Children of Bedford, Inc. v. Petromelis
| Decision Date | 07 May 1991 |
| Citation | 573 N.E.2d 541,570 N.Y.S.2d 453,77 N.Y.2d 713 |
| Parties | , 573 N.E.2d 541, 59 USLW 2717, 18 Media L. Rep. 2255 In the Matter of CHILDREN OF BEDFORD, INC., et al., Appellants, v. Angelo PETROMELIS et al., Constituting the Crime Victims Board of the State of New York, Respondents. |
| Court | New York Court of Appeals Court of Appeals |
Leon Friedman, East Meadow, Jan F. Constantine and Arthur Eisenberg, New York City, for appellants.
Robert Abrams, Atty. Gen. (Susan L. Watson, O. Peter Sherwood and Howard L. Zwickel, of counsel), New York City, for respondents.
Jean Harris is the author of a book entitled "Stranger in Two Worlds". She has assigned the royalties due from her publisher, petitioner MacMillan, Inc., to petitioner Children of Bedford, Inc., a not-for-profit corporation organized under New York law. Respondents are the chair and members of the Crime Victims Board of the State of New York. On October 26, 1987 respondents issued an order declaring that royalties for Harris's book must be deposited in escrow because the book contains her version of the killing of Dr. Herman Tarnower, a crime which resulted in her conviction of second degree murder (see, People v. Harris, 57 N.Y.2d 335, 456 N.Y.S.2d 694, 442 N.E.2d 1205), as well as expressions of her "thoughts, feelings, opinions or emotions" regarding the crime (see, Executive Law § 632-a[1].
Consequently, petitioners instituted this CPLR article 78 proceeding asserting that the book was not subject to the statute, that the proceedings judging it so violated Federal due process guarantees and that the statute abridged Federal and State guarantees of free speech (U.S. Const. 1st, 14th Amends.; N.Y. Const. art. I, § 8). Supreme Court converted the proceeding to a declaratory judgment action and, after examining the book's contents, found that the statute applied to the work and that respondents had not violated petitioners' due process rights. The court held further that the statute was constitutional because it had only an incidental effect on speech and because the governmental interest addressed by the statute outweighed petitioners' State and Federal rights (see, 143 Misc.2d 999, 541 N.Y.S.2d 894). The Appellate Division affirmed on Supreme Court's opinion. 161 A.D.2d 503, 556 N.Y.S.2d 483.
We agree that the book is subject to the statute and that the proceedings did not violate petitioners' due process rights. We also agree petitioners' free speech claims should be rejected. Our analysis differs from that of Supreme Court, however. We conclude that the statute is content-based and imposes a direct burden on speech: it singles out a category of speech based on subject matter and imposes special burdens on that category. Thus, the statute must be strictly scrutinized and unless it serves a compelling governmental purpose and is narrowly tailored to accomplish that purpose, it is invalid.
In 1966 the Legislature enacted article 22 of the Executive Law to establish the Crime Victims Board (L.1966, ch. 894, § 1). Recognizing that many victims of crime and their dependents suffer disability, incur financial hardship or become dependent upon public assistance as a result of criminal acts, the Legislature enacted the statute to establish a mechanism whereby the State would provide victims with financial assistance. It has since been extensively amended to provide crime victims and witnesses with rehabilitation programs, crisis intervention and other counseling services and to facilitate funding from other sources, both public and private (see, Executive Law § 631-a; L.1985, ch. 688, § 12; L.1986, ch. 263, § 6). The statute authorizes respondent Board to investigate and determine claims of crime victims, to grant them emergency awards before final determination of the claims (Executive Law § 630) and grant final awards not to exceed $30,000 ( § 631). A victim is defined as a person who suffers "personal, physical, mental, or emotional injury, or pecuniary loss as a direct result of the crime" ( § 621[5]; § 632-a[10][a] and payment to them is authorized even though the criminal is not apprehended or convicted ( § 631). The awards are free from execution or attachment by creditors, except those having claims for treating injuries resulting from the crime ( § 632). Upon payment, the State is subrogated, to the extent of the award, to any right of action against the criminal ( § 634). Decisions of the Board are subject to judicial review pursuant to CPLR article 78 ( § 629).
