Existing law enumerates persons who are authorized to solemnize a marriage, including judges and retired judges. Existing law prohibits a judge, elected official, or city clerk from accepting compensation for solemnizing a marriage. Existing law makes it a misdemeanor for a judge, justice, commissioner, or assistant commissioner of a court of this state to accept money or another thing of value for performing a marriage, but excepts the acceptance of a fee to perform a marriage on Saturday, Sunday, or a legal holiday.

This bill, to the extent not prohibited by law and provided that the compensation is reasonable, would authorize specified officials, including retired judges and retired commissioners, to accept compensation for solemnizing a marriage.

This bill would declare that it is to take effect immediately as an urgency statute.

Existing law enumerates persons who are authorized to solemnize a marriage, including judges and retired judges. Existing law prohibits a judge, elected official, or city clerk from accepting compensation for solemnizing a marriage. Existing law makes it a misdemeanor for a judge, justice, commissioner, or assistant commissioner of a court of this state to accept money or another thing of value for performing a marriage, but excepts the acceptance of a fee to perform a marriage on Saturday, Sunday, or a legal holiday.

This bill, to the extent not prohibited by law and provided that the compensation is reasonable, would authorize specified officials, including retired judges and retired commissioners, to accept compensation for solemnizing a marriage.

This bill would declare that it is to take effect immediately as an urgency statute.

Existing law enumerates persons who are authorized to solemnize a marriage, including judges and retired judges. Existing law prohibits a judge, elected official, or city clerk from accepting compensation for solemnizing a marriage. Existing law makes it a misdemeanor for a judge, justice, commissioner, or assistant commissioner of a court of this state to accept money or another thing of value for performing a marriage. marriage, but excepts the acceptance of a fee to perform a marriage on Saturday, Sunday, or a legal holiday.

This bill, to the extent not prohibited by law, law and provided that the compensation is reasonable, would authorize specified officials, including retired judges and retired commissioners, to accept compensation for solemnizing a marriage.

This bill would declare that it is to take effect immediately as an urgency statute.

Existing law enumerates persons who are authorized to solemnize a marriage, including judges and retired judges. Existing law prohibits a judge, elected official, or city clerk from accepting compensation for solemnizing a marriage. Existing law makes it a misdemeanor for a judge, justice, commissioner, or assistant commissioner of a court of this state to accept money or another thing of value for performing a marriage.

This bill, to the extent not prohibited by law, would authorize specified officials, including retired judges and retired commissioners, to accept compensation for solemnizing a marriage.

This bill would declare that it is to take effect immediately as an urgency statute.

 CONSENT  

Bill No: AB 430

Author:

:

Vote:

SENATE JUDICIARY COMMITTEE: 7-0, 6/13/17

AYES: Jackson, Moorlach, Anderson, Hertzberg, Monning, Stern, Wieckowski

ASSEMBLY FLOOR: 76-0, 4/3/17 - See last page for vote

SUBJECT:

SOURCE: California Judges Association

DIGEST:

This bill authorizes, to the extent not prohibited by law and provided that the compensation is reasonable, specified officials, including retired judges and retired commissioners, to accept compensation for solemnizing a marriage. This bill contains an urgency clause and takes effect immediately.

ANALYSIS:

Existing law:

1. Provides that marriage is a personal relation arising out of a civil contract between two persons, to which the consent of the parties capable of making that contract is necessary. Consent alone does not constitute marriage. Consent must be followed by the issuance of a license and the solemnization. (Pen. Code Sec. 300.)
2. Provides that every judge, justice, commissioner, or assistant commissioner of a court of this state who accepts any money or other thing of value for performing any marriage, including any money or thing of value tendered by the persons about to be married or who have been married by such judge, justice, commissioner, or assistant commissioner, is guilty of a misdemeanor, regardless of whether acceptance occurs before or after the performance of the marriage and whether or not performance of the marriage is conditioned on the giving of such money or the thing of value. (Pen. Code Sec. 94.5.)
3. Provides that it is not a misdemeanor to request or accept a fee expressly imposed by law for performance of a marriage or the request or acceptance by any retired judge, retired justice, or retired commissioner of a fee for the performance of a marriage. (Pen. Code Sec. 94.5.)
4. Allows a judge, justice, commissioner, or assistant commissioner of a court of this state to accept a fee for performing a marriage on Saturday, Sunday, or a legal holiday. (Pen. Code Sec. 94.5.)
5. Provides that a marriage may be solemnized by a priest, minister, rabbi, or authorized person of any religious denomination who is 18 years of age or older, even though marriage is a personal relation arising out of a civil contract. (Fam. Code Sec. 400(a).)
6. Provides a marriage may be solemnized by any of the following persons who are 18 years of age or older:
   1. a judge or retired judge, commissioner of civil marriages or retired commissioner of civil marriages, commissioner or retired commissioner, or assistant commissioner of a court of record in this state;
   2. a judge or magistrate who has resigned from office;
   3. a justice or retired justice of the United States Supreme Court;
   4. a judge or retired judge of a court of appeals, a district court, or a court created by an act of the United States Congress, the judges of which are entitled to hold office during good behavior;
   5. a judge or retired judge of a bankruptcy court or a tax court;
   6. a United States magistrate or retired magistrate;
   7. a Member of the Legislature or constitutional officer of this state, or a Member of Congress of the United States who represents a district within this state, or a former Member of the Legislature or constitutional officer of this state, or a former Member of Congress of the United States who represented a district within this state;
   8. a person that holds or formerly held an elected office of a city, county, or city and county; or
   9. a city clerk of a charter city. (Fam. Code Section 400(b).)
7. Provides any justice, judge, commissioner, magistrate, city clerk or elected official shall not accept compensation for solemnizing a marriage while holding office, nor may they solemnize a marriage pursuant to this section if they have been removed from office due to committing an offense or have been convicted of an offense that involves moral turpitude, dishonesty, or fraud. (Fam. Code Section 400(c).)

This bill:

1. Provides that consistent with Section 94.5 of the Penal Code and provided that any compensation received is reasonable, including payment of actual expenses, a marriage may be solemnized by a judge, commissioner of civil marriages, commissioner, magistrate, justice of the United States Supreme Court, whether active or retired.
2. Takes effect immediately, as it contains an urgency clause stating these changes are needed in order for couples in the state to have access to secular marriage ceremonies at a reasonable cost and at the earliest possible time.

Background

In 2016, AB 2761 (Low, Chapter 528, Statutes of 2016) expanded the categories of individuals who could perform marriage. Specifically, AB 2761 authorized former Members of the Legislature and constitutional officers of this state, former Members of the United States Congress who represented a district within this state, and current and former elected officials of a city, county, or city and county, to solemnize a marriage. AB 2761 additionally removed the requirement that county supervisors, city clerks, and elected mayors obtain and review all available instructions for marriage solemnization before first solemnizing a marriage.

AB 2761 was then amended on the Senate Floor to restructure the bill, ensuring that, like elected officials, judges may not accept compensation for solemnizing a marriage while serving on the bench, and prohibits judges from solemnizing a marriage if they have been removed from the bench due to committing an offense or have been convicted of a crime that involves moral turpitude, dishonesty, or fraud. However, Penal Code Section 94.5 already penalized the acceptance by a judge, justice, commissioner, or assistant commissioner of a court who accepts any money or other thing of value for performing any marriage, regardless of whether the performance of the marriage is conditioned on the giving of such money or thing of value. Penal Code Section 94.5 makes an exception for the acceptance of a fee for a judge, justice, commissioner, or assistant commissioner who performs a marriage on Saturday, Sunday, or a legal holiday.

AB 430 brings Family Code Section 400 in line with Penal Code Section 94.5 by reauthorizing judges’ ability to receive reasonable compensation for performing marriages outside of their normal work hours on a Saturday, Sunday, or legal holiday.

Comments

Purpose of the bill. Last year, AB 2761 inadvertently removed the right for judges and magistrates to receive modest compensation for performing marriages on Saturdays, Sundays, and legal holidays. Prior to the adoption of this bill, judicial officers would receive money for coming in outside of court hours, or traveling to outside locations on weekends or holidays, to marry those who preferred to be wed outside of the normal weekday work hours. As it currently stands, the bill also created ambiguity between the Family Code, which now prevents judicial officers from receiving compensation, and the Penal Code, which allows them to receive compensation.

