Date: Wed, 05 Feb 1997 13:37:49 -1000 From: lambda@aloha.net (Martin Rice) Subject: STATEMENT BY SEN. MATSUNAGA ON HB118 HD1 SD1 Aloha auwinala kakou. Following please find copy of the statement mad by Senator Matsunaga stating the Senate Judiciary Co-chairs' position on the bill relating to unmarried couples. STATEMENT OF SENATOR MATTHEW M. MATSUNAGA CO-CHAIR SENATE JUDICIARY COMMITTEE REGARDING H.B. NO. 118, H.D. 1 A BILL FOR AN ACT RELATED TO UNMARRIED COUPLES On behalf of co-chair Chumbley and myself, we recommend that House Bill No. 118, H.D. 1, be amended by substituting the provisions of the proposed Senate Draft 1 that has been distributed to the members of this Committee. H.B No. 118, H.D.1, as received from the House of Representatives creates the legal status of "reciprocal beneficiaries" to permit couples that are legally prohibited from marrying to participate in certain appropriate benefits that are currently reserved to married couples. It further identifies and qualifies reciprocal beneficiaries for four such benefits. This bill passed the House Judiciary Committee and was approved by the House 47-4. This is a remarkable and heartening change from the position taken by the House last year, when they did not want to consider or acknowledge the extension of any marital rights to unmarried couples. The chairs wouid like to very sincerely extend its respect to the House for evolving its position. Our proposed S.D.1 incorporates the form and substance of the bill as received from the House. Adult couples who are prohibited by law from marriage and who are not already married will be able to register as "reciprocal beneficiaries" with the Deparbaent of Health. Upon doing so they will quality for certain governmental benefits that are expressly provided for in our laws. As an additional qualification for reciprocal beneficiary status, the Senate draft imposes a residency requirement of one year for both applicants. This is intended to address the expressed concern by some that our State might become a "marriage mill" for same sex couples. Our proposed draft incorporates all of the benefits provided by the House version of the bill. These include: 1) hospital visitation and health care decisions; 2) holding property as tenants in the entirety; 3) inheritance rights, and 4) the right to sue for wrongful death. We find these to be among the most appropriate and important governmental privileges that could be reasonably extended and again commend and compliment the House for its actions. It is interesting to note that three of the four rights provided in H.B. No. 118, H.D. 1, apply only to persons who have died or are near death. Because we do not believe that appropriate governmental benefits should be limited to "rights after death", we have attempted to identify some more "vita1" rights that should be appropriately included in this rights package. Thus, we used as our starting point S.B. No. 98, Relating to Economic Benefits, a measure co-introduced by 10 of our Senate colleagues, including three members of this Committee. The bill proposes a model similar to H.D. No. 118, H.D. 1 except that the triggering mechanism is an unregistered "Affidavit of Shared Necessities of Life". The bill identifies four specific provisions of our law which we agree should be included in the package. However because other related provisions were not incorporated, we have taken the specifically identified provisions of S.B. No. 98 and H.B. No. 118, H.D. 1. as guideposts to the types of rights that might be reasonably extended and done so where appropriate. Specific areas of inclusion initiated by S.B. No. 98 and H.B. No. 118. H.D. 1 include: 1. State Govenment Retirement System Benefits. S.B. No. 98 permits the health benefits and death benefits of public employees to accrue to their identified life partner. Our proposed amendment includes these benefits and, in the absence of any reason to the contrary, all other similar rights and benefits accruing to government employees. 2. State Tax Benefits. S.B. No. 98 permits identified life partners to file a joint state tax return. Again, we agree that this is reasonable, but we could find no reason to extend only this privilege. Accordingly, other relevant provisions of the State Tax Code have been incorporated into this bill. 3. Wrongful Death Actions. Both the House Bill and S.B. No. 98 provide for wrongful death standing. Again we agree. And we believe that the principle of providing equivalent standing and inheritance in the case of death and serious injury should be applied to other areas. These include: workers compensation benefits, anatomical gifts and corpse disposition rights, criminal victims rights, and inheritance or public leases. 4. Hospital Visitation and Health Care Decisions. The most striking acknowledgement of the real needs of living partners in the House Bill is its inclusion of hospital visitation and health care decisions. Accordingly the House appears to acknowledge that matters of health are certainly among the most significant in any lite partnership. The proposed draft incorporates this principle by including rights relating to insurance (including pre-paid medical insurance), family leave, and mental health notifications and authority. 