CAN's Appeal against the Scott Judgement

BRIEF FORMAT CERTIFICATION
     Pursuant to Ninth Circuit Rule 32(e)(4), I certify that Defendant/Appellant
Cult Awareness Network's Opening Brief is proportionally spaced, has a typeface 
of 14 points, and contains 13,259 words.

                                                        ______________________
                                                           Ramona M. Emerson
Dated:  September 3, 1996

(table of contents page 1)

(table of contents page 2)

TABLE OF AUTHORITIES

Cases

Adams v. Pate, 445 F.2d 105 (7th Cir. 1971) 29
American Key Corp. v. Cole Nat'l Corp., 762 F.2d 1569 (11th Cir. 1985) 38
Brown v. Washington, 661 F. Supp. 1011 (N.D. Ill. 1987) 29
Citizens Against Rent Control for Fair Housing v. Berkeley, 454 U.S. 290, 102 S. Ct. 434, 70 L.
Ed. 2d 492 (1981) 26
Daubert v. Merrell Dow Pharmaceutical, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469
(1993) 37
Daubert v. Merrell Dow Pharmaceuticals, 43 F.3d 1311 (9th Cir.), cert. denied, 116 S. Ct. 189
(1995) 14
Faries v. Atlas Truck Body Mfg. Co., 797 F.2d 619 (8th Cir. 1986) 38
Feldman v. Simkins Indus., Inc., 679 F.2d 1299 (9th Cir. 1982) 14
Fikes v. Cleghorn, 47 F.3d 1011 (9th Cir. 1995) 14
Gillespie v. Civiletti, 629 F.2d 637 (9th Cir. 1980). 30
Green v. State Bar of Texas, 27 F.3d 1083 (5th Cir. 1994) 30
Hamm v. Camerota, 290 P.2d 713 (Wash. 1955) 19, 20
Hein v Chrysler Corp., 277 P.2d 708 (Wash. 1954) 24, 25
Houser v. Redmond, 586 P.2d 482 (Wash. 1978) (en banc) 24
Howard v. Topeka-Shawnee County Metro. Planning Comm'n, 578 F. Supp. 534 (D. Kan. 1983) 29
Johnson v. Shalala, 35 F.3d 402 (9th Cir. 1994) 14
Landes Const. Co. v. Royal Bank of Canada, 833 F.2d 1365 (9th Cir. 1987) 14
Mauch v. Kissling, 783 P.2d 601 (Wash. App. 1989) 22, 23, 24
McDowell v. Jones, 990 F.2d 433 (8th Cir. 1993); 31
Meza v. Lee, 669 F. Supp. 325 (D. Nev. 1987) 29
Money v. Great Bend Packing Co., 783 F. Supp. 563 (D. Kan. 1992) 32
NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958) 26
NAACP v. Claiborne Hardware Co., 458 U.S. 886, 102 S. Ct. 3409, 3435, 73 L. Ed. 2d 1215
(1982) 26, 27, 28, 29
Newton v. NBC, 930 F.2d 662 (9th Cir. 1990), cert. denied, 502 U.S. 866 (1991) 14
Nordstrom Credit, Inc. v. Dep't of Revenue, 845 P.2d 1331 (Wash. 1993) 19
Peck v. United States, 470 F. Supp. 1003 (S.D.N.Y. 1979) 32
Polk County v. Dodson, 454 U.S. 312, 102 S. Ct. 445, 70 L. Ed. 2d 509 (1981) 29
R.A.V. v. City of St. Paul, Minnesota, 505 U.S. 377, 112. S. Ct. 2538, 120 L. Ed. 2d 305 (1992) 27
Rinehart v. Wedge, 943 F.2d 1158 (9th Cir. 1991) 14
Rios v. Navarro, 766 F. Supp. 1158 (S.D. Fla. 1991) 30
Roletto v. Dep't Stores Garage Co., 191 P.2d 875 (Wash. 1948) 20
Scott v. Sears, Roebuck & Co., 789 F.2d 1052 (4th Cir. 1986) 36
Silverado S.S. Co. v. Prendergast, 31 F.2d 225 (9th Cir.), cert. denied, 280 U.S. 557 (1929) 24
Sluys v. Gribertz, 842 F. Supp. 764 (S.D.N.Y.), aff'd, 41 F.3d 1503 (2d Cir. 1994), cert. denied,
115 S. Ct. 1316 (1995) 32
Thorsted v. Kelly, 858 F.2d 571 (9th Cir. 1988) 14
United States v. Amaral, 488 F.2d 1148 (9th Cir. 1973) 33, 36
United States v. Basurto, 497 F.2d 781 (9th Cir. 1974) 31
United States v. Rahm, 993 F.2d 1405 (9th Cir. 1993) 14, 33, 34
United States v. Webb, 625 F.2d 709 (5th Cir. 1980) 35
Vollrath Co. V. Sammi Corp., 9 F.3d 1455 (9th Cir. 1993), cert. denied, 114 S. Ct. 2163 (1994) 14
Watts v. United States, 394 U.S. 705, 89 S. Ct. 1399, 22 L. Ed. 2d 664 (1969) 27
Wilson v. Boy Scouts of America, 784 F. Supp. 1422 (E.D. Mo. 1991), aff'd, Wilson v. United
States, 989 F.2d 953 (8th Cir. 1993) 23
Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 505 F. Supp. 1313 (E.D. Pa. 1980), aff'd in
part, rev'd in part, In re Japanese Elec. Products Antitrust Litigation, 723 F.2d 238 (3d Cir.
1983), rev'd on other grounds, Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986) 38
Statutes

26 U.S.C. 501 6
28 U.S.C. 1291 1
28 U.S.C. 1343 1
28 U.S.C. 1367 1
42 U.S.C. 1983 29
42 U.S.C. 1985 1, 2, 17, 29, 30, 39
Rules

Fed. R. App. P. 4 1
Fed. R. Evid. 702 10, 18, 32, 33, 34, 37, 40
Fed. R. Evid. 703 18, 32, 37, 38, 40
Treatises

Restatement (Second) of Agency 1 (1957) 20
Restatement (Second) of Agency, prefatory note to 219 (1957) 19
Constitutional Provisions

U.S. Const. amend. I 2, 5, 16, 17, 25, 27, 28, 29, 39

STATEMENT OF JURISDICTION

I. STATUTORY BASIS OF SUBJECT MATTER JURISDICTION
Plaintiff/Appellee, Jason Scott (" Mr. Scott"), brought claims against defendants, including Appellant Cult Awareness Network ("CAN"), for damages from an alleged conspiracy to violate Mr. Scott's civil rights under 42 U.S.C. 1985. The District Court had jurisdiction over this claim under 28 U.S.C. 1343. Mr. Scott also brought claims for negligence and outrage under Washington law. The District Court had supplemental jurisdiction over these state law claims under 28 U.S.C. 1367 as they form part of the same case and controversy as the federal conspiracy claim.
II. THE BASIS FOR CLAIMING THE JUDGMENT IS FINAL
This appeal follows from the following determinations in the district court: (1) the Order denying in part CAN's motion for summary judgment dated February 14, 1995 (CR 80) ; (2) the Judgment on Decision by the Court dated October 3, 1995 following the verdict of the jury (CR 204); and (3) the Order denying CAN''s motion for judgment as a matter of law or a new trial dated November 29, 1995 (CR 245). This Court has jurisdiction pursuant to 28 U.S.C. 1291.
III. ENTRY OF JUDGMENT / NOTICE OF APPEAL
As noted, Judgment was entered on October 3, 1995. CAN timely filed a motion for judgment as a matter of law or a new trial, which was denied on November 29, 1995. A Notice of Appeal was filed by CAN on December 28, 1995. (CR 252). Said notice was timely under Fed. R. App. P. 4(a)(4).

STATEMENT OF ISSUES

The specific questions presented for review are:

    1. Did the trial court err in refusing to give a jury instruction that (1) provided that not all acts by an agent subject a principal to liability and (2) required a finding that the alleged agent was acting as an agent at the time and with respect to the particular transaction out of which the claimed injury arose before the principal can be held vicariously liable where those issues were at the crux of the case?

    2. Did the trial court err in refusing to grant CAN's motion for summary judgment and motion for judgment as a matter of law because no principal-agent relationship can be found between a non-profit organization and an unpaid, part- time volunteer based on actions of which the organization had no knowledge, which the organization did not consent to or otherwise approve, and which were contrary to the policy of the organization?

    3. Did the trial court err by permitting vicarious liability to be imposed on an organization that engages in activity protected by the First Amendment (U.S. Const. amend. I) without any showing of authorization or ratification of the illegal act upon which liability is based?

    4. Did the trial court err by permitting CAN to be held vicariously liable under 42 U.S.C. 1985?

    5. Did the trial court err in finding that CAN conspired to deprive Mr. Scott of his civil rights under 42 U.S.C. 1985 although there was no proof even of any foreknowledge of the plan to abduct Mr. Scott let alone any agreement by CAN or its alleged agent to participate in the conspiracy?

    6. Did the trial court commit reversible error in admitting the testimony of an alleged expert who had no specialized knowledge, training, or experience about CAN, on subject matters that properly should have been within the province of the jury?

