Petition for Writ of Certiorari — International Society for Krishna Consciousness v. George

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Supreme Court of the Unit

October Term, 1939 :

INTERNATIONAL SOCIETY FOR KRISHNA

CONSCIOUSNESS OF CALIFORNIA, ET AL.,

Petitioners,

ROBIN GEORGE AND MARCIA GEORGE,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA,

FOURTH APPELLATE DISTRICT

»N

MIcHAEL W. McConneELi

Counsel of Record

ANDREW L. Frey

Tuomas C. BERG

Mayer, Brown & Piatt

190 S. La Salle St.

Chicago, IL 60603

(312) 701-7201

EpwarD McGLynn Garrney, Jr.

1149 S. La Jolla Ave.

Los Angeles, CA 90035

(213) 934-8307

Davip LIBERMAN

2049 Century Park East

Suite 3160

Los Angeles CA 90067

(213) 277-9288

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

regen om.

ee ate ae a

Ras

QUESTIONS PRESENTED

1. Whether the First Amendment prohibits the imposi-

tion of common law tort liability for intentional infliction of

emotional distress on the basis of religiously motivated acts

by church officials, in the absence of a finding of actual

malice manifesting an intent to inflict harm on the plaintiff.

2. Whether the imposition of civil liability on a reli-

gious body may be sustained where the jury instructions,

pleadings, argument, and testimony defined the tort as encom-

passing constitutionally protected as well as unprotected ac-

livily.

3. Whether a punitive damages award may be sustained

where its inevitable effect is to require seizure of church

properties essential to the religious observances of devotees

and worshippers who had no part in any wrongdoing; or, in

the alternative, whether any such award against a religious

body must be based on clear and convincing evidence and

guided by clear instructions regarding the amount to be

awarded.

4. Whether the libel judgment violated clearly estab-

lished constitutional standards under the First Amendment.

PARTIES TO THE PROCEEDING

In addition to the parties named in the caption, the

International Society for Krishna Consciousness of New

York, the International Society for Krishna Consciousness of

Louisiana, and the International Society for Krishna Con-

sciousness of Canada were defendant-appellants in the action

below and are petitioners herein. Roy Christopher Richard

and Nico Kuyt were also defendant-appellants in the action

below and are denominated respondents in this Court pursuant

to Sup Ct. R. 12.4.

iil

TABLE OF CONTENTS

Page

TS ee ee ee Te ee eee ee ee i

PPT TET il

ee ee a eer re iv

cee) kak 646s 66 ee bee eho ek ORS l

ea Oe hs hag kan kee es CA 8 64S RRA l

Constitutional Provisions Involved ................... l

aa e hs Lk ok 54 5.0.4 @ ues Anse 486 9 0:4" Oona bo 2

measoms toe Cereniime tie Peltion...................- 9

I. Liability for Infliction of Emotional Distress May

Not Be Imposed for Religiously Motivated Acts

Without a Finding of Actual Malice Manifesting

Se I WP US ROTO cick ccc enc ncneens

Il. Liability for Tortious Conduct May Not Be Im-

posed If the Definition of the Tort Given to the

Jury Encompasses Constitutionally Protected As

Well As Unprotected Conduct ................

III. The Punitive Damages Award Violated the First

Amendment and the Due Process Clause.........

et ES oe rr

Appendix

ppement GE Pettion for Review. ................ App.

ee App.

Superior Court Opinion on Remittitur

TABLE OF AUTHORITIES

Page

CasEs:

Acosta v. Honda Motor Co., 717 F.2d 828 (3d Cir.

a EET Ee EEE TT ee OEY Fe rar een 27

Addington v. Texas, 441 U.S. 418 (1979).............. 27

Airport Commissioners v. Jews for Jesus, 482 U.S.

WE SEER Daas Uk ctu a eek arene ts at SNe 12

Bankers’ Life & Casualty Co. v. Crenshaw, 108 S. Ct.

RO UN cree re ei ee ees 28

Boos v. Barry, 485 U.S. 312 (1988)................... 16

Brockett v. Spokane Arcades, Inc., 472 U.S. 491

PEE canna Naas NLA Ce uch BE EKe Peaeiw ek 13

Browning-Ferris Industries v. Kelco Disposal, Inc.,

109 S. Ct. 2909 | cag, EN OE, Tee EET eee 27

Canada Dry Corp. v. Nehi Beverage Co., 723 F.2d

Pe ae I WU 5 C0 ork a sR cook sensu iwekvecnas 27

Carrieri v. Bush, 69 Wash. 2d 419 P.2d 132 (1966) .... 16

Christofferson v. Church of Scientology, 57 Or. App.

203, 644 P.2d 577, 590 (1981), review denied, 293

Or. 456, 650 P.2d 928 (1982), cert. denied, 459

ee HU NS 6 oS So eh ka wae nauhe Redox ccs 15

Church Universal & Triumphant, Inc. vy. Witt, No.

BO21187 (Cal. App., 2d Dist. 1989), cert. denied.

58 U.S.L.W. 3449 (Jan. 16, 1990) .................. 12

Dun & Bradstreet, Inc. v. Greenmoss Builders, 472

ee SU Ns 5 koe eee ies Se ee 8

Electrical Workers v. Foust, 442 U.S. 42 (1979) ... 25, 26

Embry v. Holly, 293 Md. 128, 442 A.2d 966 (1982)

TABLE OF AUTHORITIES — Continued

Page

Fowler v. Rhode Island, 345 U.S. 67 (1953)........... 17

Founding Church of Scientology v. United States, 409

F.2d 1146 (D.C. Cir.), cert. denied, 396 U.S. 963

bp) REET ETE OTE eee re eo Peed ee 19

Frazee v. Illinois Dep’t of Employment Security, 109

BS. GR. BSUS CRD ova ive we keccrvenkatdeketueweses 11

Gertz v. Robert Welch, inc., 418 U.S. 323 (1974)

Laws eskbas caeie eek eee eee ree, a ee ee

Greenbelt Cooperative Publishing Ass'n v. Bresler,

SPS U.. D Lee Pes i hoacantaseakvcwcebeus tian 11

Guinn v. Church of Christ of Collinsville, 775 P.2d

FG CO CO ok. 0 ek ee ee eS iy wae

Hester v. Barnett, 723 S.W.2d 544 (Mo. Ct. App.

tp ee rence un Ho Ss Puig 15

Hustler Magazine v. Falwell, 485 U.S. 46 (1988)

onnv ade bd setae de cass wees eer ae 10, 13, 16, 18

ISKCON vy. Barber, 650 F.2d 430 (2d Cir. 1981) .....2, 29

Late Corporation of Church of Jesus Christ of Latter

Day Saints v. United States, 136 U.S. 1 (1890)... .9, 25

Linthicum v. Nationwide Life Ins. Co., 150 Ariz. 326,

Tae O06 Gls CURE; 60.6 Nb oa seeae ks canteens Pera 3

Madsen v. Erwin, 395 Mass. 715, 481 N.E.2d 1160

CEO). o vcnnuccvennckbusweetssdeeeebeawaneaeea eee 15

Masaki v. General Motors Corp., 780 P.2d 566 (Haw.

Ss kc uiccaNnusdaunvabiucseavauecuetaueesseneumiues 27

McDaniel v. Paty, 435 U.S. 618 (1978). ............... 17

McNair v. Worldwide Church of God, 197 Cal. App.

3d 363, 242 Cal. Rptr. 823 (2d Dist. 1988).......... 15

TABLE OF AUTHORITIES — Continued

Murphy v. ISKCON, A.C. No. 88-P-1209 (Mass.

I 0 555 ksh e0.04 SbB ECO NEKE DE COER ELE

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

NAACP vy. Claiborne Hardware Co., 458 U.S. 886

(1982)

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

Ewe OSS 24 * TERA DEARDADAD AR CE EBA DS CS ES EB A OR So OO S-6 SDA

URGES CESAR ah bie a ks 6-0 buh see e ke eek ow 44, O35, 15,. 27

Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981) 25, 26

O'Neil v. Schuckardt, 112 Idaho 472, 733 P.2d 693

SS 5 AON 66 EE KEN ahah eee 12, 16

Paul v. Watchtower Bible & Tract Society, 819 F.2d

875 (9th Cir.), cert. denied, 484 U.S. 926 (1987) .... 14

People v. Murphy, 98 Misc. 2d 235, 417 N.Y.S.2d 540

rn ee Sree,

Personnel Administrator v. Feeney, 442 U.S. 256

conc eee T eT Tee Te reer neta 14

Philadelphia Newspapers, Inc. v. Hepps, 475 U.S.

i NS ChikD Kk Cat bok ceed Ree ead deen ease tnkencs 11

Pillar of Fire v. Denver Urban Renewal Authority,

181 Colo. 411, 509 P.2d 1250 (1973) ............... 25

Radecki v. Schuckardt, 50 Ohio App. 2d 92, 361

Pree DOD CUBIS). ica wnscnascsacacuwssceven 15

Raley v. Ohio, 360 U.S. 423 (1959)... .00.....00....... 8

Rasmussen v. Bennett. 228 Mont. 106, 741 P.2d 755

re eT eee ee ene Tae ne 15

Kogins!. », Richardson-Merrell, Inc., 378 F.2d 832

SEL. TOUR wien oe Cidiw eines ad Chee Rewer re. 27

Rowlett v. Anheuser-Busch, Inc., 832 F.2d 194 (1st

ee : Sr nr ener Risin caves siete Gl, 28

Vii

TABLE OF AUTHORITIES —- Continued

Page

Street v. New York, 394 U.S. 576 (1969) ... 17, 19,°20, 24

Stromberg v. California, 283 U.S. 359 (1931)...... 18, 24

Thornhill v. Alabama, 310 U.S. 88 (1940)...........-. 12°

Travelers Indemnity Co. v. Armstrong, 442 N.E.2d

SE TN, THe 6.6.4 006 cn hv ncewe end ek comuanere vices 27

Tuttle v. Raymond, 494 A.2d 1353 (Me. 1985)......... 27

Wangen v. Ford Motor Co., 97 Wis. 2d 260, 294

Ee EF CET 5 sic cs nics n nieces coeaevereecends 27

Wollersheim v. Church of Scientology, 212 Cal. App.

3d 872, 260 Cal. Rptr. 331 (2d Dist. 1989).......... 12

Yonkers Racing Corp. v. City of Yonkers, 858 F.2d 855

(2d Cir. 1988), cert. denied, 109 S. Ct. 1527 (1989)... . 25

STATUTES AND RULE:

eS 2 | Sr rem rrr rr tr: 26

Alaska Stat. § 09.17.020 (Supp. 1987).............055. 27

a ee Be OE RR Peer rr eT er or TT ere? yee eT 14

Cal. Civ. Code § 3294 (Supp. 1988) ..............005- 27

oe, fe 2 | RererrrrrriTererriereet 29

Kan. Stat. § 60-3701 (Supp. 1987).............000005 27

Ky. Rev. Stat. Ann. § 27-1-221 (1985) .............55. 27

Ohio Rev. Code § 2307.80 (Supp. 1987)............... 27

Or. Rev. Stat. § 30.925(1) (1979) ......... 00.0 e eee ee 27

Ck ee Or ee a ce aki kncacn eee cee eeaiae eeu 6

Vili

TABLE OF AUTHORITIES — Continued

Page

MISCELLANEOUS:

oe et | er 27

RR a re ee eee BE

M. Eliade, 7 Encyclopedia of Religion 266 (1987)....... 2

Model Uniform Product Liability Act § 120(A)........ 27

Srimad Bhagavatam 3d Canto, 25th chapter, verse 25..... 3

]

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEAL OF THE STATE OF CALIFORNIA,

FOURTH APPELLATE DISTRICT

The International Society for Krishna Consciousness of

California, of New York, of Louisiana, and of Canada (here-

inafter ISKCON) petition for a writ of certiorari to review the

judgment of the Court of Appeal of the State of California,

Fourth Appellate District, in this case.

OPINIONS BELOW

The order of the Supreme Court ‘of California denying a

petition for review (Pet. App. 1a) is not reported. The opinion

of the Court of Appeal, as modified (Pet. App. 2a), was

originally Teported at 213 Cal. App. 3d 729, but was depub-

lished by order of the California Supreme Court. The order of

the Superior Court granting a remittitur and denying a motion

for a new trial (Pet. App. 81a) is not reported.

JURISDICTION

The judgment of the Court of Appeal was entered on

August 30, 1989. The order modifying the opinion and deny-

ing the motion for rehearing was entered on September 29,

1989. A timely petition for review was denied by the Supreme

Court of California on November 30, 1989. The jurisdiction

of this Court is invoked under 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

The First Amendment to the United States Constitution

provides, in relevant part: “Congress shall make no law re-

specting an establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of speech.” The

Fourteenth Amendment provides, in relevant part: “nor shall

any State deprive any person of life, liberty, or property,

without due process of law.”

STATEMENT

1. The story can be told in lurid detail, but the essential

facts are these. Robin George, whom the Court of Appeal

described as “a bright and gifted high school student of

above-average intelligence and maturity” (Pet. App. 32a), ran

away from home in 1974 at the age of 15 and sought refuge at

the local Hare Krishna temple, a faith to which she had

converted and to which her parents were strenuously opposed.

With the permission of her parents, she had visited the temple

on numerous occasions, and had become attracted to the

religion, a monotheistic branch of devotional Hinduism, for-

mally known as Gaudiya Vaishnavism.' While living at home,

Robin read the Krishna scriptures, adopted Krishna styles of

dress and appearance, passed out Krishna literature at school,

adhered to Krishna diet, erected a Krishna shrine in her

bedroom, and arose before dawn each morning to chant on her

prayer beads and perform religious devotions. Pet. App. Sa.

Her parents responded by destroying the shrine, confiscating

her prayer beads, and ordering her to cease her religious

devotions. /d.; RT 962.

The president of the local temple, respondent Roy Chris-

topher Richard, who has since been expelled from the faith,

met with Robin to discuss her decision to adopt the Krishna

faith. While the details of this discussion are contested, Rich-

ard evidently advised Robin that if she were sincere in her

religious commitment she could not continue to live at home.

Pet. App. 6a. It is not clear from the context whether this

advice was predicated on the hostility toward Krishna Con-

sciousness exhibited by Robin’s parents or on the general

' For concise descriptions of the religion of Krishna Consciousness,

see M. Eliade, 7 Encyclopedia of Feligion 266, 266-68 (1987); ISKCON

v. Barber, 650 F.2d 430 (2d Cir. 1921).

tenet of the Krishna faith that counsels devotees to live in

monastic communities.2

On November 16, 1974, Robin left her house through a

bedroom window and went to the ISKCON temple. At Rob-

in’s instigation and with her full knowledge, consent, ana

cooperation, Richard and several other ISKCON officials un-

dertook to conceal Robin’s whereabouts from her parents over

the course of approximately one year. Among other things,

they (1) lied to the parents and police when they came

searching for Robin, saying she was not staying at an ISK-

CON temple; (2) helped Robin escape in such situations,

providing her with disguises and facilitating transportation to

temples in distant cities; and (3) concocted false letters from

Robin to her parents and others, which stated that she had left

the religion and was travelling in Mexico. Summarizing the

evidence, the Court of Appeal stated: “there was every objec-

tive indication that Robin actively sought defendants’ assis-

tance and fully cooperated in their efforts to hide her from her

parents.” Pet. App. 36a n.24.

During this period, Robin was by all outward appear-

ances a genuine convert and devotee to Krishna Conscious-

ness. By her own admission, she “adopt{ed] and sincerely

believe[d] in” the religion. 11 RT 1845. She lived in the

temple precincts as other devotees lived (a communal and

ascetic way of life), attended classes with other devotees on

the Bhagavad-Gita and other scriptures, kept the schedules

that other devotees keep (including rising in the early morn-

ing hours for chanting and devotions), ate the food that other

devotees eat (a Strict vegetarian dict), engaged in the prac-

tices that other devotees engage in (including sankirtan, a

ritual form of evangelism and mendicancy), and expressed

beliefs, such as in reincarnation, that other devotees share.

2 In the Krishna faith, it is believed that unmarried devotees should,

whenever possible, live together in monastic surroundings called ‘“ash-

rams.” Srimad Bhagavatam 3d Canto, 25th chapter, verse 25.

Perhaps not surprisingly, Robin’s parents were upset al

her conversion. They spared no efforts to locate her, return

her to home, and cause her to cease her adherence to the

tenets of Krishna Consciousness. At one point, police in New

Orleans turned Robin over to her father, Jim George, who

took her home. She was there for three wecks, but was

unwilling to stay. To prevent her departure, Robin’s parents

chained her to the toilet at night and got involved in physical

scuffles with her. During the trip home, her father struck her

to prevent her from chanting (Pet. App. 10a-11a), and while

she was home her parents burned her copy of the Hindy’s holy

book, the Bhagavad-Gita (RT 962). At the earliest oppor-

tunity, she again escaped from home and returned to the

temple, where she informed various devotees that her parents

had beaten and mistreated her. 36 RT 7082-83. Robin and her

friends in ISKCON thereafter redoubled their efforts to mis-

lead her parents.

At no point during that year were Robin’s parents actu-

ally persuaded by the lies, false documents, or other forms of

concealment. They continued to believe that their daughter

was living in an ISKCON temple, and they mounted a major

public relations and legal campaign to pressure ISKCON

officials in California to bring about her return. As a result of

these efforts, temple officials eventually ordered Robin to

return to her home — an act which she later admitted at an

“anti-cult” press conference was “the worst thing” the

Krishnas had done to her. 32 RT 6206, 6231-32.

