has been annulled; The common law has been modified by statute in a majority of states.. New York has~ enacted two statutes which purport to overcome the harshness of the common-law . rules-Domestic Relations Law, sections 24 and 145, but neither runs the full gamut of justice and fairness in iecognizing as legitimate the chilthen of a void or ~oidable marriage Section 24 legitimatizes children born out of wedlock whose parents in eimairy Such children become foi all purposes the legitim ite cliii dren of both parents and they enjoy the rights and privileges of legitimate childien The inadequacy of the statute stems horn the manner in which it has been construed. The courts have limited its application to a valid marriage of the parents. The child of parents whose marriage is void, or being voidable, is annulled, has been held not to conic within the statute. His status reverts to that of an illegitimate under common-law rules. (Matter of Moncrief, 235 N.Y.390, 27 A.L.R. 1117, 139 N.E. 530 (1923); People cx rd. Meredith v. Meredith, 272 App.Div. 79 (2d Dep't 1947) 69 N ~ S 2d 462 affirmed 2i7 N ~i 692 77 N E 2d 8 (1947), \[cCaiter v. McCarter, 227 N.Y.S.2d 608 (Sup.Ct.Sp. Term, Kings Co~ 1962)) Section 145 of the Domestic Relations Law governs the effect upon the legitimacy of children of a judgment declaring a marriage void or annulhin~ a ~oid ible nvirria~e Dep ndin.., upon the giounds foi such a declaration or annulment, the statute is self-operating to declare a child legitimate (subds. 1, 3), or the child is deemed legitimate unless the court by the judgment decides otherwise as to either or both parents (subd. 2), or the court by the ju(lgment may (ICCide that lie is the legiti- mate child of either or both of his parents (subd. 4). me inadequacy of the st'itute to piotect equall~ the ii,ht~ of ille~.,itiiiiate childien lies in its `iuthoiiration ci jud,~nient'~ ~s lii ii it I lc t i di~ci iinuiatoiy tic itinent of the children. The status of a child ct a marriage annulled for force, duress or fraud, or for any other grolin(l iiot iiientioned in section 145, is left to the dscret ion of the court. But the child of a marriage declared a nullity or annulled for certain other grounds is legitimate. The wrong- (Icing of the i `U eats is the cntei ion fot adjut1gin.~ the kh il st itlis of the child Another weakness of section 143 is that a strict construction of the statute, which is a part of' article 9 of the Domestic Relations Law, gov- erning actions to annul a marriage or declare it void, would result in its failure to benefit the children of marriages which are void under New York law but never judicially declared void. Nor does the statute confer legitimate status on the children of a marriage that is declared void or `innulled in another jurisdiction PAGENO="0102" 98 The trend toward alleviating the hardship suffered by an illegitimate child is shown by the recent inheritance statute under which he inherits from his mother and his maternal kindred, whether or not his mother has other children who are `egitimate, and from his father (but not his paternal kindred) if there is an order of filiation declaring paternity. (EPTL 4-1.2, eff. Mar. 1, 1966.) In 1958, the Legislature adopted the Uniform Support of Dependents Act (Domestic Relations Law art. 3-A), covering children whose parents marry regardless of the validity of the marriage. Rights-of inheritance an(l support having been taken care of, the Com- mission proposes to improve the status of illegitimate children. The Commission believes that the legitimacy of children should b.~i declared by statute in all cases where the parents have entered into a marriage in the manner authorized by the law of the place of the marriage, or into a common la~ marriage recognized as %alLd in the place ahese it i~, con summated, notwithstanding the fact that the marriage may be void or voidable. Such a statute would make unnecessary the provisions for a determination of legitimacy in an action to declare a marriage void or to annul a marriage. - The proposed statute is not intended to preclude a determination of illegitimacy in ~tn action for divorce. (Domestic Relations Law 175.) A bill on this subject was introduced in 1931 on the recommendation of the Commission. It was itot enacted into law.~ Applications To Compel Arbitration and To Stay Related Actions 1969 Leg Doe No hD(D) A lutro No a409 Where A and B have agreed to arbitrate all disputes arising from a contract, but, in violation of the agreement, A commences an action against B, CPLR 7503(a) allows B to move to compel arbitration. This casts upon B the affirmative duty to process the dispute through arbitra- * tion, an obligation which he may he unwilling or unable to assume. For example, it is not uncommon for arbitration agreements to contain their own short statute of limitations. If that period has expired, B obviously should not be compelled to arbitrate the controversy. Yet, an action is brought, CPLR 7503(a) would scent to require that B either * defend the action, ignoring the agreement that all disputes would be arbitrated, or compel arbitration, despite B's claim that the arbitration is untimely. What is clearly required is statutory authority for B to stay the ac- tion without simultaneously moving to compel arbitration. The Civil Practice Act, section 1451 sanctioned this practice, hut the revisems of the CPLR eliminated it in the belief that the more efficient procedure is for B to move to compel arbitration arid, if that isgranted, a stay of the action automatically results. This is the approach of the Uniform Arbitration Act, section 2(d). It appears to overlook the situations where B may legitimately be unwilling to arbitrate, and yet where lie still has the rightto reject litigation. It has been suggested that the sweeping provision of CPLR 2201 enabling a court to stay an action "in a proper case" leaves the law just where it was under the Civil Practice Act (Cf. Matter of Methodist Church of Babylon (Glen-Rich Constr. Corp.), 29 A.D.2d 773, 287 N.Y.S. 2d 728 (2d Dep't 1968)). While the Commission agrees with this result, it believes that all doubt should be dispelled by the restoration of an ` See Leg.Doc. (1953) No. 65(E); 1951 Report, Recommendations and Stud- mes of the Commission 133. PAGENO="0103" 99 ~press power to stay arbitrations. Accordingly, it recommends that the substance of Civil Practice Act, section 1451 b~ re-enacted as subdivision (b) of CPLR 7503. On a motion to compel arbitration under subdivision (a) of CPLR 7503, if a question arises as to whether the dispute is arbitrable or is barred by the statute of limitations, "it shall be tried forthwith ." In subdivisioir (b) [the motion to stay arbitration]? there is no corresponding provision for the trial of an issue "forthwith" even though the grounds for the stay are that the claim is not arbitrable or is barred by the statute of limitations. Since tue procedure should be the same for both ty~s of applications, as it wa~ under Civil Practice Act, sections 145Q and 1458(2), the Commission believes that this dis- crepancy should be corrected. PAGENO="0104" 100 McKINNEY'S SESSION LAWS OF NEW YORK, 1971-VOL. 2 THE LEGISLATURE - LEGISLATIVE REPORTS REPORT OF LAW REVISION COMMISSION * FOR 1971 1971 Leg.Doc. No. 65 Tlic text of the Law Revision Commission's 1911 Report and Recommendations follows: Januaiv 31, 1971 To f/ic Lcgislaturc of 1/ic *Statc of Nczc }ork: in (Oil Eorniitv with article 4-A of the Lc~ri,lative Law, we j)resint the annual report of the Law Revision Conituission for 1971. .101-EN W. MaeE)ONALI), Chiair;m,n \v ILLIAM El [GI LES M [LLI( LtN A1~TI-11JR ft SCHWARTZ JOHN ir. IEUGEIES, c.r officio EDWARD F. CRAWFORD, c.r officio Ei)WARD .1. SPENO, cx officio 1)OMINICK L. DiCARLO, cx officio JOhN H. HOLLANDS Executive Director. REPORT OF THE LAW REVISION COMMISSION FOR 1971 At the opening of the 1971 legislative session, Assemblyman 1)ominiek L. l)iCarlo, as Cliairrna ii of the Assemi)lv ( odes Committee. succeeding Assemblyman Prescott B. Huntington, becairre a member c.r officio of the Commission. As of December 31 1970, Emil Schlesinger retired from the Commis- SiOn~ having served as a member from 1940 until 1947 and continuously sjnc~ 1957. OiL December 31, 1970, Paul J. ~esawieh, Jr., was appointed a Justi; of the Supreme Court and thereupon resigned as a member of the Cotti- iiiiSsiOfl I. THE COMMISSION'S ORGANIZATION AND PROCEDURE The Law Revision Commission was created by charter 397 of the Laws ot 19:14, ~vhi(h enacted article 4-A of the Legislative Law. it consists ~t the chairmen of the Comnmnit tees on the .Tndjcjarv a id ott (`odes of the Senate and Assembly, as mnenibers cx officio, and five members appoint- (`1 by the Governor, each for a terni of five years. The atatntc provides that four members appointed by the Governor shall be attorneys and `Otliiselors at law, admitted to prmtice in the courts of this State, anti it lp:ist two of them shall he members of law faculties of universities or flW schools within the State. The Comniission is charged by statute with the thilowing duties: 1. To examine the common law and statutes of the state an(l cur- rent judicial (lCCiSiOiIs for the purpose of discovering defects and anachronisms ill the law and recommending needed reforms. 2. To receive and consider propose(l changes in the law reeotii- mended by the American Law Institute, the commissioners for the l)roniotion of uniformity of legislation in the United States, any bar association or other learned bodies. 3. To receive arid consider suggestions from judges, justices, pub- lic officials, lawyers and the public generally as to defects arid anachronisms in the law. PAGENO="0105" 101 4. To recommend, froni time to time, such changes in the law as it deems necessary to modify or eliminate antiquated and in- equitable rules of law, and to bring the law of this state, civil and criminal, into harmony with modern conditions. A number of studies undertaken by the Commission have been made at the direction of the Legislature. Studies have also been made in ic- spouse to requests by the Governor and by other officers of the St~tte government. Sonic studies have involved problems suggested by bar as- sociations and other organizations, and by public officers, judges, lawyers and laymen. In other instances, theCommission through its own exam- ination of statutes, case law and legal literature, has ascertained the need for new legislation or for the amendment of existing statutes. Each year the Commission reviews the problems that have been brought * to it~ attention and selects a number of them for study. In making its seleetion, the Commission considers whether the problem is such that a legal study is needed and whether there are questions involved on which the opinion of the Commission would be helpful to the Legislature. Pro- * posals relating solely or primarily to matters within the special fields of other departments and agencies of the government are referred to those bodies. Bills to carry out its recommendations are drafted by the Commission and their introduction in the Legislature is made or arranged by the e.r -officio members of the Commission. Copies of the formal recom- mendations of the Commission are placed on the desk of each member of t~e Legislature following the introduction of the bills. The cx officio rn'~mbers bring to the attention of the Commission questions relating to the bills which may arise during their consideration by the Legislature. During the legislative session the Commission distributes copies of its recommendations to bar associations throughout the State, to official and unofficial agencies concerned with legislation, and to all interested persons who request them. The research reports considered by the Commission in its study of topics on which reconunendations are made are not printed at the time the recommendations are presented to the Legislature. Copies, in the form in which they- were i,repamed for use by the Commission, are inatle available as unpublished and Uue(lited material to members of the Legis- lature who request them and, to the extent l~ermm1itte(1 by the limited number of copies. to members of bar association eoiiuimit tees who piepatre reports on the bills ieconmtentled by the Commission. While the bills are before the Legislature, the Commission seeks to inform itself of all criticisms of the bills and suggestions tm improving them, and this material is en relully considered. On sonic occasions the Commission has withdrawn a jerommendat ion for further st tidy in the light of objections; on others, it has recoiimniendtd ametielnient of its l)ills. To allow time for comment and consideration of criticism, actiofl on the Commission's bills has custommiarily been deterred by the Legis- lattice until after a public hearing on the bills held jointly by the Senate and Assembly Cozmimmiittees on the .ludiciary mind on Codes. it has been (UStoImma1~~ to huh this public hearing alter the middle ci February. II. PROCEEDINGS OP THE COMMISSION IN 1970 A. The 1970 Report The Commission presented its thirty-sixth annual report to the Legis- lature on January 31, 1970. (Leg.lioc. (1970) No. 65.) The Connnissioll did miot submit any recommendations during time 1970 legislative session in view of its continuing study of the proposed State Administrative Procedure Act, discussed below, and the interruption in its program PAGENO="0106" 102 necessitated by the change in its organization and location, ref elre(l to in the Commission's )97() Annual Report (p. 0) 1 and also discussed below. B.. Study on Administrative Procedure Directed By The Legislature The Law Revision Commission was directed by Concurrent Resolution of the Senate and Assembly to study the question whether legislation -. is advisable to provide general standards for hearing procedures and rule making of administrative agencies within the State and for judicial -. review, and to report to the Legislature its recrnnmendatioris, including * proposals embodying such legislation as it may recomniend. (1962 Senate Resolution No. 103.) On Match 15, 1963, the Commission pre-.- seated .to the Legislature a preliminary report of the progress of the study. (Leg.Doc. (1963) No. 65(A).) * Pursuant to a Concurrent Resolution adopted .January 13, 1964 (Senate Resolution No. 9), limiting the study to the administrative procedure of State agencies and eliminating any reference to the political subdivisions of the State, the Commission made a report and recommendations to the Legislature on March 31, 1965, accompanied by three proposed hills.; (Leg.Doc. (1065) No. 65(A); 1965 Report, Recoutmendatiosis and Studies of the Law Revision Commission 19.) The first was- for a State Admin- istrative Procedure Act which dealt comprehensively with all aspects of administrative procedure-ndoption of rules, rule making, judicial review of rules, adjudicatory procedures, licensing, public information, and representation-except the subject of judicial review of adnsinistra- tive determinations. The second proposal was for a State Administrative Rule-Making Procedure Act which was intended for legislative consid- eration in the event that the Legislature should decide to deal only with rule-making activities of State agencies. The third proposal was for a State Division of Administrative Procedure in the Executive Department under a director whose duties were to be somewhat analogous to those of an ombudsman. The 1965 bills ~ver~ not reported out of committee. They were re- ~uhmitted by the Commuission~in 1966, and again they were not reported. (Leg.Doc. (1966) No. 65(A); 1966 Report, Recommendations and Studie~ of the Commission 23.) The Commission decided not to resubmit the bills until it had studied further the question of which agencies, if any, should he exempted from the operation of the proposed State Administrative Procedure Act. The first of two phases of this study was begun itt 1967 and related to the exemption provisions of administrative procedure statutes of other states. F lie second phase, undertaken in 1968, consisted of an appraisail of the iflipact of the proposed administrative procedure act upon the existing rulo-niakirig and adjudicatory procedures of New York State departments and agencies. These departments and agencies cooperated with the Corn- TUISSiOII by providing, in answer to a questionnaire sent to theni, the limiormnation necessary for the appraisal. Through studies, public and legislative hearings, and the replies to its questionnaire, the Commission Caine to the conclusion that certain agencies should be exempt from the Proposed administrative procedure act. Accordingly, the bill ;suhmitted to the Legislature in 1969 contained a list of specific agency exemptions. The Commission also resubmitted to the 1969 Legislature its proposal br a State Division of Administrative Procedure in the Executive De- Pftrtment. The proposed Rule-Making Administrative Procedure Act W~g not resubmitted. McK.inney's Session Laws of New York, 1970, p. 2.810. PAGENO="0107" 103 The 1969 Senate bill to enact a State Administrative Procedure Act was reported and amended in the Senate on March 27 and advanced to third reading on April 15. (No. 4308-A.) The 1969 Assembly bill, as amended, passed the Assembly on April 24, was referred to the Senate Codes Committee, and was substituted for the Senate bill on April 25. (No. 6304-A.) On May 2,.the Senate reconsidered the substitution anti the Senate bill was recommitted to the Senate Codes Committee. The 1969 bill to create a Division ot Admini~tiative Procedure in the Executive Department was not reported out ot committee in eithei hon e (Senate No 4310, Assembly No 5858) After the close of the legislative session in 1969 the Commi ~,ion's bill on administrative procedure became the subject of study by the Subcom- mittee on Administrative Procedures of the Assembly Standing Corn mittee on Governmental Operations The Commission woiked on the proposed act with the Standing Committee and the Subcomnuttee On December 2,. 1969 a public~ hearing on the proposed st-itute i~ -is held it th~ Capitol'~by the Assembly~ Standing Committees on Governmental Operations and Judiciary and the Senate Judiciary Committee Following these hearings bills reflecting cei tam changes made by the Committees were introduced in the 1970 le,,isiative session which the Commission supported (S. 7141; A. 3930). An amended version, also supported by the Commission, passed the Assembly on Api-il 19, 1970 (A.~ 3930-B) and was referred to the Senate Finance Committee the same day. The bill was not reported by that Committee. The Senate etznpanion bill (S. 7141-B) was not reported out of the Senate Judiciary Committee. In the 1971 legislative session, bills have been filed both in the Senate (S. 1558) and the Assembly (A. 673). In his Annual Message to the Legislature, delivered January 6, 1971, the Governor said (p. 58) : 2 There is a clear need to provide the public with a systeni of administrative procedures that are both l~air and easy to fol- low. Such a system will greatly facilitate the dealings that the public must have with the igcncies ot the m~mt itt The Law Revision Commission recommended last year the adoption of general standards to govern administrative rule- making and adjudication as well as judicilil review of admin- istrative decisions. I ivill submit an Administrative Procedures Act this ~eai to provide these stand wis C Study of the Uniform Consumer Credit Code Early in the fiscal year, at the direction of the Governor, the Commis- sion undertook a study of the Unifoint Comrs;mniei Credit Code. This Code was approved July 30, 1968, by the National Conference of Coin- * missioners on Uniforni State Laws, which re(-OIllmneilded it for enactment in all states. On August 7, 1968, it was also approved by time house of Delegates of the American Bar Association. To date it has l)eea enacted in two states, Oklahoma and Utah. It may be noted that one of the specified duties of this Commission provided in Section 72 of the Legislative Law is " . . - To receive * and consider proposed changes in the law reconimended by - . - the commissioners for the promotion of uniformity of legislation in the United States, any bar association or other learned bodies." The Uniform Consumer Ci-edit Code is concerned with two main topics, credit sales to consumers and commercial loans connected with such sales. Its scope may be judged by the headings of some of its articles 2 ThIs volume p. 2598. PAGENO="0108" 104 and subarticics: maxinmni charges, disclosure and advertising. limit;t- tions on agreements and practices, regulated and supervised loans, con- sun~er credit insurance, limitations on creditors' remedies, debtors' remedies, administration. The sponsors' Official Text with Comments runs to 218 pages. In legal terms the proposed Code is a regulatory stat- -ute concerned with consumer credit, superimposed on the basic law pro- vided by the Uniform Commercial Code, which this Conunission studied in the years 1953 through 1956. Functionally the proposed Code is re- lated to the Federal "Truth in Lending Act" (Public Law 90-321; 82 * Stat. 146; 15 USCA ~ 1601 to 1665) and to such state statutes as the Retail Instalment Sales Act (Personal Property Law art. 10). D. Direct Actions Against Liability Insurers - In his opinion in Simpson z~.-Loehnzann, 21 N.Y.2d 305 U967), [287 N.Y.S.2d 633, 234 N.E.2d 669], Chief Judge Fuld stated (p. 312 [28r N.Y.S.2d 638, 234 N.E.2d 672]): * " . . . it would be both useful and desirable for the Law - Revision Commission and the Advisory Committee of the Judicial Conference, jointly or separately, to conduct studies in * depth and make recommendations with respect to the impact of in rem jurisdiction on not only litigants in personal injury cases and the insurance industry but also our citizenry generally In response to this suggestion the Commission and the Advisory Coin- mittee of the Judicial Conference undertook a joint study. After-sev-- eral meetings they reached agreement on a proposed statute, which will be introduced at the present legislative aession. E. Study of Class Actions Claiming Environmental Damage At the direction of the Governor, the Commission recently commenced a study of class actions in those cases in which present, past, or probable future damage to the environment is claimed. As directed by the Gov- ernor, this study is being conducted in cooperation with the Department of Environniental Conservation. F. Cooperation and Assistance of Public Officers, Associa- tions of the Bar and Other Groups The Commission has continued to receive the cooperation and as- sistance of public officers, associations of public officers, bar associa- tions and other groups which have an interest in State legislation. In particular, it resumed its valued consultations and meetings with the New York State Bar Association Committee to Cooperate with the Law Revision Commission. III. RECOMMENDATIONS PRESENTED IN 1971 Ia addition to the topics referred to in Part II above, the Commission will submit to the Legislature recommendations on seven subjects ac- companied by seven hills. (1) Inconsistency Between Estates, Powers and Trusts Law ~ 10-10.7 and 11-L1(b)(13) (Leg.Doc. [1971] No. 65[A]). Senate No. 4476. (2) Apportionment of Attorneys' Fees in Third-Party Actions under Workmen's Compensation Law ~ 29 and 227 (Leg.Doc. [1971] No. 65 [B]). Senate No. 4461. PAGENO="0109" 105 - ~(3) Rate of Interest on Judgments When Banking Board Changes * Usury Rate (Leg.Doc. [1971] No. 65 [C]). Senate No. 4460. (4) Piling of Notice of Cancellation with the Commissioner of Motor * Vehicles Upon CanceLlation of Insurance Policies for Non-Payment of Premiums (Leg.Doc. [197k] No. 65 [D]). Senate No. 4469. (5) Health and Dance Studio Contracts (Leg.Doc. [1971] No. 65 [E}). -_ . :. Senate No. 4468. (6) Unclaimed Court Punds Under Abandoned Property Law 600(1) (Leg.Doc. [1971] No. 65 [F]). (7) Conservators of the Property. of Persons Unable to Manage Their Affa~ (Leg.Doe...[1971] No.65 [G]). . . * - ~-* . . Senate No. 4465. ~. TflE COMMISSION IN TRANSITION In Part III of the Commission's 1970 Report it was pointed out that "the experience of recent years has pointed up the desirability of a closer liaison between the Commission and the legislative and executive branches of the government ;" that the Commission had "studied thorough- ly -. . . the feasibility of moving the headquarters of the Commis- sion from the Cornell Law School (where it has been located since 1934) to Albany, and a reorganization and expansion of its staff, enlarging r."t the basic jurisdiction of the Commission as fixed by statute, but the areas in which its functions may be performed;" and that the Commission had "concluded that this change of location would increase its availability for such expansion of its functions." An Albany office was opened July 1, 1970, at 488 Broadway. The Commission's accumulated files and library were moved from Ithaca to Albany. An Executive Director was hired, who in turn, under Commis- sion supervision, brought together a protessional staff. V. CALENDAR OP TOPICS FOR STUDY A. Work in Progress Studies on the following topics are in progress: (1) Uniform Consumer Credit Code (see Part II C above). (2) Class actions concerning the environment (with the Department of Environmental Conservation, see Part ii E above). (3) Amendment of Personal Property Law, Article 7-B, with i-c- spect to propeity found on resi(lential premises. (4) Erection of structures under mistaken assumption of fee own- ership. (5) CPLR 5203(a) ; judgment liens on cooperative apartments. B. Topics Continued on Calendar for Further Study On the following topics, studies have been made of part of the problems indicated, or of one or more 1u-oblin~s iela 1 ing to t he gciieral subject matter. Tue items are continued on the Commission's Calendar for tin- thet study of recommendations not enacted, or of mat teis on which no recommendation was made at the time ol a pietiOuS study, or j~ study of additional problems or new developments. (1) Review of the Consolidated Laws to determine and make recommendations for the repeal of any dead letter laws that may be found. (2) Constructive notice arising front recording under the real * property recording statutes; notice of trust fronm use ut word "trustee"; effect of recording of memorandum of lease as constructive notice of provisions of lease not set forth in PAGENO="0110" 106 menioranduni; effect of late rf~cor(ling; indexing met hods to give warning of covenants and easements a fecting other prop- erty; recording of memoranda of trusts of real propfrfv. (3) Procedure for correction of procedural and jurisdictional dr'- feets affecting titles; establishing marketability of titles m.- quired by adverse possession; procedure for clearing tax -.~ titles. (4) Short forms of conveyance. (5) Inconsistencies or conflicts in the Consolidated and Uncon- solidated Laws with the provisions of the ljniforni Commercial Code. (6) Scope and applicability of doctrine of eollatera estoppel. -(7) Federal courts: State legislation relating to abstention when points of local law mns~ be decided. - - - (8) Recording, extinguishment and modification of certain re- - * strictions on use of land (Real Property Law 345); modern- * izing conveyancing in New York by marketable title legisla- -- tion. S (9) Binding effect of preliminary offers to purchase real prop~.:~ ert.y; sufficiency of notice to buyer. S (10) The marketable title concept in Real Estate Law. * (II) ColificatiolL of the present tjnconsolidated Laws. . C. Proposals for Future Consideration S S The following topics represent proposals received by the Commission and placed on its Calendar as separate items hut not yet studied by the Commission: (1) Revision of the Condemnation Law. (2) Incompetency; authority of committee of incompetent tolease real property; effect of execution of lease before commence- went of term. (3) lncompetenc3'; provision by which person committed as an incompetent, or his relatives, could obtain specific particulars of diagnosis and prognosis and symptoms on which they are based. (4) Degree of mental capacity necessary for execution of a con- tract. (5) Formal errors and irregularities in statutes. (6) Workmen's Compensation Law, ~ 34, 26; public tiling of compensation awar(l; priority of interest of bonn fide pur- chaser of real property under conveyance recorded before pub- lie filing. (7) Right of privacy; Civil Rights Law, ~ 50, 51, application to use of name of deceased person; unauthorized publication of private letter. (8) Contract to obtain policy of life insurance, right of person who was to have been named beneficiary to damages for breach. (9) Conversion of intangibles. (10) Consent to cancellation of mechanics' liens to peimnit convey- aiice of real property. (11) Malicious prosecution; interference with person or property. as necessary element. S (12) Responsibility of unincorporated association for acts of its officers. (13) Uniform security requirements for various bank deposits. (14) Registration aTid enforcement of foreign judgments. (15) Creation of joint tenancies; abolition of the "four unities" requirement. - PAGENO="0111" 107 (16) Remedy to prevent premature publication of information about kidnapping. (17) Short statute of limitations for violation of building codes and zoning ordinances with ieference to trout and side yard restrictions. (18) Real Property Law, 311(2); authentication of notary's sig- nature on doc~jnients notarized outside the state; reiproeity between states. ~-`~erty Law, 223; liability for breach of covenants bhere' property or lease is transferred. ndlord and tenant; implied warranty of title in assign- ment of leasehold. ~1) State . Finance Law, 137; application to subcontractors of' subcontractors. - Real Property Actions and Proceedings Law 751; deletion `subdivision 4(e). `... ~stic Relations Law: adoption; whose consent is re- d. ` - . wu~asonable search in building inspections. Limitation on right of person presumed deceased to reclaim property upon. reappearance. (26) CPLR 2501; . undertakii~g vs. legal tender in relation to effect of bankruptcy laws. . ~. PAGENO="0112" los 1971 RECOMMENDATIONS OF THE COMMISSION Relating to the Elimination of an Inconsistency between Estates, Powers and Trusts Law ~ 10-10.7 and 11-1.1(b) (13) :-~ -: 1961 Leg.Doc. No. 65(A) S Intro No 4476 Estates, Powers and Trusts Law .10-10.1 provides, in part, that a. power--(other than a power of appointment) conferred upon three or :~iiio~fjdiicjarjes(~vhjch the definition in EPTL 11-1.1(~~)(3) confines to trustees and personal representatives) may be exercised by a majority of them. ~EPTL U-1.1(b)(13) provides, in part, that a power con- * ferreci upon-three or more trustees may be exercised by a niajoritv of them, but the section provides for majority action on the part of three or more personal representatives (that is, executors or administrators) - only in the single instance where a dispute arises among them with re- spect to the voting of shares of stock. Both sections are silent with respect to-powers which, under existing case law, one of two or more- personal representatives may exercise without the joinder of his corep- * resentatives. Statutes permitting the exercise of joint powers by a majority- of per- sonal representatives have existed in a number of other jurisdictions for-- over a century, have unifornily worked well and have expedited the ad- ministration of estates. The prompt resolution of differences among multiple personal representatives by majority action furthers the speedy and efficient administration of decedents' estates, and hence ma3ortv action by personal representatives is even more desirable than it is in the case of trustees. Moreover, there is lacking in the ease of the per- sonal representative the easy application to the courts for instructions to resolve disputes among them that exists in the case of trustees. The Commission believes that a majority of three or more personal representatives should be authorized to exercise joint powers. hence resolving the conflict in favor of the position reflected in the present language of EPTL 10-10.1. The Commission also believes that, in permitting one of two or more corepresentatives to continue to exercise those powers which case law has established he may exercise severally, prompt and efficient estate administration will be furthered, especially in the light of the largely (though not exclusively) ministerial character of those powers amid of prior experience in this State, which indicates that the technique has op- erated effectively. A statutory declaration to this effect will also avoid a possible interpretation that the proposed revision has abrogated the ease law in this area. Relating to the Apportionment of Attorneys' Pees Third-Party Actions under Workmen's Compensation Law ~ 29 and 227 - 1971 Leg.Doc. No. 65(B) S.Intro. No. 4461 * - When an employee is injured in the course of his employment he is commonly entitled to receive an award under the Workmen's Conipensa- hon Law even though the injury was caused by the uegligence of a third Party, that is, someone other than his employer or a fellow-employee. In Such cases the amount of the compensation award, which of course is paid by the employer or his insurance carriei~, may be less than cnn be PAGENO="0113" 109 ob~ined by an action in the courts against the negligent third party. Such an action can be maintained initially by the injured employee or, pursuant to statutory subrogation, by the person (the employer or his insurance carrier) who paid the employee's compensation award. The policy 01: New York law is to encourage third-party suits so that the ultimate burden will fall on the negligent party. Thus 29 of the * \\roi.kIilen~s Compeasatioa~Law first declares that the employee need not elect whether to take compensation or sue the third party in the ~~courts ~ may pursue both remedies. Moreover, ShOUld the employee `~not bring action within the prescribed time, the right to sue is given to the carrier.. The carrier is motivated to sue both by the promise of re- imbursement and by the possibility of a windfall recovery, hereinafter discussed.