BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 538 (Campos)
Version: May 13, 2015
Hearing Date: July 14, 2015
Fiscal: Yes
Urgency: No
RD
SUBJECT
Actions for damages: felony offenses: victim notification
DESCRIPTION
Existing law provides that a tort action for damages based upon
the defendant's commission of a felony offense for which the
person has been convicted must be brought within one year after
the judgment of conviction is pronounced. Existing law provides
a limited exception to this one year statute of limitations
which permits, except under certain circumstances, a tort action
to be filed up to ten years after the person is discharged from
parole, if the person was convicted of a qualifying serious
felony.
This bill would extend the time to file a tort action against a
person convicted of a qualifying serious felony to 15 years
after the person has been discharged from parole. This bill
would also add a new exception to this longer statute of
limitations where the defendant was unlawfully imprisoned or
restrained but has been released from prison after successfully
prosecuting a writ of habeas corpus pursuant to specified law.
This bill would separately require a person or entity that
enters into a contract with a criminal offender for the sale of
the story of a crime for which the offender was convicted to
notify the California Department of Corrections and
Rehabilitation's Office of Victim and Survivor Rights and
Services (OVS) that the parties have entered into a contract for
sale of the offender's story if certain conditions are met.
This bill would require that within 90 days of being notified,
the OVS notify any victim or member of the victim's immediate
family, as defined, who has requested notification of the
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existence of a contract described by this section.
BACKGROUND
In 2002, the California State Supreme Court, in Keenan v.
Superior Court (2002) 27 Cal.4th 413, invalidated a portion of
this state's "Son of Sam" law that sought to prevent a convicted
felon from exploiting the felon's criminal acts for financial
gain by seizing the profits of the exploitative expressive act
(such as the selling of the felon's story rights) and holding
the proceeds in an involuntary trust for the victims. Due to
the difficulties in drafting a Son of Sam law that would pass
constitutional muster, and wanting to restore some ability for
victims of crime to recover against those that harmed them, the
Legislature enacted SB 1887 (McPherson, Ch. 633, Stats. 2002) to
take a new approach: extending the statute of limitations to
file a tort action that can legally reach all of the defendant's
assets, regardless of source.
Specifically, since 1983, the California Code of Civil Procedure
Section 340.3 was enacted to provide that the time for
commencing a tort action for damages based upon the defendant's
commission of a felony offense for which the person has been
convicted is within one year after the judgment of conviction is
pronounced. (See Code Civ. Proc. Sec. 340.3(a).) SB 1887
created a special exception to this rule, whereby it authorized
such a tort action to be filed up to 10 years after the person
is discharged from (i.e. completed) parole, except under certain
circumstances, if the person was convicted of one of a series of
enumerated "serious felonies," which include: murder, attempted
murder; kidnapping; rape; oral copulation, sodomy, or foreign
object rape by force, violence, duress, menace, threat of great
bodily injury, or fear of immediate and unlawful bodily injury
on the victim or another person; the commission of forcible
rape, spousal rape, or foreign object rape, in concert with
another person; continuous substantial sexual conduct (three or
more acts) with a child under age 14, and; attempt to commit any
felony punishable by death or imprisonment in the state prison
for life.
This bill would now extend the statute of limitations to
commence a claim against a defendant convicted of one of the
above qualifying serious felonies, based on the commission of
that felony, to 15 years after the defendant's completion of
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parole, subject to existing exceptions and a new exception added
by this bill, as specified. This bill would also require a
person or entity that enters into a contract with a criminal
offender for the sale of the story of a crime for which the
offender was convicted to notify the Office of Victim and
Survivor Rights and Services (OVS) that the parties have entered
into a contract for sale of the offender's story if certain
conditions are met-namely, the offender committed one of the
qualifying serious felonies, above, and no exception to the
longer statute of limitations applies. This bill would, in
turn, require that the OVS, within 90 days of being notified,
notify any victim or member of the victim's immediate family, as
defined, who has requested notification of the existence of such
a contract.
CHANGES TO EXISTING LAW
Existing federal law , the U.S. Constitution, provides that
Congress shall make no law abridging the freedom of speech, or
of the press, or the right of the people peaceably to assemble,
and to petition the government for a redress of grievances.
(U.S. Const., 1st Amend., as applied to the states through the
14th Amendment's Due Process Clause; see Gitlow v. New York
(1925) 268 U.S. 652.)
Existing state law , the California Constitution, provides for
the right of every person to freely speak, write and publish his
or her sentiments on all subjects, being responsible for the
abuse of this right. Existing law further provides that a law
may not restrain or abridge liberty of speech or press. (Cal.
Const., art. I, Sec. 2(a).)
