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F.A.C.T.Net does not sell documents, it only lends them according to the terms of your library cardholder agreement with F.A.C.T.Net, Inc. ===================================================================== basic docs Nov 93\3-27-90\Page.00001 1 No. 89-1361 IN THE ~urteffte $ou~t of tht 'IIEInfte~ EState~ OCTOBER TERM, 1989 CHURCH OF SCIENTOLOGY OF CALIFORNIA, Petitioner, vs. LARRY WOLLERSHEIM, Responden~ ON PETITION FOR A WRIT OF CERTIORARI TO THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, SECOND APPELLATE DISTRICT RESPONDENT'S BRTEF IN OPPOSITION WILLIAM JAMES MURPHY Counsel of Record MURPHY & McDANIEL 118 West Mulberry Street Baltimore, Maryland 21201 (301) 685-3810 Attomeys for Respondent Larry Wollersheim Dated: March 27, 1990 basic docs Nov 93\3-27-90\Page.00002 QUES'I1ONS PRESENTED 1. Whether the free exercise clause of the First Amendment prohibits courts from imposing tort liability on the Church of Scien- tology for the intentional infliction of emotional distress based on evidence of its outrageous behavior toward respondent, a former member of that group, including the use of methods of "coercive persuasion" akin to brainwashing and thought reform, false impris- onment, and launching a campaign of personal and financial retribu- tion against respondent when he left the group. 2. Whether thejury in this case was adequately instructed not to impose tort liability on the Church of Scientology based on its religious beliefs or conduct protected by the free exercise clause of the First Amendment. 3. Whether the CouR of Appeal's opinion reflects that it adequately reviewed the 25,000 page trial court record. 4. Whether the free exercise clause of the First Amendment prohibits a properly-instructed jury from awarding punitive damages against the Church of Scientology for engaging in a pattem of outrageous behavior against respondent, over the course of many yeaIs, which conduct exacerbated respondent's previously dormant asymptomatic predisposition to a bipolar manic-depression disoKier and brought him to the brink of suicide, and which conduct was engaged in with a reckless disregard for respondent's mental condi- tion and emotional instability, and which included a campaign of per- sonal and financial retribution against respondent designed to punish him for leaving the group. 5. Whether the Court of Appeal's reduction of the jury's award of punitive damages in this case from $25 million to $2.2 million demonstrates that the reviewing court imposed strict limits on thejury's discretion to award punitive damages in this case, and fully afforded petitioner any rights that the Due Process Clause might require. basic docs Nov 93\3-27-90\Page.00003 TABLE OF CONTENTS QUESTIONS PRESENTED .......................... ................. ................i TABLE OF AUTHORITIES ...................................................iii-iv STATEMENT OF THE CASE ....................... ....... ............. ........... 2 1. Introduction ......................................................................2 2. The Nature Of Scientology ..............................................3 3. The Nature Of The Proceedings Below ...........................5 4. A Brief Summary Of The Evidence And The Manner In Which It Was P~sented To The Jury ......................................................................6 REASONS FOR DENYING THE WR~ .....................................9 I. The Jury And The Courts Below Did Not Impose Damages Against Petitioner Based Upon Its Free Exercise Of Peaceful Religious Practices .....................9 II. The Judgment Below Could Not Have Rested On A Jury Finding That Violated Petitionels Free Exercise Rights .......................................................... 10 III. The Court Of Appeal's Decision Reflects A Careful Review Of The Record .......................................... 10 IV. The Jury's Award OfPunitive Damages Was Not Based On Petitioner "Providing Its Central PeaceN Religious Practices To A Parishioner" ......................................................................... 11 V. Petitioner's Due Process Rights Were Not Violated By The Jury's Award Of Punitive Damages, Substantially Reduced By The Court of Appeal ................................................................... 13 CONCLUSION ............................................................................ 