Existing law provides for the time of commencing civil actions other than for the recovery of real property, as specified. Under existing law, unless a longer period is prescribed for a specific action, an action for damages against a defendant based upon the defendants commission of a felony offense for which the defendant has been convicted is required to be brought within one year after the judgment has been pronounced. Under existing law, a civil action cannot be commenced pursuant to these provisions if a defendant has received a certificate of rehabilitation or a pardon, among other circumstances.

This bill would provide that a civil action cannot be commenced pursuant to these provisions if the defendant was unlawfully imprisoned or restrained but has been released from prison after successfully prosecuting a writ of habeas corpus.

Under existing law, a crime victim or family member of a crime victim may request certain information from the Department of Corrections and Rehabilitation regarding the status of a criminal offender.

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 California Department of Corrections and Rehabilitation, which must then notify the victim, or a member of the victims immediate family, as specified, if he or she has requested notification.

This bill would also correct an erroneous cross-reference.

Existing law provides for the time of commencing civil actions other than for the recovery of real property, as specified. Under existing law, unless a longer period is prescribed for a specific action, an action for damages against a defendant based upon the defendants commission of a felony offense for which the defendant has been convicted is required to be brought within one year after the judgment has been pronounced. Under existing law, a civil action cannot be commenced pursuant to these provisions if a defendant has received a certificate of rehabilitation or a pardon, among other circumstances.

This bill would provide that a civil action cannot be commenced pursuant to these provisions if the defendant was unlawfully imprisoned or restrained but has been released from prison after successfully prosecuting a writ of habeas corpus.

Under existing law, a crime victim or family member of a crime victim may request certain information from the Department of Corrections and Rehabilitation regarding the status of a criminal offender.

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 California Department of Corrections and Rehabilitation, which must then notify the victim, or a member of the victims immediate family, as specified, if he or she has requested notification.

This bill would also correct an erroneous cross-reference.

Existing law provides for the time of commencing civil actions other than for the recovery of real property, as specified. Under existing law, unless a longer period is prescribed for a specific action, an action for damages against a defendant based upon the defendants commission of a felony offense for which the defendant has been convicted is required to be brought within one year after the judgment has been pronounced. Under existing law, a civil action cannot be commenced pursuant to these provisions if a defendant has received a certificate of rehabilitation or a pardon, among other circumstances.

This bill would provide that a civil action cannot be commenced pursuant to these provisions if the defendant was unlawfully imprisoned or restrained but has been released from prison after successfully prosecuting a writ of habeas corpus.

Under existing law, a crime victim or family member of a crime victim may request certain information from the Department of Corrections and Rehabilitation regarding the status of a criminal offender.

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 within the California Department of Corrections and Rehabilitation, and for the Office of Victim and Survivor Rights and Services to, in turn, which shall notify the victim, or a member of the victims immediate family, as specified, if he or she has requested notification.

This bill would also correct an erroneous cross-reference.

Existing law provides for the time of commencing civil actions other than for the recovery of real property, as specified. Under existing law, unless a longer period is prescribed for a specific action, an action for damages against a defendant based upon the defendants commission of a felony offense for which the defendant has been convicted is required to be brought within one year after the judgment has been pronounced. Existing law also authorizes an action for damages to be brought within 10 years of the date on which the defendant is discharged from parole if the conviction was for any of certain serious felonies, as specified. Under existing law, a civil action cannot be commenced pursuant to these provisions if a defendant has received a certificate of rehabilitation or a pardon, among other circumstances.

This bill would increase from 10 to 15 years the statute of limitations for an action for damages if the conviction was for any enumerated felonies. This bill would also provide that a civil action cannot be commenced pursuant to these provisions if the defendant was unlawfully imprisoned or restrained but has been released from prison after successfully prosecuting a writ of habeas corpus.

Under existing law, a crime victim or family member of a crime victim may request certain information from the Department of Corrections and Rehabilitation regarding the status of a criminal offender.

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 within the California Department of Corrections and Rehabilitation, and for the Office of Victim and Survivor Rights and Services to, in turn, notify the victim or immediate family member of the victim, or a member of the victims immediate family, as specified, if he or she has requested notification.

This bill would also correct an erroneous cross-reference.

Existing law provides for the time of commencing civil actions other than for the recovery of real property, as specified. Under existing law, unless a longer period is prescribed for a specific action, an action for damages against a defendant based upon the defendants commission of a felony offense for which the defendant has been convicted is required to be brought within one year after the judgment has been pronounced. Existing law also authorizes an action for damages to be brought within 10 years of the date on which the defendant is discharged from parole if the conviction was for any of certain serious felonies, as specified. Under existing law, a civil action cannot be commenced pursuant to these provisions if a defendant has received a certificate of rehabilitation or a pardon, among other circumstances.

This bill would increase from 10 to 15 years the statute of limitations for an action for damages if the conviction was for any enumerated felonies. This bill would also provide that a civil action cannot be commenced pursuant to these provisions if the defendant was unlawfully imprisoned or restrained but has been released from prison after successfully prosecuting a writ of habeas corpus.

Under existing law, a crime victim or family member of a crime victim may request certain information from the Department of Corrections and Rehabilitation regarding the status of a criminal offender.

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 within the California Department of Corrections and Rehabilitation, and for the Office of Victim and Survivor Rights and Services to, in turn, notify the victim or immediate family member of the victim if he or she has requested notification.

This bill would also correct an erroneous cross-reference.

Existing law provides for the time of commencing civil actions other than for the recovery of real property, as specified. Under existing law, unless a longer period is prescribed for a specific action, an action for damages against a defendant based upon the defendants commission of a felony offense for which the defendant has been convicted is required to be brought within one year after the judgment has been pronounced. Existing law also authorizes an action for damages to be brought within 10 years of the date on which the defendant is discharged from parole if the conviction was for any of certain serious felonies, as specified. Under existing law, a civil action cannot be commenced pursuant to these provisions if a defendant has received a certificate of rehabilitation or a pardon, among other circumstances.

This bill would increase from 10 to 25 15 years the statute of limitations for an action for damages if the conviction was for any of those enumerated felonies. This bill would also provide that a civil action cannot be commenced pursuant to these provisions if the defendant was unlawfully imprisoned or restrained but has been released from prison after successfully prosecuting a writ of habeas corpus.

This bill would also correct an erroneous cross-reference.

Existing law provides for the time of commencing civil actions other than for the recovery of real property, as specified. Under existing law, unless a longer period is prescribed for a specific action, an action for damages against a defendant based upon the defendants commission of a felony offense for which the defendant has been convicted is required to be brought within one year after the judgment has been pronounced. Existing law also authorizes an action for damages to be brought within 10 years of the date on which the defendant is discharged from parole if the conviction was for any of certain serious felonies, as specified.

This bill would increase from 10 to 25 years the statute of limitations for an action for damages if the conviction was for any of those enumerated felonies.

This bill would also correct an erroneous cross-reference.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 538

Author:(Campos)

As Amended Ver:August 20, 2015

Majority vote

Original Committee Reference: JUD.

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. Specifically, this bill:

1. 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.)

2. 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 California Department of Corrections and Rehabilitation (CDCR) that the parties have entered into such a contract, if the following are true:

   1. A crime that is the basis of the story sold under the contract is specified in Code of Civil Procedure (CCP) Section 340.3(b) and resulted in the felony conviction of the offender.

   2. An action for damages against the offender is allowed to be commenced pursuant to CCP Section 340.3(b).

3. Requires CDCR to notify the victim, or if the victim cannot be reasonably notified, a member 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 such notification has previously been requested of CDCR.

The Senate amendments:

1. Remove provisions that would have extended by five years (from 10 to 15 years) the statute of limitations for a crime victim to file a civil action for damages against the person convicted of a specified felony.

2. Clarify that under this bill, CDCR's duty is discharged by notifying the victim of the existence of a contract but no other details, and that if the victim cannot be notified, a family member of the victim may instead be notified.

3. Make technical changes by changing references to the Office of Victim and Survivor Rights and Services (an office within CDCR) to simply refer to CDCR.

FISCAL EFFECT: According to the Senate Appropriations Committee, pursuant to Senate Rule 28.8, negligible state costs.

COMMENTS: This bill seeks modest changes to California's so-called "Son of Sam" law. First, this 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. This bill also 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.

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 this 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. This bill would require 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 CCP 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 CCP Section 340.3(b).