Four months after Robin returned home, her father died

of a heart attack. An expert witness testified at trial that the

Stress resulting from Robin’s sojourn with the Krishna move-

ment could have contributed to Jim George’s death. Some

months later, Robin and her mother, Marcia George, became

involved in an “anti-cult” organization and spoke out against

the religion on television and in the news media. At a press

conference where Robin was scheduled to speak, officials of

ISKCON distributed a release giving their side of the story. It

was alleged that this release defamed Marcia George by

implying that Robin had run away from home originally

because her parents had beaten her.

2. Robin and Marcia George filed suit against four

“ISKCON entities and two individuals on a number of claims,

of which four went to trial: false imprisonment (as to Robin),

intentional infliction of emotional distress (Robin and Mar-

cia), libel (Robin and Marcia), and wrongful death (Robin).

Pet App. 22a.

The “centerpiece” (Pet. App. 23a) of the suit was Robin’s

claim of false imprisonment, which was ultimately thrown out

by the Court of Appeal on the ground that it was based on

constitutionally protected conduct and the free religious

choice of Robin. The plaintiffs’ theory was that the religious

practices and beliefs of Krishna Consciousness (diet, methods

of worship, schedule, communal! living arrangements, and

belief in reincarnation) are so debilitating and psycho-

logically coercive that Robin was “brainwashed” into adher-

ence to the religion. See Pet. App. 33a-35a. According to

plaintiffs’ closing argument, “the whole nut of this case

revolves around this false imprisonment charge,” and the

other claims were “hogwash” if there was no false imprison-

ment. Pet App. 23a-24a n.15, 44 RT 8481, 8526-8527.

Pursuant to this theory of liability, much of the testimony

and argument at trial was devoted to portraying the life of a

Krishna devotee — Robin’s life — as psychologically and

physically dangerous, and to depicting the horrified reaction

of Robin’s parents to her conversion. The jury heard five days

of testimony from two supposed experts on “cults” about the

evils of Krishna Consciousness (1 RT 279, 27 RT 5113 — 29

RT 5527; 31 RT 5871-6002), and two days from a disgruntled

former member, whom the trial judge accepted as an “expert”

(22 RT 4269), giving a highly pejorative version of the tenets

of the religion (21 RT 4045 — 22 RT 4361). Plaintiffs’ counsel

urged the jurors to “imagine your child going to the Hare

Krishna temple,” where they would be taught that their par-

ents are “meat eating karmi demon{s]” (44 RT 8499). He

compared the Krishna movement to Dracula, trying to lure

Robin “to her destruction” (id. at 8513-14).

The jury found joint and several iability against all

defendants on all counts. It awarded a total of $32,587,500

The trial judge reduced these damages (Pet. App. 23a) and the

plainuffs accepted the remittitur. After the remittitur, the

damages stood as follows:

Cause of Action Jury Award After

Remittitur

False imprisonment (Robin)

Compensatory $1.5 million $1.5 million

Punitive $15 million $5 million

Emotuonal Distress

Compensatory (Robin) $250,000 $250,000

Compensatory (Marcia) $1.5 million $400,000

Punitive (Joint) $12.25 million $2 million

Libel

Compensatory (Robin) $2,500 $2,500

Compensatory (Marcia) $10,000 $10,000

Punitive (Joint) $2 million $500,000

Wrongful Death (Robin)

Compensatory $75,000 $75,000

Punilive N/A N/A

Total $32,587,500 $9,737,500

3. On appeal, petitioners challenged each aspect of the

judgment against them under the First Amendment of the

United States Constitution, as applied to the states through

ihe Fourteenth Amgndment. See Br. of ISKCON of New York

al 4-45 (First Amendment challenge to false imprisonment

claim):* Richard Br. at 4-5 (First Amendment challenge to

° Each of the petuuuoners adopted by reference the opening briefs of

their co-appellants in the Court of Appeal, pursuant to California Rule of

Court 13.

—— fe

intentional infliction of emotional distress claim as to Robin):

id. at 3-4, 9-11, ISKCON of Louisiana Br. at 8-35 (First

Amendment challenge to intentional infliction of emotiona!

distress claim as to Robin’s parents, which subsumes the

wrongful death claim as to her father); Kuyt Br. at 25-51

(First Amendment challenge to libel claim). Moreover, peti-

tioners launched a broad-based attack on the entire proceed-

ng under the First Amendment, contending that the nebulous

nature of the claims, the inflammatory character of the evi-

dence submitted in support of those claims, and the intensive

and hostile scrutiny of Krishna religious beliefs and practices

invited the jury to punish petitioners for their unconventional

and unpopular religious beliefs. ISKCON of Louisiana Br. at

114-145. Finally, petitioners challenged the awards of puni-

tive damages as violating the Due Process and Excessive

Fines Clauses and the First Amendment (Richard Br. at

35-45).

The Court of Appeal reversed all judgments in favor of

Robin (other than in her capacity as heir to her father, on the

wrongful death count) on the ground that she had joined the

Krishna religion of her own free will, that there had been no

threat or use of force of any kind, and that Robin had the

capacity to consent. The court concluded that “Robin’s brain-

washing theory of false imprisonment is no more than an

attempt to premise tort liability on religious practices the

Georges find objectionable. Such a result is simply inconsis-

tent with the First Amendment.” Pet. App. 35a.

The Court of Appeal affirmed the judgment on all other

counts. With respect to the intentional infliction of emotional

distress claim as to Marcia George, the court declined to

explain what it considered the boundary between constitu-

tionally protected and unprotected conduct to be, stating only

that “[blecause the actionable conduct here involved far more

than the mere preaching of religious beliefs or making state-

ments of opinion,” it “need not consider” the degree ol

constitutional protection that should be accorded petitioners:

“religiously motivated importuning of a minor to leave his

parent or guardian.” Pet. App. 39a n.26. In response to peti-

tioners’ contention that the plaintiffs had not proven that the

“alleged conduct on the part of defendants was intended to

cause them emotional distress” (Richard Br. at 7), the Court

of Appeal held it sufficient that plaintiffs “knew” that their

conduct “was likely to cause the Georges severe emotional

suffering” (Pet. App. 39a).

The court also rejected petitioners’ argument that the

instructions, argument, and evidence permitted the jury to

include in its verdict damages for constitutionally protected

conduct, namely, the conversion of Robin. Pet. App.

41a-43a.4 The court engaged in an independent “review of the

record,” on the strength of which it concluded that the dam-

ages awarded by the jury “were nct” based on constitutionally

protected activity. /d. at 43a.

Finally, the Court of Appeal upheld the award of punitive

damages. It declined to extend protections under the Due

Process Clause “pending further action by the United States

or California Supreme Courts” (Pet. App. 75a). And it re-

jected arguments for protection under the First Amendment

on the ground that “(t]he United States Supreme Court has

placed no such limitation on the imposition of punitive dam-

ages in state defamation actions involving private persons.”

Id. at 76a.

4. With interest, the total judgment now amounts to

approximately $5 million. Unable to post a statutory bond,

petitioners have been forced to place into voluntary receiver-

ship all of their real property and substantially all of their

tangible personal property. This includes their temples (in-

cluding the Los Angeles temple, the center and worldwide

headquarters of their faith), along with associated ashrams

4 The court stated that petitioners raised this objection for the first

time on appeal, but it nonetheless addressed the issue on ihe merits. The

federal question is therefore properly presented. Dun & Bradstreet, Inc. v.

Greenmoss Builders, 472 U.S. 749, 754 n.2 (1985) (plurality opinion);

Raley v. Ohio, 360 U.S. 423, 436-37 (1959).

+ cco cenit

(tnonastic living facilities) and schools. Plaintiffs have even at-

tempted to seize control of petitioners’ religious book publishing

entity, which prints the Bhagavad-Gita, other holy books, and

religious materials. If the judgment below is not reversed, vir-

tually ali of this property will be lost.© This is a virtual death

sentence for the religion of Krishna Consciousness in most of the

United States and Canada.

REASONS FOR GRANTING THE PETITION

The assets of the Hare Krishna religion in most of North

America have been placed in the hands of a state-appointed

receiver and, unless the judgment is reversed, will be tumed over

to avowed enemies of the religion. For the first time in this country

since the anti-Mormon frenzy of the 19th Century, an entire

religion stands subject to destruction and the confiscation of its

property at the hands of the state. See Late Corporation of Church

of Jesus Christ of Latter Day Saints v. United States, 136 U.S. 1

(1890). On the outcome of this case hinges the very survival of

petitioners’ religion.

Petitioners acknowledge that some of their actions were un-

lawful and could be made the basis for civil liability under proper

legal standards. We agree that there is no constitutional right to

conceal a minor or to deceive her parents about her whereabouts.

But we submit that the proceeding below tumed into a trial of what

plaintiffs’ counsel called the “pernicious evil” (44 RT 8563) of the

Krishna Consciousness religion, and that the jury awarded dam-

ages, including punitive damages, in an amount calculated to bring

the religion in this country to an end.

This Court has recognized that the “largely uncontrolled

discretion of juries to award damages” can “inhibit the

> The details of this receivership, with documentation of the impact

of the judgment on the Krishna faith, is part of the record. See Petition for

Writ of Supersedeas and Request for Immediate Temporary Stay, and

related filings.

erties placed into receivership at between $5,125,000 and $6,750,000. See

Receiver’s Supplemental Report No. 2, at 4. As noted, the amount of the

judgment, with interest, is about $5 million.

vigorous exercise of First Amendment freedoms” and can

enable them “to punish unpopular opinion rather than to

compensate individuals for injury.” Gertz v. Robert Welch,

Inc., 418 U.S. 323, 349 (1974). Accordingly, the Court has

insisted that when tortious conduct “occurs in the context of

constitutionally protected activity” — such as conversion into,

and practice of, religion — “ ‘precision of regulation’ is de-

manded.” NAACP v. Claiborne Hardware Co., 458 U.S. 886,

916 (1982); NAACP v. Button, 371 U.S. 415, 438 (1963). A

system of procedural and substantive protections has there-

fore been established, in iegal contexts closely analogous to

this, to accommodate the legitimate interests of the state in

redressing injury with the requirements of the First Amend-

ment. Those protections should be extended to the tort of

intentional infliction of emotional distress, when based on the

religiously motivated acts of church officials.

The judgment below violates First Amendment protec-

tions? in three respects, each of which raises an issue of

federal constitutional law sufficiently important to warrant

review by this Court. First, the jury imposed liability for the

infliction of emotional distress without a finding of actual

malice manifesting the intent to inflict harm on unconsenting

plaintiffs. See Hustler Magazine v. Falwell, 485 U.S. 46

(1988).8 Second, the definition of the tort of infliction of

emotional distress, as communicated to the jury, encompassed

constitutionally protected as well as unprotected

7 The First Amendment rights at stake are the free exercise of

religion, the prohibition against establishment, and the freedoms of

speech and association, applicable to the State through the Fourteenth

Amendment. The imposition of civil liability pursuant to state tort law

constitutes state action. New York Times Co. v. Sullivan, 376 U.S. 254,

265 (1964).

8 The jury was instructed that it could not find the defendants liable

on the wrongful death claim unless they were liable for intentional

infliction of emotional distress against the decedent, Jim George. 44 RT

8405-06. If the intentional infliction judgment is constitutionally flawed,

the $75,000 judgment for wrongful death must therefore also be reversed.

conduct. The breadth of definition permitted — indeed, en-

couraged — the jury to “punish” petitioners through damages

for their unconventional religious practices and beliefs, in

violation of the First Amendment. See NAACP vy. Claiborne

Hardware Co., 458 U.S. at 915-18. Third, the punitive dam-

ages award is so large that its inevitable effect is to force the

seizure of temples, schools, monastic living facilities, and

other properties needed for religious observances. Since this

burden on religious exercise is not justified by any compcl-

ling governmental interest (Gertz, 418 U.S. at 349), it is

unconstitutional. Frazee v. Illinois Department of Employ-

ment Security, 109 S. Ct. 1514, 1518 (1989). The punitive

damages award was further flawed in that it was imposed on

the basis of a mere preponderance of the evidence, and

without clear guidance or instructions in setting the amount.

See Gertz, 418 U.S. at 350.9

These issues are of pressing importance. Although almost

unknown a decade ago, tort actions against churches for

emotional injuries allegedly suffered by former members and

families have become commonplace, and juries have proven

themselves willing to award crippling damages with little

guidance or control by the courts. At least three non-main-

strcam religions are currently threatened with tort judgments

? The libel judgment also violated federal constitutional standards.

Although these issues are sufficiently settled that they might not warrant

certiorari review in and of themselves, if the Court grants this petition it

should also review the libel judgment for the following clear errors: (1)

the instructions to the jury defined “actual malice” as including “hatred or

ill will” (Pet. App. 58a n.39, R.T. 8398), contrary to Greenbelt Coopera-

tive Publishing Ass'n v. Bresler, 398 U.S. 6 (1970), and New York Times

Co. v. Sullivan, 376 U.S. 254 (1964); (2) the burden of proof was placed

on the defendants to prove the absence of actual malice (R.T. 8393,

8398), in violation of Gertz, 418 U.S. at 342, and New York Times, 376

U.S. at 285-86; and (3) the burden of proof was placed on defendants to

prove the truth of their statements (R.T. 8399), in violation of Phila-

delphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776-77 (1986).

in excess of $1 million for alleged emotional injuries.'° These

loosely defined torts now constitute a most serious threat to

the continued existence of unpopular minority religions.

I. LIABILITY FOR INFLICTION OF EMOTIONAL

DISTRESS MAY NOT BE IMPOSED FOR RELI-

GIOUSLY MOTIVATED ACTS WITHOUT A FIND-

ING OF ACTUAL MALICE MANIFESTING AN

INTENT TO INFLICT HARM

The principal cause of action surviving in this case is the

“intentional infliction of emotional distress.” But this label is

a misnomer. As interpreted by the Court of Appeal below, the

mens rea necessary to establish liability is mere knowledge

that the conduct in question was likely to cause the emotional

distress. Pet. App. 39a. The jury was specifically instructed

that “[dJefendant intended to inflict emotional distress if it is

established he desired to cause such distress or knew such

distress substantially certain to result from his conduct.” 44

RT 8403 (emphasis added). Thus, liability can be imposed

under this tort so long as the defendants “knew” that the

conduct would cause distress, whether or not they “intended”

that it should.

So defined, the tort becomes a virtually uncontrolled

instrument of jury discretion, “sweep[ing] within its ambit”

constitutionally protected speech and conduct. Thornhill v.

Alabama, 310 U.S. 88, 97 (1940); see Airport Commissioners

v. Jews for Jesus, 482 U.S. 569 (1987). The practice of an

unfamiliar religion can be expected — “known” — to produce

distress in those who are committed to other religious faiths,

particularly if their loved ones are among the followers.

10 See Wollersheim v. Church of Scientology, 212 Cal. App. 3d 872,

260 Cal. Rptr. 331, 344 (2d Dist. 1989) ($2.5 million); Church Universal

& Triumphant, Inc. v. Witt, No. B021187 (Cal. App., 2d Distr 1989), cert.

denied, No. 89-672, 58 U.S.L.W. 3449 (Jan. 16, 1990) (over $1.5

million); O'Neil v. Schuckardt, 122 Idaho 472, 733 P.2d 693, 699-701

(1986) ($1 million award on invasion of privacy claim); cf. Guinn v.

Church of Christ of Collinsville, 775 P.2d 766 (Okla. 1989) ($390,000

award against local congregation).

Under this definition the cause of action is thus constitu-

tionally overbroad. NAACP v. Button, 371 U.S. 415, 432-33

(1963); Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503

(1985). Without limitation to purposeful and malicious inju-

ries (the historic ambit of the tort), the intentional infliction

of emotional distress cannot be the basis for civil liability for

the religiously motivated acts of church officials.

This Court has held that the publication of an offensive

parody of a public figure cannot be the basis of liability for

the intentional infliction of emotional distress in the absence

of a finding of actual malice. Hustler Magazine v. Falwell,

485 U.S. 46 (1988). That decision was based on the judgment

that the actual malice standard performs the same role in

connection with the emotional distress tort as it does with the

tort of defamation: “to give adequate ‘breathing space’ to the

freedoms protected by the First Amendment.” /d. at 56. The

religiously motivated acts of church officials are entitled to at

least as much constitutional protection as was given Hustler

Magazine. Since legitimate religious activity so often in-

volves the infliction of emotional distress, a requirement that

the conduct be motivated by actual malice toward the plaintiff

helps to ensure that this expansively-defined tort will not

impinge upon constitutionally protected freedoms.

In the context of libel, the term “actual malice” has been

given a specialized meaning: knowledge that a statement is

false or reckless disregard of whether it is false. New York

Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964). But, as

this Court has noted, “this does not mean that a literal appli-

cation of the actual malice rule [as construed in New York

Times] is appropriate in the context of an emotional distress

claim.” Hustler Magazine, 485 U.S. at 49. Im the context of

emotional distress from religiously motivated conduct, the

issue of “falsity” is beside the point. Unlike defamation,

which is the tort of telling falsehoods, intentional infliction of

emotional distress is the tort of deliberately causing emotion-

al suffering. Thus, the relevant meaning of actual malice in

this context is closer to its traditional common law definition:

action motivated by the desire to inflict harm on others. To be

actionable, the conduct must be taken not merely in the

knowledge that it would cause distress, but for the purpose of

causing distress. Cf. Personnel Administrator v. Feeney, 442

U.S. 256, 279 (1979) (action is purposeful if taken “at least in

part ‘because of,’ not merely ‘in spite of,’ ” its discriminatory

effect).

It is most unlikely that the evidence in this case could

have sustained a judgment for the plaintiffs under an actual

malice standard. The reason the ISKCON officials concealed

Robin and misled her parents was to assist her so that she

could practice her chosen religion without interference. These

officials may well have “known” that this would inflict emo-

tional distress on Marcia George, but it could hardly be

thought that this was their motivation.!!

