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

vs.

CHURCH OF SCIENTOLOGY FLAG
SERVICE ORGANIZATION, INC

SPN: 01980179

RESPONSE TO DEFENSE MOTION TO DISMISS BASED UPON THE RELIGIOUS FREEDOM RESTORATION ACT

Comes now, Bernie McCabe, State Attorney for the Sixth Judicial Circuit of Florida, by and through his undersigned Assistant State Attorney, and hereby files this his Response to Defense Motion to Dismiss Based Upon the Religious Freedom Restoration Act, and as grounds therefore would show:

I. FACTS OF THE OFFENSE

A. LISA MCPHERSON.

Lisa McPherson was a thirty two year old Texas native who had been involved in Scientology for many years and who worked for a Clearwater business owned by other Scientologists. She had been had been in Clearwater and associated with the Church of Scientology Flag Service Organization, Inc. (CSFSO) since 1994. Records indicate that Lisa had spent between 50,000 and 100,000 dollars on self improvement courses and auditing' in the two years prior to her mental breakdown and death. She had a fear of insanity; both her father and brother had committed suicide. Despite 18 years as a Scientologist and expending large sums of money for "spiritual treatment," McPherson struggled with psychological problems throughout the last year of her life. During that year, Lisa had paid $58,000 for Scientology services, yet had allegedly suffered a partial "psychotic break" during the summer. Her account was debited over $20,000 for auditing services during July and August of 1995 alone. The defendant, nonetheless, confirmed at her September of 1995 "graduation" that she had reached the advanced state of "Clear." Clear is defined by Scientology doctrine as being that:

At the time of her death, Ms. McPherson's checking account balance was $140 and she had approximately $11 remaining in her savings account.

B. SCIENTOLOGY AS A RELIGION AND CSFSO AS A CHURCH.

The State acknowledges that although it originated as the secular activity of Dianetics, Scientology philosophy contains precepts such as reincarnation and the immortality of the spirit that are both metaphysical and religious in nature. Based upon this and other attributes of Scientology, Courts have found believers in Scientology to qualify for religious protection under the First Amendment. The State does not concede, however, that every precept or assertion in the vast library of works created by the prolific L. Ron Hubbard, Scientology's founder, to be religious tenets, beliefs or practices within constitutional or statutory protections.

Moreover, despite the inclusion of the word "church" in its corporate name, the State does not concede that the corporate defendant is coextensive with being the "Church of Scientology." The term "church' usually denotes the physical structure where religious worship occurs and has also come to refer to the body of believers It is clear that CSFSO equates with neither.

A multifaceted non-profit corporation owning numerous buildings in the Clearwater area including a hotel, restaurant and numerous housing facilities, the defendant engages in extensive revenue generating activity by providing self-improvement services for clients or adherents for substantial advance fees which it refers to as donations. The courses and materials cover a wide range of topics, many of which can be objectively described as secular in nature. CSFSO facilities sell lodging, food, publications, and assorted other items.

Under either its official corporate structure or the divisional management scheme imposed on it by Hubbard's teachings, neither the adherents nor clients who have participated in services provided by the corporation have any authority in its organization, employment decisions, or management and it is unclear if individual Scientologists belong to or are registered members of a specific "Church."' In both a legal and practical sense then, CSFSO is an entity distinct from the body of adherents who may attend courses or receive auditing there. The defendant has itself indirectly acknowledged this dichotomy in complaining that the negative media reports have repeatedly failed to distinguish the local corporation from the religion itself or its body of believers.

C. OVERVIEW OF LISA MCPHERSONSS "TREATMENT" AT THE FORT HARRISON.

Less than three months after achieving the Scientology status of "Clear," McPherson undressed and walked down the street naked after being involved in a minor accident in which she was not injured. Her actions and mechanical speech, which was littered with Scientology terminology, suggested the existence of unresolved mental and emotional problems despite her eighteen year use of Scientology "technology." Lisa told paramedics that "Nobody knows this" but I'm an "OT" (an operating thetan, a Scientology state beyond that of "Clear"). She indicated she wanted people to think she was crazy because she wanted help. She referred to herself variously as a bad person, having bad thoughts, who had taken "her eyes off the object" and was tired and wanted help. She agreed to go with paramedics to nearby Morton Plant Hospital for evaluation.

Within minutes of her arrival, a group of Church of Scientology Flag Service Organization, Inc. (CSFSO) supervisors and employees arrived at the hospital and attempted to intervene. While at least one handed out anti-psychiatric literature, others insisted on being present with Lisa in the emergency room. With these CSFSO employees and other Scientologists waiting nearby during the evaluation, hospital personnel determined that Lisa did not meet the criteria for involuntary hospitalization and that she did not wish to stay voluntarily at the hospital. After corporate employees assured the hospital staff that they would be responsible for her, Lisa agreed to leave with her "friends from the congregation," and was discharged against medical advice into their care.

After leaving Morton Plant Hospital in the custody of CSFSO employees, Lisa was taken to the Fort Harrison Hotel, a Clearwater facility less than a quarter mile from the hospital which was owned and operated by the defendant. From minutes after her arrival until seventeen days later when her dead body was delivered to a New Port Richey emergency room, no one other than officers or employees of the corporation saw her, touched her or spoke to her. She had no contact with her family, had no access to outsiders, had not been permitted to leave the hotel, and had remained physically and mentally incapable of caring for her own needs.

During that period, more than two dozen corporate employees, from CSFSO's Security division, its Medical Liaison Office, and numerous other corporate offices shared responsibility for her care. Employees were assigned to watch her and made daily reports on her condition to Alain Kartuzinski, who at the time was the Senior Case Supervisor for CSFSO. As the Senior "C/S" he was the highest ranking corporate employee responsible overseeing the quality of spiritual technology or auditing - one of the major functions of the Clearwater corporation. His job included treating so-called "PTS, Type III's."

Lisa's descent from marginal competence to delirium occurred rapidly during the corporation's attempts to diagnose and "treat" her. The State believes that the evidence will show that CSFSO employees attempted to diagnose Lisa's condition without medical help and, without her consent or competent medical authority, force-medicated her with substances to treat her apparent insomnia and delirium, injected her with muscle relaxants to induce sleep and fed her concoctions of herbal remedies mixed with food, vitamins and prescription medication.

Despite the obvious deterioration of Lisa's mental and physical health, she was never taken to or seen by a licensed medical doctor from the time she arrived at the Fort Harrison until her death 17 days later. She lost weight and became weak in the corporation's exclusive care, losing 20-40 pounds. She grew too weak to walk and eventually became so severely dehydrated that she would have been virtually unresponsive for from one to three or more days prior to her death. Her death was a result of her severe dehydration and immobility which led to the development of a pulmonary embolism. Despite clear warning signs of the severity of Lisa's condition, CSFSO employees intentionally bypassed readily available emergency care at nearby Morton Plant Hospital (where doctors had warned CSFSO employees that they would be held responsible for Lisa's welfare) and delayed for hours before driving her to an emergency room in another County.

D. THE FORENSIC EVIDENCE.

Chief Medical Examiner Joan Wood determined based upon the autopsy conducted by Dr. Robert Davis, the laboratory results reflecting vitreous levels, and consultation with outside experts that Lisa McPherson's death occurred as a result of severe dehydration and immobility which resulted in a pulmonary embolism. The five foot eight McPherson, whose weight eighteen days earlier had been estimated at 150 pounds by paramedics and 135 pounds by one of her caretakers, weighed approximately 108 pounds at the time of autopsy. Her sunken eyes and cheeks and her dry skin reflected a gaunt appearance consistent with her severe dehydration. Her mouth, teeth and eyelids were crusted with dried, solid material. She had bruises on her hand and back, as well as the side of her left thigh and also had a series of smaller bruises up and down the lower part of both legs. There were numerous abrasions on her hands wrists and lower arms and on her feet and lower legs, with some of these abrasions having the appearance of insect bites. At the beginning of her stay Lisa had been described as being in good health, with her legs unblemished, having almost perfect "porcelain-like" skin.

The visual evidence of Lisa's dehydration is well established. The caretaker notes and testimony establish a continuing concern with the amount of food and fluid Lisa was taking in. She was estimated to be 150 lbs. by paramedic Bonnie Portolano at the time of the accident and weighed approximately 108 pounds at autopsy. Janis Johnson acknowledged that on the day of her death Lisa looked very thin, as if she had lost weight and appeared to be "majorly" or very dehydrated prior to being taken to the hospital. Johnson described Lisa's skin and sunken eyes as indicating the degree of her dehydration. Dr. Minkoff also indicated she looked "horrific" when she arrived at the Columbia NPR emergency room and appeared to be severely dehydrated. Despite generic language in the autopsy report that Lisa was of "average nutritional status" it is clear from Dr. Davis' testimony that he felt she showed obvious physical symptoms of dehydration. Davis describes a "Hippocratic Facies" as being present. This term, normally used to denote the "face" of death, is used (or misused) by Davis to describe the sunken facial expressions, gaunt look and texture of the skin indicative of significant dehydration. The autopsy photos confirm these observations.

The tests run on the vitreous humor taken from the chambers of the eyes at autopsy provide even more dramatic evidence of dehydration. These samples are drawn from both eyes in a single syringe, then refrigerated until removed for analysis. Forensic research has confirmed that postmortem levels of such substances as urea nitrogen, chloride, creatinine and sodium from the vitreous fluid removed from the eye are accurate reflections of the level of those substances in the blood at the time of death. Lisa's levels were extremely elevated and indicated extreme dehydration:

All of these levels are significantly elevated. Sodium levels in the blood normally range from 136 to 142 with readings over 145 being considered diagnostic of hypernatremia.

The 161 Chloride level is also significantly above the normal range of 95 to 113 for serum chloride. Creatinine is an end product resulting from muscle activity.

Normal levels are between .5 and 1.4. Levels of creatinine are relatively unaffected by diet and it is therefore a useful measure of kidney function. Urea Nitrogen is a substance created as a result of protein metabolism and produced in the presence of specific enzymes in the liver and is particularly stable in vitreous fluid after death. Lisa's urea nitrogen level is extraordinarily high. Urea nitrogen is normally present at a ratio to creatinine of 10 to one; Lisa's urea nitrogen level is almost 100 times her already elevated creatinine level.

Consultation by Dr. Wood with other medical examiners and clinical specialists has confirmed that these test results are consistent with McPherson's condition and Wood's conclusions. At this level of dehydration, Lisa would have been severely and obviously symptomatic for a considerable time and for at least the last 24 hours would have been virtually unresponsive. These experts further believe that the extreme dehydration, which dramatically reduces blood volume and pressure, and the immobility resulting from her condition, would have been the logical cause of the thrombus that led to the embolism.

Dr. David Minkoff, the Scientologist and physician who pronounced Lisa dead, has suggested in his testimony, however, that Lisa may have been "septic" and that a massive infection may have played a part in causing diarrhea and "acute" (i.e. quick onset) dehydration. Minkoff based this speculation on a positive test for bacteria in her blood and his interpretation that the abrasions on her extremities were septic petechiae. The State's experts discount the single blood test (two are normally drawn) as being contaminated by skin bacteria. The autopsy results clearly reflect that the lesions on Lisa's body are in fact abrasions with no underlying hemorrhaging and therefore not petechial hemorrhages caused by a systemic infection. It would be impossible for the urea nitrogen levels reflected in Lisa's lab tests to have occurred in such a brief period. Moreover, although one caretaker suggests Lisa did have some diarrhea the night before her death, there is no evidence or testimony suggestive of the type of massive or continuous diarrhea which would be symptomatic of sepsis or sufficient to cause severe but acute dehydration.

E. THE INVESTIGATION.

Hospital authorities notified police of McPherson's death. An autopsy was ordered and an investigation into the unusual and suspicious circumstances of her death began. The following day police attempted to view the room in which Lisa had been kept, and were shown a room that had been completely cleaned and its furniture changed. In a February, 1996 letter to police, CSFSO corporate counsel and resident agent Robert Johnson claimed that Ms. McPherson's stay at the Fort Harrison Religious Retreat was intended to provide her with "rest and relaxation," indicating further that "She had been involved in an automobile accident and may have suffered some physical trauma and mental anguish. The Church provided her with safe and familiar surroundings." The letter reiterated that the Medical Liaison Office employees were not licensed to perform medical functions and that their function was only to help find a doctor or dentist for a parishioner. Initial interviews continued to portray Lisa as a parishioner voluntarily staying at the Ft. Harrison for "rest and relaxation," who was not under full-time observation but rather received some extra attention when requested. Public statements and press releases by the defendant and Scientology spokespersons confirmed this false view and denied responsibility, even though internal investigations by CSFSO the night of Lisa's death evidenced a completely different picture.

Illustrative of the early statements are the May 29, 1996 and May 30, 1996 taped interviews of Janis Johnson and Alain Kartuzinski by the Clearwater Police Department which were conducted in the presence of CSFSO corporate counsel Robert Johnson. Janis Johnson was a deputy in the Medical Liaison Office who was responsible for handling staff employees in their dealings with health related professionals. She had graduated medical school and been a licensed as a practicing physician before problems caused her practice to close in 1993 and let her license lapse in 1994. She has never been licensed in the State of Florida.

Alain Katcuzinski was the acting Senior Case Supervisor, the top auditor and head technical person within CSFSO's corporate organization. He had in the past been Lisa's personal auditor. After being notified that Lisa had been in an accident and was at the emergency room, he arrived at the emergency room and remained near the entranceway during Nurse Joe Price's attempt to interview Lisa. He drove Lisa to the Fort Harrison and had others assist her in getting a room. Despite his denials of involvement in the taped statement, it was later learned that Kartuzinski briefed many of the caretakers, instructing them that Lisa was a "Type III" and telling them to prevent her from hurting herself or others.

During interviews with police Johnson portrayed Lisa as a parishioner staying at the Hotel for rest and relaxation who was to get extra care from the staff, but not as being a clearly incompetent, severely disturbed woman who was actually unable to speak coherently and oblivious to her own needs. Johnson stated she first met Lisa about five days after the stay began. Johnson had gone to see Lisa with Suzanne Green (Schnurenberg) to make sure everything was okay because Suzanne had some concerns.

Janis repeatedly told detectives that "they" were not attempting to treat her mental or physical problems ("That is not the point of scientology: the Church does not do that.") because she had been "checked" out at Morton Plant and found not to be a danger to herself or others." She stated Lisa had not requested any services and none would have been provided without her consent. She also claimed Lisa was taking an herbal supplement on her own, insisting that the M.L.O. would not make recommendations about over the counter sleep aids.

During the interview Johnson repeatedly misstated or minimized the symptoms and bizarre behavior which we now know that Lisa exhibited. She said Lisa was "just upset" but "she was `with it'"; that Lisa just needed a break to get away from everything; if things weren't going well then (according to what Suzanne allegedly told Johnson) she would probably just sit and think about it and it would be hard for her to get to sleep. She described Lisa as merely being "thin and real wound up" on Johnson's first visit and claims that on a second visit Lisa was better and made a coherent request for powdered vitamins. She implied that it was Lisa who was taking the herbal remedy valerian root. (In fact, Lisa would frequently refuse to swallow these and caretakers would mix them with other substances to induce her to swallow them.) She acknowledged a single episode in which Lisa went into a rage stud had to be given a "big hug" for about ten minutes till she calmed down (she was actually restrained for an hour on one occasion) but stated that was the only problem that they had. On the day of Lisa's death, Johnson indicated she had a coherent conversation with Lisa in which Lisa overcame her own reluctance and agreed to go to the hospital.

Johnson was also evasive and intentionally misleading when detectives repeatedly asked if anyone was assigned to look out for Lisa on a continuing basis, indicating Lisa was merely a "hotel guest"; it was true that they gave Lisa some extra services as people checking up on her but "nothing like that." She claimed she was not sure what Lisa did or where she went during the day. (In fact she never left the room except for venturing a few feet out and being "guided" back in.) Johnson further indicated "The plan was have the people around there in the hotel just give her some extra attention." Asked if anyone checked on her on a routine basis, she responded that Suzanne would pop in to make sure everything was fine.

Janis failed to mention the assignment of other staff members to serve as Lisa's caretakers, failed to mention Lisa being force-medicated or her own involvement in giving Lisa medication and shots, and did not mention her being removed from most of her normal duties and being specifically assigned to Lisa. She did, however, admit that except for Suzanne (who was a friend of Lisa) she knew as much as anyone about Lisa's stay. She admitted that she not only talked to others about Lisa's condition and got reports on her but on average went by about every other day to check on her. She indicated she usually tried to go by around four in the afternoon.

