Opposition Brief — Holy Spirit Ass'n for the Unification of World Christianity v. Molko

No. 88-1600 HOL, JR.

In The

Supreme Court of the United States

October Term, 1988

+

“HRISTIANITY and NEW EDUCATION

DEVELOPMENT SYSTEMS, INC.,

Petitioners,

DAVID MOLKO and TRACY LEAL,

Respondents.

RESPONSE TO PETITION FOR WRIT OF

CERTIORARI TO THE SUPREME COURT OF THE

STATE OF CALIFORNIA

STANLEY F. LEat

KELLY, LEAL & DAVILLA

697 East Remington Drive

sunnyvale, CA 94087

(408) 735-8530

Counsel for Respondent Tracy Leal

May 1, 1989

QUESTION PRESENTED

| As stated by the Supreme Court of the State of Cali-

fornia, the legal question is simply whether a religious

organization can be held liable on a traditional cause of

action in fraud for deceiving non-members in subjecting

themselves, without their knowledge or consent, to coer-

cive persuasion — and whether the church’s conduct

under that theory also gives rise to an action for inten-

tional infliction of emotional distress.

PARTIES TO THE PROCEEDING

All of the parties are listed in the caption.

ii

TABLE OF CONTENTS

Page

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PETITIONERS’ REASONS FOR GRANTING THE

REQUESTED WRIT ARE ILLFOUNDED

——— ieee

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TABLE OF AUTHORITIES

| aye

CA

Abbctt v. Detroit Board of Education, 431 U.S. 209,

234-35 (1977).. 11

Cantwell v. Connecticut, 310 U.S. 296 (1940) 5

Holy Spirit Association for the Unification of World

Christianity v. Harper and Rowe, 420 NYS 2d 56

og EPO rrr Teor | 8

Lewis v. Holy Spirit Association, 589 F. Supp. 10 (D

Meroni v. Holy Spirit Association, 506 NYS 174

App. Div. 1986)

Peterson v. Sorlien, 299 NW 2d 1: M

denied, 450 U.S. 1

Turner v. Unification Church

Supp. 367, Aff’d 602 F. 2d 458

lLInited States Ballard, 322 - -

Warder v. Board of Rege nts 1l@ University r fai

53 NY 2d 186, 423 N.E. 2d 352; 440 NYS 2d 875

(1981).... rey Y

OTHER AUTHORITIES

The Diagnostic and Statistical Manual of Mental

Disorders (3rd Edition) (DSM III) (1980) . ern

STATEMENT

The Unification Church has for a number of years

followed a recruitment scheme in which it depended

upon fraud and coercive persuasion for its success. This

scheme is fairly well known. Young, vulnerable, idealistic

men and women are purposely deceived so as to subject

them, without their consent, to carefully employed coer-

cive persuasion techniques. These include isolating the

recruit, subjecting the recruit to constant surveillance,

preventing communication with anyone except one of the

recruiters, deprivation of any outside information source,

preventing the recruit from any opportunity to reflect,

subjecting the recruit to concocted struggle and confes-

sion sessions and discouraging any questioning by the

recruit. The purpose of all this is, of course, to reduce the

victim to a state where their real capacity to decide and to

act thereon has been effectively destroyed.

The recruitment of Tracy Leal is a classic Moon oper-

ation in deception. She was a 19 year old college student

traveling from her home in the San Francisco Bay Area to

Eureka, California, so as to investigate the possibility of

matriculating at Humboldt State College. This travel was

by bus and necessitated a change of buses at San Fran-

cisco. As she proceeded into the San Francisco bus station

with her backpack on she was the ideal target for the

Moonies who regularly man that station in their recruit-

ment operation. The Moon recruiters claimed to be mem-

bers of an organization called Creative Community

Project. In response to Tracy’s direct questions they

deceived her into believing that their organization had no

religious connection and flatly denied, in response to

Tracy’s question, that they were the Moonies. Under

these circumstances she went with them to their Bush

Street house in San Francisco where she was subjected to

the familiar Moon recruitment procedure. She was show-

ered with attention by other young people while pre-

vented from communicating with other potential recruits,

given a lecture dealing vaguely with social injustice,

shown slides of young people enjoying themselves in a

farm setting, and invited to spend the weekend away

from the bustle of other activities with them on their

property in the country (at Boonville). “In fact, our bus is

leaving right now.” At Boonville the recruits were sub-

jected to a constant unremitting round of activities, under

surveillance which includes being accompanied to the

bathroom, enormous peer pressure to “stay a few more

days,” and all the other mind numbing manipulations for

which the Moonies have become infamous. During the

next three weeks Tracy did twice ask whether or not this

was the Moonie organization. This was twice denied.

