UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT CULT AWARENESS NETWORK, ) Appellant, ) v. ) JASON SCOTT, ) Respondent. ) _____________________________) No. 96-35050 MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF Pursuant to FRAP 29, the undersigned nonprofit organizations joining herein, briefly described at pp. 11-12, infra, request leave to file a brief (conditionally submitted with this motion) as amicus curiae, on one issue: Whether, in light of • the policies underlying the doctrine of vicarious liability and • the First Amendment, a nonprofit association may be held vicariously liable as a "principal," and assessed compensatory and punitive damages, based solely on a volunteer's alleged acts and omissions performed on her own • of which the association had no prior knowledge or information, • which the association did not ratify, and • which were contrary to the declared policies of the association, and where the volunteer did not hold herself out as and was not regarded by the party with whom she communicated as acting on behalf of the association? Interest of Amici Amici limit their brief to public policy and First Amendment impacts of the District Court's unwarranted expansion of vicarious responsibility of nonprofits. This case involves alleged communications by an unpaid volunteer, unbeknownst to the nonprofit association. The trial court's refusal to consider factors unique to the relationship between a nonprofit and a volunteer concerns amici. Appellant, Cult Awareness Network ("CAN"), repeatedly raised the vicarious liability issue, in its motion for summary judgment, pre-trial brief and post-trial memo- randum. CAN did not raise the First Amendment issues below, but Constitutional issues are not waived and amici are informed that appellant will raise them here. Public policy consequences of the decision below will recur in other contexts if the trial court's decision stands. The risk of "ascending liability" for acts or omissions of volunteers vitally concerns nonprofit associations in their day-to-day work, but it receives dangerous new impetus from the decision below, all the more so when vicarious liability, as sustained by the District Court, threatens First Amendment freedoms. In order to leverage their ability to fulfill their goals, not-for-profit associations commonly rely in large measure on unpaid members, unrelated persons who support their ideals and concerns, and other volunteers, in contrast to commercial or for-profit enterprises that rely largely on employees. The doctrine of vicarious responsiblity is well established as to agents that are paid "servants" but has only limited applicability to unpaid agents or to nonprofit organizations using volunteers. That expansion of liability raises serious concerns for amici. As Professors Gaffney and Sorensen point that: authority and the right to control are often ambiguous and multidirection- al in nonprofit groups. Confusion and jurisdictional overlap are common--a circumstance not too surprising when the participants have no economic stake in how the lines of authority are run. Moreover, auth- ority and control, rather than being fixed, may shift with time, circum- stances, and personalities. In contrast, prerogatives and lines of authority in profit organizations tend to be definite and distinct. Even as to vicarious liability applicable to commercial enterprises under Washington state common law, the District Court did not apply tort principles appropriate to an unpaid agent. The unpaid wife of a Texaco dealer -- when she drove to the bank to deposit receipts -- was held not the agent of Texaco, Inc. despite an extraordinary measure of control over the filling station. The court below also ignored distinctions made by the Restatement (even in the case of for-profit principals) between "servant" and "non-servant" agents. And it regarded as irrelevant unique aspects of relationships between nonprofit association and volunteers. A treatise advising associations how to insulate themselves from liability for improper acts of agents and chapters, discusses careful monitoring while conceding ambivalence: Unfortunately, the legal result of such monitoring is that the more closely an association controls the activities of its chapters the more likely it is to [be] held responsible for what the chapter does, .... To balance these considerations sensitively, nonprofit organizations need as much clarity as the law can provide and recognition of unique characteristics of the non- profit sector and its reliance on volunteers -- characteristics that bear directly on judicial policies that underly vicarious liability doctrine. Amici support appellant, CAN, because the decision below raises matter of public significance by exposing all nonprofit organizations to expanded liability, and undermining their First Amendment freedoms of speech and association. Summary of the Case The association defendant's alleged agency relationship was not with a local branch or chapter but with a single individual part-time volunteer, Ms. Shirley Landa, who was not an officer, director or person of authority. The undisputed testimony was that she neither held herself out as or was recognized by the persons with whom she dealt (plaintiff's mother) as an agent or representative of CAN. Indeed she was a volunteer for a number of organizations acting with a common purpose and concern in the same area, and described herself as an independant actor. The volunteer did not participate in any of the wrongful acts at issue, involving abduction and detention, which were directly contrary to the policy of the national association. The allegations against her conduct in this case were of "negligent refer- ral" and conspiracy. But there was a complete absence of evidence of control by the national organization over any of the activities of the volunteer alleged in this case. And there was no allegation or proof of ratification of the volunteer's actions by the national organization except for the claim that failure to terminate her status was implicit ratification. Such an argument of ratification was expressly rejected in similar circumstances by Justice Douglas in NAACP v. Overstreet and Justice Brennan in United Mine Workers v. Gibbs. Comparison of this case with others demonstrates the dramatic expansion of vicarious liability in the absence of appropriate evidence of agency, proof of control over the agent by the principal as regards the acts alleged or clear and appropriate proof of ratification. Even assuming that CAN believed (as it apparently did not) that Landa wanted to refer families for unlawful deprogramming of adult children, the only "control" that CAN could exercise over Landa would have been to "fire" her by de-designating her as a contact person. There was no other evidence of "control" by CAN or reason to believe that such non-exclusive "control" could have had any teeth. CAN contended that Ms. Landa had acted on her own and not within the scope of her authority since plaintiff's mother turned to the volunteer as an individual in the community and indisputably without regard to any connection to or representation of the association and because unlawful abduction and detention of an adult, such as plaintiff, Mr. Scott, was contrary to CAN policy. Nonetheless, the trial judge denied the association summary judgment and allowed the issue of vicarious liability to go to the jury and sustained a jury verdict against the nonprofit association. Position of Amici Amici contend that the trial court expanded vicarious liability of nonprofits far beyond accepted agency law precedents. Such expansion opens the door for endless attempts by prejudicial evidence and argument, to destroy nonprofit organizations which espouse controversial views by proponents of conflicting views. Amici urge this Court to adopt the presumption of nonagency which Professors Gaffney and Sorensen set forth: Often an activity could be on behalf of and for the benefit of either the organization or the member [of a church or a civil rights organization]. The issue is whether any agency relationship whatsoever has been established. No inference of agency can be drawn from activities that advance both the actor's and the organization's interests. The presump- tion should not be one of agency but one of nonagency. As recognized by the Supreme Court in Claiborne Hardware and the dissent in Overstreet, nonprofit associations engaged in bringing matters of controversy before the public -- in areas which today include abortion, environmental advocacy, health care, homelessness and discrimination based on race, religion, national origin or sexual preference -- should not have their rights and the rights of their members chilled by the threat of liability such as is raised here. Amici's support for CAN on the agency issue does not extend to supporting those other defendants whose appeals the Court has consolidated with CAN's. None of them, however, was held to be an agent for appellant CAN and, notably, although alleged to be co-conspirators, neither the volunteer nor plaintiff's mother were named co-defendants. The District Court should have dismissed CAN as a defendant, as a matter of law, rather than letting the case against CAN proceed to the jury, either by granting summary judgment, thereby confining further discovery and trial to the actual abduction and restraint of plaintiff and outrage committed against him by the named, individual defendants, or by granting CAN's trial or post-trial motions. The District Court should not have allowed a so-called expert witness to be heard or considered expressing his opinion as to an ultimate jury question, whether to believe the sincerity of CAN's formal policies and literature opposing abduction and involuntary detention. The District Court