14 basic docs Nov 93\3-27-90\Page.00004 TABLE OF AUTHORITIES CASES Page Alcolac, Inc. v. EIam, No. 88-1992, cert. denied, U.S. , 110 S. Ct. 69 (1989) ................ 13 Browning-Ferris Industries, Inc. v. Kelco Disposal, Inc., U.S. 109 S. Ct. 2909 (1989) ............................................... 13-14 Christo~erson v. Church ofScientology ofPortland. 57 Or. App. 203, 644 P. 2d 577 (1982), cert. denied, 459 U.S. 1206 (1983) ..................................................................... 12 Church of Scientology of California v. Commissioner oflnternal Revenue, 823 F. 2d 1310 (9th Cir. 1987), cert. denied, 486 U.S. , 108 S. Ct. 1752 (1988) ................................................................................4 Church Universal & Triumphant, Inc. v. Witt, No. 89-672, cert. denied, U.S. , 110 S. Ct. 839 (1990) .......................9-10 Clardy v. Sanders, No. 89440, cert. denied, U.S. , 110 S. Ct. 376 (1989) .............................................................................. 13 Combined Insurance Co. ofAmerica v. Ainsworth, No. 89-282, cert. denied, U.S. , llO S. Ct. 376 (1989) ........................... 13 Delli Paoli v. United States, 352 U.S. 232 (1957) .............................................................................. 10 basic docs Nov 93\3-27-90\Page.00005 iv Founding Church ofScientology v. Webster, 802 F. 2d 1448 @.C. Cir. 1986), cert. denied, 484 U.S. 871 (1987) .....................................4 Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) ......................................................................... 11-12 Hernandez v. Commissioner oflnternal Revenue, U.S. , 109 S. Ct. 2136 (1989) ...........................4 Stromberg v. California, 283 U.S. 359 (1931) ..................... 10 Vintage Enterpr~es, Inc. v. Jaye, No. 89456, cert. denied, U.S. , llO S. Ct. 377 (1989) .............................................................................. 13 Vol~swagen ofAmerica, Inc. v. Gib~s, No. 89-228, cert. denied, U.S. llO S. Ct. 418 (1989) ...................................................... 13 Wollersheim v. Church ofScientology of California, No. 89-1367 (U.S., filed Feb. 23, 1990) ..............................................................4,11 STATUTES AND RULES Intemal Revenue Code, 26 U.S.C. 0 501 (c) (3) .....................4 Rules ofthe United States Supreme Court 15.1 ..........................................................................................2 24.2 ..........................................................................................2 OTHER AUTHORITIES L.R. Hubbard, Dianetics: The Modern Science Of Menral Health (1950) ........................................................4 basic docs Nov 93\3-27-90\Page.00006 INTHE E3up~emt QCou~t of the ~Hnfte~ ~tate~ OCrOBER TERM, 1989 NO. 89-1361 CHURCH OF SCIENTOLOGY OF CALIFORNIA, Pen'tioner, vs. LARRY WOLLERSHEUI, Respondent. ON PETITION FOR A WRIT OF CERTIORARI TO THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, SECOND APPELLATE DISTRI(rr RESPONDENT'S BRIEF IN OPPOSITION Respondent Lany WollIssheim, the plaintiff in the proceed- ings below, respectfully requests that the Court deny the Church of Scientology of Califomia's petition for a writ of certiorari to ~view the jud~ment and opinion of the Court of Appeal of the State of Califomia, Second Appellate District. That opinion is reported at 212 Cal. App. 3d 872, 260 Cal. Rptr. 331 (1989). basic docs Nov 93\3-27-90\Page.00007 2 STATEMENT OF THE CASE 1. Introduction, In accordance with this Court's Rule 15.1, respondent ~- spectfully submits that the Questions Presented, as framed by the petitioner, are not fairly presented by the record in this case.' Throughout the proceedings in this case -- at vial, on appeal, in its petition for rehearing in the Court of Appeal, in its petition for review by the Califomia Supreme Court and now in its Petition for Writ of Certiorari-- the petitioner has sought to transfonn all issues in this case into the question whether a church may be subjected to tort liability for engaging in "peaceful, voluntary ~ligious practices." The evidence presented by respondent during a lengthy four and a half month vial demonstrated that -- insofar as petitioner engaged in the practices challenged by respondent at trial -- those practices were not peaceful, they were not voluntary, and they were not genuinely religious. Respondent, who was on the