BILL ANALYSIS
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UNFINISHED BUSINESS
Bill No: SB 209
Author: Burton (D), et al
Amended: 9/1/99
Vote: 21
SENATE JUDICIARY COMMITTEE : 8-0, 3/16/99
AYES: Burton, Escutia, Haynes, O'Connell, Peace, Sher,
Wright, Schiff
NOT VOTING: Morrow
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
SENATE FLOOR : 30-1, 4/5/99
AYES: Alarcon, Baca, Bowen, Brulte, Burton, Chesbro,
Costa, Dunn, Figueroa, Hayden, Haynes, Johannessen,
Johnson, Karnette, Kelley, Knight, Lewis, McPherson,
Monteith, Mountjoy, O'Connell, Ortiz, Perata, Polanco,
Poochigian, Schiff, Sher, Solis, Vasconcellos, Wright
NOES: Morrow
NOT VOTING: Alpert, Escutia, Hughes, Johnston, Leslie,
Murray, Peace, Rainey, Speier
ASSEMBLY FLOOR : 75-1, 9/3/99 - See last page for vote
SUBJECT : Deceased celebrities: commercial use of image
SOURCE : Screen Actors Guild
Mrs. Fred Astaire
DIGEST : This bill enacts the Astaire Celebrity Image
Protection Act to provide greater protections to the heirs
CONTINUED
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of deceased celebrities by broadening the right to
publicity that is descendible to them, as specified.
Assembly Amendments :
1.Recast provisions to qualify the existing types of uses
that do not require consent of the heirs.
2.Delete provisions giving standing to bring an action if
the acts giving rise to the action occurred in
California.
3.Names the act the Astaire Celebrity Image Protection Act.
ANALYSIS : The use of a person's name or image without
consent for commercial purposes has long been recognized as
an actionable invasion of privacy at common law. For
example, one may not falsely claim a celebrity endorses a
product, and generally one may not market products which
bear the likeness of a celebrity without the person's
permission. The Legislature codified this right in 1971.
(AB 826 [Vasconcellos] Chapter 1595, Statutes of 1971.) In
1984 the Legislature extended the law by clarifying that
the right to exclusive benefit from likeness is a property
right, and is therefore descendable. This change allowed
heirs to bring enforcement actions against use of their
deceased loved one's name, voice, or likeness, in any
manner, on or in products, or for purposes of advertising
without prior consent. (SB 613 [Campbell) Chapter 1704,
Statutes of 1984.)
Recently, a court interpreted the section of law dealing
with deceased celebrities, Astaire v. Best Film & Video
(9th Cir. 1997) 116 F.3d 1297. In the Astaire case, Mrs.
Fred Astaire sued the producers of a series of video dance
lessons featuring movie clips of Fred Astaire dancing.
Mrs. Astaire claimed the use of the movie clips was a
commercial appropriation of his image. Mrs. Astaire won
the case at trial, where the court found the "how to" video
to be an unauthorized product covered under Civil Code
Section 990. However, the Appellate Court reversed this
finding, holding that the statutory defense for
unauthorized use of likeness in "film" contained in Civil
Code Section 990 (n) protected Best Video from liability.
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1.Existing law provides:
--Any person who uses a deceased personality's name, voice,
signature, photograph, or likeness, in any manner, on or
in products, merchandise, or goods, or for purposes of
advertising or selling, or soliciting purchases of,
products, merchandise, goods, or services, without prior
consent.
--The prohibition, however, as set forth in subdivision (n)
of the statute, does not apply to the use of a deceased
personality's name, voice,
signature, photograph, or likeness, in any of the
following instances:
(A) A play, book, magazine, newspaper, musical
composition, film, radio or television program, other
than an advertisement or commercial announcement not
exempt under paragraph (4).
(B) Material that is of political or newsworthy value.
(C) Single and original works of fine art.
(D) An advertisement or commercial announcement for a use
permitted by paragraph (A), (B), or (C).
The bill titled the Astaire Celebrity Image Protection Act:
1.Moves Civil Code Section 990 which deals with commercial
use of one's image after death to Section 3344.1 which
deals with commercial use of one's image during life.
