BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 2761 (Low)
Version: April 25, 2016
Hearing Date: June 14, 2016
Fiscal: No
Urgency: No
NR
SUBJECT
Marriage
DESCRIPTION
This bill would authorize former Members of the Legislature and
constitutional officers of this state, former Members of
Congress of the United States who represented a district within
this state, and current and former elected officials of a city,
county, or city and county, to solemnize a marriage. This bill
would remove the requirement that county supervisors, city
clerks, and elected mayors obtain and review all available
instructions for marriage solemnization before first solemnizing
a marriage.
BACKGROUND
A marriage is not valid unless it is solemnized by an authorized
individual. Under existing law, marriages may be solemnized by
authorized persons of any religious denomination, judges,
commissioners, and magistrates. In 1998, this list was expanded
to include California Legislators, constitutional officers, and
members of Congress from California, during the time period that
those individuals are holding office. (AB 1094, Committee on
Judiciary, Ch. 932, Stats. 1998). Subsequently, elected mayors,
county supervisors, and city clerks were also authorized to
solemnize marriage ceremonies, as long as they first receive
training from the county clerk. (AB 2600, Ma & Lieu, Ch. 268,
Stats. 2010; SB 991, Runner, Ch. 63, Stats. 2012; and Lowenthal
Ch. 450, Stats. 2014.)
Additionally, the county clerk, who is statutorily designated as
a commissioner of civil marriages in the county, may appoint
deputy commissioners of civil marriage, who may solemnize
marriages under the direction of the county clerk. Deputy
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commissioners of civil marriage are authorized to perform one
marriage ceremony for one specified couple. The deputizing
process varies slightly from county to county, but generally an
individual must receive instruction from the county clerk, pay a
small fee, and be sworn in as a deputy commissioner of marriage
before performing a ceremony. Seeking to create consistency
among how those authorized to solemnize marriages are governed,
this bill would expand the authority to perform marriages to all
city and county elected officials and constitutional officers,
and would eliminate the requirement that any elected official
authorized to solemnize marriages first receive instruction from
the county clerk.
CHANGES TO EXISTING LAW
Existing law provides that the county clerk is designated as a
commissioner of civil marriages for each county. The
commissioner of civil marriages may appoint deputy commissioners
of civil marriages who may solemnize marriages under the
direction of the commissioner of civil marriages and shall
perform other duties directed by the commissioner. (Fam. Code
Sec. 401.)
Existing law provides that a marriage may be solemnized by
authorized persons of any religious denomination, by specified
Legislators, constitutional officers, and California members of
Congress, while those persons are currently holding that office,
and by specified justices, judges, and magistrates, both current
and retired. (Fam. Code Sec. 400.)
Existing law provides that an elected mayor, county supervisor,
or city clerk may solemnize marriage ceremonies while he or she
holds office. Existing law requires such a mayor or county
supervisor to obtain and review from the county clerk all
available instructions for marriage solemnization before he or
she first solemnizes a marriage. (Fam. Code Sec. 400.1.)
This bill would authorize a former member of the Legislature,
constitutional officer of this state or a former member of
Congress from this state to solemnize a marriage.
This bill would authorize a person who holds or formerly held a
city or county elected office to solemnize a marriage.
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This bill would eliminate the requirement that before a county
supervisor, mayor or city clerk of a charter city, as provided,
may solemnize a marriage he or she must first obtain and review
from the county clerk all available instructions for marriage
solemnization.
COMMENT
1.Stated need for the bill
According to the author:
Not only do legislators have the opportunity to enact policies
to improve our state, they also have the opportunity to
solemnize weddings. It's a unique opportunity that only a
select few are able to perform. However, legislators are only
able to do this while they are in office. Should a sitting
member of the Legislature wish to officiate a wedding after
his or her term in office, one would have to register with a
county office to become a "deputy for the day," pay a fee to
the county office, and in some cases, attend a class.
The law is inconsistent as it allows a retired California
judge or commissioner and a retired US judge or magistrate to
solemnize a wedding even after they've left their judgeship.
This bill simply brings uniformity to the Family Code,
allowing a former member of the California Legislature or
constitutional officer, or former Member of Congress to
officiate a wedding.
2.Would allow all elected city and county officials and
constitutional officers to solemnize marriages
Traditionally, marriages were solemnized by a priest, minister,
rabbi, or authorized person of any religious denomination, a
judge, or a legislator while in office. Over the years the
Legislature has added different persons to that list, including
mayors, city clerks, and county supervisors. (See Fam. Code
Secs. 400 and 400.1.)
This bill would allow elected officials (e.g., city and county
officials, members of the California Legislature, California
constitutional officers, and members of Congress of the United
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States representing districts in California) to solemnize
marriages, while that official holds office, as well as after he
or she leaves office. Or, in other words, regarding those
persons with the existing authority to solemnize marriages, this
bill would eliminate the instruction requirement under existing
law and would allow all elected officials, and former elected
officials to marry couples.
