Landmark Synanon Legal Decisions

The following are legal decisions, some landmark, involving Synanon. A short summary was created before each opinion.
1. U.S. Supreme Court SYNANON FOUNDATION, INC. v. CALIFORNIA , 444 U.S. 1307 (1979)

444 U.S. 1307

SYNANON FOUNDATION, INC., a California Nonprofit Religious and Charitable Corporation; Macyl A. Burke, David W. Ross and Brooks Carder, Applicants,v. The State of CALIFORNIA, Edmund G. Brown, Jr., Deni Green and George Deukmejian, Respondents.No. A-556.

Dec. 28, 1979.

Mr. Justice REHNQUIST, Circuit Justice.

Upon consideration of the applicants’ request for a stay of the order of the United States District Court for the Eastern District of California denying their prayer for a preliminary injunction precluding respondents, including George Deukmejian, the Attorney General of California, from instituting an action against the applicants in state court, the request is hereby denied.

The District Court’s opinion denying the prayer for a preliminary injunction indicates that the Attorney General of California has the traditional power of the chief law enforcement officer of most jurisdictions to intervene in the administration of charitable trusts or corporations when he has reason to believe that they are not being administered in accordance with the trust instrument or with state law. We have stated previously that a trial judge’s determination of a preliminary injunction should be reversed by this Court or by other appellate courts in the federal system only when the judge’s “discretion was improvidently exercised.” Alabama v. United States, 279 U.S. 229, 231 (1929). See also Aberdeen & Rockfish R. Co. v. SCRAP, (1972) (BURGER, C. J., in chambers); Keyes v. School Dist. No. 1, Denver, Colo., 396 U.S. 1215 (1969) (Brennan, J., in chambers).

Applicants contend, however, that by reason of the fact that they are a church, under the First and Fourteenth Amend-

[Page 444 U.S. 1307 , 1308]

ments to the United States Constitution they are somehow entitled to different treatment than that accorded to other charitable trusts. But we held only last Term that state courts might resolve property disputes in which hierarchical church organizations were involved in accordance with ” neutral principles” of state law. Jones v. Wolf, 443 U.S. 595, 602, 99 S. Ct. 3020, 3025 (1979); see also Presbyterian Church v. Hull Church, 393 U.S. 440 , 449, 606 (1969). The District Court presumably found that this principle will probably be applicable in this litigation. The Court of Appeals for the Ninth Circuit also denied the application for a stay. I find no reason to differ with the conclusion of these two courts. Applicants’ request for relief is accordingly denied.