Johnson indicated that she had first noted bruises on Lisa the week of Thanksgiving after Lisa had gone into a rage and was kicking furniture. The Friday after Thanksgiving week (an apparent reference to Friday, December 1) she noticed that Lisa's health was deteriorating; Lisa was noticeably thinner but calmer and had been sleeping better. Johnson allegedly told Laura Arrunada (an M.L.O. employee who had been to medical school in Mexico City but had never been licensed) to take extra time to get fluids and food into Lisa over the weekend. Janis was to be involved in a project over the weekend and knew she would not be able to check on Lisa. When she got back into her normal routine on Monday she went by to see Lisa on that night around eight p.m., and Lisa was already asleep under the covers. Janis backed out of the room and didn't wake her. According to Johnson, Laura indicated she had some difficulty getting food and fluids down Lisa but did not indicate that her condition had worsened. She did not go by the next day until around seven p.m. when she was beeped by Laura. When she got there, Johnson claimed that Lisa looked septic (with what appeared to be petechial hemorrhages) and very, "majorly" dehydrated. She was allegedly talking slowly, but not babbling nor not making sense. Lisa was allegedly happy to see her and though expressing hesitation agreed to go to the hospital for treatment. Johnson stated she called Dr. Minkoff, telling him that Lisa needed to be seen tonight and asking him to give them a room away from the "hoo ha" of the normal emergency room.

Similarly, Alain Kariuzinski's initial statements to police gave no hint of Lisa's severe psychosis, his involvement in setting up "caretakers" to watch her around the clock, or that he had directed that he be updated by written reports on her day to day condition. Kartuzinski indicated he knew Lisa in passing as he did hundreds of other parishioners. He stated he was informed (he believed through a phone call from David Slaughter, Lisa's employer) that Lisa had been in an accident and was at Morton Plant. When he couldn't find another minister to go, he went down to the hospital himself. He was allowed back to the area where Lisa's was being questioned by psychiatric nurse Joe Price.

According to Kartuzinski, Lisa answered Price's questions, indicating she was oriented to time. Lisa wasn't crying but seemed embarrassed. Price asked him to leave the room while he continued to question her; Kartazinski walked to the corridor where DeCuypere and another scientologist were, but remained within earshot. Lisa trade it clear she did not want to stay at the hospital, but wanted to go back to the Ft. Harrison with her friends from the Church. Kartuzinski further stated that Price decided there was no reason to keep Lisa and she was allowed to check out.

Kartuzinski had the idea that she just wanted to go for rest and relaxation and she gave no indication of seeking services. He drove her to the Fort Harrison, dropping her off so she could check into a room. He implied that Lisa checked into the room herself in the ordinary course of events. About ten minutes later, Kartuzinski went to the room and briefly checked on her; she said she was okay. He claimed he did not see her again throughout her stay .

His only follow up was calling the M.L.O. and talking to "whoever answered the phone" and asking them to check on Lisa and see if she needed anything. He was told she wasn't eating or sleeping well the first two or three days but that it was better now.

He stated he was notified in the afternoon or evening the day of her death that there was some sort of medical difficulty. He called for someone to check it out. (He believed Lacy Spencer, his assistant, had brought the problem to his attention.) He said that later that evening Janis came by and said Lisa had some infection and she was worried; she asked to use the phone to call the doctor. She called Minkoff and Alain "guessed" that Minkoff acknowledged that something needed to be done. (Kartuzinski claimed not to have understood a lot of the terminology). When asked what happened to Lisa's personal effects and who cleaned the room, Kartuzinski said he had no knowledge but the hotel did have maids. The detectives sum up saying "So... at Lisa's request she was pretty much you say left alone during this period of time?" Kartuzinski responds "I imagine."

As the police investigation progressed into 1997, actual caretakers were identified and interviewed under oath (after insisting on immunity) and their written records of caring for Lisa were subpoenaed. A different picture emerged.

It became clear that Lisa was delusional and combative throughout her stay, was watched on a 24 hour basis by CSFSO employees because of the severity of her illness, had repeatedly resisted her "caretakers," and was subjected to forced medication and injections. It was learned that written daily records were kept of Lisa's condition, but that crucial records, including all written reports relating her condition on the last two days of her life, had mysteriously and without adequate explanation disappeared. As these facts came to light and the falsity of the initial interviews of CSFSO employees became obvious, additional CSFSO witnesses also refused to testify on Fifth Amendment grounds unless given use immunity.

The inaccuracy of the initial statements, however, would have been known to the defendant at the time they were made. Almost immediately after Lisa's death, the Office of Special Affairs (OSA), which handles legal and public relations problems for the corporation, began an investigation. All personnel who had contact with Lisa were directed immediately to "Flag" and ordered to write down their observations and contact with Lisa. These first hand accounts by the witnesses were then "summarized" in a typewritten memo by OSA employee Marcus Quirino. Corporation Vice President Brian Anderson also wrote a summary of a conversation with David Minkoff. Anderson shared this latter summary with CSFSO attorney Robert Johnson the next day, but stated he did not provide Johnson any of the Quirino memos. Anderson later destroyed all the original notes which had been written for Quirino by the caretakers. At least one of the persons who accompanied Lisa to the hospital (Paul Greenwood) was ordered to write a report to CSFSO security office. Officials also secured Lisa's confidential "PC" folder where the original caretaker's were kept and in which Kartuzinski testified he had made notes during Lisa's stay on his plan for Lisa's treatment.

Despite the corporation's knowledge of the inaccuracy of the statements to police, it continued to affirm the reliability of the information given to officers. In a December 1996 press release castigating the Clearwater Police Department, the "Church," listing CSFSO counsel Robert Johnson and CSFSO Vice President Brian Anderson as contact persons, urged in part:

Eventually, CSFSO supplied approximately thirty pages of notes in response to State subpoenas. The notes were written by eleven separate caretakers covering nineteen shifts on eleven separate days." CSFSO also supplied the internal reports generated by Brian Anderson and Marcus Quirino. The notes detail the severity of Lisa's psychosis and her refusal to eat and drink normally on any regular basis. They also describe instances where Lisa was violent and restrained, where she attempted to leave and rejected attempts to medicate her with prescription medications, herbal remedies, vitamins, over the counter substances and even magnesium injections. The notes stand in stark contrast to the taped statements of Johnson and Kartuzinski and expose their concerted initial attempt to mislead the police at the beginning of the investigation.

One of the notes is entitled M.L.O. Report, is in Johnson's handwriting and is signed by her as "Janis Johnson, M.O." It is a directive dated the Friday before Lisa's death and indicates:

This note corresponds with caretaker notes by Boykin indicating Johnson was present and gave Lisa Magnesium shots; it is also consistent with other testimony about Sylvia DeLaVega suffering a "burn out" after caring for Lisa. This note signed by Johnson as M.O. ( a apparent reference to "Medical Office" or "Medical Officer") reflects her diagnosis that McPherson was suffering from dehydration and her prescription of treatment by trained personnel.

Concerted but unsuccessful efforts were trade to locate the missing records, particularly those relating to the last two days before Lisa's death. The chain of custody on the existing records is hopelessly confused and is complicated by the fact that the records were in "PC" folders which may not be reviewed by Scientologists of a lesser level than Lisa. It appears that all the records were in Kartuzinski's office before Lisa's death. After Lisa's death they were gathered up from Kartuzinski's office by Annie Mora and sent to California. The files were searched for relevant documents by Lynn Farney who apparently then sent documents to the attorneys for the Church in Clearwater. Despite extensive and time consuming efforts many records remain missing with no explanation. The report written by Paul Greenwood, all caretaker notes by Heather Petzold, all caretaker notes for the final two days of Lisa's life and all contemporaneous notes of the incident by Kartuzinski have been removed from Lisa's "PC" folder and lost or destroyed.

The details from these remaining records and the sworn statements of CSFSO employees indicate that from the outset of her stay and continuously until the evening of her death, Lisa was viewed by her caretakers as deeply psychotic and unable to care for herself, talk coherently or make logical decisions. She was watched initially by Emma Schamerhorn, an elderly lady working in the Medical Liaison Office (M.L.O.). Because of Emma's age and the importance of having continuity in Lisa's care, Alain Kartuzinksi approached Andrea Sprecher and got permission to have Janis Johnson of the M.L.O. assigned full-time to the task. Under Kartuzinski's direction, other employees organized a schedule where caretakers were assigned to watch Lisa for her twenty-four hours a day. Only one of the caretakers knew Lisa to any extent. They were asked to make written reports to Kartuzinksi. Lisa's behavior as described in these notes indicated she was hyperactive, delusional and hallucinating. She tried to harm herself and others early in the stay, struck caretakers, engaged in repeated self-destructive behavior and had to be forcibly restrained on several occasions to prevent injury to herself or her caretakers.

After the first week, Lisa routinely urinated and defecated on herself and rarely slept. She had conversations with people who were not there, claimed to be people she was not, sang and danced around the room as if giving a performance, crawled around on the floor, stood in the toilet, got in the shower fully clothed, tried to walk out of the room in a state of undress, "humped" the floor as if having sex with an imaginary person, drank her own urine and on at least one occasion placed her head in the toilet.

It is impossible to reconstruct the actual amounts of fluid and food ingested because the caretaker notes are erratic and imprecise in their notations and they were written by untrained CSFSO employees rather than health care professionals. We also do not have notes or accurate testimony for every shift. It is clear, however, that after the first several days Lisa never completed a normal meal and her only real sustenance was an occasional protein shake and mixtures of fruit and protein powder. She sometimes would ingest an entire shake and on other occasions would spit out everything that she was fed. Her fluid intake was also limited, although again no precise amounts can be reconstructed from the available documents and caretaker testimony.

The combativeness that exemplified the early portion of her stay seemed to subside and guards were no longer posted at the doors for the last four or five days of her life. At one point Sylvia DeLaVega could no longer handle her caretaker responsibilities and they were undertaken by more emotionally stable staff members. By Saturday, December 2nd, both Heather Petzold (in her oral testimony) and Rita Boykin (in written notes to Kartuzinski) indicated that Lisa had grown so weak she could no longer stand or walk. They have since said, however, that Lisa made a "partial" recovery gaining back strength before her sudden demise on Tuesday December 5. The State's testimony will indicate that Lisa's dehydration was so severe that she would have been extremely and obviously symptomatic for at least a day and probably several days before her death. These symptoms would not only include mental confusion, but during the last few days lethargy increasing to almost complete unresponsiveness.

When Lisa was allowed to leave Morton Plant on Saturday November 18, 1995, CSFSO employee Judy Goldsberry-Weber, a subordinate of Johnson's in the Medical Liaison Office, had promised Dr. Lovett (whom she knew from prior dealings) that Lisa would receive necessary care. Weber later learned that Johnson was involved in Lisa's care and asked Johnson how Lisa was doing. Johnson gruffly told Weber to not to talk to anyone about it that she (Johnson) had been placed in charge and Weber was no longer involved. Some days later, Weber was asked to pick up a prescription for Lisa from a Largo pharmacy (she believes it was valium, but detectives have been unable to locate this prescription). She again asked Janis how Lisa was doing in case she ran into Dr. Lovett and he asked. According to Weber, they wound up getting in a screaming match after Janis said "You don't have to worry about him, I'm in charge. Butt out."

David Houghton testified that he overheard Janis talking on the phone about getting Lisa to take medication. Houghton, a dentist who was preparing to seek licensure in Florida, indicated he believed he could get Lisa to swallow. Later, probably on the 21st, he and Janis had a conversation with Dr. Minkoff about prescribing medication to help Lisa sleep. Houghton testified that there was an initial discussion of liquid chloral hydrate but they were unable to find that at any pharmacy. Dr. Minkoff then prescribed injectable valium under Houghton's name for Lisa after a second phone conversation involving Minkoff, Houghton and Johnson. Houghton picked up the valium from the pharmacy and returned it to Johnson the next day. During these conversations with Minkoff, Houghton and Janis described Lisa as a Type III (a psychotic person) who was having difficulty sleeping. Hougton did not believe that Lisa was ever given the valium, because in a follow up conversation with Alain Kartuzinski he overruled using this drug on the premise that it may be too strong and affect later attempts at auditing.

Houghton then, on three occasions with Kartuzinski's approval, medicated Lisa with a mixture of Benadryl (an over the counter antihistamine generically known as diphenhydramine which is used in non-prescription sleep aids) and aspirin. The aspirin was suggested by Kartuzinski after looking up Hubbard writings that suggested that aspirin may serve to block some of Lisa's visual delusions. Houghton did this by filling an irrigating syringe with a crushed aspirin and Benadryl (a syrup) mixture then injecting it down the back of Lisa's throat. while she was held onto by others. He never discussed with Lisa what he was giving her or why, as she was not capable in his estimation of coherent conversation or consent. Houghton was relatively sure he told Janis about this after the first incident and before the next two.

Weber recalled overhearing Houghton and Laura discussing the procedure and became very upset; Weber has a nursing background and knew patients could only be force medicated with physician authorization. According to Weber, Houghton and Laura closed the door so that Weber could no longer hear what they were talking about. Weber then confronted Janis about this, asking what doctor had approved such a procedure. Janis said to "butt out." When Weber indicated she thought something was wrong, Johnson said that it was not Weber's concern. Weber indicated to Johnson that she had never known Lisa to be violent and Janis responded "Well, you know psychotic breaks." Weber was so upset about this unauthorized use of forced medication that she called the CSFSO legal office and asked Judy Fontana to "check it out." Fontana's status in the corporation is indicated by her elevation to an officer of the corporation in early 1996. Her husband Humberto Fontana was in the Office of Special Affairs and had been present at Morton Plant when Lisa was released.

It appears from caretaker notes, witness interviews and Johnson's taped admissions that prior to December 5th, Johnson was at Lisa's room on at least six dates - on November 23rd, November 24th, November 29th, November 30th, December 1st, and December 4th - and that she talked with the caretakers or others about Lisa on November 26th, 27th and December 3rd, 1995. Documents and testimony concerning these dates provide relevant detail concerning Lisa's treatment and Johnson's involvement:

Kartuzinski declined to provide sworn testimony to the State Attorney's Office without immunity. In October of 1998 he was subpoenaed in for a State Attorney investigation, receiving statutory use immunity as a result of the subpoena. Kartuzinski acknowledged being at the emergency room and driving Lisa back to the Ft. Harrison. He acknowledged lying to the police in his earlier taped statements out of concern for himself and "possibly" concern for the Church but denies coordinating those falsehoods with other witnesses. He admitted that he did a report of his interview with the police for the Office of Special Affairs after it occurred. He testified contrary to his earlier taped statements to police that he had a brief conversation with Lisa when she first arrived at the hotel in which he suggested it may be necessary to do some auditing and that it would be nice if she would sleep, take vitamins and eat well in preparation for this. According to Kartuzinski Lisa said okay. Kartuzinski did not discuss any specifics with her because he had not yet determined what auditing would be necessary. Within a short period of time, Lisa's condition deteriorated markedly and she was incoherent and no longer competent to make decisions or handle everyday affairs. He had no explanation for not calling Lisa's family to inform them of her condition.

Kartuzinski acknowledged getting oral reports from Janis Johnson and written reports from the caretakers. He states that the latter were put into Lisa's PC folder by him. He also wrote notes about this in about ten separate pages in the PC folder and made about 20 pages of notes concerning scriptures and Lisa's condition. Kartuzinski also read a report from auditor Ruthie Humphery. Humphrey had attempted to audit Lisa during the middle part of her stay after she had enough sleep. Lisa began licking the e-meter; the auditing did not continue and was never attempted again during Lisa's stay. These notes are also not in the PC folder.

He recalls reading the notes from Petzold or Boykin indicating that Lisa was too weak to walk or stand and being concerned about her condition. He states that he also read the subsequent reports up to her death (these along with all of Kartuzinski's notes are missing from the file) and recalls them being about the same - that her condition had not improved which was "not very able to walk, still not eating enough, still not sleeping" or drinking enough."

Kartuzinksi further claimed that Lisa was PTS Type III. He defined PTS as a potential trouble source, meaning that Lisa would be viewed as someone who represented a threat to herself and to the "Church."

Kartuzinski claimed he was notified between 5-6 p.m. that Laura was trying to get in touch with Janis about Lisa and that subsequently Janis came over to his office after seeing Lisa. She was out of breath (as if she had hurried to his office) and concerned that Lisa was septic - meaning she had a "big" infection. They called Minkoff together and Minkoff would not prescribed antibiotics without seeing the patient. Kartuzinski specifically contradicts Minkoff's assertion that he suggested that they take her to Morton Plant if Lisa was really ill, even though others in the NPR emergency room recall overhearing this part of the conversation.

Finally, Kartuzinski acknowledges that Lisa's treatment was not in accord with the tenets of Scientology. Hubbard "scriptures" indicate that Type Ill's can only be handled by Scientology organizations with hospital facilities (neither Flag nor any other Scientology facility meets this criteria) and a specific directive prevents the treatment of "psychotics" at Flag. The Scriptures require a full medical examination of a person in such a distraught condition. Kartuzinski admitted that at the time of the examination at Morton Plant and his initial contact with her at the Fort Harrison she was not displaying the severe mental symptoms that later developed. Finally, Kartuzinksi acknowledged that Lisa did not consent to the injections and medications he had given to her and she was not capable of doing so.