STATEMENT OF THE CASE

I. NATURE OF THE CASE AND COURSE OF PROCEEDINGS
This case arises out of a mother's efforts to help her children who had become involved with a church that the mother felt was destructive and was alienating her children from her. The mother, Kathy Tonkin, contacted Shirley Landa through a referral from the Seattle Community Service hotline. Ms. Landa in turn referred Ms. Tonkin to defendant Rick Ross to perform a deprogramming of Ms. Tonkin's two youngest sons. Defendants Ross, Charles Simpson, and Mark Workman, conducted a legal and successful effort with respect to Ms. Tonkin's two youngest sons. Ms. Tonkin then retained Ross to deprogram her eldest son, Mr. Scott, who had turned 18. Ross, Simpson, and Workman conducted a deprogramming of Mr. Scott. Ms. Tonkin and one of Mr. Scott's brothers was present. Unfortunately, Mr. Scott's deprogramming was conducted illegally and included the abduction and involuntary restraint of Mr. Scott at a house in Ocean Shores, Washington for five days. Mr. Scott escaped and subsequently brought this lawsuit alleging a conspiracy to deprive him of his civil rights, negligence, and outrage. CAN was named as a defendant on the basis that Ms. Landa was allegedly acting as an agent for CAN at the time she referred Ross to Ms. Tonkin. Ms. Landa was not named as a defendant. The crux of this appeal centers on this alleged agency relationship.

Mr. Scott filed his Complaint on January 14, 1994. (CR 1). CAN filed a motion for summary judgment principally related to the issue of agency and the adequacy of evidence relating to the conspiracy claim. (CR 44). The district court denied in part the summary judgment motion by Order dated February 14, 1995. (CR 80). The case was tried to a jury. Prior to trial, CAN filed a motion in limine to exclude Dr. Anson Shupe, a purported expert, from testifying on behalf of Mr. Scott. (CR 84). The motion was denied by Order of the district court dated September 21, 1995. (ER 16). After a six day trial, the jury rendered a verdict finding defendants Ross, Simpson, Workman, and CAN liable for negligence in the following percentages: Ross, 70%, Workman 10%, Simpson 10%, and CAN 10%. The jury further found that each of the defendants, including CAN, had been involved in a conspiracy to deprive Mr. Scott of his civil rights. The jury found CAN did not commit the tort of outrage, but that defendants Ross, Simpson and Workman did. The jury found Mr. Scott's total amount of damages to be $875,000. Finally, the jury awarded punitive damages on the conspiracy claim against Ross in the amount of $2,500,000, against Workman in the amount of $250,000, against Simpson in the amount of $250,000, and against CAN in the amount of $1,000,000.

CAN timely filed a motion for judgment as a matter of law or a new trial. (CR 214). CAN also filed for a stay of execution of the judgment pending appeal accompanied by a request to shorten time. (CR 212, 214). The Court denied the stay and the motion for judgment as a matter of law or a new trial. (CR 245). CAN filed a timely notice of appeal. (CR 252).

In light of the size of the judgment, CAN filed for protection under the bankruptcy laws of the United States. United States Bankruptcy Court for the Northern District of Illinois, No. 95 B 22133. On May 22, 1996, the bankruptcy court lifted the automatic stay to permit CAN to pursue this appeal.

Defendants Ross and Workman each filed a Notice of Appeal. (CR 248, 250). These appeals were consolidated by Order dated February 12, 1996. (CR 261). Mr. Ross and Mr. Workman also filed for protection under bankruptcy law. To date, however, neither Ross nor Workman has received permission from the bankruptcy court to pursue their respective appeals.

II. STATEMENT OF FACTS
A terrible thing happened to Jason Scott. He was subject to an illegal abduction and deprogramming effort. This appeal in no way questions the jury's or trial court's conclusions in that regard. But in reaching out to do justice for Mr. Scott, the jury and trial court did an injustice with respect to CAN. In an unprecedented and unsupportable finding, CAN was held responsible for the act of one of its unpaid volunteers. The act-a referral to a deprogrammer who performed an illegal, involuntary deprogramming-was one of which CAN had no knowledge, which was contrary to CAN policy, and which was not undertaken even under the apparent authority or involvement of CAN. Based on traditional notions of agency and conspiracy law and in light of the First Amendment associational and speech rights implicated by the actions upon which CAN's alleged liability is based, the judgment against CAN must be overturned.

A. CAN Had No Involvement in the Events at Issue
CAN is "a national non-profit organization founded to educate the public about the harmful effects of mind control as used by destructive cults." (ER 8). CAN has been granted tax-exempt status under 26 U.S.C. 501(c)(3) by the Internal Revenue Service. (RT 5/7). Its headquarters are in Illinois. (RT 5/7) CAN's paid staff consists of a full-time Executive Director and three part-time staff, all located at its Illinois headquarters. (RT 5/7).

CAN operates nationally through its Board of Directors ("Board") which sets policy for the organization. (RT 5/11). The Board is composed of an attorney, a psychologist, a neurologist, a physician, a person who runs a synagogue, and a homemaker from Texas. (RT 5/7-8). The Board is assisted by an advisory board that includes academics, and a member of the clergy. (RT 5/9). There is absolutely no evidence that any CAN board member had foreknowledge of any aspect of the planning or implementation of the deprogramming of Mr. Scott. Nor is there any evidence that the CAN Board in any way authorized or ratified the actions of Mr. Ross or any of the other defendants in Mr. Scott's abduction and deprogramming.

For a long time, CAN has had a specific Board policy against illegal, involuntary deprogrammings. (RT 5/11). This unequivocal policy dates back well before the incidents at issue to the time of CAN's predecessor organization, the Citizens Freedom Network. In a publication entitled "The History of the Citizens Freedom Foundation," CAN's predecessor wrote: "We do not engage in or support abduction or holding a person against his will." (ER 7). In fact, CAN has terminated employees for their involvement in illegal, involuntary deprogrammings. (RT 5/14-15). On the other hand, CAN does support legal, voluntary deprogrammings. But in so doing, CAN has been very careful to make clear the distinction between legal and illegal acts. For example, in CAN at a Glance, CAN states: "CAN recognizes the need for voluntary exit counseling/deprogramming as a means to restore critical thinking, and supports all legal efforts to protect individuals' freedom of choice." (ER 8) (emphasis added). Accordingly, the type of deprogramming used with Mr. Scott was not authorized or in accordance in any way with CAN policy.

CAN's executive director, Cynthia Kisser, runs the CAN national office. There was no evidence that Ms. Kisser was in any way involved in the referral of Mr. Ross to Kathy Tonkin. There was no evidence that Ms. Kisser was consulted about the referral or Mr. Scott's deprogramming. There was no evidence that Ms. Kisser had any foreknowledge of the deprogramming of Mr. Scott. There was no evidence that Ms. Kisser ratified or approved after the fact, the deprogramming of Mr. Scott.

CAN operates throughout the country using "affiliates." There was no evidence that any CAN affiliates were involved in any way with the matters at issue.

CAN also operates through the use of "contact" persons. A "contact" is an unpaid part-time volunteer who is available in given areas to speak to members of the public on behalf of CAN. (RT 3/120-21). Contact persons generally have been chosen because of their commitment to CAN and CAN's tenets. CAN contact persons are required to adhere to CAN policies-including the policy against support of or referral to involuntary, illegal deprogrammings. It would be irresponsible for a CAN contact person to make a referral to a person performing illegal deprogrammings. (RT 3/120-121). There was no evidence that CAN required its contact people to limit their activities to CAN or otherwise prohibited their contacts from being active in other, even like-minded, organizations. Mr. Scott's case against CAN relies entirely on the link between a CAN contact person in Washington and CAN.

Shirley Landa is CAN's contact person in the state of Washington. She was one of the founders of CAN's predecessor, the Citizen's Freedom Network, in the early 1980s. (RT 3/140-41). In the mid to late 1980s, Ms. Landa served as a CAN Board member. (RT 3/162). However, CAN was but one of several organizations in which Ms. Landa was actively involved.

In 1991, the year in which the events relevant to this case occurred, Ms. Landa was active in two organizations interested in cults in addition to CAN. (RT 3/163). She had written papers and delivered speeches on cult education issues at non-CAN conferences. (RT 3/164). Persons were referred to Ms. Landa from various groups and individuals with whom she was involved at that time. (RT 3/145). Ms. Landa considered that she acted as Shirley Landa when engaging in cult-related activities, not on the behalf of any of the organizations in which she was affiliated. (RT 3/148).

In 1991, Ms. Landa was volunteering for a crisis hotline operated by Seattle Community Services through an organization called Parent Awareness. (RT 3/148). People who called the hotline about family members involved in potentially extreme or destructive groups or religions were referred to Ms. Landa. There was no testimony that Parent Awareness was related to CAN. There was no testimony that the Crisis Hotline referenced in any way Ms. Landa's association with CAN when referring people to her. Ms. Tonkin, Mr. Scott's mother, obtained Ms. Landa's telephone number from the Community Services crisis hotline. (RT 5/64).

