BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 2085 (Irwin)
Version: May 31, 2016
Hearing Date: June 28, 2016
Fiscal: Yes
Urgency: No
ME
SUBJECT
Military and veterans: legal aid
DESCRIPTION
This bill would establish the Office of Military Legal
Assistance in the Military Department, upon appropriation of
funds by the Legislature, to assist current servicemembers in
California who require legal assistance.
BACKGROUND
California has a strong public policy of support for military
servicemembers. Under California law, Guard members and
reservists have the right to take temporary leaves of absence
from civilian employment without pay to perform military duties.
Servicemembers who take these temporary leaves of absence have
rights to employment reinstatement under state law. The federal
Uniformed Services Employment and Reemployment Rights Act
(USERRA) protects servicemembers and veterans by ensuring that
employees are promptly reemployed in their civilian jobs upon
their return from duty and providing protections to ensure they
are not discriminated against in employment based on past,
present, or future military service.
Limited legal services are currently provided to servicemembers
through their respective service's Judge Advocates General
(JAG). However, JAGs are prohibited from representing
servicemembers in civilian court in many cases. The legal
challenges that servicemembers typically face require
representation in civil court. For example, servicemembers
oftentimes need to resolve family law matters, landlord tenant
issues, creditor and debtor issues, and immigration and
naturalization issues. Although there are pro bono programs,
such as the American Bar Association's Military Pro Bono Project
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and the American Immigration Lawyers Association (AILA) Military
Assistance Program (MAP), they do not completely meet the needs
of California's servicemembers.
This bill seeks to fulfill the legal service needs of California
servicemembers by establishing the Office of Military Legal
Assistance in the Military Department, upon appropriation of
funds by the Legislature, to assist current servicemembers in
California who require legal assistance.
CHANGES TO EXISTING LAW
Existing law establishes the California Military Department,
which includes the Office of the Adjutant General, the
California National Guard, the State Military Reserve, the
California Cadet Corps, and the Naval Militia. (Mil. & Vet.
Code Secs. 50, 51.)
Existing law provides that any employee of any corporation,
company, or firm, or other person, who is a member of the
reserve corps of the armed forces of the United States, or of
the National Guard or the Naval Militia, is entitled to a
temporary leave of absence without pay while engaged in military
duty ordered for purposes of military training, drills,
encampment, naval cruises, special exercises or like activity as
such member, providing that the period of ordered duty does not
exceed 17 calendar days annually including time involved in
going to and returning from such duty. (Mil. & Vet. Code Sec.
394.5.)
Existing law provides military members with a general right to
employment reinstatement, as specified. (Mil. & Vet. Code Sec.
395.06.)
Existing federal law , the Uniformed Services Employment and
Reemployment Rights Act (USERRA), protects servicemembers and
veterans by ensuring that employees are promptly reemployed in
their civilian jobs upon their return from duty and providing
protections to ensure they are not discriminated against in
employment based on past, present, or future military service.
(38 U.S.C. Secs. 4301-4335.)
This bill would establish the Office of Military Legal
Assistance in the Military Department, upon appropriation of
AB 2085 (Irwin)
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funds by the Legislature, to assist current servicemembers in
California who require legal assistance.
This bill would specify that the office may provide assistance
in legal areas, including, but not limited to, the federal
Servicemembers Civil Relief Act, the federal Uniformed Services
Employment and Reemployment Rights Act, consumer protection, and
landlord-tenant issues.
This bill would provide that the provisions of the bill become
effective only upon appropriation of funds by the Legislature.
This bill contains a sunset provision whereby the provisions of
the bill will become inoperative on July 1, 2022, and repealed
on January 1, 2023.
COMMENT
1. Stated need for bill
According to the author:
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
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.
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2. Legal Services for Servicemembers
Each armed service of the United States has a legal assistance
program with a governing regulation promulgated by their
service. Under the Army Regulation AR 27-3, for example, legal
assistance may be provided for ministerial services, legal
counseling, legal correspondence, legal negotiation, legal
document preparation, legal document filing, and pro se
assistance. The regulation authorizes court representation of
clients in very limited circumstances. Thus, it is unlikely
that a servicemember will have legal representation by a
military legal assistance program in civilian court.
On behalf of the Department of Defense and in support for the
policy in this bill, the Office of the Deputy Assistant
Secretary of Defense writes:
It is a common misconception that Service members have
unfettered access to legal services as a result of their
military service. The Judge Advocate General Corps
attorneys in the military cannot represent Service members
in a majority of civil matters. Because private attorneys
sometimes cost more than a Service member can afford,
military families that need help are put in a stressful
position while facing challenging military duties.
Some servicemembers enjoy pro bono legal service in civilian
court provided by members of attorney associations or other
charitable organizations. For example, the American Immigration
Lawyers Association Military Assistance Program (AILA-MAP) is a
collaboration between AILA and the Legal Assistance Offices
(LAO) of the United States military Judge Advocate General's
(JAG) Corps. According to AILA:
The LAOs provide free assistance to active duty
service-members and their families in order to maintain
the highest level of readiness possible in the event that
a military member is deployed. Recently, however, JAG
attorneys have been inundated with complex immigration
legal questions. To resolve these cases successfully, they
often need the assistance of seasoned immigration
attorneys. AILA-MAP has brought these two groups together
to form a truly dynamic and effective partnership.
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Since the inception of this worthy program in 2008, our
priority has been to provide invaluable resources,
knowledgeable pro bono legal counsel, and peace of mind to
these courageous men and women of the United States Armed
Forces while honoring the selfless commitment which they
have made to the continued protection of our nation and
the freedoms we enjoy on a daily basis. (See
[as of June 16, 2016].)
The American Bar Association's (ABA) Military Pro Bono Project
highlights that it "accepts case referrals from military
attorneys on behalf of junior-enlisted, active-duty military
personnel and their families with civil legal problems, and it
places these cases with pro bono attorneys where the legal
assistance is needed."
The state of Nevada adopted similar legislation in 2015. The
Nevada Office of Military Legal Assistance has successfully
resolved over 210 legal matters for military personnel and
veterans residing in Nevada, earning designation as a "Best
Practice Program" by the U.S. Department of Defense.
This bill would establish the Office of Military Legal
Assistance in the Military Department, upon appropriation of
funds by the Legislature, to further assist current
servicemembers in California who require legal assistance.
Support : Office of the Deputy Assistant Secretary of Defense
(Military Community and Family Policy)
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation : None Known
Prior Vote :
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Senate Veterans Affairs Committee (Ayes 5, Noes 0)
Assembly Floor (Ayes 77, Noes 0)
Assembly Appropriations Committee (Ayes 20, Noes 0)
Assembly Veterans Affairs Committee (Ayes 9, Noes 0)
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