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rick siegel

I spearheaded the suit as the president of Marathon, and let me tell you: the Marathon Court blew it. As they wrote,
“In 1982, the Legislature provisionally amended the Act to impose a one-year statute of limitations, eliminate criminal sanctions for violations of the Act, and establish a “safe harbor” for managers to procure employment if they did so in conjunction with a licensed agent. (Former § 1700.44, as enacted by Stats. 1982, ch. 682, § 3, p. 2815; Entertainment Com. Rep., supra, at pp. 8, 38–39.) It subjected these changes to a sunset provision and established the 10-person California Entertainment Commission (Entertainment Commission), consisting of agents, managers, artists, and the Labor Commissioner, to evaluate the Act and “recommend to the Legislature a model bill.” (Former §§ 1701–1704, added by Stats. 1982, ch. 682, § 6, p. 2816, repealed by its own terms Jan. 1, 1986.)
In 1986, after receiving the Report, the Legislature adopted its recommendations, which included making the 1982 changes permanent and enacting a modest series of other changes. (Stats. 1986, ch. 488, pp. 1804–1808; Entertainment Com. Rep., at pp. 22–34; Sen. Com. on Industrial Relations, Analysis of Assem. Bill No. 3649 (1985–1986 Reg. Sess.) as amended Apr. 15, 1986, p. 5 [bill would implement Entertainment Commission's recommendations ‘in full’].) So the Act has stood, with minor modifications, for the last 20 years.”

Any doubt that the Legislature intended to remove the Commission’s statutory authority to penalize is silenced by examination of the CEC’s 1986 Report. Specifically speaking to whether the temporary removal of the sanctions be reinstated, “The Commission recommends that the criminal sanctions which were removed by AB 997, not be restored to the Act,” basing its decision on their conclusion “that the industry would be best served without the imposition of civil or criminal sanctions of the Act.”

The Report’s discussion explains the Commission’s reasoning for their recommendation for the permanent removal of penalties; that there is… “an inherent inequity–and some question of constitutional due process–in subjecting one to criminal sanctions in violation of a law which is so unclear and ambiguous as to leave reasonable persons in doubt about the meaning of the language or whether a violation has occurred. [¶] ‘Procure employment’ is just such a phrase. While a majority of the Commission believes that there should be no unlicensed activity, … the uncertainty of knowing when such activity may or may not have occurred at pain of criminal punishment has left the personal manager uncertain and highly apprehensive about the permissible parameters of their daily activity.” (Id. at p. 25; bolding added.)

To repeat for clarity: finding that there were clear issues of substantive due process in enforcing penalties for violations that reasonable people where “in doubt” as to “whether a violation had occurred,” the 1982 CA. Entertainment Commission recommended that the conditionally removed penalties for unlicensed procurement be permanently extinguished, and as noted by the Marathon Court, their recommendation was adopted and implemented with the passage of Assembly Bill No. 3649 and the bill remains today devoid of a penalty provision.

The implication of that action is inarguable: once the Act’s penalty statute was taken out of the Act, the Labor Commission’s statutory authority to mete out penalties was likewise removed.

“Elementary notions of fairness enshrined in this Court’s constitutional jurisprudence dictate that a person receive fair notice not only of the conduct that will subject him to punishment but also of the severity of the penalty that a State may impose.” (BMW of America v. Gore (1995) 517 U.S. 559, 574.)

“Engrained in our concept of due process is the requirement of notice. Notice is sometimes essential so that the citizen has the chance to defend charges. Notice is required before property interests are disturbed, before assessments are made, before penalties are assessed.” (Wolff v. Fox (1977) 68 Cal. App. 3d 280 citing Lambert v. California (1957) 355 U.S. 225, 228.)

Trying to assign a penalty without statutory guideposts “is a task outside the bounds of judicial interpretation” and can be solved only by Congressional action. “We could do no more that make speculation law.” (U.S. v. Evans (1948) 333 U.S. 483, 495.)

Evans had been indicted “for concealing and harboring five named aliens in alleged violation of 8. Before trial appellee moved that the indictment be dismissed on the ground that it did not charge a punishable offense. He argued that although the statute provided for two different crimes, one landing or bringing in unauthorized aliens, and the other concealing or harboring such aliens, punishment was prescribed in terms only for the former crime. The District Court accepted this argument and granted the motion to dismiss.” (Id.)

The dilemma: despite all parties’ agreeing that Congress meant to make criminal and to punish acts of concealing and harboring” illegal aliens, trying to penalize without statutory direction “is a task of judicial interpretation” and therefore affirmed the lower court’s determination that no penalty can be meted out: “It is better for Congress, and more in accord with its function, to revise the statute than for us to guess at the revision it would make. That task it can do with precision. We could do no more than make speculation law.” (Id.)

Part of the Evans’ Court’s dilemma was that “the legislative history is neither clear nor greatly helpful in ascertaining which of the possibilities calling for punishment was the one Congress contemplated.”

As noted above, the Talent Agencies Act’s legislative history has no such ambiguities. And far from the CEC’s recommendations taken surreptitiously or over his objections, then-State Labor Commissioner C. Robert Simpson, Jr. was one of the ten members of the CA. Entertainment Commission who recommended that the penalty for unlicensed procurement be permanently extinguished.

Those actions, following Evans, BMW and Lambert, unambiguously left procurement of employment for artists lawful, irrespective of whether the procurer is licensed: if there is no notice of the severity of penalty, there can be no penalty imposed. These legislative actions took away the Commission’s statutory authority to embroil anyone into a controversy, no less mete out punishments or disturb contractual rights. Any Labor Commission precedent that meted out penalties was meted out without consideration of this issue and in fact was an assigned penalty without statutory guidelines, and as such should not be followed.

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