1a. 503 A.2d 1254 (1986)
Stuart A. BERNSTEIN, Samuel J. Kushner, James H. Kabler III, and Coldwell Banker and Company, Inc., Appellees.
No. 83-1372.
District of Columbia Court of Appeals.
Argued February 6, 1985.
Decided January 29, 1986.
1255*1255 Sherman L. Cohn, Washington, D.C., with whom Geoffrey P. Gitner and William F. Krebs, Washington, D.C. were on the brief, for appellant.
William Daniel Sullivan, with whom Warren K. Kaplan, Washington, D.C. was on the brief, for appellees Bernstein and Kushner.
John R. Cope, Washington, D.C. with whom Anne N. Foreman, Washington, D.C. was on the brief, for appellee Coldwell Banker and Company, Inc.
James H. Kabler, III, pro se.
Before NEBEKER, MACK and BELSON, Associate Judges.
MACK, Associate Judge:
This is an appeal from an order of the trial court dismissing plaintiff-appellant’s complaint. The trial court found that dismissal of the complaint was warranted on two independent grounds: first, that the plaintiff had abused the discovery process; and second, that the plaintiff had perpetrated a fraud upon the court. We affirm on the second ground without deciding the merit of the first.
Factual Summary
Any written opinion in this case requires a laboriously detailed statement of the facts. The next fourteen and one-half pages recite such detail.
In summary, Synanon sought to buy an apartment building in Washington D.C. for office and residential purposes. Through its officers and attorneys, it represented itself as a peaceful, nonprofit organization. An initial deposit of $250,000 was made and Synanon moved in, pending settlement. Zoning difficulties surfaced; disputes arose between Synanon and the sellers and Synanon 1256*1256 and other tenants. Unfavorable publicity thereafter exposed Synanon as anything but a peaceful entity. Both parties claimed each other in default under the purchasing agreement and Synanon sued for breach of contract and warranty. Answers and counterclaims were filed. When discovery proceeded, Synanon officers and attorneys perjured themselves in an attempt to secure favorable discovery rulings, at the same time destroying many corporate records. The sellers moved to dismiss and Judge Leonard Braman, after an eleven-day evidentiary hearing dismissed Synanon’s complaint on the grounds of fraud on the court and abuse of the discovery process.
The Facts, In Detail
Plaintiff-appellant Synanon Foundation, Inc. [Synanon], was registered in 1958 as a tax-exempt, nonprofit organization under the laws of the State of California, for the avowed purpose of rehabilitating drug and alcohol abusers and engaging in research, public education, and charitable distribution. On April 18, 1978, Edward Siegel, the President of Synanon, approached defendant-appellee Coldwell Banker & Co., a real estate brokerage house, in regard to the possible purchase of a building in the District of Columbia that would be suitable for use both as Synanon’s national headquarters and executive offices, and as a residence for Synanon members and residents. A sales agent for Coldwell Banker, appellee James Kabler III, had obtained a sales listing in December of 1977 from appellee Stuart Bernstein for an apartment building known as the “Boston House,” located at 1711 Massachusetts Avenue, N.W. Kabler recommended the Boston House to Siegel because that part of the building that faces Massachusetts Avenue is in an area zoned “Special Purpose” [S-P], and at that time nonprofit organizations were permitted to maintain offices in S-P zoned locations as a matter of right. Kabler did not tell Siegel, however, that earlier that month, Coldwell Banker had received an inquiry from another potential purchaser interested in using the Boston House for office space. That individual had requested that Jeffrey Grene, another Coldwell Banker agent, determine the floor-load capacity of the building, since under the D.C. Building Code, a building that is zoned for offices may not be so used unless the floor-load capacity is 100 pounds per square foot on the first floor, and at least 60 pounds per square foot on the higher floors. Grene asked Kabler to determine the floor-load capacity of the Boston House, and Kabler asked Bernstein. When Bernstein could not locate the information, Grene called a D.C. building inspector, who looked at the original plans for the building and informed Grene that the floorload capacity of the building as designed was only 40 pounds per square foot for the upper floors and 70 pounds per square foot for the lobby, and therefore, based on the original plans, the building was unsuitable for office use. Grene told Kabler that the potential purchaser was not interested in the building because the floor-load capacity was insufficient for his needs. Kabler, however, did not raise this potential problem with the Synanon representative, who made his inquiry one week later.
On April 21, Siegel, Kabler and Bernstein met to discuss Synanon’s interest in the Boston House. Siegel characterized Synanon as a peaceful, charitable organization, but stated that it had recently received unfavorable publicity from the news media. Siegel did not reveal the details of this publicity: a December 1977 article in Time magazine, and a television report by KGO-TV in January 1978, both alleging that Synanon had strayed from its founding principles, and had been transformed by its founder, Charles Dederich, into a violent cult. Bernstein did not ask for any additional information, and said that he sympathized with Siegel because he knew that the press could often be unfair in its coverage. He also refused Siegel’s offer of references, requesting only a financial statement. 1257*1257 Bernstein told Siegel that the zoning regulations permitted the use of the Boston House as offices by a nonprofit organization, and Kabler did not qualify that statement.
Three days later, Siegel met with Kabler, Bernstein, and Bernstein’s attorney to discuss the terms of a purchase of the Boston House. Siegel once again mentioned media criticism of Synanon and difficulties it had had with zoning authorities in California. Bernstein’s attorney called the D.C. zoning office during this meeting to confirm that part of the Boston House was zoned SP, and then stated to Siegel that at least part of the building could be used for offices. Kabler once again did not qualify this statement. Bernstein instructed his attorney to draw up an Agreement of Sale, which the parties executed on April 28.
The Agreement provided that Synanon would purchase the Boston House for $5,600,000. Closing was deferred until January 1979 in order to provide a tax advantage for Bernstein. Synanon gave Bernstein a down payment of $250,000, and was given permission to occupy the top two floors of the building pending settlement. By section 6(a) of the Agreement, Bernstein was given the right to retain the deposit in the event of Synanon’s default. On the question of Synanon’s intended use, section 5 of the Agreement provided: “Seller and Purchaser recognize that it is the Purchaser’s intention to acquire the Building for the purpose of converting it into Purchaser’s headquarters….” Section 3(f) of the Agreement states that part of the building was zoned to permit office use by nonprofit organizations. The Agreement did not explicitly recognize that a certificate of occupancy must be obtained prior to any non-residential use of building space in the District. See 11 DCMR § 3203.1 (1984). In order to obtain such a certificate, an applicant would be required to demonstrate that the floor-load capacity of the Boston House met the minimum requirements for office use under the Building Code. See 12 DCMR § 702.5 (1985). Although the Agreement did not specifically assign responsibility for obtaining the required certificate of occupancy for office use, Synanon contended in the trial court that this responsibility was Bernstein’s under section 5(h) of the Agreement, which provided that “any claims asserted by … governmental authority other than those based on the actions of Purchaser shall be the responsibility of Seller.”
Synanon residents began to move into the apartment house during the last week in May. The Boston House Tenants’ Association opposed the sale to Synanon, and together with an Advisory Neighborhood Council, it lobbied the D.C. Zoning Commission to change the zoning law in order to prohibit conversion of existing apartment units to offices without obtaining prior approval from the Board of Zoning Adjustment. On June 8, the Zoning Commission issued an emergency order, eliminating the zoning regulation that permitted the conversion of apartments to offices in SP zones as a matter of right, and providing that due to a housing shortage in the District, as an emergency measure all such conversions would require the review and approval of the Board of Zoning Adjustment. See 11 DCMR § 508.1 (1984). From June 12 through June 15, an evening TV news show ran a four-part series on the cult aspects of Synanon and its proclivity for violence. On June 15, Charles Dederich, Synanon’s founder, became involved in an altercation with a Washington Post photographer outside the Boston House, and was subsequently charged, along with a second Synanon officer, with assault. During this period, according to Bernstein, he received complaints from Boston House tenants that Synanon had taken control of the front desk, that the organization was holding meetings in the lobby and early morning rallies in the courtyard, and that there had been unauthorized entries into some apartments.
On June 16, the Chief of Zoning Inspection notified Bernstein and Dederich that office use of the building would require a 1258*1258 special exception under the June 8 emergency order. Also on June 16, Bernstein, Kabler and Siegel met to discuss an upcoming meeting with the tenants’ association. Kabler informed Siegel that one of the objections that the association was likely to raise at the meeting was the floor-load capacity of the building. Kabler informed Siegel, for the first time, that the floor-load capacity as listed in the plans for the building was insufficient for office use. At the meeting, the tenants did in fact raise this objection. Later in the day, Bernstein notified Synanon that he considered the tenants’ allegations of harassment listed above to be a breach of the Agreement of Sale. On June 17 or 18, Synanon made the decision to move out.
On June 20, Bernstein sent notice to Synanon demanding that it cease its office use of the building until it obtained a certificate of occupancy. On June 21, Synanon hired a structural engineer to review the building plans, and also served a demand upon Bernstein that he obtain a certificate of occupancy and a special exception from the Board of Zoning Adjustment for office use of the building. On June 26, the structural engineer hired by Synanon reported that based on the building plans the Boston House could not be used for offices under the Building Code. On July 6, Bernstein purported to declare Synanon in default under the Agreement. On July 7, Synanon purported to rescind the contract based on Bernstein’s failure to cure the various zoning problems in order to permit the building to be used for offices as contemplated by the Agreement of Sale.
Synanon subsequently filed the instant action in the Superior Court against the owners of the building, Bernstein and Samuel Kushner, and against the agent, Coldwell Banker, and its employee, Kabler. The complaint alleged fraud, breach of contract and breach of warranty, and requested the court to order rescission of the Agreement, return of the $250,000 deposit, restitution for various expenses, and punitive damages. The owners and the agent each filed an answer, alleging that Synanon was forced to move out of the building not because the Boston House did not comply with the zoning requirements, but because of unfavorable publicity and because Charles Dederich wanted to escape prosecution for assault. Bernstein also filed a counterclaim. It initially alleged that Synanon was in default under various provisions of the Agreement that called for apartment and parking space rent payments, and in addition for lump sum payments of $5000 in lieu of rent for each of 35 apartments that had been vacated prior to settlement. Bernstein also requested damages for restoration costs, for legal fees, loss of future rents, and for “interference with Bernstein’s prospective economic advantage” by causing him to lose tenants. On December 12, 1978 — following additional publicity about Synanon’s harassment of former members who left the organization, and about its policy of violence and its threats against members of the media who published unfavorable reports about its activities—Bernstein filed an amended counterclaim, in which he alleged for the first time that Synanon had procured the Agreement of Sale by fraud, in that it had not disclosed to him that it was an organization committed to violence.
The defendants served their first discovery request, consisting of 54 interrogatories, on February 6, 1979. Nineteen of these interrogatories were directed to the issue of whether or not Synanon was a violent organization. (Interrogatories 32-50.) Four interrogatories requested tapes that had been broadcast over an in-house Synanon communication network, the “wire,” transcripts of those tapes, and indices. Major sources of programming for the “wire” were the taped and live pronouncements of Charles Dederich, Synanon’s founder and leader. Dederich would hold morning meetings called “Think Tables,” in which he would often spell out new directions for the organization. “Think Table” discussions were taped, and written summaries were created of the topics discussed. Synanon maintained an archive 1259*1259 of 10,000 tapes, some of which were transcribed. It also employed an archivist, Steve Simon, who supervised the creation of a computerized subject matter index to existing transcripts of tapes, referencing the tape number for easy listening access. The index also included some untranscribed tapes. The subject matter index was not an index of “wire” broadcasts; the only way to identify the material broadcast over the Synanon “wire” was to examine daily broadcasting logs kept by the organization. As yet unaware of the existence of a subject matter index for all transcripts and some tapes at the time that the first set of interrogatories was filed, the defendants requested Synanon to identify all indices of tapes of Charles Dederich or Edward Siegel that were broadcast over the wire, or indices of transcripts of tapes of Dederich or Siegel broadcast over the wire, for the period January 1, 1977, through July 30, 1978. (Interrogatory 53.) In responding to this interrogatory, the defendants said that no index of wire broadcasts existed. The three other interrogatories requesting tapes and transcripts were as follows: In interrogatory 28, the defendants requested Synanon to identify all tapes or transcripts of wire broadcasts that referred to the period in May and June of 1978 when Synanon was in residence at the Boston House. In interrogatory 32, Synanon was asked to identify all documents, tapes, and transcripts of tapes referring to Bill and Sylvia Crawford, former Synanon residents who allegedly were harassed by Synanon after they left the organization. In interrogatory 34, the defendants asked Synanon to identify all tapes and transcripts of wire broadcasts including any discussion of Charles Dederich’s policy on vasectomies for male Synanon residents.
Synanon responded to some of the interrogatories. It refused to answer the questions directed to the issue of violence or the question on the “vasectomy policy,” on the ground that those interrogatories were not likely to lead to the discovery of admissible evidence. In addition, it stated that it would be unduly burdensome for it to identify material contained in tapes in the Synanon archives. The defendants filed a motion to compel answers, and on January 18, 1980, Judge William S. Thompson began a hearing on the motion. At the hearing, Dan L. Garrett, Jr., then general counsel for Synanon, sought to be admitted pro hac vice in order to argue against the motion to compel. Judge Thompson declined to grant this request on the ground that Garrett was potentially a witness in the case. Nevertheless, Garrett sat at counsel table, and through counsel represented that no index, summary or referencing of tapes in the Synanon archives had ever been accomplished. Garrett’s position was that it would be unduly burdensome to require Synanon to respond to the interrogatories requesting it to identify tapes on certain subjects, because someone would have to listen to all the tapes in the archives in order to comply. The defendants produced an affidavit that had been filed in another case, in which Garrett’s son had stated that Synanon employed Steve Simon specifically to index and reference the tapes. Garrett’s counsel represented to the court that Garrett would be “willing to state under oath or as an officer of the court or in any capacity that such indices do not exist.” When counsel for defendants asked to put Garrett on the stand in order to cross-examine him about the existence of an index, Synanon’s counsel objected, telling the court that cross-examination would be “gratuitous.”