5. Tenancy in the Entirety. H.B. No. 118, H.D.l, in including tenancy in the entirety privileges, appears to acknowledge that the legitimate pooling of resources is deserving of appropriate protection. In accordance with this principle, the Senate draft includes relevant statutory provisions acknowledging the shared interest in resources. These include; certain criminal and collection defenses, partnership exemptions, and tort standing. As a corollary to these rights, the draft also includes reciprocal beneficiaries as among those who may be subject to Criminal enforcement or notification under our domestic violence and youthful offender statutes. Despite the Senate draft's breadth, it does not include all rights and benefits, nor does it impose all burdens. This is because it is the Committee's view that the extension of such rights and burdens can and should be limited when a substantial government interest would be injured by such an extension. Accordingly, the Senate draft has excluded from the extended rights and benefits those which arguably conflict with other substantial governmental interests. Included among such arguable interests and consequent exclusions are: 1. The State's interest in preserving the traditional family. As manifested in both H.B. No. 117 and the Committee's proposed S.D.l, the citizens of our State may choose to limit marriage to couples of the opposite sex. If they do so, we would be logically obliged to limit benefits and burdens that explicitly relate to the institution of marriage to such couples. Thus, the proposed Senate draft (which would go into effect only upon the ratification of the constitutional amendment proposed in S.B. No. 117, S.D.1) does not include any rights, benefits or burdens imposed or granted by our laws explicitly relating to marriage (Ch. 572, 576D-n), divorce (Chapter 580), parentage and adoption (Chs. 578, 584, 571 Pts. IV-V), premarital agreements (Ch. 572), mutual support and commutunity property (572-3, 575-2, ch. 51), dower and curtsey (ch. 533), evidentiary spousal privileges (oh. 626) and wiretap exceptions (803-46). Additionally, the proposed draft excludes certain very specific twaily use exceptions. These include: harbor fishing (188-34); Kane`ohe bay recreation Permits (200-39); nehu and iao fishing (188-45); and Agricu1ture regulation exceptions (cha. 141-168). 2. The State's interest in avoiding federal and interstate conflicts. With the passage of the federal Defense of Marriage Act, the federal government seems to have signaled an unwillingness to support or acknowledge the extension of marital benefits to couples other than those in traditional marriages. Similarly, a number of other states have statutorily indicated some discomfort with potential extension of marital benefits. It is a legitimate and substantial State interest to avoid conflict with other states and to acknowledge the power of the federal government within their proper jurisdiction. Thus, the proposed draft excludes those programs which are substantially funded or regulated by the federal government including social Service benefits (Ch. 346), government housing programs (Ch. 359), airport and urban redevelopment and relocation (Chs. 111,261), veterans burial benefits (ch. 363), certain resident military benefits (eg. 288-107(g)), state health family assistance (ch. 321), unemploymtent insurance definitions (Ch. 383), certain banking exceptions (Chs. 412-417) and Hawai`ian homelands inheritance (HHCA 209). Additionally, we have excluded relevant interstate compacts so as not to imply or impose an express burden of recoqnition on other states. Relevant compacts include those relating to probation and parole (353-81), mental health (ch. 335), adoption assistance (Ch. 350c), and reciprocal enforcement of support (ch. 576). The exclusion of these rights is not because we believe that they should not or cannot be extended to reciprocal beneticiaries. Rather, we have, in this iteration of the bill attempted to avoid predictable legal niggling or unwarranted expressions of fear. The rights that we have included are those which we believe that virtually any fair minded citizen would agree should reasonably be extended to others. We intend to reserve the excluded rights for further study and debate. Even if this bill becomes law in its proposed form, such study is not precluded since the effective date of the Act is directly linked to the ratification of the constitutional amendment proposed in H.B. 117, S.D. 1. Since such ratification cannot occur until November 1998, some time exists for a reasoned and dispassionate examination of these issues. It that is possible, it is the intention of the Co-Chairs to fully participate in such an examination. ~~pau~~ ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ "The House [of Representatives] is a corrupt institution." --Newt Gingrich Esquire, 10/89 "I am a creature of the House." --Newt Gingrich The Atlantic, 6/93 ~~~~~ Fred and Martin 24 years, yet strangers before the law ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~