Opposition Brief — Sinatra v. Keenan

Supreme Gourt, US.

FILED

— JUN 28 2002

No. 01-1730 |

CLERK |

| In the :

iii Court of the Anited States

FRANK SINATRA, JR.,

Petitioner,

V.

BARRY KEENAN,

Respondent.

On PETITION For Writ OF CERTIORARI

To Tue CALIFORNIA SUPREME COURT

RESPONDENT'S BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

STEPHEN'F. ROHDE —

Counsel of Record

MICHELE M. BERENCSI

ROHDE & VICTOROFF

1880 CENTURY PARK EAST

SulTE 411

Los ANGELES, CA 90067

(310) 277-1482

Counsel for Respondent

BECKER GALLAGHER LEGAL PUBLISHING, INC.,

CINCINNATI, OHIO 800-890-5001

TAIDG =

QUESTIONS PRESENTED

Whether the judgment of the California Supreme Court

holding that California Civil Code section 2225(b)(1), which

provides for the confiscation of all proceeds owing to a

convicted felon if the depiction, portrayal, or re-enactment of

the felony for which the criminal was convicted is included in

a book, motion picture or other expressive material, is facially

invalid under the Liberty of Speech clause of the California

Constitution (Art. I, §2, subd. (a)) constitutes a bona fide

separate, adequate and independent state ground precluding

this Court’s jurisdiction to review that decision

Whether the California Supreme Court correctly held

that California Civil Code section 2225(b)(1) is overinclusive

and thus facially invalid under the First Amendment,

consistent with this Court’s decision in Simon & Schuster Inc.

v. Members of N.Y. State Crime Victims Board, 502 U.S. 105

(1991).

STATE CONSTITUTIONAL PROVISION

In setting forth the pertinent constitutional provisions !

and statutes, Petitioner neglected to include Article 1, §2,

subd. (a) of the California Constitution, which reads in full as

follows:

Every person may freely speak, write and

publish his or her sentiments on all subjects,

being responsible for the abuse of this right. A

law may not restrain or abridge liberty of

speech or press.

li

EE

TABLE OF CONTENTS

QUESTIONS PRESENTED .......2ccccccceces i

STATE CONSTITUTIONAL PROVISION ........ iil

TABLE OF CONTENES ....cccccccccesccees ill

TABLE OF AUTHORITIES ............2206-. iv-v

STATEMENT OF THE CASE ................ 1

REASONS FOR DENYING THE WRIT .......... 2

A. This Court Is Without Jurisdiction

Because The Judgment Of The

California Supreme Court Rests On

Bona Fide Separate, Adequate And

Independent State Grounds .......... 2

B. Sinatra, Jr. Has Failed To Articulate

A Compelling Reason To Justify

Discretionary Review By This Court

Since The Decision Of The Court

Below Was Correctly Decided In

Accordance With This Court’s

Decision In Simon & Schuster ........ 4

CEMEEIEN otc ors cescccecasssseseinans 13

ili

TABLE OF AUTHORITIES

CASES

Bouchard v. Price

oe we ft) 8 ae 13

Curran v. Price

(Md.Ct.Spec.App. 1994) 334

FF et | eer eee Tere Tee 13

Keenan v. Superior Court

27 Cal 4th 413, 40 P.Sd 718 2... ws. passim

Fox Film Corp. v. Muller.

G:C x hae ale ae ee 2

Michigan v. Long

463 U.S. 1032 (1983) ..............6.. 2

Rolling v. State ex rel. Butterworth

(Fla.Dist.Ct.App. 1994) 630 So.2d 635 ...... 13

Simon & Schuster Inc. v. Members of N.Y.

