BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 2128


                                                                    Page  1





          Date of Hearing:  April 19, 2016


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          AB 2128  
          (Achadjian) - As Amended April 11, 2016


                                  PROPOSED CONSENT


          SUBJECT:  MARRIAGE SOLEMNIZATION:  ARMED FORCES


          KEY ISSUE:  SHOULD MEMBERS OF THE ARMED FORCES WHO ARE STATIONED  
          OVERSEAS AND SERVING IN CONFLICT OR WAR ZONES AND THEREFORE  
          ELIGIBLE UNDER CURRENT LAW TO MARRY IN CALIFORNIA THROUGH THE  
          USE OF AN ATTORNEY-IN-FACT, BE ALLOWED TO DO SO BY DECLARING  
          UNDER PENALTY OF PERJURY THAT THEY MEET THE STATUTORY  
          REQUIREMENTS?


                                      SYNOPSIS


          To prevent fraud, California has historically had a prohibition  
          on marriages by proxy, that is, marriages where one of the  
          parties is not present at the required solemnization and is  
          instead represented by an attorney-in-fact.  In 2004, when the  
          wars in Afghanistan and Iraq were raging and reservists were  
          being called up for extended service with little warning, the  
          Legislature passed SB 7 (Brulte and Burton), Chap. 476, Stats.  
          2004, which established a process for marriage by proxy for  
          members of the armed forces who are serving overseas in conflict  








                                                                    AB 2128


                                                                    Page  2





          or war zones.  


          The current problem, according to the sponsor, the California  
          Association of Clerks and Elections Officials, is that a small  
          number of county clerks and state officials have questioned  
          whether some of the overseas military members seeking to marry  
          by proxy are actually in war or conflict zones and have, as a  
          result, rejected some requests to marry by proxy or later  
          rejected marriage license applications.  Given the international  
          nature of today's evolving threat of terrorism, it may not be  
          clear to a county clerk or an official with the State Registrar  
          where conflict and war zones are located.  Thus, it appears best  
          to accept a military member's signed declaration, which as  
          stated on the required form must be done under penalty of  
          perjury, that he or she is serving in war or conflict zone.   
          This bill seeks to do just that by providing that proper  
          completion of a power of attorney by a member of the armed  
          forces, stationed overseas and serving in a conflict or a war  
          zone and seeking to marry through an attorney-in-fact, is the  
          sole determinant as to whether the county clerk's office and the  
          State Registrar must accept the power of attorney and allow the  
          military member to get married.  This bill is supported by  
          veterans' organizations and has no known opposition.


          SUMMARY:  Limits the power of a county clerk or the State  
          Register to reject a power of attorney from a member of the  
          Armed Forces stationed overseas and seeking to marry "by proxy."  
           Specifically, this bill provides that proper completion of a  
          power of attorney by a member of the armed forces, stationed  
          overseas, serving in a conflict or a war and seeking to marry  
          through an attorney-in-fact, is the sole determinant as to  
          whether the county clerk's office and the State Registrar must  
          accept the power of attorney and allow the military member to  
          get married.


          EXISTING LAW allows a member of the United States armed forces  








                                                                    AB 2128


                                                                    Page  3





          who is stationed overseas and serving in a conflict or a war and  
          is unable to appear for licensure and solemnization of his or  
          her marriage to enter into that marriage by the appearance of an  
          attorney-in-fact, commissioned and empowered in writing for that  
          purpose through a power of attorney.  (Family Code Section 420.)


          FISCAL EFFECT:  As currently in print this bill keyed  
          non-fiscal.


          COMMENTS:  To prevent fraud, California has historically had a  
          prohibition on "marriages by proxy," that is, marriages where  
          one of the parties is not present at the required solemnization  
          and is instead represented by an attorney-in-fact.  In 2004,  
          when the wars in Afghanistan and Iraq were raging, reservists  
          were being called up for extended service with little warning.   
          Based on the needs of the conflict, some ended up serving  
          overseas for a year or longer, potentially wrecking havoc in the  
          lives of their loved ones left behind.  


