Lisa McPherson v Flag

Hearing re Scientology's Motion to Strike Punitive Damages

30 December 2002 - AM Session

Informal summary


                                  CASE NO. 00-5682-CI-11


                DELL LIEBREICH, as Personal
           5    Representative of the ESTATE OF
                LISA McPHERSON,

           7              Plaintiff,

           8    vs.                                      VOLUME 1

                and DAVID HOUGHTON, D.D.S.,


          15    PROCEEDINGS:        Motion Re:  Punitive Damages.

          16    DATE:               December 30, 2002.  Morning Session.

          17    PLACE:              Courtroom B, Judicial Building
                                    St. Petersburg, Florida.
                BEFORE:             Honorable Susan F. Schaeffer,
          19                        Circuit Judge.

          20    REPORTED BY:        Lynne J. Ide, RMR,
                                    Notary Public,
          21                        State of Florida at large.





                            Kanabay Court Reporters; Serving West Central Florida
                              Pinellas (727)821-3320 Hillsborough (813)224-9500
                            Tampa Airport Marriott Deposition Suite (813)224-9500

           1    APPEARANCES:

           2    MR. KENNAN G. DANDAR
                DANDAR & DANDAR
           3    5340 West Kennedy Blvd., Suite 201
                Tampa, FL 33602
           4    Attorney for Plaintiff.

                MR. LUKE CHARLES LIROT
           6    LUKE CHARLES LIROT, PA
                112 N East Street, Street, Suite B
           7    Tampa, FL 33602-4108
                Attorney for Plaintiff.

           9    MR. KENDRICK MOXON
                MOXON & KOBRIN
          10    1100 Cleveland Street, Suite 900
                Clearwater, FL 33755
          11    Attorney for Church of Scientology Flag Service

          13    MR. ERIC M. LIEBERMAN
          14    740 Broadway at Astor Place
                New York, NY 10003-9518
          15    Attorney for Church of Scientology Flag Service

                740 Broadway, Fifth Floor
          18    New York, New York  10003
                Attorney for Church of Scientology Flag Service
          19    Organization.

                MR. MICHAEL FOSTER
          21    MICHAEL FOSTER, P.A.
                113 South MacDill
          22    Suite A
                Tampa, Florida  33609
          23    Counsel for the Intervenors.



                            Kanabay Court Reporters; Serving West Central Florida
                              Pinellas (727)821-3320 Hillsborough (813)224-9500
                            Tampa Airport Marriott Deposition Suite (813)224-9500

           1    APPEARANCES - Continued


           3    MR. WILLIAM T. DRESCHER
                DRESCHER & DRESCHER
           4    23679 Calabasas Road
                Calabasas, California  91302-1502
           5    Attorney for Church of Scientology Flag Service




