Allowing an elected individual, whether or not he or she is
currently serving in office, to solemnize marriages would
arguably allow couples to choose an officiant that has personal
meaning to the couple without imposing a financial or
administrative burden on that selected officiant. Be it the
mayor from a person's childhood, or the county supervisor who
was a close family friend, individuals should be able to choose
a person to solemnize a marriage who has personal significance
to them. In addition, former elected officials who served their
communities well are likely in great demand by individuals who
were positively impacted by the official's public service.
These elected officials would benefit from not being required to
apply, for each request to perform a ceremony, to the county
supervisor in order to be deputized for the day.
That being said, corruption of public officials is not unheard
of. For example, in 2010, five elected City Council members from
the city of Bell were convicted on corruption charges. (Pringle,
Bell pay scandal case sets precedent for future disputes,
pension board says
[as of May 27, 2016].)
Earlier this year, Senator Leland Yee of San Francisco was
sentenced to five years in prison for corruption, and a few
weeks ago an appellate court upheld the 2014 conviction of
former Senator Roderick Wright for living outside the
Inglewood-area district he was elected to represent.
Accordingly, as a matter of public policy, the Legislature
should consider whether extending the authority to solemnize
marriages to elected officials should be limited to those
officials who have not been found to have committed wrongdoing
while in office. The following amendment would ensure that
persons who have abused his or her position as an elected
official would not be able to perform marriage ceremonies
without first becoming deputized, as members of the general
public are required to do.
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Author's amendment :
Amend the bill to ensure that individuals who are removed, or
resign from office because of wrong doing which compromised
his or her integrity in that official position may not
solemnize marriages under the provisions of this bill.
Staff further notes that Family Code Sections 400 and 400.1,
which this bill would amend, do not regulate an individual's
ability to charge a fee for solemnizing a marriage. This bill,
which would extend the authority to solemnize a marriage to any
elected official, would greatly expand the number of elected
individuals who may perform ceremonies, and the Legislature,
thus, may wish to be cognizant of potential abuse of an elected
official's position for monetary gain. Accordingly, the
following amendment would provide that an elected official is
not permitted to accept payment for the solemnizing of a
marriage while he or she serves in office.
Author's amendment:
On page 2, after line 25 add "(e) the following persons given
that no person holding an elected office shall accept
compensation for solemnizing a marriage while he or she holds
office."
3.Eliminating the requirement of instruction from the county
clerk
This bill would eliminate the need for elected officials to
receive instruction from the county clerk regarding marriage
solemnization. While solemnizing a marriage and filling out the
license are not difficult, mistakes (e.g., spelling errors,
omissions, etc.) on a marriage license/certificate can be
difficult to correct. If not corrected, either the marriage
record will be inaccurate (which may require subsequently
amending the marriage certificate through the Office of Vital
Records) or the marriage may not be recorded with the state.
The process of obtaining a license and recording a marriage
varies from county to county, but generally all California
counties provide marriage licenses to couples getting married in
the near future and most perform civil ceremonies for a small
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fee. Once a couple has obtained their marriage license and
participated in a qualified ceremony, the marriage license
becomes a marriage certificate which must be sent back to the
county to be recorded. Regarding the specifics of solemnizing
marriages, the county clerk, who is required to provide
instruction on solemnizing marriages to individuals who seek to
be deputized for one specific ceremony (see Background), would
arguably be able to provide instruction to any official who
requests information prior to performing a ceremony, thereby
ensuring elected officials have access to the information
required to correctly solemnize a marriage.
Support : None Known
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : AB 875 (Gaines) would authorize a
county sheriff to solemnize a marriage after obtaining and
reviewing all available instructions from the county clerk for
marriage solemnization. This bill is currently in the Assembly
Judiciary Committee.
Prior Legislation :
AB 1525 (Lowenthal, Ch. 450, Stats. 2014) authorized a city
clerk to solemnize a marriage after the city clerk obtains and
reviews from the county clerk all available instructions for
marriage solemnization before the city clerk first solemnizes a
marriage.
SB 991 (Runner, Ch. 63, Stats. 2012) See Background.
AB 967 (Ma & Lieu. 2010) would have authorized an elected mayor
of a charter city, while that person holds that office, to
solemnize a marriage ceremony. This bill was vetoed by Governor
Schwarzenegger.
AB 2600 (Ma, Ch. 268, Stats. 2010) authorized an elected mayor
of a city, while in that office, to solemnize a marriage
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ceremony, after the mayor obtains and reviews from the county
clerk all available instructions for marriage solemnization
before the mayor first solemnizes a marriage.
Prior Vote :
Assembly Floor (Ayes 78, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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