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Scientology Crime Syndicate

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.

_______________
	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
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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,
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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, 2.
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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 ofNew 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 Eastern
Orthodox Diocese v. Milivojevich, 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 4. 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.,
 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.,  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'
__________________________________________________________________________

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 
__________________________________________________________________________

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 ofBoston, 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.,  6.

The ultimate aim of Scientology is a civilization without insanity, crime
or war. Id.,  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,  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,  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
__________________________________________________________________________

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.,  11.

The principal religious practices in Scientology are "auditing" and
"training." Id.,  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.,  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.,  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.,  31.

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

       3 As Rev. Reiss explains, "the mind records data using what are
called 'mental image pictures."' Id.  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.,  24.
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spiritual being." Id.,  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,  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.,  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.,  48-50. In the case of certain kinds of
severe psychotic behavior, denominated in Scientology as "PTS Type III"
(id.,  55)4 the necessary spiritual process is called the "Introspection
Rundown." Id.,  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.,  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.,  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., 
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.,  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
_______________

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

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

	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.

Affidavit of Glen Stilo,  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,
__________________________________________________________________________

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.  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  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.,  56-60. Accordingly, and pursuant to Scientology practices
(as stated by Strope), she was
_______________

       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.,  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,  40, 41.
__________________________________________________________________________

"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,  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.,  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
 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
_______________

       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,  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.,  22, 24.
__________________________________________________________________________

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
sleep. 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.
__________________________________________________________________________

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.
__________________________________________________________________________

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
_______________

       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...)
__________________________________________________________________________

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
_______________

        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.
__________________________________________________________________________

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
_______________

        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...)
__________________________________________________________________________

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
_______________

        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 buggies).

        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.
__________________________________________________________________________

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.,  5. 15
_______________

       "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...)
__________________________________________________________________________

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.,  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.,  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
_______________

        "(... 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."
__________________________________________________________________________

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
__________________________________________________________________________

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 fiom 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
__________________________________________________________________________

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
_______________

       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.
__________________________________________________________________________

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)
_______________

       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.
__________________________________________________________________________

(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 allege, 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 the 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
_______________

        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.
__________________________________________________________________________

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
__________________________________________________________________________

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
__________________________________________________________________________

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 State 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
_______________

       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.
__________________________________________________________________________

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
__________________________________________________________________________

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
_______________

       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 oflisa' 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.
__________________________________________________________________________

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.
_______________

       "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.
__________________________________________________________________________

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
_______________

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

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...
__________________________________________________________________________

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
_______________

       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.
__________________________________________________________________________

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.
__________________________________________________________________________

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.,  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.
_______________

        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.
__________________________________________________________________________

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

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 ofa
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 
__________________________________________________________________________

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 
__________________________________________________________________________

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
_______________

       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...)
__________________________________________________________________________

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.
_______________

       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 ofJanis
Johnson that the Church did not authorize, direct or ratify.
__________________________________________________________________________

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 ofviolence,"
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
_______________

        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.
__________________________________________________________________________

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
_______________

      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.
__________________________________________________________________________

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:
_______________

       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, 458 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).
__________________________________________________________________________

	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.
__________________________________________________________________________

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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