2.Qualifies the existing types of uses of a deceased
celebrity's name, voice, signature, photograph or
likeness (image) which do not require consent of the
heirs, by stating that use in a play, book, magazine,
newspaper, musical composition, audiovisual work, radio
or television program, single and original work of art,
work of political or newsworthy value, or an
advertisement or commercial announcement for any of these
works does not require the consent of the heir if the
work is fictional or nonfictional entertainment, or a
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dramatic, literary, or musical work.
3.Provides that the use of a deceased celebrity's image in
a manner which otherwise would require the consent of an
heir of the deceased celebrity shall not be exempt from
the consent requirement simply because the use is
contained in a protected medium in a work which is
fictional or nonfictional entertainment, or a dramatic,
literary, or musical work. Such use shall not be exempt
from the consent requirement "if the claimant proves that
the use is so directly connected with a product, article
of merchandise, good, or service as to constitute an act
of advertising, selling, or soliciting purchase of that
product, article of merchandise, good, or service by the
deceased personality."
4.Extends, from 50 to 70 years after the death of celebrity
(consistent with recent changes to federal copyright
law), the time in which a person may be subject to
liability for the use of a deceased celebrity's image,
without consent, on or in products, merchandise or goods,
or for purposes of advertising or selling, or soliciting
purchases of, products, merchandise, goods, or services.
5.Requires the Secretary of State to post on the Internet
its registry of persons claiming to be a
successor-in-interest to the rights of a deceased
celebrity or a registered licensee of such rights.
6.Provides for the application of this California law if
the liability, damages or other remedies sought arise
from acts occurring directly in California. Acts giving
rise to liability are limited to the use, on or in
products, merchandise, goods, or services, or the
advertising or selling, or soliciting purchases of,
products, merchandise, goods, or services prohibited by
this bill.
Senate Judiciary Committee analysis provides the following
comment on Civil Code Section 990: Underlying policy
Civil Code section 990 provides for a descendable right
of publicity for those heirs and other interested persons
who file a Registration of Claim as Successor-In-Interest
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with the California Secretary of State. According to the
Secretary of State's office, an estimated 700 persons
have registered under this provision.
The legislative history of section 990 makes clear that
the law is "intended to address circumstances in which
(a) commercial gain is had through the exploitation of
the name, voice, signature, photograph, or likeness of a
celebrity or public figure in the marketing of goods or
services, or (b) a celebrity or public figure is
subjected to abuse or ridicule in the form of a marketed
product. Such goods or services typically involve the
use of a deceased celebrity's name or likeness, e.g. on
posters, T-shirts, porcelain plates, and other
collectibles: in toys, gadgets and other merchandise; in
look-alike services." Assembly Committee On Judiciary,
1983-84 Reg. Sess., Report on SB 613 (Campbell) As
Amended 6/12/84.
In the siminal case of Zacchini v. Scripps-Howard
Broadcasting (1977) 97 S. Ct. 2849, the Supreme Court
upheld against first amendment challenge a state right of
publicity claim brought by an entertainer. In so doing,
the court laid out the economic rationale for right of
publicity cases as follows:
"The State's interest in permitting a 'right of
publicity' is in protecting the proprietary
interest of the individual in his act in part to
encourage such entertainment. The State's
interest is closely analogous to the goals of
patent and copyright law, focusing on the right
of the individual to reap the reward of his
endeavors and having little to do with protecting
feelings or reputation? The rationale for
[protecting the right of publicity] is the
straight-forward one of preventing unjust
enrichment by the theft of good will. No social
purpose is served by having the defendant get
free some aspect of the plaintiff that would have
market value and for which he would normally pay.
Kalven, Privacy in Tort Law -- Were Warren and
Brandeis Wrong?, 31 Law & Contemp. Prob. 326, 331
(1966).? The economic philosophy behind the
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clause empowering Congress to grant patents and
copyrights is the conviction that encouragement
of individual effort by personal gain is the best
way to advance public welfare through the talents
of authors and inventors in 'Science and useful
Arts.' Sacrificial days devoted to such creative
activities deserve rewards commensurate with the
services rendered." Zacchini, supra. (See also
Lugosi v. Universal Studios (1979) 25 Cal. 3d
813; Guglielmi v. Spelling-Goldberg Productions
(1979) 23 Cal.3d 860.)
