Petition — Church of Scientology Mission v. Christofferson

- Office-Supreme Court, U.S.

Pe ee eee i

IN THE DEC 1? 1962

Supreme Court of the United | Stateser v. srevas,

CLERK

OCTOBER TERM, 1982

No. 82-____

aa

CHURCH OF SCIENTOLOGY MISSION OF DAVIS;

and MARTIN SAMUELS,

Petitioners,

—_—V.—

JULIE CHRISTOFFERSON,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF THE STATE OF OREGON

ERIC M. LIEBERMAN

Counsel for Petitioners

30 East 42nd Street

New York, New York 10017

(212) OX 7-8640

Of Counsel:

EMILY M. BASS

RABINOWITZ, BOUDIN, STANDARD,

KRINSKY & LIEBERMAN, PC.

30 East 42nd Street

New York, New York 10017

(212) OX 7-8640

CHARLES J. MERTEN

KAREN FINK

RICHARD YUGLER

MERTEN & FINK

117 S.W. Taylor

Portland, Oregon 97204

(503) 227-3157 December 1982

QUESTIONS PRESENTED

1. Whether the First Amendment prohibits a court from

considering or deciding a lawsuit brought against a church by a

former member of that church alleging that representations

made to the former member by church staff members concern-

ing religious practices and beliefs of the church were fraudu-

lent?

2. Whether a jury may consider the truth or falsity of

representations about religious practices and beliefs of a

church if the jury first finds that the person making the

representations did so for the purpose of raising money for the

church, or for what the Court of Appeals of Oregon

denominated a “wholly secular purpose”?

3. Whether the First Amendment prohibits a court from

imposing punitive damages upon a church for the allegedly

fraudulent representations of a staff member concerning the

religious practices and doctrine of the church?

4. Whether the First Amendment prohibits a court from

imposing damages upon a church for the purportedly fraudu-

lent representations of a staff member concerning the religious

practices and doctrine of the church, where the staff member’s

alleged denial of the religious character of the practices and

representations was contrary to the official written policy, rules

and regulations of the church as understood and accepted by

the membership?

5. Whether a church may be required to carry the burden of

proving the religious character and purpose of a staff mem-

ber’s representations about the church’s religious practices and

doctrines as a prerequisite to asserting that the First Amend-

ment prohibits inquiry into the truth or falsity of the state-

ments?

PARTIES TO PROCEEDINGS BELOW

The parties to the proceedings in the Court of Appeals of

Oregon were:

The Church of Scientology Mission of Davis; Martin

Samuels; The Church of Scientology of Portland; the

Delphian Foundation; and Dennis Patton,

Appellants,

and

Julie Christofferson,

Appellee.

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED... ....ccccccvccccsccecs i

PARTIES TO PROCEEDINGS BELOW ............. ii

TABLE OF AUTHORITIES ...ccccscveccvcesccdcces iv

SE MMEAIEY «vail 0'e o's 11 ve DECRG 6 vier vaew ean |

pt, ee Oo re ey or tee ea 2

CONSTITUTIONAL PROVISIONS INVOLVED...... 2

STATEMENT OF THE CASE........ccccccccccccecs 3

REASONS FOR GRANTING THE WRIT........... 9

ne. Aik e-6 ob paap beens 6 0S GMa naan ide 04 25

APPENDIX A Judgment and Opinion of Court of

Appeals of the State of Oregon ...... Al

APPENDIX B Orders of the Court of Appeals Deny-

ing Applications for Rehearing or

Reconsideration oc cicceccccscssscecs Bl

APPENDIX C Orders of the Supreme Court of Oregon

Denying the Petitions for Review ..... Cl

APPENDIX D Orders of the Supreme Court of Ore-

gon Denying the Petitions for Re-

hearing of the Denials of the Petitions

Oe ROVIOW a i's 6 Oh 6p EN es chen eRRaakels D1

APPENDIX E Similar Cases Raising Claims of Relig-

ious Fraud, Mind Control, And/Or

DIOR WOINE ii. ink cic tsn cnnevndwades El

iv

TABLE OF AUTHORITIES

CASES: PAGE

Barr v. Weise, 412 F.2d 338 (2d Cir. 1969)............ 3

Cantwell v. Connecticut, 310 U.S. 296 (1940)...... 14, 17, 19

Church of Scientology v. Siegelman, 475 F. Supp. 950

SEE, SUF ORS 0 Gh Sie hired ae pecans bb asks > edian. de 3

Colombrito v. Kelly, _.. F. Supp. ___, 79 Civ. 6205

CTT. SUR whin . addeawseaGabadanececnewen sys 13

Eden v. Moon, et al., Case No. 77-736880-NO (Circuit

Court of Wayne County, Michigan, December 3, 1982) 11

Estate of Supple, 247 Cal. App. 2d 410, 55 Cal. Rptr.

542 (1966), cert. denied, 389 U.S. 820 (1967)........ 17

Everson v. Board of Education, 330 U.S. 1 (1946)..... 9

First Unitarian Church v. Los Angeles, 357 U.S. 545

CERF os cbc Sabet eee sba sees vvdcnevcccucwane 24

Founding Church of Scientology v. United States, 409

ee CC. CA, TRU MRERCs Ree deccvcccens 3, 9, 14

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1976). ..18, 19, 20

Heffron v. International Society for Krishna Conscious-

WONG ee WB. GOD CIPED ao cc ccabesc vcdobeosenses 17

Heritage Homes of Attleboro, Inc. v. Seekonk Water

District, 670 F.2d 1:(ist Cin. 1962)... vices cvavcvseds 21

In Re Holy Spirit Assn. for the Unification of World

Christianity, et al., Docket No. 82-3035 (2d Cir. May

REISE cisco. i 4s. d4 ney was aiee Meurer ws © meen se 13

In Re Winship, 397 U.S. 358 (1970) ........00 eee eees 25

In the Matter of the Holy Spirit Ass’n. for the Unifica-

tion of World Christianity v. New York State Tax

Commission, 55 N.Y. 2d 512 (1982).............055 10, 23

PAGE

International Brotherhood of Electrical Workers v.

PO, SUB: SE IFT icc eciccietcpeendreis 18, 20, 21

International Society for Krishna Consciousness v. Bar-

ber, 650 F.2d 430 (2d Cir. 1981) ..... cc ccc ecccvenes 10

Larson v. Valente, _.. - U.S. ___., 102 S. Ct. 1673

ERR? CieNaae he bk ORAS cb oo Uk CERO 2c CERNE 17

Lemon v. Kurtzman, 403 U.S. 602 (1971) ............ 18, 19

Loney v. Scurr, 474 F. Supp. 1186 (S.D. lowa 1979)... 20

Maness v. Myers, 419 U.S. 449 (1975) .........00005- 13

Monell v. New York City Department of Social Services,

Me REA I CASTE bc aoe ec deus Cope Maed ee se 000 21, 22

Murdock v. Commonwealth of Pennsylvania, 319 U.S.