Kartuzinski attested that at the time of Lisa's death he was the Senior Case Supervisor for CSFSO and as such was the highest person in the organization with control over the handling of Lisa's situation. He informed Debbie Cook, the Captain of Flag, of the incident and she would have been aware of the nature of Lisa's condition from his conversations with her. No one at the time was higher in the organization to notify than Cook. Cook acknowledged in her own testimony being informed of Lisa's stay and getting periodic updates on her condition. Paul Kellerhaus (Senior in the Hubbard Communications Office), and Arthur Baxter (Head of Security) were heavily involved in the watch process. In addition Brian Anderson, vice president of the corporation, has acknowledged being informed of the situation and getting briefed by Paul Kellerhaus every several days about Lisa's condition. In addition to these individuals and the caretakers, the security guards posted at Lisa's door, and the supervisors who briefed them and organized a schedule, a significant number of other people in the hierarchy were aware of Lisa's situation and received updated information from briefings or conversations with other employees: Marcus Quirino (Chief Deputy Officer and Chief Officer's Organizing Officer), Annie Mora (Office of Special Affairs), Janet Herring (Organizing Officer for Chief Officer of Flag and former Director of the Corporation).

F. THE ISSUE OF CONSENT.

Informed consent means a voluntary decision after sufficient explanation and disclosure that the person has at least a general understanding of the medically acceptable alternatives to make a knowing health care decision without coercion or undue influence. In this case it should be viewed in the context of Lisa's 18-year sojourn with Scientology procedures which over the course of the year proceeding her death had failed her.

Despite expending large sums of money, she had mental and emotional difficulties throughout the year of her death resulting in a mild "psychotic episode" in the summer of 1995. This was followed by a declaration that she had finally reached her goal of Clear, and therefore by Scientology definition should have had no more "engrams" that could be "restimulated" to cause the "psychotic break" that she subsequently experienced. She had spent over twenty thousand dollars on courses and auditing over that summer alone, and despite financial difficulties and diminishing productivity at her job, had committed herself to another $10,000 to reach even higher levels. After August of 1995, however, she did not pursue these courses or pay the additional monies to which she had obligated herself and in fact did not use up the auditing services that she had already prepaid for. She contacted her mother (who was not a scientologist) that fall and told a lifelong, non-scientologist friend that she was coming home to Texas for Christmas and staying for good.

Her conduct at the time of the accident (at least prior to the arrival of her fellow Scientologists) at best suggested ambivalence. She indicated she wanted people to think she was crazy because she wanted help. She referred to herself variously as a bad person, having bad thoughts, who had taken "her eyes off the object" and was tired and wanted help. She agreed to go with paramedics to Morton Plant Hospital for evaluation.

The defendant suggests that McPherson wanted, requested and consented to the treatment (and presumably the abuse and neglect which have been alleged). The sole apparent basis for these assertions, other than Lisa's history as a Scicntologist, is the note in hospital records by attending physician Flynn Lovett that Lisa did not want to stay at the hospital and that the Scientologists had agreed to take care of Lisa and give her the kind of care "she wanted." The defense then suggests, without supporting detail, that Lisa made a specific and affirmative request for "spiritual treatment" by Scientolgists and then attempts to equate this presumed "request" as justification for the forced use of medication, injections, herbal remedies and prescription medicines on an incompetent and resisting patient. This "consenting" patient had been housed by them in a room without access to family or the outside world for seventeen days when she died as a result of her, immobility and dehydration.

Consent is largely irrelevant to both charged crimes. No one can by consent grant permission to another to engage in the practice of medicine as that authority can only be conferred by licensing authorities. Similarly, a disabled adult cannot, by "consenting" to or acquiescing in abuse or culpably negligent conduct that causes death or great bodily harm, eliminate the criminal consequences for the abuser. See, e.g.. In Sientarecki v. State, 724 So.2d 626 (Fla. 4" DCA 1998), review granted by Sieniarecki v. State, 729 So.2d 394 (Fla. 1999). More importantly however, the credible testimony does not support the suggestion of consent. The actual statement of Lisa to hospital officials was simply that she did not want to stay and wanted to leave with her friends from the congregation. According to Judy Goldsberry-Weber she indicated only that she found the noise and confusion and the doctors "poking" her bothersome and wanted to go someplace quiet.

Initial oral and taped statements to police by Janis Johnson and Alain Kartuzinski (the two corporate employees most involved in Lisa's care) indicated that Lisa had not consented to or requested any procedures or medication, and that since it would violate Scientology principles to provide such treatment without informed consent, none were planned. Indeed as late as February 1997 this continued to be the official position of the CSFSO. A February 22, 1997 letter from attorney Sandy Weinberg,who represents the CSFSO in both the civil and criminal proceedings, responded to police inquiries by stating:

In October of 1998, nearly three years after his initial statements to the police and only after being granted immunity, Alain Kartuzinksi has now changed his testimony. He admits that he did not discuss with Lisa the possibility of Lisa going back to her own residence but simply asked her if he could drive her to the Fort Harrison. After Lisa was taken directly to a room in the Cabana area, Kartttzinski had a brief visit with her at the room at which time the following conversation allegedly occurred:

At the time of this alleged conversation Kartuzinski had not yet decided what type or how much auditing needed to be done and had no specific discussions with her about specific procedures, medication, the circumstances or length of her stay at the Fort Harrison or the potential cost she would be facing. Moreover, by Kartuzinski's own admission, Lisa's condition at the time of this conversation was markedly different from her delirious and psychotic state a few days later. Therefore, the possible treatments and alternatives that Lisa faced once she became delusional and dangerous to herself and others were not the same as she had faced at Morton Plant or the first day of her stay when Kartuzinski alleges he spoke with her. The informed decision she would have faced would have been markedly different as she continued to deteriorate in the defendant's exclusive care. After seventeen days of nightmarish failure of the CSFSO's diagnostic and treatment decisions, in which she had lost 20-40 pounds, become severely dehydrated, and developed abrasions and bruises over much of her body, it is unlikely that a rational person would have decided to continue this course. Since no licensed medical doctor ever saw Lisa, and she was not medically evaluated once she became extremely symptomatic, none of her caretakers would have been in a position to explain the alternatives to her. Of course, no one attempted to do so, nor was any informed consent to any of these procedures ever acquired.

The overwhehning evidence, however, indicates that within 48 hours of her arrival at the Fort Harrison and throughout her stay in the hands of the defendant corporation she so markedly deteriorated that she was incapable of coherently discussing her own needs or of caring for herself or of giving consent to any treatment procedure. The persons who gave injections to Lisa, forced medication down her throat with an irrigation syringe, and mixed herbal remedies and other medications in milkshakes did not inform Lisa of the nature and purpose of the substances she was ingesting or attempt to get her consent at least in part because they felt she was incapable of coherent communication.

Over the course of the seventeen days of her stay at the Fort Harrison, Lisa's conduct was anything but cooperative as she descended quickly (if the caretakers are to be believed) into disorientation and auditory and visual hallucinations, repeatedly tried to walk out of the room, fought - sometimes violently - with her caretakers requiring security guards to be posted at her door, rarely slept, refused to eat or drink on any consistent basis, would not voluntarily take medications given her, was held down while unauthorized injections were administered, held down on three occasions while a concoction of prescription drugs and aspirin were injected down her throat by an unlicensed dentist, frequently cursed her caretakers, and also accused them of trying to kill her. Lamps, mirrors and phones were removed from her room.

The condition of her body was a poignant testament to the difficulty of her final days: she had bruises, inflicted by her own conduct or the restraint imposed by her "caretakers" (sometimes accomplished barehanded other times done with a towel to get a better grip), over her extremities and trunk and abrasions, some resembling insect bites, over her hands wrists ankles and feet. Her eyes were sunken as a result of dehydration, her body thinned by weight and water loss. Dried material was caked on her teeth. Even her fellow Scientologists have referred to the visual condition of her body as "shocking and unbelievable" and "horrific."

During Lisa's stay she slept sufficiently to perform auditing on only one occasion and when it was attempted Lisa responded by licking the e-meter then throwing it. No other auditing "treatment" or use of Scientology "technology" was attempted throughout her stay. The defendant was equally unsuccessful in its attempts to gain Lisa's cooperation in taking medications, vitamins, herbal remedies and other drugs, and in eating, drinking and sleeping.

For instance, Teresa Cezare, an Argentinean national who was an employee of the defendant, watched after Lisa on the 24th and 28th of November. Teresa testified that on both occasions Lisa refused to eat or drink and was spitting out food and fluids. She deteriorated from the first visit to the second and had developed more bruises ("violet") on her body.

Cezare indicates she had been told by security guards that Lisa likes to try to leave the room and to not let her do so. On two to three occasions when she was there, Lisa tried to leave and indicated that she wanted to go (she was not fully clothed), but did not indicate that she wanted to go "home." Lisa resisted Cezare's efforts to return her to the room and Cezare had to hold Lisa by the shoulders and guide her back in and sit her in a chair. Similarly, Lisa tried to walk out twice on Security Guard Sam Ghiora when he was posted to the front door of the room. On the first occasion, as she started to walk out the door Chiora pointed to direct her back inside; she initially said that he wasn't CMO (a corporate/church office) and could not tell her what to do and then, referring to him by name said she didn't understand what was happening and for him to please help her. In a second incident, Lisa walked to the door where Ghiora was stationed and attempted first to knee him in the groin and then poke him in the eye. Ghiora states she was not coherent at the time. Other caretakers also report attempts by Lisa to walk out the door or break the window in the room.

Clearly Lisa was also not cooperative in taking medicine or in eating or drinking the food and fluids she was offered by her caretakers. After the first few days, Houghton's involvement was precipitated by the fact that he knew how to make uncooperative subjects swallow medication by using a syringe to put the substance far enough down the throat that swallowing became reflexive. Initial medications were sought in liquid or intramuscular form so they would be able administer them effectively. The caretaker notes and testimonies are replete with indications that Lisa spit out vitamins, medicine, food and fluids. Although her behavior was erratic, it is clear that after the first few days she never had a complete meal and was not eating and drinking enough to sustain life.

For instance, Emma Schamerhorn, who personally cared for Lisa early in her stay before being replaced by Janis Johnson, testified that the most fluid she took in while she was with her was a few swallows of protein shake and couple of swallows of water. She did not think Lisa had more than 2-4 ounces of fluids during the periods that she was on watch; the most Emma ever saw her eat at one time was a banana. Emma agreed that Lisa was not eating and drinking enough to keep her alive in the long run. Similarly, Heather Petzold, who cared for Lisa the second half of her stay, was beginning to get frantic about the situation in early December and noticed Lisa's rapid physical decline over the last several days of her life. Although she didn't believe Lisa needed to go to the hospital, Petzold nonetheless wrote reports around the first or second of December that "she (Lisa) was continuing to scream, you know just things over and over. She's defecating on the bed. She's - she doesn't walk around as much - she is sleeping less. She - we tried to give her protein drinks, we tried to give her like eggs, whatever we could give her, and I haven't been able to succeed. We need to change something." Petzold's reports have been lost or destroyed by the corporation, as have all caretaker notes for the last two days of Lisa's life. Petzold testified that she didn't believe there was any day where Lisa was fed and ate sufficiently.

Lisa's continued resistance was also manifested by the number of times she was restrained and attacked or tried to harm her caretakers. Testimony suggested that Lisa was violent for periods of up to two hours at a time, and had to be held down for periods of thirty minutes, forty five minutes and up to an hour. She attempted to slap, gouge, kick and strike her caretakers, struck one on the arm, gave another a black eye and accused others of wanting to kill her. She was held down while trying to keep her quiet, while trying to take her temperature, while trying to medicate her orally, and while giving her injections.

Janis Johnson has suggested in her taped statement to police in May of 1996, in the presence of corporation counsel Bob Johnson, that it was Lisa who wanted to go to New Port Richey for medical help instead of Morton Plant. Ms. Johnson admitted that it was apparent to her from Lisa's skin and sunken eyes that she was "majorly" dehydrated. In addition, she apparently believed Lisa to be suffering from such a massive systemic infection that her capillaries had burst causing petechial hemorrhages on her arms and legs. Nonetheless, she claimed that Lisa was conscious and coherent and wished to be taken to New Port Richey to Minkoff - to someone who would treat her with respect. Moreover, Johnson suggested that Lisa had not been mentally ill during her stay, but just a little stressed out. She described Lisa as "with it" and just there for "rest and relaxation."

These characterizations were patently false; the severity of Lisa's medical condition as demonstrated by the forensic evidence indicate she was incapable of coherent conversation and essentially unconscious at the time she allegedly had this conversation. Paul Greenfield, who assisted in carrying Lisa to the van and transporting her to the hospital, testified that although her eyes were open she was motionless and uncommunicative for the entire period he saw her. She never spoke to him, acknowledged his presence, or made any voluntary movement of any kind. Her breathing was labored even before the trip began.

Based upon Lisa's bizarre and delusional behavior, every caretaker with the exception of Johnson has described Lisa as incoherent and incapable of making decisions about her welfare. For instance, Leslie Woodcraft testified that Lisa seemed incapable of making decisions, and David Houghton indicated that Lisa was not competent to make decisions on medication or to make even the most basic decisions of whether to see a doctor. Rita Boykin indicated that Lisa only spoke incoherently and that she did not attempt to communicate with her because she did not believe her to be capable of giving a coherent response. Heather Petzold testified that she never had a coherent "comet cycle" with Lisa except for a single occasion on a single day when Lisa asked her name.

Finally, after being granted immunity, Kartuzinski testified under oath that Lisa never asked for any of the medications or other remedies used on her. He acknowledged that it was clear after the first day that Lisa was unable to function by herself, had serious mental problems, and was incapacitated as far as handling day to day living, including being unable to make decisions about her own welfare. Additionally, Kartuzinski testified that he and Janis called Minkoff together before deciding to take her to the hospital in New Port Richey. He is unaware of any discussion with Lisa about where to take her and does not believe she was competent to discuss this. Janis never related that she had such a conversation with Lisa. He states that he made the decision for her to go to the Pasco hospital.

G. SCIENTOLOGY PRINCIPLES.

The Court is not bound to accept self-serving statements of the defendant as to either what its practices are or which of its practices are "religious" in nature. A defendant cannot immunize itself from criminal responsibility by merely attaching the word "religion" to its activities, nor, by blending references to religion into its activities, can it change essentially commercial or secular undertakings into religious ones or expand the rights of religious protection to such non-religious matters. Tony & Susan Alamo Foundation v. Sec. of Labor, 471 U.S. 290, 105 S.Ct. 1953, 85 L.Ed.2d 278 (1985) (Religious foundation which engages in commercial enterprises which include service stations, retail businesses, hog farms, construction companies, a motel, and a candy manufacturer is subject to the provisions of the Fair Labor Standards Act, even where foundation claims all of its activities are a part of its religious mission and foundation's employees claim not to want the protections of the Act).

In United States v. Bauer, 84 F. 3d 1549 (9th Cir.1996), defendants, Rastafarians, were convicted of conspiracy to manufacture and distribute marijuana, distribution of marijuana, possession of marijuana, and various related charges. The defendants appealed. The Court of Appeals held, inter alia, that the federal Religious Freedom Restoration Act was no defense to conspiracy and money laundering charges. The Court observed:

The principle has also been uniformly applied in situations not involving drug laws. In People v. Hodges, 10 Ca1.AppAth Supp. 20, 13 Ca1.Rptr.2d 412 (Ca1.App. 1992), a pastor and assistant pastor, who were also president and principal of church school, were convicted of violating a statute requiring child care custodians to report known or suspected instances of child abuse to the state's child protective agency: The pastors wanted to "handle the matter within the church" in derogation of the law and asserted their First Amendment rights. The Superior Court upheld the conviction, and stated:

Thus, this Court has jurisdiction to determine for itself for purposes of RFRA and other defenses raised by CSFSO what the relevant tenets of Scientology are.

Scientology has its origin in the publication of the book Dianetics in 1951 by L. Ron Hubbard. Hubbard claimed that he had discovered the hidden source of all psychosomatic ills and human aberrations and that Dianetics skills had been developed for their invariable cure. Dianetics repeatedly stressed that its underlying theory and its techniques were "scientific." He claimed Dianetics was an exact science, confirmed by clinical research. He compared Dianetics with other sciences and made repeated claims of the scientific nature of his research and discoveries.

In Hubbard's terminology the "analytical mind" is the concious mind, which operates flawlessly like a computer. However, it may direct the body in an "aberrated" manner if fed false data by the unconscious or reactive mind. Hubbard claimed that the source of these human aberrations were "engrams," an irrational association made by the "reactive" (unconscious) mind with an unpleasant event that becomes "keyed in" and then "restimulated" when similar events occur in the future. The reactive mind is a moron and is capable only of recording events literally when the analytical mind is rendered unconcious by sleep, injury, drugs, or illness. The engram becomes keyed in by a similar event in the future and then later becomes "restimulated" causing psychosomatic illness or aberrant behavior.