witness stand for eighteen days (ten of those days consisting of cross-examination by the petitioner's attomeys), testified that the petitioner's practice of "auditing" never was presented to him as a religious practice, but rather was introduced to him as a scientific means of self-improvement. Later, after respon- dent left Scientology, he began to recognize that "auditing" had been used as part of a systematic program of coercive persuasion or thought control, to bend his will to that of petitioner. In 1974, at a time when respondent was contemplating leaving the group, petitioner's members imprisoned him on board a ship for six weeks where he was subjected to hard labor and relentless coerced "auditing." Pet. App. at 7a. Respondent was urged by petitioner to "disconnect" from his family because of concems they expressed about his continued Because ~espondent is dissatisfied with the Questions Presented as framed by the petitioner he has reframed those Questions on page i in accordance with this Court's Rule 2~.2, and to conform the questions to the findings of the jury and the decision of the Court of Appeal. basic docs Nov 93\3-27-90\Page.00008 3 membership in the group. Ibid. When respondent finally decided to leave Scientology, petitioner launched a successll campaign to destroy respondent's business, as part of a recognized practice of "fair game"' that petitioner has used in the past against former members, govemment officials, and other perceived enemies. Pet. App. at 8a. The evidence of petitioner's conduct toward respondent, pre- sented at trial, is fairly summarized in the Court of Appeal's opinion. See Pet. App. at 6a-9a. Indeed, the opinion goes so far as to state that in some circumstances, "auditing" and "disconnect" might be viewed as religious practices, Pet. App. at 23a, 32a, a characterization that re- spondent consistently ~sisted at trial and on appeal. But in the final analysis, based on its review ofthe lengthy record before it, the Court of Appeal concluded that the jury was correct in deciding that as petitioner conducted itself toward respondent its practices were not protected by the free exercise clause of the First Amendment because they were not practices in which respondent voluntarily engaged. See Pet. App. at 29a-33a. Rather, the Court of Appeal affirmed the jury's verdict on liability solely because the record supported respondent's claim that the practices at issue were coercive, outrageously danger- ous to the respondent's mental health and well-being, and ultimately part of a deliberate campaign to Nin the respondent financially. Petitioner presented its version of the facts to ajury. The jury rejected that version and, based on limiting instructions that fully protected petitionels free exercise rights, found in favor of the respondent. The Court of Appeal reviewed the petitioner's argu- ments, and based on the factual record, rejected them. The holding below is limited to the facts of this case, and raises none of the broad questions of religious freedom that petitioner asks this Court decide. 2. The Nature of Scientology. The Church of Scientology was founded in the early 1950's 2A Scientology policy letter defined "fair game" as a policy in which enemies "may be deprived of property or injured by any means by any Scientologist [and] may be tricked sued, lied to or destroyed." Pet. App. at 25a basic docs Nov 93\3-27-90\Page.00009 4 by the science fiction writer L. Ron Hubbard. This first church later became the Church of Scientology of Califomia, the petitioner in this case. In 1950 Hubbard published a bestseller called Dianetics: The Modern Science ofMental Health. This quasi-scientific publication remains a basic text of the Church of Scientology. Hubbard originally planned that "Dianetics" would be of- fered as a mental health discipline, but the techniques described in his book came under a#ack from the American Psychological Associa- tion and the American Medical Association. In the face of these attacks, Hubbard founded the Church of Scientology. Since its founding Scientology has been engaged in many controversies, including its legal confrontations with the Food & Drug Administration and the Intemal Revenue Service, and the conviction of several major church leaders for the theft of govem- ment documents, pejury, wiretapping, and other federal crimes. This history of litigation -- often implicating petitioner's claim