State Crime Victims Board

Se es EE one oes es eee passim

STATUTES

California

IN ea sd wale eh ed 1

Civil Code § 2225(b)(1) ............. passim

Code of Civil Procedure §§481.010 et seq. ... . 12

Code of Civil Procedure §§680.010 et seq. .... 12

iV

New York

Exec. Law § 632-a(4) .................. 7

CONSTITUTIONS

United States

First Amendment..................... 2

California

Article I, §2, subd. (a) ........ i, & 4, 2. 3, 4

TREATISE

Justice O’Connor, Our Judicial Federalism,

35 Case W. Res.L.Rev. 1, 5-6 (1984) ....... 3

SUPREME COURT RULES

OSA. Be TE ons ean k See 4

BRIEF FOR RESPONDENT

IN OPPOSITION TO —

PETITION FOR WRIT OF CERTIORARI

Respondent Barry Keenan respectfully requests that the

petition for certiorari be denied.

STATEMENT OF THE CASE

The California Supreme Court’s unanimous opinion

accurately sets forth the pertinent facts in this case. Pet. App.

6-11. Briefly stated, in July 1998 Petitioner Frank Sinatra,

Jr. sued Barry Keenan under California’s so-called “Son of

Sam” statute, Civil Code section 2225. Sinatra, Jr. sought the

confiscation of all proceeds due to Keenan from Columbia

Pictures’ production of a motion picture based on a

biographical profile of Keenan which had appeared in the

January, 1998 issue of New Times newspaper. Sinatra, Jr.

alleged that under the law he was entitled to those proceeds as

a result of Keenan’s conviction for kidnapping Sinatra, Jr. in

1963.

On February 21, 2002, the California Supreme Court

unanimously held in Keenan v. Superior Court, 27 Cal.4th

413, 40 P.3d 718, 117 Cal.Rptr.2d 1 (2002) that section

2225(b)(1), on which Sinatra, Jr. based his complaint, was

unconstitutional under both the First Amendment to the U.S.

Constitution and the Liberty of Speech Clause of the

California Constitution.

Given that the decision was based on bona fide

separate, adequate and independent state grounds and that the

decision is entirely faithful to, and consistent with, this

Court’s decision in Simon & Schuster, we believe that the

California Supreme Court decision should not be disturbed

l

and that the petition for certiorari should be denied.

REASONS FOR DENYING THE WRIT

A. This Court Is Without Jurisdiction

Because The Judgment Of The

California Supreme Court Rests On

Bona Fide Separate, Adequate And

Independent State Grounds

In Michigan v. Long, 463 U.S. 1032, 1041 (1983),

this Court articulated the “plain statement” rule to decide

whether the judgment of a state court rests upon an adequate

and independent state ground. Having long recognized that

“where the judgment of a state court rests upon two grounds,

one of which is federal and the other non-federal in character,

our jurisdiction fails if the non-federal ground is independent

of the federal ground and adequate to support the judgment,”

Fox Film Corp. v. Muller, 296 U.S. 207, 210 (1935), this

Court in Michigan established the following rule: “If the state

court decision indicates clearly and expressly that it is

alternatively based on bona fide separate, adequate and

independent grounds, we, of course, will not undertake to

review the decision.” 463 U.S. at 1041.

In the present case, the decision of the California

Supreme Court squarely comes within the “plain statement”

rule. Indeed, at two separate points in its decision, the

California Supreme Court clearly and expressly indicated that

its ruling was alternatively based on the Liberty of Speech

Clause of the California Constitution, Art. I, §2, subd.(a).

First, at the very beginning of the Opinion, the

California Supreme Court announced its decision in the

following terms:

— ee ee

We conclude that these provisions of the

California statute are facially invalid under

both the free speech clause of the First

Amendment to the federal Constitution as

applied to the states through the Fourteenth

Amendment, and the liberty of speech clause

of the California Constitution (Art. I, § 2,

subd. (a)).

The California Supreme Court set forth in footnotes

the text of the First Amendment and the Liberty of Speech

Clause. 27 Cal.4th at 415-416, n.1 and 2.'

