BILL ANALYSIS ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 205| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 445-6614 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ THIRD READING Bill No: AB 205 Author: Goldberg (D), et al Amended: 8/21/03 in Senate Vote: 21 SENATE JUDICIARY COMMITTEE : 5-1, 7/1/03 AYES: Escutia, Cedillo, Ducheny, Kuehl, Sher NOES: Ackerman NO VOTE RECORDED: Morrow SENATE REVENUE & TAXATION COMMITTEE : 4-3, 7/9/03 AYES: Cedillo, Alpert, Bowen, Burton NOES: Poochigian, Ashburn, Knight SENATE APPROPRIATIONS COMMITTEE : 7-4, 8/25/03 AYES: Alpert, Bowen, Escutia, Karnette, Machado, Murray, Speier NOES: Battin, Aanestad, Johnson, Poochigian NO VOTE RECORDED: Ashburn, Burton, ASSEMBLY FLOOR : 41-32, 6/4/03 - See last page for vote SUBJECT : Domestic partnerships: rights and responsibilities SOURCE : The Gay, Lesbian, Bisexual, and Transgender Legislative Caucus Equality California (EQCA) DIGEST : This bill enacts the California Domestic Partner CONTINUED AB 205 Page 2 Rights and Responsibilities Act of 2003. Specifically, this bill (1) recasts the amendments made to the Domestic Partnership Act by various bills enacted over the last four years, that granted to registered domestic partners specified, but limited, rights and benefits, and (2) on and after January 1, 2005, extends to registered domestic partners substantially all rights, benefits, and obligations of married persons under state law, with the exception of rights, benefits, and obligations accorded only to married persons by federal law, the California Constitution, or initiative statutes. ANALYSIS : Existing law establishes rules relating to valid marriages, and specifies the rights and obligations of married persons. Existing law, Proposition 22, established by initiative that only a marriage between a man and a woman is valid or recognized in California. Existing law defines "domestic partners" as "two adults who have chosen to share one another's lives in an intimate and committed relationship of mutual caring" and who file a Declaration of Domestic Partnership with the Secretary of State. The law allows domestic partnerships only to same-sex couples over the age of 18, or to opposite-sex couples where at least one of the domestic partners is over the age of 62 and is eligible for old-age social security benefits, who are not blood relatives, not married to others, not members of another domestic partnership, and who share a common residence and agree to be jointly responsible for each other's basic living expenses incurred during the partnership. A domestic partnership, once registered, may be terminated by either party by sending a notice to the other party, and filing a Notice of Termination of Domestic Partnership to the Secretary of State. A domestic partnership also is terminated if one partner dies or marries. Existing law grants domestic partners specified rights, similar to those granted married persons. This bill expands the rights of and impose responsibilities on registered domestic partners, similar to the rights and AB 205 Page 3 responsibilities conferred on married couples by state law. This bill requires that domestic partners submit to the jurisdiction of the superior courts as a condition of registration as domestic partners, and give them access to the courts to resolve issues such as child custody, support, and visitation, termination of the domestic partnership and division of partnership property and other related issues similar to those that arise in dissolution or nullity of marriage or in legal separation. This bill makes the filing of an intentionally and materially false Declaration of Domestic Partnership with the Secretary of State a misdemeanor. This bill makes these changes effective on January 1, 2005, requires the Secretary of State on three separate occasions to inform domestic partners of these changes, and requires the State Department of General Services (DGS) to notify all state agencies to review and change their public-use forms to reflect appropriate references to domestic partners or partnerships wherever references to married persons or marriages are made. New Rights and Responsibilities This bill provides that, effective January 1, 2005, (1) registered domestic partners (here used interchangeably with domestic partners) shall have the same rights, protections and benefits, as well as the same obligations, responsibilities, and duties of married persons (spouses) under state law, (2) former domestic partners would have the same rights and obligations that former spouses now have, and (3) surviving domestic partners shall have the same rights, protections and benefits as are granted to a surviving spouse of a decedent. This bill grants to domestic partners the same rights, protections and benefits as well as duties, obligations or responsibilities provided spouses under statutory, case, or regulatory law, court rules, or as provided by governmental policy or other sources of law, including those rights and obligations with respect to a child of either of the AB 205 Page 4 partners, former partners, or surviving partner. Some of the rights and obligations, as applied to domestic partners: 1. The right to financial support during and after the relationship has terminated. 