Children of Bedford, Inc. v. PetromelisChildren of Bedford, Inc. v. Petromelis
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,
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 (US Const 1st, 14th Amends;
I
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,
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,
II
"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
¡II
Petitioners contend first that the Board erred in determin
In its final determination, the Board found that the book "contains both the author’s version of the re-enactment of her crime of which she was convicted as well as expressions of Jean Harris’ thoughts, feelings, opinions and emotions regarding the crime.” It cited specifically two chapters dealing with the Tarnower homicide and the trial, "Harrison, New York: The End of the Line” and "Westchester: The People vs. Jean Harris”. The Supreme Court agreed with the Board’s determination, finding that these two chapters make up the core of the work around which the narrative of Harris’s life story is structured — preceding chapters describe the forces and events leading up to the crime and following chapters tell of Harris’s experiences as a consequence of her conviction for Tarnower’s murder. We agree that respondents reasonably concluded the book was within the statute. Indeed, it is apparent from the preliminary negotiations between MacMillan and Harris and from the publicity surrounding publication that MacMillan believed the book’s commercial value rested on subject matter within the statute. Before accepting the book, MacMillan urged Harris to expand it to include the crime and, before publishing it, MacMillan advised the trade that Harris’s soon to be released book was "a spellbinding story of her life in and out of prison,” that the author kept a diary in prison "full of new facts about her relationship with Hy Tarnower, her lover for over a decade whom she ultimately murdered,” and stated that "Ms. Harris comes to terms with herself [in prison] and recounts why she murdered her lover.” Press reports originating from MacMillan characterized the book as "the crime of the century — by the woman convicted of committing it.”
IV
Petitioners further contend that the Board violated procedural due process by failing to give them proper notice of the offending passages and because the investigative and adjudicative functions are improperly joined in the Crime Victims Board.
The procedures established by the Board, and followed in this case, are set forth in 9 NYCRR part 526. The Board first investigates to determine if the contract at issue comes within
Addressing petitioners’ notice claim first, due process requires that the parties be afforded reasonable notice of the claims against them and an opportunity to be heard on those claims
(see, Mullane v Central Hanover Trust Co.,
Petitioners’ remaining due process claim rests on their contention that the Board improperly acted as both prosecutor and Judge by investigating the facts, issuing a proposed determination and order, holding a hearing on that determination and ultimately, upholding it. The practice of combining investigative, prosecutorial and adjudicative functions in a single administrative agency or board is not improper, however; statutes doing so are common
(see, e.g.,
Alcoholic Beverage Control Law § 119; Civil Service Law § 75 [2];
V
Having concluded the statute was properly applied to the Harris book and the proceedings before the Board were regular, we turn to petitioners’ free speech claims.
A
The Board does not dispute that the book is protected speech under the First Amendment
(see, Cox Broadcasting Corp. v Cohn,
We conclude that the statute is content-based and imposes a direct burden on speech. Harris may write, and her publisher may publish, any literary work written by her without regulation unless the subject matter of the work deals with the crime of which she stands convicted (
In
Meyer v Grant,
the Supreme Court examined a Colorado statute that prohibited the payment of persons to circulate petitions for ballot initiatives. The Court concluded that the statute was subject to strict scrutiny because it imposed financial limitations which directly burdened political speech. It did so by limiting the number of voices who would convey the message expressed in the petitions and making it less likely that the number of signatures necessary to place the
Because the statute singles out a category of speech based on subject matter and imposes special burdens on that category, respondents must demonstrate that it serves a compelling State interest and is narrowly tailored to achieve that purpose
(see, Arkansas Writers’ Project v Ragland,
B
It is the declared policy of this State that financial assistance, counseling and retraining should be made available to crime victims to rehabilitate them physically, emotionally and occupationally for the injuries they have sustained at the hands of a criminal
(see,
Executive Law art 22).
1
If the only purpose of
Thus, the statute is a codification of the fundamental equitable principle that criminals should not be permitted to profit from their wrongs
(see, Caplin & Drysdale v United States,
These governmental interests have been recognized and implemented by similar statutes in approximately 40 American jurisdictions. 3
Although the State has identified compelling reasons for imposing restrictions on the category of speech at issue here, this does not end the inquiry. We must determine whether New York’s statute is narrowly tailored to achieve these interests.
