NATIONAL JOURNAL OF SEXUAL ORIENTATION LAW
VOL. 1, ISSUE 1
Mary Sylla, editor (mmsylla@gibbs.oit.unc.edu)
ANALYSIS OF THE OPINION OF THE ATTORNEY GENERAL OF
CALIFORNIA ON THE REGISTRATION OF NAMES OF
FAMILY ASSOCIATIONS BY THE SECRETARY OF STATE
By Thomas F. Coleman and David F. Link
Family Diversity Project
Spectrum Institute
P.O. Box 65756
Los Angeles, CA 90065
(213) 258-5831
TABLE OF CONTENTS
I. INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . .
. . . .
(a) Legal Authority of the Opinion
of the Attorney General. . . . . . . . . . . . . . . .
(b) The Attorney General's Opinion . . . . . . . . . . . .
II. ANALYSIS. . . . . . . . . . . . . . . . . . . . . . . . . .
(a) The Doctrine of Esjudem Generis is
Incorrectly Applied Here . . . . . . . . . . . . . . .
(b) Fundamental Rules of Statutory Construction
Require Relying on the Statute's Language
to Determine Legislative Intent. . . . . . . . . . . .
(c) The Family Law Act is Irrelevant
to Any Issue Related to the
Registration of Association Names. . . . . . . . . . .
III. THE CONCERNS EXPRESSED IN THE OPINION, AND THE
EVENTS LEADING TO IT, DEMONSTRATE THAT THE
QUESTIONS ADDRESSED HAVE LITTLE TO DO
WITH LEGAL ASPECTS OF THIS INQUIRY. . . . . . . . . . . . .
APPENDIX
A. Senate Bill 192 (introduced 1-17-91). . . . . . . . . . . .
B. Letter from state Senator Newton Russell to Legislative
Counsel
Bion Gregory Requesting Opinion on Registry of Names of
Family
Associations (dated 1-17-91). . . . . . . . . . . . . . . .
C. Opinion of Legislative Counsel on Family Associations #2151
(dated 1-19-91) . . . . . . . . . . . . . . . . . . . . . .
D. Letter from Senator Newton Russell to state Secretary of
State
March Fong Eu . . . . . . . . . . . . . . . . . . . . . . .
E. Bill Geiger, "Family Bill of Rights" Targets Pro-Gay
Legislation,
Frontiers, Mar. 15, 1991. . . . . . . . . . . . . . . . . .
F. Michael Bowman, Family Congress: Uniting the Pro-Family
Movement, Calif. Citizen, Apr. 1991 . . . . . . . . . . . .
G. Letter from Western Center for Law =A0Religious Freedom to
Secretary of State March Fong Eu (dated 3-4-91) . . . . . .
H. Letter from Secretary of State March Fong Eu to Senator
Newton
Russell (dated 3-11-91) . . . . . . . . . . . . . . . . . .
I. Letter from Senator Newton Russell to state Attorney General
Daniel Lungren (dated 3-18-91). . . . . . . . . . . . . . .
J. Letter from Assistant Attorney General Nelson Kempsky to
attorney
Thomas F. Coleman (dated 5-14-91) . . . . . . . . . . . . .
K. Opinion of Attorney General Daniel Lungren 91-505 (dated
1-16-92)
L. Letter from Chief Counsel to the Secretary of State Anthony
Miller to
Attorney General Daniel Lungren (dated 4-24-91) . . . . . .
THE ATTORNEY GENERAL'S OPINION
ON THE REGISTRATION OF NAMES
OF FAMILY ASSOCIATIONS
IS CLEARLY ERRONEOUS
I
INTRODUCTION
On December 13, 1990, the Family Diversity Project held a
press conference at the State Building in Los Angeles to announce
the availability of an administrative system for family
associations to register with the California Secretary of State.1
Seven families attended the press conference. They included
members of a foster family, a single-parent guardianship family,
a stepfamily, an unmarried couple, a family of two men and a
family of two women. Each of the families had registered with
the Secretary of State as an unincorporated nonprofit
association. Each had received an official ornate certificate
acknowledging that the families had registered their names. The
style of name registration used by the families was "Family of
John Doe and Jane Roe." Those with children also included the
names of the children in the name of the family
association.
The registration system, and its use by so-called
"nontraditional" families, sparked a considerable amount of
national media attention.2 In response to media inquiries,
Anthony Miller, chief deputy Secretary of State, explained that
the registration had no known tax or legal consequences and
conferred no automatic benefits beyond the sentimental.
After nearly two months of positive press, the registration
procedure came under attack by extremely conservative religious
and political leaders and groups.3 The first official sign of
challenge emerged on January 17, 1991, when state Senator
Newton Russell (R-Glendale) introduced SB 192, a "spot
bill" intended to redefine the term "association" used in the
Corporations Code Section pertaining to associational name
registration.4 The same day he sent a memo to the Legislative
Counsel asking for an opinion on the legality of the
registration system.5
On February 19, 1991, the Legislative Counsel issued an
opinion to Senator Russell.6 The opinion noted that "[N]o
formalities are required for the formation of an unincorporated
nonprofit association."7 It also observed that the
registration of the name of an association does not, in itself,
create the association or create any automatic rights or
obligations. The opinion contained three other basic
conclusions:
-- "A group of persons who live together in a
relationship in which they share rights and
duties similar to those shared by members of a traditional family
may form a nonprofit association to formalize
that relationship. However, many rights traditionally
granted to family members may be unavailable if based solely
on the association."8
-- "The state does not have any potential
liability if it fails to inform persons who
register as an unincorporated nonprofit association with a name
that indicates characteristics similar to those
of a family of the consequences of forming such an
association."9
-- "A group of persons who live together in a
relationship in which they share rights and
duties similar to those shared by members of a traditional family
are not entitled to register the name of their
'association' with the Secretary of State under
Section 21301 of the Corporations Code10 under a style such as
'Family of John Doe and Jane Roe.'"11
This third conclusion was based on the Legislative Counsel's
opinion that the law does not permit organizations to gain
exclusive use of surnames or generic words such as "family" by
registering them with the Secretary of State.
Armed with the Legislative Counsel's opinion that family
associations could not register their names with the state,
on February 20, 1991, Senator Russell wrote to the Secretary of
State demanding that she revoke the previously registered
names and terminate further registration.12
On February 22, 1991, a coalition of extremely conservative
religious and political leaders convened a so-called
"Family Congress" in Sacramento.13 One of the key focal points
of
the "Family Congress" was a "Family Bill of Rights" drafted
by David Llewellen of the Western Center for Law and
Religious Freedom. Conferees also discussed strategies to
dismantle the family registration system operated by the
Secretary of State. Attorney General Dan Lungren attended the
conference and made a major presentation to this group.14
A
summary of the Attorney General's remarks to the group were not
made available to the public. 15
Having gained support and momentum from the "Family
Congress," the Western Center for Law and Religious Freedom
sent a letter to the Secretary of State on March 4, 1991,
demanding that she terminate the registration of the names
of family associations.16 A week later, the Western Center
indicated to the press that it was considering a legal challenge
to the registration system.17
On March 11, 1991, the Secretary of State issued an opinion
in which she concluded that the registration of the names
of associations using the term "family" in their title was a
lawful ministerial duty that she would continue.18 She
advised Senator Russell that her office would act in accordance
with the legal analysis of her chief legal counsel. In
that opinion, Chief Counsel Anthony Miller agreed with most
of the conclusions of the Legislative Counsel, but disagreed with
the ultimate opinion that the names of family associations
could not be registered. The Secretary of State construed
Section 21301 to "provide for the ministerial registration
of the names of unincorporated nonprofit associations upon
proper application and the issuance of certificates accordingly
even if the names include the word 'family' or one or more
'surnames.'"19 The legal opinion of her office added, in
relevant
parts:
"In his opinion, the Legislative Counsel concludes
that a group of persons who live together in a
relationship in which they share rights and duties similar to
those shared by members of a traditional family
may form an unincorporated nonprofit association
to formalize that relationship. We agree. Legislative Counsel
concludes that no formalities are required for
the formation of such an incorporated nonprofit
association. We agree. Legislative Counsel appears to conclude
that an association described above can assume a
name under a style such as "Family of John Doe and Jane
Roe." We agree. Although not essential to our analysis of
the duties of this office, Legislative Counsel
concludes that 'family' has many varied meanings and that it may
include individuals not related by blood or married
who are living together in the intimate and
mutual interdependence of a single home or household. We agree.
Notwithstanding the foregoing, Legislative Counsel
concludes that an unincorporated nonprofit
association which has assumed a name in the style of 'Family of
John Doe and Jane Roe' cannot register that name
pursuant to Corporations Code section 21301. We
disagree." (emphasis added)20
After a lengthy exposition of statutory language, relevant
case law, and legislative intent, and a thorough discussion
of the mistaken analysis of the Legislative Counsel, the
Secretary of State's legal opinion concluded that the
registration of the names of family associations was legally
appropriate, adding:
"We need not address various constitutional issues
which Legislative Counsel's conclusion, if
correct, would raise. These issues would include, but probably
not be limited to, the rights of association,
free speech, privacy, due process and equal
protection which are provided for in varying degrees by the
Constitutions of the United States and of
California. These significant issues would have to be engaged
only if the statutes were to be read to preclude
the registration of the names of only one category
of association, e.g., an association with a name that included
the word 'family' and a surname. We believe the
contrary to be true."21
"This office always gives considerable weight to
the Opinions of Legislative Counsel. In the
instant case, however, the Secretary of State is, ultimately
responsible for the implementation of the laws
that are within the jurisdiction of her office and she
must independently determine what those laws require her to
do."22
Apparently dissatisfied with the response from the Secretary of
State, Senator Russell asked Attorney General Dan Lungren
for an opinion on March 18, 1991.23 For nearly two months it was
uncertain whether the Attorney General would agree to issue
an opinion on the subject. It had been a longstanding
policy within the Attorney General's Office not to issue an
opinion if litigation on the issue was pending or might be
initiated in the near future. This policy against issuing an
opinion was even stronger if a potential party to such
litigation might be a state agency.
In April 1991, Attorney General Dan Lungren was advised that
litigation on the subject of "family registration" was
likely to occur and that the Secretary of State would be a party
to such a lawsuit.24 However, overruling the advice of the
Chief of his Opinion Unit and other attorneys in his office,
Attorney General Dan Lungren decided to issue an opinion in
response to Senator Russell's request.
On May 14, 1991, the Chief of the Attorney General's Opinion
Unit sent a letter to interested organizations advising
them that the Attorney General would issue an opinion on the
following question:
"May individuals register themselves as a 'family'
with the Secretary of State under the provisions
pertaining to unincorporated nonprofit associations? If so, what
rights follow from such registration?"25
The duty of researching and writing the opinion was
delegated to Deputy Attorney General Ronald Weiskopf in the
Attorney General's San Diego office. Beginning in September,
1991, the Family Diversity Project periodically contacted
the Attorney General's Office to check on the status of the
opinion. In December 1991, the project was informed by two
separate sources in the Attorney General's office that the
delay in issuing the opinion was unusual and that the draft of
the opinion had been on Dan Lungren's desk for several
months.
The Attorney General's opinion was finally released on
January 16, 1992.26 It bears the name of Anthony S. DaVigo
as its author. The opinion concludes:
"Under the law pertaining to unincorporated
nonprofit associations, the Secretary of State
may not issue a certificate of registration as a 'family' to any
two or more individuals who share a common
residence."27
It is noteworthy that the question answered by the Attorney
General is different from that asked by Senator Russell and
is also different from that announced to the public by the
Attorney General's Office on May 14, 1991. The criteria of
sharing a common residence was not included in Senator Russell's
request to the Attorney General on March 18, 1991.28 It was
also not included in the question which the Attorney
General announced on May 14, 1991 that he would answer.29
To be properly understood, the Attorney General's opinion
must be viewed within the historical, administrative, and
political context in which it was written. The introduction to
this memorandum has attempted to explain this complex and
highly-charged political context. The remainder of this
memorandum analyzes the conclusions and reasoning of the Attorney
General's opinion. It concludes that the Attorney
General's opinion is legally flawed in many ways. In the final
analysis, the Secretary of State's construction of the
relevant statutory scheme is correct and should be adopted by the
courts in any subsequent litigation.
I(a)
Legal Authority Of The Opinion
of the Attorney General
The courts have clearly and consistently held that "when an
administrative agency is charged with enforcing a
particular statute, its interpretation of the statute will be
accorded great respect by the courts 'and will be followed
if not clearly erroneous.'"30 As demonstrated by this memorandum
and its attachments, the Secretary of State's legal
analysis of the relevant statutory scheme is far from
"clearly erroneous," in fact it is clearly correct, and therefore
her interpretation should be followed.
The "clearly erroneous" standard that applies to
administrative construction contrasts with the standard
governing opinions of the attorney general, which, while entitled
to great respect, are not controlling as to the meaning of
a statute.31 Courts have consistently held that opinions of the
Attorney General are advisory only, and do not carry the
force of law.32 Furthermore, opinions of the Attorney
General are to be issued in response to "specific questions posed
by state legislators, officers and agencies" and are not to
be issued gratuitously.33 The Supreme Court has been critical
of,
and refused to follow attorney general opinions which are
unreasoned, or make assumptions without sufficient
analysis.34
The Attorney General's opinion here clearly falls into the
latter category. The opinion poses questions which were
never asked by the Senator requesting the opinion, and strays
well beyond the legislative scheme provided for in the
Corporations Code. For the reasons discussed below, the opinion
provides no authoritative guidance on the issue of the
registration of names of unincorporated associations that
happen to use the word "family."
