# Petition for Writ of Certiorari — International Society for Krishna Consciousness v. George > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0951%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1990 - **Citation:** 494 U.S. 1075 ## Text Supreme Court of the Unit October Term, 1939 : a vw INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS OF CALIFORNIA, ET AL., Petitioners, ROBIN GEORGE AND MARCIA GEORGE, Respondents. La wv PETITION FOR A WRIT OF CERTIORARI TO THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, FOURTH APPELLATE DISTRICT »N 4 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. 7 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. ii 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 30 iv 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 vi 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.” 2 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). 3 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. 4 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. 5 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). 6 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 7 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 8 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 9 (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. © The court-appointed receiver has estimated the value of the prop- 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. 10 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. 11 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). 12 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). 13 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: 14 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. —— i) 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) 16 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). oe 17 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. 18 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. 19 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. 20 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 21 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. 22 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. 23 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 24 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. 25 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 26 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). 27 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). 28 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. 29 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”). 30 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 V, 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, ae 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 © At trial, Robin explained that Lord Nsringadev was a half-lion/ 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0951%3A01. Public record. Not legal advice.