Prior to the referral of Mr. Ross, Ms. Landa had referred individuals to deprogrammers. Ms. Landa, however, had never received any report that any of these prior referrals had resulted in the involuntary and illegal abduction of any person. (RT 3/168). Ms. Landa had been involved in deprogrammings, but these had been legal and voluntary. (RT 3/151). There was no evidence that anyone at CAN had any different knowledge or understanding about prior referrals Ms. Landa had made. In other words, at the time of the events at issue, CAN believed that Ms. Landa acted wholly in accordance with CAN policy regarding referrals.

Ms. Tonkin called Ms. Landa seeking help in dealing with her sons. (RT 5/65). They were involved in a church that Ms. Tonkin believed was harmful. Ms. Tonkin also had been involved with the church and had recently left. She felt the church was controlling and alienating her sons from her.

When Ms. Tonkin telephoned Ms. Landa she had never heard of CAN and did not believe she was contacting CAN. (RT 5/68-69). She contacted Ms. Landa at her home. Ms. Landa did not answer the telephone in any way identifying that she was a contact person for CAN or that she was responding to Ms. Tonkin on behalf of CAN. The only testimony about CAN with respect to the many conversations between Ms. Tonkin and Ms. Landa is that at some point Ms. Landa mentioned her past involvement with CAN. (RT 3/148, 5/69). Ms. Tonkin testified, however, that the reference to Ms. Landa's past association with CAN was after Ms. Landa had recommended Mr. Ross. (RT 5/68). In fact, Ms. Tonkin testified that never in any of her conversations with Ms. Landa did Ms. Landa suggest she had a current relationship with CAN. (RT 5/69).

CAN anticipates Mr. Scott will argue that Ms. Tonkin was somehow inflamed by CAN literature. Beyond Mr. Scott's own conclusions, however, there is no evidence that Ms. Tonkin ever received any CAN materials. As noted above, Ms. Landa did not act on behalf of or represent herself to be acting for CAN. There is no evidence that Ms. Landa gave Ms. Tonkin any CAN literature. Ms. Tonkin did not recall reading any CAN literature. (RT 6/17). Ms. Landa testified that she did not believe she gave Ms. Tonkin any CAN literature, but was not 100% certain. (RT 3/173). Regardless, the only CAN literature that was admitted in at trial is not inflammatory. (ER 8). There is simply no evidence that CAN literature was involved in any way in the decision by Ms. Tonkin to retain Mr. Ross.

The above statements reflect the totality of the factual evidence regarding CAN's involvement in the events in question. As discussed below, application of the appropriate legal principles to these facts leads to but one conclusion: CAN cannot be held vicariously liable on any basis for the acts at issue in this lawsuit.

B. Plaintiff's Expert Failed To Link CAN to the Events at Issue
In addition to the above fact testimony, Mr. Scott presented one "expert" witness, Dr. Anson Shupe, a sociology professor, who testified about anti-cult groups including CAN. As discussed below, it was error for the trial court to permit Dr. Shupe to testify. The subject of Dr. Shupe's testimony does not qualify as appropriate expert testimony under Fed. R. Evid. 702. Moreover, there was no foundation for Dr. Shupe to testify about CAN. Any other testimony about "anti- cult" groups other than CAN is simply irrelevant.

Dr. Shupe testified about his experience and specialized knowledge. This experience involved writing several books about the "anti-cult" movement. His testimony, however, is completely devoid of any experience, study, or writing about CAN. The only reference in Dr. Shupe's direct testimony to experience with CAN is in relation to a recent book. In testifying about that book, Dr. Shupe candidly admitted that his colleague, rather than he, had followed CAN: "I was following much more closely the American Family Foundation, which is an East Coast anti- cult group, and he [David Bromley] was following CAN. In fact, he has a number of documents that are involved . . ." (RT 4/28). Again, in describing what materials he reviewed to come to his opinions, Dr. Shupe principally relied upon newspaper articles, materials collected by Mr. Bromley, and materials provided by Mr. Moxon, Mr. Scott's attorney. (RT 4/37).

During cross-examination, Dr. Shupe admitted to having had interviews with only two CAN personnel over his twenty years of anti-cult "study." (RT 4/66). (Without explanation, however, he completely discounted what he had been told by these people.) Dr. Shupe admitted that he never tried to talk to anyone at CAN about a referral and has never spoken to anyone who has been referred to a deprogrammer by anyone associated with CAN. (RT 4/69). In summary, Dr. Shupe has no specific knowledge, skill, experience, training, or education with respect to CAN upon which any expert opinion about CAN could be based.

Dr. Shupe gave "expert" opinion in three areas. He first opined "whether or not CAN encourages deprogramming." Dr. Shupe admitted that by the "mid eighties when CAN was formed," its literature did not explicitly recommend deprogramming. (RT 4/42-43). He further testified that in reviewing CAN literature that he "did not detect in any of CAN's promotional literature any endorsement of deprogramming." (RT 4/45). He acknowledged that the CAN Board of Directors adopted a policy in 1988 against participation in involuntary deprogrammings. (RT 4/63). Dr. Shupe further admitted that the two CAN personnel he interviewed stated that CAN had a policy against referring people to illegal deprogrammers. (RT 4/65-66). Yet, his opinion was that while CAN does not encourage deprogrammings in their promotional materials, CAN used a "wink- wink, nudge-nudge approach" in that it does refer people to deprogrammers when asked. (RT 4/49). Interestingly, Dr. Shupe did not distinguish between legal and illegal deprogrammings. Dr. Shupe's testimony does not lead to the conclusion that CAN in a "wink-wink" or in any other way accepts or participates in illegal or violent deprogrammings.

Dr. Shupe next testified as to his "opinion" that deprogramming is an entrepreneurial activity. Significantly, however, his testimony in this regard is only in reference to deprogrammers and did not implicate CAN in any way as being involved in making money from deprogrammings. (RT 4/49-50).

Finally, Dr. Shupe was asked about his "opinion" whether Mr. Scott's deprogramming arose out of religious intolerance. Again, significantly, his testimony in this regard is only in reference to the Mr. Scott deprogrammers and does not implicate CAN in any way. (RT 4/50-51).

In summary, there are serious questions addressed below about the appropriateness of Dr. Shupe's testimony. Regardless, the testimony does not provide evidence that links CAN to the specific actions at issue in this case.

C. Landa Had No Knowledge of and Did Not Participate in any Plan To Illegally Deprogram Scott
Ms. Landa referred Ms. Tonkin to defendant Rick Ross, who led the deprogramming of Mr. Scott. But that simple act in and of itself cannot constitute grounds for imposing liability on CAN under either a negligence or conspiracy theory. Rather, liability can only be based on evidence about what Ms. Landa knew about Mr. Ross prior to the referral, and to what extent, if any, she agreed to or otherwise participated in a plan to illegally deprogram Mr. Scott.

Ms. Tonkin's initial contact with Ms. Landa was in regard to her two minor sons, not Mr. Scott. Ms. Landa believed that only the two minors were to be subjected to a deprogramming. She referred Mr. Ross only for that purpose. At the time, Ms. Landa had not previously referred anyone to Rick Ross. (RT 3/170). She had never met Mr. Ross. (RT 3/158). At most, the evidence suggests that Ms. Landa recommended Mr. Ross because she heard he had a high success rate and had seen him on a TV news show "48 Hours" where a legal (and successful) deprogramming was performed on a minor. (RT 3/152, 3/170).

Mr. Ross conducted a legal deprogramming of the younger sons and visited with Ms. Landa afterwards. During that visit, Mr. Ross and Ms. Landa did not discuss Mr. Scott at all. (RT 3/157). In fact, it was not until after Mr. Ross met with Ms. Landa and after he had left Washington that Ms. Tonkin decided to hire Mr. Ross to deprogram her son Mr. Scott. (RT 5/83). As she testified, Ms. Landa was never aware of a plan to deprogram Mr. Scott. (RT 3/173). She was not present during the abduction and deprogramming of Mr. Scott and learned nothing about these events until after they occurred, upon receiving a telephone call from Mr. Ross. (RT 3/73). The record contains no evidence to the contrary. In short, there is no evidence of any agreement by Ms. Landa to the plan to abduct and illegally deprogram Mr. Scott.

STANDARD OF REVIEW

This Court reviews the denial of a motion for judgment as a matter of law de novo. It must reverse "if the evidence, construed in the light most favorable to the non-moving party, permits only one reasonable conclusion, and that conclusion is contrary to the jury's." Vollrath Co. v. Sammi Corp., 9 F.3d 1455, 1460 (9th Cir. 1993), cert. denied, 114 S. Ct. 2163 (1994); Newton v. NBC, 930 F.2d 662, 679 (9th Cir. 1990), cert. denied, 502 U.S. 866 (1991). Similarly, in civil rights cases, legal questions are reviewed de novo. Johnson v. Shalala, 35 F.3d 402, 405 (9th Cir. 1994). The Court must draw all reasonable inferences in favor of the party opposing the motion, but only if there is "substantial evidence" to support those inferences. Feldman v. Simkins Indus., Inc., 679 F.2d 1299, 1303 (9th Cir. 1982); Landes Const. Co. v. Royal Bank of Canada, 833 F.2d 1365, 1370-71 (9th Cir. 1987).

