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: 9/7/99 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
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insurers to offer employers and contracting agencies
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.
Senate Floor Amendments of 9/7/99:
1. Expand coverage of the bill to opposite-sex partners who
are senior citizens 62 years or older and who are
eligible for either social security or SSI, thus making
them eligible for benefits provided by the bill;
2. Amend PERS-related provisions of the bill to
specifically cover judges, judicial branch employees and
other state employees and officers who are not
represented in bargaining units;
3. Amend PERS-related provisions to include a requirement
that domestic partnerships reimburse employers for any
additional costs associated with the benefit provided;
4. Amend PERS-related provisions to prohibit applying for
benefits both as an employee and as a domestic partner
(a rule that currently applies to state employees and
their spouses);
5. Provide for a one-time open enrollment period for
PERS-covered employees to get benefits started for their
domestic partners;
6. Change the effective preemption date of any local law or
ordinance creating domestic partnerships from January 1,
2000 to July 1, 2000; and
7. Delete a provision that would have validated in this
state a domestic partnership created and valid in
another state.
ANALYSIS : Existing law provides for the creation of
marriages, specifies the rights and obligations of spouses
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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" as two
adults who have chosen to share one another's lives in an
intimate and committed relationship of mutual caring. The
bill would require that a domestic partnership established
in California 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. Either of the following:
A. Both persons are members of the same sex.
B. Both persons meet the eligibility criteria under
Title II of the Social Security Act as defined in 42
U.S.C. Section 402(a) for old-age insurance benefits
or Title XVI of the Social Security Act as defined in
42 U.S.C. Section 1381 for aged individuals.
Notwithstanding any other provision of this section,
persons of opposite sexes may not constitute a
domestic partnership unless both persons are over the
age of 62.
1. Both persons are capable of consenting to the domestic
partnership.
2. Neither person has previously filed a declaration of
Domestic Partnership with the Secretary of State that
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has not been terminated.
3. Both file a Declaration of Partnership with the
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
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certified mail that he or she is terminating the
partnership;
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
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both parties. Upon termination of the domestic
partnership, this subdivision shall govern the division
of any property jointly acquired by the partners.
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. It is the intent of the Legislature to retain the right
of hospitals and other health care facilities to
establish visitation policies in reasonable and
appropriate circumstances. In enacting this
legislation, it is the intent of the Legislature to
provide hospitals and other health facilities with the
authority to administer those polices in a manner that
applies equally to spouses, registered domestic
partners, and other immediate family members.
Preemption :
1. Any local ordinance or law that provides for the
creation of a "domestic partnership" shall be preempted
on and after July 1, 2000, except as provided in
subdivision No. 3 below.
2. Domestic partnerships created under any local domestic
partnership ordinance or law before July 1, 2000, shall
remain valid. On and after July 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,
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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:
This bill provides that it is the purpose of this bill to
provide employers or contracting agency 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.
The bill provides if an employee or annuitant has a
domestic partner who is an employee or annuitant, each
domestic partner may enroll as an individual. No person
may be enrolled both as an employee or annuitant and as a
family member. A family member may be enrolled with
respect to only one employee or annuitant.
In order to receive any benefit provided under the
provisions of this bill, an employee or annuitant would be
required to present to the board proof in a manner
designated by the board that the employee or annuitant and
his or her partner have filed a Valid Declaration of
Domestic Partnership with the Secretary of State.
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.
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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 any of the following:
1. Represented state employees who are members of a
bargaining unit or who retired from a bargaining unit
only if there is a signed memorandum of understanding
between the state and the recognized employee
organization to adopt the benefits accorded under this
article.
2. The Department of Personnel Administration makes this
article simultaneously applicable to all eligible
annuitants retired from the bargaining unit. This
article shall not apply to active state employees who
are members of a state bargaining unit unless it also
applies to eligible annuitants retired from that
bargaining unit and members of the Public Employees'
Retirement System who are employed by the Assembly, the
Senate, and the California State University only if the
Assembly Rules Committee, the Senate Rules Committee,
and the Board of Trustees of the California State
University, respectively, make this section applicable
to their employees.
3. Members of the Public Employees' Retirement System who
are state employees of the judicial branch, and judges
and justices who are members of the Judges' Retirement
System or the Judges' Retirement System II, if the
Judicial Council makes this provision applicable to
them.
4. Employees excluded from the Ralph C. Dills Act (Chapter
10.3 (commencing with Section 3512) of Division 4 of
Title 1) upon adoption by the Department of Personnel
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Administration of regulations to implement employee
benefits under this article for those state officers and
employees excluded from, or not otherwise subject to the
Ralph C. Dills Act. Regulations adopted or amended by
this bill shall not be subject to review and approval of
the Office of Administrative Law pursuant to the
Administrative Procedure Act (Chapter 3.5 (commencing
with Section 11340) of Part 1 of Division 3 of Title 2).
These regulations shall become effective immediately
upon filing with the Secretary of State.
The bill authorizes the board to establish a one-time
special enrollment period to permit currently enrolled
employees and annuitants whose domestic partners will be
eligible for family member status pursuant to this article
to enroll those domestic partners.
The bill authorizes an employer to require an employee or
annuitant or his or her domestic partner to be financially
responsible for any increased cost of covering the domestic
partner that exceeds the normal employer contribution rate
resulting from the decision of that employer to offer
health coverage to domestic partners of employees and
annuitants pursuant to this article.
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
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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
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
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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
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
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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
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
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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
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.
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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
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
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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
RJG:jk 9/8/99 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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