According to the author, this bill seeks to harness the existing victim notification process within CDCR to require anyone who enters into a contract with a criminal offender for the sale of the story about the crime to notify CDCR that the parties have entered into such a contract. This bill then requires CDCR, within 90 days of receiving such notification, to notify any victim who had previously requested notification of the existence of a contract, or if the victim cannot be notified, an immediate family member of the victim. 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 CDCR that the contract exists.

Utilizing the existing 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 CDCR to request that CDCR 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 CDCR 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 CDCR 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 CDCR victim notification program offers victims only notification of events related to an offender that occur while the offender is still an inmate under custody or supervision of CDCR. Under this bill, CDCR 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, this bill creates a new responsibility for CDCR 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. It should be noted that CDCR notification would only be effective to the extent that victims and their family members maintain updated contact information with CDCR for a period of time that could be many years after the parole of the offender.

This bill is also opposed by the Motion Picture Association of America, Inc. (MPAA), who contends that this bill singles out for regulation certain speech that is protected by the First Amendment, and is therefore unconstitutional in its view. 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. [citation omitted.]" Proponents counter that this bill simply requires notification to CDCR 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.

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 exempt from being sued under the current law, it makes sense to also exempt persons who are wrongly convicted from being sued for damages.

Analysis Prepared by: Anthony Lew / JUD. / (916) 319-2334 FN: 0001570

 THIRD READING  

Bill No: AB 538

Author: Campos (D)

Amended: 8/20/15 in Senate

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 5-0, 6/30/15

AYES: Hancock, Anderson, Leno, Monning, Stone

NO VOTE RECORDED: Glazer, Liu

SENATE JUDICIARY COMMITTEE: 7-0, 7/14/15

AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning, Wieckowski

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 75-0, 5/28/15 - See last page for vote

SUBJECT: Actions for damages: felony offenses: victim notification

SOURCE: Crime Victims of California

DIGEST: This bill requires any person or entity that contracts with a criminal offender for the offender’s story about any of a list of serious felonies to inform the Department of Corrections and Rehabilitation (CDCR).

Senate Floor Amendments of 8/20/15 grant discretion to the CDCR to determine how notification shall be provided to a crime victim or victim’s family member that the perpetrator of the crime has sold his or her story of the crime. The amendments also limit the number of notifications CDCR must make.

ANALYSIS:

Existing law:

1. Provides that crime victims have the right under the California Constitution to seek and secure restitution from the perpetrators of these crimes. Restitution must be ordered in every case without exception. (Cal. Const. Art. 1 § 28, subd. (b)(13)(A)-(C).)

2. Requires a defendant who has been ordered to pay restitution to “prepare and file a disclosure 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 Section 1214. (Pen. Code § 1202.4, subd. (f)(5).)

3. Provides that 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: murder or attempted murder, mayhem, rape and other specified sexual assault crimes, any felony punishable by death or imprisonment in the state prison for life, or an attempt to commit such a crime, exploding a destructive device so as to cause bodily injury, mayhem, exploding a destructive device with intent to commit murder, or kidnapping. (Code of Civ. Proc. § 340.3, subd. (b)(1).)

4. Provides that the extended statute of limitations for a civil action against a convicted criminal defendant does not apply if:

1. The defendant has received a certificate of rehabilitation or pardon;

2. 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

3. The defendant was convicted of 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. (Code of Civ. Proc. § 340.3, subd. (b)(2).)

5. Requires that any restitution paid by the defendant to the victim shall be credited against any civil judgment, award or settlement based on the defendant’s criminal conduct. (Code of Civ. Proc. § 340.3(e).)

6. Provides that the CDCR or Board of Parole Hearings (BPH) shall, at least 60 days prior to release of an inmate imprisoned for a violent felony, notify the sheriff or chief of police and the district attorney of the community of conviction and in the community in which the person is scheduled to be released. (Pen. Code § 3058.6, subd. (a)-(b).)

7. Provides that whenever any person confined to state prison is serving a term for the conviction of specified child abuse offenses or any sex offense perpetrated against a minor, as specified, or as ordered by any court, the BPH or CDCR shall, at least 45 days prior to release, notify the sheriff or chief of police, or both, and the district attorney having jurisdiction over the community in which the person was convicted and the community in which the person is scheduled to be released on parole or re-released following a period of confinement pursuant to a parole revocation without a new commitment. (Pen. Code § 3058.9.)

8. Requires the CDCR or 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 § 3058.8(a).)

9. Provides that a prison inmate retains those civil rights that need not be restricted to for penological interests. Specifically, an inmate may inherit, own, sell real or personal property, including all written and artistic material produced or written by the person during the period of imprisonment, except as provide in Civil Code Section 2225 (Pen. Code § 26001, subd. (a).)

10. Provides through the decision in Keenan v. Superior Court (2002) 27 Cal.4th 413 that the requirement in Civil Code Section 2225 that any proceeds from convicted criminal’s sale of the story of his crime be placed in an involuntary trust violates the constitutional guarantees of freedom of speech.

This bill:

1. Provides that no civil action for damages may be filed against a person who was previously convicted of a specified violent crime 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.)

2. 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 CDCR that the parties have entered into such a contract, if the following are true:

1. The contract is based on a story about a murder, attempted murder, mayhem, rape and other specified sexual assault crimes, any felony punishable by death or imprisonment in the state prison for life, or an attempt to commit such a crime, exploding a destructive device so as to cause bodily injury, mayhem, exploding a destructive device with intent to commit murder, or kidnapping for which the offender was convicted.

2. An action for damages against the offender is authorized by statute. (See, Code of Civ. Proc. § Section 340, subd. (b).)

3. Requires the CDCRto 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.

Background

The three standards of review for determining the validity of a law challenged on First Amendment grounds of freedom of speech are strict scrutiny, intermediate scrutiny and rational basis. A regulation based on the content of speech receives strict scrutiny, regardless of whether the speech is contrary to accepted standards of morality or propriety. (Kingsley Corp. v. Regents of the Univ. of the State of N.Y (1959) 360 U.S. 684, 688–889; Citizens United v. FEC (2010) 558 U.S. 310.) A restriction on the “content” of expression, must promote a “compelling state interest” by the “least restrictive means” to achieve the compelling interest. (Sable Communications v. FCC (1989) 492 U.S. 115, 126.)

A content-based restriction will be struck down as unconstitutionally “overbroad if it prohibits clearly protected speech although the law may also concern conduct that may validly be prohibited.” (U.S. v. Stevens (2010) 130 S.Ct. 1577, 1587.) Stevens considered a federal statute that criminalized the sale or possession of “depictions of animal cruelty.” Stevens was prosecuted for distribution of videos of dog fights and the government argued that the law was limited in intent to such depictions. The Supreme Court found that the statute was overbroad in that it might reach videos depicting hunting, arguably inhumane treatment of livestock, or activities legal in some jurisdictions but not others, such as cockfighting. (Id., at pp. 1588-1592.)

Intermediate scrutiny requires that a law be substantially related to, or necessary to achieve, an important or substantial governmental interest. The most common category of speech subject to intermediate scrutiny is commercial speech. Commercial speech is protected, but the state can prohibit or punish false or misleading speech. (Va. Pharmacy Bd. v. Va. Consumer Council (1976) 425 U.S. 748, 762, 770-773.) Restrictions on the time, place and manner of speech are subject to intermediate scrutiny. (United States v. Obrien (1968) 391 U.S. 367; United States v. Albertini (1985) 472 U.S. 675.)

Criminals who commit bizarre or horrific crimes have long been the subject of public fascination through popular culture. Victims and their family members are confronted with such material for their rest of their lives. Jack the Ripper is an early example of wide public fascination with, and mass media coverage about, serial killers. Jack the Ripper killed women in the East End of London in the 1880s. The crimes of Charles Manson and his so-called family have created a virtual sub-genre of crime media.

The “Son of Sam” laws arose in response to the case of notorious serial killer David Berkowitz. Berkowitz - who was known as the Son of Sam before his arrest - killed six people, wounded many more and terrorized New York City in the late 1970s. Concerns that Berkowitz could profit from his story brought New York State to enact a statute - commonly called the “Son of Sam” law, under which a contract for a criminal’s story about his or her crime must have been disclosed to the state. All proceeds of the contract were to be placed in an involuntary trust for the benefit of the criminal’s victims.