Hubbard posited that most such engrams occurred prenatally when a fetus, embryo or zygote was rendered "unconscious" by a blow to the mother's abdomen (by the husband, examining doctor or during sexual activity) and through some unexplained phenomenon the individual cells perceived and recorded the overheard statements as engrams. Hubbard explained that the ability of the cells to record events begins with and even before conception. (Dianetics at page 187.) These engrams could be discovered and removed from the memory of the reactive mind by the process of auditing. Auditing entails the patient being asked a series of specified questions while holding the grips of an e-meter, a device which measures changes in skin conductivity. When all engrams in the reactive mind were eliminated the person became "Clear," an almost superhuman state in which the Clear was as superior to a normal man as a normal man was to an insane person:

Subsequent to Dianetics, Hubbard went on to found the religion of Scientology of which Dianetics and auditing remained a core part. Building on Dianetics, Hubbard claimed to have discovered "what it was that the mind was coating" - the thetan. With Scientology, Hubbard developed additional auditing procedures and levels of advancement beyond "Clear" - beginning at OT-1 (OT standing for operating thetan) and higher. The material contained in these higher levels has not been fully disclosed to the public.

Hubbard also developed a philosophy to explain case failures. Hubbard indicated that all persons associated with a suppressive person (a person who is against Scientology or against "anyone helping anyone else") would "roller coaster" instead of making consistent progress. Such people were classified by Hubbard as "PTS," which stands for Potential Trouble Source, indicating the person means potential trouble for himself and for Scientology. Hubbard classified potential trouble sources into three categories with the third and most disturbed type being extremely pscyhotic. Hubbard indicated that such persons, Type Ill's, were in need of medical evaluation as they may be suffering from a physical illness with a known medical cause. Second, he indicated that they could only be handled in organizations that were equipped with hospitals since intravenous feeding and other medical treatment of a non- brutal nature might be necessary. The Fort Harrison was not so equipped and specific Hubbard directives precluded the treatment of psychotics at the Fort Harrison.

For instance, Hubbard Communications Office Bulletin 24.11.65 (Reissued in November of 1987) titled "Search and Discovery" declares that "The Type III PTS is mostly in institutions or would be .... All institutional cases are PTSes. The whole of insanity is wrapped up on this one fact." "Type III [PTS] is beyond the facilities of orgs not equipped with hospitals as these are entirely psychotic." Hubbard indicates "medical care of a very unbrutal nature is necessary, as intravenous feeding and soporifics (sleeping and quieting drugs) may be necessary. Such persons are sometimes also physically ill from an illness with a known medical cure." Apparently recognizing that this treatment will not be universally effective, this Hubbard directive goes on to note "But there will always be failures as the insane sometimes withdraw into rigid unawareness as a final defense, sometimes can't be kept alive and sometimes are too hectic and distraught to ever become quiet. "(emphasis supplied) The ultimate goal in "handling" potential trouble sources was to either change the perspective of the suppressive person who was affecting him or to completely dissociate from that person and end the relationship.

In 1973 Hubbard introduced the "introspective rundown" an auditing procedure for "psychotic breaks" which he referred to as a "technical breakthough which possibly ranks with the major discoveries of the twentieth century." The bulletin claimed that in 1970 "the actual cause of psychosis was isolated... In the ensuing years this has been proven beyond doubt to be totally correct." The rundown makes no mention of potential trouble sources or suppressive persons but indicates that psychotic breaks are caused by introversion: "The essence of the introspective rundown is looking for and correcting all those things which caused the person to look inward worriedly and wrestle with the mystery of some incorrectly designated error. The result is continual inward looking or self- auditing without relief or end." As can be seen by the attachments to the Reiss affidavit, subjects are audited with an e-meter by being asked a series of unusual questions and gauging their responses on the meter.

As an auditing procedure, however, the introspection rundown requires, under Scientology beliefs, that the subject have adequate nutrition and sleep before it can be used. Thus, Kartuzinski now blames a lack of sleep or nutrition for the failure of auditing to assist Lisa during her stay. It was briefly attempted on one occasion and never tried again.

Alain Kartuzinski provided three Hubbard scriptures during his sworn testimony which he and other CSFSO officials had knowingly violated and which he testified were applicable to Lisa McPherson's situation. These directives prohibit the handling of psychotics at the Flag Service Organization. Hubbard's language makes clear that acceptance of psychotics or people with psychotic breaks is prohibited in part because the inability to cure them may leave the organization open "to failures." [See attachment 13.)

II. THE DEFENDANT'S CRIMINAL CONDUCT WAS NOT CONSISTENT WITH NOR JUSTIFIED BY SCIENTOLOGY RELIGIOUS BELIEFS.

The defendant suggests that their employees' actions do not constitute a crime because they were following Scientology beliefs, yet at the same time suggests corporate liability is inappropriate because the same actions were not necessitated by and were in fact inconsistent with the tenets contained in Scientology scripture. Since neither the local corporation nor its employees may create or alter the religious doctrines of Scientology, the corporation's admissions demonstrate that the defense has not and cannot establish that the actions upon which the prosecution is based, were justified by the religious beliefs and practices of Scientology.

There is no constitutional or statutory right to practice unlicensed medicine or abuse disabled adults simply because this criminal conduct may be alleged to be a religious practice. Therefore, the consistency of the corporation's actions with the religious tenets of Scientology is a potential affirmative defense only as allowed by statutes prohibiting the unlicensed practice of medicine. It must be emphasized, however, that no Scientology religious tenet precludes medical treatment, evaluation or supervision of persons that are physically or mentally ill; indeed Hubbard's writings suggest underlying medical conditions can be the cause of apparent mental illness and that hospital facilities, medical treatment and intravenous feeding are a necessary part of treating someone who is "psychotic." No religious tenet authorizes forced medication or injections or any other procedures to which the "parishioner" has not validly consented. Nor does any Scientology tenet authorize unlicensed personnel to determine through diagnosis that physical or medical causes are not responsible for "psychotic behavior.".

Similarly, the statements of those persons involved in the incident do not support the defendant's assertions. Janis Johnson, for instance, the unlicensed former doctor assigned to oversee Lisa's care, has denied that any of the above practices would be justified by Scientology principles:

She further denied that diet, an exercise regimen or any form of counseling would have been used to try to improve Lisa's mental condition and denied knowing what an introspection rundown was." Similarly, Judy Goldsberry-Weber, a Scientologist with a nursing background, was very upset that Lisa was forced medicated without doctor approval and complained to CSFSO authorities about it. She obviously did not consider Lisa's treatment mandated by Church doctrine and questioned why it was allowed to continue, indicating she would have been screaming to Dr. Minkoff for heavier sedation and "IV's." She further stated she had taken people to Morton Plant on many occasions and would have taken Lisa there rather than New Port Richey.

Employees and other Scientologists also acknowledged that forcing services on a non consenting parishioner violates Scientology doctrine. David Minkoff, who is at OT-8 level Scientologist, and was the doctor who attended Lisa's death, indicated that policy from Hubbard's writings requires that anyone with a mental disease must go through a physical examination. A medical doctor needs to examine the patient and make sure that there isn't anything that could be the cause of the problem. In his second statement, Minkoff reiterated this concern, indicating that a complete physical including x-rays and possibly an MRI should be done on any "Type III," as Hubbard indicated and Minkoff's experience confirmed that physical illness or injury can be the root cause of a mental condition. Moreover, Minkoff indicated that when the person is incompetent to consent to such procedures, the family is consulted. Thus, a complete physical should have been done at the outset.

Finally, all employees made clear that the giving of shots by M.L.O. employees was not authorized and could only be permitted by a licensed physician. In this case repeated injections were given without patient consent and while she was being held down, without medical authority, by unlicensed and untrained CSFSO personnel.

III. THE INSTANT PROSECUTION IS NOT SIMILAR TO OR AFFECTED BY TBE PROSECUTION OF HENRY LYONS FOR HIS INDIVIDUAL CRIMINAL ACTIVITY.

The defendant suggests that the instant charges cannot be reconciled with the State Attorney's Office's failure to charge the National Baptist Convention with the crimes committed by its president, the Reverend Henry Lyons. The assertion is based on the stated but unsubstantiated conclusion that "Lyons was the Convention's most senior official and that the Convention explicitly ratified and affirmed the acts of Reverend Lyons." While there was evidence that Lyons arguably embezzled or misappropriated a large amount of money from the Convention, Lyons was never charged with these crimes. It was these defalcations and only these that were ratified on behalf of the purported victim, the NBC. The ratification by the.Convention occurred after an inquiry by the Reverend E. V. Hill who investigated solely whether monies from the convention itself had been misappropriated. The resolution plainly states that "there have been no indications of misappropriation of convention funds or wrongdoing on the part of Dr. Henry Lyons which would pre-empt his continued service to this convention as president."

Lyons was ultimately charged with fraud against a series of business corporations and the conversion of charitable monies entrusted to him by the Anti-Defamation League. There was never an allegation that the National Baptist Convention, USA, Inc., itself was involved in Lyons' criminal acts. Rather, the evidence adduced during the investigation and confirmed during trial indicated that Lyons fraudulently invoked the Convention's name to defraud large corporations into the payment of monies into bank accounts that he controlled but which were not revealed to the Convention itself. These thefts were clearly motivated by Lyons' personal greed and allowed him to support mistresses, buy vacation homes and live a lavish lifestyle. Lyons continued to mislead the public and the Convention as to his guilt, causing the faithful among his followers to continue to believe in his innocence.

In the Lyons case, the State had the opportunity through tracing bank records and interviewing the victims of the case to reconstruct Lyons crimes and build a case against him individually. The unsubstantiated suggestion that the State has intentionally avoided individual charges ignores the difficulties the State was facing in proving individual guilt when the only witnesses to establish the necessary facts were paid employees of the defendant, some of whom lied to the police and who refused to give sworn testimony without being granted use immunity. Moreover, crucial documents had been lost or destroyed by CSFSO and were unavailable to investigators.

The defendant's Motions incorrectly assume that evidence admissible against the corporation must necessarily be admissible to prove charges against individual defendants and that proof of corporate guilt, including criminally negligent omissions, necessarily subsumes proof beyond a reasonable doubt as to which individual actors are criminally responsible.

IV. NEITHER THE FLORIDA NOR FEDERAL CONSTITUTIONS MANDATE THE ACCOMODATION OF CRIMINAL ACTS ALLEGEDLY MOTIVATED BY A DEFENDANT'S RELIGIOUS PRACTICES.

The First Amendment of the United States Constitution provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." For over one hundred years, however, the Supreme Court has distinguished between the right to hold a religious belief, which is uniformly sustained, and the right to engage in a religious practice or conduct that violates the criminal law. In Reynold v. U.S., 98 U.S. (8 Otto) 145 (1878), the Court considered the issue of whether a Mormon convicted for the federal crime of bigamy in the Utah Territory should have been acquitted if he married a second time because he believed it to be his religious duty. Rejecting this proposition the Supreme Court held that religious beliefs cannot justify the commisison of an act made criminal by the law of the land. The Court noted:

Two years later the Supreme Court made it clear that these principles apply equally to a Church itself, not only the individual adherents, and that the corporate entity could not escape the consequences of its criminal conduct. In The Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1 (1890), the Court upheld an act of Congress which, as a result of the Church's involvement in polygamy, repealed the act incorporating the Mormon Church as a religious corporation, abrogated its Charter and forfeited all Church property not used for religious worship or burial. The Court ruled that the pretense of religious belief cannot deprive Congress of the power to prohibit polygamy and all "other open offenses against the enlightened sentiment of mankind." Speaking of the Church's endorsement of and practice of polygamy, the Court stated:

These principles remain valid today. See, Potter v. Murray City, 760 F.2d 1065 (10"' Cit. 1985). A full century after its decision in Reynolds, the Supreme Court reaffirmed that decision's vitality in Employment Division, Department of Human Resources v. Smith, 494 U.S. 872 (1990): Alfred Smith and Galen Black had been fired from their jobs with a private drug rehabilitation company and then denied State unemployment compensation all as a result of their use of an illegal controlled substance, peyote, in a sacramental ceremony of the Native American Church of which they were members. On initial remand, the Oregon Supreme Court had determined that Oregon law contained no exemption for the religious use of peyote; the Oregon Court had fiirther ruled, however, that the absence of such an exemption and the resulting denial of unemployment compensation due to misconduct violated Smith's and Black's religious freedom. The United States Supreme Court disagreed, and distinguished prior cases which had dealt with hybrid claims involving freedom of religion and other constitutional rights arising out of the denial of unemployment claims. The Court noted that it had never held as Smith and Black urged that "when otherwise prohibitable conduct is accompanied by religious convictions, not only the convictions but the conduct must be free of governmental regulation." Rejecting this argument, the majority, quoting the Reynolds decision, ruled:

The Court also noted that it had never used the compelling state interest test to invalidate a state law with an across the board criminal prohibition on a particular form of conduct. It held that such an approach would be unsound and would conflict with the vast majority of its free exercise cases. To make the government's ability to enforce generally applicable prohibitions of socially harmful conduct depend on "measuring its effects on a religious objectors spiritual development" or to make his obligation to obey such a law contingent upon the law's "coincidence with his beliefs" would contradict "both constitutional tradition and common sense." Use of the compelling government interest requirement, as the Court had in the past when evaluating racial discrimination or restrictions on free speech, was not "remotely" comparable to the evaluating such general laws of neutral application. "What it [the compelling state interest test] produces in those other fields - equality of treatment and an unrestricted flow of contending speech - are constitutional norms; what it would produce here - a private right to ignore generally applicable laws - is a constitutional anomaly."

The majority ruled that because our country's diversity of belief and the value placed upon or that religious divergence, society could not afford the luxury of deeming presumptively invalid every regulation of conduct that does not protect an interest of the highest order. Such a rule the Court said:

The Court noted that a number of states had made exceptions to their drug laws for the sacramental use of peyote. To say that such an exemption may be permitted, however, the Court said, is not to say it is constitutionally required:

Allegations by the defendant that criminal charges against it, as a "church," are "virtually unprecedented in the history of the United States" is disingenuous at best. Moreover, the defendant's elaboration on this assertion, that "Indeed, with one minor and ill chosen exception, in no reported case was a church even charged with a criminal offense" is inaccurate and misleading in its present context. So, too, is the defendant's claim that "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."

CSFSO ignores certain obvious historical facts. The seminal case of Reynolds v. United States, 98 U.S. (8 Otto) 145 (1878), for example, was one of several criminal prosecutions of Mormon bigamists by the United States Government in the Territory of Utah, in a process that ultimately led to the complete dissolution of the corporation under which the Mormons operated, and the seizure of corporate property by Federal officials operating under the auspices of the United States Attorney General. The Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1 (1890). While not technically a prosecution, the Federal Government's dissolution of the Mormon church and decision to proceed by information to forfeit church property far exceeded in scope and effect the current effort by the State of Florida to hold the defendant responsible for the unlicensed practice of medicine on, and abuse and/or neglect of Ms. Lisa McPherson, a disabled adult.

In limiting its language to the history of the United States the defendant has intentionally chosen its words carefully. Its counterpart, the Church of Scientology of Toronto, Inc., was in recent years tried for and convicted of breach of trust, fraud and other crimes in Canada. Regina v. Church of Scientology of Toronto, et al. (1997] 116 C.C.R. 1. The Toronto case is particularly telling as to the authority of a democratic state to prosecute a corporate "church" for violations of criminal laws. The Church of Scientology of Toronto had argued that corporate liability was inappropriately applied to a religious non-profit corporation and that the right to religious freedom under the Canadian Charter of Rights prohibited prosecution of a religious corporation. Applying the Canadian equivalent of "strict scrutiny" analysis, the Canadian Court rejected the claims and upheld the corporation's conviction.

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...was held in the county jail in default of payment. He sought release by virtue of a statute enacted a month after his conviction which provided relief to indigent persons indefinitely confined for failure to pay a fine in a criminal case. The Court granted relief, ruling that application of the new statute was not precluded by (then) Article III, section 32 because the new statute did not in any way affect the State's ability to prosecute or punish aggravated assault:

Thus, the Court ruled that the 1891 act had no effect on the prosecution or punishment of the defendant under the pre-existing statute. It's only effect was on additional language in the sentence relating to imprisonment for failing to pay the fine, language which was not authorized under the 1881 Act.

Consistent with Ex parte Pells, Florida Courts have held that retrospective application of a separate and superficially unrelated enactment would violate this provision if the later act affected the prosecution or punishment for a previously committed crime. In State v. Pizarro, 383 So.2d 762 (Fla. 4th DCA 1980), the Court held that the initial Youthful Offender Act, enacted as a new statute in 1978, (Chapter 958) could not be applied to a defendant whose crime was committed before its effective date. The Act did not specifically state it was amending, superceding or repealing prior statutes, and claimed only to create an "additional" discretionary sentencing option for defendants of a certain age who met certain criteria. Accord, Page v. State, 687 So.2d 1357 (Fla. 3rd DCA 1997); Bradley v. State, 385 So.2d 1122 (Fla. 1st DCA 1980); Allen v. State, 383 So.2d 674 (Fla. 5th DCA 1980). Additionally, in Carawan v. State, 515 So.2d 161 (Fla. 1987), the Supreme Court had overruled existing precedent construing the statutory and constitutional provisions relating to double jeopardy to hold, in essence, that a single act could not form the basis for more than one conviction. The legislature promptly added an additional subsection to 775.021 declaring its intent that the Blockberger test (rather than the test articulated by the Carawan Court) be reinstated as the test for double jeopardy. Despite the legislature's intent to overturn the Carawan decision and return law to its pre-existing state, Florida Courts have consistently held, based upon Article X, Section 9, that the addition to Sec. 775.021 can not apply to the prosecution or punishment of crimes committed prior to its effective date. Scarpillo v. State, 576 So.2d 377 (Fla. 4th DCA 1991); Collins v. State, 578 So.2d 30 (Fla. 4th DCA 1991), overruled on other grounds, 634 So.2d 1103 at 1106. Collins v. State, 577 So.2d 986 (Fla. 401 DCA 1991).