I(b)
The Attorney General's Opinion
The opinion, issued on January 16, 1992,35 begins by
revealing
that the Attorney General had again rephrased the already
revised questions from the original inquiries submitted by
Senator Russell, this time adding a substantive issue that
had never appeared before in any version of the previous
questions: "May the Secretary of State issue a certificate of
registration as a 'family' to any two or more individuals
who share a common residence?"36 There is no indication of
where
the "common residence" language came from, and it defies
the rule that opinions of the Attorney General are to be issued
in response to specific questions posed by legislators.37
One of the questions raised by the Attorney General's
continuous process of revising Senator Russell's questions before
answering them is whether the purpose of the revisions was
to predetermine the outcome of the opinion. In other words, the
constant revisions of the questions give the appearance that
the Attorney General had an opinion he wanted to express
and needed a vehicle to express it. In the final analysis, the
outcome of the opinion seems to hinge largely on the
introduction of extraneous issues such as the sharing of a common
residence.
In reaching its conclusion that the Secretary of State may
not issue a certificate of registration as a "family" to
persons who share a common residence, the opinion first answers
still another unasked question: whether two or more persons
who share a common residence would constitute a family.38 It is
unclear why this question is relevant to any legal issue
presented. As discussed in more detail below, the statute
in question does not confer any rights on those registering the
name of their association except the right to use their
name exclusively.39 Thus, it is the name, not the nature of the
association that is the Secretary's concern.40
Nevertheless,
the opinion asserts that the answer to this question is
yes, based on dictionary definitions and the early California
Supreme Court case of Moore Shipbuilding Corp. v.
Industrial Accident Comm.41
After concluding that persons sharing a common residence may
constitute a family, the opinion next analyzes the language
of the statute, and concludes that families who share a common
residence are unlike the other kinds of associations which
have been specified in the statute.42 Based on the
doctrine
of ejusdem generis, the opinion states that the word "other" in
the statute must be read as "other such like."43 Under the
Attorney General's interpretation of this doctrine, since the
Legislature listed some kinds of associations, the use of
the words "or any other society, organization or
association," was intended to be read restrictively.44 The
opinion
then notes that the context surrounding section 21301 makes
it clear that the purpose of the section is to preclude unfair
and deceptive practices by preserving the name, goodwill
and reputation of an association against misappropriation
and unfair competition.45 Since the Attorney General could
discern
no social or public policy in preserving a family's name
for its exclusive use, the opinion concludes that registration of
family names falls outside the scope of the statute.
Assuming arguendo this were correct, this should have ended
the opinion, since it addressed the threshold legal
question which had been posed of whether registration of family
names is permitted, finding in the negative. But the
opinion continues, striking off into an area which not only fails
to have any relationship to the questions proposed, but is
legally incorrect. The opinion asserts that if families
were permitted to register their relationships, registration by
"traditional" nuclear families would conflict with the
provisions of the Family Law Act, Civil Code section 4000 et
seq.46
II
ANAL=19SIS
II(a)
The Doctrine Of Ejusdem Generis
Is Incorrectly Applied Here
The opinion relies heavily on the doctrine of ejusdem
generis, which holds that where general
words follow the enumeration of particular classes of persons or
things, the general words will be
construed as applicable only to persons or things of the same
general nature or class as those
enumerated. The doctrine is primarily applicable to the
interpretation of wills, rather than statutes, as
illustrated by the case cited in the opinion, Estate of Stober v.
Dieter.47
In cases where it has been used in statutory interpretation,
though, the general words used have been very different
than those in the Corporations Code. The word "association" is
clearly defined in Corporations Code section 21300
subdivision (a):
"'Association' includes any lodge, order,
beneficial association, fraternal or beneficial
society or association, historical, military, or veterans
organization, labor union, foundation, or
federation, or any other society, organization or association, or
degree, branch, subordinate lodge, or auxiliary."
(emphasis added)48
The statute is inordinately broad in its inclusiveness, and the
emphasized language could not be broader. Compare this
with the statute at issue in Sears Roebuck =A0Co. v. San Diego
County District Council of Carpenters,49 a case cited by
the
Attorney General's opinion. In that case, the Supreme Court
used the doctrine of ejusdem generis to limit the words "conduct
that is unlawful" as used in the Moscone Act.50 The
provision at issue provided:
"It is not the intent of this section to permit
conduct that is unlawful including breach of the
peace, disorderly conduct, the unlawful blocking of access or
egress to premises where a labor dispute exists,
or other similar unlawful activity"51
The court found that the rather inclusive phrase "conduct that is
unlawful" was restricted by other limiting terminology in
the statute itself.52 By its own terms, the statute required
that
the prohibited unlawful activity be "similar" to the
examples cited therein. Furthermore, the phrase "conduct that is
unlawful" is vastly distinguishable from the words at issue
here, "any other society, organization or association,"
since it is not, by its own terms, open-ended, as is the case
with the language in the Corporations Code.
The same is true in Scally v. Pacific Gas =A0Electric Co.,53
where the court held that an electric transmission line was
not "any other device which may kindle a fire," as set out in
Public Resources Code section 4161.5.54 That section
provided that "If any fire originates from the operation or use
of any engine, machine, barbecue, incinerator, railroad
rolling stock, chimney, or any other device which may
kindle a fire. . . " then the occurrence of the fire is prima
facie evidence of negligence.55 As in Sears Roebuck, the
general words were, themselves, limited in their scope.
Further, in both Sears Roebuck and Scally, the enumerating
lists were reasonably susceptible of limitation. The list
in Sears Roebuck enumerated breach of the peace, disorderly
conduct and the unlawful blocking of access or egress to
premises where a labor dispute exists. As the court noted,
these all either involve violence or would substantially impair
the rights of others.56 Thus, construing the phrase
"conduct
that is unlawful" to include nonviolent and nonthreatening
conduct would have gone beyond the factors the enumerated
items had in common. And in Scally, the court was careful to
point out that the particular things mentioned in the statute
had common characteristics that electric transmission lines
do not have: they all constituted fire hazards in their ordinary
use, which was not true of electric transmission lines.57
In the present case, though, there is little, if anything,
that the enumerated associations have in common, and the
Attorney General's opinion makes no effort to find a common
denominator. Rather, the opinion proceeds from the
opposite direction, starting with an association it wishes to
exclude, and then trying to find a factor, such as common
residence, that it then finds lacking in the enumerated
associations.
But the language of the statute resists such an analysis. A
labor union, a historical society, a Moose Lodge, a fan
club, and a federation of the descendants of Martin Luther King
constitutes as broad a range of groups as could be
imagined. And what is to distinguish the last group if it
chooses to denominate itself a family rather than a
federation? The terms of the statute require the Secretary to
make no such distinction. As discussed more fully in section
III below, the distinguishing factor could be whether the
family decided to live together--the answered but unasked
question in this opinion. But the statute does not require
the Secretary to inquire into the domestic arrangements of a
registering association--whether a family or not. Thus, it
appears the only way the Attorney General's opinion could
conceivably reach the conclusion excluding registration of family
associations was to read into the statute a legislative
intent to distinguish domestic or residential associations from
all others.
II(b)
Fundamental Rules Of Statutory Construction
Require Relying On The Statute's Language
To Determine Legislative Intent
In fact, there is no need to use extrinsic rules of
construction such as the doctrine of ejusdem generis if
there is no ambiguity in the statute, itself, and here there is
none. In determining legislative intent, a court first
looks to the language of the statute, giving effect to its plain
meaning.58 Words in a statute are to be given their
ordinary
meaning, and if they are reasonably free from ambiguity, the
courts will not look beyond them for legislative intent.59
When interpreting statutes, it is impermissible "to impute a
particular intention to the legislature when nothing in the
language employed implies such an intention."60 "If the words of
the statute are clear, the court should not add to or alter
them to accomplish a purpose that does not appear on the
face of the statute or from its legislative history. Certainly
the court is not at liberty to seek hidden meanings not
suggested by the statute..."61 The Attorney General's opinion
leaps over these first principles. It ignores the plain
meaning of the statutes in question, reading words and intention
into them that are absent, thus creating an artificial need
to apply secondary interpretative tools.
The intent of the Legislature with respect to the
registration of associational names could not have been
expressed any more clearly. Corporations Code Section 21301
declares that "Any association" whose purposes are not
repugnant to state or federal laws may register its name or
insignia with the Secretary of State.62 In the process of
judicial construction, words should be given the meaning they
bear in ordinary use.63 The word "any" means without limit and
no
matter what kind.64 To limit the scope of the statute, the
Attorney General's opinion ignores the Legislature's use of this
broad terminology in both relevant statutes. Sections
21300, 21301.65
To read the words "any other" to mean "other such like," as
suggested by the Attorney General's opinion, would thwart
legislative intent by limiting the kinds of associations which
could register their names. This is in direct opposition
to the clear language used by the Legislature, which explicitly
places no restrictions on the kind of associations which
may choose to register.
The language in section 21300,66 should be compared to the
language used in Business and Professions Code section
14492,67 which enumerates a nearly identical list of
associations,
albeit for- profit organizations, that may register their
names with the Secretary of State. In this context, the list
includes:
". . . any lodge, order, beneficial association,
fraternal or beneficial society or association,
historical, military, or veterans organization, labor union, or
any other similar society, organization or
association, or degree, branch, subordinate lodge, or
auxiliary thereof." (emphasis added)68
The list is virtually identical to that used in the Corporations
Code with the exception that the Legislature limited the
authorization to register to other organizations "similar" to
those enumerated. Thus, it is clear that when the
Legislature intends to limit the word "any" to mean any "similar"
organization it says so in plain language. Possibly the
Attorney General's opinion may have reached a different
conclusion had it taken note of Business and Professions Code
Section 14492.69
The language of the Business and Professions Code with
respect to for-profit associations uses the very word the
Attorney General asserts here should exist in the Corporations
Code. The Legislature's choice to use a broader phrase in
the Corporations Code with respect to nonprofit associations
makes it plain that the Legislature did not intend the word
"other" to mean "other similar" or "other such like"
organizations in connection with nonprofit associations. Such a
reading would defeat the plain meaning of the words the
Legislature did use.
Corporations Code Section 24000 provides another example of
methods used by the Legislature when it wants to limit the
use of the term "any" in connection with unincorporated
associations.70 There, the statute says "unincorporated
association" means "any partnership or other unincorporated
organization of two or more persons, whether organized for profit
or not, but does not include a government or governmental
subdivision or agency." (emphasis added)71
Section 21300(a) uses other broad language in its definition
of "association."72 It states that "[a]ssociation includes
any . . . or any other society, organization, or association..."
(emphasis added) The term "includes" is ordinarily a word
of enlargement and not of limitation.73 The Attorney General's
opinion overlooks this point.
Inclusive language is also used in Section 21000 which
defines the term "nonprofit association," also cited by the
Attorney General:
"A nonprofit association is an unincorporated
association of natural persons for religious,
scientific, social, literary, educational, recreational,
benevolent, or other purpose not that of
pecuniary profit." (emphasis added)74
The registration procedure appears in Part 2 of the Corporations
Code governing such nonprofit associations, and it is again
clear that the primary concern is not with the form of such
associations, nor is there any indication regarding
domestic arrangements. Rather, the concern is with the fact that
the association not be formed for pecuniary profit, a factor
clearly evident in family associations not formed for
business purposes.
Under the ordinary rules of statutory construction, each
section is to be read in pari materia with the other
relevant sections and construed as one cohesive law.75 Taken
together, the provisions of section 21000, 21300 (a)
(Association "includes any" lodge, order, etc., "or any other
society, organization or association") and 21301 ("Any
association" not repugnant to law may register its name or
insignia) demonstrate a cohesive and consistent intent to permit
a non-exclusive array of non- business associations to
register their names.76
And even assuming an attempt to limit the phrase "or other
purpose" in section 21000 to "or other similar purpose," it
should be beyond dispute that family associations, whether they
are "traditional" or "nontraditional" are formed of natural
persons for social, educational and other benevolent
purposes (including religious ones), and that these purposes fall
squarely within the stated definition.77
The words used are, without exception broad. The list of
associations "includes any lodge, order, beneficial
association, fraternal or beneficial society or association,
historical, military, or veterans organization, labor
union, foundation, or federation, or any other society,
organization or association, or degree, branch, subordinate
lodge, or auxiliary."78 Nonprofit associations are formed "of
natural persons for religious, scientific, social,
literary, educational, recreational, benevolent, or other purpose
not that of pecuniary profit."79 "Any association, the
principles and activities of which are not repugnant to the
Constitution or laws of the United States or of this State" may
register its name.80
Therefore, since the words used in the code are consistently
broad and inclusive, and since the Secretary's authority to
question registration is explicitly limited to two circumstances
(associations which are repugnant to law, and associational
names that are deceptively similar to already registered
names), the legislative intent was to allow, rather than prohibit
the registration of the names of any kind of unincorporated
nonbusiness association. There is no reason in the statute to
conclude that family associations may not register their
names with the Secretary of State.
II(c)
The Family Law Act Is Irrelevant
To Any Issue Related to the
Registration of Associational Names
After determining that the Legislature did not intend to
permit the registration of family associations, the opinion
continues by examining what it believes to be a conflict between
such registration and the provisions of the Family Law Act,
Civil Code section 4000 et seq.81 According to the
opinion,
since "traditional" families are covered by the Family Law Act,
permitting family registration would create a conflict with
that act.
This is initially wrong as a matter of law. Section 21301
provides for nothing more than the registration of names, a
provision which occurs nowhere in the Family Law Act.82
Therefore,
there is no statutory conflict at all. And it is beyond
question that registration with the Secretary of State confers
no substantive legal rights on the association beyond the right
to prevent unauthorized use of the association's name. The
Legislative Counsel's analysis made this abundantly clear.