that its activities were protected by the free exercise clause of the First Amendment -- also was recently described by the Court of Appeals for the District of Columbia Circuit in Founding Church of Scientology v. Webster, 802 F.2d 1448, 1449-50 (D.C. Cir. 1986), cert. denied, 484 U.S. 871 (1987).' Recently, because it was found to have diverted its profits to private individuals, the petitioner here has been determined not to be a tax exempt organization under 9501(c)(3) of the Intemal Revenue Code. See Church ofScientology ofCalifornia v. Commissioner of Internal Revenue, 823 F.2d (9th Cir. 1987), cert. denied, 486 U.S. 108 S. Ct. 1752 (1988). See also Hernandez v. Commissioner of Internal Revenue, U.S. , 109 S. Ct. 2136, 2142 n. 4 (1989). During the proceedings below, the trial court determined on a motion for summaryjudgment that petitioner is a religion, a holding that respondent has challenged repeatedly, as is reflected in his pro se Petition for Writ of Certiorari now pending before this Court. Wollersheim v. Church of Scientology of California, No. 89-1367 (filed February 23, 1990). Although that holding is subject to con- 3See also Wollerheim v. Church ofScienrology, No. 89-1367. Pet at 12-21. 25. basic docs Nov 93\3-27-90\Page.00010 5 siderable doubt, for purposes of this Brief in Opposition respondent acknowledges that the courts below found petitioner to be a religion and found that the practice of auditing may be a practice entitled to First Amendment protection. What is important about the pending Petition for Writ of Certiorari, however, is that thejury, the trial court, and the Court of Appeal all determined, based on the evidence presented in this case, that respondent's participation in "auditing," particulariy during and after his imprisonment in 1974, was coerced. 3. The Nature of The Proceedings Below. Petitioner makes the remarkable assertion that in this case it "was subjected to what can only be characterized as a six-month heresy trial." Pet. at 1 1 . It was through the trial tactics of the petitioner thatthe triallasted as long as it did. The trial, intefiupted severai times by appeals and by separate lawsuits filed by petitioner to prevent respondent from having his day in court, finally commenced on February 18, 1986. Respondent called his first witness on February 26. Respondent called a total of 14 witnesses, and rested his case on May 8, 1986. The length of the plaintiffs case was largely the result of petitioner's tactics on cross-examination. For example, the respon- dent himself testified on direct from April 3 through April 14, over the course of seven (7) trialdays. He was then cross-examined by petitioner's counsel from April 14 through April 30, over the course of ten (10) uial days. Similarly, respondent's expert witness, Dr. Margaret Singer, testified on direct from March 12, 1986 through March 17, over the course of four (4) trialdays. Her cross-examina- tion by petitioner lasted from March 17 through March 20, over the course of four (4) trial days. Following the close of plaintif~s case in chief, petitioner called to the stand more than frfty witnesses. The petitioner's defense lasted for six weeks, from May 12, 1986 through June 27, 1986. basic docs Nov 93\3-27-90\Page.00011 6 The transcript of the trial alone is compiled in 95 separate volumes consisting of 14,800 pages oftestimony. It is this record that the petitioner is asking this Court to review, after the Califomia Court of Appeal reviewed the record and determined petitioner's arguments to be without merit, and after the Califomia Supreme Court declined fUrther review. 4. A Brief Summary Of The Evidence And The Manner In Which It Was Presented To The Jury. Respondent's first experience with Scientology came at the age of 19, and he continued to take part in Scientology courses and auditing over the course of ten years. The entire thrust of respondent's case at trial was to demonstrate that the practices of Scientology in which he participated, and to which he was subjected, were neither peaceful, nor voluntary, nor central to any system of religion that was presented to him. Respondent's own testimony in this regard was supported by that of former high ranking Scientologists and that of expert witnesses.' Dr. Margaret Singer, a research and clinical psychologist, testified that respondent experienced a bipolar manic depressive disorder reaching the level of psychosis