Existing state law , the California Constitution, provides that
in order to preserve and protect a victim's rights to justice
and due process, a victim shall be entitled to the specified
rights, including the right to restitution. Existing law
further provides that:
it is the unequivocal intention of the People of the State of
California that all persons who suffer losses as a result of
criminal activity shall have the right to seek and secure
restitution from the persons convicted of the crimes causing
the losses they suffer;
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restitution shall be ordered from the convicted wrongdoer in
every case, regardless of the sentence or disposition imposed,
in which a crime victim suffers a loss.
all monetary payments, monies, and property collected from any
person who has been ordered to make restitution shall be first
applied to pay the amounts ordered as restitution to the
victim. (Cal. Const., art. I, Sec. 28(b)(13)(A)-(C).)
Existing law states the intent of the Legislature that a victim
of crime who incurs an economic loss as a result of the
commission of a crime shall receive restitution directly from a
defendant convicted of that crime. (Pen. Code Sec.
1202.4(a)(1).) Existing law, in relevant part, requires that
the sentencing court order the defendant to pay full restitution
to the victim or victims for all economic damages, except as
specified, and provides that a restitution order shall be
enforceable as a civil judgment. (Pen. Code Sec.
1202.4(a)(3)(B), (f), (i).)
Existing law requires, in every case where a person is convicted
of a crime, that the court impose a separate and additional
restitution fine (in addition to the direct restitution to the
victim, above), set at the discretion of the court and
commensurate with the seriousness of the offense, unless the
court finds compelling and extraordinary reasons for not doing
so and states those reasons on the record. This money is
deposited into the Victims of Crime Fund. (Pen. Code Sec.
1202.4(b)(1).)
Existing law provides that a defendant who has been ordered to
pay restitution must prepare and file a disclosure, as
specified, identifying all assets, income, and liabilities in
which the defendant held or controlled a present or future
interest as of the date of the defendant's arrest. The financial
disclosure statements shall be made available to the victim and
the Victims Compensation and Government Claims Board pursuant to
specified law. (Pen. Code Sec. 1202.4(f)(5).)
Existing law provides that, unless a longer period is prescribed
for a specific action, the time for commencing a tort action for
damages based upon the defendant's commission of a felony
offense for which the person has been convicted, is generally
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within one year after the judgment of conviction is pronounced.
(Code Civ. Proc. Sec. 340.3(a).)
Existing law provides that an action for damages against a
defendant based on the defendant's commission of a felony
offense for which the defendant has been convicted may be
commenced within 10 years of the date on which the defendant is
discharged from parole, if the conviction was for a qualifying
serious felony. The qualifying serious felonies are:
murder, attempted murder;
mayhem;
kidnapping;
rape;
oral copulation, sodomy, or foreign object rape by force,
violence, duress, menace, threat of great bodily injury, or
fear of immediate and unlawful bodily injury on the victim or
another person;
the commission of forcible rape, spousal rape, or foreign
object rape, in concert with another person;
lewd or lascivious act on a child under the age of 14 years;
continuous substantial sexual conduct (three or more acts)
with a child under age 14;
attempt to commit any felony punishable by death or
imprisonment in the state prison for life;
exploding a destructive device or any explosive causing bodily
injury, great bodily injury, or mayhem; or
exploding a destructive device or any explosive with intent to
murder. (Code Civ. Proc. Sec. 340.3(b)(1).)
Existing law requires that any restitution paid by the defendant
to the victim be credited against any civil judgment, award or
settlement based on the defendant's criminal conduct. (Code
Civ. Proc. Sec. 340.3(e).)
Existing law requires the Department of Corrections and
Rehabilitation (CDCR) or Board of Parole Hearings (BPH) to send
a notice to a victim or witness who has requested notification
that a person convicted of a violent felony is scheduled to be
released. (Pen. Code Sec. 3058.8(a).)
Existing law provides that a prison inmate retains specified
civil rights that need not be restricted to penological
interests. Existing law, in relevant part, provides that these
civil rights include the right of an inmate to inherit, own,
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sell real or personal property, including all written and
artistic material produced or written by the person during the
period of imprisonment, except as provided in Civil Code Section
2225 (the state's Son of Sam statute, which has been invalidated
in part, as described below). (Pen. Code Sec. 2601(a).)
Existing case law , Keenan v. Superior Court (2002) 27 Cal.4th
413, provides that the Son of Sam Law referenced above, violates
the constitutional guarantees of freedom of speech insofar as it
imposes an involuntary trust upon all proceeds and profits
derived from the sale of rights to, or materials based on, the
story of a notorious crime for which a felon has been convicted.
