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Fasching v. Kallinger

Decided: May 30, 1986.


On appeal from the Superior Court of New Jersey, Law Division, Bergen County.

King, O'Brien and Simpson. The opinion of the court was delivered by King, P.J.A.D.


[211 NJSuper Page 29] This case involves claims for money damages by three surviving next-of-kin of a murder victim against the convicted murderer, and the author and publisher of a book, The Shoemaker, which recounts the murderer's life history and supposedly describes the criminal episode. The actions are based in part on traditional common-law theories of libel, invasion of privacy, and unjust enrichment, and in part on the so-called "Son of Sam Law,"*fn1 designed to prevent certain persons from profiting from the descriptions of criminal events, N.J.S.A. 52:4B-26, et seq.; L. 1983, c. 33, ยงยง 1-8. We granted leave to appeal and cross-appeal in order to determine the propriety of the legal rulings of the Law Division judge dismissing the plaintiffs' common-law claims and upholding their statutory claims as to the author and the publisher. R. 2:2-4. We conclude that this statute was not intended by the Legislature to apply to authors

and publishers. Thus we do not reach any First Amendment issues which would arise if the statute did apply to authors or publishers. Nor do we reach the First Amendment issue as to Kallinger despite the statute's obvious applicability to the convicted murderer, because he suffered no adverse ruling in the Law Division and has no grounds to pursue his appeal here.



The plaintiffs are the parents and sister of Maria Fasching, a New Jersey resident who was murdered by defendant Kallinger on January 8, 1975. He was convicted of her murder in Bergen County on October 12, 1976 and sentenced to life imprisonment. The conviction and sentence were affirmed by this court in an unreported opinion in 1979. The life term was imposed consecutive to a 30 to 80-year sentence then being served at the Huntington Correctional Facility for offenses committed in Pennsylvania. Kallinger is currently held in the Fairview Hospital for the criminally insane in Wayne County, Pennsylvania. Kallinger's wife, Elizabeth, was named as a defendant but never appeared and is not represented on this appeal.

Defendant Flora Schreiber is a professor of English and Speech and Assistant to the President of the City University of New York's John Jay College of Criminal Justice. She is the author of the book, The Shoemaker: Anatomy of a Psychotic, a "psycho-biography of Joseph Kallinger" which is the subject of this litigation. She is also the author of Sybil, a best-selling book about a woman with multiple personalities. Defendant Simon and Schuster, a New York corporation, is the hardcover publisher of The Shoemaker. Defendant New American Library (NAL), a publishing house also from New York, published the book in paperback. The remaining defendant, Paul Giblin, is a member of the bar of this State. He represented Kallinger at his murder trial in Bergen County.


In 1976, Simon & Schuster contracted with author Flora Schreiber with regard to a biography she planned to write on Joseph Kallinger, a Philadelphia shoemaker who had committed two murders in Pennsylvania and the murder in New Jersey in the early and mid-1970's. Under the terms of the contract, Simon & Schuster obtained rights to publish the hardcover edition of the book and to license its publication as a paperback. By separate agreement in 1983, Simon & Schuster granted the paperback license to NAL which published the paperback edition in 1984. Neither Simon & Schuster nor NAL ever contracted directly with the Kallingers.

Prior to contracting with Simon & Schuster, Schreiber had obtained the rights to Kallinger's story through an agreement with Kallinger and his wife. This "Agreement Release" provided that the Kallingers would receive 12 1/2% of any monies received by Schreiber from the publication of the biography. Schreiber attached a copy of the "Agreement Release" to her contract with Simon & Schuster to substantiate her warranty that she controlled the exclusive rights to Kallinger's life story. She received advances of $475,000 and has earned about $75,000 in royalties. The book has not been a commercial success according to the representations of the publisher's counsel. In the course of representing Kallinger, Paul Giblin's legal fees and disbursements totalled $311,888.53. On July 6 and August 1, 1976 Giblin entered into separate contracts with the Kallingers who agreed to assign all rights in the contract with Schreiber to Giblin to be credited toward these expenses.

Pursuant to this assignment, Schreiber forwarded $14,062.52 to Giblin in August 1976. After failing to receive any further payments from Schreiber, Kallingers or Simon & Schuster, Giblin filed suit in June 1983 in Superior Court, Bergen County (Giblin v. Kallinger, et al, Docket No. L-038306-83), seeking enforcement of the assignments. Giblin, Schreiber and Simon & Schuster became parties to a settlement entered on August 8,

1983 whereby Schreiber agreed to pay Giblin 12 1/2% of her net earnings from The Shoemaker until his legal fees and disbursements were paid in full, to provide periodic accounting of those earnings, and to immediately pay Giblin $14,062.50. Notwithstanding this latter provision, it is Giblin's recollection that he received only $12,575 by way of settlement in August 1983. Kallinger himself has received nothing from the book's proceeds.


