Court Document: Scientology Claims Religious Right to Kill Followers

Forward by Fredric Rice:

You'll notice that the Scientology cult repeatedly tries to demand that it has the religious right -- under the United States Constitution and under Florida's Religious Freedom Restoration Act -- to kill its followers without the State punishing them. Killing its followers is a religiously-protected right in Scientology.

Does the cult's followers know that?

The Scientology cult demands that being brought up on criminal charges is some how 'persecution.' And they continue to try to demand that they're a religion in the first place -- which is demonstrably false.

Additionally the cult wants to demand that being punished for killing Lisa McPherson some how adversely impacts 'the free exercise rights of the Church and its members...' That means they fully intend to carry on with the quack medicine and practicing of medicine without a license; something which has resulted in a lot of deaths so far.

But what's also very interesting -- and amusing -- is the fact that the bad guys accurately cover the lost revenues that prosecution for their killings cause due to the pre-innoculation of other victims that such media coverage does. Sounds rather like the tobacco industry, huh?

You'll also note that the Scientology cult tries to enact the RFRA while claiming that the State has no compelling interest in bringing felony charges against the cult in this homicide. Keeping the cult from killing other victims wouldn't be a "compelling interest," it would seem.

What's also interesting is that the crooks admit in this bizarre court submission is that they're still using the quack medicine device they call an "e-meter" -- which is nothing but a wheatstone bridge. The crooks were slapped down for this in decades past and yet here they are again engaged in the same quack medicine claims -- and admitting it in a court document.

And note that there's not a single comment about the fact that Lisa was going to leave the cult and that she repeatedly tried to escape from her captors, screaming and fighting with them, and, according to the crook's own records, repeatedly told her captors that they were going to kill her. There's not a single word about her cry for help by staging an accident and asking police and ambulance workers to help her and listen to her.

It's a damn shame that the crooks that came up with this "motion to dismiss" can't be held criminally liable for the uncountable lies it contains. One may lie to the court in such documents as much as one wants in America.

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IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, FLORIDA

STATE OF FLORIDA, Case No. CRC 98-20377 CFANO-S

vs. MOTION TO DISMISS THE CHURCH OF SCIENTOLOGY FLAG INFORMATION BASED UPON SERVICE ORGANIZATION "RFRA" AND THE FIRST SPNNO. 01980179 AMENDMENT

____________________________/ ("RFRA BRIEF')

MOTION TO DISMISS THE INFORMATION BASED UPON "RFRA" AND THE FIRST AMENDMENT, and MEMORANDUM OF LAW

The Church of Scientology Flag Service Organization, Inc. ("The Church" or "FSO"), respectfully moves this Honorable Court to enter an order dismissing Counts One and Two of the Information and as good grounds therefore would show:

INTRODUCTION AND SUMMARY OF ARGUMENT

The criminal charges brought against the Church of Scientology Flag Service Organization ("The Church" or "FSO") are virtually unprecedented in the history of the United States. In no reported case since the founding of the Republic was a church, as opposed to its individual representatives, convicted of a crime. Indeed, with one minor and ill-chosen exception, in no reported case was a church even charged with a criminal offense.1

No one, of course, would claim that this dramatic precedent (or, more precisely, lack of precedent) merely reflects that church leaders, ministers, priests, rabbis, or other ecclesiastical officials have never strayed from the paths of righteousness and lawful conduct.

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1 In the single exception, People v. Murphy, 98 Misc.2d 235, 413 N.Y.S.2d 540 (Queens Cty. 1977), the court dismissed the indictment under the First Amendment.

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Rather, it demonstrates a wise and careful historical understanding and practice, compelled by constitutional limitation, that the State's interest in enforcing its criminal laws is sufficiently protected by bringing charges against the individuals directly responsible for the acts involved, and that religious liberty compels that the State not become entangled in charging and punishing churches (and ultimately their parishioners) for such acts.

Indeed, this historical and unbroken understanding and practice has recently been followed even by the Pinellas County State Attorney. In State of Florida v. Henry Lyons, CRC 98-03449 CFANO-S, the State Attorney prosecuted Reverend Henry Lyons, the former President of the National Baptist Convention, for a variety of serious crimes, but did not charge the Baptist Convention, despite the fact that Reverend Lyons was the Convention's most senior official and that the Convention explicitly ratified and affirmed the acts of Reverend Lyons. Yet the very same State Attorney's office has chosen to indict the Church alone, to the exclusion of the individual actors, all but one of whom were granted immunity. Indeed, even the members of the Church's board of directors were granted immunity. How the State Attorney can reconcile such a prosecution with his actions in the Lyons case, let alone with the historical precedent in this State and Nation, is a question that, we submit, he cannot properly answer.

The State Attorney's burden is made all the more insurmountable by the Florida Religious Freedom Restoration Act of 1998 ("RFRA"), Section 761.01-.05, Florida Statutes. RFRA was enacted to buttress the protections of the Free Exercise Clause of the First Amendment and of Section 3, Article I of the Florida Constitution. It provides that the State may not impose burdens upon a church's exercise of religion except in furtherance of a compelling state interest, and even then only by the least restrictive means necessary to protect that state __________________________________________________________________________

interest. Florida's RFRA together with established doctrine under the speech, assembly and religion clauses of the First Amendment, compels dismissal of the criminal charges brought against the Church in this case, for several reasons.

First, the threat or imposition of a criminal conviction and criminal penalties imposes immense burdens upon a church and its individual parishioners, within the meaning of RFRA and the First Amendment. A church, whatever its legal formalities, is much more than the mere legal fiction of a corporate entity, but rather is an organic body of believers and followers. It is through a church that the followers pursue and achieve salvation in accordance with their religious beliefs. To label a church a criminal is to taint the entire religion and its members, to burden its evangelical mission, and to cast it into public disfavor. To impose financial penalties or disabilities upon it is to penalize the members and parishioners who support its mission, and to transform their contributions to a use not intended or authorized.

Because this prosecution of a church substantially burdens the free exercise rights of the Church and its members, it can be undertaken consistent with RFRA and the First Amendment only if it furthers a compelling government interest by the means least restrictive of RFRA and First Amendment rights. Logic and history dictate a negative conclusion to both inquiries. The government's compelling interest lies in enforcing compliance with its criminal laws; only individuals can comply or not comply with such laws. A church, or any other corporation, can only act through individuals, and the criminal law, with its ultimate sanction of imprisonment, is most effectively directed at individuals, not corporations and especially not churches. While the government ordinarily may and sometimes does proceed criminally against corporations, under statutes specifically crafted to punish acts that create illicit corporate profits, __________________________________________________________________________

it cannot be said that its interest in doing so, as opposed to the individual malefactors, is compelling (as opposed to merely reasonable) in the constitutional sense. It certainly cannot be said to be a compelling interest where the corporation is a non-profit organization, especially a church, where the statutes pursuant to which the charges are brought are directed at individual conduct, and where the charge and ultimate penalty will harm the contributors and members, and not the malefactors, especially, as here, when the State Attorney has chosen not to prosecute the malefactors for their acts.

In any event, the means by which the government may further its interest in enforcing the criminal laws that is least restrictive of religious free exercise is to limit its focus to the individual actors. It is by no means necessary for the government to taint and burden an entire church and religion and virtually all its parishioners in order to enforce its laws. We can conclude with certainty that this is true from the historical fact that no church has ever suffered criminal conviction in the history of this State and Nation. And yet the Republic still stands.

Second, it must be emphasized that the criminal information in this case charges the Church with criminal liability for certain acts of individuals that were undertaken pursuant to their deeply held religious belief and that constituted the exercise of religious practice. Thus, it is part of the religious beliefs of Scientology that mental or "psychotic" conditions are spiritual in nature, and must be addressed by spiritual means. Use of psychiatric care or psychiatric hospitals is strictly forbidden as a fundamental tenet of Scientology, just as it is a fundamental tenet of the Christian Science religion to abjure medical treatment for physical ailments. Lisa McPherson herself strongly adhered to these religious beliefs when she rejected psychiatric treatment at Morton Plant Hospital and chose personally instead to receive spiritual assistance at FSO. The

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acts of various Church staff members - who themselves were members of a religious order2 and had dedicated their lives to Scientology - in attempting to provide spiritual assistance, not medical treatment, to Lisa McPherson was a matter of religious choice and belief, by them and by Ms. McPherson. Such choices as to the free exercise of one's religious beliefs are protected activity under RFRA and the First Amendment. The State's effort to redefine the spiritual assistance provided to Lisa McPherson as the improper practice of medicine or the abuse of a disabled adult impermissibly burdens the religious practices, and cannot be justified under the strict scrutiny mandated by RFRA.

Third, the criminal information criminally charges the Church on a vicarious liability basis for the alleged negligent acts of certain staff members in failing on a timely basis to recognize that Ms. McPherson had developed serious physical medical symptoms and to bring her to a hospital on time. These negligent acts were in violation of Scientology scripture stating that medical assistance should be sought for physical ailments, where needed. It is particularly odious under RFRA and the First Amendment for the State to charge a church with a crime under what in effect are respondeat superior principles of agency usually applied to secular relationships and business corporations. It is improper for a civil court to impose upon a church secular models of employment, supervision or care with respect to ecclesiastical functions and duties of church staff.

"Bureaucratic suggestion in employment decisions of a pastoral character, in contravention of a church's own perception of its needs and purposes, would constitute unprecedented entanglement

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2 All staff members of FSO are members of a Scientology religious order known as the "Sea Organization" or "Sea Org." Members of the order dedicate their lives to working to further the religious goals of Scientology religion; indeed, they agree to so dedicate themselves for the next billion years, pursuant to Scientology's religious belief in successive lives and transmigration of the spirit. See Affidavit of Richard Reiss, ś2.

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with religious authority." Rayburn v. General Conf. of Seventh-Day Adventists, 772 F.2d 1164, 1171 (4th Cir. 1985), cert. denied, 478 U.S. 1020 (1986). See Tichenor v. Roman Catholic Church of New Orleans, 32 F.3d 953, 960 (5th Cir. 1994) (Church not liable for failure to supervise when employee engages in independent criminal conduct which results in plaintiffs injuries); Doe v. Evans, 718 So. 2d 286, 290-91 (Fla. 4th DCA 1998) (First Amendment prohibits court from considering claims of negligent hiring, retention or supervision by the Church).

At the least, if a church can ever be charged criminally, despite all that we have said above, it can only be where the Church itself clearly can be found to have authorized or directed the acts alleged. See State v. Municipal Auto Sales, 222 So. 2d 278, 280 (Fla. 3rd DCA 1969) (applying such a rule even to business corporations). The Supreme Court of the United States has mandated such a rule with respect to mere civil liability of political associations. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 916-920 (1982). In Claiborne Hardware the Supreme Court recognized that imposition of even civil liability could destroy an organization engaged in vitally protected speech and association, and, in doing so, burden or destroy such protected activity. Accordingly, liability would be limited to those unlawful acts that were authorized, directed or ratified by the organization itself. The Claiborne Hardware principle applies a fortiori to a church, which enjoys the added protection of the religion clauses and of RFRA. Here, the negligent acts were not authorized, and indeed were contrary to Church scripture.

Moreover, to avoid the First Amendment's prohibition of judicial entanglement into matters of religious "discipline, faith, internal organization, or ecclesiastical rule, custom or law," Serbian ilivojevich, 426 U.S. 696, 713 (1976), the court

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must defer to the Church itself to define and establish the meaning and interpretation of religious doctrine; the court "may [not look] behind the declared content of religious beliefs anymore than [it] may examine into their validity." Holy Spirit Association for the Unification of World Christianity v. Tax Committee of City of New York, 55 N.Y.2d 512, 521 (1982). See Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 450 (1969).