At trial, CAN objected to, and moved to exclude, the unfounded speculation of Mr. Scott's expert witness. The district court's denial of this motion is reviewed for abuse of discretion. Daubert v. Merrell Dow Pharmaceuticals, 43 F.3d 1311, 1315 (9th Cir.), cert. denied, 116 S. Ct. 189 (1995); United States v. Rahm, 993 F.2d 1405, 1410 (9th Cir. 1993). CAN also objected to the district court's failure to give a jury instruction with respect to the law of "vicarious liability." Jury instructions are reviewed for abuse of discretion. Fikes v. Cleghorn, 47 F.3d 1011, 1013 (9th Cir. 1995); Thorsted v. Kelly, 858 F.2d 571, 573 (9th Cir. 1988). Similarly, a district court's denial of a motion for a new trial is reviewed for abuse of discretion. Rinehart v. Wedge, 943 F.2d 1158, 1159 (9th Cir. 1991).

SUMMARY OF ARGUMENT

The primary issues on appeal relate to whether CAN can be held vicariously liable for the acts of Shirley Landa, one of its unpaid, part-time volunteers. CAN is a national non-profit organization that provides information and education about matters related to destructive cults. CAN has a very small but dedicated paid staff. Like many non-profit associations, however, CAN also utilizes unpaid part-time volunteers throughout the country to provide information and education on behalf of CAN. Ms. Landa is one such volunteer and is the primary CAN volunteer in Washington. There is no dispute, however, that she does many other things in addition to volunteering for CAN. Ms. Landa is active in two other organizations involved in cult-related activities in addition to CAN. She speaks at non-CAN conferences about destructive cults. She formed Parent Awareness to serve as an information source through a hotline run by Seattle Community Services. In contrast, she averages only five contacts per year through CAN. In other words, she provides information related to cults through a number of organizations, wearing a number of different hats, including her own. In this context, it is vitally important to distinguish between those activities that Ms. Landa undertakes in her role as CAN volunteer and her other activities.

Moreover, courts should be reluctant to impose vicarious liability on a non- profit organization based on the acts of its unpaid, part-time volunteers absent a specific showing that the organization had knowledge of, consented to, authorized or ratified the acts upon which liability is based. The trial court did not properly take these factors into account in finding CAN vicariously liable for Ms. Landa's referral in this case. The judgment should be reversed and remanded back for entry of a judgment in favor of CAN. Alternatively, the matter should be remanded for a new trial.

Specifically, the trial court committed four errors in addressing the vicarious liability issues raised in this case. First, the trial court erroneously refused to give a jury instruction that would have pointedly required the jury to find that CAN's volunteer, Ms. Landa, was acting as an agent for CAN "at the time, and in respect to the particular transaction out of which Mr. Scott's injury arose" before imposing liability on CAN. The refused instruction would have also clarified that an agent for one purpose is not an agent for all purposes. The proposed instruction is in complete accord with Washington law, goes to the heart of CAN's case, and should have been given. Instead, the generic agency instruction given by the district court suggested improperly that if Ms. Landa was an agent of CAN for some purposes, she could bind CAN for all purposes even if Ms. Landa was not acting with her CAN hat on at the time she referred Ms. Tonkin to Mr. Ross.

Second, the trial court erred by not entering judgment for CAN based on the evidence presented. The trial court did not properly consider and apply cases that have addressed the imposition of vicarious liability based on the acts of a volunteer on behalf of a broad-based organization. These cases, which principally address the liability of the Boys Scouts of America for the actions of a local scoutmaster, make clear that there must be evidence that the organization had knowledge of, consented to, or otherwise authorized the particular acts of the volunteer upon which liability is based. Here, there was no evidence showing knowledge, consent, authority for, or ratification of the referral by Ms. Landa or of the illegal abduction and restraint of Mr. Scott. Vicarious liability should not have been imposed against CAN. Moreover, the evidence was clear that Ms. Landa exceeded the scope of her authority in referring Ms. Tonkin to an illegal involuntary deprogrammer. CAN policy was unequivocal that CAN does not support and should not be involved in illegal involuntary deprogrammings. The district court should have entered judgment for CAN because the alleged agent of CAN was acting outside the scope of her authority.

Third, the trial court erred by not considering and adequately protecting the First Amendment interests implicated by the allegations at issue. CAN is a non- profit organization engaged in protected First Amendment education and speech activity. CAN acts in a very controversial arena and has been a subject of many lawsuits by groups about which CAN provides information. The United States Supreme Court has recognized the potential for abuse of vicarious liability particularly for organizations such as CAN. In this context, the Supreme Court requires courts strictly to scrutinize claims of vicarious liability and limits the imposition of vicarious liability to situations where the organization actually authorized or ratified the illegal acts upon which liability is based. Again, there was no evidence that CAN either authorized or ratified the illegal abduction or restraint of Mr. Scott. Vicarious liability should not have been imposed against CAN.

Fourth, the trial court erroneously allowed Mr. Scott's civil rights conspiracy claim under 42 U.S.C. 1985 to proceed on the basis of vicarious liability. Vicarious liability cannot be imposed under 42 U.S.C. 1985 absent a showing of some overt act of the alleged principle to participate in the alleged conspiracy. Here, there was no overt or other participation by CAN in the plan to illegally abduct Scott and deprive him of his civil rights. Is was therefore improper to impose vicarious liability against CAN on Mr. Scott's claim.

The conspiracy claim should have been dismissed or judgment entered for CAN as a matter of law for the additional reason that the evidence failed to establish that Ms. Landa or CAN participated in an agreement to accomplish an unlawful plan. The evidence was unequivocal that neither Ms. Landa nor anyone at CAN had any knowledge of any plan to abduct and restrain Mr. Scott. Nor is there any evidence that Landa or anyone from CAN participated in the plan to abduct and restrain Mr. Scott. The evidence thus fails to establish a requisite element of the conspiracy claim. CAN was entitled to a judgment on this claim as a matter of law.

In addition to these errors related to the imposition of vicarious liability, the district court committed reversible error in permitting Dr. Shupe to testify as an expert on behalf of Mr. Scott. Dr. Shupe's testimony did not meet the requirements of Fed. R. Evid. 702 and 703 should have been excluded. Specifically, Dr. Shupe was not qualified to give opinions about CAN. He simply had no specific training, background, experience or knowledge about CAN itself to opine about CAN's internal policies. Moreover, Dr. Shupe testified about matters that were irrelevant to CAN but were highly prejudicial. For example, Dr. Shupe was improperly allowed to testify about several egregious illegal deprogrammings that had no relation to CAN in any way. Finally, Dr. Shupe gave opinions about matters that were clearly within the province of the jury' common understanding. For example, Dr. Shupe testified in substance that CAN's stated policy was not credible. The credibility of CAN clearly is within the province of the jury. It was also within the province of the jury to decide what CAN's policy was based on admissible testimonial and documentary evidence. Dr. Shupe's testimony was inflammatory and in other ways prejudiced the ability of the jury to fairly decide the case on the basis of admissible evidence and should have been excluded.

Accordingly, this Court should reverse the judgment entered against CAN and remand for entry of a judgment in favor of CAN. Alternatively, this Court should reverse and remand for a new trial on CAN's liability.

ARGUMENT

I. CAN IS NOT VICARIOUSLY LIABLE FOR LANDA'S ACTIONS
A. Introduction and Overview
As established above, CAN played no part in the abduction and deprogramming of Mr. Scott. Because there is no evidence of CAN's direct involvement, CAN's liability is solely derivative of the actions of Ms. Landa. Specifically, Mr. Scott went to the jury only on the basis that CAN should be held liable as a principal responsible for the actions of its alleged agent, Ms. Landa. (RT 6/74-75, ER 12). The vicarious liability verdict against CAN should be overturned on four separate bases.
B. General Principles of Agency under Washington Law
Mr. Scott's entire action against CAN is predicated on vicarious tort liability, which under Washington law, "is the exception rather than the rule." Hamm v. Camerota, 290 P.2d 713, 715 (Wash. 1955). Under Washington law, a principal - agent relationship can, in limited circumstances, create liability on the part of the principal. In no case however, is a principal responsible for every act of the agent. Vicarious liability exists only if (1) both parties mutually consent to the agency relationship and (2) the principal has the right to control the actions of the agent. Nordstrom Credit, Inc. v. Dep't of Revenue, 845 P.2d 1331, 1335 (Wash. 1993).

Moreover, the existence of an agency relationship is to be determined "at the time and in respect to the particular transaction out of which the injury arises." Hamm, 290 P.2d at 715 (emphasis added); Restatement (Second) of Agency 1 (1957). If the agent is not acting on the purported principal's behalf at the time of the alleged tort, the principal need not answer for the agent's deeds. Roletto v. Dep't Stores Garage Co., 191 P.2d 875, 877 (Wash. 1948). Thus, CAN only can be found liable to Mr. Scott if Ms. Landa was acting as CAN's agent in connection with the acts that resulted in injury to him.