as a result of having been "subjected to a series ofinteracting routines [auditingl and behaviors in which he was forced to participate." R.T. at 2192. Dr. Singer testified that respondent had been "desensitized" by Scientology's thought reform program to the extent that when his wife was severely bumed in an accident, he acquiesced in the directions of other Scientologists to direct his wife not to sue Scientology or claim disability benefits as a result of the accident. R.T. at 2200. Respon- dent, according to Dr. Singer, was forced into a state of emotional and financial dependence on Scientology, by a fear of incurring a large "free-loader debt" for the prohibitive costs of Scientology courses and auditing he had earlier received at a member's "discount," by a fear of being declared a "suppressive person" or "SP," which would result in social isolation and mandatory "ethics handling," and by a fear that if he went " against the Church of Scientology [he was] going 4For example, Ed Walters, a former Guardian office member, testified that beginning as early as 1976, respondent was declared a suppressive person and was subject to "fair game." basic docs Nov 93\3-27-90\Page.00012 7 to die." R.T. at 2414-16. Dr. Singer also testified how respondent had been tormented after leaving Scientology by feelings of dread caused in part by successful efforts of the Church of Scientology to ruin his business, by contacts with members who urged him to fire his trial counsel, and by being followed and uacked down. R.T. at 2431-34. As a result of his experiences in Scientology, respondent not only had been induced into a severe bipolar disorder, but also suffered from panic attacks, psychogenic amnesia, and a post-traumatic svess disorder. Dr. Singer testified that "auditing," as it was experienced by respondent, was part of a process of coercive "thought reform" that precipitated or was the major cause of respondent's severe mental and emotionaldisorders. See e.g., R.T. at 2502-03. The trial record also is replete with examples in which the court very carefully prohibited any inquiry into the content of Scientology's beliefs in general, let alone any comment by the wit- nesses conceming the validity of those beliefs or the sincerity of Scientology's adherents. See, e.g., R.T. at 2045 (court directs respon- dent's trial counsel and Dr. Singernot to inquire into or comment upon Scientology's belief in and practice of auditing generally, represen- tations made by members of Scientology as to the benefits, nature or efficacy of auditing, or evidence of the alleged success or failure of auditing); R.T. at 2374 (court declines to define for the jury, in response to juror questions, what an "operating thetan" is); R.T. at 2382-2390 (court refuses to permit witnesses to testify conceming any ofthe content of "upper ievel" Scientology materials). Finally, the jury was instructed quite explicitly not to make any judgments about the beliefs of Scientology or to base its findings in any way upon the validity of the "religious beliefs and practices of Scientology," including auditing. The Court instructed: Now, during the course of the trial you have heard evidence conceming certain of the religious beliefs and practices of the defendant Church of Scientology of Califomia including the practice of auditing. You are instructed that the defendant is a religious organization and that Scientology is a religion and entitled to protection as to its religious basic docs Nov 93\3-27-90\Page.00013 8 beliefs and religious practices underthe First Amend- ment of the United States Constitution. Therefore, during your deliberations you must not and will not make any inquiry into the validity of their religious beliefs and practices of the church or its members as those beliefs and practices, including auditing have become known to you dur- ing the trial, nor will you base your verdict in any way on any evaluating of the validity of the religious beliefs and practices of Scientology. ***** It is not for you, the jury, to attempt to determine the Vuth of any religious statement, ~or is it proper to sift through the teachings of Scientology and pick out individual statements for scrutiny de- ciding whether each standing alone is religious. R.T. at 14,778-79. The jury also was instructed that it could base a verdict for respondent only on "extreme and outrageous conduct . . . which goes beyond all possible