4 1 THE COURT: Good morning. Okay. I see they 2 gave me the low chair so -- we'll survive. 3 Okay, today we have the plaintiff's -- 4 defendant's, I'm sorry -- moving to strike punitive 5 damages. As I was looking for all of the various 6 things last night, I know I have read it, 7 Mr. Dandar, but I couldn't put my hands on it, was 8 your initial response. 9 MR. DANDAR: Yes. 10 THE COURT: I read it. Because I read it when 11 it first came in, but I couldn't review it because I 12 just couldn't find it. I don't know whether I left 13 it in the office. I couldn't find it in the office 14 this morning. 15 MR. DANDAR: Would you like another? 16 THE COURT: Why don't you let me just borrow it 17 if you think you're going to be referring to it. 18 MR. DANDAR: All right. 19 THE COURT: Okay? Don't give me your only 20 copy. As I said, I know I have it. It's just a 21 question of where. And I couldn't put my hands on 22 it. 23 I did notice, however, in your response and 24 then in your supplemental response you allude to the 25 fact that the procedure here is incorrect because
5 1 the motion that I'm being requested to hear 2 regarding the RFRA-First Amendment challenge has 3 already been determined by Judge Moody perhaps when 4 he had the case. 5 MR. DANDAR: That is correct, Judge. 6 THE COURT: So at some point in time there was 7 a motion to add a claim for punitive damages. 8 MR. DANDAR: And we had an evidentiary hearing, 9 constitutional issues were argued, RFRA was argued, 10 and the -- 11 THE COURT: Does anybody have a copy of that 12 hearing transcript? 13 MR. DANDAR: I don't have it today, but I can 14 get it to you. 15 THE COURT: Okay. So you are suggesting 16 that -- therefore, that the request to rehear that 17 is just that, the request for rehearing? 18 MR. DANDAR: Exactly, which is not permitted. 19 THE COURT: Okay. Why don't you-all address 20 that first. 21 MR. LIEBERMAN: Your Honor, I think when Judge 22 Moody added punitive damages, he indicated in 23 several ways it was something that could be 24 readdressed at a motion -- at some subsequent stage 25 of the case, it was based on the allegations as they
6 1 then were presented, which included -- the motion to 2 add punitive damages was actually a motion to add 3 punitive damages, and to file a fifth amended 4 complaint which contained the infamous Paragraph 34. 5 And he indicated that this was based upon the 6 presentation at that point, and he would take 7 another look at it later on. 8 THE COURT: Well, I understand that. But the 9 infamous Paragraph 34 was also in the request for 10 summary judgment which was denied, this court 11 finding that there was sufficient evidence in the 12 record, for lack of better word, where I could not 13 grant a summary judgment. 14 So, consequently, since that has occurred, I 15 don't know because I don't know what Judge Moody 16 said, so I'm going to have to read what he said. 17 If he said, obviously, if the facts change, 18 which is what I might normally say if I granted a 19 motion to allow punitive damages, if everything 20 changes down the road, why, I'll entertain a motion 21 to strike. But -- actually, I don't normally do 22 that. Once I allowed the punitive damages, they 23 just stay. But I would assume if the facts change, 24 and what was being alleged in the complaint 25 completely obliterated, that somebody would come in
7 1 and move to strike and I would hear that. 2 MR. LIEBERMAN: Right. 3 THE COURT: But I have denied a motion for 4 summary judgment on the intentional infliction of 5 mental distress, I have denied a motion to dismiss 6 on Count 1 as it existed with Paragraph 34, even 7 though you are correct, it has now been amended by 8 agreement of the court and by agreement of the 9 parties and what have you. It still contains, for 10 lack of a better term, intentional neglect of a 11 disabled adult, so that, you know, in my motion for 12 summary judgment I addressed, as well as this 13 intentional decision to let her die. 14 So I don't know quite what -- I'm going to hear 15 you because I don't have in front of me what Judge 16 Moody said. But I want to see what he said, and I 17 want to see what was argued. 18 And if, in fact, it appears to me that this is 19 just a rehearing of a -- of a First Amendment 20 argument that he's already heard and he's already 21 ruled on, then, in effect, this would be a request 22 for rehearing unless something is drastically 23 changed. And as I said, in light of the fact -- the 24 only thing I can think of that changed would be the 25 summary judgment that has been granted on the false
8 1 imprisonment, that would certainly be a change. 2 So, there again, I don't know what he said. 3 Obviously, nobody has given me the transcript of 4 what he said. So I need it. 5 MR. LIEBERMAN: I think something else has 6 changed, your Honor, with all due respect, that was 7 the allegations of the old Paragraph 34 alleged a 8 specific intent -- actions with specific intent to 9 permit a death, action -- Mmm -- based on the 10 affidavit of Mr. Prince, and those allegations have 11 now been changed. And -- and even in your order you 12 construed them as being, in effect, a culpable 13 negligence allegation, intentional but a culpable 14 negligence allegation, rather than an allegation of 15 a specific intent. The allegation was a decision 16 was made -- 17 THE COURT: Actually, that is not true. I 18 think if you read my order more carefully what I 19 said was culpable negligence would have been 20 significantly easier to have been proved; that it 21 was not alleged, I was very doubtful that he had 22 alleged it, and I think I went on to say he knew how 23 to allege it. I went through quite a lengthy 24 dissertation about how he had alleged it many times 25 in the past and, frankly, had not and, therefore, I
9 1 specifically did not take the summary judgment from 2 a culpable negligence standpoint but from an 3 intentional standpoint, not necessarily ruling out 4 culpable negligence but suggesting that I was not 5 really sure at that time that culpable negligence 6 had been plead. Quite frankly, I don't think it 7 had, and I think I was trying to make myself as 8 clear as I could, and now it has. 9 MR. LIEBERMAN: Yeah. 10 THE COURT: And now you are right, the 11 complaint has changed. 12 MR. LIEBERMAN: The complaint has changed. 13 And, of course, this motion was filed before your 14 Honor's orders and before the amendment to the 15 complaint. 16 THE COURT: Right. As I said, I'll go ahead 17 and hear it, but I do want to see what Judge Moody 18 said. 19 And I do think that -- that one thing that has 20 not changed, and that is there was an allegation of 21 intentional infliction of mental distress by 22 allowing cockroaches/insects to feed on Lisa 23 McPherson. I have, in essence, said I will not 24 allow the testimony of cockroaches to come before 25 the jury because I couldn't find any factual basis,
10 1 assuming you all are going to raise that, which you 2 had, in essence, by your pleading -- 3 MR. LIEBERMAN: Yes. 4 THE COURT: -- to support the entomologist's 5 opinion that these were consistent with cockroaches. 6 So -- however, I did not grant it, and I know 7 you have a request to sort of rehear that, too. And 8 we'll just have to address that at the appropriate 9 time. 10 As we sit right now, there is remaining an 11 intentional infliction of mental distress, that 12 being insects feeding on a live or conscious Lisa 13 McPherson. 14 MR. LIEBERMAN: That is right. And that is the 15 basis for our -- it's not really -- I wouldn't 16 characterize the motion for rehearing; it's a motion 17 for -- it's a renewed motion based upon the 18 intervening order of your Honor with respect to the 19 evidence with respect to cockroaches. 20 THE COURT: I guess what I want to tell you is 21 part of my problem here is we've got a complaint 22 couched in terms of, for lack of better terms, 23 intentional acts, culpably negligent acts, and 24 really in the negligent count something less than 25 that, say gross negligence. I don't see any simple
11 1 negligence alleged anywhere in the complaint. So I 2 think we have those things. 3 I have no idea at this point in time what a 4 jury -- should this reach a jury -- what it is 5 they're going to find. To me, I think, therefore, 6 you had better make this argument on what I would 7 call the worst-case scenario. In other words -- 8 MR. LIEBERMAN: Yes. 9 THE COURT: -- you can't make a legal argument 10 based on the best-case scenario, that being just 11 negligence, because I don't think just negligence 12 has been alleged. I think you have got allegations 13 of gross negligence, culpable negligence and 14 intentional acts. 15 MR. LIEBERMAN: I understand. 16 THE COURT: I think from a legal standpoint you 17 had better assume that a jury has decided that there 18 were intentional -- that -- that the Church, because 19 this is about the Church, not the individuals, as I 20 understand it, correct? In other words, the motion 21 to strike punitive damages -- 22 MR. LIEBERMAN: Is on behalf of the Church, 23 yes. 24 THE COURT: The Church, not Mr. Kartuzinski, 25 not Mr. Johnson.
12 1 MR. LIEBERMAN: Correct. 2 THE COURT: So let's assume -- we have to 3 assume, before we can have this argument, that the 4 jury has -- has found the worst-case scenario, that 5 being intentional acts, and that somehow the Church 6 is -- is responsible. 7 And the real question is can the Church be held 8 to pay punitive damages for either intentionally 9 neglecting a disabled adult or intentionally 10 inflicting emotional or mental distress. 11 MR. LIEBERMAN: And I had intended to address 12 just the constitutional RFRA arguments because your 13 Honor had previously indicated that the first part 14 of my motion which was issued prior to your order 15 you weren't going to consider based upon your -- 16 your intervening order, so that was the only issue I 17 was going to address today. 18 THE COURT: Okay. Let's go ahead then and 19 let's assume each side -- we ought to be able to sum 20 this up in a half hour. Is that enough? 21 MR. LIEBERMAN: Well, you said an hour aside. 22 THE COURT: Okay. 23 MR. LIEBERMAN: But I'll try to keep it under 24 that. 25 We also -- let me just -- if I might inquire as
13 1 to what your Honor sees as the schedule for today 2 just -- 3 THE COURT: Frankly -- 4 MR. LIEBERMAN: Is this the only issue we'll 5 hear today? 6 THE COURT: This is the only issue I had 7 intended to address, but I suspect we could address 8 more. 9 MR. LIEBERMAN: Right. 10 THE COURT: I think what I had said is that we 11 had Monday and Tuesday, and I would -- I had a 12 dentist appointment today at 3~o'clock. So that I 13 have got to keep. 14 MR. LIEBERMAN: Right. 15 THE COURT: But other than that, I'm yours. So 16 if you want to address something else, we can. 17 MR. LIEBERMAN: Right. Well, is your honor 18 planning on meeting tomorrow? 19 THE COURT: Yes. 20 MR. LIEBERMAN: Okay. 21 THE COURT: What I would like to finish off 22 before I start back my regular schedule would be the 23 battery summary judgment. 24 MR. LIEBERMAN: I want -- on that one, I have 25 reviewed the papers on that and we're prepared to
14 1 submit it on the papers. 2 THE COURT: Are you? 3 MR. LIEBERMAN: Yes. 4 THE COURT: Okay. 5 MR. LIEBERMAN: That would save some time. 6 THE COURT: Is that all right with you, 7 Mr. Dandar? 8 MR. DANDAR: Yes, it is. 9 THE COURT: Good. Okay. I will assume that 10 has been -- the battery summary judgment I think 11 there is a motion to sort of rehear. I haven't read 12 it carefully so I don't know, but Mr. Moxon just 13 dropped off something dealing with it this morning. 14 MR. LIEBERMAN: Right. 15 THE COURT: But I had something, it was 16 something about the intentional infliction of mental 17 distress. 18 MR. LIEBERMAN: Right. 19 THE COURT: I know you want me to narrow those 20 issues for you. I am just not inclined to do that. 21 I'm inclined to tell you -- again, I don't know what 22 it is you asked for exactly, but I'm inclined to 23 suggest what is still outstanding is insects feeding 24 on Lisa McPherson that would have to be -- would 25 have to be -- before I would let it go to the jury
15 1 when she was either alive or conscious, it would 2 have to be both of those, alive and conscious, I 3 guess I should say. That is still remaining. 4 And what is also still remaining that I -- I 5 really can't resolve because I cannot rule on it as 6 a matter of law is -- is the allegation that she was 7 permitted, sort of, to urinate, defecate and what 8 went on with that, that could be outrageous conduct, 9 maybe not. It probably is not because the best I 10 can feature this, this is a person -- although I 11 tell you what confuses me, what confuses me a little 12 bit is the psychological expert who seems to suggest 13 that this is really quite unusual, this is not 14 typical of a psychotic person. I don't know if it 15 is or not. 16 But if there is something going on where -- 17 where somehow she's being permitted to lay in her 18 own feces or this type of thing, I can envision a 19 set of facts where there would be outrageous 20 behavior. I don't know they exist here. I don't 21 know they don't. This was a legal argument and a 22 request for me to determine whether or not something 23 was an outrage or not. Some of the things 24 Mr. Dandar suggested I think I said legally I would 25 not find outrageous, a singular standing in a
16 1 toilet, for example, would not be. A lot of what he 2 had stated in there pursuant to your own argument I 3 found merged into the -- either the wrongful death 4 or the negligent survival count, one or the other, 5 and, therefore, they would not be. 6 I remember telling you that I had some 7 confusion over the -- the -- and I still do, I 8 guess, a little bit, I just haven't -- I haven't 9 figured it out in my own mind, whether or not if, in 10 fact, the -- I don't know -- I haven't read as 11 carefully perhaps as I need to your expert's 12 testimony regarding any dehydration at all, what 13 their -- what their -- I know what they say the 14 cause of death is. And I know what they opined, 15 that it was she did not die from dehydration -- or 16 the pulmonary embolism was not caused by bedrest and 17 dehydration but the accident. So I know the basis 18 of it. 19 What I don't know is whether or not there could 20 be an instance where the cause of death -- where the 21 wrongful death -- could be determined to be 22 pulmonary embolism caused by an accident, which 23 would be what I would consider the defense theory. 24 MR. LIEBERMAN: Right. 25 THE COURT: And -- however, there was severe
17 1 dehydration that didn't cause death. And if -- if 2 the opinion was that -- that somehow or another this 3 was brought on by -- well, I don't know. I'm trying 4 to figure out whether there might be some situation 5 where the allegation -- because he makes the 6 allegation in there both dehydration and 7 malnutrition somehow or another could not merge if, 8 in fact, the cause of death as opined or propounded 9 by the Church was the accepted -- and I can't -- I 10 can't get there. I mean, that is just kind of like 11 too much -- too much trying to figure out what a 12 jury would do, what the testimony is going to be and 13 what have you. So I don't think I can really 14 narrow -- I'm not going to rehear it. 15 MR. LIEBERMAN: You're not? 16 THE COURT: I'm not going to rehear what I 17 already ruled on. I denied it. I have done the 18 best I can to narrow it orally for you and tell you 19 what I would not allow -- it's really a matter of 20 argument; it's not a matter of what the jury's going 21 to hear. And so I will read it over, but the 22 chances of my hearing it again are fairly slim -- or 23 the chances of my sitting down and doing a lengthy 24 order at this late stage are slim. 25 MR. LIEBERMAN: So you're saying you don't want
18 1 to hear argument on that? 2 THE COURT: I doubt it. 3 MR. LIEBERMAN: Okay. 4 THE COURT: That leaves us -- but I want to 5 read it again more carefully, okay, to see if there 6 is something you are arguing other than -- other 7 than we want you to do a better job than we have 8 already done or we don't like your first ruling. 9 MR. LIEBERMAN: No, neither of those. 10 THE COURT: Well, what is -- 11 MR. LIEBERMAN: What we're saying is the 12 cockroach -- if I may -- 13 THE COURT: Yes. 14 MR. LIEBERMAN: -- the cockroach allegation, 15 there is no evidence, admissible evidence, that will 16 come in on that, because on your Honor's ruling they 17 have not presented, in response to this motion, any 18 competent admissible evidence, or any evidence, that 19 they would -- that they would seek to overcome your 20 Honor's ruling. 21 THE COURT: But they really have up until the 22 time of trial. 23 MR. LIEBERMAN: Well, when you file -- I'm 24 sorry. 25 THE COURT: Basically what I said, what I did
19 1 in that order is I assumed at the time he called 2 that expert -- 3 MR. LIEBERMAN: Yes? 4 THE COURT: -- I went to what I perceived to be 5 the rule, the rule says that if you challenge the 6 factual basis of the opinion, at that point they 7 must -- normally they don't have to, but if somebody 8 challenges there are no facts for this opinion -- 9 MR. LIEBERMAN: Yes? 10 THE COURT: -- then they have to at least 11 propound, outside the presence of the jury, before 12 the opinion can come in, some facts that the opinion 13 can be based on. And what I said was unless -- he 14 couldn't comment to the jury or really call that 15 witness to go through that business unless he had 16 something more than what he had at the time I ruled. 17 MR. LIEBERMAN: Right. 18 THE COURT: I don't know if he does or he 19 doesn't, but -- but I would allow that expert to 20 testify if so much as one witness says they saw 21 cockroaches. That is all it would take. 22 Now, I don't know what those witnesses are 23 going to say. I don't know what his witnesses are 24 going to say. I don't know what your witnesses are 25 going to say.
20 1 That was kind of a ruling in advance that said 2 I don't think that if you challenge his entomologist 3 that he has got sufficient showing at this point in 4 time to allow that entomologist to opine that insect 5 bites were caused consistent with cockroaches, for 6 lots of reasons, not the least of which I didn't 7 think he had a factual basis but, more importantly, 8 that I thought the probative value was far 9 outweighed by the prejudicial value of cockroaches. 10 And, therefore, I probably wouldn't allow it on that 11 basis alone, I would have to hear what he had -- if 12 he had more facts, I would want to know what they 13 were. 14 MR. LIEBERMAN: I understand, your Honor. The 15 purpose, of course, of summary judgment -- renewed 16 summary judgment motion is when you file a motion 17 like that, the other side is required to come 18 forward with whatever evidence they have. 19 I don't think they can say, "Well, we'll show 20 you it at trial." And he hasn't come forward with 21 that. So I do think the issue may be properly 22 before your Honor at this time. 23 However, if your Honor wants to rule on that, 24 on the motion, when we're ready to start trial, that 25 would be satisfactory.
21 1 THE COURT: Well, I do know that I indicated 2 that I will allow the person who will be the -- I 3 guess the forensic pathologist to testify that the 4 injuries were consistent with insect bites, if -- 5 if -- and if he can say beyond that they are 6 consistent with insect bites that occurred premortem 7 and during a period of consciousness, then I will 8 probably allow the jury to determine whether that is 9 intentional infliction of mental distress. 10 Again, I don't know exactly what -- I looked at 11 his testimony carefully. I know he's got slides he 12 looked at or something or another. I know there is 13 some dispute between you-all as to what it is he 14 says. But that is not for summary judgment. 15 MR. LIEBERMAN: Yes, I know. But what is -- I 16 think you are referring to Dr. Spitz's testimony. 17 THE COURT: Yes. 18 MR. LIEBERMAN: And he identified several, not 19 all of these, that Mr. Dandar was trying to allege 20 were cockroaches, he alleged -- he identified 21 several as probable insect bites. 22 And your Honor I think indicated the fact that 23 somebody may have been bitten by several insects is 24 hardly -- can hardly constitute the intentional 25 infliction of emotional distress on the part of the