The New York law was overturned in Simon & Schuster v. New York Crime Victims Board (1991) 502 U.S. 105. The case concerned Henry Hill, a former mafia member who signed a contract with Simon & Schuster to publish a book recounting his life. The book, Wiseguy, was later made into the movie Goodfellas. The State of New York moved to place an involuntary trust on Hill's income. 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, supra, 502 U.S. 105.)

California passed its own "Son of Sam" law in 1983. The law was amended a number of times. The statute imposed 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 decision in Simon & Schuster, struck down the California law. (Keenan v. Superior Court (2002) 27 Cal.4th 413). The court in Keenan quoted Simon & Schuster thus: “[T]he state has a compelling interest in compensating victims for the fruits of the crime, but little if any interest in limiting such compensation to the proceeds of the wrongdoer’s speech about the crime.” (Simon & Schuster, supra, 502 U.S. 105, 120-121.)

This bill does not 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 CDCR of the contract.

If enacted, defenders of the law defined by this bill would likely first argue that the bill simply does not regulate or prohibit speech or expressive conduct. This bill only 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

Opponents would likely argue that this bill does target the content of speech. That is, this bill targets a contract about a certain kind of speech. If this bill is found to regulate or limit the content of speech, the bill would be subject to strict scrutiny. This bill could only withstand challenge if it upheld a compelling state interest. In light of the history of challenges to content- based speech, the state could have great difficulty establishing the validity of the law. The decisions in Simon and Schuster and Keenan struck down laws that imposed a “financial burden” or “direct financial disincentive” on speech about the perpetrator’s crime. (See, Keenan at p. 427.)

The Motion Picture Association of America, Association of American Publishers and California Broadcasters Association have argued that this bill will have a chilling effect on protected speech. Arguably, publications and other forms of media could forgo seeking the story of a convicted offender to avoid negative publicity and criticism when it is revealed that the entity contracted with a notorious criminal’s story. This bill also raises the issue of the speech and contracting rights of a publisher, audio-visual media entity, or agent. That is, the contract that must be reported includes the speech of the other party to a contract with the criminal. The contract would likely otherwise remain confidential from competitors. The resolution of this issue is not clear.

This bill could also be found to be content-neutral on its face, but nevertheless impose a burden on speech. This bill enters the rather slippery and uncertain world of intermediate scrutiny. In this context, the state would need to show that it advances an important state interest in a way that is narrowly tailored to do so. As noted, courts will review any law that prohibits burdens or regulates speech to determine if the law is narrowly tailored to promote the state’s interest.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

SUPPORT: (Verified 8/24/15)

Crime Victims of California (source)

California Police Chiefs Association
California State Sheriffs’ Association

OPPOSITION: (Verified 8/24/15)

Association of American Publishers

California Broadcasters Association

Media Coalition, Inc.

Motion Picture Association of America

Warner Brothers

ASSEMBLY FLOOR: 75-0, 5/28/15

AYES: Alejo, Travis Allen, Baker, Bigelow, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gonzalez, Gordon, Gray, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, O'Donnell, Olsen, Patterson, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Atkins

NO VOTE RECORDED: Achadjian, Bloom, Gomez, Grove, Obernolte

Prepared by: Jerome McGuire / PUB. S. /

8/26/15 10:49:22

**** END ****

 THIRD READING  

Bill No: AB 538

Author: Campos (D)

Amended: 8/20/15 in Senate

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 5-0, 6/30/15

AYES: Hancock, Anderson, Leno, Monning, Stone

NO VOTE RECORDED: Glazer, Liu

SENATE JUDICIARY COMMITTEE: 7-0, 7/14/15

AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning, Wieckowski

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 75-0, 5/28/15 - See last page for vote

SUBJECT: Actions for damages: felony offenses: victim notification

SOURCE: Crime Victims of California

DIGEST: This bill requires any person or entity that contracts with a criminal offender for the offender’s story about any of a list of serious felonies to inform the Department of Corrections and Rehabilitation (CDCR).

Senate Floor Amendments of 8/20/15 grant discretion to the CDCR to determine how notification shall be provided to a crime victim or victim’s family member that the perpetrator of the crime has sold his or her story of the crime. The amendments also limit the number of notifications CDCR must make.

ANALYSIS:

Existing law:

1. Provides that crime victims have the right under the California Constitution to seek and secure restitution from the perpetrators of these crimes. Restitution must be ordered in every case without exception. (Cal. Const. Art. 1 § 28, subd. (b)(13)(A)-(C).)

2. Requires a defendant who has been ordered to pay restitution to “prepare and file a disclosure 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 Section 1214. (Pen. Code § 1202.4, subd. (f)(5).)

3. Provides that 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: murder or attempted murder, mayhem, rape and other specified sexual assault crimes, any felony punishable by death or imprisonment in the state prison for life, or an attempt to commit such a crime, exploding a destructive device so as to cause bodily injury, mayhem, exploding a destructive device with intent to commit murder, or kidnapping. (Code of Civ. Proc. § 340.3, subd. (b)(1).)

4. Provides that the extended statute of limitations for a civil action against a convicted criminal defendant does not apply if:

1. The defendant has received a certificate of rehabilitation or pardon;

2. 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

3. The defendant was convicted of 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. (Code of Civ. Proc. § 340.3, subd. (b)(2).)

5. Requires that any restitution paid by the defendant to the victim shall be credited against any civil judgment, award or settlement based on the defendant’s criminal conduct. (Code of Civ. Proc. § 340.3(e).)

6. Provides that the CDCR or Board of Parole Hearings (BPH) shall, at least 60 days prior to release of an inmate imprisoned for a violent felony, notify the sheriff or chief of police and the district attorney of the community of conviction and in the community in which the person is scheduled to be released. (Pen. Code § 3058.6, subd. (a)-(b).)

7. Provides that whenever any person confined to state prison is serving a term for the conviction of specified child abuse offenses or any sex offense perpetrated against a minor, as specified, or as ordered by any court, the BPH or CDCR shall, at least 45 days prior to release, notify the sheriff or chief of police, or both, and the district attorney having jurisdiction over the community in which the person was convicted and the community in which the person is scheduled to be released on parole or re-released following a period of confinement pursuant to a parole revocation without a new commitment. (Pen. Code § 3058.9.)

8. Requires the CDCR or 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 § 3058.8(a).)

9. Provides that a prison inmate retains those civil rights that need not be restricted to for penological interests. Specifically, an inmate may inherit, own, sell real or personal property, including all written and artistic material produced or written by the person during the period of imprisonment, except as provide in Civil Code Section 2225 (Pen. Code § 26001, subd. (a).)

10. Provides through the decision in Keenan v. Superior Court (2002) 27 Cal.4th 413 that the requirement in Civil Code Section 2225 that any proceeds from convicted criminal’s sale of the story of his crime be placed in an involuntary trust violates the constitutional guarantees of freedom of speech.

This bill:

1. Provides that no civil action for damages may be filed against a person who was previously convicted of a specified violent crime 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.)

2. 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 CDCR that the parties have entered into such a contract, if the following are true:

1. The contract is based on a story about a murder, attempted murder, mayhem, rape and other specified sexual assault crimes, any felony punishable by death or imprisonment in the state prison for life, or an attempt to commit such a crime, exploding a destructive device so as to cause bodily injury, mayhem, exploding a destructive device with intent to commit murder, or kidnapping for which the offender was convicted.

2. An action for damages against the offender is authorized by statute. (See, Code of Civ. Proc. § Section 340, subd. (b).)

3. Requires the CDCR 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.

Background

The three standards of review for determining the validity of a law challenged on First Amendment grounds of freedom of speech are strict scrutiny, intermediate scrutiny and rational basis. A regulation based on the content of speech receives strict scrutiny, regardless of whether the speech is contrary to accepted standards of morality or propriety. (Kingsley Corp. v. Regents of the Univ. of the State of N.Y (1959) 360 U.S. 684, 688–889; Citizens United v. FEC (2010) 558 U.S. 310.) A restriction on the “content” of expression, must promote a “compelling state interest” by the “least restrictive means” to achieve the compelling interest. (Sable Communications v. FCC (1989) 492 U.S. 115, 126.)