The Family Law Act is designed to provide and protect the
substantive rights of certain clearly defined family
relationships, and only those relationships. The Corporations
Code section at issue provides no substantive rights except
the right to exclusive use of a name. =19et the Attorney General's
opinion indulges in a parade of horribles, enumerating the
substantive provisions of the Family Law Act respecting
earnings and community property, dissolution, liability for
debts, etc. that could come into conflict if families could
register their names. But if the relevant sections of the
Corporations Code provide no substantive rights except the
right to use a name, a conclusion by the Legislative Counsel
which has never been questioned, it is unclear what conflict
would arise with the Family Law Act.
It is unquestioned that spouses and/or their adult children
can form corporations for profit, nonprofit corporations,
general and limited partnerships and joint ventures. The
Attorney General's opinion ignores this reality and fails
to explain why unincorporated associations should be treated any
differently. If the Attorney General's opinion on the
registration of family associations were to prevail on the
theory of statutory conflict, then family members would not be
allowed to form these other types of organizations because
the laws governing their operations and dissolution are different
than the Family Law Act.
Moreover, even if there were such a conflicting provision in
the Family Law Act permitting the registration of family
names, it would only conflict for those families which come under
the provisions of that act. The Legislative Counsel made
it plain that the Family Law Act would not apply to many
families who would register their family associations.
Therefore, there would be no conflict if two siblings, an
aunt and nephew, grandparents and grandchildren, or other
extended family members registered the name of a family
association, since none of these relationship come within the
provisions of the Family Law Act.
III
THE CONCERNS EXPRESSED IN THE OPINION,
AND THE EVENTS LEADING TO IT,
DEMONSTRATE THAT THE QUESTIONS ADDRESSED
HAVE LITTLE TO DO WITH THE
LEGAL ASPECTS OF THIS INQUIR=19
It should be clear from the number of irrelevant questions
posed and then answered in the opinion, and the nature of
the perceived problems, that the opinion is concerned with far
more than the single legal issue being presented of whether
the Secretary of State has the authority to issue
registration certificates to family associations who decide to
register their own chosen family names and insignias. A
brief examination of these concerns casts some light on the
reason this procedure is being challenged in the first
place.
Many of these extra-legal concerns can be traced back to the
correspondence which initiated this challenge, from Senator
Newton Russell to the Legislative Counsel, dated January 17,
1991.83 Senator Russell expressed concern that those
registering their family names with the Secretary of State by
using the provisions of Corporations Code section 21301,84
were doing so "in order to gain a perceived status of a
family through the color of law."85 This concern goes, not to
the
provisions of the Corporations Code, but to the motives of
those who register, an inquiry nowhere mentioned in the Code. A
second concern was that registration might somehow subject
the state to "lawsuits and liability." While potential
lawsuits did present a question which needed to be addressed, the
question of whether two or more people choose to designate
themselves as a family and then register their name has nothing
to do with such potential liability.
The Secretary's concern under the statute is whether the
names being registered are deceptively similar to already
registered names, or whether the associations are repugnant to
the law. Corp. Code Sections 21301-02.86 The California Supreme
Court has long held that the decision to live in a nontraditional
family is protected under the California Constitution, and
that such decisions, far from being "repugnant" to
California law are embraced by and protected under it.87
Therefore, the only legal question was whether the statute
permitting registration placed any limitations on those who
choose to register, or would impose any liability on the
State.
As discussed above, the statute uses language that is as
open-ended as is possible. The language contemplates
virtually no limitations on the kinds of associations that may
register their names. Of all of these potential
associations, though, it is only with regard to associations
which call themselves families that Senator Russell has
become concerned. The statute does not require the
Secretary of State to investigate the choice of any group of
natural persons to register the name of their association
with her office. As a matter of legal duty, the Secretary is
required to remain indifferent under the statute, whether
the registering association styles itself The Benevolent Order to
Preserve Ball Point Pens, The Elvis Presley Is Alive Club,
or the Society of Cork Collectors.
In his letter requesting the Legislative Counsel's analysis,
Senator Russell formulated ten questions for the
Legislative Counsel to answer based on the State's potential
liability and the potential legal rights of registered
families. Although it only answered three of Senator Russell's
questions, the bottom line answer was that family
associations could not register their names if they included the
term "family" or a surname in the title of the
associational name because surnames and the word "family"
are of common usage, and words of common usage are not property
that can be registered.
The Legislative Counsel's conclusion that registration is
improper, however, does not follow from the Legislative
Counsel's analysis. The only potential violation of law was the
assertion that since the word "family" is in common usage,
the Secretary of State could not register associations using the
word "family" in their names. This conclusion is plainly
wrong. The words "corporation," "association,"
"organization," and many more are equally within common usage.
If anyone were to register their association simply as
"Family" or "Association," the Legislative Counsel's analysis
would potentially apply.
But when those words are used in combination with other
words, such as "The Fraternal Association of Descendants of
George Washington Carver," or "The Family of John Doe and Jane
Roe," a unique and identifiable name has been created which
can be registered. The case cited by the Legislative
Counsel makes exactly this point: while words in common usage may
not, by themselves, be registered, such common words "may
be used . . . in combination with other descriptive words,
provided they are not used in combination with such other
words or symbols or designs as to render it probable that
they would mislead persons possessing ordinary powers of
perception."88
As noted, the motive of those registering associations with
the Secretary of State is irrelevant to any legal issue.
The statute does not require the Secretary to inquire into an
association's motivation for registering, or its form.
Corporations Code section 21301 provides only:
"Any association, the principles and activities of
which are not repugnant to the Constitution or laws of the United
States or of this State, may register in the office oF the
Secretary of State a facsimile or description of its name or
insignia and may by reregistration alter or cancel it."89
The Secretary is mandated to issue registration certificates to
those associations which choose to take advantage of this
section.90 Absent some indication that the registering
association
is repugnant to the law, there is only one situation in
which the Secretary may refuse registration. Corporations Code
section 21302 codifies the Supreme Court's rule in the
American Automobile Association case that the Secretary may
not register names that are misleadingly or deceptively
similar.91
The legislation contains no other restriction on the
Secretary's authority to register names.
Therefore, it appears that the real concern behind this
entire effort has been an attempt to prohibit so-called
"nontraditional" families from creating any public record of
their existence. That is, in fact, all these provisions
provide for a public record. Any doubt that this is a driving
concern here is resolved in Senator Russell's letter of
March 18, 1991, requesting the Attorney General's opinion.92 He
states:
"I am writing to request an opinion from the
office of the Attorney General on the legality of the practice of
the Secretary of State issuing unincorporated nonprofit
association registration certificates to individuals who register
themselves as 'families' and then use the registration as
official evidence of heir 'family' status." (emphasis added)93
The underlined section is plainly unrelated to the legal question
of the Secretary's authority. The evidentiary status of a
registration certificate is entirely divorced from any legal
consideration about the Secretary's legislative mandate to
issue the certificates. Senator Russell seems to be spearheading
an effort by a political constituency that is seeking to
make sure there is no public record that so- called
"nontraditional" families may point to as evidence of their
intentions to be a family unit.
It is unchallenged that the existence of a certificate of
registration itself creates no automatic rights for
association members. There is no question that the state creates
no liability for itself by allowing associations to
register their names. The only question is whether some
associations -- those who associate because of mutual love,
affection, support and respect and call themselves families --
can be prevented from registering their names which include the
word "family." What they do with such registrations is
legally irrelevant in the statute, whether it is a family or a
fraternity. The statute provides they may use it to
enforce their right to exclusive use of their association's name,
but any use beyond that is neither proscribed, encouraged,
or anywhere mentioned in the statute.
And again, the linchpin of the Attorney General's opinion on
excluding registration of family associations is the fact
that the members share a common residence. It should again be
stressed that the Attorney General was never asked a
question that focused on persons who share a common
residence. There is no indication, either in Senator Russell's
correspondence to the Attorney General, or in the Attorney
General's letter to Thomas F. Coleman of May 14, 1991 that the
registering family's domestic arrangements was in any way
involved.94 =19et the opinion relies heavily on whether
registering
families live together.
The sudden appearance of this "common residence" factor
suggests that it was not the legal issue of registration
which concerned the Attorney General, but a much more focused
political agenda regarding families. This clearly
undermines any authority the opinion may have. Opinions of the
Attorney General are to be issued in response to "specific
questions posed by state legislators, officers and
agencies" and are not to be issued gratuitously.95 Since the
statute uses the broadest and most inclusive language
possible, the introduction of this new and unrequired inquiry
attempts to place duties on the Secretary of State that are
far beyond the authority granted her by the Legislature.
It should also be noted in closing that it is questionable
whether the Attorney General should have undertaken this
opinion in the first place. In a letter dated April 24, 1991,
Anthony Miller, Chief Deputy to the Secretary of State
notified the Attorney General's office that the Secretary of
State was aware of at least two potential lawsuits
regarding the registration procedure, and that in the event
either suit was filed, the Secretary of State might require legal
representation by the Attorney General.96 Thus, the choice
to go ahead with the opinion despite this clear potential
conflict of interest presents serious problems regarding
the Attorney General's ability to provide competent legal
representation to one of its clients, an important state
agency. By taking a position on a contested issue regarding the
Secretary of State while aware of threatened litigation
against the Secretary's office, the Attorney General
decided to abandon its duty to defend state officials in
litigated matters. Gov. Code Section 12512.97
February 4, 1992
(Editor's note: Since this article was submitted for publication
Secretary of State March Fong Eu has resigned to accept an
ambassadorship. The acting Secretary of State is Anthony Miller,
Eu's former chief legal counsel. Miller has continued to allow
the registration of family associations, and will likely continue
to do so while he remains in office. He has received the
Democratic nomination for the position and will be up for
election this November.
In addition domestic partnership legislation passed the
California General Assembly by a slim margin earlier this year.
The legislation now must pass the state senate before the
legislature adjourns to be sent to the Governor for his
signature; the legislation has a fair chance of passing the
senate but a much slimmer chance of being signed by Governor Pete
Wilson. If the legislation is not enacted into law this termin
it will likely be reintroduced next year, particularly if
Governor Wilson does not win re-election in November.)
Endnotes
1. The Family Diversity Project is operated by Spectrum
Institute, a nonprofit California corporation. Spectrum engages
in research and educational activities designed to promote
recognition of, and respect for, human diversity, especially in
the context of family relationships.
2. Laurie Becklund, The Word "Family" Gains New Meaning, L.A.
Times, Dec. 13, 1990, at A3; Tupper Hall, State Lets Gay Couples
Register, S.F. Examiner (National Ed.) , Dec. 15, 1990, at ___;
Tamar Lewin, Nontraditional Families Register in California in
Bid to Get Benefits, N.=19. Times, Dec. 17, 1990, at A15; Elizabeth
Groat, Unmarried Couples Use Law to Put Relationships on Record,
L.A. Daily J. (AP Release), Dec. 19, 1990, at ___; Lynn Smith,
Not Kin But Kindred, Pair Will Put Official Seal on Their Status,
L.A. Times (Orange County Ed.), Dec. 25, 1990, at B1.
3. Over the course of about two months, beginning in January
1991, the Secretary of State received about 1,000 letters of
protest insisting that she stop the registration of the names of
family associations. The letter-writing campaign was
orchestrated by a national religious group known as "Focus on the
Family." The group has a daily radio audience through hundreds
of religiously-
4. Cal. Corp. Code 21000 (West 1992); Senate Bill 192,
introduced on Jan. 17, 1991, see Appendix A.
5. Letter from state Senator Newton Russell to state Legislative
Counsel Bion Gregory (Jan. 17, 1991). The Western Center for Law
and Religious Freedom had a hand in drafting this letter. (See
letter from the Western Center for Law =A0Religious Freedom to
state Secretary of State March Fong Eu (Mar. 4, 1991).), see
Appendix B.
6. Legislative Counsel's Opinion No. 2151, Family Association
(Feb. 19, 1992), see Appendix C.
7.Law v. Crist, 41 Cal. App. 2d 862, 865, 107 P.2d 953 (1940).
8. Legislative Counsel's Opinion No. 2151, Family Association, at
3 (Feb. 19, 1992), see Appendix C.
9. Id. at 7.
10. Cal. Corp. Code 21301 (West 1992).
11. Legislative Counsel's Opinion No. 2151, Family Association,
at 1 (Feb. 19, 1992), see Appendix C.
12. Letter from Senator Newton Russell to Secretary of State
March Fong Eu (Feb. 20, 1991), see Appendix D.
13. Bill Geiger, 'Family Bill of Rights' Targets Pro-Gay
Legislation, Frontiers, Mar. 15, 1991, at ___, see Appendix E.
14. Michael Bowman, Family Congress: Uniting of the Pro-Family
Movement, Cal. Citizen, Apr. 1991, at 1, see Appendix F.
15. The Family Diversity Project called the Attorney General's
press secretary and asked for a copy of the Attorney General's
remarks. The project was informed that neither a verbatim
transcript nor a summary were available.
16. Letter from Western Center for Law =A0Religious Freedom to
Secretary of State March Fong Eu (Mar. 4, 1991), see Appendix G.
17. J.P.Tremblay, State Will Continue to Recognize Homosexual
"Families", Sacramento Union, Mar. 12, 1991, at ___.
18. Letter from Secretary of State March Fong Eu to Senator
Newton Russell (Mar. 11, 1991), see Appendix H.
19. Cal. Corp. Code 21301 (West 1992).
20. Letter from Secretary of State March Fong Eu to Senator
Newton Russell (Mar. 11, 1991), see Appendix H.
21. Id.
22. Id.
23. Letter from Senator Newton Russell to state Attorney General
Daniel Lungren (Mar. 18, 1991), see Appendix I.
24. Letter from state Chief Deputy Secretary of State Anthony
Miller to state Assistant Attorney General Nelson Kempsky (Apr.