Second, at the conclusion of its Opinion, the California

Supreme Court again clearly and expressly stated that it was

also reaching its decision on the separate and independent

basis of the California Constitution, in the following terms:

We reach a similar result under the liberty of

speech clause of the California Constitution

(Art. I, §2, subd. (a)). The California

provision provides similar, and sometimes

greater, protection of speech than the First

Amendment (e.g., Los Angeles Alliance for

Survival v. City of Los Angeles (2000) 22

Cal.4th 352, 366-367 & fn. 12, 993 P.2d

334), and neither party suggests any reason

why it should provide lesser protection under

1

If a state court “decides that a particular state

action violates both federal and state law, the final state court

judgment is not reviewable by the Supreme Court [and a] decision

by the Supreme Court on the federal issue would be merely

advisory.” Justice O’Connor, Our Judicial Federalism, 35 Case

_—wW. Res. L.Rev. 1, 5-6 (1984).

the circumstances of this case. 27 Cal.4th at

436.

Consequently, in two “plain statements” the California

Supreme Court clearly and expressly indicated that as an

alternative basis for its ruling under the First Amendment, it

was separately basing its decision on the Liberty of Speech -

Clause of the California Constitution, Art. I, §2, subd.(a).

Given the “plain statements” in the California

Supreme Court’s decision and in adherence to the principle of

avoiding advisory opinions and respecting the independence

of state courts, this Court is without jurisdiction and the

petition should be denied on that ground.

B. Sinatra, Jr. Has Failed To Articulate

A Compelling Reason To Justify

Discretionary Review By This Court

Since The Decision Of The Court

Below Was Correctly Decided In

Accordance- With This Court’s

Decision In Simon & Schuster.

“Review on a writ of certiorari is not a matter of right,

but of judicial discretion.” Sup. Ct. R. 10. “A petition for

a writ of certiorari will be granted only for compelling

reasons.” /d. Despite Sinatra, Jr.’s rhetoric and misleading

characterization of the decision of the California Supreme

Court, which faithfully adhered to the principles articulated by

this Court in Simon & Schuster, Sinatra, Jr. has not presented

any compelling reason to this Court to exercise its

discretionary jurisdiction over his appeal from the decision of

the California Supreme Court.

The California Supreme Court correctly observed that

the “flaw most clearly identified by the Simon & Schuster

majority was that the New York statute was overinclusive.

[I]t confiscated all profits from expressive works in which one

made even incidental or tangential mention of his or her past

crimes for non-exploitative purposes. (Simon & Schuster,

supra, 502 U.S. 105, 121.)” 27 Cal.4th at 417.

According to the California Supreme Court,

“California's analogous provision, section 2225(b)(1),

similarly imposes a content-based financial penalty on

protected speech. Yet section 2225(b)(1), like its New York

counterpart, fails to satisfy strict scrutiny because it, too, is

overinclusive. Section 2225(b)(1) contains the fundamental

defect identified in Simon & Schuster; it reaches beyond a

criminal's profits from the crime or its exploitation to reach

all income from the criminal's speech or expression on any

theme or subject, if the story of the crime is included.” /d.

The California Supreme Court reasoned, in keeping

with the analysis in Simon & Schuster, that although section

2225(b)(1), unlike the New York law, applies only to persons

actually convicted of felonies, and creates an exemption for

mere "passing mention of the felony, as in a footnote or

bibliography" (id. , subd. (a)(7)), these differences do not cure

the statute's constitutional flaws. “By any reasonable

construction, the California statute is still calculated to

confiscate all income from a wide range of protected

expressive works by convicted felons, on a wide variety of

subjects and themes, simply because those works include

substantial accounts of the prior felonies.” Id.

Recognizing that under the federal Constitution, the

analysis of Simon & Schuster governs this case, the California

Supreme Court cogently compared the California statute to the

5

ee ——

New York statute. “Both the New York and California laws

impose content-based financial penalties on protected speech.