This bill seeks to rectify these unintended consequences. To allow the public to be conveniently served by nondenominational individuals authorized to solemnize marriages, and provide those individuals with the compensation they had previously been afforded, AB 430 will amend the Family Code to clarify that active judicial officers may accept reasonable payment and reimbursement of expenses for marriages on weekends and holidays granted to them by current Penal Code statute.

Required solemnization. Existing law requires the solemnization of a marriage for the civil contract to be valid. (Fam. Code Sec. 300.) AB 2761 expanded the pool of individuals who were approved to solemnize marriages in part because this expansion “allow[s] couples to choose an officiant that has personal meaning to the couple without imposing a financial or administrative burden on that selected officiant.” [AB 2761 (Low, Chapter 528, Statutes of 2016), Senate Judiciary Committee Analysis, (June 14, 2016).] As a result of the changes made by AB 2761, after it was amended on the Senate floor, there is concern that judges may no longer solemnize marriages outside of court hours. Though many judges solemnize marriages without charging a fee, prior to the enactment of AB 2761, some judges charged modest fees to cover their costs of providing an after-hours service. The changes proposed by this bill are to allow those judges to continue charging reasonable fees for performing this service after-hours.

The California Judges Association, sponsor of this bill, writes:

Members of the public regularly call on judges to perform marriages on weekends or legal holidays, and for decades judges have been providing this service to the public. Whether at a public or private location, judges have, for a reasonable fee or no fee at all, or simply to cover their expenses, provided couples wishing to be married on a weekend or legal holiday the opportunity to do so.

Members of the public regularly call on judges to perform marriages on weekends or legal holidays, and for decades judges have been providing this service to the public. Whether at a public or private location, judges have, for a reasonable fee or no fee at all, or simply to cover their expenses, provided couples wishing to be married on a weekend or legal holiday the opportunity to do so.

By returning judges ability to charge reasonable fees for solemnizing a wedding on weekends or legal holidays, this bill ensures couples will have their choice of a secular official to solemnize the marriage despite the day of the week the couple chooses to be married on.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 6/13/17)

California Judges Association (source)

OPPOSITION: (Verified 6/13/17)

None received

ASSEMBLY FLOOR: 76-0, 4/3/17

AYES: Acosta, Aguiar-Curry, Travis Allen, Arambula, Baker, Berman, Bigelow, Bloom, Bocanegra, Bonta, Burke, Caballero, Calderon, Cervantes, Chau, Chávez, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Dababneh, Daly, Eggman, Flora, Fong, Frazier, Friedman, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gomez, Gonzalez Fletcher, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Quirk, Quirk-Silva, Reyes, Ridley-Thomas, Rodriguez, Rubio, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Voepel, Waldron, Weber, Wood, Rendon

NO VOTE RECORDED: Brough, Dahle, Harper, Mullin

Prepared by: Marisa Shea / JUD. / (916) 651-4113

6/14/17 16:16:33

**** END ****

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2017-2018 Regular Session

Bill No: AB 430 (Author:Irwin)

Version: March 28, 2017

Hearing Date: June 13, 2017

Fiscal: No

Urgency: Yes

Consultant: MS

SUBJECT

Marriage: solemnization

DESCRIPTION

This bill, to the extent not prohibited by law and provided that the compensation is reasonable, would authorize specified officials, including retired judges and retired commissioners, to accept compensation for solemnizing a marriage. This bill contains an urgency clause and would take effect immediately.

BACKGROUND

A marriage is not valid unless it is solemnized by an authorized individual. (Fam. Code Sec. 300.) Under existing law, marriages may be solemnized by authorized persons of any religious denomination, judges, commissioners, and magistrates. In 1998, this list was expanded to include California Legislators, constitutional officers, and members of Congress from California, during the time period that those individuals are holding office. (AB 1094, Committee on Judiciary, Ch. 932, Stats. 1998). Subsequently, elected mayors, county supervisors, and city clerks were also authorized to solemnize marriage ceremonies, as long as they first receive training from the county clerk. (AB 2600, Ma & Lieu, Ch. 268, Stats. 2010; SB 991, Runner, Ch. 63, Stats. 2012; and Lowenthal Ch. 450, Stats. 2014.)