24, 1991). In addition to the threat of a lawsuit by the Western
Center, as reported in the Sacramento Union, ______________, the
Secretary of State advised the Attorney General that it was
likely that a lawsuit might be initiated by the ACLU or even by
the Secretary of State herself. The Attorney General was advised
that the Secretary of State might request the Attorney General to
provide legal representation should such a lawsuit occur. In
previous administrations, these manifestations of potential
lawsuits would have been more than sufficient reason for the
Attorney General to decline to render an opinion on a subject
that would lie at the heart of such litigation.
25. Letter from Assistant Attorney General Nelson Kempsky to
attorney Thomas F. Coleman (May 14, 1991), see Appendix J.
26. 75 Ops. Cal. Att~y Gen. 1 (1992), see Appendix K.
27. Id. at 1.
28. Letter from Senator Newton Russell to Attorney General Daniel
Lungren (Mar. 18, 1991), see Appendix I.
29. It is also noteworthy that the Attorney General's opinion
does not acknowledge the existence of opinions of the Legislative
Counsel or the Secretary of State on the same subject. It does
not adopt the approach or reasoning of the Legislative Counsel.
Nor does it address or attempt to demonstrate how the Secretary
of State may have erred in her analysis.
30. Judson Steel Corp. v. Workers' Comp. Appeals Bd., 22 Cal. 3d
658, 668, 586 P.2d 564, 570,150 Cal. Rptr. 250, 256 (1978)
(quoting Bodison Mfg. Co. v. California E.Com., 17 Cal. 2d 321,
325-26, 109 P.2d 935, 939 (1941)); City of Fremont v. Bd. of
Admin., 214 Cal. App.3d 1026, 1033, 263 Cal. Rptr. 164, 168
(1989); California Ass'n of Dispensing Opticians v. Pearle Vision
Center, Inc., 143 Cal. App. 3d 419, 428, 191 Cal. Rptr. 762, 769
(1983).
31. Unger v. Superior Court, 102 Cal. App. 3d 681, 688, 162 Cal.
Rptr. 611, 615 (1980) (citing Smith v. Municipal Court, 167 Cal.
App. 2d 534, 539, 334 P.2d 931, 935 (1959)).
32. Jimmy Swaggart Ministries v. State Bd. of Equalization, 204
Cal. App. 3d 1269, 1285 n.14, 250 Cal. Rptr. 891, 902 (1988);
People v. Vallerga, 67 Cal. App. 3d 847, 870, 136 Cal. Rptr. 429,
441 (1977).
33. Jimmy Swaggart Ministries, 204 Cal. App. 3d at 1285, n.14,
250 Cal. Rptr. at 902.
34. People v. Woodhead, 43 Cal.3d 1002, 1013, 741 P.2d 154, 160,
239 Cal. Rptr. 656, 662 (1987).
35. 75 Ops. Cal. Att~y Gen. 1 (1992), see Appendix K.
36. 92 Daily Journal D.A.R. 992 (Jan. 23, 1992); Id. at 2.
37. Jimmy Swaggart Ministries, 204 Cal. App. 3d at 1285 n.14, 250
Cal. Rptr. at 902.
38. 75 Ops. Cal. Att~y Gen. 1, 2 (1992), see Appendix K.
39. Cal. Corp. Code 21301, infra p. 13.
40. In her correspondence to Senator Russell on March 11, 1991,
Secretary of State March Fong Eu made it clear that her office
does not register families or issue certificates of name
registration to families, as such, but merely implements a
ministerial duty by issuing a certificate of name registration to
any unincorporated association. The fact that the association's
name happens to include the term "family" and one or more
surnames is irrelevant to her statutory duty. She emphasized
that the Legislature has provided for the registration of the
names of any unincorporated association.
41. 185 Cal. 200, 207 (1921); 75 Ops. Cal. Att~y Gen. 1, 4
(1992), see Appendix K.
42. 75 Ops. Cal. Att'y Gen. at 2-3 (1992), see Appendix K.
43. Id. at 6.
44. Id. at 4.
45. Id. at 7-8.
46. Id. at 8-9; Cal. Civ. Code 4000 (West 1992).
47. 108 Cal. App. 3d 591, 599, 166 Cal. Rptr. 628, 632 (1980).
48. Cal. Corp. Code 21300 (West 1992).
49. 25 Cal. 3d 317, 330-331, 599 P.2d 676, 686,158 Cal. Rptr.
370, 379 (1979).
50. Cal. Civ. Proc. Code 527.3 (West 1992).
51. Sears Roebuck, 25 Cal. App. 3d at 331, 599 P.2d at 686,158
Cal. Rptr. at 380.
52. Id.
53. 23 Cal. App. 3d 806, 100 Cal. Rptr. 501 (1972).
54. Cal. Pub. Res. Code 4161.5 (West 1992).
55. Scally, at 818-819, 100 Cal. Rptr. at 509.
56. Sears Roebuck, 25 Cal. App. 3d at 331, 599 P.2d at 686, 158
Cal. Rptr. at 380.
57. Scally, 23 Cal. App. 3d at 819, 100 Cal. Rptr. at 509-10.
58. Kimmel v. Goland, 51 Cal. 3d 202, 208-209, 793 P.2d 524, 527,
271 Cal. Rptr. 191, 194 (1990) quoting Tierman v. Trustees of
Cal. State Univ. =A0Colleges, 33 Cal. 3d 211, 218-19, 655 P.2d
317, ___, 188 Cal.Rptr. 155, ___; Hogya v. Superior Court, 75
Cal. App. 3d 122, 132, 142 Cal. Rptr. 325, 332 (1977).
59. People v. Mel Mack Co., 53 Cal. App. 3d 621, 626, 126 Cal.
Rptr. 505, 509 (1975).
60. Struckman v. Board of Trustees, 38 Cal. App. 2d 373, 376, 101
P.2d 151, 153 (1940).
61. Hogya v. Superior Court, 75 Cal. App. 3d at 133, 142
Cal.Rptr. at 333 quoting People v. Knowles, 35 Cal. 2d 175, 182-
83, 217 P.2d 1, 5-6 (1950).
62. Cal. Corp. Code 21301 (West 1992).
63. Delaney v. Superior Court, 50 Cal. 3d 785, 798, 789 P.2d 934,
268 Cal.Rptr. 753 (1990).
64. Id.
65. Cal. Corp. Code 21300, 21301 (West 1992).
66. Cal. Corp. Code 21300 (West 1992).
67. Cal. Bus. =A0Prof. Code 14492 (West 1992).
68. Id.
69. Cal. Corp. Code 21300 (West 1992).
70. Cal. Corp. Code 24000 (West 1992).
71. Id.
72. Cal. Corp. Code 21300 (West 1992).
73. People v. Horner, 9 Cal. App. 3d 23, 27, 87 Cal. Rptr. 917,
920 (1970).
Cal. Corp. Code 21000 (West 1992).
75. Isobe v. Unemployment Ins. Appeals Bd., 12 Cal. 3d 584, 590-
91, 526 P.2d 528, 532, 116 Cal. Rptr. 376, 380 (1974); Kendall-
Brief Co. v. Superior Court, 60 Cal. App. 3d 462, 466, 131 Cal.
Rptr. 515, 517-18 (1976).
76. Cal. Corp. Code 21000, 21300, 21301 (West 1992).
77. Cal. Corp. Code 21000 (West 1992).
78. Cal. Corp. Code 21300 (West 1992).
79. Cal. Corp. Code 21000 (West 1992).
80. Cal. Corp. Code 21300 (West 1992).
81. Cal. Civ. Code 4000 (West 1992).
82. Id.; Cal. Corp. Code 21301 (West 1992).
83. Letter from Senator Newton Russell to Legislative Counsel
Bion Gregory (Jan. 17, 1991), see Appendix B.
84. Cal. Corp. Code 21301 (West 1992).
85. Letter from Senator Newton Russell to Legislative Counsel
Bion Gregory (Jan. 17, 1991), see Appendix B.
86. Cal. Corp. Code 21301, 21302 (West 1992).
87. City of Santa Barbara v. Adamson, 27 Cal. 3d 123, ___, 610
P.2d 436, ___, 164 Cal. Rptr. 539, ___ (1980).
88. American Automobile Assoc. v. American Automobile Owners
Assoc., 216 Cal. 125, 131 (1932); Cebu Assoc. of California,
Inc. v. Santa Nino de Cebu Assoc. of U.S.A., 95 Cal. App. 3d 129,
13 P.2d 707, 157 Cal. Rptr. 102 (1979) (while a court cannot
enjoin use of the single word "Cebu," it may properly enjoin the
use of composite and distinct phrases using the word "Cebu").
89. Cal. Corp. Code 21301 (West 1992).
90.Cal. Corp. Code 21305 (West 1992).
91. Cal. Corp. Code 21302 (West 1992).
92. Letter from Senator Newton Russell to Attorney General Daniel
Lungren (Mar. 18, 1991), see Appendix I.
93. Id.
94. Letter from Assistant Attorney General Nelson Kempsky to
attorney Thomas F. Coleman (May 14, 1991), see Appendix J on file
with J.L. Gender =A0Sex. Orient.
95. Jimmy Swaggart Ministries v. State Bd. of Equalization, 204
Cal. App. 3d at 1285 n.14, 250 Cal. Rptr. at 902.
96. Letter from Chief Counsel to the Secretary of State Anthony
Miller to Attorney General Daniel Lungren (Apr. 24, 1991).
97. Cal. Gov. Code 12512 (West 1992).
APPENDICES Appe=
ndix A
Display 1991-1992 Bill Text - INFORMATION
BILL NUMBER: SB 192
BILL TEXT
INTRODUCED B=19 Senator Russell
January 17, 1991
An act to amend Section 21300 of the Corporations Code,
relating to nonprofit associations.
LEGISLATIVE COUNSEL'S DIGEST
SB 192, as introduced, Russell. Nonprofit associations.
Existing law provides that any association whose principles
and activities are not repugnant to the Constitution or laws of
the United States or this State, may register a facsimile or
description of its name or insignia with the Secretary of State.
For purposes of this law, "association" includes any Lodge,
order, beneficial association, fraternal or beneficial society or
association, historical, military, or veterans organization,
labor union, foundation, or federation, or any other society,
organization, or association, or degree, branch, subordinate
lodge, or auxiliary thereof.
This bill would provide that "association" includes, but is
not limited to, the above listed entities.l
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 21300 of the Corporations Code is
amended to read: 21300. As used in this chapter, the following
terms have the meanings set forth in this section, unless the
context otherwise requires:
(a) "Association" includes shall include, but is not limited
to, any Lodge, order, beneficial association, fraternal or
beneficial society or association, historical, military, or
veterans organization, labor union, foundation, or federation, or
any other society, organization, or association, or degree,
branch, subordinate lodge, or auxiliary thereof.
(b) "Insignia" includes badge, motto, button, decoration,
charm, emblem, or rosette. Appendix B
CALIFORNIA STATE SENATE
January 17, 1991
TO: Bion Gregory
FROM: Senator Newton Russell
RE: Registration of Family Associations under Corporation
Code Section 21301
Pursuant to Corporation Code section 21301, 21302 and 21305,
the Secretary of State, upon the filing of a properly completed
application and the payment of the applicable fees, may register
the name of any unincorporated nonprofit association and issue a
certificate of registration to that effect, provided that the
name does not so resemble another registered name as may be
likely to deceive.
The Secretary of State has issued a "Certificate of
Registration of Unincorporated Nonprofit Association" to Rebecca
A. Tapia and Jennifer L. Baughman registered as Fraternal Name
No. 4309 and listed their association by using the words "FAMIL=19
OF REBECCA A. TAPIA AND JENNIFER L. BAUGHMAN". A similar
certificate has been issued by the Secretary of State to Thomas
F. Coleman and Michael A. Vasquez registered as Fraternal Name
No. 4302 and listed their association by using the words "FAMIL=19
OF THOMAS F. COLEMAN AND MICHAEL A. VASQUEZ".
These people have registered as the "FAMIL=19 OF ______" in
order to gain a perceived status of a family through the color of
law. See the memorandum prepared by Thomas F. Coleman and
presented to Secretary of State March Fong Eu and attached
herewith at (page 7, footnote 28).
I am concerned that this may be an improper use of the above
code sections and may subject the State of California to
potential lawsuits and liability. Therefore, I am requesting a
Legislative Counsel's opinion based on the following issues and
questions which raise serious doubt and legal question as to the
validity of the above-described practice:
(1) Whether the State of California may incur potential
liability to people who register as an unincorporated nonprofit
association "FAMIL=19" for the unintended legal consequences of
their registration, for failure to inform these people of the
potential legal consequences of the formation of an
unincorporated nonprofit association "FAMIL=19" since
unincorporated nonprofit associations operate under laws that are
distinctly different from the laws that govern typical family
relationships?
(2) Whether people who register as an unincorporated
nonprofit association "FAMIL=19" must be informed by the state of
California concerning the implications of acting under
unincorporated nonprofit association law? Indeed, how will
members of the "FAMIL=19" know when they are acting as individuals
or when they are acting as an unincorporated nonprofit
association? Will this be an additional issue to be litigated in
unincorporated nonprofit association "FAMIL=19" dissolutions?
(3) Whether the use of the unincorporated nonprofit
association registration to register otherwise unrelated people
as a "FAMIL=19" is consistent with the statutory authority of
Corporation Code section 21300 et seq. or whether it intrudes
upon areas governed by other law such as partnership law, family
law, including the law of marriage, and criminal law?
(4) Whether the statute as applied would open the law to
permit (a) two men and a woman or (b) two women and a man or (c)
a single man or woman and a unrelated minor boy or girl, or (d) a
single parent and minor child or (e) a polygamous relationship or
(f) a palimony relationship or (g) a "group marriage"
relationship (such as the "Manson Family") or (h) a homosexual
relationship or (i) any other combination to register as a
"family"?