Judge Thompson agreed, and relying partly on Garrett’s representations as an officer of the court, he limited the scope of defendants’ interrogatories to delete any requirement that Synanon identify particular tapes covering any substantial period of time. He limited interrogatory 28, compelling Synanon to provide only tapes of wire broadcasts made during June or July 1978. He eliminated the request for tapes of Dederich’s statements on vasectomies, ordering the identification only of existing tape transcripts and indices referring to the subject. He similarly narrowed interrogatory 1260*1260 53 to eliminate the requirement that tapes be identified, ordering Synanon to identify only indices of tapes or transcripts of tapes of wire broadcasts by Charles Dederich or Ed Siegel from January 1, 1977 through July 30, 1978. Finally, Judge Thompson required Synanon to respond to interrogatories 47 through 50 to the extent of identifying any indices and paper documents referring to former Synanon residents threatened or beaten by the organization. Judge Thompson’s January 23, 1980, order compelling answers to interrogatories is the only existing order compelling discovery ever entered in this litigation.[1]
In February 1980, Dan Garrett left Synanon, and was replaced as general counsel by Phillip Bourdette. Bourdette was subsequently admitted pro hac vice and was among counsel of record for Synanon in the trial court. On February 29, 1980, Synanon filed supplemental answers to the interrogatories in response to Judge Thompson’s order. In regard to interrogatories 47 through 50 — requesting documents referring to former Synanon residents who were harassed by the organization — Synanon’s supplemental response was minimal. In regard to interrogatory 28 (which required Synanon to provide all wire broadcast tapes for June and July, 1978 that referred to Synanon’s departure from the Boston House), and to interrogatory 53 (which required Synanon to identify all indices of tapes or tape transcripts of broadcasts by Dederich or Siegel from 1977-78), Synanon referred the defendants to the programming log for wire broadcasts, and stated that no index or abstract showing the content of any broadcasts existed. In a subsequent request for production of documents, filed April 16, 1980, the defendants identified and requested 103 potentially relevant tapes from the wire log that were broadcast in June and July 1978. Synanon ultimately produced four of these. The defendants also requested approximately 400 other tapes in which violence or money-making activities of Synanon were discussed. A small number of these tapes was produced. Defendants requested tapes or transcripts of tapes of telephone conversations to the Boston House from June 15 through June 19, 1978, and Synanon provided a limited response. Defendants also requested a tape of a phone conversation on June 17 between Dan Garrett and Synanon’s attorney, and a tape of a wire broadcast on June 23, 1978, both of which defendants said they could not locate.
On June 19, 1980, the defendants filed a motion for sanctions based on Synanon’s incomplete response to the document production requests. On May 7, 1981, following a hearing, Judge John D. Fauntleroy ordered Synanon to produce all of these documents and tapes within 90 days. Synanon moved for reconsideration of this order, and requested an evidentiary hearing on the question of whether any of the identified tapes existed. On October 3, 1981, Synanon’s general counsel, and counsel of record in the case, Phillip Bourdette, filed an affidavit with Judge Fauntleroy stating that he had personally supervised a search of the Synanon archives and could find no additional material responsive to the document production request. At hearings in November 1981 and April 1982, Steven Simon, the Synanon archivist, stated that Synanon tapes were routinely “recycled,” and that although none of the requested tapes now existed, they had not been deliberately destroyed. Based on this testimony, on April 26, 1982, Judge Fauntleroy vacated his order of May 7, 1981 compelling production of documents.
Defendants subsequently filed a second motion for sanctions, which was denied by Judge Carlisle E. Pratt on June 25, 1982. On February 8, 1983, the case was assigned to Judge Leonard Braman. In July 1983, defendants obtained information that 1261*1261 Synanon, with the active participation of its in-house legal staff—including Dan Garrett and Phillip Bourdette—had engaged in a massive scheme, in anticipation of and in response to discovery requests in this case and in several others, to delete incriminating information from tapes in the Synanon archives and to burn or hide other tapes that could not successfully be “doctored.” Defendants also discovered the existence of the subject-matter index, and were informed that Steve Simon, Synanon’s archivist, had supervised a project at the direction of the Synanon legal department to eliminate incriminating topic headings so as to make access to the remaining tapes more difficult. Defendants obtained this information from affidavits by two former Synanon residents who had witnessed and participated in the destruction, Bette Fleishman and George Farnsworth.[2] Based on these affidavits, the defendants filed a motion to dismiss Synanon’s complaint. Defendants alleged that dismissal of the complaint was warranted as a sanction for Synanon’s willful abuse of discovery under Super.Ct.Civ.R. 37. Defendants also argued that the participation by Synanon’s legal counsel, Garrett and Bourdette, in the destruction of tapes and documents, and their attempts to mislead Judges Thompson and Fauntleroy, had worked a fraud upon the court that independently warranted dismissal of the action.
Judge Leonard Braman held an eleven-day evidentiary hearing on the motion to dismiss. Farnsworth testified, and defendants presented a videotape of Fleishman. According to their testimony, in October of 1978, Dan Garrett and Steve Simon and another Synanon resident spent two weeks in a trailer listening to tapes. Simon told Fleishman that incriminating tapes were destroyed during that period. In November 1978, tapes were flown out of the Synanon archives to a different location where they were burned at Steven Simon’s direction. In December, more tapes were destroyed. Also in that month, Phillip Bourdette ordered all tape recordings and tape summaries distributed throughout Synanon to be turned over to the legal department. In response to this order, Farnsworth testified, he collected tapes and his wife gave them to Bourdette. In March of 1979 — immediately following the filing of defendants’ first set of interrogatories—Steve Simon approached Farnsworth, who was in charge of the archive computer system. That system contained the transcript subject matter index (organized by key word) and a tape inventory that could identify all tapes by title or date. Simon told Farnsworth that the indices were dangerous and needed to be purged. Simon also told him that he had the approval of the legal department for this project. Farnsworth provided Simon with a complete printout of indices by title, date and subject matter. Simon marked those entries on the printout for which he wanted Farnsworth to delete the corresponding data file. Farnsworth deleted key words from the subject lists and tape numbers from the tape inventory. He burned all evidence of deletion. Farnsworth revealed that the computer tape inventory, that was presented to Judge Fauntleroy in connection with Simon’s testimony that led to a vacation of that court’s previous order compelling production of documents (see p. 1261 supra) was an intentionally changed inventory from which entire tapes had been deleted at Simon’s direction.
In April of 1979, Farnsworth approached Bourdette in order to attempt to confirm that his deletion at Simon’s order of parts of the transcript index and tape inventory was legal. Bourdette said that he knew what Simon was doing and that Simon was not acting on his own. Bourdette explained that the goal of the deletion project 1262*1262 was to make it difficult for people with whom Synanon was involved in litigation to zero in on relevant transcripts, and maintained that Farnsworth’s actions were legal as long as the particular items deleted had not yet been requested in litigation.
On September 5, 1979, Farnsworth was present at a dinner meeting between Steve Simon and Dan Garrett where the progress of the erasure project was discussed. During September, Farnsworth deleted more references, and in January of 1980, he deleted an additional batch of topics. He estimated that he had deleted a total of 180 topic references.
Despite the fact that, on January 18, 1980, Dan Garrett had represented to Judge Thompson that the only way to identify tapes relating to specific topics was to listen to each tape in the archive, Bette Fleishman testified (in the evidentiary hearing before Judge Braman) that in February of 1980 she was recruited to work in the archives deleting and erasing tapes on Simon’s instructions. She stated that Simon received information from Bourdette concerning materials sought in various lawsuits in which Synanon was involved. Simon in turn gave Fleishman a “sensitive subject” list, and she prepared logs of matters appearing on the list and delivered them to Simon. Simon, together with Bourdette’s wife and another Synanon attorney, then determined which material to destroy. Once the material was identified, Fleishman would burn the tape label and the topic log and erase the tapes. Other tapes were relabeled in order to avoid subpoenas and document requests in a number of different cases. Simon told Fleishman that he and Bourdette had agreed that Simon would have to lie in various proceedings. By the Summer of 1980, the indices were adjusted and the tape references corresponding to the topic index were erased. Fleishman estimated that more than 100 tapes were erased. During this period, Simon told Fleishman that he had perjured himself when he stated at his deposition that tapes were routinely recycled and that no tapes had been destroyed. In this regard Farnsworth testified before Judge Braman that to his knowledge no tapes were ever reused.
Very little direct contradiction of the testimony of Farnsworth and Fleishman was presented by Synanon in the hearing before Judge Braman, since on key points Phillip Bourdette invoked his Fifth Amendment privilege, and other witnesses presented by Synanon had no direct knowledge of the erasure project.
Judge Braman found Farnsworth and Fleishman credible. Based on their testimony, Judge Braman held that Synanon’s destruction of materials requested by the defendants through the discovery process warranted dismissal of the complaint. He found that the materials destroyed, among others, related to “violence, money, purchase of guns, legal terror tactics, Holy War, changing partners or love match.” This material, Judge Braman held, was relevant to the complaint because it bore on Synanon’s “nonprofit” status.
The trial court in addition held that Synanon’s in-house attorneys had perpetrated a fraud on the court of sufficient magnitude to warrant dismissal of the complaint. This appeal followed.
We find ample evidence in the record to support Judge Braman’s conclusion that the involvement of the Synanon executives and attorneys in the fraud, their subornation of perjury and their own false statements to Judge Thompson and Fauntleroy constituted a fraud on the court, warranting dismissal of the complaint.
The record in this case demonstrates “the most egregious conduct” by an officer of the court, including “the perpetration of fraud” and “a corruption of the judicial process itself.” Lockwood v. Bowles, 46 F.R.D. 625, 632 (D.D.C.1969). The evidence presented to Judge Braman shows the existence of an “`unconscionable plan or scheme'” by counsel of record, Phillip Bourdette, and another lawyer for Synanon, 1263*1263 Dan Garrett, “`designed to improperly influence the court in its decision.'” Id. at 631 (citation omitted). There is no question that counsel for Synanon attempted to perpetrate a fraud upon at least two trial judges, with the intent of preventing “`the judicial machinery [from] perform[ing] in the usual manner its impartial task of adjudging cases that are presented for adjudication.'” Id. (citation omitted). The involvement of an officer of the court in “a carefully planned scheme calculated to deceive the court” is the type of misconduct that warrants dismissal of the complaint. Southerland v. County of Oakland, 77 F.R.D. 727, 733 (E.D.Mich.1978) (fraudulent statements to court by attorney, an officer of the court, justify vacation of judgment), aff’d, 628 F.2d 978 (6th Cir.1980).
In the hearing before Judge Thompson, Synanon’s first general counsel, Dan Garrett, asked that he be admitted pro hac vice in order to argue — falsely — that the defendants’ requests for the identification of tapes in the Synanon archives on specific topics were unreasonable because Synanon had no means of determining the content of those tapes other than by listening to them. When Judge Thompson refused to admit Garrett pro hac vice, Garrett offered to testify under oath that the Synanon archivist had not indexed, summarized or cross-referenced any of the tapes, a demonstrably false assertion. Judge Thompson relied on Garrett’s representation as an attorney, and did not find it necessary to permit the defendants to cross-examine him on this statement. Based in substantial part on Garrett’s statement, Judge Thompson narrowed the scope of defendants’ first set of interrogatories considerably.
Similarly relying on the representations of Phillip Bourdette, counsel of record for Synanon in this case, Judge Fauntleroy vacated a prior order compelling Synanon to produce documents in response to the defendants’ first request for production of documents. Bourdette filed an affidavit stating that he had conducted a “diligent” search and could find no documents responsive to the court’s order. Although Bourdette may have been technically correct at the time he filed his affidavit that no responsive documents could be found, the reason this would have been so is Bourdette’s sponsorship and supervision of a massive program to destroy damaging and incriminating information contained in the Synanon archives. The purpose of Bourdette’s disingenuous representation, as well as Garrett’s false statements to Judge Thompson, was as Judge Braman found, to deceive the court, and to improperly influence the court in its decision on the defendants’ motions to compel, with the ultimate aim of preventing the judicial process from operating in an impartial fashion. These actions by Synanon’s counsel warrant dismissal of the complaint. See Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 246-47, 64 S.Ct. 997, 1001-02, 88 L.Ed. 1250 (1944) (attorney tampering with administration of justice requires vacation of judgment, whether or not behavior actually influenced outcome of trial); id. at 251, 64 S.Ct. 1003 (Roberts, J., dissenting) (“No fraud is more odious than an attempt to subvert the administration of justice.”); Great Coastal Express, Inc. v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, 675 F.2d 1349, 1357 (4th Cir.1982) (“Involvement of an attorney, as an officer of the court, in a scheme to suborn perjury would certainly be considered fraud on the court.”), cert. denied, 459 U.S. 1128, 103 S.Ct. 764, 74 L.Ed.2d 978 (1983); H.K. Porter Co. v. Goodyear Tire & Rubber Co., 536 F.2d 1115, 1119 (6th Cir.1976) (“Since attorneys are officers of the court, their conduct, if dishonest, would constitute fraud on the court.”); 7 MOORE’S FEDERAL PRACTICE § 60.33, at 359 (2d ed.1985) (Attorney’s loyalty to client “obviously does not demand that he act dishonestly or fraudulently; on the contrary his loyalty to the court, as an officer thereof, demands integrity and honest dealing with the court. And when he departs from that standard in the conduct of a case he perpetrates a fraud upon the court.”)
