BILL ANALYSIS Ó AB 538 Page 1 Date of Hearing: May 12, 2015 ASSEMBLY COMMITTEE ON JUDICIARY Mark Stone, Chair AB 538 (Campos) - As Amended May 5, 2015 As Proposed to be Amended SUBJECT: ACTIONS FOR DAMAGES: FELONY OFFENSES: VICTIM NOTIFICATION KEY ISSUES: 1)SHOULD the statute of limitations for filing a civil action for damages against a person who is convicted of specified serious felony offenses be extended from 10 years after the person is discharged from parole to 15 years after discharge? 2)should the law provide a mechanism for victims of those same specified serious felony offenses to be notified that the perpetrator has entered into a contract for the sale of the story of his or her crime, in order to help the victim or the victim's family decide whether to pursue a civil action against that person in order to recover damages? SYNOPSIS AB 538 Page 2 According to the author, the current ten-year statute of limitations may not provide sufficient time for a crime victim to pursue damages against an offender who may be compensated by a book, movie or other contract for the sale of the story of the crime more than ten years after they are paroled. The author further contends that existing law is insufficient in providing a mechanism to notify a crime victim or the crime victim's family that a book or movie may be released which portrays the crime and their victimization. Notification that the perpetrator of the crime has signed a contract to sell his or her story about the crime would, according to the author, help the victim or the victim's family decide whether to pursue a civil action for damages against the perpetrator. This bill, sponsored by Crime Victims United of California, does not seek to prohibit contracting for the sale of a convicted offender's story, which would be an unconstitutional restraint of speech, but instead requires notification to the state and the victim or the victim's family about a contract's existence. Specifically, this bill would allow victims of specified serious felonies to be notified that the person who committed the felony has entered into a contract for the sale of the story of his or her crime. Proponents contend that the Office of Victims Services (OVS) within the Department of Corrections is the most efficient and appropriate entity to carry out the notification duties under the bill because OVS already maintains contact information for victims and their families who request to be notified about future events regarding the inmate who perpetrated the crime against them. Proposed amendments to the bill simply clarify that the notification requirement only applies when the SOL has not yet barred a suit for damages. In addition to notification, the bill extends by five years (from ten to 15 years) the statute of limitations to file a civil action for damages against the person convicted of the specified felony. Finally, the bill seeks to address an apparent loophole by exempting wrongly convicted persons who are freed from prison from being sued for damages based on their convictions. The bill is supported by police chiefs and sheriffs, who believe AB 538 Page 3 that victims of serious crimes should have greater opportunity to pursue civil damages against their perpetrators. The bill is opposed by Legal Services for Prisoners with Children, who contend that (1) the current ten-year statute of limitations provides more than enough opportunity for a victim to decide whether to file suit; and (2) persons who are off parole have paid their debt to society and deserve to be free from the threat of civil litigation in order to move forward with their lives. Should this bill be approved by the Committee, it will be referred to the Assembly Appropriations Committee with the proposed amendments to be taken there. SUMMARY: Allows victims of specified felonies to be notified that the person who committed the felony has entered into a contract for the sale of the story of the crime, and extends by five years (from ten to 15 years) the statute of limitations to file a civil action for damages against the person convicted of the felony. Specifically, this bill: 1)Extends the statute of limitations for filing an action for damages against a defendant, based upon the defendant's commission of specified felony offenses for which he or she has been convicted, from within ten years to within 15 years of the date on which the defendant is discharged from parole. 2)Provides that no civil action for damages may be filed against a person who was unlawfully imprisoned or restrained but has been released from prison after successfully prosecuting a writ of habeas corpus (i.e. falsely convicted and later released.) 3)Provides that any person or entity that enters into a financial contract with a criminal offender for the sale of the story of a crime for which the offender was convicted shall notify the Office of Victim and Survivor Rights and AB 538 Page 4 Services (OVS) within the California Department of Corrections and Rehabilitation (CDCR) that the parties have entered into such a contract, if the following are true: a) A crime that is the basis of the story sold under the contract is specified in Code of Civil Procedure Section 340.3(b) and resulted in the felony conviction of the offender. b) An action for damages against the offender is allowed to be commenced pursuant to Section 340.3(b) of the Code of Civil Procedure. 