BILL ANALYSIS
SENATE COMMITTEE ON VETERANS AFFAIRS
JEFF DENHAM, CHAIRMAN
Bill No: AB 1644
Author: Nielsen
Version: As amended June 2, 2010
Hearing Date: June 22, 2010
Fiscal: No
SUBJECT OF BILL
Veterans' remains and internment
PROPOSED LAW
1. Requires a cemetery authority, corporation, or
association in possession of cremated remains to give
information to a veterans' service organization (VSO)
upon meeting the following conditions:
VSO has determined the remains are a veteran or
veteran dependent eligible for burial in national or
state cemetery;
VSO has made a reasonable effort to locate the
agent or family member who has the right to control
the remains;
Agent or family member has made no attempt to
claim the remains; and
The remains have remained unclaimed for at
least one year.
1. Exempts a cemetery authority, corporation, or
association from "civil liability except in willful or
wanton misconduct, if the conditions of this section
are met."
2. Requires VSO to take all "reasonable steps" to
inter remains received according to this chapter.
3. Exempts VSO from negligence if the VSO did not know
or have reason to know that the remains were not
released in compliance with this bill.
4. Defines terms to be used in the bill.
EXISTING LAW AND BACKGROUND
1. California Military and Veterans Code (MVC) section
940 defines "veteran" as any honorably discharged
veteran from the armed forces of the United States.
2. MVC section 940.5 includes cremation in the
definition of "'burial' and 'internment'".
3. MVC section 941 exempts residents of the state
veterans' homes from the definition of these sections.
4. MVC section 942 requires that each county board of
supervisors (BOS) designate "an honorably discharged
soldier, sailor or marine in the county?who shall
cause to be decently interred the body of any veteran
or widow of a veteran who dies in the county without
having sufficient means to defray the expenses of
burial, other than moneys paid or due and payable by
the United States, pursuant to the World War adjusted
compensation act."*
The World War Adjusted Compensation Act was passed in
1924 over the veto of President John Calvin Coolidge.
The compensation act was a series of payments over 20
years to help make veterans whole for the money they
lost not working in the factories and other employ
while those who did not serve stayed home and got
promotions. Since 1944 is long passed, the clause
regarding the Adjusted Compensation Act is no longer
relevant.
5. MVC section 943 forbids the burial of any veteran
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in a pauper's grave.
6. MVC section 944 provides for the burial of a
veteran even if the person so designated by the county
BOS is unavailable at the time to bury a veteran.
7. MVC section 946 provides that if a veteran dies in
other than his county of residence that the county
burying that veteran shall be reimbursed by the county
of residence.
8. MVC section 948 requires the clerk of the BOS to
make application to the proper authorities of the
United States for a headstone as authorized by the
Congress of the United States of America.
9. MVC section 949 requires BOS to "perpetually
maintain" these graves. MVC sections 960, 960.5, and
961 all also deal with the required care of veterans'
graves.
10. Defines "cremated remains" to mean the
ashes and bone fragments of a human body that are left
after cremation in a crematory, including ashes from
the cremation container. (Health & Safety Code, (H&S)
Section 7002.)
11. Defines "interment" to mean the
disposition of human remains by entombment or burial
in a cemetery or, in the case of cremated remains, by
inurnment, placement or burial in a cemetery, or
burial at sea. (H&S 7009.)
12. Requires licensed funeral directors,
embalmers, and cemetery personnel, prior to
disposition of cremated remains, to do all of the
following:
a) Remove the cremated remains from the
place of cremation in a
durable container.
b) Keep the cremated remains in a durable
container.
c) Store the cremated remains in a place
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free from exposure to the
elements.
d) Responsibly maintain the cremated remains.
(H&S Sec. 7054.6(b).)
e) Provides that the right to control the
disposition of the remains of a deceased person
and the location and conditions of interment,
unless other directions have been given by the
decedent, vests in, and the duty of disposition
and the liability for the reasonable cost of
disposition of the remains devolves upon, the
following in the order named: (1) an agent under
a power of attorney for health care, as
provided; (2) the surviving spouse; (3) surviving
adult children; (4) surviving parents; (5)
surviving adult children; (6) surviving adult
person in the next degree of kinship; (7) the
public administrator when the deceased has
sufficient assets. (H&S Sec. 7100(a).)