22 1 Church religious -- 2 THE COURT: I don't know. It depends on 3 whether or not they are feeding on somebody. If his 4 opinion is, which I believe it was, that these were 5 feeding, that takes some time. 6 So I just don't think I'm going to revisit 7 this. I think we have to wait and see. I think 8 that is his opinion that this was a feeding. 9 MR. LIEBERMAN: All right. 10 THE COURT: I think that -- that an 11 entomologist, the entomologist I initially excluded, 12 will say the same, this is an excavation, this is a 13 feeding, that that could very well be intentional 14 infliction of mental distress. I'm not likely to 15 revisit that. Okay? I will read it again. And as 16 I said, something came in this morning that I had 17 not read, so I'll try to read that and let you-all 18 know. 19 MR. LIEBERMAN: All right. 20 THE COURT: But I think that leaves us at least 21 with one motion -- one or two motions in your what I 22 call the -- there are two boxes I have of motions 23 that I'm pulling out of. 24 MR. LIEBERMAN: Yeah. 25 THE COURT: Today's was one. The battery is
23 1 one. 2 MR. LIEBERMAN: Battery -- 3 THE COURT: There is one on waiver. 4 MR. LIEBERMAN: Yes. 5 THE COURT: Release and waiver. 6 MR. LIEBERMAN: Yes. 7 THE COURT: That is on -- 8 MR. LIEBERMAN: That is right. Mr. Hertzberg 9 is available to argue that. 10 MR. HERTZBERG: Good morning, your Honor. 11 THE COURT: Good morning. 12 MR. LIEBERMAN: I'm just thinking, if it's ten, 13 what time -- how late can we go? Maybe we can 14 finish everything today and don't have to go back 15 tomorrow. 16 THE COURT: I can go until 2:45. 17 MR. LIEBERMAN: I think -- because this motion, 18 the punitive damage motion which is the main one, 19 will be done, even if everybody takes an hour -- and 20 I don't think we will -- by noon. 21 THE COURT: Okay. The release and waiver, are 22 you ready to do that today? I didn't bring my 23 materials. Can everybody share -- mine are at home 24 because -- 25 MR. LIEBERMAN: I don't think we received --
24 1 MR. DANDAR: The release and waiver is very 2 short. That is the shortest motion of all. Yes, I 3 can do that today. 4 THE COURT: Do you have a response? Have you 5 shared it with them? 6 MR. DANDAR: Yes, I faxed it to Mr. Fugate on 7 Saturday. 8 MR. HERTZBERG: Your Honor, I haven't seen it. 9 THE COURT: Well, have Mr. Fugate fax it over 10 and look at it. It's real small and real short. 11 MR. HERTZBERG: Does counsel have a copy with 12 him? 13 THE COURT: Do you have an extra copy? 14 MR. DANDAR: Mmm -- 15 THE COURT: If you don't, give him your copy, 16 and why don't you make a copy for me, too. 17 MR. DANDAR: I'm handing a copy to -- 18 THE COURT: Because mine is at home. And 19 that -- make a copy of yours, in other words. 20 MR. HERTZBERG: We will do that. 21 THE COURT: With all of the attachments, if 22 there are attachments. And I think that is because 23 I would want to read it before -- 24 MR. LIEBERMAN: Right. 25 THE COURT: -- before I tell you whether or not
25 1 I'll hear you on it, I want to read it. If I won't 2 hear you on it, I'll just enter a very short order 3 to that effect. 4 MR. LIEBERMAN: Okay. 5 THE COURT: The battery -- 6 MR. LIEBERMAN: We'll submit. 7 THE COURT: -- you will submit on the papers? 8 MR. LIEBERMAN: Yes. 9 THE COURT: I know there is other stuff. But 10 that is the main stuff. 11 MR. LIEBERMAN: That is the main stuff. 12 THE COURT: Okay, let's see if we can get it 13 done today. 14 MR. LIEBERMAN: Okay. 15 THE COURT: We will now do the motion to strike 16 punitive damages. 17 MR. DANDAR: Judge, before we do that, real 18 quick, Mr. Rosen took it upon himself to cancel all 19 of the depositions I had scheduled and wanted to 20 schedule of the defendant's expert witnesses because 21 he believes I'm going to be disqualified and, 22 therefore, they don't want to waste their time in 23 having to go through all of the depositions. 24 Are you anywhere near making a ruling on the 25 disqualification motion?
26 1 THE COURT: No. 2 MR. DANDAR: All right. 3 THE COURT: When you say am I -- but I don't 4 think that is a basis to cancel your depositions. 5 MR. MOXON: That is not true. They have not 6 been canceled. There are depositions set for 7 January 10. There is one he wanted from Mr. Weil is 8 set, and I sent him a letter on that. I don't -- I 9 guess he didn't read his letters. 10 MR. DANDAR: Fortunately for me and for the 11 Court, I have a letter from Mr. Rosen, it's in my 12 office, saying the depositions are canceled. So I 13 will submit that to the Court. And then maybe with 14 your -- the statement you just made, Mr. Rosen will 15 rethink that and reschedule the depositions. We had 16 two scheduled for Friday -- 17 THE COURT: Tomorrow? 18 MR. DANDAR: -- before Christmas. They were 19 both canceled. 20 THE COURT: You know, nobody should ever assume 21 because I am good enough to tell both sides 22 inclinations -- I have told you-all inclinations and 23 I have absolutely ruled the other way many, many 24 times. Sometimes I gave you my best thought at the 25 moment, and then sometimes I go home and really look
27 1 at the law and read it real carefully and absolutely 2 decide I was wrong. 3 An order is not an order until the order is 4 entered. So any thought that I indicated some 5 inclination to disqualify Mr. Dandar because of an 6 appearance of impropriety was simply that. 7 Quite frankly, the case law that I have read 8 and the order I am preparing, my inclination at this 9 point is probably he will not be disqualified. But 10 I'm still not prepared to say that because I haven't 11 made up my mind. I mean, I'm reading cases, I'm 12 reading you-all's submissions. 13 I'm looking very carefully at the cases. And 14 the cases seem to talk about that only in the event 15 of a conflict of interest, an attorney, for example, 16 who leaves a law firm and goes to work for another 17 law firm, is there this -- this irrefutable 18 presumption that there is a telling of confidential 19 information and that, therefore, the playing field 20 is unlevel. That in all other cases the burden 21 would be on the party requesting disqualification to 22 show the prejudice. 23 As I go through those things that I would call 24 appearance of impropriety, I'm hard-pressed to find 25 prejudice.
28 1 I mean, whether Mr. Dandar put something in his 2 trust account or whether Mr. Dandar put something in 3 his -- in his general account is really -- I doubt 4 the Church has standing to raise that, quite 5 frankly, at least in this case. Perhaps in a case 6 where it has something to do with it. But it has 7 nothing to do with the wrongful death case. There 8 is no ability on the Church probably to even raise 9 it. 10 As to the money, the $500,000 check, the Second 11 District already said it is irrelevant to the 12 lawsuit. And whether or not -- you know, once I 13 determine -- if I determine there was no perjury, 14 then the question is, is the appearance of 15 impropriety such that that outweighs the absolute 16 right of a person to hire their lawyer of choice. 17 Case law seems to be quite clear that -- that 18 some showing of some unlevel playing field has to be 19 shown, you know. Again, until I'm ready to rule on 20 something, all I do is base my discussions that I 21 had with you-all on the best that I have got 22 available at the moment. 23 When I sit down to do an order, which I'm in 24 the process of doing -- as I told you-all, it's not 25 a pretty order, it's not pretty for Mr. Dandar, it's
29 1 not pretty for the Church of Scientology, and it is 2 certainly not pretty for Bob Minton. I -- I did 3 everything I could to warn you-all that that order 4 was not going to be pretty and ask you-all to -- to 5 do what needed to be done so that didn't have to be 6 done. Well, I'm doing it. And I'm on about Page 12 7 and it's not pretty. And it's going to get less 8 pretty. 9 But now that I'm being forced to study and 10 read, and read all of the law and read all of the 11 cases and really do the order, the order that I 12 would expect and hope to be correct and withstand 13 appeal, why, you know, I'm having to read these 14 cases with a little more subtlety. 15 So do not assume because I suggested what my 16 inclination was on any given day, that that is my 17 inclination or that is how my order will read. 18 For all anybody knows, I could determine that 19 Mr. Dandar committed perjury, or he didn't commit 20 perjury, or there was an appearance of impropriety, 21 or there wasn't an appearance of impropriety. I 22 could decide the Church committed extortion. 23 I mean, I haven't made these rulings yet. 24 These are all of the things in front of me. And now 25 I'm forced to go read all this stuff. And I'm
30 1 reading it. And as I read it, it just reinforces 2 what an ugly, ugly hearing that 35-day hearing was. 3 And as I said, that comes out just loud and clear in 4 my order. 5 So I'll get it done, and I'll get it done as 6 fast as I can. But because I plan for it to be 7 correct and I plan for it to be affirmed on appeal, 8 it's taking some time. 9 And may it interfere with this trial? It 10 might. But I'll get an order that I'm proud of, 11 since I'm being forced to do one. 12 And, by the way, that reminds me of something 13 that I wanted to suggest to you-all, so let me 14 have -- Mr. Dandar, Mr. Lirot, let me have two of 15 the church lawyers, I don't care which two, 16 Mr. Rosen, Mr. Lieberman. 17 (Discussion had off the record at the bench.) 18 THE COURT: Okay. Mr. Lieberman, it's your 19 motion and, therefore, I will give you the ability 20 to go first and last on this. 21 MR. LIEBERMAN: Thank you. 22 THE COURT: And I do want somebody to provide 23 me with a copy of that transcript of whatever was 24 heard in front of Judge Moody, including any order 25 he entered or anything he said.
31 1 MR. LIEBERMAN: I will. 2 THE COURT: Great. Go ahead. 3 MR. LIEBERMAN: So the issue before the Court 4 today is whether the First Amendment and Florida's 5 RFRA requires that the claim for punitive damages 6 against the Church must be stricken. 7 THE COURT: Could I ask you a question? You 8 know me. I always just blurt right in. 9 MR. LIEBERMAN: Yes. 10 THE COURT: I did not see any place in any of 11 the -- any of the submissions by either side where 12 somebody said a church -- RFRA does not preclude 13 punitive damages from being assessed against a 14 church, nor did I see any case that said RFRA does 15 preclude punitive damages from being assessed. In 16 other words, I saw cases about labor unions, and I 17 saw cases about a newspaper or magazine. 18 MR. LIEBERMAN: There is no case involving 19 RFRA. 20 THE COURT: Regarding a church and punitive 21 damages. 22 MR. LIEBERMAN: Right, that I'm aware of. 23 THE COURT: So this is sort of a case of first 24 impression? 25 MR. LIEBERMAN: Absolutely.
32 1 THE COURT: Okay. Go ahead. 2 MR. LIEBERMAN: RFRA represents the 3 determination of the Florida legislature to provide 4 the strictest constitutional scrutiny to actions 5 undertaken by the state, including its courts 6 through the judicial process which may impose a 7 burden on free exercise. 8 The statute makes clear that it does not matter 9 whether the state intended to impose a burden, or 10 whether it merely acted to impose a rule of general 11 applicability which has the effect of imposing a 12 burden, and it doesn't matter whether the burden is 13 direct or indirect. 14 The statute is also careful to define what it 15 means by the free exercise of religion in a broad 16 and inclusive manner, so as to make it unnecessary 17 for the Court to engage in a difficult inquiry into 18 the content of religious belief and practice. Thus, 19 free exercise is defined as any act or failure to 20 act that is substantially motivated by religious 21 belief or practice. 22 There can be no question that the imposition of 23 punitive damages on the Church, therefore, by order 24 and judgment of the state court, imposes a direct 25 and substantial burden upon the free exercise of
33 1 religion of the church, and especially of the 2 membership and congregation of the Church to support 3 the Church by their attendance, their participation 4 and their contributions, all of which are 5 substantially motivated by their religious belief. 6 Depletion of church resources to pay a 7 state-imposed civil judgment as punishment, a 8 state-imposed civil punishment interferes with the 9 ability to pursue and expand its religious program, 10 diverts contribution of time, money and effort given 11 by parishioners away from the intended religious 12 purpose for which it was given and, therefore, 13 punishes those who have nothing to do with the 14 underlying acts giving rise to the lawsuit. 15 Similar considerations underlay the Supreme 16 Court's decision in the two cases your Honor just 17 referred to. The first is the International 18 Brotherhood of Electrical Workers versus Foust, in 19 which the court held the punitive damages could not 20 be awarded against the labor union for unfair 21 labor -- unfair labor practice charges precisely 22 because impact of such awards would be felt 23 principally by union membership and would burden the 24 exercise of the association and left the bargaining 25 rights guaranteed by national labor relations.
34 1 Two years later, the court prohibited punitive 2 damages against municipalities in civil rights 3 actions, again emphasizing impact on the 4 non-wrongdoers, that is, those whose municipal 5 services might be cut or whose taxes might be 6 raised. 7 And in an analogous case, the Florida Supreme 8 Court applied similar logic in holding that punitive 9 damages may not be awarded against an estate for the 10 tortious acts of a decedent, stating, quote, 11 "Because general deterrence logically depends on the 12 perception of punishment suffered by the wrongdoing, 13 when that punishment is diffused and unjustly 14 inflicted upon the innocent through a doctrine 15 analogous to a tainter, deterrent effect is 16 frustrated." 17 And the Court -- the Florida Supreme Court 18 concludes, "To punish the innocent ignores the basic 19 philosophy of justice. Clearly the rights and 20 interests of churches and their members to carry out 21 their religious activities is guaranteed by RFRA and 22 the First Amendment. It is entitled to at least 23 similar if not heightened consideration and 24 deference as that accorded to labor unions, 25 taxpayers and beneficiary of a tort-feasor."
35 1 THE COURT: Can you tell me -- I will tell you, 2 I have not read either of the cases involving the 3 labor union -- I say I haven't read them, I haven't 4 read the case. I read what everybody said about 5 them but I haven't read the case. 6 On the labor unions and the one on the -- I 7 guess it was a magazine, apparently dealt with the 8 First Amendment. 9 MR. LIEBERMAN: The Falwell -- Hustler Magazine 10 versus Falwell? 11 THE COURT: I'm not sure. But there were two 12 cases that suggested there was something akin to a 13 church membership. One was the First Amendment 14 right of speech or right of publication or something 15 like that where apparently punitive damages was not 16 permitted. And the other was a labor union case. 17 MR. LIEBERMAN: Right. 18 THE COURT: I can see, I suppose, a difference 19 perhaps with taxpayers -- taxpayers, they sort of 20 don't have any choice at all in the matter. I mean, 21 you know, I have got to pay taxes, I can't -- 22 MR. LIEBERMAN: Right. 23 THE COURT: -- move and avoid them. I have to 24 pay taxes no matter where I am. 25 MR. LIEBERMAN: Yes.
36 1 THE COURT: I suppose anybody can belong to the 2 labor union or not, people can belong to a church or 3 not, there is some freedom of choice there. 4 However, I do understand the -- the -- I would 5 like to read -- I will, obviously, when I'm 6 provided, get those cases and read them. But what 7 was the basis of it? I mean, what did it say why he 8 couldn't assess punitive damages against a labor 9 union? Were they talking about where a labor union 10 itself was somehow or another responsible and 11 otherwise the jury had awarded punitive damages or 12 something like that? 13 MR. LIEBERMAN: It was an unfair labor act -- 14 labor practices charges, which do -- which do get 15 tried. And the court held that the basis for the 16 ruling was -- the reasoning is what I said, it is 17 one thing to award compensatory damages to somebody 18 who has been injured by an unfair labor practice 19 because there is this interest in compensation. 20 But when it comes to punitive damages, who you 21 are really punishing is not the person or labor 22 union official who may have committed the unfair 23 labor practice, but the membership who associate, 24 contribute their dues, who contribute their time and 25 effort in the labor union, and this interferes with
37 1 the associational rights protected by the NRLA and 2 also the First Amendment. And so the court said 3 we're not going to permit it in that context. 4 So I think it's fairly analogous to the 5 situation that we have here where we have a statute, 6 RFRA, which protects religious associational rights 7 and rights that the membership of a church exercise 8 through their church, and if you impose a punitive 9 damage judgment against the Church, it's really 10 ultimately not against the particular individual who 11 may have committed the wrongful act, but against the 12 membership, the congregation, the people who are 13 coming together. So that is the analogy that we 14 have in that case. 15 A similar consideration applies in a taxpayer 16 case and in the -- in the estate case that I 17 mentioned, the consideration being if you're talking 18 about state-imposed punishment, you need to be 19 fairly precise about who you are punishing and who 20 you are not. 21 And as I'll get to in a few minutes, when you 22 come to activity and association that is protected 23 by the First Amendment or by the First Amendment 24 buttressed by RFRA, there is a real body of doctrine 25 holding that the state must act with precisional
38 1 regulation, it must focus in on precisely what and 2 who it's trying to punish, rather than use a broad 3 brush stroke, broad stroke approach, which is not 4 directed at precisely those who engage in the 5 activity and, in fact, therefore punishes people 6 engaging in protected acts. 7 THE COURT: Did -- you remember those two cases 8 that I talked about in one of my orders that had 9 just come out of the Florida Supreme Court -- 10 MR. LIEBERMAN: Yes. 11 THE COURT: Doe versus Evans, and -- 12 MR. LIEBERMAN: Malicki versus Doe. And Doe 13 versus Evans. 14 THE COURT: Did either one of those mention 15 punitive damages? 16 MR. LIEBERMAN: No. 17 THE COURT: Those were both dismissed, wasn't 18 that it? 19 MR. LIEBERMAN: That's right. 20 THE COURT: The case was filed, and a motion to 21 dismiss was filed on the basis of the First 22 Amendment. And it was granted? 23 MR. LIEBERMAN: That's right. 24 THE COURT: Or denied, whatever it was -- 25 MR. LIEBERMAN: That's right. That is how they
39 1 came up. 2 THE COURT: So there was no -- in that case, 3 there was not even so much as a motion to allow 4 punitive damages. 5 MR. LIEBERMAN: That's right. 6 THE COURT: It was real early on. 7 MR. LIEBERMAN: That's right. 8 THE COURT: Do you think the fact that, let's 9 say, for lack of a better word, the Florida Supreme 10 Court, at least in my opinion, extended the ability 11 of the Church to be sued for negligent acts of an 12 employee or priest or whatever -- 13 MR. LIEBERMAN: Yes? 14 THE COURT: -- and that -- and that obviously 15 caused a lot of opinions out of the court -- 16 MR. LIEBERMAN: Yes. 17 THE COURT: -- and a lot of disagreement -- 18 MR. LIEBERMAN: Yes. 19 THE COURT: -- and a lot of -- we all kind of 20 guess a little bit, I guess, who was the majority 21 and what does it say and how far are they going to 22 extend it. 23 MR. LIEBERMAN: Yes. 24 THE COURT: But do you think that the fact that 25 they had such a time with even allowing a church to
