BILL ANALYSIS
AB 73
Page 1
Date of Hearing: March 17, 2009
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 73 (Hayashi) - As Amended: March 12, 2009
SUBJECT : DOMESTIC VIOLENCE FUNDING: FEES
KEY ISSUE : IN ORDER TO ALLOW FOR THE CONTINUED OPERATION OF A
SUCCESSFUL DOMESTIC VIOLENCE PREVENTION PROGRAM IN ALAMEDA
COUNTY, SHOULD THE 2010 SUNSET DATE OF SPECIFIED FEES FOR
SUPPORT OF THAT PROGRAM BE ELIMINATED SO THE EXISTING FEES
REMAIN CONSTANT?
SYNOPSIS
This bill, sponsored by the Alameda County Board of Supervisors
and the Alameda County Family Justice Center (ACFJC), permits
continued funding of a highly successful program to combat
domestic violence in Alameda County, as well as a program in the
City of Berkeley, by eliminating the January 1, 2010 sunset date
for an existing fee for marriage license and birth and death
certificates to fund governmental oversight and coordination of
domestic violence prevention, intervention, and prosecution
programs. The funds collected under this pilot program have
resulted in the creation of the ACFJC, which has served more
than 18,000 adult victims of family violence and 2,500 children.
Supporters, including the Alameda County District Attorney's
Office, contend that this bill is necessary to ensure the
continued operation of this successful domestic violence
prevention program.
AB 2231 (Hayashi), 2008, a substantially similar bill that would
have extended the sunset date to January 1, 2015 for programs in
Alameda and Solano Counties, was vetoed by the Governor over
concerns that the fees used to fund the pilot programs were, in
actuality, a tax. The Howard Jarvis Taxpayers Association
opposes the bill for the same reason. The California Supreme
Court in Sinclair Paints v. Board of Equalization (1997) 15
Cal.4th 866, set forth a two-prong test to determine whether a
particular increase in revenue is a fee or a tax. Under that
test a fee cannot exceed the reasonable cost of providing the
services necessary for which the fee is charged, and must not be
levied for an unrelated revenue purpose. Supporters appear to
demonstrate quite convincingly, under the Sinclair Paints test,
AB 73
Page 2
that the funding source in this bill is indeed a fee, and not a
tax.
The Child Abuse Prevention Center opposes this bill unless
amended to delete the existing $2 fee to the birth certificate
because, the Center argues, a fee currently added to birth
certificates is a source of funding for child abuse prevention
and intervention; and, this bill could "reduce the [future]
ability of the state to raise funds to reduce child abuse."
This bill, however, in no way reduces existing funding to
prevent child abuse.
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SUMMARY : Eliminates the January 1, 2010 sunset date for Alameda
County and the City of Berkeley to continue to authorize
existing fees to fund domestic violence prevention programs, and
extends the deadline for a final report to the Legislature.
Specifically, this bill :
1)States the findings of the Legislature that, among other
things:
a) In California, 9.2 percent of women live in homes where
domestic abuse occurs. Domestic violence is ubiquitous,
cutting across all economic and education levels, all age
groups, ethnicities, and other social and community
characteristics.
b) In nearly half of violent crimes where victim and
aggressor are related, the aggressor is either the spouse
or ex-spouse. Marriage license fees collected through this
act would help communities intervene and prevent domestic
violence in these cases.
c) Domestic violence puts children at risk. Children born
into families where domestic violence occurs are physically
abused or seriously neglected at a rate significantly
higher than the national average in the general population.