should not have held that the alleged "inflammatory" character of information CAN disseminated supported either vicarious liability or punitive damages. Why a Brief of Amici Curiae Is Desirable Amici will stress analogous contexts in which nonprofits face agency/vicarious liability issues and the public policy reasons why the courts should draw a clear line that encourages associations to use volunteers and police their own activities without risking a novel, perhaps, endless expansion of vicarious liability. Under the unprecedented decision below, the association's only way to avoid risk of exposure to liability is to buy insurance coverage, if it can, or desist from rela- tionships with volunteers who may act on their own. There is only a limited body of appellate law focused on the issue of vicarious liability of nonprofits, perhaps because of a tendency to compromise vexing cases, perhaps because many states immunized charities from any liability during much of the evolution of the doctrines of vicarious liability and respondeat superior in American law. Development of those issues here will assist the court in considering significant factors pertinent to the nonprofit sector. As the following description of amici suggests, they bring several perspectives to the issue: American Family Foundation ("AFF") is a not-for-profit organization dedicated to educating the public on the dangers of destructive cults. AFF, which has no more than half a dozen employees (some part-timers), relies on over a hundred volunteers. AFF is mentioned in the record below, e.g., at Tr 3:163. HALT--An Organization of Americans For Legal Reform ("HALT") is a nonprofit organization, supported entirely by individual member donations of its 70,000 members, working on a national basis to make the legal system more accessible and affordable to citizens. HALT is concerned, among its many issues, about limits on the activities of nonprofits, and about excessive punitive damage awards. HALT uses volunteers and often takes controversial positions. Jews for Judaism ("JFJ") is a non-affiliated, non-denominational organization serving the entire Jewish community. Its principal purpose is to provide information on the methods and practices of the deceptive missionary and cult groups that target the Jewish community for conversion. JFJ facilitates and promotes positive Jewish experiences in dealing with such deceptive groups, through counseling services, outreach programs for unaffiliated and estranged Jews, encounter groups, lectures and production of books, periodicals, pamphlets, video and audio material. Watchman Fellowship ("WFI") is a nonprofit, international, Christian ministry concerned with cults and new religious movements. WFI's focus is research, edu- cation, and counseling family of cult members and interventions with cult members. WFI works with 20 paid staff in 7 states and 2 foreign countries, and at least a hundred volunteers. Volunteers play a variety of vital roles throughout the nonprofit sector. They raise funds, teach courses, speak to the press and staff a myriad of positions. Some are closely supervised; others are in almost totally independent roles. Some volunteer their services exclusively and full-time to one nonprofit; others volunteer fractions of their time with several. And some just work in parallel with nonprofit associations, to which they belong, not as unpaid staff and not as unpaid independent "contractors" but, rather, as fully independent Americans who want to further shared ideals, shared doctrines, shared goals. Amici will address what the decision here will imply for these important contributions by volunteers in the nonprofit sector, factors the District Court declined to consider, and will urge a sounder framework for analysis and decision than guided the court below. Respectfully submitted, ________________________ David J. Bardin Arent Fox Kintner Plotkin & Kahn 1050 Connecticut Avenue, NW Washington, DC 20036-5339 (202) 857-6089 Counsel for AFF William Fry Executive Director HALT--An Organization of Americans For Legal Reform 1319 F Street, NW • Suite 300 Washington, DC 20004 Mark K. Powers National Director Jews For Judaism P.O. Box 15059 Baltimore, MD 21282 K. Craig Branch Vice President Watchman Fellowship P.O. Box 530842 Birmingham, AL 35353 Dated: September 3, 1996 APPENDIX Ms. Shirley Landa was not an officer, employee or director, but only a "contact" person for the State of Washington. • Ms. Landa's activities as a CAN volunteer were vaguely defined. They might sometimes include talking with a family concerned about cults, but were not restricted to that or necessarily focused on that sort of contact. • CAN referred at most five matters a year to her. But CAN had not referred the matter here at issue; it came directly to her. • She did volunteer work from her home, with no regular hours. • Many years before the relevant period, the volunteer was a founder of CAN's predecessor and had served on its initial board of directors, but she had held no national office for many years. • She had personal interests which she pursued -- on her own -- as a volunteer writer and speaker and informal consultant in CAN's field of endeavor and otherwise. Her principal interest as to cults involved education. • She was also active as a volunteer on behalf of several other nonprofit organizations, in this field and others, and as a businesswoman. • She did not charge anyone for her volunteer services. • She received a phone call, at her home, from plaintiff's mother -- who had never heard of CAN. • The volunteer counseled -- on the phone and in person -- with plaintiff's mother who had left a church group (together with the youngest five of her 8 children) and said she was concerned that two minor sons (for whom she was apparently the legal guardian) and plaintiff, Mr. Scott (aged 18), adhered to the church group. • The volunteer gave plaintiff's mother copies of several articles and gave her the phone number of a "deprogrammer" whom the mother called, interviewed and hired. Plaintiff's mother retained him (and others he recommended) first, lawfully, to help remove her two minor sons from the group and then, weeks later, unlawfully, to abduct her 18-year-old son, hold him against his will and attempt to "deprogram" him. • The nonprofit association had no direct involvement in or knowledge of any of the events (lawful or unlawful) until after they had all happened. None of CAN's officers, directors or employees knew anything about these events. The nonprofit did not "fire" its member/volunteer after the fact. • The nonprofit's formal position and literature, at the time of the incidents in question, opposed involuntary abduction and detention. As all the documentary evidence and testimony of fact witnesses proved, the national association's policy opposed the kind of wrongful acts at issue in this case, but the District Court permitted plaintiff's expert to testify to the ultimate conclusion that he disbelieved the sincerity of CAN's formal policy and literature. • There was no evidence that CAN knew or should have known of any history of prior violation of its policy involving Ms. Landa, because the only evidence was her testimony that she had not participated in or conspired to arrange an abduction or unlawful detention of any adult. In the UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT CULT AWARENESS NETWORK, ) Appellant, ) v. ) No. 96-35050 JASON SCOTT, ) Respondent. ) Appeal from Verdict and Judgment of the United States District Court for the Western District of Washington BRIEF OF AMICI CURIAE AMERICAN FAMILY FOUNDATION ("AFF"), HALT--AN ORGANIZATION OF AMERICANS FOR LEGAL REFORM, JEWS FOR JUDAISM, AND WATCHMAN FELLOWSHIP ON AGENCY, VICARIOUS LIABILITY AND FIRST AMENDMENT ISSUES David J. Bardin Arent Fox Kintner Plotkin & Kahn 1050 Connecticut Avenue, NW Washington, DC 20036-5339 (202) 857-6089 Counsel for AFF William Fry Executive Director HALT--An Organization of Americans for Legal Reform 1319 F Street, NW • Suite 300 Washington, DC 20004 Mark K. Powers National Director Jews For Judaism P.O. Box 15059 Baltimore, MD 21282 K. Craig Branch Vice President Watchman Fellowship P.O. Box 530842 Birmingham, AL 35353 Dated: September 3, 1996 CERTIFICATE OF COMPLIANCE WITH CIRCUIT RULE 32 The accompanying Brief of Amici Curiae AFF et al. on Agency, Vicarious Liability and First Amendment Issues is double-spaced and proportionately-spaced in Times Roman typeface, 14-point type, totalling 8323 words according to the WordPerfect 5.1 Spellchecker (including the table of contents, table of authorities and two typed appendices but excluding the cover, this certificate and the certificate of service. ________________________________________ Page Table of Contents Certificate of Compliance with Circuit Rule 32 Table of Contents i Table of Authorities ii Statement of the Issues 1 Statement of Jurisdiction, Statement of the Case and Standard of Review 2 ARGUMENT 2 A. The District Court Erroneously Treated Ms. Landa (the Volunteer) as CAN's Servant. 4 B. The Not-for-Profit Context in Relation to Members and Volunteers Must Be Considered together with First Amendment Associational Rights Before Imposing Vicarious Liability on a Nonprofit Advocacy Group 8 C. The Trial Court Infringed CAN's Freedom of Speech. 