Indeed, the virtually impenetrable thicket into which courts would enter if they tried to sort outwhat acts are compelled by, authorized, permitted, discouraged or prohibited by church doctrine demonstrates both the advisability and constitutional correctness of our principal point, to wit, that criminal prosecutions of churches, qua churches, are both unnecessary and impermissible under RFRA and the First Amendment.

STATEMENT OF THE CASE

1. The Defendant Is A Church

The defendant Church of Scientology Flag Service Organization is a church of the Scientology religion that provides advanced religious training and counseling in Clearwater to Scientologists from throughout the world. Church of Scientology Flag Service Organization v. City of Clearwater, 2F.3d 1514, 1519-20 (11th Cir. 1993). The Internal Revenue Service has recognized the defendant as a "church," within the meaning of 26 U.S.C. §170(c), exempt from taxation under 26 U.S.C. §501(c)(3). See Internal Revenue Service, Cumulative List of Organizations Described in Section 170(c) of the Internal Revenue Code of 1986, Publication 78 (revised 2-98), Supp. No. 1998-1.

The defendant, however, is much more than an ordinary Church of the Scientology

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religion. Most Scientology churches are dedicated to providing basic Scientology religious services, denominated auditing and training, to Scientologists located in the geographical area of each particular Church itself. FSO, however, provides what is known as advanced auditing and training services that not available at the local churches, and, in many instances, are available nowhere else in the world. It is the goal of every Scientologist to advance beyond the basic Scientology services available at the local churches, and to participate in the higher or "upper" level services available at FSO. Thus, FSO is undoubtedly the most important single Scientology church to every Scientologist in the world. Its parishioners, or potential parishioners, include every adherent to the Scientology religion. Affidavit of Mary Story ś4. It is analogous to Mecca or to the wailing wall, and indeed is referred to in Scientology as "the Mecca of Scientology." Id.

2. The Religion of Scientology

The Church has submitted with this motion the affidavit of Reverend Richard Reiss. Reverend Reiss, who is a graduate of both Yale and Oxford Universities and completed four years of graduate work in Philosophy at Rockefeller University, is the Senior Case Supervisor at FSO. Reiss Aff., ś 5. As such, he is "the senior-most ecclesiastical authority in the FSO, responsible for the spiritual guidance and advancement of all parishioners of that Church." Reiss Aff., ś 4. His description of Scientology religious beliefs and practices is thus completely authoritative.

The purpose of the Reiss affidavit is to set forth in definitive fashion the nature and contents of the basic beliefs and practices of the Scientology religion, both generally and, in particular, with respect to spiritual treatment of mental conditions and the religion's prohibition upon psychiatric treatment. While we summarize here significant portions ofRev. Reiss'

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affidavit, we urge the Court to review the Affidavit in its entirety to obtain a full understanding of the Church's beliefs and practices. In considering the showing made in Rev. Reiss's affidavit, the Court should not be drawn into attempting its own interpretation of church belief and practice, lest it run afoul of the non-entanglement doctrine of the establishment clause of the First Amendment. It is not for a secular court to engage in an exegesis of religious scripture. "The First Amendment prohibits civil courts from ... determin[ing] matters at the very core of a religion - the interpretation of particular church doctrines and the importance of those doctrines to the religion." Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 450 (1969). Rather, the First Amendment requires courts to defer to the ecclesiastical position of the Church itself with respect to the meaning and interpretation of the religious doctrine. Neither the State nor the Court is free to inquire whether or not the Church's interpretation of its dogma presented through the Reiss affidavit, is the "correct" one. Such an inquiry, in itself, would violate the requirements of the First Amendment. Jones v. Wolf, 443 U.S. 595, 602 (1979); Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 713 (1976). In the words ofthe New York Court of Appeals:

Neither the courts nor the administrative agencies of the state or its subdivisions may go behind the declared content of religious beliefs any more than they may examine their validity. ... It is for religious bodies themselves, rather than the courts or administrative agencies, to define, by their teachings and activities, what their religion is.

Holy Spirit Association for the Unification of World Christianity. v. Tax Comm. of the City of New York, 55 N.Y. 2d 512, 521, 521-528 (1982); Accord, Doe v. Evans, 718 So. 2d 286, 288 (Fla. 4th DCA 1998) ("excessive governmental entanglement with religion will occur if a court is

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required to interpret church law, policies, or practices; therefore, the First Amendment prohibits such an inquiry"), quoting with approval L.L.N. v. Clauder, 209 Wis. 2d 674, 563 N.W.2d 434, 440 (Wis. 1997).

Even apart from any constitutional consideration, "[S]ound policy dictates that the denominations, and not the courts interpret their own body of church polity." Wheeler v. Roman Catholic Archdiocese of Boston, 378 Mass. 58, 64, 389 N.E. 2d 966, 969 (1979). Courts lack the expertise to engage in revisionist interpretations of religious dogma. It is difficult to see how a judicial interpretation would aid in determining how such dogma is understood by church members, who look to the church, not the courts, for scriptural guidance.

As Rev. Reiss's affidavit makes clear, Scientology is based upon the research, writings and recorded lectures of its Founder, L. Ron Hubbard, which collectively constitute the scripture of the religion. The scripture "is the sole source of all the doctrines, tenets, philosophy, practices, rituals and fundamental policies of the Scientology faith." See Reiss Aff., ś 6.

The ultimate aim of Scientology is a civilization without insanity, crime or war. Id., ś 7. Scientologists believe that by converting persons to Scientology and bringing them to a high level of spiritual awareness and ability they can salvage civilization and achieve that goal. Id, ś 8.

The basic tenet of Scientology is that man is an immortal spirit who has lived though a great many lifetimes and who has the potential for infinite survival. Although he has a mind and a body, he is himself a spiritual being called a "thetan." Id, ś 10. "The thetan is inherently good, with infinite spiritual capability. However, over the ages, and as a result of becoming enmeshed with the material universe, thetans have lost their true spiritual identity and

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operate at a small fraction of their native ability. The goal of Scientology is to return a thetan to his 'native state' -- the state of being he had at inception as a thetan." Id., ś 11.

The principal religious practices in Scientology are "auditing" and "training." Id., śś 31, et seq. The purpose of auditing and training is to unburden the thetan of past painful experiences from his present and past lifetimes, which exist in the form of "engrams" in the "reactive mind"3 of the individual. "While a thetan may be in the present, the sources of his troubles are a manifestation of his past. Only through exploration and examination of his past can he overcome the negative experiences that are affecting him today and reducing his inherent spiritual ability." Id., ś 22.

"Scientology auditing is based on the principle that if an individual looks at his own existence, he can improve his ability to confront what he is and where he is." Id., ś 34. By doing so the spiritual being is helped to rid himself of past negative experience, effecting a full realization of his spiritual potential and thus increasing his abilities as a spiritual being. Id. "Through Scientology training one obtains the wisdom to understand who he is, what he is, where he comes from and his relationship to the universe." Id., ś 31.

Auditing and training are provided in a progression of specific steps which result in graduated increases in spiritual enlightenment. Id., śś 29-30, 39. This progression is represented by Scientology's "Bridge to Total Freedom." Id., ś 29, 39. Ultimately the thetan recovers "his full spiritual ability," id., ś 30, "realizes his full spiritual potential and increases his abilities as a

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3 As Rev. Reiss explains, "the mind records data using what are called 'mental image pictures."' Id. ś 22. Mental image pictures of "moments of pain and partial or full unconsciousness ... are called 'engrams'" and are stored in what is called the "reactive mind." Id. "The thetan is not aware of [engrams]" in his reactive mind, but they affect his "behavior and are the source of all irrationality, fear, and psychosomatic illness. Engrams... can be 'restimulated' by events in one's present environment." Id., ś 24.

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spiritual being." Id., ś 34. Scientologists believe that as enough people are audited to such upper levels of spiritual awareness, the goal of a new civilization without war, crime and insanity will be achieved. Id, ś 7-8. Scientology ministers use a device called an E-meter to guide parishioners during auditing and training to assist them in locating their precise areas of spiritual difficulty. Id., ś 38.

In Hernandez v. C.I.R., 490 U.S. 680, 684-85 (1989), the Supreme Court described Scientology's beliefs and practices in terms which clearly recognized their religious nature:

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." Auditing involves a one-to-one encounter between a participant (known as a "preclear") and a Church official (known as 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. ... The preclear gains spiritual awareness by progressing through sequential levels of auditing...

Due to the charges in this case, it is necessary to briefly describe Scientology beliefs and practices with respect to spiritual healing of what are commonly referred to as "mental conditions," psychiatric treatment, and medical care.

Scientologists believe that what is referred to as mental illness in our society is a spiritual problem, and must be addressed exclusively by spiritual means. Reiss Aff., śś 48-50. In the case of certain kinds of severe psychotic behavior, denominated in Scientology as "PTS Type III" (id., ś 55)4 the necessary spiritual process is called the "Introspection Rundown." Id., śś 57-

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4 "PTS Type III" behavior includes the following: "A Type III may carry on absurd conversations with himself, become violent toward others in his vicinity and become self-destructive. He may believe he is surrounded by demons ... [He] thinks he is somewhere else (or many other (continued...)

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60. Initially, the person should be provided with a restful, non-harassive environment, with no outside stimulation, and plenty of food and water. As Mr. Hubbard wrote: "The task ... is to provide a relatively safe environment and quiet and rest and no treatment of a mental nature at all." Id., ś 56. Co-religionists should watch the person exhibiting "Type III" behavior on a twenty-four hour basis to ensure that she does not injure herself, and to provide food, water, and, if appropriate, non-prescription over-the-counter vitamins, minerals, and sedatives5 to induce sleep. Id. Occasionally, aspirin is used, not because of its medicinal qualities, but because it has been found to he helpful in stopping the individual from reexperiencing "mental image pictures" from past lives. Id., ś 46, 61(I). "Since the PTS Type III is a thetan being overwhelmed by his mental image pictures, use of aspirin may be recommended since the first area of spiritual address is to calm the person down sufficiently so that he can rest to participate in auditing procedures to fully address the spiritual cause of his condition." Id., ś 61(I). Only when the person progresses sufficiently so that he or she no longer exhibits "Type III" behavior is auditing provided to help facilitate further spiritual progress. The Introspection Rundown itself is an entirely religious process. See Reiss Aff., śś 57-60. As we show, post, the Church staff members who assisted Lisa McPherson from November 18 - December 5, 1995 believed she was experiencing "PTS Type III" behavior, and attempted to provide to her the spiritual and religious assistance that she requested and that was appropriate within the Scientology religion.

The writings of Mr. Hubbard stress that while the Introspection Rundown is a

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4 (... continued) places all at once) ... He may think he is somebody else (or many other persons all at once) ..." Reiss Aff., ś 55.

5 Prescription sedatives may be used if prescribed by a doctor. Reiss Aff, ś 56.

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purely religious matter, a medical doctor should be consulted, if necessary, for any physical ailments that may arise. See Reiss Aff., śś 56, 61(G). There is no religious prohibition in Scientology upon medical treatment by doctors for physical ailments and conditions, and parishioners suffering medical conditions are encouraged to see a doctor. Id., śś 44-45. Indeed, "it is a Scientology religious belief that a person suffering from a physical ailment is hindered from making spiritual progress in auditing and training, and thus such a person is encouraged to seek medical help so that his spiritual progress may resume." Id., ś 44. It also, however, is a Scientology belief that participation in auditing will assist a parishioner in recovering from or preventing the spiritual causes or effects of medical conditions in a way that complements traditional medicine. Thus, the Creed of the Church of Scientology states: "We of the Church believe that the spirit can be saved and that the spirit alone may [save] or heal the body." Id.