This bill would extend the time to file a tort action against a
person convicted of a qualifying serious felony, above, from 10
years upon discharge from parole to 15 years upon discharge of
parole. This bill would also add a new exception to the
application of the longer statute of limitations for qualifying
serious felonies where the defendant was unlawfully imprisoned
or restrained but has been released from prison after
successfully prosecuting a writ of habeas corpus pursuant to
specified law.
This bill would add a new provision to require a person or
entity that enters into a contract with a criminal offender for
the sale of the story of a crime for which the offender was
convicted to notify the Office of Victim and Survivor Rights and
Services (OVS) within the California Department of Corrections
and Rehabilitation that the parties have entered into a contract
for sale of the offender's story if: (1) the conviction was for
one of the qualifying serious felonies, listed above; and (2)
none of the specified exceptions to the longer statute of
limitations for actions arising out of the offender's commission
of a qualifying serious felony apply, precluding commencement of
a civil action against the criminal offender.
This bill would provide that within 90 days of being notified,
the OVS must notify any victim or member of the victim's
immediate family, as defined, who has requested notification of
the existence of such a contract. This bill would define
"immediate family member" to mean a spouse, child, parent,
sibling, grandchild, or grandparent.
COMMENT
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1. Stated need for the bill
According to the author:
Violent criminals should not profit from their crimes.
Unfortunately, existing law does not adequately protect
victims and their surviving loved ones from the commercial
exploitation of violent crimes for entertainment purposes.
AB 538 would increase the statute of limitations from ten
years to fifteen to ensure ample time for the victim to pursue
civil damages.
Additionally, the bill would make use of the existing victim
notification systems under the jurisdiction of the California
Department of Corrections & Rehabilitation (CDCR) to notify
the victim or victim's next of kin when such contractual
agreements are taking place.
This is intended to be modeled after the media access law
whereby the victim or victim's next of kin should be notified
that a media representative has requested to interview the
individual, but in no way inhibits their ability to enter in
to a contractual agreement with compensation for the sale of
the offender's story about the crime.
With the increased statute of limitations and notification
about the contractual agreement where financial gain is
provided to the offender, a victim or victim's next of kin can
make an informed decision about whether to pursue civil
damages.
In support of the bill, the California State Sheriffs'
Association writes that "[v]ictims of such devastating and
violating crimes should be afforded every opportunity by the law
to collect remuneration for their suffering."
2. Bill would increase the statute of limitations to bring a
civil action against a defendant where the action arises out
of the commission of a specified serious felony
A statute of limitations is a requirement to commence legal
proceedings (either civil or criminal) within a specific period
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of time. Statutes of limitations are tailored to the cause of
action at issue - for example, cases involving injury must be
brought within two years from the date of injury, cases relating
to written contracts must be brought four years from the date
the contract was broken, and, as commonly referenced in the
media, there is no statute of limitations for murder. Although
it may appear unfair to bar actions after the statute of
limitations has elapsed, the limitations period serves important
policy goals that help to preserve both the integrity of our
legal system and the due process rights of individuals. The
purpose is to prevent the assertion of stale claims and,
ultimately, "to promote justice by preventing surprises through
the revival of claims that have been allowed to slumber until
evidence is lost, memories have faded, and witnesses have
disappeared." (3 Witkin Cal. Proc. Actions Sec. 433.)
Accordingly, under California law, civil actions, without
exception, can only be commenced within the periods prescribed
in this title, after the cause of action shall have accrued,
unless where, in special cases, a different limitation is
prescribed by statute. (Code Civ. Proc. Sec. 312.) Currently,
most civil actions (not involving recovery of real property) are
generally subject to one to four year statutes of limitations.
These include civil actions for assault, battery, wrongful
death, professional malpractice, fraud, libel or slander, or
false imprisonment. (See e.g. Code Civ. Proc. Sec. 335 et seq.)
In limited instances, the state also provides for a ten year
statute of limitations. (See e.g. Code Civ. Proc. Sec. 337.15,
340.3, 337.5.) Additionally, where no specific statute of
limitations is assigned to a particular type of relief, a four
year statute of limitations generally applies. (Code Civ. Proc.
Sec. 343.) Certain exceptions have been made, however, that
recognize the specific difficulties posed for some victims to
bring their claims within those shorter statutes of limitations.
For example, California law was amended in recent years to
provide for a five year statute of limitations for victims of
human trafficking (and eight years upon reaching age of majority
if the victim was a minor). Similarly, victims of childhood
sexual abuse have specifically been provided an eight year
statute of limitation from the date the plaintiff attains the
age of majority or within three years of the date the plaintiff
discovers or reasonably should have discovered that
psychological injury or illness occurring after the age of
majority was caused by the sexual abuse. (See Civ. Code Sec.
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52.5 and Code Civ. Proc. Sec. 340.1, respectively.)