-. . Under 29 the employee may sue the third party within six months after he is - awarded compensation. Within 30 days after suit is begun he must notify the Compensation Board,. his employer and the latter's insurance carrier. - The carrier (including a self-insuring employer or the State Insurance Fund where appropriate) is given a lien on the pro- eeds of any recovery in the lawsuit to recompense it for the coinpensa- tion it has beeii and will be paying to the employee under the award and for certain related expenses. If the employee does not sue, and six months have elapsed, and the carrier has given the employee 30 days written notice, the right to sue becomes that of the carrier. The carrier then may sue for all damages obtainable, and if its recovery in the courts e~eeds the amount of its lien for past and future compensation pay- ments and related expenses, it may keep one-third of such excess in addi- tion to the amount of its lien, turning over the remaining "excess" to the injured employee. Thus the carrier has a lien for its own outlay, whoever brings the action, and if the carrier brings the action and se- cures a recovery, it receives its lien and, in addition, a windfall of one- third of the excess. The obvious purpose of this windfall is to give the carrier nit inducement to sue whenever the employee has failed to do so. * Attorney's fees, however, are a prior lien. Thus, attorneys' fees are first deducted front the third party recovery; then the carrier's lien is satisfied; and, finally, the excess (or two-thirds of it, depending on the initiator of the action) goes to the injured employee. rrwo results of this procedure call for a change in New York law. First, the carrier receives its lien without contributing to the cost of securing the recovery. Employees, encouraged to sue by the ~tructure of the act, obtain a recovery from which the carrier benefits and yet the carrier * ziced not shai'e in the costs. When the carrier sues, its attorneys' fees are paid in full and then it receives the amount of its lien. The employee receives the excess, if any, only after the lien of the cattier's attorneys' lees has been discharged. Thus, the carrier's attorneys' fees reduce the employee's excess recovery. Vet, when the employee sues, he normally hears the entire burden of attorneys' fees. Second, when the excess is uo(lest or non-existent, the employee, who has gone to the trouble and ex- pended the lime required to itiake the lawsuit a success, finds that utter his own lawyer's and the carrier's liens have been paid off, there is little or no net recovery left for him. It was his lawyer's efforts that brought about the recovery out of which the carrier's subrogation lien is being paid in full, and yet the curlier is not titaking any contribution toward the legal expenses. The Conimission believes that the present law is unfair to the employee and should be aniended to provide for some apportionment of his legal expenses. That others are of the same opinion may he inferred from the growing popularity of apportionment statutes. Among the states which apportion legal fees in third-party actions are Illinois, Indiana, Kansas, Maine, Maryland, Michigan, New Jersey, Pennsylvania, Virginia, 28-2380-74-8 PAGENO="0114" 110 and Washington. In certain other states. such as Aikansas, Oregon and Wisconsin, the problem is met, not by ;1pportionin~ thi h~ral expenses, but by guaranteeing the employee a percentage of the recovery after deduction of all legal expenses. Missouri and Florida provide for both the apportionment of fees ;tnd an equitable division ni the insurer's lien. Methods of apportionment vary from state to state. The trend, how- ever, seems to he away from rigid statutory formulas and in favor of a - - simple provision for equitable apportionment by the court which has the third-party action before it. Apart from any consideration of' treads, the Commission prefers the latter approach, since it is more practical ~--and flexible. The Commissioit's recommendations with respect to 2h) of the W.~rk-; men's Compensation r~~v are equally applicable to 227. Except-for 1: -~ the fact that the latter- section is concerned with disability benefits, the two sections are substantially identical. -. -: - - - Relating to the Rate of Interest on Judgments - -.. `-~ -: - 1971 Leg.Doc. No. 65(C) -: - S.lntro. No. 4460 - Civil Practice Law and 1~ules 5004 provides that interest on jmlg- merits "shall be at the legal mate, except where otherwise prescribed by statute." Prior to May 15, 1968, the "legal rate" was- deemed to he the usury rate, or the maxinnun rate for a loan or forbearance ol money, which was set at 6% per annum by 5-SOT of the General Ohligations Law. Effective May 15, 11)68, 5-501 of the General Obligations Law was amended to set the rate of interest on the loan or torhemirance of money at the rate prescribed by the Banking Board pursuant to 14-a of the Banking Law, or if no rate has been prescribe(1 by the Banking Board, the rate of 6% per annum. Also effective May 15, 1968, 14-a of the Banking Law gave the Banking Board the power to adjust the rate of interest for a loan or forbearance of money between a inte of not less than 51/a% nor moi'c than 71/2% per annum. Thereafter the Banking Board raised the rate to 714% effective July 1, 1968, and to 7% effective February 16, 1969. The above changes in the rate of interest for a loan or forbearance of money raise the question whether the rate of interest on judgment should also change, following the determinations of the Bankin~ Board. The At- torney General and one reported ease determined that the rate for ,~ndg- rnents should remain at the historical 6%, arguing that the changes in loan or forbearance rates did not apply to judgments. 1968 Op.Att'y Gen. 130; Kay Lc'zeis Enterprises v. Lczc'is-Marsliall, 59 Mise.2d 862, 296 N.Y.S.2d 834 (Sup.Ct., N.Y.Co. 1969). However, the majority of eases dealing with this question has cleterniined that the new rates set by the Banking Board for a loan or forbearance of motley should control the rate of interest for judgments. Rae him & Co. v. Tra-Mor, Inc., 33 A.D.2d 370, 308 N.Y.S.2d 153 (1st Dep't 1970); Gclco Builders v. Simp- son Factors Corp., 60 Misc.2d 492, 301 N.Y.2d 728 (Sup.Ct., N.Y.Co. 1969); von Enaelbreclzten v. Galvanoni & i"Jevv Bros.. Inc., 59 Mise.2d 721, 300 N.Y.S.2d 239 (Civ.Ct., N.Y.Co. 1969); Jamaica Savings Bank v. Giacoma~toaio. 59 Misc.2d 704, :300 N.Y.S.2d 218 (Snp.Ct.. Queens Co. 1969); Dime Savings Bank v. Carlo:zo, 58 Mise.2d 821, 296 N.Y.S.2d 805 (Sup.Ct., Suffolk Co. 1969). - Thus, there is a conflict in the interpretation of existing statutory law as to whether the rate of interest for judgments is 6% or time rate set by the Banking Board. The statutory language is not sufficiently clear to determine which view was intended or if the matter was considered by the 1968 legislature. PAGENO="0115" 111 What appears to be n~eded is a clear expression of legislative inten- tion. Either the judgment rate is to be 6% or it is to follow Banking Board determinations. The rate of interest on judgments should be set at 6% for the following reasons: 1. This has been the historical rate from 1879 until the present conflict arose. 2. The interest rate for a loan or forbearance is not logically or :`;?~. necessarily related to the rate for judgments. Different considera- tions of supply and demand, risk and overhead enter* into the rate for a loan or forbearance, which do not apply to judgments. 3. Eatering judgments with interest is an administrative act as- signed to the. clerk of the appropriate court. A fixed rate permits = this function to be accomplished efficiently and routinely without possible controversy over different rates for different -periods. 4. The- power- of the Banking Board to* set the rate for a loan or' forbearance will expire on September 1, 1971 pursuant to Banking -- .` Law ~ 14-a. Whether, and for how long, this power will be con- - -. tinned is no~ known presently. - Relating to the Filing of Notice of Cancellation with the Commissioner of Motor Vehicles Upon Cancellation of Insurance Policies for Non-Payment of Premiums . ` ` 1971 Leg.Doc. No. 65(D) - S.Intro. No. 4469 Cancellation of an automobile liability insurance policy for non-pay- ment of premium is governed by two statutory provisions: 31:1 of the Vehicle and Traffic Law and 576 of the Banking Law. Section 313 applies to cancellations by insurers in general and 576 applies to the narrower situation relating to cancellation by an insurer when a pi-emnun finance agency is involved. Both statutes require that a notice of ter~ minatioii (or cancellation) be filed by the insurel with I he eonuiiissioner of Motor Vehicles within 30 days following the effective date of tei- mination. It has been held in several decisions arising under 576 of the Banking Law that cancellation is ineffective without proper iiliui~ of a notice of caticellation with the ConunissiOner. Orisini v. Na1jon'z~iik' lint. Ins. Co., 35 A.D.2d 238, 315 ~.Y.S.2d 390 (~ld Dept 1970) Tlicothre v. Hartford Accidcnt & Jnd,.'nz. Co., 60 Mise.2d 991, 31)4 NX.S.2d 6~8 ~Sup.Ct.. Al- bany Co. 1969) ; Pitts v. Traz-t~1crs Ins. Co., 59 Misc.2d 14!, 2'J~ N.Y.S. 2d 209 (Sup.Ct., Erie Co. 1969). However, in C~SCS arisint~ under 313 of the Vehicle and Ti-attic Law it has been hi Id that iaziiellation is el- fective without fi1ii~g of a notice 01 termination with the Coiiiniie~ionei. Marry z'. .-lllstatt? ins. Co., 16 A.D.2t1 938 ~2d l)ep~t 1902) ; Kycr z'. Grim- cral Cas. Co., 14 A.D.2d 649 (3d Dept 191fl) ; Joiics ~-. .-lctna Ins. Co., 59 Misc.2d 698, 300 N.Y.S.2d 59 (Sup.Ct., Kings (`0. 1909). The effect of a failure to file a notice of termination with the Coin- missioner shot.ld be the same in both situations. A proper notice of cancellation to the Comuniissioner of' Motor Vehicles is an important part oi New York State's 5ystcni of comh)uIsory insurance. Upon being jnIornied that au insurance policy has been teintina toil, the Conintissioner of Motor Vehiels is obligated to i-evoke the registration certificate and collect the number plates of the vehicle so that it will not he operated while uninsured. r1~hiei.e!oI.(,, the result reached in thi~ casts construing 576 of the Banking Law, keeping the liability policy in ef- fect until proper notice has been given to the Conunissioner, is prefer- able. - PAGENO="0116" 112 A further unhi~rititv exi~ts urtauiin..~ to the hlinL' ui a tote" of fcr- mination with the Conit,ti~ioner. It involves the uterrela t iote~h i ~ of the Safety Responsibility \t enacted in ft~t) (Article 7 oF the Vehicle and TI'ah!i(' L~, ~ 330-368) and the Fi nan'ial Security Act enacted in 1956 (Article 6 of the Vchiele and Tin ffie law, ~ 31 0-3~1 ). Under 347. part oc' the older Safety f~esponsihility Act, no insurance - policy required as ptoo 1 o F financial responsibility can be te rot I natel "until at least 10 days a Fter a notice of cancellation or tertuituition" ~ha1l be filed in the office of the Comnti.ssioner. The filing requirement con- tained in 347 applies only to insurance policies required under the Safety Responsibility Act as proof of Financial responsiblitv. }Iowever. * the proof of financial responsibility piovi~ions of the Safety Responsihil- * itv -Act-were superseded by enactment of the Financial Security At whereby New York State adopted a system of compulsory insuralce. * Following adoption of the Financial Security Act, 346 was enai'tt'd and expressly states that prool ol linancial responsibility shall not he required after February 1, 1957. Therefore. the requirement of iii ng a notice nI tern inn tion under 347 is vitiate(l and rendered obsolete by 346. Recently, however, the * filing requirement under 347 has heeti interpreted as still heinz in * effect. Crainc v. Nc~i' 1-lam /`slairc Ins. Cu., 314 Y.Y.S.2d 237. 64 * Mise.2d 86 (Sup.Ct., Nassau Co. 1970). Section 347 should therefore be expressly repealed. flclat.ing to the Terms and Conditions of Contracts for Health and Dance S&udio Services 1971 Leg.Doc. =~o. 65(E) S.Intro. No. 4468 The General Business Law now regulates in a limited way contracts for health a rid dance stud in services where the considera t ion there for is iii excess of *500. Section 394-b, enacted in 1964 without mv general review of contracts of this type, covers only generally the duration of contracts, the mode of ~iayrrrent thereunder and a prohibition of as~ign- irient without consent. Se('tion 394-c was enacted in 1968 to ext ~nd the requirements of :194-b to franchised chain operations. The Pres- ent New York law (lees not require a written contract, lacks complete (lefinitions. and (loes not have provisions relating to waiver, terni of contract (except that it may not he measured by the life of any per- son), commencement of term, cancellation, pi'epty~ietit. execution ot promissory notes, death or disability of l)11tleS OF (hinlageS in the event of breach. The health an(l (lance stu(hio fields of business have been aTowing rap- idly in recent years throughout the t;iiited States al now involve ninny persons in New York State who contract for the development of their physical and social skills. California has a detailed statute which gives the parties precise guidance and applies to all such contracts in excess of $1,500. The Commission proposes an extensive amendment to 394-h of the General Business Law to provide more precise guidelines For parties emmtei'- ing into health and dance studio contracts in excess of $1,000 and to give maximum protection to the l)ul'chasem's of such services. It proposes clear definitions of the contract and of the parties, including therein distant franchise operators and persons for whom such services are purchased by another. Its proposal further limits such contracts to a term of two years, while preserving the present prohibition against contracts * based upon the life of a buyer. The proposed amendment mandates a written agreement, and further provides for overlapping contracts, pro- PAGENO="0117" 113 hibition against waiver and commencement of services within six months. The Commission also proposes that any such contract may be cancelled by either party upon proper notice within ten days of execution, that in- stallinent payments shall be carefully controlled and that as~igmunent of rights or delegation of duties shall be invalid. Other new proposals co~ained in the suggested amendment are pro- * tective provisions in the event of death or (usability of the buyer and ;treble damages to be awarded to the buyer in the event of a violation of ~-the statute-bytheseller. The buyer's right of action against the fran- -hisd operator, presently in 394-c of the General Business Law, is preser~ed..~-Finally,. the Conimission's proposal, in light of current ceo- -~`nomics; makes only contracts in excess of $1,000 subject to regulation, which figure is $500 higher than the existing statute, but $500 lower than the provision in the California statute Relating to Conservators of the Property of Persons Unable to Manage Their Affairs 1971 Leg Doe No 65(G) S.Intro No 4465 -: In recent years there has been giowing concern with the state of the law relating to persons who are unable to manage their own affairs ei her because of advanced years, mental weakness or physical infirmity, but. who are not technically "incompetent." The present New York law relates to the jurisdiction of. the Supreme Court and the County Courts outside the City of New York over the custody of a person and his property who is "incompetent" to manage his uflrtirs by reason of age, drunkenness, mental illness or other cause, or who is a patient who is committed or adimutted to an institution in the Department' of Mental Hygiene or to an institution for the mentally ill or mental detectives in the Department of Correction. (Mental Hygiene Law 100.) There remains, however, the problem of preserving the property of persons who are unable to ni4nage their own altairs either because of debilitating factors which create a condition falling sitrt nt izwwnpe- tency, or if actual incompetency exists, there is *a disi tel ination to mit i- ate a proceeding to declare such izicomnpeteney because of' the stigma attached thereto. `l'lie Commission has studied this pm'o~lt'mt amid the bill proposed herewith is designed to meet it. As of January 1, 1970 "con- servatorsliip" laws had been enacted in sonic twenty-live states and the District of Columbia. These statutes authorize the appointment of a conservator to protect the interests ol~ such liem~on~. The substance of the proposeil bill is embodied in the [nif'orm Pro- bate Code (Article 5, Part 4) which was promulgated hv the Confer- ence of (`ommnis~ioners on Ltniforni State Laws and approved 1w the American Bar Association. A Special Committee to Study Conimnitnient Procedures, established in 1960 by the Association of the Bat' ni the City 01' Ne~v \oi'k, coat- niented favorably on coimservatorship laws. (Mental illness and Due Process (1962j.) The bill proposed by the Commission would enact a new article 5-C of the Mental Hygiene Law, to be entitled "Conservntoi's." The up- 3 California. Colorado, Connecticut,' Rhode Island, Tennessee. Vermont, Delaware, Illinois, Iowa, Kansas, Virginia, Wisconsin, Wyoming. Kentucky, Maine, Maryland, Massa- About half of the statutes confer a chusetts, Michigan, Minnesota. Mis- jurisdiction over both person and sissippi, Nebraska. New Hampshire. property and the other half are 1mm- Oklahoma, Oregon, Pennsylvania, ited to property only. PAGENO="0118" 114 1)OintIlICILt of U (OIP~(!tV~1tO1 n iIad( (1eI)1mlent upon a showing, to the satisfaction of the (`ourt, Ot U need therPlOr rat her than upon a judicial (leehtration of inconipetenre. In this rcspe(t, the proposed bill Follows - the California statute. (Prob. C.A.1 1751) - - ~ The - proposed remedy is lintited to the propsrtv of a conservatee ttrd - has no effect upon his person. It app1 ks to (I) a resident who has not been judicially declared incompetent anil who, because of advanced age, illness, infirmity, mental weakness, intenilmerance, addiction to drugs, 01 othet cause, has suffered substantial imnpainuemit of hi5 ability to care for his property, oi has become unable to provnle for himself or others --- dependent upon him for support, and (2) a nonresident I or whom a eon- ~:servatol. of his property, by whatever name designated, has been. aim- pointed pursuant to the laws of his residence. 11 the co~mservatee is a patient in a hospital, the director of the institutiomi as well mis the mental health in formation service shall have the right to be heard in all phases of the proceedings. (~ 316.) S -` It provides that the pr0pO~e(l conservatee, or am'.y relative or friend, - - or- if the propose(l conservatce is a patient in a hospital, the officer in * charge thereof, may commence a special proceeding toi' the appointment - * of a conservator. It states requirements for the contents of the petition, and it gives the proposed conservatee the right to nominate his conserva- tor. If the court finds that the appointment of such nominee will serve the best interests of time proposed conservalce, it shall appoint the person so nominated. (~ 116-a.) - Cunservatorship statutes do not usually provide for a jury trial of is- sues. The Illinois and Iowa statutes mire among the exceptions. The California statute has no ~ucii proVision. hut it has been held that a person who is the subject ol' a conservat~rshiii proeee.ling is entitled, up- on demand, to a jury trial of issues raised by the petition and by his objections Filed in oppo~ition thereto. (Lcfcanc z'. Vu/'crior Court. 218 Cal.App.2d 696, 32 Cal.Rptr. 390 (1963).) The Commission believes that it' an issue of fact as to time need for the appointment of a conserva- toi' is raise(l. and i f~ there is a demand for a jury trial, by any person who is a party to the proceeding, such a trial should be ordered. ( 116-c.) Comparably, in a proceeding to terminate the conservatorship on time ground that the conscrvatee is able to manage his affairs, on demand of' any party to the proceeding for a jui'y trial, such a trial shall shall he ordered. ( 116-q.) The Coronmission believes that such limo- visions are adequate to protect time rights of time person who is time sill)- ject of these proceedings. The bill provides that the court may appoint a guardian ad liteni to represent the interests of' the proposed conservatee at any time prior to the appoimitniemit of a conservator, 01' to represent hint whenever neces- sary after such appoimitmmteut is made. (~ 116-d.) It further provides that time conservator shall have control of the property of time comiservatee, both real and persommal. and with respect to such property lie shall have all of the powers and duties granted to amid imposed upon a comnmnittee of an incompetent, and such additional pow- ers as the court deems propel'. Such powers may he withdrawn or lim- ited by the court at any time. (~ 116-i.) The comnpensatiomi of a con- servator shall be the same as that of a commnittee. (~ 116-mu.) The bill provides for the removal, discharge and resignation of a conservator, the suspemisiomi of his powers, and the filling of a vacancy in his office. (~ 116-p to 116-t.) Under the proposed bill, the conservator has a duty, to the extent that the miet estate is available for such purpose. lo provide for the mainte- nance and support of the conservatce, and then for the support of' per- Sons legally depemident upon time comiservatee, and the conservator may provide, with court approval, for the maintenance and support of other PAGENO="0119" 115 persons who had been receiving maintenance and support payments from the conservatee prior to the appointment of the conservator. (~ 116-j.) Upon authorization by the court, the conservator may provide a reason- able allowance for the personal use of the conservatee in such sum as the court may deem proper, and the conservator is under no duty to ac- count for such moneys. (U16-k.) Under the Commission's proposal, the civil rights of the conservatee shall not~be atfected by the appointment of a con~ei~atoi noi shall such appointment be e~idenee of the competency oi incompetency ot the con seivatee- Title to his property shall iernain in han, subject to the po~ session of the eonseivator and the contiol of the couxt fox the pulposes of its admimstration, sale or disposition Unless the eoui t ox ders other wise, contiacts convey anees and dispositions of piopei ty made by the conseivatee shall be voidable at the option of the consex~atoi except with respect-to his peisonal allo~anee, but the conseiv'ttee s pouei to dispose of his property by 11111 is not limited if he possesses the iequisite testa iuentary capacity (~ 116-I) Proeeduial piovisions of the remedy are patterned on the piovisions ot aiticle 5-A of the Mental Hygiene Law goveinuig the appointment of a committee of an incompetent and the administration of the incompe- tent s estate These provisions relate to venue (~ 116-b) notice of pe tition (~ 116-c), notice of pendeney (~ 116-c), seeuiity to be gi~en by the conseivator (~ 116-f), the appointment of a foxeign conseivatoi (~ 116-g), the designation of the clerk of the court to receive process (~ 116-h), and inventories and accountings by the conservator (~ 116-n, 116-o) No repeal or modification of the provisions of article 5-A of the Men- tal Hygiene Law is made. The Commission believes that the remedy has been adequately tested in other states, and that it can be advantageously used in New York. It further believes that satisfactory and constitutional protections are afforded to the person who is the subject of the proceeding. The Comniissioii conferred with the Counsel to the l)epartment of Mental Hygiene and with representatives of the Special Committee to Studs' Commitment Procedures of the Association o the Bar of the City of New Yoik in drafting the proposed bill. lit 1966 ~, 1967 and 1968 6 the Commission, submitted recoinmenda- tions to the Legislature on this subject. The 1966 bill was amended at the request of the Comnimiission to incorporate certain of the suggestions of the ~1)eeial Committee of the City Bar Association. (1966 Assembly Pi~ No. 6986.) The 1961 bill was identical with the 1966 Asseml)ly bill as so amended. The 1968 bill was l'nrther muodiIie(l to imicorpos-ate changes suggested by Counsel to the I)epaitmnent of _\kmital Hygiene. rrl~ bill subummit ted herewith is identical to the 196$ bill as so anituided. 4 Leg.Doc. (1966) No. 65(G); 1966 of the bill are included in the 1967 Senate lnt.No.2466, Pr.No.2545; As- iteport, Recommenlations and Stud- seuihly lnt.No.2165, Pr.Nos.2206. 6210. ies of the Law Revision Commission CiSC. Such Legislative Document at p. 209. and the legislative history of the bill 6 Leg Doc. (1968) No. 65(G)~ 1968 are includea in the 1966 Report~Rec- . - - . Senate No. s029; Assembly No. 3t16. ommenclatuons and Studies of the - - - . - Such Legislative Document and the Law Revision Commission at p. 261. legislative history of the bill are In- Leg.Doc. (1967) No. 65(G); 1967 cluded in the 1968 Report. Reconi- Senate No. 3565; Assembly Int.Xo. unendations and Studies of the Law 2034. Pr.No.2036. Such Legislative Revision Conxunission at p. -. Document and the legislative history PAGENO="0120" 116 McKINNEY'S SESSION LAWS OF NEW YORK, 1972-VOL. 2 THE LEGISLATURE - LEGISLATIVE REPORTS REPORT OF LAW REVISION COMMISSION FOR 1972 1972 Leg.Doc. No. 65 The text of f/ic La ~` Re won Comnu~s:on s 197! Rcporf tim! Recom;nendatwns fol'oz~s January 31, 1972 To the Le~qi.sla1ure of f/ic State of New York: In conformity with article 4-A of the Legislative Law, we present the annual report of the Law Revision Commission for 1972. JOHN \% \EacDO\AI D Chairman ARTHLR H SCHWARTZ FDWARD I FPEEMAN JOHN H HLGHES er offztw DD\VARD F CRA%~IFORD cx officio * ~* .* DALWIN J. NILES, ex officio DOMINICK L. D1CARLO, Cx officio JOHN H. HOLLANDS Executive Director REPORT OF THE LAW REVISION COMMISSION FOR 1972 The Commission records with sorrow the death on February 17, 1971 of Senator Edward J. Speno who, as Chairman of the Senate Codes Coat- atittee, was an ex officio member of the Commission. He was sue- (Ceded on April 22, 1971 by Senator Dalwin J. Niles. On Jnly 20, 1971 Williams Hughes Mulligan became a Circuit .Judge of the United States Court of Appeals and accordingly resigned from the Connnjssjon. On August 20, 1971 Edward J. Freeman, a member of the White Plains bar* and of the faculty of Fordham University School of Law, became a member of the Commission by appointment of the Governor. I. THE COMMISSION'S ORGANIZATION AND PROCEDURE The Law ilevision Commission was created by Chapter 597 of tht: Laws of 1934, which enacted articl.e 4-A of the Legislative Law. It con- ~ists of the chairmen of the Committees on the Judiciary and on Codes O~ the Senate and Assembly, as members cx officio, and five members i~)pointed by the Governor, each for a term of five years. The statute liovides that four members appointed by the Governor shall be attorneys and counselors at law, admitted to practice in the courts of this State, and at least. two of theni shall he members of law faculties of universities or law schools within the State. The Commission is charged by statute with the following duties: 1. To examine the common law and statutes of the state and current judicial decisions for the purpose of discovering tlefrcts and anachronisms in time law and recommending needed reforms. 2. To receive and consider proposed changes in the law recom- mended by the American Law Institute, the commissioners for the promotion of uniformity of legislation in the United States, any bar association or other learned bodies. 3. To receive and consider suggestions fronk julges, lttstiiPs, public officials, lawyers and the public generally as to detects and anachronisms in the law. PAGENO="0121" 117 . ~: * To reconunend, from time to time, such changes in the law as it deems necessary to modify or eliminate antiquated and in- equitable rules of law, and to bring the law of this state, civil and eriniuial, into harmony with modern conditions. \. numnbem of studies undeitaken by the Commi sion hi'~e ben nvm(l( at the direction of the I~gislature: Studies have also been made in ie~ponse to mequests by the &o%elnom md b~ othi otticems of th ~t ite go~einmnent `~onte studies hate mn'~ol~ed piobluns su.,gested by him issOti itions and othei orgamu/itmon ~rmd by public otucets jud,,t lawyers and laymen. In other instances, the Commission through its own examnhmation of statutes, case law and legal literature, has ascertained the need tot nev~ legislation ot oi the amendment of eMstln,., statute~~ Each ~,eai th Commission ieviev~s the irobiemns that hate been biou,ht to its ittention and se~eets a nunibes of theni foi studs In making it~ selection the Commission eonsiders whether the pioblem is such tint a legal study is needed and whether there arc questions involved on which the opinion of the Commission would be helpful to the Legislature. Proposils melating solely or primauly to matters within the speual field of other departments and agencies of the government are referred to those bodies Bills to carry out its recommendations are drafted by the Commission and their introduction in the Legislature is commonly arranged by the cx officio members of the Commission. Copies of the formal reconmnlen- dations of the Commission are placed on the desk of each member of the Legislature following the introduction of the bills. The cx officio mnem- bets bimg to the attention of the Commission questions melating to the bills which, may aimse duung themi consmdeiatton by the Legtshtmne During the legislative session the Commission distributes copies of its recomnnmendations to bar associations throughout the State, to official amid unofficial agencies concerned with legislation, and to all interested pelsons who iequest them While the bills ame helome tlmt. I egisl ituit the Commission seeks to inform itself of all criticisms of the hills amid suggestions for improving thenm, and this material is carefully eomm- sidticd On some ou ~tsIon~ the Comunu smomi h is w ithdm iw a a meonm mmiemidatmon tom fuithei study mm the li,lmt ol objet tiomis Ii othiti it his mccomnmnended mnteiidmmment ot ifs bill Time ie catch mpomts commsidemetl b~ the Conimissiomi iii mis study of topics on which recommmmnendations are made are not printed at tIme time. tlmi 1 ecommmmmmendat ions am e pm esi mited to thc I egmslmtum e ( opme~ in time bun iii w imulm thc\ were pm ep ned tom use b~ time onmnit toil uc iii ide available as umipimblished amid umiedited mimaterial to mnemimbers of the Lo~,isl~mtumc w ho m cijuest themmm `mud to the e~tc mit pci mmimtttd b~ the lmnmmtul number of copies, to mmmemnbers ci bar association eommmmumittees who prepare reports on time bills reeomnumemmded by time Comnmmtission. Fm olmi its ci e thou until Jul~ 1 197(1 tht Commmmimm momi opt i ned out ci tom nell I iii Sc hod it Ith it i On tIme 1 ml tom d m h its ha mdqu ii tem i em m mo~ ed to ii) ifl\ V Iti its pie omit ci i C 1 lO( lt( d it 4~,1, limo mdw t~ II PROCEEDINGS OP THE COMMISSION IN 1971 A Report and Recommendations Thmi Comimmummssmomi pie outed it timiit~ so~ entim mmmmmual iepomt to the I e,,mslatume on T'mmmuar~ ~1 1971 (Leg Doe (1971) \o b~) 1)uuiL, tin coumse of the 1971 legislatm~ sessiomi st~ mecomunmend itmous weie sub mnmtted w itim sm's. bills di dli ii b~ th Comnmmmm~smomm to iii Ike time iecomm mimcimded hmn..s ma time I in [he bills immtm oduc id cmi tia i cto,imumt muLitioum of time Coummmmmm mmcmi iii 1911 tie lustid iii Put I\ of time Repoit emmtitlcd Lu,m-l'itm~ e Hr-tom `~ of tht. (ormmmmmm stomi s I eeommmnu mmd mtioums ~`mimbmmutt'ml iii 1971 PAGENO="0122" 118 B. Study of the Uniform Consumer Credit Code Farly in the tisc'tl ~e ir 197t)-71 it the In c~ tion of thi (jo~etnoI th ;:Contniission undertook a study of the Uniform Consumer Credit (`ode. * This Code was approved July 30. 