BILL ANALYSIS                                                                                                                                                                                                    



                             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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