4)Requires OVS to notify the victim and members of the victim's immediate family, as defined, that it has received notification that a contract has been entered into for the sale of the offender's story, if the victim or immediate family member has previously requested to receive notifications provided by OVS. EXISTING LAW: 1)Provides that, unless a longer period is prescribed, the time for commencement of any civil action for damages against a defendant based upon that person's commission of a felony offense for which the defendant has been convicted is within one year after judgment is pronounced. (Code of Civil Procedure Section 340.3(a). All further references are to this code unless otherwise stated.) 2)Provides that, notwithstanding #1) above, the time for commencement of an action for damages against a defendant based upon the defendant's commission of specified felony offenses for which the defendant has been convicted is within 10 years of the date on which the defendant is discharged from parole. Specified offenses include: (a) murder or attempted AB 538 Page 5 murder; (b) mayhem; (c) rape and other specified sexual assault crimes; (d) any felony punishable by death or imprisonment in the state prison for life or attempt to commit such a felony; (e) exploding a destructive device or other explosive, causing bodily injury, mayhem or with intent to commit murder; or (f) kidnapping. (Section 340.3(b)(1).) 3)Provides that the extended statute of limitations in #2), above, does not apply if: a) The defendant has received a certificate of rehabilitation or a pardon; b) The defendant has been paroled, following a conviction for murder or attempted murder, based on evidence presented to the Board of Prison Terms that the defendant committed the crime because he or she was the victim of intimate partner battering; or c) The defendant was convicted for murder or attempted murder in the second degree in a trial at which substantial evidence was presented that the defendant committed the crime because he or she was the victim of intimate partner battering. (Section 340.3(b)(2).) 4) Requires that any restitution paid by the defendant to the victim shall be credited against any judgment, award or settlement obtained pursuant to #2), above. (Section 340.3(e).) FISCAL EFFECT: As currently in print this bill is keyed fiscal. COMMENTS: This bill, sponsored by Crime Victims United of California, seeks several changes related to California's so-called "Son of Sam" law. First, the bill allows victims of specified felonies to be notified that the person who committed the felony has entered into a contract for the sale of the story of the crime. The bill also extends by five years (from ten to AB 538 Page 6 15 years) the statute of limitations for a crime victim to file a civil action for damages against the person convicted of the felony, and specifically prohibits any such suit from being filed against a person who was falsely convicted of the crime and released from prison upon being exonerated. Background on "Son of Sam" Law and Extended Civil Statute of Limitations. David Berkowitz, dubbed the "Son of Sam," was a serial killer who terrorized New York City in the late 1970s. After his capture there was much speculation that publishers would offer him large sums of money for his story. His crimes were later told in books, movies and even songs. The State of New York responded by enacting the nation's first "Son of Sam" law, which imposed an involuntary trust on the income earned by criminals who sell the rights to stories about their criminal acts. Under the New York law, the victims of the acts become the beneficiaries of the involuntary trusts of proceeds from the sale of the stories. In 1980, Henry Hill, a lifelong mobster, was arrested in New York. In exchange for immunity from prosecution and a new identity, Hill testified at great length about his life of crime. Subsequently, Hill signed a contract with Simon & Schuster to publish a book recounting his life as a mobster. The book, Wiseguy, was a commercial success, and was later made into the movie Goodfellas, another huge commercial success. The State of New York moved to place an involuntary trust on Hill's income. The publisher, Simon & Schuster, filed a lawsuit challenging the constitutionality of the "Son of Sam" law as an illegal restraint on speech. The U.S. Supreme Court struck down the law as an unconstitutional, content-based financial burden on free speech rights. (Simon & Schuster v. New York Crime Victims Board (1991) 502 U.S. 105.) California passed its own "Son of Sam" law in 1986 to prevent those convicted of notorious crimes from profiting by selling AB 538 Page 7 stories about their crimes. The statute did so by imposing an involuntary trust on the proceeds a felon receives from the sale of the story of his or her crime. However, the California Supreme Court, following the U.S. Supreme Court's decision in Simon & Schuster v. New York Crime Victims Board, invalidated the law. In Keenan v. Superior Court (2002) 27 Cal.4th 413, the Court found provisions of the law violated the constitutional guarantee of free speech, by imposing a content-based financial penalty on protected speech that was over-inclusive in reaching beyond the criminal's profits from the crime to gather all income from the criminal's speech or expression on any theme or subject that the story of the crime included. In light of these decisions, which make it nearly impossible to draft a law that directly targets the profits made by a felon from selling the story of his or her crime and which can withstand constitutional challenge, the Legislature took an alternative approach to ensure that victims of crime can recover against those who harm them: extending the statute of limitations to allow a victim more time to file a tort action against a defendant seeking damages based on the commission of the crime. SB 1887 (McPherson), Ch. 633, Stats. 