GS Ab i die's vban ¢(aheiee Nae asians sade wo 17, 19

NAACP v. Button, 371 U.S. 415 (1963).............. 13

NAACP v. Claiborne Hardware, US. i, 13.

ee SR hn bad ohn eeh pe SONA An kh Redon 21, 22

Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981)... = 21

New York Times v. Sullivan, 376 U.S. 254 (1964)...... 24

NLRB v. Catholic Bishop of Chicago, 440 U.S. 490

RR a eT Bre gaps Orme dB AP I ee 13, 22, 23, 24

Presbyterian Church in the United States v. Hull Memo-

rial Presbyterian Church, 393 U.S. 440 (1969)....... 23

Rizzo v. Goode, 423 U.S. 362 (1976). ..........50 cee 21, 22

Serbian Eastern Orthodox Diocese v. Milivojevich, 426

Se RENO 2 ab A wkd ei bbe e caied dela Danie cdeeme 23

Sherbert v. Verner, 374 U.S. 398 (1963) ............55 19

Speiser v. Randall, 357 U.S. 513 (1958) ............6: 24

Surinach v. Pesquera de Busquets, 604 F.2d 73 (ist Cir.

BTN: osnihhs tel Whee. 6's:0m RAGh Wd Mba ee halen) e sd 19

vi

PAGE

Thomas v. Review Board, 450 U.S. 707 (1981)........ 14

Thomson v. Gaskill, 315 U.S. 442 (1941)............. 24

Troyer v. Town of Babylon, 483 F. Supp. 1135

SE SOUEN eC hince bas GaKv CHRO sosdecckbaceeese 10

Unification Church v. Immigration and Naturalization

Service, ___. F. Supp. ____, Civil Action No. 81-1073

Cans? G i OUOD SUML IAEA «bebe cc cwecceeeens 10

United States v. Ballard, 322 U.S. 78 (1944)........ 9, 14, 18

Van Schaick v. Church of Scientology of California, et

al., 535 F. Supp. 1125 (D. Mass. 1982)............. 10, 12

Walz v. Tax Commission, 397 U.S. 664 (1970) ........ 19

Ward v. Connor, 657 F.2d 45 (4th Cir. 1981) .......... 10

Watson v. Jones, 13 Wall. (80 U.S.) 679 (1872)........ 9, 24

West Virginia State Board of Education v. Barnette, 319

SESE LS a's viahs SURE OM CaRos cle oddovuaees 15

Wisconsin v. Yoder, 406 U.S. 205 (1972) ............. 19

STATUTES:

ME AEP Fae e EOE RAS. ccc vabt nes dees 2

OTHER AUTHORITIES:

Tribe, Laurence H., American Constitutional Law (The

Foundation Press, Inc. 1978) ............cceeeeees 9

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

No, 82-____

>

CHURCH OF SCIENTOLOGY MISSION OF DAVIS;

and MARTIN SAMUELS,

Petitioners,

—_—).—

JULIE CHRISTOFFERSON,

Respondent.

>

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF THE STATE OF OREGON

The Church of Scientology Mission of Davis (“Mission”)

and Martin Samuels petition that a writ of certiorari issue to

review the judgment of the Court of Appeals of the State of

Oregon insofar as that judgment remanded the case to the

Oregon Circuit Court, Multnomah County, for a new trial on

respondent’s claim that the representations of mission staff

members about the value of Scientology’s religious practices

were fraudulent.

OPINIONS BELOW

The opinion and judgment of the Court of Appeals of the

State of Oregon (App. A, Al-A51)' is reported at 57 Or. App.

203, and at 644 P.2d 277. There are no other opinions.

1 References to “(A ____)” are to pages in Appendix A to the petition,

post. References to “App. B”, “App. C”, “App. D”, and “App. E” are to

appendices B, C, D, and E, post.

JURISDICTION

The judgment of the Court of Appeals of the State of

Oregon was entered on May 3, 1982 (A1). Both petitioners and

respondent filed petitions for rehearing with the Oregon Court

of Appeals, which were denied on June 10, 1982 (App. B);

petitions for review with the Supreme Court of the State of

Oregon, which were denied on July 27, 1982 (App. “); and

motions for reconsideration of the denials of review with the

Supreme Court of the State of Oregon, which were denied on

September 21, 1982 (App. D). This petition is being filed

within ninety days of the denial by the Oregon Supreme Court

of the motions for reconsideration of the denial of the petitions

for review. The jurisdiction of the Court is invoked pursuant

to 28 U.S.C. § 1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

The First Amendment to the Constitution of the United

States provides:

Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof; or

abridging the freedom of speech, or of the press; or the

right of the people peaceably to assemble, and to petition

the Government for a redress of grievances.

The Fourteenth Amendment provides, in relevant part:

. . .No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of

life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal pro-

tection of the laws.

STATEMENT

This case involves a dispute between an ex-member of a

religious movement and her former church concerning matters

of religious doctrine and practice.

1. Petitioner Church of Scientology Mission of Davis (Mis-

sion) is a non-profit religious institution (A2, A38) incorpo-

rated in California in 1972. Petitioner Martin Samuels is an

ordained minister in Scientology and President of the Mission

(A2). The Court of Appeals of Oregon recognized that “Scien-

tology is a religion and. . . the Mission is a religious organiza-

tion entitled to invoke the protection of the Free Exercise

Clause” (A38).’

Respondent Julie Christofferson is a former member of the

Mission. After graduating from high school, she moved to

Portland, Oregon in 1975 to be with her boyfriend who already

was a member. At his suggestion, on July 13, 1975, she joined

the Mission and enrolled in a communications course offered

by the Mission (A5). For the next several months, Christoffer-

son participated in religious courses and services offered by the

Mission, including the central religious practice of auditing

(A5).° During this time, respondent lived with friends and held

a full-time job (A2).

At the time respondent joined the Mission and enrolled in

the communications course, she was told and understood that

the religious training programs of the Church were offered

only to Church members (A40; Tr. 410, 412).‘ She read the

2 Accord, Founding Church of Scientology v. United States, 409 F.2d

1146, 1160 (D.C. Cir. 1969); Barr v. Weise, 412 F.2d 338 (2d Cir. 1969);

Church of Scientology v. Siegelman, 475 F. Supp. 950, 954 (S.D.N.Y. 1979).

The nature of Scientology beliefs and practices is described in the Court of

Appeals opinion (A2-A4).

3 The Court of Appeals found that the courses and services offered by

the Mission were religious in nature (A39).