1264*1264 Counsel for Synanon argues that the Superior Court Civil Rules only contemplate vacation of an already entered judgment as a remedy for fraud on the court, and do not provide for dismissal of an action prior to trial on this basis. Super.Ct. Civ.R. 60(b). Rule 60(b), however, does not subsume or abrogate the court’s “inherent power to dismiss an action when a party has willfully deceived the court and engaged in conduct utterly inconsistent with the orderly administration of justice.” Wyle v. R.J. Reynolds Industries, Inc., 709 F.2d 585, 589 (9th Cir.1983). See Link v. Wabash Railroad Co., 370 U.S. 626, 630, 632, 82 S.Ct. 1386, 1388, 1389, 8 L.Ed.2d 734 (1962) (federal Rule 41(b) does not abrogate court’s inherent power to dismiss action based on counsel’s failure to comply with rules of court). The claim of “fraud on the court” is similar in effect to the equitable defense of unclean hands. In an action in equity, “`he who asks relief must have acted in good faith. The equitable powers of th[e] court can never be exerted in behalf of one who has acted fraudulently or who by deceit or any unfair means has gained an advantage. To aid a party in such a case would make th[e] court the abetter of iniquity.'” Keystone Driller Co. v. General Excavator Co., 290 U.S. 240, 245, 54 S.Ct. 146, 147, 78 L.Ed. 293 (1933) (citation omitted). Such a party “must keep his hands clean throughout the litigation,” or his action will be subject to dismissal. American Insurance Co. v. Scheufler, 129 F.2d 143, 148 (8th Cir.), cert. denied, 317 U.S. 687, 63 S.Ct. 257, 87 L.Ed. 551 (1942). Thus, while “`equity does not demand that its suitors shall have led blameless lives,’ … it does require that they shall have acted fairly and without fraud or deceit as to the controversy in issue.” Mas v. Coca-Cola Co., 163 F.2d 505, 509 (4th Cir.1947) (citation omitted). A plaintiff’s non-compliance with this requirement warrants dismissal of his action.
In sum, the participation by Synanon’s high officials and counsel, in successful attempts to deceive the court and to influence its decisions, was conduct which the administration of justice cannot tolerate. Indeed counsel’s behavior was “such a violation of a lawyer’s duty to the court — a duty imposed not alone by principles of honesty and good morals but also by a code of ethics adopted as rules of court [—] as to amount to a fraud on the court for which equity will grant relief.”[3] Sutter v. Easterly, 354 Mo. 282, 292, 189 S.W.2d 284, 287 (1945) (cited in Lockwood v. Bowles, supra, 46 F.R.D. at 632 n. 31). The decision of the trial court dismissing the complaint based on this conduct is therefore
Separate statement by Associate Judge MACK:
The majority chooses not to reach the major question decided by the trial court — its decision to grant the defendants’ motion to dismiss the complaint based on Synanon’s destruction of evidence. I do not think we can ignore the trial court’s holding in this respect; 42 pages of its 45-page oral opinion are addressed primarily to Synanon’s conduct in destroying evidence and the relevance of that conduct to the issue of whether there has been discovery abuse in this contractual dispute. The diligence of the trial court in marshalling these facts commands respect. And while the court’s deep concern is understandable in view of the depravity connoted by this record, I believe that Synanon — putting to one side the “fraud on the court” issue — was otherwise entitled to a hearing on its legal contractual claims and a fair review of the 1265*1265 denial of that hearing on appeal. One may forfeit the right to use our judicial system because of abuse relevant to such use; one does not forfeit that right because of bad character or conduct irrelevant thereto. I would therefore look to the trial court’s dismissal of the complaint on the grounds that there had been an abuse of the discovery process.
The trial court found by clear and convincing evidence that the willful destruction and alteration of materials by Synanon during the discovery process warranted dismissal. Thus, it found that subject matter categories deleted from Synanon’s computer index included “violence, money, purchase of guns, legal terror tactics, Holy War, changing partners or love match.” The court further found that the tapes on these subjects were relevant to the complaint (and therefore the defendants were prejudiced by their nonproduction), noting:
[Their relevance] has to do with Synanon’s status. That is, whether during the material times involved in this case, Synanon was a non-profit corporation. If it was not a non-profit corporation. then it would not, under the applicable zoning laws which applied at the time, be permitted to use the subject property for office purposes, as well as residential purposes[, s]ince the zoning was predicated on the non-profit status of the organization in question…. [W]hether Synanon was a non-profit corporation turned upon whether its corporate policy contravened fundamental public law policy…. The [] issue having to do with Synanon’s status applies to all the parties defendant since it inheres in the complaint. That is, it is an issue which is inextricably involved in the entitlement of Synanon to recover…. [V]iolence was an issue in this case and was implicated as an issue by the complaint…. Also, guns, siphoning of money, changing partners are issues, at least arguably for the purposes of motivating destruction.
The trial court thus found that the nonproduction of these materials “probably would have had a dispositive bearing upon Synanon’s complaint, that is, its nonprofit status.” It went on to find that no sanction other than dismissal would be appropriate here, because “[o]ne of the issues in this case is whether high management of Synanon directed or condoned violence or other activities which contravened fundamental public law policy.” Dederich’s pronouncements on tape, the court found, were the “best evidence of this policy,” and for this reason, no sanction other than dismissal could cure the prejudice to the defendants from the destruction of this evidence.
It is indisputable that Synanon willfully destroyed a substantial number of tapes and other materials that had been requested by the defendants in discovery. However, it does not necessarily follow from the fact that material requested by the defendants was subsequently found to have been destroyed, that the defendants were actually prejudiced by its nonproduction. In evaluating whether dismissal of a complaint is warranted as a sanction for willful failure to comply with a court order compelling discovery under Super.Ct.Civ.R. 37,[5] the trial court must “evaluate the prejudice 1266*1266 to the moving party” by its failure to obtain the requested materials, and must also “consider alternative, less harmful sanctions” than dismissal, which is “the most draconian sanction” that may be imposed. Shimer v. Edwards, 482 A.2d 399, 400-01 (D.C.1984); see Massengale v. 3M Business Products Sales, Inc., 504 A.2d 574 (D.C.1985); Vernell v. Gould, 495 A.2d 306, 311 (D.C.1985). I do not believe that the findings prerequisite to dismissal based on discovery abuse have been demonstrated in this case.
The Relevance of Nonprofit Status
It is apparent from even the most cursory reading of Judge Braman’s opinion that the basis for his dismissal of the complaint as a sanction for discovery abuse under Rule 37 was his belief that material relevant to Synanon’s nonprofit status had been destroyed or withheld, and that the defendants were prejudiced by Synanon’s actions because Synanon’s “nonprofit status is inextricably involved in the entitlement of Synanon to recover.”
In my view the trial court was in error in concluding that Synanon’s nonprofit status was in issue, that as a matter of law Synanon had forfeited that status, that its nonprofit status was relevant to the complaint or the defense, and that such status would have a dispositive bearing on Synanon’s right to recover.
The court did not parse out the basis for its conclusion that Synanon’s nonprofit status was a key issue. The complaint asked for a rescission of a contract because of fraudulent misrepresentations by the defendants. The defendants did not raise Synanon’s status as a defense to the action in their answer to the complaint; this issue was first raised in the court’s pretrial order, where it stated that although the pleadings did not set forth Synanon’s status as a question to be adjudicated, that status was fairly put into issue by the defendants’ discovery requests and therefore would be an issue at trial.
I do not see the relevance of Synanon’s nonprofit status to the issues raised by the dismissed complaint. I see no nexus between Synanon’s relatively uncomplicated action for rescission of the Boston House contract based on fraudulent misrepresentations by the defendants, and the question of whether Synanon is a violent organization. Since I do not find Synanon’s violence to be relevant to the complaint or the defenses asserted in the answers, I cannot see how the defendants could have been 1267*1267 prejudiced by Synanon’s destruction of tapes that revealed the organization’s, and its founder’s, true nature. Similarly, since the commercial activity and deviant sexual practices of the organization are irrelevant to the issues raised by the complaint, their nonproduction worked no prejudice to the defendants’ case. See Pollock v. Brown, 395 A.2d 50, 52 (D.C.1978). Of the hundreds of tapes requested by the defendants—many of which apparently were destroyed—only a relatively small number were likely to lead to the discovery of admissible evidence on any issue framed by the complaint and the answers. Yet it is only the categories of tapes and corresponding subject matter topics on the transcript index relating to violence, sex, and commercial activity that were specifically found by the trial court to have been destroyed or erased. The record does not reveal the extent to which any relevant tapes were erased or disguised. Similarly, the record does not reveal whether there were topics relevant to the case in the subject matter index, and whether those topics were eliminated. For example, we do not know whether there was a “Boston House” or even a “Washington” topic. The testimony of Farnsworth and Fleishman indicates that most of the topic headings and corresponding tape excerpts that were deleted were relevant to the questions of violence, deviant practices, and money. The scheme actually was instituted in response to a case filed against Dederich in 1978, in which Synanon’s propensity for violence was the key issue. We may of course assume that tapes relevant to the present case were destroyed in the massive effort to destroy incriminating information that had been requested through discovery in the many different cases in which Synanon was involved. Since the trial court, however, placed such heavy emphasis upon the relevance of Synanon’s nonprofit status in determining the prejudice to the defendants by the nonproduction of material relevant to that status, I do not believe that we could find a proper exercise of discretion in the trial court’s evaluation of the sanction to impose in this case.[6] See Shimer v. Edwards, supra, 482 A.2d at 401; Vernell v. Gould, supra, 495 A.2d at 311; Braxton v. Howard University, 472 A.2d 1363, 1365 (D.C.1984); Ungar Motors v. Abdemoulaie, 463 A.2d 686, 688-89 (D.C.1983).
The Defining of Nonprofit Status; The Incidents Following Therefrom
The trial court, in concluding that Synanon’s status was inextricably bound up with its right to recover, did not identify the nature or scope of any inquiry into that status. We may safely presume that a trial judge on the District of Columbia Superior Court has no authority to evaluate or revoke a grant of non-profit status by the State of California. Upon principles of comity, organizations registered as nonprofits under California law and the laws of other states are permitted to do business as nonprofit organizations in the District of 1268*1268 Columbia. Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U.S. (6 OTTO) 1, 13, 24 L.Ed. 708 (1878). In order “to bring such corporations under the supervision and the regulation of public officials charged with such responsibility to the end that the public may have the same information respecting their background and financial standing[,] character and [] management which is demanded of domestic corporations,” Hill-Lanham, Inc. v. Lightview Development Corp., 163 F.Supp.475, 476 (D.D.C.1957), foreign corporations are required to obtain a certificate of authority from the Mayor of the District of Columbia before they may do any business in this city. See D.C.Code § 29-565(a) (1981).[7] See also Federal Loose Leaf Corp. v. Woodhouse Stationery Co., 163 F.Supp. 482, 483 (D.D.C.1958). Since Synanon is a nonprofit corporation under California law, it is entitled to operate as a nonprofit organization in the District of Columbia if it obtains such a certificate.[8] Once the certificate is procured, the foreign corporation shall “enjoy the same rights and privileges as … a domestic corporation organized for the purposes set forth in the application pursuant to which such certificate of authority is issued.” D.C.Code § 29-566(b). By statute, the Mayor is given exclusive authority over both the grant and the revocation of certificates of authority, see id. § 29-570(b) (grant); id. § 29-580 (revocation); id. § 29-594(b) (“The Mayor shall be charged with the administration and enforcement of this chapter.”) The Mayor may refuse to grant, or may grant and then revoke, a certificate of authority if the nonprofit corporation desires or attempts to conduct affairs in the District that a District nonprofit corporation would not be permitted to conduct. Id. § 29-565(a). If the Mayor declines to grant, or grants and then revokes, a certificate of authority for a foreign corporation, that corporation has a right of appeal to the courts. Id. § 29-595. All civil and criminal actions to enforce the certificate of authority requirements are committed to the jurisdiction of the D.C. government. Id. § 29-599.7.[9]
Even if Synanon had not obtained a certificate of authority from the Mayor, its 1269*1269 status as a registered California nonprofit corporation permits it to enter into enforceable contracts in the District of Columbia. District of Columbia law expressly preserves the validity of contracts of foreign nonprofit corporations even if they have failed to obtain the required certificate of authority. D.C.Code § 29-583(b) (“The failure of a foreign corporation to obtain a certificate of authority to conduct affairs in the District shall not impair the validity of any contract or act of such corporation….”). See Federal Loose Leaf Corp. v. Woodhouse Stationery Co., supra, 163 F.Supp. at 483.[10]
Unfortunately, none of the parties to this appeal has considered the application to this case of the certificate of authority requirement. There is thus no proof in the record that Synanon obtained a certificate of authority from the District of Columbia. The trial court in its pretrial order, mentions that Synanon has qualified as a nonprofit organization under the law of the District of Columbia. Assuming that it has done so, it is within the purview of the Mayor and the D.C. government to revoke this grant of authority to act as a nonprofit corporation in the District. “[N]o citizen of a State can enjoin a foreign corporation from pursuing its business. Until the State acts in its sovereign capacity, individual citizens cannot complain. The State must determine for itself when the public good requires that its [] assent to the admission shall be withdrawn.” Pensacola Telegraph Co. v. Western Union Telegraph Co., supra, 96 U.S. (6 OTTO) at 13.
Even if Synanon has not obtained a certificate of authority, however, I still could not find any relevance of Synanon’s nonprofit status to the complaint. In evaluating state statutes designed to regulate the activities of foreign corporations, the Supreme Court has held that unless the statute expressly declares void all contracts entered into by foreign corporations without obtaining a certificate of authority, or creates a private right of action in favor of those who do business with the foreign corporation — allowing those parties to enforce the statute through private civil suits — these types of provisions will not be read into the statute and enforcement will lie exclusively with the state government. Seymour v. Slide & Spur Gold Mines, 153 U.S. 523, 525, 14 S.Ct. 847, 38 L.Ed. 807 (1894); Fritts v. Palmer, 132 U.S. 282, 289-93, 10 S.Ct. 93, 95-6, 33 L.Ed. 817 (1889); Cowell v. Colorado Springs Co., 100 U.S. (10 OTTO) 55, 60-61, 25 L.Ed. 547 (1879); Pensacola Telegraph Co. v. Western Union Telegraph Co., supra, 96 U.S. (6 OTTO) at 13.[11] See also Groo v. Norman & Robinson, 42 App.D.C. 387, 390 (1914) (“The modern rule, from which we have been unable to find any substantial departure, is that the title of a [foreign] corporation to real estate held in excess of its powers [under the law of the state] is good until invalidated in a direct proceeding instituted by the soverign….”).