2002, greatly extended the statute of limitations for a civil action brought by a crime victim (which had been within one year of conviction of the crime), allowing the victim to bring a civil action any time up to ten years after the defendant is discharged from parole if the conviction is one of a number of specified offenses. The specific offenses include murder or attempted murder, mayhem, rape, kidnapping, any felony punishable by death or imprisonment in the state prison for life, and any attempt to commit such a felony. This bill further extends the statute of limitations from ten years to 15 years. According to the author, the current ten-year statute of limitations does not provide sufficient time for a crime victim to pursue damages from an offender who may be compensated by a book, movie or other arrangement for the sale AB 538 Page 8 of the story of the crime they committed more than ten years after they are paroled. Crime Victims United of California, the sponsor of this bill, reports that they are currently working with the family of Missy Avila, a 17-year old girl who was murdered in 1985, to advance policies that help victims' families to ensure that those convicted of the crimes that victimized them cannot financially profit by selling the story of their crimes. In that case, Karen Severson, a friend of Missy Avila, was one of two defendants who were convicted of second-degree murder after an investigation lasting over three years. In 1990, Severson was sentenced to 15 years to life for her role in Avila's murder, but was eventually paroled in December 2011. Subsequently, Severson published a book in June 2013 about her experience, and then a second book about the crime in September 2014. In March 2015, the Avila family filed a wrongful death civil lawsuit against Severson, nearly thirty years after the crime itself but less than four years after the date of Severson's parole. While the author acknowledges that the Avila case is not an example of the victim's family being unable to file a civil action against the perpetrator because of the current statute of limitations, the author contends that the Avila case illustrates that book and movie deals often take many years to develop, and that other crime victims and their families may be barred in the future if the SOL is not extended. Opponents of the bill, including Legal Services for Prisoners with Children (LSPC), contend that there is no need to extend the statute of limitations because crime victims already have the entire time of trial, incarceration, and parole to file suit-plus an extra ten years, because the SOL does not start running until the date when the offender is discharged from parole. Because of the serious nature of the crimes covered by the statute (e.g., murder, attempted murder, mayhem, rape, kidnapping, etc.), the length of time that the offender is incarcerated and serving parole is likely to be substantial, AB 538 Page 9 thus providing the victim or family with more than sufficient opportunity to file a suit for damages. It is not known how many occasions arise each year in which a crime victim is barred by the current ten-year statute of limitations from filing a civil action for damages against the person who committed the crime for the sale of a story about the crime. Because of the long opportunity that the victim or family already have to file a suit before the SOL bars such an action, it is thought that the vast majority of cases are likely served by the current SOL of ten years from the date of perpetrator's discharge from parole. This bill exempts wrongly convicted persons released from prison from being sued for damages based on the conviction. Existing law specifically exempts from being sued for damages any defendant who has been pardoned or received a certificate of rehabilitation, as well as victims of domestic violence who killed or attempt to kill their abusers. This reflects the Legislature's deliberate decision to exempt groups from liability because of their reduced culpability or later rehabilitation. This bill would add an additional category of persons who would be exempted from suit-namely, wrongly convicted persons who have been released from prison for crimes they did not commit. Improvements in DNA technology coupled with increased attention by advocates seeking to identify prisoners with claims of factual innocence have resulted in a number of recent cases of persons being freed from prison for crimes they were shown not to have committed. Because a person who is wrongly convicted of a crime has even less culpability than certain categories of convicted persons who are already exempted under current law from liability, it makes sense to also exempt persons who are wrongly convicted from liability. Although it may seem illogical that a victim would ever file suit against a person who was released from prison based on AB 538 Page 10 strong evidence that he or she did not commit the crime for which he or she was imprisoned, it is possible that not every victim will accept the court's determination that the person is factually innocent of the crime or was not responsible for the crime, particularly if the true perpetrator is not identified. This bill would nonetheless respect the court's judgment that the person deserves to be released from prison, and protect that person from being sued for damages as he or she attempts to once again earn a living and reintegrate back into society after serving time in prison for a crime he or she did not commit. This bill seeks to help victims be notified when an offender signs a contract to sell the story of the crime to another party. According to proponents, existing law is insufficient in providing a mechanism by which a crime victim is made aware