BILL ANALYSIS ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 26| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 445-6614 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ 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 CONTINUED AB 26 Page 2 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 AB 26 Page 3 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; AB 26 Page 4 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. AB 26 Page 5 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: AB 26 Page 6 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. AB 26 Page 7 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 AB 26 Page 8 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 AB 26 Page 9 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 AB 26 Page 10 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 AB 26 Page 11 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 AB 26 Page 12 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 AB 26 Page 13 RJG:jk 9/5/99 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END ****