1968 by the Xational Conference of Commissioners on Uniform State Laws, which recouimeudel it For enact- ment in all states. On August 7, 1968, it was also approved by the House of Delegates of the American Bar Association. To (late it has been enacted in six states. * It may be noted that one of the specified (unties of this Commission provided in Section 72 of thc 1 glslatt%e I au i To iecet~e and. consider proposed changes in the law recommended h the commissioners for the prouiotion of uniformity of legidation in the United States, any bar association or other learned bodies." The Uniform Consumer Credit Code is concerned with two main topics, credit sales to consumers and commercial loans connected with such sales. Its scope iiiay be judged by the headings of sonic of its articles and subarticles: maximum charges, disclosure and advertising, limitations on agreements and practices, regulated and supervised loans, consumer credit insurance, limitations on cre(h tors' remedies, (lel)tors' remedies, administration. The sponsors' Official Text with Comments runs to 218 pages. In legal terms the proposed Code is a regulatory statute concerned with consumer credit, superimposed on the basic law provided by the Uniform Commercial Code, which this Commission studied in the years 1953 through 1956. Functionally the proposed Code is related to the Federal "Truth in Lending Act" (Public Law 9f}-321; 82 Stat. 146; 15 USCA ~ 1601-1665) and to such state statutes as the Retail Instalment Sales Act (Personal Property Law art. 10). The Commission's study of the proposed Code has included legal analysis of the effect of the Code on existing law, both statutory and decisional, and the collection, analysis and appraisal of the views of lawyers, businessmen, consumer representatives, both public and private, and other interested groups. The experience th.e Commission gained in its study of the Uniform Commercial Code has been utilized, though with variations appropriate to the differences in subject matter. T~ assist the Commission in its legal analysis, it has employed eight legal consultants (as compared with eighteen in its study of the Uniform Commercial Code) and an economic consultant. its fact-finding activities have included statistical and sociological research centered iii its economic consultant. These research activities are being supplemented by public hearings * held in New York City on January 12 and 13. 1972 and scheduled to be held in Buffalo, Rochester, Syracuse and Albany on February 1, 2, S and 9, 1972, respectively. These hearings are confined to con!nients and criticisms directed to the Official Text of the Uniform Consumer Credit Code. Whether the Commission's own conclusions and reeonnmnentlations concerning this Code, once formulated, will be made the subject of later public hearings-the procedure followed in 1936 with respect to the Uniform Commercial Code-will depend on the nature an(l scope of such conclusions and recommendations. It is not anticipate(l ~hat a bill or bills on this subject will be introduced pitor to the 1973 Legisl'iti~e Session C. Study on Administrative Procedure The Law B evision Commission was (lireCted by Comneui'ren t I esol u tjon of the Scnat.e and Assembly to study the question whether len.rislatiom, is advisable to I)Iosi(le general standards for hearing procedures :111(1 rule-making of administrative agencies within the State and for judicial PAGENO="0123" 119 * review, and to report to the Legislature its recommendations, including proposals embodying such legislation as it may recommend (1962 Senate Resolution No. 103). On March 15, 1963, the Commission Presented to the Legislature a preliminary report of the progress of the study. (Leg.Doc. (1963~ No. 65(A)). Further reports~ and recommendations, accompanied by sills, were made in 1966 and 1969 (Leg.Doc. (1966) No. 65(A); Leg.Doc. (1969) No 6a( ~j) One bill pan~ed the Assembly in 1969 ~\tter the close of the Legislative Session iii 19b9 the Commission ~ bill on administrative procedure~ became the subject of study by. the Subcommittee on Administrative Procedures of the Assembly Standing Committee on Governmental Operations. The Commission worked on the proposed act with the Standing Committee and the Subcommittee. On December 2, 1969 a public hearing on the proposed statute was held at the Capitol by the Assembly Standing Committees on Go%elnment il Operations and on the Judiciai3 and the Senate Judiciaiy Committee Following these hearings bills reflecting certain changes made by the Committees were introduced in the 1970 Legislative Session, which the Commission supported (S. 7141; A. 3930). An amended version, also supported by the Commission, passed the Assembly on April 19, 1970 (~ 3930.-B) For details of the legislative history summarized above, reference is made to the Commission's Annual Reports for 1965, 1966, 1969, 197~ nd 1971 In the 1971 Legislative Session, bills were filed both in the Senate (S. 1558) and in the Assembly (A. 673). The Commission supported these bills. An amended version of the Senate Bill (S. 1558-A) passed both Houses, but on July 6, 171 was vetoed by the Governor. The Veto Message (No. 303) read in part as follows: .* * * * * . . * * * . This important and complex piece of legislation is derived from the work and recommendations of the Law Iliwision Commission. The Commission and the legislative committees, which studied and sharpened this prcposal, should be commended tom their iffoi ts As in any measure of this magnitude, however, often major problems are overlooked or ilill)rope?ilV dealt with the ii ist time thiough Ibis i p~u tinil irl, ti tie ii hitmi di tlin~~ it ith ~in o i tion is mnple~ md clii et s i~ ~t itt. goi ci miit mit `I his measure is no exeel)tion. Aeeoitlimiglv, it iiiust be (lisapprovc(l in its present fonu. WThat is iniportaitt, however, is that the Legislatures approval c t this IOC (Sill ( h~is iSsi ltd ill nIt mit It) iIl~ its pi ohl~iiis antI bringing theum clearly into lotus, so that l~)pioj)riate steps ritay be taken to resolve t hunt. I have asked mv Counsel to study thi Inc iso mc imid to pies mit li ,isl it mon tom ( U Ii miiti oduetiomi lit. \t C SlOim i 1(1(11 ii ij pm 0's d ii titilti Ill 01 mdi i ~,t ttt ~ littizi i,tm ati's c Pt ocedi u ~( t 11 et ti's c ~o ptc IIL1)t i 1 1072 the s mome tune th it this ma i ut. ii wild hue t ikemi fleet D Direct Actions Against Liability Insurers In his opinion in Simpson v. Loclmnwnn, 21 N.Y.2d 305 (1967) [287 N.Y.S.2d 633, 234 N.E.2d 669], ChieF fudge Fuld statel (p. 312. [281 \ \ S2d 618 214 \fl 2d 672]) it would be both useful arid desirable for the Law Revision Conmmissiomi and the Advisory Committee of the Ju- dicial Conference, jointly or separately, to conduct SttI(hiCS iii depth amid in iki. i e.ommneuml it ions m's ithm me poet to tin immipiat oi PAGENO="0124" 120 in rem jurisdiction on uot only litigants in personal injury cases and the insurance industry but also our citizens generally In response to this suggestion, the Cont,nission and the Advisory Committee of' the Judicial Conference undertook a joint study. After several meetings they reached agreement on a proposed statute, which was introduced in one House in the 1971 Legislative Session (A. 3626). Introduction in both Houses at th.e present Legislative Session is con- templated. E Study of Civil Actions Relating to the Environment At the direction of the Governor, the CommiSsion late in the calendar. year 1970 eonuuenced a study of the advisability of encouraging civil actions, including class actions, in eases in which present. past or probable future damage to the environment is claimed. As directed by the Gov- ernor, this study was conducted in cooperation with the Department of Environmental Conservation. The study was completed anti a report made to the Governor's Office in May of 1971. P Study of the Age of Majority On July 5, 1971 Amendment XXVI to the LTiiiteti States Constitution became effective, reducing the voting age from 21 to IS for the purpose of State as well as Federal elections. The New York Legislature had ratified the Amendment on June 2, 1971. Adjustments that might be necessary in the New York Election I.n~ were promptly taken under coasideration by the .Joint Legislative Committee on the Election Law and Related Statutes, which had been created on March 31, 1971 pursuant to Assembly Resolution No. 112. The ratification of Amendment XXVI also raised immany questions of * State law having nothing to do with the Election Law, being concerned rather with the general advisability of similarly reducing front 21 to 18 the age at which legal "infancy" terminates anti the young man or wonman reaches his or her "majority". A general change in the age of majority would in turn present the question of amending statutes which do r:nt speak in terms of majority and minority, or infancy and adulthood, but give a numerical age of 21 or less as the point at which certain legal i elationships ch'tnge In December of 1971, after conferences between the staffs of the Senate anti Assembly leadership and of the Commission, it was agreed that the Commission should undertake a review of the Consolidated and Unconsolidated Laws to determine: (1) what statutes should be promptly amended in response to Amendment XXVI, (2) what statutes should be let stand as they are, and (3) what statutes should be exhaustively studied by the Commission or be referred to special or standing com- - mittees of the Legislature or to specialized executive agencies as a basis for recommendations to the two Houses. Two printouts by the computer at the Office of General Services showed that sonic 2,200 sections of the Consolidated and Unconsolidated Laws contain words or phrases possibly bearing on the problems assigned. Preliminary analysis of the sections thus identified indicates the proba- bility that between 100 anti 150 provisions at a minimum should be considered for amendment, while an even larger group requires more detailed research and analysis before sound policy recommendations can be made. Not all of this work can be completed during the present Legis- lative Session, but recommendations can probably ho made with respect to those sections of the law which have the broadest impact and the amendment of which is most obviously entitled to prompt consideration. PAGENO="0125" 121 G. Cooperation and Assistance of Public Officers, Associations of the Bar and Other Groups The Commission has continued to receive the cooperation and assistance of public officers, associaTions of public officers, bar associations antI other groups which have an interest in State legislation. On Deeemhe1. 18, 1971and January 29,1972, it held joint meetings with the New York * State Bar Association's Committee to Cooperate with the Law l~evisioj Commission III RECOMMENDATIONS PRESENTED IN 1972 In addition to the piojeets ieteried to in Part II abo%e (ahicir `~ * indicated in Section F oI Part II may involve as many as one humht'l * bills), the Commission is submitting to the Legislature at its current Ses- sion recoinment1ation~ on twehe subjects accompanied b3 sixteen bill (1) Liability of Housing Merchants for Personal Injuries and Breach of Warranty (Leg.Doe. [1972] No. 65 [A]). Senate No 7603 (2) Apportionment of Attorneys' Fees in Third-Party Actions under Workmen's Compensation Law ~ 29 and 227 (Leg.Doc. [1972] No. t~ [Bj) Senate No 7619 &-~semhly No 5749 (3) Rate of Interest on Judgments When Banking Board Changes Usury Rate (Leg.Doe. [1972] No. 65 [C]). `~en'tte No 4460, Assembl~ \o 10477 (4) Finder's Rights Where Lost Property is Found on Residential Premises (h,.,Do [1972] `.. 6~ [D]) Senate No. 7618; Assembly No. 9235. (5) Health and Dance Studio Contracts (Leg.i)oc. [1972] No. 65 [E]). `~CIi'1t( No 7621 ~s~embl~ \o `~,fl (6) Manner of Service of Written Notice Under State Finance Law 137 (Leg Doe [1972] No 6 [I ]) Senate No 7702 \~s embly No (7) Filing of Notice of Cancellation with the Commissioner of Motor Vehicles Upon Cancellation ofIn.surance Policies (Lcc~.Doe. [1972] No. Ui 1(flj. Striate Nos. 8364, 8566; Assembly Nos. 9562, 9363 (8) Inconsistency Between Estates, Powers and Trusts Law ~ 10-10.7 and 11-1.(b) (13) (Leg.Doe. [1972] No. 63 [H]). .`ienato No. 7925; Assembly No. 5920-B. (9) Bank Accounts in Trust Form ("Totten Trusts") (Leg.Doe. [i972~ No. 63 [1]). senate No.. 8651; Assembly No. 9328 (10) Technical Amendments of Estates, Powers and Trusts Law (Leg. * Doe. [1972] No. 65 [J]). PAGENO="0126" 122 Senate No. 8924, 8923, 8923, 9028; As~emhly No. 10276, 10273, 10277. 10274 (11) Effect of General Release without Peservation Given to One Joint Tort feasor (Leg Doe [1972] `No b 1K]) `~enate `No 89)0 A embis `No 10822 (12) Conservators of the Property of Persons Unable to Manage Their Affairs (Le.. Doe [1972] `No bo [L]) IV LEGISLATIVE HISTORY OP THE COMMISSION S RECOMMENDATIONS SUBMITTED IN 1971 Sic bill, wei. intioduced in the I e,u,latnit. in 1971 on the tetommnd i tion of the Commission. None became law. (1) Inconsistency Bet~i'cc;i Estates, Poz~'crs and Trusts Lo~. .~ 10.- 10.7 and 11-1.1(b) (13).. A recommendation of the Commission on this subject and the study submitted therewith were published in Leg.Doe. (1911) No. 65(A) and will be included in the 1971 Report, Recommendations and Studies of the Law Revision Commission. The bill introduced on the. recommencla- tion of the Commission was (1971) Senate No. 4476, Assembly No. 5920. The Senate bill was not reported. The Assembly bill passed the Assembly on April 6 and was referred to the Senate ,Judiciarv Committee. It was not reported by that Committee. (2) Apportioninen t of Attorneys Fees in Third-Party A ctions under Workmen's Compensation Laze ~ 29 and 227. A recommendation of the Commission on this subject and the study submitted therewith were 1)ublished in Leg.Doc. (1971) No. 63(B) and will be included in the 1971 Report, Recommendations and Studies of' the Law Revision Commission. The hill uitrodnced on the reeommen(la- tion of the Commission was (1971) Senate No. 4461, Assembly No. 5749. The Senate bill was reported on May 10. The Assembly bill passed the Assembly on May 4, was inferred to the Senate Labor Connuittee and was substituted on third reading in the Senate for the Senate b~d on May 11. It was not called up in the Senate. (3) Rate of Interest on Judgments When Banking Board Changes Usury Rate. A recoinniendation of the Commission on this subject and the ~ttuly submitted therewith were published in Leg.1)oe. (1971) No. 65C) and will be included in the 1971 Report, Recommendations aiid Stu(lin.' ni the La~v Revision Commission. The bill i ntro(lUCCd on the reeotnmt,,datuni of the Commission ~vns (1911) Senate No. 4460. As~emhly No. ~ The Sennte bill was not reported. The Assembly bill was reported by the Codes Committee and referred to the Ways and Menus Conunittee. It was not repOite(l by that Committee. (4) Filinq of Notice of Cancellation zei!lz the Com;nission of Motor Vehicles Upon Cancellation of Insurance Policies for Non-Payment of Premiums. A recommendation of the Commission on this sub~eet and the study. submitted therewith were published in Leg.l)oc (1971) No. 63(D) and will he included in the 1971 Report, Reconimendatiorus and Studies of the Law Revision Conunission. The bill mt rmluced on the recotanmendat ion of the Commission was (1971) Senate No. -1469-A, Assembly No. 5751. The Senate bill was reported by the Motor Vehicles mind Transportation Committee on May 10 and comnutted to the Senate Insurance Committee. It was not reported by thnt Conmnmittee. The Assembly bill passed the PAGENO="0127" 123 Assembly on May 4 and was referred to the Senate Motor Vehicles and Transportation Committee. The bill was not reported by that Corn- mittee. (5) Health and Dance Studio Contracts. A recommendation of the Commission on this subject and the study submitted therewith were~published in Leg.Doc. (1971) No. 65(E) and will be included in the 1971 Report, Pecornmeiidations and Studies of the Law Revision Commission. The bill introduced on the reeonnnenda- tion of the Commission was (1971) Senate No. 4468, Assembly No. 5885-A. The Senate bill was not reported. The Assembly bill was reported, advanced to third reading on April 28 and, after the Commis- sion advised the Assembly sponsor it wished to withdraw the bill for further study, was committed to the Assembly Rules Committee on May 17. That Committee took no action. (6) Conservator: of the Property of Persons Unable to .l!anage Their Affairs.~ A report and recommendation of the Commission on this subject and the study submitted therewith were published in Leg.Doc. (1966) No. 65(G); 1966 Report, Recommendations and Studies of the Law Revision Commission 12. The legislative history of the bill introduced in 1966 i~ set forth in the thirty-third annual report of the Commission to the Legislature. (Leg.Doc. (1967) No. 65; 1967 Report, Recommendations and Studies of the Law Revision Commission 16.) The 1967 report and recommendation of the Commission on this subject were published in Leg.Doc. (1967) No. 63(G); 1967 Report, Reeonnnendations and Studies of the Law Revision Commission 12: The legislative history of the bill introduced in 1967 is set forth in the thirty-fourth annual report of the Commission to the Legislature. (Leg. Doc. (1968) No. 65; 1968 Report, Recommendations and Studies of the Law Revision Commission 16). The 1968 report and recommendation of the Commission on this subject were published in Leg.Doe. (1968) No. 65(0); 1968 Report, Recommendations and Studies of the Law Revision Conitnission 12. The legislative history oi the bill introduced in 1968 is set forth in the thirty- fifth annual report of the Conmniis~ion to the Legislature (Leg.Doe. (1969) No. 65; 1969 Report, Recomnientlations and Studies of the Law Revision Commission). A iecoininendation of the Commission on this subject was published in Leg.Doc. (1971) No. 65(0) and will he included in the 1971 Report, Reconunendations and Studies of the Law ~evision Commission. `fhie bill introduced on the r~conuuemidation ol the Comumis~,iomi was (1971) Senate No. 4465, Assembly No. 5704. The senate bill was not reported. The Assembl bill passed the Assembly on May 6 and was referred to the Senate Mental Hygiene Committee. It was not reported by that Commit tee. V. CALENDAR OP TOPICS FOR STUDY A. Work in Progress Studies on the following topics are in progress (1) Uniforni Consumer Credit Co.le (see Part II 13 above). (2) Civil actions relating to the environimient (see Part 11 E above). (3) Age of Majority (see Part II F above). (4) Cooj era t ive apartments as ical oi pirsommal property. (5) Zoning Admniimist rat ion and Piocedu me. (6) Limmiitat ions on Spendthrift Trusts. (7) Continuing ie~ iew of experiemlee tinder Est ates, Powers 111141 Trusts Law. PAGENO="0128" 124 (8) Review of Uniform Laws and Moilel Act~ ot the National Con Ference of Comniissioners on Uni form State Laws. (9) Short forms of conveyance. B Topics Continued on Calendar for Further Study Ot'. the follow iii.. topic studies h is e h. a at ide of pa, t ot the piob lems indicated, or of one or mote problems ielating to the general subject matter. The items are cOntinuie(l on the Comniission's Calendar for further study of recommendations not enacted, or of matters on which ito recommend itimi ii n~ nride it the time of a pm es iou~ s~uth or tot the study of idthtion'il piohlein~ ot new des elopntent~ (I) Re'. tew of the Consohdited r n'.ss to th t i rninc and mak~ ieeom ,nend'itioits for the 1 epeal of d i I lettet 1 ~Ws * (2) Procedure for correction of procedural an') jurisdictional defects * affecting titles; establishing marketability of titles acquired b~ `ids cisc po~sessioti pioce(lul e tot (le Ii mn~ t t~ titles (3) The marketable title concept in real estate law. (4) Inconsistencies or conflicts in the Consolidated and tneon- solid ited I iws isitli time piosisions of the t nifoini Coinniercini Code - (5) Federal courts: State legislation relating to abstention when points of local law must be decided. (6) Codification of the present Unconsolidated Laws. - (7) Review of statutes drafted and recommended by the American Law institute. (8) Review of experience under- General Business Law. - (9) Parol revocation I)1oceetli11~. C Proposals for Future Consideration The following topics represent proposals received by the Commission and placed on its Calendar ns separate items but not yet studied by-the Conunission: (1) Incompetency; authorty of (onintittee of ineflnll)eteflt to !ease real inopeitv; eff~ct of execution of lease before comnmue?'e- nient of term. (2) Incompetency; provision by which person (omn)itted as an incOnipetent, om his i-chit ives, could obtain specific particulars of (liagnosis and prognosis and symptoms on which they are based. (3) Degree of mental capacity necessary for execution of a con- tract. (4) Conversion of intangibles. (5) Consent to cancellation of nieciianies' liens to permit conveyance of real property. (6) Malicious prosecution; inter! erenee with erson or ioperty as necessary element. (7) Registration and enforcement of foreign judgments. (8) Creation of joint tenancies; abolition of the `foitm~ unities" requirenictit. (9) Landlord and tenant; implied warranty of title in assignnient of leasehold; implied warranty of habitability. (10) State Finance Law, 137; application to subcontractors of subcontractors. (11) Scope of municipal liability in tort. (12) Inspections as unreasonable searches. PAGENO="0129" 125 1972 RECOMMENDATIONS OF THE COMMISSION Relating to the Liability of Housing Merchants for Personal * Injuries and Breach of Warranty 1972 Leg.D~. No. 65(A) S.Intro. No. 7608 Recent advances in the laws pertaining to the sales of personal property have served to highlight an anachronism in real property transactions. Whereas a purchaser of chattels, of whatever value, is afforded pro- tection against loss due to defective, workmanship by statutory rules of warranty in the Uniform Commercial Code, a purchaser of a new home, for which he has paid substantial value, must depend upon unsettled decisional law for protection against loss due to faulty construction. The mass development of new housing has changed the character of the - marketing of such houses. As a result, there should be no significant legal distinction between the sale of chattels and the sale of new homes. The coutinue(1 application of old real property doctrines to present-day conditions leaves the purchaser of a home with less protection thait the purchaser of a chattel. Because of the doctrines of caveat cnzptor and of merger, no war- ranties have been traditionally implied in the sale of a completed house. * (Staff v. Lido Dunes~ Inc., 47 Misc.2c1 322, 329, 262 N.Y.S.2d 544 (1965).) .A nuniber of states have recently extended the doctrine of implied war- ranty to the sale of a completed house. (Carpenter v. Donohoc, 154 CoIn. 78, 388 P.2(1 399 (1964); IVag goner v. Midwestern Development, Inc., 83 S.D. 57, 154 N.W.2d 803 (1967); Humber v. Morton, 426 S.W.2d 534, 25 A.IAJL3d 372 (Tex.1968); I-louse v. Thornton, 76 Wash,2d 428, 457 P.2d 199 (1969); Krieqicr v. Iiicliler Flomes, Inc., 269 Cnl.App.2d 224. 74 Cal.i~ptr. 749 (1969) ; Wawak v. Stewart, 449 S.W.2d 922 (Ark.1971)) Cochran v. Keeton, 252 So.2t1 313 (Ala.]971) ; see, alSo, Bclltlahiny Bechtel, 91 Idaho 53, 415 P.2d 698 (Idaho 1966); II'eeks v. Sloz'ic/~' Builders, Inc., 24 Mieh.App. 621, 180 N.W.2d 503 (1970); Rothber,q Olenik, 262 A.2d 461 (Vt.1970).) Decisional law in other states even earlier indicated a trend toward implying a warranty of habitability in a contract for the sale ol a house which is not completed at the tiiiie the contract is made. The (-nulls have refused to invoke the rule that delivery o the deed extinguishes the warranty. (I'andcrsclsricr v. ;Iarou, 10:1 Ohio App. 340, 140 N.E.2d 819 (1957) ; [Jove v. ~cnturv Builders, Inc., 32 Wash.2l 830 (1958) Jones v. Gztc'~od, ~si p.2(1 138 (Okl~L19t;:l) ; (7lisau ~. .`iiiolenskt. is:i (`olo. 274, :187 P.2d 260 (1963).) The law in Yew York with ie-pect to the existence ol an inipliel warranty in the sale or an uneoaiplctel house is not clear. (Compare La!: v. [Ia vberrv Iluntin ton, Inc.. 148 N.Y.S.21 762 (Sup.Ct.lOSti). with Fist man z. Britton, 175 App.J)iv. 476, 162 NY.S. 587 (4th Dept 1916).) CoiL~ii0fl to all these (lcei41on5 is the imlea that ca~'eut emn/'t)r is flu unfair rule, eoucding tIn iliUlLi lily ol the typical iiolile-buVei to tiake a (a ii ilspc('tic;lI U t lie preiiiises. Whereas t lie t P1(1 !iO'V is to allow the lionit'-bityi'i' a rein ly on a SV8I 1- ninty t heory to structural leli'ienries in' a new house, there is another and selarate line ot cases involving pe~~~nal iuiul'ies suffered in lou.~es because of detects therein. I lee again caT-emit ciii p/or uLite apj)liCtl, hut now if would appear that the vendor 01. any house whim, cognizant ot a latent (i.e It'et lot apt to he tlisOV('iell U~)Ofl i islet OIL, sells to a PuI' chaSe' without revealing the lange' is liable to anyone short of a tics- ~ w~ is injured because el the danger. These cases have 1)t'O('CCII(d on 1 lie theory of negligence since the vendo' (`01(1(1 li0Pe1'lY foresee the Lu it owurd esul ts of his fai lu i-c to (I i~clos~ I at (Lit (IC 1ta'ts. ~\l ore recently builder-vendors have l)een hell liable frn~ personal injuries not because they failed to disclose a latent detect, 1)1(1 because the new houses COlt- 28-238 0 - 74 - 9 PAGENO="0130" 126 strueted by tiara couta nil latent Iclects which oL~h t not to have c'xi~t"tl had they been carefully const rtrete(l. (see Capora!ctfz ~. .1-F Corpora- finn, 137 F.Supp. 14 (D.C.TT).C.1956).) Builder-veulor~ have beer eon- pared to manufacturers in light of modern construction techni(jttes and h'ti e been held trihie on Fe theor of uegit~ence not rue ek to immedi ite purchasers hut. to anyone reasonably to he foreseen eontin~ upon the premises. This has b~como law in New York. (l'nnran z'. Bin qlia;nton Housinq .`Iuiliorify, I App.Div.2d 559, 152 Y.Y.S.2d 79 (3(1 Dep't 1956).) Although the Court of Appeals reversed the judgment in that case upon the ground, among others, that the complaint did not allege a latent defect or conce'tled (1ingei it concluded ti `it fhe prinitple it hereut in the MacPltcrson doctrine applies to detei'rnine the liability of architects ot' huild~rs tot then h iiidi~ioik (`3 \ ~t 2d 137 144) Sclzipperv. Lcvitt & Son.', iuc., 44 N'..T. 70, 207 A.2d 314 (1965), a (Ic- cision by the highest. court in Yew .Jersey, evidences the possibility that the complex deveioprnents indigenous to the law nt products liability (sc~ * Goldhcrq r'. Kollsnran instruntcnt Corp., 12 N.Y.2d 432, 240 N.Y.S.2c1 5~i2, 191 N.E.2d 81 (1963)) will be extended to the purchase and sale of new homes. The New ~Tersey court held a developer liable on a warranty theory for personal injuries ~rrstained by a re~uote user of the premises as a result of a defect therein. Similarly, Kricqlcr r'. Eidzlcr Homes, fire,, supra, held a builder-venlor liable to the j)ru'clra~el' trout the immediate vendee when the heating s stem proved defective. In view of the charges that are occurring in the law with respect to the liability of huilder-vendo's for both impijed warranties arid negli- genre, the Commission believes that legj~iation is appropriate to define for both purchasers anti hui I ler'-veudors the liabilities of builder-vendors in the construction of' new hurries. Such legislation will avoid the uncer- tainty inherent in art attempt to accomplish this clarification on a ease-by- ease basis over' arm extended periO(l of time. The bill proposed by the Commission enacts a new Article 14 in the Real Property Law. Tire statute treats separately the builder-vendor's liability for Personal injuries arising fort defects it tie construction of new homes and his liahilit~' for structural deficiencies. It imposes upon a builder-vendor of oue-faniilv or' two-family homes, designated as a housing metch tnt ~ut ibsolutc. li'thrhmt~ for dqnrq,e~ mu tort for pen ~on injuries, or death resulting therefrom, to any Purchaser' 01' user of a dwelling caused by defects therein. (~ 461.) The defect, however, muSt be such that a reasonably diligent purchaser' or' user would riot have discOvere(1 it in time to avoid injury. (~ 460(2).) This absolute liability only applies to injuries which occur during art initial three-year period. (~ 461(2).) In tire case of a completed house, the three years run from the delivery of the (Iced or tire taking of possession by tIre purchasem', whichever 0('CUi'S first. In the ease of the delivery 01' a deed to an unconrpleted dwelling, the period runs frormt the corripletion of the dwelling or tire taking of possession by the purchaser, whichever occurs first. The liability may terminate before the expiration of three -yeats it' the purchaser discovers or should have discovered the defect and has had a reasonable tinie to protect agairmst injury. (~ 461(2)-.) Art action arising tinder' the statute must be brought within one year after the injury or the injury leading to ~eathoccnrrs (~ 461(3)), hut the injury must occur' within the three-year period. The liability is riot deemed to be exclusive, thereby permitting a iur- chaser or user to bring a common-law action for negligence if circum- stances should make it nrore appropriate or beneficial. (~ 461(4).) The prOpose(1 statute further provides that any disclaimer or rriodifieatiori of tire liability imposed by the statute shall he void anti the obligations of the housing merchant thereunder shall not be merged in the deed. (~ 461(5).) - - PAGENO="0131" 127 The proposed bill provides for the creation of express warranties in language similar to that used in section 2-313 of the Uniform Commercial Code. (~ 462(1).) Warranties of freedom from faulty materials, con- struction according to sound engineering standards, construction in a workmanlike manner, and fitness for habitation are implied in every sale, but they do not apply to any condition that an inspection of the premises would have reveSied to a reasonably diligent purchaser at the time-the contract was signed.. (~.462(2).) Neither express nor implied ~sarrantie~ may be excluded ot moditied with one exception in each case `At `any'timeafterexeeution of the contract of sale, an expu~ss warranty may- be excluded- or:~rnodified by a written instrument, signed by the -. purchaser, which- sets forth~indetaiI the warranty involved, the consent - of the purchaser and the terms-of the new agreement with respect there- to (~ 426(3) ) An implied warrinty may be excluded oi modified in the same mannet if the contiact of sale pertains to a th~elIuig then completed (~ 462(4) ) For the breach of any of the ~~aiianties pro vided for the couit may a~%aul leg'tl ot equitable relief ot both as justice may require (~ 462(5) ) Implied nasianties extend to subse -` quent' purchasers to whom a reasonably diligent inspection of the pieni- - ises would not have revealed the breach of such warranty and who did * not discover- it before delivery of the (Iced to them. (~ 462(6).) In the case of a dwelling completed at- the time of th,e delivery of