Under no circumstances, however, may resort be had to psychiatric treatment, to which the Church is firmly opposed as a matter of religious belief and philosophy. Id., śś 13-19, 48-49.

This prohibition is based on the fundamental belief that the real cause of man's ills is spiritual in nature and cannot be resolved by psychological and psychiatric forms of treatment. Indeed, Scientologists believe those treatments alter or permanently damage the body (i.e., drugs, electric shock, lobotomy) and render any spiritual improvement impossible. Direct communication to the thetan in the physical universe takes place through the body. If the communication route from the body to the thetan and from the thetan to the body is permanently damaged, it can permanently bar the practice of Scientology to help the individual regain his spiritual freedom.

Id., ś 19. Accordingly, the Creed of the Church of Scientology states: "that the study of the mind and the healing of mentally caused ills should not be alienated fiom religion or condoned in

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nonreligous fields." Id., ś 14.

To summarize:

1. The exclusive method of spiritually assisting a person exhibiting "Type III" behavior is the Introspection Rundown. The person is provided with a calm, restful, quiet environment, plenty of food, vitamins and water, and encouraged to sleep. Medical doctors should be consulted if physical symptoms of illness develop. When the parishioner no longer exhibits Type III behavior, auditing is utilized to further spiritual progress.

2. Churches of Scientology ministers or staff members are prohibited from recommending or facilitating psychiatric treatment of Scientologists. Rather, they should assist Scientologists to seek Scientology spiritual counseling, such as the kind of treatment described in paragraph 1 above.

3. Churches of Scientology ministers or staff members do not attempt to treat medical conditions. Parishioners are encouraged to consult licensed medical doctors for any manifest or apparent physical ailments, or for any medical treatment.

3. The Charges Leveled by the State

The felony information contains two counts. Count One alleges that the Church "did knowingly, willfully, or by culpable negligence abuse and/or neglect a disabled adult" during the period of November 18 - December 5, 1995, inclusive, thereby causing "permanent disfigurement, permanent disability or great bodily harm to Lisa McPherson," in violation of Chapter 825.102 (1995) Florida Statutes. Count Two alleges that the Church during the same time period "did practice medicine or attempt to practice medicine" without a license by "the diagnosis, treatment, operation or prescription for any human disease, pain, injury, deformity or

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other physical and mental condition in reference to Lisa McPherson" (emphasis added), in violation of Chapter 458.327 (1995) Florida Statutes.

The information itself contains no particulars, but attached to it is an affidavit of Special Agent A. L. Strope of the Florida Department of Law Enforcement ("FDLE") which sets forth the purported basis for the charges. The affidavit, like the information itself, makes clear that the charges are based upon the entire course of conduct engaged in by members and staff members of FSO from November 18, 1995 through and until Ms. McPherson's death on December 5, 1995. Yet the affidavit does not identify any physical manifestations of illness as occurring until December 1, 1995, four days before Lisa McPherson's death.

Rather, Special Agent Strope repeatedly emphasizes that a central focus of the charges concerns the efforts of various Church staff members to provide spiritual assistance for what they determined to be Lisa McPherson's "PTS Type III" condition, and their failure to refer or bring Ms. McPherson to a psychiatrist or psychiatric hospital for treatment of her "psychotic" condition. In so doing, the staff members were following their strongly held religious beliefs and practices, as well as the religious choice made by Ms. McPherson herself. Indeed, it is manifest from the Strope affidavit, when read in conjunction with Rev. Reiss's affidavit describing Scientology religious beliefs and practices, that every act undertaken by every FSO staff member was done precisely and exclusively to provide spiritual and religious assistance and help to Lisa McPherson, and not to provide medical treatment.

Thus, the Strope affidavit states that on November 18, 1995, Ms. McPherson was in an automobile accident in Clearwater, following which she began to walk down the street without her clothes. The medical personnel at the scene of the accident "became concerned for

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Lisa's psychological [not physical] well-being" and took her to Morton Plant Hospital (Strope, p. 3). Strope further recounts that "despite the fact that [attendingl Dr. Lovett felt that Lisa was in need of psychological treatment," she was released from the hospital because attending psychiatric Nurse Joe Price "did not believe McPherson met the criteria for involuntary hospitalization." Id. (emphasis added).

Indeed, Agent Strope omitted from his affidavit reference to several passages from the Morton Plant Hospital records that make clear that Lisa McPherson herself chose to leave the hospital, and to participate in Scientology spiritual assistance for her "condition." They also make clear that Ms. McPherson was completely aware of what she was doing and that she was entirely competent to make her decision.

Thus, the report of Nurse Price, upon which Agent Strope relied, stated the reasons for Nurse Price's conclusion that Ms. McPherson should be permitted to leave the hospital. Nurse Price found that Ms. McPherson retained the "ability to abstract thinking" [sic] and that her "cognition [was] intact." See Aff. of Glen Stilo, ś 6, and Ex. B. He further reported that Ms. McPherson stated, "I want to go home [with] my friends from the congregation." Id.

Even more important, Agent Strope omitted from his affidavit reference to critical portions of the report of Dr. Lovett, the attending physician. Dr. Lovett wrote:

The psychiatric liaison, Joe, evaluated the patient and feels that she is not a danger to herself or others. We feel that she does have a psychiatric problem. The patient does not want to stay in the hospital. Her friends at Scientology will watch her twenty-four hours a dav and be sure that she gets the care that they want her to have and the patient wants to have. I told them that I felt this was okay. The patient does not want to stay in the hospital, and we will not Baker Act her to do this.

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I spoke to Dr. Dajani on the phone. He feels the patient is not a harm to herself or to others. She cannot be Baker Acted I will have the patient sign out against medical advice. I told her I could not be responsible for actions, and I felt that she was able to make a rationale decision at this time. Again, the Scientology group will observe her very closely and will give her whatever care that they want to do for this problem she is having.

Diagnoses: (1) No evidence of acute medical problem or injury. (2) Behavioral dysfunction.

davit of Glen Stilo, ś 7 and Ex. C (emphasis added).

Thus, the determination of the medical personnel at Morton Plant Hospital was unanimous in finding: (1) Lisa McPherson did not wish to stay in the hospital, (2) Lisa McPherson chose to go with her co-religionists, who would provide the spiritual "care" she "wants to have;" (3) that "care" included a twenty-four hour watch, and thus Ms. McPherson and her co-religionists clearly contemplated that she would be provided the Introspection Rundown, the Scientology religious practice for providing spiritual assistance for "PTS Type III" behavior; and (4) Lisa McPherson retained her abilities for cognitive and abstract thinking, and was "able to make a rational decision" to choose spiritual care over psychiatric treatment. Yet it is from the date of Ms. McPherson's release from Morton Plant Hospital for such spiritual treatment for her "psychological" condition that the felony charges are brought.

Agent Strope's affidavit repeatedly emphasizes the "severity of Lisa's mental illness" (Strope at 6) and that the Church's staff members continued to attempt to provide assistance to her for that condition rather than sending her for "psychological help." Id. at 6, 9. Each and every aspect of the assistance Strope identifies is part of the Church's religious practices with respect to spiritual assistance to parishioners exhibiting "PTS Type III" behavior. Thus,

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Strope acknowledges that the Scientologists who were watching Lisa twenty-four hours a day6 considered her to be PTS "Type Three." Id. at 9. Compare Reiss Aff. śś 56, 60. He describes her as being "severely psychotic" by the second day (Strope Aff. at 7), and her behavior as "hyperactive, delusiohal, and hallucinating." Id., at 8. She "engaged in self-destructive behavior," "had conversations with people who were not there, claimed to be people she was not, sang and danced, ... crawled around on the floor, stood on the toilet, got in the shower fully clothed, tried to walk out of the room in a state of undress, and on at least one occasion drank her own urine." Id. at 8-9. Compare Reiss Aff. at ś 55 (describing "Type III" behavior).

The acts that Strope alleges come within the criminal charges in this case constitute the efforts of the Scientologists with Lisa McPherson to provide her with spiritual and religious assistance, known as the Introspection Rundown, for her "Type III" behavior - all of which was consistent with the religious beliefs of Lisa McPherson and all of her co-religionists who stayed with her. According to Agent Strope, Ms. McPherson "was undergoing an isolation watch, in the hope that her condition would improve and stabilize, so she could undergo a Scientology procedure known as an introspection rundown." Strope Aff. at 9. Compare Reiss Aff., śś 56-60. Accordingly, and pursuant to Scientology practices (as stated by Strope), she was

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6 Strope repeatedly uses terminology designed to give the incorrect impression that the FSO staff members were trying to treat Lisa medically. Thus, he refers to the watchers as "caretakers" or "caregivers," in a transparent effort to try to come within the scope of § 825.101, Florida Statutes. Yet, the individuals in no way were there to provide medical care or treatment; they were there to assist in a spiritual/religious process. Reiss Aff., śś 56-60. Similarly, Agent Strope refers to Alan Kartuzinski as Lisa's "case supervisor," but does not explain that that term in Scientology refers to the person who supervises a parishioner's participation in the spiritual practices and processes of Scientology, including the handling of"PTS Type III" conditions. It is purely concerned with religious practice, not corporate decisions, and carries no suggestion or implication of supervision over medical treatment, because the Church does not provide or claim to provide medical treatment. Reiss Aff, śś 40, 41.

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"watched on a 24 hour basis," Strope Aff. at 6, isolated, kept in a quiet environment, and restrained when she became violent or self-destructive. Id. at 7. 7 Compare Reiss Aff, śś 56, 59-60. She was encouraged to sleep, given vitamins, water, and aspirin and benadryl to help her sleep. Strope Aff. at 11-12. Compare Reiss Aff., śś 56, 59, 61. These acts were addressed exclusively to what Strope describes as Ms. McPherson's "mental illness," and were, as Rev. Reiss' affidavit shows, pursuant to the religious beliefs of the staff members and Ms McPherson. Even here, it is clear from the Strope affidavit that the decision as to what sleep inducer to give her was grounded exclusively in religious considerations. In his affidavit, Strope recounts that Alain Kartuzinski - Lisa McPherson's Case Supervisor and the staff member in charge of her spiritual treatment at the Church - "forb[a]de the use of the Valium prescribed by Dr. Minkoff because he felt it might prevent the use of further Scientology procedures on Lisa" and "directed, after checking Scientology references, that aspirin be included as it might assist in blocking Lisa's formation of mental images."8 Strope Aff at 12 (emphasis added). Compare Reiss Aff., at ś 61(I).

In contrast to his emphasis on Lisa McPherson's psychological condition, Strope does not identifjy any serious physical symptoms as arising until December 1, 1995, when Lisa's extremities were cool but not cold." Strope Aff at 14. Janis Johnson, the Church's medical

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7 Agent Strope alleges that the Church's staff members "never attempted to contact Ljsa's next-of-kin," Strope Aff. at 8, presumably in support of the charge of abuse or neglect. Yet he fails to note that the hospital records he acknowledges to have consulted show that Ms. McPherson identified as her next-of-kin "Benetta Slaughter," her friend, employer, and co-religionist, who was fully aware of the events at issue. See Affidavit of Glen Stilo, ś 8 and Ex. D. Thus, the FSO staff members were merely honoring Lisa McPherson's own choice as to whom she might wish to be contacted.

"The "mental images" referred to in the Strope affidavit are "mental image pictures" in the "reactive mind". Reiss Aff., śś 22, 24.

