**********************************03255************************** ******** CITATION: 58 Cal. App. 3d 439 PAGE 2 58 Cal. App. 3d 439 printed in FULL format. L. GENE ALLARD, Plaintiff, Cross-defendant and Respondent, v. CHURCH OF SCIENTOLOGY OF CALIFORNIA, Defendant, Cross-complainant and Appellant ALLARD v. CHURCH OF SCIENTOLOGY OF CALIFORNIA Civ. No. 45562 Court of Appeals of California, Second Appellate District, Division Two 58 Cal. App. 3d 439; 129 Cal. Rptr. 797 May 18, 1976 SUBSEQUENT HISTORY: A petition for a rehearing was denied June 17, 1976, and the petitions of both parties for a hearing by the Supreme Court were denied July 15, 1976. PRIOR HISTORY: Superior Court of Los Angeles County, No. 988151, Parks Stillwell, Judge. DISPOSITION: The judgment is modified by reducing the award of punitive damages only, from $ 250,000 to the sum of $ 50,000. As modified the judgment is in all other respects affirmed. Costs on appeal are awarded to respondent Allard. COUNSEL: Morgan, Wenzel & McNicholas, John P. McNicholas, Gerald E. Agnew, Jr., and Charles B. O'Reilly for Plaintiff, Cross-defendant and Respondent. Levine & Krom, Meldon E. Levine, Murchison, Cumming, Baker & Velpmen, Murchison, Cumming & Baker, Michael B. Lawler, Tobias C. Tolzmann and Joel Kreiner for Defendant, Cross-complainant and Appellant. JUDGES: Opinion by Beach, J., with Roth, P. J., and Fleming, J., concurring. OPINIONBY: BEACH OPINION: [*443] [**799] Gene Allard sued the Church of Scientology for malicious prosecution. Defendant cross-complained for conversion. A jury verdict and judgment were entered for Allard on the complaint for $ 50,000 in compensatory damages and $ 250,000 in punitive damages. Judgment was entered for Allard and against the Church of Scientology on the cross-complaint. Defendant-cross complainant appeals from the judgment. Facts: The evidence in the instant case is very conflicting. We relate those facts supporting the successful party and disregard the contrary showing. (Nestle v. City of Santa Monica, 6 Cal.3d 920, 925-926 [101 Cal.Rptr. 568, 496 P.2d 480].) In March 1969, L. Gene Allard became involved with the Church of Scientology in Texas. He joined Sea Org in Los Angeles [**800] and was sent to San Diego for training. While there, he signed a billion-year contract agreeing PAGE 3 58 Cal. App. 3d 439, *443; 129 Cal. Rptr. 797, **800 LEXSEE to do anything to help Scientology and to help clear the planet of the "reactive people." During this period he learned about written policy directives that were the "policy" of the church, emanating from L. Ron Hubbard, the founder of the Church of Scientology. n1 After training on the ship, respondent was assigned to the Advanced Organization in Los Angeles, where he became the director of disbursements. He later became the Flag Banking Officer. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 One such policy, to be enforced against "enemies" or "suppressive persons" was that formerly titled "fair game." That person "[may] be deprived of property or injured by any means by any Scientologist without any discipline of the Scientologist. May be tricked, sued or lied to or destroyed." (Exhibit 1.) - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*444] Alan Boughton, Flag Banking Officer International, was respondent's superior. Only respondent and Boughton knew the combination to the safe kept in respondent's office. Respondent handled foreign currency, American cash, and various travelers' checks as part of his job. In May or June 1969, respondent told Boughton that he wanted to leave the church. Boughton asked him to reconsider. Respondent wrote a memo and later a note; he spoke to the various executive officers. They told him that the only way he could get out of Sea Org was to go through "auditing" and to get direct permission from L. Ron Hubbard. Respondent wrote to Hubbard. A chaplain of the church came to see him. Lawrence Krieger, the highest ranking justice official of the church in California, told respondent that if he left without permission, he would be fair game and "You know we'll come and find you and we'll bring you back, and we'll deal with you in whatever way is necessary." On the night of June 7 or early morning of June 8, 1969, respondent went to his office at the Church of Scientology and took several documents from the safe. These documents were taken by him to the Internal Revenue Service in Kansas City; he used them to allege improper changes in the records of the church. He denies that any Swiss francs were in the safe that night or that he took such Swiss francs. Furthermore, respondent denies the allegation that he stole various travelers' checks from the safe. He admitted that some travelers' checks had his signature as an endorsement, but maintains that he deposited those checks into an open account of the Church of Scientology. There is independent evidence that tends to corroborate that statement. Respondent, having borrowed his roommate's car, drove to the airport and flew to Kansas City, where he turned over the documents to the Internal Revenue Service. Respondent was arrested in Florida upon a charge of grand theft. Boughton had called the Los Angeles Police Department to report that $ 23,000 in Swiss francs was missing. Respondent was arrested in Florida; he waived extradition and was in jail for 21 days. Eventually, the charge was dismissed. The deputy district attorney in Los Angeles recommended a dismissal in the interests of justice. n2 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2 Leonard J. Shaffer, the deputy district attorney, testified outside the presence of the jury that members of the church were evasive in answering his PAGE 4 58 Cal. App. 3d 439, *444; 129 Cal. Rptr. 797, **800 LEXSEE questions. He testified that the reasons for the dismissal were set forth in his recommendation; the dismissal was not part of a plea bargain or procedural or jurisdictional issue. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*445] Contentions on Appeal: 1. Respondent's trial counsel engaged in flagrant misconduct throughout the proceedings below and thereby deprived appellant of a fair trial. 2. The verdict below was reached as a result of (a) counsel's ascription to appellant of a religious belief and practices it did not have and (b) the distortion and disparagement of its religious character, and was not based upon the merits of this case. To allow a judgment thereby achieved to stand would constitute a violation of appellant's free exercise of religion. [**801] 3. Respondent failed to prove that appellant maliciously prosecuted him and therefore the judgment notwithstanding the verdict should have been granted. 4. The refusal of the trial court to ask or permit voir dire questions of prospective jurors pertaining to their religious prejudices or attitudes deprived appellant of a fair trial. 5. It was prejudicial error to direct the jury, in its assessment of the malicious prosecution claim, to disregard evidence that respondent stole appellant's Australian and American Express travelers' checks. 6. The order of the trial court in denying to appellant discovery of the factual basis for the obtaining of a dismissal by the district attorney of the criminal case People v. Allard was an abuse of discretion and a new trial should be granted and proper discovery permitted. 7. Respondent presented insufficient evidence to support the award of $ 50,000 in compensatory damages which must have been awarded because of prejudice against appellant. 8. Respondent failed to establish corporate direction or ratification and also failed to establish knowing falsity and is therefore not entitled to any punitive damages. 9. Even if the award of punitive damages was proper in this case, the size of the instant reward, which would deprive appellant church of more [*446] than 40 percent of its net worth, is grossly excessive on the facts of this case. 10. There was lack of proper instruction regarding probable cause. n3 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n3 This issue is raised for the first time in appellant's reply brief. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Discussion: PAGE 5 58 Cal. App. 3d 439, *446; 129 Cal. Rptr. 797, **801 LEXSEE 1. There was no prejudicial misconduct by respondent's trial counsel, and appellant was not deprived of a fair trial. Appellant claims that it was denied a fair trial through the statements, questioning, and introduction of certain evidence by respondent's trial counsel. Love v. Wolf, 226 Cal.App.2d 378 [38 Cal.Rptr. 183], is cited as authority. We have reviewed the entire record and find appellant's contentions to be without merit. Several of counsel's individual statements and questions were inappropriate. However, there often were no objections by counsel for appellant where an objection and subsequent admonition would have cured any defect; or there was an objection, and the trial court judiciously admonished the jury to disregard the comment. Except for these minor and infrequent aberrations, the record reveals an exceptionally well-conducted and dispassionate trial based on the evidence presented. As in Stevens v. Parke, Davis & Co., 9 Cal.3d 51, 72 [107 Cal.Rptr. 45, 507 P.2d 653], a motion for a new trial was made, based in part upon the alleged misconduct of opposing counsel at trial. What was said in Stevens applies to the instant case. "'A trial judge is in a better position than an appellate court to determine whether a verdict resulted wholly, or in part, from the asserted misconduct of counsel and his conclusion in the matter will not be disturbed unless, under all the circumstances, it is plainly wrong.' [Citation.] From our review of the instant record, we agree with the trial judge's assessment of the conduct of plaintiff's counsel and for the reasons stated above, we are of the opinion that defendant has failed to demonstrate prejudicial misconduct on the part of such counsel." (Stevens v. Parke, Davis & Co., supra, 9 Cal.3d at p. 72.) 2. The procedure and verdict below does not constitute a violation of appellant's First Amendment free exercise of religion. [*447] Appellant contends that various references to practices of the Church of Scientology were not supported by the evidence, were not legally relevant, and were unduly prejudicial. The claim is made that the [**802] trial became one of determining the validity of a religion rather than the commission of a tort. The references to which appellant now objects were to such practices as "E-meters," tin cans used as E-meters, the creation of religious doctrine purportedly to "get" dissidents, and insinuations that the Church of Scientology was a great money making business rather than a religion. The principal issue in this trial was one of credibility. If one believed defendant's witnesses, then there was indeed conversion by respondent. However, the opposite result, that reached by the jury, would naturally follow if one believed the evidence introduced by respondent. Appellant repeatedly argues that the introduction of the policy statements of the church was prejudicial error. However, those policy statements went directly to the issue of credibility. Scientologists were allowed to trick, sue, lie to, or destroy "enemies." (Exhibit 1.) If, as he claims, respondent was considered to be an enemy, that policy was indeed relevant to the issues of this case. That evidence well supports the jury's implied conclusion that respondent had not taken the property of the church, that he had merely attempted to leave the church with the documents for the Internal Revenue Service, and that those PAGE 6 58 Cal. App. 3d 439, *447; 129 Cal. Rptr. 797, **802 LEXSEE witnesses who were Scientologists or had been Scientologists were following the policy of the church and lying to, suing and attempting to destroy respondent. Evidence of such policy statements were damaging to appellant, but they were entirely relevant. They were not prejudicial. A party whose reprehensible acts are the cause of harm to another and the reason for the lawsuit by the other cannot be heard to complain that its conduct is so bad that it should not be disclosed. The relevance of appellant's conduct far outweighs any claimed prejudice. n4 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n4 The trial court gave appellant almost the entire trial within which to produce evidence that the fair game policy had been repealed. Appellant failed to do so, and the trial court thereafter permitted the admission of Exhibit 1 into evidence. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - We find the introduction of evidence of the policy statements and other peripheral mention of practices of the Church of Scientology not to be error. In the few instances where mention of religious practices may have been slightly less germane than the policy statements regarding fair game, they were nonetheless relevant and there was no prejudice to appellant by the introduction of such evidence. [*448] 3. The trial court properly denied the motion for judgment notwithstanding the verdict. Appellant claimed that it had probable cause to file suit against respondent. The claim is made that even if Alan Boughton did take the checks from the safe, knowledge of that act should not be imputed to appellant church. Based on the policy statements of appellant that were introduced in evidence, a jury could infer that Boughton was within the scope of his employment when he stole the francs from the safe or lied about respondent's alleged theft. Inferences can be drawn that the church, through its agents, was carrying out its own policy of fair game in its actions against respondent. Given that view of the evidence, which as a reviewing court we must accept, there is substantial evidence proving that appellant maliciously prosecuted respondent. Therefore, the trial court did not err in denying the motion for the judgment notwithstanding the verdict. 4. The trial court performed proper voir dire of prospective jurors. Appellant claims that the trial court refused to ask or permit voir dire questions of prospective jurors pertaining to their religious prejudices or attitudes. The record does not so indicate. Each juror was asked if he or she had any belief or feeling toward any of the parties that might be regarded as a bias or prejudice for or [**803] against any of them. Each juror was also asked if he or she had ever heard of the Church of Scientology. If the juror answered affirmatively, he or she was further questioned as to the extent of knowledge regarding Scientology and whether such knowledge would hinder the rendering of an impartial decision. One juror was excused when she explained that her husband is a clergyman and that she knows a couple that was split over the Church of Scientology. PAGE 7 58 Cal. App. 3d 439, *448; 129 Cal. Rptr. 797, **803 LEXSEE The trial court's thorough questioning served the purpose of voir dire, which is to select a fair and impartial jury, not to educate the jurors or to determine the exercise of peremptory challenges. (Rousseau v. West Coast House Movers, 256 Cal.App.2d 878, 882 [64 Cal.Rptr. 655].) 5. It was not prejudicial error to direct the jury, in its assessment of the malicious prosecution claim, to disregard evidence that respondent stole appellant's Australian and American Express travelers' checks. [*449] Appellant submits that evidence of respondent's purported theft of the Australian and American Express travelers' checks should have been admitted as to the issue of malicious prosecution as well as the cross-complaint as to conversion. If there were any error in this regard, it could not possibly be prejudicial since the jury found for respondent on the cross-complaint. It is evident that the jury did not believe that respondent stole the travelers' checks; therefore, there could be no prejudice to appellant by the court's ruling. 6. Appellant suffered no prejudice by the trial court's denial of discovery of the factual basis for obtaining of the dismissal by the district attorney. Prior to trial, appellant apparently sought to discover the reasons underlying the dismissal of the criminal charges against respondent. This was relevant to the instant case since one of the elements of a cause of action for malicious prosecution is that the criminal prosecution against the plaintiff shall have been favorably terminated. (Jaffe v. Stone, 18 Cal.2d 146 [114 P.2d 335, 135 A.L.R. 775].) Whether or not the lower court was justified in making such an order, the denial of discovery along these lines could not be prejudicial. During the trial, counsel for all parties stipulated that the criminal proceedings against Allard were terminated in his favor by a dismissal by a judge of that court upon the recommendation of the district attorney. In addition, there was a hearing outside the presence of the jury in which the trial court inquired of the deputy district attorney as to the reasons for the dismissal. It was apparent at that time that the prospective witnesses for the Church of Scientology were considered to be evasive. There was no prejudice to appellant since the deputy district attorney was available at trial. Earlier knowledge of the information produced would not have helped defendant. We find no prejudicial error in the denial of this discovery motion. 7. The award of $ 50,000 compensatory damages was proper. Appellant contends that based upon the evidence presented at trial, the compensatory damage award is excessive. In addition, appellant contends that the trial court erred in not allowing appellant to introduce evidence of respondent's prior bad reputation. [*450] There was some discussion at trial as to whether respondent was going to claim damaged reputation as part of general damages. The trial court's initial reaction was to allow evidence only of distress or emotional disturbance; in return for no evidence of damaged reputation, appellant would not be able to introduce evidence of prior bad reputation. The court, however, relying on the case of Clay v. Lagiss, 143 Cal.App.2d 441 [299 P.2d 1025], PAGE 8 58 Cal. App. 3d 439, *450; 129 Cal. Rptr. 797, **803 LEXSEE held that lack of damage to reputation is not admissible. Therefore, respondent was allowed to claim damage to reputation without allowing appellant to introduce evidence of his prior bad reputation. [**804] In matters of slander that are libelous per se, for example the charging of a crime, general damages have been presumed as a matter of law. (Douglas v. Janis, 43 Cal.App.3d 931, 940 [4] [118 Cal.Rptr. 280], citing Clay v. Lagiss, supra, 143 Cal.App.2d at p. 448. Compare Gertz v. Robert Welch, Inc., 418 U.S. 323 [41 L.Ed.2d 789, 94 S.Ct. 2997].) n5 Damages in malicious prosecution actions are similar to those in defamation. Therefore, damage to one's reputation can be presumed from a charge, such as that in the instant case that a person committed the crime of theft. In any event, as the trial court in the instant case noted, there was no offer of proof regarding respondent's prior bad reputation; any refusal to allow possible evidence on that subject has not been shown to be error, much less prejudicial error. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n5 The Supreme Court held in Gertz v. Robert Welch, Inc., supra, 418 U.S. 323, 349 [41 L.Ed.2d 789, 810], an action for defamation, that "the States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth." (Italics added.) The instant case is distinguishable from Gertz. Initially, the interests protected by a suit for malicious prosecution include misuse of the judicial system itself; a party should not be able to claim First Amendment protection maliciously to prosecute another person. Secondly, the jury in the instant case must have found "knowledge of falsity or reckless disregard for the truth" in order to award punitive damages herein. Therefore, even under Gertz, a finding of presumed damages is not unconstitutional. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Appellant further contends that the amount of compensatory damages awarded was excessive and that the jury was improperly instructed regarding compensatory damages. The following modified version of BAJI Nos. 14.00 and 14.13 was given: "If, under the court's instructions, you find that plaintiff is entitled to a verdict against defendant, you must then award plaintiff damages in an amount that will reasonably compensate him for each of the following elements of loss or harm, which in this case are presumed to flow from [*451] the defendant's conduct without any proof of such harm or loss: damage to reputation, humiliation and emotional distress. "No definite standard or method of calculation is prescribed by law to fix reasonable compensation for these presumed elements of damage. Nor is the opinion of any witness required as to the amount of such reasonable compensation. Furthermore, the argument of counsel as to the amount of damages is not evidence of reasonable compensation. In making an award for damage to reputation, humiliation and emotional distress, you shall exercise your authority with calm and reasonable judgment, and the damages you find shall be just and reasonable." The following instruction was requested by defendant and was rejected by the trial court: "The amount of compensatory damages should compensate plaintiff for actual injury suffered. The law will not put the plaintiff in a better PAGE 9 58 Cal. App. 3d 439, *451; 129 Cal. Rptr. 797, **804 LEXSEE position than he would be in had the wrong not been done." Accompanying the request for that motion is a citation to Staub v. Muller, 7 Cal.2d 221 [60 P.2d 283], and Basin Oil Co. v. Baash-Ross Tool Co., 125 Cal.App.2d 578 [271 P.2d 122]. The Supreme Court has recognized that "Damages potentially recoverable in a malicious prosecution action are substantial. They include out-of-pocket expenditures, such as attorney's and other legal fees . . .; business losses . . .; general harm to reputation, social standing and credit . . .; mental and bodily harm . . .; and exemplary damages where malice is shown . . . ." (Babb v. Superior Court, 3 Cal.3d 841, 848, fn. 4 [92 Cal.Rptr. 179, 479 P.2d 379].) While these damages are compensable, it is the determination of the damages by the jury with which we are concerned. Appellant seems to contend that the jury must have actual evidence of the damages suffered and the monetary amount thereof. [**805] "'The determination of the jury on the issue of damages is conclusive on appeal unless the amount thereof is so grossly excessive that it can be reasonably imputed solely to passion or prejudice in the jury. [Citations.]'" (Douglas v. Janis, supra, 43 Cal.App.3d at p. 940.) The presumed damage to respondent's reputation from an unfounded charge of theft, along with imprisonment for 21 days, and the mental and emotional anguish that must have followed are such that we cannot say that the jury's finding of $ 50,000 in compensatory damages is unjustified. [*452] The amount does not alone demonstrate that it was the result of passion and prejudice. 8. Respondent is entitled to punitive damages. Appellant cites the general rule that although an employer may be held liable for an employee's tort under the doctrine of respondeat superior, ordinarily he cannot be made to pay punitive damages where he neither authorized nor ratified the act. (4 Witkin, Summary of Cal. Law. (8th ed.) @ 855, p. 3147.) n6 Appellant claims that the Church of Scientology, which is the corporate defendant herein, never either authorized or ratified the malicious prosecution. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n6 We again note that Gertz v. Robert Welch, Inc., supra, precludes the award of punitive damages in defamation actions "at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth." The facts of the instant case fall within that categorization, so a finding of punitive damages was proper. Moreover, as we noted above, an egregious case of malicious prosecution subjects the judicial system itself to abuse, thereby interfering with the constitutional rights of all litigants. Punitive damages may therefore be more easily justified in cases of malicious prosecution than in cases of defamation. The societal interests competing with First Amendment considerations are more compelling in the former case. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The finding of authorization may be based on many grounds in the instant case. For example, the fair game policy itself was initiated by L. Ron Hubbard, the founder and chief official in the church. (Exhibit 1.) It was an official authorization to treat "enemies" in the manner in which respondent herein was treated by the Church of Scientology. PAGE 10 58 Cal. App. 3d 439, *452; 129 Cal. Rptr. 797, **805 LEXSEE Furthermore, all the officials of the church to whom respondent relayed his desire to leave were important managerial employees of the corporation. (See 4 Witkin, Summary of Cal. Law (8th ed.) supra, @ 857, p. 3148.) The trier of fact certainly could have found authorization by the corporation of the act involved herein. 9. The award of punitive damages. Any party whose tenets include lying and cheating in order to attack its "enemies" deserves the results of the risk which such conduct entails. On the other hand, this conduct may have so enraged the jury that the award of punitive damages may have been more the result of [*453] feelings of animosity, rather than a dispassionate determination of an amount necessary to assess defendant in order to deter it from similar conduct in the future. In our view the disparity between the compensatory damages ($ 50,000) and the punitive damages ($ 250,000) suggests that animosity was the deciding factor. Our reading of the decisional authority compels us to conclude that we should reduce the punitive damages. We find $ 50,000 to be a reasonable amount to which the punitive damages should be reduced. We perceive this duty, and have so modified the punitive damages award not with any belief that a reviewing court more ably may perform it. n7 Simply stated the decisional authority seems to indicate that the reviewing court should examine punitive damages and where necessary modify the amount in order [**806] to do justice. (Cunningham v. Simpson, 1 Cal.3d 301 [81 Cal.Rptr. 855, 461 P.2d 39]; Forte v. Nolfi, 25 Cal.App.3d 656 [102 Cal.Rptr. 455]; Shroeder v. Auto Driveaway Company, 11 Cal.3d 908 [114 Cal.Rptr. 622, 523 P.2d 662]; Livesey v. Stock, 208 Cal. 315, 322 [281 P. 70].) - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n7 See dissent in Cunningham v. Simpson, 1 Cal.3d 301 [81 Cal.Rptr. 855, 461 P.2d 39]. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - 10. Instruction on probable cause. Appellant requested an instruction stating: "Where it is proven that a judge has had a preliminary hearing and determined that the facts and evidence show probable cause to believe the plaintiff guilty of the offense charged therefore, ordering the plaintiff to answer a criminal complaint, this is prima facie evidence of the existence of probable cause." The trial court gave the following instruction: "The fact that plaintiff was held to answer the charge of grand theft after a preliminary hearing is evidence tending to show that the initiator of the charge had probable cause. This fact is to be considered by you along with all the other evidence tending to show probable cause or the lack thereof." n8 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n8 This instruction was given on the court's own motion. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - PAGE 11 58 Cal. App. 3d 439, *453; 129 Cal. Rptr. 797, **806 LEXSEE Appellant claimed for the first time in its reply brief that the trial court's lack of proper instruction regarding probable cause was prejudicial error. Since this issue was raised for the first time in appellant's reply brief, we decline to review the issue. n9 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n9 We note that given the circumstances of the instant case, the juror could have easily been misled by the requested instruction. If the evidence showed that the agents and employees of appellant were lying, then the preliminary hearing at which they also testified would not be valid. While the jurors may of course consider that the magistrate at the preliminary hearing found probable cause, that should be in no way conclusive in the jury's determination of probable cause. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*454] The judgment is modified by reducing the award of punitive damages only, from $ 250,000 to the sum of $ 50,000. As modified the judgment is in all other respects affirmed. Costs on appeal are awarded to respondent Allard. PAGE 12 DATE: JANUARY 6, 1995 CITATION: 32 Cal. 3d 163 PAGE 13 32 Cal. 3d 163 printed in FULL format. MERRELL VANNIER et al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; THE PEOPLE, Real Party in Interest VANNIER v. SUPERIOR COURT OF LOS ANGELES CTY. L.A. No. 31418 Supreme Court of California 32 Cal. 3d 163; 650 P.2d 302; 185 Cal. Rptr. 427 August 26, 1982 DISPOSITION: The alternative writ is discharged, and the peremptory writ is denied. COUNSEL: Barrett S. Litt and H. Peter Young for Petitioners. No appearance for Respondent. John K. Van de Kamp, District Attorney, Harry B. Sondheim and John W. Messer, Deputy District Attorneys, for Real Party in Interest. JUDGES: Opinion by Broussard, J., with Mosk, Richardson, Newman, Kaus and Reynoso, JJ., concurring. Separate concurring and dissenting opinion by Bird, C. J. OPINIONBY: BROUSSARD OPINION: [*167] [**303] [***428] Petitioners Merrell and Francine Vannier seek writs of prohibition and mandate to compel respondent court to vacate an order directing them to appear as witnesses before the grand jury in Pinellas County, Florida. A judge of the Circuit Court for Pinellas County, Florida, issued and filed material witness certificates for petitioners, California residents, seeking their appearance before the county grand jury on three specified days. The certificates were issued pursuant to Florida Statutes section 942.03, that state's version of the Uniform Act to Secure the Attendance of Witnesses From Without a State in Criminal Proceedings. The certificates state that petitioners were material and necessary witnesses who would give testimony which was relevant and material to a grand jury investigation. The certificates are based on an affidavit of Denis J. Quilligan, the chief investigator for the State Attorney of the Sixth Judicial District of Florida, encompassing Pinellas County and the Cities of St. Petersburg and Clearwater. The affidavit states that the grand jury is about to commence an investigation into possible criminal activities of the Church of Scientology and its members. The United States government has publicly released [*168] documents seized in California in 1977 pursuant to a search warrant. The documents show repeated plans by church officials to discredit Pinellas County organizations, government offices and individuals which were critical of the church. The documents indicate detailed plans by church officials to falsely accuse a local newspaper reporter with sexually assaulting a young boy, to PAGE 14 32 Cal. 3d 163, *168; 650 P.2d 302, **303; LEXSEE 185 Cal. Rptr. 427, ***428 deliver an apparent bribe from organized crime figures to the office of a reporter of another local newspaper, to charge the Mayor of Clearwater with involvement in a faked automobile accident and to frame him for a charge of bigamy based on bribes and falsification of records. The documents also indicate a plan to infiltrate the state attorney's office and penetrate other local government offices. The affidavit also states that based on information secured pursuant to the search warrant, nine church officials were convicted in Washington, D.C. of such crimes as conspiracy to obstruct justice, conspiracy to burglarize government [***429] offices and steal government documents, and theft of government property. [**304] According to the affidavit, petitioners are church members who moved to Pinellas County in 1976 and left in September of 1977. Merrell, an attorney, applied for a position as assistant state attorney, and while his application was pending he was in the office on a daily basis. During this period a portable radio tuned to the radio band used for office communications was stolen, and subsequent investigation has failed to reveal anyone else who had both a motive and the opportunity to take the radio. Information has been received that documents of the state attorney's office are in the possession of church members and that some individual has infiltrated the office. Merrell was subsequently hired by a local private law firm which was representing the mayor in litigation with the church. Without revealing his membership in the church, he attempted to have the mayor drop the case and apologize. Francine worked for a law firm which was handling litigation between a local newspaper and the church, and confidential documents from the law firm file were seized from the church in the execution of the 1977 search warrant. Upon learning that the Los Angeles District Attorney's office was seeking to speak with them, petitioners appeared voluntarily and accepted service of an order to appear at a hearing on the Florida request. Petitioners filed a written motion to compel disclosure whether California, Florida or federal authorities had engaged in electronic surveillance of communications involving either of them. It was asserted on information [*169] and belief that the Quilligan affidavit and the questions the grand jury intends to propound are products of illegal electronic surveillance. At the subsequent hearing, petitioners were found to be material and necessary witnesses and ordered to appear before the grand jury. They were provided with round-trip air transportation and $ 117 each to cover the cost of surface transportation and daily maintenance while en route to and in Florida. Although petitioners' motion to compel disclosure of electronic surveillance was argued at the hearing, the trial court did not specifically rule on the motion. The Uniform Act The Legislature has adopted the Uniform Act to Secure the Attendance of Witnesses From Without the State in Criminal Cases. (Pen. Code, @ 1334 et seq.) Florida has adopted similar legislation. (Fla. Stats., @ 942 et seq.) Penal Code section 1334.2 provides that a person shall be required to appear at a hearing upon receipt of a certificate of a court of another state, which has similar legislation, asserting that the person is a material witness in a criminal prosecution or grand jury investigation. At the hearing it shall be PAGE 15 32 Cal. 3d 163, *169; 650 P.2d 302, **304; LEXSEE 185 Cal. Rptr. 427, ***429 determined whether the witness is "material and necessary," whether it will cause undue hardship to compel him to testify in the requesting state, whether under the law of the requesting state the witness will be protected from arrest and service of civil and criminal process, and whether witness fees, expenses, and per diem will be paid. When, as in the instant case, the witness elects to travel by air, he is entitled to the minimum round trip scheduled airlines fare, 20 cents per mile for necessary surface travel at either end of the flight, $ 20 for each day of required travel or attendance as a witness, and reimbursement for any additional expenses which the judge of the requesting court shall find reasonable and necessary. The section also states that in the hearing, the other court's certificate "shall be prima facie evidence of all the facts stated therein." n1 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 Penal Code section 1334.2 provides: "If a judge of a court of record in any state, which by its laws has made provision for commanding persons within that state to attend and testify in this state, issues a certificate under the seal of the court that there is a criminal prosecution pending in the court, or that there is a grand jury investigation, that a person within this state is a material witness in such prosecution or grand jury investigation, and that his presence will be required for a specified number of days, then, upon presentation of the certificate to a judge of a court of record in the county in which the person is, a time and place for a hearing shall be fixed by the judge and he shall make an order directing the witness to appear at the hearing. "If at the hearing, the judge determines that the witness is material and necessary, that it will not cause undue hardship to the witness to be compelled to attend and testify in the prosecution or grand jury investigation in the other state, and that the laws of the state, in which the prosecution is pending or in which there is a grand jury investigation, will give to the witness protection from arrest and service of civil and criminal process and will furnish in advance to the witness the sum of ten cents ($ 0.10) for each mile necessarily traveled if the witness elects surface travel or the minimum round trip scheduled airlines fare plus twenty cents ($ 0.20) a mile for necessary surface travel at either end of the flight if the witness elects air travel, and per diem of twenty dollars ($ 20) for each day that he is required to travel and attend as a witness and that the judge of the court in which the witness is ordered to appear will order the payment of witness fees authorized by law for each day the witness is required to attend the court plus reimbursement for any additional expenses of the witness which the judge of the court in which the witness is ordered to appear shall find reasonable and necessary, he shall issue a subpoena, with a copy of the certificate attached, directing the witness to attend and testify in the court where the prosecution is pending, or where the grand jury investigation is, at a time and place specified in the subpoena. In any such hearing the certificate shall be prima facie evidence of all the facts stated therein. "If the certificate recommends that the witness be taken into immediate custody and delivered to an officer of the requesting state to assure his attendance therein, the judge may, in lieu of notification of the hearing, direct that the witness be forthwith brought before him for the hearing. PAGE 16 32 Cal. 3d 163, *169; 650 P.2d 302, **304; LEXSEE 185 Cal. Rptr. 427, ***429 "If the judge at the hearing, is satisfied of the desirability of the custody and delivery, for which determination the certificate shall be prima facie proof of this desirability, he may, in lieu of issuing subpoena, order that the witness be forthwith taken into custody and delivered to an officer of the requesting state. "If the witness, who is subpoenaed as herein provided, after being paid or tendered by some properly authorized person the sum or fare, and per diem set forth in this section, fails without good cause to attend and testify as directed in the subpoena, he shall be punished in the manner provided for the punishment of any witness who disobeys a subpoena issued from a court of record in this state." - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*170] [**305] [***430] Validity Petitioners claim that the uniform act is invalid on its face in violation of article I, section 1 of the California Constitution because it represents an incursion on the liberty of the witness. n2 It is also urged that the act is invalid as applied to them because Florida has not demonstrated that it has a compelling and overriding interest in securing their attendance that may not be achieved by less restrictive means. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2 Article I, section 1 provides: "All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy." - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - In New York v. O'Neill (1959) 359 U.S. 1 [3 L.Ed.2d 585, 79 S.Ct. 564], the United States Supreme Court upheld the validity of the uniform act against challenges based on the privileges and immunities and [*171] due process clauses of the federal Constitution. The court pointed out that a "citizen cannot shirk his duty, no matter how inconvenienced thereby, to testify in criminal proceedings and grand jury investigations in a State where he is found" and that the limitation on liberty under the act is no greater than that imposed upon a material witness required to attend a criminal proceeding within the state. (359 U.S. at pp. 7, 11 [3 L.Ed.2d at pp. 589, 592].) The court stated that there "are restrictions on the exercise of the claimed constitutional right. One such restriction derives from the obligation to give testimony. This obligation has been sustained where it necessitated travel across the Atlantic Ocean. Blackmer v. United States, 284 U.S. 421. [ para. ] More fundamentally, this case does not involve freedom of travel in its essential sense. At most it represents a temporary interference with voluntary travel." (359 U.S. at pp. 7-8, fn. omitted [3 L.Ed.2d at pp. 589-590].) Citing New York v. O'Neill, this court recognized the validity of the act in People v. PAGE 17 32 Cal. 3d 163, *171; 650 P.2d 302, **305; LEXSEE 185 Cal. Rptr. 427, ***430 Cavanaugh (1968) 69 Cal.2d 262, 266, footnote 3 [70 Cal.Rptr. 438, 444 P.2d 110]. We are satisfied that the inalienable rights protected by article I, section 1 do [***431] not include a right to refuse to be a witness in judicial proceedings within the state. A [**306] judicial system with power to compel attendance of witnesses is essential to effective protection of the inalienable rights guaranteed by the section. Our Constitution has provided for witness rights and duties in other specific provisions (art. I, @@ 2, subd. (b), 4, 10, 13, 15), and a restriction on the inalienable rights of article I, section 1 is the obligation to attend and give testimony. Even if we assume that article I, section 1 protects liberty to travel and to refrain from travelling without the state, application of the strict scrutiny doctrine is not required. Both the United States Supreme Court and this court have recognized that not every limitation or incidental burden on a fundamental right is subject to the strict scrutiny doctrine. When the regulation merely has an incidental effect on the exercise of protected rights, strict scrutiny is not applied. The doctrine is applied only when there exists a real and appreciable impact on, or a significant interference with, the exercise of a fundamental right. (E.g., Zablocki v. Redhail (1978) 434 U.S. 374, 386-387 [54 L.Ed.2d 618, 630-631, 98 S.Ct. 673]; Fair Political Practices Com. v. Superior Court (1979) 25 Cal.3d 33, 47 [157 Cal.Rptr. 855, 599 P.2d 46].) The restriction imposed by the uniform act is not only temporary but also reasonable, and the act contains appropriate standards to prevent abuse. [*172] It is directed at the securing of testimony rather than regulation of travel and does not constitute a significant interference with travel rights. California has a fundamental interest in complying with the demands of other jurisdictions which have adopted similar legislation because the basis of the act is reciprocity, and compliance is essential to obtaining witnesses from other jurisdictions for California judicial proceedings. By providing a mechanism for securing witnesses, the act contributes to the protection of the inalienable rights recognized by article I, section 1, and we conclude that its limited restraint does not violate the section. Moreover, even if we assume that the strict scrutiny doctrine is applicable, we would reach the same conclusion. So far as appears, adoption of the uniform act is the only means to secure the state's fundamental interest in obtaining recalcitrant, out-of-state, "material and necessary" witnesses to testify in this state, and obviously the "material and necessary" limitation is precisely the measure of the fundamental interest. Testimony by way of deposition or answer to interrogatory while often valuable is not the equivalent of personal testimony, and the strict scrutiny doctrine does not require a state to sacrifice part of its fundamental interest. Petitioners also claim that the act is invalid in violation of their constitutional rights of confrontation and cross-examination. They point out that Penal Code section 1334.2 (see fn. 1) provides the certificate from the requesting state shall be "prima facie evidence of all the facts stated therein" at the hearing and that the act does not contemplate that officers of the requesting state will testify at the hearing. PAGE 18 32 Cal. 3d 163, *172; 650 P.2d 302, **306; LEXSEE 185 Cal. Rptr. 427, ***431 Petitioners are not criminal defendants. They are sought only as witnesses. While in the requesting state, they are immune from arrest and service of civil or criminal process in connection with matters arising prior to entry into the state. (Pen. Code, @@ 1334.2, 1334.4.) Affidavits are competent evidence where authorized by statute. (Tanzola v. De Rita (1955) 45 Cal.2d 1, 10 [285 P.2d 897]; McLellan v. McLellan (1972) 23 Cal.App.3d 343, 359 [100 Cal.Rptr. 258].) And affidavits have traditionally been used to obtain examination of a witness. (Code Civ. Proc., @ 2009.) Petitioners have cited no authority that an affidavit procedure may not be used to secure attendance of witnesses, and in view of the temporary restriction imposed by the uniform act, we conclude that the statutory affidavit procedure does not violate their [*173] constitutional rights. (Epstein v. People of State of New York (Fla.App. 1963) 157 So.2d 705, 707-708.) [***432] Material and Necessary Witnesses Section 1334.3 provides that the requesting court's certificate "shall be prima facie [**307] evidence of all the facts stated therein" (see fn. 1), and other jurisdictions have concluded that similar statutory provision permits the certificate to be framed in the statutory language without further showing the basis of the requesting judge's decision. (Epstein v. People of State of New York, supra, 157 So.2d 705, 707; see Appel v. State (1966) 243 Md. 218 [220 A.2d 301, 302-303].) It is unnecessary to determine whether the judge's certificate should be accepted as conclusive when, as here, no evidence is offered to show that the witnesses are not material or necessary. The certificate in the instant case incorporates an affidavit setting forth facts warranting the conclusion that the witnesses are likely to have information material and necessary to the grand jury inquiry. Florida seeks the witnesses for a grand jury investigation, not as criminal defendants or as witnesses in a criminal trial, and the scope of inquiry is obviously broad including both the determinations whether crimes have been committed and whether any persons should be charged. Although the affidavit does not indicate the testimony expected to be obtained from petitioners, to require such a showing would greatly impair the applicability of the uniform act precluding its use in most cases of uncooperative witnesses. Unaware of the testimony to be obtained, it is apparent that the Florida officials are not in a position to show that they cannot secure similar testimony from other sources. While the requirement that the witness be necessary makes the existence of cumulative evidence a relevant consideration (People v. Cavanaugh, supra, 69 Cal.2d 262, 269, 271), there is nothing to indicate that petitioners' testimony will be cumulative, and the lower court's determination that petitioners are material and necessary witnesses to the grand jury inquiry must be upheld. Cases such as People v. Cavanaugh, supra, 69 Cal.2d 262, relied upon by petitioner, do not establish that a showing that the evidence will not be cumulative is essential to determination that the witnesses are necessary. In that case it was held that a judge did not err in refusing [*174] to request Massachusetts to require two claimed alibi witnesses to be ordered to California. On the basis of questions prepared by defense counsel and propounded by a local attorney in Massachusetts to four claimed alibi witnesses, the court requested that two be ordered to California, and they testified. The judge concluded that the testimony of the other two would be cumulative, but PAGE 19 32 Cal. 3d 163, *174; 650 P.2d 302, **307; LEXSEE 185 Cal. Rptr. 427, ***432 he permitted the questions propounded to them and their responses to be read to the jury. It was held that the judge's ruling was within his discretion. Cavanaugh and similar cases relied upon differ from the instant case in that here both the requesting and ordering courts have determined that the witnesses are material and necessary and that there is no showing in the instant case that the witnesses' testimony will be cumulative. Compensation Pointing out that the Florida statute provides lesser per diem and travel allowances than the California statute, petitioners claim that the reciprocity contemplated by Penal Code section 1334.2 is absent. However, the reciprocity provision of the section requires only that the state "by its laws has made provision for commanding persons within the state to attend and testify in this state." The reciprocity provision does not require that the statutory payment provisions be identical. Section 1334.2 requires that the judge determine that the requesting state will pay in advance certain travel expenses and per diem allowances, "and that the judge of the court in which the witness is ordered to appear will order the payment of witness fees authorized by law for each day the witness is required to attend the court plus reimbursement for any additional expenses of the witness which the judge of the court [***433] in which the witness is ordered to appear shall find reasonable and necessary." (Italics added.) The travel allowance and per diem provided for petitioners are in [**308] accord with the California statute. It is not claimed that Florida will refuse to pay any witness fees mandated by its law; petitioners' position is that there is no assurance that Florida will reimburse them for additional expenses. However, the additional expenses are to be reimbursed after the Florida judge finds them to be reasonable and necessary. The Florida Supreme Court has acknowledged that courts have inherent power to pay necessary witness expenses (Rose v. Palm Beach Cty. (Fla. 1978) 361 So.2d 135, 137-139), and in the absence of any evidence that Florida courts are refusing reimbursement of witness expenses they have found to be reasonable and [*175] necessary, there is no basis for a conclusion that the courts will refuse reimbursement for "additional expenses." Electronic Surveillance Preliminarily, the People assert that petitioners may not raise the issue of electronic surveillance because they did not obtain a trial court ruling on their motion to disclose electronic surveillance. Since the motion asserted that the affidavit was a product of illegal electronic surveillance, it was apparent that the motion raised an evidentiary issue to be determined before the judge ordered them to appear before the grand jury. This is not a situation where the judge has admitted evidence subject to a motion to strike and the movant failed to renew the motion at the end of the presentation of evidence with the result that it was overlooked. The motion was not only presented in writing before the hearing, but was orally argued at the hearing shortly before the judge ordered them to appear before the grand jury. Petitioners were not required to reassert an evidentiary matter after the judge had ruled on the ultimate issue before him. Accordingly, the failure to obtain a ruling does not preclude consideration of the electronic surveillance issue. PAGE 20 32 Cal. 3d 163, *175; 650 P.2d 302, **308; LEXSEE 185 Cal. Rptr. 427, ***433 Both the Congress and our Legislature have enacted statutes regulating electronic surveillance. "Although some differences in scope exist, the federal and state acts regulate the same area. In general terms, title III [of the Omnibus Crime Control and Safe Streets Act of 1968] prohibits the interception of wire and oral communications (18 U.S.C.A. @ 2511(1)(a)) and their disclosure or use (18 U.S.C.A. @ 2511(1)(c)(d)) except where court authorization is obtained by a law enforcement official (18 U.S.C.A. @@ 2516-2518) and with other limited exceptions. The state Invasion of Privacy Act ([Pen. Code,] @@ 630-637.2) forbids wiretapping (@ 631) and electronic eavesdropping (@ 632) except by law enforcement officers where such activity was permitted prior to the enactment of the state act (@ 633) and with other limited exceptions (see, e.g., @ 633.5). Thus the scheme of the federal act is based on the type of communication, that is, whether it is wire or oral; the state act, by contrast, on the type of surveillance, that is, whether it is wiretapping or eavesdropping. (Note (1969) 57 Cal.L.Rev. 1182, 1210.) Where evidence is obtained by unlawfully intercepting a communication, both acts make it inadmissible in any judicial, administrative, legislative, or any other proceeding. (18 U.S.C.A. @ 2515; [Pen. Code,] @@ 631, 632.)" [*176] (People v. Conklin (1974) 12 Cal.3d 259, 263 [114 Cal.Rptr. 241, 522 P.2d 1049] (fn. omitted).) n3 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n3 United States Code title 18, section 2515 provides: "Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter." (Italics added.) - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Recognizing that the federal prohibitions were binding on the state, Conklin held that Congress had not preempted the field so as to prohibit the states from adopting further [***434] limitations on electronic surveillance. (12 Cal.3d 259, 262 et seq.) [**309] A witness charged with contempt for failing to answer questions before a grand jury is entitled to prove that the grand jury questions were based on illegal electronic surveillance and the government will be compelled to disclose whether there was electronic surveillance. (Gelbard v. United States (1972) 408 U.S. 41, 47 et seq. [33 L.Ed.2d 179, 186 et seq., 92 S.Ct. 2357].) Florida has also held that a witness summoned before the grand jury may compel disclosure of electronic surveillance prior to the grand jury hearing. (In re Grand Jury Investigation (Cobo) (Fla. 1973) 287 So.2d 43, 46 et seq.) The issue presented in the instant case is whether the rendering state, in addition, should inquire into electronic survillance or whether such inquiry should be left to proceedings in the requesting state. The uniform act provides a speedy and effective procedure to summon witnesses living in another state. (United States ex rel. Drew v. Myers (3d Cir. 1964) 327 F.2d 174, 182.) To permit the witness to compel a search in the rendering PAGE 21 32 Cal. 3d 163, *176; 650 P.2d 302, **309; LEXSEE 185 Cal. Rptr. 427, ***434 state to discover whether there has been electronic surveillance would greatly hamper the effectiveness of the act. Moreover, in those cases where there has been electronic surveillance, it is far more likely to have occurred in the requesting state than the rendering state. Hearings in the rendering state on the issue of electronic surveillance will often require transportation of witnesses, delaying and rendering ineffective the uniform act. Criminal discovery in California is primarily a common law doctrine (Holman v. Superior Court (1981) 29 Cal.3d 480, 483 [174 Cal.Rptr. [*177] 506, 629 P.2d 14]; People v. Municipal Court (Runyan) (1978) 20 Cal.3d 523, 528 [143 Cal.Rptr. 609, 574 P.2d 425, 2 A.L.R.4th 68]), and because of the substantial burdens involved, the availability of a forum in the requesting state, and the expected locale of evidence, we are satisfied that discovery should not be permitted on the claim of electronic surveillance when determining whether to honor another state's request for a witness under the uniform act. Petitioners rely upon 18 United States Code section 3504 in support of their claim that they are entitled to discovery of any electronic surveillance in this proceeding. The section provides in pertinent part: "(a) In any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, or other authority of the United States -- [ para. ] (1) upon a claim by a party aggrieved that evidence is inadmissible because it is the primary product of an unlawful act or because it was obtained by the exploitation of an unlawful act, the opponent of the claim shall affirm or deny the occurrence of the alleged unlawful act." The section by its terms is limited to proceedings in courts and agencies of the United States. This should be contrasted with 18 United States Code section 2515 which is expressly made applicable to "a State, or a political subdivision thereof." (See fn. 3.) Section 3504 is a procedural statute dealing with the time to move to exclude unlawfully obtained evidence. While to a large extent Congress has preempted the field of electronic surveillance (People v. Conklin, supra, 12 Cal.3d 259, 263 et seq.), there is no showing that Congress has intended to require the states to follow federal criminal procedure as to unlawfully obtained evidence. Cruz v. Alexander (2d Cir. 1982) 669 F.2d 872, 874-875, involving claimed electronic surveillance, held that states were not required to comply with the provisions of section 3504. The alternative writ is discharged, and the peremptory writ is denied. CONCURBY: BIRD (In Part) DISSENTBY: BIRD (In Part) DISSENT: BIRD, C.J., Concurring and Dissenting. I concur with the result and much of the reasoning of the court's opinion. I write separately to address my concerns about two aspects of the decision. [*178] [***435] In evaluating the validity of the uniform act in light of petitioners' assertion that it [**310] impermissibly infringes upon rights protected by article I, section 1 of our state Constitution, I would employ the strict scrutiny test. (See Committee to Defend Reproductive Rights PAGE 22 32 Cal. 3d 163, *178; 650 P.2d 302, **310; LEXSEE 185 Cal. Rptr. 427, ***435 v. Myers (1981) 29 Cal.3d 252, 289 [172 Cal.Rptr. 866, 625 P.2d 779] (conc. opn. of Bird, C. J.).) That test envisions a two-pronged inquiry: (1) does the challenged governmental action serve a compelling state interest and (2) does it infringe upon the protected rights by the least intrusive means? The uniform act is clearly valid when measured by this standard. As the majority recognizes, the act serves a compelling interest. (Ante, p. 172.) The sine qua non of the act is its provision for reciprocity among the adopting states. (See Pen. Code, @@ 1334.2, 1334.3.) This feature makes possible the testimony of out-of-state witnesses in California courts, thus enabling inhabitants of this state to vindicate their basic rights and claims. Moreover, since the act compels a person in California to attend proceedings in other states only when his or her presence is "material and necessary" and no "undue hardship" will result, the act satisfies the second half of the strict scrutiny test as well. (See id., @ 1334.2.) A majority of this court would seem to prefer the use of a lesser standard, asserting that the uniform act merely has an "incidental" or "temporary" effect on the exercise of protected rights. (Ante, at p. 172.) I do not agree with this conclusion. Since I have previously expressed my reservations about the creation of an artificial distinction between incidental and appreciable infringements on fundamental rights, I need not reiterate them here. (See Committee to Defend Reproductive Rights v. Myers, supra, 29 Cal.3d at p. 287 et seq. (conc. opn.).) However, it is necessary to point out the illogic of extending that already flawed analysis to the present situation. The majority invokes its incidental impact theory on the ground that the act's interference with article I, section 1 rights is merely "temporary." But many -- if not most -- governmental actions coming under article I, section 1 attack can be said to be temporary. Would a statute which authorized the jailing of an individual for a week without probable cause be subject to a less demanding test than strict scrutiny on the basis that the detention was merely temporary? Could the government avoid strict scrutiny of a wholesale electronic surveillance of our [*179] populace, if the operation were limited to one week? One month? One year? Prior to the decision in this case, the court's use of the "incidental effect" exception to the strict scrutiny test had been limited to cases where governmental actions had what was considered to be a secondary impact upon protected rights. Today's majority cannot legitimately claim that the uniform act has such an "incidental" effect upon article I, section 1 rights. Instead, the court blithely extends the incidental impact exception to include direct but temporary infringements of basic rights without pausing to consider the full import of what is being done. That expansion strikes me as ill-advised and dangerous. Further, it is not amenable to a principled application. I do not join in that language of this court's opinion. The majority properly rejects petitioners' contention that the government has the duty to affirm or deny the use of electronic surveillance at a rendition hearing held pursuant to the uniform act. Such an affirm-or-deny procedure is not required of California courts by federal law. (Cruz v. Alexander (2d Cir. 1982) 669 F.2d 872.) Nor are the interests of state law sufficient to compel our courts to apply California's Invasion of Privacy Act at a rendition hearing. (See Pen. Code, @ 630 et seq.) The evidence obtained by electronic PAGE 23 32 Cal. 3d 163, *179; 650 P.2d 302, **310; LEXSEE 185 Cal. Rptr. 427, ***435 surveillance (if any) is to be used in Florida courts exclusively. California's judicial contacts with those Florida proceedings are too fleeting and ministerial in nature to justify applying our statutes to the gathering of evidence to be used in another state. CITATION: 498 So. 2d 896 PAGE 25 498 So. 2d 896 printed in FULL format. THE FLORIDA BAR, Petitioner, v. MERRELL G. VANNIER, Respondent FLORIDA BAR v. VANNIER No. 61,691 Supreme Court of Florida 498 So. 2d 896; 11 Fla. Law W. 621 November 26, 1986 COUNSEL: John F. Harkness, Jr., Executive Directory and John T. Berry, Staff Counsel; Patricia J. Brown and Diane Victor Kuenzel, Bar Counsels; and John Fernandez, Special Counsel, for Complainant. Bennie Lazzara, Jr., of Bennie Lazzara, Jr., P.A.; and Carl E. Kohlweck, for Respondent. JUDGES: McDonald, C.J., Overton, Ehrlich, Shaw and Barkett, JJ., concur. Adkins, J., concurs in part and dissents in part with an opinion, in which Boyd, J., concurs. OPINIONBY: PER CURIAM OPINION: [*896] This disciplinary proceeding against Merrell G. Vannier is before us on complaint of The Florida Bar and the report of the referee recommending that Vannier be disbarred. Vannier petitions this Court for review of the referee's findings of facts and recommendations of guilt and discipline. We have jurisdiction. Art. V, @ 15, Fla. Const. We approve the referee's findings and recommendations. The complaint against Vannier was in six counts. Count I alleges that Vannier solicited [*897] the representation of Gabriel and Margaret Cazares in violation of the Florida Bar Code of Professional Responsibility, Disciplinary Rules 1-102(A)(1), 1-102 (A)(4), 1-102(A)(6) and 2-103(A). Count II alleges that this representation presented a conflict of interest in violation of Disciplinary Rules 1-102(A)(1), 1-102(A)(4), 1-102(A)(6), 5-101(A), 5-105(A), 5-105(B) and 5-105(C). Count III alleges that through his position as counsel for Cazares and by misrepresentation, Vannier obtained access to the confidential litigation files of an attorney and his client in violation of Disciplinary Rules 1-102(A)(1), 1-102(A)(4), 1-102(A)(5), 1-102(A)(6) and 7-102(A)(8). Count IV alleges that Vannier attempted to obtain client Gabriel Cazares' signature, contrary to the client's interest, on a document entitled RETRACTION/APOLOGY in violation of Disciplinary Rules 1-102(A)(1), 1-102(A)(4), 1-102(A)(5), 1-102(A)(6), 5-101(A) and 7-102(A)(8). Count V alleges that Vannier attempted to obtain client Gabriel Cazares' signature, contrary to the client's interest, on a document entitled AGREEMENT in violation of Disciplinary Rules 1-102(A)(1), 1-102(A)(4), 1-102(A)(5), 1-102(A)(6), 5-101(A) and 7-102(A)(8). Count VI alleges that Vannier, in the guise of a job applicant and volunteer worker, sought and obtained access to the State Attorney's Office, St. Petersburg Division, contrary to the interest of the State Attorney, in violation of Disciplinary Rules 1-102(A)(1), 1-102(A)(4), 1-102(A)(6) and PAGE 26 498 So. 2d 896, *897; 11 Fla. Law W. 621 LEXSEE 5-101(A). The referee recommended findings of guilt on Counts I, II, III and VI and not guilty on Counts IV and V. The allegations against Vannier can be capsuled into one basic charge: that Vannier was an undercover agent for the Church of Scientology (the Church) who used his position as a member of The Florida Bar for purposes contrary to the interests of his clients and to his oath as an attorney and to the Code of Professional Responsibility. The evidence at trial showed the following. In 1975, acting through front corporations, the Church purchased a major building in Clearwater, Florida, and began operations which attracted public attention. Public disputation arose between the Mayor, Gabriel Cazares, and the Church. As a result, in early 1976 the Church sued Mayor Cazares in a federal court and Mayor Cazares and his wife sued the Church in a state court. In reaction to the public dispute, cognizant officials of the Church identified enemies to be infiltrated which included, inter alia, the Mayor and State Attorney. Vannier, a member of the Church in Missouri, was also a member of an autonomous section of the Church responsible for overt and covert intelligence operations. Vannier and his wife were assigned the code name "Ritz" and moved to Clearwater, Florida, in March 1976. Vannier obtained permission to work as a volunteer at the state attorney's office, which was conducting an investigation of the Church's local operations, and his wife worked as a volunteer at Mayor Cazares' election headquarters. In addition, Vannier was soon introduced by his wife to Mayor Cazares. Vannier repeatedly offered and urged his services as counsel to Mayor Cazares in the suit in state court against the Church and was hired as such in December 1976. By this time Vannier had become associated with a local law firm. By virtue of his status as counsel to Mayor Cazares, Vannier sought and obtained access to the litigation files of another person involved in litigation with the Church and the files of Mayor Cazares and another lawyer who was defending the Mayor in federal court. In mid to late 1977, the Cazares became dissatisfied with Vannier's legal advice and his handling of their suit and dismissed both Vannier and the suit. Vannier attempted to persuade the Mayor that the dismissal must be with prejudice. The Mayor later obtained other counsel and reinstated the suit. In late 1977, Vannier left the law firm with which he was associated without notice, without turning over pending cases and clients, without leaving a forwarding address, and without removing his personal effects, e.g., diplomas, from his office. The Church, or its agents, were involved in numerous civil and criminal cases throughout the United States during [*898] and following this period of time. As a result of discovery in these civil and criminal cases, particularly the seizure of documents from the Church's Los Angeles headquarters, it was revealed that Vannier was an undercover agent for the Church. These disciplinary proceedings followed. Vannier presents numerous points in support of his position that the referee's report should be disapproved. First, he argues, the evidence consists largely of unauthenticated and unreliable hearsay and that admission of such evidence denies him his confrontation and due process rights. The hearsay to which Vannier refers consists largely of documents seized by the Federal Bureau of Investigation from the headquarters of the Church in the course of an unrelated criminal prosecution or documents and depositions obtained as a result of discovery in other unrelated civil litigation. We are persuaded that the hearsay in question was adequately authenticated and its reliability established. Disciplinary proceedings are neither civil nor criminal but are quasi-judicial. Fla. Bar Integr. Rule, art. 11, Rule 11.06(3)(a). In Bar discipline cases, hearsay is admissible and there is no right to confront witnesses face to face. The referee is not barred by technical rules of PAGE 27 498 So. 2d 896, *898; 11 Fla. Law W. 621 LEXSEE evidence. State ex rel. The Florida Bar v. Junkin, 89 So.2d 481 (Fla. 1956); State ex rel. Kehoe v. McRae, 49 Fla. 389, 38 So. 605 (1905). Vannier next argues that the referee's findings and recommendation violate his freedom of speech, religion and associational privacy by judging him on the basis of the conduct of the Church rather than his own conduct. It may be, as this argument necessarily suggests, that various Church officials committed despicable and illegal acts. However, it is Vannier who is a member of The Florida Bar and before us in a disciplinary proceeding. The evidence shows that Vannier voluntarily acted as a spy and agent provocateur for the Church and its officials who were attempting to destroy or subvert their critics and that Vannier's conduct violated his oath and the Code of Professional Responsibility. As a variation of the above argument, Vannier argues that the referee's findings and recommendations should be disapproved because they stand for the proposition that members of the Scientology religion are prohibited from Bar membership. Except as they bear on Vannier's conduct, we are not here concerned with the tenets or beliefs of the Scientologists. We will address that issue if or when it arises. Vannier argues that referee's findings and recommendations should be disapproved because they are not supported by clear and convincing evidence and are contrary, in crucial aspects, to the evidence. A referee's findings of fact and recommendations come to us with a presumption of correctness and should be upheld unless clearly erroneous or without support in the record. The Florida Bar v. Lipman, 497 So.2d 1165 (Fla. 1986); The Florida Bar v. McCain, 361 So.2d 700 (Fla. 1978); The Florida Bar v. Hirsch, 359 So.2d 856 (Fla. 1978). The internal documents of the Church and the deposition of a key official of the Church clearly show the particulars of the plan to place Vannier (Ritz) in position as the Cazares' attorney, the extensive efforts and plans to protect him from exposure, and the satisfaction of Church officials with the results obtained. This hearsay evidence is independently corroborated by direct evidence from the Cazares, the State Attorney and lawyers representing other clients as to how Vannier obtained employment and access to information concerning litigation with the Church. We also note Vannier's flight from his law firm in the period following the seizure of internal Church documents revealing his role as an agent for the Church as evidence of guilt. The referee's findings of fact and recommendations of guilt are fully supported by the record. Finally, Vannier argues that the referee's recommendation of disbarment is too harsh a penalty. In support, Vannier argues that none of the violated parties suffered injury, that his current character is [*899] honorable, that these events occurred almost ten years ago, that he had no prior, and has had no subsequent, ethical problems, that the acts were isolated and will not recur, and that he was a recent law school graduate. These arguments are utterly unpersuasive. If there is a more cardinal violation of the Code of Professional Ethics than undertaking the representation of a client and using that fiduciary position to promote the interest of an opposing party, Vannier has not pointed it out. Under these circumstances, disbarment is the only remedy which will serve the public interest. We are told that Vannier does not now practice, and has not recently practiced, law in the state. Accordingly, Vannier is disbarred effective immediately. Judgment for costs in the amount of $5,976 is hereby entered against respondent for which sum let execution issue. PAGE 28 498 So. 2d 896, *899; 11 Fla. Law W. 621 LEXSEE It is so ordered. McDONALD, C.J., OVERTON, EHRLICH, SHAW and BARKETT, JJ., Concur; ADKINS, J., Concurs in part and dissents in part with an opinion, in which BOYD, J., Concurs. CONCURBY: ADKINS (In Part) DISSENTBY: ADKINS (In Part) DISSENT: ADKINS, J., concurring in part and dissenting in part. I concur with the Court's findings of guilt but find the disbarment is not warranted in this instance. Disbarment is an extreme penalty and should only be imposed in those rare cases where rehabilitation is highly improbable. The Florida Bar v. Davis, 361 So.2d 159 (Fla. 1978); The Florida Bar v. Carlson, 183 So.2d 541 (Fla. 1966). The events in question took place ten years ago when Vannier was a recent law school graduate. The fact that Vannier has had no subsequent ethical problems is convincing evidence that he has in fact been rehabilitated and is unlikely to partake in unethical conduct in the future. Without explanation, the majority of this Court refuses to consider several valid mitigating factors which weigh against disbarment. Among the several mitigating factors are the following: Vannier had no prior record of disciplinary activity and has exhibited good behavior subsequent to this incident, The Florida Bar v. Papy, 358 So.2d 4 (Fla. 1978); no party has been injured by Vannier's actions, The Florida Bar v. Whitlock, 426 So.2d 955 (Fla. 1982); Holland v. Flournoy, 142 Fla. 459, 195 So. 138 (1940); Vannier did not violate any law; and the events in question occurred ten years ago. I would order a public reprimand and a ninety (90)-day suspension from the practice of law. BOYD, J., Concurs. CITATION: 615 F.2d 691 PAGE 30 615 F.2d 691 printed in FULL format. CHURCH OF SCIENTOLOGY OF CALIFORNIA, a Non-Profit Corporation, under the laws of California, Plaintiff-Appellant, v. John McLEAN and Nancy McLean, Defendants-Appellees. CHURCH OF SCIENTOLOGY OF CALIFORNIA v. McLEAN No. 79-2629, Summary Calendar. n** Fed.R.App.P. 34(a); 5 Cir. R. 18. UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT 615 F.2d 691 April 18, 1980 PRIOR HISTORY: Appeal from the United States District Court for the Middle District of Florida. COUNSEL: Allen L. Jacobi, North Miami, Fla., for plaintiff-appellant. Baskin & Sears, Robert K. Hayden, Clearwater, Fla., for defendants-appellees. JUDGES: Before GEE, RUBIN and POLITZ, Circuit Judges. OPINIONBY: RUBIN OPINION: [*692] The Church of Scientology of California filed a slander suit against John and Nancy McLean, citizens of Canada and ex-Scientologists. The McLeans are represented by Robert Hayden, a partner in the law firm of Baskin & Sears. Elihu Berman is associated with that law firm and plans to assist Hayden in defending the suit. Before Berman joined that firm, the church had consulted with him about a zoning matter. It has filed a motion to disqualify Berman and the law firm in this suit on the basis that "topics were discussed (with Berman) which are substantially related to the cause of action before the court." The trial judge denied the motion as it related to Hayden and the law firm, and reserved ruling on the motion as it pertained to Berman. Later, he also denied the motion as to Berman. This appeal is from that order; it apparently, therefore, pertains only to the ruling concerning Berman. Whether an order refusing to disqualify counsel is appealable is an issue now before this court en banc. Wilson P. Abraham Construction Corp. v. Armco Steel Corp., No. 79-2007, hearing en banc ordered (5th Cir. Oct. 22, 1979). However, we assume for the moment that there is jurisdiction because, whether or not the appeal applies only to Berman, it is groundless and there is no reason further to delay this case. The church has not offered a scintilla of evidence that any issue in this case was ever discussed with Mr. Berman or that he has any confidential information about it. While lawyers are expected to avoid even the appearance PAGE 31 615 F.2d 691, *692 LEXSEE of impropriety, they are not required to sterilize their affairs to avoid baseless charges. A lawyer need not disqualify himself in a matter concerning a former client unless the terminated employment had some substantial relationship to the pending suit or unless he has received some privileged information. See Brennan's, Inc. v. Brennan's Restaurants, Inc., 590 F.2d 168, 171-72 (5th Cir. 1979). Cf. Woods v. Covington County Bank, 537 F.2d 804, 813 (5th Cir. 1976) (former government attorney is not disqualified from civilian employment in a matter for which he had substantial responsibility in government in absence of reasonable possibility of impropriety.) The church's brief to this court asserts that, during the course of Mr. Berman's consultation with its representative, information was given to Mr. Berman so that he could assess the problem with which the (church) was faced and certain advice given by Mr. Berman in reference to those problems. After the consultation Mr. Berman billed the Church of Scientology of California and received compensation therefrom. During this consultation topics were discussed which substantially related to the subject matter of the instant litigation and related to the Clearwater City Commission, including the Ex-Mayor, Gabriel Cazares, who appears on the Defendant's List of Witnesses as is also the case with one Ronald Schultz, the County Property Appraiser. The same hostilities which are the essence of the case sub judice were the very problems which the plaintiff faced in reference to the zoning problems involving the property which they wished to purchase. [*693] There is no evidence in the record concerning these allegations, nor even the proffer of evidence by affidavit or deposition. The one affidavit filed on behalf of the church, by Phillip Park, recites that he is a minister in the church; that he consulted Mr. Berman for 1.25 hours concerning "the interpretation of the City of Clearwater Zoning Code as would relate to the acquirement (sic) of a building for administrative offices by" the church; that Mr. Park apprised Mr. Berman of "certain difficulties" the church had been having in the community "as related to the City Commission, certain people hostile to Plaintiff Church, to include the ex-mayor Gabriel Cazares, the Property Appraiser Ronald Schultz, City Commissioner Richard Tenney." It concludes that "such matters were substantially related to and at issue in the case sub judice," and that some of those named as hostile individuals have been called as witnesses for the defendant. We are left to discern as best we can how this relates to the slander suit, but we are unable to perceive the connection. The rule of disqualification is not mechanically applied in this Circuit. Brennan's, Inc. v. Brennan's Restaurants, Inc., supra, 590 F.2d at 173-174. To warrant disqualification under Canon 9 of the Code of Professional Responsibility there must be a showing of a reasonable possibility that some specifically identifiable impropriety occurred and the likelihood of public suspicion must be weighed against the interest in retaining counsel of one's choice. Id. at 172. An attorney's conduct need not be governed by standards that can by imputed only to the most cynical members of the public. A lawyer need not "yield to every imagined charge of conflict of interest, regardless of the merits, so long as there is a member of the public who (says that he) believes it." Woods v. Covington County Bank, supra, 537 F.2d at 813. PAGE 32 615 F.2d 691, *693 LEXSEE This is a slander suit. In the complaint, the church lists certain statements by the McLeans as defamatory: "Scientology seeks to enslave people," "to build up a sphere of influence," "to become involved politically," and similar utterances. Mr. Berman was consulted on a zoning matter. Though Mr. Park disclosed to Mr. Berman that he was an agent of the church, there is no evidence that he disclosed any information about the church, its property or even the location that the consultation was about. As is apparent from the complaint, the church was much in the news in Clearwater. The alleged disclosure that several community leaders were not favorably disposed toward the church was, according to Mr. Berman's affidavit, already community knowledge upon which he commented to Mr. Park. Even had he previously been oblivious to the community reaction, knowledge of that reaction is not privileged client information; nor is it obviously information which could be used against the church in the slander suit. It is clear that the subject matter of the zoning consultation is not substantially related to Berman's instant representation of the McLeans. Moreover, the church has not made a showing that there is a reasonable possibility of improper professional conduct arising from Mr. Berman's participation in this case, or that the likelihood of public "obloquy outweighs the social interests" served by the continued participation in this case of counsel of the defendants' choice. See Woods v. Covington City Bank, supra, 537 F.2d at 813 n.12. In our considered judgment the appeal is not only without merit but frivolous. The trial court shall assess damages to the appellees caused by the appeal. The damages are to include a reasonable attorney's fee. Appellees shall also be awarded double costs. Fed.R.App.P. 38. The denial of the motion is AFFIRMED. CITATION: 475 F. Supp. 950 PAGE 34 475 F. Supp. 950 printed in FULL format. CHURCH OF SCIENTOLOGY OF CALIFORNIA and FOUNDING CHURCH OF SCIENTOLOGY OF WASHINGTON, D.C., Plaintiffs, against JAMES SIEGELMAN, FLO CONWAY, J. B. LIPPINCOTT COMPANY and MORRIS DEUTSCH, Defendants. CHURCH OF SCIENTOLOGY OF CALIFORNIA v. SIEGELMAN No. 79 Civ. 1166 (GLG) UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF NEW YORK 475 F. Supp. 950; 5 Media L. Rep. 2021 August 27, 1979 COUNSEL: Cohn, Glickstein, Lurie, Ostrin & Lubell, New York City, for plaintiffs by Jonathan W. Lubell and Audrey J. Isaacs, New York City, of counsel. Clark, Wulf, Levine & Peratis, New York City, for defendants Siegelman and Conway by Melvin L. Wulf, New York City, of counsel. Lester, Schwab, Katz & Dwyer, New York City, for defendant Lippincott by Patrick A. Lyons, New York City, of counsel. Rosner & Rosner, New York City, for defendant Deutsch by Jonathan Rosner, New York City, of counsel. OPINIONBY: GOETTEL OPINION: [*951] OPINION In this latest libel action brought by the plaintiffs, two branches of the litigious Church of Scientology, n1 motions have been made by the various defendants to dismiss the complaint for failure to state a claim upon which relief may be granted, Fed.R.Civ.P. 12(b)(6), for judgment on the pleadings, Fed.R.Civ.P. 12(c), and for summary judgment, Fed.R.Civ.P. 56. The plaintiffs have cross-moved to dismiss the counterclaims raised against them. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1. A lexis scan provided this Court of reported decisions in the United States courts in which the Church of Scientology was a party revealed the existence of thirty such cases. See Exhibit C, Motion of Defendant Deutsch to Dismiss Complaint, for Judgment on the Pleadings, or for Summary Judgment Dismissing the Complaint. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - PAGE 35 475 F. Supp. 950, *951; 5 Media L. Rep. 2021 LEXSEE The defendants Siegelman and Conway are the co-authors of the book Snapping: America's Epidemic of Sudden Personality Change, which was published by defendant J. B. Lippincott Company in 1978. In this book the authors attempt to explore what they describe as the "phenomenon . . . (of) sudden and drastic alterations of personality," investigating in the process the effects on personality of the techniques used by many of the current religious "cults" and mass-marketed self help therapies. Included among the many groups studied and commented upon was the [*952] Church of Scientology. n2 The plaintiffs now contend that included among the passages in the book relating to the Church of Scientology were a number of highly defamatory comments. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2. Although the text of Snapping covers two-hundred and fifteen pages, only seven and one-half of these deal specifically with the Church of Scientology. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Following publication of Snapping, and as a result of the interest generated by it, and the topic generally, the defendant Siegelman, along with the defendant Deutsch, a former member of the Church of Scientology, appeared as guests on the syndicated television program "The David Susskind Show." The plaintiffs allege that during the course of the program both of these defendants, in response to certain questions posed, made defamatory comments about the Church. n3 The plaintiffs additionally assert that further defamatory remarks were made by Siegelman and Conway in an interview which was published in People magazine. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n3. Although Mr. Susskind took part in the discussion, neither he, nor any of the television entities, were named as defendants in this action. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The plaintiffs in the instant action, the Church of Scientology of California, which is registered in California as a non-profit, religious corporation, and the Founding Church of Scientology of Washington, D.C., which is registered in Washington, D.C. as a non-profit, religious corporation, are part of the worldwide Scientology religion of which the plaintiffs assert there are more than five million members, over three million of them in the United States. Numerous local churches of Scientology are located throughout the United States and in various foreign countries. n4 The plaintiffs assert that their individual churches have been seriously injured by the defendants' alleged defamatory statements, and that as a result their ability to function as a non-profit organization has been seriously impaired. The plaintiffs now seek damages against all of the defendants. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n4. Apparently all of these local churches are separately incorporated in a state in which they conduct their activities. PAGE 36 475 F. Supp. 950, *952; 5 Media L. Rep. 2021 LEXSEE - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The defendants have alleged a number of grounds upon which the complaint should be dismissed. They first assert, characterizing this action as one concerning statements of religious practice and beliefs, and citing to a long line of Supreme Court cases, that this suit is barred by the free exercise and establishment clauses of the First Amendment. n5 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n5. The First Amendment states that, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; . . ." U.S.Const. Amend. 1. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - It is well established that "testing in court the truth or falsity of religious beliefs is barred by the First Amendment." Founding Church of Scientology v. United States, 133 U.S.App.D.C. 229, 243, 409 F.2d 1146, 1156 (D.C.Cir.1969). See United States v. Ballard, 322 U.S. 78, 64 S. Ct. 882, 88 L. Ed. 1148 (1944). Courts must remain neutral in matters of religious doctrine and practice, Epperson v. Arkansas, 393 U.S. 97, 89 S. Ct. 266, 21 L. Ed. 2d 228 (1968), avoid involvement in the affairs of any religious organization or group, Wolman v. Walter, 433 U.S. 229, 97 S. Ct. 2593, 53 L. Ed. 2d 714 (1977), Everson v. Board of Education, 330 U.S. 1, 67 S. Ct. 504, 91 L. Ed. 711 (1947), and resist the making of any type of ecclesiastical determination, Presbyterian Church in the United States v. Hull Memorial Presbyterian Church, 393 U.S. 440, 89 S. Ct. 601, 21 L. Ed. 2d 658 (1969), See Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 96 S. Ct. 2372, 49 L. Ed. 2d 151 (1975). As has been noted, the First Amendment rests "upon the premise that both religion and government can best work to achieve their lofty aims if each is left free from the other within its respective sphere." McCollum v. Board of Education, 333 U.S. 203, 212, 68 S. Ct. 461, 465, 92 L. Ed. 649 (1948). The defendants assert that this doctrine of non-entanglement with religion bars the bringing of a libel action by a religious denomination, such as the Church [*953] of Scientology, n6 when the alleged libel relates to the validity of religious beliefs and practices. The Court agrees that where validity of religious beliefs are at issue involvement by the judiciary would be inappropriate. See Cimijotti v. Paulsen, 230 F. Supp. 39 (N.D.Iowa, 1964). It does not follow from this, however, that simply because a religious organization is a party to an action that that action should be immediately categorized as a theological dispute. Where the alleged defamation relates to secular matters, and where the issues can be resolved by neutral principals of law, no First Amendment bar exists. As was noted by the Supreme Court in a somewhat different context, "civil courts do not inhibit free exercise of religion merely by opening their doors to disputes involving church property." Presbyterian Church in the United States v. Hull Memorial Presbyterian Church, 393 U.S. at 449, 89 S. Ct. at 606. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - PAGE 37 475 F. Supp. 950, *953; 5 Media L. Rep. 2021 LEXSEE n6. In Founding Church of Scientology v. United States, 133 U.S.App.D.C. 229, 409 F.2d 1146 (D.C.Cir.1969), the court held, in view of the plaintiff's having made out a Prima facie case that Scientology was a religion, and of the defendant's decision not to contest such a characterization, that for the purposes of that action the Church of Scientology was to be treated as a religion entitled to the protection of the free exercise clause. None of the defendants in the instant action have, as of this time, challenged the plaintiffs' description of themselves as religious institutions. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - In the instant action the alleged defamatory remarks do not, on their face, relate to the validity of religious beliefs or practices. Rather, these statements deal with the alleged debilitating physical and psychological effect certain actions by the Church of Scientology have upon its members. While the Court will be vigilant to avoid any entanglement with theological questions should they arise, at this time no such questions are presented. Accordingly, the Court finds that the free exercise and establishment clauses to the First Amendment are no bar to this action. Having determined that this action is not precluded by the free exercise and establishment clauses, the Court must next turn to more traditional defamation concerns and determine whether the plaintiff churches constitute public figures within the doctrine of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). n7 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n7. The defendants have also asserted that, since the plaintiffs are religious associations and not individuals, their rights to compensation for damages is non-existent, and that therefore the action should be dismissed. The Court, however, finds no merit to this claim for, while it is true that the great majority of defamation cases have been brought by individuals to protect their reputation, See, e.g., Herbert v. Lando, 441 U.S. 153, 99 S. Ct. 1635, 60 L. Ed. 2d 115 (1979); Time, Inc. v. Firestone, 421 U.S. 448, 95 S. Ct. 1557, 43 L. Ed. 2d 773 (1976), corporations have also been allowed to maintain such actions. See, e.g., Friends of Animals, Inc. v. Associated Fur Manufacturers, 46 N.Y.2d 1065, 416 N.Y.S.2d 790, 390 N.E.2d 298 (1979); Cole Fischer Rogow, Inc. v. Carl Ally, Inc., 29 A.D.2d 423, 288 N.Y.S.2d 556 (1st Dep't. 1968). In Cole Fischer Rogow, Inc., supra at 427, 288 N.Y.S.2d at 562, it was held that for a corporation to recover in defamation it was necessary that: "the language used must tend directly to injure plaintiff in its business, profession or trade, and must "impute to the plaintiff some quality which would be detrimental, or the absence of some quality which is essential to the successful carrying on of his office, profession or trade.' " Thus, if the plaintiffs, after having established the liability of any or all of the defendants, can meet the Cole Fischer test and show direct injury, they would then be entitled to compensation for damages. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - PAGE 38 475 F. Supp. 950, *953; 5 Media L. Rep. 2021 LEXSEE In New York Times it was held that a public official could not recover in defamation absent proof that the defendant made the statement knowing it to be false, or with reckless disregard as to whether it was false or not. This standard of proof has been extended so as to apply to public figures as well as public officials. Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S. Ct. 1975, 18 L. Ed. 2d 1094 (1967). Thereafter, the Supreme Court, in Gertz v. Robert Welch, Inc., 418 U.S. 323, 345, 94 S. Ct. 2997, 3009, 41 L. Ed. 2d 789 (1974), attempted to define the ways in which a person could become a public figure: "For the most part those who attain this status have assumed roles of especial [*954] prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved." Applying this standard to the facts of the instant action the Court finds the plaintiffs, the Church of Scientology of California, and the Founding Church of Scientology of Washington, D.C., to be public figures. The plaintiffs are component parts of a large world-wide religious movement which claims to have over five million adherents. Unlike the plaintiff in Time, Inc. v. Firestone, 424 U.S. 448, 96 S. Ct. 958, 47 L. Ed. 2d 154 (1976), n8 the instant plaintiffs have taken affirmative steps to attract public attention, and actively seek new members and financial contributions from the general public. n9 See James v. Gannett, 40 N.Y.2d 415, 386 N.Y.S.2d 871, 353 N.E.2d 834 (1976). As was found in regards to another religious institution (the Gospel Spreading Church) this Court believes the Church of Scientology to be "an established church with substantial congregations . . . (which) seeks to play "an influential role in ordering society.' " Gospel Spreading Church v. Johnson Publishing Co., 147 U.S.App.D.C. 207, 208, 454 F.2d 1050, 1051 (D.C.Cir.1971). The Church of Scientology has thrust itself onto the public scene, and accordingly should be held to the stringent New York Times burden of proof in attempting to make out its case for defamation. See Church of Scientology of California v. Cazares, 455 F. Supp. 420 (M.D.Fla.1978); Church of Scientology of California v. Dell Publishing Co., Inc., 362 F. Supp. 767 (N.D.Cal.1973). n10 See also Friends of Animals, Inc. v. Associated Fur Manufacturers, Inc., 46 N.Y.2d 1065, 416 N.Y.S.2d 790, 390 N.E.2d 298 (1979). - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n8. In Firestone it was held that a prominent socialite involved in a heavily publicized (with extensive media coverage) divorce action was not a public figure since such publicity had been involuntarily obtained as a result of the plaintiff being "compelled to go to court by the State in order to obtain legal release from the bonds of matrimony." Id. at 454, 96 S. Ct. at 965. n9. The plaintiffs, in order to attract both contributors and new adherents to their religion, utilize street-side solicitations, distribute large amounts of printed matter, and send unrequested literature through the mails. n10. In Dell Publishing Co. the court, although not directly addressing the public figure issue, applied the New York Times actual malice standard in determining the motion before it. PAGE 39 475 F. Supp. 950, *954; 5 Media L. Rep. 2021 LEXSEE - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Holding the plaintiffs to the New York Times burden of proof, however, does not resolve the issue before the Court. The defendants Deutsch and Lippincott n11 (defendants Siegelman and Conway have not joined in this motion) assert that the plaintiffs cannot satisfy the requirement of proving actual malice, and that therefore summary judgment should be granted. They further state that such summary disposition is particularly appropriate, and in fact may be "the "rule' and not the exception," Guitar v. Westinghouse Electric Corp., 396 F. Supp. 1042, 1053 (S.D.N.Y.1975), in defamation actions, and is necessary so as to prevent the litigation from having any potentially chilling effect on the exercise of free speech. See Bon Air Hotel v. Time, Inc., 426 F.2d 858, 864 (5th Cir. 1970); Oliver v. Village Voice, Inc., 417 F. Supp. 235 (S.D.N.Y.1976). - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n11. The plaintiffs assert that as a result of defects in the defendant Lippincott's moving papers, such papers should not be treated as ones for summary judgment (but simply as additions to the papers moving to dismiss the complaint.) In view of the Court's disposition of this motion, however, there is no need to reach this question. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The Court is similarly concerned over the damaging effect a frivolous suit could have upon the exercise of First Amendment rights. The propriety of granting summary judgment where actual malice has been alleged, however, has been cast into great doubt by the Supreme Court's recent pronouncement in Hutchinson v. Proximire, 443 U.S. 111, 99 S. Ct. 2675, 61 L. Ed. 2d 411 (1979). In its decision the Court noted [*955] its doubt as to the validity of the "so-called "rule' that summary judgment is more appropriately granted in defamation actions than in other types of suits, and stated that "(t)he proof of "actual malice' calls a defendant's state of mind into question, New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), and does not readily lend itself to summary disposition." The plaintiffs have alleged that the defamatory remarks were made with actual malice and that therefore the New York Times standard can be met. While the supporting material submitted as to this point is far from convincing, the plaintiffs have managed to place the defendants' state of mind into question, and, in view of the Supreme Court's statement in Proximire, the Court does not believe it appropriate to grant summary judgment at this time. This determination is made, however, without prejudice to any future motion being made after additional discovery has been conducted. n12 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n12. In light of the Court's ultimate determination as to the action against defendants Siegelman, Conway, and Lippincott, See infra, any such subsequent motion would, of course, only apply as to defendant Deutsch. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - PAGE 40 475 F. Supp. 950, *955; 5 Media L. Rep. 2021 LEXSEE Finally, the defendants argue that even if the Court does not accept their theoretical arguments as to the free establishment and exercise clauses, or as to the lack of actual malice, it must still dismiss the complaint because the alleged defamatory statements either are not libelous, or constitute expression of opinion. In this regard it has been held that "under the First Amendment there is no such thing as a false idea," Gertz v. Robert Welch, 418 U.S. at 339, 94 S. Ct. at 3007, and thus an opinion, "however pernicious" cannot be the basis for an action in defamation. See Buckley v. Littell, 539 F.2d 882, 889 (2d Cir. 1976). Whether a particular statement is held to constitute a fact or an opinion is "a question of law," Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369, 381, 397 N.Y.S.2d 943, 950, 366 N.E.2d 1299, 1306 (1977), to be determined by the Court. See Letter Carriers v. Austin, 418 U.S. 264, 94 S. Ct. 2770, 41 L. Ed. 2d 745 (1974). The plaintiffs have alleged in their complaint the utterance of twenty-three defamatory statements by the various defendants: ten by Siegelman, Conway and Lippincott arising from the publication of Snapping, and contained in count ten; one by Siegelman, contained in count eighteen, and eight by Deutsch, contained in count nineteen, arising from the Susskind interview; and four by Siegelman and Conway arising from the People magazine interview, and contained in count twenty-seven. After careful examination of these statements the Court finds that many of them are clearly either non-libelous, or statements of opinion, and thereby may not be the basis for an action in defamation. Turning first to the allegations against Siegelman, Conway and Lippincott contained in count ten, the Court can find nothing in these statements capable of rising to the level of a malicious false utterance necessary for recovery in defamation. These statements are replete with opinions and conclusions about the methods and practices used by the Church of Scientology and the effect such methods and practices have, n13 recounts of what the authors had been told during the course of their investigation, n14 and some unflattering, though not [*956] defamatory, factual statements. n15 None of these statements go beyond what one would expect to find in a frank discussion of a controversial religious movement, which is a public figure, and thus none of these statements may be the basis for an action in defamation. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n13. See, e.g., P 10(d) of the complaint: "In our opinion, however, Scientology does not lead people beyond faith to absolute certainty it leads them to levels of increasingly realistic hallucination. The crude technology of auditing is a direct assault on human feeling and on the individual's ability to distinguish between what he is actually experiencing and what he is only imagining. The bizarre folklore of Scientology is a tour de force of science fiction. . . . " n14. See, e.g., P 10(B) of the complaint: "It may also be one of the most powerful religious cults in operation today: The tales that have come out of Scientology are nearly impossible to believe in relation to a religious movement that has accumulated great credibility and respect around the world in less than twenty-five years. It has also gathered an estimated 3.5 million followers. Nevertheless, the reports we have seen and PAGE 41 475 F. Supp. 950, *956; 5 Media L. Rep. 2021 LEXSEE heard in the course of our research, both in the media and in personal interviews with former Scientology higher-ups, are replete with allegations of psychological devastation, economic exploitation, and personal and legal harassment of former members and journalists who speak out against the cult." n15. See, e.g., P 10(C) of the complaint: "But for the casual customer choosing among a vast assortment of currently available techniques for self-betterment, the Scientology procedure is well-known, attractive, and inexpensive to begin. The auditing process takes place in private sessions between subject and auditor, in which the subject's emotional responses are registered on a device called an E-meter, a kind of crude lie detector. The subject holds the terminals of the E-meter in his hands, and the rise or fall of electrical conductivity in response to the perspiration emitted from the palms is explained as a measure of emotional response to the auditor's course of questioning. The average response registers in the normal range on the meter, with abnormal indicating an overreaction, "uptightness," or sign of trauma on the part of the subject. The goal of auditing is to bring all the individual's responses within the range of normal on the E-meter. Using a technique that bears only superficial resemblance to the popular method of biological regulation known as biofeedback, the individual watches the E-meter and follows precise instructions given by the auditor to learn how to reduce his emotional response to the auditor's questions about past and painful experiences. When the individual has mastered this ability, he becomes eligible for admission to the elite club of Scientology clears." - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Similarly, the alleged utterances in counts eighteen and twenty-seven cannot survive judicial scrutiny. After examining the defamatory language attributed to Siegelman in count eighteen the Court finds it to be a statement of opinion, albeit a rather negative one, by the defendant about the plaintiff, and thus not actionable. As to the alleged defamation contained in count twenty-seven the Court once again finds the statements to be a mix of opinion and unflattering, but non-defamatory, factual statements, none of which is actionable. Turning finally to the alleged defamatory remarks made by defendant Deutsch on the Susskind show, the Court finds that questions exist which preclude disposition at this time. The statements attributed to Deutsch are, unlike the ones attributed to the other defendants, defamatory statements of fact. Deutsch asserts as a defense both that he believes the statements to be true, and that, in any event, they were all made without actual malice. He also asserts that the statements alleged were not addressed to these plaintiffs but rather to Scientology in general, and thus that these plaintiffs were neither defamed nor damaged. Finally, he claims that the utterances in the complaint were so edited and placed out of context as to be thoroughly misleading. These defenses, however, raise questions of fact which cannot be decided at this time. See Proximire v. Hutchinson, 443 U.S. 111, 99 S. Ct. 2675, 61 L. Ed. 2d 411. Accordingly, the motion to dismiss of defendants Siegelman and Conway, and the motion to dismiss of defendant Lippincott, are hereby granted. The motion of defendant Deutsch is, at this time, denied. n16 PAGE 42 475 F. Supp. 950, *956; 5 Media L. Rep. 2021 LEXSEE - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n16. Although the Court feels constrained, in view of the Proximire footnote, to deny the motion of defendant Deutsch at this time, should it be ultimately determined that this suit was brought without cause, or for the purpose of harassment, the Court will not hesitate to order the imposition of counsel fees upon the plaintiff. See Nemeroff v. Abelson, 469 F. Supp. 630 (S.D.N.Y.1979). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Having thus disposed of the defendants' motions, the Court next turns its attention to the plaintiffs' motion to dismiss the counterclaims for Prima facie tort, abuse of process, and conspiracy to deprive the defendants of their constitutional rights, n17 which have been alleged against them. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n17. The defendant Deutsch had initially also alleged a counterclaim based upon 42 U.S.C. @ 1983. Upon the plaintiff's bringing of the instant motion, however, the defendant chose, quite correctly in view of the facts of this case, to consent to the dismissal of this claim. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*957] It has been held that in order to be liable for a Prima facie tort a party must be found guilty of having inflicted intentional harm, resulting in damages, without legal excuse or justification, by an act or series of acts which would otherwise be lawful. Sommer v. Kaufman, 59 A.D.2d 843, 399 N.Y.S.2d 7 (1st Dept., 1977). In the instant action, the defendants allege that the plaintiffs, acting with malice and without excuse or justification, brought this lawsuit solely for the purpose of punishing the defendants for their expression of adverse opinions about Scientology, and that as a result they have suffered monetary damages. Proof of such intentional infliction and resulting damage would establish a Prima facie tort, Rager v. McCloskey, 305 N.Y. 75, 111 N.E.2d 214 (1953), and would thereupon shift the burden to the plaintiffs who would have to prove that such conduct was privileged. While the facts before the Court at this stage of the litigation are sparse, it is certainly not clear, contrary to the plaintiffs' claim, that the defendants will not be able to meet their burden of proof. Accordingly, the motion to dismiss this counterclaim is denied. The defendants' second counterclaim alleges "abuse of process" by the plaintiffs. Abuse of process has been defined as the "misuse or perversion of regularly issued legal process for a purpose not justified by the nature of the process." Board of Education of Farmingdale v. Farmingdale Classroom Teachers Assoc., 38 N.Y.2d 397, 400, 380 N.Y.S.2d 635, 639, 343 N.E.2d 278, 280 (1975). n18 The defendants allege that the plaintiffs so abused process when they served each defendant with a summons and complaint for the sole purpose of harassing, discouraging and intimidating them from further criticizing Scientology. Upon close examination, however, the Court believes that while such allegations may succeed in a suit for malicious prosecution (brought after a successful termination of this litigation), they are insufficient to sustain a cause of action for abuse of process. Hoppenstein v. Zemek, 62 A.D.2d 979, 403 N.Y.S.2d PAGE 43 475 F. Supp. 950, *957; 5 Media L. Rep. 2021 LEXSEE 542 (2d Dep't. 1978) (the mere institution of a civil action by summons and complaint is not legally considered such process as is capable of being abused and thereby does not afford a basis for a cause of action for abuse of process). The plaintiffs' motion to dismiss the defendants' counterclaims for abuse of process is granted. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n18. In this regard it has been noted that even a pure spite motive is insufficient to show abuse of process where process is used only to accomplish the result for which it was created. See Prosser, Law of Torts, @ 121 (4th ed. 1971). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The defendants' final counterclaims allege that the plaintiffs, along with other not-for-profit corporations and organizations affiliated with the Church of Scientology, have engaged in a conspiracy to deprive a class of individuals, of whom the defendants were a part, (described essentially as consisting of critics of the Church of Scientology), n19 of their constitutionally-protected rights in violation of 42 U.S.C. @ 1985(3). The plaintiffs have moved to dismiss, asserting that such class was not formed on the basis of any invidious criteria, and thus that the defendants cannot satisfy the prerequisites for maintaining a section 1985 action. Griffin v. Breckenridge, 403 U.S. 88, 91 S. Ct. 1790, 29 L. Ed. 2d 338 (1971); Jacobson v. Organized Crime and Racketeering, etc., 544 F.2d 637 (2d Cir.), Cert. denied, 403 U.S. 955, 97 S. Ct. 1599, 51 L. Ed. 2d 804 (1977). Although the Court finds this to be a close issue, we conclude that this vague and amorphous alleged class was not formed on the basis of any invidious criteria. See Rodgers v. Tolson, 582 F.2d 315 (4th Cir. 1978) (critics of city commissioners not a valid class); Harrison v. Brooks, 519 F.2d 1358 (1st Cir. 1975) (residential property owners who own adjacent residential land illegally crossed by industrial access driveways not a valid class); Kimble v. D. J. McDuffy, Inc., 445 [*958] F. Supp. 269 (E.D.La.1978) (oil industry workers who had made any prior claim for personal injuries not a valid class). n20 In addition, the defendants have not even made a minimal showing that the two plaintiffs, as opposed to the world-wide Scientology movement in general, have conspired with each other for the purpose of depriving the putative class of their constitutional rights. Accordingly, the plaintiffs' motion to dismiss the defendants' counterclaim based upon 42 U.S.C. @ 1985(3) is hereby granted. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n19. Defendant Deutsch characterized the class as consisting of members and former members, and persons disseminating information about, the Church of Scientology. n20. For cases which have found a valid class for @ 1985 purposes, See Glasson v. City of Louisville, 518 F.2d 899 (6th Cir.), Cert. denied, 423 U.S. 930, 96 S. Ct. 280, 46 L. Ed. 2d 258 (1975); Westberry v. Gilman Paper Co., 507 F.2d 206 (5th Cir. 1975), Vacated as moot, 507 F.2d 215 (5th Cir. 1975); Selzer v. Berkowitz, 459 F. Supp. 347 (E.D.N.Y.1978); Bradley v. Clegg, 403 F. Supp. 830 (E.D.Wis.1975). PAGE 44 475 F. Supp. 950, *958; 5 Media L. Rep. 2021 LEXSEE - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Conclusion The action against defendants Siegelman, Conway and Lippincott is hereby dismissed. The motion of defendant Deutsch is denied, without prejudice, however, to a subsequent motion upon completion of additional discovery. The plaintiffs' motion to dismiss all counterclaims is denied in part and granted in part. The Clerk will enter judgment dismissing the action against defendants, Siegelman, Conway, and Lippincott. SO ORDERED. CITATION: 495 F. Supp. 455 PAGE 46 495 F. Supp. 455 printed in FULL format. CHURCH OF SCIENTOLOGY OF CALIFORNIA, a corporation, Plaintiff, v. Paulette COOPER, Defendant CHURCH OF SCIENTOLOGY OF CALIFORNIA v. COOPER No. CV 78-2053-AAH(PX) UNITED STATES DISTRICT COURT, DISTRICT CENTRAL OF CALIFORNIA 495 F. Supp. 455 June 18, 1980 COUNSEL: Kaplan & Randolph by Mark Vincent Kaplan, Los Angeles, Cal., for plaintiff. Morgan, Wentzel & McNicholas by Darryl Dmytriw, Los Angeles, Cal., for defendant. OPINIONBY: HAUK OPINION: [*455] DECISION AND ORDER GRANTING PLAINTIFF'S AFFIDAVIT FOR DISQUALIFICATION AND REASSIGNMENT OF CASE AND NOTICE TO COUNSEL This matter has now come on for hearing in the above-entitled Court on Monday, June 16, 1980, at 1:00 p.m. upon plaintiff's Motion for Recusal, pursuant to 28 U.S.C. [*456] s 144 n1; 28 U.S.C. @ 455(a) n2 and Canon 3 C of the Code of Judicial Conduct n3; the Affidavits of Muriel Yassky, n4 and Rebecca Chambers, n5 and the Certificate of Good [*457] Faith of Mark Vincent Kaplan, Esq., n6 filed May 16, 1980, together with points and authorities; and arguments of counsel; and the Court having considered all the aforesaid [*458] now makes its Order and Decision granting said Motion for Recusal. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1. @ 144. Bias or prejudice of judge Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding. The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of PAGE 47 495 F. Supp. 455, *458 LEXSEE counsel of record stating that it is made in good faith. n2. @ 455. Disqualification of justice, judge, or magistrate (a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. n3. C. Disqualification (1) A judge shall disqualify himself in a proceeding in which his . . . impartiality might reasonably be questioned, . . . . n4. STATE OF CALIFORNIA ss COUNTY OF LOS ANGELES I, Muriel Yassky, do hereby depose and say: On July 19, 1979, I was present on the premises of the United States District Court, Central District of California, located in Los Angeles. I was working in a voluntary capacity for the Church of Scientology. My function as a volunteer was to perform various duties necessary to the smooth running of the Church related litigation which was ongoing at the time. I was serving in a logistic liaison capacity. At about 10:15 a.m. I was entering the elevator at the Spring Street side of the court house building. I was accosted by a man who yelled "Who are you?" and then he yelled, "Do you work here?" He then grabbed me by the arm and forcefully pulled me out of the elevator. I asked him to identify himself and he did so. He identified himself as Judge Hauk. Judge Hauk ordered me over to the Guard's table and escorted me there. I did not have any identification with me, so Judge Hauk ordered the Guard to accompany me to the witness room where my purse was located to obtain the identification. During the whole period of time that I observed Judge Hauk's behavior, he was very irate. He angrily recounted something about posters and stickers being put up. Apparently the posters had something about Marshals assassinating government witnesses. Judge Hauk referred to this and said he was sick of it. He asked me while at the Guard Table if I was with Scientology. I answered affirmatively. He asked me how long I'd been with Scientology. I answered fifteen years. He asked if I were a member of "this Guardian Office." I answered negatively. While his anger was directed at me personally, he repeatedly questioned me on my connection to Scientology and intermittently made reference to the posters. PAGE 48 495 F. Supp. 455, *458 LEXSEE Judge Hauk informed the Guard that if, while taking me to check my identification, I gave the guard any trouble to, "slap her in irons and bring her to me." As soon as the Judge left, the Marshal walked me back to check my identification and we amicably settled the situation. /s/ Muriel Yassky Muriel Yassky Subscribed and sworn to before me, this 14th day of May, 1980. /s/ Ben Mustard Notary Public [seal] n5. MARK VINCENT KAPLAN Attorney for Plaintiff UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA NO. CV 78-2053 AFFIDAVIT OF DISQUALIFICATION OF HONORABLE A. ANDREW HAUK STATE OF CALIFORNIA ss COUNTY OF LOS ANGELES I. Rebecca Chambers, being duly sworn, deposes and says: 1. She is the duly authorized officer of the Plaintiff in the above-entitled action. 2. The Plaintiff herein believes and avers that the judge before whom this action has been transferred and is now pending, Honorable A. ANDREW HAUK, has a personal bias and prejudice against the said Plaintiff, NO. CV 78-2053 AFFIDAVIT OF DISQUALIFICATION OF HONORABLE A. ANDREW HAUK CHURCH OF SCIENTOLOGY OF CALIFORNIA. PAGE 49 495 F. Supp. 455, *458 LEXSEE 3. The facts and reasons for the belief that such personal bias and prejudice does in fact exist are as hereinafter set forth in the Affidavit on file of MS. MURIEL YASSKY and the foregoing Memorandum of Points and Authorities, and I hereby affirm that all the information contained therein is true and correct to the best of my knowledge and forms the basis of my belief in the existence and extent of the bias of the Honorable A. ANDREW HAUK. Dated: May 15, 1980 /s/ Rebecca Chambers REBECCA CHAMBERS, CHURCH OF SCIENTOLOGY OF CALIFORNIA Subscribed and sworn to before me this 15th day of May, 1980. /s/ Ben Mustard NOTARY PUBLIC [seal] n6. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CHURCH OF SCIENTOLOGY OF CALIFORNIA, a corporation, Plaintiff, v. PAULETTE COOPER, Defendants NO. CV 78 2053 F (PX) CERTIFICATE OF GOOD FAITH MARK VINCENT KAPLAN certifies: 1. That I am counsel of record for the Defendant CHURCH OF SCIENTOLOGY OF CALIFORNIA in this cause; 2. That as such I am familiar with the Affidavit of MURIEL YASSKY, made and filed to attain the recusal of the Honorable ANDREW A. HAUK under 28 U.S.C. @ 144. 3. That I am familiar with the contents of said Affidavit and the reasons it is made and filed in this cause and states that said Affidavit is and was made in good faith and I have sought to examine all the participants with regard to these allegations set forth in Affidavit of Muriel Yassky and that I have found that examination and investigation fully support the veracity of said allegations and find them to be true to the best of my information and belief based on these interviews and examinations. PAGE 50 495 F. Supp. 455, *458 LEXSEE 4. That this Certificate is made in support of the Affidavit for Recusal and is made to fulfill the express requirements of 28 U.S.C. @ 144. Dated: LAW OFFICES OF MARK VINCENT KAPLAN By: /s/ Mark Vincent Kaplan MARK VINCENT KAPLAN - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - FINDINGS AND CONCLUSIONS Since they are based upon 28 U.S.C. @@ 144 and 455 and Code of Judicial Conduct, Canon 3 C, we are required to examine plaintiff's Affidavits and Certificate to determine if they meet the tests required by the United States Code and said Canon, namely, those of (1) timeliness and (2) legal sufficiency. If they do, then the factual allegations contained in the Affidavit must be taken as true and the Court has no power or authority to contest in any way whatsoever the necessary acceptance of truthfulness of the facts alleged, even though the Court may be aware of facts which would indicate clearly the falsity of any such allegations. Berger v. United States, 255 U.S. 22, 33, 41 S. Ct. 230, 65 L. Ed. 481 (1921); Botts v. United States, 413 F.2d 41 (9th Cir. 1969); United States v. Tropiano, 418 F.2d 1069 (2d Cir. 1969); Lyons v. United States, 325 F.2d 370 (9th Cir. 1963), cert. den. 377 U.S. 969, 84 S. Ct. 1650, 12 L. Ed. 2d 738 (1964). See also: United States v. Zarowitz, 326 F. Supp. 90, 91 (C.D.Cal.1971), United States v. Zerilli, 328 F. Supp. 706, 707 (C.D.Cal.1971), Spires et al. v. Hearst, 420 F. Supp. 304, 306-307 (C.D.Cal.1976), State of California et al. v. Kleppe, 431 F. Supp. 1344 (C.D.Cal.1977), and Hayes v. National Football League et al., 463 F. Supp. 1174 (C.D.Cal.1979). Cf.: Mavis v. Commercial Carriers, Inc., 408 F. Supp. 55, 58 (C.D.Cal.1975). While perhaps not essential, it does seem to us appropriate, that we should now affirm that the Judge herein does not have, nor did he ever have, any personal bias or prejudice in the slightest degree for or against any of the parties to the case, cause and proceeding herein, and more particularly, does not now have and never did have any such personal bias or prejudice in the slightest degree against the Church of Scientology, plaintiff herein. Nor has the Judge ever knowingly or unknowingly given any cause for allegations of any such alleged personal bias or prejudice, or belief therein or suspicion thereof. At the outset it might be argued with some possible justification that the plaintiff's Affidavits and Certificate are not "timely" within the meaning of 28 U.S.C. @ 144, since they were not filed until May 16, 1980, whereas the action herein was transferred to this Court from the Hon. Warren J. Ferguson on December 27, 1979. However, it should be noted that this Court's Clerk received from plaintiff's counsel, Mark Vincent Kaplan, Esq., a letter addressed to the Court dated February 4, 1980, n7 requesting the Court to recuse itself [*459] from the matter herein. The Clerk's response to this request was made in a letter from Law Clerk Brian A. Sun to Mr. Kaplan, dated February 11, 1980, n8 indicating to [*460] Mr. Kaplan that this Court would not act upon his letter because his ex-parte communication with the Court was inconsistent with and in violation of Local Rule 1.8 of the Rules of the United States District PAGE 51 495 F. Supp. 455, *460 LEXSEE Court, Central District of California. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n7. February 4, 1980 The Honorable A. Andrew Hauk Judge of the United States District Court 312 N. Spring Street Los Angeles, California 90012 Re: Church of Scientology of California v. Paulette Cooper Case No. CV 78-2053-F (Px) Dear Judge Hauk: Please be advised that I am the attorney of record for the Church of Scientology of California in the above-referenced matter. As the file in this matter will clearly reflect, I was substituted as counsel of record on or about the date of October 15, 1979. Within the last two weeks, it has come to the attention of my client and myself, that a bias exists on behalf of the Court in this matter. As will hereinafter be more fully set forth, the result of this bias compels me to request that this Honorable Court disqualify itself on the basis of the alleged bias regarding the Church of Scientology of California. I am writing this letter on an informal basis and should the Court so desire, I will proceed, if necessary, with a formal affidavit and certificate of good faith pursuant to 28 U.S.C. @ 144 and @ 455, as hereinafter indicated. Finally, I wish to state that although my attention was first addressed to the factual criteria which give rise to this letter within the last few weeks, I have awaited sufficient documentation from my client for the purposes of documenting the events which are alleged to have occurred. As we are all aware, the transfer of this case before this Honorable Court from the Court of Judge Ferguson was a result of the elevation of Judge Ferguson to the Ninth Circuit Court of Appeals. I pursue this matter with the Court at this time inasmuch as there have been no substantive proceedings regarding the subject case addressed to this Court to date. The factual incidents which have given rise to the opinion of my client, in which counsel joins, are as follows: 1. On or about July 19, 1979, one Muriel Yassky, a member of the Church of Scientology, was present at the United States District Court building for the Central District of California. Ms. Yassky was standing outside the elevators PAGE 52 495 F. Supp. 455, *460 LEXSEE on the fourth floor when, it is alleged, that Your Honor ordered Ms. Yassky out of the elevator and proceeded to direct Ms. Yassky to the guard's table for the purpose of identifying herself and her purposes for being in the Courthouse building. It is further alleged that Your Honor requested Ms. Yassky to identify whether she was with Scientology and/or with "this guardian office", referring to the office of the Church of Scientology. 2. Evidently, at the time of the incident, posters had been placed upon Courthouse property indicating, in substance, that marshals were responsible for the killing of government witnesses. Ms. Yassky indicated that from the manner in which Your Honor focused upon her presence and her affiliation with Scientology, that Your Honor seemed to equate the responsibility for the posting of these anti-government slogans with members of the Church of Scientology. From the data available to the undersigned, there is no reason why the presence of anti-government posters in the Courthouse should any way have been automatically equated with the presence of Scientologists in the Courthouse. I am prepared, if necessary, to supply affidavits from the principals involved in this matter to substantiate the relevant factual allegations. The undersigned joins in the good faith belief of my client that the facts of the subject incident indicate that there exists on behalf of the Court, a bias towards members of Scientology as well as Scientology as an organization. I would be prepared, if necessary, to file a formal affidavit and certificate of good faith placing before the Court our request for disqualification in the above-referenced matter pursuant to 28 U.S.C. @ 455, 28 U.S.C. @ 144, Canon 3 C of the Code of Judicial Conduct as amended to date. Finally, I respectfully request that this Court reassign the above-referenced matter to a different Court in accordance with local Rule 2 as well as other applicable rules and orders of this Court. The exercise of your sound discretion will be greatly appreciated and I remain ready to proceed should the Court so desire. Sincerely, LAW OFFICES OF KAPLAN AND RANDOLPH MARK V. KAPLAN MVK/ia - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - n8. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA UNITED STATES COURTHOUSE LOS ANGELES, CALIFORNIA 90012 PAGE 53 495 F. Supp. 455, *460 LEXSEE CHAMBERS OF A. ANDREW HAUK UNITED STATES DISTRICT JUDGE February 11, 1980 Mark V. Kaplan, Esq. Law Offices of Kaplan and Randolph 11620 Wilshire Boulevard Sixth Floor Los Angeles, California 90025 Dear Mr. Kaplan: In response to your letter of February 4, 1980, you should be advised that Local Rule 1.8 of the United States District Court, Central District of California, entitled "Correspondence and Communications with the Judge," clearly states that attorneys "should refrain from writing letters to the Judge" of an ex parte nature or "otherwise communicating with the Judge unless opposing counsel is present." Judge Hauk follows a policy which adheres to the aforesaid rule and would expect your request to be submitted the proper written form and notice given to all parties involved. At that time, your recusal request will be addressed by the Court. If you have any questions regarding this matter, please do not hesitate to contact me. Sincerely, /s/ Brian A. Sun Brian A. Sun Law Clerk to Judge A. Andrew Hauk - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - While the Court, therefore, has some doubt about the validity of measuring "timeliness" by the five week interval which elapsed between the date of transfer of this case from Judge Ferguson and Mr. Kaplan's February 4, 1980, letter, rather than by the five month interval between Judge Ferguson's transfer and the filing of the within Motion, the Court nevertheless finds that the herein Affidavits and Certificate were timely, and Mr. Kaplan's letter-writing efforts to bring this Motion to the attention of the Court, while not made in accordance with the Local Rules and accepted practice, were apparently made in good faith and sufficiently set forth legal "timeliness." PAGE 54 495 F. Supp. 455, *460 LEXSEE Now, the next question is whether or not the Affidavit and Certificate are "legally sufficient" within the meaning of the same statutory sections and Canon. Certainly they appear to be and the Court so finds. They are in proper form; they assert alleged facts and not just conclusions of law; and so, in line with the cases the Court has previously cited, they are legally sufficient. The only question left is whether facts are alleged which require the Judge to disqualify or recuse himself under 28 U.S.C. @ 455(a) and Code of Judicial Conduct, Canon 3 C. As stated earlier, the Court recognizes that the factual allegations contained in the Affidavit must be taken as true and the Court has no power or authority to contest in any way whatsoever the necessary acceptance of truthfulness of the facts alleged, even though the Court may be aware of facts which would indicate clearly the falsity of any such allegations. In that regard, and for the record, the Court strongly takes issue with the alleged facts asserted in the Affidavits of Muriel Yassky and Rebecca Chambers, and the Certificate of Good Faith of Mark Vincent Kaplan, Esq. The so-called "elevator incident" referred to in plaintiff's moving papers did not occur exactly as alleged. On July 19, 1979, upon Judge Hauk's driving into the Courthouse garage, Federal Protective Service Contract Guard Officer Jennifer Jackman, guarding the entrance to the Main Street Garage, told Judge Hauk that a number of stickers had been found pasted to the front door of the building, the sentry box on the Spring Street Parking level, and elsewhere, labelling the United States Marshals as assassins. She reported to Judge Hauk that she had also heard about an episode of a lady found wandering in a Judge's private hallway. Acting in his capacity as Vice Chairman of the Security Committee, and Acting Chairman in Judge Firth's absence, and carrying out the duties delegated to him by the mandatory and unanimous Order of all [*461] of the Judges of this Federal District Court, Judge Hauk proceeded to inquire further into these reports. He checked with the United States Marshal's Office who reported that they had heard of the same incidents and told him that copies of the label were in the Federal Protective Service Office on the Main Street level. Judge Hauk proceeded there and saw one of the labels, green background with black printing, and the legend: n9 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n9. [SEE ILLUSTRATION] - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - U. S. Marshals Are Assassinating Governments Witness." Judge Hauk then went out into the Main Street lobby area to discuss with the Federal Protective Service Contract Guard there, Walter H. Bonner, whether or not he (Bonner) had seen any unusual or improper activities with respect to the pasting of the labels, the use, or misuse, of the Main Street garage and Spring Street parking area by any unauthorized persons, or any other activities indicating any breach of security in the Courtrooms or Courthouse. At that time, Judge Hauk noticed, standing between himself and the officer, near the officer's desk, and in the space immediately adjacent to the elevators, a PAGE 55 495 F. Supp. 455, *461 LEXSEE young lady, apparently endeavoring to eavesdrop upon Judge Hauk's conversation with the Officer. When Judge Hauk looked at her, she turned her eyes up and pretended not to be listening or interested in what he was saying. Judge Hauk went over and asked her what she was doing in the building and she replied "Oh, nothing in particular." He asked her again what she was doing, and she again said "Nothing in particular." The Judge asked her name, and she refused to give it to him, and said she was going upstairs "for a cup of coffee." Whereupon Judge Hauk asked her to come over to the officer's desk, and escorted her to said desk to answer a few questions. She came over and Judge Hauk asked her name, address and telephone number, requesting the Officer to write them down as she gave them Muriel Yassky, 5959 Franklin Avenue, Apt. 407, Hollywood, California 90028, phone no. 462-0135. Judge Hauk further asked her for her I.D., which she said was "upstairs in the waiting room." At that point, the Chief Deputy Marshal, James L. Propotnick, appeared on the scene and Judge Hauk asked him to go with the young lady to the waiting room and check out the I.D. she mentioned. At no time did Judge Hauk ever state that Ms. Yassky should be "slapped in irons" if she resisted the Marshals. Despite the problems the Court has with the factual allegations contained in plaintiff's motion, and despite the Court's firm recollection and conviction that the allegations are false, it feels compelled and bound to follow the more prudent course of granting the plaintiff's Motion for Recusal. Canon 3 C(1) and 28 U.S.C. @ 455(a) mandate that a Judge shall disqualify himself whenever "his impartiality might reasonably be questioned." The Court herein finds that plaintiff's Motion for Recusal, while indeed false and erroneous in its allegations, is based upon what Ms. Yassky and plaintiff's counsel apparently feel is reasonable. Moreover, it has been said in some cases and by some authorities that recusal should be granted, pursuant to the aforementioned Canon 3 C(1) of the Code of Judicial Conduct, and 28 U.S.C. @ 455(a), in such a situation, even when the Court is in doubt as to the "reasonableness" of an affiant's belief. This conclusion is reached on the basis of the Court's recognition of the sensitive nature of the case itself and the principles underlying the pertinent sections of the United States Code and the Code of Judicial Conduct, as well as other relevant [*462] factors governing Judicial disqualifications, having in mind that when in doubt the Court should resolve the issue in favor of the party seeking recusal. E. g. Mims v. Shapp, 541 F.2d 415, 417 (3d Cir. 1976); Hodgson v. Liquor Salesmen's Union, 444 F.2d 1344, 1348 (2d Cir. 1971). Of course, this does not constitute any finding or conclusion that the plaintiff's allegations are factually true or have any real substantive merit, nor does it have any bearing whatsoever upon the merits of the basic cause of action. ORDER NOW, THEREFORE, IT IS HEREBY ORDERED: 1. That the undersigned Judge does hereby disqualify and recuse himself from any and all further matters in the within case, cause and proceeding, pursuant to 28 U.S.C. @ 455(a) and Canon 3 C(1) of the Code of Judicial Conduct, as amended to date, and pursuant, of course, also, to the Affidavits and Certificate filed herein by and on behalf of the plaintiff; PAGE 56 495 F. Supp. 455, *462 LEXSEE 2. That the within case, cause and proceeding be and the same hereby is returned to the Clerk for random transfer and reassignment by the Clerk to another Judge of this District Court, Central District of California, in accordance with the applicable Rules and Orders of this Court, particularly General Order No. 104, filed January 18, 1971, Part Two, Section One, Paragraph I; and 3. That the Clerk serve copies of this Decision and Order forthwith by United States mail on counsel for all parties appearing in this case, cause and proceeding. CITATION: 644 P.2d 577 PAGE 58 644 P.2d 577 printed in FULL format. CHRISTOFFERSON, Respondent, v. CHURCH OF SCIENTOLOGY OF PORTLAND et al, Appellants CHRISTOFFERSON v. CHURCH OF SCIENTOLOGY OF PORTLAND CA No. 15952 Court of Appeals of Oregon 57 Ore. App. 203; 644 P.2d 577; 40 A.L.R.4th 1017 September 3, 1981, Argued and submitted May 3, 1982 SUBSEQUENT HISTORY: Appellants' and Respondent's Reconsiderations Denied June 10, 1982. Both Petitions for Review Denied August 3, 1982 (293 Or 456). PRIOR HISTORY: Appeal from Circuit Court, Multnomah County. Robert P. Jones, Judge. No. A7704-05184. DISPOSITION: Reversed as to defendants Church of Scientology of Portland and Delphian Foundation; reversed and remanded for a new trial as to defendants Samuels and Church of Scientology, Mission of Davis. COUNSEL: Charles J. Merten, Portland, and Emily M. Bass, New York, New York, argued the cause for appellants. On the briefs was Charles J. Merten, Portland. Garry P. McMurry, Portland, argued the cause for respondent. With him on the brief were Patric J. Doherty, Ronald L. Wade, Rankin, McMurry, VavRosky & Doherty, William T. Powers and Powers & Powers, Portland. Elden M. Rosenthal and Leslie M. Roberts, Portland, filed a brief amicus curiae for Cooperating Counsel for the American Civil Liberties Union of Oregon. James K. Hoops, Lee Boothby, and Robert W. Nixon, Portland, filed a brief amicus curiae for Americans United for Separation of Church and State. JUDGES: Gillette, Presiding Judge, Young, Judge, and Roberts, Judge Pro Tempore. OPINIONBY: GILLETTE OPINION: [*205] [**580] Defendants appeal from the judgment entered on a jury verdict in favor of plaintiff in her action for fraud and intentional infliction of emotional distress ("outrageous conduct"). n1 Plaintiff's fraud cause of action alleged 14 misrepresentations which induced her to pay some $ 3,000 to defendants. Her cause of action for outrageous conduct alleged in two counts a scheme to gain control of her mind and to force her into a life of service to defendants and a course of retaliatory conduct after plaintiff disassociated herself from defendants. Defendants interposed various defenses, including a defense based upon the Free Exercise Clause of the First Amendment. The jury awarded compensatory and punitive damages. We reverse and remand. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - PAGE 59 57 Ore. App. 203, *205; 644 P.2d 577, **580; LEXSEE 40 A.L.R.4th 1017 - n1 Plaintiff's complaint also contained a cause of action for Unlawful Trade Practices against all defendants. The jury found that the action was barred by the statute of limitations as to all defendants except the Church of Scientology of Portland. As to the Church, it awarded no damages on that claim, and we are not asked to review that verdict. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - THE PARTIES AND THE FACTUAL BACKGROUND Plaintiff is a young woman who moved to Portland from Eureka, Montana, in July, 1975, shortly after she graduated from high school, intending to obtain some work experience before going to college in the fall to study civil engineering. When she first arrived, she stayed for a few days with a friend from Montana, Pat Osler, and then moved into an apartment with a young woman she met through Osler. She soon found a job with an engineering firm and worked there full-time. Defendants are the Church of Scientology of Portland (COSOP), a religious corporation; the Church of Scientology, Mission of Davis (the Mission), also a religious corporation; the Delphian Foundation (Delphian), a nonprofit educational institution not expressly organized as a church-related school; and Martin Samuels, an ordained minister of the Church of Scientology and the president of the Mission and Delphian. The beliefs of Scientology were summarized in Founding Church of Scientology v. United States, 409 F2d 1146, 1151-52, (DC Cir 1969), in a manner which appears to be accurate according to the record before us in this case: [*206] "The movement apparently rests almost entirely upon the writings of one man, L. Ron Hubbard, an American who maintained the headquarters of the [**581] movement in England at the time this action was brought. In the early 1950's, Hubbard wrote tracts elucidating what he called 'Dianetics.' Dianetics is a theory of the mind which sets out many of the therapeutic techniques now used by Scientologists, * * *. "The basic theory of Dianetics is that man possesses both a reactive mind and an analytic mind. The analytic mind is a superior computer, incapable of error, to which can be attributed none of the human misjudgments which create social problems and much individual suffering. These are traceable rather to the reactive mind, which is made up of 'engrams,' or patterns imprinted on the nervous system in moments of pain, stress or unconsciousness. These imprinted patterns may be triggered by stimuli associated with the original imprinting, and may then produce unconscious or conditioned behavior which is harmful or irrational. "Dianetics is not presented as a simple description of the mind, but as a practical science which can cure many of the ills of man. It terms the ordinary person, encumbered by the 'engrams' of his reactive mind, as a 'preclear,' by analogy to a computer from which previously programmed instructions have not been erased. The goal of Dianetics is to make persons 'clear,' thus freeing the rational and infallible analytical mind. The benefits this will bring are set PAGE 60 57 Ore. App. 203, *206; 644 P.2d 577, **581; LEXSEE 40 A.L.R.4th 1017 out in considerable and alluring detail. All mental disorders are said to be caused by 'engrams,' as are all psychosomatic disorders, and that concept is broadly defined. "A process of working toward 'clear' is described as 'auditing.' This process was explicitly characterized as 'therapy' in Hubbard's best-selling book DIANETICS: THE MODERN SCIENCE OF MENTAL HEALTH (1950). The process involves conversation with an 'auditor' who would lead the subject or 'preclear' along his 'time track,' discovering and exposing 'engrams' along the way. Though auditing is represented primarily as a method of improving the spiritual condition of man, rather explicit benefits to bodily health are promised as well. Hubbard has asserted that arthritis, dermatitis, asthma, some coronary difficulties, eye trouble, bursitis, ulcers and sinusitis are psychosomatic and can be cured, and further that tuberculosis is 'perpetuated by engrams.' "* * * [*207] "The Hubbard Electrometer, or E-meter, plays an essential, or at least important, part in the process of auditing. The E-meter is a skin galvanometer, similar to those used in giving lie detector tests. The subject or 'preclear' holds in his hands two tin soup cans, which are linked to the electrical apparatus. A needle on the apparatus registers changes in the electrical resistance of the subject's skin. The auditor asks questions of the subject, and the movement of the needle is apparently used as a check of the emotional reaction to the questions. According to complex rules and procedures set out in Scientology publications, the auditor can interpret the movements of the needle after certain prescribed questions are asked, and use them in diagnosing the mental and spiritual condition of the subject." (Footnotes omitted). From Dianetics developed Scientology, which incorporates Dianetics, but includes broader concepts. As characterized in Founding Church, supra: "With Scientology came much of the overlay which lends color to the characterization of the movement as a religious one. Hubbard has claimed kinship between his theories and those espoused by Eastern religions, especially Hinduism and Buddhism. He argues that man is essentially a free and immortal spirit (a 'thetan' in Scientological terminology) which merely inhabits the 'mest body' ('mest' is an acronym of the words matter, energy, space, time). Man is said to be characterized by the qualities of 'beingness,' 'havingness,' and 'doingness.' The philosophical theory was developed that the world is constructed on the relationships of 'Affinity,' 'Reality' and 'Communication,' which taken together are denominated 'the [**582] ARC Triangle.'" 409 F2d at 1152. (Footnotes omitted). The thetan is said by Hubbard to be immortal; it is the spirit controlling the body, through the mind. After the death of the body, the thetan "exteriorizes" and returns in another body. The thetan does not care to remember the life just lived when separated from the body and mind, but because each individual comes back, he is responsible for what goes on today because he will experience it tomorrow. Plaintiff became involved with Scientology n2 almost immediately upon arriving in Portland. Her friend Osler [*208] was taking courses from the PAGE 61 57 Ore. App. 203, *208; 644 P.2d 577, **582; LEXSEE 40 A.L.R.4th 1017 Mission and, on his advice, she enrolled in a communications course offered by the Mission. As part of the enrollment process, she also applied for membership in the Church of Scientology. Because she was not yet 18 years old, she was told that she must obtain her mother's consent to receive the services offered by the Mission. She telephoned her mother and dictated a consent form which her mother typed, signed and returned. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2 References to "Scientology" refer to plaintiff's involvement with the movement in general and do not refer to plaintiff's relationship with any particular defendant. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Plaintiff paid $ 50 for the communications course and began attending classes at the Mission every evening after work and at least one day on the weekends. Before completing the communications course, she signed up for another course and continued to participate in courses and services offered at the Mission until the beginning of October, 1975. In early September, plaintiff applied to become a provisional staff member at Delphian, located at Sheridan, Oregon. She informed her parents that she had decided not to attend college that fall. Moving to Delphian in early October, she worked as a provisional staff member until the beginning of December. At that time, she was asked to leave Delphian until she could convince her mother to stop opposing her involvement in Scientology. Plaintiff moved from Sheridan back to Portland and worked as a waitress. While there, she worked with a staff member of the Mission, attempting to convince her parents not to interfere with Scientology. Plaintiff went home for Christmas and then returned to Portland in the early part of January, 1976. She lived with several people, mainly Scientologists, and continued to work as a waitress. She did not participate in courses or programs at the Mission, but continued to work on "handling" her parents. In April, 1976, plaintiff went to her parents' home in Montana to "handle" them, that is, to convince them to accept her involvement in Scientology, or else to "disconnect" from them. When she reached home, she was locked in the house and "deprogrammed." She did not return to her involvement with Scientology and, in fact, became active in anti-Scientology activities and participated in "deprogramming" others. She filed this action in 1977. [*209] Defendants raise 52 assignments of error, covering nearly every phase of the proceedings from pretrial to post-verdict. Organization of the issues is somewhat complicated by the various causes of action and the various defendants. Several assignments involve the First Amendment defense raised by defendants. However, before reaching the constitutional issues which must be decided in this case, we first consider non-constitutional challenges to the outrageous conduct cause of action. OUTRAGEOUS CONDUCT Plaintiff alleged two counts of outrageous conduct. The first alleged a scheme to gain control of her mind and to force her into a life of service to PAGE 62 57 Ore. App. 203, *209; 644 P.2d 577, **582; LEXSEE 40 A.L.R.4th 1017 defendants. The allegations in this count involve actions committed by defendants during the time that plaintiff was involved with Scientology. At the close of the case, defendants moved for directed verdicts on this cause of action, arguing that, as a matter of law, plaintiff had not proved acts that exceeded the limits of social toleration. n3 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n3 The motion below was directed to both counts of the outrageous conduct claim. On appeal, defendants argue that there was no outrageous conduct as a matter of law as to Count II. As to Count I, defendants do not make that precise argument, but make several other arguments, including the argument that the actions are protected by the First Amendment. We decide the issue as to both counts on the non-constitutional basis rather than reach the constitutional issue as to Count I. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**583] The tort of intentional infliction of emotional distress, or outrageous conduct, is still in the process of developing in this state. For example, there remain some questions as to what state of mind is required in particular situations to subject a defendant to liability. See Brewer v. Erwin, 287 Or 435, 454-58, 600 P2d 398 (1979); compare Turman v. Central Billing Bureau, 279 Or 443, 568 P2d 1382 (1977), with Rockhill v. Pollard, 259 Or 54, 485 P2d 28 (1971). A "special relationship" between the parties has played a role in every case in this state involving this tort. n4 [*210] The tort was characterized in Turman v. Central Billing Bureau, supra, as "'* * * an abuse by the actor of a position, or a relation with the other, which gives him actual or apparent authority over the other, or power to affect his interests. * * *.'" 279 Or at 446. See also Brewer v. Erwin, supra (landlord and tenant); Rockhill v. Pollard, supra (doctor and patient); Fitzpatrick v. Robbins, 51 Or App 597, 626 P2d 910, rev den 291 Or 151 (1981) (landlord and tenant); Bodewig v. K-Mart, 54 Or App 480, 635 P2d 657 (1981), rev den 292 Or 450 (1982) (employer-employe). n5 The role of that relationship has recently been explored in Hall v. May Department Stores Co., 292 Or 131, 637 P2d 126 (1981), a case involving an employer-employe relationship, in which the court stated: "The character of the relationship bears on the mental element required to impose liability, compare Rockhill with Turman and Brewer, and also on the next issue, the offensiveness of conduct that crosses the threshold of potential liability, see Pakos v. Clark, [253 Or 113, 453 P2d 682 (1969)]." 292 Or at 137. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n4 Brewer specifically did not decide whether there could be recovery in a situation in which there was no special relationship and where only recklessness was shown. One of defendants' assignments of error concerns an instruction which informed the jury that plaintiff could recover if defendants acted recklessly. Plaintiff had previously withdrawn portions of her complaint which alleged a special relationship between her and defendants. We do not reach the issue of the instruction because we dispose of the outrageous conduct claims PAGE 63 57 Ore. App. 203, *210; 644 P.2d 577, **583; LEXSEE 40 A.L.R.4th 1017 on other grounds. n5 Bodewig involved one party defendant who had no special relationship to the plaintiff. However, even in that case, some of the acts necessary to establish the tort were committed only by the employer-defendant, albeit with the other party defendant's encouragement. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - A plaintiff's particular susceptibility to distress has also played a part in certain of the cases. See Rockhill v. Pollard, supra (plaintiff already distraught because of automobile accident and injury to child); Turman v. Central Billing Bureau, supra (plaintiff blind and suffering from glaucoma, requiring treatment by clinic for which bill was being collected); Fitzpatrick v. Robbins, supra (plaintiffs aged and visually disabled). Part of the uniqueness of this case lies in the absence of both of the considerations just discussed. At the close of the evidence, plaintiff withdrew the portion of her complaint which alleged a special relationship between her and defendants. Neither does she argue on appeal that she was in any way particularly susceptible to the infliction of emotional distress. n6 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n6 Plaintiff was 17 years old when she first enrolled in the communications course but turned 18 soon after. She does not contend that her age or the fact that she was living on her own for the first time made her particularly susceptible to the infliction of emotional distress. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*211] The type of conduct for which liability may be imposed for infliction of emotional distress, absent physical injury, is not well defined. Rockhill v. Pollard, supra, rejected [**584] the description in Restatement (Second) of Torts, @ 46 (1965) n7 and decided: "We need a simpler test and think it best for this case to merely hold that the conduct must be outrageous in the extreme. It is our impression that the test for liability in these cases can only be worked out on a case by case basis. Here we must determine whether defendant's conduct was so extreme as to warrant the imposition of liability for any severe emotional distress caused thereby." 259 Or at 59-60. In later cases, the type of conduct which would subject a defendant to liability has been characterized as "beyond the limits of social toleration." Brewer v. Erwin, supra, 287 Or at 458; see also, Hall v. May Department Stores Co., supra, 292 Or at 137. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n7 The Restatement describes the conduct which gives rise to liability as follows: PAGE 64 57 Ore. App. 203, *211; 644 P.2d 577, **584; LEXSEE 40 A.L.R.4th 1017 "* * * It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by 'malice,' or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, 'Outrageous!'" Restatement (Second) of Torts, @ 46, comment d (1965), quoted in Rockhill v. Pollard, supra, 259 Or at 59-60. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Although it is ordinarily for the trier of fact to determine not only the historical facts, but also "whether the offensiveness of the defendant's conduct exceeds any reasonable limit of social toleration," Hall v. May Department Stores Co., supra, 292 Or at 137, "[i]t [is] for the trial court to determine, in the first instance, whether the defendants' conduct may reasonably be regarded as so extreme and outrageous as to permit recovery. If the minds of reasonable men would not differ on the subject the court [is] obliged to grant an order of involuntary nonsuit * * *." Pakos v. Clark, supra, 253 Or at 132. [*212] The trial court here erred in denying defendants' motions for a directed verdict as to Count I of the outrageous conduct cause of action. We find no conduct both alleged and proved under that count that could subject defendants to liability for the tort. Plaintiff's first count alleges: "That the above misrepresentations and other unlawful practices were part of a scheme to gain control of Plaintiff's mind and force her into a life of service to the Defendants. She was intentionally alienated from her family and friends. Plaintiff's ability to direct her life and form reasonable judgments was intentionally impaired by Defendants through the use of a crude polygraph, intense peer pressure and other covert means. She was coerced into performing labor for which she was not paid. She was held up to ridicule, humiliated, and forced under threat of retribution and physical harm to follow the dictates of the Defendants, and caused to give Defendants all the monies she had or could beg or borrow from others. "As part of the above scheme, Defendants caused Plaintiff to believe and fear that she would be subject to severe punishment should she ever bring suit against Defendants, voice her disapproval of Defendants' practices, testify against Defendants, demand a return of money from Defendants or commit any other act Defendants determined to be against their interests." In this pleading, defendants' intent, their conduct and the effect on plaintiff are interwoven. However, this interweaving should not be permitted to obscure the fact that each of the three elements -- intent, conduct which is outrageous or beyond the limits of social toleration, and resultant severe emotional distress -- must be proved. In the present case, defendants made no [**585] argument concerning intent, but they maintain that there is not PAGE 65 57 Ore. App. 203, *212; 644 P.2d 577, **585; LEXSEE 40 A.L.R.4th 1017 sufficient evidence of either of the last two elements -- the outrageous conduct and the resultant distress -- to permit the case to go to a jury. We agree that there is no sufficient evidence of the resultant severe emotional distress. However, that specific basis for taking the case from the jury was not argued to the trial court and we therefore decline to reverse the court on that basis. This brings us to a consideration of the evidence concerning defendants' conduct. It is only by proof of conduct that is "beyond the limits of social toleration" that plaintiff may recover in an action for outrageous [*213] conduct, no matter what defendants may have intended and no matter what the effect on plaintiff may have been. n8 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n8 It may well be that much of the effect on plaintiff that is alleged is not "emotional distress" either, but we need not consider here whether recovery for such effects may be had in an action for outrageous conduct. We note that the misrepresentations which are re-alleged are the same misrepresentations which form the basis for the fraud action. These representations are not separately sufficient to be actionable as outrageous conduct. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - With respect to the well-pleaded allegations, the evidence, viewed in the light most favorable to plaintiff, is as follows. Plaintiff enrolled in the communications course on the advice of her friend Pat Osler. She paid $ 50 and began the course almost immediately. In signing up for the course, plaintiff filled out forms which stated that she was applying for membership in the Church of Scientology and which explained that Scientology was a religion. Because she was 17 years old at the time, she was required to get permission from her mother to take the course and did so. Plaintiff did not pay any attention to the explanations of the religious nature of the courses because she was told that she had to fill out the forms in order to be allowed to take the communications course, and that was all she was interested in. Plaintiff found a job working full-time in an engineering office in Portland and was living with a non-Scientologist roommate. She testified that she would go to work until 5 p.m. or 6 p.m. and then attend class every evening from about 7 p.m. until between 10 p.m. and midnight. She also attended class at least one full day, and often both days, on weekends. This schedule continued from July 13, when she began the communications course, until the beginning of October, when she moved to Delphian. At the same time, plaintiff maintained contact with family members and friends in the Portland area, visiting them a number of times and corresponding regularly with her mother. The communications course in which plaintiff first enrolled consisted of a set of "drills" which were practiced on an individual basis with a supervisor. As part of each drill plaintiff would read bulletins which described the theory of the particular drill to be undertaken. She was [*214] then "checked out" on that information to be certain that she understood what she had read. Then she would practice the drill "to a win," that is, until she could complete the drill as prescribed. After completing each of eight drills, plaintiff repeated each on a more difficult level until a final pass was achieved. PAGE 66 57 Ore. App. 203, *214; 644 P.2d 577, **585; LEXSEE 40 A.L.R.4th 1017 The drills were described by plaintiff at trial. The first drill involved reading a bulletin entitled "How to Study" and being checked out on it. The second drill involved reading the prescribed bulletin and then sitting across from another person with eyes closed and attempting to clear her mind of all thoughts and to eliminate all outside influences or distractions. She testified that she practiced this drill for "a couple of hours" before her supervisor indicated that she had completed it to a win. The third drill involved the same procedure, except that she sat across from her supervisor with her eyes open. The fourth drill is called "bullbaiting." Plaintiff described it as follows: "* * * You're sitting with your eyes open facing another person. The other person, while you're sitting there staring at them, tries to distract you by telling you jokes, making fun of you, pointing at [**586] you, touching you, making faces at you, trying anything that they can to make you laugh or twitch or cry or frown - make any sort of acknowledgement that you heard what he said or saw what he did. "And the objective is to be able to sit there while that person says anything to you and does anything around you without thinking about what they're doing, and without getting mad - making any gestures. "Q: How was it practiced on you? "A: Well, first of all they started by just telling me jokes and I like a good joke and I would laugh. And they would say: Flunk, you laughed. And they would start you all over again on the same drill and they would tell the same jokes until they reached a point that you no longer laughed at it. "They would make fun of me. * * * Well, they teased me about my religion; they teased me about sex; they teased me about my looks. Some of them made gestures toward me like coming up close to me as if they were going to kiss me or touch me. * * * As soon as they found an area that caused me to laugh more or to frown or to cry, they would [*215] go into that area in depth and * * * try and get me embarrassed or to cry or make some sort of reaction. "Q: Did they use obscene words or any foul language? "A: Yes, they did. I was embarrassed by obscene words and they used obscene words a lot. Every obscene word that I ever heard was used. "Q: Were you reduced to tears? "A: Yes, I was, at times. "Q: How long did the bullbaiting thing go on? "A: I was bullbaited several different times during the communications course, through three weeks." After plaintiff was able to complete the bullbaiting drill, she participated in teaching it to other people. n9 PAGE 67 57 Ore. App. 203, *215; 644 P.2d 577, **586; LEXSEE 40 A.L.R.4th 1017 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n9 There was other testimony regarding the experiences of others in bullbaiting on other occasions when plaintiff was not present. However, in considering defendants' conduct toward this plaintiff, we consider as relevant only what plaintiff experienced. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The next drill required that plaintiff read sentences from Lewis Carroll's Alice in Wonderland and Through the Looking Glass until she was able to read without any inflection. After that drill plaintiff participated in a drill which was described as "learning to acknowledge someone." "And in that drill the person that's acting as coach would * * * ask you a question and all you were supposed to do is acknowledge them by saying: 'Good,' or 'Yes.' And you weren't supposed to put again any inflection in your voice. You were supposed to just say it. * * * There was no specific meaning to it or anything; just to get the person to know that you heard what they said. "Q: What type of questions were asked? "A: There were two questions; one was * * * I don't think they were all questions. I think the person just read phrases out of the books 'Through the Looking Glass' and 'Alice in Wonderland.'" The next drill was learning how to receive an acknowledgment from a person. "And what that was there were two questions. The first one was 'do fish swim' and the second one was 'do birds fly.' * * * [Y]ou sat across from the coach and you say to him: Do fish swim. And the coach tries to ignore you and you try to say it in as much of a forceful manner that you get an acknowledgement from him. And he will sit there [*216] and laugh at what you're doing, or totally ignore you. And you're supposed to just sit there and stare right at him and clear your head of all thoughts and ask him this question with such force that he feels he has to answer you. "And then, as another step up from that same drill, the coach, instead of just ignoring you or laughing, will begin to make remarks just like in the bullbaiting drill. You will say: Do birds fly. He [**587] will say: I don't know, what do you think. And then you're supposed to just repeat the question 'Do birds fly' until you get him to answer. And he will - sometimes the person will say that they have a headache or that they want a drink of water and you're supposed to say - you're supposed to get them to forget that they have a headache or that they need something and to answer your question for you." Plaintiff's memory was not clear on four further drills, called "upper indoctrination" drills. One involved reading a bulletin entitled "What is Control," which plaintiff remembered as "telling you how to control people and how to achieve the response and the actions that you want to achieve from the other person." Another involved learning commands, such as "Look at the wall, walk over to that wall, touch that wall, turn around." In another drill, PAGE 68 57 Ore. App. 203, *216; 644 P.2d 577, **587; LEXSEE 40 A.L.R.4th 1017 "* * * you give a command to [an] ashtray as you hold it in front of you. I can't remember what the commands were, but they were something like * * * 'Rise up,' or something. And you raise the ashtray up and you do this drill over and over until you are convinced that you have told the ashtray to move and it has moved." n10 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n10 There was some other testimony concerning the type of activities involved in the "upper indoctrination" drills. Although somewhat more detailed, it is substantially the same as plaintiff's descriptions. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Plaintiff completed the communications course in about one month. However, on July 25, 1975, less than two weeks after she started that course, she signed up for another, known as the Student HAT course, for which she paid $ 250 to the Mission. While she was taking the communications course she was also approached by the Mission staff about receiving "auditing," for which certain claims were made that are included among the misrepresentations alleged in the fraud action. When she was approached about "auditing" by a staff member, he told her everyone has "hangups" that inhibit communication and asked if she [*217] would like to get rid of all of her hangups and improve herself. Plaintiff signed up for auditing because the staff member told her it was the best thing she could do for herself, she was convinced that it was, and she wanted to develop herself to her fullest potential. On July 26, plaintiff paid $ 780 and on July 31, she paid an additional $ 1100 for a number of hours of auditing. Because she did not have the money to pay for the hours of auditing she was told she would need, plaintiff was coached by Mission staff members to borrow money from friends and family. The staff members helped her to call people and ask to borrow money. A staff member would tell her the type of conversation to use and sit there while she called, giving her ideas and suggestions. In the evenings when she went to the Mission she would take courses for a while and then be asked to come to a staff member's office to make phone calls. She borrowed $ 700-800 from friends and family and another $ 500 from Freedom Federal Credit Union, which is operated by Scientologists. Plaintiff began the Student HAT course and the auditing right after completing the communications course, approximately in mid-August. She took the course on weekends and participated in auditing in the evenings during the week. As explained above, the purpose of auditing is claimed to be to relieve the negative effects of past experiences. This is accomplished by the use of an "E-meter," which is a crude galvanometer. The individual receiving the auditing holds what are described as two tin cans, one in each hand. The cans are connected to a device which has a needle which reacts in some manner to the responses made. n11 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n11 The E-meter was described in United States v. Article or Device, etc., 333 F Supp 357 (DDC 1971): PAGE 69 57 Ore. App. 203, *217; 644 P.2d 577, **587; LEXSEE 40 A.L.R.4th 1017 "The E-meter is essentially a simple galvanometer using two tin cans as electrodes. It is crude, battery-powered, and designed to measure electrial skin resistance. It is completely harmless and ineffective in itself. A person using the meter for treatment holds the tin cans in his hands during an interview with the operator who is known as an auditor and who purports to read indicators from the galvanometer needle as it notes reactions to questions. * * *" - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**588] Plaintiff testified that the auditor would ask a question, such as "Do you have any problems with your [*218] parents?" She would describe a particular argument, and he would ask if there were earlier, similar times she had had arguments with her parents. She testified that he would take her back earlier and earlier until he decided she had related the earliest incident and her "needle was floating." The auditor would then go on to another question. The time spent on auditing varied. Plaintiff testified: "I spent at least two hours, and often as many as five or six hours in auditing. If a point was reached, after a couple of hours, where I was pretty happy, then the auditor would end the session. But if during the course of the questions he asked me, I became very upset and cried or wouldn't answer his questions, he would keep asking me questions over and over again until I reached a point where he felt it was safe to end the session. "There was a rule that in auditing that the auditor could never let the person leave when they were upset. And so I remember a number of times that I became real upset and just wanted to leave and go home and get out of the place, but he said: No, just sit down. The way out is the way through, was the phrase he used. What upsets you the most by talking about it more with me will help you overcome it." The Student HAT course involved listening to tapes of lectures by L. Ron Hubbard, the founder of Scientology, and reading various bulletins, after which plaintiff would be examined to determine whether she knew the material contained in each one. These materials concerned proper study habits and methods and the values of auditing. In conjunction with the Student HAT course, plaintiff attended Friday evening "musters," which all students in the communication course and the Student HAT course were required to attend. According to plaintiff, the purpose of these meetings was "to discuss our progress on the course and reinforce one another, telling each other how many points we had made." n12 She described the musters as follows: [*219] "Well, I would go into the graduation room and be seated and then someone would come in that was officiating that night. And it varied, like the person would come in and usually do something to get everybody to relax. One of the most common things they did was to say: I want everybody in here to introduce themself to two people in the room that they have never met before. And then the people would do that and they would be relaxed and then he would start talking about Scientology and Dianetics and communications course and all of these things and how we were all going to become part of clearing the PAGE 70 57 Ore. App. 203, *219; 644 P.2d 577, **588; LEXSEE 40 A.L.R.4th 1017 planet or making sure that everyone on the planet got Dianetic auditing. "Sometimes they did little drills like: Once a person asked us to locate a space around us that we would call ours and then everyone would sit there and do that. And he would say: Now increase that space - increase that space to include you and two people beside you, and you do that. And then he would say: Increase the space to include this room, and we did that. "He would say: Increase the space to include the whole world, and you just bodily increased it to that spot. And he said: See what it is going to be like. We are going to increase ourselves until we get everyone on this planet clear." [**589] The graduates of the courses would stand up and tell the group what they had gained from the course. They would "* * * say how it had changed their lives and how they were - they had finally found meaning and finally found a way to improve themselves and rid themselves of their harmful past, emotions and attitudes." - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n12 The students received points for what they learned in the courses, and a charting system was maintained in which each student's points were recorded to show his or her progress in Scientology. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Around the end of August or the beginning of September, staff members at the Mission began to talk to plaintiff about becoming a staff member. They told her how rewarding it was, and they began to talk about Delphian. Certain of the claims made for Delphian are included as misrepresentations alleged in the fraud count. According to plaintiff's testimony, she was told that she could take courses at Delphian which could be applied toward a college degree, that she would learn about architecture and engineering "from the ground up" and that Delphian was partially funded by government grants for doing research in solar and wind energy and recycling. Plaintiff decided that going to Delphian would be the best way to combine her [*220] interests in architecture and engineering with her interest in Scientology and Dianetics. She informed her parents that she would not be going to college that fall as she had planned; instead, she applied to Delphian as a provisional staff member. After visiting her parents' home in Montana in September, she moved to Delphian at the beginning of October. Plaintiff was assigned to live in a room with two other women and two children. She had a small space for her belongings. She worked harvesting crops for a couple of weeks after she arrived and then helped to move an old garbage dump on the property. In the evenings, she worked indoors cleaning floors, washing dishes and other such tasks. Her work day extended from 8:30 a.m. to 11 p.m. or later. After three or four weeks, she was assigned to care for small children of other staff members. She was given instructions on using Scientology methods in caring for the children. She worked as a "nanny" until she left Delphian. She received wages of a few dollars a week. PAGE 71 57 Ore. App. 203, *220; 644 P.2d 577, **589; LEXSEE 40 A.L.R.4th 1017 Visitors were not encouraged at Delphian, and plaintiff was instructed that two-weeks notice was necessary if visitors were coming. She described one incident that occurred around Halloween when she was reprimanded because her mother and one of her friends from Montana came to visit unannounced. Plaintiff's mail was sometimes opened before she received it at Delphian. Beginning in October and continuing into November, plaintiff reported to Delphian staff members that her mother was very concerned about her involvement with Scientology. She had been told that she must report that kind of activity, because if it was upsetting to her it would inhibit her progress in Scientology. Plaintiff eventually became aware that her mother had hired a lawyer to find a way to get her away from Delphian. She informed the staff of this action and that her mother had also gone to the media. Plaintiff was told that this kind of activity was bad for Scientology and that it would give Delphian and Scientology a bad reputation. She was told that she would have to leave Delphian until she could "handle" her parents, [*221] which meant that she must convince them to sign a statement that they would not sue, attack or embarrass Scientology or Delphian. Plaintiff left Delphian in late November or early December and returned to Portland. She began working as a waitress in an hotel and lived in a house with several other people, including her friend Osler, who had also been at Delphian during the time plaintiff was there and had left when she did. Plaintiff went to the Mission and saw staff member Jim Brooks, who was to help her handle her parents. She was told that she could not take any classes or auditing until she could handle them. She was informed that in order to continue in Scientology she had to handle her parents or "disconnect," i.e., cut off all relations with them. [**590] Brooks coached her on what to say in letters to her parents to convince them to allow her to continue in Scientology without interference. Plaintiff obtained permission from Brooks to go home for Christmas to attempt to handle her parents. She rode home with her brother, who lived near Portland. Her parents would not agree to plaintiff's requests, and plaintiff returned to Portland with Osler. Under the direction of Brooks, plaintiff wrote her parents a letter on January 5, 1976, informing them that she was no longer involved with Scientology. Although that was not true, Brooks told her it would help her family "destimulate." She continued to report her parents' activities to Brooks, including an unsuccessful attempt to hold plaintiff in an hotel for "deprogramming." Brooks coached plaintiff in writing letters to her parents, either asking that they not interfere with her involvement in Scientology or "good road, fair weather" letters avoiding the subject of Scientology. Plaintiff also met with Kay Wilson from COSOP, who told her that if she wanted to continue in Scientology she would have to disconnect from her parents. Regarding that conversation, plaintiff testified: "We were discussing my mother and I told Kay Wilson that my mother had hired an attorney and that she had told me all these things about Scientology I had never heard about. My mother mentioned something about a [*222] Fair Game Law and I said that to Kay Wilson. And she said: Oh, that policy letter has PAGE 72 57 Ore. App. 203, *222; 644 P.2d 577, **590; LEXSEE 40 A.L.R.4th 1017 been cancelled. However, the treatment of suppressive persons is still the same." A "suppressive person" is one who attempts to damage or interfere with Scientology. The Fair Game policy was proclaimed by L. Ron Hubbard in a policy letter of October 18, 1967. It stated that suppressive persons "[m]ay be deprived of property or injured by any means by any Scientologist without any discipline of the Scientologist. May be tricked, sued, lied to or destroyed." n13 Plaintiff testified that she had been shown several policy letters regarding treatment of "suppressive persons." Plaintiff had been told that her mother was suppressive. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n13 Defendants maintain that this policy had been cancelled. There was conflicting evidence as to the status of the policy and its meaning. We need not resolve those conflicts because the mere existence of the policy does not constitute outrageous conduct as to this plaintiff. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Plaintiff did not want to disconnect from her parents, but she did want to continue in Scientology. She asked for permission from Brooks to go back to Montana to persuade her parents to agree not to sue, attack or embarrass Scientology and not to interfere with her involvement in it. She made the trip in April, 1976. When she arrived at her parents' home, she was locked in the house and "deprogrammed." As a result, plaintiff decided that she did not want to return to her involvement in Scientology, and she did not. Whether viewed as individual acts or taken together as a "scheme," we find nothing in this record which constitutes conduct which is "beyond the limits of social toleration." There is no evidence that plaintiff was threatened or forced to remain involved in Scientology. To the contrary, she maintained many contacts with non-Scientologists. She had a full-time job both before and after her stay at Delphian. The record shows that she visited with relatives living in the Portland area periodically while she was there. She maintained correspondence with her parents and went back to Montana twice before her visit in April when she was "deprogrammed." Her parents or her mother visited her several times in Portland or at Delphian. Plaintiff became involved and maintained her involvement [*223] because she desired to do so. If misrepresentations were made regarding the benefits or the nature of Scientology which gave rise to that desire, her remedy would be for fraud, not outrageous conduct. Plaintiff was recruited and indoctrinated into the Church of Scientology. That recruitment and indoctrination, as far as this record discloses, were not so very different than might be used by any number of organizations. She joined the group voluntarily, [**591] albeit, as she claims, on the basis of misrepresentations made to her. However, she continued to participate and maintained her involvement for whatever reason without actionable threats or coercion by defendants. The drills plaintiff was subjected to as part of the communications course she initially signed up for were not in themselves outrageous. Plaintiff PAGE 73 57 Ore. App. 203, *223; 644 P.2d 577, **591; LEXSEE 40 A.L.R.4th 1017 studied the theory behind each drill before participating in it. She returned day after day to participate in the course, although she had daily contact with non-Scientologists in her job and at her apartment with her non-Scientologist roommate. The most that can be said is that plaintiff was convinced by defendants to accept what they were teaching; unless the means involved more than persuasion, that is not outrageous. Whether or not we find any merit to defendants' teachings, plaintiff apparently did find merit in them during the time she was associated with Scientology. The fact that she was later convinced of their invalidity does not make defendants' conduct outrageous post hoc. The only evidence which supports the allegation that plaintiff was caused "to believe and fear that she would be subject to severe punishment should she ever bring suit against Defendants, voice her disapproval of Defendants' practices, testify against Defendants, demand a return of money from Defendants or commit any other act Defendants determined to be against their interests" is the testimony regarding the Fair Game policy. Plaintiff testified that after she was "deprogrammed" she was fearful of retaliation by defendants. There is no evidence that during her association with Scientology plaintiff was afraid to terminate her involvement or feared defendants in any way. The fact that she was informed of a policy known as Fair Game is not outrageous conduct. [*224] We hold that the evidence presented under Count I of the outrageous conduct cause of action does not, as a matter of law, establish conduct that is outrageous in the extreme or beyond the limits of social toleration. Count II of the outrageous conduct action n14 alleges that: "Subsequent to Plaintiff's deprogramming, Defendants have pursued a course of conduct against Plaintiff that is designed to threaten, humiliate, and intimidate Plaintiff and cause her fear, anguish and mental distress. Defendants on June 7, 1977, filed suit against Plaintiff without cause and for the purpose of intimidating Plaintiff; Defendants have, in June of 1976 and April of 1977, declared Plaintiff to be a suppressive person subject to Defendants continuing 'fair game' policy of retribution which directs Defendants' organizations and other Scientology organizations and their members to trick, lie to or destroy Plaintiff. Defendants have, beginning in June of 1976 and continuing to the present, forbid, through threats of mental and physical harm, any friends of Plaintiff connected with Defendants from communicating with Plaintiff; Defendants have caused and continue to cause the mailing of materials to Plaintiff and Plaintiff's family subsequent to Plaintiff's request that such mailings cease." Defendants moved for a directed verdict on this count as well, on the basis that the conduct proved was not such that it could subject them to liability. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n14 This count was withdrawn as to defendant Delphian at the close of the evidence. COSOP and defendant Samuels contend that no involvement by them was shown. Because of our disposition of this count on other grounds, we need not reach that issue. We use the term "defendants" here without delineating whose involvement was shown. PAGE 74 57 Ore. App. 203, *224; 644 P.2d 577, **591; LEXSEE 40 A.L.R.4th 1017 - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The evidence established, first, that a libel action was filed by certain of the defendants against plaintiff after a press conference in which plaintiff participated. That matter was still pending at the time of the trial of this action. We said in Erlandson v. Pullen, 45 Or App 467, 472, 608 P2d 1169 (1980): "Without necessarily suggesting that it could never be so, we note that it would be a rare case in which the bringing of a [**592] lawsuit would fit the definition of outrageous conduct. This tort has been reserved for 'intentional acts of [*225] a flagrant character under most unusual facts and circumstances * * *' Melton v. Selen, 282 Or 731, 736, 580 P2d 1019 (1978)." Here the record reveals nothing about the other case except that it was an action for libel. We do not know, nor can we infer from this record, that it was without foundation. Such proof would not even support an action for abuse of process without evidence that plaintiff had prevailed. Erlandson v. Pullen, supra. Filing such a suit is not outrageous conduct. There is evidence that plaintiff was declared a suppressive person by certain individuals connected with the Mission. Plaintiff testified at trial that she knew she had been declared suppressive because that is what is done. At her deposition, she testified that someone had told her that she had been declared suppressive. However, there is no evidence that defendants informed plaintiff that she was declared suppressive and subject to the Fair Game policy, or knew or intended that she be so informed. n15 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n15 At her deposition, plaintiff testified that she did not know whether she had been declared suppressive. Later, however, she said she had been told by someone that she had been declared suppressive. She stated that she could not remember who had told her, but thought it was someone who left Scientology after she did. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The only evidence that defendants forbade, "through threats of mental and physical harm, any friends of Plaintiff connected with Defendants from communicating with Plaintiff" is a document issued June 7, 1976: "All staff are hereby notified not to attempt to contact or interfere with JULIE CHRISTOFFERSON or PATRICK OSLER in any manner. These two persons have attacked the Church of Scientology so I repeat, they are not to be communicated to for any reason. "If either of these two contact any one in the Church, or if any associates of theirs try to contact any one of the Church, report this action * * * immediately." PAGE 75 57 Ore. App. 203, *225; 644 P.2d 577, **592; LEXSEE 40 A.L.R.4th 1017 This directive followed a letter sent on June 6, 1976, by an attorney on behalf of plaintiff and Osler. That letter said: "This office represents Julie Christofferson and Patrick Osler, formerly members of your group. Enclosed are photocopies of affidavits to the effect that they have both been deprogrammed, and that they request legal assistance should you make any effort to induce them back into the [*226] cult. Naturally, a large civil action would be an expected element of any such legal assistance. Therefore you are hereby on notice that any attempt to contact them, or to interfere with them in any manner, will result in most grave consequences to you." In addition, a former staff member of the Mission testified that they were told at a staff meeting not to communicate or associate with plaintiff or Osler under any conditions, or if they did so, to write it up immediately. Following, as the directive had, the letter from plaintiff's attorney demanding that defendants not contact plaintiff in any way, the orders that plaintiff's demand be met can in no way be considered outrageous conduct. There is no evidence that any threats of mental or physical harm were made to enforce the prohibition on contact with plaintiff. The mailings of which plaintiff complains were, with one exception, from the American Saint Hill Foundation (known as ASHO) in California, a Scientology organization. Several personal letters to plaintiff, signed by individuals she did not know, asked about her progress in Scientology. Some of those letters contained brochures on Scientology. In addition, two editions of a newsletter entitled Cause, also published by ASHO, were received by plaintiff. Finally, plaintiff received one form letter with brochures from COSOP. Plaintiff does not seem to contend that the contents of the letters were offensive, but she testified that she was made fearful by the fact that she received mail from Scientology organizations [**593] at all. Certain of the mailings were addressed to plaintiff's last Portland address and were forwarded to her in Montana. Others were addressed to the post office box which was her Eureka, Montana, address. Mailing letters, brochures on Scientology and a newsletter which were in themselves innocuous cannot constitute outrageous conduct. There was nothing sinister in any of the material plaintiff received. Neither was there anything mysterious about the fact that plaintiff's forwarding address was obtained, for it is clear that certain of the items were forwarded by the post office and that the envelopes contained an "address correction requested" imprint. [*227] In addition to what was alleged in her complaint, plaintiff also presented evidence at trial, without an objection that it was outside the scope of the pleadings, of three incidents which made her fearful. Once, a couple of months after she left Scientology, she was in Portland and was walking down the street with Osler near the house in which she was staying. They noticed a car parked about a block from the house, and Osler recognized the person in the car as a Scientologist. They walked up to the car and asked the person what he was doing. He did not answer but started the car and drove away. Later that afternoon plaintiff noticed a van parked about a block from the house and, as they approached the van, it drove away. Osler recognized the person driving as a Scientologist. PAGE 76 57 Ore. App. 203, *227; 644 P.2d 577, **593; LEXSEE 40 A.L.R.4th 1017 Finally, in June, 1976, plaintiff and Osler were out walking and noticed two Scientologists behind them. They walked into the library and were followed into one of the library rooms. There the two Scientologists sat down at a table and stared at them while they looked at books. When they started to leave, the Scientologists got up, but plaintiff and Osler left quickly and did not see them after that. These three incidents, either singly or taken as a group, cannot conceivably be called outrageous conduct. We have reviewed the record as it relates to the conduct which plaintiff claims to be outrageous. We recognize that plaintiff does not claim that any particular action, by itself, would constitute outrageous conduct, but rather contends that the actions together rise to the level of actionable conduct. We find as a matter of law that the conduct shown is not actionable as outrageous conduct, whether viewed as individual acts or as a course of conduct. Defendants' motions for directed verdicts on the cause of action for outrageous conduct should have been granted. FRAUD We turn to plaintiff's cause of action for fraud. Plaintiff's complaint contained the following allegations: "VII "Between July, 1975 and April, 1976, in Oregon Defendants Church of Scientology, Mission of Davis, Church of Scientology, Portland, and the Delphian Foundation made the following misrepresentations regarding the standard, [*228] quality, grade, sponsorship, status, characteristics, ingredients, uses, benefits, character or qualities of the courses or goods offered by Defendants when they knew or should have known that such representations were false: "STUDENT HAT AND COMMUNICATIONS COURSE "(1) * * * the Church of Scientology Communication Course would provide more knowledge of the mind than is possessed by any psychologist or psychiatrist. "(2) * * * the communication course was completed and endorsed by Father Pat Flanagan of Boys' Town, Omaha, Nebraska. * * * "(3) * * * the communication course would help the Plaintiff in college work and that the course was offered on a money back guaranteed basis. * * * "(4) * * * [the] student HAT course enabled a student to understand any subject better and more accurately. * * * the Student HAT Course was offered on a money back guaranteed basis. [**594] "PLAINTIFF WAS FURTHER INDUCED TO ENGAGE IN A PROGRAM KNOWN AS AUDITING BY THE FOLLOWING REPRESENTATIONS: "(5) * * * auditing relieves the effects of past experiences. * * * through auditing she would have more knowledge of the mind than any psychiatrist or psychologist and more knowledge of the bodily processes than any doctor. PAGE 77 57 Ore. App. 203, *228; 644 P.2d 577, **594; LEXSEE 40 A.L.R.4th 1017 "* * *. "(a) Auditing develops creativity; "(b) Auditing increases I.Q. scores; "(c) Auditing cures neuroses, criminality, insanity, psychosomatic ills, homosexuality and drug dependence; "(d) Auditing allows one to control his own emotions and the physical universe; and "(e) Auditing was offered on a money back guaranteed basis. "* * *. "PLAINTIFF WAS INDUCED TO ENGAGE IN THE STUDY OF 'DIANETICS' BY THE FOLLOWING REPRESENTATIONS: "(8) * * * Dianetics is scientifically provable and that it cures asthma, arthritis, rheumatism, ulcers, toothaches, pneumonia, colds, and color blindness. * * * "(9) * * * L. Ron Hubbard, the creator of auditing, is an engineer and nuclear physicist and has a degree from [*229] Princeton University and an honorary degree from Sequoia University and is a graduate of George Washington University who revealed Dianetics to mankind as a service to humanity, with no intent to profit therefrom. * * * "(10) * * * L. Ron Hubbard had a civil engineering degree; a 'B.S.' degree and was a nuclear physicist, a graduate of George Washington University; and had received an honorary degree from Sequoia University and Princeton University; "DEFENDANTS FURTHER INDUCED PLAINTIFF TO QUIT HER JOB AND LIVE AND WORK AT THE DELPHIAN FOUNDATION BY MAKING THE FOLLOWING REPRESENTATIONS: "(11) * * * Delphian Foundation was funded by government grants for developing education and alternative energy sources; further that Plaintiff could take courses at the Delphian Foundation that could be applied by an accredited college toward a college degree. "(12) * * * L. Ron Hubbard was a graduate of George Washington University, was an engineer and nuclear physicist and had an honorary degree from Sequoia University and that the Delphian Foundation was nearing accreditation and had almost been accredited in September of 1975; further that in the Spring of 1976 Plaintiff could take courses at the Delphian Foundation that could be applied by an accredited college toward a college degree. "(13) * * * [Plaintiff] could attend school at the Delphian Foundation and, after such study, be able to obtain college credit hours in architecture or engineering at any college in the country merely by taking a test. "(14) * * * [Plaintiff] would obtain at the Delphian Foundation an education superior to any University in the world. PAGE 78 57 Ore. App. 203, *229; 644 P.2d 577, **594; LEXSEE 40 A.L.R.4th 1017 "* * *." n16 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n16 Defendants do not argue that these alleged statements may not be fraudulent, at least under some circumstances. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - We first consider the motions for directed verdict made by each of the parties on other than constitutional grounds. COSOP moved for a directed verdict on the ground that plaintiff had not shown that any of its agents or employes had made any of the misrepresentations alleged. COSOP argues on appeal that that motion should have been granted. [*230] Plaintiff's complaint alleged that the misrepresentations were made by specific individuals who were agents or employes of the Mission or Delphian. None of the individuals named is claimed to have been an agent or employe of COSOP. The complaint did [**595] allege that the misrepresentations were repeated by various employes of defendants and that they were contained in literature provided to plaintiff by COSOP. However, at trial, plaintiff did not introduce any evidence that the statements were made by employes of COSOP or that she was provided with any literature by COSOP. There is evidence that plaintiff paid $ 75 to COSOP for a "Lifetime HASI" on July 30, 1975. HASI is an acronym for Hubbard Association of Scientology International. HASI membership entitles one to a 10 percent discount on purchases from all Scientology organizations. Plaintiff contends that COSOP may be held liable for the misrepresentations made by employes of the Mission, because it received money from plaintiff while knowing about the fraudulent practices employed by the Mission. She does not contend that actual knowledge was shown, but only that COSOP had constructive knowledge of the marketing practices of the Mission and of the claims that were made for the courses offered. Assuming without deciding that COSOP could be held liable on such a basis, we find no evidence, nor has plaintiff pointed to any, to indicate that COSOP was aware on July 30, 1975, when plaintiff paid $ 75 for the HASI membership, that plaintiff had had any contact with the Mission at all. The only evidence regarding the $ 75 payment to COSOP is a receipt. Plaintiff did not testify to the circumstances surrounding that payment and, in fact, testified mistakenly that she had not paid any money to COSOP. The fact that both COSOP and the Mission are Scientology organizations does not by itself provide a sufficient link to hold COSOP liable for what may have been done by the Mission. Neither does the fact that policy letters and bulletins written by L. Ron Hubbard are espoused by both COSOP and the Mission make COSOP liable to this plaintiff. Plaintiff has not shown that the Mission acted as an agent for COSOP, nor does she claim that such a [*231] relationship existed. She has shown no basis upon which COSOP may be held vicariously liable for the actions of the Mission. We conclude that the motion of COSOP for a directed verdict on plaintiff's action for fraud should have been granted. PAGE 79 57 Ore. App. 203, *231; 644 P.2d 577, **595; LEXSEE 40 A.L.R.4th 1017 Delphian's motion for directed verdict was on the ground that none of the statements alleged by plaintiff were made by any of its agents or employes and that plaintiff had already paid the $ 3,000 she claims was procured by fraud long before she went to Delphian. Although the complaint alleges that certain of the misrepresentations were made or repeated by employes of Delphian, plaintiff appears to concede in her brief that there is no evidence to support that allegation. Plaintiff argues, however, that Delphian should be held liable because 1) the relationship between the Mission and Delphian was such that Delphian should be held liable; 2) Delphian confirmed certain of the misrepresentations regarding its funding, structure and courses in a data sheet given to plaintiff to read to acquaint her with Delphian when she arrived; and 3) Delphian did receive some money from plaintiff, apparently for books, and also received free labor from plaintiff while she was there. Plaintiff does not state the theory behind her contention that the relationship between Delphian and the Mission is such that Delphian should be held liable for misrepresentations made by the Mission. The evidence she points to in support of her contention is as follows: "* * * Mission of Davis has a branch at Sheridan on the Foundation premises * * *, the management of Mission of Davis is centered at Sheridan * * *, and that Mission of Davis, Delphian Foundation and the Sheridan Mission all co-exist on the same property to such an intertwined extent that a memorandum was necessary to prevent confusion in writing out purchase receipts * * *. The two organizations have a common president, Martin Samuels * * *, who lives at Sheridan * * *. "Additionally, [the Mission's] representations were not made coincidentially, but as part of a policy calculated to induce [**596] members who had spent all their available funds for courses in auditing at the Mission, to work at the Delphian Foundation in return for further courses and auditing * * *." [*232] It is not clear whether plaintiff is suggesting that the Mission acted as the agent for Delphian in making the representations or that the two corporations are in reality one entity, i.e., an alter ego theory. n17 The evidence adduced at trial does not support "piercing the corporate veil" so as to permit treating the two corporations as one or as the alter ego of defendant Samuels. The memorandum to which plaintiff refers shows only that the affairs of the corporations were maintained separately. One shared corporate officer and shared facilities are not enough to permit such an approach. See Howco Leasing Corp. v. Oregon Lumber Export Co., 283 Or 225, 228, 582 P2d 4 (1978); Schlecht v. Equitable Builders, 272 Or 92, 535 P3d 86 (1975); Wakeman v. Paulson, 257 Or 542, 480 P2d 434 (1971); A. J. Rose & Son, Inc. v. Bd. of Funeral Dir., 31 Or App 537, 570 P2d 1008 (1977). n18 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n17 Plaintiff's brief responds to Delphian's argument as follows: "Defendants' argument presumes, erroneously, that since these misrepresentations were made by someone from 'Mission of Davis' rather than from 'Delphian Foundation,' Delphian is insulated from liability no matter how blatant the misstatements." PAGE 80 57 Ore. App. 203, *232; 644 P.2d 577, **596; LEXSEE 40 A.L.R.4th 1017 Plaintiff then recites the facts quoted above and concludes: "Any claim of no relationship between Mission and Delphian is absurd and contrary to all the evidence." This misses the point -- the issue is not whether there was a relationship; the issue is whether that relationship was so close as to give rise to joint or vicarious liability. n18 Because of our disposition of this issue we need not consider whether the doctrine of "piercing the corporate veil" should be applied differently, or if it may be applied at all, to religious corporations. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - We also find no evidence to support a finding that the Mission was acting as the agent of Delphian in making the alleged misrepresentations. n19 Our responsibility at this stage of the proceedings is to decide whether there is any evidence which would support a reasonable inference of agency between the Mission and Delphian. Briggs v. Morgan, 262 Or 17, 496 P2d 17 (1972). One essential feature of agency is the right of the principal to control over the agent. "A business organization which operates in its sole and unlimited discretion is not an agent but a principal." Kuhns et ux v. State Tax Com., 223 Or 547, 555, 355 P2d 249 (1960); and see Restatement (Second) of Agency, @@ 1, 14 (1958). There is nothing in the record before us to [*233] support an inference that Delphian had any right to control the actions of the Mission or had actual control over those actions; therefore, there could be no finding of agency. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n19 Plaintiff does not specifically claim that there was an agency relationship. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Plaintiff contends that Delphian may be held liable on the basis of the following statements contained in the data sheet which was given to plaintiff to read when she arrived at Delphian, because these statements "confirmed" the misrepresentations made by the Mission: "That some 'external' students be accepted for tuition in accordance with our school and university structure. "* * * "That funding shall be by donations and endowments and by grants for specific projects, and that the full definition of allowable income routes be obtained and used. "* * * "That apprenticeships be a standard part of any educational program. "* * * PAGE 81 57 Ore. App. 203, *233; 644 P.2d 577, **596; LEXSEE 40 A.L.R.4th 1017 "That there be a designated faculty, both for primary/secondary school and for the University. "* * * "That the formal structure of a university be created and maintained, and a program leading to accreditation be developed. "* * * "That special attention be given to the maintenance of ethical relationships and [**597] exchanges among the dynamics of TDF; this shall be the guiding principle behind decisions as to techniques and orientations in architecture, agriculture, forestry, utilities, etc. * * *" The statements quoted above are contained under a heading "Policies." Plaintiff does not seem to claim that these are misrepresentations in themselves, and they could not fairly be construed as such. There is no evidence to suggest that they were not the policies of Delphian; neither do the statements show a connection between Delphian and the Mission sufficient to permit a finding of agency or an alter ego situation. They do not aid plaintiff. Finally, plaintiff argues from the fact that Delphian received some money from plaintiff and also received the benefit of her free labor that Delphian can be held liable for misrepresentations made by the Mission. As [*234] with the COSOP motion, we need not decide if that is a viable theory of recovery because, at the close of all the evidence, the trial court struck plaintiff's claim that Delphian had received free labor and was paid money by plaintiff. Plaintiff has not contended here that that was error. We conclude that there is no basis in this record for holding Delphian liable for any misrepresentations made to plaintiff and that its motion for directed verdict should have been granted. n20 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n20 Delphian argues that plaintiff had already paid all the money she claims to have paid before she had any contact with Delphian and that, therefore, there is no causative link between plaintiff's damages and anything Delphian may have done. Plaintiff did buy some books while at Delphian, but it is not clear whether the amount she spent for those books is included in the amount of damages she claims. Plaintiff's complaint claimed that she was induced to pay the defendants $ 3,000.20. The receipts that plaintiff introduced at trial add up to something more than that figure. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Defendant Samuels' motion for directed verdict was based on the ground that he had not participated in the alleged fraud and could not be held liable to plaintiff merely because he is the president of the Mission. The Oregon Supreme Court held in Osborne v. Hay, 284 Or 133, 145-46, 585 P2d 674 (1978), that PAGE 82 57 Ore. App. 203, *234; 644 P.2d 577, **597; LEXSEE 40 A.L.R.4th 1017 "* * * in order to hold the officer of a corporation personally liable for fraud by an agent or employee of the corporation it is necessary to show that the officer had knowledge of the fraud, either actual or imputed, or that he personally participated in the fraud. See McFarland v. Carlsbad Sanitorium Co., 68 Or 530, 536-537, 137 P 209 (1914), and Hoff v. Peninsula Drainage Dist., 172 Or 630, 643, 143 P2d 471 (1943)." And see McDonough v. Jones, 48 Or App 785, 617 P2d 948 (1980), rev den 290 Or 519 (1981). There is evidence in the record from which a jury could have found that Samuels had knowledge of at least some of the alleged misrepresentations. It was not error to deny his motion for directed verdict on that basis. n21 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n21 Samuels is alleged to be liable only because he is resident of the Mission and Delphian. His liability, therefore, is limited by the liability of the Mission. In the remainder of this opinion the term defendants refers to the Mission and Samuels. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The Mission asserted only constitutional grounds for its motion. Not all of the alleged representations are [*235] claimed to be religious and therefore the motion was properly denied. n22 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n22 Defendants claim that the statements regarding the communications course, the Student HAT course, Dianetics and auditing are protected. They do not claim that the statements concerning Delphian or the statements regarding Hubbard's educational background are religious. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - FREE EXERCISE CLAUSE DEFENSE We now consider the appropriate procedures for dealing with a defense to an action for fraud based on the Free Exercise Clause of the First Amendment. n23 Defendants [**598] made a pretrial motion to exclude from the trial "any evidence regarding the validity or sincerity of defendants' religious beliefs and practices." In the alternative, they asked for a hearing "* * * to determine whether the courses, training, studies, and counseling constitute a part of the religious beliefs and practices of defendants' religious organizations and are thus protected from inquiry as to their validity or sincerity by the Oregon and United States constitutions and applicable law interpretive thereof." That motion was denied. At the close of the evidence, defendants moved to strike on various grounds certain of the specifications of fraudulant statements. As part of that motion, defendants moved to strike and withdraw from the jury all allegations regarding the communications course, the Student PAGE 83 57 Ore. App. 203, *235; 644 P.2d 577, **598; LEXSEE 40 A.L.R.4th 1017 HAT course, auditing and Dianetics on the ground that they constitute religious practices of the defendants. That motion was also denied. Defendants assign error to the denial of both motions. As we will explain hereafter, the pretrial motion was premature, but the motion at the close of all the evidence properly presented the question for the trial court's consideration. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n23 Defendants rely on both the United States and the Oregon constitutions for their defense. They do not, however, argue that the scope of the Oregon constitution differs materially from that of the federal constitution and, therefore, we refer only to the First Amendment of the federal constitution in discussing this defense. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - A defense based on the Free Exercise Clause presents particular difficulties in an action for fraud. To establish fraud, a plaintiff must ordinarily prove that the representations made were false. See Meader v. Francis Ford, Inc., 286 Or 451, 595 P2d 480 (1979). However, when [*236] religious beliefs and doctrines are involved, the truth or falsity of such religious beliefs or doctrines may not be submitted for determination by a jury. See United States v. Ballard, 322 U.S. 78, 64 S Ct 882, 88 L Ed 1148 (1944). The Supreme Court there stated: "* * * Freedom of thought, which includes freedom of religious belief, is basic in a society of free men. Board of Education v. Barnette, 319 U.S. 624. It embraces the right to maintain theories of life and of death and of the hereafter which are rank heresy to followers of the orthodox faiths. Heresy trials are foreign to our Constitution. Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. Religious experiences which are as real as life to some may be incomprehensible to others. Yet the fact that they may be beyond the ken of mortals does not mean that they can be made suspect before the law. Many take their gospel from the New Testament. But it would hardly be supposed that they could be tried before a jury charged with the duty of determining whether those teachings contained false representations. The miracles of the New Testament, the Divinity of Christ, life after death, the power of prayer are deep in the religious convictions of many. If one could be sent to jail because a jury in a hostile environment found those teachings false, little indeed would be left of religious freedom. The Fathers of the Constitution were not unaware of the varied and extreme views of religious sects, of the violence of disagreement among them, and of the lack of any one religious creed on which all men would agree. They fashioned a charter of government which envisaged the widest possible toleration of conflicting views. Man's relation to his God was made no concern of the state. He was granted the right to worship as he pleased and to answer to no man for the verity of his religious views. The religious views espoused by respondents might seem incredible, if not preposterous, to most people. But if those doctrines are subject to trial before a jury charged with finding their truth or falsity, then the same can be done with the religious beliefs of any sect. When the triers of fact undertake the task, they enter a forbidden domain. The First Amendment does not select any one group or any one type of religion for preferred treatment. It puts them all in that position. Murdock v. Pennsylvania, 319 U.S. 105. [**599] As stated in Davis v. PAGE 84 57 Ore. App. 203, *236; 644 P.2d 577, **599; LEXSEE 40 A.L.R.4th 1017 Beason, 133 U.S. 333, 342, 'With man's relations to his Maker and the obligations he may think they impose, and the manner in which an expression shall [*237] be made by him of his belief on those subjects, no interference can be permitted, provided always the laws of society, designed to secure its peace and prosperity, and the morals of its people, are not interfered with.'" 322 U.S. at 86-87. Defendants here were asking by both motions that the trial court determine which of the alleged misrepresentations were religious and withdraw from the jury the issue of the truth or falsity of those statements. Rather than make that determination, the trial court submitted to the jury the question of whether the statements were religious, with instructions that it was not to determine the truth or falsity of any statements it found to be religious. n24 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n24 Defendants also assign error to the instruction given on the Free Exercise defense and to the failure of the trial court to give certain requested instructions. We consider those assignments infra. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Defendants and amici argue that it is the responsibility of the trial court to determine in the first instance the religious character of statements alleged to be fraudulent and that, if it is determined that the statements relate to religious beliefs or practices, further inquiry is forbidden. They argue that submission of the question to a jury makes the determination one that is not reviewable after a general verdict, leaving the possibility that a defendant's adherence to unpopular or unorthodox religious beliefs could be made the basis for liability. Plaintiff argues, on the other hand, that it is appropriate for the trial court to determine which statements are religious only if it can do so as a matter of law. She contends that, if the determination requires resolution of questions of fact, that resolution is for the jury. Plaintiff further contends that the courses and practices in which she participated were held out to her as secular and that she therefore is entitled to have a jury consider the allegedly fraudulent statements, because they were not religious in the context in which they were made. Courts have had little occasion to consider the application of a Free Exercise Clause defense in an action for fraud in a jury trial. By far the majority of the cases in this area have been non-jury cases. We have found no cases which have considered this specific issue, and none have been cited to us. In fact, there has been little discussion in [*238] even a general way of whether an action or statement is religious is a question of law or of fact. In practice, the issue has been treated as one of fact by many courts, without discussion. See, e.g., Fiedler v. Marumsco Christian Sch., 631 F2d 1144 (4th Cir 1980); Brown v. Dade Christian Schools, Inc., 556 F2d 310 (5th Cir 1977); United States v. Carroll, 567 F2d 955 (10th Cir 1977), but see United States v. Silberman, 464 F Supp 866 (MD Fla 1979); People v. Mullins, 50 Cal App 3d 61, 123 Cal Rptr 201 (1975). In Founding Church of Scientology v. United States, 409 F2d 1146 (DC Cir 1969), a false labeling case, the court directed that, if a new trial were to follow its remand of the case to district court, PAGE 85 57 Ore. App. 203, *238; 644 P.2d 577, **599; LEXSEE 40 A.L.R.4th 1017 "* * * it is incumbent on the trial judge to rule in the first instance whether each item of alleged false labeling makes religious claims and hence cannot be submitted to the jury for the factual determination of whether it is a label for the device in question and whether it is false." (Footnote omitted.) 409 F2d at 1165. On remand, the district court interpreted this admonition to mean that the trial court should remove from the jury's consideration only those items which made "purely religious" appeals, "* * * reserving a presentation of the other literature for determination under instructions differentiating the secular from the religious." United States v. Article [**600] or Device, Etc., 333 F Supp 357, 361 (DDC 1971). We agree with and adopt this approach. n25 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n25 Although in Wisconsin v. Yoder, 406 U.S. 205, 92 S Ct 1526, 32 L Ed 2d 15 (1972), the Supreme Court seemed to undertake to determine on its own, from the record in the case, whether the Amish parents who refused to send their children to secondary school were acting on the basis of religious conviction, 406 U.S. at 215-16, the good faith religious belief of the parents was not questioned by the state. There was no fact dispute to be resolved. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The jury is the usual trier of fact in tort cases such as the one before us. Disputes in the evidence should be resolved by the trier of fact. We conclude that the trial court was required to determine the religious character of the alleged misrepresentations only if it could do so as a matter of law, that is, if there was only one conclusion to be drawn from the evidence. We now turn to that question. [*239] The fundamental qualification for protection based on the Free Exercise Clause of the First Amendment is that that which is sought to be protected must be "religious." Wisconsin v. Yoder, 406 U.S. 205, 215-16, 92 S Ct 1526, 32 L Ed 2d 15 (1972). The Mission claims that Scientology is a religion and that statements regarding its beliefs and practices are protected. n26 Plaintiff does not contend that Scientology is not a religion, but instead concentrates on the particular representations at issue. She contends that those representations are not religious statements, no matter what the status of Scientology, and that the statements are therefore not protected by the First Amendment. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n26 Because defendant Samuels is only sought to be held liable only as president of the Mission, we look to the protection afforded the Mission. Samuels may be held only to the extent the Mission is liable. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - PAGE 86 57 Ore. App. 203, *239; 644 P.2d 577, **600; LEXSEE 40 A.L.R.4th 1017 - Plaintiff's approach to this case has been to treat the alleged statements by defendants in vacuo, but we do not believe that it is constitutionally permissible to approach them that way. In this case, the issue of whether the allegedly fraudulent statements are entitled to the protection of the First Amendment involves several questions. Statements made by religious bodies must be viewed in the light of the doctrines of that religion. Courts may not sift through the teachings of a religion and pick out individual statements for scrutiny, deciding whether each standing alone is religious. While plaintiff has skipped past the issue of whether Scientology is a religion, we do not believe we can do so, because the answer to that question is pertinent to, although not dispositive of, the determination of whether the statements made by the agents of the Mission are religious. The Supreme Court stated in Wisconsin v. Yoder, supra, "* * * Although a determination of what is a 'religious' belief or practice entitled to constitutional protection may present a most delicate question, the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests." 406 U.S. at 215-16. (Footnote omitted.) And, as noted by the court in Founding Church of Scientology v. United States, supra: [*240] "* * * Though litigation of the question whether a given group or set of beliefs is or is not religious is a delicate business, our legal system sometimes requires it so that secular enterprises may not unjustly enjoy the immunities granted to the sacred. When tax exemptions are granted to churches, litigation concerning what is or is not a church will follow. When exemption from military service is granted to those who object on religious grounds, there is similar litigation. When otherwise proscribed substances are permitted to be used for purposes of worship, worship must be defined. The law has provided doctrines and definitions, unsatisfactory as they may be, to deal with such disputes. * * *" 409 F2d 1160. [**601] Without attempting an "unprecedented definition of religion," Malnak v. Yogi, 440 F Supp 1284, 1320 (DNJ 1977), aff'd, 592 F2d 197 (3d Cir 1979), we draw guidance from the case law. We find that, while beliefs relating to the existence of, and man's relationship to, a God are certainly religious, belief in a traditional, or any, "god" is not a prerequisite to a finding that a belief is religious. Torcaso v. Watkins, 367 U.S. 488, 81 S Ct 1680, 6 L Ed 2d 982 (1961); Everson v. Board of Education, 330 U.S. 1, 67 S Ct 504, 91 L Ed 711, 168 ALR 1392 (1947); Washington Ethical Soc. v. District of Columbia, 249 F2d 127 (DC Cir 1957); Malnak v. Yogi, supra; Fellowship of Humanity v. County of Alameda, supra. Neither does the fact that Scientology is of relatively recent origin mean that it is not entitled to the protection of the First Amendment. See Loney v. Scurr, 474 F Supp 1186 (SD Iowa 1979); Malnak v. Yogi, supra; Remmers v. Brewer, 361 F Supp 537 (SD Iowa 1973); see also United States v. Ballard, supra; Founding Church of Scientology v. United States, supra. On the other hand, PAGE 87 57 Ore. App. 203, *240; 644 P.2d 577, **601; LEXSEE 40 A.L.R.4th 1017 "[a] way of life, however, virtuous and admirable, [is not entitled to First Amendment protection] if based on purely secular considerations. "* * * "Thus, if the Amish asserted their claims because of their subjective evaluation and rejection of contemporary secular values accepted by the majority, much as Thoreau rejected the social values of his time and isolated himself at Walden Pond, their claims would not rest on a religious basis. Thoreau's choice was philosophical and personal rather than religious, and such belief does not rise to the [*241] demands of the Religion Clauses." Wisconsin v. Yoder, supra, 406 U.S. at 215-16; see also, United States v. Seeger, 380 U.S. 163, 176, 85 S Ct 850, 13 L Ed 2d 733 (1965); and see Welsh v. United States, 398 U.S. 333, 90 S Ct 1792, 26 L Ed 2d 308 (1970). Courts may not, of course, judge the "truth" or "falsity" of the beliefs espoused by a group in determining its status as a religion; the inquiry here is simply whether the teachings of Scientology are of the type that qualify for the protection of the Free Exercise Clause. The record in this case demonstrates indisputably that they are. Although certain of the theories espoused by Scientology appear to be more psychological than religious, we cannot dissect the body of beliefs into individual components. It seems clear that if defendants sought to teach Scientology in the public schools in this country, they would be prohibited from doing so by reason of the Establishment Clause of the First Amendment. See Malnak v. Yogi, supra; Epperson v. Arkansas, 393 U.S. 97, 89 S Ct 266, 21 L Ed 2d 228 (1968). The theories of Hubbard are interrelated and involve a theory of the nature of the person and of the individual's relationship with the universe. See Founding Church of Scientology v. United States, 409 F2d at 1160. The Mission is incorporated as a tax-exempt religious organization; it has ordained ministers and characterizes itself as a church. It has a system of beliefs, or creed, which encompasses beliefs which are religious in character. We conclude that Scientology is a religion and that the Mission is a religious organization entitled to invoke the protection of the Free Exercise Clause. The second inquiry to be made in determining whether the statements at issue are protected is whether those statements relate to the religious beliefs and practices of the Mission. It is clear that a religious organization, merely because it is such, is not shielded by the First Amendment from all liability for fraud. See Founding Church of Scientology v. United States, supra; see also Cantwell v. Connecticut, 310 U.S. 296, 60 S Ct 900, 84 L Ed 1213 (1940). If the statements involved here do not concern the religious beliefs and practices of the Mission, the Free Exercise Clause provides no defense to plaintiff's action. [*242] Defendant presented evidence that [**602] the courses and auditing in which plaintiff participated, and about which the alleged misrepresentations were made, were part of the religious beliefs and practices of Scientology. Plaintiff did not, and does not, contest that fact. The final inquiry involved in determining whether the alleged misrepresentations are protected by the First Amendment is whether the statements, although made on behalf of a religious organization and having a religious character, were nonetheless made for a wholly secular purpose. Although we find that it has been established in this record that Scientology PAGE 88 57 Ore. App. 203, *242; 644 P.2d 577, **602; LEXSEE 40 A.L.R.4th 1017 is a religion, that the Mission is a religious organization and that the statements which are claimed to be religious relate to religious beliefs and practices of Scientology, plaintiff did present evidence that the courses and auditing she received were offered to her on an entirely secular basis for self-improvement, thereby creating a jury issue as to that matter. Plaintiff testified that she was told that the term "religion" and "church" were used only for public relations purposes. She also presented testimony from a former Mission staff member that the staff was instructed to avoid the issue of religion when attempting to interest someone in Scientology and that, if pressed, they were to say that it is not a religion. n27 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n27 It is suggested in Weiss, Privilege, Posture and Protection: "Religion" in the Law, 73 Yale LJ 593, 604 (1964), that "Because religion can be in conflict with other disciplines, because it cuts across everyday life, we can only know that a claim is based on religion when we are told that it is. The legal basis for stating that a claim is in the religious domain can be that it is held out as being religious in nature. "* * * "Since the Constitution prohibits defining an area of belief as 'religious,' a man must make it clear that the beliefs he represents are 'religious' if he wants to be free to express them under the constitutional warrant of freedom of religious belief. He has the burden of communicating that he speaks only from the authority of religion. But, once such a burden has been met, then we cannot attack the particular aspects of his faith as fraudulent. "* * * "What a man presents as a religious claim, then, cannot be attacked. It is only when he makes a representation beyond religious authority that we can apply laws of fraud." As attractive as this analysis may be, we do not believe that it has been the approach taken by the courts in considering claims for protection under the First Amendment. As in Welsh v. United States, supra, and Malnak v. Yogi, supra, the proponents of a particular doctrine may unwittingly fail to define as "religious" what is, in fact, constitutionally protected as such. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*243] There is, on the other hand, evidence that plaintiff joined the Church of Scientology and that she was told that the courses and practices were religious in nature. Many of the materials which she read contained a statement inside the front cover which indicated that Scientology is a religion, that auditing is a religious practice and that the E-meter is a religious artifact. n28 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - PAGE 89 57 Ore. App. 203, *243; 644 P.2d 577, **602; LEXSEE 40 A.L.R.4th 1017 n28 It is clear that in the context of the Establishment Clause the characterization of the activity as non-religious is not a determinative factor. See Malnak v. Yogi, supra; see also Engel v. Vitale, 370 U.S. 421, 82 S Ct 1262, 8 L Ed 2d 601, 86 ALR2d 1285 (1962); Torcaso v. Watkins, 367 U.S. 488, 81 S Ct 1680, 6 L Ed 2d 982 (1961); Welsh v. United States, supra. On the other hand, the characterization of beliefs as religious by one seeking the protection of the Free Exercise Clause is not determinative either. See Wisconsin v. Yoder, supra, 406 U.S. at 215-16; Founding Church of Scientology v. United States, supra; People v. Woody, supra; United States v. Kuch, 288 F Supp 439 (DDC 1968). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - In United States v. Article or Device, Etc., supra, 333 F Supp at 363-365, the district court, sitting without a jury, found that Scientology services were offered on both a religious and a secular basis and that the E-meter was misbranded because much of the literature explaining its use and expounding on its value was presented in an entirely non-religious context. The court recognized that complete condemnation of the E-meter would encroach upon the religious freedom of those who used the device as a religious artifact. It therefore ordered the device condemned with the provision that it could be distributed only for use in bona fide religious counseling. This case [**603] differs from United States v. Article or Device, Etc., supra, in that the court there pointed out that there were organizations other than the Founding Church of Scientology that were using the E- meter and offering auditing services. It was the use of the E-meter by the secular organizations which the court forbade. The court did not consider whether use by the Church could be on a secular as well as on a religious basis. We believe that such a possibility exists. There are certainly ideas which may only be classified as religious. Statements regarding the nature of a supreme being, the value of prayer and worship are such statements. There are also, however, statements which are [*244] religious only because those espousing them make them for a religious purpose. The statements which are alleged by plaintiff to be misrepresentations in this case are not of the type which must always and in every context be considered religious as a matter of law. We have found that it is established in this case that the Mission is a religious organization and that Scientology is a religion. Plaintiff does not dispute the claim that the courses and auditing she received are part of the religious beliefs and practices of Scientology. It is also uncontroverted that plaintiff applied to join the Church of Scientology, Mission of Davis, before taking any of the courses offered. These facts may be highly persuasive evidence of the contention that the courses and auditing plaintiff received were religious in nature and that the statements made regarding their nature and efficacy were religious statements. There is, however, conflicting evidence which the jury was entitled to consider. Plaintiff presented evidence from which it could be concluded that the courses and auditing were also offered on a wholly secular basis. Because the statements were not necessarily religious, plaintiff was entitled to have a jury consider, under proper instructions, the question of whether the statements were made for a wholly non-religious purpose. The trial court was correct, therefore, in refusing to rule before trial as to whether these alleged statements were religious. It was likewise correct in refusing to withdraw the statements from the jury's consideration. PAGE 90 57 Ore. App. 203, *244; 644 P.2d 577, **603; LEXSEE 40 A.L.R.4th 1017 We turn now to the question of the proper instructions to be given the jury in considering the allegations of fraud in this context. FIRST AMENDMENT INSTRUCTION Defendants objected to the giving of the following instruction regarding the First Amendment defense: "The defendants have asserted as an affirmative defense that the Constitutions of the United States and the State of Oregon provide that religious beliefs and doctrines may not be questioned for truth or falsity. To establish this defense, defendants must prove that each of the acts or representations complained of were religious in nature and were held out as such to plaintiff. [*245] "They must further prove that if the acts and representations complained of were held out as religious in nature, that they were held out by defendants as good faith religious beliefs and doctrine. Therefore, if you find that the acts or representations complained of were acts or representations religious in nature and held out as such, and held in good faith belief, then you may not inquire into the truth or falsity of such acts or representations. Your inquiry must end and your verdict shall be for the defendants. However, should you determine that any of the acts or representations complained of were not religious in nature or were not held out as such to the plaintiff, or were not held to be such in good faith, then you may determine the truth or falsity of such acts or representations." We find the instruction to be an inaccurate statement of the law as it applies to this case and conclude that reversal of the judgment on the fraud cause of action is required. Defendants first object to the submission to the jury of the question of the religious [**604] nature of the statements. That submission was not error. However, the directions for determination of that issue were erroneous. This record establishes that Scientology is a religion and that the Mission is a religious organization. It also establishes that the courses and auditing which plaintiff was induced to participate in are part of the religious beliefs and practices of the Scientology. The Mission is, therefore, entitled to the protection of the First Amendment for statements regarding its religious beliefs and practices unless it is shown that the statements made were part of an offer of those services to the public on a wholly secular basis. The reasonable inference to be drawn from the instruction as given is that a determination should be made for each of the alleged misrepresentations as to whether it was religious and whether it was held out to plaintiff as religious in nature. This fragments the inquiry inappropriately. The question which the jury was required to decide in this case was whether, even though the Mission is a religious organization, it offered the services in question here on a wholly non-religious basis. See Founding Church of Scientology v. United States, supra. It is only upon an affirmative finding on that issue that liability can attach for the statements made in this case. The jury was not correctly instructed in that regard. PAGE 91 57 Ore. App. 203, *245; 644 P.2d 577, **604; LEXSEE 40 A.L.R.4th 1017 [*246] In addition, the instruction that the statements must be held out as religious in good faith is not accurate. The question of "good faith" belief is quite complicated in this case, for the defendants charged with fraud are not the individuals who made the representations, but the religious organizations themselves. It is true that in many cases in which free exercise protection has been sought, courts have looked to whether the one seeking the protection is "sincere" in his or her belief in the doctrine at issue. See, e.g., People v. Woody, supra; Teterud v. Burns, 522 F2d 357 (8th Cir 1975). Those cases, however, involve the sincerity of the individual claiming the protection. United States v. Ballard, supra, has been cited to us for the proposition that the sincerity of the proponents of religious belief is a proper subject for inquiry in an action for fraud. We do not read Ballard so to hold. In Ballard, a criminal action for mail fraud, the parties agreed in the trial court that the issue of the truth or falsity of the statements at issue would not be submitted to the jury, but only the question of whether the defendants honestly and sincerely believed the statements they made. After a jury verdict finding them guilty, the defendants contended that it was improper to withdraw from the jury the question of whether the statements made were true or false. The Circuit Court of Appeals agreed and reversed the conviction. On appeal, the Supreme Court held that "* * * the District Court ruled properly when it withheld from the jury all questions concerning the truth or falsity of the religious beliefs or doctrines of [the defendants]." The Court then noted that the defendants urged other grounds for supporting the reversal of the convictions, but it refused to consider those contentions before giving the circuit court an opportunity to consider the issues first. 322 U.S. at 88. Ballard did not address the question of the propriety of submitting the issue of the defendants' sincerity to the jury. In addition, the defendants in Ballard were the very individuals accused of actually making the statements at issue. The liability of a religious organization for the statements of its agents was not discussed. In the situation presented here, it is difficult to determine whose sincerity or good faith the jury could be asked to determine. Is the religious organization to be held [*247] liable if one of its ministers is less than a true believer? Or is it to be saved from liability if the individual who makes the statement truly believes, but others in the church do not? In Founding Church of Scientology v. United States, supra, the court suggested that liability might attach if it were shown "* * * that an item (book, pamphlet, advertising flier) makes out a self-sufficient non-religious claim for Scientology services, to which a religious appeal has [**605] been merely tacked on." 409 F2d at 1165. (Emphasis supplied.) As we have indicated, defendants could be held liable if the jury found that the courses and services offered by the Mission to plaintiff were offered for a wholly secular purpose. A wholly secular purpose means that, at the time they were made to this plaintiff, the statements were made for a purpose other than inducing plaintiff to join or participate in defendants' religion. A wholly secular purpose, in this regard, would include, but not be limited to, the intention solely to obtain money from plaintiff. On this record it would have been proper to instruct the jury that it is possible to find that the services PAGE 92 57 Ore. App. 203, *247; 644 P.2d 577, **605; LEXSEE 40 A.L.R.4th 1017 were offered on a wholly secular basis, notwithstanding the fact that plaintiff was required to join the Church of Scientology in order to participate and that the materials she was given to read stated that Scientology is a religion. A jury could find that the courses and services were offered on a secular basis and that a religious designation had been merely "tacked on." Phrasing the issue as one of good faith was therefore misleading and erroneous. Defendants also contend that the instruction improperly placed on them the burden of proof on the question of the religious nature of the representations. They contend that it was improper to require that they prove the statements were religious when it was plaintiff's burden to prove knowledge of falsity to recover for fraud. Defendants confuse the burden of proving fraud with the burden of proving the affirmative defense of freedom of religion. As this instruction indicates, it is appropriate for the jury to consider the matter of the defense first, before reaching the issue of the truth or falsity of the statements for deciding [*248] the issue of fraud. That approach makes good sense in this context. In summary, we conclude that the motions of all defendants for directed verdicts on the claims for outrageous conduct should have been granted. The motions of COSOP and Delphian for directed verdicts on plaintiff's action for fraud should have also been granted. The instruction which was given regarding the Free Exercise defense asserted by the remaining defendants was erroneous and requires reversal. Because of the disposition we have made of the causes of action and counts, this case will have to be retried. We now turn to the assignments of error which raise issues which are likely to arise on re-trial. EXHIBITS Defendants assign error to the exclusion of three exhibits offered to show the good faith of the individual who informed plaintiff that L. Ron Hubbard had an honorary degree from Sequoia University and a degree from Princeton University. Those exhibits were photocopies of a telegram and two certificates. Plaintiff objected to the exhibits on the grounds of lack of authentication and hearsay. The objections were sustained. Those objections were not well taken. The exhibits were offered to show the state of mind of the individual who made the representations regarding Hubbard's background to plaintiff. That individual testified that he had seen the exhibits before talking with plaintiff and believed them to be true. Neither the truth of the matter contained in the exhibits nor their authenticity was asserted by defendants. The state of mind of the one accused of making fraudulent representations is clearly at issue where one of the elements to be shown is the speaker's knowledge of the falsity of the representation being made. See Linebaugh v. Portland Mortgage Co., 116 Or 1, 239 P 196 (1925); Seaside, City of v. Randles, 92 Or 650, 180 P 319 (1919). The exhibits were relevant to that state of mind, and their exclusion was error. INSTRUCTIONS Defendants assign error to the giving of certain instructions and the failure to give other instructions. The [*249] first assignment we consider is the failure of the trial court to give defendants' requested instruction defining PAGE 93 57 Ore. App. 203, *249; 644 P.2d 577, **605; LEXSEE 40 A.L.R.4th 1017 "justifiable reliance" as follows: [**606] "A party claiming to have been defrauded by a false representation must not only have acted in reliance thereon, but must have been jusified in such reliance, that is, the situation must have been such as to make it reasonable for him, in the light of the circumstances and his intelligence, experience and knowledge, to accept the representation without making an independent inquiry or investigation." The court instructed the jury that to find for plaintiff it must find that "* * * the plaintiff having a right to do so, reasonably relied upon the representation and did not know it was false." We believe the instruction given by the trial court "adequately and accurately state the applicable law." Bowlds v. Taggesell Pontiac, 245 Or 86, 95, 419 P2d 414 (1966); see also Yardley v. Rucker Brothers Trucking, Inc., 42 Or App 239, 600 P2d 485 (1979), rev den 288 Or 335 (1980). It was not error for the trial court to refuse to give the instruction requested by defendants. Defendants also assign error to the failure to give their requested instruction defining "material fact." The court instructed the jury that there must have been "a false representation of material fact" in order to find for the plaintiff on her fraud claim. Defendants requested the following instruction defining "material fact": "A fact is material if a reasonably prudent person under the circumstances would attach importance to it in determining his course of action." Plaintiff does not contend that this instruction is an incorrect statement of the law, but only that it was unnecessary to instruct the jury on the meaning of the term material because that term was used in its usual and conventional sense. We disagree that the instruction was unnecessary. The term "material fact," as it is used as an element of an action for fraud, involves the kind of objective standard included in the requested instruction. See Milliken v. Green, 283 Or 283, 583 P2d 548 (1978). The dictionary definition of "material," "being of real importance or great consequence," Webster's Third International Dictionary, does not contain that objective element. [*250] Defendants were entitled to have the jury instructed on the definition of the term which constitutes an element of the action against which they were defending. Defendants also contend that the trial court erred in failing to instruct the jury that "fraud is never presumed." Within the context of the instructions as a whole, see Yardley v. Rucker Brothers Trucking, Inc., supra, we believe the jury was adequately instructed in that regard, and the failure to give the instruction was not error. Defendants assign error to the failure to give their requested instructions containing the specific language of the First and Fourteenth Amendments to the United States Constitution and Article I, Sections 2 and 3 of the Oregon Constitution. n29 The refusal to give such instructions was not error. The language of the constitutional provisions is not by itself a statement of the law which was necessary or even particularly helpful to the jury in resolving the issues [**607] in this case. Although it might not have been error to give such an instruction, neither was it error to refuse to do so. PAGE 94 57 Ore. App. 203, *250; 644 P.2d 577, **607; LEXSEE 40 A.L.R.4th 1017 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n29 Defendants' requested instructions were as follows: "The First Amendment to the United States Constitution provides that: 'Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof.' "The Fourteenth Amendment to the United States Constitution provides that: '* * * No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny any person within its jurisdiction equal protection of the laws.' "Article I, Section 2 of the Oregon Constitution provides under Freedom of Worship: 'All men shall be secure in the natural right, to worship Almighty God according to the dictates of their own consciences.' "Article I, Section 3 of the Oregon Constitution under Freedom of Religious Opinion provides: 'No law shall in any case whatever, control the free exercise, and enjoyment of religious opinions, or interfere with the rights of conscience.'" - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Finally, defendants assign error to the refusal to give the following instruction: "The parties have stipulated that Scientology is a religion. I instruct you that for all purposes in this case Scientology is a religion and the Church of Scientology, Mission of Davis, and Church of Scientology of Portland are religious institutions." [*251] The first portion of their requested instruction is not correct. Plaintiff did not stipulate that Scientology is a religion. She chose to approach the problems presented in this litigation on the basis that it did not matter whether Scientology is a religion, because the defendants could be liable in any event. That does not amount to a stipulation that Scientology is a religion. However, we have determined that the record in this case establishes, as a matter of law, that Scientology is a religion. The jury should have been so informed. PUNITIVE DAMAGES The final assignment of error we consider n30 is the failure of the trial court, on motion by defendants, to withdraw from the jury the claim for punitive damages. In the trial court and in this court defendants rely on Wheeler v. Green, 286 Or 99, 593 P2d 777 (1979), for the proposition that imposition of punitive damages is constitutionally impermissible in the context of free speech. n31 Defendants contend that that proposition also applies to the area of free exercise of religion and that statements arguably religious should not subject one to liability for punitive damages because of the "chilling effect" such awards could have on the practice of religion. They make only PAGE 95 57 Ore. App. 203, *251; 644 P.2d 577, **607; LEXSEE 40 A.L.R.4th 1017 constitutional arguments and do not argue that the case is otherwise inappropriate for an award of punitive damages. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n30 Defendants' other assignments of error are either mooted by our disposition of the issues we have discussed, were not preserved in the trial court, or are, in our estimation, unlikely to arise again on re-trial. n31 Wheeler v. Green, supra, is based on the Oregon Constitution. Defendants also rely on Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S Ct 2997, 41 L Ed 2d 789 (1974), for the proposition that punitive damages are constitutionally impermissible for defamation. Gertz, however, does not hold that punitive damages may never be awarded for defamation. The Court was concerned with the self-censorship of media defendants which might result from the possibility of punitive damage awards under state laws requiring less than a showing of actual malice. The Court stated: "We also find no justification for allowing awards of punitive damages against publishers and broadcasters held liable under state-defined standards of liability for defamation. * * * In short, the private defamation plaintiff who establishes liability under a less demanding standard than that stated by New York Times [Co. v. Sullivan, 376 U.S. 254, 84 S Ct 710, 11 L Ed 2d 686, 95 ALR2d 1412 (1964), that is 'actual malice'] may recover only such damages as are sufficient to compensate him for actual injury." 418 U.S. at 350. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*252] After the briefs in this case were submitted, the Oregon Supreme Court decided Hall v. May Department Stores Co., supra, in which it held that punitive damages are not available in an action for outrageous conduct in which the only conduct which subjects the defendant to liability is "speech." The court stated: "When the cause of defendant's liability is his 'abuse' of speech and expression, as in the case of defamation, Wheeler v. Green holds that the 'responsibility for the abuse' is confined to civil liability for compensation only. Here the injury was to plaintiff's person rather than her reputation, but as long as it resulted from an 'abuse' of speech only, the principle is the same." 292 Or at 146. It might well be argued on the basis of the above language that any fraud which involves an abuse of speech or expression is similarly exempt from the imposition of punitive damages. The Supreme Court has, however, recognized the possibility of an award of punitive damages in cases involving fraud in several recent opinions. See, e.g., Schmidt v. Pine Tree Land Dev., 291 Or 462, 631 P2d 1373 (1981); Milliken v. [**608] Green, supra; Green v. Uncle Don's Mobile City, 279 Or 425, 568 P2d 1375 (1977). Although we are not certain just what the analytical distinction is, given the broad language in Hall, we do not believe that the Supreme Court intended to prohibit the award of punitive damages in all cases of fraud, and we decline to do so here. Defendants, arguing without "benefit" of Hall, do not claim that all fraud is exempt from the imposition of punitive damages, but that "* * * in the PAGE 96 57 Ore. App. 203, *252; 644 P.2d 577, **608; LEXSEE 40 A.L.R.4th 1017 sensitive area of First Amendment freedoms, a plaintiff can recover only compensatory damages." They contend that the imposition of punitive damages would have a chilling effect, not only on the exercise of free speech and association, but on the free exercise of religion as well. As we have stated, we do not agree that punitive damages are unavailable for fraud merely because the fraudulent representations are "speech." Defendants suggest that because the actions giving rise to this cause of action occurred in the context of a religious organization of which plaintiff was a member, the free exercise of religion would be chilled by the possibility of a punitive damage award. We do not believe that such a chilling effect is a threat [*253] to the free exercise of religion. In order to be actionable at all, the statements alleged must be found to have been nonreligious as made. Defendants' argument seems to lead to is the conclusion that religious organizations should not be made liable for punitive damages because they are religious organizations, even if the content of the statements which they are alleged to have made is not religious. We find no constitutional requirement for such an exemption. The free exercise of religion is sufficiently protected by the the broad scope of what is protected as religious belief and practice and the fact that the truth or falsity of such religious beliefs may not be determined in an action for fraud. The trial court properly denied defendants' motion to strike the claim for punitive damages. Reversed as to defendants Church of Scientology of Portland and Delphian Foundation; reversed and remanded for a new trial as to defendants Samuels and Church of Scientology, Mission of Davis. CITATION: 333 F. Supp. 357 PAGE 98 333 F. Supp. 357 printed in FULL format. UNITED STATES of America, Libelant, v. An ARTICLE OR DEVICE . . . "HUBBARD ELECTROMETER" or "Hubbard E-Meter," etc., Founding Church of Scientology et al., Claimants UNITED STATES v. An ARTICLE OR DEVICE No. D.C. 1-63 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA 333 F. Supp. 357 July 30, 1971 JUDGES: Gesell, District Judge. OPINIONBY: GESELL OPINION: [*358] MEMORANDUM OPINION GESELL, District Judge. This is an action by the United States seeking nationwide condemnation of a gadget known as an E-meter and related writings, by libel of information under the Food, Drug & Cosmetic Act, 21 U.S.C. @ 301 et seq. The E-meter is claimed to be a device within the meaning of the [*359] Act. Misbranding and lack of adequate directions for use are alleged. Claimants are the Founding Church of Scientology and various individuals. This suit was originally tried to a jury before another Judge of this Court and the conviction there obtained was reversed on appeal after a long trial because of certain First Amendment problems suggested by the instructions and evidentiary rulings. Founding Church of Scientology v. United States, 133 U.S. App. D.C. 229, 409 F.2d 1146 (1969). The present trial was conducted to the Court without a jury after a series of pretrials which narrowed the issues. The record consists of the transcript and exhibits taken at the prior trial with some additions and deletions, plus the testimony of one additional witness who testified further on religious aspects of the case. Many of the background facts are set forth in the opinion of the Court of Appeals and since they were in the main not contested at the second trial they need not all be repeated here. The E-meter is essentially a simple galvanometer using two tin cans as electrodes. It is crude, battery-powered, and designed to measure electrical skin resistance. It is completely harmless and ineffective in itself. A person using the meter for treatment holds the tin cans in his hands during an interview with the operator who is known as an auditor and who purports to read indicators from the galvanometer needle as it notes reactions to questions. Scientology is a so-called exact science which promotes auditing. When practiced by trained or untrained persons, Scientology auditing is claimed to improve the health, intelligence, ability, behavior, skill and appearance of the individual treated. PAGE 99 333 F. Supp. 357, *359 LEXSEE L. Ron Hubbard, writing in a science fiction magazine in the 1940's, first advanced the extravagant false claims that various physical and mental illnesses could be cured by auditing. He played a major part in developing Scientology. Thereafter, commencing in the early 1950's numerous Scientology books and pamphlets were written explaining how various illnesses can be and had been cured through auditing. These materials were widely distributed. Hubbard, who wrote much of the material, is a facile, prolific author and his quackery flourished throughout the United States and in various parts of the world. He was supported by other pamphleteers and adherents who also promoted the practice of Scientology and touted its alleged benefits. Hubbard and his fellow Scientologists developed the notion of using an E-meter to aid auditing. Substantial fees were charged for the meter and for auditing sessions using the meter. They repeatedly and explicitly represented that such auditing effectuated cures of many physical and mental illnesses. An individual processed with the aid of the E-meter was said to reach the intended goal of "clear" and was led to believe there was reliable scientific proof that once cleared many, indeed most illnesses would automatically be cured. Auditing was guaranteed to be successful. All this was and is false -- in short, a fraud. Contrary to representations made, there is absolutely no scientific or medical basis in fact for the claimed cures attributed to E-meter auditing. Unfortunately the Government did not move to stop the practice of Scientology and a related "science" known as Dianetics when these activities first appeared and were gaining public acceptance. Had it done so, this tedious litigation would not have been necessary. The Government did not sue to condemn the E-meter until the early 1960's, by which time a religious cult known as the Founding Church of Scientology had appeared. This religion, formally organized in 1955, existed side-by-side with the secular practice of Scientology. Its adherents embrace many of Hubbard's teachings and widely disseminate his writings. The Church purports to believe that many illnesses may be cured through E-meter auditing by its trained ministers through an appeal to the spirit or soul of a man. As a matter of formal doctrine, the Church professes to have [*360] abandoned any contention that there is a scientific basis for claiming cures resulting from E-meter use. The Church, however, continued widely to circulate Scientology literature such as Government's exhibits 16 and 31, which hold out false scientific and medical promises of certain cure for many types of illnesses. n1 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 The issues have been tried as of January, 1963, the date of the libel. Thus the findings as to Scientology literature and positions of the claimants do not necessarily reflect current conditions. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - In 1962, when the Government seized the E-meters involved in the present controversy, it took them from the premises of the Church, confiscating some E-meters which were actually then being used primarily by ministers of the Church to audit adherents or to train auditors for subsequent church activity. Thus the Government put itself in the delicate position of moving against not only secular uses of the E-meter but other uses purporting to be religious, and the Court accordingly confronts the necessity of reconciling the requirements of the Food, Drug & Cosmetic Act prohibiting misbranding and the requirements of PAGE 100 333 F. Supp. 357, *360 LEXSEE the First Amendment protecting religious institutions and religious beliefs from governmental interference under the First Amendment. The Court of Appeals has ruled that the evidence at the prior trial and reintroduced at this trial established prima facie that the Founding Church of Scientology, the principal claimant here, is a bona fide religion and that the auditing practice of Scientology and accounts of it are religious doctrine. No evidence to the contrary was offered by the Government on the second trial. Accordingly, for purposes of this particular case only, claimant must be deemed to have met its burden of establishing First Amendment standing for whatever significance the religious practice of Scientology may have on the outcome of this particular litigation. The Government considers the First Amendment issue wholly irrelevant and extraneous. Claimant, on the other hand, relies heavily on the religious claim. The positions of the parties are so completely different that neither even deigns to recognize any merit in the other. The briefs and findings proposed by each side pass like two ships at night with not even a port or starboard light showing. Yet the truth is not as absolute as either party contends. Religious aspects of this controversy, once tactically conceded, cannot be ignored. On the other hand, it is a gross exaggeration to insist that the energetic, persistent solicitation of E-meter-audited cures for a fee has all occurred in a spiritual setting without use of secular appeals and false scientific promises made in a wholly non-religious context. Turning to the precise issues presented, it must first be determined whether the E-meter is a device within the meaning of the Act (21 U.S.C. @ 321 (h)). It obviously meets the statutory definition of an apparatus or contrivance intended for use in the diagnosis, cure, mitigation or treatment of disease. Moreover, it is held out as such in the constant promotion of E-meter auditing, a process designed to effectuate cures of mental and physical illnesses. Claimants contend that the E-meter is harmless in itself, cures nothing by itself, and therefore cannot be a device since those who use it appreciate its ineffectiveness and cannot therefore have the requisite intent. This begs the question. The device plays a key part in both the secular and religious auditing process which is used and intended to be used in the cure, mitigation or treatment of disease. It need not be the only agent in an allegedly curative process to be a device within the definition. The E-meter is a device within the meaning of the Act. Over 100 E-meters were seized. At the same time the Government seized some 200 separate pieces of literature containing approximately 20,000 pages, much of which it now contends demonstrates misbranding of the device by misrepresentation [*361] and lack of adequate directions for use under 21 U.S.C. @@ 334 and 352. The writings seized were located in a bookstore, or "Distribution Center," separately incorporated but owned by the Church, with offices in the basement of the Church premises. n2 The Center advertised and sold for profit a long list of Scientology, Dianetics and other writings concerned with auditing in book, pamphlet, newsletter and other forms. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - PAGE 101 333 F. Supp. 357, *361 LEXSEE n2 Claimants urge that this search and seizure was overly broad and contravenes the Fourth Amendment but this issue was resolved against this position by the Court of Appeals and need not be again considered. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - A few of these writings are primarily religious in nature. Others contain medical or scientific claims in a partially religious context. Most of the material, however, explains aspects of Scientology and Dianetics in purely matter-of-fact medical and scientific terms without any apparent religious reference. While the Court of Appeals concluded that literature setting forth the theory of auditing, including the claims for curative efficacy contained therein, is religious doctrine and hence as a matter of law not labeling, it recognized this was so only if the person charged with misrepresentation explicitly held himself out as making religious as opposed to medical, scientific or otherwise secular claims. The bulk of the material is replete with false medical and scientific claims devoid of any religious overlay or reference. Two books which the Church especially recommended to interested participants, "Scientology: The Fundamentals of Thought" (Government Ex. 31), and "The Problems of Work" (Government Ex. 103), are typical examples of books containing false scientific non-religious claims. Examples of such claims found in these and a few other representative documents used in various direct and indirect ways to promote E-meter auditing are listed in Appendix A. Thus the literature has all the necessary elements of labeling specified in 21 U.S.C. @ 321(m) since it "accompanied" the device within the meaning of the Act. See Kordel v. United States, 335 U.S. 345, 351, 69 S. Ct. 106, 93 L. Ed. 52 (1948). Having in mind a jury trial, the Court of Appeals contemplated an itemby-item analysis of the writings alleged to be labeling in order to remove from jury inspection purely religious appeals, reserving a presentation of the other literature for determination under instructions differentiating the secular from the religious. This exercise is, of course, unnecessary on a trial to the Court. A single false scientific nonreligious label claim is sufficient to support condemnation, and in fact there are many. Moreover, differentiation of individual documents as a practical matter is of little value when it comes to an overall resolution of the controversy. Realistically, the writings cannot only be viewed separately. They are available and distributed in infinite combinations. Whole books are involved which often ramble, contradict and are constructed to make diversified appeals that are basically secular and directed to varying temperaments, ages and attitudes of potential readers. Much of the material is skillful propaganda designed to make Scientology and E-meter auditing attractive in many varied, often inconsistent wrappings. The Food and Drug laws are designed to protect the public. The literature disseminated by various Scientology groups is written for popular lay consumption. The words and thrust of the writings must accordingly be so considered. Claims as to the efficacy of the E-meter must be read to mean what they clearly purport to say to ordinary lay readers. The Court notes that the task of determining whether a claim or representation is religious or non-religious, or whether a religious claim is genuine or merely "tacked on" to basically pseudoscientific claims, is hardly less troublesome [*362] than the task of determining whether a religious claim is true or false. The Court has attempted to resolve the difficulty thus presented by the Court of Appeals PAGE 102 333 F. Supp. 357, *362 LEXSEE by refusing to consider the truth or falsity of any claim which, in the understanding of the average reader, could be construed as resting on religious faith. All doubts on this issue have been resolved in favor of the Claimants. But the overall effect of the many separate writings and the writings as a whole cannot be seriously questioned. Whether the documents are viewed singly or as a whole, the proof showed that many false scientific claims permeate the writings and that these are not even inferentially held out as religious, either in their sponsorship or context. It should be kept in mind at all times that the Church is but one of several groups engaged in the promotion of Scientology; others include the Hubbard Guidance Center, that offers non-religious processing and auditing to the public for a fee; Hubbard Association of Scientologists International (HASI), a world-wide organization promoting Scientology among members of the organization who receive a monthly magazine ("Ability") and other benefits; and the Distribution Center, Inc., already mentioned. The combined effort of all these activities is to persuade the public to come forward for auditing with an E-meter for a fee, and while some may be motivated or attracted by religious considerations, others who audit or are audited are not. n3 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n3 Ability, issue 14 (Ex. 9L, p. 14) states: Scientology is going all out as a religion. The religious aspect is highly functional, very true and is very -- much -- more successful * * * The public expects to have ministers around. That's us folks. * * * * * * If you don't like religion for heaven's sakes call yourself a Dianeticist. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - An individual was not required to be either a Church member or a Scientologist to be audited at cost of $500 for 25 hours, with state of "clear" guaranteed for $5,000. The E-meter was available for sale to the public for a fee of $125. The benefits of auditing were extravagantly advertised. At the time this action was commenced, E-meters perhaps as many as one-third the total supply -- were being used by members of the public without any religious control or supervision. n4 The writings were distributed to accompany the E-meter and intended to promote its use by members of the public; they were used by laymen for secular purposes; individually a great many contain false unqualified scientific claims without even a religious overlay or suggestion. Viewed as a whole the thrust of the writings is secular, not religious. The writings are labeling within the meaning of the Act. Thus, the E-meter is misbranded and its secular use must be condemned along with secular use of the offensive literature as labeling. The misbranding results not only from misrepresentation by reason of 21 U.S.C. @ 352(a) but because the labeling failed to bear adequate directions for use required by 21 U.S.C. @ 352(f)(1). n5 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n4 At the time of this action at least half the E-meters in use in the United States were being used by non-ordained lay personnel. Operators franchised by the Church who may or may not subscribe to its doctrines, provide secular PAGE 103 333 F. Supp. 357, *362 LEXSEE auditing, retaining for themselves ninety percent of the fees collected and purport to send only ten percent to the Church. Claimants were unable to show that these franchised services were in any real sense religious missionary work in the sense that auditing was done by members of this group on a religious basis. n5 Accompanying labeling must specify the conditions for which the device is intended and sufficient information under which the device can be used safely and effectively for the purposes for which it is intended to be used. United States v. Shock, 379 F.2d 29 (8th Cir. 1967). Adequate directions are literally lacking here. It is impossible to write adequate directions for use of the E-meter by laymen. Cf. United States v. Ellis Research Laboratories, 300 F.2d 550 (7th Cir. 1962). The Church of Scientology of California v. Richardson, 437 F.2d 214 (9th Cir. 1971). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*363] On the basis of these findings, the Government is entitled to some relief. It is only when the Court confronts the question of appropriate remedy that serious difficulties arise. An initial issue presented is whether the normal Food and Drug remedies, 21 U.S.C. @ 334, may under any circumstances be applied to the device when used by some as an "artifact" of a church. A law designed to afford protection to the public against genuine evils may be used to regulate the activities of religion only if the regulation involved is the narrowest possible remedy to achieve the legitimate non-religious end, which in this case is only to protect the public against misrepresentation since the E-meter is harmless in itself. See Sherbert v. Verner, 374 U.S. 398, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963); Barnett v. Rodgers, 133 U.S.App. D.C. 296, 410 F.2d 995 (1969). The Government argues that once a violation of the Act is established, the devices seized may be treated the same as any other misbranded device. Since the bona fides of the religion remains unquestioned on this record, the Government's position is an oversimplification. Here is a pseudo-science that has been adopted and adapted for religious purposes. The literature held to make false representations, while in itself nonreligious, nevertheless comprises for some, part of the writings, teachings, and history of a religion. Those who belong to the Church and accept its beliefs assert that many illnesses may be alleviated by religious counseling designed to free the spirit of encumbrances. They find in the rationale and procedures of Scientology satisfactory early explanations and techniques to implement what is essentially faith healing by use of the E-meter. Thus they purport to read the purely secular writings of Scientology with semantic interpretations fostered by their evolving religious doctrine. Purely scientific statements are given a theological slant by the initiated and the occasional theological indications in the writings are given enthusiastic exaggeration. What the layman reads as straight science fiction becomes to the believer a bit of early imperfect scripture. The result of all this is that what may appear to the layman as a factual scientific representation (clearly false) is not necessarily this at all when read by one who has embraced the doctrine of the Church. Accordingly, the Government's protestations that it is not interfering with religious practice when it seeks to condemn the E-meter and related literature must be qualified. The Church is a religious institution protected by the PAGE 104 333 F. Supp. 357, *363 LEXSEE First Amendment. The E-meter is used by its ministers as part of the ritual and practice of the Church. Serious interference indeed results if the Church is entirely prohibited from using the E-meter by condemnation or if the Court orders the Food and Drug Administration to oversee a general rewriting of all the writings the Church purveys. Where there is a belief in a scientific fraud there is nonetheless an interference with the religion that entertains that belief if its writings are censored or suppressed. Similarly, if a church uses a machine harmless in itself to aid its ministers in communicating with adherents, the destruction of that machine intrudes on religion. The dilemma cannot be resolved by attempting to isolate purely false scientific claims from claims that have sufficient religious content to be outside the Food and Drug laws. There is a religious substance to everything when seen with the eyes of the believer. For these reasons, the Church may not be wholly prevented from practicing its faith or from seeking new adherents. A decree of condemnation which ordered destruction of the device, with its necessary res judicata effect as to all E-meters in the country, would achieve this effect. On the other hand, a condemnation decree which allowed the FDA to reform the writings as is done in the usual commercial drug misbranding case would give a Government agency excessive [*364] power to interfere with the exercise of religion, fostering that Government "entanglement" with religion which has been recently condemned by the Supreme Court. See, e.g., Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971). Neither of these possible remedies is acceptable to the Court. Had the Government proceeded in equity to enjoin specific non-religious practices or representations which it believed to violate the Act, the Court could have curtailed the purely commercial use of the E-meter while leaving the Church free to practice its belief under limited circumstances. An action in rem, however, acts only upon the device, and the Court cannot fashion a remedy in libel which distinguishes with particularity between religious and non-religious uses. An equity proceeding is clearly the most satisfactory remedy in this and any similar future cases, and may in some instances be the only remedy which the Government may seek consistent with the First Amendment. Dismissal of this libel after eight years of legal proceedings is not justified on the grounds that the Government has not used the most appropriate remedy. A decree of condemnation will therefore be entered, but the Church and others who base their use upon religious belief will be allowed to continue auditing practices upon specified conditions which allow the Food and Drug Administration as little discretion as possible to interfere in future activities of the religion. Pursuant to 21 U.S.C. @ 334 (d), upon the findings and conclusions contained in this Memorandum Opinion, relief in the following form shall be set out in an implementing order: All E-meters are condemned together with all writings seized. The Government shall have its costs. The device and writings condemned shall be returned to the owners, upon execution of an appropriate bond, to be destroyed or brought into compliance with the Food, Drug & Cosmetic Act. An E-meter shall be deemed to comply with the Act if and only if it is used, sold or distributed upon specified conditions. PAGE 105 333 F. Supp. 357, *364 LEXSEE The device may be used or sold or distributed only for use in bona fide religious counseling. No user, purchaser or distributee (other than the Founding Church of Scientology or an ordained practicing minister of the Church) shall be considered engaged in bona fide religious counseling unless and until such user, purchaser or distributee has filed an affidavit with the Secretary of the Food and Drug Administration stating the basis on which a claim of bona fide religious counseling is made, together with an undertaking to comply with all conditions of the judgment so long as the E-meter is used. The device should bear a prominent, clearly visible notice warning that any person using it for auditing or counseling of any kind is forbidden by law to represent that there is any medical or scientific basis for believing or asserting that the device is useful in the diagnosis, treatment or prevention of any disease. It should be noted in the warning that the device has been condemned by a United States District Court for misrepresentation and misbranding under the Food and Drug laws, that use is permitted only as part of religious activity, and that the E-meter is not medically or scientifically capable of improving the health or bodily functions of anyone. Each user, purchaser, and distributee of the E-meter shall sign a written statement that he has read such warning and understands its contents and such statements shall be preserved. Any and all literature which refers to the E-meter or to auditing, including advertisements, distributed directly or indirectly by the seller or distributor of the E-meter or by anyone utilizing or promoting the use of the E-meter, should bear a prominent notice printed in or permanently affixed to each item or such literature, stating that the device known as a Hubbard Electrometer, or E-meter, used in auditing, has been condemned by [*365] a United States District Court on the grounds that the literature of Dianetics and Scientology contains false and misleading claims of a medical or scientific nature and that the E-meter has no proven usefulness in the diagnosis, treatment or prevention of any disease, nor is it medically or scientifically capable of improving any bodily function. Where the notice is printed in or affixed to literature, it should appear either on the outside front cover or on the title page in letters no smaller than 11-point type. The E-meter should not be sold to any person or used in any counseling of any person except pursuant to a written contract, signed by the purchaser or counselee, which includes, among other things, a prominent notification as specified immediately above. The effect of this judgment will be to eliminate the E-meter as far as further secular use by Scientologists or others is concerned. E-meter auditing will be permitted only in a religious setting subject to placing explicit warning disclaimers on the meter itself and on all labeling. The Government has requested an opportunity to show that complete forfeiture and destruction of the E-meter is required, but the Court has concluded that however desirable this may be in the public interest, the Court is without power to so order in view of the protections afforded claimant and others similarly situated under the First Amendment. The foregoing shall constitute the Court's findings of fact and conclusions of law. The parties are directed to submit an appropriate form of order providing the relief indicated on or before September 1, 1971. PAGE 106 333 F. Supp. 357, *365 LEXSEE APPENDIX A Representative Documents Found to be Non-Religious, and Samples of False or Misleading Claims Found Therein 1. Eight-page pamphlet, entitled "What is Scientology?" (Government Exhibit No. 16) "Scientology is today the only successfully validated psychotherapy in the world. Tens of thousands of completely documented cases exist in the files of the Hubbard Association of Scientologists International. "The first science to put the cost of psycho-therapy within the range of any person's pocketbook. A complete Freudian analysis costs $8000 to $15,000. Better results can be achieved in Scientology for $25 and, on a group basis for a few dollars." "The first science to make whole classes of backward children averagely bright using only drills the teacher can do a few minutes each day. "The first science to determine the basic cause of disease. "The first science to contain exact technology to routinely alleviate physical illnesses with complete predictable success. "The first science of mind to prove conclusively that physical illness can stem from mental disturbance, a fact which Freud held only as a theory, and only seldom demonstrated. 2. Twenty-four page pamphlet, entitled "Ability Issue 71: Being Clear and How to Get There," by L. Ron Hubbard (Government Exhibit No. 9BA) "Scientologically, the optimum individual is called the clear. One will hear much of that word, both as a noun and a verb, so it is well to spend time here at the outset setting forth exactly what can be called a clear, the goal of Scientology processing. "A clear can be tested for any and all psychoses, neuroses, compulsions and repressions (all aberrations) and can be examined for any autogenic (self-generated) diseases referred to as psychosomatic ills. These tests confirm the clear to be entirely without such ills or aberrations. Additional tests of his intelligence indicate it to be high above the current norm. Observation of [*366] his activity demonstrates that he pursues existence with vigor and satisfaction. "Further, these results can be obtained on a comparative basis. A neurotic individual, possessed also of psychosomatic ills, can be tested for those aberrations and illnesses demonstrating that they exist. He can then be given Scientology processing to the end of clearing these neuroses and ills. Finally, he can be examined, with the above results. This, in passing, is an experiment which has been performed many times with invariable results. It is a matter of laboratory test that all individuals who have organically complete nervous PAGE 107 333 F. Supp. 357, *366 LEXSEE systems respond in this fashion to Scientology clearing." (3) Hard back book, 452 pages, entitled "Dianetics: The Modern Science of Mental Health," by L. Ron Hubbard. "Simple though it is, dianetics does and is these things: 1. It is an organized science of thought built on definite axioms: statements of natural laws on the order of those of the physical sciences. 2. It contains a therapeutic technique with which can be treated all inorganic mental ills and all organic psycho-somatic ills, with assurance of complete cure in unselected cases. 3. It produces a condition of ability and rationality for Man well in advance of the current norm, enhancing rather than destroying his vigor and personality. 4. Dianetics gives a complete insight into the full potentialities of the mind, discovering them to be well in excess of past supposition. 5. The basic nature of man is discovered in dianetics rather than hazarded or postulated, since that basic nature can be brought into action in any individual completely. And that basic nature is discovered to be good. 6. The single source of mental derangement is discovered and demonstrated, on a clinical or laboratory basis, by dianetics. 7. The extent, storage capacity and recallability of the human memory is finally established by dianetics. 8. The full recording abilities of the mind are discovered by dianetics with the conclusion that they are quite dissimilar to former suppositions. 9. Dianetics brings forth the nongerm theory of disease, complementing bio-chemistry and Pasteur's work on the germ theory to embrace the field. 10. With dianetics ends the "necessity" of destroying the brain by shock or surgery to effect "tractability" in mental patients and "adjust" them. 11. A workable explanation of the physiological effects of drugs and endocrine substances exists in dianetics and many problems posed by endocrinology are answered." "Chapter V PSYCHO-SOMATIC ILLNESS" "Psycho-somatic illnesses are those which have a mental origin but which are nevertheless organic. Despite the fact that there existed no precise scientific proof of this before dianetics, an opinion as to their existence has been strong since the days of Greece, and in recent times various drug preparations have been concocted and sold which were supposed to overcome these sicknesses. Some success was experienced, sufficient to warrant a great deal of work on the part of researchers. Peptic ulcers, for instance, have yielded to persuasion and environmental change. A recent drug called ACTH has had astonishing but PAGE 108 333 F. Supp. 357, *366 LEXSEE wildly unpredictable results. Allergies have been found to yield more or less to things which depressed histamine in the body. "The problem of psycho-somatic illness is entirely embraced by dianetics, and by dianetic technique such illness has been eradicated entirely in every case." "On the physical therapy level anything as violent as surgery or exodor tistry in the psycho-somatic plane i utter barbarism in the light of dianetics. "Toothache" is normally psycho-somatic. [*367] Organic illnesses enough to fill several catalogues are psycho-somatic. No recourse to surgery of any kind should be had until it is certain that the ailment is not psycho-somatic or that the illness will not diminish by itself if the potency of the reactive mind is reduced. * *" (4) Twelve-page pamphlet, entitled "Ability Issue 72" (Government Exhibit No. 114) [SEE ILLUSTRATION IN ORIGINAL] [*368] (5) Sixty-four page booklet, entitled "Scientology: The Fundamentals of Thought," by L. Ron Hubbard. Subtitle: "The Basic Book of the Theory & Practice of Scientology for Beginners" (Government Exhibit No. 31) Scientology is that branch of psychology which treats of (embraces) human ability. It is an extension of DIANETICS * * * Scientology is actually a new but very basic psychology in the most exact meaning of the word. It can and does change behaviour and intelligence and it can and does assist people to study life. Scientology, used by the trained and untrained person improves the health, intelligence, ability, behaviour, skill and appearance of people. It is a precise and exact science, designed for an age of exact sciences. Scientology is employed by an Auditor (one who listens and commands) as a set of drills (exercises, processes) upon the individual, and small or large groups. It is also employed as an educational (teaching) subject. It has been found that persons can be processed (drilled) in Scientology with Scientology exercises and can be made well of many, many illnesses and can become brighter, more alert and more competent. BUT if they are only processed they have a tendency to be overwhelmed or startled and although they may be brighter and more competent they are still held down by an ignorance of life. Therefore it is far better to teach AND process (audit, drill) a person than only to process him. In other words the best use of Scientology is through processing and education in Scientology. In this way there is no imbalance. It is interesting that people only need to study Scientology to have some small rise in their own intelligence, behaviour and competence. The study itself is therapeutic (good medicine) by actual testing. Tens of thousands of case histories (reports on patients, individual records) all sworn to (attested before public officials) are in the possession of the organizations of Scientology. No other subject on earth except physics and PAGE 109 333 F. Supp. 357, *368 LEXSEE chemistry has had such grueling testing (proofs, exact findings). Scientology in the hands of an expert (Auditor) can cure some 70% of Man's illnesses (sicknesses). Scientology is used by some of the largest companies (business organizations) on Earth. It is valid. It has been tested. It is the only thoroughly tested system of improving human relations, intelligence and character and is the only one which does. (6) Seventy-one page booklet, entitled "The Problems of Work," by L. Ron Hubbard. (Government Exhibit No. 103) "Scientology is the first American science of Man. It is the technical knowhow of the American applied to himself. In contrast to the metaphysical thinking of Europe that has formed the basis of our concepts of ourselves, Scientology is a technology as factual and as exact as the technologies that base the development of the atom bomb . . . and it has a like source -- the first class in nuclear physics, taught at George Washington University. "Scientology can and does change human behavior for the better. It puts the individual under the control of himself -- where he belongs. Scientology can and does increase human intelligence. By the most exact tests known it has been proven that Scientology can greatly increase intelligence in an individual. And Scientology can do other things. It can reduce reaction time and it can pull the years off one's appearance. But there [*369] is no intention here to give a list of all it can do. It is a science of life and it works. It adequately handles the basic rules of life and it brings order into chaos. "The mysteries of life are not today, with Scientology, very mysterious. Mystery is not a needful ingredient. Only the very aberrated man desires to have vast secrets held away from him. Scientology has slashed through many of the complexities which have been erected for men and has bared the core of these problems. Scientology for the first time in man's history can predictably raise intelligence, increase ability, bring about a return of the ability to play a game, and permits man to escape from the dwindling spiral of his own disabilities. Therefore work itself can become a game, a pleasant and happy thing.: (7) Hard cover book, 112 pages, entitled "All About Radiation, by a Nuclear Physicist and a Medical Doctor" (Government Exhibit No. 116) We care very little about whether there is radiation in the atmosphere because a person who is in excellent physical condition does not particularly suffer mentally and thus physically from the effects of radiation. When a person is at a level where his general physical health is good, then this worry is not capable of depressing him into ill-health. Radiation is more of a mental than a physical problem and Scientology handles that." "The reaction to radiation in persons who have been given Scientology processing is by actual tests much lower than those who have not received it. We have conducted many experiments in that direction. But even we would find it very difficult and even antipathetic to get everybody together and give them the amount of group processing needed as safeguard against radiation." CITATION: 109 S. Ct. 2136 PAGE 111 109 S. Ct. 2136 printed in FULL format. HERNANDEZ v. COMMISSIONER OF INTERNAL REVENUE HERNANDEZ v. COMMISSIONER No. 87-963 SUPREME COURT OF THE UNITED STATES 490 U.S. 680; 109 S. Ct. 2136; 1989 U.S. LEXIS 2773; 104 L. Ed. 2d 766; 57 U.S.L.W. 4593; 89-1 U.S. Tax Cas. (CCH) P9347; 63 A.F.T.R.2d (P-H) 1395 November 28, 1988, Argued June 5, 1989, Decided * * Together with No. 87-1616, Graham et al. v. Commissioner of Internal Revenue, on certiorari to the United States Court of Appeals for the Ninth Circuit. PRIOR HISTORY: [***1] CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT. DISPOSITION: 819 F. 2d 1212 and 822 F. 2d 844, affirmed. SYLLABUS: The Church of Scientology (Church) provides "auditing" sessions designed to increase members' spiritual awareness and training courses at which participants study the tenets of the faith and seek to attain the qualifications necessary to conduct auditing sessions. Pursuant to a central tenet known as the "doctrine of exchange," the Church has set forth schedules of mandatory fixed prices for auditing and training sessions which vary according to a session's length and level of sophistication and which are paid to branch churches. Under @ 170 of the Internal Revenue Code of 1954, petitioners each sought to deduct such payments on their federal income tax returns as a "charitable contribution," which is defined as a "contribution or gift" to eligible donees. After respondent Commissioner of Internal Revenue (Commissioner or IRS) disallowed these deductions on the ground that the payments were not "charitable contributions," petitioners sought review in the Tax Court. That court upheld the Commissioner's decisions [***2] and rejected petitioners' constitutional challenges based on the Establishment and Free Exercise Clauses of the First Amendment. The Courts of Appeals affirmed on petitioners' separate appeals. Held: Payments made to the Church's branch churches for auditing and training services are not deductible charitable contributions under @ 170. Pp. 689-703. (a) Petitioners' payments are not "contribution[s] or gift[s]" within the meaning of @ 170. The legislative history of the "contribution or gift" limitation reveals that Congress intended to differentiate between unrequited payments to qualified recipients, which are deductible, and payments made to such recipients with some expectation of a quid pro quo in terms of goods or services, which are not deductible. To ascertain whether a given payment was made with such an expectation, the external features of the transaction in question must be examined. Here, external features strongly suggest a quid pro quo exchange of petitioners' money for auditing and training sessions, since PAGE 112 490 U.S. 680, *; 109 S. Ct. 2136, **; LEXSEE 1989 U.S. LEXIS 2773, ***2; 104 L. Ed. 2d 766 the Church established fixed prices for such sessions in each branch church; calibrated particular prices to sessions of particular lengths [***3] and sophistication levels; returned a refund if services went unperformed; distributed "account cards" for monitoring prepaid, but as-yet-unclaimed, services; and categorically barred the provision of free sessions. Petitioners' argument that a quid pro quo analysis is inappropriate when a payment to a church either generates purely religious benefits or guarantees access to a religious service is unpersuasive, since, by its terms, @ 170 makes no special preference for such payments and its legislative history offers no indication that this omission was an oversight. Moreover, petitioners' deductibility proposal would expand the charitable contribution deduction far beyond what Congress has provided to include numerous forms of payments that otherwise are not, or might not be, deductible. Furthermore, the proposal might raise problems of entanglement between church and state, since the IRS and reviewing courts would be forced to differentiate "religious" benefits or services from "secular" ones. Pp. 689-694. (b) Disallowance of petitioners' @ 170 deductions does not violate the Establishment Clause. Petitioners' argument that @ 170 creates an unconstitutional denominational [***4] preference by according disproportionately harsh tax status to those religions that raise funds by imposing fixed costs for participation in certain religious practices is unpersuasive. Section 170 passes constitutional muster, since it does not facially differentiate among religious sects but applies to all religious entities, and since it satisfies the requisite three-pronged inquiry under the Clause. First, the section is neutral both in design and purpose, there being no allegation that it was born of animus to religion in general or to Scientology in particular. Second, its primary effect -- encouraging gifts to charitable entities, including but not limited to religious organizations -does not advance religion, there being no allegation that it involves direct governmental action endorsing religion or a particular religious practice. Its primary secular effect is not rendered unconstitutional merely because it happens to harmonize with the tenets of religions that raise funds by soliciting unilateral donations. Third, the section threatens no excessive entanglement between church and state. Although the IRS must ascertain the prices of a religious institution's services, [***5] the regularity with which such payments are waived, and other pertinent information about the transaction, this is merely routine regulatory interaction that does not involve the type of inquiries into religious doctrine, delegation of state power, or detailed monitoring and close administrative contact that would violate the nonentanglement command. Nor does the application of @ 170 require the Government to place a monetary value on particular religious benefits. Petitioners' claim to the contrary raises no need for valuation, since they have alleged only that their payments are fully exempt from a quid pro quo analysis-- not that some portion of those payments is deductible because it exceeds the value of the acquired service. In any event, the need to ascertain what portion of a payment was a purchase and what portion was a contribution does not ineluctably create entanglement problems, since the IRS has eschewed benefit-focused valuation in cases where the economic value of a good or service is elusive, and has instead employed a valuation method which inquires into the cost (if any) to the donee of providing the good or service. This method involves merely administrative [***6] inquiries that, as a general matter, bear no resemblance to the kind of governmental surveillance that poses an intolerable risk of entanglement. Pp. 695-698. PAGE 113 490 U.S. 680, *; 109 S. Ct. 2136, **; LEXSEE 1989 U.S. LEXIS 2773, ***6; 104 L. Ed. 2d 766 (c) Disallowance of petitioners' @ 170 deductions does not violate the Free Exercise Clause. Although it is doubtful that, as petitioners allege, the disallowance imposes a substantial burden on the central practice of Scientology by deterring adherents from engaging in auditing and training sessions and by interfering with their observance of the doctrine of exchange, United States v. Lee, 455 U.S. 252, 260, establishes that even a substantial burden is justified by the broad public interest in maintaining a sound tax system, free of myriad exceptions flowing from a wide variety of religious beliefs. That this case involves federal income taxes, rather than the Social Security taxes considered in Lee, is of no consequence. Also of no consequence is the fact that the Code already contains some deductions and exemptions, since the guiding principle is that a tax must be uniformly applicable to all, except as Congress provides explicitly otherwise. Id., at 261. [***7] Indeed, the Government's interest in avoiding an exemption is more powerful here than in Lee, in the sense that the claimed exemption there stemmed from a specific doctrinal obligation not to pay taxes, whereas there is no limitation to petitioners' argument that they are entitled to an exemption because an incrementally larger tax burden interferes with their religious activities. Pp. 698-700. (d) Petitioners' assertion that disallowing their claimed deductions conflicts with the IRS' longstanding practice of permitting taxpayers to deduct payments to other religious institutions in connection with certain religious practices must be rejected in the absence of any specific evidence about the nature or structure of such other transactions. In the absence of those facts, this Court cannot appraise accurately whether IRS revenue rulings allowing deductions for particular religious payments correctly applied a quid pro quo analysis to the practices in question and cannot discern whether those rulings contain any unifying principle that would embrace auditing and training session payments. Pp. 700-703. COUNSEL: Michael J. Graetz argued the cause and filed briefs for petitioners [***8] in both cases. Deputy Solicitor General Merrill argued the cause for respondent in both cases. With him on the brief were Solicitor General Fried, Assistant Attorney General Rose, Deputy Solicitor General Wallace, Alan I. Horowitz, and Robert S. Pomerance. + + Briefs of amici curiae urging reversal were filed for the American Jewish Congress et al. by Walter J. Rockler, Julius Greisman, Paul S. Berger, and Marc D. Stern; and for the Council on Religious Freedom by Lee Boothby. JUDGES: Marshall, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Blackmun, and Stevens, JJ., joined. O'Connor, J., filed a dissenting opinion, in which Scalia, J., joined, post, p. 704. Brennan and Kennedy, JJ., took no part in the consideration or decision of the cases. OPINIONBY: MARSHALL OPINION: [*683] [**2140] JUSTICE MARSHALL delivered the opinion of the Court. Section 170 of the Internal Revenue Code of 1954 (Code), 26 U. S. C. @ 170, permits a taxpayer to deduct from gross income the amount of a "charitable PAGE 114 490 U.S. 680, *683; 109 S. Ct. 2136, **2140; LEXSEE 1989 U.S. LEXIS 2773, ***8; 104 L. Ed. 2d 766 contribution." The Code defines that term as a "contribution or gift" to certain eligible donees, including entities organized and [***9] operated exclusively for religious purposes. n1 We granted certiorari to determine [*684] whether taxpayers may deduct as charitable contributions payments made to branch churches of the Church of Scientology [**2141] (Church) in order to receive services known as "auditing" and "training." We hold that such payments are not deductible. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 Section 170 provides in pertinent part: "(a) Allowance of deduction "(1) General Rule "There shall be allowed as a deduction any charitable contribution (as defined in subsection (c)) payment of which is made within the taxable year. A charitable contribution shall be allowable as a deduction only if verified under regulations prescribed by the Secretary. . . . "(c) Charitable contribution defined "For purposes of this section, the term "charitable contribution" means a contribution or gift to or for the use of -- . . . "(2) A corporation, trust, or community chest, fund, or foundation -- "(A) created or organized in the United States or in any possession thereof, or under the law of the United States, any State, the District of Columbia, or any possession of the United States; "(B) organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes, or to foster national or international amateur sports competition (but only if no part of its activities involve the provision of athletic facilities or equipment), or for the prevention of cruelty to children or animals; "(C) no part of the net earnings of which inures to the benefit of any private shareholder or individual; and "(D) which is not disqualified for tax exemption under section 501(c)(3) by reason of attempting to influence legislation, and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of any candidate for public office. . . ." - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - [***10] PAGE 115 490 U.S. 680, *684; 109 S. Ct. 2136, **2141; LEXSEE 1989 U.S. LEXIS 2773, ***10; 104 L. Ed. 2d 766 I Scientology was founded in the 1950's by L. Ron Hubbard. It is propagated today by a "mother church" in California and by numerous branch churches around the world. The mother Church instructs laity, trains and ordains ministers, and creates new congregations. Branch churches, known as "franchises" or "missions," provide Scientology services at the local level, under the supervision of the mother Church. Church of Scientology of California v. Commissioner, 823 F. 2d 1310, 1313 (CA9 1987), cert. denied, 486 U.S. 1015 (1988). Scientologists believe that an immortal spiritual being exists in every person. A person becomes aware of this spiritual dimension through a process known as "auditing." n2 Auditing involves a one-to-one encounter between a participant (known as a "preclear") and a Church official (known as [*685] an "auditor"). An electronic device, the E-meter, helps the auditor identify the preclear's areas of spiritual difficulty by measuring skin responses during a question and answer session. Although auditing sessions are conducted one on one, the content of each session is not individually tailored. [***11] The preclear gains spiritual awareness by progressing through sequential levels of auditing, provided in short blocks of time known as "intensives." 83 T. C. 575, 577 (1984), aff'd, 822 F. 2d 844 (CA9 1987). - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2 Auditing is also known as "processing," "counseling," and "pastoral counseling." 83 T. C. 575, 577 (1984), aff'd, 822 F. 2d 844 (CA9 1987). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The Church also offers members doctrinal courses known as "training." Participants in these sessions study the tenets of Scientology and seek to attain the qualifications necessary to serve as auditors. Training courses, like auditing sessions, are provided in sequential levels. Scientologists are taught that spiritual gains result from participation in such courses. 83 T. C., at 577. The Church charges a "fixed donation," also known as a "price" or a "fixed contribution," for participants to gain access to auditing and training sessions. [***12] These charges are set forth in schedules, and prices vary with a session's length and level of sophistication. In 1972, for example, the general rates for auditing ranged from $ 625 for a 12 1/2-hour auditing intensive, the shortest available, to $ 4,250 for a 100-hour intensive, the longest available. Specialized types of auditing required higher fixed donations: a 12 1/2-hour "Integrity Processing" auditing intensive cost $ 750; a 12 1/2-hour "Expanded Dianetics" auditing intensive cost $ 950. This system of mandatory fixed charges is based on a central tenet of Scientology known as the "doctrine of exchange," according to which any time a person receives something he must pay something back. Id., at 577-578. In so doing, a Scientologist maintains "inflow" and "outflow" and avoids spiritual decline. 819 F. 2d 1212, 1222 (CA1 1987). The proceeds generated from auditing and training sessions are the Church's primary source of income. The Church promotes these sessions not only through PAGE 116 490 U.S. 680, *685; 109 S. Ct. 2136, **2141; LEXSEE 1989 U.S. LEXIS 2773, ***12; 104 L. Ed. 2d 766 newspaper, [*686] magazine, and radio advertisements, but also through free lectures, free personality tests, and leaflets. [***13] The Church also encourages, and indeed rewards with a 5% discount, advance payment for these sessions. 822 F. 2d, at 847. The Church often refunds unused portions of prepaid auditing or training fees, less an administrative charge. Petitioners in these consolidated cases each made payments to a branch church for auditing or training sessions. They sought to deduct these payments on their federal income tax returns as charitable contributions under @ 170. Respondent [**2142] Commissioner, the head of the Internal Revenue Service (IRS), disallowed these deductions, finding that the payments were not charitable contributions within the meaning of @ 170. n3 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n3 The petitioner in No. 87-963, Robert L. Hernandez, was denied a deduction of $ 7,338 and was assessed a tax deficiency of $ 2,245 for 1981. 819 F. 2d 1212, 1215 (CA1 1987). Of the petitioners in No. 87-1616, Katherine Jean Graham was denied a deduction of $ 1,682 and was assessed a tax deficiency of $ 316.24 for 1972; Richard M. Hermann was denied a tax deduction of $ 3,922 and was assessed a tax deficiency of $ 803 for 1975; and David Forbes Maynard was denied a deduction of $ 5,000 (including a carryover of $ 2,385 for contributions made in 1976) and was assessed a tax deficiency of $ 643 for 1977. 83 T. C., at 575-579. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - [***14] Petitioners sought review of these determinations in the Tax Court. That court consolidated for trial the cases of the three petitioners in No. 87-1616: Katherine Jean Graham, Richard M. Hermann, and David Forbes Maynard. The petitioner in No. 87-963, Robert L. Hernandez, agreed to be bound by the findings in the consolidated Graham trial, reserving his right to a separate appeal. Before trial, the Commissioner stipulated that the branch churches of Scientology are religious organizations entitled to receive tax-deductible charitable contributions under the relevant sections of the Code. This stipulation isolated as the sole statutory issue whether payments for auditing or training sessions constitute "contribution[s] or gift[s]" under @ 170. n4 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n4 The stipulation allowed the Tax Court to avoid having to decide whether the particular branches to which payments were made in these cases qualified under @ 170(c)(2) and @ 501(c)(3) of the Code as tax-exempt organizations entitled to receive charitable contributions. In a separate case decided during the pendency of this litigation, the Tax Court held that the mother Church in California did not qualify as a tax-exempt organization under @ 501(c)(3) for the years 1970 through 1972 because it had diverted profits to its founder and others, had conspired to impede collection of its taxes, and had conducted almost all activities for a commercial purpose. Church of Scientology of California v. Commissioner, 83 T. C. 381 (1984). The Court of Appeals for the Ninth Circuit affirmed, basing its decision solely on the ground that the Church had diverted profits for the use of private individuals. It did not address the other bases of the Tax Court's decision. Church of Scientology of California PAGE 117 490 U.S. 680, *686; 109 S. Ct. 2136, **2142; LEXSEE 1989 U.S. LEXIS 2773, ***14; 104 L. Ed. 2d 766 v. Commissioner, 823 F. 2d 1310 (1987), cert. denied, 486 U.S. 1015 (1988). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - [***15] [*687] The Tax Court held a 3-day bench trial during which the taxpayers and others testified and submitted documentary exhibits describing the terms under which the Church promotes and provides auditing and training sessions. Based on this record, the court upheld the Commissioner's decision. 83 T. C. 575 (1984). It observed first that the term "charitable contribution" in @ 170 is synonymous with the word "gift," which case law had defined "as a voluntary transfer of property by the owner to another without consideration therefor." Id., at 580, quoting DeJong v. Commissioner, 36 T. C. 896, 899 (1961) (emphasis in original), aff'd, 309 F. 2d 373 (CA9 1962). It then determined that petitioners had received consideration for their payments, namely, "the benefit of various religious services provided by the Church of Scientology." 83 T. C., at 580. The Tax Court also rejected the taxpayers' constitutional challenges based on the Establishment and Free Exercise Clauses of the First Amendment. The Courts of Appeals [***16] for the First Circuit in petitioner Hernandez's case, and for the Ninth Circuit in Graham, Hermann, and Maynard's case, affirmed. The First Circuit rejected Hernandez's argument that under @ 170, the IRS' ordinary inquiry into whether the taxpayer received consideration for his payment should not apply to "the return of a commensurate religious benefit, as opposed to an economic or financial benefit." 819 F. 2d, at 1217 (emphasis in original). [*688] The court found "no indication that Congress intended to distinguish the religious benefits sought by Hernandez from the medical, educational, scientific, literary, or other benefits that could likewise provide the quid for the quo of a nondeductible payment to a charitable organization." Ibid. The court also rejected Hernandez's argument that it was impracticable [**2143] to put a value on the services he had purchased, noting that the Church itself had "established and advertised monetary prices" for auditing and training sessions, and that Hernandez had not claimed that these prices misstated the cost of providing these sessions. Id., at 1218. Hernandez's constitutional [***17] claims also failed. Because @ 170 created no denominational preference on its face, Hernandez had shown no Establishment Clause violation. Id., at 1218-1221. As for the Free Exercise Clause challenge, the court determined that denying the deduction did not prevent Hernandez from paying for auditing and training sessions and thereby observing Scientology's doctrine of exchange. Moreover, granting a tax exemption would compromise the integrity and fairness of the tax system. Id., at 1221-1225. The Ninth Circuit also found that the taxpayers had received a "measurable, specific return . . . as a quid pro quo for the donation" they had made to the branch churches. 822 F. 2d, at 848. The court reached this result by focusing on "the external features" of the auditing and training transactions, an analytic technique which "serves as an expedient for any more intrusive inquiry into the motives of the payor." Ibid. Whether a particular exchange generated secular or religious benefits to the taxpayer was irrelevant, for under @ 170 "[i]t is the structure of the transaction, and not the type [***18] of benefit received, that controls." Id., at 849. PAGE 118 490 U.S. 680, *688; 109 S. Ct. 2136, **2143; LEXSEE 1989 U.S. LEXIS 2773, ***18; 104 L. Ed. 2d 766 The Ninth Circuit also rejected the taxpayers' constitutional arguments. The tax deduction provision did not violate the Establishment Clause because @ 170 is "neutral in its design" and reflects no intent "to visit a disability on a particular [*689] religion." Id., at 853. Furthermore, that the taxpayers would "have less money to pay to the Church, or that the Church [would] receive less money, [did] not rise to the level of a burden on appellants' ability to exercise their religious beliefs." Id., at 851. Indeed, because the taxpayers could still make charitable donations to the branch church, they were "not put to the choice of abandoning the doctrine of exchange or losing the government benefit, for they may have both." Ibid. Finally, the court noted that the compelling governmental interest in "the maintenance of a sound and uniform tax system" counseled against granting a free exercise exemption. Id., at 852-853. We granted certiorari, 485 U.S. 1005 (1988); [***19] 486 U.S. 1022 (1988), to resolve a Circuit conflict concerning the validity of charitable deductions for auditing and training payments. n5 We now affirm. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n5 Compare Christiansen v. Commissioner, 843 F. 2d 418 (CA10 1988) (holding payments not deductible), cert. pending, No. 87-2023; Miller v. IRS, 829 F. 2d 500 (CA4 1987) (same), cert. pending, No. 87-1449, with Neher v. Commissioner, 852 F. 2d 848 (CA6 1988) (holding payments deductible); Foley v. Commissioner, 844 F. 2d 94 (CA2 1988) (same), cert. pending, No. 88-102; Staples v. Commissioner, 821 F. 2d 1324 (CA8 1987) (same), cert. pending, No. 87-1382. The rulings for the taxpayer in the Neher, Foley, and Staples cases rested on statutory, not constitutional, grounds. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - II For over 70 years, federal taxpayers have been allowed to deduct the amount of contributions [***20] or gifts to charitable, religious, and other eleemosynary institutions. See 2 B. Bittker, Federal Taxation of Income, Estates and Gifts para. 35.1.1 (1981) (tracing history of charitable deduction). Section 170, the present provision, was enacted in 1954; it requires a taxpayer claiming the deduction to satisfy a number of conditions. n6 The Commissioner's stipulation [**2144] in this case, however, [*690] has narrowed the statutory inquiry to one such condition: whether petitioners' payments for auditing and training sessions are "contribution[s] or gift[s]" within the meaning of @ 170. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n6 The charitable transfer must be made to a qualified recipient, @ 170(c), within the taxable year, @ 170(a)(1), and consist of cash or qualified property, 26 U. S. C. @@ 170(e)-(h) (1982 ed. and Supp. V), not exceeding a specified percentage of the taxpayer's income in the year of payment or (where a carryover is permitted) in subsequent years. 26 U. S. C. @@ 170(b), 170(d) (1982 ed. and Supp. V). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - [***21] PAGE 119 490 U.S. 680, *690; 109 S. Ct. 2136, **2144; LEXSEE 1989 U.S. LEXIS 2773, ***21; 104 L. Ed. 2d 766 The legislative history of the "contribution or gift" limitation, though sparse, reveals that Congress intended to differentiate between unrequited payments to qualified recipients and payments made to such recipients in return for goods or services. Only the former were deemed deductible. The House and Senate Reports on the 1954 tax bill, for example, both define "gifts" as payments "made with no expectation of a financial return commensurate with the amount of the gift." S. Rep. No. 1622, 83d Cong., 2d Sess., 196 (1954); H. R. Rep. No. 1337, 83d Cong., 2d Sess., A44 (1954). Using payments to hospitals as an example, both Reports state that the gift characterization should not apply to "a payment by an individual to a hospital in consideration of a binding obligation to provide medical treatment for the individual's employees. It would apply only if there were no expectation of any quid pro quo from the hospital." S. Rep. No. 1622, supra, at 196 (emphasis added); H. Rep. No. 1337, supra, at A44 (emphasis added). n7 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n7 The portions of these Reports explicating the term "gifts" actually address a closely related provision of the Code, @ 162(b), which refers specifically to @ 170. Section 162(b) provides, in pertinent part, that a taxpayer may not deduct as a trade or business expense a "contribution or gift" which would have been deductible under @ 170 were it not for the fact that the taxpayer had already met the maximum amount (measured as a percentage of income) which @ 170(b) permits to be deducted. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - [***22] In ascertaining whether a given payment was made with "the expectation of any quid pro quo," S. Rep. No. 1622, supra, at 196; H. Rep. No. 1337, supra, at A44, the IRS has customarily examined the external features of the transaction in question. This practice has the advantage of obviating [*691] the need for the IRS to conduct imprecise inquiries into the motivations of individual taxpayers. The lower courts have generally embraced this structural analysis. See, e. g., Singer Co. v. United States, 449 F. 2d 413, 422-423 (Ct. Cl. 1971) (applying this approach and collecting cases), cited in United States v. American Bar Endowment, 477 U.S. 105, 117 (1986); see also 2 B. Bittker, supra, at para. 35.1.3 (collecting cases). We likewise focused on external features in United States v. American Bar Endowment, supra, to resolve the taxpayers' claims that they were entitled to partial deductions for premiums paid to a charitable organization for insurance coverage; the taxpayers contended that they had paid unusually high premiums in an effort to make a contribution [***23] along with their purchase of insurance. We upheld the Commissioner's disallowance of the partial deductions because the taxpayers had failed to demonstrate, at a minimum, the existence of comparable insurance policies with prices lower than those of the policy they had each purchased. In so doing, we stressed that "[t]he sine qua non of a charitable contribution is a transfer of money or property without adequate consideration." Id., at 118 (emphasis added in part). n8 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n8 The sole taxpayer in American Bar Endowment who had demonstrated the existence of a lower premium insurance program failed to show that he was PAGE 120 490 U.S. 680, *691; 109 S. Ct. 2136, **2144; LEXSEE 1989 U.S. LEXIS 2773, ***23; 104 L. Ed. 2d 766 aware of this less expensive option at the time he purchased his insurance. 477 U.S., at 118. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - In light of this understanding of @ 170, it is readily apparent that petitioners' payments to the Church do not qualify as "contribution[s] or gift[s]." As the Tax Court found, these payments were part of a quintessential quid pro quo exchange: [***24] in return for their money, petitioners received an identifiable benefit, namely, auditing and training sessions. The Church established [**2145] fixed price schedules for auditing and training sessions in each branch church; it calibrated particular prices to auditing or training sessions of particular lengths and levels of sophistication; it returned a refund if auditing and training services went unperformed; it distributed "account [*692] cards" on which persons who had paid money to the Church could monitor what prepaid services they had not yet claimed; and it categorically barred provision of auditing or training sessions for free. n9 Each of these practices reveals the inherently reciprocal nature of the exchange. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n9 The Tax Court referred to a Church policy directive which stated: "Price cuts are forbidden under any guise. "1. PROCESSING MAY NEVER BE GIVEN AWAY BY AN ORG. Processing is too expensive to deliver. . . . "9. ONLY FULLY CONTRACTED STAFF IS AWARDED FREE SERVICE, AND THIS IS DONE BY INVOICE AND LEGAL NOTE WHICH BECOMES DUE AND PAYABLE IF THE CONTRACT IS BROKEN." 83 T. C., at 577-578, n. 5. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - [***25] Petitioners do not argue that such a structural analysis is inappropriate under @ 170, or that the external features of the auditing and training transactions do not strongly suggest a quid pro quo exchange. Indeed, the petitioners in the consolidated Graham case conceded at trial that they expected to receive specific amounts of auditing and training in return for their payments. 822 F. 2d, at 850. Petitioners argue instead that they are entitled to deductions because a quid pro quo analysis is inappropriate under @ 170 when the benefit a taxpayer receives is purely religious in nature. Along the same lines, petitioners claim that payments made for the right to participate in a religious service should be automatically deductible under @ 170. We cannot accept this statutory argument for several reasons. First, it finds no support in the language of @ 170. Whether or not Congress could, consistent with the Establishment Clause, provide for the automatic deductibility of a payment made to a church that either generates religious benefits or guarantees access to a religious service, that is a choice PAGE 121 490 U.S. 680, *692; 109 S. Ct. 2136, **2145; LEXSEE 1989 U.S. LEXIS 2773, ***25; 104 L. Ed. 2d 766 Congress has thus far declined to make. [***26] Instead, Congress has specified that a payment to an organization operated exclusively for religious (or other eleemosynary) purposes [*693] is deductible only if such a payment is a "contribution or gift." 26 U. S. C. @ 170(c). The Code makes no special preference for payments made in the expectation of gaining religious benefits or access to a religious service. Foley v. Commissioner, 844 F. 2d 94, 98 (CA2 1988) (Newman, J., dissenting), cert. pending, No. 88-102. The House and Senate Reports on @ 170, and the other legislative history of that provision, offer no indication that Congress' failure to enact such a preference was an oversight. Second, petitioners' deductibility proposal would expand the charitable contribution deduction far beyond what Congress has provided. Numerous forms of payments to eligible donees plausibly could be categorized as providing a religious benefit or as securing access to a religious service. For example, some taxpayers might regard their tuition payments to parochial schools as generating a religious benefit or as securing access to a religious service; such payments, [***27] however, have long been held not to be charitable contributions under @ 170. Foley, supra, at 98, citing Winters v. Commissioner, 468 F. 2d 778 (CA2 1972); see id., at 781 (noting Congress' refusal to enact legislation permitting taxpayers to deduct parochial school tuition payments). Taxpayers might make similar claims about payments for church-sponsored counseling sessions or for medical care at church-affiliated hospitals that otherwise might not be deductible. Given that, under the First Amendment, the IRS can reject otherwise valid claims of religious benefit only on the ground that a [**2146] taxpayers' alleged beliefs are not sincerely held, but not on the ground that such beliefs are inherently irreligious, see United States v. Ballard, 322 U.S. 78 (1944), the resulting tax deductions would likely expand the charitable contribution provision far beyond its present size. We are loath to effect this result in the absence of supportive congressional intent. Cf. United States v. Lee, 455 U.S. 252, 259-261 (1982). [***28] [*694] Finally, the deduction petitioners seek might raise problems of entanglement between church and state. If framed as a deduction for those payments generating benefits of a religious nature for the payor, petitioners' proposal would inexorably force the IRS and reviewing courts to differentiate "religious" benefits from "secular" ones. If framed as a deduction for those payments made in connection with a religious service, petitioners' proposal would force the IRS and the judiciary into differentiating "religious" services from "secular" ones. We need pass no judgment now on the constitutionality of such hypothetical inquiries, but we do note that "pervasive monitoring" for "the subtle or overt presence of religious matter" is a central danger against which we have held the Establishment Clause guards. Aguilar v. Felton, 473 U.S. 402, 413 (1985); see also Widmar v. Vincent, 454 U.S. 263, 272, n. 11 (1981) ("[T]he University would risk greater 'entanglement' by attempting to enforce its exclusion of 'religious worship' and 'religious speech'" than by opening its forum to religious as well as nonreligious [***29] speakers); cf. Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 716 (1981). Accordingly, we conclude that petitioners' payments to the Church for auditing and training sessions are not "contribution[s] or gift[s]" within the meaning of that statutory expression. n10 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - PAGE 122 490 U.S. 680, *694; 109 S. Ct. 2136, **2146; LEXSEE 1989 U.S. LEXIS 2773, ***29; 104 L. Ed. 2d 766 n10 Petitioners have not argued here that their payments qualify as "dual payments" under IRS regulations and that they are therefore entitled to a partial deduction to the extent their payments exceeded the value of the benefit received. See American Bar Endowment, 477 U.S., at 117 (citing Rev. Rul. 67-246, 1967-2 Cum. Bull. 104). We thus have no occasion to decide this issue. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - III We turn now to petitioners' constitutional claims based on the Establishment Clause and the Free Exercise Clause of the First Amendment. [*695] A Petitioners argue that denying their requested deduction violates the Establishment Clause in two [***30] respects. First, @ 170 is said to create an unconstitutional denominational preference by according disproportionately harsh tax status to those religions that raise funds by imposing fixed costs for participation in certain religious practices. Second, @ 170 allegedly threatens governmental entanglement with religion because it requires the IRS to entangle itself with religion by engaging in "supervision of religious beliefs and practices" and "valuation of religious services." Brief for Petitioners 44. Our decision in Larson v. Valente, 456 U.S. 228 (1982), supplies the analytic framework for evaluating petitioners' contentions. Larson teaches that, when it is claimed that a denominational preference exists, the initial inquiry is whether the law facially differentiates among religions. If no such facial preference exists, we proceed to apply the customary three-pronged Establishment Clause inquiry derived from Lemon v. Kurtzman, 403 U.S. 602 (1971). n11 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n11 "'First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, Board of Education v. Allen, 392 U.S. 236, 243 (1968); finally, the statute must not foster "an excessive governmental entanglement with religion." Walz [v. Tax Comm'n, 397 U.S. 664, 674 (1970)].'" Lemon v. Kurtzman, 403 U.S., at 612-613, quoted in Larson v. Valente, 456 U.S., at 252. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - [***31] [**2147] Thus analyzed, @ 170 easily passes constitutional muster. The line which @ 170 draws between deductible and nondeductible payments to statutorily qualified organizations does not differentiate among sects. Unlike the Minnesota statute at issue in Larson, which facially exempted from state registration and reporting requirements only those religious organizations that derived more than half their funds from members, @ 170 makes no "explicit and deliberate distinctions between different religious organizations," 456 [*696] U.S., at 246-247, n. 23, applying instead to all religious entities. Section 170 also comports with the Lemon test. First, there is no allegation that @ 170 was born of animus to religion in general or Scientology in PAGE 123 490 U.S. 680, *696; 109 S. Ct. 2136, **2147; LEXSEE 1989 U.S. LEXIS 2773, ***31; 104 L. Ed. 2d 766 particular. Cf. Larson, supra, at 254-255 (history of Minnesota restriction reveals hostility to "Moonies" and intent to "get at . . . people that are running around airports"). The provision is neutral both in design and purpose. Second, the primary effect of @ 170 -- encouraging gifts to charitable entities, including but not limited to religious organizations -- is neither [***32] to advance nor inhibit religion. It is not alleged here that @ 170 involves "[d]irect government action endorsing religion or a particular religious practice." Wallace v. Jaffree, 472 U.S. 38, 69 (1985) (O'Connor, J., concurring in judgment). It may be that a consequence of the quid pro quo orientation of the "contribution or gift" requirement is to impose a disparate burden on those charitable and religious groups that rely on sales of commodities or services as a means of fundraising, relative to those groups that raise funds primarily by soliciting unilateral donations. But a statute primarily having a secular effect does not violate the Establishment Clause merely because it "happens to coincide or harmonize with the tenets of some or all religions." McGowan v. Maryland, 366 U.S. 420, 442 (1961); see also Bob Jones University v. United States, 461 U.S. 574, 604, n. 30 (1983). Third, @ 170 threatens no excessive entanglement between church and state. To be sure, ascertaining whether a payment to a religious institution is part of a quid pro quo transaction [***33] may require the IRS to ascertain from the institution the prices of its services and commodities, the regularity with which payments for such services and commodities are waived, and other pertinent information about the transaction. But routine regulatory interaction which involves no inquiries into religious doctrine, see Presbyterian Church in [*697] U. S. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 451 (1969), no delegation of state power to a religious body, see Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982), and no "detailed monitoring and close administrative contact" between secular and religious bodies, see Aguilar, 473 U.S., at 414, does not of itself violate the nonentanglement command. See Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290, 305-306 (1985) (stating that nonentanglement principle "does not exempt religious organizations from such secular governmental activity as fire inspections and building and zoning regulations" or the recordkeeping requirements of the Fair Labor Standards [***34] Act) (citation omitted). As we have observed, supra, at 694, it is petitioners' interpretation of @ 170, requiring the Government to distinguish between "secular" and "religious" [**2148] benefits or services, which may be "fraught with the sort of entanglement that the Constitution forbids." Lemon, supra, at 620. Nor does the application of @ 170 to religious practices require the Government to place a monetary value on particular religious benefits. As an initial matter, petitioners' claim here raises no need for valuation, for they have alleged only that their payments are fully exempt from a quid pro quo analysis -- not that some portion of these payments is deductible because it exceeds the value of the acquired service. Cf. American Bar Endowment, 477 U.S., at 117 (describing "dual character" payments) (citing, inter alia, Rev. Rul. 68-432, 1968-2 Cum. Bull. 104, 105); see n. 10, supra. In any event, the need to ascertain what portion of a payment was a purchase and what portion was a contribution does not ineluctably create entanglement problems by forcing the [***35] Government to place a monetary value on a religious benefit. In cases where the economic value of a good or service is elusive -- where, for example, no comparable good or service is sold in the marketplace -- the IRS has PAGE 124 490 U.S. 680, *697; 109 S. Ct. 2136, **2148; LEXSEE 1989 U.S. LEXIS 2773, ***35; 104 L. Ed. 2d 766 eschewed benefit-focused valuation. Instead, it has often employed as an alternative [*698] method of valuation an inquiry into the cost (if any) to the donee of providing the good or service. See, e. g., Oppewal v. Commissioner, 468 F. 2d 1000, 1002 (CA1 1972) (cost of providing a "religiously-oriented" education); Winters v. Commissioner, 468 F. 2d 778 (CA2 1972) (same); DeJong v. Commissioner, 309 F. 2d 373 (CA9 1962) (same). This valuation method, while requiring qualified religious institutions to disclose relevant information about church costs to the IRS, involves administrative inquiries that, as a general matter, "bear no resemblance to the kind of government surveillance the Court has previously held to pose an intolerable risk of government entanglement with religion." Tony and Susan Alamo Foundation, supra, at 305; [***36] cf. Lemon, 403 U.S., at 621-622 (school-aid statute authorizing government inspection of parochial school records created impermissible "intimate and continuing relationship between church and state" because it required State "to determine which expenditures are religious and which are secular"). n12 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n12 We do not rule out the possibility that, under the circumstances of a particular case, an IRS inquiry under @ 170 into a religious institution's expenses might raise entanglement problems. Because petitioners' claim necessitates no valuation inquiry, however, we need only decide here that such inquiries into cost under @ 170 generally pose no constitutional problem. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - B Petitioners also contend that disallowance of their @ 170 deductions violates their right to the free exercise of religion by "plac[ing] a heavy burden on the central practice of Scientology." Brief for Petitioners 47. The precise nature of this claimed burden is unclear, but it appears to operate in two ways. First, [***37] the deduction disallowance is said to deter adherents from engaging in auditing and training sessions. Second, the deduction disallowance is said to interfere with observance of the doctrine of exchange, which mandates equality of an adherent's "outflow" and "inflow." [*699] The free exercise inquiry asks whether government has placed a substantial burden on the observation of a central religious belief or practice and, if so, whether a compelling governmental interest justifies the burden. Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U.S. 136, 141-142 (1987); Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S., at 717-719; Wisconsin v. Yoder, 406 U.S. 205, 220-221 (1972). It is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants' interpretations of those creeds. Thomas, supra, at 716. We do, however, have doubts whether the alleged burden imposed by the deduction disallowance on the Scientologists' practices is a substantial one. [***38] Neither the payment nor the receipt of taxes is forbidden by the Scientology faith generally, and Scientology does not proscribe the payment of taxes in connection with auditing or training sessions specifically. Cf. United States v. Lee, 455 U.S., at 257. Any burden imposed on auditing or training therefore derives solely from the fact that, as a result of the deduction denial, adherents have less money available to gain access to such PAGE 125 490 U.S. 680, *699; 109 S. Ct. 2136, **2148; LEXSEE 1989 U.S. LEXIS 2773, ***38; 104 L. Ed. 2d 766 sessions. This burden is no different from that imposed by any public tax or fee; indeed, the burden imposed by the denial of the "contribution or gift" deduction would seem to pale by comparison to the overall federal income tax burden on an adherent. Likewise, it is unclear why the doctrine of exchange would be violated by a deduction disallowance so long as an adherent is free to equalize "outflow" with "inflow" by paying for as many auditing and training sessions as he wishes. See 822 F. 2d, at 850-853 (questioning substantiality of burden on Scientologists); 819 F. 2d, at 1222-1225 (same). In any event, we need not decide whether the burden [***39] of disallowing the @ 170 deduction is a substantial one, for our decision in Lee establishes that even a substantial burden would be justified by the "broad public interest in maintaining a sound tax system," free of "myriad exceptions flowing [*700] from a wide variety of religious beliefs." 455 U.S., at 260. In Lee, we rejected an Amish taxpayer's claim that the Free Exercise Clause commanded his exemption from Social Security tax obligations, noting that "[t]he tax system could not function if denominations were allowed to challenge the tax system" on the ground that it operated "in a manner that violates their religious belief." Ibid. That these cases involve federal income taxes, not the Social Security system, is of no consequence. Ibid. The fact that Congress has already crafted some deductions and exemptions in the Code also is of no consequence, for the guiding principle is that a tax "must be uniformly applicable to all, except as Congress provides explicitly otherwise." Id., at 261 (emphasis added). Indeed, in one respect, the Government's interest in avoiding an exemption is more powerful [***40] here than in Lee; the claimed exemption in Lee stemmed from a specific doctrinal obligation not to pay taxes, whereas petitioners' claimed exemption stems from the contention that an incrementally larger tax burden interferes with their religious activities. This argument knows no limitation. We accordingly hold that petitioners' free exercise challenge is without merit. IV We turn, finally, to petitioners' assertion that disallowing their claimed deduction is at odds with the IRS' longstanding practice of permitting taxpayers to deduct payments made to other religious institutions in connection with certain religious practices. Through the appellate stages of this litigation, this claim was framed essentially as one of selective prosecution. The Courts of Appeals for the First and Ninth Circuits summarily rejected this claim, finding no evidence of the intentional governmental discrimination necessary to support such a claim. 822 F. 2d, at 853 (no showing of "the type of hostility to a target of law enforcement that would support a claim of selective enforcement"); 819 F. 2d, at 1223 (no "discriminatory intent" proved). [***41] [*701] In their arguments to this Court, petitioners have shifted emphasis. They now make two closely related claims. First, the IRS has accorded payments for auditing and training disparately harsh treatment compared to payments to other churches and synagogues for their religious services: Recognition of a comparable deduction for auditing and training payments is necessary to cure this administrative inconsistency. Second, Congress, in modifying @ 170 [**2150] over the years, has impliedly acquiesced in the deductibility of payments to these other faiths; because payments for auditing and training are indistinguishable from these other payments, they fall within the principle acquiesced in by Congress that payments for religious services PAGE 126 490 U.S. 680, *701; 109 S. Ct. 2136, **2150; LEXSEE 1989 U.S. LEXIS 2773, ***41; 104 L. Ed. 2d 766 are deductible under @ 170. Although the Commissioner demurred at oral argument as to whether the IRS, in fact, permits taxpayers to deduct payments made to purchase services from other churches and synagogues, Tr. of Oral Arg. 30-31, the Commissioner's periodic revenue rulings have stated the IRS' position rather clearly. A 1971 ruling, still in effect, states: "Pew rents, building fund assessments, and periodic dues paid to a church [***42] . . . are all methods of making contributions to the church, and such payments are deductible as charitable contributions within the limitations set out in section 170 of the Code." Rev. Rul. 70-47, 1970-1 Cum. Bull. 49 (superseding A.R.M. 2, Cum. Bull. 150 (1919)). We also assume for purposes of argument that the IRS also allows taxpayers to deduct "specified payments for attendance at High Holy Day services, for tithes, for torah readings and for memorial plaques." Foley v. Commissioner, 844 F. 2d, at 94, 96. The development of the present litigation, however, makes it impossible for us to resolve petitioners' claim that they have received unjustifiably harsh treatment compared to adherents of other religions. The relevant inquiry in determining whether a payment is a "contribution or gift" under @ 170 is, as we have noted, not whether the payment secures religious [*702] benefits or access to religious services, but whether the transaction in which the payment is involved is structured as a quid pro quo exchange. To make such a determination in this case, the Tax Court heard testimony and received [***43] documentary proof as to the terms and structure of the auditing and training transactions; from this evidence it made factual findings upon which it based its conclusion of nondeductibility, a conclusion we have held consonant with @ 170 and with the First Amendment. Perhaps because the theory of administrative inconsistency emerged only on appeal, petitioners did not endeavor at trial to adduce from the IRS or other sources any specific evidence about other religious faiths' transactions. The IRS' revenue rulings, which merely state the agency's conclusions as to deductibility and which have apparently never been reviewed by the Tax Court or any other judicial body, also provide no specific facts about the nature of these other faiths' transactions. In the absence of such facts, we simply have no way (other than the wholly illegitimate one of relying on our personal experiences and observations) to appraise accurately whether the IRS' revenue rulings have correctly applied a quid pro quo analysis with respect to any or all of the religious practices in question. We do not know, for example, whether payments for other faiths' services are truly obligatory or whether any or [***44] all of these services are generally provided whether or not the encouraged "mandatory" payment is made. The IRS' application of the "contribution or gift" standard may be right or wrong with respect to these other faiths, or it may be right with respect to some religious practices and wrong with respect to others. It may also be that some of these payments are appropriately classified as partially deductible "dual payments." With respect to those religions where the structure of transactions involving religious services is established not centrally but by individual congregations, the proper point of reference for a quid pro quo analysis [*703] might be the individual congregation, not the religion as a whole. Only upon a proper factual record could we make these determinations. Absent such a record, we must reject petitioners' administrative consistency PAGE 127 490 U.S. 680, *703; 109 S. Ct. 2136, **2150; LEXSEE 1989 U.S. LEXIS 2773, ***44; 104 L. Ed. 2d 766 argument. n13 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n13 Petitioners argue that an unofficial "question and answer guidance package" recently issued by an IRS official requires deductibility of payments for auditing and training sessions. Referring to the revenue ruling on pew rents, the brochure states that "fixed payments for similar religious services" are fully deductible. See IRS Official Explains New Examination-Education Program on Charitable Contributions to Tax-Exempt Organizations, BNA Daily Report for Executives, Special Report No. 186, J-1, J-3 (Sept. 26, 1988) (cited in Reply Brief for Petitioners 6). In ascertaining the IRS' justifications for its administrative practice, however, our practice is to rely on the agency's official rulings, not on the unofficial interpretations of particular IRS officials. In any event, the brochure on which petitioners rely was not included in the record before the Tax Court or the Courts of Appeals in these cases, and, in fact, was issued months after we granted certiorari. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - [***45] [**2151] Petitioners' congressional acquiescence claim fails for similar reasons. Even if one assumes that Congress has acquiesced in the IRS' ruling with respect to "[p]ew rents, building fund assessments, and periodic dues," Rev. Rul. 70-47, 1970-1 Cum. Bull. 49, the fact is that the IRS' 1971 ruling articulates no broad principle of deductibility, but instead merely identifies as deductible three discrete types of payments. Having before us no information about the nature or structure of these three payments, we have no way of discerning any possible unifying principle, let alone whether such a principle would embrace payments for auditing and training sessions. V For the reasons stated herein, the judgments of the Courts of Appeals are hereby Affirmed. DISSENTBY: O'CONNOR DISSENT: [*704] JUSTICE O'CONNOR, with whom JUSTICE SCALIA joins, dissenting. The Court today acquiesces in the decision of the Internal Revenue Service (IRS) to manufacture a singular exception to its 70-year practice of allowing fixed payments indistinguishable from those made by petitioners to be deducted as charitable contributions. Because the IRS cannot constitutionally be allowed [***46] to select which religions will receive the benefit of its past rulings, I respectfully dissent. The cases before the Court have an air of artificiality about them that is due to the IRS' dual litigation strategy against the Church of Scientology (Church). As the Court notes, ante, at 686-687, n. 4, the IRS has successfully argued that the mother Church of Scientology was not a tax-exempt organization PAGE 128 490 U.S. 680, *704; 109 S. Ct. 2136, **2151; LEXSEE 1989 U.S. LEXIS 2773, ***46; 104 L. Ed. 2d 766 from 1970 to 1972 because it had diverted profits to the founder of Scientology and others, conspired to impede collection of its taxes, and conducted almost all of its activities for a commercial purpose. See Church of Scientology of California v. Commissioner, 83 T. C. 381 (1984), aff'd, 823 F. 2d 1310 (CA9 1987), cert. denied, 486 U.S. 1015 (1988). In the cases before the Court today, however, the IRS decided to contest the payments made to Scientology under 26 U. S. C. @ 170 rather than challenge the tax-exempt status of the various branches of the Church to which the payments were made. According to the Deputy Solicitor General, the IRS challenged [***47] the payments themselves in order to expedite matters. Tr. of Oral Arg. 26-29. See also Neher v. Commissioner, 852 F. 2d 848, 850-851 (CA6 1988). As part of its litigation strategy in these cases, the IRS agreed to several stipulations which, in my view, necessarily determine the proper approach to the questions presented by petitioners. The stipulations, relegated to a single sentence by the Court, ante, at 686, established that Scientology was at all relevant times a religion; that each Scientology branch to which payments were made was at all relevant times a "church" within the meaning of @ 170(b)(1)(A)(i); and that [*705] Scientology was at all times a "corporation" within the meaning of @ 170(c)(2) and exempt from general income taxation under 26 U. S. C. @ 501(a). See App. 38, paras. 52-53; [**2152] 83 T. C. 575, 576 (1984), aff'd, 822 F. 2d 844 (CA9 1987). As the Solicitor General recognizes, it follows from these stipulations that Scientology operates for "'charitable purposes'" and puts the "public interest above the private interest." Brief for [***48] Respondent 30. See also Neher, supra, at 855. Moreover, the stipulations establish that the payments made by petitioners are fixed donations made by individuals to a tax-exempt religious organization in order to participate in religious services, and are not based on "market prices set to reap the profits of a commercial moneymaking venture." Staples v. Commissioner, 821 F. 2d 1324, 1328 (CA8 1987), cert. pending, No. 87-1382. The Tax Court, however, appears to have ignored the stipulations. It concluded, perhaps relying on its previous opinion in Church of Scientology, that "Scientology operates in a commercial manner in providing [auditing and training]. In fact, one of its articulated goals is to make money." 83 T. C., at 578. The Solicitor General has duplicated the error here, referring on numerous occasions to the commercial nature of Scientology in an attempt to negate the effect of the stipulations. See Brief for Respondent 13-14, 23, 25, 44. It must be emphasized that the IRS' position here is not based upon the contention that a portion of the knowledge received from [***49] auditing or training is of secular, commercial, nonreligious value. Thus, the denial of a deduction in these cases bears no resemblance to the denial of a deduction for religious-school tuition up to the market value of the secularly useful education received. See Oppewal v. Commissioner, 468 F. 2d 1000 (CA1 1972); Winters v. Commissioner, 468 F. 2d 778 (CA2 1972); DeJong v. Commissioner, 309 F. 2d 373 (CA9 1962). Here the IRS denies deductibility solely on the basis that the exchange is a quid pro quo, even though the quid is exclusively of spiritual or religious worth. Respondent [*706] cites no instances in which this has been done before, and there are good reasons why. When a taxpayer claims as a charitable deduction part of a fixed amount given to a charitable organization in exchange for benefits that have a commercial value, the allowable portion of that claim is computed by subtracting from the PAGE 129 490 U.S. 680, *706; 109 S. Ct. 2136, **2152; LEXSEE 1989 U.S. LEXIS 2773, ***49; 104 L. Ed. 2d 766 total amount paid the value of the physical benefit received. If at a charity sale one purchases for $ 1,000 a painting whose market value is demonstrably [***50] no more than $ 50, there has been a contribution of $ 950. The same would be true if one purchases a $ 1,000 seat at a charitable dinner where the food is worth $ 50. An identical calculation can be made where the quid received is not a painting or a meal, but an intangible such as entertainment, so long as that intangible has some market value established in a noncontributory context. Hence, one who purchases a ticket to a concert, at the going rate for concerts by the particular performers, makes a charitable contribution of zero even if it is announced in advance that all proceeds from the ticket sales will go to charity. The performers may have made a charitable contribution, but the audience has paid the going rate for a show. It becomes impossible, however, to compute the "contribution" portion of a payment to a charity where what is received in return is not merely an intangible, but an intangible (or, for that matter a tangible) that is not bought and sold except in donative contexts so that the only "market" price against which it can be evaluated is a market price that always includes donations. Suppose, for example, that the charitable organization that traditionally [***51] solicits donations on Veterans Day, in exchange for which it gives the donor an imitation poppy bearing its name, were to establish a flat rule that no one gets a poppy without a donation of at least $ 10. One would have to say that the "market" rate for such poppies was $ 10, but it would assuredly not be true that everyone who "bought" a poppy for $ 10 made no contribution. Similarly, if one buys a $ 100 seat at a prayer breakfast [*707] -- receiving as the quid pro quo food for both body and soul -- it would [**2153] make no sense to say that no charitable contribution whatever has occurred simply because the "going rate" for all prayer breakfasts (with equivalent bodily food) is $ 100. The latter may well be true, but that "going rate" includes a contribution. Confronted with this difficulty, and with the constitutional necessity of not making irrational distinctions among taxpayers, and with the even higher standard of equality of treatment among religions that the First Amendment imposes, the Government has only two practicable options with regard to distinctively religious quids pro quo: to disregard them all, or to tax them all. Over the years it has chosen the [***52] former course. Congress enacted the first charitable contribution exception to income taxation in 1917. War Revenue Act of 1917, ch. 63, @ 1201(2), 40 Stat. 330. A mere two years later, in A.R.M. 2, 1 Cum. Bull. 150 (1919), the IRS gave its first blessing to the deductions of fixed payments to religious organizations as charitable contributions: "[T]he distinction of pew rents, assessments, church dues, and the like from basket collections is hardly warranted by the act. The act reads 'contributions' and 'gifts.' It is felt that all of these come within the two terms. "In substance it is believed that these are simply methods of contributing although in form they may vary. Is a basket collection given involuntarily to be distinguished from an envelope system, the latter being regarded as 'dues'? From a technical angle, the pew rents may be differentiated, but in practice the so-called 'personal accommodation' they may afford is conjectural. It is PAGE 130 490 U.S. 680, *707; 109 S. Ct. 2136, **2153; LEXSEE 1989 U.S. LEXIS 2773, ***52; 104 L. Ed. 2d 766 believed that the real intent is to contribute and not to hire a seat or pew for personal accommodation. In fact, basket contributors sometimes receive the same accommodation informally." [***53] [*708] The IRS reaffirmed its position in 1970, ruling that "[p]ew rents, building fund assessments and periodic dues paid to a church . . . are all methods of making contributions to the church and such payments are deductible as charitable contributions." Rev. Rul. 70-47, 1970-1 Cum. Bull. 49. Similarly, notwithstanding the "form" of Mass stipends as fixed payments for specific religious services, see infra, at 709, the IRS has allowed charitable deductions of such payments. See Rev. Rul. 78-366, 1978-2 Cum. Bull. 241. These rulings, which are "official interpretation[s] of [the tax laws] by the [IRS]," Rev. Proc. 78-24, 1978-2 Cum. Bull. 503, 504, flatly contradict the Solicitor General's claim that there "is no administrative practice recognizing that payments made in exchange for religious benefits are tax deductible." Brief for Respondent 16. Indeed, an Assistant Commissioner of the IRS recently explained in a "question and answer guidance package" to tax-exempt organizations that "[i]n contrast to tuition payments, religious observances generally [***54] are not regarded as yielding private benefits to the donor, who is viewed as receiving only incidental benefits when attending the observances. The primary beneficiaries are viewed as being the general public and members of the faith. Thus, payments for saying masses, pew rents, tithes, and other payments involving fixed donations for similar religious services, are fully deductible contributions." IRS Official Explains New Examination-Education Program on Charitable Contributions to Tax-Exempt Organizations, BNA Daily Report for Executives, Special Report No. 186, J-1, J-3 (Sept. 26, 1988). Although this guidance package may not be as authoritative as IRS rulings, see ante, at 703, n. 13, in the absence of any contrary indications it does reflect the continuing adherence of the IRS to its practice of allowing deductions for fixed payments for religious services. There can be no doubt that at least some of the fixed payments which the IRS has treated as charitable deductions, or which the Court assumes the IRS would allow taxpayers to [*709] deduct, ante, at 690-691, are as "inherently reciprocal," ante, at 692, as [**2154] the payments for auditing at issue here. In exchange [***55] for their payment of pew rents, Christians receive particular seats during worship services. See Encyclopedic Dictionary of Religion 2760 (1979). Similarly, in some synagogues attendance at the worship services for Jewish High Holy Days is often predicated upon the purchase of a general admission ticket or a reserved seat ticket. See J. Feldman, H. Fruhauf, & M. Schoen, Temple Management Manual, ch. 4, p. 10 (1984). Religious honors such as publicly reading from Scripture are purchased or auctioned periodically in some synagogues of Jews from Morocco and Syria. See H. Dobrinsky, A Treasury of Sephardic Laws and Customs 164, 175-177 (1986). Mormons must tithe their income as a necessary but not sufficient condition to obtaining a "temple recommend," i. e., the right to be admitted into the temple. See The Book of Mormon, 3 Nephi 24:7-12 (1921); Reorganized Church of Jesus Christ of Latter-day Saints, Book of Doctrine and Covenants @ 106:1b (1978); Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 330, n. 4 (1987). A Mass stipend -- a fixed payment given to a Catholic priest, [***56] in consideration of which he is obliged to apply the fruits of the Mass for the intention of the donor -- has similar overtones of exchange. According to some Catholic theologians, the nature of the pact between a PAGE 131 490 U.S. 680, *709; 109 S. Ct. 2136, **2154; LEXSEE 1989 U.S. LEXIS 2773, ***56; 104 L. Ed. 2d 766 priest and a donor who pays a Mass stipend is "a bilateral contract known as do ut facias. One person agrees to give while the other party agrees to do something in return." 13 New Catholic Encyclopedia, Mass Stipend, p. 715 (1967). A finer example of a quid pro quo exchange would be hard to formulate. This is not a situation where the IRS has explicitly and affirmatively reevaluated its longstanding interpretation of @ 170 and decided to analyze all fixed religious contributions under a quid pro quo standard. There is no indication whatever that the IRS has abandoned its 70-year practice with respect [*710] to payments made by those other than Scientologists. In 1978, when it ruled that payments for auditing and training were not charitable contributions under @ 170, the IRS did not cite -- much less try to reconcile -- its previous rulings concerning the deductibility of other forms of fixed payments for religious services or practices. See Rev. Rul. 78-189, 1978-1 Cum. Bull. 68 [***57] (equating payments for auditing with tuition paid to religious schools). Nevertheless, respondent now attempts to reconcile his previous rulings with his decision in these cases by relying on a distinction between direct and incidental benefits in exchange for payments made to a charitable organization. This distinction, adumbrated as early as the IRS' 1919 ruling, recognizes that even a deductible charitable contribution may generate certain benefits for the donor. As long as the benefits remain "incidental" and do not indicate that the payment was actually made for the "personal accommodation" of the donor, the payment will be deductible. It is respondent's view that the payments made by petitioners should not be deductible under @ 170 because the "unusual facts in these cases . . . demonstrate that the payments were made primarily for 'personal accommodation.'" Brief for Respondent 41. Specifically, the Solicitor General asserts that "the rigid connection between the provision of auditing and training services and payment of the fixed price" indicates a quid pro quo relationship and "reflect[s] the value that petitioners expected to receive for their money." Id., at [***58] 16. There is no discernible reason why there is a more rigid connection between payment and services in the religious practices of Scientology than in the religious practices of the faiths described above. Neither has respondent explained why the benefit received by a Christian who obtains the pew of his or her choice by paying a rental fee, a Jew who gains entrance to High Holy Day services by purchasing a ticket, a Mormon who makes the fixed payment necessary for a temple recommend, or a Catholic [**2155] who pays a Mass stipend, [*711] is incidental to the real benefit conferred on the "general public and members of the faith," BNA Daily Report, at J-3, while the benefit received by a Scientologist from auditing is a personal accommodation. If the perceived difference lies in the fact that Christians and Jews worship in congregations, whereas Scientologists, in a manner reminiscent of Eastern religions, see App. 78-83 (testimony of Dr. Thomas Love), gain awareness of the "immortal spiritual being" within them in one-to-one sessions with auditors, ante, at 684-685, such a distinction would raise serious Establishment Clause problems. See Wallace v. Jaffree, 472 U.S. 38, 69-70 (1985) [***59] (O'Connor, J., concurring in judgment); Lynch v. Donnelly, 465 U.S. 668, 687-689 (1984) (concurring opinion). The distinction is no more legitimate if it is based on the fact that congregational worship services "would be said anyway," Brief for Respondent 43, without the payment of a pew rental or stipend or tithe by a particular adherent. The relevant comparison between Scientology and other religions PAGE 132 490 U.S. 680, *711; 109 S. Ct. 2136, **2155; LEXSEE 1989 U.S. LEXIS 2773, ***59; 104 L. Ed. 2d 766 must be between the Scientologist undergoing auditing or training on one hand and the congregation on the other. For some religions the central importance of the congregation achieves legal dimensions. In Orthodox Judaism, for example, certain worship services cannot be performed and Scripture cannot be read publicly without the presence of at least 10 men. 12 Encyclopaedia Judaica, Minyan, p. 68 (1972). If payments for participation occurred in such a setting, would the benefit to the 10th man be only incidental while for the personal accommodation of the 11th? In the same vein, will the deductibility of a Mass stipend turn on whether there are other congregants to hear the Mass? And conversely, does the fact that the payment of a tithe by [***60] a Mormon is an absolute prerequisite to admission to the temple make that payment for admission a personal accommodation regardless of the size of the congregation? Given the IRS' stance in these cases, it is an understatement to say that with respect to fixed payments for religious [*712] services "the line between the taxable and the immune has been drawn by an unsteady hand." United States v. Allegheny County, 322 U.S. 174, 176 (1944) (Jackson, J.). This is not a situation in which a governmental regulation "happens to coincide or harmonize with the tenets of some or all religions," McGowan v. Maryland, 366 U.S. 420, 442 (1961), but does not violate the Establishment Clause because it is founded on a neutral, secular basis. See Bob Jones University v. United States, 461 U.S. 574, 604, n. 30 (1983). Rather, it involves the differential application of a standard based on constitutionally impermissible differences drawn by the Government among religions. As such, it is best characterized as a case of the Government "put[ting] an imprimatur on [all but] one religion." [***61] Gillette v. United States, 401 U.S. 437, 450 (1971). That the Government may not do. The Court attempts to downplay the constitutional difficulty created by the IRS' different treatment of other fixed payments for religious services by accepting the Solicitor General's invitation to let the IRS make case-specific quid pro quo determinations. See ante, at 702 ("The IRS' application of the 'contribution or gift' standard may be right or wrong with respect to these other faiths, or it may be right with respect to some religious practices and wrong with respect to others"). See also Brief for Respondent 41-42. As a practical matter, I do not think that this unprincipled approach will prove helpful. The Solicitor General was confident enough in his brief to argue that, "even without making a detailed factual inquiry," Mormon tithing does not involve a quid pro quo arrangement. Id., at 43-44. At oral argument, however, the Deputy Solicitor [**2156] General conceded that if it was mandatory, tithing would be distinguishable from the "ordinary case of church dues." Tr. of Oral Arg. 36-37. If the approach suggested by the Solicitor General [***62] is so malleable and indefinite, it is not a panacea and cannot be trusted to secure First Amendment rights against arbitrary incursions by the Government. [*713] On a more fundamental level, the Court cannot abjure its responsibility to address serious constitutional problems by converting a violation of the Establishment Clause into an "administrative consistency argument," ante, at 703, with an inadequate record. It has chosen to ignore both longstanding, clearly articulated IRS practice, and the failure of respondent to offer any cogent, neutral explanation for the IRS' refusal to apply this practice to the Church of Scientology. Instead, the Court has pretended that whatever errors in application the IRS has committed are hidden from its gaze and will, in any event, be rectified in due time. PAGE 133 490 U.S. 680, *713; 109 S. Ct. 2136, **2156; LEXSEE 1989 U.S. LEXIS 2773, ***62; 104 L. Ed. 2d 766 In my view, the IRS has misapplied its longstanding practice of allowing charitable contributions under @ 170 in a way that violates the Establishment Clause. It has unconstitutionally refused to allow payments for the religious service of auditing to be deducted as charitable contributions in the same way it has allowed fixed payments to other religions to be deducted. Just as [***63] the Minnesota statute at issue in Larson v. Valente, 456 U.S. 228 (1982), discriminated against the Unification Church, the IRS' application of the quid pro quo standard here -- and only here -- discriminates against the Church of Scientology. I would reverse the decisions below.