The D.C.Code does not create a private right of action in favor of parties with whom a foreign corporation contracts, to permit such parties to obtain a declaration that the contract is void based on the corporation’s failure to comply with statutory 1270*1270 requirements. The statute does create a limited defense that may be raised by such parties, however, when the corporation sues on its contract without first obtaining the requisite certificate. The Code provides that Synanon would not be permitted to “maintain any action” in “any court of the District” without first obtaining a certificate of authority. D.C.Code § 29-583(a). This section has been interpreted to require a court to stay an action by a foreign corporation that sues on a contract without obtaining the certificate — in order to give that corporation an opportunity to comply with the statutory provisions — once the issue of the corporation’s status has been raised by the defendant. York & York Construction Co. v. Alexander, 296 A.2d 710, 713-14 (D.C.1972); Hill-Lanham, Inc. v. Lightview Development Corp., supra, 163 F.Supp. at 476; Federal Loose Leaf Corp. v. Woodhouse Stationery Co., supra, 163 F.Supp. at 483. However, “[u]nless an objection to a party’s capacity to sue or defend is properly raised in the trial court, the issue is deemed waived throughout the proceedings.” 18 FLETCHER CYCLOPEDIA OF THE LAW OF PRIVATE CORPORATIONS § 8629 (R. Eickhoff & R. Klaus ed. 1977).
Here, no objection to Synanon’s maintenance of the instant suit on the ground that it could not sue on its contract because it had not obtained a certificate of authority was ever raised by the defendants. Even if it could be said that by focusing discovery on the question of Synanon’s nonprofit status, the defendants constructively raised the question of the certificate of authority (assuming that no such certificate had ever been issued by the Mayor), the defendants’ failure to raise this question in their answer or at some earlier stage of the proceedings constitutes a waiver of the issue. Id. § 8628 and cases cited.[12] Thus, the defendants would have been permitted to raise the for-profit status of Synanon as a defense to the complaint only if Synanon had not obtained a certificate of authority and if they had raised this issue early in the proceedings. The defendants have not made a showing that either requirement was satisfied, however.
Whether a trial court has authority independent of the procedural requirements set forth in the statute to preclude a foreign nonprofit corporation from enjoying benefits accruing to nonprofit organizations in the District of Columbia need not be decided here. For even if the trial court in the course of this litigation had adjudicated Synanon a “for-profit” corporation, and thus not entitled to “nonprofit organization” status under the zoning regulations, that decision as to status could not be applied retroactively to void Synanon’s contract with Bernstein. The fact that Synanon intended to use the Boston House for a purpose permitted only to nonprofit organizations under the zoning regulations does not in any sense transform its contract with Bernstein into one that is for an illegal purpose and therefore unenforceable. The basis of Synanon’s bargain with Bernstein is the prospect of dual residential-office use of the Boston House, and the purchase price of the building reflects that understanding. Even if Synanon ultimately were to be adjudicated a for-profit organization, it would still be permitted to use the building for residential purposes, or it could lease or sell the building to an entity that would be allowed to maintain a business within it under the zoning laws.
Defendants apparently believe that based on the materials withheld by Synanon, the trial court would have held that Synanon may not be recognized as a nonprofit organization in the District of Columbia, and then the court could have applied this holding retroactively to the Boston House contract, making Synanon’s contemplated use of that building illegal under the zoning law. Even if this reasoning process 1271*1271 had merit, the defendants’ post hoc allegation of illegality based on Synanon’s status is not a defense to this action. For “it is settled that illegality constitutes no defense when merely collateral to the cause of action sued on” or when “the relation of the illegality to the relief sought is indirect and remote.” Loughran v. Loughran, 292 U.S. 216, 228, 54 S.Ct. 684, 689, 78 L.Ed. 1219 (1934).[13]
Relevance in the Absence of a Nonprofit Issue
Finally, defendants argue that even if Synanon’s nonprofit status was not at issue, the trial court properly exercised its discretion to dismiss based on the fact that the destroyed material was relevant to the defense raised to the complaint. I see no merit to this argument. The defendants argued in their answer that Synanon left the Boston House because it had received unfavorable publicity, because its leader had been involved in an altercation with a member of the news media outside the Boston House, and because it was not getting along with the Boston House tenants. It is farfetched to argue that Charles Dederich’s opinions on vasectomies and on sex partners as expressed in his “Think Table” tapes — along with the great majority of material requested by defendants through discovery — has any bearing whatsoever on this defense. Moreover, as noted, the trial court’s stated reason for dismissing the action was not that evidence relevant to this defense had been destroyed, but that the destroyed evidence was relevant to Synanon’s nonprofit status — an issue that “inheres in the complaint [and] is inextricably involved in the entitlement of Synanon to recover.”
The trial court’s dismissal of the complaint under Super.Ct.Civ.R. 37 was based almost entirely upon the destruction of materials relevant solely to Synanon’s nonprofit status. Without findings of fact by the trial court that are focused on the question of the extent of the destruction of relevant material, I cannot find that the court properly exercised its discretion in dismissing the complaint on the basis of discovery abuse.
[1] Although Judge Fauntleroy also granted a motion to compel later in the litigation, he later vacated that order. See infra.
[2] These affidavits were submitted by the United States in an action by Synanon filed in the United States District Court for the District of Columbia. In that action, Synanon requested, and was denied, a declaratory judgment that the Internal Revenue Service had improperly revoked its tax-exempt status. See Synanon Church v. United States, 579 F.Supp. 967 (D.D.C. 1984).
[3] The Clerk of this court is directed to forward a copy of this opinion to the Bar Counsel of the District of Columbia and to disciplinary authorities of other appropriate jurisdictions.
[4] Still pending before this division, and awaiting the conclusion of all proceedings in the instant appeal, is the Appeal No. 84-1635 from the November 9, 1985 Order of Judge Braman awarding attorneys’ fees and expenses of litigation in the amount of $585,852.80 in favor of defendants and counterclaimants.
[5] Super.Ct.Civ.R. 37 is the exclusive route by which a trial court may impose sanctions for failure to comply with a court order compelling discovery. The court may not resort to other rules to justify such sanctions, nor may it dismiss based on discovery abuse under any other rubric (“unclean hands,” for example) using its “inherent” powers. Societe Internationale v. Rogers, 357 U.S. 197, 207, 78 S.Ct. 1087, 1093, 2 L.Ed.2d 1255 (1958). Normally, sanctions may be imposed under Rule 37 “only upon failure to comply with an order of the court.” Henneke v. Sommer, 431 A.2d 6, 8 (D.C.1981). If a party’s responses to discovery requests are incomplete or evasive, it is incumbent upon the opposing litigant to request the court to resolve the outstanding questions by order. It is an abuse of discretion to impose a weighty sanction upon a litigant for failure to respond fully to discovery requests absent an outstanding court order directing compliance. Id. at 9. Compare Rule 37(d). I note that the only court order in this litigation compelling discovery was Judge Thompson’s order of January 23, 1980, compelling answers to several interrogatories. At issue are Synanon’s supplemental responses to Interrogatories 28, 47-50, and 53. Interrogatories 28 and 53 required Synanon to identify tapes of wire broadcasts made by Dederich or Siegel from January 1, 1977, through July 30, 1978, and to identify wire broadcasts in June and July, 1978. Synanon partially complied with these interrogatories by providing broadcasting for the period in question. Synanon’s answers to interrogatories 47 through 50, requesting information on former residents of Synanon who had been threatened, were incomplete. Synanon also failed to identify its subject matter index and tape inventory in response to these interrogatories. Under our cases, the trial court was authorized to impose sanctions only for this evidence of non-compliance with the January 23, 1980, order. The evidentiary hearing held by Judge Braman was not limited to an assessment of the information withheld under this order, however, but was much broader in scope, encompassing the fate of all materials requested by defendants during the course of this litigation. After hearing this evidence, the trial court’s dismissal order did not focus on Synanon’s failure to comply with the January 23rd order, but instead seemed to accord mere discovery requests the force of court orders. I recognize, however, that Judge Thompson’s order compelling discovery was more limited than it might otherwise have been because he relied on false representations by counsel for Synanon as to the difficulty of accessing the tape archives. Similarly, Judge Fauntleroy vacated his 1981 order requiring Synanon to produce every document and tape requested in the defendants’ First Request for Production of Documents based on the false representations of Synanon’s archivist and of Phillip Bourdette, Synanon’s general counsel and counsel of record in this case. For purposes of my analysis of Judge Braman’s dismissal on Rule 37 grounds, therefore, I assume without deciding that all of the tapes and documents requested in the defendants’ first set of interrogatories and document production requests were constructively subject to a court order.
[6] Although Synanon’s violence is relevant to Bernstein’s amended counterclaim based on his allegation that Synanon represented itself as a peaceful and nonviolent organization, the court’s sanction was not directed to the counterclaim, which remains pending in the trial court. It is noteworthy that the record is replete with evidence that Synanon’s goals and means are violent. It is unnecessary to remind counsel that the objective of the pretrial discovery rules is to allow a party to obtain all of the facts relevant to a claim or defense. By the time this case came before Judge Braman there was ample evidence in the public record that Synanon was not a peaceful organization. The trial courts should be on guard to prevent a party from employing the discovery rules with the long-range objective of trapping his opponent into the imposition of the most severe sanction, dismissal. Moreover, where destroyed materials are not relevant to the issues framed by the complaint and the answers, I believe that an appropriate response to a finding that a party was prejudiced in the presentation of his counterclaim by the destruction of materials would be to take all facts to which the discovery was relevant as established, see Super.Ct.Civ.R. 37(b)(2)(A); Black v. Sheraton Corp. of Am., 371 F.Supp. 97, 102 (D.D.C.1974), or to enter a default judgment on the counterclaim, Super.Ct. Civ.R. 37(b)(2)(C), rather than to dismiss the complaint.
[7] That section provides:
A foreign corporation to which this chapter is applicable shall procure a certificate of authority from the Mayor before it conducts affairs in the District, but no foreign corporation shall be entitled to procure a certificate of authority under this chapter to conduct in the District any affairs which a corporation organized under this chapter is not permitted to conduct. A foreign corporation shall not be denied a certificate of authority by reason of the fact that the laws of the state or country under which such corporation is organized governing its organization and internal affairs differ from the laws of the District, and nothing in this chapter contained shall be construed to authorize the District to regulate the organization or the internal affairs of such corporation.
[8] By purchasing the Boston House for use as its executive headquarters, Synanon was doing sufficient business in the District to require a certificate of authority. See Ferguson Contracting Co. v. Coal & Coke Ry. Co., 33 App.D.C. 159, 170 (1909). See also 17 FLETCHER CYCLOPEDIA OF THE LAW OF PRIVATE CORPORATIONS § 8486 (R. Eickhoff & R. Klaus ed. 1977).
[9] Since the task of regulating foreign nonprofit corporations and of determining when such corporations will be permitted to operate in the District of Columbia is delegated by statute to the Mayor, it cannot be argued that the zoning authorities in the District have the power to determine whether a foreign corporation is or is not a nonprofit organization for purposes of the zoning law. Although the zoning regulations contain a definition of “nonprofit organization,” see 11 DCMR § 199 (1984), that definition must be viewed as a guideline for non-corporate organizations which, unlike Synanon, are not registered with any state authority as nonprofit in nature. For it cannot be argued that the Board of Zoning Adjustment is empowered to independently review the actions of a corporation that is registered under the laws of a state as a nonprofit organization and is seeking to establish an office in an S-P zoned area, in order to determine whether it is truly nonprofit in character. The Board has neither the resources nor the expertise to conduct such an inquiry. The issuance of a certificate of authority by the Mayor permitting a foreign corporation to transact business in the District of Columbia must be conclusive upon the Zoning Board in its evaluation of a proposed use that is permitted only to a nonprofit corporation under the zoning regulations.
[10] See also Fritts v. Palmer, 132 U.S. 282, 289-90, 10 S.Ct. 93, 95, 33 L.Ed. 817 (1889):
If the legislature had intended to declare that no title should pass under a conveyance to a foreign corporation purchasing real estate before it acquires the right to engage in business in the State, and that such a conveyance should be an absolute nullity as between the grantor and grantee, leaving the grantor to deal with the property as if he had never sold it, that intention would have been clearly manifested.
[11] See also Federal Loose Leaf Corp. v. Woodhouse Stationery Co., supra, 163 F.Supp. at 483 (purpose of certificate of authority requirement in the District is not “`to put into the hands of those[] with whom [foreign corporations] may contract … a weapon of substantial defense, which might in conceivable cases amount to immunity from liability; but its aim is rather to bring foreign corporations under the supervision and regulation of state officials'” [citation omitted]); Hill-Lanham, Inc. v. Lightview Dev. Corp., supra, 163 F.Supp. at 476 (same).
[12] That section provides, in part: “The defense that a foreign corporation is doing business in the state without qualifying is waived unless it is pleaded by the defendant at an early stage of the proceedings.”
[13] In Loughran, the Supreme Court considered an argument by a party defendant that recovery under a complaint should be forbidden where the plaintiff’s status granted by another jurisdiction would not have been obtainable in the forum state, and the relief requested by the plaintiff could only be obtainable if its status was recognized by the forum. The defendant argued that the Constitution’s full faith and credit clause does not require the courts of a given jurisdiction to recognize a public act or record of another jurisdiction which is contrary to the public policy of the State of the forum. The Court held that since the alleged illegality related only to the “status” of the plaintiff it was therefore collateral to the issues in the case, and the defendant was not permitted to raise or take advantage of the defense of illegality. As the Loughran Court noted, “[e]quity does not demand that its suitors shall have led blameless lives.” Id. at 229, 54 S.Ct. at 689.