40 1 be sued for a priest -- 2 MR. LIEBERMAN: Yes. 3 THE COURT: -- who commits a sexual battery on 4 a parishioner, which is certainly far removed from 5 any sort of religious activity, might cause -- 6 obviously somebody is going to move to amend to 7 allow punitive damages because that would be -- 8 MR. LIEBERMAN: Right. 9 THE COURT: -- a punitive damage case. 10 So I assume we're going to be seeing a motion 11 to amend, and some judge will either allow it or 12 not, and some jury is going to either award it or 13 not, and it's going to get up there. 14 MR. LIEBERMAN: Precisely. 15 THE COURT: Do you think that they might say, 16 "Well, you know, we're going to allow the Church to 17 be sued and we are going to allow the offender to 18 be -- to be held up to punitive damages," granted we 19 all know unless -- we shouldn't be naive -- a priest 20 probably can't pay big punitive damages, and 21 certainly a Sea Org member in the Church of 22 Scientology probably can't pay big punitive damages, 23 I mean, we know that. 24 That is why -- that is why naturally they would 25 want to go after the Catholic church or the Church
41 1 of Scientology, because they would, more than 2 likely, have the funds to pay that. 3 MR. LIEBERMAN: Right. 4 THE COURT: But do you suppose that the Supreme 5 Court or the court just might say, "We just can't go 6 that far, we're going to go this far, this is as far 7 as we're willing to go, no matter how offensive the 8 conduct"? 9 MR. LIEBERMAN: Right. Precisely, your Honor. 10 And I think we actually have an example of a court 11 wrestling with that and coming to that distinction 12 that you're talking about, and it's precisely the 13 case your Honor cited. 14 Your order, the Lundman case from Minnesota, in 15 which that court was profoundly troubled by the case 16 before it, you read the opinion and you see how they 17 are wrestling with this issue of even imposing 18 negligence liability against the Church in that 19 case. And that case involved a child. And yet they 20 come to the conclusion that in that case they'll 21 permit the negligence liability because it's a 22 child, but they say, "But we're not going to 23 permit --" and they reverse the judgment for 24 punitive damages on a variety of grounds, but one of 25 the grounds is that it is unconstitutional, that it
42 1 violates the First Amendment. 2 So we have an example of a court making that 3 distinction. The distinction makes a lot of sense, 4 doctrine, philosophically, however you want to look 5 at it, because there is a difference, a big 6 difference, a big difference in the state interest 7 between providing compensation to somebody who has 8 been injured and providing a windfall in the form of 9 a private punitive damage award. 10 And you have both the Supreme Court of the 11 United States and the Supreme Court of Florida have 12 explicitly recognized in cases cited in our brief, 13 Gertz with the Supreme Court of the United States 14 case and -- give me a second, I'll give you the name 15 of the Florida case, St. Regis Paper that is the 16 Florida Supreme Court case, 428 So.2d, 243. Both 17 recognize that punitive damage awards to private 18 plaintiffs are a windfall. 19 And then going further -- and this is really 20 important, in my view, quite respectfully -- the 21 Supreme Court and Florida First Circuit -- First 22 District Court Of Appeal in the From case have 23 explicitly stated -- and think about this in terms 24 of the RFRA test, "The states have no compelling 25 interest in securing for plaintiffs gratuitous
43 1 awards of money damages far in excess of any actual 2 injury," referring to punitive damages. "Thus, the 3 point is whatever the strength of the state's 4 interest in punishing or deterring reprehensible 5 conduct, that interest is not compelling to the 6 extent that it is pursued through the medium of 7 private punitive damage awards which merely provide 8 a windfall rather than compensation." 9 The assumption is it has -- has to be -- the 10 person injured has already been compensated by the 11 compensatory damage award. We're assuming here the 12 compensatory damage claim goes forward. So that the 13 application of RFRA, with already recognized 14 statements by the Supreme Court of the United States 15 and the Florida courts, the punitive damages is not 16 a compelling state interest, it's an interest -- 17 THE COURT: How about the -- what about the 18 deterrent effect supposedly -- it is punishment. 19 MR. LIEBERMAN: Yes. 20 THE COURT: And also deterrent. 21 MR. LIEBERMAN: Of course. 22 THE COURT: Deter others and deter the 23 individual. 24 MR. LIEBERMAN: That's right. Now, of course 25 the state has an interest in not only providing
44 1 compensation to people who have been injured, but it 2 also has an interest in providing some form of 3 deterrence to conduct which it deems to be 4 egregious. Under a regime of RFRA under the First 5 Amendment what you are talking about as a church and 6 what you are talking about as religious conduct 7 substantially motivated by religious belief or 8 practice, the less restrictive alternatives there 9 are -- there are an array of them available to the 10 state. 11 The first and most is criminal prosecution of 12 the individuals. This is a precisely tailored 13 method of dealing with it. It is the method that 14 worked throughout our jurisprudence. 15 And what you have in that situation is you have 16 the legislature precisely defining the conduct that 17 you are punishing and precisely defining the 18 punishment. 19 Compare that to the situation with punitive 20 damages where you have a definition of the conduct 21 which is being punished, which is so vague that the 22 Florida courts have all said that it's like 23 guesswork. 24 Let me give you -- the Supreme Court of Florida 25 in the Roy case, American Cyanamid versus Roy, 1986,
45 1 498 So.2d 859 at 861, recognizes, "Punitive damages 2 are, in a sense, explicitly based on juror emotion." 3 And then in another case -- this is -- this is 4 the Fourth District, in the Mobil Oil versus Patrick 5 case, recognizes the verbal formulas used to 6 describe that conduct, that is the conduct subject 7 to punitive damages, appear abstract and virtually 8 meaningless. 9 So what you have with punitive damages is you 10 are saying to the jury, "Well, you define what 11 conduct you think should be punished and you define 12 what the punishment is, and, yeah, we'll take a look 13 at it afterwards subject to limited review." 14 But is that the kind of precision of regulation 15 that is required when you're talking about protected 16 or presumptively protected activity? So the less 17 restrictive means not only is less restrictive in 18 the terms that it doesn't punish the non-wrongdoer 19 members of the congregation, but it also meets the 20 less restrictive means test which incorporates the 21 precision of regulation standard the Supreme Court 22 uses in the cases that led up to the strict 23 scrutiny, Button versus NAACP in the Supreme Court. 24 Where you are regulating activity that is 25 presumptively protected by the First Amendment, the
46 1 state must proceed with precision of regulation, 2 must delineate clearly what conduct is prohibited 3 and what the consequences of it are, lest the kind 4 of broad-base blunderbuss chill protected activity, 5 chill free speech, chill free exercise of religious, 6 because as all of the courts recognize, when you get 7 to a jury on punitive damages, the jury, often 8 subject to emotions, often subject to -- to 9 prejudices against minority groups and religions and 10 speakers, et cetera, the jury is left to define what 11 conduct it's going to punish and who it's going to 12 punish and how much it's going to punish. And this 13 can't meet a precision of regulation standard. 14 What other forms of less restrictive means are 15 available? Well, if you -- you could impose -- the 16 state could continue to impose punitive damages 17 against the individuals which would not affect the 18 Church members. 19 Now, there are two caveats to that, of course. 20 One is even the individuals might have a 21 constitutional claim based upon the point I just 22 raised, lack of precision in the regulation. But 23 we're here just arguing for the church, and that is 24 clearly a less restrictive means in terms of its 25 impact upon the innocent wrongdoers. But that is
47 1 also another alternative. 2 Now, but those aren't the only alternatives. 3 Those may be the only alternatives that exist today. 4 But the legislature, of course, is free to adopt 5 less restrictive alternatives that might be more 6 precise, more directed, to the perceived evil, more 7 directed at the particular individuals, and so -- 8 THE COURT: Let me ask you a question. How do 9 we, if we -- 10 MR. LIEBERMAN: Yes? 11 THE COURT: -- we -- let's say forget me for 12 the moment. 13 MR. LIEBERMAN: Okay. 14 THE COURT: If the Florida Supreme Court 15 decides punitive damages cannot be assessed against 16 a church, period, it would violate First Amendment, 17 RFRA, there are less restrictive means, et cetera, 18 what have you, this kind of rash -- for lack of 19 better word -- of these lawsuits now that apparently 20 there have been some priests who have been involved 21 in some pretty improper behavior with kids -- 22 MR. LIEBERMAN: That's right. 23 THE COURT: -- and it's come to light now that, 24 let's say, that the bishops or cardinals or whoever 25 they are were aware of this and were sort of shoving
48 1 it under the rug and were really -- they were 2 subjecting more children to these -- these errant 3 priests. Now, if, in fact -- if, in fact, an 4 iron-clad law that says you cannot ever, ever assess 5 punitive damages against the Church, the only person 6 that really can pay them -- how do -- how do we 7 tell -- I'm not using your church now. 8 MR. LIEBERMAN: Yes, I understand. 9 THE COURT: I'm using any church, how do we 10 tell the Catholic church, for example, "You are 11 going to pay a little more attention and you are 12 going to get rid of -- well, either get rid of or 13 don't let them being around kids if they have this 14 problem," because we didn't -- we just can't -- in 15 other words, there seems to be a benefit of punitive 16 damages, it seems it gets people's attention because 17 it's a fairly high award. Awarding punitive damages 18 against the priest is somewhat meaningless. 19 MR. LIEBERMAN: Right. 20 THE COURT: Awarding punitive damages against a 21 Catholic church in a large sum, it would seem it 22 would get their attention and they would not allow 23 that priest to do that or something. 24 In other words, how do you adopt a rule that 25 says under no circumstances can you ever impose
49 1 punitive damages against a church and make sure that 2 the church behaves? In other words, the church, 3 when I say behaves, the church looks out for these 4 folks that perhaps ought not be around kids, and 5 that is the exact specific example I'm using because 6 that is the example that is out there, that is where 7 all of the cases are right now, that is probably the 8 case in which this issue might be decided because 9 it's probably out there right now somewhere in some 10 court. 11 MR. LIEBERMAN: Right. Let me take -- sort of 12 think out loud with you. 13 THE COURT: Yes, that is kind of what I was 14 doing. 15 MR. LIEBERMAN: In analyzing this problem, I 16 think a court looking at this problem under the 17 strict scrutiny standard, under a RFRA standard, 18 can't look at just what solutions are out there now. 19 It has to look at what array of solutions may 20 be available to the church as less restrictive means 21 than the particular solution that is at issue. 22 THE COURT: And that is what I'm looking for. 23 MR. LIEBERMAN: Yes, okay. 24 THE COURT: Something that is less restrictive 25 but would, nonetheless, tell, in that instance, the
50 1 Catholic church, "You're going to have to supervise 2 these folks that have this aberrant behavior where 3 they're willing -- wanting to abuse the children." 4 MR. LIEBERMAN: Right. First of all, and 5 you -- give me a moment to run through this first. 6 THE COURT: Okay. 7 MR. LIEBERMAN: Any one, I'm sure, can be torn 8 apart. 9 But, first of all, the compensatory damages in 10 that case will not be insignificant. 11 Secondly, the state already has available to it 12 the full array of criminal prosecutorial tools 13 against the individuals, not just -- and I -- I 14 would not be -- not being a criminal lawyer, be a 15 little hesitant but I would -- I would venture to 16 say that the tools available to a state prosecutor 17 are not limited just to the individuals who 18 committed the acts. I would think there is 19 potential criminal liability for people who know 20 about the acts and try to cover them up or move 21 these people around into a position where they might 22 commit similar acts. So I think that -- and that 23 would be precise, that would be directed at the 24 individuals, and if that were pursued, it sure would 25 act as a deterrent.
51 1 Next, the state could adopt statutes, 2 regulations -- it may already have them -- 3 specifically requiring a certain standard of conduct 4 in these situations by people who are in charge or 5 supervisors, et cetera, where there is any conduct, 6 any past history of this conduct, that they have to 7 take certain steps or they are subject to criminal 8 liability. 9 (A discussion was held off the record.) 10 MR. LIEBERMAN: Finally -- 11 THE COURT: Well, let me ask you this. Is 12 there a difference -- for example, let's look at 13 this case for the moment. 14 MR. LIEBERMAN: Yes. 15 THE COURT: And let's compare it, if we can. 16 MR. LIEBERMAN: Yes, I was going to say, you 17 don't necessarily have to go that far in this case. 18 I don't mean to interrupt you, but I think that is 19 where you were -- 20 THE COURT: Yes, what I was going to suggest, 21 is there a difference -- should there be a 22 difference in, let's say, a -- a first offense, and 23 multiple offenses? 24 In other words, in the criminal law there is a 25 difference oftentimes that if somebody commits a
52 1 first crime, a second crime, a third crime, some 2 crimes go from misdemeanors to felonies because it's 3 the third time the crime was committed. 4 MR. LIEBERMAN: That's right. 5 THE COURT: Is there something that could be 6 done? I'm asking you because I do not know the 7 answer to this, for example, where, let's say, that 8 I'm right and the Church is wrong and that this case 9 should be allowed to go forward, this is not 10 protected behavior, this is not religious behavior, 11 and this is, therefore, the failure to obtain 12 medical treatment for a disabled adult and, 13 therefore, it's not protected and it should go 14 forward. Let's say that I turn out to be right and 15 you turn out to be wrong. Okay? 16 Now, I would assume if a jury finds that and 17 awards compensatory damages to the estate, that is a 18 message. 19 MR. LIEBERMAN: That's right. 20 THE COURT: It's certainly a message if that is 21 affirmed on appeal to the Church that says, "Well, 22 you have to be careful if you're going to perform an 23 introspection rundown and -- and somebody gets -- 24 needs medical attention, you better have somebody 25 there --"
53 1 MR. LIEBERMAN: Right. 2 THE COURT: "-- who can take a look at this 3 person --" 4 MR. LIEBERMAN: Right. 5 THE COURT: "-- regularly, or you better get 6 them someplace where they can." 7 They would send, I guess -- 8 MR. LIEBERMAN: A message not only to the 9 church but to the members. 10 THE COURT: Right. Now, let's say, for 11 example, that -- let's -- okay, so let's say I say 12 you can't -- they can't get punitive damages because 13 it is offensive to the First Amendment, RFRA. 14 MR. LIEBERMAN: Yes? 15 THE COURT: And let's say compensatory damages 16 are awarded. And let's say that the Church doesn't 17 get the message, and there is another one of these, 18 or another one or -- three or four more, and people 19 are just -- please, I'm not being facetious because 20 what I'm trying to get to here is see whether there 21 is a difference in something that happens for the 22 first time, which I perceive this to be -- 23 MR. LIEBERMAN: Yes. 24 THE COURT: -- by the way, and something that 25 is occurring over and over, such as perhaps in the
54 1 Catholic church where -- 2 MR. LIEBERMAN: Right. 3 THE COURT: -- where Cardinal Law, for example, 4 is coming under great attack because he was aware of 5 these fellows and apparently was allowing this to 6 occur. 7 So would there be a difference, for example, in 8 a first time where a church, if they were assessed 9 compensatory damages, if that were affirmed on 10 appeal and, therefore, they had to pay them, they 11 realize then if it happened again they would have 12 to, number one, pay them again, is there something 13 that could be done? Is there a statute that could 14 be drawn? 15 MR. LIEBERMAN: Absolutely. 16 THE COURT: Is that under the same set of 17 circumstances that the Church doesn't get the 18 message, that there comes a time when the Church 19 could be hit with punitive damages? 20 MR. LIEBERMAN: Absolutely. I think that does 21 change -- change the calculus. Whether I would 22 agree that that is -- that it is appropriate or not, 23 it's certainly a closer case and it is certainly 24 something that the Church -- that the state could 25 defend more easily, especially, as you said, there
55 1 are clear decisions saying such and such happened 2 and such and such can't happen and it shouldn't 3 happen again. 4 And such -- such a pronouncement, of course, 5 would be something that then would be known by the 6 organic membership of the Church, as well, or at 7 least presumptively. 8 THE COURT: Let me ask you another question 9 here. I wrote down here that there are some less 10 restrictive means available. 11 MR. LIEBERMAN: Yes. 12 THE COURT: One, I wrote down, "Compensatory 13 damages will not be insignificant in these cases." 14 I wrote down, "Criminal charges against --" I was 15 talking about the Catholic church so "against the 16 priest, certainly." Then I wrote down, "State could 17 adopt statute specifically regulating --" and I 18 didn't finish that. So regulating -- 19 MR. LIEBERMAN: Regulating supervision of 20 people in this kind of position. So that making 21 clear as a matter of law, as a matter of explicit 22 statutory law, with standards that are known in 23 advance, if a supervisor of somebody in any kind of 24 position with contact with children, whether it is 25 religious or non-religious, it would have to be
56 1 written in a neutral way, has experience of this and 2 knows about it and, nevertheless, tries to cover it 3 up. And the statute would have to be more precise 4 than I am, obviously, tries to cover it up, tries to 5 transfer the person to a position where he would 6 have such contact without people knowing it, this 7 would result in X, Y, Z forms of punishment, civil, 8 criminal, et cetera, directed at the individuals, 9 preferably because, again, you wouldn't want to be 10 punishing the membership for something they didn't 11 know about, and then this could be clearly applied 12 in this kind of situation. It would send a clear 13 directive to the people involved as to what they 14 have to do, what the law was, and what the 15 consequences would be. And the consequences could 16 be quite severe. 17 THE COURT: What about a statute, if the state 18 could adopt a statute that simply said that repeated 19 behavior of the same defendant -- I'm not talking 20 about criminal defendant, I'm talking about civil -- 21 MR. LIEBERMAN: Yes? 22 THE COURT: -- repeated behavior of same or 23 similar conduct by a church three or more -- I guess 24 my main concern here is I'm having trouble figuring 25 out if the Church doesn't get the message and if the
57 1 conduct just continues because the compensatory 2 damages just -- you know, punitive damages normally 3 hit the pocketbook more severely, which is what it's 4 designed to do, punish and deter. 5 MR. LIEBERMAN: Right. 6 THE COURT: So could they write a statute that 7 says, "We are not going to allow punitive damages 8 against a church"? 9 However, if, in fact, the same or similar 10 behavior occurs on three or more occasions -- 11 MR. LIEBERMAN: That would be much more -- 12 THE COURT: -- punitive damages can, in fact, 13 be assessed against the church if all of the other 14 conditions of the general tort law regarding 15 punitive damages are complied with, in other 16 words -- 17 MR. LIEBERMAN: Yes? 18 THE COURT: -- you would exempt a church from 19 punitive damages the first time, maybe even the 20 second time, but three and four and five, you say, 21 "Look, we're going to put you in the same category 22 as any other corporation, and if the corporation -- 23 not a church -- can be assessed punitive damages, 24 and this is the third or more time for a church, you 25 can be assessed punitive damages. Could they write