bounds of decency so as ~ be regarded as atrocious and utterly intolerable in a civilized community." R.T. at 14, 786. It was based on respondent's evidence of physical, financial and psychological coercion, coupled with degradation and psycho- logical dread, and the foregoing instructions, that the jury found petitioner liable for the intentional infliction of emotional disvess and awarded substantial compensatory and punitive damages. It was that verdict of liability that the Court of Appeal affirmed, carefully limiting its holding to the facts presented. See Pet. App. at 6a, 12a- 34a. basic docs Nov 93\3-27-90\Page.00014 9 REASONS FOR DENYING THE WRIT With respect to the issues raised by petitioner, the decision of the Califomia Court of Appeal is correct, and is nan~owly circum- scribed to the facts presented by this case. The Questions Presented by the petitioner are not fairly presented by the record evidence orthe decision below. There is no conflict between Lhe decision below and any decisions of this Court or of other appellate courts, arising from similar factual circumstances. Therefore, review by this Court is not warranted. I. The Jury And The Courts Below Did Not Impose Damages Against Petitioner Based Upon Its Free Exercise Of Peaceful Religious Practices. Contrary to petitioner's assertions, the Califomia courts in this case have not sanctioned the imposition of tort liability against a church based upon "voluntary participation in peaceful religious practices." See Pet. at 13. To the contrary, the jury's finding of liability was affirmed solely because sufficient evidence was presented by respondent at trial to show that the practices in question were coercive and were not peaceful. See Pet. App. at 22a (practice of "fair game," even if religious, is not immune from civil liability because it was designed to ruin the respondent financially); id. at 27a- 30a (respondent engaged in specific auditing sessions under the thteat of physical compulsion, and a fear of becoming " fair game" and incurring a massive "freeloader debt"; these acts of coercion perme- ated all of respondent's participation in auditing); id. at 32a-33a (respondent was coerced into "disconnecting" from his family); id. at 33a-34a (petitionels disclosure of confidential information about respondent for non-religious puIposes is not protected "religious expression"). Recently, petitioner's counsel presented questions to this CouR in Church Universal & Triumphant, Inc. v. Witt, No. 89-672, cert. denied, U.S. , 1 10 S. Ct. 839 (1990), that were nearly identical to the questions presented here. In that case, basic docs Nov 93\3-27-90\Page.00015 10 however, the issues resolved at trial really involved the church leaders' liability for the perpetration of an elaborate real estate swindle. In this case, as in Wirt, while petitioner asserts that the issues involve the imposition of tort liability upon a church for engaging in peaceful, voluntary religious practices, the trial record and the Court of Appeal's decision make clear that those broad issues of religious freedom are not presented by this case. II. The Judgment Below Could Not Have Rested On A Jury Finding That Violated Petitioner's Free Exercise Rights. The petitioner's second question presented asks this Court to extend to this case the principle that reversal of a general verdict is required if the verdict may have rested on constitutionally-protected activity. See e.g., Stromberg v. California, 283 U.S. 359 (1931). In this case, however, the jury was expressly instructed that Scientology was a religion and that "auditing" was part of petitionels religious beliefs, and that no award of liability could be based upon an evaluation of petitioner's religious beliefs, or upon its religious practices. See R.T. at 14, 778-79 (quoted on pages 7-8 supra). This Court must assume that thejury followed the instructions it received. See Delli Paoli v. United States, 352 U.S. 232, 242 (1957). And, as the Court of Appeal's opinion demonstrates, respon- dent presented ample evidence to establish petitioner's liability for activities that are not protected by the free exercise clause. Therefore, there is no ~ason to believe that the principles of Stromberg were violated by the Court of Appeal's affirmance of the jury's verdict of liability. III. The Court of Appeal's Decision Reflects A Careful Review Of The Record. Petitioner asserts that if the Court