BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 2128


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          Date of Hearing:  April 26, 2016


                       ASSEMBLY COMMITTEE ON VETERANS AFFAIRS


                                 Jacqui Irwin, Chair


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


          SUBJECT:  Marriage


          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  
          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.)










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


          COMMENTS:  As stated by the Committee on Judiciary which heard  
          this bill prior to its referral to this Committee:


            California is now one of only a handful of states, including  
            Texas and Colorado, that permit marriage by proxy [marriage  
            where one or both parties is not physically present].  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  








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            get married.















          In most instances, California law and that of most states does  
          not allow proxy marriage because the legal and other  
          implications of marriage are so great that we want parties to a  
          marriage to be physically present.  We would rather the parties  
          incur some inconvenience or delay rather than risk, even if the  
          possibility is remote, that one party might be married without  
          knowledge or consent.  







          According to the Committee on Judiciary, the very limited  
          marriage by proxy exception in California which is at issue with  
          this bill was presented by a couple, one of whom was deployed to  
          Iraq in 2004 and, in the context of that conflict actually or  
          quite likely to be in harm's way.  In such a circumstance, where  
          a partner faces potential danger during deployment to a combat  
          area, the concern is that there may imminently be incapacitation  
          or loss of life which would prevent the parties from marrying  
          later.  








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          Though accidents and serious injury are always possible, the  
          possibility of such an eventuality in a combat zone or conflict  
          is real and not speculative.  Many veterans benefits and other  
          important rights, privileges and benefits may not arise or pass  
          to the unmarried partner (or children of the unmarried partners)  
          at home should the deployed partner be injured or killed.   
          Therefore it has been the policy of this state to allow marriage  
          by proxy in this limited situation, to prevent the potential  
          loss to the non-deployed partner and children.







          According to the author:







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








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            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.







          The problem presented by the sponsor of the bill is really one  
          of implementation, as pointed out by the author.  The nature of  
          modern war, conflict, and the diverse spectrum of modern  
          military operations renders it unreasonable to place the burden  
          of determining compliance with the statute on the county clerk  
          insofar as it pertains to deployment in a war or conflict.  



          





















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          REGISTERED SUPPORT / OPPOSITION:




          Support


          AMVETS, Department of California


          California Association of Clerks and Election Officials


          California Association of County Veterans Service Officers


          Military Officers Association of America, California Council of  
          Chapters


          Veterans of Foreign Wars, Department of California


          Vietnam Veterans of America, California State Council









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          Opposition


          None on File. 




          Analysis Prepared by:John Spangler / V.A. / (916) 319-3550