In 2016, AB 2761 (Low, Ch. 528, Stats. 2016) expanded the categories of individuals who could perform marriage. Specifically, SB 2761 authorized former Members of the Legislature and constitutional officers of this state, former Members of Congress of the United States who represented a district within this state, and current and former elected officials of a city, county, or city and county, to solemnize a marriage. SB 2761 additionally removed the requirement that county supervisors, city clerks, and elected mayors obtain and review all available instructions for marriage solemnization before first solemnizing a marriage.

AB 2761 was then amended on the Senate Floor to restructure the bill, ensuring that, like elected officials, judges may not accept compensation for solemnizing a marriage while serving on the bench, and prohibits judges from solemnizing a marriage if they have been removed from the bench due to committing an offense or have been convicted of a crime that involves moral turpitude, dishonesty, or fraud. However, Penal Code Section 94.5 already penalized the acceptance by a judge, justice, commissioner, or assistant commissioner of a court who accepts any money or other thing of value for performing any marriage, regardless of whether the performance of the marriage is conditioned on the giving of such money or thing of value. Penal Code Section 94.5 makes an exception for the acceptance of a fee for a judge, justice, commissioner, or assistant commissioner who performs a marriage on Saturday, Sunday, or a legal holiday.

AB 430 would bring Family Code Section 400 in line with Penal Code Section 94.5 by reauthorizing judges’ ability to receive reasonable compensation for performing marriages outside of their normal work hours on a Saturday, Sunday, or legal holiday.

CHANGES TO EXISTING LAW

Existing law provides that marriage is a personal relation arising out of a civil contract between two persons, to which the consent of the parties capable of making that contract is necessary. Consent alone does not constitute marriage. Consent must be followed by the issuance of a license and the solemnization. (Pen. Code Sec. 300.)

Existing law provides that every judge, justice, commissioner, or assistant commissioner of a court of this state who accepts any money or other thing of value for performing any marriage, including any money or thing of value tendered by the persons about to be married or who have been married by such judge, justice, commissioner, or assistant commissioner, is guilty of a misdemeanor, regardless of whether acceptance occurs before or after the performance of the marriage and whether or not performance of the marriage is conditioned on the giving of such money or the thing of value. (Pen. Code Sec. 94.5.)

Existing law provides that it is not a misdemeanor to request or accept a fee expressly imposed by law for performance of a marriage or the request or acceptance by any retired judge, retired justice, or retired commissioner of a fee for the performance of a marriage. (Pen. Code Sec. 94.5.)

Existing law allows a judge, justice, commissioner, or assistant commissioner of a court of this state to accept a fee for performing a marriage on Saturday, Sunday, or a legal holiday. (Pen. Code Sec. 94.5.)

Existing law provides that a marriage may be solemnized by a priest, minister, rabbi, or authorized person of any religious denomination who is 18 years of age or older, even though marriage is a personal relation arising out of a civil contract. (Fam. Code Sec. 400(a).)

Existing law provides a marriage may be solemnized by any of the following persons who are 18 years of age or older:

• a judge or retired judge, commissioner of civil marriages or required commissioner of civil marriages, commissioner or retired commissioner, or assistant commissioner of a court of record in this state;
• a judge or magistrate who has resigned from office;
• a justice or retired justice of the United States Supreme Court;
• a judge or retired judge of a court of appeals, a district court, or a court created by an act of the United States Congress, the judges of which are entitled to hold office during good behavior;
• a judge or retired judge of a bankruptcy court or a tax court;
• a United States magistrate or retired magistrate;
• a Member of the Legislature or constitutional officer of this state, or a Member of Congress of the United States who represents a district within this state, or a former Member of the Legislature or constitutional officer of this state, or a former Member of Congress of the United States who represented a district within this state;
• a person that holds or formerly held an elected office of a city, county, or city and county; or
• a city clerk of a charter city. (Fam. Code Section 400(b).)

Existing law provides any justice, judge, commissioner, magistrate, city clerk or elected official shall not accept compensation for solemnizing a marriage while holding office, nor may they solemnize a marriage pursuant to this section if they have been removed from office due to committing an offense or have been convicted of an offense that involves moral turpitude, dishonesty, or fraud. (Fam. Code Section 400(c).)

This bill would provide that consistent with Section 94.5 of the Penal Code and provided that any compensation received is reasonable, including payment of actual expenses, a marriage may be solemnized by a judge, commissioner of civil marriages, commissioner, magistrate, justice of the United States Supreme Court, whether active or retired.