This Court’s guidance is needed to inform the decisions

of the state and lower federal courts faced with claims of

emotional injury at the hands of church officials. In Paul v.

Watchtower Bible & Tract Society, 819 F.2d 875 (9th Cir.),

cert. denied, 484 U.S. 926 (1987) the Ninth Circuit recog-

nized that the breadth of the tort of intentional infliction is a

danger to religious liberty. “Intangible or emotional harms

cannot ordinarily serve as the basis for maintaining a tort

cause of action against a church for its practices,” according

to the court, for “[w]ithout society’s tolerance of offenses to

11 This does not mean that Marcia George was without legal redress

for petitioners’ acts “to assist Robin in running away and to conceal her

from her parents.” Pet App. 39a. Under California law, concealing a

minor from her parents is a violation of California Civil Code § 49

(interference with personal relations), a more narrowly defined tort that

does not present the substantial overbreadth problems of the emouonal

distress tort. Marcia George, however, waited until after the statute of

limitations had run to file suit on this cause of action, and it was therefore

dismissed on demurrer before trial. The contours of the intentional

infliction of emotional distress tort should not be twisted merely because

the plaintiff allowed the statute of limitations to lapse on the claim she

should have made.

——

sensibility, the protection of religious differences mandated

by the first amendment would be meaningless.” /d. at 883.

The court concluded that a plaintiff would have to present

“evidence of actual malice,” which it interpreted in this con-

(ext to mean that the defendants’ allegedly tortious conduct

was “motivated by reasons unrelated to their interpretation of

the dictates of their religion.” Jd. at 883 n.7.!2

By contrast, the court below imposed no constitutional

limitation on the emotional distress cause of action,!3 on the

ground that any danger to constitutionally protected conduct

was obviated by the requirement of “outrageousness”:

'2 Other decisions that have imposed requirements of actual malice

on the part of church officials or analogous protections under the First

Amendment include: Hester v. Barnett, 723 S.W.2d 544, 555, 560, 563

(Mo. Ct. App. 1987) (various claims for emotional injury limited by

requirement of malice or intention to injure); Radecki v. Schuckardt, 50

Ohio App. 2d 92, 361 N.E. 2d 543, 545 (1976) (actual intention to break

up a marriage required to establish tort of alienation of affections against

religious official); Rasmussen v. Bennett, 228 Mont. 106, 741 P.2d 755,

758 (1987) (statements made in course of church disciplinary proceeding

protected in absence of malice); McNair v. Worldwide Church of God,

197 Cal. App. 3d 363, 377-78, 242 Cal. Rptr. 823, 832-33 (2d Dist. 1988)

(imposing New York Times actual malice standard in defamation action

against religious body); Christofferson v. Church of Scientology, 57 Or.

App. 203, 644 P.2d 577, 590 (1981), review denied, 293 Or. 456, 650 P.2d

928 (1982), cert. denied, 459 U.S. 1206 (1983) (reversing emotional

distress judgment for lack of evidence of force or threats of force).

'3 Other courts refusing to extend First Amendment protection in

analogous contexts include Guinn v. Church of Christ of Collinsville, 775

P.2d 766, 783 (Okla. 1989) (religiously motivated acts against a former

member are entirely “undeserving of First Amendment protection” if

performed without the plaintiff's consent); Madsen v. Erwin, 395 Mass.

715, 481 N.E.2d 1160, 1167 (1985) (allowing plaintiff to replead a claim

for emotional distress against religious organization that terminated her

employment because of her sexual orientation, stating that “a clergyman

may not with impunity defame a person, intentionally inflict serious

emouonal harm on a parishioner, or commit other torts”): Murphy v.

ISKCON, A.C. No. 88-P-1209 (Mass. Super. Ct. 1988) (appeal pending)

(Conunued on following page)

Although the jury was only instructed in general

terms on intentional infliction of emotional distress,

these instructions did specify that the actionable

conduct had to be “extreme and outrageous” going

beyong “all possible bounds of decency so as to be

regarded as atrocious and utterly intolerable in a

civilized community.” (44 RT 8402.)

Pet. App. 40a. But as this Court has observed, “the pejorative

description ‘outrageous’ does not supply” a “principled stan-

dard” for distinguishing between constitutionally protected

and unprotected speech. Hustler Magazine v. Falwell, 485

U.S. at 55; see Boos v. Barry, 485 U.S. 312, 322 (1988).

Indeed, “ ‘[oJutrageousness’ in the area of political and social

discourse has an inherent subjectiveness about it which would

allow a jury to impose liability on the basis of the jurors’

tastes or views, or perhaps on the basis of their dislike of a

particular expression.” Hustler Magazine, 485 U.S. at 55.

The same is true, perhaps more so, in the area of reli-

gious conduct, where it is not uncommon for minority reli-

gious practices to be deemed “outrageous” by mainstream

culture. One is forced to wonder whether the jury would have

considered it so “outrageous” if Roman Catholic nuns had

shielded Robin from parents who had broken her rosary,

burned her Bible, and forbidden her to pray. Because of its

inherent subjectivity, an “outrageousness” standard “runs

afoul of [the Court’s] longstanding refusal to allow damages

to be awarded because the speech in question may have an

adverse emotional impact on the audience.” /d.

(Continued from previous page)

($560,000 judgment for emotional distress based on religious teaching

allegedly demeaning to women); Carrieri v. Bush, 69 Wash. 2d 536, 419

P.2d 132, 135-37 (1966) (allowing suit for alienation of affections based

on religious teachings); O'Neil v. Schuckardt, 112 Idaho 472, 733 P.2d

693, 699-701 (1986) (same, under tort of invasion of privacy).

II. LIABILITY FOR TORTIOUS CONDUCT MAY NOT

BE IMPOSED IF THE DEFINITION OF THE TORT

GIVEN TO THE JURY ENCOMPASSES CONSTI-

TUTIONALLY PROTECTED AS WELL AS UN-

PROTECTED CONDUCT

The “centerpiece” of this case at trial was the plaintiffs’

now-discredited theory that petitioners “brainwashed” Robin

into a religion of which her parents heartily disapproved. Pet.

App. 33a. Proselytizing, however, is constitutionally pro-

tected conduct and, as the Court of Appeal held (Pet. App.

35a), it cannot be a basis for civil liability. McDaniel v. Paty,

435 U.S. 618, 626 (1978) (“the free exercise of religion

unquestionably encompasses the right to preach, proselyte,

and perform other similar religious functions”); Fowler v.

Rhode Island, 345 U.S. 67, 70 (1953) (court may not control

or regulate sermons). The various religious practices to which

Robin was exposed and which she willingly embraced, in-

cluding living in the religious community, are similarly pro-

tected. Pet. App. 34a-35a. If petitioners’ actions had been

conducted without concealment of Robin or deception of

Robin’s parents, there would have been no legitimate basis for

civil damages against petitioners. '4

It is well established that neither criminal nor civil lia-

bility may be imposed on the basis of conduct that includes

constitutionally protected speech. E.g., Street vy. New York,

394 U.S. 576, 585-90 (1969); Stromberg v. California, 283

U.S. 359 (1931). In NAACP vy. Claiborne Hardware Co., 458

U.S. 886 (1982), for example, the evidence showed that

participants in an NAACP-led boycott of commercial busi-

nesses in Claiborne County, Mississippi, had committed acts

of violence that fell outside the protection of the First Amend-

ment (id. at 916). This Court held, howcver, that “the

'4 Her parents could have sought legal protection for their presump-

live rights to physical custody of Robin, in which action Robin’s maturity

and her parents’ interference with her chosen religious practices would

presumably have been relevant to the final determination. But that

proceeding would have been between Robin and her parents.

presence of activity protected by the First Amendment im-

poses restraints on the grounds that may give rise to damages

liability.” Jd. at 916-17. It reversed the damages against the

NAACP and its co-defendants in their entirety, finding that

the pleadings, arguments of counsel, and jury instructions had

not adequately defined which elements of alleged injury were

“proximately caused by unlawful conduct” and which resulted

from constitutionally protected activity. /d. at 917-18. The

same principle, as extended to religious conduct and beliefs,

necessitates reversal of the emotional distress judgment in

this case in its entirety.

The Court of Appeal, however, crafted a novel exception

to this principle. It held that the tort element of “outrageous-

ness” sufficed to ensure that the verdict was based entirely on

petitioners’ wrongful acts and not on Robin’s conversion.

After quoting the jury instructions on “outrageousness,” the

court stated that “constitutionally protected proselytization

hardly fits this description,” and that “[iJt is inconceivable

that the jury could have regarded the preaching activities of

orthodox religions — even to minors — as ‘extreme and outra-

geous.’” Pet. App. 42a.'> On this basis, the court rejected

petitioners’ Claiborne Hardware claim. This ruling is directly

contrary to this Court’s more realistic observation in Hustler

Magazine, 485 U.S. at 55, that the “outrageousness” element

of the intentional infliction tort “would allow a jury to impose

liability on the basis of the jurors’ tastes or views, or perhaps

on the basis of their dislike of a particular expression.”

The Court of Appeal further concluded that any error at

trial could be obviated by its own independent “review of the

record,” along with the determination by the trial judge to

reduce the size of the award. On the basis of this review of

1S The court’s assumption that the jury would see Krishna Con-

sciousness as an “orthodox” religion is nothing short of astonishing,

especially in light of the lengthy testimony that portrayed the religion as

an abusive form of mind control. A jury might well reject the suggestion

that the proselytizing activities of an “orthodox” religion were “outra-

geous,” but there is every reason to believe that unorthodox religions are

given a far different reception.

the record (which, we would add, was ludicrously inade-

quate ©), the court believed it was “able to say ‘with certain-

ty’ that Robin’s conversion — and defendants’ constitutionally

protected actions to facilitate it — were not the basis for the

judgment in favor of Marcia.” Pet. App. 43a.

This post hoc reconstruction of the record is impossible

to square with Claiborne Hardware and with the petitioners’

right to have all necessary factual judgments made by the

designated fact-finder, in this case the jury. “[WJhere a jury’s

general verdict may have rested upon grounds improper for

First Amendment reasons, a reviewing court will not pause to

speculate whether the jury’s verdict was actually reached on

other, and permissible, grounds.” Founding Church of Scien-

tology v. United States, 409 F.2d 1146, 1164 (D.C. Cir.), cert.

denied, 396 U.S. 963 (1969) (emphasis in original). As this

Court has stated, a “post hoc explanation” for the verdict is

simply not “appropriate.” Street, 394 U.S. at 586.

Nor is the verdict saved by the trial court’s remittitur, as

held by the Court of Appeal. Pet. App. 43a. There is no

indication in the record that the trial court’s determination of

the proper level of damages was predicated on a clear demar-

cation between constitutionally protected and unprotected

conduct. “{I]f the ground of the judge’s decision cannot be

ascertained from the record, then the danger of unconstitu-

tional conviction is not significantly less than in the cases just

discussed [involving jury verdicts].” Street, 394 U.S. at 586."

_ In any event, a reduction in the size of the award cannot

remedy a legal defect in the finding of liability.

16 We detail our reasons for this assessment below. The Court of

Appeal’s evaluation of the record is not binding on this Court. Street v.

New York, 394 U.S. at 589.

'7 The Court of Appeal reversed the burden of proof on this

question. According to this Court, the judgment even in a bench trial must

be reversed if “the ground of the judge’s decision cannot be ascertained

from the record” (394 U.S. at 586). The Court of Appeal, by contrast,

operated on the assumption that it must affirm the judgment unless it

found a “basis in the record to assume the trial judge misunderstood the

proper basis for an award of emotional distress damages.” Pet. App. 43a.

That the jury’s verdict was based on an intertwining of

constitutionally protected activity (proselytizing) and un-

protected activity (deception and concealment) is evident

from an examination of five components of the lawsuit: (1)

the complaint; (2) the jury instructions; (3) the arguments of

plaintiffs’ counsel; (4) the evidence of emotional distress; and

(5) the joint nature of the punitive damages verdict. See

Claiborne Hardware, 458 U.S. at 917-18 (“the pleadings,

arguments of counsel, and jury instructions” should be exam-

ined to determine whether damages were properly restricted).

1. Plaintiffs’ first amended complaint was replete with

allegations of emotional distress suffered by Robin’s parents

on account of their disapproval of Robin’s choice of religion

and the religious practices they understood her (correctly or

incorrectly) to be engaged in. See, e.g., First Amended Com-

plaint, 2 CT 434, 4 16, lines 2-3 (Robin’s parents “disap-

proved of the changes in [Robin’s] life and attitude”); id. at

lines 4-5 (“they believed that such early rising was deleteri-

ous to her health and school work”); id., J 17, lines 10-11

(they “were apprehensive that [Robin] was becoming too

deeply involved”); id., p.8, lines 14-15 (Marcia George “dis-

approved of [Robin’s] gradual submersion into the Hare

Krishna Temple life”). As should be obvious, none of these

allegations has anything to do with either deception or con-

cealment. Each relates solely to Robin’s conversion. Since

allegations regarding constitutionally protected activity were

intermingled with allegations of deception and concealment

in the same counts, with no differentiation or separation, a

verdict based on this complaint cannot stand. Cf. Street, 394

U.S. at 588 (when charges are presented in separate counts of

the indictment, the trier of fact may be assumed to have

“considered each count on its own merits and separately from

the others”’).

2. The danger of jury misunderstanding of the tort of

intentional infliction of emotional distress is great, no matter

how careful the instructions may be. Lacking formal training

in constitutional law, a jury might well conclude that even

core religious activities (such as chanting or sankirtan) can be

the basis for civil liability where they are known to produce

emotional distress to someone and the jury finds them to be

“outrageous.” But the instructions to the jury completely

failed to explain the extent and scope of petitioners’ constitu-

tional rights. See 44 RT 8414-15. Even the Court of Appeal

conceded that “the jury was only instructed in general terms

on intentional infliction of emotional distress” (Pet. App.

42a).'§ Nothing in the instructions informed the jury that

petitioners had a constitutional right to proselytize Robin and

to persuade her to comply with the tenets of the Krishna

religion; and nothing helped the jury to distinguish peti-

tioners’ constitutionally protected conduct from their un-

protected acts of deception and concealment.

3. The arguments of plaintiffs’ attorney left no doubt

that the emotional distress cause of action was not only

“intertwined with,” but entirely dependent on, constitu-

tionally protected conduct by petitioners and by Robin. As

noted above, the Court of Appeal correctly overturned the

jury’s verdict on Robin’s false imprisonment claim on the

ground that “Robin’s brainwashing theory of false imprison-

ment is no more than an attempt to premise tort liability on

religious practices the Georges find objectionable. Such a

result is simply inconsistent with the First Amendment.” Pet.

App. 35a. Yet by the court’s own admission, the false im-

prisonment claim was the “centerpiece” of the entire case (id.

at 23a).

Plaintiff’s counsel advised the jurors during closing argu-

ment that they should decide the false imprisonment claim

first, because “if there was no false imprisonment that the rest

of this stuff is a lot of hogwash, because that means that

18 Indeed, aspects of the instructions (adopted over petitioners’

objection) exacerbated the jury’s confusion. For example, the trial court

instructed the jury that “the United States Constitution recognizes the

fundamental interest of parents to guide religious future and education of

children,” (44 RT 8415), an instruction that, while accurate as a limit on

governmental action, is highly misleading as to the actions of private

parties. This instruction may well have caused the jury to believe that

attempts by outsiders, such as petitioners, to convert minors to a religion

other than that of their parents violates the parents’ constitutional rights.

Robin decided to run away from home and torment her par-

ents and its all her fault anyway.” 44 RT 8526-27, quoted at

Pet. App. 23a-24a n.15.!9 This argument demonstrates that the

emotional distress claim was based primarily, if not exclu-

sively, on the Georges’ reaction to Robin’s conversion; that is

why counsel informed the jury that if Robin’s conversion was

voluntary then the “torment” her parents suffered was “all her

fault anyway.” This contradicts the Court of Appeals’ post

hoc theory that the jury awarded damages based soleiy on

petitioners’ acts of deception and concealment.

The remainder of plaintiffs’ counsel’s closing argument

was studded with derisive and inaccurate references to

Krishna beliefs and religious practices. He exhorted the jury

to punish the “pernicious evil” of Krishna Consciousness. 45

RT 8653. In an appeal to the jurors’ fears and prejudices, he

invited them to “imagine your child going to the Hare Krishna

temple,” where they would be told that their parents are

“karmi meat eating demon(s].” /d. at 8499. He described the

sacred religious ritual of sankirtan as sending children “out

on the streets to lie and to cheat and to steal so that they can

fill the coffers of the quote, unquote, church.” /d. at 8653.

Putting asids: the slanderous quality of counsel’s description

of a bona fide religion, which has no place in the American

legal system, it is evident that the plaintiffs’ claim of emo-

tional injury was based in large part on the “reprehensible”

character of petitioners’ religion.

4. This conclusion is bolstered by an examination of

Marcia George’s own testimony about the source of her emo-

tional distress. Although she testified at great length about her

19 In a similar vein, plaintiffs’ counsel told the jury that “[t}he nut of

this case, the thing around which this whole case revolves or tums, is

false imprisonment.” In absence of a false imprisonment finding, “it

would not be fair to return a verdict for inflicting emotional distress, or

causing Jim George’s death. That would mean Robin George was respon-

sible for her father’s death, not the defendants. The nut of the case

revolves around false imprisonment. Other things then fall into place, or

they don’t.” 44 RT 8480.

distress at every aspect of Robin’s experience from conver-

sion to remembrance, only a few isolated remarks were ad-

dressed to her distress about the deception practiced by the

few Krishna officials with whom she had contact. Indeed,

Marcia George testified (6 RT 887) that the date the peti-

tioners “first inflict{ed] emotional distress upon her” was

“{p]ossibly a month or so prior to” Robin’s departure from

home. Moreover, she said that her husband’s face had “turned

white” and that he had begun to “shake” upon learning that

Robin had left home and surmising that she had gone to the

temple. 4 RT 560-61. These events occurred before any de-

ception or concealment could have begun.