4 References to “Tr.” are to pages in the trial transcript.

4

rules and regulations of church membership and agreed to

them by her signature. Those rules and regulations emphasized

the religious nature of Scientology, the courses, and the prac-

tice of auditing. They stated, in part:

Scientology . . . is a spiritual and religious guide. . .

Dianetics is practiced in the Church of Scientology as

pastoral counselling, addressing the Spirit in relation to

his own body and intended to increase well-being and

peace of mind . . . Auditing is a pastoral counselling

procedure by which an individual is helped, in stages, to

recover his self-determination, ability and awareness of

self, restoring respect for self and others . . . Scientology

is an applied religious philosophy. . . The results claimed

and benefits obtainable from auditing and training. . .

are personal and are experienced by the individual himseif

or herself . . . The Church delivers auditing and training

solely on the understandings contained in this booklet,

and you are required to have carefully read and digested

them before commencing any course or counselling.

C. A. App. 191-198.°

Respondent’s membership application also emphasized the

religious nature of Scientology beliefs and practices. It read:

1, Julie May Christofferson, of Eureka, Montana, ap-

ply to the Church of Scientology for membership. | am

willing to subscribe to the creed of the Church of Scientol-

ogy, which is to assist the individual to become more

aware of himself as an immortal being and to help him

achieve the basic truths with regard to himself, his rela-

tionship to the physical universe and the Supreme Being,

and to create, here on earth, a civilization of which all can

be proud.

C.A. App. 199.

5 References to “C. A. App. —.” are to pages in the Appellants’

Appendix in the Court of Appeals of Oregon.

5

The respondent testified at trial that despite these unequivo-

cal official written statements of the Mission as to the religious

nature of Scientology and its practices, several weel.s after she

joined the Mission and began participating in its courses and

practices, a staff member of the Mission told her that Scientol-

ogy was not religious in nature, but claimed to be such for

public relations reasons (Tr. 386).

In September 1975, plaintiff applied to become a provisional

staff member at the Delphian Foundation, a non-profit educa-

tional institution founded by the Church of Scientology (A5).

She began work there in early October, but was asked to leave

in the beginning of December until and unless she could

convince her mother to stop opposing her involvement in

Scientology (id.).

Respondent went home to Montana for Christmas, but the

visit ended with a quarrel with her mother. She returned to

Portland in January 1976, but was not permitted to participate

in courses or programs at the Mission. She returned home in

April 1976 to try to convince her parents to accept her

involvement with Scientology. When she returned home, her

parents locked her in the house and forcibly “deprogrammed”

her (id.).

2. One year later, respondent brought this action against

eight defendants, including the petitioners.

Her seventh amended complaint, upon which the case was

tried, alleged three causes of action: unlawful trade practices,

fraud, and outrageous conduct. Both the unlawful trade prac-

tices and fraud causes of action were founded principally upon

representations allegedly made by staff members of the Mis-

sion concerning the benefits of Scientology practices and

courses. For example, staff members allegedly told Christof-

ferson that auditing would develop creativity, enhance intelli-

gence quotient, and allow one to control her emotions,

neuroses, and psychosomatic ills. Other alleged representations

concerned purported curative effects of auditing upon physical

illness, the efficacy of the communications course with respect

to study habits and the background of L. Ron Hubbard, the

founder and spiritual leader of Scientology. Respondent alleged

6

that all the representations were false and fraudulent (A24-

A26).

Respondent’s third cause of action was for outrageous

conduct. She alleged that the defendants attempted to brain-

wash her into service to them, and harassed her after she had

been deprogrammed (A9, A21).

Prior to trial, defendants moved to dismiss and for summary

judgment on the grounds, inter alia, that the First Amendment

prohibited judicial inquiry into a dispute between a church and

an ex-member on matters of religious belief and practice,

particularly where the resolution of the dispute would require

the court to decide the truth or falsity of religious doctrine.

The motions were denied without opinion. Also denied were

motions by the defendants to strike all claims based upon

representations concerning religious practices and beliefs, and

demands for punitive damages. Since Oregon law authorizes a

plaintiff seeking punitive damages to present evidence of the

financial status of the defendants, the trial court permitted

extensive discovery of the finances of the Church and the

Mission.

The trial proceeded against five defendants, including the

petitioners, the Delphian Foundation, the Church of Scientol-

ogy of Portland (COSOP), a separately incorporated religious

organization with which plaintiff had had no significant con-

tacts, and Dennis Patton, a staff member of the Mission.

At the trial, respondent presented no evidence that the

defendants used force or the threat of force to induce her

membership or participation in Scientology. Nevertheless, the

respondent’s attorney was permitted to refer repeatedly to

Scientology as a “destructive cult” and to draw out of his

witnesses comparisons of Scientology with North Korean tor-

turers of American prisoners of war, the People’s Temple, and

various Other controversial or unpopular religious organiza-

tions. In his final argument, respondent’s counsel told the jury

over objection:

They made her into a totally different person, totally

obedient and subservient. Just like they have proudly with

ten thousand other young people in Oregon. . . . They

do it today, they did it last night, they are going to do it

7

tomorrow. Ten thousand people have been tricked, lied to

and deceived by this religion. These people have come like

locusts from Davis, California. . .

* * *

Why are they doing this? Why is the City being subjected

to this?

Why has this State been taken over? . . .

You can read .. . all of these exhibits. You can read

every one and you will not find a doctrine of love or

charity. You will not find sympathy to the Good Samari-

tan. You won’t find trust, morality. You won't find words

of sharing and loving in any type of language that you can

understand or anyone else can understand. They did this

to Julie. They have done this to others. And they are

going to do it. They are going to change our city and our

state. . . . Only you have the power to stop this type of

conduct.

Tr. 3344,

The jury returned a verdict of $2,067,000.20 on the fraud

and outrageous conduct causes of action against the peti-

tioners, Delphian, and COSOP. Of that amount, $3,000.20

constituted compensatory damages for out-of-pocket expenses,

$150,000 constituted compensatory damages for mental dis-

tress, and $1,914,000 constituted punitive damages.

3. The Oregon Court of Appeals reversed the judgment. It

held as a matter of state law that the conduct of the defendants

was not actionable as outrageous conduct, and that the defen-

dants’ motion for directed verdicts on that cause of action

should have been granted (A9, A21, A24).

With respect to the fraud cause of action, the Court of

Appeals held that there was insufficient evidence to hold the

Church of Scientology of Portland and the Delphian Founda-

tion liable (A28, A31), but remanded for a new trial against the

petitioners. In addressing the petitioners’ First Amendment

defenses to the fraud allegation, the Court of Appeals held that

Scientology is a religion and that the Mission is a religious

organization entitled to invoke the protection of the Free

Exercise Clause (A38). It further held that the courses and

auditing in which respondent participated and about which the

alleged false representations were made were part of the

religious beliefs and practices of Scientology (A39).