C. The Trial Court Improperly Refused To Instruct the Jury that Landa Had To Have Been Acting as an Agent in Making the Referral to Ross before Liability Can Be Imposed
The evidence undisputedly establishes that Shirley Landa was not a full-time agent of CAN. She was not a paid employee. She was active in several cult related organizations in addition to CAN. She received no more than five contacts per year from CAN. She received contacts from other organizations as well. But as the CAN contact person in Washington, Ms. Landa probably was acting as a CAN agent in regard to the few annual contacts that came to her through CAN. Accordingly, one of the crucial issues in the case is whether Ms. Landa was acting as an agent of CAN for the purposes of the events surrounding Mr. Scott's deprogramming.

CAN properly proposed a specific jury instruction highlighting the distinction. The proferred instruction provides that liability can only be imposed if Shirley Landa was acting as an agent "at the time and in respect to the particular transaction out of which the injury arose." (ER 12, p. 106). The language of the instruction was derived directly from language of the Washington Supreme Court in Hamm and Roletto and undeniably represents an accurate statement of agency law in Washington. The district court, however, inexplicably refused to give the proferred instruction in addition to the Washington generic agency instruction. Yet, the heart of CAN's case was that Ms. Landa was not acting as an agent for CAN in making the referral of Mr. Ross to Ms. Tonkin.

An evaluation of the district court's actual instruction to the jury demonstrates the significant potential for jury confusion regarding which acts of an agent can bind a principle. The district court instructed the jury: "Any act or omission of an agent within the scope of authority is the act or omission of the principal." (RT 6/75) (emphasis added). The district court further instructed the jury: "If you find that Shirley Landa was the agent of CAN and was acting within the scope of her authority, then any act or omission of Ms. Landa was the act or omission of CAN." Id. (emphasis added). These instructions clearly imply that if Ms. Landa was an agent of CAN for some purposes, i.e. for the purposes of the five contacts a year she received from CAN, then she binds CAN in all circumstances consistent with the scope of her authority even if the particular act at issue was not performed on behalf of CAN. Thus, the jury could have held CAN liable simply because it believed that Ms. Landa was a part-time agent for CAN and that the scope of her authority included referring members of the public to deprogrammers without regard to whether she was acting for CAN specifically in making the Kathy Tonkin referral. The jury could have found CAN liable even if Ms. Landa was not wearing her CAN hat in making the referral to Ms. Tonkin. That result is contrary to Washington agency law. It is not true that any act of an agent within the scope of their authority binds the principle. The agent must have been acting on behalf of the principal "with respect to the particular transaction" at issue.

The refusal to give the proposed instruction was reversible error. The jury could have believed, based on the general agency instruction given, that if Ms. Landa could be found to be an agent of CAN for some purposes, she was an agent for all purposes. Without the proferred jury instruction, CAN could not adequately argue its case that the jury had to find specifically that Ms. Landa was acting as an agent of CAN in referring Mr. Ross to Ms. Tonkin before vicarious liability could be imposed on CAN. For this reason, the judgment should be reversed and the matter remanded for a new trial.

D. Landa's Particular Dealings with Tonkin and Scott Fail To Impose Legal Liability on CAN
Regardless of whether the trial court improperly refused to give an appropriate jury instruction, the evidence, when viewed most favorably to Mr. Scott, does not support the imposition of liability against CAN. A number of courts have addressed the degree of knowledge and involvement required before an organization such as CAN can be held liable for the actions of its volunteer, unpaid, part-time agents. These cases require a greater degree of knowledge and involvement by CAN than is present here before liability can be imposed.

The case of Mauch v. Kissling, 783 P.2d 601 (Wash. App. 1989) provides a concrete example. In Mauch, the parents of Trent LeMaster sued the Boys Scouts of America ("BSA"), alleging theories of vicarious liability and negligence after Trent, a Boy Scout, died in the crash of a small plane piloted by Trent's volunteer scoutmaster. Trent was working on an aviation badge that included an optional requirement to ride in an airplane. Trent's scoutmaster offered to fly Trent with him to a Boy Scout camp to deliver supplies. Id. at 603. The court assumed that camp personnel, including a field sports director and camp director, were aware the flight would occur. On an approach to drop off a package, the plane crashed, killing both Trent and his scoutmaster. Id.

Reviewing these facts under an apparent agency theory, the court in Mauch held:

There was no evidence or legal basis on which to hold the BSA [or local area council] liable for the actions of their scoutmaster. Ms. Mauch has not presented evidence that either the BSA or [the local council] consented to or had control of the scoutmaster's actions during the overflight. Nor has she presented evidence she relied on their actions or statements in deciding to allow her son to ride with [the scoutmaster]. Rather, the evidence infers the organizations had advised the [scoutmaster] that he was not to use his plane for Scout activities. Ms. Mauch counters [the scoutmaster] had discussed the overflight with camp personnel approximately 2 weeks before the flight. However there is no evidence the conversation included the fact [the scoutmaster] would have a Boy Scout passenger. Thus, there is no evidence of an act by the principal which would lead a reasonable person to believe its agent was acting with apparent authority. Id. at 605.

A similar conclusion was reached in Wilson v. Boy Scouts of America, 784 F. Supp. 1422, 1426 (E.D. Mo. 1991), aff'd, Wilson v. United States, 989 F.2d 953 (8th Cir. 1993). Again, an effort was made to hold the BSA vicariously liable for the acts of a local scoutmaster in the death of a Boy Scout. The court held that no agency relationship existed between the volunteer scout master and the BSA where evidence failed to show that the BSA "agreed to, or even knew the destination, and details of [the] particular scouting activity" in which a Boy Scout was electrocuted and died. Id.

As in Mauch and Wilson, Mr. Scott failed to produce any evidence of CAN's consent to or control of Ms. Landa's action in referring Mr. Ross to Ms. Tonkin. There was no evidence that Ms. Tonkin relied on CAN in deciding to retain Mr. Ross. Further, just as the BSA advised the scoutmaster in Mauch that he was not to use his plane for Scout activities, CAN communicated its policy against illegal involuntary deprogramming to its contact persons. And just as liability in Mauch could not be established because BSA officials were not aware of the specific proposed flight which resulted in injury, liability cannot be established here because there was no evidence showing that CAN was aware that Ms. Landa was referring Mr. Ross to Ms. Tonkin or that Mr. Ross intended to illegally abduct Mr. Scott.

E. Even if Landa Was a CAN Agent, CAN Is Not Liable because Landa Exceeded Her Authority
Assuming arguendo that Ms. Landa was CAN's agent and that Ms. Landa knew she was referring Ms. Tonkin to Mr. Ross to conduct an involuntary deprogramming, CAN cannot be liable for Ms. Landa's actions because Ms. Landa exceeded her authority as a CAN agent. A principal cannot be held liable for the acts of its agents if those acts were made outside the agent's authority to act. Houser v. Redmond, 586 P.2d 482, 485 (Wash. 1978) (en banc) (a corporation can only act through its agents when agents act within the scope of their authority); Silverado S.S. Co. v. Prendergast, 31 F.2d 225, 226 (9th Cir.), cert. denied, 280 U.S. 557 (1929) (principal is liable for agent's actions only if committed while carrying on the principal's business); Hein v Chrysler Corp., 277 P.2d 708, 716 (Wash. 1954).

Hein is illustrative. In Hein, plaintiff Chrysler dealer sued Chrysler after its regional manager, with the aid a subordinate district sales manager, intentionally attempted to force plaintiff to quit or sell his dealership so that the regional sales manager's son-in-law could take over the dealership. Id. at 711. Applying the rule that a principal is not bound by the misconduct or negligence of its agents when the agents are acting for purposes of their own, the court held that Chrysler was not liable because its employees were "serving their own ends and were willfully acting contrary to, and not in furtherance of, the interests of their employer"). Id. at 716.

Under the principle addressed in Hein and the other noted Washington authorities, CAN cannot be bound by the actions of Ms. Landa if such are determined to constitute misconduct or negligence. The record establishes that CAN policy does not condone, but instead opposes illegal, involuntary deprogramming and any unlawful means to address destructive cults and CAN communicates this policy to its contact persons. Just as the acts of the agents in Hein could not subject Chrysler to vicarious liability, the alleged acts by Ms. Landa of referring a known involuntary deprogrammer cannot subject CAN to vicarious liability. Such acts, if taken by Ms. Landa, would be directly contrary to, and not in furtherance of, CAN's policy and legitimate interests. Thus, the referral to Ms. Tonkin of a known involuntary deprogrammer exceeded the bounds of Ms. Landa's agency relationship with CAN. CAN cannot be held liable for Ms. Landa's actions therefore even if an agency relationship existed with respect to the particular occurrence involving Mr. Scott.

F. A Finding of Agency Violates the First Amendment
The imposition of vicarious liability is particularly suspect when the alleged liable principle is an organization that engages in constitutionally protected associational and speech activity. In such a case, the Supreme Court has recognized that special critical attention needs to be applied in reviewing the imposition of vicarious liability. This special scrutiny is vital to protect against abuses of vicarious liability claims to stifle the activity of organizations such as CAN that are active in controversial arenas. Liability can only be imposed upon a showing that there was authorization or ratification of the unlawful act upon which liability is based. Here, there is no evidence that CAN authorized or ratified the illegal abduction or holding of Mr. Scott. Therefore, vicarious liability cannot be imposed upon CAN consistent with the Constitution.