Only after her recruiters were satisfied that her ability to

think independently had been adequately impaired was

she informed that indeed this was the Moon organization.

App., 8, 9 and 10.

Tracy Leal remained under the domination and con-

trol of the petitioners for the next approximate four

months. App., 10.

Tracy Leal has, resultingly, brought an action for the

damages she suffered as a result of the fraud committed

by the petitioners and as a result of the intentional inflic-

tion of emotional distress by the petitioners.

The trial court and the California Court of Appeals

concluded that the fraud committed by the petitioners

was in effect cured when Leal stayed with the Unification

Church after learning of its identity. These courts refused

to give consideration to Leal’s proffered evidence that her

staying with the Unification Church was anything other

than voluntary. App., 70 and 109. These courts also recog-

nized no question of fact as to whether or not the scheme

employed by the petitioners was so extreme and outra-

geous so as to support a cause of action for intentional

infliction of emotional distress.

The Supreme Court of the State of California in a

decision concurred in by all of the then sitting California

Supreme Court Justices (dissenting Appellate Justice

Anderson was sitting in the place of Justice Edward Pan-

elli who had recused himself) reversed the Court of

Appeals. In essence, the Supreme Court of California

made the following determinations:

1. The defendants can be held liable on a cause of

action in fraud for deceiving the plaintiff into

subjecting herself, without her knowledge or con-

sent, to coercive persuasion;

Nm

It is a question of fact as to whether plaintiff Leal

was subjected to coercive persuasion and if so, if

that coercive persuasion prevented her from vol-

untarily remaining with the defendants after she

learned of their true identity; and

wa

It is a question of fact as to whether the recruit-

ment scheme employed by the defendants consti-

tutes such extreme and outrageous conduct as to

warrant liability in tort for the intentional inflic-

tion of emotional distress.

,’

A

PETITIONERS’ REASONS FOR GRANTING THE

REQUESTED WRIT ARE ILLFOUNDED

Petitioners claim that the decision of the California

Supreme Court is inconsistent with the decisions of this

court. That inconsistency is far from apparent. The princi-

pal case cited by the petitioners is United States v. Ballard,

322 U.S. 78 (1944). In Ballard this court approved the

prosecution of the leader of a religious movement for

mail fraud which was based on claimed beliefs by that

leader which were not sincerely held by him.!

Ballard of course stands for the proposition that the

truth or validity of religious beliefs cannot be scrutinized

in the court. It must be emphasized that the truth or

validity of the theology of the Unification Church is not

called into question by respondent Leal. In no way do

plaintiff’s actions for fraud or emotional distress impli-

cate religious belief. The truth or validity of those beliefs

1 In United States v. Ballard the prosecution petitioned suc-

cessfully to this court for a Writ to the Circuit Court of Appeals

which court had reversed a conviction in the trial court. The

conviction was based on the finding that defendant did not

sincerely believe in the truth of the doctrines forming the basis

for their mailed claims and money solicitations. The U.S.

Supreme Court in effect approved of the actions of the trial

court and remanded for further proceedings the consideration

of the other issues the defendants claimed to exist. The five

Justices concurring in the opinion thus approved of the convic-

tion but did not reinstate it because the defendant had other

constitutional questions which they wanted to present to the

court of appeals. Of interest, three other Justices also approved

of the conviction and wanted merely to reinstate the conviction

in the trial court. There was one dissent.

are in fact irrelevant to the present action. The California

Supreme Court recognized this. App. 22.

The California Supreme Court, in determining that

plaintiffs were entitled to prove that they were indeed

victims of coercive persuasion, recognized that this phe-

nomenon had a basic theory which was set forth in detail

in the case of Peterson v. Sorlien, 299 NW 2d 123 (Minn.)

cert denied, 450 US 1031 (1981).?

‘he California Supreme Court decision is of course

totally consistent with this court’s ruling in Cantwell

Connecticut, 310 US 296 (1940). In Cantwell this court

recognized that while religious belief is absolutely pro-

tected, religious conduct remains subject to regulations

for the protection of society. The court stated at page 306

“Nothing we have said is intended remotely to imply that

under the cloak of religion, persons may with impunity

commit frauds upon the public.” See also Van Schaick v.

Church of Scientology of California Inc., 535 F. Supp. 1125

(1982); Turner v. Unification Church, D.R.I., (1978) 473 F

Supp. 367, 371, Aff’d, 602 F. 2d 458 (1979).