Most pertinent to this bill is a special 10 year statute of
limitations for bringing claims against defendants who have been
convicted of specified serious felonies. Specifically, under
existing law, Code of Civil Procedure Section 340.3, the general
time for commencing a tort action for damages based upon the
defendant's commission of a felony offense for which the person
has been convicted is generally within one year after the
judgment of conviction is pronounced. As noted in the
Background, in response to the invalidation of the state's "Son
of Sam" law by the California Supreme Court in Keenan v.
Superior Court (2002) 27 Cal.4th 413, that section was amended
in 2002 to create an exception to allow a tort action to be
filed against a defendant based upon his or her commission of a
qualifying "serious felony" (which includes felonies such as
murder, attempted murder; kidnapping; rape; or attempt to commit
any felony punishable by death or imprisonment in the state
prison for life) for up to 10 years after the defendant has been
discharged from parole, except under certain circumstances.
This bill would now extend the statute of limitations to
commence a claim against a defendant convicted of a qualifying
serious felony, based on the commission of that felony, to 15
years after the defendant's date of parole. Thus, if the
conviction resulted in a 25 year prison sentence, assuming that
the defendant serves even 20 years of that sentence before
qualifying for parole, the claim could be commenced in that
situation up to 35 years after the crime was committed.
Arguably, assuming that a person convicted of a qualifying
serious felony serves even five to 10 years before being
eligible for parole, this bill would allow for the claim to be
brought upwards of 20 or 25 years after the fact (a five year
extension from existing law).
As a matter of public policy, shorter statute of limitations
encourage plaintiffs to bring their claims in a timely fashion,
thereby reducing due process concerns for defendants and the
likelihood that the plaintiffs' own evidence will grow stale.
The following amendment would cause the bill to revert back to
the existing 10 year statute of limitations upon completion of
the defendant's parole.
Suggested Amendment:
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On page 2, line 11, strike "15" and insert "10"
3. Potential First Amendment implications of this bill
This bill would require a person or entity that enters into a
contract with a criminal offender for the sale of the story of a
crime for which the offender was convicted to notify the Office
of Victim and Survivor Rights and Services (OVS) that the
parties have entered into the contract if certain conditions are
met-namely, the offender committed one of the qualifying serious
felonies for which a longer 10 year statute of limitations
applies (15 years under this bill), and no exception to the
longer statute of limitations applies. This bill would, in
turn, require that OVS, within 90 days of being notified, notify
any victim or member of the victim's immediate family, as
defined, who has requested notification of the existence of such
a contract.
a. Relevant First Amendment jurisprudence, generally
By way of background, constitutional challenges to
governmental laws for violations of various rights are
generally subjected to three different levels of tests:
rational basis, intermediate scrutiny, or strict scrutiny.
Rational basis is frequently applied, for example, to economic
regulations. Under this test, a law will be upheld if it is
rationally related to a legitimate government purpose (i.e. a
legitimate goal for the government to pursue). In fact, the
purpose or goal need not even be the actual purpose of the
regulation being litigated, but rather, any conceivable
purpose would be sufficient. Intermediate scrutiny, on the
other hand, the middle tier of review, applies in cases
involving, for example, commercial speech regulations. Under
this test, a law will be upheld if it is substantially related
to an important (as opposed to any legitimate) governmental
purpose. Lastly, the most intensive type of judicial review
given to constitutional challenges of government regulations
is strict scrutiny. This level of review is what is provided
to laws that discriminate based on suspect classes such as
race or national origin, and laws that interfere with the
freedom of speech. Under strict scrutiny, a law will be
upheld only if it is necessary to achieve a compelling state
interest. "Necessary" requires that the law be the least
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restrictive alternative to achieving the stated ends. At
times, the Court has said that strict scrutiny requires that
the regulation be narrowly tailored to furthering compelling
governmental interests. (See Chemerinksy, Constitutional
Law, Constitutional Law Principles and Policies (2011) 4th
Edition, pp. 552-553.)
Notably, though it receives only intermediate scrutiny,
commercial speech is a form of speech protected by the First
Amendment. (See Virginia State Board of Pharmacy v. Virginia
Citizens Consumer Council (1976) 425 U.S. 748.) That being
said, it is not entirely clear what is defined as commercial
speech, besides price advertising. Thus, while newspapers,
movies, books, and the like are forms of speech that can be
sold, the Courts have made clear that the sale of speech does
not automatically render it commercial speech. (Id. at 761,
"speech does not lose its First Amendment protection because
money is spent to project it, as in a paid advertisement of
one form or another. [citing Buckley v. Valeo (1976) 424 U.S.
1, 35-59; New York Times Co. v. Sullivan (1964) 376 U.S. 254
at 266]. Speech likewise is protected even though it is
carried in a form that is 'sold' for profit, [citing Smith v.
