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  







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          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
          








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           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  








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          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.








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           Prior Vote  :

          Assembly Floor (Ayes 76, Noes 0)
          Assembly Veterans Affairs Committee (Ayes 9, Noes 0)
          Assembly Judiciary Committee (Ayes 10, Noes 0)

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