Despite these findings, however, the Court of Appeals held

that representations about the efficacy of the religious courses

and auditing of Scientology could lose their religious character

and be the basis of a civil action for fraud against the

defendant Mission if the persons making the representations

denied their religious character and made the representations

“for a wholly secular purpose.” The court further held that

determination of the questions of subjective purpose and thus

religious character of the representations was properly one for

the jury, that the Mission carried the burden of proving the

religious purpose and character of the representations, and

that if the jury found a secular purpose it could go on to find

that the representations themselves were false and fraudulent.

Finally, the court defined a secular purpose as any purpose

other than to induce a person to join a church or participate in

its practices, and gave as an example of such a secular purpose

an intent to raise money for the church.

The Court of Appeals reversed the judgment for the re-

spondent on the fraud cause of action, however, on two

grounds. It held that the trial court had improperly instructed

the jury to consider the sincerity of the Mission in making the

representations, rather than the purpose of such representa-

tions (A44), and to determine whether each individual repre-

sentation, standing alone, was protected as religious. Having

found that the jury was improperly instructed in these two

respects, the Court of Appeals remanded for a new trial

consistent with its opinion.

The Court of Appeals also rejected the petitioners’ argument

that it was improper to impose punitive damages against a

church for the allegedly fraudulent representations of church

staff members (A49-51). The Court of Appeals failed to

address explicitly petitioners’ argument that the Mission could

not be held liable at all on a respondeat superior basis for such

statements by staff members.

REASONS FOR GRANTING THE WRIT

1. This case raises substantial questions under the First

Amendment as to whether and to what extent the courts may

hear and decide a case brought against a church by a former

member alleging that the church’s representations about its

religious practices are fraudulent and that the church’s non-

coercive religious practices® are tortious. In holding that such

allegations raise triable questions upon which juries can award

compensatory and punitive damages, the Oregon Court of

Appeals has severely undermined the critical “wall of separa-

tion between church and state,” Everson v. Board of Educa-

tion, 330 U.S. 1, 16 (1946), which this Court and other courts

have erected for over a century to ensure the public’s right to

freedom of i cligious exercise and speech. See Watson v. Jones,

13 Wall. (80 U.S.) 679 (1872);’ United States v. Ballard, 322

U.S. 78 (1944); Founding Church of Scientology v. United

States, 409 F. 2d 1146 (D.C. Cir. 1969);° Tribe, American

Constitutional Law, { 14-12, at 865-880.

6 By “non-coercive religious practices” petitioners mean religious

practices, such as those which existed in this case, about which there is no

claim that the religious organization utilized force, the threat of force, or

other physical or chemical means to induce the parishioner to join the

organization, participate in its practices or services, or remain a member or

participant,

7 [T]he judicial eye cannot penetrate the veil of the church for the

forbidden purpose of vindicating the alleged wrongs of excised

members; when they became members they did so upon the condi-

tion of continuing or not as they and their churches might deter-

mine, and they thereby submit to the ecclesiastical power and

cannot now invoke the supervisory power of the civil tribunals.

Watson v. Jones, 13 Wall. at 731, quoting from Ferraria v. Vasconcelles, 23

Ill, 456,

8 (U)nder Ballard it seems unlikely that a disgruntled former adherent

could sue a church for fraud and deceit because it had collected

money from him on the basis of allegedly “false” doctrines con-

cerning salvation, heaven and hell—or for that matter on the basis

of doctrines, such as those of the Christian Scientists, concerning

the cause and cure of disease.

409 F.2d at 1156, n. 32,

10

The questions have assumed great national and constitu-

tional importance at the present time not only because of the

fundamental nature of the rights of religious free exercise

involved, but also because this particular case has served as a

model for the institution of scores of damage actions brought

throughout the country against newer or controversial religions

by disaffected members of such churches.” Following the two

million dollar punitive damage award in this case, personal

injury lawyers, sensing a new “target” defendant, instituted

over twenty-five similar damage claims against the Church of

Scientology alone, including a class action lawsuit seeking

attachment of the property of various Scientology churches

and the appointment of a court receiver to administer the

Church." Similar lawsuits were also brought in volume against

other churches, including the Unification Church,'' the In-

ternational Society for Krishna Consciousness,'* and even the

Catholic Church, and various Protestant sects.

9 We set forth in Appendix E to this petition a table listing recent cases

brought against religious organizations by former members alleging fraud,

brainwashing, or mind control. The table lists the name of the case, the

nature of the allegations, and the present status of the case and judicial

disposition, if any, of the religious free exercise issues raised in the present

petition.

10 Van Schaick v. Church of Scientology of California, et al., 535 F.

Supp. 1125 (D. Mass 1982). The district court has dismissed the class action

allegations and denied requests for attachment and appointment of a re-

ceiver.

11 Various courts have recognized “that the Unification Church has

religion as its primary purpose”, Holy Spirit Association for the Unification

of World Christianity v. New York State Tax Commission, 55 N.Y.2d 512,

518-519 (1982), and that “ . . . the Unification Church by any historical

analogy, philosophical analysis or judicial precedent . . . must be recognized

as a bona fide religion.” Unification Church v. Immigration and Naturaliza-

tion Service, ____ F. Supp. —__, Civil Action No. 81-1073 (D.D.C. Septem-

ber 16, 1982), slip op. at 10. See also, Ward v. Connor, 657 F.2d 45 (4th Cir.

1981); Troyer v. Town of Babylon, 483 F. Supp. 1135, 1137 (E.D.N.Y.

1981)(Weinstein, J.).

12. The Krishna Consciousness movement has been recognized as a

religion under the First Amendment. /nternational Society for Krishna

Consciouness v. Barber, 650 F.2d 430 (2d Cir. 1981).

11

Central to the complaints in this veritable flood of post-

Christofferson religious fraud litigation are allegations vir-

tually identical to those made in the present case: that

representations about the religious practices and beliefs of the

churches were false and are actionable because they were made

for the purpose of obtaining funds for the church, and/or that

the practices of the churches are outrageous and tortious

because they constitute mind control, brainwashing, and the

like.