Marcia George’s testimony also demonstrates that the

emotional distress she and her husband experienced was in

large part attributable to their negative feelings about Krishna

religious practices, and not to acts of deception by Krishna

officials. For example, she explained that her husband often

awakened about 3:30 a.m. and worried about Robin because

“he knew she would be getting up and chanting” about that

time. 29 RT 5591. She testified that during the three week

period Robin had been returned home the parents were “dis-

tressed” at her appearance and “worried” and “afraid” that

Robin would “obliterate herself by returning back to a tem-

ple” (4 RT 675). This was when the parents chained Robin to

a toilet at night to prevent her from escaping and burned her

holy books. (id. at 676-77, 962). Indeed, the trial court admit-

ted Marcia’s testimony concerning the “series of [traumas]

they experienced while Robin was within ISKCON” solely on

the condition that plaintiffs establish a prima facie case that

Robin had been falsely imprisoned. 4 RT 625-26. This further

demonstrates that the emotional distress claim was dependent

on the false imprisonment claim, which was based on consti-

tutionally protected beliefs and conduct.

5. The decision to award punitive damages for inten-

tional infliction jointly to Robin and Marcia George is further

proof that the jury conflated constitutionally protected with

unprotected conduct, and awarded damages for both. Since

the Court of Appeal correctly concluded that all claims by

Robin (other than in her capacity as heir to Jim George) were

based on constitutionally protected conduct, it follows that

the jury’s award of punitive damages to Robin and Marcia

jointly on the intentional infliction of emotional distress

claims must have been based in part on constitutionally pro-

tected conduct.

Examination of these five components of the trial leaves

no room for doubt that the verdict was based on an intertwin-

ing of constitutionally protected and unprotected conduct.

This is a characteristic feature of the rash of cases alleging

“brainwashing” and other torts involving religiously-based

emotional injury.2° By introducing evidence of unconvention-

al religious teachings and practices and portraying them in the

most pejorative possible light, plaintiffs’ lawyers are able to

inflame the fears and prejudices of the jury. Even when a

portion of the judgment is based on unprotected conduct, the

effect is to inflate the size of the award beyond all proportion

to the actionable injury caused. Extension of the principle of

Street, Stromberg, and Claiborne Hardware to this context

would do more to prevent these shameful assaults on minority

religions than any other single rule of law.

Ill. THE PUNITIVE DAMAGES AWARD VIOLATED

THE FIRST AMENDMENT AND THE DUE PRO-

CESS CLAUSE

The temples, schools, monastic living quarters, and other

religious facilities of the Hare Krishna religion in much of

North America are presently in the hands of a court-appointed

receiver, and will be sold if the judgment below is not re-

versed. Thousands of innocent devotees and worshippers

(both adherents to Krishna Consciousness and adherents to

other denominations of Hinduism who worship in Krishna

temples) will be left without places in which to worship or to

live in accordance with their faith. Plaintiffs have even at-

tempted to seize petitioners’ religious publishing entity, and

with it control over petitioners’ holy books. Affidavits in the

record establish that execution of this judgment would render

20 See cases listed at note 10, supra.

the exercise of Krishna Consciousness virtually impossible

for many of its adherents.

The judgment below thus threatens a devastating blow to

the free exercise of religion. See Yonkers Racing Corp. v. City

of Yonkers, 858 F.2d 855, 871 (2d Cir. 1988), cert. denied,

109 S.Ct. 1527 (1989) (when government seizure of property

“would substantially affect religious practice,” it raises a free

exercise claim); Pillar of Fire v. Denver Urban Renewal

Authority, 181 Colo. 411, 509 P.2d 1250 (1973) (same). Any

list of infamous acts of religious oppression wouid include

Henry VIII’s confiscation of Catholic monasteries and the

Romans’ destruction of the Temple in Jerusalem in 70 A.D.

See also Late Corporation of Church of Jesus Christ of Latter

Day Saints v. United States, 136 U.S. 1 (1890) (confiscation

of Mormon Church property). These acts of persecution

would be no less infamous if they had been imposed pursuant

to decisions by Roman or Protestant juries that Jewish, Catho-

lic, or Mormon religious practices were “outrageous.”

Punitive damages pose a particular threat to the free

exercise of religion because they enable jurors “to use their

discretion selectively to punish expressions of unpopular

views.” Gertz, 418 U.S. at 350. As illustrated in this case,

plaintiffs’ counsel can play upon latent fears and prejudices

of the jury (“imagine your child going to a Hare Krishna

temple”) to obtain punitive judgments wholly disproportion-

ate to the alleged wrongdoing. 44 RT 8499. Because of

similar concerns, this Court has limited the availability of

punitive damages in libel cases (Gertz, supra), and against

labor unions for violation of the duty of fair representation.

Electrical Workers v. Foust, 442 U.S. 42, 50-51 n.14 (1979).

We ask this Court to consider whether religious bodies are

entitled to comparable protection.

Moreover, when punitive damages are imposed on a

religious body, the effect is to punish “blameless or unknow-

ing” adherents of the religion, “who took no part in the

commission of the tort.” Newport v. Fact Concerts, Inc., 453

U.S. 247, 267 (1981). Here, thousands of devotees and wor-

shippers will be expelled from their temples and ashrams for

the deeds of a few isolated ISKCON officials who are no

longer affiliated with the religion.2! Because of similar con-

cerns, the Court has barred imposition of punitive damages

against municipalities under 42 U.S.C. 1983 (id.) and labor

unions under the duty of fair representation (Electrical Work-

ers, Supra).

While we do not dispute that church properties must

sometimes be taken to recompense individuals for actual

injuries caused by a church, this Court has held that the

“States have no substantial interest in securing for plain-

tiffs . . . gratuitous awards of money damages far in excess of

any actual injury.” Gertz, 418 U.S. at 349. Punitive damages

“are in effect a windfall to a fully compensated plaintiff.”

Fact Concerts, 453 U.S. at 267. “Neither reason nor justice

Suggests that such retribution should be visited upon the

shoulders of blameless or unknowing [worshippers].” /d.

Since the punitive damages judgment imposes a devastating

burden on the free exercise of religion, justified by “no

subtantial [state] interest,” the judgment below is a clear

violation of the Free Exercise Clause.

Even assuming that a punitive damages judgment that

requires seizure of properties needed for religious observance

is not a per se violation of the Free Exercise Clause, the

procedures for determining whether to impose punitive dam-

ages against religious bodies and how to calculate their

amount require scrutiny under the First Amendment and the

Due Process Clause. This Court should consider two specific

limitations.

First, the jury should not have been permitted to award

punitive damages for nonphysical injuries allegedly caused by

the religiously motivated acts of church officials without

clear and convincing proof of each element of the punitive

damages claim. In recent years, many state legislatures and

21 The punitive damages were awarded jointly against all defen-

dants, without any attempt to apportion them according to relative guilt.

Pet. App. 77a-78a. This procedure vitiated any connection between

culpability and damages and made “precision of regulation” (Claiborne

Hardware, 458 U.S. at 916) impossible. See, e.g., Embry v. Holly, 293

Md. 128, 442 A.2d 966 (1982) (adopting majority rule requiring appor-

tionment of punitive damages).

courts have concluded that the “preponderance of the evi-

dence” standard is insufficient to justify awards of punitive

damages and have required application of the “clear and

convincing evidence” standard.22 Moreover, in the analogous

context of defamation actions, this Court has held that the

First Amendment bars awards of punitive damages without

clear and convincing evidence of actual malice. Gertz, 418

U.S. at 350 (private defamation plaintiff may not recover

punitive damages under a showing “less demanding” than that

of New York Times).

This procedural safeguard should be extended, as a con-

Stitutional matter under the First Amendment, to the tort of

intentional infliction of emotional distress as alleged against

religious groups. “Increasing the burden of proof is one way

to impress the factfinder with the importance of the decision

and thereby perhaps to reduce the chances that inappropriate

[determinations] will be [made].” Addington v. Texas, 441

U.S. 418, 427 (1979).

Second, the jury must be given workable standards for

determining the size of a punitive damages award, to ensure

that the award is not based on improper factors, such as

hostility and religious prejudice. Five Justices of this Court

have suggested that even in an ordinary tort case the grant of

standardless discretion to a jury to impose an award of puni-

tive damages violates due process. Browning-Ferris

22 See, e.g., Canada Dry Corp. v. Nehi Beverage Co., 723 F.2d 512,

525 (7th Cir. 1983) (applying Indiana law); Acosta v. Honda Motor Co.,

717 F.2d 828, 839 (3d Cir. 1983) (applying Virgin Islands law); Roginsky

v. Richardson-Merrell, Inc., 378 F.2d 832, 850-51 (2d Cir. 1967) (apply-

ing New York law); Linthicum v. Nationwide Life Ins. Co., 150 Ariz. 326,

723 P.2d 675, 680-81 (1986); Masaki v. General Motors Corp., 780 P.2d

566, 574-75 (Haw. 1989); Travelers Indemnity Co. v. Armstrong, 442

N.E.2d 349, 358-63 (Ind. 1982); Tuttle v. Raymond, 494 A.2d 1353,

1362-63 (Me. 1985); Wangen v. Ford Motor Co., 97 Wis. 2d 260, 294

N.W. 2d 437, 457-58 (1980); Alaska Stat. § 09.17.020 (Supp. 1987); Cal.

Civ. Code § 3294 (Supp. 1988); Kan. Stat. § 60-3701 (Supp. 1987); Ky.

Rev. Stat. Ann. § 27-1-221 (1985); Ohio Rev. Code § 2307.80 (Supp.

1987); Or. Rev. Stat. § 30.925(1) (1979); see also Model Uniform Product

Liability Act § 120(A), 44 Fed. Reg. 62,748 (Oct. 3i, 1979).

Industries v. Kelco Disposal, Inc., 109 S. Ct. 2909, 2923

(1989) (Brennan, J., joined by Marshall, J.); id. at 2924

(O’Connor, J., joined by Stevens, J.); Bankers Life & Casu-

alty Co. v. Crenshaw, 108 S. Ct. 1645, 1656 (1988) (O’Con-

nor, J., joined by Scalia, J.). Where precious First Amendment

rights are affected by the outcome, the development of stan-

dards is all the more important. While substantive content of

the standards must be left in the first instance to the state

courts on remand, it should be noted that courts in other

jurisdictions have been able to develop standards for punitive

damages that will serve to cabin jury discretion and decrease

the probability of jury prejudice. E.g., Rowlett v. Anheuser-

Busch, Inc., 832 F.2d 194, 206-07 (1st Cir. 1987); see also

Browning-Ferris, 109 S. Ct. at 2934 (O’Connor, J., dissent-

ing).

In this case, as the trial court acknowledged, “the jury

lacked some guidelines upon which to predicate its award of

punitive damages.” Pet. App. 86a. The jury was instructed

that there is “no fixed standard as to the amount of such

punitive damages.” The amount is “in the discretion of the

jury.” 44 RT 8417. The jury was then told that it should

consider the following factors: “the reprehensibility of the

conduct of the defendant; the amount of punitive damages

which will have a deterrent effect on the defendant; that the

punitive damages must bear reasonable relation to the actual

damage.” /d. These standards are similar to those Justice

Brennan described as “scarcely better than no guidance at

all.” Browning-Ferris, 109 S. Ct. at 2923.23

With no workable standards to guide its judgment, the

jury awarded over $29 million in punitive damages, among

the highest punitive damages verdicts in California hisiory.

Even after reduction by the trial court and partial invalidation

by the Court of Appeal, the award exceeded all possible

23 The standards in Browning-Ferris were: “you may take account

of the character of the defendants, their financial standing, and the nature

of their acts.” 109 S. Ct. at 2923.

legitimate bounds.** It is important to remember that the

principal cause of the Georges’ distress was the decision of

their daughter to adopt the Krishna Consciousness religion, a

decision the Court of Appeal found to have been entirely

voluntary. Pet. App. 23a-38a. Yet the punitive damages im-

posed on petitioners for their supporting role in this intra-

family drama total $2.5 million. To put this judgment into

perspective, if someone enticed a minor into prostitution,

instead of the Hare Krishna religion, and were convicted by

proof beyond a reasonable doubt, the maximum penalty under

California law would be one year in prison and a $2,000 fine.

Cal. Penal Code § 266.

The free exercise of religion should not be at risk of

numbers picked by juries out of thin air. The religion of

Krishna Consciousness is recognized by all authorities as “a

bona fide religion with roots in India that go back thousands

of years.” People v. Murphy, 98 Misc.2d 235, 413 N.Y.S. 2d

540, 544 (Sup. Ct. 1977); see ISKCON v. Barber, 650 F.2d

430 (2d Cir. 1981). It is not, as plaintiffs’ counsel told the

jury, a “quote, unquote, church.” 45 RT 8653. It is not a

“pernicious evil.” 44 RT 8563. It is not to be treated in a court

of law as if it were “Dracula.” 44 RT 8513. Under the First

Amendment of the United States Constitution, it is not — at

least, it is not supposed to be — subject to liquidation by an

uninstructed and inflamed California jury.

24 The trial judge’s remittitur did not cure the error, since it also was

not based on specific and intelligible standards. See Pet. App. 87a (‘a

significantly lesser award, such as the one suggested by the cour, will

have the effect of deterrence”).

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

MicHaEL W. McConne_ye

Counsel of Record

ANDREW L. FREY

Tuomas C. BERG

Mayer, Brown & Patt

190 S. La Salle St.

Chicago, IL 60603

(312) 701-7201

Epwarp McG Lynn Garrney, JR.

1149 S. La Jolla Ave.

Los Angeles, CA 90035

(213) 934-8307

Davip LIBERMAN

2049 Century Park East

Suite 3160

Los Angeles, CA 90067

(213) 277-9288

FEBRUARY 28, 1990

App. la

ORDER DENYING REVIEW

AFTER JUDGMENT BY THE COURT OF APPEAL

Fourth Appellate District, Division One,

No. D007153, S012425

IN THE SUPREME COURT OF THE

STATE OF CALIFORNIA

IN BANK

ROBIN GEORGE Et Al., Respondents

INTERNATIONAL SOCIETY FOR KRISHNA

CONSCIOUSNESS Et Al., Appellants

(Filed Nov 30, 1989)

Appellants’ petitions for review DENIED.

The Reporter of Decisions is directed not to publish in

the Official Appellate Reports the opinion in the above-

entitled appeal filed August 30, 1989, which appears at 213

Cal.App.3d 729. (Cal Const., Art. VI, Section 14; Rule 976,

Cal. Rules of Court.)

LUCAS

Chief Justice

App. 2a

[Opinion of Court of Appeal, Aug. 30, 1989, As modified

Sept. 29, 1989.)

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

ROBIN GEORGE, ect al.,

Plaintiffs, Respondents and

Cross-Appellants,

INTERNATIONAL SOCIETY FOR

KRISHNA CONSCIOUSNESS OF

CALIFORNIA, ectc., et al.,

Defendants, Appellants and

Cross-Respondents.

D007153

(Super. Ct. No.

277565)

Nm ee eee eee eee ee”

Appeal and cross-appeal from a judgment of the Superior

Court of Orange County, James A. Jackman, Judge. Affirmed

in part, reversed in part.

Alan G. Martin, Kent L. Richland, Feris M. Greenberger,

Robert A. Olson, Greines, Martin, Stein & Richland, W.

Marshall Morgan, Walter M. Yoka, Morgan, Wenzel &

McNicholas, David M. Liberman and Larry J. Roberts for

Defendants, Appellants and Cross-respondents.

Chaitanya Tanna, Bhishma K. Agnihotri, Edward McGlynn

Gaffney, Jr., Morton B. Jackson, MacDonald, Halsted & Lay-

bourne, Barry A. Fisher, Robert C. Moest, Fleishman, Fisher

& Moest, Carol A. Sobel, Paul L. Hoffman, Mark D. Rosen-

baum and Mark Mausert as Amici Curiae on behalf of Defen-

dants, Appellants and Cross-respondents.

Louis E. Goebel, Cheryl Shensa, Goebel, Shensa & Beale,

David A. Niddrie and Procopio, Cory, Hargreaves & Savitch

for Plaintiffs, Respondents and Cross-appellants.

LLL

App. 3a

Plaintiff Robin George and her mother, Marcia George,

brought this action against four corporate entities of the Interna-

tional Society for Krishna Consciousness (ISKCON)! and two

individual Krishna officials? alleging the defendants ‘“‘brainwashed”’

Robin into joining the Krishna movement and thereafter conspired

to conceal her from her parents. A jury agreed, awarding the

Georges compensatory and punitive damages in excess of $32

million, a figure which was later substantially reduced by the trial

court. Robin’s compensatory award in excess of $1.8 million

included damages for false imprisonment, intentional infliction of

emotional distress, wrongful death, and libel. Marcia George's

$1,510,000 compensatory award was based on emotional distress

and libel.

In a general sense, we conclude that defendants’ princi-

pal acts constituted torts against Marcia George but not

against Robin. Accordingly, we reverse the judgment in favor

of Robin to eliminate the damages awarded as to all causes of

action except the cause of action for wrongful death. At the

same time, we reject defendants’ multifaceted attacks on the

judgment in favor of Marcia based on libel and intentional

infliction theories. We also reject defendants’ claim of evi-

dentiary and jurisdictional error as well as assertions that the

amount of punitive damages awarded were excessive. As we

shall explain in greater detail, the result of our decision

requires the trial court to enter judgment in favor of Robin for

$75,000 (damages for wrongful death) and permits Marcia’s

judgment to remain at the trial court-reduced sum of

$2,910,000 (emotional distress: $400,000 compensatory, $2

million punitive; libel: $10,000 compensatory, $500,000 puni-

tive).