Applying the standards of Ex parte Pells to the instant case, it becomes clear that RFRA is a statute significantly "affecting" prosecution and punishment and cannot be applied to immunize the defendant from its previously committed crimes. By its own terms, RFRA creates a previously nonexistent "defense" which may be asserted by some but not all persons and purports to supercede existing statutory and case law. See, Sec's. 761.03(2), 761.05(1). As interpreted by the defendant, the intent of the enactment was to impose not only the strict scrutiny test on criminal prosecutions where religious practices are alleged to be burdened, but to also impose the additional burden of establishing that the least restrictive...

Note: Page 57 missing

This constitutional mandate substantially limits the use of RFRA as a defense to a state criminal prosecution. Certainly, the unlicensed practice of medicine and the medical neglect of disabled adults are unsafe and immoral acts as the legislature has recognized in creating criminalpenalties. Having made these clearly unsafe and immoral acts criminal for all citizens, the legislature is not permitted, much less required, to grant immunity to religious entities guilty of the same misconduct.

The defense may suggest that RFRA should be upheld as a legislative interpretation of the Constitution which is entitled to deference by this Court. While legislative enactments may be presumptively correct when they are required to enable the rights enumerated in the Constitution, that cannot be the case when the enactment, as interpreted by the defendant, is contrary to an express Constitutional demand. Nor can such a presumption be indulged when the defendant's interpretation of RFRA would require the legislature to have adopted constitutionally inconsistent positions.

By utilizing its "police power" to create criminal penalties for this morally wrongful and unsafe conduct the legislature has determined that practicing medicine without a license and the abuse of a disabled adults are practices governed by language of Article I, Section 3. Florida courts have repeatedly recognized that regulation of the medical arts is necessary for public safety. Spiro v. Highlands General Hospital, 489 So.2d 802 (Fla. 2d DCA 1986); State ex rel. Munch v. Davis, 196 So. 491, 143 Fla. 236 (Fla. 1940); Reants v. State, 279 So.2d 839 (Fla. 1973); Carbo, Inc. v. Meiklejohn, 217 So.2d 159 (Fla. 1969); Cf., Golden v. McCarty, 337 So.2d 388 (Fla. 1976). The potential dangerousness to the public of the practice of medicine by unsafe or incompetent practitioners is one of the purposes behind the enactment of Chapter 458. See, sec. 458.301.

Similarly, both the regulatory and investigative responsibilites imposed on the Department of Children and Families by Chapter 415 and criminal penalties for preventing the abuse and criminal neglect of the elderly, disabled and children contained in Chapters

Page 59 Missing

See, also In re Advisory Opinion of the Governor, 334 So.2d 561 (Fla. 1976); Parole Commission v. Lockett, 620 So.2d 153 (Fla. 1993); Wainwright v. Turner, 389 So.2d 1181 (Fla. 1980).

Clearly then, the retroactive application of RFRA to grant pardon to individuals or entities based upon the suggestion that religious practices are alleged as justification for criminal conduct, would exceed the Legislature's power and intrude upon both the exclusive executive function of clemency and the constitutional discretion of the prosecution to institute criminal charges. Cf., State v. Montgomery, 467 So.2d 387 (Fla. 3rd DCA 1985).

D. RETROACTIVE APPLICATION OF RFRA TO THE INSTANT PROSECUTION WOULD CONSTITUTE AN UNCONSTITUTIONAL ESTABLISHMENT OF RELIGION UNDER THE STATE AND FEDERAL CONSTITUTIONS IN THAT IT FAILS TO HAVE A SECULAR PURPOSE, ITS PRIMARY PURPOSE IS TO ADVANTAGE RELIGION OR IT CREATES EXCESSIVE ENTANGLEMENT WITH RELIGION.

As has been previously discussed, the constitution protects the freedom of religious belief, but Congress and the state legislatures remain free to prohibit dangerous or immoral religious practices through statutes of general application. Florida's Constitution contains specific language preventing the justification of such practices because they have in part been motivated by religious belief. The Supreme Court of the United States and the Courts of Florida have regularly been faced with defining the line between legislation designed to protect the free exercise of religion and laws favoring religion which violate the establishment clause.

In City of Boerne v. Flores, U.S. 117 S. Ct. 2157 (1997), the United States Supreme Court declared Federal RFRA unconstitutional as it applied to the States, as being beyond Congress power to legislate under Section 5 of the Fourteenth Amendment, which empowered congress to enforce the provisions of the amendment by appropriate legislation. Justice Kennedy writing for the majority ruled that "RFRA is so out of proportion to the supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent unconstitutional behavior. It appears instead to attempt a substantive change in constitutional protections." Justice Kennedy noted that the reach and scope of RFRA distinguished it from other measures passed under Congress enforcement power, even in the area of voting rights. "Sweeping coverage ensures its intrusion at every level of government, displacing laws and prohibiting official actions of almost every description and regardless of subject matter Any law is subject to challenge at any time by any individual who alleges a substantial burden on his or her free exercise of religion."

In deciding that the extension of RFRA to state and municipal governments was beyond the power of Congress under Section 5 of the Fourteenth Amendment, the Court did not resolve serious challenges as to whether RFRA was an establishment of religion and was also unconstitutional as applied to the federal government. Justice Stevens in a concurring opinion succinctly stated the issue:

Id., at page 2172. The impact of Boerne on the establishment issue remains uncertain, although the Clinton administration has declined to challenge the statute's constitutionality as it applies to the federal government. By declaring RFRA unconstitutional as applied to the State's, however, the Supreme Court's opinion left state courts free to decide whether State legislation such as Florida's RFRA can withstand State and Federal Constitutional scrutiny.

Whether a given statute favors religion in such a way as to be an "establishment of religion" is hardly a new issue. State and federal Courts have repeatedly applied the three prong test enunciated in Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105 (1971), to decide such a question. The Lemon test requires that such a statute (1) have a secular purpose, (2) not have the advancement of a specific religion or religion in general as its primary purpose, and (3) not create excessive entanglement with religion. If a statute fails any of these criteria, it will be held invalid. Florida Courts have utilized these same criteria in evaluating statutes under Article I, Section 3 of the Florida Constitution. Recently, the United States Supreme Court has indicated that the third prong of "excessive entanglement" while still applicable is actually subsumed under factor two. Agostini v. Felton, 521 U.S. 203, 117 S. Ct. 1997 (1997). See, e.g., State v. Easley, 1999 WL 565866 (Fla. 4th DCA 1999).

As conceded by the defendant in its Motion to Dismiss the legislative purpose of Florida's Religious Freedom Restoration Act was to create a new defense to all persons claiming a substantial burden on their exercise of religion. Its sole purpose was to advantage religiously motivated individuals and entities by applying the strictest constitutional test known to all potential interactions and litigation with government entities and agencies. Unlike individually crafted accommodation provisions, RFRA applies across the board by empowering religion with a defense that, outside the arena of criminal prosecution, will be difficult if not impossible to overcome.

RFRA is not a statute which can be said to have a secular purpose because it is designed to benefit a class including both religious and nonreligious. While, it is a permissible "secular purpose" to enact legislation which allows religious entities to avoid excessive entanglement with government, Corporation of Presiding Bishop of Latter Day Saints v. Amos, 483 U.S. 327, 107 S.Ct. 2862 (1987), the defense interpretation of RFRA is not so limited. The State has charged the defendant with abuse of a disabled adult and practicing medicine without a license. The defense suggests that RFRA mandates that an individual or entity charged with these or any crimes not be prosecuted in order to prevent the embarrassment or displeasing but lawful public criticism that results from that criminal activity. The defense also argues, that since it costs money for a religious corporation to defend against charges, regardless of their actual guilt, they may not be prosecuted. The defense suggests that under RFRA, the State must accept without question the criminal defendant's allegations as to what beliefs and practices are central to its religious freedom. Finally, the defense suggests that this defense must apply retroactively, even though the defense is created three years after the commission of the crime.

Surely the legislature did not intend to so empower religiously motivated criminals and allow guilty persons or entities to escape prosecution, simply because prosecution may be embarrassing or costly, because that will in every instance be concomitant with the prosecution or conviction of serious crime. If the Court adopts the defense's interpretation of the statute, the statute is an unconstitutional preference for religion. Granting license to abuse the disabled cannot be justified by the purpose of "allowing" a religion to advance itself by risking the lives of its parishioners.

The primary effect of Florida's RFRA is to privilege religious entities and religiously motivated individuals across the board. As Justice Stevens noted concerning the federal RFRA statute, it grants a broad defense not available to the secular world. The unlimited scope of RFRA as the majority in Boerne noted, is "so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior. It appears instead to attempt a substantive change in constitutional protection." As interpreted by the defendant, the Florida RFRA neither accommodates nor remedies burdens on particular religious practices but rather expands constitutional rights for only a privileged few. The areas in which religious individuals or entities might be free to act without government intervention is both long and broad, including euthanasia, polygamy, bigamy, incest, child abuse, animal cruelty, assisted suicide, and racial and marital status and sexual orientation. Unlike individual accommodation statutes which are based upon an individualized understanding and history of interaction between specific religious beliefs and particular government activity, RFRA is an excessive and unmerited perquisite.

A statute will also be invalid if it fosters excessive entanglement between the government and religion. As articulated by the First District Court of Appeal in Silver Rose Entertainment, Inc., v. Clay County, 646 So. 2d 246 (Fla. 1st DCA 1994):

It is clear that the State's action in prosecuting these two felony charges does not excessively entangle the State in the CSFSO's religious mission. The State's prosecution is limited to the secular criteria of whether CSFSO practiced medicine without a license and whether it permitted a disabled women to die. The real excessive entanglement occurs if RFRA is permitted to stand and courts must shape every law to every religion.

Florida RFRA as interpreted and argued by the defendant would be an unconstitutional establishment of religion.

E. THE DEFENDANT'S DEFENSE UNDER RFRA FAILS BECAUSE THE INSTANT PROSECUTION DOES NOT "SUBSTANTIALLY BURDEN" THE FREE EXERCISE OF RELIGION.

In order to invoke the protections of Florida RFRA, the defendant must sufficiently allege and establish that its practice of religion is substantially burdened. The State denies that the instant prosecution places any significant burden upon the defendant's religious activity, much less a substantial one, and suggests that the prosecution does not impact activity that is religious exercise under the Constitution or RFRA, or under the defendant's tenets. Indeed, the large body of case law defining "substantial burden" under Federal RFRA, after which the state act was patterned, is inconsistent with the defense assertions. See, e.g. People v. Peck, 52 Cal.App. 4th 351, 61 Ca1.Rptr.2d 1 (1996) (criminal conviction for manufacture,distribution and transportation of marijuana not a substantial burden even though use of marijuana was a religious sacrament); Smith v. Fair Employment and Housing Comm'n, 12 Ca1.4th 1143, 913 P.2d 909, 51 Ca1.Rptr.2d 700 (1996) (State law prohibiting discrimination by landlord based on marital status not a substantial burden on landlord who sought to discriminate based on his religious beliefs); Moran v. Moran, 188 Ariz. 139, 933 P.2d 1207 (Ariz.Ct.App. 1996) (Requirement of legitimizing marriage by obtaining a marriage license is not a substantial burden); Gallo v. Salesian Soc., Inc., 290 N.J.Super. 616, 676 A.2d 580 (Super.Ct.App.Div. 1996) (Application of State Law prohibiting age and gender discrimination to Catholic High School did not constitute substantial burden); International Church of the Foursquare Gospel v. City of Chicago Heights, 955 F.Supp. 878 (N.D.III. 1996) (Denial of special use permit to build new Church on land zoned for commercial use did not constitute a substantial burden); Daytona Rescue Mission, Inc. v. City of Daytona Beach, 885 F.Supp. 1554 (M.D. Fla. 1995) (Denial of Church request to allow church and other buildings to serve the homeless did not constitute a substantial burden); Terry v. Reno, 101 F.3d 1412 (10th Cir. 1996) (Statute providing criminal penalties for impeding access I9 abortion clinics did not substantially burden religious beliefs and practices of abortion protesters); In re Bloch, 207 B.R. 944 (Bankr. D. Colo. 1997) (Recovery by trustee in bankruptcy of tithes to church is not a substantial burden and is the least restrictive means of achieving a compelling state interest.)

Defendant's religious tenets do not require defendant or its representatives to inject unprescribed substances into an incompetent patient, or force medication upon patients without their consent. Therefore, this prosecution for the violation of laws prohibiting such acts does not substantially burden defendant's religiously motivated conduct. Nor does it substantially burden CSFSO's exercise of religion to refrain from actions which, in effect, involuntarily commit an incompetent person to an unlicensed and unequipped facility when these actions are not consistent with the defendant's existing policies and dogma. Compliance with the prohibition against practicing medicine without a license neither coerces adherents to believe religious matters prohibited by Scientology nor requires them to abandon any of its central religious tenets.

In a case on point, Dickerson v. Stuart, 877 F. Supp. 1556 (M.D.Fla. 1995), Dickerson sought to invalidate and enjoin enforcement of Florida Statute §§467.001-467.209 on the basis that the statute substantially burdened her exercise of religion. This chapter regulates the licensing of midwives and certified nurse midwives, setting forth the required training and education for the practice of midwifery, which is defined as "the practice of supervising the conduct of a normal labor and childbirth, with the informed consent of the parent; the practice of advising the parents as to the progress of the childbirth; and the practice of rendering prenatal and postpartem care." The statute also makes it a third degree felony to practice midwifery without a license.

Dickerson alleged that in accord with her religious beliefs, she prayed for and encouraged and assisted parents in giving birth at home and rendered assistance to parents concerning home childbirth before, during and after pregnancy, provided information and instruction on giving birth at home, gave a "helping hand" to support the mother and in "emergency" situations would handle or touch the newborn. The Court ruled that no substantial burden had been shown, noting at page 1159:

The Court went on to find that, even assuming that a substantial burden had been shown, the State clearly had a compelling state interest in the health of expectant mothers and newborn babies and that "a person lacking training may very well miss symptoms of infection or disease and warning signs of labor complications leading to endangerment of the health of both mother and newborn." The Court ruled that the licensing requirements appeared "well-suited for achieving Florida's legitimate interest in having competent individuals supervise childbirth." The Court concluded that the licensing requirements were narrowly tailored to achieve the protection of the health of the mother and newborn and therefore also passed the "least restrictive means" test required by RFRA.

Similarly, the defendant in the instant case could have, without abandoning or impacting their religious beliefs, chosen to have employees appropriately licensed to provide the medical care imposed upon Lisa McPherson or used already licensed physicians, such as Dr. Minkoff, who was clearly available to them, to diagnose Lisa's condition and provide for Lisa's medical care. Moreover, the legislature has created a religious accommodation defense to the charge of unlicensed practice of medicine that protects individuals or entities whose actions were taken in compliance with the "Religious tenets of any church in this state." Therefore, the corporation has a affirmative defense, which if raised and supported by evidence will prevent conviction except when those involved have ignored their own religion's precepts or have imposed those precepts on a non-consenting third party. Under these circumstances, it cannot be legitimately argued that prosecution, conviction or punishment would prevent or coerce other Scientologists from continuing to practice in the way mandated by the Church's beliefs.

The corporation is also charged with abuse and neglect of a disabled adult. It cannot rationally be argued that not engaging in criminal abuse or medical neglect which causes the death of or life threatening harm to its own parishioners substantially burdens the CSFSO's religious beliefs. The severity of Lisa's condition was such that she required hospitalization both to prevent injury to herself or others and to maintain adequate nutrition and hydration to sustain her health and life. Based upon the severity of symptoms displayed by Lisa while she was kept at the defendant's hotel, a complete medical examination was required by Scientology doctrine to determine the medical cause(s), if any, of her illness. Hospitalization and medical care were therefore required both by traditional medical and legal principles and by Scientology doctrine."

Thus, the seeking of non-psychiatric medical help for a person who appears either physically or mentally ill does not violate the tenets of Scientology. Similarly, neglecting or abusing a disabled adult by forcing medication into her system, giving unauthorized injections or attempting any other unrequested treatment upon her is neither mandated nor countenanced by Scientology's beliefs. If the charges are sustained by proof beyond a reasonable doubt, it cannot reasonably be believed that the legislature intended that such criminal acts escape punishment as a result of its enactment of RFRA.