The Shoemaker, published in hardback in 1983, is a study of the life of defendant Kallinger. The book received some measure of critical acclaim by professionals in the mental health and law enforcement fields. Based upon extensive interviews with Kallinger and upon data provided by family, neighbors, psychiatrists, and other persons who knew him, The Shoemaker follows Kallinger's life from birth to his present incarceration in an institution for the criminally insane. Interspersed throughout the narrative, which is divided into three parts, are the author's observations concerning the impact of Kallinger's lifetime experiences upon his criminal conduct. In "Book 1" (pp. 23-66) Schreiber describes a childhood in which Kallinger is reared by cold and reclusive stepparents who physically and emotionally mistreat him. In "Book 2" (pp. 69-128) she examines his young adulthood, during which Kallinger began to exhibit overt antisocial conduct, including physical abuse of his family and commission of petty crimes. In "Book 3" (pp. 131-272) Schreiber recounts and analyzes Kallinger's adult life. She relates his descent into a personal hallucinatory "Hell" where, she believes, prodded by his invisible double, "Charlie", Kallinger committed burglary, robbery and finally murders, including that of Maria Fasching.

All references to Maria Fasching are contained in one chapter of "Book 3". The chapter's contents may be summarized as follows: In pursuit of a perceived calling to "destroy mankind

through castration," Kallinger invaded a Leonia, New Jersey home, subjected its occupants to numerous abuses and ultimately selected Maria Fasching to act as his "delegate" to perform an act of sexual mutilation on another. When she refused, Kallinger stabbed her to death. The actual description of Kallinger's murder of Maria Fasching appears in the context of this book-length study of a convicted killer and consumes about 13 pages of the 423-page text.


The 1983 Amendment to New Jersey's Criminal Injuries Compensation Act of 1971, N.J.S.A. 52:4B-26 et seq., took effect on January 26, 1983. It is entitled "An Act Concerning Certain Moneys Received by Persons Accused of Crime." Its provisions affect contracts entered into with persons

convicted or accused of a crime in this State or an agent, assignee, beneficiary, conservator, executor, guardian, representative, relative, friend, associate or conspirator of a person convicted or accused of a crime in this State. [ N.J.S.A. 52:4B-26, 28].

If such a contract concerns media "reenactment" of a criminal act or "expressions" of a criminal's "thoughts, feelings, opinions or emotions" regarding a crime, it is declared void unless it contains a provision for payment to the Violent Crimes Compensation Board of monies that would otherwise, by its terms, be owing the person convicted or accused or his agent, assignee, etc. N.J.S.A. 52:4B-26. An accused can gain access to these funds only through court order after a showing that the money will be used for his defense. N.J.S.A. 52:4B-32.

Upon receipt of the funds, the Board must deposit the money into an interest-bearing escrow account. N.J.S.A. 52:4B-28. If an accused person is acquitted, the escrowed funds are to be returned to him "immediately." N.J.S.A. 52:4B-30. If he is convicted, the statute specifies the priorities in which the funds must be expended, including satisfaction of civil judgments of the criminal's victim or the victim's representative, restitution ordered by the court, and satisfaction of other judgment creditors

of the criminal. Any funds remaining in the escrow account are not returned to the criminal but are instead placed with the Board to satisfy claims, filed pursuant to the Criminal Injuries Compensation Act, of other crime victims. N.J.S.A. 52:4B-30.



In his opinion of June 19, 1985 which granted summary judgment dismissing the common-law counts of plaintiffs' amended complaint, the Law Division judge held that no cause of action existed for defamation of a dead person. Since The Shoemaker was published seven years after the victim's death in 1975, he held that the right of privacy died with the person and dismissed that count. Finally, the judge found no unjust enrichment from publication of the book because plaintiffs never expected remuneration from defendants nor did any special relations exist between the parties which would create any expectation of benefits.

In his opinion of July 24, 1985 the judge effectively granted summary judgment to the plaintiffs on the statutory counts of the amended complaint. The judge found that the statute did not inhibit publications about crime in violation of the First Amendment but merely provided "reasonable time, place and manner guidelines in which to publish such accounts of the criminal mind." He also rejected defendants' argument that the statute restricted the press' right of access to information, finding that a criminal who wishes to speak to the media "will speak regardless of any monetary incentives." He found the statute "a reasonable restriction on that portion of speech which causes the convicted criminal or his assigns to profit."

The judge found that even if he did conclude that the statute incidentally burdened expression, it "effectively and narrowly furthered a compelling state interest." He employed the three-prong test ...

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