2. Joint ownership of property (similar to community property), and equitable division of the partnership's property upon termination of the partnership by dissolution or legal separation. 3. Custody, support and visitation of children of either or both partners born before or after the registration of the partnership or adopted after the registration of the partnership. 4. The right to make anatomical gifts, consent to autopsy and make funeral arrangements for a deceased partner, and for a deceased partner to be buried in family cemeteries. 5. The right to benefits, such as family care and medical leave, medical, dental, life and disability insurance, pension and death benefits for surviving partners of firefighters and police officers. 6. The mutual responsibility for debts to third parties incurred during the partnership. 7. Protection from discrimination in housing and employment, and entitlements to benefits accorded spouses of employees or applicants. 8. The right to exercise the "marital communication" privilege, as provided by the Evidence Code. 9. The right to receive government-provided or government-regulated benefits, such as workers' compensation, public assistance, transfer of licenses upon death of a domestic partner. 10. The ability to apply for an absentee ballot for AB 205 Page 5 a partner. 11. The ability to make legal claims that are dependent on family status, such as claims against victims' compensation funds. 12. The fiduciary nature of the partner's duties towards each other. 13. Other rights and responsibilities derived from case law, government regulation or policy. This bill provides, however, that in filing their state income tax returns, domestic partners are required to use the same filing status as is used on their federal income tax returns, or that would have been used had they filed federal income tax returns. Earned income may not be treated as community property for state income tax purposes. Right to Community Property upon Termination of Domestic Partnership This bill repeals the current provision dealing with joint property of the domestic partnership and instead confer the same rights and obligations on domestic partners, former domestic partners, and surviving domestic partners, that current law confers on married couples. The current provision requires the partners' property to be apportioned according to any agreement the partners may have had prior to acquisition of the property. This bill does away with the need to enter into such agreements, and treats such property the same as property of married couples is treated. Similarity of Termination of Domestic Partnership to Termination of Marriage This bill provides an expedited or simplified procedure for terminating a registered domestic partnership (similar to a summary dissolution procedure) as well as the normal procedure that requires a petition in superior court (similar to a petition for dissolution, nullity or legal separation). AB 205 Page 6 Under existing law, a registered domestic partnership is terminated by the death of one partner, by a written notice sent by one partner to the other that he or she is terminating the partnership, by the marriage of one partner, or by the partners no longer having a common residence. The law requires at least one partner to file with the Secretary of State a Notice of Termination of Domestic Partnership, and the partner who provided a copy of the Declaration of Domestic Partnership to a third party for the purpose of qualifying for a benefit to provide a copy of the Notice of Termination to that third party within 60 days. This bill repeals this law, and instead creates two procedures for terminating a domestic partnership. The first procedure is akin to a summary dissolution proceeding, which allows married couples who have marriages of short duration, in this case, less than five years, have no children, have little or no assets and little or no debts, and have no real property interests to simply file a joint petition for dissolution of their marriage, for which the court enters a judgment six months later, unless either party revokes the petition. This bill adopts this summary dissolution proceeding, including that the parties waive their rights to any support from the other domestic partner and that the legal effect of this truncated procedure is the same as a judgment of dissolution of a domestic partnership, except that the process substitutes for the Notice of Termination that is filed with the Secretary of State. Thus, registered domestic partners who meet the same requirements as married couples that qualify for the filing of a summary dissolution may terminate their partnership simply by filing the Notice of Termination with the Secretary of State, avoiding the need to access the courts. This bill also permits a domestic partner to terminate a registered domestic partnership by filing a petition