The defendant, in a rush of hyperbole, suggests that not only did Lisa "adamantly" reject psychiatric treatment while at Morton Plant but also that the instant prosecution will force the "Church and its followers .... to refer all Scientologists experiencing [PTS Type III behavior], upon pain of prosecution and conviction to psychiatrists." (Defendant's RFRA Motion at pages 37-42). This is clearly untrue. The obligations imposed upon the defendant corporation to provide appropriate treatment for Lisa and upon which the instant prosecution is based, stems from their decision to voluntarily assume the status of caregiver of a disabled adult and keep her in its custody through what amounted to an unauthorized, de facto "involuntary hospitalization." Lisa was clearly incapable of caring for herself. The defendant completely controlled her access to medical diagnosis, her access to care for her physical and mental needs, her access to nutrition, medicine and fluids, and her contact with family members and the outside world.

Any obligation to refer Lisa for treatment sterns from this voluntary acceptance of responsibility, knowingly made, even though Scientology's own teachings recognized that the corporation is inadequately equipped for and therefore prohibited from such activities. Thus, by not assuming the role of caregiver, the defendant would have been acting in accordance with adherents' and employees' beliefs and have avoided any alleged obligation of psychiatric referral. This avoidance is clearly not a substantial burden under RFRA or the Constitution.

Further, on closer analysis, the issue of mandatory referral for psychiatric care is not presented by the facts of this case in the fashion that the defendant's argument suggests. The issue of what modality of treatment should have been afforded Lisa was quite simply not an appropriate decision for untrained personnel to make in hotel setting. Competent medical diagnosis would have to determine whether Lisa's symptoms, such as delirium and mental confusion, initial insomnia and hyperactivity, and later unresponsiveness were caused by known physical illnesses such as dehydration, disease, infection or reaction to medication. If so, the condition could be treated by traditional methods. If these symptoms were determined to be a result of what physicians term mental illness and what Scientology labels a "psychotic break," then and only then would a determination have to be made as to whether she would undergo traditional mental health treatment.

Lisa's right of self-determination to reject or accept methods of treatment prohibited by Scientology would not be extinguished either by her being held in the custody of Scientologists or by her referral to a licensed medical facility. In other contexts, Florida courts have developed a procedure of substituted judgment for determining the health care choices of incompetent individuals, in which the court determines the likely choice that the patient would have made if still competent. Dubreil, Matter of, 629 So.2d 879 (Fla. 1993); In re Guardianship of Browning, 568 So.2d 4 (Fla. 1990). While there is no federal constitutional right to refuse psychiatric treatment and no Florida Court has directly ruled on this issue, other states have held that non-emergency hospitalization does not forfeit a mentally ill patient's tight to refuse psychotropic medication. See, e.g., ANNOTATION, "Nonconsensual Treatment of Involuntarily Committed Mentally Ill Persons with Neuroleptic or AntipsychoticDrugs as Violative of State Constitutional Guaranty," 74 A. L. R. 4' 1099 (1989). For example, if the patient is incompetent to make a decision whether to reject or accept such treatment, courts have required the issue to be decided based upon substituted judgement See, e.g. Rogers v. Com'r of Dept. of Mental Health, 458 N.E.2d 489 (Mass. 1983); In re Boyd, 403 A.2d 744 (D.C. 1979) or allowed temporary medication to occur only after judicial intervention with continued medication only if approved by the patient, his family or a health care surrogate. Riese v. St. Mary's Hospital and Medical Center, 243 Cal.Rptr. 241 (Cal. App. 1st 1988).

Moreover, Lisa's ultimate choice was far from predetermined. There is evidence that, despite her long tenure as a Scientologist, Lisa was about to sever her ties with the defendant corporation and return to Texas. She had engaged in expensive and significant Scientology treatment that had failed to prevent two psychotic episodes within the last six months of her life. Lisa's lack of sleep had prevented the use of auditing to "treat" her illness. Seventeen days of "caretaking" by CSFSO only resulted in exacerbation rather than remission of her condition. Thus Scientology seemed to hold few if any viable treatment options to cure her illness and she would have been forced to choose between continued and perhaps indefinite hospitalization or the use of more traditional therapies to stabilize her condition.

CSFSO had no right to deny Lisa medical diagnosis and care in order to insure that its wishes as to her treatment came to fruition. Sieniarecki v. State, 724 So.2d 626 (Fla. 4th DCA 1998), review granted by Sieniarecki v. State, 729 So.2d 394 (Fla. 1999). Since the mental condition of Lisa was never medically diagnosed, it is impossible to say whether Lisa would have ever been faced with a choice of whether to accept or reject traditional mental treatment had she been timely and appropriately hospitalized. The State's evidence suggests, however, that if she had been timely hospitalized or even been seen by a competent medical doctor, she would have remained alive to make that choice - a choice that the defendant had no authority to foreclose. Certainly, given the option, Lisa would choose to be alive. The same medical help which the defendant belatedly sought for Lisa could have been sought in a timely and appropriate manner.

The defendant also suggests that the prosecution imposes "legal" disabilities on it and certain adherents, specifically the treatment of PTS, Type III behavior and use of the introspection rundown. However, it is more likely that prosecution will support compliance with Scientology policy by the local corporation with Hubbard's directives that psychotics not be treated at Flag, that they be given comprehensive medical examinations before treatment and that "Type III's" not be treated at "orgs" such as Flag without hospital facilities. Since a Hubbard directive prevents treatment of psychotics by CSFSO employees this does not constitute a substantial burden to the religious beliefs of the organization. Moreover, since an introspection rundown was never accomplished and therefore did not contribute to Lisa's demise, only the charge of practicing medicine is potentially affected by this claim. Because the statute prohibiting the unlicensed practice of medicine contains a religious accommodation defense for following the religious tenets of a church, it cannot be validly argued that the prosecution has the claimed effect.

Since the defendant cannot make a credible argument that its Scientology adherents will be prevented from voluntarily engaging in practices that are consistent with their professed beliefs, the defendant instead argues that the embarrassment to individual adherents caused by the prosecution is a substantial burden and may impact the corporation's recruitment of new adherents. If the charges are sustained however, the unstated premise of this argument is that the legislature intended and the constitution permits RFRA to stifle the truthful criticism of an entity emanating from its commission of criminal acts. While Scientology adherents have the legitimate right to believe as they will and to recruit others to those beliefs, the defendant does not have the right to distort the truth or command the courts to excuse criminal abuse and neglect in order to accomplish this purpose. Similarly, individuals have a right to choose to become involved in Scientology or to avoid doing so. If the charges are proven, the defendant has no right to limit potential adherents access to truthful information.

Certainly, no court has recognized this type of reputational injury as a substantial burden on religious practice. Alamo v. Clay, 137 F.3d 1366 (D.C.Cir. 1998). In Alamo, the Alamo Christian Church brought action challenging the Parole Commission's decision to deny parole to its pastor, Tony Alamo f/k/a Bernie Lazar Hoffman. The church alleged that the Parole Commission's decision violated its rights under federal RFRA and the Free Exercise Clause of the First Amendment, not just Tony Alamo's individual rights. Essentially, the church argued that the Commission's decision was signifcantly influenced by its discriminatory views of the Alamo Church, causing the church reputational injury as well as depriving it of the services of its pastor. The United States District Court for the District of Columbia dismissed the action and the church appealed. The Court of Appeals, Edwards, Chief Judge, affirmed and held that church did not have Article III standing to bring action:

In a different but nonetheless relevant context, the courts have concluded that harm from legitimate criticism is not actionable under the First Amendment. In Religious Technology Center v. Lerma, 908 F. Supp. 1353 (E.D.Va. 1995), RTC, the Scientology entity owning copyrights to Hubbard's works brought action against an individual internet access provider, and the Washington Post based upon their dissemination Hubbard's copyrighted materials. The Court had denied a temporary restraining order but entertained RTC's motion for rehearing based upon claims that the free exercise clause entitled them to relief. In again denying injunctive relief, the Court strongly criticized RTC's suit suggesting RTC's motive in bringing suit was not to safeguard its secrets but to stifle criticism of Scientology in general. RTC alleged economic harm would result by the potential loss of new parishioners through ridicule if the copyrighted materials were taken out of context. In denying relief the Court noted "RTC must accept the fact that a frank criticism of Scientology religious tenets may deter some potential parishioners. Harm from legitimate criticism is not actionable under the First Amendment or the copyright laws." The Court suggested that employing the courts to stifle lawful public criticism would have amounted to allowing RTC to use the machinery of the government to practice its beliefs, by enjoining otherwise permissible activity.

Courts have also ruled that reputational injury to a group is not the equivalent of injury to the individuals who compose the group. In Prov. Gov. of Rep. Of New Afrika v. Amer. Broadcast, 609 F. Supp. 104 (D.D.C. 1985), the Court ruled that a plaintiff who alleges defamation must show that the statement was of and concerning him. A defamatory statement against a group or class does not give rise to a cause of action on behalf of its individual members. Accord,Adams v. WFTV, Inc., 691 So.2d 557 (Fla. 5' DCA 1997). While not directly on point, these cases illustrate a crucial point concerning the instant case: the prosecution of a corporation for abuse of a disabled adult and the unauthorized practice of medicine through its employees neither infringes on nor denigrates the religious beliefs of the adherents of the religion who are themselves, innocent of wrongdoing. Moreover, the filing of the charges has already occurred and it is the continuation of the prosecution that CSFSO seeks to remedy. Certainly the dismissal of the charges not on the merits but based upon RFRA will hardly constitute an exoneration from guilt and end the criticism to which the corporation claims it is being subjected.

The State disputes the defendant's assertion that the publicity contained in defense exhibits are relevant or authoritative and moves to strike the affidavit concerning the articles as being insufficiently authenticated and intentionally incomplete. The exhibit contains only publicity since the filing of charges and does not attempt to show the previous publicity generated not as a result of the charges but as a result of the defendant's own actions and the filing of a civil suit by the victim's estate. These actions themselves created public interest in the case and substantial publicity long before the filing of the instant criminal charges. The demonstrations referred to in the defense motions and exhibits were planned before the filing of charges for the anniversary date of the victim's death. They would have occurred regardless of the filing of corporate charges and certainly would not have been diminished had the State filed criminal charges against individual Scientologists rather than the corporation.

Any confusion between the corporation and the religion itself has been repeatedly and intentionally cultivated by the defendant's own actions. CSFSO is one of dozens of Scientology corporations whose title begins with "Church of Scientology." In an apparent effort to gain support for its position that the entire religion is under attack, the corporation has repeatedly chosen to refer to itself as the "Church" in numerous pleadings in both the civil and criminal proceedings. This duplicity is clearly disclosed by the transcript of the motion for statement of particulars. The defense eschews references to its client's title that would distinguish it from the large body of adherents and numerous other Scientology corporations with similar names and insists instead that it be referred to as the "church," thereby fostering the confusion it claims was created by the media.

This nomenclature is hardly mandatory. In Scientology publications, employment contracts and internal documents the defendant is frequently referred to as "Flag" or "Flag Service Organization." On the Bates stamping of exhibits for the civil case the corporation identifies itself by its initials FSO as does Mary Story in her Affidavit about the activities of local Scientologists. Even a brief perusal of the articles attached to the Rinder affidavit shows that that the comments by CSFSO and Scientology officials have supported and added to the confusion. They have rarely noted the distinction that the charges are only against a local corporation and respond instead as if the "Church of Scientology" had been charged. Moreover, members of other Scientology entities have responded on behalf of the church as if they were employees of the entity charged.

This type of injury is simply not a substantial burden within RFRA and does not coerce Scientologist into abandoning their beliefs.

The defendant further suggests that either the potential $15,000 in fines or the expenses and efforts of litigating the case constitute a substantial burden, suggesting that a massive reorientation of Church energy and resources is necessary. These claims are, of course, unsubstantiated by any detail, but it is unlikely that revenue producing services would be curtailed to finance the litigation. The defendant is charged with two felony counts and facing a maximum $15,000 fine. CSFSO has been engaged in a civil case since 1997 and which is set for trial next year; since the financial liability of the civil case far exceeds its exposure in the criminal case it is unlikely that the expenditures can be attributed to the instant prosecution. Certainly if the CSFSO claims of usage of its facilities by Scientologists is accurate, the imposition of a $15,000 fine would be a minimal figure for so large a group to shoulder.

More importantly, however, the expenses of defending CSFSO against criminal allegations does not in itself directly force adherents to abandon beliefs or compel them to espouse beliefs contrary to their own. Even when such expenses were shown to actually impact individuals by making the practice of a religion more expensive, they have not been found to constitute a "substantial burden" on religion under RFRA or prior case law. International Church of the Foursquare v. Chicago Heights, 955 F.Supp. 878 (N.D. Ill.1996); Korean Bhuddist Dae Won SA Temple of Hawaii v. Sullivan, 87 Hawaii 217, 953 P.2d 1315 (1998); Lakewood Ohio Congregation of Jehovah's Witnesses v. Lakewood, 699 F.2d 303 (6th Cir. 1983); Accord, Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144 (1961). In International Church of the Foursquare Bible, supra, the Church was attempting to gain a special permit allowing it to refurbish commercially zoned property to hold services. The Court ruled that the Church had failed to show the likelihood of success on the merits in order to obtain a preliminary injunction, because the permit denial did not impact religious belief but only where it could be practiced. The city did not prohibit the Church from relocating in residentially zoned areas even though this might be substantially more expensive. The court concluded "additional expense, at least so long as it is not an inflated expense not imposed on most landowners," is not a substantial burden within the meaning of RFRA.

The only case cited by CSFSO in support of its position that its religious practices are substantially burdened by the instant prosecution, Mockaitis v. Harcleroad, 104 F. 3d 1522 (9th Cit. 1997), is clearly inapposite. In Mockaitis, jail officials had surreptitiously taped privileged communications between a priest and a jail inmate suspected of a triple homicide. Once the taping became known the priest petitioned the Court to destroy the tape and prevent future taping in the jail because the conversations involved the Catholic sacrament of confession. In a curious turn of events, however, the defendant wanted the conversation preserved, indicating he had not confessed to the murders in question, but to unrelated burglaries and had expressed his innocence to the murder charges.

The Court ruled that surreptitious taping of these privileged conversations had substantially burdened the priests exercise of religion in that it made the contents of the confession available to others and potentially undermined the confidence others would have in the confidentiality of their confessions to the priest. However, the Court also ruled that the preservation of the tape at the request of the defendant, who had the right to waive the privilege, did not substantially burden the priest's religious freedom. Mocktaitis had argued that the continued existence of the tape and every new public reference to it gave him discomfort and was hurtful to him and increased his sense of betrayal. The Court held that these psychological consequences did not constitute a substantial burden under RFRA.

The direct impact of secretly recording a confessional and the chilling effect on future confessionals cannot be analogized to the defendant's claims of reputational injury and embarrassment since they do not prevent Scientologists from practicing as they wish. If anything these claims are more analogous to the psychological injury that the Mockaitis court held not to be a substantial burden.

For nearly a quarter of a century adherents have gone to Clearwater to study Hubbard's teachings and participate in auditing.. They continue to do so at the rate of 1500 - 2000 adherents a week according to CSFSO's allegations. The State is not attempting to prevent Scientologists from practicing their religion in Pinellas County or anywhere else. Rather, the State became involved because Lisa McPherson died as a result of abuse and neglect and was the subject of the unlawful practice of medicine that was not justified by or consistent with Scientology beliefs. The State has a paramount interest in protecting its disabled citizens and protecting the public by bringing to justice the persons or entities responsible for this serious criminal activity.

The defendant concedes, as it must, that the State has a compelling state interest in the enforcement of the criminal statutes under which it is charged. See, e.g., Whyte v. U.S., 471 A. 2d 1018 (D.C.App. 1984); Potter v. Murray City, 585 F.Supp. 1126 (D.C.Utah 1984), affirmed as modified, 760 F.2d 1065 (10' Cir. 1985); cf., Peavy v. State, 442 So.2d 200 (Fla. 1983); J.A.S. v. State, 705 So.2d 1381 (Fla. 1998); Shaktman v. State, 553 So.2d 148 (Fla. 1989); Stare v. Rutherford, 707 So.2d 1129 (Fla. 4th DCA 1997). Instead, the defendant argues that the State has no compelling state interest in prosecuting an entity as opposed to individuals. It is an altogether novel and legally unsupported premise, that the compelling State interest or the least restrictive means requirements limit the State to prosecuting only one of multiple defendants and that the State must elect whom of the guilty parties to prosecute. The argument presumes the existence of prosecutable cases against others independent of their individual immunized statements. Of course, every defendant will argue that the remaining guilty parties and not he or she should be prosecuted.