This bill would take effect immediately, as it contains an urgency clause stating these changes are needed in order for couples in the state to have access to secular marriage ceremonies at a reasonable cost and at the earliest possible time.

COMMENT

1. Stated need for this bill

According to the Author:

Last year, AB 2761 inadvertently removed the right for judges and magistrates to receive modest compensation for performing marriages on Saturdays, Sundays, and legal holidays. Prior to the adoption of this bill, judicial officers would receive money for coming in outside of court hours, or traveling to outside locations on weekends or holidays, to marry those who preferred to be wed outside of the normal weekday work hours. As it currently stands, the bill also created ambiguity between the Family Code, which now prevents judicial officers from receiving compensation, and the Penal Code, which allows them to receive compensation.

This bill seeks to rectify these unintended consequences. To allow the public to be conveniently served by nondenominational individuals authorized to solemnize marriages, and provide those individuals with the compensation they had previously been afforded, AB 430 will amend the Family Code to clarify that active judicial officers may accept reasonable payment and reimbursement of expenses for marriages on weekends and holidays granted to them by current Penal Code statute.

1. Required solemnization

Existing law requires the solemnization of a marriage for the civil contract to be valid. (Fam. Code Sec. 300.) AB 2761 (Low, Ch. 528, Stats. 2016) expanded the pool of individuals who were approved to solemnize marriages in part because this expansion “allow[s] couples to choose an officiant that has personal meaning to the couple without imposing a financial or administrative burden on that selected officiant.” (AB 2761 (Low, Ch. 528, Stats. 2016), Senate Judiciary Committee Analysis, (June 14, 2016).) As a result of the changes made by AB 2761, after it was amended on the Senate floor, there is concern that judges may no longer solemnize marriages outside of court hours. Though many judges solemnize marriages without charging a fee, prior to the enactment of AB 2761, some judges charged modest fees to cover their costs of providing an after-hours service. The changes proposed by this bill are to allow those judges to continue charging reasonable fees for performing this service after-hours.

The California Judges Association, sponsor of this bill, writes:

Members of the public regularly call on judges to perform marriages on weekends or legal holidays, and for decades judges have been providing this service to the public. Whether at a public or private location, judges have, for a reasonable fee or no fee at all, or simply to cover their expenses, provided couples wishing to be married on a weekend or legal holiday the opportunity to do so.

Members of the public regularly call on judges to perform marriages on weekends or legal holidays, and for decades judges have been providing this service to the public. Whether at a public or private location, judges have, for a reasonable fee or no fee at all, or simply to cover their expenses, provided couples wishing to be married on a weekend or legal holiday the opportunity to do so.

By returning judges ability to charge reasonable fees for solemnizing a wedding on weekends or legal holidays, this bill ensures couples will have their choice of a secular official to solemnize the marriage despite the day of the week the couple chooses to be married on.

Support: None known

Opposition: None known

HISTORY

Source: California Judges Association

Related Pending Legislation: None Known

Prior Legislation:

AB 2761 (Low, Ch. 528, Stats. 2016) See Background.

SB 875 (Gaines, Ch. 211, Stats. 2016) added county sheriff to the list of county elected officials who may solemnize a marriage.

AB 1525 (Lowenthal, Ch. 450, Stats. 2014) authorized a city clerk to solemnize a marriage after the city clerk obtains and reviews from the county clerk all available instructions for marriage solemnization before the city clerk first solemnizes a marriage.

SB 991 (Runner, Ch. 63, Stats. 2012) see Background.

AB 967 (Ma & Lieu 2010) would have authorized an elected mayor of a charter city, while that person holds that office, to solemnize a marriage ceremony. This bill was vetoed by Governor Schwarzenegger.

AB 2600 (Ma, Ch. 268, Stats. 2010) authorized an elected mayor of a city, while in that office, to solemnize a marriage ceremony, after the mayor obtains and reviews from the county clerk all available instructions for marriage solemnization before the mayor first solemnizes a marriage.

