Curran v. Price

• Citation: 334 Md. 149,638 A.2d 93
• Decision Date: 01 September 1993
• Docket Number: No. 76,76
• Parties: J. Joseph CURRAN, Jr. v. Ronald W. PRICE. ,
• Court: Maryland Court of Appeals

Page 149

334 Md. 149

638 A.2d 93

J. Joseph CURRAN, Jr. v. Ronald W. PRICE.

No. 76, Sept. Term, 1993.

Court of Appeals of Maryland.

March 14, 1994.

J. Joseph Curran, Jr., Atty. Gen. (Ralph S. Tyler, Deputy Atty. Gen., and Mary O'Malley Lunden, Asst. Atty. Gen., all on brief), Baltimore, for petitioner.

Timothy Umbreit (Umbreit & Resnick on brief), Baltimore, for respondent.

Steven F. Reich (David B. Isbell, Leslye A. Herrmann, Covington & Burling, all on brief), Washington, D.C., and Susan Goering, American Civ. Liberties Union Foundation of Maryland, on brief), Baltimore, amicus curiae.

Argued before MURPHY, C.J., RODOWSKY, McAULIFFE, ^* CHASANOW, KARWACKI, ROBERT M. BELL, JJ., and CHARLES E. ORTH, Jr., Judge of the Court of Appeals (retired), Specially Assigned.

MURPHY, Chief Judge.

This case focuses upon Maryland's so-called "Son of Sam" statute, Maryland Code (1957, 1992 Repl.Vol. and 1993 Cum.Supp.) Art. 27, § 764, which was enacted to prevent criminals from profiting from their own crimes through "notoriety of crimes contracts," defined in § 764(a)(5) as a contract with respect to

"(i) The reenactment of a crime by way of a movie, book, magazine article, tape recording, phonograph record, radio or television presentation, or live entertainment of any kind "(ii) The expression of the defendant's thoughts, feelings, opinions, or emotions regarding a crime involving or causing personal injury, death, or property loss as a direct result of the crime; or

"(iii) The payment or exchange of any money or other consideration or the proceeds or profits that directly or indirectly result from a crime, a sentence, or the notoriety of a crime or sentence."

Section 764(b) requires that a "person" who enters into a notoriety of crimes contract with a "defendant" must "submit a copy of the contract or summary of the terms of an oral agreement to the Attorney General ... and ... [p]ay over to the Attorney General any moneys or other consideration ... which would otherwise be owing to the defendant." Section 764(a)(3) defines "person" as "a natural person, a firm, corporation, partnership, association, or other legal entity."

Section 764(a)(2) defines a "defendant" as "a person charged with or convicted of a crime in this State involving or causing personal injury, death, or property loss as a direct result of the crime." Section 764(a)(4) defines the term "victim" to mean a person "who suffers personal injury, death, or property loss as a direct result of crime."

Section 764(c)(1) and (2) require that the Attorney General mail to a "victim" of the defendant's crime a notice that the Attorney General has a copy of the contract and shall determine after the passage of 30 days, but before the expiration of 180 days from receipt of the contract, whether the contract is a "notoriety of crimes contract." It further provides that the Attorney General may render a decision after 180 days "for cause."

Section 764(c)(3) creates a rebuttable presumption that the contract is a notoriety of crimes contract but permits the "defendant" to establish to the "satisfaction of the Attorney General" that the subject matter of the contract only tangentially or incidentally relates to the crime.

Section 764(d) provides that a "person" may not conceal the existence of a notoriety of crimes contract or "make or receive payments" under such a contract.

Section 764(n) provides that any person aggrieved by a determination of the Attorney General may seek judicial review.

Section 764(p) authorizes the Attorney General to institute injunctive proceedings against a "person" who violates or threatens to violate any provision of § 764. Section 764(o) provides that any person who willfully fails to submit a copy of the contract to the Attorney General, or to pay over to the Attorney General any moneys or other consideration as required by the statute, shall be subject to certain civil monetary penalties, as set forth in the statute.