19 D. The Trial Court Erred by Submitting the Issue of Vicarious Liability to the Jury without Proof of Control, Apparent Authority or Ratification 21 CONCLUSION 25 Appendix A: Exhibit 39 (text of two 1990 CAN brochures in 14-point type) What Can You Do? A-1 Do's and Don'ts A-2 Suggested reading list A-3 CAN at a Glance A-4 Appendix B: Description of the amici B-1 Certificate of Service Table of Authorities Page CASES Adams v. Pate, 445 F.2d 105 (7th Cir. 1971) 16 American Soc'y of Mechanical Eng'rs v. Hydrolevel Corp., 456 U.S. 556, reh'g denied, 458 U.S. 1116 (1982) 7 Augenti v. Cappellini, 84 F.R.D. 73 (M.D. Pa. 1979) 12 Coronado Coal Co. v. United Mine Workers, 268 U.S. 295 (1925) 8,14 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), on remand, 43 F.3d 1311 (9th Cir.), cert. denied, 133 L. Ed. 2d 126 (1995) 11 Giovia v. Kiamesha Concord, Inc., 1993 U.S. Dist. LEXIS 18225 (S.D.N.Y. Dec. 23, 1993) 6 Hamm v. Camerota, 48 Wash. 2d 34, 290 P.2d 713 (1955) 5 Katz v. Superior Court of San Francisco, 73 Cal. App. 3d 952, 141 Cal. Rptr. 234 (1977) 12 Kroshus v. Koury, 30 Wash. App. 258, 633 P.2d 909 (1981), review denied, 96 Wash. 2d 1025 (1982) 6 McLean v. St. Regis Paper Co., 6 Wash. App. 727, 496 P.2d 571, review denied, 81 Wash. 2d 1003 (1972) 5 Molko v. Holy Spirit Ass'n, 46 Cal. 3d 1092, 252 Cal. Rptr. 122, 762 P.2d 46 (1988), cert. denied, 490 U.S. 1084 (1989) 12 NAACP v. Claiborne Hardware Co., 458 U.S. 886, reh'g denied, 459 U.S. 898 (1982) 4,13,20 Page NAACP v. Overstreet, 384 U.S. 118, reh'g denied, 384 U.S. 981 (1966) 4,25 National Union Fire Ins. v. CCP Ins. Agency, Inc., 563 F. Supp. 1216 (S.D.N.Y. 1983) 7 Nordstrom Credit, Inc. v. Department of Revenue, 120 Wash. 2d 935, 845 P.2d 1331 (1993) 5 Oregon Natural Resources Council v. Mohla, 944 F.2d 531 (9th Cir. 1991) 12 Peterson v. Sorlien, 299 N.W.2d 123 (Minn. 1980), cert. denied, 450 U.S. 1031 (1981) 10,12 Pflugmacher v. Thomas, 34 Wash. 2d 687, 209 P.2d 443 (1949) 3 Roletto v. Department Stores Garage Co., 30 Wash. 2d 439, 191 P.2d 875 (1948) 5 United Mine Workers v. Coronado Coal Co., 259 U.S. 344 (1922) 8 United Mine Workers v. Gibbs, 383 U.S. 715 (1966) 24 United States v. Binder, 769 F.2d 595 (9th Cir. 1985) 11 United States v. Butterfly, 1995 U.S. App. LEXIS 34487 (9th Cir. 1995) 11 United States v. Candoli, 870 F.2d 496 (9th Cir. 1989) 11 Vernon v. Southern California Edison Co., 955 F.2d 1361 (9th Cir.), cert. denied, 506 U.S. 908 (1992) 8 Weiss v. Patrick, 453 F. Supp. 717 (D.R.I. 1978), aff'd, 588 F.2d 818 (1st Cir. 1978), cert. denied, 442 U.S. 929 (1979) 12 Page STATUTES Civil Rights Act 42 U.S.C. § 1893 16 42 U.S.C. § 1895 16 MISCELLANEOUS RESTATEMENT (SECOND) OF AGENCY § 1 5 § 8 7 § 14L 16 § 49(a) 8 § 220(1) 17 § 220(2) 5 § 250 6 § 265 7 5 Harper, James & Gray, THE LAW OF TORTS (2d ed. 1986) 2,3,17 Constitutional Law, 96 HARVARD L. REV. 62 (1982) 14 E.M. Gaffney, Jr. & P.C. Sorensen, ASCENDING LIABILITY IN RELIGIOUS AND OTHER NONPROFIT ORGANIZATIONS (H.R. Griffin ed. Mercer University Press 1984) 2,4,9,15,16 Susan Landa, Children and Cults: A Practical Guide, 29 J. FAMILY L. 591 (1991) 10 W. Page Keeton et al., PROSSER AND KEETON ON THE LAW OF TORTS (5th ed. 1984) 2,3,6,182 Laurence H. Tribe, AMERICAN CONSTITUTIONAL LAW 849 (2d ed. 1988) 20 Statement of the Issues Amici adopt the statement of the issues of appellant, Cult Awareness Network ("CAN") but limit this brief to the following issue: Whether, in light of • the policies underlying the doctrine of vicarious liability, and • the First Amendment, a nonprofit association may be held vicariously liable as a "principal," and assessed compensatory and punitive damages, based solely on a volunteer's alleged acts and omissions performed on her own • of which the association had no prior knowledge or information, • which the association did not ratify, and • which were contrary to the declared policies of the association, and where the volunteer did not hold herself out as and was not regarded by the party with whom she communicated as acting on behalf of the association? Statements of Jurisdiction, of the Case and of the Standard of Review Amici adopt appellant CAN's statements of jurisdiction and of the case and of the standard for review. ARGUMENT "The presumption should be not one of agency but one of nonagency" at the outset of a case such as this. The District Court erred as a matter of law by (a) refusing to weigh the policy significance of unique aspects of relations between volunteers and nonprofit associations and (b) overlooking First Amendment issues of freedom of speech and association. The end result was expansion of vicarious liability beyond what might be proper as to profit-seeking enterprises. American jurisprudence recognizes vicarious liability and respondeat superior as doctrines based on social policy considerations rather than on fault or evidentiary problems of proof. These doctrines emerged with little need for attention to the nonprofit sector since charitable immunity from tort liability then flourished. The pragmatic judicial objectives of vicarious liability are either accident prevention or allocation of risk to those best able to pay. Typically, courts impose vicarious liability on employers for torts committed by employees while engaged in the employer's business. In some limited circumstances, courts may also impose vicarious liability on account of acts by non-employee agents. While courts have expanded the doctrine of vicarious liability in the case of some automobile-related torts they have expressed caution in doing so. There are critical Constitutional reasons inhibiting such extension to not-for- profit groups. As the Supreme Court warned, in rejecting vicarious liability in a strikingly similar case: To equate the liability of a national organization with that of the Branch in the absence of any proof that the national authorized or ratified the misconduct in question could ultimately destroy it. The rights of political association are fragile enough without adding the additional threat of destruction by lawsuit. Analyzing the relation of volunteers to nonprofit associations, Professors Gaffney and Sorensen have set forth compelling reasons why "[n]o inference of agency can be drawn from activities that advance both the actor's and the organization's interests. .... The presumption [in such cases] should not be one of agency but one of nonagency." The District Court, refusing to consider the distinctive factors in relations between nonprofits and volunteers, expanded vicarious liability in the case of a nonprofit beyond even that which might be justified as to a for-profit enterprise. A. The District Court Erroneously Treated Ms. Landa (the Volunteer) as CAN's Servant. When as in this case a volunteer wears several hats there is a threshhold ques- tion: On whose behalf did she act here? The trial court recognized that an agent for some purposes and at some times may not be an agent for purposes of the given transaction, citing Nordstrom Credit, Inc. v. Department of Revenue. But the trial court failed to recognize, as a matter of law, the lack of any basis for making CAN vicariously liable for the mistreatment of Mr. Scott without showing that any of Ms. Landa's actual acts or omissions were within the control of CAN. CAN received no benefit. CAN had no effective means of control. Even were there a showing, agency alone is not enough to support vicarious liabilty. Here there was an entire absence of proof of control of this volunteer by this association as to this matter. The District Court applied an agency rule applicable to master and servant to CAN's relationship to Ms. Landa even though this was a classic case of a volunteer non-servant alleged to be an agent. Vicarious liability of a volunteer is normally not attributed to the alleged principal. Restatement (Second) of Agency § 250. Prosser and Keeton, supra, at 508 [footnote omitted]: Since an agent who is not a servant is not subject to any right of control by his employer over the details of his physical conduct, the responsibility ordinarily rests upon the agent alone, and the principal is not liable for the torts which he may commit. In such a case, absent proof of "control," the principal is entitled to summary judgment as a matter of law. In Giovia v. Kiamesha Concord Inc., the court dismissed as a matter of law a claim seeking to hold the Eastern Regional Nursery Men's Association responsible for the acts of some individuals who assaulted the plaintiff, holding that plaintiff failed to present appropriate proof of agency. It noted the absence of proof of both authorization of the acts in question and "the control of the association." The court also noted that the association had never dealt with the plaintiff or acted so as to suggest that the agents were acting for the association. It also cited and relied on National Union Fire Ins. Co. v. CCP Ins. Agency, Inc. for the proposition applicable to this case that "where there is no proof that any conduct of the principal engendered a third party's belief that an agency's relationship extended to the transaction" the principal will not be bound. Likewise there was no proof to support a liability based on a theory of apparent agency. Restatement (Second) of Agency §§ 8, 265. This case is distinguished from American Soc'y of Mechanical Eng'rs v. Hydrolevel Corp. where an association committee chairman communicated statements denigrating one competitor's product on association letterhead and was held accordingly to be acting within the scope of his apprent authority. It is undisputed that in this case plaintiff's mother never believed that an agency relationship between the volunteer and the association related to the communications with plaintiff's mother. Accordingly, judgment for the principal would be proper as a matter of law. The Supreme Court's careful distinctions between liability of a national (or international) trade union and the local union should have guided the court below as to the necessity for a clear showing of actual participation, ratification or apparent authority before permitting a jury to ascribe vicarious liability to the national association. B. The Not-for-Profit Context in Relation to Members and Volunteers Must Be Considered together with First Amendment Associational Rights Before Imposing Vicarious