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liaison officer, "noticed Lisa's health declining and that she had lost weight the Friday [Dec. 1] before her death." Id. at 15. By Saturday, some reports of those watching Lisa indicate she was "too weak to walk" but that she subsequently "regained some of her strength." Id. at 16. The last three days she was "not ...active." Id. By the evening of the 4th or the morning of the 5th, Johnson was concerned, and stated she would take her to the hospital. Id. By 5 p.m. of December 5, Johnson was notified "that something was wrong." Johnson did not take Lisa to the nearest hospital, and did not arrive at the hospital in New Port Richey until about 9:30, by which time Lisa had died. Strope alleges that the delay in bringing Lisa to the hospital "deprived [her] of her only opportunity for survival." Id. at 17.

Strope emphasizes the role of Janis Johnson. While Johnson previously had been licensed as a doctor in Arizona, her license had lapsed in 1994. Id. at 11. Johnson's staff position was not as a medical doctor; rather, as Strope acknowledges, she was the Church's Assistant Medical Liaison officer, whose job, according to Strope, was to be "responsible for handling staff employees in their dealings with health related professionals." Id.at 11 (emphasis added).

Thus, Johnson's responsibility was to liaise with medical professionals, when necessary, and not to provide medical care. Strope notes twice that Johnson assumed control of Lisa's isolation watch, telling others to "butt out." Id. at 11, 13. Strope's affidavit charges that Johnson consulted with a licensed medical doctor, Dr. Minkoff, who was not a Church staff member but who was a practicing Scientologist, and administered or ordered shots of magnesium chloride and chloral hydrate to McPherson to induce sl

eep. Id. at 13-15. Minkoff, in fact, specifically prescribed the chloral hydrate for Lisa McPherson. Id. at 9-10. Neither Johnson nor Minkoff have been criminally charged, and the latter was granted immunity.

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Thus, the only allegations that Lisa McPherson's physical condition was not properly attended to concern the period December 1-5, 1995. Strope's allegations with respect to Lisa's physical condition consist of charges that Johnson assumed control of the situation, that she was not licensed to practice medicine in Florida, that she ignored the physical manifestations of illness for several days, and that she was negligent in bringing Ms. McPherson to the hospital on time. He further alleges that Johnson administered injections of magnesium chloride without a prescription, and that Dr. Minkoff prescribed chloral hydrate without observing Lisa. With respect to none of these allegations can or does Strope allege that Johnson or Minkoff were acting according to instructions or directions of the Church or in accordance with Church policy, precepts or beliefs. Rather, the allegations are of negligence or of unauthorized acts on the part of Johnson and maybe Minkoff. Yet Johnson has not been charged, and Minkoff was granted immunity. Only the Church has been prosecuted, on a vicarious liability theory for the acts of these individuals.

ARGUMENT

I. CRIMINAL PROSECUTION OF THE CHURCH FOR THE ACTS OF ITS STAFF MEMBERS VIOLATES THE FIRST AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES; SECTION 3, ARTICLE I OF THE FLORIDA CONSTITUTION; AND FLORIDA RFRA

Florida's Religious Freedom Restoration Act ("RFRA") bars criminal prosecution of the Church in this case. Specifically, the unprecedented act of prosecuting the Church criminally cannot survive RFRA because there is no compelling state interest in pursuing the charges against the Church, and because prosecution of the individuals, rather than the entire church organization, is a less restrictive means to achieve any governmental interest.

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A. Florida's RFRA Applies To The Criminal Prosecution Of The Church

RFRA prohibits governmental actions, such as the prosecution of the Church here, that substantially burden the exercise of religion and are not the least restrictive means for the government to advance a compelling governmental interest:

[G]overnment shall not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability, except that government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person:

(a) Is in furtherance of a compelling governmental interest; and

(b) Is the least restrictive means of furthering that compelling governmental interest.

Fla. Stat. §761.03 (1998).

Florida RFRA became law on June 17, 1998. It is virtually identical to the United States Religious Freedom Restoration Act (Federal RFRA), 42 U.S.C. § 2000bb et seq.9 Both Florida RFRA and Federal RFRA were enacted in response to the United States Supreme Court decision in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), which abandoned the strict scrutiny test10 applicable to certain claims brought

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9 The Federal RFRA was held unconstitutional as applied to the states in City of Boerne v. Flores, _U.S._ 117 S.Ct. 2157 (1997) on the ground that Congress lacked power to so legislate with respect to the states. In response, Florida enacted its own RFRA.

10 "Strict scrutiny" review - requiring a governmental entity to justify its actions by a compelling state interest and to show that the actions are the least restrictive means to further that interest - is reserved for cases where the government actions impinge upon fundamental constitutional rights, such as freedom of speech, e.g., Cantwell v. Connecticut, 310 U.S. 296 (1940); Wisconsin v. Yoder, 406 U.S. 205 (1972); Wooley v. Maynard, 430 U.S. 705 (1977), or further an invidious discrimination based upon a suspect classification such as race, nationality, or alienage. E.g., Brown v. Board of Education, 347 U.S. 483 (1954); Korematsu v. United States, 323 U.S. 214 (1944). If "strict scrutiny" is not applicable, government actions will withstand constitutional scrutiny (continued...)

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exclusively under the Free Exercise Clause of the First Amendment to the Constitution of the United States." The purpose of Florida's RFRA legislation was, "to establish the compelling interest test [strict scrutiny review] as set forth in Sherbert v. Verner, 374 U.S. 398 (1963), and Wisconsin v. Yoder, 406 U.S. 205 (1972), to guarantee its application in all cases where free exercise of religion is substantially burdened, and to provide a claim or defense to persons whose religious exercise is substantially burdened by government." Chapter 98-412, 1998 Fla. Sess. Law Serv. (West 1998) (emphasis added).

As explained by the Supreme Court in Sherbert, strict scrutiny review permits restrictions on religious liberties only in the most extreme cases. The Court held, "it is basic that no showing merely of a rational relationship to some colorable state interest would suffice; in this highly sensitive constitutional area, only the gravest abuses, endangering paramount interests, give occasion for permissible limitation." 374 U.S. at 406 (citation omitted). Florida intended that RFRA be even more protective of religious practice than was the Sherbert compelling interest test by requiring application of the "least restrictive means" analysis to burdens on the free exercise of religion. See Florida S. Comm. on Judiciary, Staff Analysis of CS/SB 296 at 4 (April 14, 1998) ("RFRA revived the compelling interest test, but included a least restrictive means analysis not present in [Sherbert]"). Moreover, the legislative history of Florida's RFRA acknowledged that

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10 (... continued) if they can be shown to further a rational or reasonable state interest, even if they do so in an underinclusive or overinclusive manner. United States v. Carolene Products Co., 304 U.S. 144 (1938); McLaughlin v. Florida, 379 U.S. 184 (1964); Zobel v. Williams, 457 U.S. 55 (1982).

11 Smith held that strict scrutiny review is still operative when government action burdens a "hybrid" of religious and associational rights. 494 U.S. at 881, 882. Such a hybrid of rights clearly is at stake when the State indicts a Church, thereby burdening the associational as well as the free exercise rights of its members. Thus, all that is argued above under Florida RFRA is equally applicable under a pure First Amendment analysis.

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the impact of Florida's RFRA would parallel that of the Federal RFRA, which "produced a broadened capacity for legal action against the state for alleged infringement upon free exercise of religion." Florida H. R. Comm. on Governmental Operations, Final Staff Analysis of CS/HB 3201 at 1 (May 15, 1998). Proponents ofFlorida's RFRA favorably noted this as "indicative of a greater protection for religious practice," id, even emphasizing that "the compelling interest test is also the most practical means for ensuring that smaller and unpopular faiths receive the same level of protection as mainstream faiths." Id. at 8, n.27.

PFRA's mandate of strict scrutiny review applies to the government's prosecution in this action. It "applies to all state law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after the enactment of this act." Fla. Stat. §761.05(1). "Thus this Act's provisions are retroactive and prospective in effect." Florida H.R. Comm. on Governmental Operations, Final Staff Analysis of CS/HB 3201 at 10.12 Furthermore, RFRA is applicable to the government's prosecution of the Church because both the prosecutor and this Court fall within RFRA's definition of the term "government", which provides that "government ... includes any branch, department, agency, instrumentality, or official or other person acting under color of law of the state, a county, special district, municipality, or any other subdivision of the state." Fla. Stat. §76i.02(2).13

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12 Here, the act of the State that burdens the Church is the filing of the criminal information, which, of course, occurred after the enactment of RFRA. Thus, the question of retroactivity is not even raised.

13 State and federal courts have consistently applied RFRA to criminal prosecutions. See United States v. Gonzales, 957 F. Supp. 1225 (D.N.M. 1997) (dismissing criminal prosecution of Native American for killing bald eagle without permit); Horen v. Virginia, 479 S.E.2d 553 (Va. 1997) (reversing criminal convictions of Native Americans for possession of wild bird feathers and parts); State v. Singh, 690 N.E. 2d 917 (Ohio Ct. App. 1996) (applying RFRA to state concealed (continued...)

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The Church is protected by RFRA because it is a "person" under the statute. Title One of the Florida Statutes, which sets forth the definitions of the terms to be used in construing statutes, provides, "the word 'person' includes individuals, children, firms, associations, joint adventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations." Fla. Stat. (§1.01. See, e.g., Porth v. Roman Catholic Diocese of Kalamazoo, 532 N.W.2d 195 (Mich. Ct. Appeal 1995).

B. Criminal Prosecution Of The Church Burdens The Church And Its Members In Their Exercise Of Their Religious Beliefs And Practices

The State has chosen to prosecute the Church itself, rather than the individuals who were involved in the incidents set forth in the Strope affidavit accompanying the felony information. Prosecution of the Church, however, necessarily implicates the religious beliefs of all Scientologists, brings the religion itself into disrepute, undermines the religious teachings of the Church, interferes with Scientology's relationships with its adherents, holds the Church and its adherents liable for monetary penalties, and imposes legal disabilities upon the Church and certain adherents." The burden falls upon the Church itself and its members and parishioners, whose rights of religious association and expression may be impinged by a burden placed on their

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13 (...continued) weapon prosecution of Sikh for carrying religiously symbolic sword); United States v. Bauer, 84 F.3d 1549 (9th Cir. 1996) (applying RFRA to prosecution of Rastafarians for possession of marijuana), cert. denied, 117 S. Ct. 992 (1996); see also State v. Miller, 538 N.W.2d 573, 579 (Ct. App. Wisc. 1995) (reversing forfeiture order directing members of Old Amish Order to pay forfeiture for failure to display red and orange triangular slow-moving vehicle emblem on their horse drawn buggie).

14 In this case, the prosecution also directly burdens the Church's religious beliefs and practices concerning spiritual treatment of "PTS Type III" behavior and the religious practice of "Introspection Rundown." This burden, and the State's inability to meet RFRA's strict scrutiny test to justify the burden, is addressed in Point II, post. The discussion in the text directly above addresses only the burden imposed upon the Church and its members by the mere fact of prosecution and the threat of conviction of the Church, qua church.

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Church. Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957) ("any interference with the freedom of a [political] party is simultaneously an interference with the freedom of its adherents"); Democratic Party of the United States v. Wisconsin, 450 U.S. 107, 122 (1981); Buckley v. Yaleo, 424 U.S. 1, 22 (1976).