Thus they must, at a minimum, satisfy strict constitutional

scrutiny. Both laws seek to serve compelling interests in

preventing criminals from exploiting their crimes for profit,

and in compensating crime victims from the profits of crime.

Yet both laws are overinclusive for those purposes, because

they confiscate all income from all expressive materials,

whatever their general themes or subjects, that include

significant discussions of their creators' past crimes.” 27

Cal.4th at 423.

The California Supreme Court correctly reasoned that

“[a]s did the New York statute, section 2225(b)(1) penalizes

the content of speech to an extent far beyond that necessary to

transfer the fruits of crime from criminals to their

uncompensated victims. Even if the fruits of crime may

include royalties from exploiting the story of one's crimes,

section 2225(b)(1) does not confine itself to such income.

Instead, it confiscates all a convicted felon's proceeds from

speech or expression on any theme or subject which includes

the story of the felony, except by mere passing mention. By

this financial disincentive, section 2225(b)(1), like its New

York counterpart, discourages the creation and dissemination

of a wide range of ideas and expressive works which have

little or no relationship to the exploitation of one's criminal

misdeeds.” 27 Cal.4th at 431.”

. Despite the fact that as noted above the California

Supreme Court carefully analyzed the defects in the California law

analogous to those found to exist in the New York law, in his

petition, Sinatra, Jr. mischaracterizes the decision below, by falsely

asserting that the “California court expressly acknowledges that the

California law lacks the New York law’s pitfalls” Pet. 6 and that

the California Supreme Court “admitted” that the defects in the

6

Indeed, if anything, the California statute posed an

even greater risk to freedom of expression than did the New

York law. The California Supreme Court pointed out that in

at least one respect, the involuntary trust provision of section

2225(b)(1) “operates more harshly against expressive

materials that depict the creator's past crimes than did the

escrow account provided for by the New York law at issue in

Simon & Schuster. Under the New York statute, proceeds

from a crime story contract were to be turned over to the New

York Board for placement in escrow, but if, at the end of five

years, no valid claims of the criminal's victims or creditors

were pending, remaining funds in the account were returned

to the criminal. (Simon & Schuster, supra, 502 U.S. 105,

109; see N.Y. Exec. Law, §632-a(4).) Under section

2225(b)(1), by contrast, any entrusted amounts not subject to

legitimate individual claims at the end of the five-year trust

period are turned over to the Controller fot allocation to the

Restitution Fund.” 27 Cal.4th at 432.

Here, as below, Sinatra, Jr. argues that section

2225(b)(1) cures the overinciusiveness problem identified in

Simon & Schuster, because it applies only to expressive

materials that include the "story" of a felony for which one

was convicted, and exempts mere "passing mention of the

felony, as in a footnote or bibliography." (/d., subd. (a)(7).)

These restrictions, he claims, negate Simon & Schuster's

concern, that under the New York statute all profits from an

expressive work would be confiscated even though the work

mentioned a past offense only "tangentially or incidentally."

New York law “were not present in the California statute.” Pet.

9. Despite Sinatra, Jr.’s general reference to pages 432-434 of the

decision below to support these groundless claims, no such

acknowledgment or admission will be found there.

7

The California Supreme Court bluntly responded: “We are

not persuaded.” 27 Cal.4th at 433.

The California Supreme Court explained that it did not

read Simon & Schuster as suggesting that a statute which

exhibited marginal narrowing in these particular regards

would necessarily pass constitutional muster. “Instead, the

court's concern was with the essential values of the First

Amendment. As the court's lengthy discussion discloses, the

vice of the New York law was that in order to serve a

relatively narrow interest - compensating crime victims from

the fruits of crime - the statute targeted, segregated, and

confiscated all income from, and thus unduly discouraged, a

wide range of expressive works containing protected speech

on themes and subjects of legitimate interest, simply because

material of a certain content - reference to one's past crimes -

was included.” 27 Cal.4th at 433.