Liability on a Nonprofit Advocacy Group. The trial court's expansion of vicarious liability to a not-for-profit advocacy group without consideration of First Amendment rights conflicts with established constitutional authority and the policy bases for the vicarious liability doctrine. The doctrine of vicarious liability rests on social policy considerations applicable to master/servant relationships. These considerations essentially sought to shift financial responsibility and allocate risks to employers for losses caused by their employees without consideration of fault. However, when expanding such a policy beyond its initial roots, courts have become concerned about the appropriate policy bases to be considered. This is particularly acute in the wide variety of relationships between nonprofits and volunteers. Professors Gaffney's and Sorensen's study of vicarious liability as applied to nonprofits confirms that basing vicarious liability on commercial agency characteris- tics will raise unique problems when applied in the nonprofit context. While the application of agency concepts would not differ in the profit and nonprofit contexts when the relationships remain the same (for example, employer-employee), there are unique nonprofit relationships to which their application raises distinctive issues. A well-settled body of authority has arisen dealing with the necessity to protect First Amendment rights of association on the part of advocacy groups against liability for acts of lower level volunteers or members where there is an absence of proof of control over the acts in question or clear proof of ratification. In the present case, the relevant facts are clear. The alleged agent was a low- level volunteer with minimal communication with the national office (and none as to the events at issue). The policy of the principal was unambiguously pronounced by the persons and boards having authority to promulgate it. The alleged expert testimony to the effect that the policy was not in truth the policy of the organization must be discarded on the ground the expert testimony is not admissible as to credibility and truthfulness. Additionally, it is clear that the expert testimony offered had no relevance to the time of the events at issue in this case (1990-1991) since the expert had no knowledge of the situation and facts at that time. Moreover, admission of that expert testimony, and plaintiff's repeated arguments based on it, prejudiced the verdict undermining CAN's First Amendment associational rights. Beginning with cases involving labor unions and extending to cases involving the NAACP and environmental matters, the courts have been sensitive to the peculiar concerns of protecting the First Amendment rights of the membership associations, unions and advocacy groups. This Court, in Oregon Natural Resources Council v. Mohla, observed that where petitioner's goals are political rather than economic, such protection is particularly appropriate. CAN's main interest is in disseminating information concerning cults. Certainly cults and CAN's views are topics of controversy, but are these topics more controversial than were activities of unions and the NAACP in a prior day? In a case with striking parallels to the case at hand, NAACP v. Claiborne Hardware Co., the Supreme Court rejected fastening liability on the national organization for the actions of local individuals, stating that "[t]o impose liability without a finding that the NAACP authorized -- either actually or apparently -- or ratified unlawful conduct would impermissibly burden the rights of political associations that are protected by the First Amendment." Analyzing this and like cases, the Harvard Law Review concluded: If agency doctrine inhibits the exercise of constitutional rights in a certain class of cases, it should not be applied blindly to those cases. Viewed from this perspective, Claiborne Hardware implies that the law of vicarious liability should be subject to restrictions similar to those that New York Times v. Sullivan and Goetz v. Robert Welch, Inc. imposed on the law of defamation. [These cases] forced states to raise the common law standards of liability in defamation cases to prevent chilling the efforts of a free press. Similarly, the doctrine developed in Claiborne Hardware may ultimately force states to reform the common law of agency to prevent chilling the right of free association. Constitutional Law, 96 HARVARD L. REV. 62, 171 & 176 (1982) (E4. Vicarious Lia- bility and the Right of Association: NAACP v. Claiborne Hardware Co.) (footnotes omitted). The decision in Coronado Coal Corp. v. United Mine Workers, supra, reached a similar conclusion. Against the background of First Amendment freedoms Professors Gaffney and Sorenson emphasize unique relations between nonprofits and volunteers. They point out: A church ... may be liable for negligence of its employees, yet it does not necessarily follow that members of its congregation are to be viewed as working on behalf or for the benefit of the church whenever they engage in good works urged upon them by church doctrine. Nor is it clear that it would make a difference, in terms of benefit to the church, if the work were done in the name of the church in response to an aspirational command thereof. Does a Boy Scout in uniform, by assisting an elderly person across the street, benefit the Boy Scouts of America? Is his action on behalf of the scout organization? There are obvious differences, it would seem, between serving an organization and serving that organization's ideals--between accomplishing duties assigned by an organization and pursuing its members' common interests or shared aspirations. * * * * * Activities by officers and employees and by related organizations in the profit sector do not ordinarily present problems as to on whose behalf or benefit they are taken. The status of the relationship or the scope of the employment generally resolves the issue. Activities by members or affiliates of nonprofit organizations can, however, be ambiguous because neither the members' affiliates' status, nor the scope of accepted or anticipated membership activity, is determinative. In organizations formed because of shared beliefs or ideals (religious, poli- tical, and ideological groups), acts by members or affiliates constituting an expression of those beliefs and ideals are not necessarily done on behalf of and primarily for the benefit of the organization. Members and affiliates of a nonprofit ... engage in many activities ... [that] resemble ... those ... normally carried on by a customer, a principal, or just an interested bystander. Whether these activities should be adjudged to be on behalf of the organization and for its benefit cannot be measured by relational labels or a "scope of membership" test. Neither aegis nor affiliation in the nonprofit sector is able to provide ready answers. The District Court, erroneously, found Ms. Landa's status as a volunteer was irrelevant and that her "active membership" in and relation to CAN as a "contact person" were significant enough to establish "agency" and, therefore, vicarious liability for the particular acts and the particular omissions here. It entirely missed the point that: authority and the right to control are often ambiguous and multidirection- al in nonprofit groups. Confusion and jurisdictional overlap are common--a circumstance not too surprising when the participants have no economic stake in how the lines of authority are run. Moreover, auth- ority and control, rather than being fixed, may shift with time, circum- stances, and personalities. In contrast, prerogatives and lines of authority in profit organizations tend to be definite and distinct. This Court should adopt the presumption of nonagency which these scholars recommend: Often an activity could be on behalf of and for the benefit of either the organization or the member [of a church or a civil rights organization]. The issue is whether any agency relationship whatsoever has been established. No inference of agency can be drawn from activities that advance both the actor's and the organization's interests. The presump- tion should not be one of agency but one of nonagency. No precedents stand in the way of correctly analyzing this nonprofit's responsi- bility as a matter of law in this case. Neither interpretations of the federal statute nor state tort law precedents support or require vicarious liability here. Neither do the policy considerations grounding vicarious liability militate in favor of upholding the result here. Moreover, careful balance of fundamental rights is required before vicarious liability is fastened upon a not-for-profit entity. Drawing on balance struck by the Supreme Court's NAACP and trade union decisions, in their time, this Court should consider the balance in the context of disputes and ideals of nonprofits and volunteers as regards such contentious matters of public concern as abortion, religious and sexual discrimination, treatment of the poor and homeless, health care and environmental issues at this time. Holding advocacy groups in such areas subject to expansive agency concepts that make them susceptible to destruction by infliction of liability for uncommunicated acts of volunteers, butressed by testimony of "experts" who express pejorative disdain for the group's view on these controversial issues, will censor the marketplace of ideas and stifle expression of views that may be unpopular to some. Absence of authority supporting the extension of vicarious liability here is instructive. Wise decisions and commentators have stressed the care with which these issues should be addressed. The decision below does not evidence such care and concerns for fundamental rights. C. The Trial Court Infringed CAN's Freedom of Speech. Judge