First and foremost, criminal prosecution and potential conviction of the Church substantially burdens the religious practice of the Church and Scientologists by stigmatizing the Scientology religion, its institutions, and its leaders. This effect is dramatically demonstrated by the widespread media coverage of the charges brought in this case, which universally characterize the prosecution as one directed at the entire religion of Scientology as opposed to FSO (the religious corporation charged). See, e.g., "Florida Charges Scientology In Church Member's Death," N.Y. Times, Nov. 14, 1998 (emphasis added); "Scientology Charged in Member's Death," St. Petersburg Times, November 14, 1998, p. 1; "Scientology charged in Death of Woman" The Tampa Tribune, November 14, 1998, p. 1; "Scientology Accused in Death" The Oregonian, November 14, 1998. Atfidavit of Michael Rinder, Ex. B. Lurid and one-sided coverage ensued in the tabloid press, both print and broadcast, lending further credence to the impression that the Scientology religion - and thus all its ministers, staff, and even members - stand accused of vile criminal practices. Indeed, analysis of the international media coverage reveals that 31 percent reported that "Scientology" was charged with the crime, 66 percent reported that the generalized "Church of Scientology" was charged, and only 3 percent accurately reported that FSO was the target of the charges. Id., ś 5. 15

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"The fact that Scientology is a relatively new and growing religion undoubtedly exacerbated the derogatory nature of the press coverage and the resulting stigma on FSO and the entire Scientology religion. For example, if, contrary to 200 years of precedent, criminal charges were (continued...)

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Indeed, in the immediate aftermath of the charges, there ensued widespread virulent anti-Scientology picketing not only at FSO, but at Scientology churches around the world, engendering hate mail, phone calls and threats of violence. Id., ś 9. In Clearwater alone, pickets carried signs saying, inter alia, "Scientology Kills," "Lisa's Blood on Scientology's Hands," "Thank God L. Ron Hubbard is Dead," and "Honk if you Hate Scientology." Anonymous advertisements were placed on county buses carrying messages such as "Quit Scientology." Id., ś 9.

While the State did not organize the pickets, place the advertisements, write the headlines, or produce the media coverage, there can be no doubt that it was the act of bringing charges against the Church itself that conveyed the message of official disapproval and thereby engendered and exacerbated the sectarian strife described above. As the Eleventh Circuit has emphasized, "creation of the appearance of official disapproval for a sect may constitute a violation of the Establishment Clause." Church of Scientology Flag Service Organization v. City of Clearwater, 2 F.3d 1514, 1528 n.8 (11th Cir. 1993), relying on Lynch v. Donnelly, 465 U.S. 668, 690-91 (1984) (O'Connor, J., concurring) (state may not "convey a message of endorsement or disapproval of religion").

The stigma created by the prosecution and potential for conviction of the Church interferes with the religious practice of Scientologists in that it invites and coerces Scientologists to reevaluate their affiliation with the Scientology religion. For some, the knowledge that the

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"(... continued) brought against a Roman Catholic church based on the acts of a priest, or against a Jewish synagogue based on the acts of a rabbi or canter, it nevertheless is inconceivable that the charges would be reported as "Catholicism Charged" or "Judaism Charged."

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Church is being criminally prosecuted may be sufficient to disaffiliate from Scientology. For others, the prosecution may besmirch the reputation of the Church and its leaders and thereby attacks their ecclesiastical authority. Moreover, while many Scientologists, because of their long standing relationship with the Church, will recognize that the allegations of the criminal prosecution are inconsistent with their own experiences with Scientology, for new members or those who might otherwise be attracted to Scientology, the criminal prosecution may result in their never achieving the enlightennent through the Scientology religion that the Church believes will come to those who participate in its practices. The criminal prosecution is tantamount to a statement by the State of Florida that Scientology religious practice is a danger to Scientologists, and consequently it makes individuals, especially those with a limited understanding of Scientology, loathe to engage in Scientology's religious practices.

When Florida brands the Church as criminal, it substantially burdens the Church's ability to exercise its religion because prosecution of the Church makes some parishioners reluctant or unwilling to participate in Scientology's religious practices. In this regard, the prosecution violates Florida's RFRA in the same way that Oregon prison and law enforcement officials violated the federal RFRA when they tape recorded conversations between prisoners and clergy, including a confessional, even where the individual making the confession knew of the tape recording. As the Ninth Circuit held in Mockaitis v. Harcleroad, 104 F.3d 1522 (9th Cir. 1997), the religious exercise of a Roman Catholic priest (and his superior) was substantially burdened by the tape recording by prison authorities of the confession of an inmate. The court noted that the taping made confessors reluctant to participate in the sacrament and thus, "makes it impossible for [the priest] to minister the sacrament to those who seek it in the jail." Id at 1530. Thus, as with

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the taping in Mockaitis, the prosecution here substantially burdens the exercise of religion by the Church because it makes current and potential parishioners less willing to engage in Scientology's religious activities or follow its fundamental religious tenets, especially those providing for spiritual treatment of "PTS Type III" behavior and prohibition upon psychiatric treatment.

Indeed, criminal prosecution of the Church is the strongest possible expression of disapproval by the State of the Church because it is a public pronouncement by the State that the Church's religious practices are illegal acts.

In addition, the prosecution requires a massive reorientation of Church energy and resources. Instead of the Church and its leadership ministering to the spiritual needs of its parishioners, they must attend to the criminal prosecution and the many reverberations for the Church that are occasioned by the criminal prosecution. The spiritual needs of Scientologists may therefore be underserved or, in extreme cases, go unmet because of the criminal prosecution.

The prosecution further burdens the exercise of religion because it potentially leads to tangible legal disabilities on the Church and on Scientologists generally. If the Church is convicted and fined, any fine would be levied on the Church but would ultimately come out of the pockets of individual Scientologists. Moreover, the stigma associated with criminal conviction would likely result in the Church's public activities being substantially curtailed. Thus, the Church and its leaders and members would likely be excluded [from] civic organizations and from participation in community programs including drug rehabilitation, literacy, and anti-crime programs. Participation in these programs is inspired and promoted by Scientology religious belief. See Atfidavit of Mary Story.

Moreover, a criminal prosecution and conviction could result in a determination

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under 8 U.S.C. §1101(R) that the Church is not a "bona fide nonprofit, religious organization" and consequently Scientologists would be denied "special immigrant" status. If such a finding were made, Scientologists would not be able to immigrate to the United States for the purpose of working as Scientology ministers and the religious mission of Scientology would be substantially burdened. 8 U.S.C. §1101(27).

Each of the above examples demonstrates the substantial burden on religious free exercise suffered by the Church and by Scientologists by the mere fact of the unprecedented prosecution and potential conviction of the Church.16 Where such a substantial burden is shown, the state must then show that the prosecution is in furtherance of a compelling governmental interest and that it is the least restrictive means of furthering that interest. However, because the government is proceeding against the Church, rather than the individuals involved in the charged conduct, neither requirement is met, as is shown below.

C. Prosecution of the Church Does Not Further a Compelling State Interest by the Means Least Restrictive of the Free Exercise Rights of the Church and its Followers

The Church does not take issue with the State's compelling interest in preventing the unauthorized practice of medicine and in assuring that disabled persons are not abused. Even assuming that prosecution of some or all of the acts charged as criminal in the criminal information furthers the State's compelling interest, the questions remain whether the State has a compelling interest in prosecuting the Chzrrch, as opposed to individuals, for the acts alleged, or, put somewhat differently, whether prosecution of the Church itself is the least restrictive means of

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16 In addition, as set forth in Point II, post, by basing the charges in major part upon the religious beliefs and practices ofScientology concerning spiritual treatment of mental conditions, the prosecution substantially burdens the free exercise of those religious beliefs and practices.

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furthering the State's interest. We submit that the clear answer to either question is a resounding "no."

First, it is doubtful that even in an ordinary case of a business corporation, the State would have a compelling, as opposed to a merely rational, interest in prosecuting the corporation but not the individual corporate agents who commit a crime. Crimes are committed, or even authorized or directed, by individuals. It is the criminal conduct ultimately of individuals that the criminal law must deter or punish. The major and probably most effective form of deterrence and punishment available to the criminal law is imprisonment, which can only be imposed on individuals. In the ordinary context, a corporation is a mere shell, a legal fiction. While the State's ability to enforce its criminal laws would be substantially undermined if it could not prosecute individuals, the same cannot be said with respect to corporations. While criminal prosecutions of corporate entities may sometimes be useful or even a convenient contrivance," it is not necessary to [the] State.

For that reason, criminal prosecution of business corporations has been generally limited, by policy and law, to contexts such as the antitrust, securities, fraud, or environmental protection statutes where the "language and subject matter" of the criminal statute invoked "is primarily concerned with the activities of business entities," and "the corporation, and not the individual agents, will have realized the profits fiom the illegal activity." United States v. Hilton Hotels Corporation, 467 F.2d 1000, 1004, 1006 (9th Cir. 1972), cert. denied, 409 U.S. 1125 (1973). See State v. Municipal Auto Sales, 222 So. 2d 278, 279 (Fla. 3rd DCA 1969)

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17 Indeed, often a criminal prosecution will be resolved by acceptance of a plea and fine from a corporation, with no criminal liability for the individuals responsible for the underlying conduct. While such a resolution typically is considered less burdensome, the opposite is true here precisely because the "corporation" is a church.

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(corporation may be liable for acts of its employees only if the acts were "committed in furtherance of the business of the corporation [and] authorized or acquiesced in by the corporation".) Neither criteria exists in this case. Not only are Florida's statutes governing abuse or neglect and practicing medicine without a license not "primarily concerned with the activities of business entities," they in fact are directed exclusively at individual acts.18 Likewise, the State does not even attempt to [a?] nor could it, that the acts of the individuals upon which the charges are based were intended to or did economically benefit the Church. Agent Strope implies the contrary, by alleging that in the two years preceding Lisa's death, Lisa "spent" $70,000 for Church services. In fact, Lisa made donations to her Church, prior to and unrelated to the events of November 1995, which are recognized and treated as charitable deductions under Section 170(c) of Internal Revenue Code - just like donations to any other religion.

Thus, the criteria that may justify criminal prosecution of even an ordinary business corporation simply are not present here. A fortiori, the State has no interest, compelling or otherwise, in prosecuting the Church, as opposed to the individuals, under the criminal statutes at

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18 The abuse or neglect statute is directed at abuse by a "relative, caregiver, or adult household member." Fla. Stat. § 825.101(1)(1995). A "caregiver" is defined exclusively as an individual, not an institution or a corporation. Fla. Stat. § 825.101(3) (1995). Similarly, the law relating to unauthorized practice of medicine is also concerned with the individual conduct of physicians. As Fla. Stat. § 458.301, declaring the purpose of Chapter 458, clearly states:

The primary legislative purpose in enacting this chapter is to ensure that every physician practicing in this state meets minimum requirements for safe practice. It is the legislative intent that physicians who fall below minimum competency or who otherwise present a danger to the public shall be prohibited from practicing in this state.

Fla. Stat. § 458.301 (1998) (emphasis added.). In fact, there is no Florida case in which a hospital or any corporation has even been charged with the unauthorized practice of medicine. The provision applies exclusively to individual practitioners only.

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issue here. Indeed, Florida has recognized that under the statutes at issue here it has no legitimate interest in prosecuting either individuals or churches for the provision of spiritual care, even for medical conditions, by providing specific religious exemptions from the statutory schemes regulating abuse of disabled adults and practicing medicine without a license. Fla. Stat. § 415.113 ("treatment by spiritual means" does not constitute abuse or neglect); Fla. Stat. § 458.303(1)(g) ("the practice of the religious tenets of any church in this state" does not constitute practice of medicine). See also Fla. Stat. § 491.014 (exempts activity of member of clergy from Florida's regulation and licensure of "clinical, counseling, and psychotherapy services").