the deed to the purchaser, an action for breach of warranty must be commenced within three years after: such- delivery or after tim? taking of possession b~ the purchaser, whichever occurs first. (~ 462(7) (a).) If a dwelling - is not completed. at. the-time of delivery of the (Iced, the three-year period runs front the date of completion of the dwelling or the taking of possession by the purchaser, whichever occurs first. (~ 462(7) (b).) The proposed bill further protects purchasers and users of a dwelling against a housing merchant's- attempt to evade liability for both per- sonal injuries and breach of warranty through the medium of a sham conveyance. ( 463.) In such a case, a housing merchant shall be held liable upon the subsequent sale of the dwelling by the internmediate ven(lee as if the subseciuent sale had been made by the housing merchant without regard to time intervening conveyance. The proposed bill is expressly made applicable to threllings construct- ed upon lands conveyed to a l)urcimaser as part of an integrated trans- action for the construction of a dwelling, and inapplicable to dwellings constructed upon lands owned by the purchaser hut not obtained by imirmi horn the iiou~,int. mneichant ( 464 Relating to .the Apportionment of Attorneys' Fees in Third-Party Actions under Workmen's Compensation Law ~ 29 and 227 1912 LegDoe \To 60(B) `, lntio \o 1619 ~1nflo \o )74o) When an employee -is injured in tIme course of his employment lie is commonly entitled to receive an award under the Workmen's Coni- pensation Law evemi though - time injury was caused by time negligence of a third patty, that is, someone othem than his employer om a fellow- employee. In such cases the amount -of the compensation award, which at course is paid by the employer or his insurance earlier, may he less than can he obtained by an action in the courts against the negligent thu 1 pai t\ ~u( Ii an iction in be mu imniammied mnmtm ills bs time iniuied employee or, pursuant to statutory subrogation, by the person (the employer or his insurance cammicr) who paid time employee's comnpen- sation award. The policy of New York law is to encourage third-party smts SO -* that the ultimatt. hum den will till on the mme~lm0ent p~u t~ Thus 29 PAGENO="0132" 128 of the Workmen's Compensation Law First declares that the employee need not elect whether to take compensation or sue the third party in the courts hut may pursue both rcmetVies. Moreover, should the ciii- ployee not bring action within the iresribeil time, the right to sue is given to the carrier. The carrier is motivated to sue both by the prom- ise of reimbumsement and bs the po~sihihtv oF a ismndiall reeo~e~s hem ein~tfter (ll~cus~ed Under 29 the employee may sue the third party within six months itter he is aaaided contpen~ation \`~ ithmu 30 das~ aFter ~utt i~ he.un he must notiFy the Compensation Board, his employer and the latter's insurance carrier. The carrier (including a self-insuring employer or the State Insurance Fund where appropriate) is given a lieu on the proceeds of any recovery in the lawsuit to recompense it for the com- pensation it has hien and ~~ill he pasin.. to the emplosee undem the `issard and for certain related e~pense~ It the cmplosei doe~ not ~ue and si~ months has e elap ed and the- cam riei iris gis n the eniplos cc 30 dabs ssrmtten notice the ri~ht to sin. be.ome', that ol the carriem The- carrier then may sue toi ill dani m~., oht'un ible `mud it its me covery in the courts exceeds the amount of its lien For past and future compensation payments and related expenses, it may keep one-third of such excess in a(1(htion to the amount of its lien, turninm.r over the re- maining "excess" to the injured employee. Thus the carrier has a lien for it~ own outlay, whoever brings the action, and if the carrier brings the action and secures a recovery, it receives its lien and, in addition, a windfall of one-third of the excess. The obvious purpose of this windfall is to give the carrier an inducement to sue whenever the em- plovee h'i~ failea to do so Attorney's fees, however, are a prior lien. Thus, attorneys' fees are first deducted from the third party recovery; then the carrier's lieu is satisfied; amid, finally, time excess (or two-thirds of it, depending on the initiator of the action) goes to the injured employee. Two results of this procedure call For a change in New York law. First, the carrier receives its lien without contributing to the cost of securing the recovery. Employees, encouraged to sue by the struc- ture of the act, obtain a recovery from which the carrier benefits and yet the carrier mmeed not share in the costs. When the carrier sues, its attorneys' fees are paid in full and then it receives time amount of ;s lien. The employee receives time excess, if mimmy, ommly after the lien of the carrier's attorneys' fees has been (liscimarged. Thus, the carrier's attorneys' fees reduce tue enmj)loyee's excess recovery. Yet, when the employee sues, he normally beams the entire burden of ittorimeys' lees. Second, when time excess is immodest om mmon-existeiit, time employee, who has gone to the trouble and expemided time time reqmured to make time lass suit ~i succiss I muds tim it m Item his ~ mi I iss y em ~ i md the (flu ieu liens have beemm paid oft, theme is little or no mmet recovery left for him. It was his lawyer's efforts tim;mt brought about time recovery out of which the carrier's suimmogatiomu lien is being paid in full, ammd yet time carrier is not making any commtrii)ution toivaid time legal expenses. The Conmummissiomi Imelieves timat the presemit law is tin fair to time em- ployee amid should lie ammmemmded to provide for sonic apportionunent of his legal expenses. That others are of the smmie opinion may he in- ferred froumi time grosving popularity of apportionment statutes. Among the states which apportion legal fees in third-party actions are Illinois, Indiana, Kammsas, Maine, Maryland, Michigan, New ,Jersev, Pennsyl- vania, Virgiumia, and -Washington. In certain other states, such as Ar- kansas, Oregon amid Wiscommsimi, the problemmi is met, not by apportioning the legal expenses, but by guaranteeing the employee a percentage of time recovery after deduction of nil leural expenses. Missouri and Flor- ida provide for both the apportionmmmeat of fees and amu eipiitable (iivi- sion of the immsurer's lien. PAGENO="0133" 129 ~fethods of apportionment vary from state to state. The trend, how- ever, seems to he away from rigid statutory formulas and in favor of a simple provision for equitable apportionment by the court which has the third-party action before it. Apart from any consideration of trends, the Commission prefers the latter apj)roaeh, Since it is IiIOre practical and flexible. The Commission's recammendations with respect to 29 of the \\rorkliien7s Coinpetisation Law are equally applicable to 227. Except for the: fact. that the latter~section is concerned with disability .heiie- fit~ the t~~o `itions ne substantially identu. ii Relatmg to the Rate of Interest on Judgments 1972 LegDoc No (b(C) Stntio No 4460 Untio No 10477 Ci~iI Practice La~ and Rules 5004 pio%ides that interest on ments "shall be at the legal rate, except. where otherwise prescribed by statute ` Puot to May 15 1968 tht. !e~d iate w is deemed to be the usury rate, or the maximum rate for a loan or forbearance of money, which was set at 6% per annum by 5-501 of the General Ob- ligations Law. Eifective~ May 15, 1968, . 5-501 of the General Obliga- tions Law was amended to set the rate of interest on the loan or for- be~iraiice of money at the rate prescribed by the Banking Board pur- suant to 14-a of the Banking Law, or if no rate has been prescribed by the Banking Board, the rate of 6% per annuni. Also effective May 15, 1968, 14-a of the Banking Law gave the Banking Board the power to adjust the rate of interest for a loan or forhearance of money between a rate of not less than 51/2% nor more than 71/2% per annum. Thereafter the Banking Board raised the rate to 7'~% etfeetise July 1 1968 md to 71,% efftise lebtuims 16 1969. The above changes in the rate of interest for a loan or forbearance of money raise the question witether the mate of' interest on udgnituts should also change, following the (leterininations of' the Banking Board. The Attorney (enernl and one reported case deterniiiied that i lie rate for judgments should remain at the historical 6~2~-, arcuitig that the changes in loan or forbearance rates did not apply to jutlgnients. 1968 Op.Att'v Geti. 130; Kay Lewis Enterprises v. Lcwis-,'tlarsluill, 39 Misc.2d `m62 2% `N `1 S 2d 8 i4 (Sup Ct N 1 ( o 196')) lIou ii I lit in ijot its of cases dealing with this question has determined that the iasv rates ~et by t lie Banking Board for a loan or forbearance of' nioli( sh1oul(l rout i'ol the tate of interest l'o r j udgnient s. R: c/i/in ~- Co. ~`. Tin -.3/it,', Inc., :3:3 `~ D 2t1 `370 `308 `N \ S 2d 133 (1-st Dep t 1970) Ct! o Build rs ~imp son Factors Corp.. 60 Misi'.2u1 492, 301 N.Y.S.2d 728 (~-~u1).Ct., NX.( `o. 969) ; z'oa Enqclbrcclitcn ~`. Golvanoni ~ Nc~ Bros., Inc., 39 Misc.2t1 721, :300 N.VS.2d 2:39 (Civ.Ct., N.Y.Co.1969) ; minoan `moz'inqs Ban!.' Giczcomantonio, 39 Mise.2d 704, :300 N.Y_S.2d 218 ( Sup.('t., Queens Co. 1969) ; Dime So'z'ings Bank ~`. Corlor:o, 5~ Misc.2d 821, 296 N.V.~.2d 805 (Sup.Ct., Suffolk Co.1969). * rf}fl1s, there is a conflict in the interpretation of existing statutory law as to whether the mate of interest for judgments is 6% ci' the mate set by the Banking Board. The statutory langua~e is not stif'- ticicuitly clear to deternune which vie~v was iuiteiudt'tl or if' the matter was (`onsi(lervd by the 1968 legislature. \Vhat appears to he needed is a clear* expression of legislative in- tention. Either the judgment rate is to he 6~ or. it is. to follow Bank- ing Board (leteruiiziations. PAGENO="0134" 130 The rate of interest on judgments should be set at 6% for the fol- lowing reasons: 1. This has been the historical rate li-oni 1819 until the present conflict arose. 2. The interest rate for a loan or forbearance is not logically * or necessarily related to the rate for judgments. Different eon- * siderations of supply and demand, risk afl(1 overhead enter into the rate for a loan or forbearance, which do not apply to judg- inents. - 3. Entering judgments with interest is an administrative act assigned to the clerk of the appropriate court. A fixed rate per- - nuts this function to he accomplished efficiently and rout~nelv without posisble controversy over different rates for (liUereflt periods. 4. The power of the Banking Board to set the rate for a loan * or forbearance will expire on September 1, 1972 pursuant to Bank- ing Law 14-a. Whether, and for how long, this power will be continued is not known presently. Relating to Finder's Rights Where Lost Property is Found on Residential Premises 1972 Leg.Doe. No. 65(D) ftlntro. No. 7618 A.Tntro. No. 9233 In 1958 tho Lost and Found Property Act, Article 7-B of the Per- sonal Property Law, was recommended by the Law Revision Conunis- sion and enacted by the Leizislature (see Leg.Doe. (1958) No. 65(A), 1958 Report, Heconimendations and Studies of the Law Revision Couti- mission 35). Prior to this enactment t lie law relating to lost a tid found property was confused and unsettled, so that Article 7-B represented a significant contribution to the law of personal property. The Act abolished common law (listinetions between "lost property." "mislaid property," "ahan doned property," "waifs" and "treasure trove." It eliminated former distinctions between "public" and "private" prem- ises. It created a uniform procedure, previously lacking, designed to promote the return of found property to the true owner. It also con- ferred authority upon T5)lice departments to take custody of found l)iOperty nn(l, after a suitable perio(l of time, to make final disposition of such property in uncontested situations. In general, the intent of the Lost anti Found Property ~\~f was to make a finder's rights (1) superior to the rights of nIl others except the true owner, and (2) independent of the place of finding. Only three exceptions to the general rule were prositletl, as follows (a) If the tinder took possession of the property upon lw'uinses * with respect to which his pi-esefiN' was a crime, the finder's rights should entire to the lerson in possession of the premises. (h) 11 lost property was found by a public officer or employee in the course of his official duty, the state or the public corpora- tion of which lie was an officer or enuployee should be deemed the finder. (c) If, in any other ease, the finder was an employee under a duty to deliver the lost property to his employer, the employer should be given the rights of the finder. The Act appears to have worked well for a decade, until the ease of Fiurlcv v. City of Niagara Falls, 25 N.Y.2d 689, .306 N.Y.S.2d 689, 354 N.E.2d 917 (1969), which focused attention on the special problem of lost property found on residential premises. Itt 1-lurley, the plaintiff was a contractor employed to remodel the basement of a private home. lie found $4900 in $5 and $10 bills concealed under an 01(1 washbasin PAGENO="0135" 131 and evidently put there many years before. The owners of the house had acquired title to the house ten years earlier, hut did not know of the money. The trial court held that Article 7-B was inapplicable to lost prop- city found on residential premises and awarded the money to the own- ers. The Appellate Division of the Fourth Department unanimously reversed this decision ar~ held that the finder should take title to the found property and that the owners of the premises had. no rights in :it. The Court oI~ Appeals affirmed- the Appellate Division in a 4-3 decision The dissenting O~LUIOfl enii hasised the I ict that the kindei had not complied with the statutory procedure of Article 7-B, requir- in~, timely deposit ol the found pioperty ~iith the police It ~sas the dissenters' view that the money should have been awarded to the home- o~i nei ~ The Commission helieies th'it ~rtiele 7-B should be `imended so that ~~heie lost pzopeitv is found on iesideritial pienuses the iights ot the tintlet are suhol(llnite to thosi of the peison in posses'~ion ot the lteiiL ises The Commission al~o belies es that in line v~ ith the ~ iew s expi essed in * the dissenting opinion in the Harley case, Article 7-B should be aniended - so as to provide that a finder who willfully neglects or refuses to com- ply with the statutory procedure for depositing found property with- - * the police should forfeit his finder's rights, as well as he subject to the penal sanctions of Personal Piopeity I u~ 22 Relating to the Terms anti Conditions of Contracts for. Health - - and Dance Studio Services 1972 I e~ Doe No 6a(F) ~ Intio No 7621 ~1titio r~,o 8871 - The General Business Law now regulates in a limited way contracts for health and dance stu(ho services where the consideration theretor is in excess of $5110. ~(ctioIl :194-b, enacted in 1964, covers onlygeti- emily the duration of cont rtc is, I he mode of 1)a~mnem1t thereunder amid a prohibition of assignment without coit.seitt. Section 194-d, originally enacted a~ 194-e in 1968 and renumbered :194-d i~ I 911, extended the recjuirenmcnts ot :19-I-b to I manrimised thai n opemat ions. The present Yen York law does tint requite a written contract, lacks commiplete dcl- initions, anti does not have lim-ovisioris relating to waiver, temni of eon- - tract (except that it may not he measured hy t lie 1 ife of any i)(isomI commtmtiemicemtieiit of t(rimi, (ancel In lion, jiiepayitleii t, exettit iOn of fimOiiiiS- - sorv notes, or the death or disabili tv of parties. `flie health a nil dante st ml io liehls of husi ness i mivul ye mimauv lwrsons - in New York State who cont mart tor t lie develni uncut of I heir physical tind social ski I Is. ( ali brian has olin rate letai led stat ut es, one appli- cable to danci ~t udios a nil one app1 nable to health studios, imaviai.~ di I- ~ei-eiit inaximimmumi lol ar limiti N hut at lierwise suhsta itial lv the same, which i.~i ye t he Jiat ies imiore pIe(ise ~iiitl~ ii(( I I~tii (lots New York's (i~iiemal lius miess I ~aiv. The (omnnmission proposes an extensive amncn'lment to :19-1--b of the (lenemal Rusiness Law to provide more precise giiideiiiies lom po~- ties en tiring into health or elan(e Stit(lio contracts. It P'P~ clear definitions of time contract amid of time patties, a nmaximmtumtm dollar limit of $1 00(1 Oil miiv iou tract a ad the prohi hi tiomi o I mote I bait one eon- trait at one t tie wit Ii any one buyer. Time Proposal further limits such con t mats to a ternt of two yeats, ivhmiI~ preseivini.r the present prohmbitiomm tga i mist contracts based upon 1 lie life of a buyer. The pmo- posed ammedimiemit mmmi ndates a ~t-mitten agreentent, prohibits waiver and requires commtmmeiiteuttemit 01 seivices within six nmonths. Time Commmniis- PAGENO="0136" 132 slOil also proposes that any such contract may he cancelled by either party upon proper notice within ten `lays after its execution, that pay- ments shall be made in installments, that assignment of rights or del- egation of (luties he invalid and that protective provisions be inserted covering thedeath or disability oi the buyer. - The buyer's right of action against the franchise seller, presently i~ 394-d of the General Business Law, is preserved by incorporating it in the proposed aumeudnient to 394-h. Relating to the Manner of Service of Written Notice Under State Finance Law 137 1972 Leg.Doc. No. 6.5(F) S.Tntro. No. 7702-A A.Intro. No. 9236 Section 1:31 oF the State Finance Law was enacted in 1964 upon the recommendation of the Law Revision Commission. (1964 S.I. No. 1397, PiP. N~. 1404, 3772; A.!. No. 2805, Pr. Nos. 2829, 5579; Lee. Doe. (1964) No. 65(B) ; 1964 Report, Recommendations and Studies of the Law Revision Commission 3:3.) it authorizes the Comptroller before approving a cont tact for a public improvement for the state to requite a bond guaranteeing prompt payment of claims for labor and materials which are supplied to the contractor or subcontractor and used in carrying out the contract. The bond furnished pursuant - to this section enures to the benefit of the mnaterialmen and. laborers, who thus have a right to recover a claim in a direct action upon the contractor's bond. Subdivision 3 of section 137 provides that a nmaterialman who fur- nishes supplies to a subcontractor hut has no direct contractual rela- tionship with the contractor, shall not have a right of action upon the bond unless he gives written notice to the contractor within a specified period. This subdivision then prescribes that such written notice shall be served by "delivering the same personally to the contractor or by mailing the same by registered mail. . . In the case of Ulster Electric Supply Co. Inc. z'. Maryland casualty Co., :35 A.D.2d 309 (3d Dept. 1910) the plaintiff, a supplier of materials to a subcontractor, brought an action under section 137 of the state Finance Law against a contractor and his surety on the contractor's payment bond. Plaintiff sent a letter by ordinary mail stating that the subcontractor had not paid an indebtedness of $5,821.08 and that "we are therefore proceeding with a lien against said job." This let- tei was received by the contractor, but concededly had not been sent by registered mail. Time Appellate Division in a 4-i decision held that service of notice by ordinary mail was fatally defective since the Legislature prescribed that the notice he delivered personally or by registered mail as a condition precedent to the right to sue on a paynmemmt bond and that it was imnmate- rial that a written notice was actually received. The dissenting opinion expressed the view that the Legislature intended that there be a written notice, and that there was no implication that the manner in which the writtan notice was to be served was intended to be an essential condition precedent to the cause of action. In Flcislzcr Engineering & Construction z'. United States for Use and Benefit of Hollenbeck, 311 U.S. 15, 61 S.Ct. 81, 85 LEd. 12 (1940) the Supreme Court construed similar notice provision~ of the federal "Mil- ler Act" (40 U.S.C.A. 270b) requiring a payment bond in connec- tion with public works of the United States. Chief .Justice Hughes stated (at p. 19): "We think the purpose of this provision as to manner of service was to assure receipt of notice, not to make the de- PAGENO="0137" 133 scribed method mandatory so as to deny right of suit when the required notice within the specified time had actually been given and received. In the face of such receipt, the reason for a particular mode of service fails. It is not reasonable to suppose that Congress intended to insist upon an idle foini. Rather, we think that Congress intended to provide a method of service when rece~t of the required written notice was not shown." * The Commission believes the purpose of section 137 to allow recovery * on a payment bond can best be accomplished by allowing a right of action to be maintained under this section in cases where actual writ- ten notice has in fact.been received. * Relating to the Filing of Notice of Cancellation with the Commissioner of MotorVehicles Upon Cancellation of Insurance Policies 1972 Leg.Doe. No. 65(G) S.Intro.. Nos. 8564, 8566 * f A.Intro. Nos. 9562, 9563 Cancellation of an automobile liability insurance policy for non- payment of premium is governed by two statutory provisions: 313 of the Vehicle and Traffic Law and 576 of the Banking Law. See- Lion 313 applies to cancellations by insurers in general and 576 ap- plies to the narrower situation relating to cancellation by an insurer when a premium finance agency is involved. Both statutes require that a notice of termination (or cancellation) be filed by the insurer with the Commissioner of Motor Vehicles within 30 days followipg the effective date of termination It has been held in several decisions arising under 576 of the Banking Law that cancellation is ineffective without propet filing of a notice ok cancellation with the Commissioner. Orisini v. Nationwide illnt. Ins. Co., 35 A.D.2d 238. 313 N.Y.S.2d 390 (3d Dep't 1970); Theodore v. Hartford Accident & 1nden~. Co., 60 Mise.2d 991, 304 N.Y.S.2d 688 (Sup.Ct., Albany Co. 1969) PiUs r. Traz'elers Ins. Co., 59 Misc.2l 142, 298 N.Y.S. 2(1 209 (Sup.Ct.. Erie Co. 1969). However, in rases arising under 313 of the Vehicle and Traffic Law it has been held that cancellation is ef- fee tive wit hon t i i I ing of a notice of erlil i nation wit IL the CoIiLtnissiOhI(?r. .1! urrv v. Allstate ins. Co., 16 A.D.2d 95S (2d Dap't 1962); Kyer ~`. Gen- cral Cas. Co., 14 A.D.2d 649 (3d Dep'r l9tfl) ; Jones z'. Aetna Ins. Co.. 59 Misa.2d 698, 300 N.V.S.2d aO (Siip.Ct., Kings Co. 1969). The c fleet of a failure to file a notice of ternnnatioii with the Coni- missioner should be' t lie same in both situations. A propel not ire of cancellation to t lie ( `ouintissioner of Mol or Ve- hick's is art important pa it ol New York Sta la's syst(iii of (`OIUI)uISOrY insurance. ~nrc)ii hal rig in brined that an i t~urance 1)01 icy has Inert ter- titian ted, the ( OiiitiiiSSLOflCl 01 Motot' Vehii(l(S is oblige 1 (`il to revoke the 1t~iSt rat iOn certi itrate and collect the riunibet pl:i las o F the' vehicle Si) hat it will tot be opera ted while uninsured. Thure lore', the result reached i a the cases coast tiring 3(~ ti i the Ban ki ii~, Law, keeping the liability policy in a ttect iiitti 1 proi c~i' notice ht;t4 been aiven to the Conunissioner, i~ preferable. A luither :lnhl)igUity exi~ts ~)ertauliiig to I lie tiling ot a notice ol termination with the Contndssiorter. It involves the interrelationship of the Safety Hesponsibility Act enacted in 1929 (Article 7 of the Ve- hicle and Tm ufir La~~', :130-368) and the Financial Security Act enacted in 1936 (Article 6 oF the Vehicle :111(1 Trttf Etc Law, ~ 310- 321). Under 347, part of the holder Safety Responsibility Act, no insur- ance policy required as proof of iiit;tneial responsibility can be ternii- PAGENO="0138" 134 nated "until at least 10 (lays alter a notice of cancellation or terniina- tion" shall he filed in the office of the Commissioner. The filing re- (fuirenleut cnta i neil iii :147 applies only to i nsu ranee p01 u-tes required under the Safety. Responsibility Act as proof of financial responsihil- ity. However, the proof of financial responsibility provisions of the Safety Responsibility Act were superseded by enactment of the Finan- cial Security Act whereby New York State adopted a system of com- pulsory insurance. Following adoption of the Financial Security Act, 346 was enacted and expressly states that proof of financial responsi- bility shall not be required after February 1, 1957. Therefote, the requnement of filing a notice of termin ition undet 347 is vitiated and rendered obsolete by :346. Recently. however, the fi:ing requirement under 347 has been interpreted as still being in effect. Craine z' Near ffampslzirc Ins. Co., 64 Misc.2d 86, 314 N.Y.S.2d ~i37 (Sup.Ct.. Nassau Co. 1970). Section 347 should therefore be expressly iepealed Relating to the Elimination of an Inconsistency between Estates, Powers and Trusts Law ~ 10-10.7 and 11-1.1(b) (13) 1972 Le,,Doe No 6(H) S.Intro. No. 7925 A.Intro. No. 5920-B Estates, Powers and Trusts Law 10-10.7 provides, in part, that a pouer (other than a power of appointment) conferred upon three or more fiduciaries (which the definition in EPTI4 11-1.1(a) (3) con- fines to trustees aIl(l personal representatives) may be exercised by a majority of them. However, EPTL 11-1.1(b) (13) provides, in part, that a power conterred upon three or more trustees may he exercised by a majority of them, while providing for majority action by execu- tois and administrators only in the single instance where a dispute arises among them with respect to the voting of shares of stock. Both sections are silent with respect to powers which, under existing case law, one of two or more personal representatives may exercise without the joinder of his corepresentatives. The Commission believes that a majority of personal representatives or of their survivors should l)e authorized to exercise joint powers, hence resolving the conflict in favor of the position reflected in the present language of EPTL 10-10.7. It further believes that the present reference to "three or more fiduciaries" should be changed to "two or more" to take care of the situation where only two are ap- pointed and thereafter one dies or is otherwise disqualified, leaving only a `survivor" fiduciary. Without this change, there could arise a question as to whether a survivor of two could act. Statutes permitting the exercise of joint powers by n majority of personal representatives have existed in a number of other jurisdictions for over a century, have uniformly worked well and have expedited the administration of estates by permitting the prompt resolution of dif- ferences among such multiple representatives. Moreover, in the case of representatives, there is lacking the ready access to the courts for instructions, which exists for trustees. The Commission also believes that prompt and effieient administration has been and will continue to be furthered in permitting one of two or more corepresentatives to exercise those powers which case law has es- tablished he may exercise severally. Case law has permitted one of theni to act for all and to hind the estate; such powers are several powers and are so identified in this proposed legislation (see, for example, Gcvc-r v. Snyder, 140 N.Y. 394, 35 N.E.2d 784; Matter of Leopold, 259 N.Y. 274, 181 N.E. 570, 85 A.L.R. 197.) A statutory declaration to this effect will avoid any interpretation that the amendments will abrogate such case law. PAGENO="0139" 135 "Nothing in the proposed statute precludes contrary provisions in an instrument affecting the disposition of property Relating to Bank Accounts in Trust Porm ("Totten Trusts') 1912 Leg Doe No 65(I) ,.~S Intro No 86o1 A Intro No 9o28 In Matter of Toften 179 NY 112 71 NE 748 (1904) the Conit of ~.ppeals held that a deposit by one peison in trust tot another estab lished a tentative trust. Since the trustY is. tentative, the depositor can revoke it at will, or he can complete the gift of the trust funds to the beneficiary by an unequivocal act or declaration If the de positor dies before the beneficiary without revoking or completing a gift of the trust funds, a piesuniption aiises that the beneliciat', r, the ou ner of the account The Totten trust doctrine has since 1904 been (le% eloped by the cmii ts on a ca~e by case basis The courts have had difficulty applying the resulting rules on a consistent basis chiefly because of the infinite ariety of fact situations that may occul Litigation has centered on thiee principal questions (1) \~V lien the depositor delivers to the beneficiaxy the passbook evidencing the account, does he intend to coniplete a gilt 01 the qceount2 (1Iatthc~ts Brookl~n Sazings Bank, 208 N.Y. 508, 102 N.E. 520 (1913); Matter of Farrell, 298 ~ 129 81 N E 2d 51 (1948) ) (2) What N the effect of the depositot statements which may indicate his intention to give the account to the beneficiary or to iesoke ox modify the trust~ (Hessen McKznlt~ lao App Dt~ 496, 144) N ~i S 724 affunued iiiem 209 N Y 532 102 I'~ 1 1115 (1913), Tibbitts v. Zink, 231 App.Div. 339, 247 N.Y.S. 300 (1931).) (3) What is the etfect of 1 tngui~,e in. the dt positot s ~ ill ~ iiieii In t~ indicate his intention to modify oi ie~oke the ~ (1Iatt~; of Kr3cun 24 N `1 2d 710 249 NE 2d 13 (1969) hatter of Btagan 112 Mist 292 183 N Y S 941 (Sun Ct 1920) Cieditots II i'~o found that tic unceut itnt~ as to ou ziel~liul) of flit account has affected their rights to reach the funds in it. As a general matter creditors of the depositor can reach muds in a Totteit trust ac- count `ilrhough the benefit t ~13 nia~ ci tint to hi tht ft in ou ilti ( I qi etto z'. Easton Industrial Corporation, 44 Mise.2d 654, 254 X.Y.S2t1 793 (sup. Ct 13o4) ) U ii t~,t one couut ii N held Ut it th benefit i u', is a lit 1 pUt', to the ci ( ditot `it tion u heiie~ & x tin qut `~t ion 01 o~s n i hip Is i ii cii (Ditni/'son Fa3lor IS \Ii~~ 2d hR 217 N \ `~ 2d 571 (i~up (t 1%2) ) `1 he ii equt_ nt lift.. thou i uniot tun ttc hi t iii t tin uiiouitl ot 1110114 on dcpo it x out it in ill ~l o thu fott ii ii u-,t t1e~ itt i u ed h', pit sOtis of iiiiited lilt iii to cit ( t t ft t tin t it di li0'~iti01l Itenit diii le.,i I thou inupo~in._ oh R' R t `,t in Lu d~ to ..,o~ ciii `lot tin titi t iii pitte of thl( t~i h~ t i itt (11)1 ii ii ion h u~ d on t lie di ~0 i tot ~ oh jet ii e intent i tin ouR ut it to n liii ( ci I ii iit~ ittil v' dictabihit', iii tlii ii Ui 01 the 1 iw \dditioui dli the Tottc.n tin t doti tnt dot ~, not npo~t 1113 1 est it lioxN on ~1) titent of the I tind, to iuil tnt beziet n iii it~ P itt nt, w Ito establisit these utO(OLiIits for 1 heir (ltildiPIt ht1t'stiliinI)lY tb not intend to have an uincon t toIlet 1 release 01. the tn utils to t lit' clii hI rezi if they tiC IiuiflOls The Commission is of t lie opinion that it is desirable to accomplish the oic.cti\ es it ten cii to ti hilt pit ~eri ing thit ts~ ntial R ituui e of the rotten tiust PAGENO="0140" 136 Relating to Various Technical Amendments of the Estates, Powers and Trusts Law 1972 Letr.Doe. No. 63(J) ~.litro. No~. 8923, 8924. 8925. 902~ - A.Intro. Nos. 10275. 