Coughenour's order denying CAN's post-trial motions twice refers to Ms. Landa's practice of providing "information" about cults. First, Ms. Landa's "acting in accordance with CAN practices by distributing information on cults" is one of only three concrete examples given for why the jury might reasonably conclude that plaintiff had established a sufficient agent-principal relationship on which to base vicarious liability for the particular acts at issue here. Then, in sustaining the jury's $1 million punitive damages against CAN, the order reverts to the finding that plaintiff had "established that Ms. Landa, acting in accordance with CAN's practices, dissemi- nated inflammatory information on cults ..." Liability by parallelism seems ripe for abuse in any case, but when the subject is distributing or disseminating information the trial court abridges First Amendment freedom of expression. The only example in the record of actual CAN literature, contemporaneous with the events at issue, was introduced by CAN and is appended hereto. We do not address whether those texts could rationally be deemed "hateful" or "inflammatory" by any jury. We do argue that before the trial court opened the door to jury consideration of a "hateful" literature or "inflammatory" information argument, that court should have screened the particularly words, writings or quotations, to resolve the Freedom of Speech implications. To the extent that an association's exercise of its First Amendment rights in and of itself gives rise to vicarious liability, the verdict and judgment below is infused with error. The right of free speech occupies the "highest rung in the hierarchy." Professor Tribe notes that "more is needed than a ritual incantation of the word 'incitement' before civil damages may be assessed on the basis of speech." The trial court's theory of vicarious liability by action "in accordance" with an alleged principal leads to liability by association ignoring the concepts of authorization and control. When applied to speech in the form of distribution of brochures, the First Amendment implications are deeply disturbing and the broad sweep of the possible uses of this ruling to stamp out controversial views on matters of public interest is evident. Courts should not impose vicarious liability on a nonprofit association with respect to a particular transaction simply because there may seem to be some "accord- ance" between the way the alleged principal might have handled such a transaction (if it had handled it -- which it hadn't) and the way the alleged agent actually handled it. This court should nip in the bud "liability by association" based on dissemination of information. D. The Trial Court Erred by Submitting the Issue of Vicarious Liability to the Jury without Proof of Control, Apparent Authority or Ratification. This is not a case about an agent, admittedly in the midst of serving the principal, who commits a tort. This is not a case of an organization sending out an agent to act as its representative. Many years before the acts in question, Ms. Landa had been one of the founding mothers of the assocations and she had been designated a CAN "contact person." As such, she could have undertaken assignments for CAN, if requested, but the record indicates no specific function that CAN had asked her to perform in recent years. She was a volunteer on cult-related issues, reaching out to many audiences. She made speeches. She wrote articles disseminated here and abroad, in many translations. She testified that when she made speeches or answered phone inquiries it was herself, "Shirley Landa," talking -- not some organization for which she volunteered to be available. According to Ms. Landa, when Scott's mother called, and in subsequent conversations, Ms. Landa was available to respond, ask questions, listen and suggest to exactly the same extent as she would have if CAN had never existed (and that she presumably continues to do now that CAN is bankrupt). Her limited CAN nexus is uncontradicted. A critical question should have been: How did Mr. Scott's mother perceive CAN's role if any? Although the mother's testimony accorded with Ms. Landa's, the trial judge never adressed that question. This Court has the question squarely before it, as a simple question of law. Likewise, as to the alleged ratification by CAN of Ms. Landa's activities, the only evidence referred to by the court below showing ratification was the failure of CAN to terminate their contact person after allegations concerning the events at issue in this action. That evidence was wholly insufficient to let the issue go to the jury. Plaintiff's claim was not based, as indicated above, on any improper conduct alleged to have been committed by Ms. Landa as agent of CAN; and, as pointed out here, there is no evidence submitted of agency in the eyes of plaintiff's mother or any improper representation by Ms. Landa as a representative of CAN. In such circumstances, the alleged "nontermination" of Ms. Landa as a contact person for CAN does not evidence ratification in a manner sufficient to support submission of the issue to the jury. Justice Douglas's opinion in NAACP v. Overstreet, supra, refused to find the "illegal" acts of a local branch of the NAACP had been ratified by the national organization even though the national organization neither expressly disavowed the acts nor took any disciplinary action against the Branch. Citing the Court's opinion in United Mine Workers v. Gibbs, Justice Douglas concluded that an organization could not be held liable for the tortious acts of its members "in the absence of 'clear proof' of ... 'ratification'" by the national organization "[a]nd nothing in the record suggest 'ratification'--even by inaction over a sustained period." There was therefore no way in which the trial court could properly allow the question of vicarious liability to go to the jury. CONCLUSION Decisions of the court below, denying the association's motions for summary judgment and to set aside the verdict despite the absence of proof of authorization of, control over or ratification of the volunteer's alleged conduct at issue here, fastened vicarious liability on the association without regard to First Amendment rights of this not-for-profit advocacy group. These decisions threaten the viability of other nonprofit organizations which rely on volunteers over whom they have very limited influence and no practical control. This result ignores relevant decisions of the Supreme Court of the United States, unexplored in the case below, burdening and threatening all nonprofits that rely on volunteers to carry out their missions, especially if the mission includes speaking out on topics of controversy. For the foregoing reasons, including adoption of the "presumption of nonagency" recommended by Professors Gaffney and Sorensen and vindication of CAN's First Amendment associational rights and freedom of speech, the Court should reverse the judgment below. Respectfully submitted, ________________________ David J. Bardin Arent Fox Kintner Plotkin & Kahn 1050 Connecticut Avenue, NW Washington, DC 20036-5339 (202) 857-6089 Counsel for AFF William Fry Executive Director HALT--An Organization of Americans For Legal Reform 1319 F Street, NW • Suite 300 Washington, DC 20004 Mark K. Powers National Director Jews For Judaism P.O. Box 15059 Baltimore, MD 21282 K. Craig Branch Vice President Watchman Fellowship P.O. Box 530842 Birmingham, AL 35353 Dated: September 3, 1996 APPENDIX A Text of two 1990 CAN 3"x 8½" brochures Retyped in 14-point type from Exhibit 39 (4 pages) in the record below What Can You Do? A-1 Do's and Don'ts A-2 Suggested reading list A-3 CAN at a Glance A-4 WHAT CAN YOU DO? • Inform yourself, your family, and your friends about these groups and what they represent. • Encourage your school, college, synagogue, church, or office to arrange a program on cults. • Donate books on destructive cults to your local library. • Investigate any "training" program offered or required by your company, place of employment, or in the military; do not use current advocates of the program exclusively in your investigation. • Write your members of congress, senators, state and local officials. Tell them of your concern and report illegal or unethical activities of destructive cults. Assure them that the issues is not one of beliefs but of human rights. • Encourage media outlets to cover cult activity and respond constructively when such programs air or appear in print. • Find out if solicitation permits are required in your area. Ask what limitations/ordinances apply to collecting/selling door-to-door, soliciting in shopping centers, or on the street. • Always ask questions about a solicitor's identity or affiliation. Ask for a valid Federal identification number from charities you want to give to. Call the IRS to verify legitimacy. Be suspicious of charities that have not obtained such a number. Check the Attorney General's office in your state to make sure of registration. • Check on zoning restrictions regarding single/multiple dwellings and regulations concerning frequent "gatherings" by cults in any neighborhood. • Never accept an invitation, give money, take a course, or join any group until you have thoroughly checked it out with someone you trust. DO's and DON'Ts A guide for families who think a member or friend is involved with a destructive cult: + DO record all names, addresses, phone numbers of persons known to be associated in any way with the individual's activities. + DO maintain a written chronology of events associated with the individual's activities relating to the group. + DO answer all communications from the individual in a loving, sincere, non-critical and consistent manner. + DO collect related items from newspapers, magazines, and other