the last conclusion
ri...@marathonent.com
to the CA Supreme Court. This brief, the answer to the interested
parties brief, signals the end of this phase of the action. All
that's left is oral arguments and the ruling...
Both the instant and interested Parties acknowledge that the
original impetus for the creation of the TAA was to have a single set
of statutes that would incorporate both 'talent' and 'booking'
agents. All parties further acknowledge that the Legislature
accomplished this objective by eliminating the regulated career
counseling responsibilities, replacing it with a definition for those
who exclusively procure.
However, for Blasi and its Amici to prevail, this Court must
accept assumptions that defy common sense: that making the
responsibility of procurement exclusive was meaningful, but the
simultaneous removal of the career counseling responsibilities was
meaningless. If those who did not counsel were found to be outside of
the TAA until that responsibilities of advising, counseling and direct
were removed, the occupation whose primary responsibilities are to
advise counsel and direct are not subject to current regulation after
the definition of the regulated occupation removed them.
More than common sense, the legislative history shows a clear
intent by the Legislature to exempt personal managers: "[t]he fact
that the Legislature chose to omit a provision from the final version
of a statute which was included in an earlier version constitutes
strong evidence that the act as adopted should not be construed to
incorporate the original provision." Beverly v. Anderson Supra citing
Central Delta Water Agency v. State Water Resources Control Bd. (1993)
17 Cal.App.4th 621, 634.
Perhaps most compromising to the Blasi Amici's contentions is their
reliance on the 1985 Report of the California Entertainment
Commission. Whether only the recommendations, the recommendations and
conclusions, or if the recommendations, conclusions and discussion of
the Report are all deemed legislative is irrelevant; the CEC's
conclusion that "the industry would be best served without the
imposition of civil or criminal sanctions for violations of the
Act," (CEC at 24) and discussions about "the inherent inequity" of
"subjecting one to" laws "so unclear and ambiguous," (CEC at 25) and
noting how "there is no justification for licensing personal manager,"
the Amici is compromised under any of the above considerations. More
important, as the CEC left the two statutes relevant to TAA licensing
exactly as they found them, the Commission has zero value in
determining the Legislature's true intentions why those statutes exist
as they do.
Finally, the administrative code of regulations limiting state talent
agency licenses to California residents ["States cannot require an out-
of-state firm 'to become a resident in order to compete on equal
terms.'" Halliburton Oil Well Cementing Co. v. Reily (1963) 373 U.S.
64, 72] and the Act's prohibiting in-state talent representatives from
utilizing out-of-state representatives ["We have 'viewed with
particular suspicion state statutes requiring business operations to
be performed in the home State that could more efficiently be
performed elsewhere.'" Pike v. Bruce Church, Inc. (1970) 397 U. S.
137, 145 provides indisputable evidence that the TAA interferes with
interstate commerce.
Together, there is an overwhelming litany of facts, evidence,
doctrine, legal principles and considerations of equity and justice
reinforcing how the enforcement of the licensing of talent agents, in
particular as it is applied to the occupation of personal management,
is devoid of legal foundation, opposite to the clear legislative
history and intent, and fraught with constitutional due process and
interstate commerce maladies.
Thousands of personal management professionals living in
California and thousands more talent representatives residing outside
of this State now look to this Court for guidance on their futures.
For the former, a ruling against Marathon will confirm their worst
fear: that they have devoted their lives to a profession that is for
all intent and purpose unlawful. The rest hope for a ruling
delineating how the application of the licensing provision of the
Talent Agencies Act is a clear infringement of interstate commerce.
An opposite determination may herald the end of talent representatives
working to find their clients employment in this State.
In the end, the bottom line contention of the Blasi Amici
is that "Marathon's position, if accepted by this Court, would
encourage the very conduct the Act was designed to prohibit." (ATA
Brief at 4-5) That is just not so. The original rationale of the Act
was to keep young ingénues just arriving in California from being
lured into prostitution by the owners of the downtown burlesque halls
and the bordello is the hills masquerading as employment counselors.
In contrast, Marathon's efforts, not coincidentally done in
conjunction with and at the request of a talent agency, resulted in
Ms. Blasi's starring in a long-running television series. Far from
being lurid, Marathon's labors provided Blasi, a virtual unknown
before signing on with the management firm, with the kind of fame and
fortune she desired; the management firm had, just as Blasi had hoped,
helped her dreams become goals and finally reality. It is now time
for Marathon, like all personal managers in similar circumstances, to
know it has the right to be paid for its labors.