BILL ANALYSIS Ó SENATE JUDICIARY COMMITTEE Senator Hannah-Beth Jackson, Chair 2015-2016 Regular Session AB 2128 (Achadjian) Version: April 11, 2016 Hearing Date: Fiscal: No Urgency: No NR SUBJECT Marriage DESCRIPTION Existing law allows a member of the Armed Forces of the United States, who is stationed overseas and serving in a conflict or a war and is unable to appear for the licensure and solemnization of a 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, as specified. This bill would provide that the completion of the power of attorney is the sole determinant as to whether the county clerk's office or State Registrar may accept the power of attorney. BACKGROUND To prevent fraud, California has historically had a prohibition on "marriages by proxy," or, marriages where one party is not present at the required solemnization and is instead represented by an attorney in fact. After extended periods of deployment of U.S. Forces in Iraq and Afghanistan in the early 2000s, the Legislature enacted SB 7 (Brulte and Burton, Ch. 476, Stats. 2004) which allowed members of the armed forces to marry by proxy if they were serving in a conflict or war. That bill was "designed to help those serving our country in times of crises marry and provide needed benefits and recognition to their loved ones." (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 7 (2003-2004 Reg. Sess.) as amended Aug. 12, 2004.) This bill, seeking to ensure members of the Armed Forces are able to exercise this privilege, would clarify the county clerk's and State Registrar's role in evaluating an applicant's AB 2128 (Achadjian) Page 2 of ? request to marry by proxy. CHANGES TO EXISTING LAW Existing law specifies that no particular form for the ceremony of marriage is required for solemnization of the marriage, but the parties shall declare, in the physical presence of the person solemnizing the marriage and necessary witnesses, that they take each other as spouses. (Fam. Code Sec. 420) Existing law provides that, notwithstanding the provision above, a member of the Armed Forces of the United States who is stationed overseas and serving in a conflict or a war and is unable to appear for the licensure and solemnization of the marriage may 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, if the following requirements are met: the attorney in fact must personally appear at the county clerk's office with the party who is not stationed overseas; the attorney in fact must present the original power of attorney duly signed by the party stationed overseas and acknowledged by a notary or witnessed by two officers of the United States Armed Forces; and the power of attorney shall state the full given names at birth, or by court order, of the parties to be married, and that the power of attorney is solely for the purpose of authorizing the attorney in fact to obtain a marriage license on the person's behalf and participate in the solemnization of the marriage. Existing law provides that the original power of attorney shall be a part of the marriage certificate upon registration. This bill would additionally provide that the completion of a power of attorney shall be the sole determinant as to whether the county clerk's office and the State Registrar will accept the power of attorney. COMMENT AB 2128 (Achadjian) Page 3 of ? 1.Stated need for the bill According to the author: When SB 7 was passed in 2004, it didn't define "area of conflict or war," therefore, marriage licenses that were issued by county clerks have been rejected by the State Registrar since they deemed some military bases overseas as not in an area of conflict or war. [?] This bill would ensure that the completion of the power attorney by the Service Member is the sole determinant as to whether the county clerk and State Registrar accept the marriage. 2.Determining "conflict zones" When considering SB 7 (Brulte and Burton, Ch. 476, Stats. 2004), the Legislature heard from a woman whose fiancé was stationed in Iraq. The couple was expecting their first child the next month, but under then-existing law, had no way to get married prior to the birth of their child. The passage of SB 7 helped ensure that prenatal and birth costs were covered and that both the mother and the baby received appropriate benefits should anything have happened to her fiancé in Iraq. Without that bill, they, and many couples in similar circumstances, may not have been entitled to receive such benefits. SB 7, which limited the availability of marriage by proxy to members of the armed forces serving overseas in a conflict or war, included a number of other safeguards to protect against abuse of the process, including that the power of attorney: (1) must be signed by a notary or witnessed by two officers of the United States Armed Forces; (2) is limited to the purpose of obtaining a marriage license and participating in the solemnization of the marriage; and (3) shall be part of the marriage certificate. The sponsor argues that some county clerks and state officials, despite the safeguards required for the signing of a power of attorney, have questioned whether an applicant is actually serving in a conflict zone or a war, and have rejected some requests to marry by proxy or have later rejected marriage licenses. Arguably, a member of the Armed Forces stationed AB 2128 (Achadjian) Page 4 of ? overseas is in a better position than a county clerk or employee of the State Registrar to determine whether he or she is serving in a conflict or a war. Accordingly, this bill would clarify that the role of the county or state in approving a request for a marriage by proxy is to determine whether a power of attorney has been properly executed by the applicant. In support, the California Association of Clerks and Election Officials write: The issue addressed by AB 2128 is related to years of uncertainty on the part of the county clerk to determine, with certainty, whether locations around the world qualify as "areas of conflict or war." Counties have been receiving queries regarding specific locations and have not been able to locate a resource or method to deliver a definitive answer to their customers as to whether they can use this process. This bill will amend the Code to clarify that the completion of the power of attorney shall be the sole determinant as to whether the county clerk's office and the State Registrar will accept the power of attorney. This language would bring certainty to this special privilege and remove the concern that a marriage license may be rejected later in the process; leaving the applicant with minimal recourse. Support : AMVETS-Department of California; California Association of County Veterans Service Officers; Military Officers Association of America, California Council of Chapters; VFW-Department of California; Vietnam Veterans of America-California State Council Opposition : None Known HISTORY Source : California Association of Clerks and Elections Officials Related Pending Legislation : None Known Prior Legislation : SB 7 (Brulte and Burton, Chap. 476, Stats. 2004), see Background. AB 2128 (Achadjian) Page 5 of ? Prior Vote : Assembly Floor (Ayes 76, Noes 0) Assembly Veterans Affairs Committee (Ayes 9, Noes 0) Assembly Judiciary Committee (Ayes 10, Noes 0) **************