Neither the Oregon Court of Appeals in this case, nor the

other state and federal courts before whom the post-Christof-

Jerson cases have been filed, have properly analyzed or applied

the critical First Amendment doctrine which must prohibit

such litigation, absent claims of the use of physical force such

as kidnapping or battery.'? The opinion of the Oregon Court of

Appeals in this case, while properly recognizing the religious

status of the defendants and their religious practices, neverthe-

less substantially encourages such litigation by permitting in-

quiry into the truth or falsity of statements about religious

practices based upon a secular purpose of a speaker, and by

permitting damages, including punitive damages, to be

awarded against a church for the unauthorized speech of staff

members. In fact, the opinion of the Oregon Court of Appeals

is so self-contradictory and ambiguous on the questions of

good faith, religious context, and secular purpose’* that both

13 in fact, one court has just dismissed a religious fraud case precisely

on the grounds urged in the text. Eden v. Moon, et al., Circuit Court of

Wayne County, Michigan, Case No. 77-736880-NO (December 3, 1982)(unre-

ported oral decision of Judge Sharon Tevis Finch). Judge Finch’s opinion

hardly provides the definitive ruling necessary to put an end to the tide of

religious fraud litigation.

14 = On the one hand, the Oregon Court of Appeals quite properly held

that the jury may not inquire into the good faith or sincerity of an entire

church (A44, 45), distinguishing this case from cases in which the sincerity of

the claims of religious beliefs of an individual are relevant. The Court of

Appeals noted the conceptual and practical difficulties of an inquiry into

corporate sincerity (A44):

12

the plaintiff and the defendants unsuccessfully petitioned that

court for reconsideration so that it could clarify its opinion on

those questions. The federal district court in Massachusetts

addressed similar issues in Van Schaick v. Church of Scientol-

ogy of California, 535 F. Supp. 1125 (D. Mass. 1982), but it,

too, left open more questions than it answered.'* And the

In the situation presented here, it is difficult to determine whose

sincerity or good faith the jury could be asked to determine. Is the

religious organization to be held liable if one of its ministers is less

than a true believer? Or is it to be saved from liability if the

individual who makes the statement truly believes, but others in the

church do not?

The Court of Appeals then turned around and sanctioned just such an

inquiry, however, by its discussion of religious context and purpose. It noted

that in order to claim First Amendment protection, a religious organization

must give notice that it claims to be religious. The Court of Appeals held that

representations about religious practices would not be entitled to constitu-

tional protection if they were made on a “wholly secular basis” (A42). The

Court then applied a subjective test to determine the question of religious

context, i.e., “whether the statements were made for a wholly non-religious

purpose.” The Court did not explain how its “purpose” test would avoid the

same infirmities as would the “sincerity” test it rejected, i.e., whose “pur-

pose” the jury could be asked to determine.

A similar anomaly exists with respect to the Court of Appeals’ application

of its “wholly secular purpose” test. The Court held that:

A wholly secular purpose means that, at the time they were made to

this plaintiff, the statements were made for a purpose other than

inducing plaintiff to join or participate in defendants’ religion.

(A45). Yet, the plaintiff’s entire case was dedicated to proving precisely that

the purpose of the representations was to induce the plaintiff to join the

Mission and participate in its religious training and practices. The Oregon

Court of Appeals nevertheless remanded for a new trial.

15 In Van Schaick, District Judge Garrity also struggled with the

question of the context in which representations about religious practices are

raade. Since he was deciding a motion to dismiss, Judge Garrity was required

to take as true allegations of a complaint that auditing was held out to Van

Schaick as a purely scientific process with no religious overtones. Judge

Garrity expressed skepticism about the allegations of the complaint, and

suggested that the religious fraud issues be raised in a motion for summary

judgment, which the Church of Scientology subsequently filed. Immediately

after the motion was argued, the plaintiff voluntarily dismissed the religious

fraud allegations.

13

dangers of the present state of undefined judicial standards

were demonstrated in the recent case of Colombrito v. Kelly,

__.. F. Supp. —___., 79 Civ. 6205 (RO) (S.D.N.Y. 1982), in

which a federal district court in a private damages action

undertook its own broad inquiry into the religious bona fides

of the Unification Church by requiring the testimony of

Reverend Sun Myung Moon, the founder of that church,

avout the nature of his religious beliefs, practices and experi-

ences. The district court proceeded on the theory that such

beliefs, practices and experiences might be shown to be so

incredible as to demonstrate not only the insincerity of Rever-

end Moon, but the fraudulent nature of the entire church.

While the Court of Appeals for the Second Circuit quite

properly ordered the termination of the district court’s inquiry

and the striking of the testimony,'® the damage caused to the

Unification Church, and to the First Amendment non-en-

tanglement principles, was not so easily undone, cf., Maness v.

Myers, 419 U.S. 449, 460 (1975), especially since the Second

Circuit did not articulate principles or standards which would

limit such inquiry in the future.

It remains for this Court to articulate the constitutionally

mandated standards which prohibit religious fraud tort actions

such as the present case. It is especially essential that the Court

perform that role now, to provide religious institutions with

the necessary “breathing space” to survive and grow under our

system of constitutionally protected religious liberty. C/.,

NAACP vy, Button, 371 U.S. 415, 433 (1963). As the Court has

emphasized, in cases such as this, “[{iJt is not only the conclu-

sions that may be reached . . . which may impinge on rights

guaranteed by the Religion Clauses, but the very process of

inquiry leading to findings and conclusions.” NLRB v. Catho-

lic Bishop of Chicago, 440 U.S. 490, 502 (1979). Unless the

Court acts now, the process of improper inquiry will go

forward against various religious institutions in numerous

cases around the country, inspired by the extraordinary and

16 In Re Holy Spirit Assn. for the Unification of World Christianity, et

al., Docket No. 82-3035 (May 28, 1982).

14

unconstitutional results of the trial which occurred in this case,

and further encouraged by the opinion of the Oregon Court of

Appeals.

Indeed the present flood of religious fraud litigation not

only constitutes an unconstitutional intrusion upon religious

institutions and their members, it also imposes an unacceptable

burden upon the already overtaxed dockets of the state and

federal judicial systems. A clear statement by this Court of the

constitutional limitations upon such litigation will go a long

way toward ending this form of frivoleas but time-consuming

litigation, thereby enabling the courts to devote their resources

to cases properly before them.

2. The Court of Appeals decision that a jury may determine

the truth or falsity of oral representations to a church member

concerning concededly religious practices and beliefs of the

church, if the jury first finds that the “purpose” of the person

making the representations was “wholly secular,” is contrary to

the decisions of this Court and critically undermines the zone

of constitutional protection for religious minorities created by

those decisions.

In United States v. Ballard, 322 U.S. 78 (1944), a fraud case,

the Court held that neither judges nor juries may decide the

truth or falsity of representations concerning religious dogma

or the efficacy of religious practices, even where the represen-

tations could be demonstrated to be preposterous to a non-be-

liever. 322 U.S. at 87. Accord, Cantwell v. Connecticut, 310

U.S. 296, 305 (1940); Thomas v. Review Board, 450 U.S. 707,

101 S. Ct. 1425, 1429 (1981); Founding Church of Scientology

v. United States, 409 F.2d at 1155.