of Appeal had engaged in "an independent examination of the whole record" it could not have upheld the jury's finding of liability. See Pet. at 23. This assertion basic docs Nov 93\3-27-90\Page.00016 11 essentially is premised on petitioner's argument that it was engaged in peaceful, voluntary religious practices, and flies in the face of respondent's contrary evidence, and the jury's determination, that petitioner was engaged in an outrageous pattem of coercive and retributive behavior toward respondent that caused him to sustain financial losses and severe psychological and emotional damage. The Court of Appeal's opinion reflects that it did carefully evaluate petitioner's arguments in the light of the evidence presented at trial, and did engage in the independent examination of the whole record that petitioner seeks. See Pet. App. at 6a-9a, 19a-20a, 22a-28a, 33a-34a. This Court should decline petitioner's invitation to sift through the 15,000 pages of trial testimony again, in order to determine whether this Court agrees with the Court of Appeal's affirmance of the jury's verdict. IV. The Jury's Award Of Punitive Damages Was Not Based On Petitioner "Providing Its Central Peaceful Religious Practices To A Parishioner." Petitioner does not assert that a religious organization can never be held liable for punitive damages, but only claims that whenever a church is subjected to tort liability for religious practices -- even coerced or outrageous practices -- its liability must be limited to actual, compensatory damages. Pet. at 26-27 & n.22. Petitioner cites no decision of this Court, or of any state or federal appellate court, adopting the rule it espouses, arguing instead by analogy to the law oflibel. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 349-50 (1974) (forbidding punitive damage awards to libel plaintiffs unless they meet the constitutional test of "actual malice"). Moreover, the decision of the Court of Appeal reflects great solicitude toward pe- titioneis free exercise claims, particularly in reducing the jury's award ofpunitive damages from $25 million to $2 million. See Pet. App. at 42a43a.' SRespondent has challenged the reduction of his damages in the courts below, and in his pending Petition for Writ of Cemorari. See Wollersheim v. Church ofScie~tology ofCali~bmia, No.89-1367, Pet. at 23-24. basic docs Nov 93\3-27-90\Page.00017 12 The issue presented by petitioner is better left for resolution by this Court in another case for several reasons. First, this Court historically has been reluctant to modify the states' substantive laws of tort liability and remedies on constitutional grounds. And there are no reported decisions of which respondent is aware accepting peti- tioner's assertion that punitive damages may not be imposed based on certain forms of tortious conduct by a religious organization. Indeed, that argument was flatly rejected in Christo~erson v. Church of Scientology ofPortland, 57 Or. App. 203, 644 P. 2d 577, 607-08 (1982), cert. denied, 459 U.S. 1206 (1983). Second, in this case, the award of punitive damages was predicated not only on "coercive" practices that petitioner claimed to be part of its religious beliefs, but also on acts that were not afforded any protection at all by the free exercise clause -- including the "fair game" campaign of retribution against the respondent, and the revelation of confidential information about respondent for non- ~ligious purposes. See Pet. App. at 18a-22a, 33a-34a. Third, the jury in this case was instructed to award punitive damages only if it found petitioner to be "guilty of oppression or malice" toward the respondent. R.T. at 14,795. "Malice" was defined for the jury as conduct "intended by the [petitioner] to cause injury to the [respondent] or carried on by the [petitioner] with a conscious disregard forthe rights or safety of the [respondent]." R.T. at 14,796. "Oppression" was defined as "subjecting a person to cruel and unjust hardship in conscious disregard of that person's rights." Ibid. Under the foregoing instructions, it is not realistic to assume that the jury's award of punitive damages in this case was based, even in part, on any activities by the petitioner that were legitimate objects of First Amendment protection. CeRainly, punitive damages were not imposed as a result of Scientology providing its "central, peaceful religious practices" to a willing parishioner. Cf., Gertz. supra, 