2. Synanon Church, Appellant, v. United States of America., 820 F.2d 421 (D.C. Cir. 1987)

Gary Gray, Atty., Dept. of Justice, with whom Roger M. Olson, Atty. Gen., Michael L. Paup, Robert S. Pomerance, Attys., Dept. of Justice and Joseph E. diGenova, U.S. Atty., Washington, D.C., were on the brief, for appellee.

Before RUTH BADER GINSBURG and WILLIAMS, Circuit Judges, and HAROLD H. GREENE,* District Judge.

Opinion for the Court filed by District Judge HAROLD H. GREENE.

HAROLD H. GREENE, District Judge:

This is an appeal from the dismissal by the District Court of an action brought by appellant Synanon Church, Inc., in which Synanon sought a declaratory judgment that it qualifies as a tax-exempt organization under section 501(c)(3)1 of the Internal Revenue Code of 1954. 26 U.S.C. Sec . 7428 (1982).2 That dismissal was based upon a holding that Synanon had committed a fraud on the court, a holding which was based, inter alia, on the preclusive effect the court accorded to a finding by the Superior Court of the District of Columbia in a prior case that Synanon had willfully destroyed evidence. See Synanon Foundation, Inc. v. Bernstein, No. 7189-78 (D.C.Sup.Ct. October 12, 1983), aff’d, 503 A.2d 1254 (D.C.App.1986).3 Synanon Church v. United States, 579 F.Supp. 967, 972-76 (D.D.C.1984). Synanon argues that the doctrine of issue preclusion4 could not support the dismissal on the facts of this case.

* Discussion of Synanon’s challenge to the dismissal of its action must begin with a review of the Superior Court’s decision in Bernstein. That case involved a claim by Synanon that the owner of an apartment building located in the District of Columbia breached his contract with Synanon by refusing to sell the building to the organization. The owner defended on the basis that the property in question was zoned for use exclusively by non-profit organizations and that, as he understood it, Synanon was not a non-profit corporation. While discovery was proceeding, the defendant moved to dismiss the action on account of an alleged fraud on the court. Specifically, it was asserted that certain officers of Synanon had destroyed relevant documents and tapes, thereby precluding compliance with legitimate discovery requests. According to the defendant, the destroyed documents and tapes dealt, inter alia, with “violence, money, purchase of guns, legal terror tactics, Holy War, changing partners and love match.” Bernstein, No. 1789-78, slip op. at 54a.

After an eleven-day evidentiary hearing, Judge Braman of the Superior Court granted the motion to dismiss, upon his conclusion that “the evidence clearly and convincingly establishes a willful, deliberate and purposeful scheme to destroy … extensive amounts of evidence and discoverable materials which probably would have had a dispositive bearing upon Synanon’s complaint, that is its non-profit status….” Id. at 63a.5 Finding the destroyed documents and tapes to be relevant to the issues presented in the case, the court held that these documents bore on Synanon’s status as a non-profit corporation inasmuch as they contained information regarding the advocacy of violence and the deflection by Synanon of corporate monies to private use.6 Id. at 41a, 53a-54a, 59a.7 The court also stated that the destroyed evidence would have been “the best evidence to show that Synanon did not qualify as a non-profit corporation, id. at 57a, and that the destruction was prejudicial to defendant. Id. at 60a.8 Ultimately, the court found that the cover-up by Synanon of its scheme to destroy material documents and tapes, various disingenuous discovery responses, and false testimony given by Synanon’s legal department to aid that cover up constituted a “gross fraud upon the Court.” Id. at 61a-64a. Citing abuse of the discovery process and fraud on the court, Judge Braman dismissed the complaint. Synanon appealed.

While its appeal was pending before the District of Columbia Court of Appeals, Synanon filed the present action in the District Court under 26 U.S.C. Sec . 7428 seeking a declaratory judgment that it qualifies as a tax-exempt “religious or charitable” organization.9 The Internal Revenue Service maintained in defense that Synanon did not operate exclusively for tax-exempt purposes within the meaning of section 501(c)(3); that Synanon’s corporate earnings inured to the benefit of private individuals; and that ranking Synanon officials routinely incited and perpetrated violent and illegal acts, in contravention of the principle set forth in Bob Jones University.

In response to discovery demands made by the government, Synanon failed to produce many of the requested documents, advising the court upon inquiry that it had never concealed from or misrepresented to the IRS any relevant documents or facts.10 The government, which learned of Synanon’s earlier project to destroy tapes and documents, moved that Synanon be required to account for the missing evidence or face dismissal of the complaint. On August 17, 1983, the court ordered Synanon to produce “[a] complete and detailed record and accounting of all tape recordings and related documents and records destroyed or altered by Synanon.” Joint Appendix at 144. Synanon responded by stating that it had already produced all the responsive documents it had in its possession, and it explained that any other materials requested had been “consistently stolen, borrowed or recycled” through no fault of its own. Id. at 151.

The court found this response to be unsatisfactory, and at a hearing held on October 21, 1983, it directed Synanon’s counsel to produce immediately any “information that was either secreted, hidden or otherwise treated in that manner,” together with any “inventory or record” of materials already destroyed. Synanon’s response again denied any knowledge of any items that were destroyed, and it complained that unethical acts by the government had frustrated its efforts to identify the documents.

Upon the government’s motion, the District Court dismissed the complaint, holding that Synanon had committed a fraud on the court by, inter alia, willfully and systematically destroying and altering an extensive number of documents and tapes relevant to a determination of Synanon’s tax-exempt status. Synanon Church, 579 F.Supp. at 972. It was the court’s reasoning that the Superior Court’s decision in Bernstein precluded Synanon from arguing that it had not willfully destroyed discoverable materials.

Two years later, the D.C. Court of Appeals affirmed the Superior Court’s decision in Bernstein. After noting that Judge Braman’s dismissal order was predicated both on abuse of the discovery process and on fraud on the court, the court stated that its affirmance rested only upon the theory of fraud on the court. The majority found “ample evidence in the record” to support the Superior Court’s conclusion that the involvement of the Synanon executives and attorneys in the fraud, their subornation of perjury, and their own false statements to the court constituted a fraud on the court warranting dismissal of the complaint. Synanon Foundation, 503 A.2d at 1262.

According to the appellate court, the fraud perpetrated by the Synanon executives and attorneys involved the “sponsorship and supervision of a massive program to destroy damaging and incriminating information contained in the Synanon archives.” Id. at 1262-64. The court also noted that Synanon’s attorneys made false statements to the trial court regarding the availability of relevant evidence, indicating that the documents and tapes sought for discovery merely could not be found when, in fact, the attorneys had themselves been involved in the destruction of the very documents and tapes that had been requested.

The present appeal was filed after the D.C. Court of Appeals had issued its decision in Synanon Foundation. Synanon asserts here that since the D.C. Court of Appeals affirmed the Superior Court only on the basis of fraud on the court, the Bernstein trial court’s finding of willful destruction of evidence carried no preclusive effect. Alternatively, Synanon contends that, even if issue preclusion is appropriate here, the Superior Court’s finding of willful destruction cannot constitute a basis for dismissal by the District Court because of that court’s failure to make certain findings. See Part IV, infra.


The doctrine of issue preclusion holds that once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive against a party to the prior proceeding in a subsequent suit based on a different claim. Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979); Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n. 5, 99 S.Ct. 645, 649, n. 5, 58 L.Ed.2d 552 (1979); Carr v. District of Columbia, 646 F.2d 599, 602 (D.C.Cir.1980). On this basis, Judge Braman’s decision in the Superior Court regarding Synanon’s document destruction clearly would have carried preclusive effect in the District Court with respect to the destruction issue but for the D.C. Court of Appeals’ decision. However, if a trial court decides a matter on alternative grounds, and an appellate court affirms on only one of these grounds, the preclusive effect is limited to the ground of affirmance. United States v. $149,345, 747 F.2d 1278, 1280-82 (9th Cir.1984); United States Gypsum Co. v. Schiaro, 668 F.2d 172, 184 (3d Cir.1981), cert. denied, 456 U.S. 961 , 102 S.Ct. 2038, 72 L.Ed.2d 485 (1982); Stebbins v. Keystone Insurance Co., 481 F.2d 501, 507 n. 13 (D.C.Cir.1973).