The California Supreme Court correctly observed that

Simon & Schuster made it clear that one motivated in part by

compensation might discuss his or her past crimes, including

those that led to felony convictions, in many contexts not

directly connected to exploitation of the crime. “One might

mention past felonies as relevant to 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.” 27 Cal.4th at 433.

Mention of one's past felonies in these contexts may

have little or nothing to do with exploiting one's crime for

profit, nor with the state's interest in compensating crime

victims from the fruits of crime. Yet section 2225(b)(1)

entrusts and permanently confiscates all income, whenever

8 :

received, from all expressive materials, whatever their

subject, theme, or commercial appeal, that include a

substantial description of such offenses, whatever their nature

and however long in the past they were committed. Thus,

even as so limited to felony convictions, section 2225(b)(1) is

not narrowly tailored to achieve the compelling interests it

purports to serve. Id.

Given this analysis, the California Supreme Court

correctly rejected Sinatra, Jr.’s argument that the California

statute avoids this defect because it applies only to expressive

materials containing the “story” of the felony and because it

expressly exempts mere “passing mention of the felony, as in

a footnote or bibliography” on the theory that the law applies

only when an expressive work provides what Sinatra, Jr. calls

“narrative detail” about a felony for which the work's author

or creator was convicted, and does not discourage mere

“acknowledgment” of a prior felony conviction in the context

of another subject. 27 Cal.4th at 434.

“These arguments do not convince us that section

2225(b)(1) focuses with sufficient precision on the fruits of

crime, while leaving other speech-related income undisturbed.

Simon & Schuster illustrated the overbreadth of the New York

statute by observing that it reached even incidental and

tangential mention of past crimes, but nothing in Simon &

Schuster suggests the New York law could have cured its

overinclusive effect simply by providing an exemption for

tangential or incidental references. Moreover, Simon &

Schuster neither stated nor implied that the federal

Constitution might allow confiscation, on behalf of crime

victims, of all proceeds from any expressive work that

includes a descriptive account, or even a vivid account, of a

past crime committed by the author.” 27 Cal.4th at 434.

The California Supreme Court aptly pointed out that

a Statute that confiscates all profits from works which make

more than a passing, non-descriptive reference to the creator's

past crimes still sweeps within its ambit a wide range of

protected speech, discourages the discussion of crime in non-

exploitative contexts, and does so by means not narrowly

focused on recouping profits from the fruits of crime. 27

Cal.4th at 435.

According to the California Supreme Court, “the

Statutory definition of story includes any substantial account

of the facts and circumstances of a past felony which led to

conviction, and the passing mention exemption would not

provide safe harbor to materials containing such a substantial

account. But there are multiple contexts in which expressive

materials, with diverse subjects and themes unrelated to the

exploitation of one's crimes, might include substantial

accounts of those episodes.” Jd.

Sinatra, Jr. invites this Court to radically depart from

its analysis in Simon & Schuster and create a brand new rule

that would sweep within the purview of any “Son of Sam”

law any book, motion picture or other expressive material in

which the felon had “augmented his depiction of his crimes

with additional text.” Pet. 12. Of course, Sinatra, Jr. gives

no hint of how legislatures, courts or interested individuals

would ever determine what proportion of “additional text”

compared to the space devoted to the “depiction” of the crime

would cause a particular work to fall within or without of a

particular statute. More importantly, since Sinatra, Jr.’s

suggestion would still encompass works containing only an

incidental or tangential mention of the past crime, it squarely

runs afoul of this Court’s holding in Simon & Schuster, at 502

U.S. at 121.