! The four corporate defendants are ISKCON of California, ISKC-

ON of New York (which controlled the Krishna temples in California

before the formation of ISKCON of California), ISKCON of Louisiana

and ISKCON of Canada.

2 Defendant Roy Christopher Richard was president of the Knshna

temple in Laguna Beach. Defendant Nico Kuyt was president of the

Krishna temple in New Orleans.

App. 4a

FACTUAL AND PRocEDURAL BACKGROUND

By most standards of American culture, Robin George

was anormal 14 year old in the summer of 1974. The George

family had moved to Cypress, California when Robin was two

years old. Robin was enrolled in a program for mentally

gifted children while in elementary school. In junior high

school Robin received above average grades and was editor of

the school newspaper.

While Robin was growing up, the Georges attended a

local Lutheran church where Marcia taught Sunday school.

Robin was confirmed in the Lutheran church in 1973. At

about this same time, Robin talked with her parents about

investigating other religions. The Georges suggested Robin

go ahead with her confirmation but assured her she was {ree

tO inguire into other religious faiths afterwards. As a result, in

early 1974. Robin investigated various beliefs by going to

Catholic. Greek Orthodox, and Baptist churches and a Jewish

synagogue, among others.

In the spring of 1974, Jim George was diagnosed as

having a weak heart. Concerned about her father, Robip began

extensive reading on the relationship between exercise, dict

and heart condition. She prepared special meals for him and

enrolled with him in a yoga class.

Initial Contacts With the Krishnas

Following her completion of ninth grade in 1974, Robin’s

best friend was Caron Dempsey. Dempsey, two years older

than Robin, had an 18 year-old boyfriend, John Herger. One

day in July, Robin was planning to go to the beach with

Dempsey and Herger. Caron suggested instead that they visit

the Hare Krishna temple in Laguna Beach. Herger dropped

the two girls off. Inside the temple Robin and Caron sat down

and meditated. They thought “that’s what you should do in a

temple.” As the girls were getting ready to leave, a woman

dressed in a sari approached, welcomed them, and insisted

that they eat some mashed avocados and dates which she

referred to as “prasadam.” The woman also invited the girls to

return to the temple the following Sunday for a “love feast.”

App. Sa

Robin had no intention of returning to the temple. The

following week, however, Caron Dempsey came to Robin's

house “dressed like a Hare Krishna.” Caron told Robin she

had spent the night at the temple and had decided to join the

Hare Krishnas. Robin tried unsuccessfully to talk Caron out

of her decision. A week later Robin agreed to go to the temple

with Caron to learn more about the group. Beginning in

August, Robin visited the temple weekly, usually on Sundays.

At first she talked informally with various Krishna devotees

and discussed their religious beliefs. Toward the end of Au-

gust, Robin began attending occasional congregational meet-

ings and group discussions concerning the tenets of the

Krishna faith.

During their visits to the temple, Robin and Caron met

and talked with various Krishna devotees including defendant

Roy Christopher Richard, the president of the Laguna Beach

temple. Richard was known by his Krishna name,

“Rsabadeva.” In September 1974, Marcia George visited the

Laguna Beach temple and spoke with Rsabadeva, reminding

him that Robin was “at a very susceptible age.”

By October Robin had begun to adopt the practices of the

Krishna faith. She began braiding her hair and wore a Sari

while attending her high school classes. She constructed a

Hindu-style alter in her bedroom and arose at approximately

2:30 a.m. every morning to pray and chant.

Marcia and Jim George were quite concerned with Rob-

in’s acceptance of the Krishna religion and the resulting

change in her behavior. Marcia again visited the temple in

October to discuss the situation with Rsabadeva. She ex-

pressed concern that Robin’s religious practices were begin-

ning to interfere with her schooling. Rsabadeva assured

Marcia that ISKCON had no interest in interfering with Rob-

in’s education.

By early November, Jim and Marcia directed Robin to

dismantle her altar, forbade her from rising early in the

morning to chant, and asked her to modify her diet. At about

the same time, Rsabadeva had a private meeting with Robin

and Caron in his office at the temple. After complimenting

them on their acceptance of the Krishna faith, Rsabadeva told

App. 6a

the girls “if you really are sincere about seeking God and

being true devotees ... you can’t live at home and practice

this religion. . . .You have got to live in a temple facility.” He

explained, “Your parents are demons and they will pull you

away from Krishna. The closer you get to Krishna, the more

your parents will try to pull you away.” Rsabadeva then asked

both girls if they thought their parents would object if they

became devotees and went to live in the temple. Both said

yes. He then asked, “Do they have enough money to hire a

detective to try to find you?” The girls replied they didn’t

think so. As the conversation continued, Rsabadeva told the

girls that their parents were not their real parents and that

horrible things would happen to them in their next life if they

continued to live with people like their parents who ate meat,

a practice the Krishnas believe is fundamentally sinful. The

girls were told that it was permissible to deceive nonbelievers

like their parents because they were incapable of seeing the

truth. Finally, Rsabadeva suggested that the girls run away

from their parents. “Leave home” he said, “and we will send

you someplace where your parents will never find you.”

Robin Runs Away to New Orleans

During the next two weeks, Robin formulated a plan to

run away from home and informed Rsabadeva of her inten-

tion. On Saturday, November 16, 1974, Robin packed some

belongings and left her house through the bedroom window.

She met Caron Dempsey and John Herger at a school a few

blocks away and the trio drove directly to the Laguna Beach

temple. They were met there by Rsabadeva who instructed

them to drive to the Krishna temple in San Diego. He told

Robin she had to go to San Diego because her parents would

be “coming here looking for you as soon as they find out that

you are gone.” In San Diego, he said, it would be harder for

her parents to find her. He instructed her to call him the

following day to receive further instructions.

Arriving in San Diego about midnight, Robin Caron and

John slept for several hours at the San Diego temple and arose

early with the other devotees for chanting and other activities

App. 7a

as well as to prepare for a Krishna festival which was to be

held in Balboa Park that day. Robin called Rsabadeva at 8

a.m. He told her that Ksudhi, a devotee from the Laguna

Beach temple, would be arriving in San Diego later that day

and would purchase an airline ticket for her to fly to New

Orleans. Upon arrival Robin was to phone the New Orleans

temple president, Nityananda, who would arrange to have her

picked up.

A short time later several Laguna Beach devotees includ-

ing Ksudhi and his wife Dhatreyi arrived at the San Diego

temple. That afternoon they went to the Balboa Park festival

with Robin, Caron and John. While they were at the festival,

Dhatreyi came running up to Robin, told her that her parents

were there, and instructed her to hide in a nearby public

restroom. A few minutes later Ksudhi met with Robin and

Dhatreyi just outside the restroom. He indicated he would

bring the car around and instructed the women to walk quick-

ly from the restroom to the car. This accomplished, they drove

back to the San Diego temple where Robin was instructed to

pack her belongings. Ksudhi and Dhatreyi then drove Robin

to the San Diego airport where Ksudhi purchased a ticket to

New Orleans. The ticket was purchased for “Audrey Sher-

man” — Dhatreyi’s Christian name. Ksudhi gave Robin the

ticket and Dhatreyi gave her some identification with the

name “Audrey Sherman.”

Robin boarded the plane at 7 p.m. Sunday evening and

after several stopovers, arrived ii: New Orleans at about dawn

on Monday morning. After phoning the New Orleans temple,

she was picked up by several devotees and taken to the

temple.

Soon thereafter Robin met with the temple president,

defendant Nico Kuyt, also known by his Krishna name Nitya-

nanda. During the conversation Robin told him she was 15

years old. Nityananda informed her that he had received a

letter from her parents, a copy of which was apparently sent

by the Georges to each of the Hare Krishna temples in the

United States. The letter, portrayed Robin as having a mental

App. 8a

condition which required that she be returned home.? Robin

responded that the contents of the letter were untrue. None-

theless, Nityananda explained, he had spoken with Jayatirtha

- a member of the ISKCON Governing Body Commission

(GBC)* — and they had agreed she should write her parents to

let them know she was all right. Nityananda provided Robin

with a sample letter which she modified using her own words.

The letter did not disclose Robin’s whereabouts. Nityananda

told Robin he was going to mail the letter to the president of

the San Diego temple with instructions that he mail it to the

Georges.

Caron Dempsey and John Herger drove to New Orleans

and joined Robin at the New Orleans temple within several

days of her arrival there. During the succeeding months,

Robin together with the other Krishna devotees performed

work and engaged in various religious activities and rituals at

the temple. Robin would normally get between four and five

hours of sleep each night. Beginning in December 1974, her

activities expanded to include “sankirtan,” the Krishna refer-

ence for the solicitation of donations.»

Nityananda controlled virtually every aspect of life at the

New Orleans temple. He set work schedules, determined how

much sleep each devotee would be allowed, and controlled

3 The letter read in part “Although she pretends to be a devotee of

the Krishna Consciousness Movement, she is emotionally and mentally

unstable and has been undergoing treatments for a mental condition. It

was Our mistake to keep this a secret at first. At the ume she left home,

she was passive and nonviolent. However, the picture can change at any

time. Her manner is very deceptive. Also she is a vegetarian, and being

hypoglycemic, must limit her intake of foods and sweetened foods.”

4 In 1974, Jayatirtha was the GBC member in charge of the western

region of the United States. He maintained an office in the Los Angeles

temple.

5 Robin testified that before going out on sankirtan, the devotees

would dress in non-Krishna “karmi” clothes. They were instructed to

misrepresent their affiliation and purpose in order to obtain donations

(c.g., working for UNICEF, an orphanage, a drug rehabilitation center,

cic.)

App. 9a

the temple finances. The devotees were not allowed to have

any money of their own but were required to seek Nityanan-

da’s permission if they needed to purchase anything. At one

point Robin developed a staph infection in her foot. She

attempted to obtain Nityananda’s permission to see a doctor.

He refused, telling her the sore simply indicated that Krishna

was Causing her past bad karma to leave her body. Several

days later, Nityananda agreed that Robin could go to a charity

hospital.

Nityananda informed the members of the New Orleans

temple that Robin’s parents were looking for her. He in-

structed them that they should tell no one Robin was living

there. At one point a sign was placed over the telephone

reading as follows: “If anyone calls asking for Robin George,

tell them she is not here. No one lives here by that name.”

Continuing into the early part of 1975, the Georges

persisted in their attempts to locate Robin. Marcia George

spoke with Rsabadeva at the Laguna Beach temple on two

occasions. Rsabadeva told her that it was “quite possible that

[Robin] was in the Hare Krishna movement somewhere but he

didn’t know where.” In their second conversation, Marcia

again asked Rsabadeva’s help in locating Robin. She told him

that Jim George “had a weak heart and he was taking it very

badly and I was afraid that it would kill him.” Rsabadeva

laughed and replied, “Well, this has happened to another

devotee’s father who had a heart attack but didn’t die.”

After receiving the letter from Robin which was mailed

from San Diego, the Georges drove to the San Diego temple

and mei with the temple president and several other devotees.

Between November 1974 and January 1975, the Georges

made several additional trips to San Diego. In February 1975

the Georges arranged to meet with GBC member Jayatirtha.

He expressed sympathy with their situation and promised to

try to help find Robin.

In December 1974 the Georges sent a letter with a picture

of Robin to the juvenile divisions of the police departments in

all the cities in which Krishna temples were located. In March

1975, the Georges sent a similar letter to the fire departments

App. 10a

in those cities. This second letter included the promise of a

$500 reward for information as to Robin’s location.

In April 1975, apparently in response to the second letter,

police in New Orleans went to the Krishna temple asking for

Robin. With the help of another devotee, Robin escaped

through a rear window and hid in a nearby apartment used by

the Krishnas as a residence. About 20 minutes later after the

police had left, Robin returned to the temple and was sum-

moned to Nityananda’s office. He told her he had spoken with

Jayatirtha and that they had decided she should call her

parents, tell them she was fine and ask for permission to stay

at the New Orleans temple.

Robin called home and spoke with her mother. When

Robin asked for permission to stay at the New Orleans tem-

ple, Marcia replied she would have to discuss the issue with

Robin’s father. Robin then turned the phone over to Nityanan-

da who essentially repeated Robin’s request to Marcia. Mar-

cia replied that she didn’t think Jim George would permit it.

Nityananda told Marcia, “Well, I can’t help what she does. If

you want her to come home, she'll run away.” Marcia re-

sponded, “If she runs away, we’ll hold you responsible be-

cause you're the president of the temple aid you have

jurisdiction and if she runs away, we'll know its because you

helped her to run away.”

Later that afternoon, the New Orleans police arrived at

the temple, found Robin and took her to the police station.

Jim George arrived in New Orleans that night, took custody of

Robin and arranged to fly with her the following day to Los

Angeles. During the plane ride, Robin began chanting as she

had been instructed to do by Nityananda. After Jim warned

her to stop several times, he slapped her across the face.

Three Weeks at Home

Upon their arrival at the George home in Cypress, Marcia

noticed that Robin had lost a considerable amount of weight.

She described her daughter as “stiff’ and “expressionless.”

Within several hours of her arrival home, Robin attempted to

App. lila

escape through a bedroom window. When her parents discov-

ered the escape attempt, Robin fled to the backyard hyster-

ically chanting and screaming, “Nsringadev.”® Jim picked up

the garden hose and began squirting Robin from a distance of

four to five feet. Some of the water got into her mouth. At

some point both Jim and Robin slipped on the wet patio slab

and fell to the ground.

Following the hosing incident, Jim and Marcia were

preoccupied with the fear that Robin would again attempt to

escape. For several nights, they took turns sleeping so that

one would always be awake watching Robin. The three then

discussed the situation and agreed to a procedure where a

long chain was attached to Robin’s ankle and secured to the

base of the toilet, allowing Robin to move freely between the

bedroom and bathroom but preventing her escape. After sev-

eral nights this practice was discontinued.

Within days after arriving home, Robin received a tele-

phone call from Nityananda in New Orleans. He told her, “I

will get you out of there as soon as possible, and just keep

chanting Hare Krishna.” Thereafter, Nityananda told Caron

Dempsey to call a friend of hers in the Cypress area named

Vivian Grass. Caron arranged for Vivian to pick up some

money which Nityananda was wiring from New Orleans.

Spiriting Robin Away to Canada

On May 1, 1975, Robin was supposed to go to a neigh-

bor’s house. Instead, she went to Vivian Grass’s house. Grass

then drove Robin to the Disneyland Hotel where, using the

money provided by Nityananda, she purchased an airplane

ticket to Miami.” Grass then drove Robin to the Laguna Beach

half-man form of Krishna who came down to earth and destroyed the

father of a devotee who objected to his being in the Krishna movement.

7 Grass had told Robin she was supposed to purchase 2 ticket to

Dallas.

App. 12a

temple. When Robin learned that Rsabadeva was not there,

she spoke with a devotee named Padmagarbha, explaining her

situation and asking to be taken some place other than Laguna

Beach.

Padmagarbha drove Robin to the residence of an ex-

Krishna devotee in Leucadia.® Shortly after her arriva! in

Leucadia, Robin called Rsabadeva in Laguna Beach. Several

days later, Rsabadeva came to Leucadia to visit Robin. He

told her he had spoken with Nityananda, who did not want

Robin to go to Miami. Instead, he wanted her to fly to Dallas

and then on to Canada.

About a week later, Rsabadeva again visited Robin in

Leucadia. He told her he had arranged for her to fly to

Buffalo, New York the next day. From there she would be

taken to Canada. Later that day, Rsabadeva took Robin to a

convenience store in Leucadia and bought some make up. He

instructed her to wear the make up and disguise herself as a

pregnant woman for the flight to Buffalo.

The following day, one of the house residents drove

Robin to the San Diego airport and purchased an airline ticket

for her under an assumed name to Buffalo via Dallas. Upon

her arrival in Buffalo, she was picked up by several devotees

who took her to the Buffalo temple where she stayed for

approximately one week.

When Robin’s parents discovered she had disappeared,

they immediately filed a report with the Cypress police. They

then proceeded to the Laguna Beach temple and asked to

speak with Rsabadeva. When they were told he was not there,

they left a message. Rsabadeva called the Georges early the

next morning. He told Marcia he had not seen Robin but that

if he learned any news of her he would call and let them

know. The Georges also spoke with Nityananda in New Or-

leans. He also denied knowing where Robin was and promised

to call if he heard anything.

8 Robin described the residents of the house as “fringe members of

Hare Krishna.”

App. 13a

Shortly after she arrived in Buffalo, Robin called Nitya-

nanda, informing him that the president of the Buffalo temple

had asked her to stay there rather than going on to Canada.

Nityananda replied that he would talk with the temple presi-

dent and make sure Robin was sent on to Ottawa. Within a

week, Robin was driven across the border by several Buffalo

devotees who then purchased her a bus ticket and saw to it

that she boarded a bus to Ottawa. Upon her arrival in Ottawa,

she was met by the Ottawa temple president, Am Su, who

took her to the temple.

As was the case with Nityananda in New Orleans, Am Su

prescribed Robin’s daily routine at the Ottawa temple. One

member of the Ottawa temple described Robin as a “sincere”

and “hardworking” devotee. Robin also wrote letters to Caron

Dempsey - at this point still a member of the New Orleans

temple — telling her how much she liked living in Ottawa.

Marcia spoke with GBC-member Jayatirtha in mid-May.