sources, as well as publications of the group. - DO NOT send money to an individual in a cult if you can send non-cash gifts such as clothing, non- refundable airline tickets, etc. - DO NOT spend large amounts of money for treatments or seminars until you have verified such programs' credentials and qualifications for handling your problem. - DO NOT GIVE UP! Remember the individual is a product of your love, training, heredity, and home environment. These influences can never be permanently eliminated by any technique. - DO NOT feel alone. This is a common problem faced by thousands all over this country and abroad. It affects families of every religious or socio- economic background. DO seek help, establish and continue an association with an organized group of families with similar situations. We care about you! READ: [see next page, A-3] READ: Combatting Cult Mind Control, Steve Hassan, Park Street Press, Rochester, VT, 1968, $16.95 Cults and Consequences, The Definitive Handbook, Rachel Andres and James R.Lane, Jewish Federation Council of Los Angeles, 1968, $14.96 Influence, Robert B. Cialdini, William Morris, New York, 1964, $12.45 Cults: What Parents Should Know, Joan Carol Ross, Ed.M. and Michael Langone, Ph.D. Carol Publishing Group, 1988, $5.95 These and other publications are available from the CAN National Office. ©CAN/1990, Chicago, IL CAN AT A GLANCE! WHAT IS CAN? The Cult Awareness Network is a national non-profit organization founded to educate the public about the harmful effects of mind control as used by destructive cults. CAN confines its concerns to unethical or illegal practices, including coercive persuasion or mind control, and does not judge doctrine or beliefs. Funding comes exclusively from voluntary contributions. WHO ARE WE? We are former cult members and the families and friends of past and present cult members. Some of us are mental health professionals, lawyers, phy- sicians, legislators, clergy, law enforcement officers and educators. We represent and care about an estimated five million people who have been seriously affected by the more than 2500 destructive cults. WHAT DO WE DO? We are dedicated to bringing to public awareness the harmful effects of destructive cults and providing information and support for families, as well as assistance to former cult members. CAN recognizes the need for voluntary exit counseling/deprogramming as a means to restore critical thinking, and supports all legal efforts to protect individuals' freedom of choice. WHERE ARE WE? The Cult Awareness Network is a coalition of volunteer affiliate groups throughout the United States. FOCUS is a support group for former cult members. Communication is maintained with similar organizations throughout the world, including Denmark, England, France, Germany, Spain, Israel, Australia, and Canada. WHAT IS A DESTRUCTIVE CULT? A destructive cult is a closed system whose followers have been unethical- ly and deceptively recruited through the use of manipulative techniques of ©CAN/1990, Chicago, IL thought reform or mind control. The system is imposed without the informed consent of the recruit and is designed to alter personality and behavior. WHO ARE THEY: Those groups that have engaged in some illegal or unethical practices, including: child abuse, neglect, and death; illegal immigration; drug dealing; fraud and deceit in their recruiting, business, financial, and fundraising activities; theft; harassment of critics, families, and former followers with threats, lawsuits, and foul play; stockpiling or smuggling of weapons and ammunition; beatings, sexual abuse and prostitution; kidnapping; murder; attempted murder; and psychological and emotional damage. A partial list of groups about which CAN has received complaints, includes the following: Alamo Christian Fellowship; Ananda Marga; Bible Speaks/Greater Grace World Outreach; Boston Church of Christ/Multiplying Ministries; Children of God/Family of Love; Church Universal and Triumphant/CUT; Faith Assembly; Fellowship of Friends; The Forum/est/The Hunger Project; International Society for Krishna Consciousness/- ISKCON/Hare Krishnas; Jehovah's Witnesses; Lyndon LaRouche organizations: Lifespring; Maranatha Ministries; MOVE; Nichiren Shoshu of America/NSA/Soka Gakkai; Peoples Temple/Jones- town; Rajneesh Movement; J.Z. Knight; Scientolo- gy/Dianetics/Narconon and more; Sullivan Institute; Synanon; Transcendental Mediation; Unification Church/CAUSA/CARP and more; University Bible Fellowship; The Way International/PFAL/TWIG ANYONE - even you - can be deceived! APPENDIX B Description of the Amici American Family Foundation ("AFF") is a not-for-profit organization dedicated to educating the public on the dangers of destructive cults. AFF, which has no more than half a dozen employees (some part-timers), relies on over a hundred volunteers. AFF is mentioned in the record below, e.g., at Tr 3:163. HALT--An Organization of Americans For Legal Reform ("HALT") is a nonprofit organization, supported entirely by individual member donations of its 70,000 members, working on a national basis to make the legal system more accessible and affordable to citizens. HALT is concerned, among its many issues, about limits on the activities of nonprofits, and about excessive punitive damage awards. HALT uses volunteers and often takes controversial positions. Jews For Judaism ("JFJ") is a non-affiliated, non-denominational organization serving the entire Jewish community. Its principal purpose is to provide information on the methods and practices of the deceptive missionary and cult groups that target the Jewish community for conversion. JFJ facilitates and promotes positive Jewish experiences in dealing with such deceptive groups, through counseling services, outreach programs for unaffiliated and estranged Jews, encounter groups, lectures and production of books, periodicals, pamphlets, video and audio material. Watchman Fellowship ("WFI") is a nonprofit, international, Christian ministry concerned with cults and new religious movements. WFI's focus is research, edu- cation, and counseling family of cult members and interventions with cult members. WFI works with 20 paid staff in 7 states and 2 foreign countries, and at least a hundred volunteers. B-1 As a secular nonprofit, CAN may assert rights of free speech and association. Other nonprofits may also assert freedom of religion. CAN described itself as "a national nonprofit organization founded to educate the public about the harmful effects of mind control as used by destructive cults. CAN confines its concerns to unethical or illegal practices, including coercive persuasion or mind control, and does not judge doctrine or beliefs." Ex. 39, p. 3 (Appendix A hereto, p. A-4). Appendix B hereto briefly describes amici. E.M. Gaffney, Jr. & P.C. Sorensen, ASCENDING LIABILITY IN RELIGIOUS AND OTHER NONPROFIT ORGANIZATIONS 90 (H.R. Griffin ed. Mercer University Press 1984). 5 Harper, James & Gray, THE LAW OF TORTS 2-23 (2d ed. 1986) (Vicarious Liabi- lity, Topic A. Bases in History, Reasoning and Policy); W. Page Keeton et al., PROSSER AND KEETON ON THE LAW OF TORTS § 69, at 499-500 (5th ed. 1984) 5 Harper, James & Gray, supra, § 26.3 at 14-15; Prosser and Keeton, supra, at 500. The Supreme Court of Washington wisely warned that, although common law courts have power to promulgate "an extension of the rules of agency to a situation where public policy demanded relief to injured persons" of a certain class, "necessarily the courts must proceed cautiously and recognize limitations, and if the reasons for extending the application of any established rule do not exist, then such extension should not be made by the courts, but left to the legislature." Pflugmacher v. Thomas, 34 Wash. 2d 687, 209 P.2d 443, 445 (1949) (declining to extend the quasi-agency "family purpose" doctrine from negligent use of a family-owned automobile by a minor -- an earlier judicial extension responsive to "an alarming situation and an increasing social problem demanding solution" -- to use of a bicycle. Id.). NAACP v. Claiborne Hardware Co., 458 U.S. 886, 932-33, reh'g. denied, 459 U.S. 898 (1982), quoting Mr. Justice Douglas's dissent from dismissal of a writ of certiorari found to have been improvidently granted in NAACP v. Overstreet, 384 U.S. 118, reh'g denied, 384 U.S. 981 (1966). Gaffney & Sorensen, at 90. 120 Wash. 2d 935, 845 P.2d 1331 (1993). Accord Hamm v. Camerota, 48 Wash. 2d 34, 37, 290 P.2d 713 (1955); Restatement (Second) of Agency § 1; see also Roletto v. Department Stores Garage Co., 30 Wash. 2d 439, 442, 191 P.2d 875 (1948) ("the [agency] relation must exist at the time, and in respect to the particular transaction out of which the injury arises"). McLean v. St. Regis Paper Co., 6 Wash. App. 727, 732, 496 P.2d 571, review denied, 81 Wash. 2d 1003 (1972): "[T]he label 'employee,' or 'agent,' does not per se create vicarious tort liability." Ms. Landa met none of the indicia of "servant." See Restatement (Second) of Agency § 220(2) and Comment thereupon, especially h. Factors indicating the rela- tion of master and servant ("The relation of master and servant is indicated by the following factors: an agreement for close supervision or de facto close supervision of the servant's work; work which does not require the services of one higly educated or skilled; the supplying of tools by the employer; payment by hour or month; employment over a considerable period of time with regular hours; full time employ- ment by one employer; the fact that the community regards those doing such work as servants; the belief by the parties that there is a master and servant relation; an agreement that the work can not be delegated.") Ms. Landa was an independent actor, doing volunteer work at irregular times on her own and in contact with several nonprofits. She was very rarely called upon by CAN. No one considered her CAN's servant. Kroshus v. Koury, 30 Wash. App. 258, 633 P.2d 909, 911 (1981), review denied, 96 Wash. 2d 1025 (1982) (even though Texaco dealer was subject to Texaco's control of on-site operation's and Texaco's right to terminate, summary judgment affirmed because Texaco did not control driving to bank to deposit receipts) (Texaco dealer's unpaid wife drove the car to the bank). 