California, 361 U.S. 147, 150 (1959) (books); Joseph Burstyn,
Inc. v. Wilson, 343 U.S. 495, 501 (1952) (motion pictures);
Murdock v. Pennsylvania (1943) 319 U.S. 105, 111 (religious
literature)] and even though it may involve a solicitation to
purchase or otherwise pay or contribute money [citing New York
Times Co. v. Sullivan, supra; NAACP v. Button (1963) 371 U.S.
415, 429; Jamison v. Texas (1943) 318 U.S. 413, 417; Cantwell
v. Connecticut (1940) 310 U.S. 296, 306-307 (1940)].")
That being said, even if the speech captured by various media
forms such as books, movies, newspapers, broadcasts, etc., are
generally fully protected under the First Amendment and
subject to strict scrutiny, it is important to note that not
all protected speech is absolutely protected under the First
Amendment. For example, as noted by the U.S. Supreme Court in
Brandenburg v. Ohio (1969) 395 U.S. 444, 447, speech can lose
its constitutional protections in rare circumstances where it:
(1) involves the likelihood of imminent lawless action; and
(2) is directed at inciting or producing that imminent lawless
action. There are other categories of speech that are
unprotected or less protected by the First Amendment, such as
obscenity, or defamation. That being said, this bill is not
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necessarily a regulation of a lesser-protected form of speech;
the selling of one's story rights relating to a serious crime,
however reprehensible, is neither illegal, nor does it involve
a type of inherently unprotected speech. Indeed, as stated by
Justice Brennan: "[i]f there is a bedrock principle underlying
the First Amendment, it is that the government may not
prohibit the expression of an idea simply because society
finds the idea itself offensive or disagreeable." (Texas v.
Johnson (1989) 491 U.S. 397, 414.)
Additionally, the U.S. Supreme Court has held on numerous
occasions that at the very core of the First Amendment is the
principle that the government may not regulate speech based on
its content, and that content-based restrictions are
presumptively invalid. (See RAV v. City of St. Paul (1992)
505 U.S. 377, 382.) For example, a law regulating speech is
content-neutral if it applies to all speech regardless of the
message. A law making all picketing, except labor picketing,
unconstitutional, would be content-based. A law prohibiting
anti-war protests would be both content-based and a viewpoint
regulation. So, too, would a law that prohibits any speech
about war (subject matter regulation). In contrast, a law
prohibiting the posting of all signs on public utility poles
would be content- and viewpoint neutral. The concern here is
that government will target particular messages and attempt to
control thoughts on a topic by regulating speech. As stated
by the U.S. Supreme Court in the case of Simon & Schuster,
Inc. v. Members of the New York St. Crime Victims Board (1991)
502 U.S. 105, 116, "[such restrictions] raise the specter that
the government may effectively drive certain ideas or
viewpoints from the marketplace." (See Chemerinksy at p.
962.)
b. First amendment concerns relating to "Son of Sam" Laws
Under such line of reasoning, as discussed above, the U.S.
Supreme Court, in Simon & Schuster, struck down a state law
that prevented an accused or convicted criminal from profiting
from selling the story of his or her crime to any media for
violating the First Amendment. The dubbed "Son of Sam" law
(named after serial killer David Berkowitz, who terrorized New
York in the 1970s and was popularly known as the "Son of Sam"-
though the law, ironically, was never applied to him) placed
any funds received from works describing the crime into an
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escrow account that was used for restitution to victims of the
crime and for paying the criminal's other creditors. In that
case, Henry Hill, an organized crime figure, who was arrested
on drug trafficking charges in 1980, testified at great length
about his former colleagues in exchange for immunity from
prosecution and a new identity. Subsequently, in 1981, Hill
signed a contract with Simon & Schuster to publish a book
recounting his life. The book, Wiseguy, was published in 1986
and depicted, in colorful detail, the day-to-day existence of
organized crime. The book was also a commercial success, and
was later made into the movie Goodfellas, which was itself a
commercial success that won a host of awards in 1990. Then,
in 1987, the New York State Crime Victims Board (Board) issued
a proposed determination and order. Wiseguy was covered by the
law, that Simon & Schuster had violated the law by failing to
turn over its contract with Hill to the Board and by making
payments to Hill, and that all money owed to Hill under the
contract had to be turned over to the Board to be held in
escrow for the victims of Hill's crimes. The Board ordered
Hill to turn over the payments he had already received, and
ordered Simon & Schuster to turn over all money payable to
Hill at the time or in the future. As a result, Simon &
Schuster brought suit, seeking a declaration that the Son of
Sam law violates the First Amendment and an injunction barring
the statute's enforcement. (Id. at 114-115.)