10

The California Supreme Court pointed out that section

2225(b)(1) would have applied to numerous works by authors

whose discussions of larger subjects make substantial, and

often vividly descriptive, contextual reference to prior felonies

of which they were convicted had the statute been in effect at

the time and place of these publications.’ A statute which

operates in this fashion disturbs or discourages protected

speech to a degree substantially beyond that necessary to serve

the state's compelling interest in compensating crime victims

from the fruits of crime. Accordingly, the Court below

concluded, in conformity with Simon & Schuster, that section

2225(b)(1) is facially invalid under the First Amendment to

the United States Constitution.

Sinatra, Jr. improperly accuses the California Supreme

Court of “countermand[ing]” this Court’s directive in Simon

& Schuster that its holding is not intended to invalidate all

such victims’ rights statutes and he imagines that the decision

below “will compel that same result in the other forty (40)

: These include, for example, Alex Haley and

Malcolm X's The Autobiography of Malcolm X (Ballantine Books

ed. 1992), in which the murdered civil rights leader describes

early burglaries for which he was convicted (id., pp. 161-172);

Eldridge Cleaver's Soul on Ice (1968), which discusses his rapes

of White women, for which he was incarcerated, as since-repented

acts of racial rage (id., pp. 14-15); memoirs by Charles Colson

(Born Again (1976)), G. Gordon Liddy (Will! (1980)), and John

Dean (Blind Ambition: The White House Years (1976)) detailing

their criminal roles in the Watergate coverup; and the memoirs of

Patricia Hearst, the scion of a publishing dynasty, who was

kidnapped by the Symbionese Liberation Army and later

participated with her captors in an armed bank robbery for which

she was imprisoned (Hearst & Moscow, Every Secret Thing

(1981)).

11

states with similar victims’ rights statutes.” Pet.5. Sinatra, ~

Jr. goes so far as to claim that the decision below “makes it

impossible for any state legislature to tailor a remedy” in this

area. Pet. 5.

Contrary to these spurious and exaggerated claims, the

California Supreme Court itself stressed “the narrow nature”

of its holding under both the federal and California

Constitutions.

“We conclude only that section 2225(b)(1) is an

overinclusive infringement of protected speech because it

targets and confiscates all-a convicted felon's proceeds from

expressive materials that include any substantial account of

the felony, in whatever context. We express no views on

whether a statute targeting the income gained from expressive

works that include accounts of the author's crimes could be

drafted narrowly and precisely enough to overcome this

problem of constitutional overbreadth. Moreover, nothing we

say here precludes a crime victim, as a judgment creditor,

from reaching a convicted felon's assets, including those

derived from expressive materials that describe the crime, by

generally applicable remedies for the enforcement and

satisfaction of judgments. (See generally Code Civ. Proc., §

§ 481.010 et seq., 680.010 et seq.) Nor do we intend, by our

analysis in this case, to preclude further legislative steps, not

directly related to the content of speech, to ensure that a

convicted felon's income and assets, including those derived

from storytelling about the crimes, are and remain available

to compensate persons injured or damaged by the felon's

crimes.” 27 Cal.4th at 436.

The California Supreme Court’s decision striking

down section 2225(b)(1) is not only consistent with Simon &

Schuster, but with the decisions in other states. One

12

jurisdiction's “Son of Sam” law has been invalidated since

Simon & Schuster. Bouchard v. Price (R.1. 1997) 694 A.2d

670, 675-678. The laws in two other states have been

challenged, but the appeals in those matters were decided on

grounds other than the constitutionality of the statutes at issue.

See Rolling v. State ex rel. Butterworth (Fla.Dist.Ct.App.

1994) 630 So. 2d 635; Curran v. Price (Md.Ct.Spec.App.

1994) 334 Md. 149, 638 A.2d 93. Cited at 27 Cal.4th at 427.

CONCLUSION

The petition for writ of certiorari should be denied.

Respectfully submitted,

STEPHEN F. ROHDE

Counsel of Record

MICHELE M. BERENCSI

ROHDE & VICTOROFF

1880 Century Park East, Suite 411

Los Angeles, California 90067

310-277-1482

Counsel for Respondent Barry Keenan

13