58 1 such -- I mean, obviously anything that would be 2 written could offend the First Amendment, could be 3 challenged, but -- 4 MR. LIEBERMAN: It would be much more 5 defensible, much more defensible, because it would 6 be premised on the proposition that it's -- it's 7 focusing on those situations where there has been a 8 failure to respond to -- to past situations and, 9 therefore, the compelling state interest becomes 10 more compelling, and the less restrictive means 11 haven't worked, so it really is precisely the kind 12 of -- of approach that legislatures should follow in 13 this area of protective freedoms to make sure that 14 less restrictive means are used, at least until they 15 fail. 16 THE COURT: So you could envision something 17 that could allow the state to allow a church -- any 18 church now -- perhaps to have punitive damages 19 assessed in the event of repeated -- not just 20 similar but repeated same acts that would be at 21 least less restrictive. 22 MR. LIEBERMAN: It would be a very different 23 case. 24 THE COURT: Any time, first time -- 25 MR. LIEBERMAN: Exactly. Exactly.
59 1 Also, I would emphasize that in this case, as 2 we have noted, punitive damages are especially 3 improper because the underlying conduct is 4 substantially motivated by religious belief or 5 doctrine. 6 Thus, the distinction can be drawn, if 7 necessary, between cases such as this and the 8 Lundman case on the one hand, and cases of sexual 9 abuse or misconduct on the other, whereas the 10 Supreme Court of Florida emphasized in Evans versus 11 Doe there was no claim that the conduct -- 12 underlying conduct was religiously motivated or 13 based. 14 Such a distinction in fact was emphasized by 15 Lundman. Lundman said -- Lundman, of course, was 16 not an abuse case, it was a failure to provide 17 medical care. And Lundman said, "We're not 18 necessarily holding that this is true for all cases 19 involving all churches, but in the case where the 20 underlying conduct was religiously motivated such as 21 this, we think it would be unconstitutional to 22 impose punitive damages." 23 So the court could -- could go only that far 24 and leave for another day for those cases that come 25 back down the question of what to do in the
60 1 situation of sexual abuse and misconduct. 2 THE COURT: Clearly unrelated to any -- 3 MR. LIEBERMAN: That's right. 4 THE COURT: I mean, like even you said, those 5 folks are going to be real hard-pressed to suggest 6 that has some religious motivation -- 7 MR. LIEBERMAN: That's right. 8 THE COURT: -- at all, I mean, with a straight 9 face. 10 MR. LIEBERMAN: That's right. 11 THE COURT: They might say it, but -- 12 MR. LIEBERMAN: No, the argument they still 13 have is the argument, which I think is a very 14 powerful argument, that the people that are going to 15 be punished are not the people that committed the 16 acts. But where you also -- it's much stronger in a 17 case like this where you don't have a situation 18 where the acts of sexual misconduct are completely 19 out there -- 20 THE COURT: You still have protection of the 21 punitive damages statute, the Church does, if they 22 were totally faultless, in other words, to get past 23 the individual to any corporation -- 24 MR. LIEBERMAN: Yes. 25 THE COURT: -- there has to be more than just,
61 1 well, if the individual can be hit up with punitive 2 damages, so can the corporation. 3 There is something that -- I don't even 4 remember what it is because it changed over the 5 years and I have been dealing with something that 6 exists back in 1995, which I guess is the date of 7 death -- 8 MR. LIEBERMAN: Yes. 9 THE COURT: -- and that is not what we deal 10 with today. But there is something that has to be 11 shown to sort of drag the corporation into the 12 punitive damages arena at all. 13 MR. LIEBERMAN: Right. 14 THE COURT: So you are saying I could find in 15 this case, based on the specific facts of this case, 16 that there was a religious motivation, even though I 17 have not found it to be such that would preclude 18 compensatory damages? 19 MR. LIEBERMAN: That's right. 20 THE COURT: That there is enough religious 21 motivation -- 22 MR. LIEBERMAN: Right. 23 THE COURT: -- to not allow punitive damages, 24 as opposed to the sexual battery -- 25 MR. LIEBERMAN: Right.
62 1 THE COURT: -- where there just simply would 2 not be any discussion of any religious motivation. 3 MR. LIEBERMAN: And that is -- I suggest that 4 is pretty much what the court did in Lundman. What 5 the court did in Lundman was it said this presents a 6 situation where we think there is a compelling 7 interest in providing compensation, but when it 8 comes to the punishing the Church for these 9 teachings and these practices, which are religiously 10 motivated, the First Amendment, even without RFRA, 11 in that case, prohibits imposition of the punitive 12 damages. 13 THE COURT: I think you started about ten 14 after, so it is five till. You might want to 15 reserve fifteen minutes. And if you do, you may. 16 MR. LIEBERMAN: I would, your Honor. 17 THE COURT: All right. 18 MR. LIEBERMAN: We do have here Mr. Foster who 19 is sitting to my right who represents -- 20 THE COURT: Hello. 21 MR. LIEBERMAN: -- the intervenors who are 22 members, and he wanted to say a few words. But -- 23 THE COURT: As long as you understand it is 24 taking up your time. 25 MR. LIEBERMAN: I understand.
63 1 MR. FOSTER: Judge, I will keep my remarks 2 brief. 3 I appear with my co-counsel, Ron Cacciatore, on 4 behalf of the intervenors, who are those who knew 5 Lisa McPherson best, and who are also those who will 6 suffer the consequences of a punitive damage award 7 because they're the parishioners of the Church of 8 Scientology who believe deeply in their faith and 9 whose donations support the Church of Scientology. 10 The court has raised the most provocative 11 questions about how best to handle this question of 12 awarding damages against a church. Our position, of 13 course, is that espoused by Mr. Lieberman in that we 14 believe the First Amendment and RFRA both would bar 15 an award of punitive damages against the Church. 16 And primarily our reason for saying that, 17 number one, the effects of punitive damages -- I 18 guess there are four-fold effects. One is to 19 punish. Another is to deter conduct. The third is 20 to hold someone out as an example for the community 21 of a form of conduct that will not be tolerated. 22 And the last is retribution. And these are really 23 not tied in any meaningful way to compensatory 24 damages. 25 In a setting where you are dealing with an
64 1 organization that is not protected by the First 2 Amendment, there should be a different set of rules 3 involved. 4 But when you're talking about a church, such as 5 the Church of Scientology, or any church where the 6 deterrent effect is essentially a prohibitive one 7 because it violates the First Amendment, it 8 essentially deters individuals from practicing their 9 faith more than it would deter the Church from 10 conduct that is found to be the kind that would 11 warrant punitive damages. 12 Basically, the Church is supported entirely by 13 the donations of people who believe that the 14 services provided by that church and the ideals of 15 the church should be propagated. What will happen 16 is immediately that will have a stifling effect upon 17 the offering of those services by a church, it 18 certainly will hold the members of that church up to 19 acrimony, it will discourage them from obtaining 20 those services and the church from giving them, and 21 it will impact every other service they provide, 22 regardless of how worthwhile and charitable those 23 services may be. 24 We have a group of Scientologists out here who 25 will be the unfortunate victims of a punitive damage
65 1 award in very much the same way the court in the 2 City of Miami versus Fisher discussed. 3 One of the problems with an award of punitive 4 damages against a municipality, the court said 5 there, is that the very people who it was intended 6 to protect, the punitive damages was intended to 7 protect, will be punished by it because they will be 8 paying. In that case, it was the taxpayers. In 9 this case, it will be the parishioners. The taxing 10 power of a municipality is virtually unlimited, and 11 that will certainly drive up the punitive damages 12 award. 13 In point of fact, the donations -- members of 14 this church would be -- could be looked at closely 15 akin to that kind of taxing power, certainly 16 voluntary donations. 17 But the bottom line is they want to propagate 18 their faith, they want to provide for the teachings 19 of L. Ron Hubbard to be disseminated worldwide 20 because they believe it is a proactive way of curing 21 the ills of the world and teaching individuals to be 22 more human to each other. And not only that, they 23 believe it is a way of preserving their spiritual 24 integrity that will allow them to reach a state of 25 spiritual purity and live beyond this current
66 1 temporal existence. So they are faced with a 2 deterring of those very beliefs. 3 And last of all, if you ask about how do you 4 deal with a church that has apparently not gotten 5 the message, we have to assume that a church is not 6 Enron. A church has a certain integrity. Certainly 7 the believers of that church are a conscience. 8 You ask, "How can you protect against that 9 conduct repeating?" Well, we have so many examples 10 of efforts to achieve, if you will, a miracle by 11 virtue of a practice of religious faith. 12 Recently Mother Teresa was made a saint because 13 a woman in India who had a stomach tumor had a 14 photograph of Mother Teresa placed on her abdomen. 15 THE COURT: She hasn't been made a saint yet, 16 had she? 17 MR. FOSTER: No. 18 THE COURT: That was one miracle. They need to 19 find another one. 20 MR. FOSTER: She's being considered. 21 THE COURT: I thought she was pretty saintly 22 before. 23 MR. FOSTER: A group of Catholic doctors could 24 find no explanation for the shrinking of that tumor. 25 But we don't know how many of those individuals may
67 1 have had the photo of Mother Teresa laid on their 2 stomach who died of tumors. 3 In the Christian Science religion there are 4 practitioners who fail to achieve the goals that 5 they sought to achieve through the goals of 6 Christian Science practice. 7 Introspection rundown is a religious practice. 8 It is, as the Court aptly pointed out, entirely 9 different from taking a child into the rectory and 10 sexually molesting that child. There is no way that 11 is going to be considered a religious practice. 12 Introspection rundown is. Could it fail? Yes. 13 Could it -- could praying fail to achieve the goal 14 that prayer seeks? Yes. Could an attempt to bring 15 about a miracle fail? Yes. 16 The answer to the question of when should 17 punitive damages be awarded against a church in the 18 view of the -- of the intervenors and all of the 19 members of the Church of Scientology, it is 20 certainly not in this instance, and perhaps never 21 because it will always fall upon the innocent. 22 You -- you gave an example of, let's say, 23 repeated obvious misconduct, repeated instances of 24 child molestation, where a priest is moved from 25 parish to parish. What could a legislature do to
68 1 prevent that? Well, there are some concepts that 2 have been used in the civil law such as treble 3 damages. There is such a thing as civil RICO. 4 In our view, assuming a worst-case fact 5 scenario that would warrant an award of punitive 6 damages, an award of punitive damages, to achieve 7 the goal that kind of award should achieve, should 8 be directed to punishing those who are guilty of the 9 active conduct, not those that harbor religious 10 beliefs that are entirely pure in their religion and 11 who have not participated in any of the conduct in 12 question, and yet whose ability to -- to have 13 services that will further their spiritual life will 14 be limited, if not extinguished entirely, by a 15 punitive damage judgment. Those are not the ones 16 that should be punished. 17 I'm arguing many of the same cases in the 18 memorandum we filed that Mr. Lieberman has discussed 19 in a more scholarly way in his brief. 20 I will say this, that the corollary, if you 21 will, we have the City of Miami versus Fisher, 22 Florida enacted a statute, 768.20, that waives 23 sovereign immunity for negligence claims. One of 24 the things it specifically did was provide if you 25 want punitive damages you get them against the
69 1 person who actually committed the wrongful act but 2 not against the municipality or the governmental 3 entity, and for the very reason that the wrong 4 people will be harmed. And that is precisely what 5 will take place here. 6 The individuals in this audience and the 7 intervenors who we represent will find that their 8 ability to have an essential article of faith is 9 deterred, is limited, and that they will be held up, 10 as they have in the past, to public ridicule. 11 No one would ever think that -- of doing that 12 to a member of the Catholic faith when a priest 13 somewhere molested a child. But it is different 14 with Scientologists because they don't have the 15 universal acceptance that the Catholic church does. 16 THE COURT: You are not really going to sit 17 here and suggest that we're going to have one set of 18 rules for the Church of Scientology and another set 19 of rules for the Catholic church? 20 MR. FOSTER: I am not. Absolutely not. What 21 I'm saying is that the parishioners, because they 22 are the ones who will end up paying the punitive 23 damages for something that occurred in a religious 24 process, should not be subjected to that kind of 25 deterring effect which we consider --
70 1 THE COURT: Whether they are a parishioner of 2 the Church of Scientology or whether they are a 3 parishioner of the Catholic church? 4 MR. FOSTER: Correct. In any church -- and I 5 think the court posed the question absolutely 6 appropriately -- how do you deal with the conduct in 7 question? You deal with it the same way you would 8 in the criminal law. The individuals who commit the 9 conduct are the real wrongdoers. 10 If -- if -- if a bishop in the Catholic church 11 has concealed this kind of information within the 12 church, number one, he's concealing information 13 about a practice that is not religious. Child 14 molestation, no one would ever argue that. That 15 bishop may well be subject to punitive damage. But 16 should every parishioner who contributed to the 17 entire functioning of that church be paying for that 18 man's wrongdoing when they did nothing wrong? That 19 is the real question. And that is why the punitive 20 damages would be inappropriate as against the Church 21 itself. The Church is the religious community. 22 THE COURT: I'm going to tell you there is five 23 minutes left for your side. And if you continue, 24 you'll take it all up. 25 MR. FOSTER: I'll not take any more up because
71 1 Mr. Lieberman can state things much more eloquently 2 than I do. 3 THE COURT: Thank you. We'll go ahead and take 4 a break and we'll come back and hear from the 5 plaintiff. 6 MR. LIEBERMAN: Thank you, your Honor. 7 THE COURT: You are welcome. We'll be in 8 recess -- what does that say, 11 o'clock? 9 MR. LIEBERMAN: Yes. 10 THE COURT: 11:15, 11:20. Say 11:20. 11 (WHEREUPON, a recess was taken.) 12 ______________________________________ 13 THE COURT: Okay. I made that call that I 14 indicated to you all at the bench I was going to 15 make over the break, so ... 16 MR. LIEBERMAN: Thank you. 17 THE COURT: Mr. Dandar. 18 MR. DANDAR: Yes, thank you. 19 THE COURT: Did you have an extra copy of your 20 original response, or do you think I'll need it? 21 MR. DANDAR: I don't have one. But I'm going 22 to get you that one, with the transcript from Judge 23 Moody, but -- 24 THE COURT: Okay. 25 MR. DANDAR: -- later on today. Before I
72 1 approach the podium, I would just like to quote from 2 the Lundman case which was misquoted by 3 Mr. Lieberman. 4 In Lundman, which is a Minnesota case, it says, 5 "We do not grant churches and religious bodies a 6 categorical exemption from liability from punitive 7 damages. But under these facts, the risk of 8 intruding through the mechanism of punitive damages 9 upon the forbidden field of religious freedom is 10 simply too great." 11 And under those facts of that case, it involved 12 the death of a child from diabetes because the 13 Christian Science parents believed in faith healing 14 through prayer only. 15 And in that case -- they are totally different 16 from this case -- all of the parties stipulated that 17 everybody was acting in good faith because they were 18 relying on prayer. There is no allegations of 19 intentional conduct. 20 And that is why the court said because the 21 Church, the corporate body, is stipulated to have 22 acted in good faith, the punitive damage statute in 23 Minnesota -- which is like Florida's -- would not 24 come into play because there was no gross negligence 25 at the very bottom of the spectrum. I'm not even
73 1 getting to the intentional conduct, but there wasn't 2 even gross negligence under the statute for 3 punitives in Minnesota so, therefore, there could 4 never be punitive damages. 5 And in that case they awarded punitive damages 6 against the church corporate body of $9 million. 7 That was reversed because everyone stipulated they 8 acted in good faith. Well, we certainly can 9 understand that. 10 But the important factor of Lundman is there is 11 no bar to punitive damage liability against an 12 organization just because it is a church, a 13 religious organization. 14 But this court has even more appropriate law 15 which it must follow, and that is the law as 16 espoused by the Florida Supreme Court in Malicki 17 versus Doe, 2002. And I cite this and I bring it to 18 the Court's attention, the majority -- there was 19 only one dissenter, Chief Justice Harding, I believe 20 -- no, he concurred in the result only. There was 21 only one dissenter who espoused the views of the 22 Church of Scientology in this case that it would be, 23 you know, an unreasonable burden on the Church to 24 have it be held liable for conduct that the Church 25 thought violates the First Amendment by requiring a
74 1 church to comport with a duty, a standard of care, 2 to be followed by clerics in the performance of 3 their ecclesiastical duties. That is the dissent. 4 The majority, all of the other justices, said, "That 5 is not a defense because we're holding you up to the 6 reasonable cleric standard you must follow in the 7 state of Florida. Otherwise, you're going to be 8 liable for damages in tort." 9 And why RFRA doesn't apply in this case -- 10 THE COURT: But they weren't talking about 11 punitive damages in that case, were they? 12 MR. DANDAR: No, they did not mention punitives 13 except in Footnote 2 where the court announces that 14 the broad pronouncement, for the very first time in 15 the state of Florida, "We join the majority of 16 jurisdictions in finding liability against a church 17 is not barred by the First Amendment," and they 18 cited the Minnesota case of Mrozcka, M-R-O-Z-C-K-A, 19 which did -- and they cited it, and they 20 specifically said, which did hold a church liable 21 for punitive damages. 22 THE COURT: It says this in Footnote 2? 23 MR. DANDAR: Yes, they cite a bunch of cases. 24 And that is the only case they cite, by the way. 25 But they spelled out punitive damage liability
75 1 against a church. 2 So the Church of Scientology argues, "But this 3 is going to have a financial impact on our innocent 4 parishioners." That is the same argument raised in 5 Malicki v. Doe, and it is the concurring opinion and 6 result only by Chief Justice Wells. He said that 7 the imposing civil liability against a church for 8 damages in tort would have an impact -- let me quote 9 him -- "My concern is that the religious 10 organizations in this state are going to be severely 11 financially burdened by having to defend claims for 12 undefined and unlimited tortious conduct which claim 13 to be grounded upon the majority opinion." That is 14 at Page 366. 15 And Justice Quince said, in her concurring 16 opinion -- I'm going to put it in my own words, "So 17 what?" And the reason why I say, "So what?" is that 18 the majority, again which are all of the justices 19 save one, the opinion is that tort actions, as they 20 are neutral tort actions of general applicability, 21 then there is no balancing test, there is no 22 compelling interest test. 23 And that compelling interest test is found, of 24 course, only in RFRA. And it doesn't apply. They 25 didn't mention RFRA, but your honor pulled a brief