The Oregon Court of Appeals, while paying lip-service to

Ballard, created an exception that, in an atmosphere of hostil-

ity to an unpopular minority religious sect, would wholly

swallow up the constitutionally necessary Ballard rule. Accord-

ing to the Oregon court, a jury need merely find first that the

person making the representation about a religious practice

was subjectively motivated by a secular purpose; once having

made that finding, the jury wouid be free to deny the religious

15

character of the representations, to reject as factually false and

fraudulent the entire doctrine and practices of the church, and

to find the church liable in damages therefor.

The Court of Appeals’ test is constitutionally flawed in at

least two fundamental ways. First, the constitutional barrier to

judicial inquiry into the truth of religious belief does not turn

at all on the subjective purpose of the speaker, but rather on

the inherent incompetence of a court to pass judgment on the

question. Once it is acknowledged, as the Court of Appeals did

below, that the representations concern religious belief or

practice, a court simply may not inquire further into the truth

or falsity of the representations consistent with the First

Amendment. Religious beliefs and practices do not lose their

religious character because a court or jury decides that they

were discussed for secular reasons.

Second, the Court of Appeals’ test provides no protection

against, and indeed establishes a non-reviewable mechanism

for, the exercise by juries of prejudice against unknown,

controversial, or unpopular minority religious sects. The test

would invite jurors who view the religious doctrines of such

sects aS preposterous or dangerous to impute a “secular”

purpose to the propagators of such beliefs as a first step

toward finding the doctrines themselves to be actionable as

fraud. This Court repeatedly has noted that prejudices against

such sects have existed in virulent form throughout history, and

the Court has warned that the First Amendment requires that

the judiciary insure that neither the courthouse nor the jury

box be used to give sanction to or to legitimize such prejudices.

See, West Virginia State Board of Education v. Barnette, 319

U.S. 624, 640-42 (1943).

The dangers to First Amendment rights of the approach of

the Oregon Court of Appeals is dramatized by its own inability

to differentiate secular from religious purposes. Under the

Court of Appeals rule, the only permissible religious purpose

of speech, and hence the only religious speech protected by the

Ballard doctrine, is speech intended to cause a person either to

join a religious organization or to participate in its practices or

services (A45). Representations about religious dogma or prac-

16

tice made for any other purpose, such as to explain the

religion, to encourage tolerance of it, or to compare it with

other religions, would subject the entire doctrine to judicial

inquiry and sanction.

Indeed, even the purposes identified as “religious” by the

Oregon Court of Appeals—to induce membership or participa-

tion—apparently would not always provide protection. For

example, in this very case, the plaintiff herself alleged that the

purpose of the representations made to her was to induce her

to join the Church of Scientology and to participate in its

central religious practice, auditing. That is precisely what

occurred. The Court of Appeals nevertheless sanctioned a new

trial in which, presumably, a jury could inquire into whether

the attempt to induce Christofferson to join the Mission or

participate in its concededly religious practices was motivated

by non-religious reasons. Thus, the Court of Appeals “secular

purpose” test would permit a jury to reject the stated nature,

purpose and effect of the religious representations, and to find

a hidden secular purpose based upon its own review of the

practices of the religious organization or the motives of one of

its staff members.

Further, the holding of the Oregon Court of Appeals that a

purpose to raise money for the Church is secular, thereby

subjecting the religious representations made to judicial in-

quiry as to truth or falsity, is wholly inconsistent with the

decisions of this Court.

[T]he mere fact that religious literature is “sold” by

itinerant preachers rather than “donated” does not trans-

form evangelism into a commercial enterprise. If it did

then the passing of the collection plate in church would

make the church service a commercial project. The consti-

tutional rights of those spreading their religious beliefs

through spoken and printed words are not to be gauged

by standards governing retailers or wholesalers of books

. . » . It is plain that a religious organization needs funds

to remain a going concern. . . . Freedom of speech,

17

freedom of the press, freedom of religion are available to

all, not merely to those would can pay their own way.

Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105,

111 (1943). See also, Cantwell v. Connecticut, 310 U.S. 296,

307 (1940); Heffron v. International Society for Krishna Con-

sciousness, 452 U.S. 640 (1981); Larson v. Valente, —

U.S.____., 102 S. Ct. 1673 (1982).

The opinion of the Oregon Court of Appeals would have

subjected the religious literature of Murdock, Cantwell, the

Krishna Consciousness Movement, and, indeed, every religion

which engages in fund-raising to an inquest into the truth of

the underlying religious beliefs espoused. It would permit, for

example, a jury to find that representations of the Catholic

Church concerning heaven and hell are false, and are moti-

vated by the church’s purpose to obtain contributions from the

faithful. See Estate of Supple, 247 Cal. App. 2d 410, 55 Cal.

Rptr. 542 (1966), cert. denied, 389 U.S. 820 (1967).

The opinion of the Court of Appeals will serve as a catalyst

for inquiries into the validity of the religious beliefs of numer-

ous minority religious organizations throughout the country,

which necessarily engage in fund-raising proselytization. It will

encourage juries to act out their prejudices and preconceptions

against such churches by finding that they are motivated by

such secular purposes, and by imposing punishment against

them.

3. The Court of Appeals decision approving the imposition

of punitive damages against a church for the purportedly false

oral representations of its staff members concerning the value

of church practices violates both the Establishment and Free

Exercise clauses, and is contrary io recent decisions of this

Court disapproving the use of punitive damages in analogous

contexts.

This Court on more than one occasion has warned of the

dangers to minority groups or opinions inherent in jury awards

of punitive damages.

Juries assess punitive damages in wholly unpredictable

amounts bearing no necessary relation to the actual harm

caused . . . They remain free to use their discretion

selectively to punish expressions of unpopular views.

Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1976). See

also, International Brotherhood of Electrical Workers v.

Foust, 442 U.S. 42, 50 n. 14 (1979) (“punitive damages may be

employed to punish unp \pular defendants.”)

The threat to First Amendment rights in the use of punitive

damages is particularly acute when they are imposed against a

minority religious group in a case in which the only tort alleged

arises out of expressive activity. The probability that such a

trial will be converted into a witch hunt is amply demonstrated

by this very case, in which the plaintiff’s expert witness

testified that Scientology “is on trial” (Tr. 1418) and in which

the plaintiff’s counsel repeatedly referred to the then-recent

horrible occurrences at Jonestown, (with which Scientology

had no connection or similarity), referred to Scientology as

“locusts from Davis, California” who had “taken over” Ore-

gon, commented disparagingly ebout the beliefs and practices

of Scientology, and warned the jurors that Scientology was

going to “change our city and our state” unless the jurors put a

“stop” to it (Tr. 3344). The pleas to the prejudices and

emotions of the jury were successful, as the jury awarded

nearly two million dollars in punitive damages.