10276, 10277, 10274 PART 1 The Effect of 1/ic Possibility of Adopted Chiildrcn on f/ic Rule against Pcrpcf allies, u;ul f/ic Effect of Certain I'rcsuiiiptwus Applie(l in Del crnzinin f/ic Vitlidity of ii Disposition under f/ic Rule against Pcr/'ctuifies Section 9-.:~(e) (1) oF the Estates, Powers and Trusts Law (EPTL) provides certain rebuttable presumptions to he pplied in determining the validity of a disposition iindei the rule against perpetnittes where ~`the validity of a disposition depends. upon the ability to have a child at sonic future time." These presumptions, rccuittinended by the Temporary Commission on Estates (Bennett Connnission) deal exclusively with the ~thvsicaI possi- bility of havi hg natural eli ild ten. Thei 1 inn in thrust. as the I eviscrs' Notes indicate, is "to abrogate the conclusive presumption of fertility which obtained at coiiinion law, regardless of age or inedicul history - ." These provisions, derived from the English Perpetuities and Accumulations Act 1964, ch. 53, 2, unlike that Act, (10 not consider the possibility of having children by adoption. There is tItus a gap in the statute which renders largely nugatory the presumptions with respect to the physical possibility of having natural children. As two noted commentators have stated with respect to the English Act, It would have been useless to ptesuflh(' that a woman over 35 is incapable of giving birth to a child if she can have one by other means. Morris and Leach, The Rule Against Perpeluitics, 1964 Supp. 4. In its 1960 Report, the Law Revision Commission adverted to this problem anti noted that any broadening of the rights of adopted children would increase the importance of dealing with tite perpetuities problem. Leg.Doc. (1960) No. 65(G) ; 1960 Report, Recommendations and Stuues of the Law Revision Commission 309, 342. Since that time there have been both legislative and judicial developments which have resulted ill substantial equality between natural and adopted children vis-a-vis intestate, testate, and inter-vivos dispositions. See EPTL ~ 1-2.10, 2-1.3, 4-1.1(f) ; Domestic Relations Law 117; Matter of Park, 15 N.Y.2d 413, 207 N.E.2d 859 (1963). Of foremost iniportauve to the perpetuities problem is 2-1.3 which creates a rebuttable piesuniption that a disposition to "children," "issue" or words of like import includes adopted children and their issue. The English Perpetuities and Accumulations Act dealt with the situ- ation by applying to the possibility of adoption the same presumptions as apply to the physical ability to have natural children, making the presumptions conclusive, and thus rules of law. Perpetuities & Ac- cumulations Act 1964, c. 53, 2(4). To be compared with this approach are the statutes recently enacted in Illinois and Ontario which provide that the possibility of adoption he disregarded without regard to the physical ability of the potential adopting parent to have a natural child. Ill.Rev.Stat. cli. 30, 194(c) (3); [1966] Orit.Stat. c. 113, 7(4). The Commission believes flint the position of Illinois and Ontario is preferable and that there is no sound reason for tying the possibility of adoption to the physical child-bearing n~e as the English statute does. PAGENO="0141" 137 Two other aspects of this general problem emanate from the possibility that subsequent events may turn out to be different from what was expected : c. g., a woman presumed incapable of bearing a child mar have one;. a man presumed capable may never have one ; a man Or woman may adopt a child.. The first question is whether the determination as to the validity of a disposition should he subject to revision in the light of subsequent events. The approach of the English Act, which has been followed in other statutes, is to deny any significance to subsequent events so far as the question of validity under the rule against perpehuties is eon~ cerned.. Perpetuities & Accumulations Act 1964, c. 55, 2(3). The Commission agrees with this position. The second question concerns the iights of a natural child or adopted - child who is born or adopted alter a disposition has been held valid by presuming that the natural child would not he born or by disregard- ing the possibility of adoption. On this question the Commission be- lieves that it~ the natural or adopted child had a valid interest under the instrument to begin with, there is no sound reason for invalidating that interest on the basis of subsequent events. In other words, tlu. fact that another interest, which was questionable under the rule against perpetuities, has been "mistakenly" determined to be valid, is no reason to invalidate an interest whose validity was not in question from the outset. This approach again is reflected in the English Act as well as in the recent Ontario statute. Perpetuities & Accumulations Act 1964, 2(2); Ont.Stat. c. 113, 7(3). PART 2 The Statute of Limitations Governing the Right of an Infant or Incompetent to Con test Excessive Testamentary Dispositions to Charity Section 5-3.3 of the Estates, Powers and Trusts Law (EPTL) grants to a testator's surviving issue or parents a right to contest charitable testanientary dispositions to tim extent that they exceed one-half of the testator's estate. This statutory provision dates back to 1860, its immediate predeces- sor being 17 of the Decedent Estate Law (DEL). Despite such a long history, prior to the enactment ot EPTL 5-3.3 in 1967 the statute did not contain any provisions governing the procedure to be followed in contesting an excess charitable disposition, nor did it establish any spe- cific statute of limitations governing the right to make such a contest. These aspects of' the statute (as well as the special 1)101)1cm of' infants and incompetents) were considered in a study published by the Tern- pol'ai'y Commission on Estates (Bennett Conuuission) in 1965. That study recommended. among other things, that A proce(lure for bringing the contest similar to that set forth in section 18 {of the Decedent Estate Law, governing the right of election of a surviving spouse I now E PTL 5-1 .1) ] should he (nacte(~ a ad ~tat utory procedural prote('t ion ~hou1d ho gIveIt to ineonpetents and infants. Fourth Report (I ~5) Temporary Com;nisiion on Estates 274. - This recommendation, however, was not immediately pressed by the Bennett Commission. In 1 net in 1966 the Commission attempted to have the Legislature specifically repeal DEL 17 011 policy grounds. The Legislature refused to enact this repealer bill. However, in the saute session, apparently through inadvertence, DEL 17 was repealed by being omitted Ironi the EPTL, which repealed the l)EL generally. lii 1967 the Bennett Commission subimutted a bill which became the present EPTL 3-3.3. .~ction .-~LI reaffirmed the policy of DEL PAGENO="0142" 138 * 17, and adopted in substance the above stated recommendation of the Bennett Commission's 1963 study with regard to procedure, the statute ~f limitations, and the rights of infants and incompetents. In connection with the statute of limitations, 5-3.3(a) (5) adopted almost.verhatini the language of 5-1.1(e) (1) and (2), which governs the rightof election of a surviving spouse. Under these provisions, the election must be made within 6 months of the issuance of letters but the time period may he extended by the Surrogate to 12 months unless there has been a decree settling the account of the persona! representa- tive. :However, 5-3.3 failed to adopt language corresponding to 5-1.- :-~- -i(e) (3), which em~wers the Surrogate to permit an election beyond 12-months after the issuance of letters on behalf of an infant or in- .~~.~cotnpetent spouse "tLl) to, hut not later than, the entry of the decree of * *~ the first judicial account. . . ." In Molter of Rockefeller. 63 Misc.2d 1036, 314 N.Y.S.2d 101 (1970), Surrogate Clancy commented that this failure to include in EPTL 5-3.3 the language of EPTL 5-1.1(e) (3) "results in an inconsistency and an ambiguity which shank! be corrected." lie ~vent on to resolve * this ambiguity and inconsistency by holding that an infant was not -. barred from electing under 5-3.3 even though more than 12 months had elapsed since the issuance of letters. The Commission believes that the failure to include the language of 5-1.1(e) (3) in 5-3.3 was the result of inadvertence and that its omission is not consistent with the legislative policy reflected in 5-1.1(e) (3) to expand the time for filing of a notice to elect in the case of an infant or incompetent until the entry of the decree of the first judicial accounting. PART 3 Tax Apportionment in Relation to the Abatement of Interests in the Decedent's Estate and the Order of Liability of Dis- tributees and Testamentary Beneficiaries Under the provisions of Estates, Powers and Trusts Law (EPTL) 2-1.8, unless the testator provides otherwise, estate and other death taxes are borne by all of the beneficiaries of the estate in proportion to their benefit in the estate. This has the effect of reducing each of the testamentary gifts proportionately, regardless of whether the gift is classified as "specific" (~ 1-2.16), "demonstrative" (~ 1-2.3), "general" (~ 1-2.8) or residuary. EPTL 2-1.8 is the successor to Decedent Estate Law (DEL) 124 which was enacted in 1930 on the recommendatioa of the Decedent Estate (Foley) Commission. Prior to DEL 124 the burden of death taxes (again absent a different expression of testamentary intent) was borne in the same way as the burden of other estate debts and expenses-i. c., not proportionately but according to certain priorities depending on the nature of the testamentary gifts. (The distinction between real and personal property in this regard [now abolished by EPTL 13-1.3 (h)] is not pertinent to this discussion.) The residuary legatees were the least preferred and thus would normally bear the entire tax burden. If the residue was insufficient, the tax was borne by the general lega- cies, thus reducing or "abating" theni, and if these were insufficient, then by the specific and denionstrative gifts. - These rules of "abatement" prior to DEL 124 were the result of judicially established principles based on the "presumed intent" of the testator and thus subject to an expression of testamentary intent to the contrary. See Matter of Small;nan, 138 Misc. 889, 247 N.Y.S. 593 (1931). After the enactment of DEL 124, the combination of that PAGENO="0143" 139 s~atute and the judicial rules of abatement resulted in the following situation: With regard to the payment of debts and expenses of the estate, ab- sent testamentary intent to the contrary, testamentary dispositions abated fully, in the judicially established order of priority; with re- spect to death taxes, however, under DEL 124, again absent a differ- ent expression of testamentary intent, all testamentary dispositions (with exceptions here irrelevant) abated proportionately. Prior totheenactrnent of the EPTL, th~ judicial rules of abatement had not received legislative attention. In EPTL 13-1.3(c) and (d) these rules were enacted, but merely, as the Revisers' Notes indicate. to "codify ease- law (see Matter of Smailman)." Inadvertently, however, by virtue of a definitional cross-reference to 13-1.3(a), the statute as enacted applied the judicially established order-of-preference, non- proportionate rules of abatement not only to debts and expenses but also to -"any taxes for which the estate is liable." This presents a literal conflict with EPTL 2-1.8, the successor to DEL 124. The Commission is convinced that this conflict was unintended, there being no indication of any purpose to vary the well established policy of EPTL 2-1.8. EPTL- 12-1.1 imposes personal liability on estate distributees and beneficiaries of an estate for estate obligations, including taxes, where estate assets have been distributed without the obligations having been fully satisfied. EPTL 12-1.2 provides for the same preferential order `f liability of such distributees and beneficiaries as is established for "abatement" under 13-1.3. There is thus a similar conflict with the policy of EPTL 2-1.8 regarding the apportionment of the burden of death taxes. PART 4 The Rcqu ire;ncnt that Certain Testamentary Formalities be Completed Within a Period of Thirty Days In 1967, 3-2.1 of the Estates, Powers and Trusts Law (EPTL) was amended by the addition of paragraph (c) which provitles: (c) The formalities for the execution and attestation of a will, prescribed by paragraph (a), must be completed within a period of thirty (lays. The purpose of this addition, which was recommended by the Temporary Commission on Estates, (Bennett Commission), is set forth in the Re- visers' Notes as follows: Paragraph (c), designed to promote the expeditious execution of wills, stabilizes an area which had not been clurified under case law. (Cf. Matter of Hart), 83 Misc. 628, with Matter of l('illenborg, 1940, 16 Mise.2d 419, 18 N.Y.S.2d 146.) Two problems exist with respect to paragraph (e). First, it is am~ higuous as to what formality is to begin the running of the thirty day period and (to a lesser extent) as to when the formalities are to be considered "completed." For example: A testator is permitted by the statute either to sign his name in the presence of a ~vitne~s or to ac- kaowledge a signature previously affixed. \Vhen a testator acknowl- edges a signature previously affixed does the period run from the time o~ the signature or the time of the acknowledgment? if the testator signs in the presence of one witness, may he, more than thirty days latet, acknowledge his signature simultaneously to two different witnesses? Or, conversely, it the testatoi signs or acknowledges in the presence of two witnesses, will the will be rendered invalid if, moie than thirty days later, the signature is acknowledged to a third witness? The history of paragraph (e) indicates that the problem to which it was addressed was the span of time between the attestations of sepa- PAGENO="0144" 140 - rately attesting witnesses. In the eases in which the question arose, the testator acknowledged his signature to one witness (who then ,uhserib- e(l) and then some time later acknowledged to the second witness (who ~.then subscribed). The Conitnission believes that if expeditious execu- tion is to be promoted the ambiguity of the present provisions should be clarified by directing the thirty day requirement to this precise proh- * lem of expeditious execution. The second problem deals with burden of proof. Although the pro- ponent has the burden of proving that a will has been executed with the required formalities, "[i]t has long been established that wills may be probated on a full attestation clause even though the subscribing witnesses testify to the contrary or lack any recollection of the details * of execution." Matter of Zipkin's Will, 3 Misc.2d 396, 400-401; 153 N.Y.S.2d 783, 787 (1956). However, this presumption of due execution from the presence of a complete attestation clause would not seem ap- * plicable to the requirement that two witnesses subscribe within a thirty day period.. The thirty day requirement is not itself a formality hut a * time limit on certain formalities. If, on the other hand, the proponent were hound to present evidence on this latter requirement, he would in practical effect he required to see to it that the respective (lutes of the witnesses' suhscriptions he af- fixed to the will-a requirement not set forth in the statute. Absent such dates, the proponent would find it difficult to carry such a burden of proof since, in eases where the two witnesses did not subscribe con- temporaneously, it is unlikely that either witness would know when the other signed. - The Commission therefore believes that the proponent should be aided by a presumption that the thirty day requirement has been met, a pre- sumption which could he rebutted by evidence on the face of the will or extrinsic to the will or both. Relating to the Effect of a General Release without Reservation Given to One of Two or More Joint Tortfeasors 1972 Leg.Doe. No. 65(K) S.Intro. No. 8930 A.Intro. No. 10822 At common law a release, under seal, of one joint tort feasor released the liability of others (Bronson z'. Fitzhugh, 1 Hill 185 (1841)). In due course, the same effect was given, in New York and elsewhere, to a general release not under seal (Milks z. McIzcr, 264 N.Y. 267, 190 N.I~. 487 (1934)): Although this rule had its origin in cases involving true joint tortfeasors, i. c., tortfensors who had acted in concert to commit a trespass, its operation has been extencle(l to any situation wheme the tortious acts of two or more persons have combined to 1)lodmmce a single. injury for which all may he held liable. For purposes of the rule, such persons are commonly referred to as "joint tortfeasors". This application of the rule. is well illustrated by cases like Milks v. 3IcIzcr, sit~ra, in which a general release given to the ~rson causing an injury has been held to release any claim against a physician whose negligemit treatment aggravated the injury. The general rule rests upon two grounds which ale rm~ely subjected to careful scrutiny in the decided cases and which are pot necessarily related to each other. The older rationale theorizes that only one cause of action exists against joint tortfeasors an(l that if any of the tortfeasors is released the cause of action must disappear (Derby ~. Prc~itt, 12 N.Y. 2d 100, 105, 236 N.Y.S.2d 953, 187 N.E.2d 556 (1962)). This is simply a fiction which makes no attempt to reach a fair or reasonable result. It is not particularly persuasive in the case of true joint tort feasors and, as Judge Fuld's opinion pointed out in Derby r. Prewitt, supra, it is not PAGENO="0145" 141 i~pp1icab1e at all to those cases where the parties are iiot truly joint tortfeasors but have merely contributed to a conunon injurious result. The New York courts are not inclined to justify the rule on this ground. The other theory behind the rule is based upon a policy against per- mitting a party to recover multiple compensation for the same injury. If his claim has been fully satisfied by one tortfeasor, he no longer has a right to recover additiiial damages from any other tortfeasor (Derby Prevztt supra) This iationale is applicable whethei th&. toitteasois are joint oi not How e~er it is obvious that its appliuitioa should depend upon whether full satisfaction of the claim hasp in fact, been made. : Unfortunately, the courts have made the satisfaction theory coincide in. effect with the single cause of action theory by holding that the giung of a ielease to any one of multiple toitfeasors eieates a con c1usi~e presumption of full satisfaction of the claim This is a fiction which is unrealistic and unreasonable in ninny if not most cases It is also unnecessary inasmuch as it is easy to establish by the ~eidict in an~ action against others whether the amount raid was in fact full satisfaction Practical necessity and an intuitive comprehension of the innate huish ness of the rule seem to ha%e induced the conits to toleiate the eiertion of nunietous exceptions It is possible to ,.,ive a covenant not to sin (Wilder z Pcn,t~~l ama R Co 245 NY 36 1a6 NE 88 (1926)), oi a ielease ieseivmg ughts against others (Gilbert / Finch, 173 N Y 4~ (i6 N.E.. 133, 61 LILA. 807 (1903)), to a tortfeasor without automatically . - i~kasiiig othei toiticasors If a ide tst. is g1~en to ~ puty not in I u liable for the injury, the releasot's rights against the actual tort leasois are not affected (Atlantic Dock Co. v. Mayor, 53 N.Y. 64 (1873)). As the. ma ioi it's opinion in Derby Pre itt supra aptly (onuneilt( (I Thit the iele'ise of one toitfeasoi iuu,t necess uily ielense all other tortfeasors who are liable for the injury can hardly be re- garded as an inexorable principle when its consequences may be a~oided by the simple expedient of a iesems ition of imghts `igiinst othei~ The une opinion anilyzed Lhe t~ o cons entional ipologies toi the gen eral rule and found them without merit or reason, at least in eases~ not mn~ oh ing tine joiiit toitfeasois Derb) PrL itt supra, did not oseiiule Uilks Mc! er, supra i~ subsequent cases have demonstrated (Mak'ica z. Blumenfeld, 28 N.Y.2d 8 )l (1971)) Ho~s es ei it his sh ikemi tht found ition of the mule nd Ii t~ influeneed some ouits to question the itiuit~ of the liz/ks lit Jo e; (loctimne (Kotler llontzcdllo Ho~pztal rio Misc 2d 742 290 N Y ~ 2d :385 (1968)). It has also provided imiil5~tU5 for a movement to abandon the strict rule in favor of one which itmakes the intent of the releasing party a question of fact. This niovenment for ~im(lieial reform of an tin le~mm able i uk. Ii th imot g tmne(l much inomentuni in Nt u `1 01 K `ilt honji it has acquired a firm foothold in many other states. The dissenting .iudge in Derby v. Prczitt, supra at 109, asseite(l that imuv change in the rule should he made by the Legislature. - In this connection it. may be observed that New Yoik abolished the correlative rule as to the effect of a release on.joint contract obligations 183 long ago as 1928 by adoption of the Model Joint Obligations Act (General Obligations Law, Art. 15, Tit. 1). The_definitional section of that statute (General Obligations Law 15-101) seems to include tort obligations within its scope, and sonic New York decistoims have assuiiied that this law abrogated the i~elcase of joint toitfeasor rule (Lane z. Goldman, 53 Misc,2d 250, 278 N.Y.S.2d 549 (1965)). However, the Court of Appeals has indicated that this is not so hut that joint tort situations are covered by the general common law rule (ilialrica v. I3luincnfcld. 28-238 0 - 74 - 10 PAGENO="0146" 142 LAW REVISION COMMISSION supra ) Thus a rule nh ich was repudiated as uii~ou ad for emit ract pui- poses 44 years ago continues to govern tort obligations. Modern commentators have been unaninious in their (ritiei~ni of the general rule. Dean \Vii.rmore has described it as a "surviving relic of the Cokian period of metaphysics" (iT lll.L.Rev. 563). Dean Pro~er * has characterized it as "at best an antiquatel -,urvival of an arbitrary common law procedural concept" which "historically and logically * has no justification" and which leads to results which have been "justly * condemned" (Prosscr. Torts :302 (4th e(l. 1971)). Justice Rutledge, in McKcn;ui Austin. 77 ~..s.Ap1).r).c. 228, 134 F.2c1 659, 662 (1943). called the rule a nomalous, leadinL~ to incongruous, unjust and unintended re~itlts. * Modern eon it decisions demonstrate a trend toward abrogating the rule (Brccn v. I'cck. 28 yr. 351, 146 A.2d 665 (1958) 1lcKe;;nt: v. Austin. supra) Many states have changed the rule by statute. The rule sets a trap for the average man, who quite reasonably asumes that settling his claim with one person does iiot. have any effect on his rights against others with whom he did not deal. At present it is neces- sary for the claimant to make an express disclaimer in his release of any intent to release persons other than those tiamed ia it. It is more in accord with common undersf anding to 1iovide that the release ineiins just what it says; if it. does not purport to release a party by its express terms, it should not affect his liability. There need he no concern over the possibility of double recovery for a sint~le injury, since any sums paid by one tortleasor on account el an injury reduce the amount recov- erable by the claimant against other tortfcasors responsible for the sante injury (Li~ant v. Lizant, 18 A.D.2d 383, 239 NY.S.2d 60~ (1963), appeal dismissed 13 N.Y.2d 894, 243 N.Y.S2d 676, 193 Y.E.2d 5031; CPLR 4533-h). If the velson being released has any desire to release others, he may have the release drawn to express his intent. The solution recommended here was adopted by the National Con- ference of Commissioners on Uniform State Laws in both the 1939 and the 1955 versions of the Uniform Contribution Among Joint Tortfensars Act (9 U.L.A. 230). PAGENO="0147" 143 SCOPE OF COMMISSION Mr. FAUNTROY. Professor, YOU have indicated to me a role for shap- ing-an anticipatory role of legal research for function into the revi- sion commission, and that I take it, you look to the future, future shock and problems that need to be anticipated in terms of legislation. I take it then you have no problem with a Law Review Revision, Commission that takes on projects both from criminal and civil codes. Mr. LAZAR. I think it's necessary to see the relationship between the criminal and the civil, the law of crime and the law of torts, the law of property in certain areas of contract law are interrelated. And I think it would be mischievous to separate the wholeness and the unity of this legal framework by having separate commissions. Sometimes it's necessary, in order to move ahead in a short time, to create a particular commission on an ad hoc basis. The LEAA grants in the direction of crewting commissions for criminal law may be an instance of this, but the tendenecy for commissions to focus on spe- cific problem areas, and not see the necessary relationships to other bodies of law, I think, can only create future difficulties and future anachronisms. I think there should be some integrating total mechanism. Mr. FAUNTROY. Thank you. Does minority counsel have a question? Mr. HOGAN. No; Mr. Chairman. Thank you very much. Mr. FAUNTROY. Counsel? Mr. DANIELS. Just one or two questions for Professor Lazar. Let me thank you, professor, for the splendid materials that you have submitted to us, and also let me observe that as a lawyer I think your observations were refreshing and probably reinforce the chair- man's view that we lawyers don't always know everything, at least not everything that we think we know. But I do have a couple of questions. The first is, have you had an opportunity to reduce or condense your studies into a specific study finalizing the results of your survey? Mr. LAZAR. I'm still getting back the data, and so I haven't yet reduced this; however, it's possible that having gone through the material, if you `have a specific concern, I might be `able to enlighten you on what the material is. Mr. DANIELS. I see you have responses from across the world. One I looked `at from Afghanistan where they observed their statute wasn't available in English, that should it ever become `available in English they'd be pleased to submit it to you. Mr. FAUNTROY. Well, let me just suggest that inasmuch as the gentleman has offered to provide you a consultant service on the as- signment just given him inasmuch as we can provide the consultant fees, I think you ought to take that up as a way of- Mr. DANIELS. One further point, again, I was-I am interested in the pOint you made about law revision commissions becoming essen- tially instruments for lawyers to deal with lawyer's law. In your sur- veys, have you found a model for a law revision commission, either in this country or in some other country, where the model closer to your view of what a law revision commission ought to be has been put. into effect? PAGENO="0148" 144 Mr. LAZAR. I would say the Law Reform Commission of Ontario as moving in this direction. The language of the jurisdictional scope is very much like that of New York's; however, the effort by the Com- mission to incorporate a nTlultidisciplinary approach seems to be on the move. I would see Ontario as a. possible indicator of direction. Mr. DANIELS. But they've made that-if I understand what you're saying-largely on the basis of administrative decision, but that man- date is not clearly stated in the statute itself. Mr. LAZAR. That is correct. The use of law professors is quite com- mon, but my feeling about law professors is much similar to my ex- pressed views about lawyers; generally, I think lawyers tend to see law technically, and forget that the purpose of law is to accomplish justice. And that was Judge Cardoza's goal. Mr. DANIELS. Thank you, Mr. Chairman. Mr. FAUNTROY. Counsel ? Mr. FREEMAN. I have no questions, Mr. Chairman. Mr. FAUNTROY. Thank you. Now, we bring to the stand Prof. David Aaronson of American University Law School, who has been waiting a long time, and has pre- pared a very extensive statement. I might. want to thank you for the time and attention you've given to our meetings. And you may proceed. STATEMENT OP PROP. DAVID AARONSON, AMERICAN UNIVERSITY LAW SCHOOL Mr. AARONSON. Mr. Chairman, and with your permission and to con- serve the time of this committee, may I have your permission to in- sert this in the record? And I will try and summarize and not repeat what other witnesses have testified to. Mr. FAUNTROY. Without objection. And I thank you for your kind consideration to the committee. [The prepared statement of David Aaronson follows:] PREPARED STATEMENT OF DAVID E. AARONSON, ASSOCIATED PROFESSOR OF LAW, AMERICAN UNIVERSITY LAW SCHOOL. Mr. Chairman and members of the Sub-Committee. My name is David B. Aaron- son. I am a member of the law faculty of the American University Law School. I submit this statement as a concerned citizen (born and raised in the District of Columbia and a member of the D.C. Bar since 1965) and on behalf of the Crim- inal Code Revision Committee, Young Lawyers Section, Bar Association of the District of Columbia, on which committee I have served for three years, the last two of which in the capacity of chairman. The focus of my statement is to comment on H.R. 7412 and HR. 7658, es- tablishing a Law Revision Commission for the District of Columbia, as a vehicle for accomplishing revision of the substantive criminal code, a task which I view as urgently needed and long-overdue. Despite this limited focus, I believe that much of what is stated herein is applicable to the proposed Commission in re- lation to other areas of the law. At the outset I wish to commend Congressman Diggs and Congressman Nelson for taking the initiative to establish a Law Revision Commission and this Sub- committee for initiating prompt hearings. The concept of a Law Revision Com- mission for the District of Columbia is an exciting one because of the need for such an institution in the District of Columbia and because of its proven worth in Several states. PAGENO="0149" - 145 I. JUSTIFICATION FOR THE PROPOSED LAW REVISION COMMISSION The justification for the Law Revision Commission, a proposal which I sup- port, is the need of Congress for information that has not been provided by tra- ditional sources and which can effectively be provided by an alternative to legis- lative investigation based on the subpoena power and the forced testimony of witnesses. The need for the particular kind of information that a Law Revision Commission can provide was articulated by Dean Pound in an article in 1920. He stated: "[O]ur legislative organization rests on the assumption that law-making on other than political subjects is something exceptional . . . [WJe assume that no expert provision is necessary . . . to do the small amount of petty tinkering of the legal system which is necessary to keep it in running order. Our legislative organization and legislative methods are devised for appropriations and political legislation, not for legislation on legal matters. As to the latter, there is no con- tinuity, . . . little or no expert criticism, and there are no systematizing or co- ordinating agencies . . . I submit that we require not merely legislative reference bureaus to deal with the forms of legislation, important as these are, but even more a ministry of justice, charged with the responsibility of making the legal system an effective instrument for justice. We need a body of men competent to study the law and its administration functionally, to ascertain the legal needs of the community and the defects in the administration of justice not academically or a priori, but in the light of everyday judicial experience and to work out definite, consistent, lawyer-like programs of improvement. Pound, "Anachronisms in the Law," 3 J. Am. Jud. Soc'y 142, 145, 146 (1920). [Emphasis added]." The method of approach of such a Law Revision Commission in order to supply Congress with the information necesary to enable it to be properly informed was suggested in an article by Professor John W. MacDonald: "Information is necessary with respect to the existence of a problem, the desirability of legislation as a solution as compared with other possible solutions, the alternative courses which the legislation might take, the experience acquired in other places and perhaps at other times, and the relative advantages and dis- advantages of one decision over the other. Presumably, with this information, the legislature is ready to decide and to act. MacDonald, "The New York Law Revision Commission 1934-1963." 