The commission of a crime by a corporation is no less significant than that committed by an individual. Our statutes and law have long recognized that participation of multiple parties in a crime is more dangerous and serious than the isolated acts of an individual; thus, conspiracy between two or more people is criminally punishable even though the agreed upon crime is never attempted or comes to fruition. Federal and State RICO statutes recognize that the participation in crimes by corporate and other business organizations and even more loose knit enterprises may justify more serious penalties. Clearly, neither history nor case law nor applicable statutes restrict criminal prosecution of entities to only "white collar" crimes.

The State's compelling interest is to prosecute those responsible for crime, in this case the individuals or entity responsible for Lisa McPherson's condition and ultimate death. The defense suggests that prosecution of the corporation is inappropriate, but the facts indicate otherwise. The incident occurred at CSFSO facilities, where dozens of employees from a number of CSFSO offices participated in the incident with the knowledge, approval and later ratification of CSFSO officers and a director. Janis Johnson, who was assigned to Lisa's care, was allegedly not present for the last three days of Lisa's life, apparently being assigned to the more significant job of assisting a California doctor in performing staff physicals. Alain Kartuzinski had virtually no direct contact with Lisa after the first day. Because the last days of the caretakers' notes were lost or destroyed, his knowledge of Lisa's condition was not known until his testimony was taken.

Clearly, this case is one involving collective action, collective responsibility and collective inaction. The State has a compelling interest in prosecuting the entity responsible for practicing medicine on Lisa McPherson and causing her injury and death.

The defense argues almost incomprehensibly that prosecution, conviction and possible imprisonment of its own minimally paid employees is less intrusive than the fifteen thousand dollar fine faced by the corporation. For this to be an available less restrictive alternative under RFRA, however, the Court must adopt the illogical position that the corporation must be allowed to assert a RFRA defense but that the individual defendants (whom the defendant continues to assert were acting on religious beliefs) cannot.

To begin with, "least restrictive means" in a constitutional setting means least restrictive reasonable means, not least restrictive means imaginable. The Florida Bar v. Schreiber, 407 So.2d 595 (Fla. 1981), vacated on other grounds, 420 So.2d 599 (State regulation of commercial speech). In analyzing whether the least restrictive means are utilized, the court must consider all of the relevant circumstances, including procedural safeguards, in conjunction with the actual intrusion into constitutionally protected rights. Shaktnum v. State, 553 So.2d 148 (Fla. 1989) (Pen register is least intrusive means to intrude on privacy interests of alleged bookmaker).

The State has a compelling interest in the enforcement of its criminal laws, the protection of its citizens from criminal activity, and the punishment of criminals. The State may, consistent with constitutional safeguards, impose any measure of punishment that is proportionate to the crime and not cruel or unusual on convicted criminals, including the ultimate sanction of death for humans and dissolution for artificial entities. See, Peavy v. State, 442 So.2d 200 (Fla. 1983) (No merit in claim that death penalty was not least restrictive means available to further compelling state interest in first-degree murder case); J.A.S. v. State, 705 So.2d 1381 (Fla. 1998) (Statute prohibiting sexual contact with children under 16 years, even if consensual and with another minor under 16 years, furthered State's compelling interest through least intrusive means).

In the case at bar, the State has followed all established procedural safeguards in the bringing of charges against the defendant, and the defendant can show no constitutionally cognizable intrusion on any constitutional interest that results from the State's actions. Shaktman. The due process standards and reasonable doubt standard of proof applicable to criminal prosecutions provide the highest level of procedural safeguards in the legal system.

VI. THE DEFENDANT CORPORATION MAY BE HELD CRIMINALLY LIABLE FOR THE UNLAWFUL PRACTICE OF MEDICINE AND THE ABUSE AND NEGLECT OF LISA MCPHERSON.

The Church of Scientology, Flag Service Organization, Inc., is charged with the felonies of practicing medicine without a license and causing great bodily harm or permanent disability to Lisa McPherson, a disabled adult. The CSFSO is a Florida non-profit corporation initially formed in 1981 and having its principle offices in Clearwater Florida, where it occupies numerous buildings and employs a staff of over 1000. The stated purpose of the corporation is to "espouse, present, propagate, practice, ensure, and maintain the integrity of the religion of Scientology." The actual functions of CSFSO within the Scientology domain are to provide high level auditing to adherents in Clearwater and throughout the world, as well as to provide the training of auditors. In fact, Scientology touts CSFSO's Clearwater facilities as providing the highest quality of such services on the planet, referring to "Flag" as the "Mecca" of Scientology. Thus, it is clear that CSFSO and Scientology represent its staff as being exceptionally well trained and skilled in the delivery of high level "spiritual technology."

The formation of CSFSO as a non-profit corporation under Chapter 617, Florida Statutes, precludes profit generated by the corporation from being passed on to members, officers or directors but does not preclude the corporation from generating revenue or accumulating wealth. Fla. Star. 617.01401(5) (1998). In fact, the directives of Scientology founder L. Ron Hubbard, which the Church acknowledges as "scripture," make it unmistakably clear that employees are obligated to "make money," "make more money," and "make others produce so as to make more money" on behalf of Scientology. By choosing to take advantage of the resulting benefits of incorporation such as limited liability, tax exemptions, having the right to contract and having the right to sue for injunctive relief or damages, CSFSO has voluntarily subjected itself to the laws relating to artificial entities, both civil and criminal. While the corporation suggests that it receives monies in the form of "donations" this is a misuse of the common meaning of the word. Adherents are required to pay in advance for twelve and a half hour blocks of auditing at an rate of approximately $4000 per block which equates to approximately $300 per hour. Some levels of auditing are considerably more expensive, costing from $10,000 to $17,000 per block. Scrupulous account is kept and adherents are notified when the hours they have paid for have expired. In contrast, the highest level technical person at CSFSO known as the Senior Case Supervisor is paid the same as all otter employees and auditors, $50 dollars a week for a seven day work week (up to 13 hours a day with allowance for 2.5 hours of taking courses) along with meals and residence in one of Scientology's converted motels. If the level of services supplied by CSFSO approaches the implied claims of the defendant's pleadings, a tremendous cash flow is being generated by CSFSO operations.

A basic tenet of Scientology is the Doctrine of Exchange which states that in order to receive it is also necessary to give. As one court has characterized it, "A Scientologist is obligated to exhange something he values for anything he acquires. Thus, he must exchange cash for auditing services. He must exchange cash for Scientology books. He must exchange any original LRH documents he possesses for the satisfaction of advancing the Scientology cause." Church of Spiritual Technology v. United States, supra at 726. Thus, the court concluded, in many ways the management of Scientology Churches is indistinguishable from commercial enterprises. Id.

The articles of incorporation place CSFSO under the control of a Board of Directors, consisting of no fewer than three, and no more that five directors, with the "authority to control, regulate, oversee, and manage its activities, affairs and properties." At all relevant times the directors and officers of the defendant were Mary Vogeding (President), Brian Anderson (Vice President), Marsha Lovering (Secretary), Barbara Meador (Treasurer) and Debbie Cook (Director). The internal organization of CSFSO follows the divisional model used throughout Scientology and documented more fully at pages 373-373 of "What is Scientology" attached as an exhibit to the defendant's pleadings. Within this heirarchy, Debbie Cook, a director of CSFSO, was the Captain of Flag, or its highest ranking officer. Alain Kartuzinski held the post of Senior Case Supervisor, the person in charge of spiritual technology, who was the highest authority on such issues within the corporate organization.

Almost a half century ago, in State ex rel Losey v. Willard, 54 So. 2d 183 (Fla. 1951), the Florida Supreme Court recognized that corporations may be held accountable for acts of "misfeasance, malfeasance or nonfeasance." The Court ruled that this was so even when the acts constituting the offense required a specific intent or were ultra vires. Corporate criminal liability is well-established in the common law. See, 13 Am.Jur. 1057-1066, Corporations, Secs. 1132, 1134, 1137, 1144, 1145; Brill, Cyclopedia Criminal Law Secs. 139-142; Fletcher, Cyclopedia Corporations (Perm. Ed.), Secs. 4942, 4943, 4944, 4946, 4948, 4949, 4951, and 4959. See, State v. Shouse, 177 So.2d 724 (Fla. 2d DCA 1965); State ex rel. Losey v. Willard, supra.

In recognition of this rule the courts have held a corporation subject to prosecution for manslaughter, State v. Lehigh Valley R. Co., 90 N.J.Law 372, 103 A. 685; Granite Constr. Co. v. Superior Court of Fresno, 149 Cal.App.3d 465, 197 Cal.Rptr. 3 (Ca1.App.5th Dist. 1983); Commonwealth v. Penn Valley Resorts, Inc., 494 A.2d 1139 (Sup.Ct.Pa. 1985); Sea Horse Ranch, Inc. v. Superior Court, 24 Cal.App.4th 446, 30 Ca1.Rptr.2d 681 (5 `° Dist. 1994); People v. General Dynamics Land Systems, Inc., 438 N.W.2d 359 (Mich.App. 1987); for practicing law without a license, People v. California Protective Corp., 76 Ca1.App. 354, 244 P. 1089 (1926); for practicing medicine without a license, People v. John Woodbury Dermatological Institute, 192 N.Y. 454, 85 N.E. 697 (N.Y.App. 1908); cf., in People v. Painless Parker Dentist, 85 Colo. 304, 275 P.2d 928 (Colo. 1929); for obstructing a highway. Palatka & 1. R. R. Co. v. State, 23 Fla. 546, 3 So. 158 (Fla. 1887); for obtaining money by false pretenses, State v. Salisbury Ice & Fuel Co., 166 N.C. 366, 81 S.E. 737, 52 L.R.A., N.S., 216; for criminal libel, People v. Star Co., 135 App.Div. 517, 120 N.Y.S. 498; for selling beer to a known intoxicant in violation of statute, Stewart v. Waterloo Turn Verein, 71 Iowa 226, 32 N.W. 275; for criminal conspiracy, State v. Eastern Coal Co., 29 R.I. 254, 70 A. 1; United States v. Nearing, 252 F. 223 (S.D.N.Y. 1918); for grand larceny, People v. Canadian Fur Trappers' Corporation, 248 N.Y. 159, 161 N.E. 455, 59 A.L.R. 372; for usury, State v. Security Bank of Clark, 2 S.D. 538, 51 N.W. 337; for selling butter under the statutory weight, State v. Belle Springs Creamery Co., 83 Kan. 389, 111 P. 474 (1915), 515; and for antitrust violations, United States v. Hilton Hotels Corporation, 467 F.2d 1000 (9th Cir. 1972), cert. denied, 409 U.S. 1123, 93 S.Ct. 938.

A corporation may be held criminally responsible for illegal acts of its employees if the acts are (a) related to and committed within the course of employment, (b) committed in furtherance of the business of the corporation, and (c) authorized or acquiesced in by the corporation. State v. Municipal Auto Sales, Inc., 222 So.2d 278 (Fla. 3d DCA 1969). The purpose of this rule is to insure that the criminal acts are those of the corporation and not those of a dishonest employee. West Valley Estates, Inc., v. State, 286 So.2d 208 (Fla. 2d DCA 1973). It is not necessary, however, to show corporate approval or acquiescence by showing that corporate directors or officers have participated in or have specifically known of or approved the criminal conduct. In West Valley Estates, for instance, the corporation was criminally charged with the illegal dredging of submerged lands. The uncontroverted evidence was that neither the president nor the board of directors of the corporation knew of or authorized the illegal dredging. Wittman; the corporate employee in charge of the Florida operations, however, did know of and authorize it. He allegedly was a vice president of the corporation, but was claimed to be merely a salaried employee.

Relying on the leading case of Commonwealth v. Beneficial Finance, 275 N.E.2d 33 (Mass. 1975), the Second District concluded that Wittman's complicity in the crime was a sufficient basis upon which to convict the corporation regardless of whether he was actually a corporate officer:

In Beneficial Finance, the court gave a detailed exposition of corporate criminal liability ruling that a corporation's liability does not hinge upon whether corporate officers or directors specifically knew of or approved the conduct, but on the kinship of the act to the powers of the employees responsible. The court concluded:

The fact that the acts may not have been expressly authorized or may have even been expressly forbidden by corporate. policy will not defeat criminal liability. Id. at 86. Moreover, knowledge individually possessed by employees may be attributed to the corporation as a whole. See, e.g., United States u. Bank of New England, N.A., 821 F.2d 844 (1" Cir. 1987) and cases cited therein.

Alain Kartuzinksi testified that he was the highest level corporate employee with decision-making authority over Lisa's handling. The corporate Vice-President as well as the Captain of Flag (also a corporate director) were aware of Kartuzinski's handling of the situation and even received updates on the victim's "progress." A large number of employees were utilized with the approval of numerous supervisors and the incident was known of and monitored by supervisors in the OSA, Security Division, M.L.O. and other corporate offices. After Lisa's death, the corporate officials knew in even more detail about her deteriorating condition and the widespread involvement in her care, yet allowed employees to mislead the police and continued to support those false statements by press releases for over a year into the investigation. The complicity in the crimes arising out of Lisa's stay at the Fort Harrison is widespread and the responsibility for the failure to act is collective. The defense suggestion that there is no basis for corporate liability is simply false.

The defendant further argues that normal employee liability through respondeat superior does not apply to churches under the First Amendment and that therefore it would be improper for the Court to allow imputation of criminal liability to the corporation. This is a clear misstatement of the law. Churches remain liable for the intentional torts and negligence of their employees when acting within the scope of their employment, under the same principles as other entities. Cutler v. St. John's United Methodist Church, 489 So.2d 123 (Fla. stDCA 1986); Cruz v. Hundley, Hialeah Church of Christ, 371 So.2d 698 (Fla. 3rd DCA 1979); Latorre v.. Baptist Church of OJUS, 498 So.2d 455 (Fla. 3rd DCA 1986); Drake v. Island Community Church, 462 So.2d 1142 (Fla 3rd DCA 1985); Folwell v. Bernard, 477 So.2d 1060 (Fla. 2nd DCA 1985). The cases cited by the defendant involve situations where factually the acts of the employees could not be legally attributed to any employer regardless of tire employer's religious nature. Mark K. v. Roman Catholic Archbishop of Los Angeles, 79 Cal.Rptr.2d 73 (Cal.App. 4th 1998); Rita M. v. Roman Catholic Archbishop of Los Angeles, 232 Ca1.Rptr. 685 (Ca1.App. 2'd 1986). In those circumstances, plaintiffs have attempted to sue the employer for negligent hiring or negligent supervision rather suing under agency principles. Thus these cases cannot be read to indicate that churches are not criminally or civilly liable in the same way as other entities for the acts of their agents which may be attributed to the employer.

Even the cases on which the defendant erroneously relies, however, make it clear that the refusal of the courts to intervene in such situations under the First Amendment does not apply in the compelling circumstance involving a criminal act:

Doe v. Dorsey, 683 So.2d 614 (Fla. 5th DCA 1996). The defendant's attempts to suggest that this language would only justify civil liability for a criminal act. It is ludicrous to suggest, however, that the State's interest in allowing civil damages for negligent hiring by a church who is not responsible for the actual crime is more compelling that prosecuting the individuals and entities who are criminally responsible.

The defendant continues to misconstrue the applicable statutes and the Hermanson decision. The positions in this defense argument have been previously addressed in both this motion and the State's contemporaneously filed responses to motions to dismiss one and motion to dismiss two which are hereby incorporated to prevent repetition.

Additionally, the defendant's reliance on Baumgartner v. First Church of Christ Scientist 141 Ill..App. 898, 490 N.E.2d 1319, (1986) and Nally v. Grace Community Church 47 Cal.3d 278, 253 Ca1.Rptr 97 (1988) is legally and factually misplaced. Baumgartner ruled that there is no cause of action for malpractice committed by religious counselors where the treatment is voluntarily sought by a competent person who is not in the custody of the party being sued. The state has not based its prosecution on whether the corporation incompetently applied its own religious technology. Under Florida law the corporation and its employees assumed responsibility for Lisa's condition under a specific statute dealing with disabled adults. They assumed a duty the breach of which subjects them to criminal liability. Moreover, since the defendant was in fact practicing medicine, though unlicensed, the appropriate standard of care is that of a physician not an ordinary person or a pastoral counselor. State v. Heines, 144 Fla. 272, 197 So. 787 (Fla. 1940).

Nally is equally inapposite. The decedent, who took his own life, had been under continuing treatment by both medical and psychiatric professionals. Church non-therapist pastoral counselors who were also advising him but not purporting to cure his depression suggested he seek professional help and even hospitalization which he and his parents (the plaintiffs) declined. He was apparently competent, though depressed, was not in the Church's custody but living on his own. As the court noted "Under traditional tort law, one is ordinarily not liable for the actions of another and is under no duty to protect another from harm, in the absence of a special relationship of custody or control." Moreover, by becoming a "caregiver" CSFSO assumed a legal duty toward McPherson under F.S. 827. Nally might be applicable if the defendant had merely intervened at Morton Plant and done nothing. It did not, however, and the Nally case is clearly inapplicable.

Finally, it is not the prosecution but the defense that has injected the issue of religious doctrine into the proceeding, asserting it as a defense under RFRA and under the specific language of chapter 458. It is wholly illogical to allow the defendant to assert a substantive defense and then suggest that its mere assertion not only deprives the court of the ability to adjudicate that defense but also requires a verdict in its favor.