(5) Whether all members of a registered unincorporated
nonprofit association "FAMIL=19" are liable for tortious conduct of
other members of the "FAMIL=19" when acting under unincorporated
nonprofit association law?
(6) Whether all members of a registered unincorporated
nonprofit association "FAMIL=19" are liable for contractual
obligations and or damages incurred by other members of the
"FAMIL=19" when acting under unincorporated nonprofit association
law?
(7) Whether property owned in the name of a registered
unincorporated nonprofit association "FAMIL=19" will pass to the
members of the "FAMIL=19" by intestate succession (or otherwise by
inheritance) or whether it will escheat to the state as the
property of a defunct unincorporated nonprofit association? Can
such property be probated?
(8) Whether registration as an unincorporated nonprofit
association "FAMIL=19" will have the effect of waiving the
statutory protections of parents for financial liability for the
acts of their minor children?
(9) Whether the use of unincorporated nonprofit association
law affects the legal obligations of an unincorporated nonprofit
association "FAMIL=19" in other ways?
(10) Whether there are in fact no legal consequences,
benefits or obligations resulting to people who register as an
unincorporated nonprofit association "FAMIL=19" or whether there
exist substantial legal consequences to property rights, legal
liability in general or other legal considerations? (The Coleman
memorandum asserts that there are no legal consequences.) =
Appendix C
LEGISLATIVE COUNSEL OF CALIFORNIA
Bion M. Gregory
Sacramento, CA
February 19, 1991
Honorable Newton R. Russell
5061 State Capitol
Family Associations - #2151
Dear Senator Russell:
QUESTION NO. 1
Are a group of persons who live together in a relationship
in which they share rights and duties similar to those shared by
members of a traditional family entitled to register the name of
their "association" with the Secretary of State under Section
21301 of the Corporations Code under a style such as "Family of
John Doe and Jane Roe."
OPINION NO. 1
A group of persons who live together in a relationship in
which they share rights and duties similar to those shared by
members of a traditional family are not entitled to register the
name of their "association" with the Secretary of State under
Section 21301 of the Corporations Code under a style such as
"Family of John Doe and Jane Roe"?
ANAL=19SIS NO. 1
Section 21301 of the Corporations Code provides for the
registration of associations, as follows:
"21301. Any association, the principles and activities
of which are not repugnant to the Constitution or laws
of the United States or of this State, may register in
the office of the Secretary of State a facsimile or
description of its name or insignia and may by
reregistration alter or cancel it."
Upon registration, the Secretary of State issues a
certificate of registration. Section 21307 of the Corporations
Code then prohibits any unauthorized person from using the
association's registered name, as follows:
"21307. Any person who willfully wears, exhibits, or
uses for any purpose a name or insignia registered
under this chapter, unless he is entitled to use, wear,
or exhibit the name or insignia under the constitution,
bylaws, or rules of the association which registered
it, is guilty of a misdemeanor punishable by fine of
not to exceed two hundred dollars ($200) or by
imprisonment in the county jail for a period not to
exceed 60 days."
Thus, registration under Section 21301 creates an exclusive
right to use a name or insignia. An exclusive right to use a
name cannot be granted to words in common use since those words
are regarded by the law as common property (American Assn. v.
Automobile O. Assn., 216 Cal. 125, 131). Similarly, a family
name cannot be the subject of an exclusive right so as to
prohibit another from using his or her name (Tomsky v. Clark, 73
Cal. App. 412, 418).
The registration of an association under a name such as
"Family of John Doe and Jane Roe" would give that association an
exclusive right to use that name and would prohibit others from
using that name, under threat of criminal penalty (Sec. 21307,
Corp. C.). Similar names, such as "The Doe Family" could be
appropriated, and other "Doe Families" would thereafter be
prohibited from using that name, even, arguably, in such cases as
on holiday cards. These problems arise from the fact that
"family" is a word in common use, and therefore cannot be made a
title subject to the exclusive use of another. The association
of it with a surname does not help since a family name cannot be
the subject of an exclusive right-to-use. Thus, under Section
21301, the registration of such a name would be repugnant to the
laws of the state that permit people to use common words and
family names without restriction.
We do not imply that an association cannot be formed for
that purpose in appropriate cases. However, no formalities are
required for the formation of an unincorporated nonprofit
association (Law v. Crist, 41 Cal. App. 2d 862, 865). The only
purpose of registration is protection of the registered name.
Accordingly, it is our opinion that a group of persons who
live together in a relationship in which they share rights and
duties similar to those shared by members of a traditional family
are not entitled to register the name of their "association" with
the Secretary of State under Section 21301 of the Corporations
Code under a style such as "Family of John Doe and Jane Roe."
QUESTION NO. 2
May a group of persons who live together in a relationship
in which they share rights and duties similar to those shared by
members of a traditional family form an association to formalize
that relationship?
OPINION NO. 2
A group of persons who live together in a relationship in
which they share rights and duties similar to those shared by
members of a traditional family may form a nonprofit association
to formalize that relationship. However, many rights
traditionally granted to family members may be unavailable if
based solely on the association.
ANAL=19SIS NO. 2
A nonprofit association is defined by Section 21000 of the
Corporations Code, as follows:
"21000. A nonprofit association is an unincorporated
association of natural persons for religious,
scientific, social, literary, educational,
recreational, benevolent, or other purpose not that of
pecuniary profit."
The rights and duties of members of an association are
basically determined by the contract of the association, such as
its constitution of bylaws, although the agreement of association
need not be formal or in writing (Law v. Crist, supra, at 865).
In essence, the agreement to associate is contractual and the
rights under it are contractual (Lawson v. Hewell, 118 Cal. 613,
618-619).
Accordingly, a group of people may obtain rights similar to
that of a family by forming an association if those rights may be
obtained by contract.
However, in determining what those rights are, it must be
borne in mind that "family" is not a word of precise legal
meaning. It may refer to spouses, it may refer to parents and
children, it may refer to siblings, it may refer to a combination
of these relationships, or it may refer to even more extended
relationships. Indeed, in Moore S. Corp. v. Industrial Acc. Com,
185 Cal. 200, at 207, the court stated as follows:
"There is little to be gained by reviewing the numerous
definitions given by the courts and lexicographers of
the words 'family' and 'household'. They mean
different things under different circumstances. The
family, for instance, may be an entire group of people
of the same ancestry, whether living together or widely
separated; or it may be a particular group of people
related by blood or marriage, or not related at all,
who are living together in the intimate and mutual
interdependence of a single home or household."
Since "family" has so many varied meanings, it is difficult
to definitively determine the characteristics that would be
shared by a "family association." They may vary from association
to association, depending on the nature of the "family
relationship" that is involved.
However, not all rights inherent in a family relationship
could be obtained by forming an association. For example, a
contractual relationship between persons living together without
marrying is not enforceable under the Family Law Act (Marvin v.
Marvin, 18 Cal. 3d 660, 665 and 681). However, at least to the
extent that contracts are not based upon an illicit consideration
of sexual services, contracts between nonmarital partners will be
enforced (Id., at 672). Accordingly, members of an association
could contract to pool their earnings in a manner similar to that
done by a husband and wife under the community property statutes.
Of course, since the Family Law Act is inapplicable, recourse in
the event of a breach of contract would not be under the Family
Law Act but would be limited to contractual remedies.
With respect to an association that was formed to have
functions similar to a parent and child relationship, it may be
that an adult could undertake a duty of support to a child
similar to that owed by a parent (Sec. 196, Civ. C.). However, a
minor does not usually have the capacity to enter into a contract
that cannot be disaffirmed (Sec. 35, Civ. C.). In addition, the
relationship of parent and child is subject to very substantial
statutory regulation (see, for example, Title 2 (commencing with
Sec. 196), Pt. 3, Div. 1, Civ. C.). For example, a change in the
parent-child relationship requires compliance with specific
requirements (for example, Ch. 2 (commencing with Sec. 221),
Title 2, Pt. 3, Div. 1, civ. C. (adoption)). Thus, that aspect
of the parent-child relationship could not be established by
merely forming an association. Of course, we are not informed of
the particular types of rights and duties that are intended to be
created by such an association.
However, any of these rights would arise solely because of
the contractual relationship of members of the association, and
not because they have somehow become spouses (or children and
parents) by entering into the association. In Marvin v. Marvin,
supra, the court held that the Family Law Act is inapplicable to
nonmarital partners, even though a contractual relationship had
some of the same characteristics as a marital relationship.
Similarly, membership in a "family association" will not, in
itself, create a relationship of spouse or parent and child. The
law prescribes the prerequisites for these relationships (for
example, Sec. 221 and following, Civ. C. (adoption); Title 1
(commencing with Sec. 4000), Pt. 5, Div. 4, Civ. C. (marriage)).
In the absence of compliance with requirements applicable to
establish a spousal or parent and child relationship, the rights
of members of a family association will be limited to those
contractual rights established under the association's charter,
bylaws, or other governing provisions, and then only to the
extent not prohibited by law.
Thus, for example, members of the association may leave
property to other members in their wills. However, in the
absence of such an intentional disposition, membership in the
association will not establish a right of property under the laws
governing intestate succession (Pt. 2 (commencing with Sec.
6400), Div. 6, Prob. C.).
So far, we have discussed limits on the ability of a
nonprofit association to obtain rights and obligations similar to
those present in a traditional family relationship. Conversely,
membership in a nonprofit association may impose obligations that
are not usually present in a traditional family relationship.
Section 388 of the code of civil Procedure provides as
follows:
"388. (a) Any partnership or other unincorporated
association, whether organized for profit or not, may
sue and be sued in the name which it has assumed or by
which it is known.
"(b) Any member of the partnership or other
unincorporated association may be joined as a party in
an action against the unincorporated association. If
service of process is made on such member as an
individual, whether or not he is also served as a
person upon whom service is made on behalf of the
unincorporated association, a judgment against him
based on his personal liability may be obtained in the
action, whether such liability be joint, joint and
several, or several."
Thus, the association can be sued as an association, while
spouses, though they may be joined in the same suit on occasions,
are not sued in the name of the family.
In addition, members of a nonprofit association are not
generally liable for contractual debts of the association unless
the member has personally assumed that debt (Secs, 21100 and
21101, Corp. C.). However, members of a nonprofit association
may, in some instances, be liable for the tort liability of other
members in pursuing the purposes of the association (Steuer v.
Phelps, 41 Cal. App. 3d 468, 472). This liability will depend
upon the facts, such as whether the individual members authorized
the activity that gave rise to the injury (Id.), and whether
there were officers or directors to whom liability could be
imputed (White v. Cox, 17 Cal. App. 3d 824).
It is a difficult to apply these principles to all possible
types of family associations. As stated previously, the nature
of family relationships are so varied that it is impossible to
find a simple characterization that can be applied to all. In
addition, since the nature of an association will necessarily
depend upon the terms of the agreement between its members, a
"family association" is an entity that may take numerous forms.
Thus, it is our opinion that a group of persons who live
together in a relationship in which they share rights and duties
similar to those shared by members of a traditional family may
form a nonprofit association to formalize that relationship.
However, many rights traditionally granted to family members may
be unavailable if based solely on the association.
QUESTION NO. 3
Does the state have any potential liability if it does not
inform persons who register as an unincorporated nonprofit
association with a name that indicates characteristics similar to
those of a family of the consequences of forming such an
association?
OPINION NO. 3
The state does not have any potential liability if it fails
to inform persons who register as an unincorporated nonprofit
association with a name that indicates characteristics similar to
those of a family of the consequences of forming such an
association.
ANAL=19SIS NO. 3
There is not statutory or regulatory requirement that the
state inform persons who register as an unincorporated nonprofit
association with a name that indicates characteristics similar to
those of a family of the consequences of forming such an
association.
Since there is no statutory or regulatory duty to inform
registrants of potential problems, no liability arises from a
failure to discharge a mandatory duty (Sec. 815.6, Gov. C.).
Thus, any duty to inform must arise under the common law (see
Davidson v. Westminster, 32 Cal. 3d 197, 202).
In the absence of a special relationship, the state is under
no duty to warn others of potential hazards that may be caused by
other (Tarasoff v. Regents of University of california, 17 Cal.
3d 425, 435; Davidson v. City of Westminster, supra, 203). A
special relationship that gives rise to a duty to warn or
otherwise exercise care may arise when a public official
voluntarily assumes a duty to exercise care, when there is an
express or implied promise to exercise care, or when the official
created or increased the peril to the victim (Jackson v.
Clements, 146 cal. App. 3d 983, 988) and the peril was not
readily foreseeable by the victim (Johnson v. State of
California, 69 Cal. 2d. 782, 786).
In the case of the registration of an association's name,
there is no voluntary assumption of a duty to protect a victim or
an express or implied promise to care for a victim. Accordingly,
any duty to inform or warn must be based on the creation or
aggravation of a risk that is not reasonably foreseeable by a
victim. However, the registration of the name of the
association does not create the association but only registers
its name. Thus, the registration does not create or increase the
peril. It is the creation of the association by its members that
creates the peril, if any, not the registration of the
association's name.
In addition, the state, by registering the name, does not
have sufficient information to fully assess the nature of any
potential liabilities since the registration does not disclose
the terms of association membership. The members of the
association are in a far better position to understand the rights
and duties that they have imposed on themselves. Thus, the risk
of forming the association is more readily foreseeable by members
of the association than by the state.
Accordingly, it is our opinion that the state does not have
any potential liability if it fails to inform persons who
register as an unincorporated nonprofit association with a name
that indicates characteristics similar to those of a family of
the consequences of forming such an association.