The Supreme Court in NAACP v. Claiborne Hardware Co., 458 U.S. 886, 930-31, 102 S. Ct. 3409, 3435, 73 L. Ed. 2d 1215 (1982) emphasized the well established constitutional protection afforded the activities relevant to CAN in the case at bar. It noted:

"the practice of persons sharing common views banding together to achieve a common end is deeply embedded in the American political process." We recognized that "by collective effort individuals can make their views known, when, individually their voices would be faint or lost." [Citizens Against Rent Control for Fair Housing v. Berkeley, 454 U.S. 290, 294, 102 S. Ct. 434, 436, 70 L. Ed. 2d 492 (1981)]. In emphasizing "the importance of freedom of association in guaranteeing the right of people to make their voices heard on public issues," id. at 205, 102 S. Ct. at 437, we noted the words of Justice Harlan, writing for the Court in NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460, 78 S. Ct. 1163, 1170, 2 L. Ed. 2d 1488 (1958), "Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly."

NAACP v. Claiborne, 458 U.S. at 908, 102 S. Ct. at 3422-23.

Moreover, "[t]he right to associate does not lose constitutional protection merely because some members of the group may have participated in conduct or advocated doctrine that itself is not protected." Id.

Moreover, much of Mr. Scott's attack on CAN centers on allegedly inflammatory CAN literature. Even if CAN's materials could be construed as inciteful or inflammatory, CAN literature is still protected speech. Claiborne, 458 U.S. at 911, 102 S. Ct. at 3424 (even "offensive" and "coercive" speech is protected by the First Amendment) citing Watts v. United States, 394 U.S. 705, 708, 89 S. Ct. 1399, 1401, 22 L. Ed. 2d 664 (1969) ("The language of the political arena . . . is often vituperative, abusive, and inexact."); see also R.A.V. v. City of St. Paul, Minnesota, 505 U.S. 377, 384-85, 112. S. Ct. 2538, 2543-44, 120 L. Ed. 2d 305 (1992). Mr. Scott, in short, seeks to impose liability here principally based on CAN's speech rather than its conduct.

Because Mr. Scott attempts to premise liability at least in part on CAN's associational and speech activities, this Court must engage in special scrutiny in reviewing the imposition of vicarious liability. As stated by the Supreme Court, the fact that CAN's associational and free speech rights are implicated by the verdict in this case "imposes a special obligation on this Court to examine critically the basis on which liability was imposed." Id. at 915; 102 S. Ct. at 3427 (emphasis added).

With these firm constitutional principles guiding its decision, the Supreme Court found, in the highly analogous Claiborne case:

The NAACP-like any other organization-of course may be held responsible for the acts of its agents throughout the country that are undertaken within the scope of their actual or apparent authority. Moreover, the NAACP may be found liable for other conduct of which it had knowledge and specifically ratified.

The chancellor made no finding that Charles Veers or any other NAACP member had either actual or apparent authority to commit acts of violence or to threaten violent conduct. The evidence in the record suggests the contrary. Aaron Henry, president of the NAACP and a member of the Board of Directors of the national organization, testified that the statements attributed to Evers were directly contrary to NAACP policy. . . . Similarly, there is no evidence that the NAACP ratified-or even had specific knowledge of-any of the acts of violence or threats of discipline associated with the boycott. Henry testified that the NAACP never authorized, and never considered taking and official action with respect to the boycott. The NAACP supplied no financial aid to the boycott. . . . The chancellor made no finding that the national organization was involved in any way in the boycott.

To impose liability without a finding that the NAACP authorized-either actually or apparently-or ratified unlawful conduct would impermissibly burden the rights of political association that are protected by the First Amendment.

Id. at 930-31, 102 S. Ct. at 3434-35 (emphasis added).

The record in the instant case is bare with respect to any authorization by or knowledge on the part of CAN regarding the attempted deprogramming of Mr. Scott. Indeed, the speculation offered by Mr. Scott's expert that CAN approves of involuntary deprogramming is directly contrary to all credible record evidence. Both testimonial and documentary evidence unambiguously proved CAN's policy opposing involuntary deprogramming for anyone, including Mr. Scott.

Mr. Scott's case instead relies on efforts to paint CAN by its limited prior association with Mr. Ross and other deprogrammers, to the activities of other anti- cult organizations. "Recognizing that guilt by association is a philosophy alien to the traditions of a free society . . . and the First Amendment itself, we have held that civil or criminal disabilities may not be imposed on one who joins an organization which has among its purposes the violent overthrow of the government, unless the individual joins knowing of the organization's illegal purposes and with the specific intention to further those purposes." 458 U.S. at 931, 102 S. Ct. at 3436-37. In the instant case, guilt by association should not allow Mr. Scott to fare better.

CAN is an educational organization that engages in protected First Amendment activity in an arena rife with controversy. CAN has been a target for several (unsuccessful) lawsuits filed by some of the groups CAN provides information about. This is precisely the type of situation addressed by the Supreme Court in Claiborne, which requires a heightened standard of judicial scrutiny lest significant First Amendment values be burdened. The district court failed to apply such scrutiny. Accordingly, the district court's determination that vicarious liability principles imposed liability on CAN violated CAN's First Amendment rights of association and free speech.

G. CAN Cannot Be Held Liable for Conspiracy on a Vicarious Liability Theory
Respondeat superior, or vicarious liability, does not give rise to liability for actions under 42 U.S.C. 1985. Adams v. Pate, 445 F.2d 105, 107 (7th Cir. 1971); Howard v. Topeka-Shawnee County Metro. Planning Comm'n, 578 F. Supp. 534 (D. Kan. 1983); cf. Polk County v. Dodson, 454 U.S. 312, 325-26, 102 S. Ct. 445, 454, 70 L. Ed. 2d 509 (1981) and Meza v. Lee, 669 F. Supp. 325, 326 (D. Nev. 1987). Civil rights claims under both 42 U.S.C. 1983 and 1985 require a showing of personal-not vicarious-liability. Brown v. Washington, 661 F. Supp. 1011, 1012 (N.D. Ill. 1987); Howard, 578 F. Supp. at 1012 ("defendant must be shown to have been directly involved in a deprivation of plaintiff's civil rights"). "It is not the actions of [any agent of the principal] which must be considered in determining liability. It is the actions of the [principal] itself which are relevant." Meza, 669 F. Supp. at 326; Adams, 445 F.2d at 107 (no vicarious liability for defendant where plaintiff failed to show overt acts by defendant or defendant's knowledge of or consent to actions taken by subordinates against plaintiff).

Review of the record shows no affirmative link between any conspiracy against Mr. Scott and CAN. From the outset, CAN had no knowledge of Mr. Scott, his affiliation with his church, or any planned or actual attempt by Ms. Tonkin, Ross, or anyone to abduct and deprogram Mr. Scott. Simply, there is no evidence establishing CAN's direct involvement in the events relevant to this case. Further, the actions taken against Mr. Scott were never approved by CAN. Indeed, such actions were directly contrary to CAN policy.

II. PLAINTIFF FAILED TO ESTABLISH A CONSPIRACY TO VIOLATE HIS CIVIL RIGHTS
Even if a reasonable jury could have found that Ms. Landa acted as an agent of CAN, the evidence failed to establish that Ms. Landa or CAN engaged in any conspiracy to violate Mr. Scott's civil rights under 42 U.S.C. 1985(3). One cannot participate in a conspiracy without coming to an agreement to accomplish an unlawful plan. Green v. State Bar of Texas, 27 F.3d 1083, 1089 (5th Cir. 1994). One who is unaware that the plan exists cannot be said to enter into the requisite agreement; Rios v. Navarro, 766 F. Supp. 1158, 1162 (S.D. Fla. 1991) ("Each member must have knowledge of the nature and the scope of the agreement."). Ms. Landa cannot be found liable for conspiracy unless the evidence establishes that she agreed with some other conspirator to accomplish a common and unlawful plan and that she knowingly participated in the plan. The record does not support such a finding.

Proof of conspiracy requires a showing of a meeting of minds, a mutual understanding to accomplish a common unlawful plan-in this case the deprivation of Mr. Scott's right to interstate travel because of bias against his religion. McDowell v. Jones, 990 F.2d 433, 434 (8th Cir. 1993); United States v. Basurto, 497 F.2d 781, 793 (9th Cir. 1974). No evidence at trial, however, showed that Ms. Landa knew of or agreed to any plan directed at Mr. Scott, much less a plan to restrict his right to interstate travel. At most, the evidence of the alleged conspiracy involving Ms. Landa (and CAN) consists of only the following:

* Ms. Landa was aware of the deprogramming session involving Plaintiff's minor brothers and visited the place where it occurred.

* Mr. Ross and Ms. Tonkin visited Ms. Landa's house thereafter. At this point, however, all witnesses with relevant knowledge agree that no decision had been made to deprogram Mr. Scott and no one recalls discussing a plan to deprogram Mr. Scott at this time.