Petitioners quarrel with the California Supreme

Court’s determination that defendants can be held liable

for the damages suffered by respondents resulting from

defendants’ fraud. Respondent of course seeks damages

for physical, mental and emotional distress and all other

In Peterson v. Sorlien the court recognized coercive per

suasion and approved the trial court’s determination that the

plaintiff had no volitional capacity to refuse to consent being

with her parents and others because of the effects of coercive

persuasion worked on her by a “cult.” This court denied

certiorari.

consequential damages appropriate under the proof

adduced at trial. The Supreme Court has appropriately

allowed respondents to proceed with proof that they

were deceived by the defendants’ fraud and to subjecting

themselves, without their knowledge or consent, to coer-

cive persuasion and all other damages which are conse-

quent thereto.3

Petitioners take the position that a fraud cause of

action can seek damages only for out-of-pocket money.

There is no basis for such an assumption. One of the more

significant elements of damages suffered by respondent

Leal was the stress suffered by her by her required prac-

tice of the Moonie art of “heavenly deception” in solicita-

tion of funds and in recruiting prospective members.4

° Plaintiff in her complaint, paragraph 59, alleges “as a

proximate result of the acts of defendants, and each of them,

plaintiff was injured in her health, strength, and activity, sus-

taining injury to her nervous system and person, all of which

injuries have caused plaintiff to suffer extreme and severe

physical pain and mental anguish, all to her general damages,

according to proof.” Plaintiff in paragraph 75 alleges “as a

proximate result of defendant’s fraud and deceit and the facts

herein alleged plaintiff was induced to join the Unification

Church and to work extremely long hours and beg on the

streets for the Unification Church without compensation .. . ”

Plaintiff in her prayer asks for general and compensatory

damages according to proof and special damages according to

proof (as well as punitive damages).

4 In her response to petitioners’ interrogatory number 15

Leal sets forth how she was instructed in heavenly deception:

The regular witnessing process was used on me. We are told to

smile, always be positive and never complain, because to com-

plain is to be selfish. We were toid to size up a person, to look

(Continued on following page)

The assertion by petitioners that respondents have

never claimed that the “persuasion” resulted from any-

thing other than emotionally compelling speech is simply

wholly without foundation. Please see respondent’s state-

ment of facts.

The California Supreme Court decision is carefully

and narrowly constructed. It does not appear to impinge

upon legitimate recruitment activities of any religious

organization. As the Supreme Court recognizes, to

(Continued from previous page)

for people who appeared to be on vacation, away from home.

We were to pay particular attention to people in their late teens

or early twenties, especially those that had a backpack. Tell

them what they would want to hear, we were told. Try to

connect with them in some way. Perhaps you came from the

same city or state, went to the same college, had a common

interest in a sport or hobby. The object was to try to win the

confidence and trust of the individual. We were told to keep

our membership in U.C. a secret. If we were asked about a

religious affiliation we were told to just say that we were

nondenominational in character and that religion was simply

not very important. We were told to stress our “international

character.” That we had many people who “lived with us” who

were from foreign countries. Always stress that the people that

lived in “our house” were professionals and that they all had

outside interests and jobs and that they would get together

around the “supper table” to discuss “shared aspirations and

feelings.” The object was to get the person over to dinner no

matter what. It is called “heavenly deception,” the process by

which one has the right to alter the truth — lie — if that is what it

would take to get someone to dinner and beyond. It is ratio-

nalized as being perfectly fine because we are following a

higher law, the spiritual/God-sent law; all in the name of

saving the person spiritually from himself.

require the defendants to refrain from fraudulent recruit-

ing practices places a burden upon them. In weighing

that burden against the interest of the state in warding off

the “substantial threat to public safety, peace and order”

which this fraudulent conduct poses, the decision is

obvious. App. 25. As the court notes, the burden of

refraining from fraud is not really substantial. “Being

subject to liability for fraud does not in any way or

degree prevent or inhibit church members from operating

in their religious communities, worshiping as they see fit,

freely associating with one another, selling or distributing

literature, prostitizing on the street, soliciting funds, or

generally spreading Reverend Moon’s message among

the population.” App. 25.

Respondents do not ask the courts to inhibit persua-

sive speech — or even to condemn the systematic manipu-

lation of the social and psychological influences which

one might bring to bear on another. Plaintiffs action is for

damages resulting from fraud and intentional infliction of

emotional distress. The systematic manipulation, or coer-

cive persuasion, is significant in this case on the follow-

ing basis:

1. Proof of coercive persuasion vitiates the sup-

posed® voluntary consent by respondent to

remaining with the defendants.

No

The coercive persuasion is part of the outrageous

scheme by which defendants have intentionally

distressed and damaged respondent Leal.

