 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Seres v. Lerner12/21/2004
years, and would make that income available to all of the author's creditors, despite the fact that the statute of limitations for this minor incident had long since run. That the Son of Sam law can produce such an outcome indicates that the statute is, to say the least, not narrowly tailored to achieve the State's objective of compensating crime victims from the profits of crime.
We conclude that the express application of the Nevada statute to the "person who committed the felony" suffers from the same defect as identified in Simon & Schuster and Opinion of the Justices. First, NRS 217.007 provides no definition of "the person who committed the felony." Second, the statute contains no conviction qualifier. This said, in light of the Legislature's attempts in the recodification of NRS 217.007 to comply with Simon & Schuster, we could narrowly construe this statute and limit its scope to convicted felons. However, this construction would only address one of the overinclusivity problems identified in Simon & Schuster and its progeny. Accordingly, a narrow construction limiting NRS 217.007 to publication proceeds generated by convicted felons would not rescue the measure from its primary infirmity-overinclusiveness.
Argument by the Attorney General that NRS 217.007 simply extends the statute of limitations governing actions in tort
The Attorney General argues that NRS 217.007 simply extends the statute of limitations otherwise applicable to tort claims with a limitation on damages, and thus creates no new or separate cause of action. From this, the Attorney General reasons that the measure is content neutral and creates no overbreadth problems under the First Amendment. We disagree.
Certainly, to the extent that a victim may bring a traditional cause of action for personal injury , property loss or wrongful death within the applicable statute of limitations for such matters, Nevada levy and execution laws concerning the felon's misconduct, provide for execution against proceeds from publications, along with any other nonexempt assets. Thus, aside from the possibility that recoveries under NRS 217.007 may exceed the value of judgments rendered in connection with traditional tort-based actions, the provision adds nothing to the remedies previously available to victims, in terms of assets subject to execution upon judgments. Accordingly, to the extent that a claimant would file suit under NRS 217.007 before expiration of the statutes of limitations cited within it, subject to the single exception noted immediately above, the provision is a nullity for First Amendment purposes.
However, to the extent that NRS 217.007 operates after expiration of a particular limitation period, it creates a separate cause of action that limits victims to recovery of a felon's publication proceeds. First, the statutory cause of action arises upon the felon's entitlement to proceeds from published material, not the actual harm inflicted upon the victim. Second, awards under this statute would not be restricted in any way by the law of damages governing traditional causes of action in tort. More particularly, although damages awarded under NRS 217.007 are limited to publication proceeds, such an award could exceed a tort-based damage award. Going further, while NRS 217.007(1) stipulates that the victim may commence any action specified in NRS 11.190, NRS 11.215 or NRS 207.470 upon the felon's entitlement to publication proceeds, this language only defines the nature of a victim's liability claim. In short, entitlement to proceeds stimulates the viability of the new cause of action; thus, NRS 217.007 does not renew or revive a wrongful death claim otherwise barred by the st
Page 1 2 3 4 5 6 7 8 Nevada Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|