As stated by the Court, "[a] statute is presumptively
inconsistent with the First Amendment if it imposes a
financial burden on speakers because of the content of their
speech. [Citation omitted] [ . . . ] The Son of Sam law is
such a content-based statute. It singles out income derived
from expressive activity for a burden the state places on no
other income, and it is directed only at works with a
specified content. Whether the First Amendment 'speaker' is
considered to be Henry Hill, whose income the statute places
in escrow because of the story he has told, or Simon &
Schuster, which can publish books about crime with the
assistance of only those criminals willing to forgo
remuneration for at least five years, the statute plainly
imposes a financial disincentive only on speech of a
particular content." (Simon & Schuster, 502 U.S. at 115-116.)
Accordingly, applying strict scrutiny to that law, the Court
first looked to the proffered interests of the state,
acknowledging that there is little doubt that compensating
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crime victims is as a compelling governmental interest as is
ensuring that criminals do not profit from their crimes. (Id.
at 118-119.) The Court made clear, however, that while the
state has a compelling state interest in compensating victims
from the fruits of the crime, it has little if any interest in
limiting such compensation to the proceeds of the wrongdoer's
speech about the crime. Accordingly, the Court focused its
analysis of whether the Son of Sam law was narrowly tailored
to only the former objective, and held that the regulation was
over inclusive-in other words, and state could have achieved
its goal through means that are less restrictive of speech.
(Id. at 120-121, 123.)
As noted in the Background, in 2002, a California Supreme
Court case, Keenan v. Superior Court (2002) 27 Cal.4th 413,
similarly overturned California's own "Son of Sam" law insofar
as it seized the profits of such free speech-protected
activities and placed them in an involuntary trust for
victims. Relying on Simon & Schuster, the court deemed the
law to be a content-based regulation of speech and, therefore,
"unconstitutional unless, at a minimum, it is narrowly
tailored to serve compelling state interests." (27 Cal.4th.
at 429; the court later noted that to be narrowly tailored
does not require "that there be no conceivable alternative,
but only that the regulation not 'burden substantially more
speech than is necessary to further the government's
legitimate interest.'" (Id. at 430 (citation omitted).)
To this end, the court first began by recognizing that though
there is no compelling interest in targeting a criminal's
storytelling proceeds in particular for the purpose of
compensating crime victims the state does have a compelling
interest in using the fruits of crime generally for that
purpose. (Id. at 430 (emphasis in original), citing Simon &
Schuster, supra, 502 U.S. 105, at 118-121). Next, the court
noted that California's law entrusted and confiscated all
income from a felon's proceeds from all expressive materials,
whatever their subject, theme, or commercial appeal, that
include a substantial account of such offenses, whatever their
nature and however long in the past they were committed.
Ultimately, the court held that the law was an overinclusive
(i.e. not narrowly tailored) infringement of protected speech
because it targets and confiscates all of a convicted felon's
proceeds from expressive materials that include any
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substantial account of the felony, in whatever context. (Id.
at 434, 436.)
Like the Son of Sam laws, above, this bill does not
necessarily restrict speech by imposing a prior restraint that
would prevent the speech or form of expression from ever
taking place. It would, however, burden a person or entity,
purchasing a story, to notify the OVS any time it enters into
a contract with a criminal offender for the sale of the story
of a crime for which the offender was convicted, as long as
the offender committed one of the qualifying serious felonies
for which a longer 10 year statute of limitations applies (15
years under this bill), and no exception to the longer statute
of limitations applies. As such, the bill could create a
chilling effect on persons subject to these laws, causing them
to reconsider entering into these contracts out of concern as
to what practical and legal consequences may result from such
notification. Further, because this bill targets contracts
involving a form of expression protected by the First
Amendment, based upon the specific content of that expression,
if challenged, this bill would arguably be subject to a strict
scrutiny analysis by the courts. Ultimately, whether or not
this bill would be considered narrowly tailored to the bill's
stated compelling interest is arguably a question for the
courts.
c. Opposition arguments that this bill violates the First
Amendment
In opposition, the Media Coalition (whose members represent
publishers, librarians, and producers and retailers of
records, films, home videos, and video games) writes that
while it understands the "desire to provide restitution for
victims of crimes" it believes that "the bill's narrow focus
on contracts for the story of the crime will have a chilling
effect on First Amendment rights of the producers of
constitutionally protected speech."