1993 U.S. Dist. LEXIS 18225, at *16 (S.D.N.Y. Dec. 23, 1993) (Mukasey, J.). 563 F. Supp. 1216, 1218-19 (S.D.N.Y. 1983). 456 U.S. 556, 567, reh'g denied, 458 U.S. 1116 (1982). Restatement (Second) of Agency § 49(a) ("manifestations of the principal to the other party to the transaction are interpreted in light of what the other party knows or should know instead of what the agent knows or should know"). Compare Vernon v. Southern California Edison Co., 955 F.2d 1361, 1370 (9th Cir.), cert. denied, 506 U.S. 908 (1992). Coronado Coal Co. v. United Mine Workers, 268 U.S. 295, 304-305 (1925) and United Mine Workers v. Coronado Coal Co., 259 U.S. 344, 395 (1922) (only the local union could be liable where alleged conspiracy was not authorized, ratified or apparently authorized by national union). I.e., consent by principal and agent for (1) the agent to act on behalf of the principal and (2) primarily for the principal's benefit (3) with the right of the principal to control the conduct of the agent relative to the undertaking, or (4) a representation of agency and reliance thereon (referred to, for brevity, as "behalf," "benefit," "control," and "reliance"). Gaffney & Sorensen, supra, at 34. Id. Tr 5:11 [testimony of CAN's Board President]; CAN Board Minutes (1988): No officers, Board Members or paid staff of [CAN] or its affiliates may participate in involuntary de-programming. Ex. 130. Tr 4:6-7 [deposition of CAN employee who handled most incoming calls]: "I've handled very many calls since I've worked at [CAN], and I know our policy is not to refer anyone for forcible interventions." Ex. 39, p. 3 (infra, A-4) [1990 CAN brochure]: "CAN recognizes the need for voluntary exit counseling/deprogramming as a means to restore critical thinking, and supports all legal efforts to protect individuals' freedom of choice." A source of semantic confusion is that some use the unmodified term "deprogramming" to mean only a forcible or involuntary intervention (Tr 4:12), and others use the term in a much broader sense, so that for them modifying adjectives, "involutary" or "voluntary," are necessary to indicate whether force accompanies the talk. Tr 4:18. CAN's statements follow the latter usage. Cf. an attorney's summary: "Voluntary exit counseling is legal; involuntary deprogramming is not." Susan Landa, Children and Cults: A Practical Guide, 29 J. FAMILY L. 591, 631 (1991). Ms. Shirley Landa (the volunteer) testified that she had participated in a few "deprogrammings" all of them voluntary, like alcoholism interventions, in contrast to the coercive treatment of plaintiff here. Tr 3:151:17-23. A court has explained that "[t]he avowed purpose of deprogramming is to break the hold of the cult over the individual through reason and confrontation." Peterson v. Sorlien, 299 N.W.2d 123, 127 (Minn. 1980), cert. denied, 450 U.S. 1031 (1981). United States v. Binder, 769 F.2d 595 (9th Cir. 1985); United States v. Candoli, 870 F.2d 496 (9th Cir. 1989); United States v. Butterfly, 1995 U.S. App. LEXIS 34487 (9th Cir. 1995). The alleged expert's studies of the "anti-cult movement" had begun 20 years earlier and was not shown to include the period at issue (save for reading some unspecified depositions in this case). He was presented to show (and relied on in plaintiff's closing jury arguments as showing) that information CAN supplied about groups was alway derogatory and that CAN really supported forcible deprogramming "underneath" despite official policies to the contrary. E.g., Tr 6:98, 114. This prejudicial testimony, which reads as sketchy and disjointed, did not identify an actual CAN role in any de- programming, however it left that impression and seemed to say that CAN's predecessor openly favored deprogramming before the mid-1980s and that CAN policy differed only overtly (Tr 4:37-41, 42-44, 45). Admission of such testimony defies comprehension in light of this Court's tests of validity under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), on remand, 43 F.3d 1311 (9th Cir. Jan. 4, 1995), cert. denied, 133 L. Ed. 2d 126 (1995), and the Constitutional issues raised in this brief. Yet the District Court, having deferred a ruling until the first day of trial on CAN's motion in limine to exclude the expert's testimony, which cited the Supreme Court's Daubert decision, denied the motion summarily and also overruled CAN's hearsy objections during trial (Tr 4:39, 43). The record below is fraught with terminological confusion due to inconsistent use of the term "deprogramming" (see n.20, supra) -- confusion fostered by plaintiff's alleged expert witness, Professor Anson Shupe, and arguments to the jury resting on his testimony. That confusion, one must assume, led the jury to reach its conspiracy verdict. Misuse of expert testimony sowed such confusion. This District Court gave plaintiff license before the jury to erase critical distinctions bearing on volition. In contrast, other courts have clearly distinguished three categories of intervention in "deprogrammings" of adults, those that were: (1) forced under court-ordered conservatorships, (2) forced by parentally-sponsored abductions and detentions like the acts at issue here, and (3) voluntary. See Katz v. Superior Court of San Francisco, 73 Cal. App. 3d 952, 141 Cal. Rptr. 234 (1977) (court ordered); Weiss v. Patrick, 453 F. Supp. 717, 721 (D.R.I. 1978), aff'd, 588 F.2d 818 (1st Cir. 1978), cert. denied, 442 U.S. 929 (1979) (no unlawful compulsion; rejecting plaintiff's version of events); Augenti v. Cappellini, 84 F.R.D. 73, 76 (M.D. Pa. 1979) (court ordered); Molko v. Holy Spirit Ass'n, 46 Cal. 3d 1092, 1105, 128, 252 Cal. Rptr. 122, 127, 128, 762 P.2d 46, 51, 52 (1988), cert. denied, 490 U.S. 1084 (1989) (two abductions); cf. Peterson v. Sorlien, 299 N.W.2d at 129 (behavior indicated consent), contrast 134 (dissent). 944 F.2d 531, 535 n.3 (9th Cir. 1991). A concern shared by at least four congressional committees which, during this Congress, investigated and reported on such diverse groups as one that allegedly placed nerve gas in the Tokyo subway system and sought to accumulate nuclear technology in the United States, a training group that infringed on constitutional rights of Federal Aviation Administration employees, at taxpayer expense, and a group whose leader engaged in sexual acts with minors, violated federal laws and led his followers to a tragic conflagration. The committees focussed on national security, constitutional rights and law enforcement implications of federal agency attention and actions (or inattention and inaction) and opened up contentious issues. 458 U.S. 886, 930, 931, reh'g. denied, 459 U.S. 898 (1982). Gaffney & Sorensen, supra, at 35-37 [footnotes omitted]. Order (Nov. 29, 1995) (unreported; denying post-trial motions), at 7. Gaffney & Sorensen, supra, at 37-38. Id. at 90 [emphasis added]. See also Restatement (Second) of Agency definitions and comments which stress the commercial aspects, receipt of money or other property as key factors in defining responsibility (id. 14 L.(2)) and primary allegiance (id. § 14 L. Comment on Subsection (1)a.), concepts at odds with commonplace aspects of unpaid volunterism and its multiple relationships. We have found no appellate discussion of vicarious liability of a nonprofit, non- governmental organization the Civil Rights Act. However, the Seventh Circuit has held, in a case involving governmental defendants, that the doctrine of respondeat superior does not even apply to civil rights cases seeking money judgments under 42 U.S.C. §§ 1893 and 1895. Adams v. Pate, 445 F.2d 105, 107 n.2 (1971) ("Where monetary damages, as distinguished from equitable relief, is sought under the provisions of the Civil Rights Act the doctrine of respondeat superior does not apply; personal involvement of the defendant is required.") We have found no Washington state appellate court decision discussing vicarious liability of a nonprofit for torts of a member or other volunteer. See 5 Harper, James & Gray, supra, 1-10, and § 26.3 (Control as a test), 10-13 [footnotes omitted]: "The commonest test of a relationship to which the law attaches vicarious liability is control or the general right of control [citing Restatement (Second) of Agency § 220(1)]. .... Cases where the master has actually exercised control (and commanded the wrongful act) and cases where the master has negligently missed an actual chance to exercise control where he should (as by giving an instruction, or preventing careless conduct in his presence) need not stand on a footing of vicarious liability. They involve the master's own fault. And perhaps because the concept of control is thus easily associated with the master's fault, it bacame the most popular explanation of vicarious liability in a jurisprudence of torts that was dominated by the fault principal. "A secondary factor may have helped this process. The facts concerning the exercise or nonexercise of control by the master would ordinarily be within the knowledge of master and servant and would be relatively inaccessible to plaintiff. A recurring (but by no means universal) principal of evidence would therefore warrant relieving plaintiff from the need of proof on this issue. If the substantive law had been genuinely interested in the exercise or nonexercise of control in this instance, however, this principle of evidence would have called forth a rebuttable presumption