BILL ANALYSIS AB 73 Page 1 Date of Hearing: March 17, 2009 ASSEMBLY COMMITTEE ON JUDICIARY Mike Feuer, Chair AB 73 (Hayashi) - As Amended: March 12, 2009 SUBJECT : DOMESTIC VIOLENCE FUNDING: FEES KEY ISSUE : IN ORDER TO ALLOW FOR THE CONTINUED OPERATION OF A SUCCESSFUL DOMESTIC VIOLENCE PREVENTION PROGRAM IN ALAMEDA COUNTY, SHOULD THE 2010 SUNSET DATE OF SPECIFIED FEES FOR SUPPORT OF THAT PROGRAM BE ELIMINATED SO THE EXISTING FEES REMAIN CONSTANT? SYNOPSIS This bill, sponsored by the Alameda County Board of Supervisors and the Alameda County Family Justice Center (ACFJC), permits continued funding of a highly successful program to combat domestic violence in Alameda County, as well as a program in the City of Berkeley, by eliminating the January 1, 2010 sunset date for an existing fee for marriage license and birth and death certificates to fund governmental oversight and coordination of domestic violence prevention, intervention, and prosecution programs. The funds collected under this pilot program have resulted in the creation of the ACFJC, which has served more than 18,000 adult victims of family violence and 2,500 children. Supporters, including the Alameda County District Attorney's Office, contend that this bill is necessary to ensure the continued operation of this successful domestic violence prevention program. AB 2231 (Hayashi), 2008, a substantially similar bill that would have extended the sunset date to January 1, 2015 for programs in Alameda and Solano Counties, was vetoed by the Governor over concerns that the fees used to fund the pilot programs were, in actuality, a tax. The Howard Jarvis Taxpayers Association opposes the bill for the same reason. The California Supreme Court in Sinclair Paints v. Board of Equalization (1997) 15 Cal.4th 866, set forth a two-prong test to determine whether a particular increase in revenue is a fee or a tax. Under that test a fee cannot exceed the reasonable cost of providing the services necessary for which the fee is charged, and must not be levied for an unrelated revenue purpose. Supporters appear to demonstrate quite convincingly, under the Sinclair Paints test, AB 73 Page 2 that the funding source in this bill is indeed a fee, and not a tax. The Child Abuse Prevention Center opposes this bill unless amended to delete the existing $2 fee to the birth certificate because, the Center argues, a fee currently added to birth certificates is a source of funding for child abuse prevention and intervention; and, this bill could "reduce the [future] ability of the state to raise funds to reduce child abuse." This bill, however, in no way reduces existing funding to prevent child abuse. FISCAL EFFECT : As currently in print this bill is keyed non-fiscal. SUMMARY : Eliminates the January 1, 2010 sunset date for Alameda County and the City of Berkeley to continue to authorize existing fees to fund domestic violence prevention programs, and extends the deadline for a final report to the Legislature. Specifically, this bill : 1)States the findings of the Legislature that, among other things: a) In California, 9.2 percent of women live in homes where domestic abuse occurs. Domestic violence is ubiquitous, cutting across all economic and education levels, all age groups, ethnicities, and other social and community characteristics. b) In nearly half of violent crimes where victim and aggressor are related, the aggressor is either the spouse or ex-spouse. Marriage license fees collected through this act would help communities intervene and prevent domestic violence in these cases. c) Domestic violence puts children at risk. Children born into families where domestic violence occurs are physically abused or seriously neglected at a rate significantly higher than the national average in the general population. Birth certificate fees collected through this act would help communities with costs to ensure that children who are born into families with domestic violence receive the help they need. d) Studies show more than 10 percent of women are victims of domestic violence during pregnancy. Pregnant women who are assaulted by their spouses are 50 percent more likely AB 73 Page 3 to experience fetal loss (often repeatedly) than women who were not abused. Women who are battered during pregnancy are also more likely to die, or their children are born prematurely with low-birth weights and intense medical needs. Death certificate fees would help communities with costs associated with ensuring that pregnant women with violent spouses receive help and protection and care for their unborn children and infants. e) Domestic violence costs are high. Not only is there a toll on families emotionally and financially, but there are also direct and hidden costs to society. Most directly, are the high costs of law enforcement, civil and criminal justice, health services and other community-based services. Less visible costs include job turnover, loss of productivity, school absenteeism, and low school performance. f) Domestic violence requires a multifaceted intervention that engages civil, criminal, health, and social service sectors working together to align objectives, protocols, policies and activities of each sector. 2)Eliminates the January 1, 2010 sunset date for the Alameda County Board of Supervisors and the Berkeley City Council to continue to authorize existing marriage license and birth and death certificate fees to fund governmental oversight and coordination of domestic violence and family violence prevention, intervention, and prosecution programs. 