A content-based restriction will be struck down as unconstitutionally “overbroad if it prohibits clearly protected speech although the law may also concern conduct that may validly be prohibited.” (U.S. v. Stevens (2010) 130 S.Ct. 1577, 1587.) Stevens considered a federal statute that criminalized the sale or possession of “depictions of animal cruelty.” Stevens was prosecuted for distribution of videos of dog fights and the government argued that the law was limited in intent to such depictions. The Supreme Court found that the statute was overbroad in that it might reach videos depicting hunting, arguably inhumane treatment of livestock, or activities legal in some jurisdictions but not others, such as cockfighting. (Id., at pp. 1588-1592.)

Intermediate scrutiny requires that a law be substantially related to, or necessary to achieve, an important or substantial governmental interest. The most common category of speech subject to intermediate scrutiny is commercial speech. Commercial speech is protected, but the state can prohibit or punish false or misleading speech. (Va. Pharmacy Bd. v. Va. Consumer Council (1976) 425 U.S. 748, 762, 770-773.) Restrictions on the time, place and manner of speech are subject to intermediate scrutiny. (United States v. Obrien (1968) 391 U.S. 367; United States v. Albertini (1985) 472 U.S. 675.)

Criminals who commit bizarre or horrific crimes have long been the subject of public fascination through popular culture. Victims and their family members are confronted with such material for their rest of their lives. Jack the Ripper is an early example of wide public fascination with, and mass media coverage about, serial killers. Jack the Ripper killed women in the East End of London in the 1880s. The crimes of Charles Manson and his so-called family have created a virtual sub-genre of crime media.

The “Son of Sam” laws arose in response to the case of notorious serial killer David Berkowitz. Berkowitz - who was known as the Son of Sam before his arrest - killed six people, wounded many more and terrorized New York City in the late 1970s. Concerns that Berkowitz could profit from his story brought New York State to enact a statute - commonly called the “Son of Sam” law, under which a contract for a criminal’s story about his or her crime must have been disclosed to the state. All proceeds of the contract were to be placed in an involuntary trust for the benefit of the criminal’s victims.

The New York law was overturned in Simon & Schuster v. New York Crime Victims Board (1991) 502 U.S. 105. The case concerned Henry Hill, a former mafia member who signed a contract with Simon & Schuster to publish a book recounting his life. The book, Wiseguy, was later made into the movie Goodfellas. The State of New York moved to place an involuntary trust on Hill's income. 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, supra, 502 U.S. 105.)

California passed its own "Son of Sam" law in 1983. The law was amended a number of times. The statute imposed 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 decision in Simon & Schuster, struck down the California law. (Keenan v. Superior Court (2002) 27 Cal.4th 413). The court in Keenan quoted Simon & Schuster thus: “[T]he state has a compelling interest in compensating victims for the fruits of the crime, but little if any interest in limiting such compensation to the proceeds of the wrongdoer’s speech about the crime.” (Simon & Schuster, supra, 502 U.S. 105, 120-121.)

This bill does not 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 CDCR of the contract.

If enacted, defenders of the law defined by this bill would likely first argue that the bill simply does not regulate or prohibit speech or expressive conduct. This bill only 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

Opponents would likely argue that this bill does target the content of speech. That is, this bill targets a contract about a certain kind of speech. If this bill is found to regulate or limit the content of speech, the bill would be subject to strict scrutiny. This bill could only withstand challenge if it upheld a compelling state interest. In light of the history of challenges to content- based speech, the state could have great difficulty establishing the validity of the law. The decisions in Simon and Schuster and Keenan struck down laws that imposed a “financial burden” or “direct financial disincentive” on speech about the perpetrator’s crime. (See, Keenan at p. 427.)

The Motion Picture Association of America, Association of American Publishers and California Broadcasters Association have argued that this bill will have a chilling effect on protected speech. Arguably, publications and other forms of media could forgo seeking the story of a convicted offender to avoid negative publicity and criticism when it is revealed that the entity contracted with a notorious criminal’s story. This bill also raises the issue of the speech and contracting rights of a publisher, audio-visual media entity, or agent. That is, the contract that must be reported includes the speech of the other party to a contract with the criminal. The contract would likely otherwise remain confidential from competitors. The resolution of this issue is not clear.

This bill could also be found to be content-neutral on its face, but nevertheless impose a burden on speech. This bill enters the rather slippery and uncertain world of intermediate scrutiny. In this context, the state would need to show that it advances an important state interest in a way that is narrowly tailored to do so. As noted, courts will review any law that prohibits burdens or regulates speech to determine if the law is narrowly tailored to promote the state’s interest.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

SUPPORT: (Verified 8/24/15)

Crime Victims of California (source)

California Police Chiefs Association
California State Sheriffs’ Association

OPPOSITION: (Verified 8/24/15)

Association of American Publishers

California Broadcasters Association

Media Coalition, Inc.

Motion Picture Association of America

Warner Brothers

ASSEMBLY FLOOR: 75-0, 5/28/15

AYES: Alejo, Travis Allen, Baker, Bigelow, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gonzalez, Gordon, Gray, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, O'Donnell, Olsen, Patterson, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Atkins

NO VOTE RECORDED: Achadjian, Bloom, Gomez, Grove, Obernolte

Prepared by: Jerome McGuire / PUB. S. /

8/26/15 19:07:49

**** END ****

 THIRD READING  

Bill No: AB 538

Author: Campos (D)

Amended: 7/16/15 in Senate

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 5-0, 6/30/15

AYES: Hancock, Anderson, Leno, Monning, Stone

NO VOTE RECORDED: Glazer, Liu

SENATE JUDICIARY COMMITTEE: 7-0, 7/14/15

AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning, Wieckowski

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 75-0, 5/28/15 - See last page for vote

SUBJECT: Actions for damages: felony offenses: victim notification

SOURCE: Crime Victims of California

DIGEST: This bill requires any person or entity that contracts with a criminal offender for the offender’s story about any of a list of serious felonies to inform the Office of Victim and Survivor Rights and Services in the Department of Corrections and Rehabilitation.

ANALYSIS:

Existing law:

1) Provides that crime victims have the right under the California Constitution to seek and secure restitution from the perpetrators of these crimes. Restitution must be ordered in every case without exception. (Cal. Const. Art. 1 § 28, subd. (b)(13)(A)-(C).)

2) Requires a defendant who has been ordered to pay restitution to “prepare and file a disclosure 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 Section 1214. (Pen. Code § 1202.4, subd. (f)(5).)

3) Provides that 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: murder or attempted murder, mayhem, rape and other specified sexual assault crimes, any felony punishable by death or imprisonment in the state prison for life, or an attempt to commit such a crime, exploding a destructive device so as to cause bodily injury, mayhem, exploding a destructive device with intent to commit murder, or kidnapping. (Code of Civ. Proc. § 340.3, subd. (b)(1).)

4) Provides that the extended statute of limitations for a civil action against a convicted criminal defendant does not apply if:

a) The defendant has received a certificate of rehabilitation or

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 of 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. (Code of Civ. Proc. § 340.3, subd. (b)(2).)

5) Requires that any restitution paid by the defendant to the victim shall be credited against any civil judgment, award or settlement based on the defendant’s criminal conduct. (Code of Civ. Proc. § 340.3(e).)

6) Provides that the Department of Corrections and Rehabilitation (CDCR) or Board of Parole Hearings (BPH) shall, at least 60 days prior to release of an inmate imprisoned for a violent felony, notify the sheriff or chief of police and the district attorney of the community of conviction and in the community in which the person is scheduled to be released. (Pen. Code § 3058.6, subd. (a)-(b).)

10) Provides that whenever any person confined to state prison is serving a term for the conviction of specified child abuse offenses or any sex offense perpetrated against a minor, as specified, or as ordered by any court, the BPH or CDCR shall, at least 45 days prior to release, notify the sheriff or chief of police, or both, and the district attorney having jurisdiction over the community in which the person was convicted and the community in which the person is scheduled to be released on parole or re-released following a period of confinement pursuant to a parole revocation without a new commitment. (Pen. Code § 3058.9.)

11) Requires the CDCR or 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 § 3058.8(a).)

12) Provides that a prison inmate retains those civil rights that need not be restricted to for penological interests. Specifically, an inmate may inherit, own, sell real or personal property, including all written and artistic material produced or written by the person during the period of imprisonment, except as provide in Civil Code Section 2225 (Pen. Code § 26001, subd. (a).)