for dissolution or nullity of the partnership, or a petition for legal separation of the domestic partners. The language of the bill gives registered domestic partners the same rights and responsibilities as married couples in this AB 205 Page 7 process, except that the residency requirement (six months in state, three months in county of residence) does not apply. All procedures applicable to the dissolution, nullity, or legal separation of married persons would otherwise be applicable to domestic partners, including rights of appeal and entry of judgment nunc pro tunc. As in the case with summary dissolutions, this bill permits a domestic partner to institute an action to set aside the termination of the domestic partnership via the filing of a Notice of Termination, on the grounds of fraud, duress, mistake or any other ground recognized in law or equity. The court may then set aside the termination resulting from the filing of the Notice with the Secretary of State. This bill recognizes legal unions of the same sex that was validly formed in another jurisdiction as substantially equivalent to registered domestic partnerships in the state, whether or not the legal union is called a domestic partnership, and thus accords those legal unions the same status, rights, and obligations. Legislative Counsel Bureau states AB 205 does not amend Proposition 22 In an opinion dated March 24, 2003, the Legislative Counsel Bureau states that the enactment of this bill does not constitute an amendment of Proposition 22, the California Defense of Marriage Act, which enacted Section 308.5 of the Family Code. Section 308.5 states that "[o]nly marriage between a man and a woman is valid and recognized in California" and that therefore, this bill, if enacted, does not require the approval of the voters. The opinion concludes that "nothing in the language of the initiative statute [Family Code Section 308.5], nor in the ballot arguments in support of the initiative, indicates any intent or requirement that the Legislature be limited in its authority to enact new laws regarding the rights and obligations of domestic partners?Therefore, following the enactment of AB 205, the definition of marriage under California law would be unchanged. Same-sex partners in California would not be allowed to marry but would only be authorized, as they are today, to enter into a domestic AB 205 Page 8 partnership. The procedures and criteria for creating and terminating the two relationships would continue to be different?[AB 205] would merely prescribe the rights and obligations that would inure to parties to a domestic partnership. At the same time, the rights and obligations of parties to a marriage would be unchanged." This bill requires the Secretary of State to send several notices out to registered domestic partners and to provide a notice attached to an application regarding the changes to the domestic partnership law that will take effect January 1, 2005. The notice lets registered domestic partners know that unless they terminate their domestic partnership according to the law existing prior to that date, they will be subject to the new provisions governing registered domestic partnerships, and may not terminate their relationship without seeking a court ordered dissolution. In addition, this bill requires the Director of DGS to provide notices to all state agencies and management personnel that when government forms are revised, appropriate references to domestic partners and domestic partnerships are to be included. Background AB 26 (Migden), Chapter 588, Statutes of 1999, enacted the Domestic Partnership Act, established the statewide domestic partnership registry, provided registered domestic partners hospital visitation rights, and granted health benefits to domestic partners of state employees. In the following year, SB 2011 (Escutia), Chapter 1004, Statutes of 2000, qualified registered domestic partners for housing in specially designed accessible housing for senior citizens. Two years later, AB 25 (Migden), Chapter 893, Statutes of 2001, granted 12 new rights and benefits to registered domestic partners, including the right to sue for wrongful death, to use employee sick leave to care for an ill partner or partner's child, to make medical decisions on behalf of an incapacitated partner, to receive unemployment benefits if forced to relocate because of a partner's job, and to adopt a partner's child as a stepparent. SB 1049 (Speier), Chapter 146, Statutes of AB 205 Page 9 2001, permitted San Mateo County to offer death benefits to surviving domestic partners of county employees. In 2002, the following bills were enacted: AB 2216 (Keeley), Chapter 447, granted a domestic partner inheritance rights if his or her partner dies without a will, AB 2777 (Nation), Chapter 373, added Los Angeles, Santa Barbara and Marin Counties to those permitted to offer death benefits to surviving domestic partners of county employees, SB 1575 (Sher), Chapter 412, added domestic partners to those exempted from the prohibition on receiving from a will or trust that one