at an early stage that a book or movie may be released portraying the crime in a very public way, leaving the victim or victim's family to discover that fact when the book or movie is released in stores or in theaters. Proponents state that the bill is intended to ensure that the victim or victim's next of kin is made aware that their victimization may be replayed in a public setting, so they can prepare themselves and make an informed and timely decision about whether to pursue the recovery of civil damages. As recently amended, this bill would require the Office of Victim and Survivor Rights and Services (OVS) within CDCR to be notified when a criminal offender enters into a contract with another person for the sale of the story of a crime for which the offender is convicted and other circumstances are satisfied. The notification requirement would apply only when the crime is one of the felonies specified in Section 340.3(b), and when an action for damages against the offender is allowed to be commenced prior to the expiration of the SOL specified under Section 340.3(b). According to the author, the bill seeks to harness the existing victim notification process within the OVS to require anyone who enters into a contract with a criminal offender for the sale of AB 538 Page 11 the story about the crime to notify OVS that the parties have entered into such a contract. The bill then requires OVS, within 90 days of receiving such notification, to notify any victim or member of the victim's family who had previously requested notification of the existence of a contract. Proponents assert that these requirements do not restrict the ability of a person or company to enter into a contract for the sale of the offender's story about the crime, but merely require notification to OVS that the contract exists. Utilizing the existing OVS Victim Notification Program. Currently, crime victims, their family members, and certain witnesses in a criminal matter may fill out a form (known as the "CDCR 1707 form") to provide their contact information to OVS and request that OVS notify them in the case of certain future events related to a particular criminal offender. For example, the current CDCR 1707 form allows a person to be notified of the release, escape, or death of the offender; a criminal appeal by the offender; the parole hearing date for an offender sentenced to life imprisonment; and the scheduled execution of an offender sentenced to death. The form is also used to inform OVS about the existence of a restitution order, as well as any request for special conditions of parole or community supervision when the offender is released from incarceration. According to the author, this bill would simply require OVS to modify its current victim notification process to provide notification of an additional event related to the criminal offender-namely, a contractual relationship with another party for the sale of the story of the crime for which he or she was convicted. It is envisioned that this could be accomplished by updating the CDCR 1707 form to allow victims and their immediate family members to request such notification, along with the other types of notifications already offered. It should be noted, however, that the current OVS victim notification program offers victims only notification of events related to an offender that occur while the offender is still an inmate under AB 538 Page 12 custody or supervision of CDCR, which oversees OVS. Under this bill, OVS would be responsible for notifying those victims who request notification of a contract for the sale of the perpetrator's story to another party. This contract can only be made after the offender is no longer an inmate, because current CDCR rules prohibit any inmate from actively engaging in a business or profession. Furthermore, the contract for the sale of the story could potentially be made one day after the perpetrator is discharged from parole, or perhaps several years after parole is terminated. There is no upper limit on the date when that event could occur. Consequently, the bill creates a new responsibility for OVS that continues past the date of date when the former inmate is discharged from parole, when the former inmate is no longer under CDCR supervision. Although the Committee is not aware of any public safety law that might preclude OVS from being mandated to perform this responsibility should this bill become law, it should be noted that OVS notification would only be effective to the extent that victims and their family members maintain updated contact information with OVS for a period of time that could be many years after the parole of the offender. Author's amendment to clarify notification requirement. As currently in print, the notification requirement conditionally applies only when (1) the crime for which the offender was convicted is one of those to which the Section 340.3 statute of limitations specifically applies; and (2) the offender does not fall into one of the categories of people who are specifically exempted from facing suit under Section 340.3. However, under these conditions, the notification requirement would apply even when the statute of limitations has already run, thus barring suit against the offender. In order to reflect the author's intent to require notification only when the statute of limitations has not yet run, and the two conditions stated above are also met, the author proposes the following clarifying amendment: AB 538 Page 13 On page 4, line 18, strike "Paragraph (2) of subdivision (b)" and insert "Subdivision (b)" Previous/pending related legislation. AB 540 (Campos) would require an entity that enters into certain types of contracts to