He agreed to try to help locate Robin. He also asked Marcia

whether she and Jim would agree to allow Robin to live in

one of the Southern California temples if he was successful in

locating her. The Georges told Jayatirtha they would do so as

long as Robin could continue her education. Jayatirtha re-

sponded that, “The decision to bring her back ultimately

would not be his, but the decision would remain with the

president of the temple in which she was located.” Jayatirtha

then called Am Su and asked him to inquire of Robin whether

she thought her parents were sincere. Robin told Am Su she

thought there was only a “50/SO chance” that her parents

would follow through on the bargain. Thereafter, the Georges

had increasing difficulty communicating with the Southern

California Krishna leaders. On one occasion, when Marcia

was successful in contacting Jayatirtha and Rsabadeva, they

accused the Georges of mistreating Robin after she returned

home.

Frustrated, the Georges began a public relations cam-

paign against the Krishna movement in Southern California.

During the month of June 1975, they and several friends

picketed the Krishna temples in Laguna Beach, Los Angeles,

and San Diego. They also picketed Rsabadeva’s personal

App. 14a

residence. On that occasion, they were confronted by

Rsabadeva who threatened to blow up their car if they didn’t

leave. Another devotee standing only a few feet from

Rsabadeva warned the Georges they might never see their

daughter alive again if they did not stop picketing.

In July 1975, in response to pressure from the California

Attorney General, the Mayor of Cypress, and others, Captain

Don Amberg of the Cypress Police Department contacted

Jayatirtha about the Robin George situation. Amberg had been

told at the Laguna Beach temple that Jayatirtha was “about as

high [in the movement, as {he} could go.” Jayatirtha told

Amberg that he had already cooperated fully with the Geor-

ges. Nonetheless, he volunteered to write another letter re-

questing information about Robin George and send copies to

all Krishna temples in the United States. By a cover letter

dated July 24, 1975, Jayatirtha forwarded a copy of the letter

to Amberg.? The cover Ictter stated in part, “I hope that you

can see by this that we are indeed attempting to help out the

George’s [sic] as much as is within our power. Beyond a

temple-by-temple search, which is unfeasable, [sic] I don’t

know what else we can do to facilitate your work.”

9 The letter stated: “As you will remember, on June 1, I sent out a

letter to all temple presidents in regards to one Robin George (spiritual

name Rajanath devi dasi). In that letter I requested that if any of you had

seen her or if she was living in any of your temples that you should

contact me and she should contact her parents. However, I have received

no response upto this date. Now recently, the George’s have stepped up

their anti-Iskcon publicity campaign, and have gone to the extent of

contacting the attorney general of the State of California to try to press

criminal charges against soem of us. Of course they have no grounds for

pressing such charges but at the same time it is a fact that we are working

very hard against all odds to try to establish ourselves as a responsible

institution so such publicity is not at all good. Please, therefore, be sure to

inform me if you have seen this girl. Now, if she is in your temple and is

afraid to contact her parents, have her contact me directly and I will try to

work something out as an inter-media.” (Grammar and spelling as in the

original.)

App. 15a

The “Con”

In August 1975, the Krishnas responded to the pressure

being created by the Georges. Nityananda drafted two letters

and sent them to Am Su with instructions that Robin copy

them, making whatever changes were necessary to put the

thoughts in her own words. The first letter was addressed to

Robin’s parents. In it, she explained she was no longer a

member of the Krishna movement. Instead, she was traveling

with a group of musicians in Mexico and enjoying her inde-

pendence. She repeatedly chided her parents for mistreating

her when she was home.!°

10 Robin’s letter read as follows: “Dear Mom and Dad, Please be

informed that I’m alright, healthy (I’ve gained some weight,) and happy. |

heard you’re worried and think I’m living at a temple so I’m writing this

to staighten things out.

“Actually what happened is that after staying with you a few weeks I

could clearly see that everything the devottees said wasn’t 100 percent

true and that there were some contradictions in their philosophy and

actions. Although they’re really nice people and I sill love them, I

wouldn’t ever want to live with them again. Living at their temple

however was a good experience in growing up because it gave me a taste

for independence. I think because of it I’m a more aware and mature

individual and because of that I could never again live with you either.

(Especially after the way you treated me like a dog when I was just

coming down from that heavy experience. What I really needed was

comfort and love. It’s quite a shock you know to be thrown from one

atmosphere into another overnight.) Because of your own lack of under-

standing and my newly acquired taste for independence, I had to leave

you again. I’m sorry if it hurts you but you’ve hurt me many times over

in the cruei, inhuman way you treated me. Even if you thought my mind

was disturbed, that’s no way to treat anything. (I have more compassion

for a blade of grass then that.) 1 know you thought it would help me, but

look where it got you — I’m not living with you now.

“Anyway, I’ve met some far-out people who are also searching for

the truth. They’re muscians and I’m learning a lot from them. We're

traveling around quite a bit so please don’t try and find me. It’s so nice -

we're all truth-seekers, peace lovers, and nature freaks. I’m sending you a

picture so you can see I’m alright

(Continued on following page)

App. 16a

The second letter was addressed to Caron Dempsey, John

Herger and Nityananda at the New Orleans temple. In that

letter, Robin also stated she was traveling in Mexico and

complained about mistreatment by her parents. She mentioned

she had heard about her parents’ public relations campaign

against the Krishnas and hoped her letter to them “straightens

things out.”

Robin addressed envelopes as well. The first letter was

placed in an envelope without explanation addressed to Caron

Dempsey’s family. Am Su explained to Robin that Nityananda

thought this was necessary because if the letter were sent

directly to Robin’s parents, they would simply ignore it and

tell no one about it. Am Su sent the letters and envelopes

without postage to Nityananda in New Orleans who for-

warded them to the Mexico City temple where they were

(Continued from previous page)

“There’s so much beauty in this world, and we live such a short life,

SO just try to enjoy it. I’m very bitter about how you've treated me and

can’t say I ever want to see you again. Please just mellow out — that’s

what I’m doing and it’s the only way to live. Life’s got so many

wonderful experiences and things to learn, and their all just around the

cornor. I know you want me to be there to share them with you but I’ve

grown up.

“Don’t hassle the Hare Krishna devottees and don’t hassle anyone.

Just try to feel compassionate and peaceful within your self.

“Please understand I’m making my own decisions now and it’s very

nice, this freedom. I can go where I want, do what I want, and be what I

want. I’ll admit I may have been wrong in my ideas, and now they're

changed, so I’m asking let’s forget the whole thing ever happened. |

wanted to be independent and run away since I was 13 and the devottees

were a good excuse, especially since Caron and John were into it. So just

except my independence. I have my own job, buy my own food, etc. It’s

far out. Basically I’m saying, just don’t blame anyone or anything I used

to gain my independence with. Especially the devottees. Basically they’re

truth-seekers too but in a different way.

“I’ve changed and you must change, so just try and be good to

others. (That’s what Jesus taught.)

“Love, your crazy daughter, Robin.” (Grammar and spelling as in the

original.)

App. 17a

stamped, postmarked, and mailed to their respective destina-

tions. Before forwarding the material to Mexico City, Nitya-

nanda showed Caron Dempscy the first letter and the

photograph, explaining, “This is the con we have, we are

going to send it to Mexico.”!!

When Nityananda received the second Ictter back from

Mexico City, he forwarded it to Jayatirtha in Los Angeles

along with a cover letter which read: “I received this Ictter

yesterday from Rajanath [Robin’s Krishna name]. I suppose it

will make her parents happy to know that she is not in one of

our temples. The fact that she signs her name Robin, is not a

very good sign. Anyway, your letters requested that any

information be sent as soon as it was received, so I hope that

this will help out with your problem there. This girl was a

really nice devotee when she was here and it is a real shame

that she had such a strange family.” Jayatirtha, in turn, sent

Robin’s letter with Nityananda’s commentary to the Cypress

police.

The Georges received Robin’s letter from the Dempseys.

Based on a variety of factors, the Georges concluded that both

the letter and the photograph were part of a scam. They

continued to believe that Robin was being hidden from them

somewhere in the Krishna movement.

The Beginning of the End

In the late summer of 1975, Caron Dempsey left the New

Orleans temple and returned to Southern California. After

living in the Los Angeles temple for a short while she re-

turned home in September to live with her mother. In mid-

October, Caron contacted the Georges and told Marcia that

Robin was in Ottawa. After relaying this information to the

Cypress police, Jim decided to drive to Ottawa.

'! At tial Robin testified she gave little thought to the effect the

letter would have on her parents. She stated that at that point, she simply

viewed them as “karmi meat cating demons.”

App. 18a

Accompanied by Canadian authorities, Jim arrived at the

Ottawa temple on October 28, 1975. Alerted by another de-

votee, Am Su instructed Robin to disguise herself using a wig

and glasses which had been purchased with just such an

eventuality in mind. Robin was able to leave through a back

door and proceed to a nearby residential apartment where she

met Am Su’s wife, Jagadikanda. Jagadikanda gave Robin

some non-Krishna “karmi” clothes and instructed her to go to

downtown Ottawa and wait in a department store for an hour

before calling.

An hour later Robin phoned the temple and spoke with

Am Su. He picked her up a few minutes later and they drove

for several hours to an isolated farm which was being rented

by an independent devotee named Hanuman. The house was

vacant at the time because Hanuman’s wife had just had a

baby and was staying in a hospital in a nearby town. After

making arrangements with Hanuman to get into the house,

Am Su bought some groceries for Robin, left her there, and

returned to Ottawa. Hanuman returned to the farm within

several days. 2

Meanwhile, back in California, Captain Amberg of the

Cypress police had interviewed Caron Dempsey. On Friday,

October 31, Amberg phoned Jayatirtha at the Los Angeles

temple. In somewhat colorful language,'? he told Jayatirtha

that the statement from Caron Dempsey indicated that the

Krishnas had been lying with respect to their knowledge of

Robin’s whereabouts. He threatened a criminal prosecution

and gave Jayatirtha 24 hours to produce Robin. Within min-

utes, Amberg received a phone call from an attorney repre-

senting the Krishnas. He asked if he could have until Monday

'2 Hanuman testified he returned to the farm the day after Robin

arrived.

13 Amberg testified that he told Jayatirtha, “Hello, Mr. Bastard, I

have just about got you by the balls. 1 now have a witness that’s willing

to testify.” Later in the conversation, when Jayatirtha protested thai he

had relied on Nityananda, Amberg replied, “You can tell that lying SOB

that he will be the next one I will be after.”

App. 19a

morning to look into the matter. Amberg agreed on the condi-

tion that he receive a phone call from the lawyer before 9 a.m.

Am Su returned to Hanuman’s farm on the evening of

October 31. He told Robin, “Your father says he has a letter

that can put all of us in jail, all the devotees in jail, or could

put me in jail and Jayatirtha in jail and Nityananda in jail.

What letter is he talking about?” Robin replied that the only

letter she could think of was one she had written to Caron

Dempsey, explaining how she had gotten from Los Angeles to

Ottawa. Am Su then explained to Robin that Caron had left

the Krishna movement. He also told her that Jayatirtha “wants

you out in L.A. immediately.” Am Su then drove Robin to

Detroit where he purchased her a plane ticket to Los Angeles.

Robin flew to Los Angeles on November 2. She was met by

several Krishna devotees and taken to the Los Angeles tem-

ple.

On Monday November 3, Robin was summoned to Jay-

atirtha’s office. She told him about the letter she had written

to Caron. Jayatirtha told Robin that she had to retrieve the

letter because otherwise, he and some of the other devotees

“might have to go to jail.” The next day, Robin went with

Jayatirtha and two other devotees to meet with the ISKCON

lawyer. They discussed Robin’s letter to Caron. The lawyer

Stated that the devotees were “in very serious trouble” and

told Robin she had to retrieve the letter because “its very

damaging.” During the meeting, the lawyer placed a phone

call to Captain Amberg. He statOd that although the Krishnas

did not know where Robin was, Me wanted to know whether

criminal charges would be pressed if Robin appeared within a

few days. Amberg replied that he viewed such an inquiry as

unprofessional. Amberg also said he would not be surprised if

Robin was sitting in the lawyer’s office that very moment.

According to Robin, the lawyer turned white, his jaw

dropped, he said good-bye and hung up the phone.

As the meeting continued, the lawyer gave Robin some

psychological tests to take. He wanted her to see a psychiatr-

ist to demonstrate that she had joined the Krishna movement

of her own volition. He also indicated he would arrange for

her to turn herself in to the Cypress police the following day.

App. 20a

He instructed her to tell the police: (1) she told all the

devotees she was 18 years old and they believed her; (2)

official Krishna money had not been used on her; (3) her

parents had been cruel to her; and (4) she wanted to be placed

in a foster home.

The next morning Robin decided to run away from the

temple. As she described it, “I felt that demons that I knew

were better than demons that I didn’t know, and I didn’t feel

safe or trust [the ISKCON lawyer]. I wanted to live in a

temple, and I was just very confused.” After running from the

temple, she caught a bus and rode it to the end of the line.

From there she hitchhiked to Vivian Grass’s house where she

telephoned Caron Dempsey. Caron arrived a short time later

and they talked all night. The next morning Robin walked

home.

Shortly after she got home, Captain Amberg and other

members of the Cypress police department arrived at the

George Residence to interview Robin. As she had been in-

structed, Robin lied to the police in order to protect the

Krishnas. After giving the police a tape-recorded statement,

Robin was taken to juvenile hall. Three weeks later, she was

released to her parents.

The Aftermath

Less than four months later on March 5, 1976, Jim

George suffered a heart attack. Thereafter, he suffered several

strokes which required extensive hospitalization. On Septem-

ber 4, 1976, Jim George died. An expert testified at trial that

although Jim had been diagnosed as having heart disease as

early as May 1974, the stress occasioned by his interaction

with the Krishnas and his inability to locate Robin signifi-

cantly shortened his life.

After Robin’s return home, Marcia and Robin became

active in an “anti-cult” organization known as the Citizens

Freedom Foundation (CFF). In October 1976, the Krishnas

became aware that Robin was going to speak at a CFF press

conference concerning the Krishna movement. In preparation

App. 21la-

for the press conference, Makunda, the “community affairs

director” for the Los Angeles temple prepared a press release

entitled the “Official Position Regarding Robin George.’’!4

14 The release stated the following: “Robin George became inter-

ested in our movement in Laguna Beach. Apparently, her parents disap-

proved of the idea. On several occasions, Robin came to our temple and

complained of being beaten by them. Once she told us that they had

chained or teid her to her bed, and that they had forced a piece of hose

down her throat to stop her chanting and singing. However accurate these

accounts may have been, she relayed them to at least twenty-five people

at the Laguna Beach center. As a result, they gave her shelter. Privately

(without using official funds), they helped her arrange her journey to the

New Orleans center. In other words, Robin insisted on running away from

home and on joining the movement.

“{Tjhe problems of her being a minor was not considered at that

time. We didn’t know her family’s reaction against our movement was

going to be so strong. After Robin arrived in New Orleans, her family got

her back, then she ran away again. There’s a history of this girl running

away from her family because of what she told us to be cruelty, beatings,

harsh treatraent. Robin also went to Canada. This was all being arranged

privately. Temple funds, ISKCON funds, were not involved. ISKCON’s

leaders were never involved or consulted about what was going on.

During all this time, Robin’s parents were persistently investigating and

demanding her return.

“Eventually they inquired from our coordinator in Los Angeles, and

the police, did likewise. We cooperated by mailing letters to all our

American centers, along with photographs of the girl - we can document

that — and these letters and photographs were posted on bulletin boards in

all those centers. Finally, we learned that this girl had turned up in our

center in Ottowa, Canada. Although she was reportedly reluctant to return

home, an attorney advised us that she had no choice.

“The matter was very delicate, because the parents had gotten proof

that she was taking shelter in our New Orleans and Ottawa centers. As a

result, they were planning to press charges against the International

Society for Krishna Consciousness. So, to ease the burden of giving her

over to her parents, for the first time the ISKCON leadership got involved

and brought Robin from Ottawa to Los Angeles. The only purpose for

bringing her to Los Angeles was to give her over to her family. But upon

(Continued on following page)

App. 22a

Among other things, the “Official Position” stated that Robin

complained of being beaten by her parents. It suggested she

was motivated initially to seek shelter at the Laguna Beach

temple and later flee to New Orleans because of parental

abuse. The “Official Position” was distributed to member of

the media who attended the press conference.

The Lawsuit

In October 1977, Robin and Marcia filed suit against four

Krishna corporate entities (ISKCON of California, New York,

Louisiana and Canada) and two individuals (Rsabadeva and

Nityananda). The case went to trial on theories of false

imprisonment (as to Robin), intentional infliction of emotion-

al distress (Robin and Marcia), libel (Robin and Marcia) and

wrongful death (Robin). The jury returned a verdict in favor

of the Georges on all causes of action, awarding damages as

follows:

(Continued from previous page)

her arrival in Los Angeles, what we feared actually happened — she ran

away. She’d been telling us all along that her parents treated her terribly

and that she was going to run away, and that’s precisely what she did.

“Yet, amazingly, she went to the parents. For all we know now, her

accounts of brutality and beating were exaggerated or totally fabricated.

The thing is that now, when asked her reason for turning against the

Krishna consciousness society, she says, ‘ . . . because they wanted to

send me home.’ In her statements to a Laguna Beach newspaper she says

that our members were forcing her to return home.

“So the charges of her family were that we were involved in an

international conspiracy is absurd. At no time before the girl was discov-

ered in our Ottawa temple did the leadership of our religion know that she

was actually in one or our temples. As soon as we found out, we made

arrangements to bring the girl home to her family, and it is that very fact

that turned her against us. How can her parents dare claim that we were

involved in a conspiracy to keep this girl away from them?” (Grammar

and spelling as in the original.)

App. 23a

False Imprisonment (Robin)

Compensatory $1.5 million

Punitive $15 million

Intentional Infliction

Compensatory (Robin) $250,000

Compensatory (Marcia) $1.5 million

Punitive (joint) $12.25 million

Libel

Compensatory (Robin) $2,500

Compensatory (Marcia) $10,000 .