76 1 from that either Malicki, or Doe versus Evans, where 2 it was briefed on RFRA and Doe v. Evans or Malicki 3 don't even bother to mention RFRA. 4 THE COURT: But don't you think, Mr. Dandar, 5 that if you look at those opinions and how long they 6 were and how everybody wanted to get in the act, 7 there were lots of opinions, and they were talking 8 about really whether a church could be sued at all 9 for -- for -- they were talking -- now, mind you, 10 this case dealt with whether or not the church could 11 be sued for a priest or -- I don't remember if it 12 was a Catholic church or what -- 13 MR. DANDAR: Doe versus Evans is the priest and 14 corporate church. 15 THE COURT: Right. So it was a priest. And it 16 was a Catholic church? 17 MR. DANDAR: Yes. 18 THE COURT: So it was a question of whether or 19 not a Catholic church could be sued for damages for 20 a priest committing sexual battery on a parishioner. 21 Right? 22 MR. DANDAR: Correct. 23 THE COURT: Look, you think that would be kind 24 of -- you know, you think that would be kind of 25 obvious.
77 1 But it wasn't obvious, it was very difficult, 2 and they really -- they really struggled with it, 3 and they really came out and said, "Yes, a church 4 can be sued here," which might seem fairly obvious 5 to you and me, but it wasn't obvious, and it wasn't 6 obvious because a church is a church. And, 7 consequently, you really can't point to those cases 8 that said, yeah, you can bring an action against the 9 priest and the church if the church can be brought 10 into it, such as he was acting within the scope of 11 his authority. That is going to be a toughy, it 12 would seem like to me, in those cases. But if you 13 can bring the church in, there is no First Amendment 14 prohibition for suing the church. That doesn't tell 15 us, though there is no First Amendment prohibition 16 for a church being held up for punitive damages. 17 MR. DANDAR: It does when they cite the 18 punitive damage case from Minnesota in Footnote 2. 19 They had the opportunity right then and there -- 20 THE COURT: You know, you are kidding me and 21 yourself. You can't take a footnote out of -- if it 22 isn't even raised. If it isn't even raised it would 23 be dicta beyond any dicta -- you know, I talk about 24 a lot of dicta. Justice Pariente has more dicta in 25 her opinion than you can shake a stick at.
78 1 However, just referring to a footnote, it can't 2 be -- you know, it can't be binding, saying, "Well, 3 there you have it, there they have -- they spoke on 4 punitive damages and the church can be sued for 5 punitive damages." 6 I mean, that was a long opinion just to allow 7 the church to be sued for the sexual battery, for 8 heaven's sake, of its priests. 9 MR. DANDAR: You know, I find it interesting, 10 though, Judge, that no one, including the Church of 11 Scientology, could find one case in the United 12 States which permits a church to be sued for a 13 common law tort but excludes liability for punitive 14 damages. There is not one case out there that says 15 that, number one, because once you say, as Malicki 16 says, according to Malicki, that just because you 17 are a church, we are not going to hold you up on a 18 pedestal and exempt you from liability, that means 19 that all common law liability in tort is available 20 for the victim against a church, there is no 21 exemptions. There is a punitive damage statute in 22 Florida, there is no exemptions for churches. 23 There is the Malicki decision that says if it's 24 a neutral tort claim, you are liable just like 25 General Motors is liable, it doesn't matter. We
79 1 don't care about the financial burden on your 2 members. We don't care about the financial burden 3 on your corporate structure. 4 The Boston church already said it is going to 5 file bankruptcy up there because a church should not 6 be held, in a different class, as Justice Quince 7 says in the Malicki case. If we were to do that, 8 then we would be violating the establishment clause 9 of the First Amendment by putting a church in a 10 special category. 11 And the Church of Scientology in this case 12 makes the same argument in the opposite fashion, 13 "You have to put us in a special category. 14 Otherwise, you do violate the establishment clause." 15 Well, it's just the opposite. You do violate 16 the establishment clause if you exempt them -- any 17 church -- from all damages available in a common law 18 tort cause from punitive damages. 19 THE COURT: Well, is there a difference in 20 saying that we're not going to exempt the Church 21 because a person that has been harmed ought to be 22 compensated and, therefore, when we're balancing the 23 First Amendment versus the right of a citizen to be 24 compensated we're going to say the Church stands in 25 the same boat as any other corporation or any other
80 1 entity? 2 MR. DANDAR: That's right. 3 THE COURT: But the argument being made by the 4 Church is quite different when you get into punitive 5 damages. That is a windfall, there is no question 6 about it, it's a windfall. It's not something in 7 this case that these beneficiaries are entitled to. 8 It's a windfall and it's meant to punish and it's 9 meant to deter. 10 MR. DANDAR: Well, if punitive damages are a 11 windfall in this case, they are a windfall in any 12 case. 13 THE COURT: Right. 14 MR. DANDAR: So when Ford Motors makes a Pinto 15 that blows up on impact and they get him with 16 punitive damages, the family is already being 17 compensated, or the burn victim still alive is being 18 compensated for pain and suffering and punitive 19 damages. There would also be a windfall, but the 20 punitive damages is permitted because -- to deter 21 the same type of conduct in the future and to 22 punish. 23 THE COURT: There is no First Amendment there. 24 MR. DANDAR: Not in the -- of course -- not in 25 the Pinto example there, unless perhaps you get into
81 1 a BMW Supreme Court case where the punitives are so 2 high it violates due process. 3 THE COURT: Let me ask you this. Why do you 4 have the distinction being made -- I haven't read 5 these cases yet -- these distinctions in labor 6 unions and, more particularly, there is a case that 7 was cited in somebody's brief, I think it was either 8 one of the amicus briefs or the main brief, dealing 9 with a newspaper or magazine, something, which I 10 have to assume dealt with the First Amendment that 11 punitive damages were precluded. 12 So are there not cases out there where, because 13 there are First Amendment rights involved, where 14 they do distinguish between compensatory damages and 15 punitive damages? 16 MR. DANDAR: No. I take issue with that. 17 THE COURT: Okay. 18 MR. DANDAR: I briefed those cases because they 19 briefed those cases. And let me just go through 20 them. 21 THE COURT: All right. 22 MR. DANDAR: The union case which is 23 International Brotherhood of Electrical Workers 24 versus Foust, F-O-U-S-T, 1979 case, dealt with the 25 Railway Labor Act.
82 1 And the problem that the Supreme Court saw in 2 that case, which is case specific to that statute 3 only, is that Congress didn't put in there what type 4 of damages were available if the act was violated. 5 So the Supreme Court said, "We're looking at the 6 underlying purpose of the statute. We can't find 7 what the remedies are supposed to be." So they 8 struck punitive damages. But -- that was in '79. 9 But the District Court in New York City in 1997 10 went through the history of the Railway Act after 11 that case, and it cited a Connecticut case in '95 12 which did permit punitive damages under the same 13 act. 14 So there was an evolution of body of case law 15 ever since the Foust decision allowing for and 16 disallowing, back and forth, all of the way, 17 throughout the years, of punitive damages because 18 that specific act didn't provide the remedy. So 19 that has nothing to do with what we're talking 20 about. 21 Then they cite the case of City of New Port 22 versus Fact Concerts, Incorporated from the Supreme 23 Court, 1981, talking about punitive damages under 24 the civil rights laws. Again, specifically under 25 the civil rights law.
83 1 And there the court struck punitive damages 2 because the common law did not provide punitive 3 damages against a municipality. A history of the 4 common law against a municipality. It had nothing 5 to do with constitutional rights. 6 They also cite a case involving -- I think it 7 might have been Time Magazine, but it's a magazine 8 case. And it didn't say the First Amendment 9 precludes punitive damages against a magazine for 10 libel. I mean, that would be an earth-shattering 11 decision because magazines get hit with punitive 12 damages all of the time for libel. 13 What that case said is there is no evidence of 14 conduct which comes to the level of punitive 15 damages. Just like the Lundman case, the level of 16 egregiousness is not there. So, therefore, punitive 17 damages will not be permitted. 18 It has nothing to do with First Amendment bars 19 punitive damages. There is not one case. I'm sure 20 they would have found it, you know. Their whole 21 slew of attorneys would have found that one case, 22 including the amicus. They don't cite one case that 23 says because of the First Amendment, we can't seek 24 punitive damages. 25 All of the cases that provide liability, in
84 1 particular Malicki, which we have to follow, is that 2 you're not going to be held on a pedestal because 3 you are a church. You'll be held the same as any 4 business in the state of Florida. You have 5 committed a tort. You are liable in tort damages, 6 period. 7 They could have exempted the church in that 8 decision. They could have said -- 9 THE COURT: We don't know they won't, do we? 10 MR. DANDAR: I think they won't because they 11 said we'll not put a church on a pedestal. They 12 made the argument about financial burden. 13 THE COURT: They have not heard this argument 14 yet. In other words, the argument they heard is 15 whether or not a church could be held liable for 16 compensatory damages. If that was the suit that was 17 brought at the outset, you wouldn't even have had a 18 punitive damage claim in it, it would just have been 19 for compensatory damages. And somebody either 20 struck it and said, "No, you can't sue the church 21 for that because," on, and on, and on. And the 22 Supreme Court, in somewhat of a landmark case, I 23 think those two -- 24 MR. DANDAR: They are. 25 THE COURT: -- landmark cases --
85 1 MR. DANDAR: Yes. 2 THE COURT: -- said, "Yes, the church can be 3 sued like anybody else." 4 The Supreme Court has not dealt with, well, can 5 the church now be sued for punitive damages? 6 And the answer may suggest, just as you 7 suggest, sure, if they can be sued for compensatory 8 damages, they can be sued for punitive damages. 9 But they may also say, "Well, yes, there is 10 quite a difference here, you know. And, after all, 11 we do have to -- we have got some parishioners here 12 who are involved that really are the ones that will 13 suffer." 14 And they said, "There is a First Amendment. 15 After all, this is a church. And we did have a 16 landmark decision on this. Do we want to extend it 17 this far?" 18 And they could very easily say no. They could 19 easily say yes. We don't know what the answer is 20 going to be. 21 MR. DANDAR: Well, I don't see the Florida 22 Supreme Court reversing its rationale in Malicki. 23 The reason why they went through this extremely 24 lengthy decision is because the lower appellate 25 court said there is an exemption from liability, you
86 1 can't sue -- 2 THE COURT: Because they are a church. 3 MR. DANDAR: -- the church. 4 THE COURT: Right. 5 MR. DANDAR: Right. 6 THE COURT: For compensatory damages. 7 MR. DANDAR: For any damages. 8 THE COURT: These poor people that -- that 9 suffered damages because a priest raped them have no 10 right to even compensatory damage for their mental 11 pain and suffering or their physical damages or 12 anything because, after all, this is a church. 13 And the Supreme Court said, "Well, no." Right? 14 MR. DANDAR: That's right. 15 THE COURT: That is quite different than 16 saying, "Now that we've said that, we're going to 17 let this same church get hit up for, you know, mega 18 punitive damages." 19 I'm not saying they won't uphold them. I don't 20 know what they are going to do. But we do have a 21 reason for being here. 22 MR. DANDAR: The fact they mention the case 23 from Minnesota which did uphold punitive damages, 24 the fact we cite other cases in here from Florida 25 which upheld -- which did not reverse a punitive
87 1 damage award, that one case I cited, Masters v. 2 Johnson I believe is the right name, it reversed on 3 other grounds, but there was a $4 million punitive 4 damage award in that case and they didn't even talk 5 about it. 6 THE COURT: Well, they don't, so you don't know 7 if it was raised. I have got that case. 8 MR. DANDAR: But they mentioned there was a 9 punitive damage award. 10 THE COURT: They did, and they sent it back for 11 a new trial. 12 MR. DANDAR: If Chief Justice Wells wrote an 13 opinion that was concurring but he wanted to express 14 his concern about financial burdens on the church, 15 that would have been a really great time in dicta to 16 talk about punitive damages. And he didn't do it. 17 And the majority rejected that financial -- 18 THE COURT: It wasn't an issue. There wasn't 19 even a motion filed to claim punitive damages. 20 MR. DANDAR: It wasn't at that stage yet. 21 THE COURT: Right. 22 MR. DANDAR: Right. 23 THE COURT: So you wouldn't expect anybody to 24 go off on something that wasn't even in the lawsuit 25 yet.
88 1 I mean, first of all, a motion has got to be 2 filed. An evidentiary hearing may have to be held. 3 The judge is going to have to let it in. And 4 then -- and then, I suppose normally you don't get a 5 motion to strike -- I agree with you on the 6 procedural aspect of this, normally once a motion is 7 granted, you don't have another motion to strike it 8 unless -- excuse me -- you have a big change in 9 facts. 10 But -- so then you go to trial and you see 11 whether or not a jury awards punitive damages. And 12 if they do, then they raise this issue, punitive 13 damages should have never been allowed in the first 14 place, they never should have been awarded. Then 15 the Supreme Court will deal with it. 16 MR. DANDAR: Okay, but if they do, if for some 17 reason they say, "Well, punitive damages, we've got 18 to look at it differently, and now it's against the 19 church and now we're going to give them an 20 exemption, violation of the establishment clause," 21 their whole rationale in Malicki goes down the drain 22 when they said, "We are not going to consider a 23 church to be any different than a business when it 24 comes to tort claims." 25 And, again, that is what we have to concentrate
89 1 on is the whole case in McPherson are neutral tort 2 claims. We're not attacking their belief system. 3 We're not saying -- this is not a clergy malpractice 4 case. 5 Even Malicki says you can come in and the court 6 and jury can examine the claimed tenets of any 7 church and decipher what the motives were for this 8 to happen, this tort claim, to happen. You can't 9 come in and judge the truth and falsity and that is 10 the end of the First Amendment concerns, as well as 11 RFRA. 12 The Malicki court goes on and on to say a 13 neutral tort claim of general applicability, there 14 is no compelling interest test whatsoever. There is 15 no balancing test. There is nothing. 16 And they cite -- I believe they cite to the 17 case of the South Florida Supreme Court of the 18 United States, the religious organization down 19 there, Lukumi Babalu Aye -- I probably mispronounced 20 it. 21 But there they passed an ordinance that 22 specifically targeted animal sacrifice because they 23 were participating in animal sacrifices. And they 24 said, "You can't target us, you can't do that, that 25 is not -- it doesn't apply to anybody else except
90 1 our religious organization." 2 And the Supreme Court of the United States 3 says, "You're right, they can kill and slaughter 4 animals. They do it every day across the world, 5 people eat animal meat. But you are slaughtering an 6 animal because you are sacrificing it, that is 7 specific to you. That violates the establishment 8 clause, the First Amendment." 9 And I believe the Malicki case cited that, 10 saying that a neutral tort claim doesn't anywhere 11 get near the balancing test that that particular 12 Miami ordinance caused because it targeted a 13 religious organization. 14 As you said before -- 15 THE COURT: Where is the Florida case -- or 16 United -- you may have had it in your brief and I 17 have forgotten it, but where is a case in Florida or 18 a United States Supreme Court case where they have 19 upheld punitive damages against a church? 20 MR. DANDAR: There isn't one. That is why I 21 said, there isn't one that upheld it and there isn't 22 one that said no. 23 THE COURT: Well, so you were suggesting that 24 they, with all their lawyers, could have found one, 25 if there was one, that didn't allow it.
91 1 So I suppose they are going to say, well, you 2 could have found one if there was. So really -- 3 MR. DANDAR: Not U.S. Supreme Court except the 4 Wollersheim case. 5 THE COURT: That is a California case. 6 MR. DANDAR: But they appealed that all of the 7 way up, and cert was denied. 8 I know you can't put any weight on it, but 9 Wollersheim cited a case called Bear, B-E-A-R, with 10 approval, and so did the Supreme Court of Florida in 11 Malicki. 12 So I argue that the logical extension is if 13 Wollersheim approved the rationale in Bear which 14 upheld -- 15 THE COURT: What is Bear? 16 MR. DANDAR: Bear is a case. 17 THE COURT: B-E-A-R? 18 MR. DANDAR: Yes. And I'll get the cite for 19 you in a second here. 20 THE COURT: So you are suggesting the only 21 church that has ever been held liable for punitive 22 damages is the Church of Scientology? 23 MR. DANDAR: That I could find. 24 THE COURT: Okay. And tell me what the 25 Wollersheim case was about again?
92 1 MR. DANDAR: The Wollersheim case was about 2 intentional emotional infliction of distress. He 3 wanted to leave, he alleges. The jury found he 4 wanted to leave. He didn't leave. He was engaged 5 in auditing, which is their religious practice. 6 And the California appellate court said the 7 religious practice was undertaken as a result of 8 coercion. There is no First Amendment privileges or 9 protections at all if there is coercion involved. 10 And they went on to cite -- 11 THE COURT: So they said he wasn't involved in 12 a First -- nothing was protected by the First 13 Amendment? 14 MR. DANDAR: No. No. They all stipulated -- I 15 believe it was a stipulation or finding of fact, 16 that he was involved in auditing, a religious 17 service, which is what they claim here. Of course, 18 they recognize Lisa never got to that point of 19 auditing. But Wollersheim was involved in auditing. 20 So they claim, "We have the First Amendment 21 privilege. We have protection because this is our 22 religious service. You are violating the First 23 Amendment." 24 And the court said it was performed under 25 coercion, and coercion eliminates your First
93 1 Amendment protections, period. 2 I cite extensively from the Wollersheim case 3 because it does uphold -- the jury awarded 4 $32 million in punitive damages, the appellate court 5 reduced that to $2 million, and -- 6 THE COURT: Was that just a general remitter? 7 MR. DANDAR: Yes. 8 The Court, on Page 19 of my latest reply to the 9 amicus brief, the Court said that: "The fact that 10 the church was willing to use physical coercion on 11 this occasion to compel Wollersheim's continued 12 participation in auditing added yet another element 13 to the course of environment under which he took 14 part in the auditing process. Imposing liability in 15 the instant case, we in no way or degree prevent or 16 inhibit Scientology from continuing the free 17 exercise of their religious practice of auditing. 18 Returning to the words of the Supreme Court, at 19 most, it potentially closes one questionable avenue 20 for coercing certain members to remain in the Church 21 and to continue its core practices such as 22 auditing." And they are citing the California 23 Supreme Court. 24 They also had a case in California called 25 Mortho (phonetic) --
