BILL ANALYSIS                                                                                                                                                                                                    



                                                             


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|SENATE RULES COMMITTEE            |                    AB 26|
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                       THIRD READING
                              

Bill No:  AB 26
Author:   Migden (D)
Amended:  9/3/99 in Senate
Vote:     21

  
  SENATE JUDICIARY COMMITTEE  :  6-3, 7/7/99
AYES:  Burton, Escutia, O'Connell, Peace, Sher, Schiff
NOES:  Haynes, Morrow, Wright

  SENATE APPROPRIATIONS COMMITTEE  :  8-4, 9/1/99
AYES:  Johnston, Alpert, Bowen, Burton, Escutia, Karnette,  
  Perata, Vasconcellos
NOES:  Johnson, Kelley, Leslie, Mountjoy
NOT VOTING:  McPherson

  ASSEMBLY FLOOR  :  41-38, 5/27/99 - See last page for vote
 

  SUBJECT  :    Domestic partnerships

  SOURCE  :     Author

 
  DIGEST  :   This bill defines a domestic partnership and  
provide for its registration and termination in the state.   
 It specifies the legal effect of a domestic partnership,  
establishes the validity of domestic partnerships entered  
into outside of the state, and establishes the right of a  
domestic partner and his or her child and the domestic  
partner of a patient's parent to make hospital visits to a  
patient.

The bill requires group health plans and group disability  
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insurers to offer employers coverage for domestic partners  
of employees, in the same manner as other dependents.  If  
an employer elects coverage of domestic partners by a group  
health plan or a group disability insurer, the bill  
requires that the health plan or disability insurer that  
provides hospital, medical or surgical expense benefits for  
employees also enroll domestic partners in the same manner  
as other dependents.

  ANALYSIS  :   Existing law provides for the creation of  
marriages, specifies the rights and obligations of spouses  
during marriage, and provides the procedure for the  
termination of marriage and the division of marital  
property and obligations after death or marriage.

This bill would define the term "domestic partners" and  
require that a domestic partnership meet all of the  
following:

1. Both persons have a common residence.

2. Both persons agree to be jointly responsible for each  
   other's basic living expenses incurred during the  
   partnership.

3. Neither person is married or a member of another  
   domestic partnership.

4. The two adults are not related by blood to each other  
   such that they could not be married to each other under  
   existing law.

5. Both persons are at least 18 years of age. 

6. Both persons are members of the same sex.

7. Both persons are capable of consenting to the domestic  
   partnership.

8. Neither person has previously filed a declaration of  
   Domestic Partnership with the Secretary of State that  
   has not been terminated.

9. Both file a Declaration of Partnership with the  







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   Secretary of State, as provided.

"Have a common residence" means that both domestic partners  
share the same residence.  It is not necessary that the  
legal right to possess the common residence be in both of  
their names.  Two people have a common residence even if  
one or both have additional residences.  Domestic partners  
do not cease to have a common residence if one leaves the  
common residence but intends to return.

"Basic living expenses" means, shelter, utilities, and all  
other costs directly related to the maintenance of the  
common household of the common residence of the domestic  
partners.  It also means any other cost, such as medical  
care, if some or all of the cost is paid as a benefit  
because a person is another person's domestic partner.

"Joint responsibility" means that each partner agrees to  
provide for the other partner's basic living expenses if  
the partner is unable to provide for herself or himself.   
Persons to whom these expenses are owed may enforce this  
responsibility if, in extending credit or providing goods  
or services, they relied on the existence of the domestic  
partnership and the agreement of both partners to be  
jointly responsible for those specific expenses.

This bill would require the Secretary of State to provide  
forms for the registration and termination of domestic  
partnerships, to distribute such forms in each county, and  
to establish and charge fees for the actual costs of  
processing these forms.  The bill would require the  
Secretary of State to register the Declaration of Domestic  
Partnership in a registry for those partnerships and return  
a copy of the registered form to the domestic partners at  
the address provided by the domestic partners as their  
common residence.

Termination of a partnership would occur under one of the  
following scenarios: 

1. One partner serves on the other a written notice by  
   certified mail that he or she is terminating the  
   partnership;








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2. One of the domestic partners dies;

3. One of the domestic partners marries;

4. The domestic partners no longer have a common residence.

A Notice of Termination of Domestic Partnership would be  
filed with the Secretary of State containing specified  
information, and all third parties to whom a copy of the  
Declaration of Partnership had been given would have to be  
notified. 

The bill would define the legal effect of creating a  
domestic partnership and would expressly provide that  
registration of the domestic partnership would not  
establish any rights except those specifically provided in  
the bill, and that upon termination of the partnership the  
partners shall incur none of the obligations to each other  
that the bill would establish.  