48 Cornel Law Quarterly 401, 402 (1963)." The source of this information is primarily skillful and impartial research and investigation by experts who will view a particular area of the law in its entirety and in a systematic and comprehensive manner. A Law Revision Commission in the District of Columbia would provide information to Congress on the existence of and need to modify or eliminate antiquated and inequitable rules of law by examining the common law and statutes of the District of Co- luinbia and current judicial decisions. It would supply Congress with the infor- mation and recommendations necessary to bring the law relating to the District of Columbia, both civil and criminal, into harmony with modern conditions. In addition to the need for information, another justification for establishing a Law Revision Commission, related to this need, is for some agency to "mediate" between the courts and the Legislature. Justice Benjamin N. Cardozo in an address before the Association of the Bar of the City of New York in 1921 pro- posed an institution he referred to as a "Ministry of Justice." In articulating the need for such an institution he stated: "The courts are not helped as they could and ought to be in the adaption of law to justice. The reason they are not helped is becasue there is no one whose business it is to give warning that help is needed. . . .We must have a courier who will carry the tidings of distress to those who are there to save when signals reach their ears. To-day courts and legislature work in separation and aloof- ness. The penalty is paid both in the wasted effort of production and in the lowered quality of the product. On the one side, the judges, left to fight against anachronism and injustice by the methods of judge-made law, are distracted by conflicting promptings of justice and logic, of consistency and mercy, and the output of their labors bears the tokens of the strain. On the other side, the legislature, informed only casually and intermittently of the needs and problems of the courts, without expert or responsible or disinterested or systematic ad- vice as to the working of one rule or another, patches the fabric here and there, and mars often when it would mend. Legislature and courts move on in proud and silent isolation. Some agency must be found to mediate between them. Cardozo, "A ministry of Justice," 35 harvard Law Review 113, 114 (1921). PAGENO="0150" 146 A Law Revision Commission is needed to ewist on a permanent basis to "watch the law in action, observe the manner of its functioning, and report the changes needed when function is deranged." Id. at 114. A Law Revision Commission would be in a position to receive and consider proposed changes in the law from the American Law Institute, commissioners for the promotion of uniformity of legislation in the United States, bar associations, judges, public officials, lawyers, and the public generally. It could study these recommendations and report where change is needed. "Reforms that now get themselves made by chance or after long and vexation agitation, will have the assurance of considerate and speedy hearing. Scattered and uncoordinated forces will have a rallying point and focus. System and method will be substituted for favor and caprice." Id. at 125. It should be observed that this mediation function is different from the func- tion now performed by Judicial Councils, which deal with questions in the area of judicial administration but do not perform the function of an agency whose taks is to study and provide recommendations on the amendment and correc- tion of the law. II. ILLUSTRATIONS IN THE CRIMINAL LAW AREA A. Discussion of Background and Need for Criminal Code Revision. The above remarks on the need and justification for a Law Revision Commis- sion are general in nature. I now will illustrate the above by considering one area of public need-the criminal law area. In my opinion in no other area of the law is the nee( for a Law Revision Commission more urgent than in the substantive criminal law area. It was most gratifying to observe that in the press release of Congressman Charles C. Diggs dated May 2, 1973, annonncing the introduction of H.R. 7412, revision of the District of Columbia criminal law was the one area ~f the law cited "[a]s a glaring example of neces~ary legislative action which the Commission might undertake. . . ." According to a recent survey (April, 1973) of The American Law Institute on the status of substantive penal law revision, the District of Columbia enjoys the dubious distinction of being one of four jurisdictions (along with Mississippi, Nevada, and Wyoming) in which there has been no progress at systematic revision of the penal code. In contrast, 20 states have enacted revised uenal codes during the period from 1l~56 to 1973 and another 16 states have completed revisions on which affirmative legislation action has not yet been taken. Several other states are currently in the midst of criminal code revision. I am attaching a copy of the results of this survey as an Appendix to this statement, showing a breakdown by individual states. The Report of the President's Commission on Crime in the District of Columbia (1956) noted the antiquated origin of the criminal code, its defects in coverage, and its lack of systematic definition. It stated: The District of Columbia criminal law was first codified in 1901 and has not been codified since. This codification was basically a collection and reorganiza- tion of the criminal statutes as they then existed. It did not examine general principles of criminal law or undertake a systematic definition of criminal be- havior; many significant matters pertaining to the criminal law wree ignored. Id. at 628. The recommendation of the President's Commission on Crime in the District of Columbia was that Congress enact legislation "creating a Commission to re- rise and reform the criminal laws of the District of Columbia." [Emphasis added]. The Report stated: Revision of the necessary scope requires a professional staff and a repre- sentative advisory committee. . . . We recommend that the proposed code revision extend beyond a reorganization of existing law and consider the broader is- sues. . . . [T] he proposed commission should review the entire spectrum of the criminal laws. Its duties might be comparable to those specified by the statute establishing the California code reform commission: (1) Appraise and, as necessary or desirable, restate and redefine substantive provisions of law relating to crimes; (2) Eliminate existing substantive provisions of law which are no longer useful or necessary; (3) Rearrange and regroup substantive provisions of law in an orderly and logical grouping of subject matter; (4) Appraise, simplify, and improve present procedures; and (5) Consider the advisability of drafting and enactment of, and, if deemed advisable, draft a code of criminal procedure to embody existing and proposed procedures governing the disposition of criminal and quasi-criminal actions. Id. at 634. PAGENO="0151" 147 In summarizing its recommendations, the President's Commission on Crime in the District of Columbia concluded, as follows: "1. The criminal law of the District of Columbia should be reviewed and reformed. The review should include a reexamination of ali substantive and procedural provisions of the law to provide a clear definition of criminal uenavior, to achieve fair and consistent policies in dealing with offenders, and to introduce new concepts of treatment into the code. 2. Congress should create and support a commission to undertake revision of the District of Columbia criminal laws." Id. at 635. Hopes for revision of the criminal code was raised the year following issuance of the above report. fltle 10 of the 1907 District of Columbia Crime Act pro- vided for the establishment of the Commission on the Revision of the Criminal Laws of the District of Columbia (Pb 90-266). Section 1003 of the Act stated the Commission's functions as follows: The Commission, shall make a full and complete review and study of the statutory and case law applicable in the District of Columbia for the purpose of formulating and recommending to the Congress a revised code of criminal law and. procedure for the District of Columbia. The Commission shall include in its recommendations and proposals for the repeal of un- necessary or undesirable statutes and such changes in the penalty structure as the Commission may feel will better serve the ends of justice. The Commission was to report to Congress by December 27, 1970 and was authorized $150,000 for its operation. The $150,000 authorized was not appropriated by Congress until December 15, 1969. The Commission was subsequently abolished by Congress in early 1970. Apparently the Commission never issued a report of any kind. I have attempted to obtain some imderstanding of the failure of this effort at criminal law reform to get off the ground. I have been informed that the Senate District of Columbia Committee maintained i.ts endorsement of the Commission project throughout but that the House District of Columbia Com- mnittee (the pre-Congressman Diggs committee) sought the dissolution of the Commission. Apparently the Commission members-il in number-failed to es- tablish a satisfactory working relationship ~ ith this House District of Colum- bia Committee or to gain its confidence and acceptance. Some members of the House Committee apparently were displeased with the composition of this special Commission. Apparently there was some sentiment within the former House District Committee to initiate another commission, but this never materialized. The newly composed House District of Columbia Committee under the leader- ship of Congressman Charels C. Diggs and the two pending bills, H.R. 7412 and H.R. 7658,. signify that criminal code revision in the District of Columbia is now politically feasible. It suggests to me that the reasons for the abolition and, hence, failure of the special commission are no longer present. The state- inent of Congressman Diggs of May 2, 1973, referred to earlier in this statement, giving emphasis to the need for reform of the criminal laws may signal a dramatic change from the record of the former House District of Columbia Committee on criminal code revision. I submit that the failure of the special Commission to get off the ground in no way reflects adversely upon the validity of the 1966 recommendations of the Presidents Commission on Crime in the District of Columbia or the utility of a Law Revision Commission as the vehicle for achieving revision of the criminal code. In fact, the need for substantive criminal code reform now that Congress has reorganized the criminal courts and has made substantial reforms in the processing of `criminal cases (see the District of Columbia Court Reform and Criminal Procedure Act of 1970) is greater than ever. I will briefly explain why I believe this to be true. A criminal code is the starting point and the foundation for defining (1) criminally deviant conduct, (2) for obtaining voluntary citizen compliance and cooperation on which enforcement of the criminal laws depend in the last analysis, (3) for guiding police actions and (4) for setting standards for pros- ecutors, defense counsel, and judges, and (5) promoting the deterrent and re- habilitative impact of the criminal law. The consequence of an inadequate criminal code is improvisation and inadequately guided discretionary authority by police and prosecutors and judges, a lack of understanding on the part of the public as to what conduct is socially unacceptable and ultimately lessened respect for the law and its enforcers. The increasing resources available to the criminal justice system increases the likelihood of misuse or less than optimal use of money and manpower. It increases the risk of adverse effects on the community. PAGENO="0152" 148 The costs of such consequences include, inter alia, unnecessary branding of conduct as criminal, distrust and increased friction between citizens and police, waste and misallocation of resources in terms of police priorities in detection of crime and apprehension of criminals and in the processsing of criminal cases, and less than optimal deterrence or rehabilitation. Imperfections in the criminal code, in my opinion, bear a direct relationship to difficulties in prosecution, to delay in the courts, `to the public's attitude toward crimes and, both directly and indirectly, to the crime rate. B. Specific Illustrations of the Need for Criminal Code Revision. How and why is the existing criminal code of the District of Columbia in- adequate resulting in the costly consequences referred to above? It is worth discussing this question at least briefly in this statement because of my conten- tion that Congress should mandate criminal code revision as the first priority of the law revision commission or a special section of the Coimnission. I and the Bar Association committee on which I have served-as I will discuss below- regard the failure to require over-all revision of the criminal code, to provide for its priority, and to require a time-table for accomplishing this task as a central weakness both of H.R. 7412 and H.R. 7658. The success of any body of criminal law must be measured by how well it achieves the following three major aims. I will briefly discuss these three tests of the success of a criminal code and illustrate why the District of Colum- bia criminal code deserves a failing grade. 1. First, it must define with as much clarity as possible what behavior is crinii- nal. The criminal law is a guidebook of conduct informing the public what it may do and may not do; as `such, it must be accessible to, and understandable by, the public. Then, after an act has been committed, the law `must tell, with as much certainty as is humanly possible, whether that act is a crime. By doing, it gives fair warning of the nature of the conduct declared to constitute an offense and it safeguards conduct that is without fault to the extent possible from condemnation as criminal. Also, the presecutor, the defense counsel, and the trial and appellate judges need to know what are the limits of criminal and non-criminal behavior and the criminal code is the basis for the instructions given to a jury of laymen. Examples of inadequacy of the criminal code in relation to this aim are nu- merous. Many definitions are vague, difficult to l'~cate or lacking altogether. As one illustration, the `following is the entire 1901 statutory law on the crime of manslaughter: "Whoever commits manslaughter shall be punished by a fine not exceeding one thousand dollars, or by imprisonment not exceeding fifteen years or by both such fine and imprisonment." D.C. Code Sec. 22-2405 (1961). Definition of the crime itself was left to the common law and court decisions through `the years. Relatively few ca'ses have been decided under the man- slaughter statute and there is doubt on some of the elements of the crime, par- ticularly "involuntary manslaughter" of the "unlawful act" variety. To take another illustration, there is a total absence of st'atute law in the area of most of the possible complete or partial defenses to crime. In order to know what the elements of these defenses are and under what circumstances they are `available, it is necessary to search through cases, some of which may be very old. When ease law in the District of Columbia is lacking or sparse, it is necessary to go to cases outside the jurisdiction to determine what the com- mon law was or to ascertain how other states have handled a particul~ir point. The defenses should be reexamined to determine whether they should be retained, wha't their proper content should be, and the best rules should be enacted into a statute. The `area `of theft offenses is another example of absence of clarity in the criminal laws. It ha's long been one of the most confusing areas in the criminal law because of the historical development of the various crimes embodied in the concept of "theft." The ancient distinctions between larceny, embezzlement and false pretenses are `preserved in the D.'C. criminal statues. Also, a prolifera- tion of sections were added to the code to cover particular circumstances. Six sections cover larceny. See D.C. Code, Sec. 22-2201-2204a. 2206. Ten sections cover embezzlement. See D.C.C. See. 1201-1203. 1205-1211. Although over 30 separate offenses in the theft area `make it difficult in m~inv cases `to determine just what statutory offense has `been committed. The difference between larceny and embezzlement, for examnie, may depend on the distinction between "cus- tody" and "possession." Code `revision should provide a `unified approach to theft offenses. The area of attempts to commit crimes is another area similarly needing clarification and rationalization. PAGENO="0153" 149 To cite one final example, in the area of culpability, the criminal code includes a bewildering variety of undefined terms such as "wilfully," "maliciously," "deliberately," "knowingly," "unlawfully," "intentionally," etc. The Code does not clarify these terms and the case law, formulated under the pressure of particular facts, has been described as a "morass of self~contradiction." In a revised crimi- nal code these concepts would be defined and their use and consequences con- trolled so as to rationalize the law. 2. The second `aim is that a criminal code should represent current thinking on those values and interests which society wishes to protect. A criminal code expresses societies attempt to define minimum standards of acceptable conduct. It forbids and attempts to. prevent conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public intereSts. We live in an expanding, complex, mobile urban society, one which has undergone rapid changes in social `and economic patterns, and which h'as seen great strides in sociological and psychological learning. Does our `cri'minal code express the needs and views of the last third of the twentieth cen'tury or does it still mirror a society of one or even two centuries ago? A few illustrations should clearly sug- gest that the l'atter is the case. Examples of anachronisms in the crimin'al code are not difficult to find. In 1970, after public reaction and newspaper publicity to attempt to enforce D.C. Code, Sec. 22-1117. Congress amended that part of the section which prohibited kite flying on streets and public places. However, many other sections remain. It is unlawful to play bandy or shindy or any other bat-and-ball game in the street (D.C. Code, Sec. 22-1108); to challenge to a duel (D.C. Code, Sec. 22-1102) to use opprobrious language in `branding another as a coward for refusing to accept a challenge to a duel (D.C. Code Sec 22-1103) ; to wear the insignia of the Daughters of the American Revolution and other organizations without being entitled to do so (D.C. Code, Sec. 22-1307) ; etc. Other sections, less antiquated, seem to serve no function, `and should `be elimi- nated from the criminal `code in the interests of modernization and simplification. One example D.C. Code, Sec. 22-3101. Forcible Entry and Detainer, makes it a mis'demeanor for one to enter or unlawfully detain a premises by force. Basi- cally, this statute is a combination of criminal trespass plus assault. The statute makes no distinction between one who has a lawful right to possession and one ~ho lack such a right. Apparently no criminal intent is necessary. Since trespass on land Is not itself .a crime in the District of Columbia and since an assault (Sections 22-501-505) may take place anywhere, the conduct prohibited by this statute is adequately outlawed `by the existing laws with regard to assault and unlawful entry. Of much greater seriousness are areas of current criminal activity which have not received a modern examination. For example, how to justify D.C. Code, Sec. 22-301 providing that where adultery is committed between a married woman `and an unmarried man, `both are guilty, but `when committed between `a married man and an unmarried woman, only the man is guilty. Another illustration is the crime of libel. D.C. Code, sec. 22-2301-2304, makes it a felony, punishable by a fine up to $1,000 or not more than five years, or both, for one person to libel another.~ The crime of libel is ~ot specifically defined. Moreover, it is difficult to `ascertain how the public good is served by this statute. Also, the criminal sanctions attached by this statute to what is basically a tort or civil wrongdoing might have a chilling effect on the exercise of free speech, guaranteed by the First Amendment. Elimination of this statute would fall wi'thin the trend of recent Supreme Court eases dealing with `civil libel, e.g., New York Times v. Suflivan 376 U.S. 255 (1964). The victim of `a libel can be adequately compensated under existing civil laws. Also, criminal sanctions present numerous problems of proof. The entire area of the regulation of sexual behavior by the Criminal law needs to be reexamined. D.C. Code Sec. 22-3001 proscribes the seduction and carnal knowledge of a previously chaste female between the ages of 16 and 21. However, the statutory rape statute (D.C. Code. See. 22-2801) and the statute proscribing Indecent acts on a minor child (D.C. Code, Sec. 22-3501) adequately protect chil- dren under 16 from non-forcible sexual contact and the rave (D.C. Code, Sec. 22-2801) and sodomy (D.C. Code, Sec. 22-3502) statutes would seem to adequately protect those above the age of sixteen from unwanted forcible sexual assaults. It has been argued that the sodomy statute (D.C. Code. 22-3502) should proscribe only forcible sodomy by one person upon another or sodomy upon a minor. The typical case of sodomy between two consenting adult males, usually in Rock Creek Park or at a "peep show" could be charged as indecent exposure (D.C. Code, Sec. 22-1112) or disorderly sex (D.C. Code 22-1121), 90 day misdeameanors, PAGENO="0154" 150 although a recidivist section might be added to deter those who become continuing nuisances to the public. 3. The third aim or criteria for evaluating the success of a criminal code is that it must not only reflect what society considers to be unacceptable anti-social be- havior, but must show some logical and consistent pattern of punishment provided for the various crimes. Penalty provisions should reveal a hierarchical scheme of wrongs, ranging from the most serious down to the near trivial, with meaningful gradations. It is essential that a criminal code differentiate on reasonable grounds between serious and minor offenses. In the District of Columbia Code the penalties provided are inequitable and inconsistent. First, District of Columbia Code prescribes identical penalties for acts which are qualitatively different. For example, robbery has traditionally been viewed as a larceny in the aggravated form, arising from the force or violence used or threatened to be used upon the victim. It thus calls for a heavier penalty than simple larceny. D.C. Code, Sec. 22-2901 blurs this distinction by adding to the traditional concept the alternative of a stealthy seizure. Thus, no force or violence may be used upon the person and he may not be put in fear. If a secret taking from the person, or from his immediate actual possession (which is usually interpreted to include the immediate vicinity of the person) occurs, the crime in the District of Columbia is not mere larceny, but robbery. If it is thought that stealthy taking from a person should be punished more heavily than simple larceny, it should be stated as a separate form of aggravated larceny, carrying a lesser penalty than robbery. The criminal code provides no degree of rape, with forcible and statutory rape combined in the same section, and no graduation is made in the case of statutory rape for the case in which the offender and the victim are generational peers. The statutes dealing with homicide should be reexamined to determine whether the distinction between first and second degree murder should be retained. Also, some jurisdictions break manslaughter down into different degrees. In this regard the scope of the felony murder rule also should be reexamined. Should felony murder cover the death of a co-felon and, if so, should the "innocent" co-felon also be guilty of felony murder? In certain areas, the penalties may not be harsh enough. For example, cruelty to children (D.C. Code 22-901) is a serious problem in the District of Columbia. Some of the archaic language in the statute should be modified, and many per- Sons feel that the punishment should be increased. Because the battered child is often too young to testify or to make a good witness, the main witness is usually one spouse whom files a complaint against the other spouse. Often the complain- ing spouse decides by the time of the trial that he (she) does not wish to testify. To protect the child, study should be given to the use of depositions and the abrogation of the husband-wife privilege in this type of case. To take another example, many persons have expressed dissatisfaction with the operation of the Youth Corrections Act with respect to the burden of proof in determining who qualifies for the Act and with respect to the period of time of incarceration. In other areas the criminal code often prescribes different penalties for es- sentially the same act. For example, larceny from a private citizen, as mentioned above, is subject to imprisonment up to 1 year if the value of the property stolen is less than $100, and 1 to 10 years if the value of the property is $100 or more (D.C. Code Sec. 22-2201, 2202). However, for stealing property of the District of Columbia, there is no distinction based on value of the property and all thefts may be punished by terms up to 5 years (D.C. Code 22-2290). Finally, it should be observed that the criminal code does not provide a classifi- cation scheme for sentencing purposes. Each statute contains its own statement of authorized punishment. One of my students informs me that he counted among the criminal statutes over 23 different authorized periods of incarceration, ranging from 30 days to life in prison, and at least 17 separate fines, ranging from one dollar to $5,000. These different periods of incarceration combine to create literally dozens of unique punishment categories. Mandatory minimum punish- ments are provided for some offenses and appear to exhibit no pattern of ration- ality. For example, under D.C. Code 22-601, a mandatory two year penalty is provided for the crime of bigamy while under D.C.C. 22-2801 no mandatory mini- mum punishment is Imposed for forcible rape. The concept of mandatory minimum punishments and the mandatory punishments imposed in the criminal code should be reviewed along with its apparent conflict with indeterminate sentencing statutes. Serious consideration should `be given to a sentencing pattern along the lines of Section 3002 of the recently proposed Federal Criminal Code, which classifies all crimInal offenses Into six broad categories for sentencing purposes PAGENO="0155" 151 and establishes a separate category called an "infraction" for minor strict liability offenses. It is based on the assumption that a legislative body is unsuited to drawing fine distinctions between the penalties which should be available for each offense. I would like to make one other observation before moving on to comment specifi- cally on the two pending bills. Criminal Code revision for the 1)istrict of Colum- bia would be a practical and timely undertaking at the present time. The Final Report of the National Commission on Reform of the Federal Criminal Laws has been submitted and is presently under consideration by Congress. Because of the effort of this Commission the task of criminal code revision in the District of Columbia should be considerably reduced. The Commission, applying a unique con- cept of jurisdictional bases, reviewed the Model Penal Code and the entire field of common law crimes and defenses. It hired expert assistance and at an esti- mated expenditure of $850,000 produced several volumes of materials that would be relevant to D.C. criminal code revision. This estimate was made by Professor Livingston Hall in an article "Drafting a Criminal Code for Massachusetts," 56 Massachusetts Law Quarterly, June 1971, reprinted in Hearings (1971) before the Senate Judiciary Subcommittee on Criminal Laws and Procedures, Part II, at 650. It is the opinion of the Criminal Code Revision Committee, Young Lawyers Section, Bar Association of the District of Columbia that on a relatively modest budget, a draft of a revised substantive criminal code could be produced within one year. III. SPECIFIC OOMMENTS ON H.R. 7412 AND H.R. 7658 Having examined what I submit is a valid justification or rationale for estab- lishing a Law Revision Commission and having attempted to explain why priority should be given to criminal code revision, I would like to comment on H.R. 7412 and H.R. 7G58 with regard to the degree to which these Bills would maximize the likelihood of speedy, comprehensive and effective revision of the substantive criminal laws. An understanding of the rationale for a Law Revision Commission discussed earlier in Section I, provides a touchstone for analysis of specific pro- visions of these bills. The Criminal Code Revision Committee, Young Lawyers Section, Bar Associa- tion of the District of Columbia held a special meeting in May, 1973 to consider proposed H.R. 7412, each member having previously received a copy to study. Daniel M. Freeman, Esq., staff counsel to the House District of Columbia Com- mittee, kindly attended this meeting to explain provisions of this Bill and to an- swer questions. Unfortunately, H.R. 7658 was not before it for consideration. Hence, when I report the recommendations of this Committee for your considera- tion, as opposed to my own views, they directly refer only to H.R. 7412, although the recommendations obviously apply to both bills. While H.R. 7412 provides new hope for criminal code revision and establishes a mechanism for revision, our Committee has some serious reservations about it. First, it authorizes review of both criminal laws and the entire spectrum of civil statutes and does not require systematic and comprehensive revision of sub- stantive criminal code; Second, it contains no provision expressing any priority for criminal code revision; Third; it provides no timetable for any action in the criminal law area (or any other area) to be taken; Fourth, its composition in- cludes no representative from either the Public Defender Service or the U.S. Attorneys Office. Because our Committee lacks a feeling of assurance that a thorough, sys- tematic-as opposed to a piecemeal-revision of the criminal code is likely to occur in the reasonable future upon the enactment of H.R. 7412, it u~a~imonsly adopted the following resolution with the suggestion that it be brought to the attention of the House District of Columbia Oommittee: "1. It is recommended that Section 1 of H.R. 7412 be amended to increase the number of members of the Commission from 9 members to not more than 15 members. In addition to the four mandated members, the United States Attorney or his designee and the Public Defender or his designee should be added. In appointing the other members, in addition to the three members who are at- torneys and members of the District of Columbia Bar, at least one of whom is a member of a law faculty of a law school within the District of Columbia, the Mayor should insure that the final composition of the Commission includes, to the extent practible, representatives from all segments of the community." While not part of the resolution as formally adopted, the view was also ex- pressed that at least one of the Commission members should be a judge and that one of the attorney members should be a member of the regularly practicing pri- vate bar handling criminal cases. PAGENO="0156" 152 "2. It is recommended that Section 2 be amended to include the following language: `To undertake a thorough and systematic review of the substantive criminal law and to make appropriate recommendations.' "3. It is recommended that Section 2 be amended to include the following language in order to implement the recommendation of the President's Commis- sion on Crime in the District of Columbia (1966) : `In the review of both civil and criminal common law, statutes, and judicial decisions, in receiving and con- sidering proposed changes, and in making recommendations for changes in the law, revision of the substantive criminal law shall be accorded priority.' "4. It is recommended that Section 2 be amended to include the following language: "An initial draft for revision of the substantive criminal law shall be submitted to Congress within twelve months after the appointment of the mem- bers of the commission by the Mayor. The final draft shall be submitted to the Congress within 120 days thereafter." In addition to the above four resolutions, the Committee after discusing how the organized Bar could perform a constructive role in making available its expertise and in making a contribution toward early, thorough, and systematic revision of the substantive criminal law, unanimously adopted the following resolution: "If funding can be