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