Very truly yours,
Bion M. Gregory
Legislative Counsel
By
William K. Stark
Deputy Legislative Counsel
Appendix D
California State Senate
NEWTON R. RUSSELL
Senator, Twenty-first District
Minority Whip
February 20, 1991
Honorable March Fong Eu
Secretary of State
Executive office
1230 J Street
Sacramento, CA 95814
Dear March:
Upon learning that "Certificates of Registration of
Unincorporated Nonprofit Associations" were being issued to
individuals registered as "FAMIL=19 OF JOHN DOE AND JANE ROE", I
investigated the legality of that procedure. In cooperation with
the Western Center on Law and Religious Freedom, I prepared a
number of issues which we believed raised serious concerns and
possible violations of law. These issues were submitted to
Legislative Counsel for analysis and a written opinion. Attached
herewith is Legislative Counsel opinion, number 21@l.
In response to my request, Legislative Counsel issued in part the
following opinion stating:
A group of persons who live together in a relationship
in which they share rights and duties similar to those
shared by members of a traditional family are not
entitled to register the name of their "association"
with the Secretary of State under Section 21301 of the
Corporations Code under a style such as "'Family of
John Doe and Jane Roe."
In your letter of December 20, 1990, you informed me that you
were compelled under State law to issues these certificates. The
issuance of Certificates as described above have been determined
to be in violation of existing California State law and further
issuance of these types of certificates should be terminated and
those that were issued should be immediately revoked.
Please let me know what action you intend to take.
Sincerely,
Newton R. Russell
Senator, 21st District
NRR:mz
Appendix E
"FAMIL=19 BILL OF RIGHTS" TARGETS PRO-GA=19 LEGISLATION
In response to a variety of pro-gay measures that will be brought
before the California state Legislature this year, conservative
forces have launched a referendum campaign aimed at changing the
state constitution to exclude all progressive gay-rights
legislation.
News of the "Family Bill of Rights," a proposed initiative
to the California ballot, was leaked Feb. 22 from a Sacramento
conference, where the Family Congress, a new statewide umbrella
organization, was holding strategy meetings. The Family Con-
gress, which asserts that it will devote years to the struggle if
necessary if necessary, has connections to rabid homophobe, the
Rev. Lou Sheldon of the Traditional Values Coalition.
"We can't say just how dangerous it is yet, but if they get
this 'Family Bill of Rights' on the ballot, it will be a clear
case of bigotry by initiative," says Laurie McBride, executive
director of the Lobby for Individual Freedom and Equality (LIFE
Lobby), California's only gay-rights and AIDS lobbying
organization.
It's outrageous that any group believes it has a patent on
the definition of the family, and that it has the right to impose
its ideology on the majority," McBride says.
"Current demographics show that only 15-22 percent of
California families fit their definition. It's an attempt to
exclude gay and lesbian relationships from any type of legal
recognition, but it also cuts out step-families. Denying any
Californian the right to define their own family is repugnant and
a real slap in the face of communities of color in this state.
"It's clearly designed to prevent any gay-rights legislation
that would legalize domestic partnerships, family partnerships
and/or same sex marriages. It's unclear how this would effect AB
101. Sheldon has vowed to repeal AB 101 through a referendum in
1992. We just don't know yet if they will try to put both items
on the ballot," McBride says.
In its Family Bill of Rights, the Family Congress contends
the family unit as "...so basic and fundamental to American law
and government that at the dating of our state and federal
constitutions the protection of these invaluable foundations of
society was presumed rather than expressly delineated in the law.
Advocates of a new moral order seek to obtain legal recognition
and tax-supported benefits for various relationships between
people of the same and opposite sexes which have been reserved
legally and historically in our state and nation for the natural
institutions of marriage and parenthood."
The Family Congress is moving in the direction of a
statewide initiative as it is unlikely such a measure would pass
the state Legislature and governor's office. Authorities con-
tacted by Frontiers were unsure as to whether a voter referendum
could actually be used to alter the state's constitution, but
agreed that a successful effort by the conservatives would likely
end up in court.
In addition to passing its Bill of Rights, the Family
Congress looks to tighten the initiative process, a change which
would make efforts to overturn the law more difficult.
The Family Bill of Rights defines a "family" as a man and
woman related by marriage, and/ or parents and their children,
natural and adopted. It limits marriage to individuals of the
opposite sex. In addition, it charges that all laws and
principles within the state shall be interpreted and applied in a
manner to promote and protect the integrity of the family. The
Bill of Right contains other "family- oriented" provisions which
affect educational review, a process strongly advocated by
right-wing fundamentalists who disagree with mainstream textbooks
and educational curricula.
The Family Congress liberally cites reference to their
efforts as a continuance of the work of the nation's founding
fathers. "Like the founders of 1776 who pledged their lives,
their fortunes, and their sacred honor to the principles laid out
in the Declaration of Independence, we, too, appeal to the
Supreme Judge of the World, and go forward with a firm reliance
on the protection of divine providence."
"Any Californian with an ounce of common sense should oppose
this type of initiative--and that's what I expect the voters to
do if it appears on the ballot," McBride says. But at the LIFE
Lobby--and throughout the state--we're monitoring this very
closely. We must always be ready to oppose any attempt to deny
our rights as individuals and as families."
--Bill Geiger
FRONTIERS March 15, 1991
Appendix F
CALIFORNIA CITIZEN
April 1991
Vol. 4, No. 4
Capitol Resource Institute 1211 "H" Street, Ste. A, Sacramento,
CA 95814 (916) 444-9445
Family Congress
UNITING OF THE PRO-FAMIL=19 MOVEMENT
By Michael Bowman
On February 21-23, 1991 over 100 organizations representing
thousands of Californians assembled for the first Family Congress
and after a year of hard work the Congress unanimously adopted
the Declaration on the Family. In addition, the Family Congress
presented the Family Bill of Rights, a document that will be
introduced as a Constitutional amendment to the state
legislature. The document establishes a legal definition of what
constitutes a family. Both documents enumerate the primary right
of parents in raising and educating children while minimizing the
"Big Brother bureaucracy" of the state.
The Declaration on the Family is the "mission statement" for
the Family Congress. It is modelled directly after the
Declaration of Independence. It is a document that anchors pro-
family forces with concrete philosophical and historical
principles. It declares that rights and protections are given to
families as self-evident truths derived from a Judeo-Christian
worldview.
Family Bill of Rights
The Family Bill of Rights is designed to place language in
the California Constitution that says families should decide what
is in their best interest rather than government making personal
decisions for its citizens. The amendment will strengthen
parental authority in decisions affecting their own family. It
will force government agencies to recognize that parents are in
charge of their child's education and growth and that government
is accountable to parents.
What is so significant about the Family Congress? To
understand this, all one needs to do is look at what the
opposition to the pro-family movement has been able to
accomplish. They have put aside their personal agendas and
united their efforts to make incremental political gains. For
example, the parental consent bill was opposed in the California
Legislature by liberals who were able to unite the California
Medical Association, the California Teachers Association, the
American Civil Liberties Union, National Organization for Women,
the American Pediatrics Association, the California Nurses
Association, Planned Parenthood, the Religious Coalition for
Abortion Rights, and The Queens Bench (A Lesbian Legal Society).
This however is not a one time alliance, these groups have a
known working reputation to collaborate and support one another.
The pro-family side has been less successful in
constructively facing this opposition in significant ways. The
Family Congress has been constructed to unite pro-family groups
while fighting head to head with anti-family forces. The
Congress intends to demonstrate to the Legislature and media that
the family is not a special interest group but the sacred
foundation of our society.
The Family Congress was able to agree on fundamental
principles listed in the Declaration on the Family and on a
Constitutional Amendment that would strengthen families. Also
adopted were five key pieces of legislation that would endow
families with rights, responsibilities and financial security.
Not only did the Conference propose significant legislation
it also heard from key leaders in our nation and state on family
issues. Speakers included California Attorney General Dan
Lungren, Civil Rights Advocate James Meredith, Dr. Bill Allen of
the U.S. Commission on Civil Rights, Dr James Dobson by a special
prerecorded address to the Congress, Dr. Charles Heatherly of the
Heritage Foundation, Alan Sears of the National Family Legal
Foundation, Dr. Larry Arn of the Claremont Institute and David
Llewellyn of Western Center for Law and Religious Freedom. A
number of state legislators and congressmen also attended.
The Conference demonstrated that the California Pro-Family
movement is ready to make a serious attempt in protecting
and preserving the American family.
If you are interested in learning more about the Family
Congress or would like to receive a copy of the adopted
Declaration on the Family, please send a written request to:
Capitol Resource Institute
1211 H Street, Suite A
Sacramento, CA 95814
Attention: Family Congress
A HIGHLIGHT OF THE LEGISLATION PROPOSED
Education - Allow state-wide open enrollment in public schools.
Child Support - Require non-custodial parents when required to
pay child support payments to establish a trust account with the
custodial parent in the amount of one year of child support
payments. This account could be withdrawn only in the event of a
late payment of over 30 days by the custodial parent in the
amount of one monthly payment.
Taxation - Significantly increase dependent deduction amounts.
Obscenity - Mandate that courts use local community standards
rather than state-wide standards to define obscenity.
Child Dependency - Give parents the right to present evidence at
a jury trial in juvenile court before the state can terminate
parental custody of the child. The court decision should be
based on clear and convincing evidence.
Parents' Education Tool Kit
Every parent or citizen concerned with the educational
process should have this kit.
This kit contains:
*Moral/Civic Education and Teaching about Religion
*Parents Rights and Responsibilities Handbook
*Excuse of Pupil from Objectionable Material Forms
*Facts sheets on:
Social Science Curriculum
Sex Education/AIDS Curriculum
Getting Involved in School Boards
Curriculum Committees
There is a suggested donation of $15 or more for this kit.
Baccalaureates are back
David Llewellyn
Western Center for Law and Religious Freedom
Baccalaureates are intended to be community events with
significant religious content. Although the government cannot
endorse religion, the moral values essential to responsible citi-
zenship typically rest on religious foundations in the lives of
individuals and communities. Since baccalaureates confer the
blessings of community, church, and family on the graduates and
their futures, the appropriate activities in baccalaureate
celebrations include prayers, sermons, sacred music and religious
ceremonies.
Because of their religious nature, however, baccalaureates
cannot be officially conducted or sponsored by the public school
officials.
The Western Center for Law and Religious Freedom recommends
the following procedure for conducting a baccalaureate that
avoids constitutional concerns:
1. Form a private committee of local people interested in
organizing, financing and conducting the baccalaureate. To
preclude misunderstanding, do not use the name of the school in
the name of the committee, to avoid appearing to be an official
school-sponsored event.
2. Select an appropriate date for the baccalaureate that
does not conflict with any school sponsored activities.
3. Apply to the school or school to rent the school
auditorium on the date selected for the baccalaureate. In
California, school buildings are available for use by the
community during nonschool hours under the Civic Center Act. The
committee may have to pay a fee to rent the facilities.
4. Invite parents, family, students, teachers, churches
and the community to the baccalaureate using mail, radio and
other means of communication. Arrange with school officials to
distribute invitations to the students and faculty and to post
notices of the baccalaureate in the same manner that literature
and notices are distributed and displayed for other local
activities not sponsored by the school. Make it clear to the
school official that you are requesting only the same kind of
communication access to the students that other organizations and
enterprises receive.
5. Organize the baccalaureate to be conducted by nonschool
people. Principals, teachers and school staff may be invited to
speak or otherwise participate in the baccalaureate, but the
invitation to do so and the introductions and announcements at
the baccalaureate should make it clear that they are being asked
to speak on the basis of their personal relationship with the
students and not in their official capacities. The school
officials should not participate in the planning of the program.
The program should reflect the interests of the community or the
churches and not the school. For example, school awards should
not be presented. If recognition of students for their
character, achievement, citizenship or religious commitments is
desired, information may be gathered from school officials as
well as other sources, but the decision determining the young
people to receive such recognition and the form of the
recognition should be decided by the committee and not by the
school.
Appendix G
WESTERN CENTER FOR LAW AND RELIGIOUS FREEDOM
March 4, 1991
March Fong Eu, Secretary of State
Anthony L. Miller, Chief Deputy
State of California
1230 J Street
Sacramento, California 95814
Re: Request to Terminate Registration of "Family
Associations" under California Corporations Code
21300
et seq.
Dear Secretary of State Eu and Mr. Miller:
By a letter dated September 19, 1990, the office of the
Secretary of State received a demand from attorney Thomas F.
Coleman of the Center for Personal Rights Advocacy accompanied by
a 9-page memorandum arguing that the Secretary of State must
issue official certificates of registration of unincorporated
nonprofit associations to "couples" who seek to register
themselves as "family associations."
The Secretary of State has apparently issued certificates of
registration to at least two so-called "family associations."
The Western Center for Law and Religious Freedom believes
that registration of "family associations" is a misapplication
and abuse of the authority of Corporations Code 21300 et seq.,
and the purpose of this letter is to request that the Secretary
of State's office terminate this practice forthwith and rescind
any existing "family association" registrations.
At the request of Senator Newton R. Russell, we assisted in
the preparation of a letter to the office of the Legislative
Counsel requesting an opinion on the legal authority for this
practice. A copy of the letter of request dated January 17,
1991, is attached hereto.
The Legislative Counsel has issued an opinion letter dated
February 19, 1991, concluding also that the use of the
registration procedure is unlawful. A copy of the Legislative
counsel opinion letter is attached hereto.
Without repeating the legal concerns which we raised in our
earlier correspondence and which are supported by the opinion of
Legislative Counsel, additional considerations reconfirm that
this registration procedure should be terminated.
A complete refutation of Mr. Coleman's memorandum is
unnecessary,, but it should be noted that it begins with three
false premises which permeate his analysis and render it
pointless.