Moreover, even if in certain circumstances the State may have a compelling interest in obtaining a criminal conviction against a business corporation for the very purpose of tainting such a corporation with the label "criminal," such an interest is not only not compelling but illegitimate with respect to a church. Lynch v. Donnelly, 465 U.S. 668, 690-91 (1984) (O'Connor, J., concurring) (state may not "convey a message of... disapproval of religion"); Church of Scientology Flag Service Organization v. City of Clearwater, 2 F.3d at 1528, n.8 ("creation of the appearance of official disapproval for a sect may constitute a violation of the Establishment Clause"). As we have shown, the bringing of such a prosecution against a Church has far greater consequences upon a vast array of religious believers, who had no connection to the criminal conduct at issue, than it does upon the shareholders ofa business corporation. The State indeed has the power to inflict far greater and wider punishment by [prosecuting] the Church rather than the individuals, but it has no legitimate interest in so doing. That is so because the effect of the punishment would be to substantially burden the exercise of religious belief, rather than to sanction the precise conduct to be condemned by conviction. To say that the State has an

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interest, compelling or otherwise, to wreak such damage is to turn the Constitution on its head.

Second, the State's legitimate and compelling interest in enforcing its criminal laws certainly is sufficiently advanced and protected by the less restrictive means of prosecution of the individuals responsible for the acts, and not the Church itself. Such narrowly focused prosecutions minimize the damage to the legitimate free exercise rights of the Church and its innocent members. Yet the wrongdoers may be punished, and future wrongdoers may be deterred. As stated by one court in rejecting a civil claim against a church for conduct of church members:

A church always remains free to espouse whatever religious belief it chooses; it is the practices of its adherents that may be subject to state sanctions.

Lundman v. McKown, 530 N.W.2d 807, 826 (Minn. Ct. App. 1995).

The Supreme Court has exhibited great sensitivity to the inappropriate impact of punishment upon the members of an organization, as opposed to the particular malefactors, in at least two analogous cases dealing with punitive damages in civil cases. In International Brotherhood of Electrical Workers v. Foust, 442 U.S. 42 (1979), the Court prohibited the imposition of punitive damages against labor unions for breaches of their duty of fair representation, finding that punitive damages awards would "deplete union treasuries, thereby impairing the effectiveness of unions as collective-bargaining agents," and inhibit the unions in carrying out essential discretionary acts. Id. at 50-51. The Court emphasized that the impact of such awards would be felt principally by the union membership and would burden the exercise of associational and collective bargaining rights guaranteed by the National Labor Relations Act.

Similarly, the Court barred punitive damages against municipalities in actions

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brought under 42 U.S.C. §1983 in Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981). The Court again emphasized the disparity between the wrongdoer and those who would actually suffer from the imposition of punitive damages. The Court held that the potential impact of a large judgment upon local treasuries and thus on municipal services was reason enough to prohibit such awards.

Surely the rights of religious association and free exercise protected by the First Amendment and RFRA are as precious as the rights of labor association and collective bargaining, and the interests of taxpayers to avoid paying for the illegal acts of municipal employees. Just as in Foust and Newport the State had no legitimate interest in imposing punitive damages, a felony conviction against the Church would serve no legitimate, let alone compelling, government interest. The true victims of any such punishment would be Church members and contributors.19

The historical fact that in no reported case has a church in this country ever been criminally convicted stands as irrefutable evidence that such prosecutions are not necessary to protect the State's interest in enforcing its criminal laws. The fact that for two centuries prosecutors have avoided taking such a draconian step as indicting a church for a crime shows that prosecutors have not perceived a compelling interest in doing so, as well as their respect for religious liberty. The fact that this very St ate Attorney chose to indict only the Reverend Henry Lyons, but not his Church, in the face of that Church's defiant ratification of Reverend Lyons' acts, raises the troubling question of why the instant indictment was brought against FSO, and not

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19 Indeed, the forced reallocation of funds to pay such an award would create a breach of faith between the Church and its adherents. Just as the state cannot intervene to adjudicate disputes between a church and its members over matters of faith, organization and administration, see, e.g., Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976), the state cannot force the Church to reallocate its funds away from their intended religious purposes and thereby set the stage for an internal dispute within the Church.

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individuals.

The Court need not reach that troubling question, however. RFRA points the way to the proper resolution of this case. Because the State could have protected its legitimate interests by the less restrictive means, including indicting the individuals responsible for the specific acts alleged to be criminal, the prosecution against the Church itself should be dismissed.

II. CRIMINAL PROSECUTION OF THE CHURCH FOR THE ACTS OF ITS CLERGY AND STAFF IN ATTEMPTING TO PROVIDE SPIRITUAL ASSISTANCE FOR LISA McPHERSON AND FOR FARING TO REFER HER TO A PSYCHIATRIC HOSPITAL AGAINST HER CLEARLY EXPRESSED RELIGIOUS BELIEFS VIOLATES THE FIRST AMENDMENT AND FLORIDA RFRA

As we have shown, the criminal information and affidavit supporting it charge as criminal the acts of church staff in assisting Lisa McPherson's religious-based decisions to leave Morton Plant Hospital and to reject psychiatric treatment; in attempting to provide spiritual assistance to Ms. McPherson, consistent with Ms. McPherson's decision on November 18, 1995 to decline treatment at Morton Plant Hospital and to "go with my friends from the congregation;" and in failing to refer Lisa McPherson for psychiatric treatment when her psychotic-like behavior became more pronounced. As we have shown, these acts were consistent with deeply held religious beliefs of the Scientology religion, and oflisa McPherson herself.

In fact, as even the Strope affidavit makes clear, Lisa McPherson chose to go with her co-religionists to the FSO for the sole and express purpose of receiving spiritual assistance pursuant to Scientology religious beliefs and practices, and not to receive medical treatment of any kind. It is equally clear that every act that Lisa's co-religionists undertook with respect to Lisa during the period November 18 - December 5, 1995 at the FSO was done as part of a

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religious process to deal with a spiritual condition known in Scientology as PTS Type III. Thus, Janis Johnson and others informed Dr. Minkoff that Ms. McPherson "was a 'type three' meaning psychotic" (Strope Aff., p. 9), invoking a term they both understood to describe a spiritual condition pursuant to the Scientology religion, and not a medical condition. Indeed, no physical symptoms emerged until December 1. See Strope Aff. 20

It is a fundamental violation of the religious free exercise rights of the Church and its members, as protected by Florida RFRA, to impose criminal sanctions against it for these acts of its clergy, staff, and adherents. As the charging affidavit of Agent Strope acknowledges, and as the hospital records demonstrate, Ms. McPherson affinnatively adhered to her Church's strongly held religious views against psychiatric treatment, and adamantly rejected it when she was brought to Morton Plant Hospital. The medical staff at the hospital found she was competent to make that decision, and respected her religious choice. So must the Court.

The acts of Lisa's co-religionists (and of Lisa) fall precisely within the definition of "exercise ofreligion" set forth in RFRA:

Exercise of religion means an act or refusal to act that is substantially motivated by a religious belief, whether or not the religious exercise is compulsory or central to a larger system of religious belief.

Fla. Stat. § 761.02(3).

The criminal charges in this case directly burden the free exercise rights not only of

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20 When Janis Johnson concluded that Lisa had developed a physical condition that appeared to require medical attention, she took her to the hospital, albeit too late. That Johnson and perhaps others may have been negligent in failing to recognize the seriousness of Lisa's physical condition fast enough or in delaying bringing her to the hospital is indeed lamentable, even if it can be explained by the unfortunately stressfUl circumstances created by the entire episode. The negligence of such individuals, however, cannot supply a basis for criminally charging the Church, especially in the face of RFRA, for the reasons outlined in Point I, ante, and Point III, post.

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the individual Scientologists involved, but of all Scientologists and of the Church itself.

According to these charges, neither the Church nor Scientologists may exercise their religious beliefs requiring spiritual assistance with respect to "PTS Type III" behavior, upon pain of criminal prosecution and conviction. Rather, the Church and its followers must agree to refer all Scientologists experiencing such a condition to psychiatrists, contrary to their own wishes and fundamental religious precepts. It is hard to imagine a more direct interference with religious free exercise. Not only is the Church threatened with criminal punishment because its staff members exercised their religious beliefs, but all Scientologists will be severely chilled from exercising such beliefs in the future, and could be compelled to violate their beliefs and subject themselves to psychiatric treatment, anathema to their religion, for fear of criminal prosecution and conviction.

The State cannot meet the strict scrutiny applied under RFRA to the imposition of such a burden upon religious free exercise. Rather, as it does with respect to the objections of the Christian Science religion to medical care for physical ailments and to Jehovah's Witnesses to blood transfusions, the State must accommodate the religious beliefs and practices of the Scientology religion. Indeed, there is far less of a compelling government interest in burdening Scientology's spiritual assistance with respect to mental conditions and objections to psychiatry than exists with respect to the beliefs and practices of religions such as Christian Science and Jehovah's Witnesses, where the refusal to accept medical treatment can and often does lead directly to death. Yet the State accommodates the latter beliefs;21 afortiori, it must accommodate the beliefs and practices of Scientology.

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"Even where prosecutors have brought criminal charges against Christian Scientists or Jehovah's Witnesses where their spiritual healing allegedly led to the death of a child, in no case was the Christian Science or Jehovah's Witness Church criminally charged.

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Thus, where an adult declines medical treatment even for life threatening physical ailments, on the basis of sincerely held religious beliefs, and seeks instead to pursue spiritual healing, the spiritual healers cannot be found liable even on a civil claim. Baumgartner v. First Church of Christ, Scientist, 141 Ill. App. 3d 898, 490 N.E.2d 1319, 1326, cert, denied, 107 S.Ct. 317 (1986) ("a competent adult has the right under the first amendment to refuse medical treatment when it conflicts with his religious beliefs"). In Baumgartner, the court affirmed the dismissal of a complaint against the Christian Science Church by the estate of a man who died while voluntarily undergoing Christian Science faith healing instead of ordinary medical treatment.

The court rejected the estate's claims of medical malpractice, Christian Science malpractice, ordinary negligence, and intentional and reckless disregard of safety, holding that the First Amendment barred any such claims:

For the court to determine whether defendants breached any duty owed to decedent would require a searching inquiry into Christian Science beliefs and the validity of such beliefs. As established above, such an inquiry is precluded by the first amendment.

Whether or not defendants negligently or intentionally applied church doctrine is not a justiciable controversy.

Id., 490 N.E.2d at 1325, 1326. See also Lewis v. Holy Spirit Association, 589 F. Supp. 10, 12 (D. Mass. 1983); Katz v. Superior Court, 73 Cal. App. 3d 952, 141 Cal.Rptr. 234 (1977).

Afortiori, where the question is not the declination of medical treatment for a physical illness,22 but rather the provision of spiritual assistance and the refusal to participate in psychiatric treatment for so-called psychological conditions, the religious choices of the Church and its adult parishioners - including Lisa McPherson herself- must be protected under the First

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22 As we have seen the Scientology religion affirms the use of the medical profession to cure physical ailments. Reiss Aff., śś 44, 45.

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Amendment and RFRA.

In Nally v. Grace Community Church, 47 Cal.3d 278, 253 Cal.Rptr. 97 (1988), cert. denied, 109 S.Ct. 1644 (1989), the California Supreme Court held that religious counselors and churches cannot be held liable for continuing to provide religious counseling to an emotionally disturbed parishioner, or for failing to refer such a parishioner to a "mental health professional," even where it is foreseeable that the parishioner might imminently commit suicide.

While the Nally court interpreted state tort law, it strongly suggested that imposition of liability in such circumstances would be "quite possibly unconstitutional" because "[s]uch a duty would necessarily be intertwined with the religious philosophy of the particular denomination or ecclesiastical teachings of the religious entity." 253 Cal.Rptr. at 109.