          It was against that backdrop, the Legislature passed SB 7  
          (Brulte and Burton), Chap. 476, Stats. 2004, which established a  
          process for marriage by proxy for those members of the armed  
          forces who are serving overseas in a conflict or war zone.  When  
          considering the bill, the Legislature heard from Theresa Arnold.  
           Her fiancé Marine Corps Lieutenant Thomas Cogan IV was  
          stationed in Iraq.  Theresa and Thomas are expecting their first  
          child the next month, but under then-existing law, they have no  
          way to get married prior to the birth of their child.  Allowing  
          marriage by proxy for members of the armed forces serving in a  
          conflict or war overseas has helped ensure that military  
          members' loved ones, including spouses and children, receive  
          critical health and other benefits.  In the case of Theresa  
          Arnold and Thomas Cogan, their immediate marriage helped ensure  
          that prenatal and birth costs were covered and that both Theresa  
          and the baby received appropriate benefits should anything have  
          happened to Lieutenant Cogan while in Iraq.  Without that bill,  








                                                                    AB 2128


                                                                    Page  4





          they may not have been entitled to receive such benefits,  
          whether in a timely manner or at all.


          California is now one of only a handful of states, including  
          Texas and Colorado, that permit marriage by proxy.  Montana  
          allows a "double proxy marriage" in which neither party must be  
          present in the state in order to legally marry, provided at  
          least one party is either a resident of Montana or a member of  
          the military. 


          The current problem, according to the sponsor, the California  
          Association of Clerks and Elections Officials, is that a small  
          number of county clerks and state officials have questioned  
          whether some of the overseas military members seeking to marry  
          by proxy are actually in war or conflict zones and have, as a  
          result, rejected some requests to marry by proxy or later  
          rejected marriage licenses.  Given the international nature of  
          today's evolving threat of terrorism, it may not be clear to a  
          county clerk or an official with the State Registrar where  
          conflict zones are.  Thus, it appears best to accept a military  
          member's signed declaration, which as stated on the required  
          form must be done under penalty of perjury, that he or she is  
          serving in war or conflict zone.  This bill does just that by  
          providing that proper completion of a power of attorney by a  
          member of the armed forces, stationed overseas and serving in a  
          conflict or a war and seeking to marry through an  
          attorney-in-fact, is the sole determinant as to whether the  
          county clerk's office and the State Registrar must accept the  
          power of attorney and allow the military member to get married.



          In support of the bill, the author writes:


            In 2004, the Legislature overwhelmingly passed SB 7, which  
            allowed members of the Armed Forces to participate in a  








                                                                    AB 2128


                                                                    Page  5





            "marriage by proxy" so that if they were unable to attend  
            their marriage ceremony, they would still be able to get  
            married.  Unfortunately, since then, numerous marriage  
            certificates have been denied because the California  
            Department of Public Health has deemed the person wasn't  
            stationed in an area of conflict or war.  However, areas of  
            war or conflict are difficult to determine because it is  
            undefined and those areas are ever-changing.  AB 2128 states  
            that the completion of the power of attorney is the sole  
            determinant as to whether the county clerk's office and the  
            State Registrar will accept the power of attorney.  This will  
            ensure that the marriage certificate is honored and that the  
            county clerks and the State Registrar are not forced to  
            determine whether or not the service member is stationed in an  
            area of war or conflict.


          REGISTERED SUPPORT / OPPOSITION:




          Support


          California Association of Clerks and Elections Officials  
          (sponsor)


          AMVETS-Department of California


          California Association of County Veterans Service Officers


          Military Officers Association of America, California Council of  
          Chapters










                                                                    AB 2128


                                                                    Page  6





          VFW-Department of California


          Vietnam Veterans of America-California State Council




          Opposition


          None on file




          Analysis Prepared by:Leora Gershenzon / JUD. / (916) 319-2334