Punitive (join) $2 million

Wrongful Death (Robin)

Compensatory only $75,000

Following the trial court’s conditional granting of defendants’

motion for new trial, the Georges accepted a remittitur reduc-

ing the compensatory award to Marcia on the emotional

distress claim to $400,000 and the punitive awards for false

imprisonment to $5 million, for emotional distress to $2

million and for libel to $500,000.

DISCUSSION

FALSE IMPRISONMENT

The centerpiece of this case both in terms of the evidenti-

ary presentation at trial!> and the amount of damages awarded

1S In argument to the jury, plaintiff’s counsel stated as follows:

“(T]he whole nut of this case revolves around this false imprisonment

charge. . . .Once you analyze that evidence, then other things either fall

into place or they don’t fall into place.” Later, counsel pursued this same

theme in more detail: “Now, I suggest to you, ladies and gentlemen, that

the plaintiffs have proven a false imprisonment as to Robin George. I

submit that what you ought to do when you deliberate is you ought to

decide this issue first. You car approach this in any way you want, but it

seems to me if there was no false imprisonment that the rest of this stuff

is a lot of hogwash, because that means that Robin decided to run away

(Continued on following page)

App. 24a

was Robin George’s claim that she had been falsely im-

prisoned by defendants during the approximately one year she

was a member of the Krishna faith.

Penal Code section 236 defines the crime of false im-

prisonment as “the unlawful violation of the personal liberty

of another.” The criminal definition has been held applicable

to the tort of false imprisonment as well. (Parrott v. Bank of

America (1950) 97 Cal.App.2d 14, 22; City of Newport Beach

v. Sasse (1970) 9 Cal.App.3d 803, 810.) “The tort requires

direct restraint of the person for some appreciable length of

time, however short, compelling him to stay or go somewhere

against his will.” (S Witkin, Summary of Cal. Law (8th ed.

1988) Torts, § 378, p. 463, italics in original.) With one

apparent exception,!'® the “violation of personal liberty”

which the tort of false imprisonment contemplates necessarily

involves a physical restraint of the plaintiff. This is not to say,

however, that the plaintiff must in fact be physically re-

Strained; the threat of physical restraint may be sufficient.

(People v. Haney (1977) 75 Cal.App.3d 308, 313; Parrott v.

Bank of America, supra, 97 Cal.App.2d 14, 22-23.)

(Continued from previous page)

from home and torment her parents and it’s all her fault anyway. It just

wouldn’t be fair to find against the defendants in [those] circumstances.”

While it might be tempting to treat counsel’s comments as tanta-

mount to a concession, we do not believe a lawyer’s argument to a jury

can or ought to foreclose an appellate court from fairly evaluating the

legal merits of a case. In other words, counsel’s statement to that effect is

an insufficient basis for us to conclude that all aspects of this case stand

or fall with the false imprisonment count. Accordingly, we will review

each cause of action separately.

'6 Penal Code section 237 recognizes that false imprisonment may

be accomplished by means of fraud or deceit. (See People v. Rios (1986)

177 Cal.App.3d 445; see also People v. Henderson (1977) 19 Cal.3d 86.

94.) The evidence does not suggest that Robin was confined in any of the

Krishna temples by fraud, nor was such a theory ever argued by plain-

uff’s at trial.

C—O

App. 25a

At trial, even the Georges recognized this was not a

prototypical case of false imprisonment. Robin admitted she

was never physically restrained by the defendants and that her

residence in the various Krishna temples was not against her

will.!7 To counter these facts, plaintiffs introduced expert

17 Robin testified as follows:

“Q. While you were in New Orleans were, you restrained against

your will in that temple?

“A. Restrained in what way?

“Q. Confined?

“A. I mean, are you saying physically?

“Q. Physically?

“A. Physically, no.

“Q. I take it the same is true of Laguna Beach, and the same is true

of Ottawa, is that correct?

“A. Yes.

“Q. When your father brought you home to Los Angeles or

Cypress, that was against your will wasn’t it?

“A. What do you mean?

“Q. You didn’t want to go, did you?

“A. No, I didn’t.

“Q. So your will was to stay in New Orleans, wasn’t it?

“A. To stay a Hare Krishna devotee.

“Q. In a Hare Krishna temple?

“A. Yes.

“Q. Not to go home?

“A. Yes.

“Q. So wasn’t it against your will that you went home?

“A. Yes, I suppose.”

“Q. Were you restrained or confined or detained in Canada against

your will? And I am talking about physical restraint, confinement or

detention?

“A. No.

(Continued on following page)

App. 26a

testimony from Drs. Margaret Singer and Sydney Smith to the

effect that defendants “brainwashed” Robin into joining the

Krishna movement. In particular, Dr. Singer testified Robin’s

“will had been overborne” by late October 1974 such that her

decision to run away from home on November 16 was not a

product of her own free will. Both Dr. Singer and Dr. Smith

identified several features of the Krishna faith which, they

argued, contributed to rendering Robin incapable of exercis-

ing freedom of choice including a low carbohydrate vege-

tarian diet, reduced amount of sleep and chanting as a means

of religious ritual.

Defendants fervently assert that the evidence at trial,

even when viewed in a light most favorable to the plaintiffs’

claims, is simply insufficient to support liability on a false

imprisonment theory. They argue that false imprisonment

requires at a minimum direct physical restraint of the plaintiff

by force or threat of force, neither of which was present in

this case.

Robin responds with what we perceive to be three differ-

ent arguments in support of the jury’s false imprisonment

verdict. First, relying on a single 1951 case, she asserts

defendants can be liable for false imprisonment because they

created “substantial obstacles” to her freedom of movement.

(Continued from previous page)

“Q. No one ever forced or threatened you with force while you

were in Canada, isn’t that correct?

“A. That’s correct.

“Q. At any time from the time you first encountered Mr. Roy

Richard unul the last time you saw him at the Los Angeles temple, did

Mr. Roy Richard ever forcibly restrain you?

“A. No.

“Q. [A]t no tme when you were in New Orleans or when you

were at a farm in Mississippi, or when you went to Dallas and came back,

were you ever forcibly restrained by the defendant Nico Kuyt, isn’t that

true?

“A. 1 was never, no.”

App. 27a

Next, Robin contends false imprisonment is established as a

matter of law whenever a defendant entices or permits a

minor to remain out of the custody of her parents. Finally,

based on the expert testimony from Drs. Singer and Smith,

Robin argues that evidence of physical restraint is unnecess-

ary if it can be shown that defendants brainwashed her into

remaining a member of the Krishna movement.

False Imprisonment Based on the Creation of Obstacles to

Movement

Relying on Schanafelt v. Seaboard Finance Co. (1951)

108 Cal.App.2d 420, Robin asserts the evidence is sufficient

to support a finding of liability on a false imprisonment

theory because the defendants created substantial obstacles to

her liberty and freedom of movement be taking her far from

home, depriving her of financial resources and limiting her

access to means of communication and transportation. She

suggests Schanafelt stands for the proposition that physical

force or the threat of it is not a necessary element of a false

imprisonment cause of action.

In Schanafelt, the defendant’s agent Alexander was at-

tempting to repossess some of plaintiff's furniture. Appar-

ently to facilitate his task, he parked in plaintiff's driveway so

as to block her car from exiting and ordered her to remain

until a truck arrived. He gruffly refused her request to leave

and later denied her permission to leave to get some food. The

court concluded the jury’s verdict in favor of the plaintiff was

supported by the evidence:

“The house was at the time unoccupied. . . .[Plaintiff’s] only

means of transportation was by automobile and Alexander had

parked his car across the driveway for the obvious purpose of

blocking exit. Plaintiff concluded from Alexander’s aititude

that he would not move the car if requested to do so. Plaintiff

was pregnant at the time and especially fearful because of her

condition, which was known to Alexander. Alexander’s con-

duct, in the light of his motives, was clearly sufficient to

support a finding of false imprisonment. Words or conduct

furnishing a reasonable apprehension on the part of the one

App. 28a

restrained that he will not be allowed to depart is sufficient.”

(/d. at p. 423.).

We think Robin reads Schanafelt far too broadly when

she suggests that the creation of any “substantial obstacle” to

movement is sufficient to support a judgment for false im-

prisonment. To begin with, the facts of Schanafelt are clearly

distinguishable because here, there was no evidence of

“words or conduct” on the part of the defendants indicating to

Robin she was not free to leave. Moreover, in support of its

legal conclusion quoted above, the Schanafelt opinion cites

Vandiveer v. Charters (1930) 110 Cal.App. 347 in which the

court expressed its conclusion that “[i]t was a question of fact

for the trial court to determine whether the words ‘or con-

duct’, [of defendants] were such as to induce the plaintiff, as

a reasonable person, to apprehend the use of force and coer-

cion, if she declined to act in accordance with their demands.”

(/d. at p. 356, italics added.) Thus, far from eliminating the

force requirements, Schanafelt merely represents an applica-

tion of the general rule that an implied threat of force,

reasonably believed by the plaintiff, is sufficient to support a

finding of false imprisonment. There being no threat of force

of any kind in this case, Schanafelt is simply inapplicable.

False Imprisonment Based on Robin's Status as a Minor

Perhaps based in part on a recognition of ihe difficulties

in defining “brainwashing” and differentiating it from consti-

tutionally protected proselytization (see Katz v. Superior

Court (1977) 73 Cal.App.3d 952, 987-988, Robin attempts to

deflect First Amendment concerns by focussing on her status

as a minor. She argues that “[I]f someone entices, or permits,

or forces a child to stay anywhere except in the custody of her

parents, without the parents’ consent (express or implied),

thai person had falsely imprisoned the child.” As we explain

in more detail in section III of this opinion, we have no

difficulty with the sufficiency of the evidence to support the

premise of Robin’s argument; that is, that the defendants

enticed and encouraged her to run away from home and

App. 29a

thereafter conspired to hide her from her parents at various

locations in the United States and Canada. What remains is a

legal question: Do such acts constitute false imprisonment?

On the facts of this case, we conclude they do not.

Robin places considerable reliance on Parnell v. Superior

Court (1981) 119 Cal.App.3d 392, in which the defendant

abducted a seven-year-old boy, Steven, after falsely prom-

ising to give him a ride home. Although concluding the

evidence was sufficient to warrant kidnapping charges against

the defendant, which necessarily included a “forcible taking”

clement,'* the court suggested in a footnote that the kidnap-

ping of a minor — and presumably a false imprisonment —

could be accomplished “even if unaccompanied by force so

long as it was done for an improper purpose, because a minor

‘is LOO young to give his legal consent to being taken... .’ "9

(/d. at pp. 402-403, fn. 3, quoting People v. Oliver (1961) 55

Cal.2d 761, 764-765.) Oliver involved a defendant charged

with kidnapping a two-year-old infant and thereafter commit-

ting a lewd and lascivious act. The Supreme Court there held

that where a defendant is charged with kidnapping a child

“Loo young to give... . legal consent to being taken,” it is both

necessary and sufficient to show that the child was taken “for

an illegal purpose or with an illegal intent.” (55 Cal.2d at pp.

764, 768.)

'S During the initial drive, Parnell refused Steven’s requests to

contact his parents. Thereafter, he told Steven that he had obtained legal

custody. Parnell gave the boy a new name and threatened to spank him if

he revealed his true ider.uity. On occasions when he had to leave, Parnell

gave Steven sleeping pills so he would sleep until Parnell returned (/d. at

p. 398.)

'9 As a general proposition, conduct which would otherwise be

tortious is not actionable if the plaintiff consents to it. “Consent ordinarily

bars recovery for intentional interferences with person or property. It is

not, strictly speaking, a privilege, or even a defense, but goes to negative

the existence of any tort in the first instance.” (Prosser & Keeton, Torts

(Sth ed. 1984) § 18, p. 112; see also Civ. Code, § 3515 (“He who

consents tO an act is not wronged by it.”).)

App. 30a

Putting aside the difficulties in determining whether Rob-

in was secreted by defendants “for an illegal purpose or with

an illegal intent,” Oliver itself refutes the notion that every

minor — i.¢., every person under the age of 18 — is too young

io give legal consent and thus by definition is falsely im-

prisoned when he or she is kept from parental custody. In

support of the proposition that the infani was too young to

consent, the court cited three out-of-state cases involving

children of ages two weeks (State v. Hoyle (Wash. 1921) 194

P. 976, 977), eleven years (John v. State (Wyo. 1896) 44 P. 51,

53) and four years (State v. Farrar (1860) 41 N.H. 53, 59). It

then contrasted those citations with a California case, People

v. Williams (1936) 12 Cal.App.2d 207, 212, in which the court

held that a 12-year-old boy was capable of consenting to the

defendant's commission of a lewd act.

That there can be no hard-and-fast rule as to the age at

which a minor attains the capacity to consent has been noted

by at least one respected set of commentators. “A minor

acquires Capacity to consent to different kinds of invasions

and conduct at different stages in his development. Capacity

exists when the minor has the ability of the average person to

understand and weigh the risks and benefits.” (Prosser &

Keeton, Torts (Sth ed. 1984) § 18, p. 115.) Moreover, case and

Statutory law is replete with examples of situations in which a

child over the age of 14 is deemed to have the mental capacity

of an adult. In California, minors of that age are capable of

committing and being held responsible for a crime (Pen.

Code, § 26), obtaining an abortion or birth control devices

(Civ. Code, § 34.5), consenting to certain types of medical

and mental health treatment (Civ. Code, §§ 25.9, 34.7 et seq.)

and being emancipated (Civ. Code., § 64).

Particularly significant in this regard is the United States

Supreme Court decision in Chatwin v. United States (1946)

326 U.S. 455 which overturned a defendant's conviction on

federal kidnapping charges. The case is noteworthy not only

because it involves the capacity of a girl of approximately

Robin’s age to consent to a kidnapping, but also because the

_ esrbtre s Gettin wenn”

en the

App. 3la

defendant was a member of a minority religious sect. Chatwin

was a 68-year-old fundamentalist Mormon who converted the

15-year-old victim, whom he employed as a housekeeper, to

believing in the doctrine of “celestial” or plural marriage.

They fled to Mexico where a wedding ceremony was per-

formed and lived thereafter in Arizona.?° (/d. at pp. 457-458.)

The Supreme Court held that the girl’s consent to the trans-

portation and marriage barred the kidnapping charges:

“(There is no competent or substantial proof that the girl was

of such an age or mentality as necessarily to preclude her

from understanding the doctrine of celestial marriage and

from exercising her own free will, thereby making the will of

her parents .. . the important factor. At the time of the alleged

inveiglement in August, 1941, she was 15 years and 8 months

of age and the alleged holding occurred thereafter. There is no

legal warrant for concluding that such an age is ipso facto

proof of mental incapacity in view of the general rule that

incapacity is to be presumed only where a child is under the

age of 14.” (/d. at p. 461.) In language particularly appropri-

ate to this case, the court added that “the broadness of the

Statutory language [in the Federal Kidnapp‘ng Act} does not

permit us to tear the words out of their -ontext, using the

magic of lexigraphy to apply them to unattractive or immoral

situations lacking the involuntariness of seizure and detention

which is the very essence of the crime of kidnapping.” (/d. at

p. 464, italics added.)

20 Interestingly, the stipulated facts in the case provided that the gir!

had a “mental age” of seven years and two months at the ume Chatwin

first began discussing with her the concepi of celestial marriage. (/d. at p.

457.) The court rejected the government’s contention that this fact was

sufficient to establish her inability to consent: “[T}he method of tesung

the girl’s mental age is not revealed and there is a complete absence of

proof in the record as to the proper weight and significance to be attached

to this particular mental age. . . Under such circumstances a stipulated

mental age of 7 cannot be said necessarily to preclude one from under-

standing and judging the principles of celestial marmage and from acting

in accordance with one’s beliefs in the matter.” (/d. at p. 462.)

ee,

App. 32a

Here, Robin was 15 at the time she decided to run away

from home. The evidence introduced by the plaintiff’s demon-

Strates that she was a bright and gifted high school student of

above-average intelligence and maturity. No doubt her deci-

sions in these matters were in part the product of the “rebel-

liousness of youth” but that is hardly a trait which evaporates

at age 18. We secriousiy question whether a minor who by

Statutory definition is capable of committing a crime can at

the same time be incapable of consenting to what would

otherwise be a tort. At a minimum, however, the common law

and case precedent indicate that a minor over the age of 14 is

presumed to be capable of consenting to conduct which would

otherwise be tortious. The evidence here, far from establish-

ing incapacity, demonstrates quite the opposite.

We think an analogy to the criminal law may be helpful

in evaluating the competing interests at stake here. As we

have seen, a minor’s consent may prevent a defendant's con-

viction for kidnapping just as it precludes civil tort liability

for false imprisonment. California has for some time, how-

ever, had a child abduction statute, Penal Code section 278,

which prohibits any person from intentionally detaining, con-

cealing or enticing away any minor from his or her parent or

guardian. It has been repeatedly held that this statute defines

a crime against the parent or guardian and for that reason, the

minor’s consent is irrelevant. (See. e.g., People v. Moore

(1945) 67 Cal.App.2d 789, 792; People v. Gillispie (1930)

104 Cal.App. 765, 767.)?) Similarly here, as we explain in

section III, post, the defendants’ principal conduct in conceal-

ing Robin from her parents constituted a tragic civil

21 Cases such as People v. Rios (1986) 177 Cal.App.3d 445 (13-

month-old victim) and People v. Campos (1982) 131 Cal.App.3d 894 (11-

month-old victim) do not suggest a contrary result in holding that a

defendant may be convicted of both kidnapping or false imprisonment

and child stealing. (Rios, supra, 177 Cal.App.3d at p. 450; Campos,

supra, 131 Cal.App.3d at p. 899.) Unlike Moore and Gillispie, Rios and

Campos concerned minors with no capacity to consent.