First, his extensive policy arguments extolling his belief
in the laudable results which would follow, in his opinion, from
the "creative . . . use?" (page 5) of this statute are entirely
irrelevant. Clearly the statute was not adopted with this
"creative" intention, and the meaning of the statute must be
determined by its language and legislative history, not by the
manipulative arguments of special interest groups who want to
twist it to societal applications outside its original scope.
Second, Mr. Coleman contends that the term "family" can mean
virtually any form of relationship, citing as his primary
authority dicta in the "settled decision" in Moore Shipbuilding
Corporation v. Industrial Accident Commission in which the
Court ruled that a 3 year-old dependent unrelated to the deceased
was entitled to a death benefit as a member of his "household" as
defined by the Workman's Compensation Act.
If anything, Moore Shipbuilding rebuts Mr. Coleman's
argument.
(a) The Supreme Court in Moore Shipbuilding emphasized that
its opinion dealt exclusively with the Workman's Compensation Act
and that this law was a "'. . . system of rights and liabilities
different from those prevailing at common law' . . . which
'undertakes to supersede the common law altogether and to create
a different standard of rights and obligations'" (at 196 P. 258,
emphasis added). In fact, the Court ruled that but for the
Workman's Compensation Act the child's relationship to the
deceased would be "outside the pale of legislative recognition"
(id.). This case stands for very narrow, expressly authorized,
special exception to the law, not, as Mr. Coleman argues, as the
prevailing standard for the law in general.
(b) The Court in Moore Shipbuilding ruled that the mother
of the child, the woman with whom the deceased had been living as
husband and wife without benefit of marriage, was disqualified to
be a member of the family or household of the deceased under the
law. (Id. at 260.) This unmarried male-female relationship
("palimony," in modern parlance) is precisely one of the kinds of
relationships which Mr. Coleman wants to register under
Corporations Code 21300 et seq. (See Coleman memorandum at page
1.)
(c) There is not a word in Moore Shipbuilding to support
the assertion that a self-declared "family" should be treated
under the laws of the state of California as an unincorporated
nonprofit association and subject to the special laws dealing
with unincorporated nonprofit associations.
Third, Mr. Coleman paradoxically asserts that "No benefits
are automatically conferred upon a family which registers itself
as an association" (at page 8), as if registration were merely a
symbolic act and not what it really would be, the declaration
that the parties to the registration are now to be governed by
the laws of unincorporated nonprofit associations. This is
the basis for many of the questions submitted to the Legislative
Counsel.
Having denied the actual impact of registration, the
application of unincorporated nonprofit association law, Mr.
Coleman asserts a broad range of intentions to assert other legal
consequences of registration, including granting legal
recognition to unmarried couples, same sex couples and "domestic
partnerships" (pages 1, 5, 8), permitting foster parents and
guardianships to circumvent the parameters of existing law by
registering minor children as "family" members (page 7, note 28),
and permitting all Californians to bypass the laws of marriage.
Moreover, Mr. Coleman's claims are too modest. Not only could
"couples" register as "families," mimicking the true families
created by the natural and immemorial relationships of marriage
and parenthood, any combination of people could register and
become a "family," including the "Manson family" and polygamous
or polyandrous relationships.
The analysis stated in the Legislative counsel opinion and
the foregoing comments demonstrate that registration of
unincorporated nonprofit association "families" is not, as
asserted by Mr. Coleman, a ministerial duty of the Secretary of
State but rather a misapplication of the law which should be
terminated.
We are available to discuss this matter further at your
convenience. Please send us notice of the action taken on this
request by your office.
Sincerely,
DAVID L. LLEWELL=19N, JR.
President and Special Counsel
Appendix H
Office of the Secretary of State Executive Office (916)
445-6371
March Fong Eu 1230 Street
Sacramento, California 95814
March 11, 1991
Honorable Newton R. Russell
State Capitol
Sacramento, California 95814
Dear Senator Russell:
Thank you for sending me a copy of the Opinion of Legislative
Counsel dated February 19, 1991, regarding the registration of
the names of unincorporated nonprofit associations.
My legal staff has reviewed the opinion and I am enclosing a copy
of their analysis. Please be advised that my office will act in
accordance with that analysis.
Sincerely,
MARCH FONG EU
Enclosure
State of California
M e m o r a n d u m
To: March Fong Eu Date: March 11, 1991
From: Secretary of State, Office of Chief Counsel Anthony L.
Miller
Subject: Legislative Counsel's Opinion
Family Associations-#2151
February 19, 1991
=19ou have requested a review of the above-referenced Opinion
of
Legislative Counsel which was requested by Senator Newton R.
Russell. Most of the issues addressed in that opinion have
already been considered by Secretary of State legal staff.
In his opinion, the Legislative Counsel concludes that a
group of
persons who live together in a relationship in which they
share
rights and duties similar to those shared by members of a
traditional family may form an unincorporated nonprofit
association to formalize that relationship. We agree.
Legislative Counsel concludes that no formalities are
required
for the formation of such an unincorporated nonprofit
association. We agree. Legislative Counsel appears to
conclude
that an association described above can assume a name under
a
style such as "Family of John Doe and Jane Roe". We agree.
Although not essential to our analysis of the duties of this
office, Legislative Counsel concludes that "family" has many
varied meanings and that it may include individuals not
related
by blood or marriage who are living together in the intimate
and
mutual interdependence of a single home or household. We
agree.
Notwithstanding the foregoing, Legislative Counsel concludes
that
an unincorporated nonprofit association which has assumed a
name
in the style of "Family of John Doe and Jane Roe" cannot
resister
that name pursuant to Corporations Code section 21301.* We
disagree.
Section 21301 provides, in applicable part,
Any association...may register in the office of
the Secretary of State a facsimile or description
of its name or insignia .... (emphasis added)
*Subsequent section references are to the Corporations Code
unless
otherwise noted.Memo to Dr. Eu
March 11, 1991
Page 2
Section 21302 provides:
An association shall not be permitted to register any name
or
insignia similar to or so nearly resembling another name or
insignia already registered as may be likely to deceive
Section 21305 provides:
Upon registration, the Secretary of State shall issue his
[sic]
certificate setting forth the fact of registration.
[emphasis
added]
We find this language to be unambiguous. Any association (except
for
certain specified categories not herein relevant) is entitled, as
a
matter of right, to register its name with the Secretary of State
provided that the name does not conflict with the name or
insignia of
a previously registered association. Upon registration, the
Secretary
of State must issue a certificate to that effect, the word
"shall" in
section 21305 imposing a mandatory duty to do so. (section 15)
The
Secretary of State, therefore, upon proper application, is under
a
mandatory, ministerial duty to register the names of associations
and
issue certificates accordingly notwithstanding the fact that an
association name may be under a style such as "Family of John Doe
and
Jane Roe."
The Legislative Counsel, in reaching his conclusion that an
association with a name under the style of "Family of John Doe
and
Jane Roe" cannot register its name pursuant to section 21301,
does not
address the unequivocal language (Any association... may
register...."/"...the Secretary of State shall issue....
)[emphasis
added] of that section and of section 21305. Instead,
Legislative
Counsel relies upon section 21307 which provides:
Any person who willfully wears, exhibits, or uses for any
purpose a name or insignia registered under this chapter,
unless he is entitled to use, wear, or exhibit the name of
insignia under the constitution, bylaws, or rules of the
association which registered it, is guilty of a misdemeanor
punishable by fine of not to exceed two hundred dollars
($200) or by imprisonment in the county jail for a period
not to exceed 60 days.
Memo to Dr. Eu
March 11, 1991
Page 3
Legislative Counsel argues that this penal section creates an
exclusive right to the use of a registered name or insignia under
section 21301; that case law does not permit "exclusive rights"
to be
attached to "words in common use" such as the word "family" or to
a
family name; that, therefore, an association which includes as
part of
its name the word "family" or a "family name" cannot be
registered.
We disagree.
Legislative Counsel assumes, without analysis, that section 21307
vests in an association the exclusive right, without exception,
to use
the words which comprise its name once the name is registered
pursuant
to section 21301. Thus, if a hypothetical unincorporated
association
with the name "Friends of the Homeless" registered its name
pursuant
to section 21301, it would, according to Legislative Counsel's
line of
reasoning, prevent anyone else, at the risk of criminal
prosecution,
from ever uttering, writing, or in any way using those words
even,
presumably, in the course of casual speech or other discourse. A
speaker at a rally for the homeless who described the gathering
as
"friends of the homeless" would risk arrest. That is absurd. It
is
axiomatic that the courts will avoid interpreting statutes so as
to
lead to absurd results and a court would have no problem avoiding
such
a result in interpreting section 21307.
Section 21307, stripped to its essence, says: "Any person who
Willfully...uses for any purpose a name...registered under this
chapter [unless authorized by the association] ...is guilty of a
misdemeanor...." The prohibition here does not involve the
coincidental use of words which the user is otherwise entitled to
use,
such as a person's own name. The prohibition, instead, relates
to the
willful unauthorized appropriation or infringement of an
association's
registered name. An association once registered, is protected
from
unauthorized appropriation or infringement by others but section
21307
does not prevent the benign use of the words which comprise the
association name by others who are independently vested with the
right
to use them.
This point was made by the court in Cebu Association of
California,
Inc. v. Santo Nine de Cebu Inc. (1979) 95 Cal.App.3d 129, 157
Cal.Rptr. 102. In that case a trial court had issued an
injunction
restraining appellants from using the word "Cebu" as part of the
name,
title, or designation of appellant's organization or in
connection
with the solicitation or promotional purposes. ("Cebu" is the
name of
a major island in the Philippines.) The appellate court
reversed,
holding that a court may properly enjoin the use of composite
marks
such as "Cebu Association of California" but not the single word
"Cebu" from use by another organization. 95 Cal.App.3d at 135.
The
court distinguished between the protections extended to a name
versus
the words which may comprise all or part of the name.
Memo to Dr. Eu
March 11, 1991
Page 4
just as the court in Cebu refused to enjoin the use of words
which
appellants were otherwise entitled to use as a matter of right
(in
that case, a geographic name), so must section 21307 be read so
as to
bar nothing more than the unauthorized appropriation or
infringement
of an association's registered name. Thus, it would not, as
Legislative Counsel suggests, make criminal the "Doe family's"
mere
use of their surname on greetings cards even if an association by
the
name of "Family of Doe" had registered its name pursuant to
section
21901. Section 21307 would come into play only if the "Doe
family" or
other individuals willfully attempted to appropriate or in some
way
infringe upon the association's name. (It should be noted that,
in
reality, a prosecution under section 21307 would be
extraordinarily
rare regardless of how this section is construed given the
uniqueness
of association names in the style of "Family of James Doe and
Jane
Roe.)
We believe that Legislative Counsel has read more into section
23107
then the Legislature provided and than a court would find. Thus,
we
do not believe that section 21307 can be the basis of preventing
associations from registering their names which are otherwise
entitled
to be registered pursuant to section 21301. However, our
analysis
does not stop here because we believe that the Legislative
Counsel has
erred in reaching his conclusion even if his expansive reading of
section 21307 is correct.
Assuming, arguendo, that section 21307 does purport to create an
exclusive right in an association to use the words of its
registered
name, it does not follow that any common law prohibition
recording
exclusive rights to use the word "family," or the right to use
one's
own name, can be read into section 21301 as limitations on the
right
to register an association name. If "exclusivity" is the
problem, as
Legislative Counsel argues, then the defect is with section 21307
which purports (according to Legislative Counsel) to create
exclusive
rights to the words of a registered association name rather than
with
section 21301 which creates a right to register an association
name.
To the extent that section 21307 may overreach common law rights
to
use words or names, it is either unenforceable and must be
construed
narrowly as is previously argued to avoid the defect or must be
declared to be invalid. In any case, should section 21307 be
determined to be defective, it is specifically made severable
from
section 21301 pursuant to section 19 and any sins in section
21307
cannot be visited on section 21301.
Even if conceivable defects with section 21307 can be imputed to
section 21301, Legislative Counsel's application of trademark law
to
the registration of association names pursuant to section 21301
does
not lead to the conclusions he suggests. Legislative CounselMemo to Dr.=
Eu
March 11, 1991
Page 6
To summarize, the registration of an association name pursuant to
section 21301 under a style such as "Family of John Doe and Jane
Roe"
[emphasis added] does not prohibit anybody by the name of John
Doe or
Jane Roe from using his or her own name, singularly or
collectively.
To the extent section 21307 is construed so as to prohibit one
from
using is or her name, it is unenforceable. But that does not
mean
that an association cannot register a name which includes a
surname
under section 21301 which, by its terms, provides for the
registration
of any association name (except as otherwise specified in that
section
and section 21302). Had the Legislature intended to provide for
such
a limitation, it could have certainly provided for such as it did
in
section 21301 itself with respect to "subversive" organizations.
Whether it could do so constitutionally, is of course, another
question.
We need not address various constitutional issues which
Legislative
Counsel's conclusion, if correct, would raise. These issues
would
include, but probably not be limited to, the rights of
association,
free speech, privacy, due process and equal protection which are
provided for in varying degrees by the Constitutions of the
United
States and of California. These significant issues would have to
be
engaged only if the statutes were to be read to preclude the
registration of the names of only one category of association,
i.e.,
an association with a name that included the word "family,, and a
surname. We believe the contrary to be true.
This office always gives considerable weight to the Opinions of
Legislative Counsel. In the instant case, we agree with most of
his
conclusions. However, the Secretary of State is, ultimately,
responsible for the implementation of the laws that are within
the
jurisdiction of her office and she must independently determine
what
those laws require her to do. We construe section 21301 to
provide
for the ministerial registration of the names of unincorporated
nonprofit associations upon proper application and the issuance
of
certificates accordingly even if the names include the word
"family"
or one or more "surnames".