pay a person, who has been convicted of a crime and who is required to pay restitution, to notify specified entities, including the California Victim Compensation and Government Claims Board, of the amount to be paid. By comparison to this bill, AB 540 seeks to establish broader notification requirements for entities contracting to compensate convicted offenders for information related to the story of the crime. AB 540 is currently in Assembly Public Safety with reportedly no plans by the author to move it forward now that this bill has been amended to provide for victim notification. AB 1938 (Hagman) of 2014 would have authorized, except as provided, an action for damages against a defendant who was found not guilty by reason of insanity to be commenced within 10 years of a specified date. The bill later died in the Senate Judiciary Committee. ARGUMENTS IN SUPPORT: The bill is supported by the California Police Chiefs Association and the California State Sheriffs' Association, the latter of whom states: Current law authorizes an action for damages against a defendant within 10 years of the date of discharge from parole, based upon his or her commission and conviction of specified serious felony offenses. These offenses include, but are not limited to, such heinous crimes as murder, rape, sexual abuse of a minor, and assault with a deadly weapon. Victims of such devastating and violent crimes should be afforded every opportunity by the law to collect remuneration AB 538 Page 14 for their suffering. ARGUMENTS IN OPPOSITION: The bill is opposed by Legal Services for Prisoners with Children (LSPC) who contend that the current ten-year statute of limitations is more than sufficient for a crime victim to bring a civil action for damages. LSPC states: Currently, the statutes of limitations for most civil torts range between six months and three years from the injury. Currently a person has up to ten years after the completion of parole to bring a civil suit for certain felonies. This means that a plaintiff has the entire time of trial, incarceration, and parole before the statute of limitations' clock starts running; and then they have a full decade to bring a claim. When a person has been off of parole for fifteen years and is trying to move forward with her life, she should be free from the threat of civil litigation for something that happened so long ago, especially after she has paid her debt to society. This bill would be another way of extending civil penalties on formerly incarcerated people and keeping them from living full and productive lives. After that length of time, a civil suit will not increase justice or make the plaintiff whole; instead it will only act as another punishment on the defendant. The bill is also opposed by the Motion Picture Association of America, Inc. (MPAA), who contends that the bill singles out for regulation certain speech that is protected by the First Amendment, and is therefore unconstitutional. The MPAA states: AB 538 Page 15 AB 538 will have a chilling effect on protected speech. A person, organization or company that enters into a contract with a convicted person may decline to pursue the story because of the disclosure required by this bill. This kind of self-censorship inhibits the free flow of information and ideas from government regulation. The U.S. Supreme Court has ruled many times that laws that promote self-censorship because of the fear of legal consequences violate the First Amendment as much as laws that directly ban certain speech. See Smith v. California, 361 U.S. 147, 154 (1959). In addition, AB 538 would be impractical to administer. An agreement may not specify an amount of compensation for a convicted person's story and may provide contingent compensation. This could create an ongoing disclosure requirement by the person, organization, or company to the designated entities in the bill. And, we also respectfully submit that AB 538 could interfere with the routine business contracting process between writers, producers, directors and individuals who happen to be criminal defendants or persons accused of a crime for their knowledge to tell a story involving a criminal case. Such information often provides critical background material and/or the basis for the development of a motion picture or television program. Proponents contend that the bill simply requires notification to OVS when a company enters into a contract with a convicted person for the sale of the story, and does not impose a financial burden on the convicted person because of the content of his or her speech. Existing state law authorizes a civil action against the convicted person based on the commission of the crime for which he or she was convicted. The Committee also notes that a number of other states currently have statutes that AB 538 Page 16 require an entity that signs a contract with a convicted person for the sale of the story to notify the state that such a contract has been made. These states include Delaware, Georgia, Hawaii, Indiana, Maryland, Minnesota, Mississippi, New York, and others. In many cases, those statutes go even farther than the provisions of this bill by requiring the contract itself to be submitted to the state, including disclosure of the terms of the compensation, rather than mere disclosure of the fact that the parties have entered into a contract. REGISTERED SUPPORT / OPPOSITION: Support Crime Victims United of California (sponsor) California Police Chiefs' Association California State Sheriffs' Association Opposition Legal Services for Prisoners with Children (LSPC) Motion Picture Association of America, Inc. (MPAA) AB 538 Page 17 Analysis Prepared by:Anthony Lew / JUD. / (916) 319-2334