——————

App. 33a

wrong against Jim and Marcia George; it was not a tort

against Robin.

False Imprisonment Based on a “Brainwashing” Theory

Finally, Robin argues that the “force or threat of force”

and “lack of consent” requirements for the tort of false im-

prisonment may be satisfied by a showing that the plaintiff

was subjected to coercive persuasion. She asserts it makes no

functional difference whether her will was overcome by force

or threats of force or by systematic brainwashing techniques.

In either event, she suggests, the tort was committed because

she effectively was confined against her will.

The: California Supreme Court recently had occasion to

consider the subject of “coercive persuasion” in the context of

claims by former members of the Unification Church that

they had been brainwashed into joining the Church. In Molko

v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, the court held that

plaintiffs had stated a cause of action against the Church for

fraud and intentional infliction of emotional distress based on

allegations that the Church misrepresented its identity and

deceived them into attending an indoctrination mecting and

retreat. At the same time, however, the court rejected one

plaintiff’s assertion that she had been falsely imprisoned at

the retreat, noting she admitted she was “theoretically free to

depart at any time” and “was not physically restrained, sub-

jected to threats of physical force, or subjectively afraid of

physical force.” (/d. at p. 1123.) The plaintiff argued she had

in fact been threatened because the Church asserted she and

her family would be “damned to Hell forever” if she left. The

Supreme Court quickly dispatched this argument, concluding

that it sought “to make the Church liable for threatening

divine retribution. . . . [SJuch threats are protected religious

speech [citations] and cannot provide the basis for tort lia-

bility.” Ud. at pp. 1123-1124.)

Robin seeks to distinguish Molko on the ground that the

plaintiff’s claim there was based solely on “protected

App. 34a

religious speech.” In contrast, she asserts, her brainwashing

claim involved more than simple threats of divine retribution.

We decline Robin’s invitation to extend what we believe

are the clear limits of Mulko. To begin with, we read Molko as

a reaffirmation that physical force or the threat of it is a

necessary element of a false imprisonment cause of action

even in the context of a brainwashing claim. The plaintiff's

divine retribution argument was a last-ditch attempt to satisfy

the threat requirement. We have great difficulty believing the

Supreme Court simply ignored plaintiff’s “coercive persua-

sion” allegations as a possible basis for the force element.

Robin is, of course, correct that the brainwashing theory

expounded by Drs. Singer ana Smith focused on more than

threats of divine retribution. The results, however, are the

same. Tort liability based on dietary restrictions, methods of

worship, and communal living arrangements and schedules is

just as surely inimical to the free exercise of religious liberty

as that based on threats of divine retribution.?? This is made

clear in another portion of the Molko opinion which defends

against a First Amendment argument the court’s conclusion

that religious fraud is actionable: “Although fasting, poverty,

silence or cioistered living may constitute intensive religious ~

practice, we have already determined that fraud, even though

purported to be religiously motivated, is actionable con-

duct... .” (46 Cal.3d at p. 1122.)

Here, Robin presented no evidence of fraud as to her23

nor did the evidence at trial so much as suggest that the

22 A different question might be presented if it could be shown that

a religious group adopted certain devotional practices for the purpose of

brainwashing potential converts. No such evidence was presented in the

case and we decline to express any opinion on the matter.

23 For the first time in her petition for rehearing, Robin asserts she

was fraudulently induced to join the Krishna movement based on repre-

sentauons by Rsabadeva that she could not practice the religion at home.

At trial, Rsabadeva denied that living in a temple constituted a tenet of

the Krishna religion.

(Continued on following page)

—

ee ams a a oS

;

App. 35a

schedules, practices and dutics required of her differed from

those of any other Krishna devotee. Absent such evidence,

Robin’s brainwashing theory of false imprisonment is no

more than an attempt to premise tort liability on religious

practices the Georges find objectionable. Such a result is

simply inconsistent with the First Amendment.

INTENTIONAL INFLICTION OF EMOTIONAL

DistTRESS AS TO ROBIN

For reasons similar to those expressed in the preceding

two subsections, we conclude that Robin’s claim for damages

based on the intentional infliction of emotional distress is also

fatally flawed. Many of the acts relied on by Robin as “‘outra-

geous” are hardly uncommon among cloistered religious

groups.** Moreover, there is a dearth of evidence suggesting

(Continued from previous page)

We have reviewed the portions of the record cited to us and other

contextual tesumony. To begin with, Robin never tesufied that absent

these presentations she would not have left home. Moreover, Ksabadeva

did testify that in order to practice Krishna consciousness at home, a

devotee was required perform certain rituals such as worshipping at an

altar and chanting. Robin, of course, was prohibited by her parents from

engaging in such practices at home. (See ante, p. 745.) Thus assuming

Rsabadeva made such representations to Robin, they are most reasonably

interpreted not as a statement of Krishna theologic doctrine but rather as

his opinion regarding Robin’s ability to successfully pracuce the religion

at her home.

24 The Georges argue the intentional infliction issue as follows:

“The jury’s conclusion is supported by ample evidence of defendants’

misconduct toward Robin. The record is replete with accounts of Robin's

arduous life with defendants:

~— “Robin was made to work grueling hours with very little in the

way of sleep or su. tenance.

~ “All of her possessions were taken away; she was forced to plead

for such common items as shoes, clothing and health care.

(Conunued on following page)

App. 36a

that any of these acts were performed by defendants with the

intention of inflicting emotional distress on Robin or even in

reckless disregard of that possibility. (See Agarwal v. Johnson

(1979) 25 Cal.3d 932, 946-947.) As we have previously

noted, Robin’s religious duties and living conditicns were

identical to all the other Krishna devotees who voluntarily

chose the Krishna lifestyle.

Although the Supreme Court’s decision in Molko held the

plaintiff's there had stated a cause of action for intentional

infliction of emotional distress, it does not support the verdict

in this case. The Molko opinion begins its discussion of the

emouonal distress issue by defining the plaintiffs’ claim:

“Molko and Leal essentially contend the same conduct that

supports their fraud actions — i.e., misrepresentation and con-

cealment of the Church’s identity for the purpose of inducing

them to submit unknowingly to coercive persuasion — also

(Continued from previous page)

— “She was required to do menial labor and forced to beg for money.

— “Robin was deprived of any meaningful contact with the outside

world. She was separated from the nurturing influence of family and

friends; she was not even allowed to correspond.

~ “Robin was deprived of the simple joys of !ife. She was not

_ permitted to read books or newspapers, view television or even listen to

the radio.

— “Most important, Robin was moved from place-to-place without

regard to her personal wishes. Quite apart from the tortious purpose of

these movements, defendants forced Robin to travel to Louisiana, Missis-

sippi, New York, Canada, Michigan and Los Angeles without so much as

asking her permission.”

It should be noted that plaintiffs’ use of the word “forced” on several

occasions in this passage are clearly characterizations rather than objec-

live statements of fact. Although she was instructed to do certain things

by her superiors in the Krishna faith, there is no evidence Robin was ever

threatened with physical force if she failed to comply. Apart from the

metaphysical question of brainwashing, there was every objective indica-

tion that Robin actively sought defendants’ assistance and fully cooper-

ated in their efforts to hide her from her parents.

App. 37a

gives rise to an action for intentional infliction of emotional

distress.” (46 Cal.3d at p. 1120) In the discussion which

follows, the court makes it abundantly clear on more than one

occasion that the allegations of fraud are an essential part of

the plaintiffs” emotional distress claim.?5

Similarly, the recent Court of Appeal decision in

Wollersheim v. Church of Scientology (1989) 212 Cal.App.3d

872 does not support Robin’s claim. .In Wollersheim, the

plaintiff was coerced into remaining a member of the Church

of Scientology and participating in religious activities by

physical force and threats of economic sanctions. The court

held that where the church member’s participation was invol-

untary in the sense that it was coerced by force and threats,

the religious nature of the activities would not insulate a

church from an otherwise proper claim for intentional inflic-

tion of emotional distress. (/d. at p. 897.) Here, as we have

emphasized, there was simply no physical force used. (See

ante, fn. 24.) Neither was there evidence of threats of

25 Molko rejects the church’s arguments in the following language:

“The Church offers two arguments why its conduct was not, as a matter

of law, extreme and outrageous. First it contends its actions amounted to

nothing more than ‘intensive religious practice,’ and therefore were

different only in degree, not in kind, from those of many other religious

groups. We find this claim unconvincing. Although fasting, poverty,

silence or cloistered living may constitute intensive religious practice, we

have already determined that fraud, even though purported to be reli-

giously motivated, is actionable conduct under the circumstances pre-

sented here.

“Second, as mentioned above, the Church argues that Leal’s long

hours of work were ‘self-inflicted.’ It contends its encouragement for her

to sell flowers and solicit money does not constitute Outrageous conduct.

But since the conduct that the Church relies on occurred after Leal had

formally joined the Church, the argument has no bearing on whether its

original fraudulent inducement into an atmosphere of coercive persuasion

— the conduct at issue — is extreme and outrageous.

Viewed in the light most favorable to plaintiffs, the Church’s contin-

ued deceptions might well be seen as conduct breaching plaintiffs’ trust in

the integrity of those who were promising to make their lives more

meaningful.” (46 Cal.3d at p. 1122, italics added.)

App. 38a

economic sanctions. To the extent Wollersheim can be read as

expanding Molko beyond the strict fraud context, that expan-

sion is nonetheless inapplicable on the facts of this case.

II]

INTENTIONAL INFLICTION OF EMOTIONAL

DIsTRESS AS TO MARCIA

Defendants contend generally that the evidence is insuffi-

cient to support the verdict in favor of Marcia on her claim

for intentional infliction of emotional distress. Even if the

evidence is sufficient, however, they assert the judgment in

her favor must be reversed because it is possible the jury

based its damage award in part on distress caused by defen-

dants’ constitutionally protected activity. Finally, they also

argue that Marcia’s claim is barred as a matter of law by the

Statute of limitations.

Sufficiency of the Evidence

It is only by relying on a narrow and restrictive view of

the facts and plaintiffs’ arguments that defendants can con-

tend Marcia’s claim for intentional infliction of emotional

distress was not supported by substantial evidence. The re-

cord fully supports the conclusion that defendants encouraged

Robin to run away from home occasions, promising to send

her “someplace where your parents will never find you.”

Thereafter, while pretending to be ignorant but cooperative,

the various leaders of the Krishna movement systematically

planned and carried out ruse after deception in an effort to

wear down the Georges and put law enforcement officials off

the track.

In a preceding section of the opinion we rejected the

Georges’ contention that anyone who entices a minor child

away from the custody of her parent or conceals such a child

from the parent is liable for false imprisonment. (Ante, pp.

762-765.) The same conduct may, however, give rise to a

cause of action on behalf of the parent for intentional inflic-

tion of emotional distress where the defendant recklessly

App. 39a

disregards the probability that it will cause the parents severe

emotional suffering.

Defendants respond to this suggestion at several levels.

Focussing on the contention that they misrepresented their

lack of knowledge of Robin’s whereabouts, they argue that

such misrepresentations were, if anything, calculated to avoid

causing the Georges the emotional distress which would have

been occasioned by disclosure of the truth. ‘The argument fails

for two distinct reasons. First of all, as a factual matter, it is

simply incorrect. For much of the time, the Georges did not

know where there daughter was or what condition she was in.

It is hardly surprising that this uncertainty was a significant

cause of emotional distress. Even knowing she was living in a

Krishna temple in New Orleans or Ottawa would have greatly

eased their apprehension. Moreover, defendants knew that the

Georges tirelessly continued to search for Robin and were

keenly aware of their frustrations when the Georges began

their public relations campaign against the Southern Califor-

nia Krishna temples.

In addition, it is misleading to focus on the misrepresen-

tations of Krishna ignorance as the sole or even primary basis

for Marcia’s emotional distress claim. The essence of the

actionable conduct here was the conspiracy among defendants

and other ISKCON agents to assist Robin in running away

and to conceal her from her parents, which they knew was

likely to cause the Georges severe emotional suffering.?°

26 We also reject defendants’ contention that they have been uncon-

stituuonally subjected to tort liability for merely preaching “that a religion

may be most fully or successfully practiced in a religious community”

and opining that “a minor’s parents will not let the minor practice Krishna

consciousness while living at home.” Because the actionable condact here

involved far more than the mere preaching of religious beliefs or making

statements of opinion, we need not consider whether religiously moti-

vated importuning of a minor to leave his parent or guardian, standing

alone, is absolutely protected or is subject to some sort of “clear and

present danger” test. (Cf. Schenck v. United States (1919) 249 U.S. 47,

52; Whitney v. California (1927) 274 U.S. 357 U.S. 357,

(Continued on following page)

App. 40a

Feigned ignorance was only one aspect of this reprehensible

activity. The purchase of plane and bus tickets, disguises,

fake photographs, fraudulent letters and arguably the libelous

“Official Position” news release (see ante, pp. 757-758) were

all part and parcel of the conspiracy and provide a more than

adequate basis for concluding that defendants engaged in

Outrageous conduct “ ‘exceeding all bounds usually tolerated

by a decent society.’ ” (Agarwal v. Johnson, supra, 25 Cal.3d

at p. 946, quoting Newby v. Alto Riviera Apartments (1976) 60

Cal.App.3d 288, 297; see also Molko v. Holy Spirit Assn.,

supra, 46 Cal.3d at p. 1122.)

Defendants also argue that Marcia’s emotional distress

claim is simply a covert attempt to resurrect her earlier

pleaded cause of action based on Civil Code section 4927 for

abduction or enticement of a minor child which was dismissed

pretrial after a demurrer was sustained without leave to

amend. Marcia has not filed a cross-appeal on the ground that

such demurrer was improperly sustained and the sufficiency

of the earlier pleading is not before us. Regardless of whether

the facts proved at trial would have supported such a cause of

action, Marcia cannot be precluded from prosecuting her

action On an emotional distress theory where, as we have

indicated, all elements of that cause of action have been

satisfied.

(Continued from previous page)

372-373 (conc. opn of Brandeis, J.); Brandenburg v. Ohio (1969) 395

U.S. 444, 447.)

27 Section 49 provides in relevant part: “The rights cf personal

relations forbid . . . [t]he abduction or enticement of a child from a parent,

or from a guardian entitled to its custody ... .”

28 For reasons which should be apparent from the tenor of our

discussion, we also reject defendants’ contention that the award of

$400,000 compensatory damages to Marcia was excessive as a matter of

law because it could only be based on her reaction to her daughter leaving

home, an event for which the defendants were not responsible.

(Continued on following page)

EE ————

App. 4la

Constitutionally Protected Activity as a Sasis for Liability

For the first time at oral argument, counsel for defen-

dants appeared to concede that the evidence at trial might

support a cause of action for intentional infliction of emotion-

al distress. He argued instead that the case was presented to

the jury in such a way as to allow it to award damages to

Marcia caused not only by defendants’ tortious conduct but

also by their constitutionally protected activity. Specifically,

counsel suggested that the jury’s verdict could have included

amounts intended to compensate Marcia for the distress she

suffered because Robin converted to and practiced a religion

foreign to her own. Defendants rely on a line of United States

Supreme Court cases which state that where the record is

insufficient to eliminate the possibility that a criminal or civil

judgment is based in whole or in part of conduct protected by

the First Amendment, it must be reversed. (See, e.g., NAACP

v. Claiborne Hardware Co. (1982) 458 U.S. 886, 923; Street

v. New York (1969) 394 U.S. 576, 589-590; Stromberg v.

People of the State of California (1931) 283 U.S. 359,

367-368.) Although they did not object to the emotional

distress instructions on this ground in the trial court or

(Continued from previous page)

We also reject plaintiffs’ contention raised in their cross-appeal that

the trial court’s inadequate statement of reasons in support of the condi-

tional new trial order requires that the original jury award of $1.5 million

be reinstated. (See generally Mercer v. Perez (1968) 68 Cal.2d 104.) As

we explain in more detail in the section of this opinion dealing with

punitive damages (post, p. 796), if we concluded that the statement of

reasons was inadequate, we would then be required to evaluate the greater

jury verdict amount to determine whether it was excessive. On the facts

of this case, we think $1.5 million is clearly an excessive amount to

compensate for emotional distress without physical injury or disabling

consequences. We do not believe an award in excess of $400,000 could

be justified. (See Wollersheim v. Church of Scientology, supra, 212

Cal.App.3d at pp. 905-906 (reducing an emotional distress damage award

to $500,000 in a case involving “permanent and severe” psychological

injury).)

App. 42a

propose a specific limiting instruction, defendants now effec-

tively assert that Marcia’s emotional distress award must be

reversed because the jury was not specifically warned it could

not assess damages based on their constitutionally protected

proselytization of Robin. (See Founding Church of Scientol-

ogy v. United States (D.C. Cir. 1969) 409 F.2d 1146, 1164,

fn.2 (opn. on rhg.).)

Assuming the contention is properly before us, our re-

view of the record convinces us that the damages awarded in

this case were not based on defendants’ constitutionally pro-

tected activity. Although the jury was only instructed in

general terms on intentional infliction of emotional distress,

these instructions did specify that the actionable conduct had

to be “extreme and outrageous” going beyond “all possible

bounds of decency so as to be regarded as atrocious and

utterly intolerable in a civilized community.” That constitu-

tionally protected proselytization hardly fits this description

was emphasi.cd in later instructions which explained that the

First Amendment “envision[{s] the widest possible toleration

of conflicting views” and “does not select any one group or

any one type of religion for preferred treatment.” The jury

was also instructed that ISKCON “is a religion under the

United States Constitution. . . .” It is inconceivable that the

jury could have regarded

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