Indeed, it does not require any great perspicacity to recog-

nize that the reason why there has been such a flood of

religious fraud litigation in the state and federal courts in the

wake of the jury verdict in this case was precisely because

plaintiffs and their attorneys saw an opportunity to exploit the

obvious unpopularity and controversial nature of some of the

newer religious movements.

The impact of such potential jury verdicts upon the treasury

and administration of a church and upon the pocketbooks and

loyalty of its members raises substantial questions under both

the Free Exercise and Establishment clauses. United States v.

Ballard, 322 U.S. 78; Lemon v. Kurtzman, 403 U.S. 602,

612-613 (1971). It significantly restricts the ability of a church

to engage in its practices and programs, inhibits the exercise of

19

constitutionally protected rights to proselytize, Cantwell v.

Connecticut, 310 U.S. 296: Murdock v. Pennsylvania, 319

U.S. 106, and discourages members from contributing to the

faith, and even from remaining members. This is especially

true with respect to minority religious sects, which both are

more financially vulnerable to such awards, and more subject

to the disapproval of jurors.

Additionally, the mere availability of punitive damages fos-

ters excessive government entanglement with religion. Lemon

v. Kurtzman, 403 U.S. at 612-613. This is so for two reasons.

First, in most states, including Oregon, the court and jury in

assessing punitive damages are permitted and even required to

consider the financial resources and programs of the Church.

Thus, in this case, the plaintiff was permitted broad inquiry

into the financial status and religious doctrines and practices of

the Church and Mission defendants, and such evidence was

presented to the jury and relied upon by the plaintiff in her

request for punitive damages. Such “extensive state investiga-

tion into church operations and finances” is impermissible.

Walz v. Tax Commission, 397 U.S. 664, at 691 (1970) (Bren-

nan, J., concurring), and at 676 (Opinion of the Court). See

Surinach v. Pesquera de Busquets, 604 F.2d 73 (ist Cir. 1979).

Second, the imposition of a penalty upon church treasuries

“would bear unequally on different churches” depending upon

their ability to withstand a substantial jury verdict, and “would

surely influence the allocation of church resources.” Walz, 397

U.S. at 69 (Brennan, J., concurring).

The violations of the Free Exercise and Establishment

Clauses arising out of the imposition of punitive damages

against religious organizations cannot be justified on the

ground that such awards further a compelling state interest, let

alone by the least restrictive means. Sherbert v. Verner, 374

U.S. 398 (1963). “Only those [state] interests of the highest

order and those not otherwise served can over-balance legiti-

mate claims to the free exercise of religion.” Wisconsin v.

Yoder, 406 U.S. 205, 215 (1972).

The very purposes of punishment and deterrence furthered

by awards of punitive damages, Gertz v. Robert Welch, Inc.,

20

418 U.S. at 350, are constitutionally suspect when the conduct

sought to be punished or deterred is speech about religious

practices. The danger that protected religious speech also

might be punished or deterred by such awards is great indeed.

Even if it can be assumed that there is a state in.erest in

protecting members of religious organizations from “fraudu-

lent” representations about non-coercive religious practices,

but see discussion ante at 9-14'’, that interest is amply served

by awards of compensatory damages. The state has “no

substantial interest in securing for plaintiffs . . . gratuitous

awards of money damages far in excess of any actual injury.”

Gertz v. Robert Welch, Inc., 418 U.S. at 349. If the state

retains any legitimate interest at all in punishment or deter-

rence of “fraudulent” religious speech, that interest may be

met by resort against the individual who made the offending

representations, and not against the entire church. To award a

plaintiff a windfall at the expense not only of the Church, but

of the faithful membership of the Church, imposes too great a

burden on religious exercise and speech and creates too great a

threat of punishing unpopular sects. See Loney v. Scurr, 474 F.

Supp. 1186 (S.D. lowa 1979).

Similar considerations recently led this Court to prohibit the

imposition of punitive damages against labor unions for

breaches of their duty of fair representation. /nternational

Brotherhood of Electrical Workers v. Foust, 442 U.S. 42

(1979). The Court found that punitive damage awards could

“deplete union treasuries, thereby impairing the effectiveness

of unions as collective bargaining agents”, id. at 50-51, and

inhibit the union in carrying out discretionary acts “essential to

the proper functioning of the collective bargaining system.” /d.

The impact of such awards would be felt principally by the

membership of the union and would have the effect of burden-

17 _— Heretofore it has only been in connection with preventing frauds

against the general public that the Court has recognized a possible interest in

regulating the time, place and manner of soliciting by a religious organiza-

tion. It has never sanctioned attempts to regulate the content of religious

appeals nor suggested that the state can extend its regulatory arm into the

church’s inner sanctum.

21

ing the exercise of associational and collective bargaining rights

guaranteed by the National Labor Relations Act. Although the

Court found that the state’s policy of awarding punitive

damages might be rational in other contexts, it could not be

applied in a manner which would undermine the policies

furthered by the NLRA. 442 U.S. at 48.

Similarly, in Newport v. Fact Concerts, Inc., 453 U.S. 247

(1981), the Court held that municipalities are immune from

punitive damage awards under 42 U.S.C. § 1983 because it

would not be equitable to provide a windfall to a plaintiff by

punishing taxpayers for the unconstitutional act of a city

official. See also, Heritage Homes of Attleboro, Inc. v.

Seekonk Water District, 670 F.2d 1 (ist Cir. 1982).

Surely the rights of religious association and free exercise

protected by the First Amendment are on at least as high a

plane as the rights of association and collective bargaining

furthered by the NLRA, and the general interests of taxpayers

to avoid paying penalties for the illegal acts of municipal

employees. Just as surely, the threat of imposition of huge

punitive damage awards against minority religious groups is

much greater than the threat of such awards against labor

unions or municipalities, since it is much more likely that at

least some jurors will be sympathetic to the interests of the

union rank and file or the taxpayers than to the rights of an

unpopular sect. Accordingly, the Court should apply the ra-

tionale of the Foust and Newport decisions to religious organi-

zations, at least in cases in which the claim against the religious

organization arises out of written or oral speech.

4. This case raises the substantial question of whether and

under what circumstances a religious organization may be held

liable for the tortious representations of its staff members or

clergy. Cf., NAACP v. Claiborne Hardware, _. U.S. ____.,

102 S. Ct. 3409 (1982); Rizzo v. Goode, 423 U.S. 362 (1976);

Monell v. New York City Department of Social Services, 436

U.S. 658 (1978).

