From: Lois Klesa Morrison To: domestic@cs.cmu.edu Date: Wed, 5 Jan 1994 16:17:29 EST Subject: Text of Bowers Opinion Against Atlanta DP Ordinances Priority: normal X-Mailer: PMail v3.0 (R1) I received a (poor quality) copy of the Bowers Opinion along with a cover letter from U.Ga. Health Center. The cover letter stated in part "As an agency of the State, The University of Georgis is bound by the guidance of the Attorney General. Therefore, the University does not have the authority to provide services to persons based upon relationships not recognized by the laws of the State of Georgia". I typed the text of the Bowers letter; there may be typing errors. --Lois Morrison ##### BEGIN TEXT ##### DEPARTMENT OF LAW STATE OF GEORGIA Michael J. Bowers 40 Capitol Square, SW Attorney General Atlanta, GA 30331 *OFFICIAL OPINION* Honorable Tim Ryles Commissioner of Insurance Seventh Floor, West Tower Floyd Building 2 Martin Luther King, Jr., Drive Atlanta, Georgia 30034 Dear Commissioner Ryles: You have requested my official opinion as to whether you, as Commissioner of Insurance, can approve a policy amendment to a licensed insurance company's health insurance coverage which would include "domestic partners" as eligible dependents. As discussed below, I have concluded that this policy amendment is violative of the public policy of this state since it is based upon city ordinances which violate both constitutional and statutory provisions which restrict a city's power to legislate concerning status and individual relationships. O.C.G.A. S 33-24-9(a) states, in pertinent part, that no basic insurance policy, written application form, printed rider, or endorsement form, or form of renewal certificate "shall be delivered or issued in this state unless the form has been filed with and approved by the Commissioner." The filing must be made at least 90 days after filing unless the Commissioner prior to that date issues his approval or disapproval. O.C.G.A. S 33-24- 9(b). The specific grounds under which the Commissioner of Insurance may disapprove of any form filed under O.C.G.A. S 33-23-9 are set forth in the Insurance Code as follows: (1) If it is in any respect in violation of or does not comply with this title [O.C.G.A. Title 33]; (2) If it contains or incorporates by reference any inconsistent, ambiguous, or misleading clauses or exceptions which deceptively affect the risk purported to be assumed in the general coverage of the contract; (3) If it has any title, heading, or other indication of its provisions which is misleading; (4) If it is printed or otherwise reproduced in such manner as to render any provision of the form substantially illegible or not easily legible to persons of normal vision; (5) If it contains provisions which are unfair or inequitable or contrary to the public policy of this state or would, because the provisions are unclear or deceptively worded, encourage misrepresentation; or (6) If the benefits provided in any medicare supplement insurance policy defined in Code Section 33-24-29 are unreasonable in relation to the premium charged. O.C.G.A. S 33-24-10. It is a general rule of statutory construction that when a statute expressly provides for certain matters, other matters which were not included are excluded by implication; hence the maxim *expressio unius est exclusio alterius*. City of Macon v. Walker, 204 Ga. 810, 814 (1948). Consequently, the only grounds upon which the Commissioner may disapprove a form filed under O.C.G.A. S 33-24-9 are those contained in O.C.G.A. S 33-24-10. The form currently under review by your office proposed to include health insurance coverage for eligible "domestic partners", who are defined in the policy as "two people of the opposite or same gender who live together in the mutual interdependence of a single home" and have signed a "Declaration of Domestic Partnership". The declaration of domestic partnership is a creation of the City of Atlanta pursuant to Ordinance No. 93-0-0776 (adopted June 21, 1993 and approved by the Mayor on June 29, 1993) which provides for a domestic partnership registry within the City of Atlanta Business License Office. This ordinance specifically states that long-term relationships foster economic and emotional stability, and establishes a procedure under which domestic partners may register with the city. While the ordinance says that it does not create any legal rights or duties or otherwise effect the laws of the state which regulate private or civil relationships, it does permit domestic partners the same visitation privileges as married spouses in the city's jail and detention facilities. The "declaration" is a sworn statement which indicates that the two persons share the same permanent residence, have lived together for the previous six months, have a personal relationship that is intended to be lifelong, agree to be jointly responsible for each other's necessities, are not married or legally separated from anyone, are 18 years of age or older, and are competent to enter into a contract. In a separate ordinance, No. 93-0-1057, adopted August 2, 1993, the City of Atlanta recognized domestic partnerships as a "family relationship" and afforded sick leave, funeral leave, parental leave, health and dental benefits, and any other employee benefit available to city employees on a comparable basis to domestic partners as to the spouses of city employees "to the extent that the extension of such benefits does not conflict with existing laws of the State of Georgia". Section 3, Ordinance No. 93-0- 1057. Pretermitting whether the policy amendment is contrary to any provision of the Insurance Code, O.C.G.A Title 33, I have concluded that a significant public policy question is created by the proposed coverage. The discernment of public policy comes from an understanding of the Constitution, the laws as enacted by the General Assembly, and judicial decisions. Jefferson Pilot Life Ins. Co. v. Clark 202 Ga. App. 385,391 (1991); Burnette v. Ga. Life & C. Ins. Co., 190 Ga. App. 485 (1989). Article III, Section VI, Paragraph IV of the Constitution of Georgia of 1983 provides in subparagraph (c) that "No special law relating to the rights or status of private persons shall be enacted". Municipal ordinances have been construed to be special laws. Jenkins v. Jones, 209 Ga. 758 (1958); Giles v. Gibson, 208 Ga. 850, 851 (1952). Similarly, O.C.G.A S 36-35-6(b), relating to the powers of municipal corporations under home rule, provides that the powers of home rule do not "include the power to take any action affecting the private or civil law governing private or civil relationships, except as incident to the exercise of an independent governmental power". These provisions clearly express the public policy of this state that the promulgation of legislative enactments concerning social status or relationships, and the rights and privileges attendant thereto, are reserved to the General Assembly of Georgia, through the passage of general laws. It is my opinion that the two ordinances of the City of Atlanta which form the basis for the policy amendment under review are not consistent with the limitations contained in the Georgia constitution and general law. The ordinances quite clearly create a legal status or relationship of domestic partner and imbue this relationship with rights and privileges beyond that which is merely incidental to the exercise of the city's home rule powers. Since the policy amendment is really nothing more than an instrumentality by which the city ordinances are effectuated, I must conclude that the policy provisions, which on their face are wholly dependent upon the ordinances for meaning, must also be considered contrary to the general law of the state, and thus against public policy as expressed in Ga. Const. Art. III, Section VI, Par. IV(c) and O.C.G.A S 36-35-6(b). At this time there is litigation pending in the Superior Court of Fulton County in which the legality of the two city ordinances is at issue. The ordinances have been attacked on a number of grounds, including the fact that both the constitution and general law prohibit municipalities from legislating in the area of legal status or relationship. However, given the time limitations placed upon you in the approval process, I am constrained to provide this opinion in advance of a judicial determination. I trust you will understand that a contrary judicial opinion would be controlling. In summary, it is my official opinion that the policy amendment under review is violative of the public policy of this state since it is directly dependent upon ordinances which violate both constitutional and statutory provisions precluding municipal legislation relating to legal status and relationship. This 10th day of December, 1993. (signed) Michael J. Bowers Attorney General Prepared by: (signed) Michael E. Hobbs Deputy Attorney General