Prior Vote:

Assembly Floor (Ayes 76, Noes 0)

Assembly Judiciary Committee (Ayes 11, Noes 0)

**************

ASSEMBLY THIRD READING

ATR Bill Id:

Author:(Irwin and Low)

As Amended Ver:March 28, 2017

2/3 vote. Urgency

SUMMARY: Authorizes judicial officers, as an urgency measure, to receive a reasonable fee and reimbursement of expenses for solemnizing marriages on weekends and holidays. Specifically, this bill:

1. Allows, as an urgency measure, current and retired judges, justices, commissioners, and magistrates to accept reasonable compensation, including reimbursement for expenses, for solemnizing marriages on Saturdays, Sundays and holidays.
2. States that this bill is an urgency measure because it is necessary for couples to have access to secular marriage ceremonies at a reasonable cost and at the earliest possible convenience.

EXISTING LAW:

1. For a marriage to be valid, requires the consent of the parties, followed by the issuance of a license and solemnization, as provided. (Family Code Section 300. All further statutory references are to that code unless otherwise stated.)
2. Provides that a marriage may be solemnized by authorized persons of any religious denomination, by current or former California legislators, constitutional officers and members of Congress, and by specified justices, judges, and magistrates, both current and retired. Provides that former elected officials or judges may not solemnize a marriage if they were removed from office for an offense or conviction of a crime that involves moral turpitude, dishonesty, or fraud. (Section 400.)
3. Provides that the county clerk is designated as a commissioner of civil marriages for each county. Allows the commissioner of civil marriages to appoint deputy commissioners of civil marriages who may solemnize marriages under the direction of the commissioner of civil marriages. (Section 401.)
4. Provides that a judicial officer may not receive fines or fees for personal use. (California Constitution, Article IV, Section 17.)
5. Provides that judges, justices, and commissioners who accept money for performing a marriage are guilty of a misdemeanor except if the marriage occurs on a Saturday, Sunday, or a legal holiday. (Penal Code Section 94.5.)

FISCAL EFFECT: None

COMMENTS: A marriage is not valid unless it is solemnized by an authorized individual. Under current law, marriages may be solemnized by authorized persons of any religious denomination, judges, commissioners, and magistrates, both current and retired, and current and former state and local elected officials, as well as California members of Congress. Last year, AB 2761 (Low), Chapter 528, Statutes of 2016, expanded who may solemnize weddings and also prohibited judges, elected officials, and city clerks from accepting compensation for solemnizing marriages while holding office.

While many judges solemnize marriages without charging a fee, some judges had, prior to last year's legislation, charged modest fees for solemnizing weddings on weekends and holidays and have requested the ability to continue doing so. Without such authority, they may cease providing this after-hours service. To help ensure that judges who had previously performed weddings on the weekends remain willing to continue to do so, this urgency bill authorizes judicial officers to be compensated with a reasonable fee, plus expenses, for performing marriages on weekends and court holidays.

It is important to note that current and former elected officials may still not be compensated for performing weddings, even if they do so on weekends or holidays.

Analysis Prepared by: Leora Gershenzon / JUD. / (916) 319-2334 FN: 0000058

Date of Hearing: March 21, 2017

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 430

Author:(Irwin and Low) – As Introduced Ver:February 13, 2017

As Proposed to be Amended

SUBJECT: Marriage solemnization: FEES

KEY ISSUE: SHOULD A JUDICIAL OFFICER BE PERMITTED TO RECEIVE A REASONABLE FEE, As well as REIMBURSEMENT of his or her expenses, FOR PERFORMING MARRIAGES ON WEEKENDS AND HOLIDAYS?

SYNOPSIS

A marriage in California is not valid unless it is solemnized by an authorized individual. Under current law, marriages may be solemnized by authorized persons of any religious denomination; judges, commissioners, and magistrates; and current and former California legislators, constitutional officers, elected mayors, county supervisors, and members of Congress. Last year, AB 2761 (Low), Chap. 528, Stats. 2016, expanded the list of public officials who may solemnize marriages to include former elected officials, but also prohibited judges, elected officials and city clerks from accepting compensation for solemnizing marriages while holding office.

Many judges solemnize marriages without charging a fee, but some had, prior to last year's legislation, charged modest fees for solemnizing weddings on weekends and holidays. While the Penal Code provides that it is a misdemeanor for a judge to accept a fee for solemnizing a marriage, it makes an exception if the judge does so for marriages officiated on weekends and holidays. Some judges have reported that they may stop solemnizing marriages altogether if they are unable to collect fees on weekends and holidays. To that end, this urgency bill, sponsored by the California Judges Association, authorizes judicial officers to be compensated for performing marriages on weekends and court holidays. The author proposes to amend the bill to ensure that the fee is reasonable. In support of the bill, the author states that it clarifies the ambiguity between the Family Code, which prevents judicial officers from receiving compensation when performing marriages, and the Penal Code, which provides that receipt of compensation for solemnizing a marriage on weekends or holidays is not considered a bribe. It also may improve the public's ability to find judges willing to perform weddings on weekends and holidays. There is no reported opposition to this bill.