It is true that several courts have considered a

scheme of coercive persuasion used by the Unification

Church. In Holy Spirit Association for the Unification of

World Christianity v. Harper and Rowe, 420 NYS 2d 56

(1979), Unification Church sued for libel over comparison

between Nazi’s and the Reverend Moon. Allegations

were made by the author that the Unification Church

indoctrination techniques for brainwashing were a dan-

ger to American society. In granting judgment for the

author, the court noted the evidence and extensive

research and sources of the author which show the court

“sufficient parallel between the Nazi movement, obe-

dience to a messianic leader, etc., and evidence of brain-

washing,” so that such statements of facts would be

appropriate. Of interest, the court also noted that the

allegations of brainwashing did not involve questioning

of the validity or truth of the beliefs of the Unification

Church theology.

In Warder v. Board of Regents of the University of State,

53 NY 2d 186, 423 N.E. 2d 352; 440 NYS 2d 875 (1981) an

inquiry into whether a particular Unification Church

seminary should be denied a provisional charter, the

court noted an investigation over the seminary using

brainwashing or a policy of deception in fund raising or

recruitment was a proper lawful inquiry. “ .. . petitioners

do not and cannot dispute that the Board could validly

deny a provisional charter to an institution that engages

in ‘brainwashing’ and deception... ”

In the case of Lewis v. Holy Spirit Association, 589 F

Supp 10 (D. Mass. 1983) a member of the Unification

Church brought an action to recover damages arising out

of an alleged breach of contract and based upon the torts

of brainwashing and indoctrination. The District Court

determined that there was no cognizable action on the

basis of an alleged tort of brainwashing and indoctrina-

tion. The court noted that this might form the basis for ar

action for intentional infliction of emotional distress but

it was not sufficiently pleaded.

10

In Meroni v. Holy Spirit Association, 506 NYS 174 (NY

App. Div. 1986) parents brought an action against the

Unification Church for their son’s suicide allegedly the

result of brainwashing. The court determined that the

Unification Church’s recruitment procedure is conduct

for which the church may be held liable. The court how-

ever did determine that from the evidence brought before

it the deceased did participate in the Unification Church’s

activities voluntarily - and thus there was no cause of

action which the parents could prosecute. Also, in Meroni,

there was no allegation of or facts supporting, a claim of

fraud.

Petitioners would obviously wish that the entire phe-

nomenon of coercive persuasion be striken from our soci-

ety and our lives. Respondent wishes as well that the fact

of coercive persuasion did not exist. The fact is that it

does exist and is recognized authoritatively. THE DIAG-

NOSTIC AND STATISTICAL MANUAL OF MENTAL DIS-

ORDERS (3RD EDITION) (DSM III) (1980) recognizes

coercive persuasion:

300.15 ATYPICAL DISSOCIATIVE DISORDER

This is a residual category to be used for individuals

who appear to have a Dissociative Disorder but do

not satisfy the criteria for a specific Dissociative Dis-

order. Examples include trance-like states, derealiza-

tion unaccompanied by depersonalization, and those

more prolonged dissociated states that may occur in

persons who have been subjected to periods of pro-

longed and intense coercive persuasion (brainwash-

ing, thought reform, and indoctrination while the

captive of terrorists or cultists).

As examples of the current recognition of this phe-

nomenon, coercive persuasion was the heart of the

11

defense in U.S. v. Patti Hearst and the heart of the pros-

ecution in People v. Charles Manson. It is thought that,

after Jonestown, most Americans accept the fact and the

danger of coercive persuasion.

It should be noted that it is the respondent, and

similar involuntary recruits, who need constitutional pro-

tection. It is their freedom of thought, of association, and

of religious choice which are deprived through the fraud

and recruitment scheme of the Unification Church.

“The Unification Church cannot seek the protection

of one constitutional amendment while it allegedly

deprives citizens of the protection of other constitu-

tional guarantees.” Turner v. Unification Church,

supra, at 372.

The rights of respondent Leal in this case to free

choice and the free exercise of religion are of paramount

importance to society.

“For at the heart of the First Amendment is the

notion that an individual should be free to believe as

he will, and that in a free society one’s beliefs should

be shaped by his mind and his conscience rather than

coerced ...” Abbott v. Detroit Board of Education, 431

US 209, 234-35 (1977).

The opinion of the Supreme Court of the State of

California in the present case is an excellent carefully

considered determination worthy of that prestigious

court. The Petition for Certiorari should be denied.

Respectfully submitted,

STANLEY F. LEAL

Ke.ty, LEAL & DAVILLA

697 East Remington Drive

Sunnyvale, CA 94087

(408) 735-8530

Counsel for Respondent Tracy Leal