It is on this refinement of the preclusion doctrine that Synanon relies. Synanon contends that, since the D.C. Court of Appeals affirmed only on the basis of fraud on the court, and not on the basis of abuse of the discovery process, preclusive effect may not be accorded to the Superior Court’s finding of willful destruction of evidence. It follows, so the argument goes, that the District Court’s decision which gave preclusive effect to the Superior Court’s willful destruction of evidence finding cannot be sustained.11

While we agree with Synanon that preclusive effect may not be accorded to the Superior Court’s holding that there was an abuse of discovery process, we do not agree with the assumption implicit in Synanon’s argument that the Superior Court’s finding of willful destruction of evidence related only to the discovery abuse prong of that court’s holding. We think it to be clear from the record that the Superior Court’s conclusion with respect to the Synanon fraud on the court rested in substantial part upon the court’s factual finding that Synanon had willfully destroyed evidence just as did its conclusion with respect to abuse of the discovery process.

According to the Superior Court, the fraud committed by the Synanon executives and attorneys involved the “sponsorship and supervision” of the scheme to destroy the documents and tapes sought and the misrepresentations made by Synanon attorneys to the Superior Court regarding the availability of the destroyed documents and tapes. Indeed, the holding of fraud on the court was necessarily predicated upon the court’s finding that pertinent documents and tapes had been destroyed by Synanon: absent the destruction, the Synanon executives and lawyers who sponsored it would not have made, would not have had any reason to make, the misrepresentations regarding the destroyed documents which constituted the fraud on the court.

We think it is also clear that, whatever else it may have done, the D.C. Court of Appeals did not reject but sustained Judge Braman’s finding that Synanon had been guilty of destroying evidence. Synanon relies to the contrary upon a separate statement by Judge Mack who was also the author of the principal D.C. Court of Appeals’ Opinion. In that separate statement, Judge Mack indicated that she did not believe Synanon’s nonprofit status or its violent activities to be relevant to the issues raised by “Synanon’s relatively uncomplicated action for rescission” of the contract for the sale of real property, Synanon Foundation, 503 A.2d at 1266-67, especially since the Superior Court had no authority to revoke the organization’s nonprofit status.

However, there is nothing in Judge Mack’s separate statement that undermines in any way either the conclusion she reported for a unanimous court that Judge Braman had properly dismissed the action on the basis of the perpetration of a fraud on the court or the underlying findings regarding the destruction of documents. Although the separate statement mentions with disapproval Judge Braman’s decision to grant the motion to dismiss based upon Synanon’s destruction of evidence, Synanon Foundation, 503 A.2d at 1264, this was done strictly in the context of Judge Mack’s discussion of the discovery abuse question. That disapproval did not, it could not, detract from Judge Mack’s own numerous references to documents destruction in the majority opinion she also authored in which, as noted above, the D.C. Court of Appeals upheld Judge Braman with respect to his fraud-on-the-court ruling. That majority opinion of course represents the relevant holding for issue preclusion purposes.12


Upon this state of the various proceedings, the answer to the question whether the Superior Court’s finding of willful destruction of evidence may be accorded preclusive effect depends upon whether this Court will follow the so-called Evergreens rule, which limits preclusion to “ultimate facts,” or the view set forth in the Restatement (Second) of Judgments Sec. 27 comment j, which applies the rule of issue preclusion to any fact determination essential to the judgment.

The Evergreens rule, propounded by Judge Learned Hand in The Evergreens v. Nunan, 141 F.2d 927, 928 (2d Cir.1944), provides that no fact decided in the first litigation can conclusively establish anything for purposes of the second action except an ultimate fact. While this rule gained acceptance initially, it has more recently been subjected to frequent criticism. Phillips v. United States, 502 F.2d 227, 230 & n. 17 (4th Cir.1974), vacated on other grounds, 424 U.S. 961, 96 S.Ct. 1453, 47 L.Ed.2d 728, cert. denied, 429 U.S. 1024, 97 S.Ct. 644, 50 L.Ed.2d 626; Overseas Motors, Inc. v. Import Motors, Ltd., 375 F.Supp. 499, 519, 523-24 (D.C.Mich.1974), aff’d, 519 F.2d 119 (6th Cir.1975), cert. denied, 423 U.S. 987, 96 S.Ct. 395, 46 L.Ed.2d 304.13 That criticism, by both courts and commentators, is based primarily upon the difficulty in administering a distinction between ultimate and mediate facts, and the lack of correspondence of such a distinction to any intelligible reasons for limiting preclusion. See Heckman, Collateral Estoppel as the Answer to Multiple Litigation Problems in Federal Tax Law: Another View of Sunnen and The Evergreens, 19 Case W.Res. 230, 236-37, 248-50, 252-53 (1968); Polasky, Collateral Estoppel–Effects of Prior Litigation, 39 Iowa L.Rev. 217, 237 (1954).

That is so because even though a fact may be regarded in theory as less than an ultimate fact, the parties may have expended great effort in proving whether or not that fact existed, and the fact may even have been regarded by everyone involved in the litigation as the key issue in a dispute. In these circumstances, so the critics of Evergreens state, the rule is at odds with the purposes of the doctrine of issue preclusion: the conservation of judicial resources and the fostering of reliance on prior judicial action by minimizing the possibility of inconsistent decisions and by protecting a prevailing party from vexatious litigation. See Montana, 440 U.S. at 153-54, 99 S.Ct. at 973-74.

On this basis, many courts, including the Second Circuit itself,14 have ignored the Evergreens rule,15 and they have measured the scope of preclusion, not by a distinction between ultimate and mediate facts, but rather by focusing more directly on the quality and extensiveness of litigation in the first action. For that reason too, the Restatement (Second) of Judgments Sec. 27 comment j has rejected the distinction between ultimate and evidentiary facts, instead according preclusive effect to determinations that are essential or necessary to the judgment.

This Court has several times indicated its preference for the “essential” or “necessary” standard of the Restatement, as distinguished from the “ultimate fact” standard of Evergreens, American Employers Insurance Co. v. American Security Bank, 747 F.2d 1493, 1498 (D.C.Cir.1984); Otherson v. Department of Justice, 711 F.2d 267, 273 (D.C.Cir.1983); Association of Bituminous Contractors v. Andrus, 581 F.2d 853, 860 (D.C.Cir.1978); National Savings & Trust Co. v. Rosendorf, 559 F.2d 837, 838-39 (D.C.Cir.1977); Stebbins, 481 F.2d at 506-07, and we now once again confirm that preference. Accordingly, we hold, following the Restatement, that preclusive effect may be accorded to a decision on an issue if that issue was “actually recognized by the parties as important and by the trier of fact as necessary to the first judgment.” Restatement (Second) of Judgments Sec. 27 comment j.

Thus, the proper inquiry in this case is whether the Superior Court’s finding of willful destruction of evidence was essential or necessary to its holding of fraud on the court. The answer to that inquiry must clearly be in the affirmative. The fraud Synanon committed on the Superior Court was the scheme instituted by its high officers and its legal department to cover up and conceal the destruction of discoverable materials by giving false testimony in deposition and before the Superior Court. Bernstein, No. 7189-78, slip op. at 63a. As we explain in Part II, supra, if Synanon had not destroyed discoverable materials, there would have been nothing to cover up, there would have been no need or occasion to make misrepresentations to the court, and no fraud would have been committed on the court. In short, the determination that Synanon willfully destroyed evidence was necessary, even essential, to the holding of fraud on the court. Since the D.C. Court of Appeals affirmed that fraud holding,16 the District Court could properly give preclusive effect to the Superior Court’s finding that discoverable evidence had been willfully destroyed.


Synanon argues that, even if the Superior Court’s finding could appropriately be given preclusive effect, it could not constitute a valid basis for a dismissal of the action by the District Court in the absence of specific findings by that court of relevance, lack of cumulativeness of the destroyed evidence, and prejudice to appellees. This argument, too, lacks merit, for several reasons.

First, contrary to Synanon’s claim, the District Court did take account of the relevance of the destroyed materials to the central issue before it. Indeed, the court specifically stated that “the action must be dismissed due to plaintiff’s willful, systematic, and extensive destruction and alteration of documents and tapes relevant to a determination of Synanon’s tax-exempt status.” Synanon Church, 579 F.Supp. at 972 (emphasis added).17

Second, a party which intentionally and willfully destroys discoverable materials is poorly situated to require the making of a specific finding that the destroyed evidence is not cumulative. See Alexander v. National Farmers Organization, 687 F.2d 1173, 1205 (8th Cir.1982), cert. denied, 461 U.S. 937 , 103 S.Ct. 2108, 77 L.Ed.2d 313 (1983). The occurrence of a cover-up raises a presumption that disclosure of the materials would be damaging, see Hammond Packing Co. v. Arkansas, 212 U.S. 322, 350-51, 29 S.Ct. 370, 379-80, 53 L.Ed. 530 (1909), hence not merely cumulative. In any event, it is clear from the District Court’s opinion that it found the destroyed evidence to be not merely cumulative, for it repeatedly emphasized the value of the destroyed evidence to the government’s case. In fact, the court explicitly noted that Synanon “willfully destroyed the most probative evidence of its true claim to tax-exempt status.” Synanon Church, 579 F.Supp. at 975.

Finally, the District Court made adequate findings of prejudice to the government by Synanon’s destruction of evidence.18 As stated above, the court found that the destroyed documents were the “most probative evidence” pertaining to Synanon’s entitlement to tax-exempt status. Without the “most probative evidence” of Synanon’s claim–presumably negative to that claim–the IRS was necessarily prejudiced in presenting its case.19


We conclude that Synanon was bound in this litigation by the Superior Court’s finding in Bernstein that the organization willfully destroyed evidence relevant to its entitlement to tax-exempt status. We also hold that the District Court made sufficient findings of relevance and lack of cumulativeness of the destroyed evidence and of prejudice to the government to permit the court to apply issue preclusion against Synanon. The District Court’s dismissal on the basis of fraud on the court is therefore


* Of the United States District Court for the District of Columbia, sitting by designation pursuant to 28 U.S.C. Sec . 292(a)

1 Section 501(c)(3) grants tax exemption to entities “organized and operated exclusively for religious, charitable scientific … or educational purposes, … no part of the net earnings of which inures to the benefit of any private shareholder or individual….”

