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