13) Provides through the decision in Keenan v. Superior Court (2002) 27 Cal.4^th 413 that the requirement in Civil Code Section 2225 that any proceeds from convicted criminal’s sale of the story of his crime be placed in an involuntary trust violates the constitutional guarantees of freedom of speech.

This bill:

1) Provides that no civil action for damages may be filed against a person who was previously convicted of a specified violent crime 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.)

2) 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 Services (OVS) within the CDCR that the parties have entered into such a contract, if the following are true:

a) The contract is based on a story about a murder, attempted murder, mayhem, rape and other specified sexual assault crimes, any felony punishable by death or imprisonment in the state prison for life, or an attempt to commit such a crime, exploding a destructive device so as to cause bodily injury, mayhem, exploding a destructive device with intent to commit murder, or kidnapping for which the offender was convicted.

b) An action for damages against the offender is authorized by statute. (See, Code of Civ. Proc. § Section 340, subd. (b).)

3) 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.

Background

The three standards of review for determining the validity of a law challenged on First Amendment grounds of freedom of speech are strict scrutiny, intermediate scrutiny and rational basis. A regulation based on the content of speech receives strict scrutiny, regardless of whether the speech is contrary to accepted standards of morality or propriety. (Kingsley Corp. v. Regents of the Univ. of the State of N.Y (1959) 360 U.S. 684, 688–889; Citizens United v. FEC (2010) 558 U.S. 310.) A restriction on the “content” of expression, must promote a “compelling state interest” by the “least restrictive means” to achieve the compelling interest. (Sable Communications v. FCC (1989) 492 U.S. 115, 126.)

A content-based restriction will be struck down as unconstitutionally “overbroad if it prohibits clearly protected speech although the law may also concern conduct that may validly be prohibited.” (U.S. v. Stevens (2010) 130 S.Ct. 1577, 1587.) Stevens considered a federal statute that criminalized the sale or possession of “depictions of animal cruelty.” Stevens was prosecuted for distribution of videos of dog fights and the government argued that the law was limited in intent to such depictions. The Supreme Court found that the statute was overbroad in that it might reach videos depicting hunting, arguably inhumane treatment of livestock, or activities legal in some jurisdictions but not others, such as cockfighting. (Id., at pp. 1588-1592.)

Intermediate scrutiny requires that a law be substantially related to, or necessary to achieve, an important or substantial governmental interest. The most common category of speech subject to intermediate scrutiny is commercial speech. Commercial speech is protected, but the state can prohibit or punish false or misleading speech. (Va. Pharmacy Bd. v. Va. Consumer Council (1976) 425 U.S. 748, 762, 770-773.) Restrictions on the time, place and manner of speech are subject to intermediate scrutiny. (United States v. Obrien (1968) 391 U.S. 367; United States v. Albertini (1985) 472 U.S. 675.)

Criminals who commit bizarre or horrific crimes have long been the subject of public fascination through popular culture. Victims and their family members are confronted with such material for their rest of their lives. Jack the Ripper is an early example of wide public fascination with, and mass media coverage about, serial killers. Jack the Ripper killed women in the East End of London in the 1880s. The crimes of Charles Manson and his so-called family have created a virtual sub-genre of crime media.

The “Son of Sam” laws arose in response to the case of notorious serial killer David Berkowitz. Berkowitz - who was known as the Son of Sam before his arrest - killed six people, wounded many more and terrorized New York City in the late 1970s. Concerns that Berkowitz could profit from his story brought New York State to enact a statute - commonly called the “Son of Sam” law, under which a contract for a criminal’s story about his or her crime must have been disclosed to the state. All proceeds of the contract were to be placed in an involuntary trust for the benefit of the criminal’s victims.

The New York law was overturned in Simon & Schuster v. New York Crime Victims Board (1991) 502 U.S. 105. The case concerned Henry Hill, a former mafia member who signed a contract with Simon & Schuster to publish a book recounting his life. The book, Wiseguy, was later made into the movie Goodfellas. The State of New York moved to place an involuntary trust on Hill's income. 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, supra, 502 U.S. 105.)

California passed its own "Son of Sam" law in 1983. The law was amended a number of times. The statute imposed 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 decision in Simon & Schuster, struck down the California law. (Keenan v. Superior Court (2002) 27 Cal.4th 413). The court in Keenan quoted Simon & Schuster thus: “[T]he state has a compelling interest in compensating victims for the fruits of the crime, but little if any interest in limiting such compensation to the proceeds of the wrongdoer’s speech about the crime.” (Simon & Schuster, supra, 502 U.S. 105, 120-121.)

This bill does not 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 in the CDCR of the contract.

If enacted, defenders of the law defined by this bill would likely first argue that the bill simply does not regulate or prohibit speech or expressive conduct. This bill only 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

Opponents would likely argue that this bill does target the content of speech. That is, this bill targets a contract about a certain kind of speech. If this bill is found to regulate or limit the content of speech, the bill would be subject to strict scrutiny. This bill could only withstand challenge if it upheld a compelling state interest. In light of the history of challenges to content- based speech, the state could have great difficulty establishing the validity of the law. The decisions in Simon and Schuster and Keenan struck down laws that imposed a “financial burden” or “direct financial disincentive” on speech about the perpetrator’s crime. (See, Keenan at p. 427.)

The Motion Picture Association of America, Association of American Publishers and California Broadcasters Association have argued that this bill will have a chilling effect on protected speech. Arguably, publications and other forms of media could forgo seeking the story of a convicted offender to avoid negative publicity and criticism when it is revealed that the entity contracted with a notorious criminal’s story. This bill also raises the issue of the speech and contracting rights of a publisher, audio-visual media entity, or agent. That is, the contract that must be reported includes the speech of the other party to a contract with the criminal. The contract would likely otherwise remain confidential from competitors. The resolution of this issue is not clear.

This bill could also be found to be content-neutral on its face, but nevertheless impose a burden on speech. This bill enters the rather slippery and uncertain world of intermediate scrutiny. In this context, the state would need to show that it advances an important state interest in a way that is narrowly tailored to do so. As noted, courts will review any law that prohibits burdens or regulates speech to determine if the law is narrowly tailored to promote the state’s interest.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

SUPPORT: (Verified 8/18/15)

Crime Victims of California (source)

California Police Chiefs Association
California State Sheriffs’ Association

OPPOSITION: (Verified 8/18/15)

Association of American Publishers

California Broadcasters Association

Media Coalition, Inc.

Motion Picture Association of America

Warner Brothers

ASSEMBLY FLOOR: 75-0, 5/28/15

AYES: Alejo, Travis Allen, Baker, Bigelow, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gonzalez, Gordon, Gray, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, O'Donnell, Olsen, Patterson, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Atkins

NO VOTE RECORDED: Achadjian, Bloom, Gomez, Grove, Obernolte

Prepared by: Jerome McGuire / PUB. S. /

8/19/15 21:10:30

**** END ****

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2015-2016 Regular Session

Bill No: AB 538 (Author:Campos)

Version: May 13, 2015

Hearing Date: July 14, 2015

Fiscal: Yes

Urgency: No

Consultant: 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 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 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;

• 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 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, 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

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 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. 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:

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.

1. 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 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 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.)

2. 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 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 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 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.

3. 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, 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 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.

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. [ . . . ]

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 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

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”

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.

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)

**************

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Loni Hancock, Chair

2015 - 2016 Regular

Bill No: AB 538 Hearing Date: June 30, 2015

Subject: Actions for Damages: Felony Offenses: Victim Notification

HISTORY

Source: Crime Victims United of California

Prior Legislation: SB 1565 (Schiff) - Ch. 226, Stats. 2000
SB 1330 (Calderon - Ch. 556, Stats. 1994

Support: California Police Chiefs Association; California State Sheriffs’ Association

Opposition: Association of American Publishers; California Broadcasters Association; Legal Services for Prisoners with Children; Motion Picture Association of America

Assembly Floor Vote: 75 - 0

PURPOSE

The purpose of this bill is to 1) extend the statute of limitations for a civil suit by the victim against a criminal offender who was convicted of any of a list of serious felonies from 10 years to 15 years from the date that the offender is discharged from parole; and 2) require any person or entity that contracts with a criminal offender for the offender’s story about any of a list of serious felonies to inform the Office of Victim and Survivor Rights and Services in the Department of Corrections and Rehabilitation.