Birth certificate fees collected through this act would
help communities with costs to ensure that children who are
born into families with domestic violence receive the help
they need.
d) Studies show more than 10 percent of women are victims
of domestic violence during pregnancy. Pregnant women who
are assaulted by their spouses are 50 percent more likely
AB 73
Page 3
to experience fetal loss (often repeatedly) than women who
were not abused. Women who are battered during pregnancy
are also more likely to die, or their children are born
prematurely with low-birth weights and intense medical
needs. Death certificate fees would help communities with
costs associated with ensuring that pregnant women with
violent spouses receive help and protection and care for
their unborn children and infants.
e) Domestic violence costs are high. Not only is there a
toll on families emotionally and financially, but there are
also direct and hidden costs to society. Most directly,
are the high costs of law enforcement, civil and criminal
justice, health services and other community-based
services. Less visible costs include job turnover, loss of
productivity, school absenteeism, and low school
performance.
f) Domestic violence requires a multifaceted intervention
that engages civil, criminal, health, and social service
sectors working together to align objectives, protocols,
policies and activities of each sector.
2)Eliminates the January 1, 2010 sunset date for the Alameda
County Board of Supervisors and the Berkeley City Council to
continue to authorize existing marriage license and birth and
death certificate fees to fund governmental oversight and
coordination of domestic violence and family violence
prevention, intervention, and prosecution programs.
3)Requires the Alameda County Board of Supervisors and the
Berkeley City Council to submit to the Assembly and Senate
Judiciary Committees, a preliminary report regarding such fee
increases by July 1, 2009, and a final report by July 1, 2014.
Requires the report to provide the amounts of fees received
and expended, as well as the outcomes achieved as a result of
the expenditures.
EXISTING LAW :
1)Authorizes the Alameda and Solano County Boards of
Supervisors, and the Berkeley City Council, upon making
specified findings and declarations, to increase the fees for
marriage licenses and confidential marriage licenses, as well
as certified copies of marriage, birth, and death
certificates, by up to $2, with further increases permitted on
an annual basis, based on the Consumer Price Index for the San
AB 73
Page 4
Francisco metropolitan area for the preceding year. Provides
that the authorization for the fee increases will sunset on
January 1, 2010. (Government Code Sections 26840.10 and
26840.11; Health and Safety Code Sections 103627, 103627.5,
103628.)
2)Directs that these fees be deposited into a special fund to be
used for governmental oversight and coordination of domestic
violence and family violence prevention, intervention, and
prosecution efforts. (Welfare and Institutions Code Sections
18309 and 18309.5.)
3)Provides that the Alameda and Solano County Boards of
Supervisors and the Berkeley City Council must submit to the
Assembly and Senate Judiciary Committees, by July 1, 2009,
reports regarding such fee increases. The report must provide
the amounts of fees received and expended as well as the
outcomes achieved as a result of the expenditures.
(Government Code Sections 26840.10 and 26840.11; Health and
Safety Code Section 103627.5.)
4)Provides a fee of $4 for certified copies of marriage
certificates, birth certificates, and death records. Part of
that existing fee is used to fund governmental oversight and
coordination of domestic violence prevention, intervention,
and prosecution efforts in Contra Costa County. (Health and
Safety Code Section 103626; Welfare and Institutions Code
Section 18308.)
COMMENTS : This bill, sponsored by the Alameda County Board of
Supervisors and ACFJC, permits continued funding of successful
programs to combat domestic violence in Alameda County, as well
as in the City of Berkeley, by eliminating the January 1, 2010
sunset date for an existing fee for marriage license and birth
and death certificates to fund governmental oversight and
coordination of domestic violence programs. According to the
author:
Domestic violence victims may need to seek help from as
many as 25 different agencies - in as many different
locations - police, district attorneys, victim-witness,
social services and other relevant programs. Putting
all these services under one roof, as Alameda County
has done with its Family Justice Center, has helped to
ensure these victims receive all the legal,
AB 73
Page 5
psychological, social and financial assistance they
need. That coordination is funded, in part, by money
from the records fees.
Having a one-stop shop for domestic violence services
has helped to reduce some of Alameda County's stark
statistics. Since 2001, the county has seen a 90
percent decrease in domestic violence homicides. It
has reduced dismissals of domestic violence cases by 20
percent, giving victims more faith that the public
system will protect them. Since opening its doors, the
Alameda County Justice Center has served more than
18,000 adults (including 800 men) and 2,500 children.