COMMENT
1. This bill is to help take care of the unclaimed
remains of veterans. At least since 1935 when
California's Codes were reorganized the MVC has had
provisions for taking care of the remains of indigent
and/or unclaimed veterans and their spouses, which
raises the question of "Why do we need to reinvent the
wheel?"
2. If we do need to reinvent the wheel, then the next
question is, "Why divide the policy across two
different codes and put the new terms into the Health
& Safety Code?"
3. As evidenced by MVC sections 940-962 (most of which
were mentioned in the existing law and background
section of this analysis). The state now has
jurisdiction over this matter. Does the Legislature
want to switch this responsibility from the counties,
which it has jurisdiction over and can hold
accountable, to service organizations that it has no
jurisdiction over and cannot hold accountable?
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4. In addition to service organizations, this bill
allows "a member or employee of an eligible nonprofit
veterans' corporation, association, or entity that
specifically deals with verification and veterans'
burials" to receive veterans' remains.
5. Veteran Service Organizations (VSO) are chartered
in Washington, D.C., but counties are chartered within
the state.
While the Veterans' of Foreign Wars (VFW), the
American Legion (The Legion), and the Vietnam
Veterans' of America (VVA) are familiar to
legislators, the list is full of organizations that
even members of this committee would likely not be
aware of or recognize. Congress and the National
Veterans' Administration have currently chartered 54
different entities to work on behalf of veterans.
(Source: http://veterans.house.gov/links/ )
Members of the committee as well as the State Senate
as a whole, may want to ask if they are comfortable
relying on the judgment of entities in Washington
D.C.'s as to what is or is not a legitimate
organization for claiming veterans' remains here in
California?
Given the numerous organizations and the broad
language that allows any "employee" of any "entity"
associating itself with "veterans' burials" to receive
veterans' remains, could increase burial scandals such
as the 1,000 cremains of people found in the Contra
Costa Airport in 1997 or the storage locker cremains
of 96 found in Georgia in 2009.
6. Background information provided by the author and
sponsor states this bill is necessary to allow
unclaimed remains of veterans to be properly interred
and that several other states have enacted similar
legislation.
California has long recognized the need for the proper
interment of veterans remains, including cremains, and
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already has a system in place that it administers
through the counties.
The present system goes beyond simple internment and
guarantees a proper grave, a proper headstone, and
proper care into perpetuity.
7. Given existing state law, the question must be
raised as to why VSOs have not applied under MVC
section 942 to become those officers designated by
their county BOS to do this work through the channels
that exist now?
Certainly as a bona fide officer of the county, with
the authority to do what is necessary to properly
inter all veterans in the county, that officer would
have the ability to request the proper information
from the funeral home as well as provide the remains
to a VA cemetery once verified.
8. Some small amendments may be needed in the present
pertinent code sections, such as raising the $10 limit
on the amount of time county staff can spend
processing the paperwork with VA for a headstone, but
those small issues can easily be taken care of through
amendments to the existing code section.
9. REQUIRED AMENDMENTS -
a) "Veteran Remains Organization" is defined
for the purposes of this section to mean any
entity recognized by the Veterans Administration
and the National Personnel Records Center as an
organization authorized to verify and inter
unclaimed cremated remains of American veterans.
The term includes a member or employee of a
Veteran Remains Organization as defined.
b) The committee should amend this language
into the 900s section of the Military and
Veterans Code to keep all the same subject matter
in the same section of code.
c) County BOS are encouraged to appoint
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personnel from a Veterans Remains Organization as
defined to fulfill the role created in MVC 942.
d) Amend MVC section 942 to include Veterans
Remains Organization as defined in suggested
amendment "a".
PRIOR ACTIONS
Assembly Judiciary 10-0
Assembly Veterans 9-0
Assembly Floor 75-0
None of the members of this committee were seated for the
1935, 1949, 1955, or 1983 amendments.
SUPPORT
Vietnam Veterans of America, California State Council
(Sponsor)
AMVETS, Department of California
CA Association of County Veteran Service Officers (CVSO)
American Legion, Department of California
OPPOSE
None received
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