helped to draft, and SB 1661 (Kuehl) granted six weeks of paid family leave to employees to care for a sick spouse or domestic partner. AB 1338 (Koretz) of 2001 established civil unions for domestic partners in California, but the bill was held in the Assembly Judiciary Committee. Related Legislation AB 17 (Kehoe) prohibits the state from contracting with a vendor or contractor that does not provide the same benefits to domestic partners of employees that they provide to spouses of employees. This bill is in the Senate Appropriations Committee. AB 1082 (Laird) expands the coverage of health benefits provided by a local contracting agency to those domestic partnerships that existed prior to January 1, 2000, if the local agency had adopted a local definition of domestic partnership prior to passage of the Domestic Partnership Act. This bill is on the Senate Floor. FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes Local: Yes According to the Senate Appropriations Committee: Fiscal Impact (in thousands) Major Provisions 2003-04 2004-05 2005-06 Fund PERS-Admin. AB 205 Page 10 ----------------minor------------------General PERS-State -------minor, if any increase-------- PERF retirement & death benefits Health benefits ----------------minor------------------PERF PERS-contracting --------------unknown----------------Local agencies SOS notifications minor -- --General Local mandate --Unknown, offset by filing fees--Local Courts --Unknown, offset by filing fees--General SUPPORT : (Verified 8/27/03) The Gay, Lesbian, Bisexual, and Transgender Legislative Caucus (co-source) Equality California (EQCA) (co-source) Lieutenant Governor Cruz Bustamante Secretary of State Kevin Shelley Office of the Attorney General AIDS Legal Referral Panel AIDS Project Los Angeles Alianza Network Services American Civil Liberties Union American Association of University Women-California American Federation of State, County, and Municipal Employees, AFL-CIO Anti-Defamation League Asian Law Caucus Bay Area Lawyers for Individual Freedom Being Alive Los Angeles, Inc. Billy DeFrank LGBT Community Center California Commission on the Status of Women AB 205 Page 11 California Conference of Local AIDS Directors California Faculty Association California Independent Public Employees Legislative Council California Labor Federation, AFL-CIO California National Organization for Women California Nurses Association California School Employees Association California State Employees Association California State Teachers' Retirement System California STD Controllers Association California Teachers Association California Women's Agenda Central American Resource Center Chinese for Affirmative Action City and County of San Francisco City of West Hollywood Claremont United Church of Christ, Congregational Coalition California Welfare Rights Organizations, Inc. Coalition LA Congregational Church of Belmont Congregation Kol Ami (West Hollywood) Congregation Sha'ar Zahav (San Francisco) Consumer Attorneys of California Eleanor Roosevelt Democratic Club Elections Committee of the County of Orange Equal Rights Advocates Family Builders by Adoption First Congregational Church, UCC (Pasadena) First Presbyterian Church (Baldwin Park) First Presbyterian Church (Palo Alto) Gay & Lesbian Community Services Center of Orange County Gray Panthers Holy Redeemer Lutheran Church (San Jose) Human Rights Campaign Human Rights Watch Human Rights/Fair Housing Commission of the City and County of Sacramento Irvine United Congregational Church Japanese American Citizens League Le Mesa Community Church (Santa Barbara) Lambda Legal Defense and Education Fund, Inc. Lawyers' Committee for Civil Rights of the San Francisco Bay Area Legal Aid Society Employment Law Center AB 205 Page 12 Legal Services for Children, Inc. Little Brown Church of Sunol Los Angeles Gay & Lesbian Center Love Sees No Borders (Sunnyvale) Mayor of the City of Los Angeles Metropolitan Community Church Los Angeles Metropolitan Community Church in the Valley (North Hollywood) Metropolitan Community Church of the Coachella Valley Metropolitan Community Church of San Francisco Mexican American Legal Defense and Educational Fund Mira Vista United Church of Christ (El Cerrito) National Association of Social Workers, California National Central for Lesbian Rights National Conference for Community and Justice National Gay and Lesbian Task Force National Latina/o Lesbian, Gay, Bisexual & Transgender Organization National Organization for Women (San Fernando Valley - Northeast LA Chapter) Niles Congregational Church (Fremont) Northminster Presbyterian Church of El Cerrito Older Women's League of California Our Family Coalition Out & Equal Workplace Advocates Pacific Pride Foundation Parkside Community Church (Sacramento) People For the American Way Pioneer Congregational Church (Sacramento) PFLAG-San Francisco PFLAG-San Jose/Peninsula Chapter PFLAG-Ventura County Redwoods Presbyterian Church (Larkspur) San Diego Democratic Club Santa Barbara County Democratic Central Committee Southern California HIV Advocacy Coalition Southern California