Section 632-a, the subject of this proceeding, was originally enacted in 1977 (L.1977, ch. 823) and has been amended several times to narrow and clarify its scope and establish the priority of claims. The section provides that those contracting with "any person or the representative or assignee" of any person accused or convicted of a crime in New York, "with respect to the reenactment of such crime" or for "the expression of such * * * person's thoughts, feelings, opinions or emotions regarding such crime" shall submit a copy of the contract to the Crime Victims Board. If the Board determines that the criminal's work comes within the statute, any moneys owing under the contract must be paid to the Board. The funds are deposited in escrow for the benefit of the victims or legal representatives of the victims of the crime. An expanded Statute of Limitations is necessary because the tort Statute of Limitation might expire before the work is undertaken or generates income. Thus, section 632-a provides that claims may be asserted at any time within five years after the escrow is established. To be entitled to funds the claimant/victim must institute an action in a civil court, recover a judgment for damages and then apply to the Board for satisfaction of it from the escrowed moneys. Upon dismissal of the criminal charges or acquittal, the Board must immediately pay over any funds in the escrow to the accused.
The statute strictly regulates the disbursement of the proceeds. They are to be used, first, to pay for the criminal's legal representation and, in the discretion of the Board and after notice to the victims of the crime, for the necessary expenses for producing the moneys. The total amount disbursed for such purposes may not exceed 20% of the amount in the fund available to satisfy civil judgments obtained by victims of the crime. The balance of the fund is payable, in order of priority, to satisfy subrogation claims of the State (not exceeding one half of the civil judgment obtained by the victims), the civil judgment of the victims and finally, other creditors of the criminal. The remainder, if any, is paid to the criminal at the end of five years. Moneys in the fund are not subject to execution, attachment, levy or lien except as provided in the statute and certain actions taken by the criminal to avoid the statute's provisions are declared void.
The statute was enacted in response to public outrage over the 1977 Son of Sam murders and news reports that the killer was being offered substantial sums of money for the exclusive rights to his story. The bill set up the procedures described to ensure that criminals would not profit from their crimes before the victims of those crimes had an opportunity to obtain compensation (see, Mem. of Senator Emmanuel R. Gold, 1977 N.Y.Legis.Ann., at 267; Assembly Bill Mem. Re: A 9019, Bill Jacket, L.1977, ch. 823).
"Stranger in Two Worlds" was written by Harris after her conviction and imprisonment in Bedford Hills Correctional Facility. During her term, she worked at the Children's Center of the prison with the children of the inmates in that facility and decided that it would be important to bring to the attention of the public the problem of imprisoned mothers trying to maintain the bonds with their offspring. Accordingly, she suggested that the mothers collect some of the letters written by the children and publish them. Eventually she put the collection together and enlisted the services of a book agent to help her sell the project to a publisher. The publishers were not interested in a book containing only the letters, however, and some suggested that the project would be more salable if Harris were to write her own story as well. She then expanded the book to include the story of her life, including her life with Tarnower, his murder, and her prison experiences. On March 19, 1985, MacMillan signed an agreement with Harris to publish the proposed work and paid her an advance of $50,000. She used the money for taxes and attorneys' fees connected with her criminal trial and donated the balance to charitable programs at Bedford. Subsequently, after the book was completed and published, she established Children of Bedford, Inc. and assigned all future royalties to it for the benefit of the children of women in prison. Neither she nor the foundation have been paid any royalties for the book other than those originally advanced.
Before publication, MacMillan submitted a copy of the agreement and the book to the Crime Victims Board and on July 28, 1986, the Board issued a proposed order declaring the book subject to Executive Law § 632-a. At petitioners' request, an adjudicatory hearing was held after which the Board upheld its proposed order and determination and issued a final order, now under challenge, determining that the book was within the statute and requiring all moneys due under the agreement to be paid into escrow.
Petitioners contend first that the Board erred in determining that "Stranger in Two Worlds" was subject to the statute because the material in the book relating to the reenactment of the crime constitutes only a small portion of the book and consists primarily of reprinted transcripts of trial testimony.
In its final determination, the Board found that the book "contains both the author's version of the re-enactment...
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