In Claiborne Hardware, the Court held that the First

Amendment rights of the NAACP and its members to associ-

22

ate and to engage in protected concerted action required that

the organization itself be protected from liability for the

unauthorized acts of its members in furtherance of such

concerted action. Only if the NAACP authorized or ratified

the specific tortious acts alleged could it be held liable, even if

the tortious acts could be found to have furthered the goals of

the general course of concerted conduct..102 S. Ct. at 3428-

3430.

Analogous considerations led this Court to conclude that

municipalities cannot be held liable under 42 U.S.C. § 1983

upon a respondeat superior basis because, under the Tenth

Amendment, neither the Congress nor the federal courts can

dictate the terms and conditions upon which a state hires or

controls its employees. Monell v. New York City Department

of Social Services, 436 U.S. 658, 673, 691 (1978); cf., Rizzo v.

Goode, 423 U.S. 362, 376-78 (1976). Thus, the Court held that

a municipality could be held liable under § 1983 only when it

authorized or ratified unlawful conduct.

The rationale of Claiborne Hardware and Monell applies to

religious organizations, which are protected not only by the

associational rights of the First Amendment, but also by the

more specific religion clauses of that Amendment. Just as in

Claiborne Hardware a damage award against the NAACP

ultimately would be felt by the membership and would inhibit

their rights to associate and to engage in concerted political

activity, so too, a damage award against a church ultimately

would be directed principally against the membership, and

would inhibit the exercise of religion by both the church and its

members. See discussion of the effects of punitive damage

awards, ante at 18-21. And, just as in Monell and Rizzo the

Court could not impose upon a city a code of discipline for its

employees, so too, neither the legislature nor the courts can

define or monitor the relationship that obtains between a

religious organization and its employees. NLRB v. Catholic

Bishop, 440 U.S. 490 (1979). The degree and manner of

supervision that a church or religious body exercises over its

employees is a matter for its own ecclesiastical boards and is

the business of no other authority. The state cannot impose

standards either directly or indirectly.

23

This is especially true when the tort which a clergyman is

alleged to have committed is the making of religious misrepre-

sentations. Under these circumstances, liability should attach

to the church proper only if it can be shown that the alleged

tortious statements were consistent with and authorized by the

acknowledged and clearly enunciated policy or directives of the

church. To permit inquiry as to whether or the extent to which

a church has either sanctioned or tolerated the adoption of

policies and practices which are contrary to the policies and

practices which it has officially promulgated to its membership

would make the court, rather than the church, the ultimate and

definitive exponent of church doctrine. Moreover, to permit a

church to be penalized for having tolerated non-conforming

policies and practices would be to establish a degree of ortho-

doxy to which clergy must adhere. The state is incompetent to

assume either of these roles.

The contrary is true. The First Amendment prohibits the

judiciary from questioning the manner in which a church has

characterized its religious policy and doctrine, from directing a

church’s religious affairs, and from determining for itself

matters of ecclesiastical administration or discipline. Serbian

Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 709

(1976); Presbyterian Church in the United States v. Hull

Memorial Presbyterian Church, 393 U.S. 440 (1969); In the

Matter of the Holy Spirit Ass’n for the Unification of World

Christianity v. New York State Tax Commission, 55 N.Y.2d

512 (1982). Indeed, as this Court has emphasized, not only is

the making of findings of fact and conclusions of law prohi-

bited, but so too is the very process of inquiry. NLRB v.

Catholic Bishop, 440 U.S. 490, 502.

This Court accordingly should grant the petition to review

the holding of the Oregon Court of Appeals in this case

sanctioning a searching judicial inquiry into the authorization

of staff members to make statements of church policy contrary

to the enunciated and established policy of the church concern-

ing the very question of the religious character of church

practices. The uncontroverted evidence in this case, as recog-

24

nized by the Court of Appeals, demonstrated that the official

and acknowledged literature, rules and regulations, and policy

of the Mission emphasized the religious nature of the Mission,

its courses and its practices, and stated explicitly that no

contrary representations were authorized. The Court of Ap-

peals decision that the respondent nevertheless can recover in

fraud against the Mission if a jury were to find that a staff

member made or authorized contrary statements for a secular

purpose cannot stand under the First Amendment.

5. In ruling that the Mission must carry the burden of

proving the religious purpose and character of the representa-

tions at issue, the Oregon Court of Appeals compounded the

other errors to which this petition refers and imposed a further

unconstitutional burden on the exercise of First Amendment

rights. Speiser v. Randall, 357 U.S. 513 (1958); First Unitarian

Church v. Los Angeles, 357 U.S. 545 (1958).

As the Court noted in Speiser, the burden of proof is often

critical to the outcome of a case. Thus, where “the question is

one of alleged trespass across the line between speech uncondi-

tionally guaranteed and speech which may legitimately be

regulated”, the plaintiff must bear the burden of proving with

“convincing clarity” that the statements which are attributable

to a defendant are susceptible of regulation. New York Times

v. Sullivan, 376 U.S. 254, 285 (1964). Where the plaintiff

alleges that the defendants committed a religious “fraud”, the

plaintiff must prove that the defendant’s statements were

wholly secular as made. The burden of proving the protected

nature of the challenged communications cannot be placed

upon the defendant.

In fact, under the Establishment Clause, unless and until the

plaintiff has proven the non-religious nature of the statements

alleged to be fraudulent, she has not established either the

justiciability of the issues or the subject matter jurisdiction of

the court. Watson v. Jones; NLRB vy. Catholic Bishop. Plain-

tiff and not the defendant carries the burden on these ques-

tions. See, e.g., Thomson v. Gaskill, 315 U.S. 442 (1941).

25

In the final analysis, given an area so difficult of proof and

subject to juror misunderstanding and abuse as the religious

character and purpose of representations, the party challenging

the nature of the representations must carry the burden. To put

the burden on the organization claiming religious protection

would be to sanction heresy trials and invite broad judicial

inquiries into religious belief. Who bears the burden of proof is

no less critical a question to the outcome of this and similar

cases and to the maintenance of constitutional standards than

was the question of burden of proof decided in Jn re Winship,

397 U.S. 358 (1970). The Court should grant certiorari to

resolve this fundamental question.

CONCLUSION

For the reasons stated, the petition for a writ of certiorari

should be granted.

December, 1982

Respectfully submitted,

ErIc M. LIEBERMAN

Counsel for Petitioners

30 East 42nd Street

New York, New York 10017

Of Counsel: (212) OX 7-8640

EMILY M. BASS

RABINOWITZ, BOUDIN, STANDARD,

KR'NSKY & LIEBERMAN, P.C.

30 East 42nd Street

New York, New York 10017

(212) OX 7-8640

CHARLES J. MERTEN

KAREN FINK

RICHARD YUGLER

MERTEN & FINK

117 S.W. Taylor

Portland, Oregon 97204

(503) 227-3157