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 3/30/99) (Unable to re-verify at time
of writing)
Screen Actors Guild (co-source)
Mrs. Fred Astaire (co-source)
California State Labor Federation, AFL-CIO
Consumer Federation of California
Service Employees International Union
A Minor Consideration
Charlton Heston
Jack Lemmon
Chuck Yeager
Muhammad Ali
Bob and Dolores Hope
Michael Douglas
Lucy Arnez
Princess Yasmin Aga Khan
James Taylor
Harry Belafonte
Phyllis Diller
Fred Savage
Park Overall
Janet Leigh
Peter Coyote
Esther Williams Bell
Edward Bell
Michael Deluise
Efrem Zimbalist Jr.
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Stanley Donen
Eva Marie Saint
Ann Margret
Mellissa Joan Hart
Susan Blakely
Steven Hill
K Callen
Marsha Mason
Barbara Bosson
Kevin Kilner
Jordan Baker-Kilner
Rob Morrow
Gloria Allred
Edward Asner
Melissa Gilbert
Lisa Hartman Black
Steve Allen
Jane Meadows (Allen)
Angela Lansbury
Bruce Boxleitner
Veronica Hamel
Tracy Marrow p/k/a Ice T
Barbara Bain
Ron Shelton
Patrick Stewart
Alexandra Elizebeth Belcarra Paul
Lainie Kazan
Bruce McGill
Helen Hunt
Hank Azaria
Madeline Kahn
Hal Holbrook
Pamela Reed
Pat Harrington
Jane Alexander
Patricia Richardson
Rod Steiger
Sandra Bullock
Clint Black
Stacy Keach
Sally Field
Patrick Macnee
Laura Dern
Tom Cruise
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Sara Karloff
Mark Roesler, Esq., Chairman of CMG Worldwide
John Lavely, Esq., Lavely and Singer
Mark Lee, Esq., Manatt, Phelps and Phillips, LLP
Roger Armstrong, Esq., Manatt, Phelps and Phillips, LLP
Thomas White, Artists Rights Consultant
Richard Masur
Nancy Allen
James Belushi
Allen Burry
Jack Carter
Nancy Cartwright
Dick Clark
Susan Clark
Glenn Close
Cindy Crawford
Michael Crawford
Hume Crony
Bonnie Bartlett Daniels
William Daniels
Ted Danson
Ossie Davis
Ruby Dee
Bodhi Elfman
Jenne Elfman
Bill Erwin
Laurence Fishbume
Brad Garrett
Melanie Griffith
Lauren Holly
James Earl Jones
Alex Karras
Nicole Kidman
Jack Lemmon
Victoria Mahairas
Connie McCauley
Bruce McGill
Donna Mills
Mary Tyler Moore
David Morse
Jack Nicholson
Paul Peterson
Paula Poundstone
Alan Rachins
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Brian Reed
Rob Reiner
Tim Robbins
Julia Roberts
Jeanne Russell
Susan Sarandon
Martin Scorsese
Jane Seymour
Brooke Shields
Tom Selleck
Roger Smith
Phoebe Snow
Mary Steenburgen
Patrick Stewart
Barbara Streisand
Patrick Swayze
Lilly Tomlin
Robert Townsend
OPPOSITION : (Verified 3/30/99) (Unable to re-verify at
time of writing)
Motion Picture Association of America
Walt Disney Company
Universal Studios
Twentieth Century Fox
Metro-Goldwyn-Mayer Studios, Inc.
Columbia Pictures
ABC
NBC
HBO
Alliance of Motion Picture and Television Producers
Spelling Entertainment Group, Inc.
Time Warner
Roll International Corporation
Association of American Publishers, Inc.