Also in opposition, the Association of American Publishers
(AAP) writes in agreement that the effect of AB 538's
requirement for any person, organization, or company that
enters into a contract with a 'criminal offender' to report to
the OVS any sale of the story of a crime for which the
offender was convicted, "would be to discourage any contracts,
AB 538 (Campos)
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thereby chilling speech that is fully protected by the First
Amendment." AAP explains:
The bill as drafted is unconstitutional because it
explicitly burdens speech by a particular category of
speaker on a particular subject. In the case of a book,
the burden would be two-fold: a burden on the publisher to
report the contract, which in itself could discourage the
publisher from pursuing sensitive publishing projects; and
a burden on the convicted individual, whose payments in
connection with expressive activity are singled out from
all other sources of income as the target for potential
damages action. Burdening protected expression in this
manner violates the First Amendment under rulings of the
U.S. Supreme Court and the Supreme Court of California.
AAP acknowledges that this bill, unlike the New York Son of
Sam law at issue in Simon & Schuster "would not require
deposit of payments made under the contract into an escrow
fund," but argues that "the burdens on speech that [AB] 538
would impose raise the same First Amendment concerns the
Supreme Court identified in Simon & Schuster . . . [where] the
Supreme Court found [the law to be] content based because it
'single(d) out income derived from expressive activity for a
burden the state place(d) on no other income' and was
'directed only at works with a specified content.' 502 U.S. at
116." AB 538, similar to the Son of Sam law, AAP argues,
would "apply to books and other expressive works that are
based only 'in part' on the author's criminal actions,
regardless of how those actions were addressed or how
significantly they figure in the work. Accordingly, like
[California's invalidated Son of Sam law], AB 538 is not
narrowly tailored." Lastly, AAP also, relying on the Keenan
decision, notes that this bill fails to recognize that "[o]ne
might mention past felonies as relevant in personal
redemption; warn from experience of the consequences of crime;
critically evaluate one's encounter with the criminal justice
system; document scandal and corruption in government and
business; describe the conditions of prison life; or provide
an inside look at the criminal underworld." (Keenan, 27
Cal.4th at 433.)
The Motion Picture Association of America, Inc. (MPAA) writes
a memorandum in opposition, stating that while it strongly
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believes in the goal of ensuring that victims of crime are
compensated for their losses, it believes that California law
already accomplishes that goal by requiring anyone who is
convicted of a crime who is obligated to pay restitution to
disclose his or her sources of income. (See Pen. Code Sec.
1202.4.) "Such disclosure" MPAA writes, "would include all
income, including contracts for the rights to his or her
story, anything relating to the crime that could be used in an
entertainment product or consulting fees for the production of
an entertainment product." MPAA, similar to AAP, argues that
this bill would be found unconstitutional in accordance with
Supreme Court Simon & Schuster decision, as well as the
California Supreme Court Keenan case. MPAA argues that the
Keenan court held that a law aimed at "income from the
criminal's speech or expression on any theme or subject"
[which includes the story of the felony] was unconstitutional.
"Contracts which encompass a 'story' will be subject to
disclosure to the state's [OVS]. This clearly and
unambiguously singles out protected speech and violates the
First Amendment."
MPAA further asserts that, as a result of this bill, "[a]
person, organization or company that seeks to enter into a
contract with a convicted person may decline to pursue the
story because of the disclosure required by this bill. [ . . .
] 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)." Furthermore, MPAA raises issue with the
practicality of administering this bill, writing that:
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 or entity obligated to report to
the [OVS]. 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 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.
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Lastly, the California Broadcasters Association (CBA)
similarly contends that the bill would chill speech through
self-censorship and likely not survive strict scrutiny, and
asserts the following practical issues with the bill:
While merely reporting a contract to a government agency
seems like a small request, it is actually a substantial
demand. Book and movie deals are not the only possible
contracts targeted by this bill. AB 538 imposes a duty on
news operations and story development that does not
currently exist in any form for protected speech. [ . . .
]
That novelty is dangerous since our members look at news as
news-protected speech. We are concerned about the small
stations paying for interviews, story information or news
background. This bill imposes a potentially stiff penalty
for failure to report an event that occurs infrequently and
requires an administrative expense. [ . . . ]
AB 538 (Campos)
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In response to the above arguments raised by the opposition,
the author responds that:
AB 538's victim notification provisions ensure that the
state's interest in supporting and protecting victim's
rights as provided for under Proposition 9, Marsy's Law,
are upheld. Proposition 9 provided constitutional
protections and support for victims of crime, ensuring that
the state would seek to make sure victims of crime are made
whole and restitution is obtained. AB 538 is carefully and
narrowly crafted to ensure intermediate scrutiny is
addressed, requiring that a law be substantially related
to, or necessary to achieve, an important or substantial
governmental interest - in this case, Proposition 9.