Petitioner contends the governmental purposes are adequately fulfilled by existing tort laws and provisional remedies, particularly the attachment laws. The tort laws do not satisfactorily address the need, however. They require the commencement of an action within three years, a period during which there may be no assets to satisfy a judgment. Although a judgment once secured may remain in effect for 20 years, the victim has little incentive to seek relief if the criminal has no assets. Moreover, if the criminal does have assets, or subsequently acquires them, the victim would be required, if limited to tort remedies, to share those assets with general creditors.
Nor do the existing attachment procedures solve the problem. CPLR article 62 provides that attachment is available upon commencement of an action, or immediately before it, if the debtor is either outside the State, or otherwise not amen.able to service, or if he has taken steps to defraud his creditors or frustrate the enforcement of a judgment
(see,
Petitioners also contend that the statute is underinclusive because it does not reach income earned from writing generally, income earned from other crime-related activities such as
Petitioners’ reference to after-acquired property fails for the same reason. Moneys received by a criminal from inheritance or other sources do not relate to the crime in which a victim has been injured. Manifestly, these assets are available to victims by the customary legal remedies, but they do not come within the purpose of
Finally, petitioners contend that the law is unconstitutional because it excessively inhibits other contracting parties, such as publishers, who want to publish material about the crimes. But there is nothing in the law which prohibits noncriminal authors from writing about the crime or publishers from publishing their works. They may write and publish about the crime in general or from the perspective of the perpetrator. Nor is there anything in the statute which prevents publishers from profiting in full from publishing any work about the crime. No moneys are withheld from its earnings. The publisher is required only to submit a copy of the contract to the Board, and once it is finally determined that the statute applies, it must turn over moneys owed to the criminal under that contract to prevent the dissipation of the profits (
We conclude that
D
Petitioners further assert that the law is void for vagueness. An enactment is void for vagueness if its prohibitions are not clearly defined. The Constitution does not require " '[M]eticulous specificity’ ”, however
(see, Grayned v City of Rockford,
The terms of
Petitioners nevertheless attempt to illustrate the statute’s vagueness by questioning the applicability of the statute to victimless crimes or to material which contains only a fleeting reference to the crime. They maintain that publishers do not have a clear idea from the language of the statute whether these circumstances would be covered by it. Such questions are matters for interpretation. Indeed, the courts have already resolved some of them (see, ante, at 726). The Constitution does not require that a law be drafted with such specificity that it leaves no room for interpretation nor is it void for vagueness merely because situations may exist in which it should not be applied (see, Grayned v City of Rockford, supra, at 108-110).
VI
Finally, petitioners claim that the statute violates the free speech provision contained in the State Constitution. Inasmuch as we conclude the statute does not unconstitutionally abridge petitioners’ Federal rights, we are obliged to examine the State Constitution to determine whether it provides greater protections
(see, Town of Islip v Caviglia,
New York’s Free Speech Clause is embodied in article I, § 8. It contains language that is more expansive than its Federal counterpart and we have at times interpreted it in a manner that is more protective of free expression than the First Amendment to the Federal Constitution
(see, e.g., O’Neill v Oakgrove Constr.,
In sum, we find "Stranger in Two Worlds” is a publication subject to the provisions of
Accordingly, the order of the Appellate Division should be affirmed, with costs.
Chief Judge Wachtler and Judges Alexander, Hancock, Jr., and Bellacosa concur; Judges Kaye and Titone taking no part.
Order affirmed, with costs.
Notes
. As such, the statute is but another manifestation of the constitutionally imposed obligation of the State and its subdivisions to aid the needy (
. The statute’s purpose is to compensate crime victims not to protect their sensibilities or those of the public by restricting offensive speech
(cf., Texas v Johnson,
. The Federal statute is found in
Respondents’ brief identifies the following States as having similar laws: Ala Code §§ 41-9-80 — 41-9-84; Alaska Stat § 12.61.020; Ariz Rev Stat Annot § 13-4202; Ark Stat Annot § 16-90-308;