VII. THE PROSECUTION OF THE DEFENDANT DOES NOT VIOLATE THE FREEDOMS OF RELIGIOUS EXERCISE AND ASSOCIATION OF ITS PARISHIONERS OR OF ANY OTHER ADHERENTS TO SCIENTOLOGY.

The Defendant asserts that the charges against it should be dismissed because the prosecution burdens the rights of association and speech of Scientology's adherents. The Defendant goes on to argue that "[a] heavy burden rests on the State to prove," apparently before trial, "that the alleged acts were, in fact, committed pursuant to Church direction, rather than by a few wayward staff members." The defendant goes on to assert that, "Because that stringent burden not only cannot be met, but is not even alleged, the principles embodied in [National Assn. for the Advancement of Colored People v. Claiborne Hardware Ca., 458 U.S. 886, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982)] and its predecessors, as reinforced by [the] Florida [Religious Freedom Restoration Act], demand that these claims of vicarious criminal liability against the Church be dismissed." The defendant is in error as to both the facts of this case and the applicable law.

The prosecution of Church of Scientology Flag Service Organization, Inc., for secular offenses does not infringe on the rights of free expression and association on the basis of any effect of the prosecution on individual adherents to Scientology. The prosecution of a religious corporation for crimes neither infringes on nor denigrates the religious beliefs of the adherents of the religion: Such a prosecution is concerned not with religious practices, but with secular conduct. It neither impinges upon the collective exercise of freedom of religion, nor amounts to an interference with freedom of individuals to associate with one another. The prosecution notwithstanding, the members of the religion remain free from coercion and constraint in the practice of those religious beliefs that do not threaten the public order. The constitution, after all, shelters individuals and groups only to the extent that religious beliefs or conduct might reasonably or actually be threatened by the prosecution.

Reliance by the defendant on Claiborne, and many other cases it cites is misplaced, and would only be applicable, if at all, if the State was attempting to pierce the defendant's corporate veil and impose criminal liability on the Church of Scientology International, Inc., or other members of the Scientology conglomerate. See, Church of Scientology of California v. Blackman, 446 So.2d 190 (Fla. 4th DCA 1984). The cases cited by the defendant are factually and analytically distinguishable from the instant case:

*Claiborne involved a civil lawsuit against the national headquarters of the N.A.A.C.P., in New York City, which was remote in time and place from the conduct complained of, which occurred in Georgia.

*In re Asbestos School Litigation, 46 F. 3d 1284 (3d Cir. 1994) involved a class action lawsuit against an industry lobbying organization that was even more remote in time and place to the conduct complained of than the national headquarters of the N.A.A.C.P. in Claiborne, and stands for the proposition that mere membership in a national group, and nothing more, does not expose that group to civil liability.

*In Sweezy v. State of New Hampshire, 354 U.S. 235, 77 S.Ct. 1203 (1957), the Supreme Court held that where a college professor was questioned by the New Hampshire Attorney General pursuant to authorization by the state Legislature, concerning the content of professor's lectures and his knowledge of the Communist party and its adherents, his contempt conviction for refusal to answer was an invasion of the professor's liberties in the areas of academic freedom and political expression, and so bears no similarity in fact or law to the case at bar.

*Healy v. James, 408 U.S. 39, 92 S.Ct 2338, 33 L.Ed.2d 266 (1972) involved a college's refusal to recognize a student organization, in contravention of the school's own rules, solely on the basis of unsupported apprehension that the student group would be "disruptive." The Supreme Court ruled that denial of recognition would be properly authorized on a showing that the group refined to comply with the college's rule that it abide by reasonable campus regulations. This case, cited by the defendant, thus stands for the proposition that there may be intrusions on associatioual rights where the law is being violated. See Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857 (1951).

*UnitedMine Workers of America v. Coronado Coal Co., 259 U.S. 344, 42 S.Ct. 570 (1922) and Coronado Coal Co. v. United Mine Workers ofAmerica, 268 U.S. 295, 42 S.Ct. 570 (1922) involve the same facts of physical and temporal remoteness as existed in Claiborne, and is similarly inapposite.

*Rizzo v. Goode, 423 U.S. 362, 96 S.Ct 598, 46 L.Ed.2d 561 (1976) was a case of federal judicial restraint as to the internal disciplinary affairs of a state agency, the Philadelphia Police Department, in which the plaintiff lacked the requisite personal stake in the outcome, there was no showing that the defendant city officers had acted affirmatively in the deprivation of constitutional rights of the plaintiff classes, and principles of equity militated against the imposition of a civil injunction. The case was not decided on the basis of any constitutional issues of freedom of association or collective responsibility.

*Monell v. Dept. of Soc. Serv. of City of N. Y., 436 U.S. 659, 98 S. Ct. 2018, 56 L.Ed.2d 611 (1978) involved the application of the Civil Rights Act of 1871 to local government units as "persons" under the Act for purposes of gaining equitable relief for back pay owed, as a limited intrusion on sovereign immunity. The case had nothing to do with corporate criminal liability, or the doctrine of respondeat superior.

Of all the association cases cited by the defendant, the only one that is factually and legally analogous to the case at bar is strongly supportive of the State's prosecution. Ex parte United Steelworkers of America, Local Union 7533 v. United Steelworkers of America, 536 So.2d 32 (Ala. 1988). In that case, the Dixie Electrical Manufacturing Company filed a petition for a rule nisi in regard to alleged infractions of a temporary restraining order and a preliminary injunction preventing a national union, a local striking union and two members of the local union from engaging in certain activities. The local union and two members were found guilty of contempt. On the petition for writ of certiorari by the local union and the two members, the Alabama Supreme Court held, inter alia, that the evidence was sufficient to conclude that the local union authorized and participated in unlawful acts of its individual members where the union members voted unanimously to strike, the union itself maintained pickets at the entrance of the targeted plant, the union maintained a tent for strikers as protection against inclement weather, the union provided picket captains for picket lines, the union held regular strike meetings, and the union provided strike funds to assist with the personal needs of striking local members in need. Id.

The defendant was deeply and immediately involved in the events that have resulted in its prosecution: All of the criminal acts leading to Ms. McPherson's death occurred on property under the exclusive ownership and control of the defendant. Among the chief actors were several of the defendant's own directors, its Medical Officer, members of its internal security force, various staff members of the defendant, and even its librarian. Several of the corporate actors literally laid their hands on the late Ms. Lisa McPherson in the course of the perpetration of the crimes with which the defendant has been charged. In marked contrast to the facts of Claiborne and other cases cited by the defense, the defendant provided a room and other accommodations, medical staff, caretakers, physical security, billed Ms. McPherson for services rendered, and transported her dead body to New Port Richey in a corporate van. The defendant was, in every respect, the directing force in the determination of Ms. McPherson's fate.

VII. TO THE EXTENT THAT THE MOTION TO DISMISS ARGUES THE INSUFFICIENCY OF THE EVIDENCE OF THE STATE'S CASE OR THE FACTUAL SUFFICIENCY OF ANY ALLEGED DEFENSES IT SHOULD BE STRICKEN OR SUMMARILY DENIED.

The instant investigation consists of forensic evidence and opinions, numerous interviews and sworn statements of civilian witnesses as well as oral, written, taped and court reported statements from employees and documents created by and acquired from the defendant. As the defendant is aware, many individuals have changed their testimony in significant or subtle ways, and there are also significant and irreconcilable differences in the testimonies of the various employees and inconsistencies between their version of events and the forensic evidence. It is therefore difficult to accurately summarize the basis of the corporate prosecution.

It is the State's belief that the defendant is aware of the details of this testimony, but rather than attempt to set out the testimony in detail, the defense attempts to limit the "evidence" to that presented in a probable cause affidavit. Moreover, the motion assumes the truthfulness of caretaker accounts even when refuted by the State's expert forensic and clinical testimony. The State believes, that under the statutes which form the basis for the charges against the defendant, there is no constitutional exemption for practicing medicine without a license or abuse of a disabled person even if the actions were fully based on religious beliefs or practices. Because the defense does not attempt to set forth the full facts of the case and because it alleges facts in a conclusory and slanted way, the motion should be stricken. Moreover, alleging the facts in such a generic way with no actions or testimony attributable to individual actors or witnesses makes it diffcult to respond with specificity. However, the State denies that the acts of commission and omission which constitute the basis of the instant criminal charge were mandated by, fully based on, or justified by Scientology dogma. The State denies that Lisa McPherson validly requested or consented to the procedures constituting the practice of medicine or the abuse and neglect that led to her great bodily injury and death.

To the extent that the defense motion raises the sufficiency of the evidence to establish the elements of the underlying crimes, the only proper vehicle is a sworn motion under 3.190(c)(4). The Motion is improper in form, not properly sworn is based upon unsubstantiated allegations and should be stricken or denied. Moreover, issues concerning state of mind such as intent are innappropriate for resolution in even a properly filed c(4) motion.

Wherefore, the moves this Honorable Court to deny defendant's Motion to Dismiss Based Upon the Religious Freedom Restoration Act.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been furnished to Morris

"Sandy" Weinberg, Jr., Esq., Zuckerman Spaeder Taylor & Evans, P.A., 401 E. Jackson

Street, Suite 2525: -Tampa, FL 33602, by HAND this 6th day of December, 1999.

1) "Auditing" is a Scientology procedure that is discussed at page 40 herein.

2) See, What is Scientology (attached as exhibit A to defendant's Affidavit by Richard Reiss) at page 1019.

3) See, First Independent Missionary Baptist Church of Chosen v. McMillan, 153 So.2d 337 (Fla. 2d DCA 1963).

4) See, page 413 of "What is Scientology" attached to defendant's pleadings which indicate that membership in Scientology is governed by membership in the International Association of Scientologists rather than affiliation with an individual Church or Mission.

This assertion, contained in the affidavit of Michael Rinder, is urged by the defendant as a "substantial burden" imposed upon it.

5) PTS stands for "potential trouble source" and is a Scientology term for person exhibiting psychotic behavior. See pages 39-42.

6) The autopsy report is attached as exhibit 5.

7) Statement of Leslie Woodcraft at page 31.

8) Statement of Alice VanGrondelle, April 1998, at page 19

9) Hyponatremia is a condition of excessive sodium levels in the blood which can be fatal.

10) Attomey Johnson was allowed to make his own tape of the statement Kartuzinslti's taped statements to police are to be found as attachments 2 and 3

11) Laura allegedly said she had been having diarrhea for 24 hours. She did not say this in her statement to the SAO.

12) Minkoff does not confirm this, but indicates he insisted on Lisa being seen before being given a prescription for antibiotics.

13) Kartuzinksi has under immunity acknowledged the falsity of this statement. He did briefly visit Lisa's room later in her "stay." Her condition was so distressing that he reorganized the caretakers so that more than one person would be there at all times.

14) These notes are included as attachment 1.

15) Abbreviation S.D.L.V. is an apparent reference to Sylvia DeLaVega.

16) While this abbreviation presumably stands for Medical Office(r), there is no such office or position. Johnson is referred to as doctor in the caretaker notes.

17) A copy of Weber's statement is attached as exhibit 9.

18) A copy of Houghton's two statements are included as exhibits 10 and 11.

19) Minkoff's recollection is imprecise as to who was on the phone during these conversations.

20) Houghton denied any recollection of such an incident.

21) Minkoff has adamantly denied that he authorized such injections or provided injectable Magnesium.

22) Minkoff is quoted in an earlier interview as indicating the call was between 7:00 and 7:45 p.m.

23) A statement to this effect was overheard by another witness in the NPR emergency room.

24) The e-meter is a device similar to a galvanometer which measures changes in skin conductivity and is used during the auditing process to measure a subjects reaction to questions and phrases spoken by the auditor. The subject holds a metal cannister in each hand. The reactions are measured on a needle.

25) Karmzinski Sworn Statement at pages 72, 76. A copy of this statement is included as Attachment 12.

26) See definitions contained in F.S. §765.101 (1998).

27) Transcript of Kelly Davis statement.

28) Because the caretaker notes are not complete and the recollections and testimonies of caretakers are limited in detail it is difficult to precisely reconstruct the exact amount of fluids and food which Lisa consumed during her 17 day "stay" at the Ft. Harrison.

29) Houghton second statement at page 148.

30) Minkoff Second Statement May 19, 1998 at page 68. A copy of this statement is attached as exhibit 7.

31) Minkoff Swom Statement April 20, 1997 at page 103. A copy of this statement is attached as exhibit 6. See, Technical Bulletins, Volume 8 at page 327 "The correct action on an insane patient is a full searching clinical examination by a competent medical doctor."

32) Deposition of E. V. Hill in State v. Henry Lyons and Bernice Edwards, Case No. CRC 98-03449 CFANO. December 30, 1998, at pages 5-8. Trial Testimony of E.V. Hill, February 10, 1999, at pages 55-63.

33) Reynolds v. U.S., 98 U.S.(8 Otto) 145 at 166 (1878).

34) Late Corporation, supra at page 49

35) Smith, supra., at 879.

36) Relying on Ex parse Pells, the Supreme Court in State v. Watts, 558 So.2d 994 (Fla. 1990), found that a 1985 amendment of the youthful offender statute (Section 958.14) changing the sentence that could be imposed upon revocation of community control could be applied where the conduct constituting the violation occurred after the statute's enactment. The Court noted that the change was to a statute different from that defining the crime or the initial punislunem and which had no direct connection to either. Quoting from Ex parte Pells, the Court ruled that the statutory change in no way affected prosecution or punishment for any previously committed crime, holding that "an offense committed prior to or subsequent to the 1985 amendment can be prosecuted and punished in the same manner as it could be had the '1985 amendment' never been enacted." Subsequently, however, in Arnette v. State, 604 So.2d 482 (Fla. 1992), the Court revisited this amendment and ruled that the statute did not in fact change the sentence which could be imposed on a violation and was simply a clarification of the legislature's prior intent that defendants sentenced as youthful offenders retain their status even if convicted of community control violations.

37) As the defendant suggests some Courts since Boerne have continued to hold RFRA is constitutional as applied to the federal government. However, a number decisions have held based upon Boerne that RFRA is no longer constitutional as applied to the Federal government. See, e.g.. United States v. Sandia, 6 F.Supp. 2d 1278,1281(D.N.M. 1997); Branch Ministries, Inc. v. Richardson, 970 F.Supp. 11,13(D.D.C. 1997); Waguespack v. Rodriguez, 220 B.R. 31, 36 (W.D.La. 1998); In re Andrade, 213 B,R. 765. 772 (Banks. E.D. Cal. 1997); Gelizer v. Crossroads Tabernacle, 214 B.R. 101, 106 (Banks. S.D.N.Y. 1997); In re Gates Community Chapel of Rochester, Inc., 212 B.R. 220, 225-26 (Banks. W.D.N.Y. 1997); In re Saunders, 214 B.R. 524, 526 (Banks. D.

38) One professor, in analyzing the effectiveness of RFRA in accomplishing its stated goals, has compiled a comprehensive list of cases deciding the substantial burden issue between Federal RFRA's enactment in 1993 and the Boeme decision in 1997. Lupu, Ira C., 20 U. ARK.. LITTLE ROCK L.J. 575 (1998) appendix.

39) The cases so heavily relied on by the defendant concerning whether civil liability is appropriate for "religious malpractice" are clearly inapposite and factually and legally distinguishable because they did not involve a custodial setting and the responsibilities that accompany it. See discussion at pages 82-83 infra. Moreover, these cases involved pastoral counseling activity for which the parties involved were not required to be licensed (and therefore there was no criminal violation of a regulatory statute) and did not involve a statute such as chapter 827 which places affirmative duties upon persons who assume the role of caregiver for a disabled person. These cases also do not deal with the issue of involuntary restraint or the imposition of practices upon persons without there consent.

40) See cases cited in Riese v. St. Mary's Hospital and Medical Center, 243 Cal Rptr. 241 (Cal.App. 1st 1988) at page 252.

41) See, also, Religious Technology Center v. Lerma, 908 F.Supp. 1362 (E.D.Va. 1995). "The Court finds the motivation of plaintiff in filing this lawsuit against the Post is reprehensible. Although the RTC brought the complaint under traditional secular concepts of copyright and trade secret law, it has become clear that a much broader motivation prevailed - the stifling of criticism and dissent of the religious practices of Scientology and the destruction of its opponents."

42) The labyrinthine structure of Scientology and its many corporations, as well as their financial orientation and money flow is detailed in Church of Spiritual Technology v, United States, 26 CI.Ct. 713 (1992).

43) HCO Policy Letter of 9 March 1972.

44) A schedule of costs for these services is attached as exhibit 4.

45) Judy Fontana replaced Marsha Lovering as a member of the Board of Directors in March, 1996.

46) Commonwealth v. Beneficial Finance, 275 N.E. 2d 33 (Mass. 1975) at page 86.

47) Rather it is the defendant who has injected compliance with Scientology's religious tenets as a defense to the unlawful practice of medicine.