###
Appendix I
March 18, 1991
Attorney General Daniel Lungren
Department of Justice
1515 X Street
Sacramento, CA 95814
Dear Attorney General Lungren:
I am writing to request an opinion from the office of the
Attorney
General on the legality of the practice of the Secretary of State
issuing unincorporated nonprofit association registration
certificates
to individuals who register themselves as "families" and then use
the
registration R's official evidence of their "family" status.
Enclosed is a series of correspondence on these issues that will
clarify the question, including:
(1) Correspondence from Senator Russell to Secretary of
State
date February 20, 1991,
(2) Legislative counsels opinion #2151 dated February 19,
1991,
(3) Correspondence from the Western Center for Law and
Religious
Freedom to Secretary of State dated March 4, 1991,
(4) Secretary of State's Chief Counsel's reply to
Legislative
counsels opinion #2151 dated March 11, 1991 and
(5) Attorney Thomas Coleman memo to Mr. Anthony L. Miller,
Chief
Deputy secretary of State dated September 19, 1990.
The questions about the appropriateness of the registration may
be
summarized as follows:
(1) Whether the rights to exclusive use of a registered name of
an
unincorporated nonprofit association precludes the registration
of a
family name (such as the Jones Family)?
(2) Whether the absence of any indicia of intention to operate
under
or to be bound legally by the law of unincorporated nonprofit
associations precludes the registration of individuals as
"families".
(3) Whether the meaning of "association" reasonably includes
individuals desiring to declare themselves as "families"?
(4) Whether the admittedly "creative...Use" of the registration
statute to register "families" falls outside of the intended
scope of
the law?
(5) Whether registration of individuals as a "family" under, the
law
permits such unincorporated nonprofit associations to obtain any
rights or privileges accorded to "families" under California law?
I would appreciate your opinion to the above question as-soon-as
possible. If I can be of further assistance in clarifying any of
the
above please do not hesitate to contact me or my assistant Mr.
Zamorano.
Sincerely,
Senator Newton Russell
21st Senate District
Appendix J
May 14, 1991
Thomas F. Coleman
Executive Director
Family Diversity Project
P.O. Box 65756
Los Angeles, CA 90065
Dear Mr. Coleman:
Opinion No. 91-505
We have received a request from Senator Newton R. Russell
for an
opinion of the Attorney General on the following question:
May individuals register themselves as a "family" with the
Secretary of State under the provisions pertaining to
unincorporated
nonprofit associations? If so, what rights follow from
registration?
It is the policy of our office to solicit the views of all
interested parties prior to issuing an opinion. =19our comments
regarding the questions presented would be appreciated. If
possible,
a response by June 1, 1991, would be most helpful; materials
received
after such date will nonetheless be considered. Views submitted
will
be treated by our office as public records under the Public
Records
Act. Please address your views to: Deputy Attorney General
Ronald
Weiskopf, 110 West "A" Street, Suite 700, San Diego, CA 92101;
telephone (619) 237-7674.
Sincerely,
DANIEL E. LUNGREN
Attorney General
NELSON KEMPSK=19
Chief, Opinion Unit
NK:lac Appendix K
TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNE=19 GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
OPINION ~
~ No. 91-505
~
of ~
DANIEL E. LUNGREN ~
Attorney General ~ JANUAR=19 16,
1992
ANTHON=19 S. DaVIGO ~
Deputy Attorney General ~
THE HONORABLE NEWTON R. RUSSELL, MEMBER OF THE
CALIFORNIA
SENATE, has requested an opinion on the following question:
Under the law pertaining to unincorporated nonprofit
associations, may the Secretary of State issue a certificate of
registration as a "family" to any two or more individuals who
share a
common residence?
CONCLUSION
Under the law pertaining to unincorporated nonprofit
associations, the Secretary of State may not issue a certificate
of
registration as a "family" to any two or more individuals who
share a
common residence.
ANAL=19SIS
Corporations Code section 21301 provides:
"Any association, the principles and activities of
which are
not repugnant to the Constitution or laws of the United
States or
of this State, may register in the office of the Secretary
of
Stale a facsimile or description of its name or insignia and
may
by reregistration alter or cancel it."
Section 21301 is part of the statutory scheme regulating
unincorporated nonprofit associations. ( 21000-21401.) We are
asked
whether under section 21301, the Secretary of State may grant an
application for a certificate of registration to two or more
individuals (whether or not related by blood, marriage or
adoption) in
the style of and for the purpose of being registered and known as
"Family of J. Doe and J. Roe."
The principle issue presented is whether a domestic
relationship of two or more persons with a common residence
constitutes an "association" of the type or nature which may be
registered as a "family." Does such relationship constitute a
"family," and if so, does a family constitutes an "association"
which
may, by definition, be issued a certificate of registration?
The term "family" is in itself broad and inclusive.
The
term, as defined in Webster's New International Dictionary (3d
ed.
1961) at page 821, includes a group of persons in the service of
an
individual; the retinue or staff of a nobleman or high official;
a
group of people bound together by philosophical, religious, or
other
convictions; a body of employees or volunteer workers united in a
common enterprise; a group of persons of common ancestry; a group
of
persons of distinguished lineage; a people regarded as deriving
from a
common stock; a group of individuals living under one roof; the
body
of persons who live in one house and under one head including
parents,
children, servant, and lodgers or boarders; a group of persons
sharing
a common dwelling and table; the basic biosocial unit in society
having as its nucleus two or more parents living together and
cooperating in the care and rearing of their own or adopted
children.
Patently, then, the word "family" has different meanings
depending
upon the context and circumstances of its use. (Moore
Shipbuilding
Corp. v. Industrial Acc. Com (1921) 185 Cal. 200, 207; Estate of
Bennett (1901) 134 Cal. 320, 323).
In the statutory scheme pertaining to unincorporated
associations
in general ( 20000-24007), the term "nonprofit association"
is
defined in section 21000 as follows:
"A nonprofit association is an unincorporated
association of
natural persons for religious, scientific, social, literary,
educational, recreational, benevolent, or other purpose not
that
of pecuniary profit."
As part of this legislation and specifically with respect to
nonprofit
associations ( 21000-21401), the term "association" is
defined in
subdivision (a) of section 21300 as follows:
"Association' includes any lodge, order, beneficial
association, fraternal or beneficial society or military, or
veterans organization, labor union, foundation, or
federation, or
any other society, organization, or association, or degree,
branch, subordinate lodge, or auxiliary thereof."
However, whether one or more definitions of "family"
may
literally fall within the concept of an "association" is not, in
our
view, dispositive of the issue presented. Rather, we look to and
apply the appropriate rules of statutory construction applicable
herein. The "primary aim in construing any law is to determine
the
legislative intent." (Committee of Seven Thousand v. Superior
Court
(1988) 45 Cal.3d 491, 501.) "The meaning of a of a statute may
not be
determined from a single word or sentence; the words must be
construed
in context, and the provisions relating to the same subject
matter
must be harmonized to the extent possible." (Lungren v.
Deukmejian
(1988) 45 Cal.3d 727, 735.) "Statutes are to be given a
reasonable
and common sense interpretation consistent with the apparent
legislative purpose and intent 'and which, when applied, will
result
in wise policy rather than mischief or absurdity.' [Cita tion.]"
(Dyna-Med, Inc. v. Fair Employment =A0Housing Com. (1987) 43
Cal.3d
1379, 1391.)
First, it is noted that the definitions of the term
"association" in sections 21000 and 21300, while nonexclusive,
set
forth at length specific examples of associations, organizations,
end
societies of various types and descriptions. They do not,
however,
specify a traditional or extended family or purely domestic
relationship. This obvious absence of definitional specification
is
inconsistent with a legislative intent to include within the
statutory
design a kind or category which would comprise the vast majority
of
associations.
Second, the concept of "family" in the sense of persons
living together in a traditional or other relationship is unlike
the
kinds of associations which are statutorily specified. As
previously
noted, section 21000 refers to an "association of natural persons
for
religious, scientific, social, literary, educational,
recreational,
benevolent, or other purpose . . . ." In similar vein, section
21300 specifies a "lodge, order, benevolent association,
fraternal or
beneficial society or association, historical, military, or
veteran's
organization, labor union, foundation, federation, or any other .
.
association . . . ."
Under the doctrine of ejusdem generis, the word "other"
may
signify a distinction or difference from that already mentioned,
yet
when it follows an enumeration of particular classes, "other"
must be
read as "other such like" and includes only others of like kind
or
character. (Estate of Stober (199O) 108 Cal.App.3d 591, 599; 74
Ops.Cal.Atty.Gen.167, 168 (1991).) Further, had the Legislature
intended for the more general terms of sections 21000 and 21300
(eq.,
"social," "society") to be used in their unrestricted sense, it
would
not have mentioned the particular things or classes which thereby
would become mere surplusage. (See Sears Roebuck =A0Co. v. San
Diego
County Dist. Council of Carpenters(1979) 25 Cal.3d 311 331.) As
stated in Civil Code section 3534: "Particular expressions
qualify
those which are general." (See In re Marquez (1935) 3 Cal.2d 625,
629;
73 Ops.Cal.Atty.Gen. 156, 160-161 (1990).) It is significant that
all
of the specified categories in sections 21000 and 21300 are
associated
by some external, discreet, and special common interest or
endeavor
not constrained or limited by any preexisting domestic or
residential
relationship.
Third, if the term "association" were understood in its
broadest sense, it would include every conceivable interpersonal
relationship, whether or not in common residence. Two or more
persons
might be associated by various kinds and degrees of mental,
emotional,
psychological, or physical relationship, or mere friendship. It
is
unreasonable to ascribe to the Legislature an intent to
authorize,
and to require upon appropriate application, the registration by
the
Secretary of State of all such associations.
Moreover, as noted at the outset, section 21301 permits
any
association to register in the office of the Secretary of State a
facsimile or description of its name or insignia. Section 21302
prohibits an association from registering any name or insignia
similar
to or so nearly resembling another name or insignia already
registered
as may be likely to deceive. The legislative scheme provides for
an
index of registrations (21306), criminal penalties for the
unauthorized use of a registered name or insignia (21307),
injunctive
relief (21308), and civil damages (21309). It is clear from
the
context of the statutory scheme as a whole that section 21301
providing for the registration of association names and insignia
was
intended to preclude unfair and deceptive practices by preserving
the
name, goodwill, and reputation of an association against
misappropriation and unfair competition. We are unaware of any
social
or public policy of this state lo preserve or protect a family
name
for the exclusive use of a particular family. Had the
Legislature
intended lo accomplish the latter result, in our view it would
have
done so after careful deliberation and in unequivocal terms. We
believe that the Legislature simply did not intend to authorize
the
registration of family names for the sole purpose of providing
public
recognition of a "family" association.
Finally, if the word "association" includes any two or
more
persons who live together, then it certainly includes the
"traditional" family, consisting of husband, wife, and children.
The
Legislature has enacted a comprehensive statutory scheme
regulating
domestic relations, known as The Family Law Act. (Civ. Code,
4000
et seq.) The mere existence of such an integral, comprehensive,
and
specific system of laws regulating domestic relations is an
indication
that the provisions of another general statutory scheme were not
intended to apply. (Cf. O'Sullivan v. City and County of San
Francisco
(1956) 145 Cal.App.2d 415, 418; 63 Ops.Cal.Atty.Gen. 24, 28
(1980.) It
is reasonable to infer that the Legislature did not intend to
superimpose separate provisions upon the same subject mater.
(American Friends Service Committee v. Procunier (1973) 33
Cal.App.3d
252, 262-263; cf. Alta Bates Hospital v. Lackner (1981) 118
Cal.App.3d
622.)
The actual conflicts which would arise by the
imposition of
both statutory schemes suggest that the Legislature did not
contemplate the application of both. In the case of a husband
and
wife, the law of domestic relations and the law pertaining to
associations would operate differently and inconsistently. With
respect to the internal relationship of the individuals, for
example,
a member of an association would have no interest in the earnings
of
the other, whereas such earnings under the law pertaining to
families
would constitute the property of the community. (Civ. Code,
4800.)
Further, an association may be dissolved at will or by the terms
of
its formational agreement, such as the articles of association or
bylaws, while the law governing marital dissolution requires
proof of
irreconcilable differences. (Civ. Code, 4506.) With respect to
external relationships, a member of an association is generally
not
liable for the association's debts (see 21100-21102, 24002;
cf.
Jardine v. Superior Court (1931) 213 Cal. 301; Security First
National
Bank v. Cooper (1944) 62 Cal.App.2d 653, 667; Leake v. City of
Venice
(1920) 50 Cal.App. 462; 59 Ops.Cal.Atty.Gen. 162, 165 (1976)),
while
spouses are liable for debts incurred by either spouse during the
marriage. (Civ. Code, 5116.). We see no basis for concluding
that a
husband and wife who share a common residence were intended to be
covered by the term "association" for purposes of sections 20000-
24007.
It is, of course, axiomatic that a public officer has
only
such powers as have been conferred by law. (See 72
Ops.Cal.Atty.Gen.
51, 52 (1989) [county auditor]; 68 Ops.Cal.Atty.Gen. 223, 224
(1985)
[county tax collector]; and 62 Ops.Cal.Atty.Gen. 504, 508 (1979)
[county tax collector]; 67 Ops.Cal.Atty.Gen. 325, 330 (1984)
[Department of Industrial Relations Director]; 65
Ops.Cal.Atty.Gen.
321, 325 (1982) [county recorder]; 65 Ops.Cal.Atty.Gen. 467,468
(1982)
[Governor]; 63 Ops.Cal.Atty.Gen. 840, 841 (1980) [State
Treasurer].)
Here, Section 21301 does not confer upon the Secretary of State
the a
authority to register the "family" names in question.
Accordingly, in answer to the question presented, we
conclude that under the law pertaining to unincorporated
nonprofit
associations, the Secretary of State may not issue a certificate
of
registration as a "family" to any two or more individuals who
share a
common residence.