Unlike the original Son of Sam Law passed in 1986, AB 538
does not impose an involuntary trust and directly take the
profits from convicted criminals who have sold their
stories to publishers and other media entities. Rather,
this bill requires any person or entity that enters into a
contract for a convicted criminal's story to inform the
[OVS] of the contract. This is important in that the bill
first and foremost provides notice to the victim or
victim's immediate family so they may prepare themselves
for the possibility of seeing their victimization portrayed
in the media in some form or fashion. It does not
guarantee or require a victim to do anything more. That
said, the Civil Code of Procedure (CCP) process is an
option available to victims of crime to pursue damages. It
is a separate process whereby the victim must prove his or
her claim - compensation is not guaranteed. However, how
would a victim know to pursue the CCP process if they are
not aware proceeds exist?
To be clear, the law defined by this bill does not regulate
or prohibit speech or expressive conduct. The bill ensures
a victim can prepare themselves emotionally and then,
should a victim choose to do so, allows victims and the
state to discover sources of income for a convicted
criminal who owes restitution or to the victims or has been
found civilly liable for those crimes and ordered to pay
damages to the victim. It in no way gives the victim the
ability or option to deny the contract from being entered
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in to or the story from being told. [ . . . ]
The sponsor, Crime Victims United of California, further
contends that "AB 538's victim notification provisions in no
way hinder free speech. The provisions merely provide for
notification to be provided to the victim that his/her
offender has entered in a financial contract for the sale of
his/her story, should a victim request notification regarding
the offender. This provides an opportunity for a victim and
victim's next of kin to prepare themselves for the potential
of seeing their victimization portrayed in the media and
allows them to make a decision whether to pursue civil damages
under the Civil Code of Procedure process. It in no way gives
the victim the ability or option to deny the contract form
being entered [into] or the story from being told."
4. Other opposition arguments
In opposition to the bill, Legal Services for Prisoners with
Children writes:
Currently, the statutes of limitations for most civil torts
range between six months and three years from the injury.
[However, under existing law] a person has up to ten years
after the [defendant's] completion of parole to bring a civil
suit [arising out of] 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.
This would increase that decade to [15 years].
When a person has been off of parole for [nearly] two decades
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.
5. Technical and clarifying amendments
AB 538 (Campos)
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Staff notes that this bill would include a definition for
"immediate family member," but only utilizes the term "member of
the victim's immediate family." Additionally, as currently
drafted, it is unclear whether the OVS' duty to notify the
victim or any member of the victim's immediate family would be
met by notifying just the victim, or just one (as opposed to
all) members of the victim's immediate family, or if the bill
would require that both the victim and (one, or all) immediate
family members are notified.
The following amendments would correct drafting errors and
clarify that the duty is discharged by notifying the victim, and
if the victim cannot be notified, a family member of the victim.
These amendments would also clarify that OVS need only divulge
the existence of a contract, and no other details.
Suggested amendments
On page 4, lines 4-5, strike "immediate family member" and
insert "member of the victim's immediate family"
On page 4, line 13, strike "The conviction" and insert "The
offender's conviction"
On page 4, line 21, strike "any victim or member" and insert
"the victim, or if the victim cannot be reasonably notified, a
family member of the victim"
AB 538 (Campos)
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Staff additionally notes that while the bill would require that
the OVS "notify any victim or member of the victim's immediate
family, as defined, who has requested notification of the
existence of a contract described by this section" the bill does
not expressly specify what OVS is to notify the victim or family
member(s) of. Presumably, once OVS notifies any
registered-victim or registered-family member of the existence
of a contract involving the offender, the notification
obligation has been met and any remedies or actions that might
be available to the victim or family member (such as seeking to
recover a previously entered judgment or order of restitution
from the offender, or any injunctions against the offender)
would be based upon existing law. The bill does not appear to
require that OVS divulge any further information, such as the
terms or parties involved with the contract. This, in fact,
might help mitigate concerns that this bill will have chilling
effects on persons or entities that would be subject to
notifying OVS of the existence of these contracts, given that
the notification would not necessarily include the
identification of their name.
Support : California Police Chiefs Association; California State
Sheriffs' Association
Opposition : Association of American Publishers; California
Broadcasters Association; Legal Services for Prisoners with
Children; Media Coalition Inc.; Motion Picture Association of
America; Warner Brothers Entertainment, Inc. - Vice President
HISTORY
Source : Crime Victims United of California
Related Pending Legislation : None Known
Prior Legislation :
AB 878 (Chavez, 2005) would have reenacted the state's
invalidated Son of Sam law with some changes to attempt to
address the constitutional issues raised by the original law.
This bill died in this Committee without a hearing.
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SB 1887 (McPherson, Ch. 633, Stats. 2002) See Background.
Prior Vote :
Senate Public Safety Committee (Ayes 5, Noes 0)
Assembly Floor (Ayes 75, Noes 0)
Assembly Appropriations Committee (Ayes 15, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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