3)Requires the Alameda County Board of Supervisors and the Berkeley City Council to submit to the Assembly and Senate Judiciary Committees, a preliminary report regarding such fee increases by July 1, 2009, and a final report by July 1, 2014. Requires the report to provide the amounts of fees received and expended, as well as the outcomes achieved as a result of the expenditures. EXISTING LAW : 1)Authorizes the Alameda and Solano County Boards of Supervisors, and the Berkeley City Council, upon making specified findings and declarations, to increase the fees for marriage licenses and confidential marriage licenses, as well as certified copies of marriage, birth, and death certificates, by up to $2, with further increases permitted on an annual basis, based on the Consumer Price Index for the San AB 73 Page 4 Francisco metropolitan area for the preceding year. Provides that the authorization for the fee increases will sunset on January 1, 2010. (Government Code Sections 26840.10 and 26840.11; Health and Safety Code Sections 103627, 103627.5, 103628.) 2)Directs that these fees be deposited into a special fund to be used for governmental oversight and coordination of domestic violence and family violence prevention, intervention, and prosecution efforts. (Welfare and Institutions Code Sections 18309 and 18309.5.) 3)Provides that the Alameda and Solano County Boards of Supervisors and the Berkeley City Council must submit to the Assembly and Senate Judiciary Committees, by July 1, 2009, reports regarding such fee increases. The report must provide the amounts of fees received and expended as well as the outcomes achieved as a result of the expenditures. (Government Code Sections 26840.10 and 26840.11; Health and Safety Code Section 103627.5.) 4)Provides a fee of $4 for certified copies of marriage certificates, birth certificates, and death records. Part of that existing fee is used to fund governmental oversight and coordination of domestic violence prevention, intervention, and prosecution efforts in Contra Costa County. (Health and Safety Code Section 103626; Welfare and Institutions Code Section 18308.) COMMENTS : This bill, sponsored by the Alameda County Board of Supervisors and ACFJC, permits continued funding of successful programs to combat domestic violence in Alameda County, as well as in the City of Berkeley, by eliminating the January 1, 2010 sunset date for an existing fee for marriage license and birth and death certificates to fund governmental oversight and coordination of domestic violence programs. According to the author: Domestic violence victims may need to seek help from as many as 25 different agencies - in as many different locations - police, district attorneys, victim-witness, social services and other relevant programs. Putting all these services under one roof, as Alameda County has done with its Family Justice Center, has helped to ensure these victims receive all the legal, AB 73 Page 5 psychological, social and financial assistance they need. That coordination is funded, in part, by money from the records fees. Having a one-stop shop for domestic violence services has helped to reduce some of Alameda County's stark statistics. Since 2001, the county has seen a 90 percent decrease in domestic violence homicides. It has reduced dismissals of domestic violence cases by 20 percent, giving victims more faith that the public system will protect them. Since opening its doors, the Alameda County Justice Center has served more than 18,000 adults (including 800 men) and 2,500 children. The Alameda County Board of Supervisors writes that the funds from the fee increases have played a vital role in funding the coordination costs and have "changed the way systems and service providers are delivering essential and critical services to victims of domestic violence and their children." The Board notes that domestic violence deaths in the county dropped from 26 in 2001 to 3 in 2006, with a goal of zero deaths going forward. The Alameda County District Attorney's Office concurs, stating that as a result of the ACFJC "there is a new (or re-newed) confidence on the part of victims that the legal systems work for them and that there are resources and service providers who will work together to protect, support and empower them and their children to have lives free of interpersonal violence." The Berkeley City Council, also in support, writes that it uses these funds for a youth intervention in the schools to promote healthy relationships and prevent domestic violence, modeled after "extremely successful peer health educator programs." Devastating Effects of Domestic Violence on Children and Families : Domestic violence is a serious criminal justice and public health problem most often perpetrated against women. (Extent, Nature and Consequences of Intimate Partner Violence: Findings from the National Violence against Women Survey, U.S. Department of Justice (2001).) Prevalence of domestic violence at the national level ranges from 960,000 to three million women each year who are physically abused by their husbands or boyfriends. While the numbers are staggering, they only include those cases of reported domestic violence. In fact, according AB 73 Page 6 to a 1998 Commonwealth Fund survey of women's health, nearly 31% of American women report being physically or sexually abused by a husband or boyfriend at some point in their lives. (Health Concerns Across a Woman's Lifespan: 1998 Survey of Women's Health, The Commonwealth Fund, May 1999.) Domestic violence continues to be a significant problem in California. In 2005, the Attorney General's Task Force on Domestic Violence reported that: The health consequences of physical and psychological domestic violence can be significant and long lasting, for both victims and their children. . . . A study by the California Department of Health Services of women's health issues found that nearly six percent of women, or about 620,000 women per year, experienced violence or physical abuse by their intimate partners. Women living in households where children are present experienced domestic violence at much higher rates than women living in households without children: domestic violence occurred in more than 436,000 households per year in which children were present, potentially exposing approximately 916,000 children to violence in their homes