* Ms. Landa testified that she had no knowledge of any plan to deprogram Mr. Scott before or during the deprogramming session involving Mr. Scott in Ocean Shores. She learned of this event only after it occurred. Ms. Tonkin testified that she spoke with Ms. Landa at some unspecified time about the deprogramming of her sons. She did not specify whether she was referring to the first deprogramming of her younger sons or to the subsequent deprogramming of Mr. Scott.

* After the deprogramming session involving Mr. Scott, Mr. Ross called Ms. Landa requesting a referral for an attorney.

There is no evidence that Ms. Landa participated in any manner in planning the deprogramming of Mr. Scott or carrying out that plan. She was neither involved in any discussions nor present when any discussions occurred regarding the abduction and deprogramming of Mr. Scott. She was never present in Ocean Shores during Mr. Scott's deprogramming sessions. The mere fact that she communicated with persons involved in the decision and plan to deprogram Mr. Scott does not make her or CAN part of any conspiracy. See, e.g., Money v. Great Bend Packing Co., 783 F. Supp. 563, 576 (D. Kan. 1992); Sluys v. Gribertz, 842 F. Supp. 764, 767-68 (S.D.N.Y.), aff'd, 41 F.3d 1503 (2d Cir. 1994), cert. denied, 115 S. Ct. 1316 (1995). Even if Ms. Landa had known of Ms. Tonkin's and/or Mr. Ross's plans-and there is no evidence that she did-such knowledge would be insufficient to render Ms. Landa part of a conspiracy. Peck v. United States, 470 F. Supp. 1003, 1012 (S.D.N.Y. 1979).

III. PLAINTIFF'S "EXPERT" TESTIMONY IS INADMISSIBLE
Mr. Scott attempted to use the "expert opinions" of Dr. Anson Shupe to create the illusion that CAN was involved in illegal and violent involuntary deprogramming generally, and specifically with respect to the events of this case. Dr. Shupe's testimony, however, must be disregarded in its entirety. As established below, his testimony (1) failed to assist the jury in understanding the evidence or determining a fact in issue as required by Fed. R. Evid. 702, and (2) is inherently unreliable under Fed. R. Evid. 703 as it is premised upon conjecture and inadmissible hearsay. Accordingly, this Court should reverse the district court's denial of CAN's motion to exclude Dr. Shupe as an expert witness and strike all of his testimony from the record.
A. Testimony Provided by Plaintiff's "Expert" Failed To Assist the Jury To Understand the Evidence or Determine a Fact in Issue
Fed. R. Evid. 702 allows expert opinion testimony only if such "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue . . ." In Rahm, this Court noted:

not every expert need express, nor even hold, an opinion with regard to the issues involved in a trial. Indeed, in certain cases, we will not allow an expert to express an opinion as to specific issues even if he or she has formed one. . . . [T]he key concern is whether expert testimony will assist the trier of fact in drawing its own conclusions as to a "fact in issue."

993 F.2d at 1411. To determine whether expert testimony was helpful to the jury, and thus admissible under Fed. R. Evid. 702, the Court in Rahm considered four criteria: (1) whether the expert was qualified; (2) whether the opinions were a proper subject for the jury; (3) whether the opinions conformed to a generally accepted explanatory theory; and (4) a comparison of the probative value of such testimony to any prejudicial effect. Id. at 1409 (citing United States v. Amaral, 488 F.2d 1148, 1153 (9th Cir. 1973)). Not one of the four criteria is met in the instant case.

1. Dr. Shupe Is Not a Qualified Expert

Regarding the first factor, Dr. Shupe is not a qualified expert to offer opinion testimony about CAN. Although he has experience in the study of the "anti-cult movement," his study of CAN has been negligible at most. Dr. Shupe conceded that he has no real firsthand knowledge of CAN. In twenty years, he interviewed only two CAN representatives. Dr. Shupe further conceded that his colleague, David Bromley, was a CAN specialist-while Dr. Shupe focused on other organizations. In short, Dr. Shupe has no relevant knowledge, experience, or training regarding CAN. Specifically, he is simply not qualified to render opinions about CAN and its policies.

Moreover, despite his limited background, Dr. Shupe did nothing meaningfully to prepare to render opinions about CAN and the events of this case. As a substitute for real research, Dr. Shupe reviewed newspaper articles, affidavits and deposition excerpts selected by Mr. Scott's attorney, and spoke with his colleague, Mr. Bromley. In short, Dr. Shupe confined his "research" to inadmissible hearsay. Despite his reliance on questionable sources, Dr. Shupe did nothing to verify the accuracy of the information he received.

Dr. Shupe's testimony should have been excluded on the basis on the lack of his qualifications alone.

2. Dr. Shupe's Opinions Were Not Proper Subjects According to this Court in Rahm:

Our "proper subject" inquiry has generally focused upon whether the expert testimony improperly addresses matters within the understanding of the average juror . . . . We have stated that expert testimony should not "invade[] the province of the jury." . . . In recent years, noting that helpfulness to the jury is the central concern of Fed. R. Evid. 702, some scholars and courts have rejected this rationale for the exclusion of experts, concluding that jurors might find expert testimony helpful even in relation to everyday experience . . . . Nonetheless, this circuit continues to guard-perhaps too jealously -- from expert elucidation, areas believed to be within the jurors' common understanding.

993 F.2d at 1413 (citations omitted) (emphasis added).

Dr. Shupe testified about violent and other deprogrammings which were not in any way connected to CAN, its officials, or volunteers. (RT 4/40, 44-45). After blurring the record with these wholly irrelevant stories, Dr. Shupe was asked to give opinions as to whether CAN engages in deprogramming, whether deprogramming is an entrepreneurial activity, and whether Mr. Scott's deprogramming arose out of religious intolerance. Dr. Shupe answered each of these questions in the affirmative. Not one of these opinions assisted the jury.

Regarding his first opinion, Dr. Shupe acknowledged that CAN's reference materials do not encourage deprogramming, but went on to speculate, without any basis whatsoever, as addressed below, that there is a "wink-wink, nudge-nudge" approach that CAN refers people to deprogrammers. Dr. Shupe did not distinguish between CAN's encouragement of illegal, involuntary and legal, voluntary deprogramming. This testimony was not helpful to the jury. Either CAN makes referrals to involuntary, or violent, deprogrammers or it does not. The jury had the opportunity to review CAN documents and evaluate the credibility of CAN witnesses on direct and cross-examination. Reviewing the evidence, the jurors could have found-or not found-that CAN was involved in involuntary, or violent, deprogramming. A determination whether a defendant engages in violent behavior is commonly understood to be within the province of the jury. See, e.g., United States v. Webb, 625 F.2d 709, 711 (5th Cir. 1980) (peacefulness and non-violence were held to be traits plainly within "the ken of lay jurors" and not appropriate subjects for expert testimony). Moreover, the substance of Dr. Shupe's testimony fundamentally goes to the credibility of CAN. Assessments of credibility are fundamentally within the province of the jury.

Regarding the second opinion, Dr. Shupe opined that deprogramming is an entrepreneurial activity. This opinion similarly invaded the province of the jury. The record established that Mr. Ross and the other individual defendants received fees for their deprogramming efforts first with Ms. Tonkin's two minor sons, and later for the deprogramming of Mr. Scott. (RT 3/95). No one refuted this testimony. Quite obviously, the jury could have found on its own that fees for deprogramming were required and concluded that it involved entrepreneurial activity.

Finally, Dr. Shupe offered his opinion that Mr. Scott's deprogramming arose out of religious intolerance-after testifying about unrelated deprogrammings motivated by the same intolerance. Such testimony was unnecessary for the jury. Based on the factual record, cross-examination, and appeals to jury to use their common sense, the jury could have determined for itself the motivations at issue.

3. The Opinions Did Not Conform to a Generally Accepted Explanatory Theory

The record fails to show that the opinions offered by Dr. Shupe conformed to any generally accepted explanatory theory. Although Dr. Shupe testified generally about an anti-cult movement, he failed to reference a single corroborating theory regarding CAN or other educational organizations like CAN.

4. The Scant Probative Value of the Opinions, if Any, Is Outweighed by Their Substantial Prejudicial Effect

As shown above, Dr. Shupe's opinions failed to aid the jury, and when coupled with his testimony about unrelated illegal and violent deprogrammings, was dangerously prejudicial. See Scott v. Sears, Roebuck & Co., 789 F.2d 1052, 1055 (4th Cir. 1986) (testimony that invades the province of the jury is unfairly prejudicial "when the evaluation of the commonplace by an expert witness might supplant a jury's independent exercise of common sense"); Amaral, 488 F.2d at 1152 (danger of undue prejudice with expert testimony because of its "aura of special reliability and trustworthiness"). Among other inflammatory things, Dr. Shupe testified about "coerci[on]," "screaming children," "distraught" parents, and "abduction[s]" all related to deprogrammings, completely irrelevant to the deprogramming of Mr. Scott in this case. (RT 4/39-40, 44-45). He referred to reports of the deprogramming of a daughter and wife because the husband, an Amish man, did not like that the two were going to Bible lessons. (RT 4/44). Again, such inflammatory testimony is wholly irrelevant to the deprogramming at issue here. Such testimony plainly incited the jury's passions and created the false impression that CAN was somehow involved.