418 U.S. at 350 @unitive damages may be recovered by a libel plaintiff where the "actual malice" standard ofliability is met). basic docs Nov 93\3-27-90\Page.00018 13 V. Petitioner's Due Process Rights Were Not Violated By The Jury's Award Of Punitive Damages, Substantially Reduced By The Court Of Appeal, In at least five Petitions for Writ of CeRiorari filed and decided since this Court's decision last Term in Braoning-Ferris Industries, Inc. v. Kelco Disposal, Inc., U.S. , 109 S. Ct. 2909 (1989), petitioners have asked this Court to resolve the question whether the Due Process Clause imposes substantive or procedural limits on jury awards of punitive damages. See, e.g., Vintage Enterprises, Inc. v. Jaye, No. 89456, cert. denied, U.S. 110 S. Ct. 377 (1989); Clar~fy v. Sanders, No.89440, cert. denied, U.S. , 110 S. Ct. 376 (1989); Combined Insurance Co. of America v. Ainsworth, No. 89-282, cert. denied, U.S. 110 S. Ct. 376 (1989); Volkswagen ofAmerica, Inc. v. Gibbs, No. 89-228, cert. denied, U.S. , 110 S. Ct. 418 (1989); Alcolac Inc. v. Elam, No. 88-1992, cert. denied, U.S. . ll0 S. Ct. 69 (1989). This Court denied the petitions in each of these cases, and should deny this Petition as well. This case does not even p~sent the question whether the Due Process Clause may be violated by rules of law that permit juries unbridled discretion to award punitive damages, without adequate judicial guidance or conuol. Rather, the Court of Appeal in this case clearly imposed substantive limits on the jury's discretion to award punitive damages. In reducing the jury's award of punitive damages from $25 million to $2 million, the Court was guided by a three-factor test adopted in prior Califomia appellate decisions evaluating jury awards of punitive damages. Thus, the reduction of thejury's award in this case was premised on the Court of Appeal's independent as- sessment of the "degree of reprehensibility of the [petitioner's] conduct," the ratio of compensatory damages to punitive damages, and the relationship ofthe award to the petitioner's net worth. See Pet. App. at 42a43a.' ~he respondent has challenged the Court of Appeal's application of those criteria to the facts of this case. See footnote 5 supra. basic docs Nov 93\3-27-90\Page.00019 14 In somejurisdictions, reviewing courts are not empowered to adjust a jury's award of punitive damages based on a lack of propor- tionality to the compensatory damages suffered by the plaintiff. That is not the law in Califomia, however, as demonstrated by the opinion below. Thus, this case does not present an appropriate occasion for this Court to seek to resolve the Due Process questions left unan- swered in Browning-Ferris. CONCLUSION The petition for writ of certiorari should be denied. Respectfully submitted, WILLIAM JAMES MURPHY Counsel of Record MURPHY & McDANIEL 118 West Mulberry Street Baltimore, Maryland 21201 (301) 685-3810 Attorneys for Respondent Larry Wollersheim Dated: March 27, 1990 basic docs Nov 93\3-27-90\Page.00019 14 In somejurisdictions, reviewing courts are not empowered to adjust a jury's award of punitive damages based on a lack of propor- tionality to the compensatory damages suffered by the plaintiff. That is not the law in Califomia, however, as demonstrated by the opinion below. Thus, this case does not present an appropriate occasion for this Court to seek to resolve the Due Process questions left unan- swered in Browning-Ferris. CONCLUSION The petition for writ of certiorari should be denied. Respectfully submitted, WILLIAM JAMES MURPHY Counsel of Record MURPHY & McDANIEL 118 West Mulberry Street Baltimore, Maryland 21201 (301) 685-3810 Attorneys for Respondent Larry Wollersheim Dated: March 27, 1990 ================================================================= If this is a copyrighted work, you are acknowledging by receipt of this document from FACTNet that on the basis of reasonable investigation, you have not been to obtain a copy elsewhere at a fair price, and that you are and will abide by the following copyright warning. WARNING CONCERNING COPYRIGHT RESTRICTIONS: The copyright law of the United States (Title 17, United States Code) governs the making of photo copies or other reproductions of copyrighted material. Under certain conditions specified by law, libraries and archives are authorized to furnish a photocopy or other reproduction. 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