BILL ANALYSIS �
Senate Appropriations Committee Fiscal Summary
Senator Christine Kehoe, Chair
SB 661 (Lieu)
Hearing Date: 01/17/2012 Amended: 01/04/2012
Consultant: Jolie Onodera Policy Vote: Public Safety 5-1
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BILL SUMMARY: SB 661 would make it a misdemeanor for a person to
engage in picketing targeted at a funeral, as defined, during
the time period beginning one hour prior to the funeral and
ending one hour after the conclusion of the funeral.
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Fiscal Impact (in thousands)
Major Provisions 2012-13 2013-14 2014-15 Fund
New misdemeanor Non-reimbursable costs for
enforcementLocal and incarceration, offset to a
degree by fine
revenue
Potential cost pressure on capital
outlay,General
staffing, programming, courts, and
litigation
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STAFF COMMENTS: This bill may meet the criteria for referral to
the Suspense File.
Existing law makes it a crime to maliciously disturb, obstruct,
detain or interfere with any person carrying or accompanying
human remains to a cemetery or funeral establishment, or engaged
in a funeral service, or an interment. A violation of this
provision is punishable by imprisonment in county jail pursuant
to subdivision (h) of Section 1170 of the Penal Code or for a
period not to exceed one year.
This bill provides that it is unlawful, except upon private
property, for a person to engage in picketing targeted at a
funeral during the time period beginning one hour prior to the
funeral and ending one hour after the conclusion of the funeral.
A violation of this provision would be a misdemeanor punishable
SB 661 (Lieu)
Page 1
by up to six months in a county jail, a fine of up to $1,000, or
both. This bill defines "picketing" as protest activities
engaged in by any person within 500 feet of a burial site,
mortuary, or place of worship. The bill also provides that
"targeted at" means directed at or toward the deceased person or
the attendees of a funeral. Further, this bill defines "funeral"
as the ceremony or memorial service held in connection with the
burial or cremation of a deceased person. This bill also
includes a severability clause should any provision of the bill
or its application be held invalid.
The United States Supreme Court and the California courts have
held that government may impose reasonable restrictions on the
time, place, and manner of protected speech, even in a public
forum, so long as the restrictions are content neutral, narrowly
tailored to serve a significant governmental interest, and leave
open ample alternative channels for communicating the restricted
speech. The Supreme Court affirmed the U.S. Court of Appeals for
the Fourth Circuit decision in Snyder v. Phelps (2011) 113 S.
Ct. 1207, holding that funeral protesters are protected by the
First Amendment and can only be restricted in very limited ways.
Largely in response to the incendiary picketing/protesting
activities of the Westboro Baptist Church, the federal
government and many states have passed legislation in an attempt
to limit these protests. There are several variations of these
laws, some successfully withstanding congressional review and
analysis, while others have been deemed an unconstitutional
restriction on speech by federal courts. Generally, this
Committee considers the potential for litigation as an indirect
cost of any measure and does not consider it as part of the
fiscal analysis. Given the prior and ongoing level of
constitutional scrutiny concerning this issue, however,
enactment of this measure could result in the risk of future
litigation and associated costs.
The creation of new misdemeanors has historically been analyzed
by this Committee to result in non-reimbursable state mandated
costs for local law enforcement and incarceration. Staff notes,
however, that the creation of new misdemeanors taken
cumulatively could increase the statewide adult jail population
to a degree that could potentially impact the flexibility of
counties to manage their jail populations recently increased
under the 2011 Public Safety Realignment. This would create
unknown General Fund cost pressure on capital outlay, staffing,
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Page 2
programming, the courts, and other resources.
Prior Legislation. SB 888 (Lieu) 2011 would have made it a
misdemeanor for a person to picket within 1,000 feet of a burial
site, mortuary, or church, during the time period beginning one
hour prior to the funeral and ending one hour after the
conclusion of the funeral. This bill was vetoed by the Governor
with the following message:
I am returning Senate Bill 888 without my signature. This
measure seeks to address the offensive conduct of those who
protest at private funerals to gain publicity for their causes,
and I am very tempted to sign it. When I was the Attorney
General, I joined an amicus brief in the Supreme Court arguing
that funeral protesters should be held accountable to their
victims. But earlier this year, the Supreme Court ruled that
funeral protests are protected by the First Amendment and can be
circumscribed in only extremely limited ways. I cannot in good
faith sign this measure because it plainly fails to comport with
the Supreme Court's decision.
AB 279 (Huff) 2007 would have made it an infraction for a person
to disrupt a funeral service for a member or former member of
the Armed Services and imposed a $250 fine, in addition to any
other penalty provided by law. This bill failed in the Senate
Judiciary Committee.
AB 2707 (Keene) 2006 would have made it a misdemeanor to picket
within 300 feet of a burial site, mortuary, or church. This bill
failed in the Assembly Public Safety Committee.