The bill would further provide that:

1. The filing of a Declaration of Domestic Partnership  
   pursuant to this division shall not change the character  
   of property, real or personal, or any interest in any  
   real or personal property owned by either domestic  
   partner or both of them prior to the date of filing of  
   the declaration.

2. The filing of a Declaration of Domestic Partnership  
   pursuant to this bill shall not, in and of itself,  
   create any interest in, or rights to, any property, real  
   or personal, owned by one partner in the other partner,  
   including, but not limited to, rights similar to  
   community property or quasi-community property.

3. Any property or interest acquired by the partners during  
   the domestic partnership where title is shared shall be  
   held by the partners in proportion of interest assigned  
   to each partner at the time the property or interest was  
   acquired unless otherwise expressly agreed in writing by  
   both parties. Upon termination of the domestic  
   partnership, this subdivision shall govern the division  
   of any property jointly acquired by the partners.







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4. The formation of a domestic partnership under this bill  
   shall not change the individual income or estate tax  
   liability of each domestic partner prior to and during  
   the partnership, unless otherwise provided under another  
   state or federal law or regulation.

5. Any domestic partnership entered into outside of this  
   state, which would be valid by the laws of the  
   jurisdiction under which the partnership was created,  
   shall be valid in this state. 

  Preemption  :

1. Any local ordinance or law that provides for the  
   creation of a "domestic partnership" shall be preempted  
   on and after January 1, 2000, except as provided in  
   subdivision No. 3 below.

2. Domestic partnerships created under any local domestic  
   partnership ordinance or law before January 1, 2000,  
   shall remain valid.  On and after January 1, 2000,  
   domestic partnerships previously established under a  
   local ordinance or law shall be governed by the  
   provisions of this bill and the rights and duties of the  
   partners shall be those set out in this bill, except as  
   provided in No. 3 below, provided a Declaration of  
   Domestic Partnership is filed by the domestic partners.

3. Any local jurisdiction may retain or adopt ordinances,  
   policies, or laws that offer rights within that  
   jurisdiction to domestic partners or as more broadly  
   defined by the local jurisdiction's ordinances,  
   policies, or laws, or that impose duties upon third  
   parties regarding domestic partners, or as more broadly  
   defined by the local jurisdiction's ordinances,  
   policies, or laws, that are in addition to the rights  
   and duties set out in this bill, and the local rights  
   may be conditioned upon the agreement of the domestic  
   partners to assume the additional obligations set forth  
   in this division.

Domestic Partners:








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This bill provides that it is the purpose of this bill to  
provide employers the ability to offer health care coverage  
to the domestic partners of their employees and annuitants.

For this part only, and only for the purposes of providing  
health care coverage, a domestic partner is an adult in a  
domestic partnership with a person enrolled as an employee  
or annuitant of an employer contracting with the board for  
health benefits coverage, who has submitted to the system a  
certificate of eligibility or a valid Declaration of  
Domestic Partnership.

For purposes of this part of the bill, a "domestic  
partnership" shall be two people who meet all of the  
criteria set forth in Section 297 of the Family Code.

The existing Public Employees' Medical and Hospital Care  
Act authorizes the Board of Administration of the Public  
Employees' Retirement System to provide health benefits  
plan coverage to state and local public employees and  
annuitants and their family members.

This bill would authorize the state and local employers to  
offer health care coverage and other benefits to domestic  
partners, as defined, who have submitted certificates of  
eligibility or Declarations of Domestic Partnership to the  
board. 

The bill provides that nothing in this bill shall not be  
construed to extend any vested rights to any person nor be  
construed to limit the right of the Legislature to  
subsequently modify or repeal any provision of this bill.
This bill shall apply to (a) employees who are members of  
bargaining units only if those units have signed a  
memorandum of understanding between their employer and the  
recognized employee organization to adopt the benefits  
accorded under this article, and (b) the members of the  
Public Employees' Retirement System who are employed by the  
Assembly, the Senate, the Judicial Council, and the  
California State University only if the Assembly Rules  
Committee, the Senate Rules Committee, the Judicial  
Council, and the Board of Trustees of the California State  
University, respectively, make this section applicable to  
their employees.







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The bill would require health facilities to allow domestic  
partners, their children, and the domestic partner of a  
patient's parent to visit a patient in the facility, except  
where no visitors are allowed or other specified  
conditions.

  Background  :

This bill is a partial resurrection of AB 1059 (Migden,  
1998), which was vetoed by the Governor.  AB 1059 contained  
only the health plan aspects of this bill, and did not  
include a definition of domestic partners.

The domestic partnership portion of the bill is a  
resurrection of AB 2810 (Katz) of 1994, which was vetoed.

SB 75 (Murray) contains language very similar to this bill  
vis-?-vis domestic partnership creation, registration, and  
termination.  This bill is currently on the Senate  
Unfinished Business File.