SUMMARY: Authorizes judicial officers, as an urgency measure, to receive a reasonable fee and reimbursement of expenses for solemnizing marriages on weekends and holidays. Specifically, this bill:

1. Allows, as an urgency measure, current and retired judges, justices, commissioners, and magistrates to accept reasonable compensation, including reimbursement for expenses, for solemnizing marriages on Saturdays, Sundays and holidays.
2. States that this bill is an urgency measure because it is necessary for couples to have access to secular marriage ceremonies at a reasonable cost and at the earliest possible convenience.

EXISTING LAW:

1. For a marriage to be valid, requires the consent of the parties, followed by the issuance of a license and solemnization, as provided. (Family Code Section 300. All further statutory references are to that code unless otherwise stated.)
2. Provides that a marriage may be solemnized by authorized persons of any religious denomination, by current or former California legislators, constitutional officers and members of Congress, and by specified justices, judges, and magistrates, both current and retired. Provides that former elected officials or judges may not solemnize a marriage if they were removed from office for an offense or conviction of a crime that involves moral turpitude, dishonesty, or fraud. (Section 400.)
3. Provides that the county clerk is designated as a commissioner of civil marriages for each county. Allows the commissioner of civil marriages to appoint deputy commissioners of civil marriages who may solemnize marriages under the direction of the commissioner of civil marriages. (Section 401.)
4. Provides that a judicial officer may not receive fines or fees for personal use. (California Constitution, Article IV, Section 17.)
5. Provides that judges, justices, and commissioners who accept money for performing a marriage are guilty of a misdemeanor except if the marriage occurs on a Saturday, Sunday, or a legal holiday. (Penal Code Section 94.5.)

FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.

COMMENTS: A marriage is not valid unless it is solemnized by an authorized individual. Under current law, marriages may be solemnized by authorized persons of any religious denomination, judges, commissioners, and magistrates, both current and retired, and current and former state and local elected officials, as well as California members of Congress. Last year, AB 2761 (Low), Chap. 528, Stats. 2016, expanded who may solemnize weddings and also prohibited judges, elected officials, and city clerks from accepting compensation for solemnizing marriages while holding office.

While many judges solemnize marriages without charging a fee, some judges had, prior to last year's legislation, charged modest fees for solemnizing weddings on weekends and holidays and have requested the ability to continue doing so. Without such authority, they may cease providing this after-hours service. To help ensure that judges who had previously performed weddings on the weekends remain willing to continue to do so, this urgency bill authorizes judicial officers to be compensated with a modest fee for performing marriages on weekends and court holidays. In support of the bill, the California Judges Association writes:

Members of the public regularly call on judicial officers to perform marriages on weekends or legal holidays, and for decades judges have been providing this service to the public. Whether at a public or private location, judges have for decades for a nominal fee or simply to cover their expenses, provided couples wishing to be married on a weekend or legal holiday the opportunity to do so.

To allow the public to be conveniently served by a variety of individuals authorized to solemnize a marriage at the earliest possible time, this bill will therefore amend Family Code Sec. 400 to clarify that active judicial officers may accept compensation for marriages performed on Saturday, Sunday, or a legal holiday.

In order to provide some limit on the amount of compensation that a judge may receive, the author rightly proposes to amend the bill to limit the fee that a judge may charge on weekends and holidays to a fee that is reasonable, in addition to expenses. This change is accomplished with the following amendment:

On page 2, line 10, after "Code" insert: and provided that any compensation received is reasonable, including payment of actual expenses

It is important to note that current and former elected officials may still not be compensated for performing weddings, even if they do so on weekends or holidays.

REGISTERED SUPPORT / OPPOSITION:

Support

California Judges Association (sponsor)

Opposition

None on file

Analysis Prepared by: Leora Gershenzon and Lusine Chinkezian / JUD. / (916) 319-2334