Under the four criteria addressed above, it is clear that Dr. Shupe's testimony added no real weight to the body of evidence. His presence was sought by Mr. Scott only to add credibility-based on his background as a university professor and sociologist-to Mr. Scott's contentions and to improperly inflame the jury upon hearing his testimony of shocking and distressful deprogrammings unrelated to CAN, its officials, or volunteers. Since Dr. Shupe's opinions fail to meet the standards for admissibility under Fed. R. Evid. 702, they should be excluded from the record in their entirety.

B. The Opinions Rendered by Plaintiff's "Expert" Are Unreliable
Even if Dr. Shupe were able to form a valid opinion based on facts relating to this case, he failed to do so as his testimony did not "rest[] on a reliable foundation and [was not] relevant the task at hand[,]" as required by Fed. R. Evid. 703. Daubert v. Merrell Dow Pharmaceutical, Inc., 509 U.S. 579, 113 S. Ct. 2786, 2799, 125 L. Ed. 2d 469 (1993). Dr. Shupe conceded that he had no first-hand knowledge of CAN. Yet, he formed his opinions without performing any independent research about CAN or the allegations against it by Mr. Scott. Dr. Shupe did not conduct any interview with anyone from CAN, anyone connected to this case, or anyone who had direct dealings with the non-profit.

As noted above, Dr. Shupe's investigation was deficient. He limited it to reviewing inadmissible hearsay in the form of newspaper articles and pre-trial affidavit and deposition testimony culled by Mr. Scott's counsel. Although Fed. R. Evid. 703 allows an expert to rely on hearsay in forming an opinion, such hearsay is permitted only to the extent that it is "of a type reasonably relied upon by experts in the particular field in forming opinions and inferences." No testimony was adduced at trial showing that experts in the field were willing to rest their opinions only upon newspaper articles, pre-trial testimony culled by legal counsel, or conversations with colleagues. Moreover, Dr. Shupe's reliance on such hearsay was inherently unreasonable. Hearsay is not "reasonably relied upon," unless the evidence has some circumstantial degree of reliability or trustworthiness. See, e.g., Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 505 F. Supp. 1313, 1324 (E.D. Pa. 1980), aff'd in part, rev'd in part, In re Japanese Elec. Products Antitrust Litigation, 723 F.2d 238 (3d Cir. 1983), rev'd on other grounds, Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); see also American Key Corp. v. Cole Nat'l Corp., 762 F.2d 1569, 1580 (11th Cir. 1985). The hearsay at issue fails to meet any exception to the hearsay evidentiary rules or have any comparable guarantees of trustworthiness. See, e.g., Faries v. Atlas Truck Body Mfg. Co., 797 F.2d 619, 624 (8th Cir. 1986) (expert opinion based on information provided by an interested witness was not sufficiently reliable under Fed. R. Evid. 703); United States v. Grey Bear, 883 F.2d 1382, 1392 (8th Cir. 1989), cert. denied, 493 U.S. 1047 (1990.

The basis on which Dr. Shupe places his opinions fails even to approach the reliability and relevance standards mandated by Daubert. On the record below, Dr. Shupe's opinion testimony is speculative at best, largely irrelevant, and highly prejudicial. Thus, the Court should reverse the trial court's ruling to admit such "expert" testimony.

CONCLUSION

The district court's verdict against CAN ignores important legal limitations on the circumstances when vicarious liability can be imposed against an organization based on the acts of its unpaid, part-time volunteers. Specifically:

    1. The district court improperly refused to instruct the jury as to an important limitation restricting vicarious liability to those transactions where the alleged agent is specifically acting on behalf of the principle. Particularly in a world where volunteers act on behalf of many organizations, like the volunteer at issue here, this limitation is critical.

    2. The trial court failed to evaluate the adequacy of the evidence as to agency in light of case law that limits vicarious liability to circumstances where the organization at issue actually has knowledge of, consents to or otherwise authorizes the specific acts upon which liability is based.

    3. The trial court erroneously ignored the undisputed fact that the volunteer acted contrary to the well-established policy of the organization in participating in an illegal act.

    4. The trial court did not consider the limitations imposed on vicarious liability when important First Amendment associational and speech rights are involved. Critical heightened scrutiny must be applied before liability can be imposed. Moreover, there must be a finding that the organization actually authorized or ratified the illegal acts upon which liability is predicated.

    5. The trial court did not address cases providing that vicarious liability is not an appropriate basis upon which to find a conspiracy under 42 U.S.C. 1985

    6. The trial court erred in refusing to grant a judgment to CAN on the conspiracy claim in light of the clear lack of evidence establishing any agreement by CAN or its purported agent to engage in the illegal acts at issue.

    7. The trial court erred in admitting the highly inflammatory "expert" testimony of Dr. Shupe despite the fact that Dr. Shupe's testimony wholly fails to satisfy any of the requirements under Fed. R. Evid. 702 and 703 for admission of expert testimony.

Accordingly, CAN respectfully requests that this Court reverse the judgment entered below and direct the entry of judgment in favor of CAN. Alternatively, CAN requests that the judgment below be reversed and the case be remanded for a new trial to be conducted utilizing the jury instruction improperly rejected by the trial court and excluding the testimony of Dr. Shupe.

Respectfully submitted,

PRESTON GATES & ELLIS

By_____________________________
Paul J. Lawrence, WSBA # 13557
Ramona M. Emerson, WSBA # 20956
Attorneys for Appellant,
Cult Awareness Network

DATED this 3rd day of September, 1996.

Citations to Excerpts of the Record are noted as "ER" with page references. Citations to the Reporter's Transcript are noted as "RT" with references to volume/page numbers. Citations to the Clerk's Record are noted as "CR" with docket entry numbers.

CAN anticipates that Mr. Scott will argue that Dr. Paul Martin's status as a former board member of CAN somehow implicates the CAN Board. Dr. Martin is the principal therapist at the Well Spring Center, which is a treatment center that among other issues treats persons who have gone through successful voluntary and legal deprogrammings. Dr. Martin was a CAN Board member. CAN had referred people to Well Springs, but had no corporate affiliation its operation. (RT 5/29). The evidence suggests that after the deprogramming, Kathy Tonkin, Jason Scott's mother, intended that Mr. Scott go to Well Springs. Again, however, there is no evidence that any CAN board member had any foreknowledge of Ms. Tonkin's plan. There is no evidence that Mr. Martin knew that Mr. Scott would be subject to an illegal deprogramming. More importantly, the deprogramming of Mr. Scott did not take place at Wells Springs, or under the direction of Dr. Martin or anyone else associated with Well Springs. Since none of the activities at issue relate to Wells Springs, this is a non-issue.

Most commonly, an employer may be responsible for the tortious actions of an employee. See Restatement (Second) of Agency, prefatory note to 219 (1957) (distinguishing between servant and non-servant agents in determining vicarious liability) and comment e (1957). Comment e provides:

It is important to distinguish between a servant and an agent who is not a servant, since ordinarily a principal is not liable for the incidental physical acts of negligence in the performance of duties committed by an agent who is not a servant . . . . The important distinction is between service in which the actor's physical activities and his time are surrendered to the control of the master, and service under an agreement to accomplish results or to use care and skill in accomplishing results. Those rendering service but retaining control over the manner of doing it are not servants . . . . An agent who not subject to control as the manner in which he performs the acts that constitute the execution of his agency is in a similar relation to the principal as to such conduct as one who agrees only to accomplish mere physical results. For the purpose of determining liability, they are both "independent contractors" and do not cause the person for whom the enterprise is undertaken to be responsible.

Mr. Scott attempted to counter this evidence through its "expert" witness, Professor Shupe, who baldly asserted that CAN maintained a secret policy condoning involuntary deprogramming. This testimony was nothing more than hyperbole based upon guilt by the association of Ms. Landa and CAN in the "anti- cult movement." Beyond such conjecture, Mr. Scott failed to offer any credible evidence that CAN did not oppose the tortious and conspiratorial conduct at issue in this action. CAN moved in limine to exclude Shupe's testimony. CAN appeals the district court's error in allowing that testimony as addressed infra, beginning on page 34.

Indeed, the unrefuted record evidences CAN's mission to educate and inform the public about destructive cults. None of the CAN documents entered as trial exhibits contain any "hateful" or inflammatory language. (ER 7, 8). One can only speculate whether the alleged "hateful" and inflammatory CAN pamphlet which was the subject of Mr. Scott's vague testimony (RT 2/27-28) exists as he never made it part of the record.

The four elements necessary to prove a conspiracy to violate civil rights under 42 U.S.C. 1985(3) are (1) a conspiracy; (2) to deprive any person or class of persons of equal protection of the laws, or of equal privileges and immunities under the laws; (3) an act by one of the conspirators in furtherance of the conspiracy; and (4) personal injury, property damage, or a deprivation of any right or privilege of a citizen of the United States. Gillespie v. Civiletti, 629 F.2d 637 (9th Cir. 1980).


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