94 1 THE COURT: Wasn't that a case -- I can't 2 remember, but wasn't Wollersheim a case where all 3 sorts of inappropriate things -- I just can't 4 remember, weren't there some allegations that this 5 guy was -- was -- was a psychotic or he was 6 incompetent or he was something or another, and they 7 were selling him stuff he couldn't possibly benefit 8 from, they sold him just thousands and thousands of 9 dollars' worth of stuff that he -- because of his 10 condition, his mental condition, he could not have 11 done; they sold him all kinds of professional 12 E-meters that were well beyond his ability to even 13 use because he wasn't at that stage, and just 14 because he had a lot of money he was being sold a 15 real bill of goods by whoever was doing that out 16 there? Wasn't that the case? 17 MR. DANDAR: I don't think so. 18 THE COURT: That must be some other case. 19 MR. DANDAR: Not that I remember. What I quote 20 from on the Wollersheim case is that the coercive 21 auditing and fair game, they ruined his business, 22 they ruined his family relationships, they cited to 23 cases about shunning from other religions. And they 24 said that, "The coercive effect of the fair game 25 policy inflicted on Mr. Wollersheim," which is after
95 1 they declared fair game was canceled, but they found 2 fair game, they said there was absolutely no 3 protection under the U.S. Constitution or the 4 California constitution for that. 5 But there is the case upholding punitive 6 damages against the Church of Scientology. Since 7 they have not cited one case that says no, then if 8 the Court feels bound by that decision -- 9 THE COURT: Well, I don't. That is the same 10 thing -- they tried to get me to buy off on some -- 11 that I was bound by something Judge Kovachevich did. 12 I don't think I am. And I don't think I'm bound by 13 what California did. I am bound by something 14 Florida does, and I am -- 15 MR. DANDAR: Sure. 16 THE COURT: -- bound by something the U.S. -- 17 MR. DANDAR: In Malicki, once again, they cite 18 with approval Bear, B-E-A-R, versus Reformed 19 Mennonite Church, 341 Atlantic 2d 105, a case from 20 Pennsylvania, 1975, where the Pennsylvania Supreme 21 Court denied immunity from civil damages for 22 shunning since the practice -- religious practice of 23 shunning resulted in the collapse of the member's 24 family and business. 25 What they're saying, and what the Malicki court
96 1 is saying, if you commit a tort, even though you 2 call it a religious practice, if it results in tort 3 damages such as destroying the member's family and 4 business, those are tort results, then you're going 5 to be liable in tort. 6 THE COURT: Punitive damages involved? 7 MR. DANDAR: Let me see. I don't know. 8 THE COURT: Because that is clearly what 9 Malicki said. Clearly Malicki said if it's a 10 neutral tort application and, of course, the real 11 question is are they going to extend that and say, 12 "Well, once you get to that, then you just don't 13 bother to make any distinction between a corporation 14 and a church." If punitive damages are awardable, 15 they are awardable. 16 MR. DANDAR: I can't answer the question on 17 Bear. 18 But what I can tell you is the Wollersheim 19 court cited Bear, also, with approval, in upholding 20 punitive damages. So I'll have to go and take 21 another look at Bear and see if punitives were 22 involved. 23 But since we have Malicki citing Bear with 24 approval, we have Wollersheim citing Bear with 25 approval, the logical extension is the Supreme Court
97 1 would cite Wollersheim with approval which upheld 2 punitive damages against the Church of Scientology 3 because they are using, again, the same rationale: 4 You can't hold a church up on a pedestal, you are 5 down here with everybody else. Whether they claim 6 to have a religious practice or not, it's the same 7 tort, neutral tort, then you get the same damages. 8 THE COURT: Is there a difference here, based 9 on the different -- for example, let's say that the 10 jury in this case does not buy the intentional 11 infliction of mental distress and they don't buy 12 wrongful death, but they do buy that there was a 13 negligent -- negligent survival claim. 14 MR. DANDAR: Right. 15 THE COURT: Now we are into a negligence claim. 16 I don't remember if you alleged intentional there. 17 MR. DANDAR: I did intentional, culpable and 18 gross. 19 THE COURT: Do we then ask, does it make a 20 difference? Do we ask the jury, for example, to 21 tell us whether or not the act -- assuming it ever 22 gets to the jury, because there is a distinction 23 between a person and a corporation, whether it's the 24 church or whoever it is, do we ask them to tell us 25 whether the act was intentionally done versus
98 1 culpably negligently done versus grossly done? 2 MR. DANDAR: Yes. We ask for all three, and 3 they check off which one -- 4 THE COURT: Is there a difference as far as the 5 First Amendment in punitive damages? There really 6 isn't a difference as to punitive damages except for 7 perhaps the amount and whether or not there is a 8 limitation. That is why we might ask that. But is 9 there a difference as far as the First Amendment? 10 MR. DANDAR: No, not under First Amendment 11 there is no difference. 12 Under due process there is a difference because 13 of the BMW case. Under Florida Statutes on 14 punitives there is a cap of three times unless it's 15 intentional. If it's intentional, there is no cap. 16 THE COURT: So you want to know the answer as 17 to whether or not there is a cap, not because in one 18 instance the Church might be liable and in another 19 instance it might be prohibited by RFRA, First 20 Amendment. 21 In your mind, your argument, if I understand it 22 correctly, is once the Florida Supreme Court makes a 23 decision that if it's a neutral tort law, that then 24 you apply tort application and it doesn't really 25 matter. If punitive damages apply, they apply.
99 1 MR. DANDAR: Right. 2 THE COURT: And the Church is not treated any 3 differently from IBM? 4 MR. DANDAR: Right. That is my argument. 5 THE COURT: Your argument is there is no reason 6 for me not to just extend this to punitive damages 7 unless there is a case out there that says you 8 shouldn't? 9 MR. DANDAR: Correct. And there isn't one. 10 THE COURT: And there isn't one? 11 MR. DANDAR: Correct. 12 THE COURT: But you can't find one that says 13 after being -- after this being argued, that it's 14 okay, either? There just isn't an answer? 15 MR. DANDAR: There is an answer in the 16 Wollersheim because they argued heavily about the 17 First Amendment in the Wollersheim case against all 18 damages, and there was punitive damages in that 19 case. 20 THE COURT: I remember the facts of Wollersheim 21 as being fairly egregious. I don't remember -- I 22 thought I knew what they were, but obviously you 23 don't think I do. 24 MR. DANDAR: He's still alive, so -- and he's 25 still functioning, and -- whatever he does. But, of
100 1 course, it may have been egregious, but he's still 2 alive. 3 In this case here they claim that everything 4 they were doing with Lisa McPherson and everything 5 they was doing was part of religious practice, yet 6 we find nothing in the writings of the introspection 7 rundown that said they are allowed to do what they 8 did to Lisa McPherson during that practice. 9 THE COURT: Well, we don't want to go there. 10 That is for another day. 11 MR. DANDAR: All right. 12 THE COURT: But that is your argument in a 13 nutshell, isn't it? 14 MR. DANDAR: My argument -- 15 THE COURT: That you read Malicki or Malicki, 16 however you say that, whichever it is -- 17 MR. DANDAR: Malicki. 18 THE COURT: -- and once you see the law that 19 they are applying, a natural extension of that is 20 you don't make a distinction in punitive damages, 21 either? 22 MR. DANDAR: Correct. 23 THE COURT: Okay. 24 MR. DANDAR: Correct. I still believe if the 25 Supreme Court of Florida wanted to, since they talk
101 1 about financial burden, they could have talked about 2 punitive damages, it would have been dicta perhaps. 3 I haven't seen the briefs. 4 Right, it never got to punitive damages at that 5 stage because of the motion to dismiss. 6 THE COURT: I think it's a fair reading of what 7 Justice Wells was saying -- Chief Justice -- he was 8 Chief Justice at the time -- is that if you get 9 involved with sexual battery of parishioners, 10 especially children, the compensatory damages are 11 likely to be severe -- I mean, they are liable to be 12 very high. 13 Damages in the Lisa McPherson case, in Count 1 14 at least, are limited by statute. 15 MR. DANDAR: Right. 16 THE COURT: So that -- we know what the maximum 17 damages can be in Count 1 simply because we have 18 your expert who talks about maximum damages. We -- 19 MR. DANDAR: Economic damages. 20 THE COURT: Economic damages. 21 MR. DANDAR: Which is all that is permitted. 22 THE COURT: Which is all that is appropriate. 23 MR. DANDAR: Right. 24 THE COURT: What we don't know is what kind of 25 awards the jury might give to somebody who has been
102 1 raped by a priest, of all people, and -- and now is 2 suffering perhaps severe emotional disturbance 3 because they put their trust in a priest and they 4 were sexually assaulted. 5 But, I mean, just a normal case of sexual 6 battery, if you can find a defendant with a deep 7 pocket, brings big damages. 8 MR. DANDAR: Correct. 9 THE COURT: Big damages. Big compensatory 10 damages. And imagine -- add onto that what must go 11 on in somebody's mind when it has been somebody that 12 they trusted, like a parent or like a priest or 13 something like that. 14 So I suspect we can assume that the Chief 15 Justice was talking about just compensatory -- I 16 mean, we can't assume he's talking about punitive 17 damages, because compensatory damages in a sexual 18 battery case could be very large. Right? 19 MR. DANDAR: Right. But I think, again, it's 20 the same legal principal that is being applied, is 21 that is it wrong to impose a huge compensatory 22 damage against a church, or is it okay? 23 THE COURT: They said no, it wasn't wrong. 24 MR. DANDAR: It wasn't wrong. 25 THE COURT: It wasn't wrong.
103 1 MR. DANDAR: It wasn't wrong. So if you call 2 it compensatory or punitive, on amounts it doesn't 3 matter. 4 THE COURT: Well, but you see what they are 5 arguing -- I know you heard what they are arguing. 6 There is a difference, no matter what you think, 7 there is a certain balancing that goes on in the 8 law. And so there is a distinction in balancing the 9 right of a parishioner -- not parishioner, but the 10 right of somebody who has been harmed by a church 11 from recovery from that church, just like they can 12 recover from IBM. 13 Why should there be any difference? You 14 balance the right of the person against the First 15 Amendment. You think, well, everybody is here. But 16 the difference in punitive damages is this is not 17 restoring the person who was harmed to -- you know, 18 to where they are whole, so to speak. 19 Punitive damages is there for other things. 20 It's a deterrent really. I look at it as a 21 deterrent or punishment, whatever you want to call 22 it. 23 MR. DANDAR: Look at the Utah case on polygamy, 24 U.S. Supreme Court. There we have a religion in 25 Utah, practically the religion controls the whole
104 1 state. They practice polygamy. It's in their 2 Bible. It is written by their prophet. It is clear 3 as a bell it is part of their religion. And yet the 4 U.S. Supreme Court said, "No, you stop doing that 5 because we are not going to let you do it because 6 the governmental interest is superior to your 7 religious practice." 8 THE COURT: That's right. See the balancing 9 there? You know, it's that the interest that the 10 government has in regulating how many wives somebody 11 can have apparently is superior to the religious -- 12 it's just like the Peyote, the village that smoked 13 marijuana, didn't the government also say, "You 14 cannot do that"? 15 MR. DANDAR: Right, because the governmental 16 interest is higher. 17 THE COURT: Governmental interest in 18 controlling drugs and all that sort of stuff is 19 superior to this religion's -- whichever one it 20 was -- ability to smoke dope as part of their 21 religious practice. And you can almost see what was 22 going on in their head, with all of the dope out 23 there, the next thing -- 24 MR. DANDAR: Everybody would belong to a church 25 that --
105 1 THE COURT: Everybody would belong to a church 2 that would allow you to take LSD and dope. And it 3 would just mushroom. 4 MR. DANDAR: Even the First Amendment privacy 5 interest in using marijuana for medicinal purposes 6 passed by Oregon and maybe California, I'm not sure 7 about California, but Oregon, they said, "No, it's a 8 state law, we'll arrest you if you prescribe 9 marijuana for pain relief or eye problems." 10 And they have a privacy interest, they have a 11 state rights interest, but the federal government 12 interest is superior to that, so the First Amendment 13 doesn't give you this absolute right, it just gives 14 you a right which has to be balanced. 15 And Malicki says, following under the Supreme 16 Court of the United States, "If you are being sued 17 for a neutral tort claim that applies to everybody, 18 then we're not going to do a balancing test." 19 THE COURT: Right. You are suggesting they 20 will say the same thing when it comes to punitive 21 damages? 22 MR. DANDAR: Absolutely. 23 THE COURT: And the Church's position is no, 24 they'll look at RFRA and First Amendment and say 25 that is to punish one of the -- one of the -- not
106 1 the intervenors, one of the -- 2 MR. LIEBERMAN: The amicus. 3 THE COURT: Right, the amicus, it talked about 4 sort of evil intent, it is sort of are we going to 5 let the jury get involved to that extent with the 6 Church. 7 MR. DANDAR: Again, they didn't cite one case. 8 THE COURT: No. And I guess one of the 9 reasons -- I thought this would be easy, I would 10 read somebody's case and it would be the magical 11 answer. It seems like in this case there is no 12 magical answer, in a lot of these cases. 13 MR. DANDAR: Wollersheim is the magical answer. 14 THE COURT: Well, okay, I'll go read 15 Wollersheim again and see what -- 16 MR. DANDAR: I mean, it goes through 17 everything. It goes through every major Supreme 18 Court decision on the subject, and it upholds 19 punitive damages against the Church of Scientology. 20 And Wollersheim again eliminated all First 21 Amendment protection because of the actions taken 22 against Mr. Wollersheim. 23 We allege in our medical experts' opinions 24 are -- there is intentional medical neglect, abuse 25 of a disabled adult. If it didn't result in death,
107 1 which are the lower damages in the case, and results 2 in one of the survival claims, which are the higher 3 damages in the case because of the pain and 4 suffering of Lisa McPherson, that is up for the jury 5 to decide. 6 But as the case is now set, with the facts that 7 we have, this case is more egregious than the 8 Wollersheim case, far more egregious. And I'm not 9 going to say it is far more egregious than a sexual 10 battery of a minor, but I believe the Malicki case 11 was a sexual battery of an adult, a consenting 12 adult, because -- 13 THE COURT: One of them was. 14 MR. DANDAR: Yes. 15 THE COURT: One was not a sexual battery, one 16 was just sexual activity, so you had to assume it 17 was consenting. 18 MR. DANDAR: Consenting adults, right. 19 THE COURT: And that is the one that, to me, 20 kind of really extended this -- this law far more so 21 than the other one, which is much more 22 understandable. 23 Anyway, I understand your position. I will 24 read Wollersheim. 25 Now let me ask you a practical question. Why
108 1 would I want to -- I'm going to ask both sides this. 2 Why would I want to -- since this is a case of first 3 impression and since nobody knows what the answer 4 is, and certainly whatever my little answer is will 5 not be the last word on it -- why would I want to 6 rule on this, and let's say that I ruled against the 7 plaintiff and ruled in favor of the defendant, go 8 through a six-week trial, only to find out I'm wrong 9 and have to go through another six-week trial? Why 10 wouldn't I hold off on this and rule on it 11 post-judgment? 12 MR. DANDAR: I don't know if they would accept 13 jurisdiction. 14 THE COURT: Who? 15 MR. DANDAR: Oh, if you ruled post-judgment? 16 THE COURT: Right. No, they wouldn't. I mean, 17 whatever ruling I make, the Second District -- the 18 only time the Second District is going to rule on 19 something most likely is on something where the harm 20 or the damage can't be remedied on an appeal, and 21 this would not be it. So the chances are they 22 wouldn't rule on it. 23 So why would I want to go through a trial if -- 24 if I don't throw out punitive damages, no harm, no 25 foul, the jury decides. If I'm wrong, the Second
109 1 District overturns me, or Supreme Court does 2 whatever with it. 3 MR. DANDAR: I -- 4 THE COURT: Why would I want to throw it out I 5 guess is a better question for a church? Why would 6 I want to throw it out and go through a six-week 7 trial only to have the Second District or Supreme 8 Court tell me I was wrong and, therefore, they send 9 it back for us to go again with a new jury? 10 MR. DANDAR: You wouldn't want to do that. 11 THE COURT: Doesn't seem like it. 12 MR. DANDAR: And I think you have a sufficient 13 ground to deny their motion to strike based upon the 14 procedural defect and based upon Malicki that cites 15 the other cases which uphold punitive damages and 16 based upon Wollersheim. 17 THE COURT: All right. 18 MR. DANDAR: And the fact there is not one case 19 out there that supports the position taken by the 20 Church. 21 THE COURT: Case of first impression. I know 22 you don't want to admit that, but -- 23 MR. DANDAR: It's -- 24 THE COURT: You can't give me a case right on 25 the money except Wollersheim which affirms punitive
110 1 damages -- 2 MR. DANDAR: Right. 3 THE COURT: -- against a church? 4 MR. DANDAR: Well, I can. The Church of 5 Scientology, the same corporate defendant here, 6 Fifth DCA, they had a discovery dispute on net worth 7 because they were, after -- after an amendment was 8 made, punitive discovery on net worth which I cited 9 in the brief, they didn't say, "We're going to 10 strike the punitive damages." They said, "The 11 procedural evidentiary hearing wasn't followed so go 12 back and do that." 13 And there was -- I think. And there was 14 another avenue that -- 15 THE COURT: What all that means -- 16 MR. DANDAR: The discovery was too broad. 17 THE COURT: Courts don't generally rule on 18 things they don't have to. So go back -- for all 19 they know, the jury doesn't award punitive damages. 20 For all they know, the Court doesn't allow them to 21 amend and ask for punitive damages, so they wouldn't 22 rule on that most likely. 23 MR. DANDAR: Okay, but -- I agree with you -- 24 THE COURT: Do you think it is odd we don't 25 have any cases out there, a whole body of law here
111 1 that tells us about punitive -- I mean, do you think 2 just the mere fact that there is not a whole bunch 3 of cases out there that say it's perfectly okay 4 tells us it is because punitive damages aren't 5 awarded? 6 MR. DANDAR: No. I think they are awarded. 7 THE COURT: They settle? Or what do you think 8 happens to them? 9 MR. DANDAR: I think they settle after there is 10 an award and there is no appeal, because all of the 11 cases against the Catholic church, there has to be 12 one case out there where they talked about striking 13 punitive damages because of the First Amendment. 14 There isn't. 15 THE COURT: Well, there isn't one that says the 16 Catholic church was assessed punitive damages, 17 either. 18 MR. DANDAR: Mmm -- 19 THE COURT: Well, maybe there is and we just 20 don't know what it is. 21 MR. DANDAR: I think the case that was reversed 22 on other grounds, I think that was the Catholic 23 church case, $4 million in punitives. 24 THE COURT: By the way, for the benefit of the 25 record, the case he's talking about is Jordan versus
