BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 73
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          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,  








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          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  








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               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  








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            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,  








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               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  








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          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  








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          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  








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               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. 









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           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