California Newspaper Publishers Association
Recording Industry of America
California Broadcasters
American Civil Liberties Union
American Film Marketing Association
Independent Producers Association
David Horowitz
The Media Coalition
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WB Television Network
Magazines Publishers of America, Inc.
ARGUMENTS IN SUPPORT : The Screen Actors Guild states,
"We are living in an era when images of prominent artists,
living and deceased, are used to sell and promote an
increasing variety of products in every conceivable medium
at a time when advancing technology provides the means for
virtually unlimited manipulation of images and their
instantaneous distribution. When image thieves step in,
there's no limit to the extent of the damage that can be
done to the integrity of (an artist's) career and vision.
To the extent the misuse is distributed widely, the damage
done is irreparable, even if owners of the rights win an
exhaustive lawsuit. Not only do authorized users suffer by
this theft, but owners of the rights lose important
compensation, on which many heirs -- widows, children and
others -- depend on to live."
The author asserts that there are too many loopholes in
existing law which allow persons to wrongfully profit from
a celebrity's hard work and deprive their heirs of a
rightful inheritance. The author points to the Astaire
decision as an example of the need for this bill saying,
"(T)he court limited the application of section 990,
remarkably finding that Best Video's use of Mr. Astaire
dancing in introductory film clips of a dance instruction
video was not a commercial appropriation of his image.
This kind of exploitation is exactly what 990 was designed
to prevent, not protect. If Best had put Mr. Astaire's
image on a T-shirt, the court would have prevented the
marketing of the product. Because the image of Mr. Astaire
dancing was used in a product which took the form of a
video, the court reasoned that the 'film' exception under
CC 990(n) protected the use. The problem with this
analysis is that the court has elevated form over content".
According to the author, the reading of section (n) by the
Astaire court creates "a situation where a collection of
iron-on appliques bearing the likeness of an athlete or
movie star would be exempt from the statute simply because
the form of the product appeared as a 'book' and books are
on the section (n) list of exemptions. Another example:
take a magazine comprised of nothing but photographs of
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River Phoenix. The law would not allow the photographs
alone to be sold; however by merely changing the form from
a photograph into a series of photos in a 'Magazine,' the
vendor could skirt the law." This is not mere conjecture,
the author asserts, as the Astaire decision has already
been cited by at least one court applying Civil Code
Section 990 as narrowing the law. ( Comedy III Productions,
Inc. v. Gary Saderup, Inc., et al (1998) 68 Cal. App. 4th
744.)
The Consumer Federation of California writes in support of
the bill to say, "One of the strongest interests consumers
have is the use over their own name, voice, signature,
photograph and likeness. This bill would benefit consumers
by providing additional protection against unauthorized
commercial use after a personality's death." Other support
comes from victims of crime who are concerned about the
unauthorized use of victims of crime as portrayed in true
crime dramas, and the AFL-CIO who support the rights of
creative artists to enjoy the fruits of their labor.
In the Astaire litigation, the author points out, many of
the opponents to SB 209 joined in an Amici Curiae Brief
filed in the appeal. In that brief, CBS, Fox, NBC and
Warner Bros. admitted that "(E)ven if the Legislature had
not drafted subsection (n), Section 990 still would have to
be read to exempt all expressive works from liability in
order to accommodate First Amendment concerns. Similarly,
Cal. Civ. Code Section 3344 -- which protects the right of
publicity of living individuals -- also must be read to
immunize expressive works from right of publicity claims,
even though the Legislature did not draft an exemption
parallel to Section 990(n)." Brief for Amici Curiae
(cite).
Finally, the author reminds the committee that Section 990
has a "loser pays" provision which is rare in a statutory
tort claim of action. This provision declares that "The
prevailing party or parties in any action under this
section shall be entitled to attorney's fees and costs."
This provision is itself a strong deterrent against
frivolous suits being filed, the author asserts.