According to the 1990 census, there are approximately  
500,000 unmarried couples in California, 93 percent of  
which are heterosexual couples and 7 percent are same-sex  
couples.  Of the 500,000 unmarried couples, 35,000 are  
senior citizen couples who are not married because of  
social security or other pension restrictions. 

  Related legislation  :

SB 75 (Murray) is currently on the Senate Unfinished  
Business File.

  Prior legislation  :

Last year, AB 1059 (Migden) passed the Senate Floor 21-17,  
9/8/98 and was sent to the Governor, who vetoed it with  
this message:

"Domestic partner health benefit coverage is an issue that  
is more appropriately left to negotiations between  
employers and employees.  This coverage is available for  
both large and small employers who wish to provide the  







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benefit, as evidenced by the many employers who choose to  
do so.

This bill would also increase the cost of health insurance.  
 No definition for "domestic partner" is provided?. The  
lack of definition for "domestic partner" lends itself to  
instability, fraud and adverse selection?" 

AB 1059 (Migden), 1997-98 Session, passed the Senate 21-17,  
as follows:

AYES:  Alpert, Burton, Calderon, Greene, Hayden, Hughes,  
  Johnston, Karnette, Lee, Lockyer, McPherson, O'Connell,  
  Peace, Polanco, Rosenthal, Schiff, Sher, Solis, Thompson,  
  Vasconcellos, Watson
NOES:  Ayala, Brulte, Costa, Craven, Haynes, Hurtt,  
  Johannessen, Johnson, Kelley, Knight, Kopp, Leslie,  
  Lewis, Monteith, Mountjoy, Rainey, Wright
NOT VOTING:  Dills, Maddy

Votes of Assembly members who are new Senators:

AYES:  Bowen, Escutia, Figueroa, Perata, Murray and Ortiz
NOES:  Baca Poochigian and Morrow

  FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes    
Local:  Yes

Fiscal Impact (in thousands)

  Major Provisions           1999-2000           2000-01           
  2001-02           Fund  

Registration SOS            $118                  $29        
         $54           General

Fee Revenue                    $50                 $100      
         $150           General

    Health benefits             -----Unknown, subject to  
                          employer
                                                      
Option------------------                 Various








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  SUPPORT  :   (Per Senate Judiciary Committee 7/7/99) (Unable  
to reverify at time of writing)

Service Employee International Union (SEIU)
American Civil Liberties Union (ACLU)
City and County of San Francisco
California Teachers Association
City of West Hollywood
Elections Committee of the County of Orange (ECCO)
L.A. Gay and Lesbian Center
Congress of California Seniors
California Nurses Association
California School Employees Association
California Alliance for Pride and Equality (CAPE)
East Bay Municipal Utility District
Older Women's League of California
California National Organization for Women (NOW)
Association of Bay Area Governments
Santa Barbara Stonewall Democratic Club
Academic Senate of the California State University
California Child, Youth & Family Coalition (CCYFC)
California Professional Firefighters (CPF)
People For the American Way
Wildcat International
California State Employees Association
Hit Construction, Fresno
Central California Alliance
Friends Committee on Legislation of California
Kaiser Foundation Health Plan, Inc.
California Church Impact
Inland Empire Lesbian and Gay Democratic Club
National Center for Lesbian Rights
Parents, Families & Friends of Lesbians & Gays, San  
Jose/Peninsula 
  Chapter
California Federation of Teachers
Numerous individuals

  OPPOSITION  :    (per Senate Judiciary Committee  
7/7/99)(Unable to reverify at time of writing)

Secretary of State Bill Jones
California Catholic Conference
Committee on Moral Concerns







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Osborne Neighborhood Church
Calvary Chapel Grass Valley
Central Assembly
Los Gatos Christian Church
Women V.I.P.s (Volunteers in politics)
Numerous individuals

  ARGUMENTS IN SUPPORT  :   According to the statistics quoted  
from SB 75 background material, hundreds of thousands of  
Californians cohabit without the benefit of marriage, yet  
their relationships could be as stable as the married  
couples around them.  Especially to senior citizens,  
cohabitation with a trusted friend, male or female, could  
give them companionship, security and independence they so  
need at this time of their lives. Yet, many would not, or  
could not, marry due to restrictions on social security or  
other pension benefits that would affect their incomes.

The author states that AB 26 will help resolve the inequity  
in law with respect to health benefits available to  
employees or other group health plan subscribers.  Some  
health plans currently offer benefits to spouses that are  
not available to a subscriber's partner because the  
subscriber and partner are not married. The problem is the  
same for heterosexual couples, same-sex couples, and  
elderly couples who form committed and exclusive  
relationships, proponents say.  AB 26 would ensure that  
"unmarried couples will not be denied access to health  
benefits for their partner solely because of their sexual  
orientation or marital status."