every year. (Report to the California Attorney General from the Task Force on Local Criminal Justice Response to Domestic Violence, Keeping the Promise: Victim Safety and Batterer Accountability (June 2005) (footnotes omitted).) That report discovered numerous significant and troubling problems in the implementation of statutory directives aimed at preventing domestic violence, including failing to enter restraining orders into CLETS (California Law Enforcement Telecommunications System) and failing to ensure that batterers attend mandated treatment programs. As the Alameda County program has shown, providing better oversight and coordination of a county's domestic violence programs helps make significant improvements in the prevention and prosecution of domestic violence. Supporters Appear To Argue Convincingly That Under The Supreme Court's Test, Funding For The Domestic Violence Oversight And Coordination Programs Constitutes A Fee And Not A Tax . In 2008, Governor Schwarzenegger vetoed AB 2231 (Hayashi), which would AB 73 Page 7 have extended the sunset date for the pilot programs in Alameda and Solano Counties to January 1, 2015, stating that the fee increase constitutes a tax that requires local approval. The Howard Jarvis Taxpayers Association (HJTA) opposes the bill for the same reason. While a tax does indeed require a 2/3rds vote of the Legislature or of local voters, a bona fide regulatory fee does not. The California Supreme Court laid out the distinction between a fee and a tax in Sinclair Paints v. Board of Equalization (1997) 15 Cal.4th 866. In that case, the Court found that a fee assessed on paint manufacturers under the Childhood Lead Poisoning Prevention Act of 1991 was properly a bona fide regulatory fee designed to mitigate the effects of lead poisoning and not a tax. In order to be classified as a regulatory fee and not a tax, the Court held that the fee must not exceed the reasonable cost of providing the services necessary for which the fee is charged, and must not be levied for an unrelated revenue purpose. Following the first prong of the Sinclair Paints test, this bill provides that fees from the program can only be used for specific domestic violence programs. Thus, the fees cannot exceed the reasonable cost of the services for which the fee is charged. Moreover, there is no suggestion that the fees charged are in excess of the cost of providing the specified services. Under the second prong of the Sinclair Paints test, the fee must be levied for a related purpose. HJTA states without further explanation that "there is absolutely no nexus between certified certificates and domestic violence prevention." However, the nexus between the fee and the services it funds is set forth in this bill's legislative findings. Domestic violence, which occurs in families and cuts across all economic, educational, age and ethnic lines, can result in injury or death of the victims and is learned generationally. Thus domestic violence involves marriages, births, and deaths. The Alameda County District Attorney's Office very articulately stated the nexus between the fee increase and domestic violence in a memo to the Governor's Office in support of legislation which established the pilot programs in Alameda and Solano Counties: Without stopping violence in the home, we will never stop violence in the community. Without stopping violence in the community, all citizens are potential AB 73 Page 8 victims of that violence. The nexus between the special fee increase allowed under [the original legislation] and marriage-birth-fetal death and death certified certificates cannot be ignored. Statistically, the most lethal times for a victim of domestic violence, and children who witness that violence, a) is when she is separating from the batterer; b) becomes pregnant; c) after children are born; and d) after getting married. Moreover, the fees that this bill seeks to make permanent, and the specific uses of those fees, are also identical to a program in Contra Costa County that the Legislature and the Governor made permanent in 2006. (SB 968 (Torlakson), Chap. 635, Stats. 2006.) Opposition Raised to Birth Certificate Fee : The Child Abuse Prevention Center (CAPC) opposes this bill unless amended to delete the fee increase to the birth certificate. CAPC argues that a fee currently added to birth certificates is a source of funding for child abuse prevention and intervention, and this bill could "reduce the ability of the state to raise funds to reduce child abuse." It is important to note that this bill in no way diminishes the funding currently available to prevent child abuse. Moreover, since the Alameda County Family Justice Center helps families impacted by family violence, it also assists families with child abuse issues. Previous Legislation Creating Domestic Violence Oversight and Coordination Funding Programs : SB 425 (Torlakson), Chap. 90, Stats. 2001, established a similar domestic violence prevention funding pilot program in Contra Costa County. SB 968 (Torlakson), Chap. 635, Stats. 2006, repealed the sunset date, making Contra Costa's program effective indefinitely. AB 2010 (Hancock), Chap. 830, Stats. 2004, established the pilot programs in Alameda County and Solano County. AB 1712 (Hancock), Chap. 545, Stats. 2005, authorized the City of Berkeley, within Alameda County, to also participate in the pilot program. AB 2231 (Hayashi), 2008, would have extended the sunset date of those programs to January 1, 2015, but was vetoed by the Governor. AB 73 Page 9 REGISTERED SUPPORT / OPPOSITION : Support Alameda County Board of Supervisors Alameda County District Attorney's Office Alameda County Family Justice Center American Federation of State, County and Municipal Employees, AFL-CIO Berkeley City Council Opposition Child Abuse Prevention Center (unless amended) Howard Jarvis Taxpayers Association Analysis Prepared by : Leora Gershenzon and Rachel Anderson / JUD. / (916) 319-2334