Existing law:

Provides that all crime victims have the right under the California Constitution to seek and secure restitution from the perpetrators of these crimes. Restitution must be ordered in every case without exception. Where a defendant has been ordered to pay restitution, all money, or property collected from the defendant must be first applied to satisfy restitution orders. (Cal. Const. Art. 1 § 28, subd. (b)(13)(A)-(C).)

Includes a statutory requirement for the sentencing court to order the defendant to pay the victim or victims full restitution for all economic damages. A restitution order is enforceable as a civil judgment. There is no statutory limit on the amount of a restitution order. (Pen. Code §§ 1202.4, subds. (a)(B), (f) and (i).)

Requires a defendant, in addition to direct restitution to the victim, to pay a restitution fine of between $300 and $10,000 for a felony and $150 and $1,000 for a misdemeanor. This money is deposited in the Victims of Crime Fund, not provided to the victim in a particular crime. (Pen. Code § 1202.4, subd. (b)(1).)

Requires a defendant who has been ordered to pay restitution to “prepare and file a disclosure 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 Section 1214. (Pen. Code § 1202.4, subd. (f)(5).)

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 Civ. Proc. § 340.3, subd. (a).)

Provides that 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: murder or attempted murder, mayhem, rape and other specified sexual assault crimes, any felony punishable by death or imprisonment in the state prison for life, or an attempt to commit such a crime, exploding a destructive device so as to cause bodily injury, mayhem, exploding a destructive device with intent to commit murder, or kidnapping. (Code of Civ. Proc. § 340.3, subd. (b)(1).)

Provides that the extended statute of limitations for a civil action against a convicted criminal defendant does not apply if:

• The defendant has received a certificate of rehabilitation or a pardon;

• 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

• The defendant was convicted of 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. (Code of Civ. Proc. § 340.3, subd. (b)(2).)

Requires that any restitution paid by the defendant to the victim shall be credited against any civil judgment, award or settlement based on the defendant’s criminal conduct. (Code of Civ. Proc. § 340.3(e).)

Provides that the Department of Corrections and Rehabilitation (CDCR) or Board of Parole Hearings (BPH) shall, at least 60 days prior to release of an inmate imprisoned for a violent felony, notify the sheriff or chief of police and the district attorney of the community of conviction and in the community in which the person is scheduled to be released. (Pen. Code § 3058.6, subd. (a)-(b).)

Provides that whenever any person confined to state prison is serving a term for the conviction of specified child abuse offenses or any sex offense perpetrated against a minor, as specified, or as ordered by any court, the BPH or CDCR shall, at least 45 days prior to release, notify the sheriff or chief of police, or both, and the district attorney having jurisdiction over the community in which the person was convicted and the community in which the person is scheduled to be released on parole or re-released following a period of confinement pursuant to a parole revocation without a new commitment. (Pen. Code § 3058.9.)

Provides that the sheriff or the chief of police, when notified as to the pending release of a violent felon may, without incurring any liability, notify any person they deem appropriate of the pending release. (Penal Code § 3058.7(a).)

Requires the CDCR or 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. (Penal Code § 3058.8(a).)

Provides that a prison inmate retains those civil rights that need not be restricted to for penological interests. Specifically, an inmate may inherit, own, sell real or personal property, including all written and artistic material produced or written by the person during the period of imprisonment, except as provide in Civil Code Section 2225 (Pen. Code § 26001, subd. (a).)

Provides through the decision in Keenan v. Superior Court (2002) 27 Cal.4^th 413 that the requirement in Civil Code Section 2225 that any proceeds from convicted criminal’s sale of the story of his crime be placed in an involuntary trust violates the constitutional guarantees of freedom of speech.

This bill:

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.

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.)

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 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:

• The contract is based on a story about a murder, attempted murder, mayhem, rape and other specified sexual assault crimes, any felony punishable by death or imprisonment in the state prison for life, or an attempt to commit such a crime, exploding a destructive device so as to cause bodily injury, mayhem, exploding a destructive device with intent to commit murder, or kidnapping for which the offender was convicted.

• An action for damages against the offender is authorized by statute. (See, Code of Civ. Proc. § Section 340, subd. (b).)

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.

RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

For the past eight years, this Committee has scrutinized legislation referred to its jurisdiction for any potential impact on prison overcrowding. Mindful of the United States Supreme Court ruling and federal court orders relating to the state’s ability to provide a constitutional level of health care to its inmate population and the related issue of prison overcrowding, this Committee has applied its “ROCA” policy as a content-neutral, provisional measure necessary to ensure that the Legislature does not erode progress in reducing prison overcrowding.

On February 10, 2014, the federal court ordered California to reduce its in-state adult institution population to 137.5% of design capacity by February 28, 2016, as follows:

• 143% of design bed capacity by June 30, 2014;

• 141.5% of design bed capacity by February 28, 2015; and,

• 137.5% of design bed capacity by February 28, 2016.

In February of this year the administration reported that as “of February 11, 2015, 112,993 inmates were housed in the State’s 34 adult institutions, which amounts to 136.6% of design bed capacity, and 8,828 inmates were housed in out-of-state facilities. This current population is now below the court-ordered reduction to 137.5% of design bed capacity.”( Defendants’ February 2015 Status Report In Response To February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).

While significant gains have been made in reducing the prison population, the state now must stabilize these advances and demonstrate to the federal court that California has in place the “durable solution” to prison overcrowding “consistently demanded” by the court. (Opinion Re: Order Granting in Part and Denying in Part Defendants’ Request For Extension of December 31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court, Coleman v. Brown, Plata v. Brown (2-10-14). The Committee’s consideration of bills that may impact the prison population therefore will be informed by the following questions:

• Whether a proposal erodes a measure which has contributed to reducing the prison population;

• Whether a proposal addresses a major area of public safety or criminal activity for which there is no other reasonable, appropriate remedy;

• Whether a proposal addresses a crime which is directly dangerous to the physical safety of others for which there is no other reasonably appropriate sanction;

• Whether a proposal corrects a constitutional problem or legislative drafting error; and

• Whether a proposal proposes penalties which are proportionate, and cannot be achieved through any other reasonably appropriate remedy.

COMMENTS

1. Need for This 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.

2. First Amendment Issues Generally

The three standards of review for determining the validity of a law challenged on First Amendment grounds of freedom of speech are strict scrutiny, intermediate scrutiny and rational basis. While some laws clearly fall into one category or another - banning peaceful protests against a military action is clearly invalid as a content-based restriction - a First Amendment issue can be layered and difficult to determine, as the issues touch virtually every facet of government regulation and contact with citizens. Complicating First Amendment analysis, courts do not always use consistent terms in describing the applicable interests and standards.

A regulation based on the content of speech receives strict scrutiny, regardless of whether the speech is contrary to accepted standards of morality or propriety. While strict scrutiny is certainly applied to political speech, protection of the content of speech is much broader than that. (Kingsley Corp. v. Regents of the Univ. of the State of N.Y (1959) 360 U.S. 684, 688–889; Citizens United v. FEC (2010) 558 U.S. 310.) “If 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.) A restriction on the “content” of expression, must promote a “compelling state interest” by the “least restrictive means” to achieve the compelling interest. (Sable Communications v. FCC (1989) 492 U.S. 115, 126.)

A content-based restriction will be struck down as unconstitutionally “overbroad if it prohibits clearly protected speech although the law may also concern conduct that may validly be prohibited. (U.S. v. Stevens (2010) 130 S.Ct. 1577, 1587.) Stevens considered a federal statute that criminalized the sale or possession of “depictions of animal cruelty,” in order to prohibit fetishistic “crush videos” of the killing of animals for sexual gratification. Stevens was prosecuted for distribution of videos of dog fights and the government argued that the law was limited in intent to such depictions. The Supreme Court found that the statute was overbroad in that it might reach videos depicting hunting, arguably inhumane treatment of livestock, or activities legal in some jurisdictions but not others, such as cockfighting. (Id., at pp. 1588-1592.) The fact that speech is disturbing cannot be the determinant of whether it can be restricted or not.