Lastly, the author cites statistics that show 60 percent of  
all Californians support allowing domestic partners to  
receive benefits such as health coverage, pensions, family  
leave and death benefits.  Reports from institutions such  
as the University of California indicate that extending  
health benefits to the partners of gay and lesbian  
employees has cost UC far less than predicted, adding only  
about $1 million to its yearly $442 million health  
insurance bill (Los Angeles Times, 11/6/98).  Further, the  
University stated, the year-old UC policy has not spawned  
any costly lawsuits, as was suggested when then-Governor  
Wilson mounted an all-out fight opposing the adoption by  
the Regents of a policy to include same-sex domestic  







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partners in the University's health plan.  The argument was  
that lawsuits would come from unmarried heterosexual  
couples who would want coverage.  To date, no lawsuit has  
been filed.

Many supporters of both AB 26 and SB 75 support the bills  
because of the provision that would require a health  
facility to allow a patient's domestic partner, the  
children of the patient's domestic partner, and the  
domestic partner of the patient's child or parent to visit  
the patient, except under specified circumstances (such as,  
the patient doesn't want the visit, no visitors are  
allowed, the visit would pose a danger to the patient or  
others).

"Indeed, such visitation rights would do nothing more than  
recognize the patient's need and right to love and support  
of those closest to the patient during hospitalization, and  
the concomitant need and right of the patient's partner to  
be by the side of his or her loved one during that time.  

Unfortunately, in some hospitals, a "spouse or immediate  
family only" visitation rule (e.g., in an intensive care  
unit) has been used to prohibit the partner of a seriously  
ill or dying man or lesbian from visiting his or her loved  
one; no civilized society should tolerate such inhumane  
practices." --  People for the American Way 6/29/99 letter.

  ARGUMENTS IN OPPOSITION  :   Opponents, the Committee on  
Moral Concerns, asserts that there is no need for AB 26  
because the bill doesn't confer on persons who would  
register as domestic partners any more rights than they  
have under current law.  If they are adult friends, the CMC  
states, there is no reason for them to register; they are  
free to get their own job, and live with whom they please.   
If they are heterosexual couples and they are "unwilling to  
commit to each other in a real marriage, the  
taxpayer-supported state government should not commit to  
their relationship either."

"The historical family arrangement works best for society.   
Struggling families do not need their tax burden increased  
to recognize and support non-dependent adult relationships,  
which is all domestic partnerships really are. ?.Our  







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society now suffers from high rates of divorce, spousal and  
child abandonment, child neglect, and illegitimacy.  We  
cannot afford to further devalue the family with a new  
easy-in, easy-out semi-marriage.  This bill will hurt  
children." --  Committee on Moral Concerns, Sacramento

An individual who has had seven years of experience as a  
Marriage and Family Therapist specializing in partnerships  
of all kinds, asserts that "domestic partners" are "the  
least stable of family units, regardless of their sexual  
orientation.  The rate of 'partner turnover' makes them  
difficult to keep track of and will open this kind of  
legislation to a great deal of costly abuse and fraud."   
This opponent and others also contend that the bill could  
"drive up the cost of healthcare and disability insurance,  
which, we as taxpayers, will have to pay for directly  
through our insurance plans or indirectly through taxes."

The Secretary of State suggests that registration be done  
at the local level, not at the state, because vital  
statistics have traditionally been recorded and maintained  
at the local level.  He also states that requiring domestic  
partners to register with the state would be more  
burdensome for them than is currently required for engaged  
couples who can walk into a local government facility to  
obtain a marriage license.

  ASSEMBLY FLOOR  : 
AYES:  Alquist, Aroner, Bock, Calderon, Cardenas, Cedillo,  
  Corbett, Davis, Ducheny, Dutra, Firebaugh, Floyd,  
  Gallegos, Hertzberg, Honda, Jackson, Keeley, Knox, Kuehl,  
  Lempert, Longville, Lowenthal, Mazzoni, Migden, Nakano,  
  Papan, Romero, Scott, Shelley, Steinberg, Strom-Martin,  
  Thomson, Torlakson, Vincent, Washington, Wayne, Wesson,  
  Wiggins, Wildman, Wright, Villaraigosa
NOES:  Aanestad, Ackerman, Ashburn, Baldwin, Bates, Battin,  
  Baugh, Briggs, Campbell, Cardoza, Correa, Cox, Cunneen,  
  Dickerson, Florez, Frusetta, Granlund, Havice, House,  
  Kaloogian, Leach, Leonard, Machado, Maddox, Maldonado,  
  Margett, McClintock, Olberg, Oller, Robert Pacheco, Rod  
  Pacheco, Pescetti, Reyes, Runner, Soto, Strickland,  
  Thompson, Zettel
NOT VOTING:  Brewer








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RJG:jk  9/5/99   Senate Floor Analyses 

               SUPPORT/OPPOSITION:  SEE ABOVE

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