Under RFRA, Florida may not criminalize the very kind of religious-based conduct California refused to recognize as a tort in Nally. That the State has no compelling interest in prohibiting churches from providing religious or spiritual healing for "psychological" conditions, even severe ones, is made manifest by the fact that Florida has exempted religious counselors from the regulatory and licensing requirements otherwise reserved for "mental health" therapists. Fla. Stat. § 491.014. Even more telling, Florida has specifically excepted churches providing spiritual counseling from the provisions of the Florida Adult Protective Services Act. Fla. Stat. §§415.101-415.113 (1998):

Nothing in ss. 415.101 - 415.112 shall be construed to mean a person is abused, neglected, or in need of emergency or protective services for the sole reason that the person relies upon and is, therefore, being furnished treatment by spiritual means through prayer alone in accordance with the tenets and practices of a recognized church or religious denomination...

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Fla. Stat. § 415.113. Indeed, this statute would appear to preclude Count I of the criminal charges in this case, both as a direct exemption, and as a clear indication, under RFRA, that Florida has no compelling interest in criminally prosecuting the Church for providing spiritual assistance even to a purportedly "disabled" person.23

Hermanson v. State, 604 So. 2d 775 (Fla. 1992) is directly on point.24 In Hermanson, the Florida Supreme Court held that the religious and spiritual treatment exemption to Florida's Act for Protective Services for Abused and Neglected Children, Fla. Stat. §415.503(9)(f), when read in pari materia with Florida's criminal child abuse statute, Fla. Stat. §827.04, precludes criminal prosecution for spiritual treatment of a child leading to death. The Court found that the State had not clearly legislated a policy of criminal liability for spiritual treatment of children, and that, in the absence of a clear legislative mandate, due process required reversal of a conviction for criminal child abuse because the statutory scheme was void for vagueness.

The statutory scheme in this case parallels that in Hermanson. Here, Fla. Stat. §415.113 provides a religious exemption similar to that established in Fla. Stat. § 415.503(9)(f) (the Hermanson exemption). Here, Section 415.113 must be read in pari materia with Florida's criminal disabled adult abuse statute, Section 825.102, to preclude criminal prosecution for spiritual treatment of a disabled adult pursuant to religious belief, for the same due

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23 A similarly dispositive exception is provided in Florida's statute respecting practicing medicine without a license. Section 458.303(1)(g), Florida Statutes. Separate motions have been filed concurrently to dismiss each count on the basis of the exemptions for religious practice, as well as other non-RFRA grounds.

24 The Church's separate motion to dismiss Count 1 relies precisely on Hermanson, inter alia. Our point in discussing it here is to show, as stated in the text, that Florida has articulated no interest, compelling or otherwise, in criminalizing spiritual treatment under Section 825.102, Florida Statutes.

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process/vagueness reasons as set forth in Hermanson.

Hermanson is especially controlling in light of RFRA. The State's failure to clearly articulate a policy of criminal liability for spiritual treatment of children and disabled adults - even those suffering fiom life threatening physical medical conditions - demonstrates dramatically that the State has not asserted a compelling state interest in bringing such prosecutions, as RFRA requires.

In this case, of course, the medical personnel at Morton Plant Hospital decided to respect the religious preferences of the Church and of Lisa McPherson. See Stilo Aff., Ex. C. Her tragic death, due to causes other than her rejection of psychiatric treatment for religious reasons and other than the spiritual assistance offered her by her co-religionists, does not alter the fact that that determination was the only constitutionally permissible decision.

III. IMPOSITION OF CRIMINAL LIABILITY UPON THE CHURCH IS ESPECIALLY IMPERMISSIBLE UNDER RFRA BECAUSE THE CHARGES ARE FOUNDED UPON A THEORY OF VICARIOUS LIABILITY AND THE CHURCH DID NOT AUTHORIZE, DIRECT, OR RATIFY THE ALLEGEDLY NEGLIGENT ACTS OF JANIS JOHNSON AND DR MINKOFF

We have shown that the acts of the Church's staff members with respect to Lisa McPherson, as set forth in Agent Strope's affidavit, were undertaken pursuant to the strongly held religious beliefs and practices of those individuals, as well as of Lisa McPherson herself.

The Strope affidavit also alleges that Janis Johnson and perhaps several other staff members in effect acted negligently in not timely recognizing or acting upon the onset of serious physical symptoms with respect to Ms. McPherson. In particular, Agent Strope alleges that Janis Johnson and others delayed at least several hours, and perhaps several days, in bringing Ms. McPherson to a hospital, and that that negligence may have resulted in her death.

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In addition, Agent Strope alleges that, in the course of providing spiritual assistance to Lisa McPherson for her "PTS Type III" condition, Janis Johnson acted improperly in giving Lisa McPherson injections of magnesium chloride,25 and that Dr. Minkoff, who was not even a staff member FSO, improperly prescribed chloral hydrate without personally observing Lisa.26

It is especially egregious to charge the Church for these acts because the charges are founded upon a theory of vicarious liability. Neither the charges nor the Strope affidavit even attempt to allege that the Church itself directed Janis Johnson to administer injections without proper medical authority, or, as Strope alleges, to improperly obtain a prescription from Dr. Minkoff. Nor does the State allege that the Church authorized or directed Johnson to act negligently by not bringing Ms. McPherson to the hospital in a timely manner when she manifested deterioratingphysicaI symptoms in the last two or three days. Nor could the State in good faith make such allegations. As the Reiss affidavit makes clear, medical examination and diagnosis should be sought where needed. Reiss Aff., śś 44-45, 56, 61(G). As Mr. Hubbard wrote, "when a preclear comes to us because he wishes to be physically cured of a real current illness or malfunction, we do not serve him well if [when] we see he does not respond to auditing we do not require a full physical clinical study of his body until a real illness is found and treated.

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25 Injectable magnesium chloride is a mineral and is not and cannot be used to treat illness. It thus does not meet the definition of "medicine," which is defined as a substance "used in treating a disease or illness." Random House Unabridged Dictionary (2nd Ed. 1994). Indeed it is not even mentioned in the Physician's Desk Reference (1998 ed.). While it may not be injected without prescription, there is no claim that the Church authorized or directed Janis Johnson to fail to obtain a prescription before authorizing an injection of magnesium chloride to Lisa McPherson.

26 Dr. Minkoff's alleged act hardly constitutes practicing medicine without a license, since he had a license.

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If we already know he is ill, we should call in the doctor." Id., ś 44.

Since these acts were neither directed, authorized nor ratified by the Church, the only basis for holding the Church criminally liable for such acts is on a theory of vicarious liability. Whether analyzed under RFRA or under well established case law under the First Amendment, such a theory of criminal liability against a Church is unsupportable.

The State certainly has no compelling interest in holding a Church criminally liable, and thereby substantially burdening the free exercise rights of the Church and its followers in the manifest and substantial ways described above, at the least where the Church did not direct the very acts alleged as criminal. Indeed, the State has no interest, compelling or otherwise, in applying its criminal sanctions to a person or entity who did not act in a knowing and willfull manner, absent, at least, a clear legislative mandate: "The existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence," Dennis v. United States, 341 U.S. 494, 500 (1951), and its elimination is highly disfavored in our jurisprudence. Morissette v. United States, 342 U.S. 246 (1952). The deterrence function of the criminal law certainly is not fUrthered by such a prosecution, since the Church need not be deterred from condoning conduct it already condemns. Similarly, the State can have no compelling interest in punishing a Church and its members for the errant, albeit well-meaning, conduct of the Church's staff. Indeed, the general rule in Florida is that corporations are not criminally liable for the acts of their employees unless they "authorized or acquiesced in" the acts in issue. State v. Municipal Auto Sales, 222 So. 2d 278, 279 (3rd DCA. 1969).

The sole purpose of imposing vicarious criminal liability against any institution is

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to pressure it to employ more strict forms of supervision or control over its personnel. See United Stares v. A&P Trucking Co., 212 U.S. 121, 126 (1958) (vicarious corporate criminal liability is designed to ensure that "pressure is brought on those who own the entity to see to it that their agents abide by the law"). In the context of this case, however, the State may not constitutionally assert an interest in compelling a church to exercise closer control or greater discipline over the actions of its clergy and staffmembers. To impose such control over churches would be to impose a substantial burden upon churches' determinations of their own governance, a matter at the core of their flee exercise rights. As we have shown, such a burden can be mandated by the State only in furtherance of a compelling state interest, and only by the least restrictive means.

Here, the State not only has no compelling interest in dictating matters of church governance, supervision, and discipline of its clergy and staff, but such an interest is itself illegitimate under the First Amendment. Matters of "discipline, faith, internal organization, or ecclesiastical rule, custom, or law" are exclusively within the domain of the Church, and may not be the subject of judicial control. Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 713 (1976). Churches retain "power to decide for themselves, flee from state interference, matters of church government..." Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 116 (1952). In NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979), the Supreme Court limited application of the National Labor Relations Act so as to exclude coverage of lay teachers in Catholic schools, because determination of employment practices, discipline, and conduct with respect even to non-religious employees threatened to violate the religion clauses of the First Amendment. The Court warned, "It is not only the conclusions that may be reached by the Board which may impinge on rights guaranteed by the Religious Clauses, but also the very process of

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inquiry leading to findings and conclusions." 440 U.S. at 502. The Fourth Circuit subsequently applied Catholic Bishop to bar application to religious bodies of Title VII of the federal civil rights statutes barring discrimination in employment, 42 U.S.C. § 2000e et seq., stating "[b]ureaucratic suggestion in employment decisions ofa pastoral character, in contravention of a church's own perception of its needs and purposes, would constitute unprecedented entanglement with religious authority." Rayburn v. General Conf. of Seventh-Day Adventists, 772 F.2d 1164, 1171 (4th Cir. 1985), cert. denied, 478 U.S. 1020(1986). See also Scharon v. St. Luke's Episcopal Presbyterian Hospitals, 929 F.2d 360 (8th Cir. 1991) (review of personnel decisions regarding clergy under Title VII would require excessive entanglement in religious affairs).

Accordingly, numerous courts have refused to permit even civil claims against churches based upon theories that the churches should have exercised greater care and supervision over their clergy or staff.

When a civil court undertakes to compare the relationship between a religious institution and its clergy with the agency relationship of the business world, secular duties are necessarily introduced into the ecclesiastical relationship and the risk of constitutional violation is evident.

Swanson v. Roman Catholic Bishop ofPortland, 692 A.2d 441, 444 (Me. 1997). See also Pritzlaff v. Archdiocese of Milwaukee, 533 N.W.2d 780 (Wis. 1995), cert. denied, 516 U.S. 1116 (1996) (holding torts of negligent hiring, retention, and supervision as against church barred by First Amendment due to excessive entanglement and chilling effect of award of damages); Gibson v. Brewer, 952 S.W.2d 239, 247 (Mo. 1997) ("Adjudicating the reasonableness of a church's supervision of a cleric - what the church 'should know' - requires inquiry into religious doctrine," creating excessive entanglement, inhibiting religion, and endorsing a particular model of

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ecclesiastical supervision); Schmidt v. Bishop, 779 F. Supp. 321, 328 (S.D.N.Y. 1991) (First Amendment bars action against Church for negligent hiring, retention and supervision because pastor is not analogous to common law employee and question of church's supervision involves entanglement in intridate principles of church governance; any award of damages "would restrict the church's freedom to interact with its clergy in the manner deemed proper by ecclesiastical authorities and would not serve a societal interest sufficient to overcome the religious freedoms inhibited"); Byrd v. Faber, 565 N.E.2d 584, 589 (Ohio 1990) (same); Tichenor v. Roman Catholic Church of New Orleans, 32 F.3d 953, 960 (5th Cir. 1994) (Church not liable for failure to supervise when employee engages in independent criminal conduct that results in plaintiffs injuries).