obtained to permit hiring a full-time staff, the Young Lawyers Section of the Bar Association of the District of Columbia, in co- operation with other segments of the organized bar in the District of Columbia, should undertake to provide the Commission with a proposed draft of a revised substantive criminal code for its consideration." The above recommendations, in the opinion of the Criminal Code Revision Committee, would maximize the likelihood of speedy, comprehensive and effec- tive revision of the substantive criminal laws. In order to comment more specifically on particular differences between H.R. 7412 and HR. 7658 in terms of the other recommendations and my own views, I would like ot list several critical issues involved in establishing and staffing a Law Revision Commission in the District of Columbia. (1) Is it desirable that Commission members be active working participants in the proces of law revision or merely that members be available to provide policy guidance and to pass judgment on the work product of the staff? If the former is the more desirable direction, limitations on payment and length of service in H.R. 7658 may be undesirable. Also, it suggests that membership on the Commission should be limited to a size that would permit a close working relationship to develop or that a larger membership should be divided into working panels or divisions. (2) Should the Commission be viewed as a long-term and, perhaps, permanent instituton to continually monitor the functioning of our civil and criminal laws or should the Commission be viewed as a short-term institution to achieve specific goals and then be abolished? (3) Should the composition of the Commission be balanced ideologically, and, if so, how is this best obtained? With regard to criminal law revision should representation on the commission by prosecutors be balanced by representation from the Public Defender Service and from the private defense bar? Related to this question is whether the Commission should receive input from various segments of the community and, if so, how is this best achieved? Should there be an attempt to insure that community representation is reflected in the composition of the Commission? (4) Is the criminal law such a specialized field that criminal code revision is best achieved by a special commission or a special division of a law revision commission, or alternatively, is it important that persons knowledgeable in the criminal law and the practice of criminal law in the District of Columbia be included as members of the Commission? (5) What should be the role of the Law Revision Commission in relation to the organized bar associations in the District of Columbia? Should bar associa- tions be encouraged to take the initiative and present initial drafts of recom- mended changes in the law or, alternatively, should such organizations be encouraged to participate actively with the Commission staff in the preparation of studies and recommendations, or merely should the organized bar merely be regarded as an organization which is invited to comment upon and respond to Commission reports and recommendations? (6) How valuable is the accumulated expertise and experience of Commission members to the continued work of the Commission as compared with other considerations suggesting a greater turn-over of commission members? If PAGENO="0157" 153 accumulated expertise and experience is an important asset, relatively long terms and liberal reappointment provisions would seem to be desirable. (7) Should the Commission have the power to request and receive informa- tion from the Federal and District Governments, to enter into contracts with private firms, institutions, including bar associations, and law schools, and Individuals to conduct research to prepare reports, etc? (8) If some priorities for law revision projects are not initially indicated in the legislation creating the Law Revision Commission, both between criminal and civil law reform, and among civil law revision projects, how can the most competent individuals be selected to be Commission and staff members, since relatively few persons have general expertise in a wide variety of areas? Or, to turn the question around, will not priorities-if not spelled-out in the legis- lation-be determined among Commission members, in part, on the basis of their particular background and interests? If so, is there any reason to expect that the priorities to be determined by the Commission members will coincide with the priorities of Congress, unless some formal or informal direction is exerted in the selection of projects? Who is most qualified to ascertain these priorities? What processes can be devised to insure that priorities in the selec- tion of projects reflect the needs of the residents of the District of Columbia? In order to provide some guidance to this Committee in attempting to answer the above questions, It should be acknowledged at the outset that "right" answers to all of these questions may not exist and, to the extent they do evist, the answers may depent on many variables which cannot be estimated with any degree of reliability In creating a Law Revision Commission in Washington, D.C. Experience among the states demonstrates that there is more than one way to successfully organize and operate a Law Revision Commission. Certainly the number and complexity of the problems to be studied by the Commission, the money and talent available, the nature of the political institution to which the Commission must report its findings and recommendations, the nature of the community, and the time available to produce the desired output may affect answers to the questions posed above. At the same time experience among the states also suggests that a new Law Revision Commission is a fragile institu- tion whose performance may be impaired unless It is carefully planned, com- peteritly staffed, and pursues an intelligently designed and balanced program with thoroughness and skill. With this caveat, I will attempt to present some considerations that bear on some of the above questions drawing on the justification or rationale for the existence of a Law Revision Commission and experience in other states. 1. First, It seems clear to me that since a justification for a Law Revision Commission is to provide Information of a specialized nature to the legislative branch, which information depends in large part on pure research, a Commission should not be denied power to contract for studies and assistance where needed. Therefore, I would conclude that this aspect of H.R. 7412 is superior to H.R. 7658. In some instances It may be less expensive to draw on outside talent where In-house capability on a particular problem is weak or non-existent. Also, Insofar as the Commission serves the function of a "buffer" between the courts and the legislature, the Commission should be encouraged to draw upon the experties in various segments of the legal community, such as bar associations and law schools, In order to establish effective channels of communication to ascertain needs and deficiencies in existing laws and their administration. 2. Based on similar reasoning to the extent the voluntary efforts of bar associations can provide useful inputs into the Commission, the Bar should be encouraged to actively work with the Commission at early stages of Its study of various problems. Information between the organized Bar and the Commis- sion should be exchanged insofar as possible. The importance of this relation- ship may be illustrated In New York where the State Bar Association established a permanent standing committee designated the "Commission to Cooperate with the Commission." See MacDonald, "Legal Research Translated into Legislative Action: The New York Law Revision Commission" 48 Cornell La'u, Quarterly 401, 426 (1963). 3. Sec. 2(b) of H.R. 7658 states: "Each appointment shall be made, without regard to political party affiliation, on the basis of the ability of that person to perform his duties with the Commission." Sec. 2(h) again states: "Persons appointed to the staff of the Commission shall be so appointed solely on the basis of their ability to perform the duties of the Commission without regard to political party affiliation." PAGENO="0158" 154 While these statements have great surface appeal and may be most desirable insofar as political party affiliation is concerned, they may be misleading if they are to be read as meaning that the ideological orientation or philosophy of the individual should be irrelevant in the selection process. Recommendations inherently involve statements of what the law "should be" which depend in part on questions of social policy and moral considerations. Certainly, recommendations should attempt to identify the value assumptions on which they rest and these should be communicated to Congress. However, it cannot be denied that the ideological orientation of the memlers of the Commission may play a large part in making certain recommendations, espe- cially involving controversial problem's. Such problems are numerous, for example, in the criminal law area. This suggests that diversity and balance may be desirable in the selection of members, assuming of course that other things-such as competence-are equal. Specifically, I would think that it would be generally undesirable for a Commis- sion revising the criminal law to be overloaded or dominated by either pros- ecutor or defender types. In this regard, I am very concerned that H.R. 7658 provides for two members to be appointed by the U.S. Attorney and for two members to be appointed by the District of Columbia Corporation Counsel, while no mention is made of appoint- ment of members by the Director of the Public Defender Service or from the private defense bar. Similarly, H.R. 7412 provides for membership by the Corporation Counsel of the District of Columbia and yet ignores the Public Defender Service. (Incidentally, H.R. 7412 also ignores the Office of the United states Attorney which in all deference to the Office of the Corporation Counsel may be a greater source of experience on serious criminal matters. After all, it is the U.S. Attorney's Office and not the Corporation Counsel's Office that is primarily involved in prosecuting these serious cases in the District of Columbia. Regarding the need for diversity and balance in the selection of members and staff, it is worth referring to a published interview with Richard Denser, Executive Director of the New York Temporary Commission on Revision of the Penal Law and Criminal Code conducted in June, 1968, `by Professors Herman Schwartz and Jerome Skolnick: "Skolnick: As a Commission, did you develop a philosophy as you went along-where to lean to the left or where to lean to the right? Denzer: We didn't have a definite left or right philosophy. Some members of the Commission leaned to the left and some to the right, but we went down the middle on most provisions. Skolnick: Does this mean that one could predetermine the nature of the finished product by initially selecting the members of the Commis- sion on the basis of their political philosophies? Denzer: Yes, I believe that would be true. Since we had a mixture of defense- oriented and prosecution-oriented philosophies, we made many compromises in the interest of completing our work." [Emphasis added]. Senate Judiciary Subcommittee on Criminal Laws and Procedures, "Reform of the Federal Crimi- nal Laws," Hearings, Vol. II, 836, 840 (1971). Quaere, whether balance and' diversity is more likely to be achieved by specifying in the Bill its desirability as one consideration in the over-all selection process or at a minimum designating a position for the Public Defender Service in terms of criminal code revision. Is diversity more or less likely to be achieved where, as in H.R. 7658, the appointment power is distributed to several different persons in Section 2(a), as compared with the power given to the Mayor-Commissioner in H.R. 7412, Sec. 1? 4. Not unrelated to the above is the question of community representation. Certainly, it can be argued that there is no room for community representatives on a research oriented law revision commission, let alone non-lawyers. H.R. 7658 provides in Section 2(b) that all members appointed to the Commission shall he attorneys, who need not be admitted to practice in the District of Columbia as long as they are admitted to practice in any of the several states. H.R. 7412 provides only that of the five additional members to be appointed by the Mayor, three shall be attorneys, who must be members of the District of Columbia Bar, at least one of whom shall be a member of a law faculty of a law school within the District of Columbia (with no designation of whether the law faculty member should be a part-time or a full-time faculty member). Although HR. 7412 permits the appointment of non-lawyers, there is no suggestion that any non-lawyer members represent or reflect various community segments. However, by specifying that the attorney-members be licensed to PAGENO="0159" 155 practice in the District of Columbia, there is, perhaps, a greater likelihood- which may in fact be slight-of greater community representation. in a unique study,. Jerome H. Skolnick, Professor of Criminology, University of California, Berkeley, was given permission to study the process of criminal code revision in California from the insice. A joint legislative committee with a staff and an advisory board appointed by the committee began work in 1963. The Advisory Board was composed as follows: two district attorneys; four judges, all of whom had prosecutorial experience; a law school dean; a public defender; a criminal law practitioner; an assistant state's attorney general and, later, the executive officer of the Board of Corrections. Skolnick observes: For one fact was clear-The Advisory Board was an establishment elite, and as time went on its prosecutorial biases became increasingly evident. Not only had all the judges had prosecutorial experience but eventuall.y to be consiliatory the revision staff allowed both police and prosecutors to attend drafting meetings, as well as Advisory Board meetings, to contribute ideas and ultimately, to dominate everything. There was never representation by the black or Spanish-surname American or ex-con or student, or even an official of the Civil Liberties Union. In short, anybody who might be really repre- sentative of the community of people against whom the criminal law might be enforced. (The Public Defenders regularly backed the prosecutor and the practitioner regularly failed to attend meetings.) [Emphasis added.] Skolnick, "Impediments to Criminal Law Reform: California, 1963-70, in Senate Judiciary Subcommittee on Criminal Laws and Procedure, "Reform of the Federal Criminal Laws," Hearings, Vol. II, 654, 657 (1971). Skolnick observed that the prosecutors seemed to feel that the revision staff, consisting o.f five outstanding law professors (one of whom was also Chair- man of the Advisory Committee) represented minorities. However, Professor Skolnick brilliantly explained the limitations of the professors to perform this role: And certainly the professors-'with the exception of Ceilings, whose prosecutorial sympathies were clear-and sometimes Sherry-expressed more concern about the rights of minorities than the prosecutors. Moreover, they recognized with personal chagrin, what a serious omission this lack of repre- sentation was. They understood that `liberal' white professors were not neces- sarily the most knowledgeable or the most committed spokesmen for minority groups in the criminal law. Besides, they properiy lacked a sense of `standing' both in their own eyes and those of others. Finally, they were used in most situations to adopting the position of arbitrators between conflicting forces, men who were sought out for their qualities of reason and moderation. The distinct prosecutorial stance of the Advisory Board, however cast them more often than they liked in an adversary stance, as protagonist or antagonist. Usually there was nobody else to rely on for that role. The situation was un- comfortable. But they did little about it, partly because they lacked time, partly interest, but mainly expertise-they didn't quite know how to begin to organize and manage political problems. [Emphasis added.] Id. at 657. The preceding discussion raises the question of whether at least one Com- mission member should be appointed to represent the interests of the "community of people against whom the criminal law might be enforced" when reform of the criminal law is undertaken. Such an individual might be an attorney for a civil liberties organization or possess an equivalent background. Alternatively a spokesman for a minority community segment might be considered, especially if he or she were otherwise qualified for membership. I personally am not convinced that membership on the Commission should be limited to attorneys. It has been stated that "in many respects law reform is too serious a matter to be left to the legal profession." Searman, "The Role of the Legal Profession in Law Reform," 21 Record of N.Y.C.B.A. 11, 12 (1966), as cited in Sutton, "The English Law Commission: A New Philosophy of Law Reform, 20 Vanderbilt Law Review 1009, 1010, (1967). Shou1d a Law Revision Commission seek to infuse new values into law reform, "leading professional thought rather than following it?" Id. at 1015. 5. My final comment concerns the question of what extent should revision of the criminal code be perceived as a specialized undertaking that would benefit from specialized expertise both at the Commission and staff level. To illustrate the vast territory covered by the civil and criminal law, the State of Texas decided to divide their law revision efforts Into separate projects by subject matter. Criminal law reform was undertaken as a separate Texas Penal Code Revision Project cosponsored by the State Bar of Texas and the PAGENO="0160" 156 Texas Legislative Council. Business and commercial law was recodified and enacted by the legislature in 1967 as the "first of 26 proposed codes encom- passing all Texas statute law of a general and permanent nature. Senate Judiciary Subcommittee on Criminal Laws and Procedures, "Reform of the Federal Criminal Laws." Hearings, Vol. II, 648 (1971). By indicating the wide range of possible code revision projects, the need for identifying priorities and for specialized knowledge is suggested. The criminal law area increasingly has been perceived as a specialized area of the law with particular concepts, tools, and skills to be mastered. The so- called criminal law revolution of the 1960's resulted in courses in criminal pro- cedure added to the curriculum of law schools. In the District of Columbia a substantial proportion of criminal cases are handled by a group of practitioners with expertise in the criminal law area. This is, perhaps, part of the explanation why New York, with an esablished and effective Law Revision Commission, created a special commission to revise the criminal laws. In 1961 the Legislature passed a bill creating the New York Temporary Commission on Revision of the Penal Law. N.Y. Sess. Laws 1961, Oh. 356. For an informative discussion of the New York experience in criminal law reform, see the reprint of an interview with Richard Bartlett, who was ap- pointed chairman, conducted by Professor Herman Schwartz entitled "Criminal Law Revision Through a Legislative Commission: The New York Experience," Hearings, op. cit. at 813. In California, Professor Sherry reports that In 1963 when the machinery for revision of the criminal code was under consideration that two alternatives were in contention: "the appointment of a special crime study commission primarily responsible to the governor, or simply assigning the task to the existing California Law Revision Commission. . . . [T]he several proposals for revision fell between the two stools of choice and remained there until the closing hours of the 1963 session of the legislature. At that point, a last minute compromise by which the work was assigned to a joint legislative committee was quickly approved and the way appeared to be open for extensive criminal law reform." Id. at 623. The result was a special Joint Legislative Committee for the Revision of the Penal Code. Oh. Proposal of Judge Kenneth B. Keating for creation of several permanent commissions with jurisdiction limited to a specific area of the law but with powers similar to those of the New York Law Revision Commission. Keating, "A Proposal for the Law Revision Process," 31 Albany Law Re'view 45 (1967). If it is agreed that criminal law reform is a specialized undertaking, com- bining both criminal and civil code revision in a single commission with a single staff without designating priorities in advance may place some limitations on the in-house expertise available in the criminal law area. Without power to enter into contract with Federal or State agencies, bar associations, law schools, pri- vate firms, and other institutions, with expertise in the criminal law area, the new Commission would be handicapped indeed. Alternatively, attempting to create a separate special commission in the District of Columbia would no doubt result in political problems that would only postpone further the prospects for criminal code revision. With a recently reconstituted House District of C- lumbia Committee and the excellent materials available from staff of the Na- tional Commission on Reform of the Federal Criminal Laws (see earlier discussion in Part II of this statement), the time for comprehensive revision of the substantive criminal laws would now appear to be ripe. A solution would be for Congress to designate criminal law revision a first priority for the new Law Revision Commission. The selection of initial Commission and staff mem- bers should then be responsive to this stated priority. PAGENO="0161" 157 APPENDIX STATUS OF SUBSTANTIVE PENAL LAW REVISI0N* I. RECEIVED CODES; EFFECTIVE DATES (20) Cob. Crim. Code, Oh. 40; 7/1/1972. Conn. Gen. Stat. Ann., Pepal Code; 10/1/1971. Del. Code, Tit. 11, Sec. 101 et seq.; 7/1/1973. Ga. Code Ann., Tit. 26; 7/1/1969. Hawaii Laws of 1972, Act 9; 1/1/1~73. Ill. Ann. Stat., Ch. 38; 1/1/1962. ill. Unified Code of Corrections; 1/1/1973. I~an. 1969 Session Laws, Ch. 180; 7/1/1970. Ky. Penal Code; 7/1/1974. La. Rev. Stat., Tit. 14; 1942. Minn. Stat. Ann., Ch. 609; 9/1/1963. Mont. Rev. Oode Ann., Tit. 94 (1973 Sess. Laws, Oh 513); 1/1/1974 N.H. [Newl Criminal Code, Oh. 625; 11/1/1973. N. Mex. Stat. Ann., Oh. 40a; 7/1/1963. N.Y. Rev. Penal Law; 9/1/1967. *N.D. Cent. Code, TIt. 12-1; 7/1/1975. The New Ohio Criminal Code; 1/1/1974. Ore. Laws 1971, Ch. 743; 1/1/1972. Pa. Crimes Code, TIt. 18; 6/6/1973. Utah Crim. Code; 7/1/1973. Wis. Stat. Ann., TIt. 45; 7/1/1956. II. CURRENT SUBSTANTIVE PENAL CODE REVISION PROJECTS A. Revisions completed; not yet enacted (18) Alaska (Proposed Code not reported out of Judiciary in 1972 Legislative ses- sion; not reintroduced in 1973 Legislature). California (Proposed Criminal Code, Sen. Bill 39, introduced in Senate; Sen. Judiciary Comm. to hold hearings). Florida (Proposed revision of Tit. 44 introduced in Legislature April 1973). Idaho (Idaho Penal & Correctional Code, Title 18, enacted effective 1/1/1972 but repealed, effective 4/1/1972). Iowa (Iowa Criminal Code [Final Draft 19731 to be considered by 1974 Legislature). Maryland (Proposed new Code & Commentary: Part I published; Part II to be published fall 1973; may be introduced in 1974 Legislature). Massachusetts (Code & Commentary re-introduced in 1973 Legislature). Michigan (Revised Criminal Code re-introduced in 1973 Legislature: House Bill 4086; Sen. Bill 82; pending in Senate & House Judiciary Committees). Nebraska (Proposed Criminal Code [Final Draft, Oct. 19721 introduced in Jan. 1973 Legislature). New Jersey (Proposed new Penal Code & Commentary submitted to Governor & Legislature 12/1/1971. Oklahoma (Revised Code re-introduced in 1973 Legislature [Sen. Bill 221; pending in Sen. Judiciary Comm.). Puerto Rico (Proposed Code: Sen. Project 19 & House Project 27 rejected by 1972 Legislature; a new revised bill will be considered soon). South Carolina (Proposed Code with Commentary introduced in Legislature 4/5/1973; recommitted to Sen. Judiciary Comm.). Texas (Proposed Code: H.B. 514 & S.B. 34 introduced in 1973 Legislature). United States (Criminal Code Reform Act of 1973: S. 1400 & H.R. 6046 in- troduced March 1973. Criminal Justice Codification, Revision & Reform Act of 1973: S. 1 introduced Jan. 1973. H.R. 6046 in House Judiciary Committee. Sen. Judiciary Subcommittee on Criminal Laws & Procedures began holding hearings April 16 on S. 1 & S. 1400). Washington (Proposed Criminal Code to be re-introduced in fall 1973 Legislature). As of April 1973 (53 jurisdictions). The American Law Institute, 435 W. 116 St., N.Y.C. 10027. 28-238 0 - 74 - 11 PAGENO="0162" 158 B. Revisions well under way (6) Alabama (plan to introduce Code in 1975 Legislature). Arkansas. Indiana (plan to introduce Code in 1974 Legislature). Maine. Missouri (plan to introduce Code in 1974 Legislature). Tennessee (plan to introduce Code in 1974 General Assembly). C. Revision at varying preliminary stages (3) Arizona, Virginia, West Virginia. D. Revisions authorized-work not yet begun (1) North Carolina. Contemplating revision (3) Rhode Island, South Dakota, Vermont. III. No overall revisions planned (4) D.C., Mississippi, Nevada (recodification with minor changes enacted 1967), Wyoming. Mr. AARONSON. May I state at the outset that I represent not oniy myself as an individual, but the Criminal Code Revision Committee of the Young Lawyers Section of the Bar Association of the District of Columbia? And this committee is composed of both prosecutors and defense attorneys, mostly practitioners in the criminal law. One mem- ber is a member of the Department of Justice. If anything, the views of the committee tend to lean toward the prosecution side just because we have so many more articulate prose- cutors who have been active; but I want to stress that the recommenda- tions, which I am going to submit to you from this committee, are unanimous recommendations. First, let me say from listening to the testimony this afternoon, there seem to be two broad issues that have focused in your hearings. One seems to be what should the scope of the Revision Commission be? Should it be more narrow, I take it, in the view of Congressman Nel- sen to focus primarily on antiquated and anachronistic st'atutes, or should the function be broader to conform, perhaps, more to the lan- guage which appears in both bills, which goes further than those two functions? And the second broad issue seems to be whether criminal code re- vision should be combined with civil code revision. These seem to be the large issues, yet there are many subissues concerning the composition of the committee of this Commission. I would like to comment initially that Professor MacDonald testi- fied that he did not have an opportunity to study Congressman Nel- sen's bill; and therefore, could not really comment in detail upon it. Perhaps with more boldness than I have a right to take but based on reasons which I shall submit, I would like to comment on Congress- man Nelsen's bill in relation to the key question of whether it really seems to conform to the New York law revision concept. And I would like to argue and give you reasons before I get into the recommendations I wanted to give, why I think this bill is inconsistent with the philosophy, purpose, and operations of the New York Commission. PAGENO="0163" 159 Professor MacDonald's mere presence, I think, is revealing. This is a learned man who has spent over 20 years since-over 30 years since-1934 on this Commission, and this is characteristic of other members who have served. They have served long terms. They view this as a permanent body. LIFE OF COMMISSION Congressman Nelsen's bill provides a maximum term of 4 years for any members, and the initial members under one subsection expire March 31 after the establishment of the Commission, which I take it could be as short as 30 days if this Commission was only established at this point. So with respect to the terms of the members, I see a significant differ- ence and it would not accomplish the philosophy and objectives of the New York Commission. COMPENSATION Second, concerning the level of compensation of the persons on the Commission, I don't know if Mr. MacDonald testified to the fact, but my understanding is that he indicated to me that the present rate of compensation for members of that Commission is $14,000 a year. In Congressman Nelsen's bill, there is limit of $3,000 maximum compen- sation. And this is coputed at the rate of $100 a day, which I take it means that no more than 30 days participation. The New York Commission, I think, contemplates much more in- tensive involvement by learned scholars. Sc a maximum is placed on this, and then I take it, you're asking for the voluntary contribution of these individuals. I think you may be able to obtain that, but I see no reason why you should limit it at the outset, the compensation on that basis. CONSULTANTS Third, I think that the bill is inconsistent with the New York Commission in that it has no provision for contracting out. As Pro- fessor MacDonald testified, the review of the uniform commercial code was based on some of the top consultants in the country, and I know that the Congressman Diggs' bill provides for a contracting out among private institutions, among government agencies. I would submit that this is essential for the commission to get the information that is needed. Part of the underlying rationale for the Commission is to submit information to Congress that it needs in many technical areas. And there's no reason why the flow of information should be restricted, particularly after the commission members have been restricted. I would like to comment, before getting further into my statement, on this issue of whether criminal law revisions should be excluded at the outset, because the project is just too huge to be undertaken. First, I would argue, that this is very appropriate time to consider criminal law revision; that I understand that over $850,000 was spent on the Federal Conimission staff work. You may not like some of the proposals, but there is tremendous staff work in terms of volumes of particular papers from top eon- PAGENO="0164" 160 sultants around the country. It, in effect, is a new model penal code, because of the unique concept of jurisdictional basis. SCOPE OF COMMISSION My committee believes that a draft of revised Criminal Code for the District of Columbia could be submitted to Congress within 1 year, based on the tremendous staff work already available from that Com- mission, and based on work in other States. Also, I might add, part of the problem with criminal code revision is not that there's so much work, but I think the fear of all the controversies that will open up due to the multitude of value conflicts and social policy questions. I submit that the code could be revised because of the great need for it, leaving aside those key controversial questions that might tend to bog it down. So I would suggest at the outset that you should not exclude thinking about criminal code revision because' it might be to mammoth a project. Given the state of the amount of work that has `been done, and I do note that in Congressman Nelsen's bill, he does state as a priority review of the administrative law area, which seems to be a fairly broad man- date. I think careful study needs to be made in terms of priorities both in terms of perhaps achieving justice, as was testified by the previous witness, but a.lso in terms of the essential needs of the legal community and the needs of the citizens of Washington, as to whether criminal code revision is more important at the present time than administrative law revision. I think the best way to get into my statement is to focus perhaps on the concept of antiquatedness and anachronisms, which Mr. Hogan feels, should be the only function of such a law revision commission. Even assuming, for purposes of this discussion, that he is correct and both bills are amended to reflect the more narrow language; I submit that we would have a very difficult time trying to define what is an anachronism. And I would submit to you that the entire criminal code