112 1 Masters. 2 MR. DANDAR: Jordan, yes. 3 THE COURT: Cited at 821 So.2d 342. 4 MR. DANDAR: I -- 5 THE COURT: What happened in that case is 6 the -- the judge reversed the award on the basis of 7 Doe versus Evans out of the Fourth District -- or 8 Malicki, one of them. And then when it went up to 9 the Fourth District, they held it, waiting for the 10 Supreme Court. The Supreme Court reversed the 11 Fourth District, so they reversed this judge and 12 sent it back. But they also sent it back for new 13 trial saying the trial was unfair because that was 14 the case -- the reason why I know this case because 15 I cited it to you-all about the -- about the same 16 type jury instruction and said that you can't give a 17 jury instruction on that. 18 MR. DANDAR: Okay. 19 THE COURT: Okay? 20 MR. DANDAR: All right. 21 THE COURT: But -- yes, let me read from it, 22 this is Page -- I can't tell -- 23 MR. DANDAR: Does it say what church it is? 24 THE COURT: Page 345. Let's see. Against 25 Reverend Thomas Masters, Macedonia Baptist Church.
113 1 MR. DANDAR: Okay. 2 THE COURT: Sued this Reverend Masters and sued 3 Deacon Lawrence and Macedonia Baptist Church, 4 alleging breach of fiduciary duty based on their 5 actions in connection with Jordan's allegations 6 against Masters, which was sexual abuse. 7 It said that, "After the jury rendered a 8 verdict as to all defendants in favor of Jordan, the 9 trial court directed a verdict in favor of Lawrence 10 and the church on the breach of fiduciary duty based 11 on Doe versus Evans." That was the case out of the 12 Fourth District. 13 Then it said, "The Supreme Court recently 14 quashed Doe v. Evans. As a result, we reverse the 15 directed verdict. On cross appeal, Appley also 16 raised several evidentiary errors committed by the 17 trial court. We conclude harmful error was 18 committed and reverse for new trial." 19 This may be some authority for this proposition 20 because I did pull it out. The gist of this case 21 involves Jordan's claim that Reverend Masters 22 sexually abused him. 23 He further claims the church was warned of an 24 investigation using improper means, including 25 intimidation and harassment. Jordan alleged the
114 1 church and its officers had a fiduciary duty to 2 protect him. 3 "The issue of whether the First Amendment 4 barred the action against the Church defendant was 5 raised at trial. The trial court permitted the case 6 to go to the jury. A substantial verdict, including 7 punitive damages, was rendered against all 8 defendants. 9 "After the trial was conducted, our court 10 decided Doe v. Evans, in which we held that the 11 First Amendment barred breach of fiduciary duty 12 against the church and its pastors stemming from 13 inappropriate sexual relations," on and on. 14 It said: "On motion for rehearing and renewed 15 motion for directed verdict in this case, the court 16 entered a directed verdict in favor of Lawrence and 17 the church. It also denied the motions for new 18 trial. 19 "Because the directed verdict was grounded on 20 Doe v. Evans and it was considered by our Supreme 21 Court, we awaited their decision. The Supreme Court 22 determined Doe's fiduciary duty was not barred by 23 the establishment clause of the First Amendment 24 where the court was not being called upon to 25 determine ecclesiastical doctrine." Then it cites
115 1 from the case. 2 So you are right, this may be some basis -- I 3 read this and only underlined that part about 4 punitive damages. That must be the only discussion 5 about -- 6 MR. DANDAR: I do cite another case, on Page 21 7 of my reply to the amicus. It is Guinn, G-U-I-N-N, 8 versus Church of Christ of Collinsville, 775 Pacific 9 766, Oklahoma 1989 which protected excommunication 10 as a religious activity on membership but permitted 11 tort damages. You can decide you can't be a member 12 anymore, you just can't sue for that even though you 13 coach it in a tort claim. 14 But what they did to the person afterwards, 15 intentional infliction of emotional distress, was a 16 common law tort of general applicability and there 17 they upheld the decision which included punitive 18 damages. 19 THE COURT: They did? 20 MR. DANDAR: They did. I cite that on Page 21 21 of my brief. 22 THE COURT: What is the cite? 23 MR. DANDAR: The cite is 775 Pacific 2nd 766, 24 on Page 883, Oklahoma 1989. 25 THE COURT: Okay.
116 1 MR. DANDAR: I'm trying to figure out why 2 Oklahoma is in a Pacific 2nd, but that is what the 3 cite is. So I misspoke, I do have more than just 4 the Wollersheim case on punitives. 5 THE COURT: You don't know, do you, whether or 6 not the issue was specifically raised in this Jordan 7 case about punitive damages? 8 MR. DANDAR: I don't think it was. But the 9 whole general -- again, it's the general rationale 10 of Doe v. Evans, which is the same as Malicki. 11 THE COURT: Right. 12 MR. DANDAR: So, again, they had the 13 opportunity. It was part of the record. 14 THE COURT: And I suppose they could have -- 15 they could have said, "We're going to reverse this 16 except for punitive damages and we find that 17 punitive damages can never be assessed against the 18 church" or something. 19 MR. DANDAR: Exactly. Exactly. 20 THE COURT: Okay. 21 MR. DANDAR: I think that is -- I do make an 22 argument, although it's not the strongest argument 23 we make, about Scientology -- Church of Scientology 24 having funds set aside for litigation purposes. 25 They talk about donations. I heard the intervenors'
117 1 counsel talk about donations to the church and how 2 this would have an impact on that. 3 This is the Church of Scientology Flag Service 4 Organization, Inc. There are no donations to the 5 Church. Everything is -- you have an account like 6 you would at a business. You pay your money for 7 each and every service you get. As a matter of 8 fact, there is a Hernandez Supreme Court of the 9 United States case that talks about that, that says 10 that is not a donation. 11 The Church of Scientology -- 12 THE COURT: They get a tax deduction for it, 13 don't they? 14 MR. DANDAR: Pardon me? 15 THE COURT: They get a tax deduction for it, 16 don't they? 17 MR. DANDAR: After the Hernandez case they went 18 and had an agreement with the IRS where they get a 19 tax deduction. There has been some lower case 20 appellate courts, particularly I think in 21 California, where a few of the courts raised a 22 question of why they get a tax deduction for that if 23 they're getting a service in exchange for that. But 24 that is not -- that is not before you. 25 THE COURT: Neither here nor there.
118 1 MR. DANDAR: Neither here nor there. 2 THE COURT: I guess we can assume that the 3 parishioners of the Church of Scientology are just 4 as free to make a donation to their church without a 5 service as anybody else would be. 6 MR. DANDAR: I would -- I would assume so. 7 THE COURT: Right. 8 MR. DANDAR: Yes. We are not here to talk 9 about whether or not there is corporate liability, 10 correct? We're just here on the constitutional 11 argument. 12 THE COURT: We are here on the constitutional 13 argument, and we're not here to talk about the 14 facts, because as I said, I have already, based on 15 the facts, I think -- you know, by denying the 16 summary judgment, and by the rulings I have already 17 made, indicated that this -- that the activity that 18 is in question here is not prohibited by the 19 religion. 20 Mr. Lieberman and I don't see eye to eye on 21 that, but that is all right, I get to make the 22 rulings, he gets to appeal them. 23 MR. LIEBERMAN: I would rather be in your 24 position. 25 MR. DANDAR: Judge, in denying the motion to
119 1 strike punitives, I believe the Court can rely on 2 Malicki and the cases that Malicki cites, and 3 especially in Justice Quince's concurring opinion 4 where they said to give a church, any church, an 5 exemption from tort liability would be a violation 6 of the establishment clause. 7 THE COURT: All right. Thank you. 8 Now, Counselor, you don't have much time. 9 MR. LIEBERMAN: I know. 10 THE COURT: So why don't you just let me ask 11 you the same -- I think your time was sort of eaten 12 up. You understand you-all's position and I don't 13 know there is a magical answer here. And as I said, 14 certainly I'm not the last person to speak to the 15 issue. It would be nice to think if I ruled they 16 would say, "She's so smart, that is the right 17 answer." That ain't going to happen. It's a 18 constitutional question. I'll make the best answer 19 I can make. 20 Why would I want to -- this case is scheduled 21 to last six weeks or so. And, you know, why would I 22 want to -- and I don't know the answer, I clearly 23 don't know the answer, I don't have any idea what 24 the right answer is. I have thoughts about it~-- 25 but why would I want to take the position that I
120 1 would strike punitive damages at this stage, where 2 all -- all it takes for a jury is really an extra 3 day, at the most, to do the punitive damages part of 4 the case, especially when there is no -- there is no 5 net worth here, there is just going to be a matter 6 of whatever argument will be made, really, mostly, 7 at a punitive damage claim. Why wouldn't I want to 8 withhold ruling on this until I see, A, if the jury 9 awards punitive damages; B, if they even find the 10 Church at fault? 11 You know, everybody forgets -- I know you don't 12 forget, I'm sure, but if the doctors are to be 13 believed, or the Church's experts, that Lisa 14 McPherson had a car accident and she was in the 15 process of whatever, and an embolism broke loose and 16 hit her lungs, the jury is liable to find there was 17 absolutely no negligence on behalf of the Church, so 18 not only would you not have punitive damages, you 19 wouldn't even have compensatory damages. 20 Frankly, the intentional infliction of mental 21 distress is going to be a tough sell, I think, for 22 plaintiff. I haven't -- I think it's a tough sell. 23 So I don't even know if the jury will award any 24 damages, let alone punitive damages. So why would I 25 want to make a ruling on that now and then find out
121 1 that some -- that Mr. Dandar is right, that the 2 Malicki decision is just going to be a case that is 3 going to say, hey, no difference than a church and a 4 corporation, period, and then I have to go back, 5 pick a whole new jury and try the case again? 6 Why wouldn't I want to wait at the very least 7 until I see what a jury does, then if I still have 8 to rule, rule? Why would I want to reserve ruling 9 on this, in other words? 10 MR. LIEBERMAN: Well, I can think of two 11 reasons, your Honor. 12 THE COURT: Okay. 13 MR. LIEBERMAN: One is -- and this has more to 14 do from the church's perspective than the respect 15 for the Court. I understand the Court's position. 16 From the Church's perspective, to be subjected 17 to a trial in which a jury is being asked and may 18 well find that its practices are evil, as emphasized 19 by the -- which subjected the Church to potential 20 stigma that might not ever -- it would be difficult 21 to eliminate, merely by a after-the-fact vacation of 22 a punitive damage award on this kind of issue. 23 So that I think this is the kind of case that 24 the Supreme Court said in the Catholic Bishop versus 25 National Labor Relations Board case. It's not only
122 1 the conclusions that may be reached which would 2 violate the -- the religion clause of the First 3 Amendment but the very process of inquiry. 4 In other words, the Church shouldn't be 5 subjected to that kind of inquiry with that kind of 6 potential stigmatization hanging over it, and 7 potentially resulting in mere vacation of it 8 afterwards would not be a sufficient remedy. 9 Secondly -- 10 THE COURT: But you don't have one case 11 where -- where a judge granted a motion to strike 12 punitive damages and then that was taken up on 13 appeal? In other words, there is just no case, I 14 take it? 15 MR. LIEBERMAN: Right. Well, your Honor, with 16 due respect -- 17 THE COURT: So I would think any judge that 18 ever had this issue -- 19 MR. LIEBERMAN: Right? 20 THE COURT: -- must have allowed the punitive 21 damages claim to stand. 22 MR. LIEBERMAN: Well, we don't know that 23 because there may be many cases where punitive 24 damages have been -- have been stricken by a trial 25 judge.
123 1 THE COURT: Could, and perhaps -- 2 MR. LIEBERMAN: And it wouldn't result in a 3 reported opinion. 4 THE COURT: Perhaps compensatory damages were 5 sufficient where the plaintiff decided not to take 6 it up. 7 MR. LIEBERMAN: That's right. 8 THE COURT: That was reason one. What is 9 reason number two? 10 MR. LIEBERMAN: Reason number two, if this 11 motion were granted, I think the -- as a practical 12 matter, the necessity for a six-month trial might 13 not appear. 14 MR. DANDAR: Six-month? 15 THE COURT: Well, I don't, because I would 16 suspect that the -- that the issue of -- of the 17 plaintiff here obviously is and has been punitive 18 damages. 19 I mean, I think that goes without saying, the 20 compensatory damages are -- everybody knows what 21 they are maximumly under Count 1, at least. And so 22 I think everybody more or less talks in terms of 23 punitive damages if they are available. 24 So if I knock punitive damages out, then I 25 absolutely have to go through a trial to preserve
124 1 that -- I don't have to preserve it, but plaintiff 2 has to go through a trial to preserve it if the 3 district court wouldn't take the matter up now, and 4 they won't. I mean, I can almost tell you what 5 they're going to take up and what they're not going 6 to take up before they take it up because I see it 7 all of the time. 8 MR. LIEBERMAN: Yeah. 9 THE COURT: I see things I do get appealed, and 10 I see where they just deny cert or deny prohibition, 11 then they later deal with it. 12 MR. LIEBERMAN: Yes. 13 THE COURT: So you get a feel for what they'll 14 decide and what they won't decide. And they won't 15 decide that for the same reason that I'm wondering 16 why I shouldn't put it off, which is they may never 17 have to decide it because they don't know that it 18 won't be a defense verdict, they don't know that it 19 won't be a plaintiff's verdict but no punitive 20 damages. All those things. I mean, they don't have 21 to deal with that issue, so that is a heavy -- this 22 is a heavy issue they won't want to deal with if 23 they don't have to. 24 So, all right. You have about five minutes if 25 you want to respond.
125 1 MR. LIEBERMAN: I just have a couple of very 2 brief points. 3 First of all, the enactment of RFRA is an 4 essential element in the analysis of this issue. 5 The Wollersheim case is precisely the kind of case 6 that RFRA was enacted to deal with. 7 Wollersheim was a California state case. There 8 was no RFRA. And RFRA was enacted to insure that 9 strict scrutiny is applied to these issues, so you 10 can't take a decision in a non-RFRA state, in a 11 pre-RFRA era, and compare it here. 12 Secondly, also in Wollersheim, as I think your 13 Honor was suggesting, there was all sorts of other 14 conduct involved other than the religious practice. 15 THE COURT: Wasn't that the case where 16 allegation was made they were selling him E-meters 17 he couldn't even use? 18 MR. LIEBERMAN: No. 19 THE COURT: Must be another case. 20 MR. LIEBERMAN: But this was a case where there 21 were allegations of alleged fair game, i.e., that 22 they boycotted his business and they destroyed his 23 business. And the Church made an argument, that I 24 think should have been granted, that you have a 25 right to engage in a boycott.
126 1 But that is not a religious issue, that is a 2 freedom of association issue. And the court 3 rejected that. And so when it upheld punitive 4 damages, it upheld it on the basis of is any of 5 the -- does any of the conduct support the punitive 6 damages? And it found that at the least that would. 7 So I don't think Wollersheim is particularly 8 applicable for both those reasons, but particularly 9 that RFRA doesn't come into the picture. 10 THE COURT: But it is a case where punitive 11 damages were upheld by an appellate court against a 12 church. 13 MR. LIEBERMAN: Right. 14 And Lundman was a case in which it was 15 reversed. Mr. Dandar argues that in Lundman the 16 reason for the reversal was it didn't meet the 17 standards for punitive damages in any event. 18 But the court says, "There are three 19 independent reasons that we hold that punitive 20 damages may not be imposed." 21 Reason two is: "The punitive damage award is 22 unconstitutional as to the church and to the amici 23 cert. 24 I wonder why -- anyway, they question the 25 constitutionality of imposing punitive damages on
127 1 the Church to force it to abandon teaching its 2 central tenet. "We find the argument compelling. 3 The main conduct of the church on which the punitive 4 damages award was based is an espousal and promotion 5 of spiritual treatment as a means of care and on its 6 concomitant failure to train Christian Science 7 practitioners and nurses to perform or seek medical 8 diagnosis. The church's espousal of spiritual 9 treatment, however, is entitled to free exercise 10 protection. The constitutional right to religious 11 freedom includes the authority of churches to 12 independently decide matters of faith and doctrine." 13 Then they cite, as I argued, I pointed out to 14 your Honor, Lundman did not issue a blanket rule 15 churches are never subject to punitive damages. 16 It didn't have to go that far. It, instead, 17 said based upon those kinds of allegations, which 18 sound awfully like the allegations in this case, as 19 your Honor pointed out in your rulings, the court 20 said, "We do not grant churches a categorical 21 exemption but under these facts the risk of 22 intruding through the mechanism of punitive damages 23 upon the forbidden field of religious freedom is 24 simply too great." 25 So this is a case like our present case, I
128 1 submit, in which the court doesn't necessarily have 2 to go and decide for all cases, for all churches and 3 all circumstances, although I think that logically 4 the arguments do follow, but because this is a 5 punitive damage claim against a church, one, and, 6 two, based principally on religious conduct -- acts 7 which are substantially based on -- motivated by 8 religious belief, i.e., that the acts themselves are 9 also, that Lundman is precisely on point. 10 THE COURT: All right, thank you. All right, 11 if you-all will get me, first of all, as I said, I 12 want to see what Judge Moody said before I make any 13 decision as to whether I'm even going to rule on 14 this. And then based on what I see, I'll either 15 rule, or I may hold the matter in abeyance until the 16 conclusion of the case. I may. I may very well do 17 that. But I won't do that if I don't need to rule 18 at all, because this is a matter Judge Moody has 19 already taken up. So if you get me that transcript 20 as soon as you can. 21 MR. DANDAR: All right. 22 THE COURT: And it's -- it is lunchtime. Would 23 you like to take up the other motion this afternoon? 24 MR. HERTZBERG: Whatever your Honor desires. I 25 would prefer if your Honor could hear it this
129 1 afternoon. And I will give you a copy of -- 2 THE COURT: Oh, good. 3 MR. HERTZBERG: -- the papers we submitted. 4 THE COURT: Because I didn't bring it in. I am 5 sure I read this one, but I didn't know I would take 6 it up today. I thought we would take it up 7 tomorrow. Is this something I can read fairly 8 quickly? 9 MR. HERTZBERG: Yes, you can. There are many 10 exhibits, your Honor, but the essence of the motion 11 is in a few pages. And the motion itself is short. 12 THE COURT: Let's come back at 1:30 and I'll 13 hear you-all. But I do have to get out at 2:30. 14 Did I say 3 o'clock is my appointment? 15 MR. LIEBERMAN: You did. 16 MR. DANDAR: Yes. 17 THE COURT: So I need you-all to end on time. 18 We'll start at 1:30. 19 (WHEREUPON, a recess is taken.) 20 ______________________________________ 21 22 23 24 25
130 1 REPORTER'S CERTIFICATE 2 3 STATE OF FLORIDA ) 4 COUNTY OF PINELLAS ) 5 I, LYNNE J. IDE, Registered Merit Reporter, certify that I was authorized to and did stenographically 6 report the proceedings herein, and that the transcript is a true and complete record of my stenographic notes. 7 I further certify that I am not a relative, 8 employee, attorney or counsel of any of the parties, nor am I a relative or employee of any of the parties' 9 attorney or counsel connected with the action, nor am I financially interested in the action. 10 11 DATED this 30th day of December, 2002. 12 13 14 ______________________________ LYNNE J. IDE, RMR 15 16 17 18 19 20 21 22 23 24 25

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