Florida's Fourth District Court of Appeals was "persuaded by the reasoning expressed in Swanson" and the "additional case law" cited above, finding it "compelling," Doe v. Evans, 718 So. 2d 286, 290, 291 (4th DCA 1998), stating:

In a church defendant's determination to hire or retain a minister, or in its capacity as supervisor of that minister, a church defendant's conduct is guided by religious doctrine and/or practice. Thus, a court's determination regarding whether the church defendant's conduct was "reasonable" would necessarily entangle the court in issues of the church's religious law, practices, and polices. "Hiring" in traditional sense does not occur in some religions, where a person is ordained into a particular position in the church, and assigned to one parish or another. A court faced with the task of determining a claim of negligent hiring, retention, and supervision would measure the church defendants' conduct against that of a reasonable employer, a proscribed comparison.

Id. at 291. 27

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27 The Fourth District would find an exception where the state seeks to "protect its children against injuries caused by pedophiles by authorizing civil damages against a church that knowingly (continued...)

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If First Amendment principles, standing alone, are sufficient to bar imposition of even civil liability upon a church under a respondeat superior or vicarious liability basis, then certainly the First Amendment, buttressed by the stringent standards of Florida RFRA, bars criminal prosecution under a similar theory. As the Eleventh Circuit emphasized in declaring Clearwater's solicitation ordinance unconstitutional on the grounds, inter alia, that it authorized "interference [inl matters of church government as well as those of faith and doctrine," "when combined with the imposition of criminal enforcement mechanisms, the regime may become doubly offensive." Church of Scientology Flag Service Organization v. City of Clearwater, 2F.3d at 1537, 1538. Prosecuting the Church for the actions of individual Scientologists is too attenuated a means to achieve the ends of controlling the actions of individual Scientologists, and therefore it does not advance a compelling governmental interest and it is not the least restrictive means of achieving that interest. Prosecution of the individuals involved, rather than the Church itself, is a less restrictive means for achieving the government's interests.

Indeed, even with respect to secular organizations engaged in political or social speech or advocacy, application of ordinary principles of respondeat superior liability is prohibited where such application threatens to burden the rights of association or speech. In NAACP v. Claiborne Hardware Co., 458 U. S. 886 (1982), the Supreme Court held that the NAACP could not be held liable in tort for the violent acts of its agents, including its Field Secretary, because the organization had not authorized, directed or ratified such acts.

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27 (...continued)(including should know) creates a situation in which such injuries are likely to occur." Id. at 289 (emphasis added). Such an exception is, ofcourse, not applicable here, where the State seeks to impose criminal liability on a respondeat superior basis for the negligence of Janis Johnson that the Church did not authorize, direct or ratify.

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Claiborne Hardware involved a sometimes violent black community boycott of white-owned businesses in Mississippi. The state trial court not only held the boycotters liable under Mississippi law for the loss of business and goodwill caused by the boycott, but found the NAACP vicariously liable for acts of Charles Evers, a Field Secretary for the NAACP and an organizer of the boycott. The Supreme Court reversed. In determining whether Evers' relationship with the NAACP justified the imposition of derivative liability, the Court considered whether "Charles Evers or any other NAACP member had either actual or apparent authority to commit acts of violence," Claiborne Hardware, 458 U.S. at 930, and whether the NAACP ratified or had specific knowledge of any violence, see id. at 930-31. Finding that while the NAACP had supported the boycott itself, which was protected under the First Amendment, it had in no way authorized or ratified violence in support of the boycott, the Court held that "to impose liability ... would impermissibly burden the rights of political association that are protected by the First Amendment." 28

Claiborne Hardware limits derivative liability to protect freedom of association. The reach of vicarious liability is potentially endless, and crushing verdicts, civil or criminal, based on such attenuated claims can easily silence organizations engaged in protected association, speech and advocacy. As the Court explained in Claiborne Hardware: "To equate the liability of the national organization with that of the Branch in the absence of any proof that the national authorized or ratified the misconduct in question could ultimately destroy it. The rights of political association are fiagile enough without adding the additional threat of destruction by

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28 The Court made it plain that this holding was wholly independent of its separate holding that Evers' leadership and organization of the boycott, even when combined with his emotionally charged rhetoric, did not justify imposing liability on him for violent acts that occurred weeks or months after one of his speeches.

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lawsuit." Claiborne Hardware, 458 U.S. at 931-32 (quoting NAACP v. Overstreet, 384 U.S. 118, 122 (1966) (Douglas, J., dissenting from dismissal of writ of certiorari)) (internal quotation marks omitted).29

The same concern for the associational rights of innocent members of organizations has mandated application of strict scrutiny to efforts to impute wrongful conduct by elements within an organization to the organization as a whole. Thus, in Healy v. James, 408 U.S. 169 (1972), the Supreme Court found that a campus S.D.S. Chapter could not be denied recognition by a university administration simply because of its association with other S.D.S. groups across the country, some of which called for unlawful action. Recognizing the principle articulated in Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957), that restrictions placed upon an organization infringe the associational rights of its members, the Court held that the local chapter was entitled to recognition as long as it agreed to abide by university rules.

Labor law provides a usefUl area for comparison in determining the scope of vicarious liability of a religious organization. As early as 1922, the Supreme Court refUsed to hold an international union liable for the conduct of local strikers during a labor dispute. United Mine Workers of America v. Coronado Coal Co., 259 U.S. 344 (1922). After examining the

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29 Cases following Claiborne Hardware include In re Asbestos School Litigation, 46 F.3d 1284, 1290-91 (3d Cir. 1994) (holding that Claiborne's standard was "meant to have general applicability," even to a business corporation such as Pfizer. Pfizer's membership in an association known as the Safe Building Alliance ("SBA"), which had disseminated to plaintiffs misleading information about asbestos, did not render Pfizer "liable for any wrongful conduct committed by the SBA or its members ... unless it can be shown that Pfizer's actions taken in relation to the SBA were specifically intended to further such wrongful conduct"); Hvamstad v. Suhler, 727 F. Supp. 51 1, 516 (D. Minn. 1989) ("the Supreme Court has limited the extent to which persons may be criminally punished or subjected to civil liability for the unlawful behavior of their associates") (citing to Claiborne), aff'd, 915 F.2d 1218 (8th Cir. 1990); Tsilimos v. NAACP, 370 S.E.2d 816, 818 (Ga. 1988). And see the labor cases, cited [post?] at n.30.

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policies of the International Union as embodied in its Constitution, the Court concluded that the larger organization had no duty to control the strikers and that the union workers who were on strike were not carrying out the policies of the International Union. 259 U.S. at 395. The Court's concern for the associational rights of the membership as a whole was emphasized in the second Coronado Coal decision, Coronado Coal Co. v. United Mine Workers of America, 268 U.S. 295 (1925) [Coronado II]. The Court stated that before imposing liability on an association of 450,000 men, it had to be shown that "what was done was done by their agents in accordance with their fundamental agreement ofassociation." 268 U.S. at 304. Based on the absence of such proof, the Court affirmed a directed verdict for the International Union in the Coronado Coal case.'"

The Supreme Court has acted with similar care in the context of claims brought pursuant to the civil rights statute, 42 U.S.C. §1983. In Rizzo v. Goode, 423 U.S. 362 (1976), the Court vacated an injunction against the Philadelphia Police Department to rectify alleged police brutality, on the ground that the plaintiff had failed to show a pattern of abuse pervading the organization as a whole. As the Court later observed in discussing Rizzo:

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30 Indeed, in a variety of recent cases courts have applied the principles of Claiborne Hardware to protect the associational rights of labor unions and their members. Thus, in Presrite Corp. v. United Steelworkers of America, No. 48113, 1985 WL 6829 (Ohio Ct. App. 8 Dist. June 6, 1985), the court held that punitive damages could not be imposed against the United Steelworkers union because there was no evidence that the union authorized or ratified any acts of malice. Id at *13 (quoting Claiborne, 45

8 U.S. at 930-31). See Ex parte United Steelworkers of America, Local Union 7533 v. United Steelworkers of America, 536 So.2d 32 (Ala. 1988) (holding under Claiborne that union's liability must be based on evidence that union itself authorized, participated in, or ratified the contemptuous acts and affirming judgment because evidence was sufficient to support finding that union itself authorized or ratified the unlawful acts), cert, denied, 490 U.S. 1046, 109 S.Ct. 1954 (1989); United Steelworkers of America AFL-CIO-CLC v. O 'Neal, 437 So.2d 101, 102 (Ala. 1983) (plaintiff argued that union's failure to repudiate acts of violence, in addition to providing legal counsel for those charged with strike, served as ratification of the violence; judgment for plaintiff reversed because there was no evidence that union authorized or ratified acts of violence).

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Collective responsibility should be limited to instances in which a concerted design existed to accomplish a wrongful objective.

NAACP v. Claiborne Hardware, 458 U.S. at 920, n.55. Following Rizzo, in Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978), the Court held that municipalities could not be held liable for damages under §1983 "unless action pursuant to official municipal policy of some nature caused a constitutional tort." 436 U.S. at 691. The Court specifically refused to permit municipal liability on a respondeat superior basis, noting that the traditional justifications of spreading the cost of injuries and encouraging employers to control their employes' actions were not sufficient to place such a burden upon municipal government. 436 U.S. at 694. Thus, to be liable under §1983 for a constitutional tort committed by an employee, a municipality must have either commanded the unlawful result or adopted a policy which inevitably produced such a consequence. 31

The approach adopted by the Court in Claiborne and the other cases described above provides the proper framework for considering the claims against the Church here. The Church cannot be tainted by the negligent actions of a few unless the Church approved, authorized, or ratified the alleged criminal conduct. A heavy burden rests on the State to prove that the alleged acts were, in fact, committed pursuant to Church direction, rather than by a few wayward staff members. Because that stringent burden not only cannot be met, but is not even alleged, the principles embodied in Claiborne and its predecessors, as reinforced by Florida

_______________ 31 An instructive case in the religious arena is O 'Moore v. Driscoll, 28 P.2d 438 (Cal. District Court of Appeal 1933). O'Moore sued a Dominician Order of the Catholic Church claiming that the Order's President, Driscoll, had ordered O'Moore, a member of the Order, to go to a Church- operated asylum in Montreal, where he was confined against his will for more than two years, administered drugs, harassed and forced to sign documents. Id. at 440. The Court held that the Order could not be held liable because the acts alleged were not "in line with the accomplishment of the purpose for which [the Order] exists"- i.e., to spread the gospel. Id. at 442.

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RFRA, demand that these claims of vicarious criminal liability against the Church be dismissed.

Given the possibility that religious doctrine may be subject to varying interpretations within the membership ofa church, it would be impermissible to burden the constitutional rights of religious congregations by holding them collectively liable for criminal conduct absent clear evidence that the Church authorized such conduct. An organization's failure to take affirmative steps to control the criminal conduct of its members is not in itself sufficient to create collective responsibility. E.g, Rizzo v. Goode, 423 U.S. 362, 376-78 (1976) (§1983 suit); United Mine Wbrkers of America v. Coronado Coal Co., 259 U.S. 344, (1922). Thus, the Church may not be held liable in this case because it clearly did not authorize or ratiy the criminal conduct alleged.

CONCLUSION

For the reasons stated, the felony information brought against FSO should be dismissed in its entirety.

Dated: May , 1999 Respectfully submitted,

Of Counsel: LEE FUGATE ERIC M. LIEBERMAN FL Bar No. 170928 Rabinowitz, Boudin, Standard, SPN # 00015107 Krinsky & Lieberman, P.C. MORRIS WEINBERG, JR. 740 Broadway, 5th Floor FL Bar No. 486401 New York, New York 10003 LAURA L. VAUGHAN (212) [xxx-xxxx] FL Bar No. 843660 ZUCKERMAN, SPAEDER, TAYLOR & EVANS, L.L.P. 401 E. Jackson Street, Suite 2525 Tampa, Florida 33602 (813) [xxx-xxxx]

Counsel for Church of Scientology Flag Service Organization

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