in the District of Columbia under a broad interpretation of that rule could still be considered by this committee. CRIMINAL CODE And let me explain what I mean. In 1966, the report of the Presi- dent's Commission on Crime in the District of Columbia noted the antiquated origin of the criminal code, its defects in co~rerage and its lack of systematic definition. Quoting from that report, "the District of Columbia Criminal Code was first codified in 1901, and has not been codified since." This codification was basically a collection and reorganization of the criminal statutes as they then existed. It did not examine general prin- ciples of criminal law, or undertake a systematic definition of criminal behavior. Many significant matters pertaining to the criminal law were ig- nored; so even in 1901, this was not a new criminal code. This was a collection of existing statutes; therefore, we have a criminal code that reflects the needs of the 18th and 1.9th centuries. PAGENO="0165" 161 So if we're looking for an example of antiquated law, I submit that we have one in terms of the Criminal Code of the District of Columbia. I think moreover the testimony of Judge Nebeker and Judge Reilly indicated examples both within the criminal law, such as three-card monte, and other examples of a tremendous number of antiquated statutes. So even if we limited the scope to just antiquated laws, I think the Nelsen bill is not even responsive to that need in terms of the limits on the terms of the members, the limit on contracting out, the limit on compensation and other provisions of that bill. Yet, there is a tremendous need in this community for this commis- sion and for it to have the powers it needs to do its job. I could spend considerable time giving you specific examples of these facts in the criminal code which are included in my statement. It runs some 10 to 15 pages, but I will not do that. But let me give you one illustration which I think is very, pertinent to illustrate a problem. It's a particular crime but I could give you 10 illustrations, and that is the crime of adultery, now in the District of Columbia Code. District of Columbia Code Section 22-301 implies that where an adultry is committed between a married women and an un- married man, both are guilty. But one committed between a married man and an unmarried woman, only the man is guilty. This illustrates, I think, is an example may I ask of an antiquated statute, you might say that on its face it's not antiquated unless we look to the needs of the time and the changing conditions and values. So I would submit that a responsible understanding of what is antiquated would require serious consideration of whether this statu- tory provision needed to be revised. One other example, and then I will let the committee refer to my statement if it wants more examples. The District of Columbia Code provides no classification scheme for sentencing purpose. Each statute contains its own statement of authorized punishment. One of my students informs me that he counted among the criminal statutes over 23 different authorized periods of incarceration, ranging from 30 days to life imprisonment, and at least 17 separate fines rang- ing from $1 to $5,000. These different periods of incarceration combine to create literally dozens of unique punishment categories. Mandatory minimum punishments are provided for some offenses, and appear to exhibit no pattern of rationality. For example, under District of Columbia Code Section 22-601, a mandatory 2-year penalty is provided for the crime of bigamy, while under District of Columbia Code 22-2801 no mandatory minimum punishment is imposed for forceable rape. Also the concepts~ of mandatory minimum punishment's, alongside with indeterminate sentencing statutes, seem to be in apparent conflict. Many examples unconsistency can be pointed out, and it would seem that serious consideration should be given to a sentencing pattern which classifies all criminal offenses into broad categories for sen- tencing purposes. AMENDMEW1~S PROPOSED I would like now to present to you the specific recommendations from my Criminal Code Revision Commission, and they begin on page 22 of my prepared statement. Because our committee lacks the PAGENO="0166" 162 feeling of assurance that a thorough, systematic as opposed to a piece- meal revision of the criminal code is likely to occur in the reasonable future, upon the enactment of H.R.. 7412-and I might point out that at the time, it did not have the Nelsen bill before it, and the same would clearly to point to that. We unanimously adopted the following resolution, with the sug- gestion that it be brought to the attention of the House District of Columbia Committee. First, it is recommended that Section 1 of H.R. 7412 be amended to increase the number of members of the Commission from nine members to not more than 15 members. In addition to the four mandated members, the U.S. Attorne~V or Ms designee, and the public defender or his designee should be added. In appointing the other members, in addition to the three members who are attorneys and members of the District of Columbia Bar, at least one of whom is a member of a law faculty of a law school within the District of Columbia, the Mayor should insure that the final composition of the Commission includes, to the extent practicable representatives from all segments of the community. While not part of the resolution as formally adopted, the view was also expressed that at least one of the Commission members should be a judge, and that one of the attorney members should be a member of the regularly practicing private bar handling criminal cases. Two. It is recommended that section 2 be amended to include the following language: "To undertake a thorough and systematic review of the substantive criminal law and to make appropriate recommendations." May I `add here that what our committee is asking is that Congress establish a priority in this bill, and that since it's our view th'at this could be done within 1 year and a 1-year reporting date could be pro- posed; that this would not unduly burden or swamp the Commission. Third, it is recommended that section 2 `be amended `to include the following language in order to implement the recommendation of the President's Commis- sion on Crime in the District of Columbia: "In the review of both civil and criminal common law, statutes, and judicial decisions, in r eceiving and considering proposed changes, and in making recommendations for changes in the law, revision of the substantive criminal law shall be accorded priority." Four, it is recommended Section 2 `be amended to include the following language: "An initial draft for revision of the substantive criminal law shall be submitted to Congress within 12 months after the appointment of the members of `the commission by the Mayor. The final draft shall be submitted to the Congress within 120 days thereafter." In addition to the `above four resolutions, the committee after dis- cussing how the organized bar could perform a constructive role in making available its expertise and in making a contribution toward early, thorough, and systematic revision of the substantive criminal law, unanimously adopted the following resolution. `If funding can be obtained to permit hiring a full-time staff, the Young Law- yers Section of the Bar Association of the District of Columbia, in cooperation with other segments of the organized B'ar in the District of Columbia, should undertake to provide the Commission with a proposed draft of a revised `sub- stantive Criminal Code for its consideration. In order to comment more specifically on some of the issues between H.R.. 7412 and H.R.. 7658, I would like to list several critical issues involved in establishing and staffing a Law Revision CommiFsion in th'e District of Columbia. And may I state that the rest of this state- ment is not the official statement of my commitee, but represents my own views. And I would like to pose certain questions concerning these two bills. PAGENO="0167" 163 COMMISSION COMPOSITION First, is it desirable that Coi'mission members be active working participants in the process of law revision or merely that members be available to provide policy guidance and to pass judgment on the work product of the staff? If the former is the more desirable direc- tion, limitations on payment and length of service in H.R. 7658 may be undesirable. Also, it suggests thwt membership on the Commission should be limited to a size that would permit a close working relationship to develop or that a larger membership should be divided into working panels or divisions. Two, should the Commission be viewed as a long term and, perhaps, permanent institution to continually monitor the functioning of our civil and criminal laws or should the Commission be viewed as a short term institution to achieve specific goals and then be abolished? My personal view is that it should be viewed as a long term com- mitment. Three, should the composition of the Commission be balanced ideo- logically, and, if so, how is this best obtained? With regard to criminal law revision should representation on the Commission by prosecutors be balanced by representation from the Public Defender Service and from the private defense bar? May I add in this respect that the Nelsen bill provides for two members to be appointed by the Corporation Counsel, and I believe two members to be appointed by the U.S. attorney's office; and yet provides that no members *be appointed by the Public Defender's Service or to represent the private criminal bar. And so, if Criminal Code revision were to be undertaken under the Nelsen bill, there might be claims, and perhaps somewhat sup- porbed, that it might provide for unbalanced representation. Related to this question is whether the Commission should recieve input from various segments of the community, and, if so, how is this best achieved? Should there be an attempt to insure that community representation is reflected in the composition of the Commission? Mr. FAITNTROY. Before you move on, would you care, as you've done in the previous instances, to indicate your answer to these questions? It would save ustime. NON-LAWYERS Mr. AARONSON. With regard to three, I would point out that the Nelsen bill requires that all members be attorneys, and does not require that they be members of the District of Columbia Bar; whereas my understanding of the Diggs bill is that it does not require all members to be attorneys, but that the Mayor shall appoint at least three attorney members, who are members of the District of Columbia. Under the Nelsen bill, there is perhaps a greater danger because of this, that the community will not be represented; not that this requires nonlawyers, but that even the lawyer members won't repre- sent the needs of the community if they're not even licensed to practice here. They may not have the feeling for the community. It certainly would be possible to contract out under the Diggs bill to make sure that the views of the top and most competent lawyers if PAGENO="0168" 164 they wouldn't be presently members of the District of Columbia Bar would be reflected in the Commission work. I'm not arguing that all lawyers perhaps should be required to be members of the District of Columbia Bar, but this would be one method perhaps to insure some representation of community views. I find it very difficult as to the question of whether there should be only attorneys. I find my sympathy with Professor Lazar's comments, and I think that the New York approach at least left the door open for qualified nonattorneys. I see no purpose to close the door. There may be some extremely competent and unusually well qualified individuals who are not attorneys. SCOPE OF COMMISSION Four, is the criminal law such a specialized field that Criminal Code revision is best achieved by a special commission or a special division of a law revision commission, or alternatively, is it important that persons knowledgable in the criminal law and the practice of criminal law in the District of Columbia be included as members of the Commission? The residents of the District of Columbia have waited so long for criminal code revision, that should this Committee put it aside for a special commission, I personally have a fear that such a special commission might not be established. And that the hopes from the recently reconstituted Diggs Committee and the renewed interest in criminal law reform, that is has engendered, might be dashed by putting this aside in a special commission, unless that became part of this bill, to show that the committee was not putting it aside. But my view is that if it is undertaken by this Law Revision Com- mission, it certainly does require expertise, and at least some of the members should be selected to reflect an expertise with the criminal code, which does require specialized knowledge. Fifth, what should be the role of the Law Revision Commission in relation to the organized bar associations in the District of Colum- bia? Should bar associations be encouraged to take the initiative and present initial drafts of recommended changes in the law or, alternatively, should such organizations be encouraged to participate actively with the Commission staff in the preparation of studies and recommendations, or merely should the organized bar be regarded as an organization which is invited to comment upon and respond to Commission reports and recommendations? My view is that there should be as free and complete an exchange between the bar and this Commission as possible, so that maximum information can be transmitted. And that the Commission should seek assistance from the bar, where the bar is willing and able to provide it; iust as it should seek assistance from other organizations. Six, how valuable is the accumulated expertise and experience of Commission members to the continued work of the Commission as compared with other considerations suggesting a greater turnover of commission members? If accumulated expertise and experience is an important asset, relatively long terms and liberal reappointment provisions would seem to be desirable. PAGENO="0169" 165 And I think the New York experience suggests, and the success of that Commission suggests the value of the experience and the conti- nuity of members. Eight, if some priorities for law revision projects are not initially indicated in the legislation creating the Law Revision Commission, both between criminal and civil law reform, and among civil law revision projects, how can the most competent individuals be selected to be Commission and staff members, since relatively few persons have general expertise in a wide variety of areas? Or, to turn the question around, will not priorities-if not spelled out in the legislation-be determined among Commission members, in part, on the basis of their particular background and interests? If so, is there any reason to expect that the priorities to be determined by the Commission members will coincide with the priorities of Con- gress, unless some formal or informal direction is exerted in the selec- tion of projects? Who is most qualified to ascertain these priorities? What processes can be devised to insure that priorities in the selection of projects reflect the needs of the residents of the District of Columbia? I believe that Professor MacDonald testified regarding some tech- niques used by the New York Commission. I would strongly urge that initially that some priorities be spelled out, and I would urge this committee to most seriously consider whether the criminal law should not receive top priority. I think that once the priorities are determined, it will then be easier to select the members, since the initial `members might be selected with the thought that they would provide inpu't into the first crucial proj- ects, which will really determine the credibility of the Commission, and perhaps its continued functioning. That's the end of my prepared remarks. Mr. FAUNTROY. Thank you. I certainly appreciate and I'm sure the members of the committee do, the thorough, exhaustive work that you put into preparing your statement. And' we certainly appreciate it. I do appreciate your also omitting yur references to issues that we've already discussed in some detail. CRIMINAL CODE I have simply one question, and that is; given your desire to see us establish priorities for revision of criminal code, what leads you to be- lieve that that `could be accomplished within the space of 1 year? Mr. AAR0N50N. This was the opinion of the committee, and not my own opinion; although I would tend to concur with it. Some members of our committee have put input into the Federal projects and have had experience with criminal law reform. Our committee itself has over 100 papers from students providing `an analytical comparison between the existing District of Columbia Code and the proposed Federal Code to determine the differences as staff members themselves have submitted over a dozen papers suggest- ing directions for `a reform. Exhaustive study has been undertaken in other States, such as the New York Penal Code. There is just an abundance of information available. PAGENO="0170" 166 And if we brush aside the most controversial provisions, some of the provisions, there would clearly be a consensus. There's no organization scheme in the code. Defenses have not been codified. There is just many antiquated provisions and inconsistent provisions, and there are people very knowledgeable iii the criminal laws who are practitioners who know most of the decisions who are scholars in this area. And it would take a very brief time to come up with an agreement on what are the most essential defects. So I would submit that it would be feasible to come up with a draft in 1 year. Mr. FAUNTROY. I'm going to end my questioning, and I'll ask Coun- sel to `ask, and he is advised that he has a 5-minute rule. Mr. HOGAN. Thank you, Mr. Chairman. I have a question, Mr. Aaronson, as to what your position is, in the statement filed? Is this your statement or is this the bar association's statement? Mr. AARONSON. This is my statement, and the only part that reflects the Criminal Code Revision Committee, Young Lawyers Section, Bar Association of the District of Columbia, is the resolution which I read, and that is the only thing which I have been authorized to communi- cate to this committee. Other than that, this is my statement. Mr. HOGAN. In other words, your statement here that this is on be- half of the Crimina.l Code Revision Commission of Young Lawyers Section, Bar Association of the District of Columbia; the only thing that you're authorized to make the statement with respect to is that contained-starting on page 22 going through 23, and winding up at the top of page 24. Is that correct? Mr. AARONSON. Yes, sir. That is correct. Mr. HOGAN. Has that been approved by the bar association or the young lawyers section or just your committee? Mr. AARON5ON. Neither. It's been transmitted to them. There has been no meeting that I'm aware of it that has formally considered it. They previously had authorized our committee to undertake a grant to see if we could begin a full-time staff of our own, if there was no other initiative. And at that time, they unanimously authorized us to go ahead with criminal code revision, feeling it was very important. But this specific statement has not been approved. Mr. HOGAN. By the bar association? Mr. AARONSON. Yes, sir. Mr. HOGAN. Yes: I see. The reason that I'm concerned is I see that Mrs. Wilson is here on be- half of the District of Columbia Ba.r Association~ and I wanted to be sure who was speaking ~or the bar association, whether it's the young lawyers section, you or Mrs. Wilson. And I gather that the only statements that have been approved are the one through four items appearing on 22,23, and 24. Is that correct? Mr. AARONSON. Yes, sir. Mr. HOGAN. So that your statements that are critical of the Nelsen Commission or the Nelsen bill are your own personal views, is that correct? Mr. AAR0N50N. That is correct. PAGENO="0171" 167 Mr. HOGAN. Well, I merely want to be sure that the minority mem- bers give due consideration to the testimony based on its source. Now, you talked about the observations of Mr. MacDonald with re- spect to the Nelsen bill. His statement was to the effect that the function of the Commission in the State of New York is to propose statutory correctives for maladjustments in the substantive law. And I think you heard him say that he only undertook, and his Commission only undertook reform of titles of the code up there, when they got specific authorization from the State legislature. Were you here when he was testifying to that respect?. Mr. AARONSON. Yes, I was. Mr. HOGAN. So then what you are recommending, the reform Crim- inal Code, is your own personal view, but would you have them go back to Congress and obtain approval for this, or do you feel they have au- thority to do that? Mr. AARONSON. I think what I'm suggesting is consistent with Pro- fessor MacDonald's statement; is that I'm suggesting that Congress mandate this as a priority so they will have to do it, or they'll give them the legislation. Both bills, I think they're authorized to undertake that without that direction. But I would suggest that the direction should be given. COMPENSATION Mr. HOGAN. And how much do you think that the Commission's people who serve on this Commission, this particular Commission, should be paid to perform their services? What would be your personal opinion? Now, I assume since you're not authorized to speak- Mr. AARONSON. Perhaps the fairest method is on the basis of work performed. Mr. HOGAN. How much would you pay them? Mr. AARONSON. I would not disagree with the rate in your bill. Mr. HOGAN. $100 a day, $200 a day, or what figure would you prefer? Mr. AARONSON. I would be willing-I am not an expert on this, and haven't given it much thought. But I would respect your expertise in the figure in your bill. Mr. HOGAN. It's not my bill. It's Congressman Nelsen's bill. Mr. FATINTROY. Including the $3,000 limitation? Mr. AARONSON. Without the limitation, j'ust in terms of the daily rate to compensate time for the number of days. Mr. HOGAN. Now, as far as the contracting out, there's nothing in the Nelsen Commission bill .that prevents that. Do you see anything in there, any prohibition against that? Mr. AARONSON. They enumerate the powers, and this is not stated in `the powers. The one interpretation might be that the committee would not have these powers. Mr. HOGAN. So in order to have that clear, it would it appear, that you desire specific authority in the bill itself? Mr. AARONSON. Yes, sir. PAGENO="0172" 168 LIFE OP COMMISSION Mr. HOGAN. And as far as the 4-year limitation is concerned, you've heard the testimony here, that this doesn't necessarily limit the life of the Commission. The life of the Commission may be extended by Congress. Mr. AARONSON. But the 4 years is a limitation on individual mem- bers on the amount they can serve. Mr. HOGAN. That is correct, and as I indicated before, this is a pro- vision which was inserted at the request of Congressman Fuqua be- cause of his experience with this committee. And he felt that commis- sions that come before Congress, should have a limitation on their early existence that requires approval for continuance. He considered that Congress should have an opportunity to observe whether such Commissions are doing their job or not before they be made permanent. Were you here when that statement was made? Mr. AARONSON. I may have been out briefly. I don't specifically recall. Mr. HOGAN. But you would not have any limitation whatsoever on the life of the Commission, or particularly this Commission here? Mr. AARONSON. I think it should be regarded as a permanent Com- mission, but as Professor MacDonald so aptly stated, they are beholden to Congress and the budget is an appropriate, yearly critique and re- view of the Commission. And certainly, even if there was no specific provision, Congress could abolish it at any time it felt it wasn't doing its job. Mr. FATJNTROY. The time for Counsel has expired, and I would recommend that he submit in writing his questions to Mr. Aaronson for his personal views on this question. Mr. HOGAN. I thank the Chairman, and I've finished questioning the witness, Mr. Chairman. Mr. FAUNTROY. Mr. Daniels? Mr. DANIELS. I have no questions. Mr. FAUNTROY. Mr. Freeman? Mr. FREEMAN. I have just one statement. I'd like to thank Professor Aaronson on behalf o" Chairman Diggs and the full committee for his help on this, and his thorough back- ground. But I just wanted to ask one question. Is your statement then if the law revision commission bill is passed relatively in some form, close to one of the two bills that we've got, given the authority to contract out, that if the bar association were given that contract in a year they'd be able to provide us with a. draft of the criminal code? Mr. AARONSON. This would permit the bar association to hire a staff of full-time professionals. I think the bar association would have to answer that. I'm not authorized to answer that on behalf of them. Mr. FREEMAN. What's your guess that it would cost? If you got that, what would the cost be for that contract? Mr. AARONSON. At one point, we were discussing a grant application with LEAA which is under $100,000. But I would say funds in that neighborhood or less. If you have perhaps two or three full-time employees and maybe a staff director, that would probally be sufficient staff to do it. Mr. FAUNTROY. Thank you, Mr. Aaronson. PAGENO="0173" 169 Mr. AARONSON. Thanks, Mr. Ohairman. Thank you very much, Mr. Chairman. Mr. FAUNTROY. Finally, I want to welcome Dorothy Wilson, the attorney who has been here all afternoon to present a statement on be- half of the District of Columbia Bar Association. And let me say that I am still male chauvinist enough to feel that she should have been first in this hearing. STATEMENT OP DOROTHY WILSON, DISTRICT OP COLUMBIA BAR ASSOCIATION Mrs. WII4soN. Thank you, Mr. Chairman. My statement is going to be very brief. I am appearing today on behalf of the Bar Association of the Dis- trict of Columbia, which is the voluntary bar association. And I might say at this point that the ba~r association is grateful to this committee for the opportunity to express its views in connection with H.R. 7412 and H.R. 7658. The Bar Association of the District of Columbia strongly supports the concept of a Law Review Commission for the District of Columbia or a District of Columbia Law Revision Commission as contemplated in these two bills. NEED FOR COMMISSION After a thorough consideration of the function which such a Com- mission would serve in the total operation of law and justice within the District of Columbia, the bar association is firmly convinced that the establishment and adequate funding of a Law Review Commission or a Law Revision Commission would be of immeasurable benefit to the District of Columbia by providing a systematic method by which the statutory law can be kept responsive to the rapidly changing needs of the community. It would stnicture the method by which public officials, jurists, lawyers, bar associations, other professional organizations, and representatives of the general public, whenever inequities, ambigu- ities, or anachronisms in the statutory and case law are encountered, can transmit these shortcomings to a central unit of government with primary responsibility in the area of law revision and reform. It would also provide a channel for the transmission of recoimnenda- tions promoting uniformity of legislation in the United States. Such a Commission would be in a position to draw upon the total resources of the legal community, including the faculties of the various law schools in the Washington area. This would permit the application of a cross-section of legal thinking to problems of law revision as well as to provide an objective approach `to these problems. Recommendations for legislative action would result after intennive study and exploration of all possible points of view and, as a result, the quality of these recommendations would be of the highest caliber. The Commission could serve as a repository for legal research. Materials from other jurisdictions could be collected which would be of value in undertaking a comparative study of the ways by which other jurisdictions approach current legal problems. The constantly changing community needs make it imperative that a systematic approach to law revision and reform be developed. The PAGENO="0174" 170 present system, which relies, for the most part on individual initiative is not adequate to maintain a legal system which is in harmony with modern conditions. The Bar Association of the District of Columbia fully supports the concept of a Law Review or Revision Commission as a means of cm- recting this deficiency. The interval between the time that these bills were introduced and the last meeting of the board of directors of the bar association was so brief that it was impossible for the association to study the two bills in any comprehensive manner. Rather than make a judgment based on a cursory study of the two measures, the bar association concluded that as between the two approaches for appointing the Commission which are contained in the respective bills, it is not in a position to express a view. RECOMMENDATIONS However, the bar association does urge that care be taken that the Commission be properly staffed and funded and that it be established with a view to continuation on an indefinite basis. It is also the view of the bar association that the Commission, as proposed in either bill, would be adaptable to future home rule develop- ments for the District of Columbia. In fact, successful activities of the Commission, established and staffed in such a way as to receive suggestions and analysis from a broad spectrum of the com- munity, would contribute to home rule. In conclusion, the Bar Association of the District of Columbia fully supports the concept of the establishment of a Law Review or Revision Commission for the District of Columbia, and urges that such a Commission be properly staffed and funded and that it be established on a permanent basis. Again, may I express, on behalf of the Bar Association of the Dis- trict of Columbia, my appreciation for the opportunity to appear before this committee. Mr. FA1JNTROY. Thank you so much, Mrs. Wilson. Did you have an opportunity to discuss at all the size of the Oommission! Mrs. WILSON. No. As I stated in my statement, the bills came to the bar association just shortly before the last meeting of the board of directors, and there wasn't any time for any real consideration, or at least they didn't wish to take a position without giving it more thought, and it was all within a matter of days. But as far as the concept is concerned they have been thinking about this for a good many years. So I can say without any question that they fully support the concept. Mr. FATINTROY. Thank you. Minority counsel? Mr. HOGAN. Thank you, Mr. Chairman. Mrs. Wilson, this is a statement approved by the board of directors of the Bar Association? Mrs. WILSON. Yes. PAGENO="0175" 171 Mr. HOGAN. Do you know whether they had an opportunity to ex- amine the recommendations contained in Mr. Aaronson's statement? Mrs. WILsoN. No, I don't know whether that came before-whether they were received prior to the board of director's meeting or not. Mr. HOGAN. But it was not brought up during- Mrs. WILSON. It was not brought up, that's right. Mr. HOGAN. Now, you would have the Commission perform the broadest kind `of function, I gather. You would have them do the reviser's work in the broadest kind of study of criminal law, civil laws, and administrative law. Mrs. WILSON. I think that is the position of the bar association, yes. Mr. HOGAN. Now, as far as the appointment of the members and so forth, or the size, as the chairman has indicated, the board of directors didn't get into that? Mrs. WILSON. They didn't take a position on it, primarily because there wasn't time to give it their considered opinion. Mr. HOGAN. Fine. Thank you very much. Mr. FAUNTROY. Any more questions? Mr. FREEMAN. No questions. Mr. DANIELS. No questions. Mr. FAUNTROY. Thank you very much. And the hearing is drawn to a close. [Whereupon, at 5:45 p.m., the committee adjourned.] 0 PAGENO="0176"