The Alameda County Board of Supervisors writes that the funds
from the fee increases have played a vital role in funding the
coordination costs and have "changed the way systems and service
providers are delivering essential and critical services to
victims of domestic violence and their children." The Board
notes that domestic violence deaths in the county dropped from
26 in 2001 to 3 in 2006, with a goal of zero deaths going
forward.
The Alameda County District Attorney's Office concurs, stating
that as a result of the ACFJC "there is a new (or re-newed)
confidence on the part of victims that the legal systems work
for them and that there are resources and service providers who
will work together to protect, support and empower them and
their children to have lives free of interpersonal violence."
The Berkeley City Council, also in support, writes that it uses
these funds for a youth intervention in the schools to promote
healthy relationships and prevent domestic violence, modeled
after "extremely successful peer health educator programs."
Devastating Effects of Domestic Violence on Children and
Families : Domestic violence is a serious criminal justice and
public health problem most often perpetrated against women.
(Extent, Nature and Consequences of Intimate Partner Violence:
Findings from the National Violence against Women Survey, U.S.
Department of Justice (2001).) Prevalence of domestic violence
at the national level ranges from 960,000 to three million women
each year who are physically abused by their husbands or
boyfriends. While the numbers are staggering, they only include
those cases of reported domestic violence. In fact, according
AB 73
Page 6
to a 1998 Commonwealth Fund survey of women's health, nearly 31%
of American women report being physically or sexually abused by
a husband or boyfriend at some point in their lives. (Health
Concerns Across a Woman's Lifespan: 1998 Survey of Women's
Health, The Commonwealth Fund, May 1999.)
Domestic violence continues to be a significant problem in
California. In 2005, the Attorney General's Task Force on
Domestic Violence reported that:
The health consequences of physical and psychological
domestic violence can be significant and long lasting,
for both victims and their children. . . . A study by
the California Department of Health Services of
women's health issues found that nearly six percent of
women, or about 620,000 women per year, experienced
violence or physical abuse by their intimate partners.
Women living in households where children are present
experienced domestic violence at much higher rates
than women living in households without children:
domestic violence occurred in more than 436,000
households per year in which children were present,
potentially exposing approximately 916,000 children to
violence in their homes every year.
(Report to the California Attorney General from the Task Force
on Local Criminal Justice Response to Domestic Violence, Keeping
the Promise: Victim Safety and Batterer Accountability (June
2005) (footnotes omitted).)
That report discovered numerous significant and troubling
problems in the implementation of statutory directives aimed at
preventing domestic violence, including failing to enter
restraining orders into CLETS (California Law Enforcement
Telecommunications System) and failing to ensure that batterers
attend mandated treatment programs. As the Alameda County
program has shown, providing better oversight and coordination
of a county's domestic violence programs helps make significant
improvements in the prevention and prosecution of domestic
violence.
Supporters Appear To Argue Convincingly That Under The Supreme
Court's Test, Funding For The Domestic Violence Oversight And
Coordination Programs Constitutes A Fee And Not A Tax . In 2008,
Governor Schwarzenegger vetoed AB 2231 (Hayashi), which would
AB 73
Page 7
have extended the sunset date for the pilot programs in Alameda
and Solano Counties to January 1, 2015, stating that the fee
increase constitutes a tax that requires local approval. The
Howard Jarvis Taxpayers Association (HJTA) opposes the bill for
the same reason.