Intermediate scrutiny requires that a law be substantially related to, or necessary to achieve, an important or substantial governmental interest. The most common category of speech subject to intermediate scrutiny is commercial speech. Commercial speech is protected, but the state can prohibit or punish false or misleading speech. (Va. Pharmacy Bd. v. Va. Consumer Council (1976) 425 U.S. 748, 762, 770-773.) In the Virginia Pharmacy Board case, the court held that the state could not prohibit pharmacies from advertising the prices of prescription drugs. Intermediate scrutiny applies to a facially content neutral regulation (no direct regulation of the content of speech in the provisions of the law) that has an indirect impairment of speech. Restrictions on the time, place and manner of speech are subject to intermediate scrutiny. (United States v. Obrien (1968) 391 U.S. 367; United States v. Albertini 1985) 472 U.S. 675. Obrien upheld a conviction under a federal law prohibiting the burning of a draft card and Albertini upheld the conviction of a man who had entered a military base nine years after the base commander had barred him from returning because he had entered the base and destroyed documents in the first entry.

Complicating First Amendment analysis is the apparently growing consideration of whether a law targets a particular class of speakers. Strict scrutiny may be required if the government distinguishes among classes based on the substance of the speech by members of the classes. (Turner Broadcasting v. FCC (1994) 512U.S. 622, 658; Citizens United v. FCC (2010) 558 U.S. 310, 340.) If the class is not regulated based on the content of the speech, it appears that the proper standard of review is intermediate scrutiny. (Doe v. Harris (2014) 772 F.3d 563, 575-576.)

Unprotected speech or expressive conduct - such as obscenity - is not protected by the First Amendment. A regulation concerning unprotected speech will be upheld under any rational basis. (Miller v. California (1973) 413 U.S. 15.)

3. Public Fascination with Serial Killers and Notorious Criminals

Criminals who commit bizarre or horrific crimes have long been the subject of a wide range of books, films and other forms of popular culture and academic analysis. Jack the Ripper is an early example of wide public fascination with, and mass media coverage about, serial killers. Jack the Ripper killed women in the East End of London in the 1880s. Fascination with this killer remains today.¹

The crimes of Charles Manson and his so-called family have created a virtual sub-genre of crime media. The most notable book - Helter Skelter - was written by the investigating detective, but Manson’s writings, statements and musical compositions have been widely distributed. A Manson follower - Tex Watson - wrote a book about the crimes Manson and his followers committed and also described his conversion to Christianity. Richard Chase, the so-called vampire killer of Sacramento, was reported to have drunk the blood of victims. Chase gave a long interview with an FBI investigator who is credited with coining the term, “serial killer,” and became an author about his cases and serial killers generally.² The fascination with many members of the public with notorious criminals creates a very large demand for books, movies, television shows, on-line content. Victims and the family members of victims are confronted with such material for their rest of their lives.

3. Background on “Son of Sam” Laws and Related Issues

The “Son of Sam” laws arose in response to the case of notorious serial killer David Berkowitz. Berkowitz - who was known as the Son of Sam before his arrest - killed six people, wounded many more and terrorized New York City in the late 1970s.

Concerns that Berkowitz could profit from his story brought New York State to enact a statute - commonly called the “Son of Sam” law. Under the law, a contract for a criminal’s story about his or her crime must have been disclosed to the state. All proceeds of the contract were placed in an involuntary trust for the benefit of the criminal’s victims. Similar statutes in other states were also described as Son of Sam laws.

The New York Son of Sam law was overturned in Simon & Schuster v. New York Crime Victims Board (1991) 502 U.S. 105.³ The case concerned Henry Hill, a lifelong mobster who was arrested on drug trafficking charges in New York in 1980. In exchange for immunity from prosecution and a new identity, Hill testified at great length about his former mafia associates. 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, supra, 502 U.S. 105.)

3. The California Son of Sam Laws

California passed its own "Son of Sam" law in 1986 to prevent those convicted of notorious crimes from profiting by selling 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, as amended in 1994 to cover all things of value derived by the perpetrator from the crime. (Keenan v. Superior Court (2002) 27 Cal.4th 413). The court in Keenan quoted Simon & Schuster thus: “[T]he state has a compelling interest in compensating victims for the fruits of the crime, but little if any interest in limiting such compensation to the proceeds of the wrongdoer’s speech about the crime.” (Simon & Schuster, supra, 502 U.S. 105, 120-121.)

In Keenan, the court found that the law violated the constitutional guarantee of free speech; by imposing a content-based financial penalty on protected speech and that the law chilled the speech rights of the author or creator and the right of the public to receive the communications. Specifically, the law, in seeking to compensate victims, impermissibly went beyond confiscating the proceeds of the crime to reach all income from speech of the criminal that included the story of the crime. (Id., at pp. 417-418.) However, the opinion in Keenan is so wide-ranging that it is difficult to summarize.

3. Factors for Analyzing Laws that Affect a Contract for a Convicted Criminal’s Story

Simon & Schuster, Keenan and other cases demonstrated the extreme constitutional barriers to drafting a law that directly targets the profits made by a felon from selling the story of his or her crime. This bill 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 Office of Victim and Survivor Services in the Department of Corrections and Rehabilitation of the contract.

If enacted, defenders of the law defined by this bill would likely first argue that the bill simply does not regulate or prohibit speech or expressive conduct. The bill only 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

Opponents would likely argue that the bill does target the content of speech. That is, the bill targets a contract about a certain kind of speech. If the bill is found to regulate or limit the content of speech, the bill would be subject to strict scrutiny. The bill could only withstand challenge if it upheld a compelling state interest. In light of the history of challenges to content- based speech, the state could have great difficulty establishing the validity of the law. The decisions in Simon and Schuster and Keenan struck down laws that imposed a “financial burden” or “direct financial disincentive” on speech about the perpetrator’s crime. (See, Keenan at p. 427.)

An argument that the bill only seeks to discover sources of income due a convicted criminal, not to limit speech, face challenges. The bill only applies to contracts involving a convicted criminal’s story about his or her crime. It does not apply to any other contract under which he or she is due money - the sale of a house, for example. As in this bill, the New York law required a media entity to report any contract with a criminal for his or her story to the New York Crime Victims Board, but New York took the extra step of requiring that money due under the contract be placed in an escrow account for the benefit of victims. (See, Keenan at p. 423.)

Opponents would likely argue that the bill simply breaks the process of paying the proceeds of a convicted criminal’s speech into steps, rather than requiring the money due under the contract to be directly paid to a trust to benefit the victim. In most cases, the victim will hold the equivalent of a civil judgment in an award or order of restitution. This bill also extends the statute of limitation for a civil action against the convicted criminal based on specified serious and violent crimes. Thus, it can be argued that the bill essentially funnels the proceeds of a contract for the speech or expression of a perpetrator to the victim of his or her crime.

3. Prior Restraint Issues

Persons and entities subject to reporting requirements will also argue that the bill is an unconstitutional prior restraint on speech, as the bill requires disclosure of a contract for a story or account about a crime incident by the perpetrator before the story is stated or written. Prior restraint is a companion concept to that of a “chilling effect” on expressive conduct because of a regulation or limitation concerning speech.⁴

The Motion Picture Association of America, Association of American Publishers and California Broadcasters Association have argued that the bill will have a chilling effect on protected speech. Arguably, publications and other forms of media could forgo seeking the story of a convicted offender to avoid negative publicity and criticism when it is revealed that the entity contracted with a notorious criminal’s story. The bill also raises the issue of the speech and contracting rights of a publisher, audio-visual media entity, or agent. That is, the contract that must be reported includes the speech of the other party to a contract with the criminal. The contract would likely otherwise remain confidential from competitors. The resolution of this issue is not clear.

3. Intermediate Scrutiny if the Bill is Content-Neutral; and Requirement that Laws that affect Speech be Tailored or Necessary to Advance an Important Government Interest

The bill could also be found to be content-neutral on its face, but nevertheless imposes a burden on speech. The bill would enter the rather slippery and uncertain world of intermediate scrutiny. In this context, the state would need to show that it advances an important state interest in a way that is narrowly tailored to do so. As noted, courts will review any law that prohibits burdens or regulates speech to determine if the law is narrowly tailored to promote the state’s interest.

