BILL ANALYSIS Ó
SENATE COMMITTEE ON VETERANS AFFAIRS
Senator Jim Nielsen, Chair
2015 - 2016 Regular
Bill No: AB 2085 Hearing Date: 6/14/16
-----------------------------------------------------------------
|Author: |Irwin |
|-----------+-----------------------------------------------------|
|Version: |5/31/16 |
-----------------------------------------------------------------
-----------------------------------------------------------------
|Urgency: |No |Fiscal: |Yes |
-----------------------------------------------------------------
-----------------------------------------------------------------
|Consultant:|Wade Teasdale |
| | |
-----------------------------------------------------------------
Subject: Military and veterans: legal aid
DESCRIPTION
Summary:
Creates the Office of Military Legal Assistance within the
California Military Department (CMD) and requires it to serve as
a clearinghouse for the coordination of attorneys offering pro
bono legal services to military service members needing legal
representation.
Existing law:
1)Federal and state:
a) Establishes rights and responsibilities, pertaining to
employment and reinstatement, for uniformed servicemembers
(both active and reserve components) and their civilian
employers.
b) Provides protections for uniformed servicemembers (both
active and reserve components) from the adverse financial
effects of active military deployment.
2)State: Establishes the California Military Department, which
includes the Office of the Adjutant General, the California
National Guard, State Military Reserve, California Cadet
Corps, and Naval Militia.
This bill:
AB 2085 (Irwin) Page 2
of ?
1)Creates the Office of Military Legal Assistance within the
Military Department.
2)Requires the Office to assist current servicemembers in the
state, who require legal assistance, by providing access to
educational and informational resources and by providing
referral services to available legal assistance programs,
including reduced fee services, pro bono services, and
self-help services.
3)States that the Office may provide assistance in legal areas,
including, but not limited to, the federal Servicemembers
Civil Relief Act (SCRA), the federal Uniformed Services
Employment and Reemployment Rights Act (USERRA), consumer
protection, and landlord-tenant issues.
4)Conditions the operational effectiveness of these provisions
upon legislative appropriation of funds.
5)Provides that these provisions shall become inoperative on
July 1, 2022; and as of January 1, 2023, are repealed - unless
a later enacted statute, that becomes operative on or before
January 1, 2023, deletes or extends the dates on which it
becomes inoperative and is repealed.
BACKGROUND
Uniformed Services Employment and Reemployment Rights Act
(USERRA )
USERRA is a federal law intended to ensure that persons who
serve or have served in the Armed Forces, Reserve, National
Guard, or other uniformed Services: (1) are not disadvantaged in
their civilian careers because of their service; (2) are
promptly reemployed in their civilian jobs upon their return
from duty; and (3) are not discriminated against in employment
based on past, present, or future military service.
USERRA applies to all public, private, and government employers
in the United States, large and small. USERRA's definition of
"service in the uniformed Services" covers all categories of
military training and service, including duty performed on a
AB 2085 (Irwin) Page 3
of ?
voluntary or involuntary basis in time of peace or war. Although
most often understood as applying to Guard and Reserve military
personnel, USERRA also applies to persons serving in the active
components of the Armed Forces and the National Disaster Medical
System and the Commissioned Corps of the Public Health Service.
Servicemembers Civil Relief Act (SCRA )
SCRA is a federal law intended to strengthen, and expedite the
national defense through protections extended to U.S.
servicemembers to enable such persons to devote their entire
energy to the defense needs of the nation. SCRA provides for the
temporary suspension of judicial and administrative proceedings
and transactions that may adversely affect the civil rights of
servicemembers during their military.
California state employment protections
Military and Veterans (MVC) Code §394.5 provides Guard members
and reservists with the right to take temporary leaves of
absence from civilian employment without pay to perform military
duties and MVC §395.06 provides these military members with a
general right to employment reinstatement.
California state legal and financial protections
MVC §§400 and §§800 protect Guard members and federal reservists
from the adverse effects of military deployment by providing
various financial protections with regard to court proceedings,
credit contract obligations, rental agreements, taxes, utility
payment obligations, health insurance, eviction protection, and
fees related to recording a power of attorney, termination of
mobile telephone contracts, academic tuition, state bar
membership, vehicle leases, and residential utility service.
COMMENT
Author's comments :
Attorneys in California are needed to assist active duty
servicemembers and reservists with legal matters. Military
personnel are often presented with legal challenges due to the
requirements of their service, such as frequent relocation,
interrupted employment, financial need, and strain on family
AB 2085 (Irwin) Page 4
of ?
life, among others.
While some legal services are provided to servicemembers
through their respective service's Judge Advocates General
(JAG), there is a gap in service for a variety of legal
issues, particularly in civil law, because JAGs are prohibited
from representing servicemembers in civilian court in almost
all cases. The primary legal areas with which servicemembers
require assistance include the Uniformed Services Employment
and Reemployment Rights Act, the Servicemembers Civil Relief
Act, family law, consumer fraud, property and landlord issues,
naturalization and immigration, creditor and debtor issues,
and predatory lending.
Army Regulation (AR) 27-3 is a good example of the governing
military legal assistance program regulation. AR 27-3 states
in pertinent part:
The mission of the legal assistance program is to assist those
eligible for legal assistance with their personal legal
affairs in a timely and professional manner by -
(1) Meeting their needs for information on personal legal
matters.
(2) Resolving their personal legal problems whenever
possible. ?
The mission of the legal assistance program is based on the
following military needs:
(1) Readiness. Because Active Army and RC soldiers and
emergency-essential DOD civilian employees must be prepared
for immediate mobilization and deployment, their personal
legal affairs must be in order at all times. ... Possessing
the capability to deliver legal assistance on short notice
to great numbers during a brief period of time is essential
to readiness.
AB 2085 (Irwin) Page 5
of ?
(2) Morale. Fostering the high morale of soldiers and their
families is an important aspect of readiness. High morale
is enhanced by providing soldiers and their families with
information, advice, and assistance responsive to their
personal legal needs and problems.
(3) Discipline. Personal legal difficulties may cause low
morale and disciplinary problems and may adversely affect
combat readiness. Prompt legal assistance in resolving
these difficulties is an effective preventive law measure.
(4) Quality force. Providing legal assistance is part of
the Army's ongoing effort to maintain a quality of life
that will attract quality people. The Army must take care
of its own if it is to recruit and retain a quality force.
Under 27-3 legal assistance may be provided for:
Ministerial services, legal counseling, legal
correspondence, legal negotiation, legal document
preparation, legal document filing, and pro se assistance.
However, the regulation authorizes in court representation
of clients only in very limited circumstances. Thus, in
civilian court, it is very unlikely that a military member
will have JAG representation.
POSITIONS
Sponsor: Author.
Support: None on file.
Oppose: None on file.
-- END --
AB 2085 (Irwin) Page 6
of ?