Nevada Conference United Church of Christ St. Paul Lutheran Church (Oakland) Stonewall Democratic Club of Greater Sacramento Stonewall Democratic Club of West Hollywood Tenderloin Housing Clinic The Center of San Diego County The Lambda Letters Project AB 205 Page 13 The Sexual Orientation Bias Committee of the Los Angeles County Bar Association Transgender Law Center University Lutheran Chapel (Berkeley) Wesley United Methodist Church (Fresno) West Hollywood Democratic Club West Hollywood Presbyterian Church Zuna Institute 916 individuals OPPOSITION : (Verified 8/27/03) California Catholic Conference Campaign for California Families Committee on Moral Concerns Eagle Forum of California ARGUMENTS IN SUPPORT : This bill is supported by a long list of organizations, local governments, public officials, and individuals. A sampling of their statements follow: "By strengthening the legal ties that bind domestic partners, AB 205 will ultimately reinforce the bond of loyalty and responsibility that comes with lifelong companionship. Granting these rights will further the state's interest in promoting stable and lasting family relationships." [Letter from Lieutenant Governor Cruz Bustamante, dated May 23, 2003.] "The state has a significant interest in supporting strong families that are able to support themselves, care for children, access timely medical care, and buy homes. Enabling individuals to responsibly support and protect their families requires that these individuals be given the same legal rights, obligations and protections as families led by married couples." [Letter from the Aids Project Los Angeles, dated February 27, 2003.] "AB 205 sets forth clear rights and privileges that will allow individuals who are in committed relationships to take appropriate responsibility and protect their economic rights. This measure provides the opportunity and avoids the financial and emotional disruptions that occur when legal rights are not clearly provided." AB 205 Page 14 [Letter from California School Employees Association, dated June 23, 2003.] "We appreciate that the Domestic Partner Rights and Responsibilities Act of 2003 is a major step forward for California, providing legal protection of families. The rights, benefits, and obligations that will be extended to domestic partners and their children under AB 205 are vital to those living without such guarantees." [Letter from the First Presbyterian Church of Baldwin Park, dated February 25, 2003.] ARGUMENTS IN OPPOSITION : Opposition comes mainly from groups that believe this bill is "an attempt to circumvent the will of the majority?of Californians with their overwhelming passage by 62% of Proposition 22." [Letter from Traditional Values Coalition, dated June 26, 2003.] The California Federation of Republican Women, while recognizing that "AB 205 is not a 'marriage' bill," acknowledges that this bill "sidesteps California Family Code Section 308.5." Others add that the financial cost of this bill is significant. "However, in these difficult fiscal times we must point out that the bill will not save the state money, as it claims. Public and private costs will increase as domestic partners gain government and private job benefits, add divorce proceedings to court costs, seek tax benefits, and incur more health care needs." [Committee on Moral Concerns letter, dated February 13, 2003.] Lastly, the California Catholic Conference, opposes this bill, while pointing out that they had not opposed the earlier bills that recognized domestic partnerships because they were "based on compassion for certain needs of individuals in long term relationships." The group states that "AB 205 moves beyond those needs to appropriate a battery of rights for which there can be no justification other than to include same-sex unions in the social and contractual arrangements reserved for marriage. In effect, this subtly changes the definition of marriage?the people of California recently defended our current definition of marriage as a long-honored and time-tested tradition. AB 205 Page 15 Conversely, to promote same-sex civil unions by granting them the same exalted status that civil marriages enjoy will test the limits of social cohesion in an already fractured and highly complex society?[AB 205] would open the door to unnecessary and ill-advised changes in public policy." ASSEMBLY FLOOR : AYES: Berg, Bermudez, Calderon, Canciamilla, Chan, Chu, Cohn, Corbett, Diaz, Dutra, Dymally, Firebaugh, Frommer, Goldberg, Hancock, Jackson, Kehoe, Koretz, Laird, Leno, Levine, Lieber, Liu, Longville, Lowenthal, Montanez, Mullin, Nakano, Nation, Negrete McLeod, Nunez, Oropeza, Pavley, Ridley-Thomas, Simitian, Steinberg, Vargas, Wiggins, Wolk, Yee, Wesson NOES: Aghazarian, Bates, Benoit, Bogh, Campbell, Cogdill, Cox, Daucher, Dutton, Garcia, Harman, Haynes, Shirley Horton, Houston, Keene, La Malfa, La Suer, Leslie, Maddox, Maldonado, Maze, McCarthy, Mountjoy, Nakanishi, Pacheco, Plescia, Richman, Runner, Samuelian, Spitzer, Strickland, Wyland RJG:mel 8/27/03 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END ****