The bill moves the contents of Civil Code Section 990,
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which contains the prohibition against commercial
appropriation of likeness of deceased personalities, to
Civil Code Section 3344, which contains the prohibition
against commercial appropriation of likeness of living
persons. It is not the author's intention to change the
nature of the right protected under Section 990 from a
property right to a personal right in moving this language
to Civil Code Section 3344.1, he states, "(H)owever, there
must be a recognition that the use of image protection
contained in Section 990 is a hybrid growing out of the
right of privacy contained in Civil Code Section 3344."
The author asserts that this move is, therefore, "common
sense" bringing the two appropriation of likeness sections
of the code together. This section of the bill has drawn
no opposition.
Lastly, the bill requires the Secretary of State to file
the Section 990 registry of heirs upon the World Wide Web.
The author believes that this will facilitate legitimate
use of deceased personality images, by lessening the burden
upon those seeking to obtain a use license. The Secretary
of State's office was in the process of creating the
Internet database prior to introduction of this
legislation, and agreed to expedite the process voluntarily
in response to SB 209. This section of the bill has drawn
no opposition.
ARGUMENTS IN OPPOSITION : NOTE: The arguments in
opposition also contain counter points by the author
relative to various provisions of the bill.
Opposition concerns :
(A) Constitutional use of celebrity images
SB 209 would delete the list of defenses contained in
section (n) of Civil Code Section 990, and replace it
with "This section shall not apply to the use of a
deceased personality's name, voice, signature,
photograph, or likeness, to the extent the use is
protected by the constitutional guarantees of freedom
of speech or freedom of the press." Although this
provision of SB 209 is a "work in progress," and the
author continues to work with opponents to address
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concerns, opposition to the bill in its current form
has been placed on the record.
While there are many opponents to this proposal, the
basis of the opposition is uniform: the list of
defenses grants certainty and its abolition will invite
litigation, thereby chilling free speech. Universal
Studios sums up this opposition well when they write,
"California's post mortem right of publicity statute is
designed to allow the heirs of deceased persons to
control the use of their names and likenesses in
advertising and on consumer products. It is not
designed to stop the creative community from portraying
or referring to celebrities in expressive works, such
as the portrayal of deceased celebrities in 'Forrest
Gump.' However, if works such as films, songs and
books are not specifically exempted from liability and
instead writers, artists, and producers are left to
guess about whether a reference or portrayal is
protected by the first amendment, creative expression
will be stifled."
To this line of opposition, the author responds by
drawing attention to Civil Code Section 3344, the
sister appropriation of likeness statute for living
celebrities. The author states that, "the law which
prohibits unauthorized appropriation of living
celebrity likeness has no laundry list of exceptions as
is found in Section 990, and yet the studios and
publishers find the standard of behavior in that
section sufficiently clear. In Section 990 as with
3344 the analysis of unauthorized use of an image on
porcelain plates, posters, pictures, plays and movies
would all be the same. All this change in law would do
is allow the heirs of celebrities to be accorded the
same rights as the celebrity enjoyed when alive."
The courts have recognized that certain exceptions from
the right of publicity cases must be made to
accommodate free speech. For instance a partial list
includes the following: "No cause of action may lie
for the publication of matters within the public
interest, which rests upon the public's right to know
and the freedom of the press to tell it?" Dora v.
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Frontline Video, Inc. , (1993) 15 Cal. App. 4th 536; nor
for advertisement by newspaper which reproduces
newsworthy event for purpose of promoting itself.
Montana v. San Jose Mercury News, Inc ., (1995) 34 Cal.
App. 4th 790. Whether exhibited in theaters or on
television, a film is a medium which is protected by
the constitutional guarantees of free expression.
(Citations omitted.) This protection extends to
encompass fictional and biographical works."
Gulglielmi v. Spelling-Goldberg Productions supra. In
Bery v. City of New York (2d Cir. 1996) 97 F.3d 689,
the Court of Appeals opined that "Visual art is as wide
ranging in its depiction of ideas, concepts and
emotions as any book, treatise, pamphlet or other
writing, and is similarly entitled to full First
Amendment protection." In Time v. Hill (1967) 87 S.
Ct. 534, the court recognized that a playwright is
protected by the First Amendment in creation of a work,
and may take artistic license with the facts in so
doing.