I

Ronald W. Price (Price), a former Anne Arundel County high school teacher, was indicted on March 5, 1993 for criminal violations, including sexual child abuse and unnatural and perverted practices committed upon former students. ¹ After Price's indictment and prior to his trial, the case received widespread attention, due in large part to the fact that Price appeared on national television talk shows acknowledging that he had engaged in sexual relationships with several of his female high school students. He also granted interviews to various local and national news media. In at least one of these interviews he stated that he had entered into a contract to sell "his story." ² In response to that statement, and pursuant to § 764, an Assistant Attorney General wrote to Price's counsel inquiring whether Price had, in fact, entered into a contract that might be covered by the statute, and, if so with whom and for what consideration. Price responded through counsel that he had entered into a contract for his "life story," but refused to produce a contract or summary of any oral agreement, maintaining that § 764 was unconstitutional and in any event that the contract was only tangentially related to the crimes. Believing that the only basis for commercial interest in Price's life story was the criminal conduct with which he was charged, and therefore that it was most likely that any contract Price made would be covered by § 764, the Attorney General filed a "Complaint for Injunctive Relief" against Price in the Circuit Court for Anne Arundel County. The complaint recited that Price's "intentional concealment of and failure to submit to the Attorney General any contract for his life story, including his alleged criminal activity" violates Article 27, § 764. The Attorney General sought an interlocutory injunction, pending final adjudication of the case, requiring Price to submit the contract to him, together with any payments received under the contract. The complaint also sought "a final binding declaration of rights of the parties," followed by a permanent injunction.

The court (Lerner, J.) denied the Attorney General's prayer for injunctive relief and declared that § 764 was "unconstitutional and unenforceable." In so acting, the court determined that § 764 was unconstitutionally overinclusive on its face and violated the principles of the First Amendment. It noted that under § 764(a)(5)(ii) a "notoriety of crimes contract" was one respecting "the expression of the defendant's thoughts, feelings, opinions or emotions regarding a crime." Consequently, the court held that § 764 is a content-based regulation of speech which must be justified by a compelling government interest and narrowly tailored to further that interest. The court found that, while the State clearly has a compelling interest to prevent criminals from profiting from their crimes, and to compensate victims, § 764 swept so broadly as to reach forms of expression which the State had no compelling interest to regulate.

The State appealed to the Court of Special Appeals. We granted certiorari prior to review by the intermediate appellate court to consider the question presented by the State in its certiorari petition, i.e., whether it was constitutional under § 764 to require Price "as a person charged with serious crimes to submit to the Attorney General for review any notoriety of crimes contract." 331 Md. 719, 629 A.2d 720. In its petition for certiorari, the State urged that we "resolve definitively the constitutionality of § 764."

II

Notwithstanding the question presented in its petition, the Attorney General argues that it is unnecessary for us to reach the issue of whether the entire statute is unconstitutional. Instead, he maintains that until the contract is produced and he is able to determine whether it is covered by the statute, any broad determination of the statute's constitutionality is premature. The Attorney General contends that any analysis of constitutionality should await a full and complete factual record. He maintains that constitutional issues do not arise when the Attorney General seeks merely to obtain a contract to determine the statute's applicability. He argues that the State is entitled to obtain information about a criminal defendant's proposed activity even if it enjoys First Amendment protection. He likens the requirement to produce the contract to a "time, place, and manner" restriction in which demonstrators must tell the State of a planned demonstration and apply for a permit to demonstrate. Moreover, it is maintained that there is little, if any, "speech" involved in producing the contract, and thus any incidental limitations on First Amendment freedoms are justified by the State's interest in ensuring that criminals not profit from their crimes. The State asserts that Price's obligation to produce the contract, the Attorney General's determination of the statute's applicability to any submitted contract, the right to judicial review of the Attorney General's decision, and his authority to seek injunctive review, are all "procedural steps" which must be exhausted before any constitutional issues should be reached. Alternatively, the argument is advanced that, in the event a constitutional review is necessary, we should conclude that § 764 is constitutional because it is a content-neutral statute, narrowly tailored to further an important government interest.

Price contends that the statute is unconstitutional, but puts forth no legal arguments in support of his contention. The American Civil Liberties Union, appearing as amicus curiae (amicus), urges that the statute is a content-based restriction which sweeps too broadly, unconstitutionally burdening speech that is protected by the First Amendment. It posits that the production requirement and subsequent review by the Attorney General constitute a prior restraint on speech which lacks all the procedural safeguards necessary to make it...