merely, and not a rule of law. "The truth is that neither the fault aspect nor the evidence aspect of the master's right of control explains vicarious liability for this is imposed as an everyday matter in cases where the master has taken all the steps that reasonable foresight would suggest, including those that involve the exercise of control. Indeed, the court is not even interested in hearing whether the master exercised the right of control well and prudently. If the master had that right, he will be liable if the servant was negligent, even though the master was not on the scene and though his training, selction, equipment, supervision, and operating rules left nothing to be desired." Accord Prosser and Keeton, supra, § 69, at 499-500. Order of November 29, 1995 (denying post-trial motions), at 4. Id. at 7. Exhibit 39, reproducing two 1990 brochures headlined: What Can You Do? Do's and Don'ts and CAN at a Glance. (Appendix A provides a 14-point retype of the text.) See also Exhibit 25, Crampton, A History of CFF (an earlier, two-page history of CAN's predecessor). NAACP v. Claiborne Hardware Co., supra, 458 U.S. at 913. Laurence H. Tribe, AMERICAN CONSTITUTIONAL LAW 849 n.58 (2d ed. 1988). Even Ms. Landa's independent conduct, of which CAN did not know, fell far short of the Constitutional threshold. Interpreting conflicting and ambiguous testimony most favorably to plaintiff, Ms. Landa gave plaintiff's mother the phone number of a deprogrammer whom the latter interviewed and hired, together with "security" men he recommended, to lawfully detain and deprogram in her presence (at a grandmother's home) two of her minor sons, plaintiff's brothers, under their mother's legal guardianship. That was done, with local police visiting to enforce a court order against plaintiff's church to desist from interfering. The court order was secured by the mother's attorney, who was Ms. Landa's daughter. Ms. Landa met the deprogramming "team" on its initial trip from Arizona to Washington. Later plaintiff's mother hired the same deprogrammer and the "security" men he recommended to abduct, detain and deprogram plaintiff, aged 18. The sole nexus between Ms. Landa and those acts against plaintiff was participation in one discussion with the attorney and plaintiff's mother "to discuss any legal recourse for removing" plaintiff from his church, a meeting at which plaintiff's mother was advised that abduction of plaintiff would be unlawful. See Tr 3:148:21-24 ("I represent Shirley Landa, and it's Shirley Landa that goes to the conferences. It's not Shirley Landa of CAN. It is me. ... I am listed on the crisis line as Parents Awareness."); see also Tr 3:163-64. In denying CAN summary judgment on the negligence count, the District Court stated the only possible basis for the jury's negligence verdict to be Ms. Landa's alleged "referral negligence." Admittedly expanding Washington state law tort liability far beyond any state appellate precedent, the court below held that the jury could find Ms. Landa to have committed the tort of "referral negligence" on the theory that she held herself out as an expert on cults (implying that she thereby also held herself out as an expert on deprogramming) and might therefore be liable to one not in privity, such as plaintiff. Order on Motions (Feb. 14, 1995) (unreported), at 7-8. That theory, however, seems inconsistent with the lower court's ruling on vicarious liability for the tort. Ms. Landa had no academic credential or governmental license on cults in general or on deprogramming in particular. Indeed, she testified that education (not depro- gramming) was the focus of her cult interest. If Ms. Landa held herself out as an expert on deprogramming (which we do not understand the record to support), her uncredentialed expertise must certainly have been personal, not one conferred by CAN, in order to support a "referral negligence" tort finding. (In pointing out this inconsistency, amici do not reach the merits of the trial court's expansion of "referral negligence.") When acts and omissions of an alleged agent are ones of communication, as here, the critical question is one of appearances communicated, all the more so when the alleged agent is not a servant. Order (Nov. 29, 1995) (denying post-trial motions), at 7 (in the discussion of punitive damages; this was presumably one of the unspecified factors leading the court below to sustain the verdict as against CAN's challenge to vicarious liability). 383 U.S. 715 (1966). Overstreet, supra, 384 U.S. at 125, 121. - vi - - 29 - American Family Foundation ("AFF"), HALT-An Organization for Legal Reform, Jews for Judaism, Watchman Fellowship. For discussions, see E.M. Gaffney, Jr. & P.C. Sorensen, ASCENDING LIABILITY IN RELIGIOUS AND OTHER NONPROFIT ORGANIZATIONS (H.C. Griffen, ed. Macon: Mercer University Press 1984) and M.E. Chopko, Ascending Liability of Religious Entities for the Actions of Others, 17 AM. J. TRIAL ADVOCACY 289 (1993). For example, AFF has no more than half a dozen employees (some part-timers), but relies on over a hundred volunteers. Gaffney & Sorensen, supra, at 37-38. Kroshus v. Koury, 30 Wash. App. 258, 633 P.2d 909, 911 (1981), review denied, 96 Wash. 2d 1025 (1982). The adverse impact of the decision below is not limited to one state both because of the departure from Restatement principles, a source of unifying law, and because vicarious liability was imposed under a federal statute as well as state tort law. Contrast reluctance of a California court to treat a church as if it were a profit- making institution for purposes of establishing liability. Nally v. Grace Community Church of the Valley, 47 Cal. 3d 278, 298, 763 P.2d 948, 260, 253 Cal. Rptr. 97, 109 (1988)(en banc), cert. denied, 490 U.S. 1007 (1989). And a Florida appellate court reversed a $676,000 jury verdict against a church diocese, when appellate court examination of the denominational documents (construed by the appellate court as a matter of law) and civil statutes showed that the diocese exercised no measure of domi- nance and control over the local church such as would make vicarious liability tenable. Folwell v. Bernard, 477 So.2d 1060, 1063 (Fla. Dist. Ct. App. 1985). G.D. Webster, LAW OF ASSOCIATIONS (Matthew Bender & Co. 1991) § 17.18[1] -- Agency Theories May be Used to Find Liability, at 17-112. Although some amici are concerned with issues relating to groups often called "cults" and other amici rarely, if ever, deal with such issues, they all have a great stake in how agency law principles are interpreted and applied when a non-profit organ- ization uses volunteers to help carry out a mission of communicating with members of the public and regard this case as an opportunity to seek appellate declaration of non- liability as a matter of law in a field where uncertainty and the costs of litigation often lead non-profits to settle rather than carry cases through appellate resolution. Amici will adopt appellant, CAN's statement of the case. Their understanding of the facts is summarized below and in the Appendix hereto. Contrast American Soc'y of Mechanical Eng'rs v. Hydrolevel Corp., 456 U.S. 556, 566-67, reh'g denied, 458 U.S. 1116 (1982) (association committee member who communicated adverse information about plaintiff on association letterhead held to be acting within scope of apparent authority) with Coronado Coal Co. v. United Mine Workers, 268 U.S. 295, 304-305 (1925) and United Mine Workers v. Coronado Coal Co., 259 U.S. 344, 395 (1922) (where alleged conspiracy by local labor union was not authorized, ratified or apparently authorized by national union, only the local could be liable). 384 U.S. 118, 125 (1966)(dissent). 383 U.S. 715 (1966). See also Justice Harlan's concurrence. 383 U.S. at 742. Even assuming, arguendo, that Ms. Landa had conspired or committed a tort (which CAN denied). Thus plaintiff attempted (a) to infer CAN bad faith through "expert" testimony, (b) to point to an inter-locking directorship which did not even exist at the time of the events at issue in this case, (c) to examine a grassroots "anti-cult movement" of which the alleged agent was one of the individual activists and CAN was one of the involved associations and (d) to establish a kind of "liability by association" based on parallelism of concerns and objectives and of alleged actions in other transactions. Id. at 90 [emphasis added]. See also Restatement (Second) of Agency definitions and comments which stress the commercial aspects, receipt of money or other property as key factors in defining responsibility (id. 14 L.(2)) and primary allegiance (id. § 14 L. Comment on Subsection (1)a.), concepts at odds with commonplace aspects of unpaid volunterism and its multiple relationships. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 932-33, reh'g denied, 459 U.S. 898 (1982) quoting with approval Mr. Justice Douglas's dissent from dismissal of a writ of certiorari found to have been improvidently granted in NAACP v. Overstreet, 384 U.S. 118, reh'g denied, 384 U.S. 981 (1966). Plaintiff's mother was particularly concerned about one of the two minor sons who had moved into the home of church members. (The younger minor son had moved in with a grandmother.) Either the volunteer or the deprogrammer apparently gave plaintiff's mother some CAN brochures. Ms. Landa (the volunteer) contended that she had counseled with plaintiff's mother only as to the lawful deprogramming of Mr. Scott's two younger brothers, late in 1990, and not as to the deprogramming of Mr. Scott, in early 1991. CAN said it believed Ms. Landa. The District Court had denied CAN's motion in limine to exclude that expert opinion testimony, letting it go to the jury and be repeatedly cited by plaintiff's counsel as grounds for the jury's disbelieving CAN's witnesses and documents. - 19 -