(B) Extension of protection for an additional 20 years
Columbia Pictures opposition to this provision is
representative of the opposition of the studios. They
write, "Extension of the right of publicity from 50 to
70 years further perpetuates the chilling effect of SB
209 by reaching back into history and removing from
public view or subjecting to private control another 20
years worth of historical figures." Adds MPAA,
"Proponents of SB 209 maintain that the recent
extension of the term of copyright protection by 20
years justifies a parallel extension of the right of
publicity. But likening publicity to copyright is like
comparing apples to oranges."
The Screen Actors Guild (SAG) believes that the section
of the bill which extends the term of protection to 70
years after the death of the celebrity is a necessary
recognition of the "increased longevity of the
personalities and their heirs; the trend toward rearing
children later in life; unprecedented growth in
technology over the last 20 years including the advent
of digital media, the internet and other information
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infrastructures, which have greatly enhanced the
marketability of creative works, and the growing
international movement towards the adoption of a longer
term for intellectual property."
The legislative history shows that the original 50-year
term of protection in the current statute was drafted
to mirror the term of protection provided in federal
copyright law. The likeness appropriation law
corollary to copyright law was made at the behest of
the movie studios, among others. Through the federal
Copyright Term Extension Act (CTEA), the 50-year
standard has now been increased to cover a 70-year
term. This change in the law at the federal level was
strongly supported by the studios as well as SAG.
(C) Domicile of Decedent
SB 209 would state that "pursuant to the jurisdiction
provided under Code of Civil Procedure 410.10, a
plaintiff has standing to bring an action pursuant to
this section if any of the acts giving rise to the
action occurred in this state, whether or not the
decedent was a domiciliary of this state at the time of
death." CCP 410.10 provides "A court of this state may
exercise jurisdiction on any basis not inconsistent
with the Constitution of this state or of the United
States."
The Motion Picture Association of America typifies
opposition to this provision of the bill saying,
"Basing the choice of law on the decedent's domicile
favors predictability and judicial efficiency. If
forum states apply their own laws it will be impossible
to predict what law will be applied, as there will be
no way of knowing where a suit may be brought?The
proposed revision will certainly lead to wholesale
forum shopping with the results of clogging even
further California's already overcrowded courts." Time
Warner adds their concern that, "SB 209 would allow all
heirs to sue in California under California Law
irrespective of whether the deceased celebrity had any
connection whatsoever with California."
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The author asserts that this clarification of law is
necessary in light of a recent decision, Lord Simone
Cairnes v. Franklin Mint . "Heirs who are not residents
of California may be denied recovery based upon lack of
domicile regardless of the number and quality of events
which occur in our state -- events which would
otherwise give rise to appropriation of likeness
claims. The governmental interest test embodied in our
current long-arm jurisdiction statute provides for
sufficient notice to potential plaintiffs while
protecting the interests of Californians," he states.
ASSEMBLY FLOOR :
AYES: Ackerman, Alquist, Aroner, Ashburn, Baldwin, Bates,
Battin, Bock, Brewer, Briggs, Calderon, Campbell,
Cardenas, Cardoza, Cedillo, Correa, Cox, Cunneen, Davis,
Dickerson, Ducheny, Dutra, Firebaugh, Florez, Floyd,
Frusetta, Gallegos, Granlund, Havice, Hertzberg, Honda,
House, Jackson, Keeley, Knox, Kuehl, Leach, Lempert,
Leonard, Longville, Lowenthal, Machado, Maddox,
Maldonado, Margett, Mazzoni, McClintock, Migden, Nakano,
Olberg, Oller, Robert Pacheco, Rod Pacheco, Papan,
Pescetti, Reyes, Romero, Runner, Scott, Shelley, Soto,
Steinberg, Strom-Martin, Thompson, Thomson, Torlakson,
Vincent, Washington, Wayne, Wesson, Wiggins, Wildman,
Wright, Zettel, Villaraigosa
NOES: Strickland
NOT VOTING: Aanestad, Baugh, Corbett, Kaloogian
RJG:sl 9/5/99 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
**** END ****