While a tax does indeed require a 2/3rds vote of the Legislature
or of local voters, a bona fide regulatory fee does not. The
California Supreme Court laid out the distinction between a fee
and a tax in Sinclair Paints v. Board of Equalization (1997) 15
Cal.4th 866. In that case, the Court found that a fee assessed
on paint manufacturers under the Childhood Lead Poisoning
Prevention Act of 1991 was properly a bona fide regulatory fee
designed to mitigate the effects of lead poisoning and not a
tax. In order to be classified as a regulatory fee and not a
tax, the Court held that the fee must not exceed the reasonable
cost of providing the services necessary for which the fee is
charged, and must not be levied for an unrelated revenue
purpose.
Following the first prong of the Sinclair Paints test, this bill
provides that fees from the program can only be used for
specific domestic violence programs. Thus, the fees cannot
exceed the reasonable cost of the services for which the fee is
charged. Moreover, there is no suggestion that the fees charged
are in excess of the cost of providing the specified services.
Under the second prong of the Sinclair Paints test, the fee must
be levied for a related purpose. HJTA states without further
explanation that "there is absolutely no nexus between certified
certificates and domestic violence prevention." However, the
nexus between the fee and the services it funds is set forth in
this bill's legislative findings. Domestic violence, which
occurs in families and cuts across all economic, educational,
age and ethnic lines, can result in injury or death of the
victims and is learned generationally. Thus domestic violence
involves marriages, births, and deaths. The Alameda County
District Attorney's Office very articulately stated the nexus
between the fee increase and domestic violence in a memo to the
Governor's Office in support of legislation which established
the pilot programs in Alameda and Solano Counties:
Without stopping violence in the home, we will never
stop violence in the community. Without stopping
violence in the community, all citizens are potential
AB 73
Page 8
victims of that violence.
The nexus between the special fee increase allowed
under [the original legislation] and
marriage-birth-fetal death and death certified
certificates cannot be ignored. Statistically, the
most lethal times for a victim of domestic violence,
and children who witness that violence, a) is when she
is separating from the batterer; b) becomes pregnant;
c) after children are born; and d) after getting
married.
Moreover, the fees that this bill seeks to make permanent, and
the specific uses of those fees, are also identical to a program
in Contra Costa County that the Legislature and the Governor
made permanent in 2006. (SB 968 (Torlakson), Chap. 635, Stats.
2006.)
Opposition Raised to Birth Certificate Fee : The Child Abuse
Prevention Center (CAPC) opposes this bill unless amended to
delete the fee increase to the birth certificate. CAPC argues
that a fee currently added to birth certificates is a source of
funding for child abuse prevention and intervention, and this
bill could "reduce the ability of the state to raise funds to
reduce child abuse." It is important to note that this bill in
no way diminishes the funding currently available to prevent
child abuse. Moreover, since the Alameda County Family Justice
Center helps families impacted by family violence, it also
assists families with child abuse issues.
Previous Legislation Creating Domestic Violence Oversight and
Coordination Funding Programs : SB 425 (Torlakson), Chap. 90,
Stats. 2001, established a similar domestic violence prevention
funding pilot program in Contra Costa County. SB 968
(Torlakson), Chap. 635, Stats. 2006, repealed the sunset date,
making Contra Costa's program effective indefinitely.
AB 2010 (Hancock), Chap. 830, Stats. 2004, established the pilot
programs in Alameda County and Solano County. AB 1712
(Hancock), Chap. 545, Stats. 2005, authorized the City of
Berkeley, within Alameda County, to also participate in the
pilot program. AB 2231 (Hayashi), 2008, would have extended the
sunset date of those programs to January 1, 2015, but was vetoed
by the Governor.
AB 73
Page 9
REGISTERED SUPPORT / OPPOSITION :
Support
Alameda County Board of Supervisors
Alameda County District Attorney's Office
Alameda County Family Justice Center
American Federation of State, County and Municipal Employees,
AFL-CIO
Berkeley City Council
Opposition
Child Abuse Prevention Center (unless amended)
Howard Jarvis Taxpayers Association
Analysis Prepared by : Leora Gershenzon and Rachel Anderson /
JUD. / (916) 319-2334