Recently, the Federal 9^th Circuit Court of Appeals ruled on the constitutionality of the California law that requires each registered sex offender to disclose his internet identifiers as part of registration information. The court held that the law does not directly regulate the content of speech, but is subject to intermediate scrutiny because is affects the First Amendment rights of the class of persons:

Although California clearly has a legitimate interest, the more difficult question is whether the means California has chosen "'burden[s] substantially more speech than is necessary to further the government's legitimate interests.'" Turner, 512 U.S. at 662⁵ (quoting Ward, 491 U.S. at 799).  “The Constitution gives significant protection from overbroad laws that chill speech  within the First Amendment's vast and privileged sphere.” Ashcroft v. Free Speech Coalition, 535 U.S. 234, 244, 122 S. Ct. 1389, 152 L. Ed. 2d 403 (2002). The concern that an overbroad statute deters protected speech is especially strong where, as here, the statute imposes criminal sanctions. See Virginia v. Hicks, 539 U.S. 113, 119, 123 S. Ct. 2191, 156 L. Ed. 2d 148 (2003). (Doe v. Harris (2014) 722 F.3d 563, 578.)

The sponsor argues that the bill is narrowly and reasonably focused or tailored to serve the substantial governmental interest in assisting crime victims in obtaining recompense from criminal offenders. In particular, before a crime victim files a civil suit against the perpetrator of the crime, he or she would generally need to know whether the perpetrator has any assets or source of income. A judgment against someone who is judgment proof is of little economic value and the process of the lawsuit could be very emotionally painful. The lawsuit would examine the crime again and likely require the victim to engage in depositions about the crime and the harm it caused the victim or the victim's family.

A crime perpetrator who was convicted of one of the crimes covered by the civil action statute - and covered by the notice requirement in this bill - likely served a long prison term. He or she would not likely have any assets or income, except perhaps a contract for a story about the crime the perpetrator committed. This bill would require notice that the perpetrator has made such a contract, informing the victim that there could be a assets to seize from the perpetrator through a judgment in a civil suit. It appears unlikely that a victim or a victim's family would exercise the right to sue without some expectation of collecting any judgment. Thus, it can be argued that the bill does not provide for notice of other sources of income or assets because they are not likely to exist.

3. Extent of Required Disclosure of a Contract for a Convicted Criminal’s Story

This bill requires a person or entity that enters into a contract with a criminal offender convicted of specified serious felonies for the story of the crime to notify the Office of Victim and Survivor Rights and Services within CDCR “that the parties “have entered into a contract for the sale of the offender’s story.” It is not entirely clear what must be disclosed. Does an agreement to pay a relatively small fee for a limited-time option on a story about the crime constitute a contract for the story? Does an agreement by the offender to discuss the crime with a publisher or media entity, without a promise that the offender would control the content of the story, constitute a contract for the story? Could CDCR demand to view the contract to determine the nature of the agreement. Further, as noted above, there is no enforcement mechanism for the requirement that a person or entity disclose that a contract has been made with the offender has been made. Arguably, the requirement simply serves as a disincentive for a publisher or media entity to enter into a contract to avoid the negative publicity or notice that could come with the disclosure.

10. This Bill Extends The Statute Of Limitations For a Suit against a Convicted Criminal for the Harm caused by Specified Serious Felonies From Ten Years To 15 Years

Simon & Schuster, Keenan and other cases demonstrated the daunting constitutional barriers to drafting a law that directly targets the profits made by a felon from selling the story of his or her crime. In 2002, the Legislature took an alternative approach and extended 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.

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 of the story of the crime they committed more than ten years after they are paroled.

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 statute of limitations does not start running until the date when the offender is discharged from parole.

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 statute of limitations bars such an action, it is thought that the vast majority of cases are likely served by the current limitation’s period of ten years from the date of perpetrator’s discharge from parole.

11. This Bill Exempts Persons Released from Prison pursuant to a Habeas Corpus Petition From Being Sued For Damages Based On the Person’s Conviction

Existing law specifically exempts from suit 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 rehabilitation. This bill would also exempt from suit any person who was “unlawfully imprisoned or restrained but has been released after successfully prosecuting a writ of habeas corpus pursuant to” Penal Code Section 1473 and related statutes.

While this provision would apply to innocent persons who were wrongly convicted, it would appear to apply in other cases. Penal Code Section 1473 specifically refers to cases where false evidence was used against a defendant at trial. However, the writ is not limited to such cases. It appears that a person could prevail in a habeas corpus action because he or she was held beyond the maximum sentence for the crime of conviction, not that the person was innocent. The granting of the writ would not affect the conviction itself, and thus the grounds for suit against the offender based on the crime.

Further, the fact that false evidence was used at trial or some other factor requires reversal of a conviction through a habeas corpus petition does not establish a person’s innocence. An inmate could prevail in a habeas corpus petition, have the conviction reversed and then be retried and convicted. It is not entirely clear how the civil action statute would be applied in such a case, as the statute arguably contains conflicting provisions. The bill could provide that an innocent person who was wrongly convicted is immune from suit, regardless of whether the victim accepts that the person is innocent, while still allowing suit in circumstances where a habeas corpus petition was granted on grounds other than innocence.

11. Utilizing the Existing Victim Notification Program for Notice that an Offender has Contracted to tell His or Her Story of the Crime

Currently, crime victims, their family members, and certain witnesses in a criminal matter may provide their contact information to OVS and request that OVS notify them in the case of certain future events related to criminal offender. For example, one 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 has been asserted that an inmate could not enter into a contract to sell his or her story about the crime of conviction because an inmate cannot conduct a business or profession in prison. However, there appears to be no statutory bar to an inmate entering into contracts, including for the sale of his or her story. Penal Code Section 2600 provides that inmates lose only those civil rights necessary for legitimate penological purposes. Penal Code Section 2601 specifically provides that an inmate may sell…all written and artistic material produced or created by the person during the period of imprisonment. The only exceptions to this specific rule appear to be the provisions in Civil Code Section 2225 concerning sale of an inmate’s story about his or her crime. Those provisions were found to be unconstitutional in the Keenan case.

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ASSEMBLY THIRD READING

ATR Bill Id:AB 538

Author:(Campos)

As Amended Ver:May 13, 2015

Majority vote

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 10 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 (SOL) 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 10 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 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:

   1. A crime that is the basis of the story sold under the contract is specified in Code of Civil Procedure (CCP) Section 340.3(b) and resulted in the felony conviction of the offender.

   2. An action for damages against the offender is allowed to be commenced pursuant to CCP Section 340.3(b).

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.

FISCAL EFFECT: According to the Assembly Appropriations Committee, negligible fiscal impact for OVS to provide the required notifications, which will likely be minimal.

COMMENTS: This bill seeks several changes related to California's so-called "Son of Sam" law. First, this 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. This bill also extends by five years (from 10 to 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.

This bill further extends the statute of limitations from 10 years to 15 years. In 2002, the Legislature 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) to allow the victim to bring a civil action any time up to 10 years after the defendant is discharged from for convictions of offenses including 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. According to the author, the current 10-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 of the story of the crime they committed more than 10 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 30 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 this 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 10 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, the length of time that the offender is incarcerated and serving parole is likely to be substantial, 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 10-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 10 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.

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 this 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. 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 CCP 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 CCP Section 340.3(b).

According to the author, this 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 the story about the crime to notify OVS that the parties have entered into such a contract. This 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 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, this 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 Assembly Judiciary 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.

This bill is also opposed by the Motion Picture Association of America, Inc. (MPAA), who contends that this bill singles out for regulation certain speech that is protected by the First Amendment, and is therefore unconstitutional. Proponents contend that this 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. Furthermore, a number of other states currently have statutes that 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.

Analysis Prepared by: Anthony Lew / JUD. / (916) 319-2334 FN: 0000525

Date of Hearing: May 20, 2015

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Jimmy Gomez, Chair

ABPCA Bill Id:AB 538

Author:(Campos) – As Amended Ver:May 13, 2015

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This 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, 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. 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 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:

   1. 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.

   2. An action for damages against the offender is allowed to be commenced pursuant to Section 340.3(b) of the Code of Civil Procedure.

2. 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.

FISCAL EFFECT:

Negligible fiscal impact for OVS to provide the required notifications, which will likely be minimal.

COMMENTS:

Background and Purpose. 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.

Analysis Prepared by: Chuck Nicol / APPR. / (916) 319-2081

Date of Hearing: May 12, 2015

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 538

Author:(Campos) – As Amended Ver: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

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 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 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:

   1. 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.

   2. 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 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:

   1. The defendant has received a certificate of rehabilitation or a pardon;

   2. 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

   3. 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 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 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 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, 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 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 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 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:

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 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 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 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)

Analysis Prepared by: Anthony Lew / JUD. / (916) 319-2334