2 Section 7428 of the Internal Revenue Code enables an organization to obtain a declaratory judgment concerning its initial or continuing classification under section 501(c)(3)

3 Alternatively, the District Court held that dismissal was justified under Rules 16(f) or 41(b), Fed.R.Civ.P., for failure of Synanon to comply with pretrial orders issued on August 17, 1983 and October 21, 1983. We do not find it necessary to address this question, as our holding on the issue preclusion doctrine disposes of this appeal

4 The doctrine was traditionally known as collateral estoppel, but in recent years the phrase issue preclusion has gained greater currency. This is based on the proposition that, as Professor Allan Delker Vestal has suggested, the language of civil procedure would be clearer and more descriptive if the terms “issue preclusion” and “claim preclusion” replaced the traditional labels of collateral estoppel and res judicata. Levin & Leeson, Issue Preclusion Against the United States Government, 70 Iowa L.Rev. 113, 113 (1985) (citing Ginsburg, The Work of Professor Allan Delker Vestal, 70 Iowa L.Rev. 13, 16 (1984)). The Restatement (Second) of Judgments now uses these new terms. Restatement (Second) of Judgments, introduction at 1 (1982)

5 The court found that the scheme to destroy the documents and tapes was carried out under the direction of one Steve Simon, Director of Archives of Synanon, with the knowledge and cooperation of Synanon’s legal department. Bernstein, No. 7189-78, slip op. at 62a-63a

6 To support its theory of relevance, the Superior Court relied in part on the principle set forth in Bob Jones University v. United States, 461 U.S. 574, 591-92, 103 S.Ct. 2017, 2028-29, 76 L.Ed.2d 157 (1983), that the activities of an organization must be consistent with public policy to qualify it as a tax-exempt, non-profit organization

7 The titles of some of the tapes destroyed reflect their relevance to the issue of whether Synanon qualifies as a tax-exempt organization: “Holy War: CED [Charles E. Dederich] Awaits the Sound of Cracking Bone”; “CED Intends to Destroy Attorney Morantz”; “Department of Health: Investigate Sex Lives/Break Knees”; “People Should Be Terrified of Synanon”; “CED: $30,0,000 Give-Away-Address”; “CED Wealth”; “CED, Marty: CED’s Investments”; “Money Distribution”; “Buying Diamonds”; and “It’s Better to be Rich.” Supplemental Appendix at 11-18

8 Supporting its finding of prejudice, the court relied upon the principle that [w]here willful destruction of evidence occurs, the inference is that the destruction was of materials adverse to the party who brings about the destruction….” Bernstein, No. 7189-78, slip op. at 61a

9 The IRS had revoked Synanon’s tax-exempt status for the years 1977 and 1978

10 Affidavit of Philip C. Bourdette, Joint Appendix at 126

11 Synanon does not contend that the District Court erred in that regard, for that court’s decision was issued before the D.C. Court of Appeals had narrowed Judge Braman’s ruling. Rather, it is Synanon’s position that the subsequent D.C. Court of Appeals opinion precludes any reliance on the Braman ruling

12 Moreover, Judge Mack’s separate statement itself presents no obstacle to reliance on the Superior Court’s findings on the document destruction question, for that statement, as noted supra, was concerned with the relevance of Synanon’s activities, including document destruction, to the real estate dispute, not with the issue whether such destruction had, in fact, taken place

13 Although the Supreme Court in 1957 endorsed the Evergreens rule in Yates v. United States, 354 U.S. 298, 337-38, 77 S.Ct. 1064, 1086-87, 1 L.Ed.2d 1356 (1950), its refusal in that case to accord preclusive effect to prior findings was based upon the extreme remoteness of the evidentiary issues from the ultimate issues involved in the second case. Indeed, the Court had expressly reserved the possibility that exceptions may be made to the Evergreens rule. Id. We believe that, even if the Evergreens test, properly adjusted for the Yates remoteness formula, were applied here, the District Court’s grant of preclusive effect to the Superior Court’s finding of willful destruction of evidence would probably have to be sustained, inasmuch as that finding was intimately connected with the latter court’s holding of fraud on the court

14 Wickham Contracting Co. v. Board of Education of City of New York, 715 F.2d 21, 25 (2d Cir.1983). See generally United States v. Kramer, 289 F.2d 909, 916-19 (2d Cir.1961) (suggesting that the Evergreens court did not intend to draw a rigid line and that that decision could be explained on the ground that different issues were involved in the two proceedings)

15 Coward v. Colgate-Palmolive Co., 686 F.2d 1230, 1234-35 (7th Cir.1982), cert. denied, 460 U.S. 1070 , 103 S.Ct. 1526, 75 L.Ed.2d 948 (1983); Gibson v. Missouri Pac. R.R., 579 F.2d 890, 892 (5th Cir.1978), cert. denied, 440 U.S. 921 (1979); Singer v. A. Hollander & Son, 202 F.2d 55 (3d Cir.1953); Reid v. United States, 421 F.Supp. 1244 (E.D.Cal.1976); International Rys of Central America v. United Brands Co., 405 F.Supp. 884 (D.C.N.Y.1975), aff’d, 532 F.2d 231 (2d Cir.), cert. denied, 429 U.S. 835 , 97 S.Ct. 101, 50 L.Ed.2d 100 (1976)

16 Moreover, as discussed above, that court actually relied on proof of evidence destruction in reaching its conclusion in that regard

17 The evidence may or may not have been relevant to the Superior Court lawsuit involving the sale of real estate; but there can be no serious contention that it would not have been relevant to an action for tax exemption. See Bob Jones University, 461 U.S. at 591-92, 103 S.Ct. at 2028-29

18 It is not at all clear that, on the facts of this case, the District Court was required to make such findings. Willful destruction of evidence by a party properly raises the inference that the materials destroyed were adverse to the party which brings about the destruction. Washington Gas Light Co. v. Biancaniello, 183 F.2d 982 (D.C.Cir.1950). To be sure, Synanon attempted to rebut this inference by arguing that the government had sufficient evidence, without the destroyed documents, to support its ruling revoking Synanon’s tax-exempt status. This argument dangerously resembles a concession by Synanon that the suit it brought in the District Court was devoid of merit

19 Additionally, the District Court was entitled to rely on the Superior Court’s explicit findings as to the identity of the destroyed documents, which served as the basis for the District Court’s finding of prejudice to the defendant with respect to the issue of Synanon’s tax-exempt status

3. in Re Sealed Case., 754 F.2d 395 (D.C. Cir. 1985)

Appeals from the United States District Court for the District of Columbia (D.C. Misc. Nos. 84-0144 & 45).

William Gray Schaffer, Washington, D.C., for appellants.

Guy L. Goodwin, Atty., Dept. of Justice, Washington, D.C., of the bar of the Supreme Court of Kansas, pro hac vice, by special leave of court, with whom Joseph E. diGenova, U.S. Atty., Washington, D.C., was on the brief, for appellee.

Before TAMM and MIKVA, Circuit Judges, and MacKINNON, Senior Circuit Judge.

Opinion for the court filed by Circuit Judge TAMM.

Separate concurring opinion filed by Circuit Judge MIKVA.

TAMM, Circuit Judge:

The Synanon Church challenges a district court order compelling its attorneys to appear before the grand jury to answer questions regarding Synanon’s alleged violations of federal law. In a memorandum opinion and order issued June 15, 1984, Chief Judge Aubrey E. Robinson of the United States District Court for the District of Columbia held that the attorneys’ invocation of the attorney-client privilege to avoid testifying was barred by the crime-fraud exception. Synanon appeals, arguing that 1) the government did not establish the requisite prima facie case of an ongoing crime or fraud sufficiently related to the attorneys’ representation to trigger the exception, and 2) even if some disclosure of otherwise privileged communications is required, the district court’s order was impermissibly overbroad. For the reasons given below, we affirm the district court’s order in all respects.


Appellant is an entity that refers to itself as the Synanon Foundation, Inc. or the Synanon Church (Synanon). It was founded as a tax-exempt, non-profit organization in 1958 by Charles Dederich for the purpose of rehabilitating drug addicts and engaging in research and public education.

Over the years, Synanon began to move out of the rehabilitative business and into a variety of more diverse and extremely lucrative investment and commercial enterprises. A large portion of the wealth generated by these activities eventually found its way into the pockets of the Dederich family and other Synanon leaders. As a result of these activities, the Internal Revenue Service (IRS) commenced an audit of Synanon in 1979 to determine whether to revoke its tax-exempt status.

In addition, Synanon began in the 1970’s to employ extreme measures to stifle media or other external scrutiny and to silence disaffected members. These measures have included lawsuits and violent attacks directed at media, former members, attorneys involved in litigation against Synanon, or anyone else viewed as an “enemy.”

As a result of the IRS audit and the extensive litigation, Synanon’s organization and internal policies became increasingly subject to discovery by opposing litigants. In response, and at the direction of Synanon executives and its legal department, Synanon embarked on a massive and systematic program to destroy and alter subpoenaed evidence or evidence sought pursuant to civil discovery requests. Affidavits of two former Synanon members who participated in this program reveal a scheme that worked substantially as follows.

The principal target of the campaign was an extensive library of tape-recorded speeches of Charles Dederich and other key discussions or pronouncements of Synanon officials. Many of the taped speeches revealed violent plots against those whom Dederich viewed as Synanon’s enemies. Others discussed the channeling of the charitable foundation’s assets into the hands of the Dederich family and other Synanon officials through salaries, bonuses, and other means.

Synanon’s archivist, Steve Simon, prepared lists of incriminating subjects and provided them to those involved in listening to and erasing tapes. In addition, Simon would receive information from Synanon’s legal department concerning specific materials being sought by opposing litigants. The archivist would collect the pertinent tapes and erase the incriminating materials, relabel them, and burn the original labels. Others were relabeled with innocuous titles to avoid subpoena and document production requests entirely.

Although most of Synanon’s litigation in the late 1970’s took place in California,1 Synanon in July 1978 commenced an action in the District of Columbia Superior Court to recover a $250,000 deposit paid in connection with the planned purchase of a building in the District of Columbia. Synanon Foundation, Inc. v. Bernstein, No. 7189-78 (D.C.Super.Ct. Oct. 12, 1983) (Bernstein ). Synanon also sued the IRS in August 1982 in the United States District Court for the District of Columbia seeking a declaratory judgment that the IRS erroneously revoked Synanon’s tax-exempt status. Synanon Church v. United States, 579 F.Supp. 967 (D.D.C.1984) (the tax case). Attorney John Doe2 has represented Synanon in both suits since September 1981. Attorney James Roe, a member of Doe’s law firm, represented Synanon from July to November of 1983.

In July 1983, the defendant in Bernstein moved to dismiss Synanon’s complaint on the grounds that Synanon had destroyed relevant evidence. Judge Braman granted the motion. In February 1984, Judge Richey dismissed the complaint in the tax case on grounds that Synanon was collaterally estopped from challenging Judge Braman’s prior findings of misconduct and that those findings established a fraud upon the courts.

Information obtained by the government during its audit of Synanon and the ensuing tax case precipitated a grand jury investigation of Synanon for possible violations of 18 U.S.C. Sec . 1505 (1982) (obstruction of justice), 18 U.S.C. Sec . 1001 (1982) (fictitious or fraudulent statements in department or agency matters), 18 U.S.C. Sec . 1503 (1982) (influencing officers or jurors), 18 U.S.C. Sec . 371 (1982) (conspiracy), and 18 U.S.C. Sec . 1962 (1982) (racketeering). On May 17, 1984, the government subpoenaed Doe and Roe to testify before the grand jury regarding Synanon’s destruction and alteration of documents and records and perjury by Synanon members in the Bernstein and tax cases. Doe and Roe invoked the attorney-client privilege and refused to testify.

The government on May 18, 1984 filed an amended motion to compel testimony based upon the “crime-fraud” exception to the attorney-client privilege. The government alleged in its motion that false declarations, altered documents, and perjured testimony were presented in both courts during the period of representation by Doe and Roe and that false and altered documents were presented in pleadings filed by Doe. In support of that motion, the government submitted five items of evidence: 1) a sworn declaration dated July 8, 1983 by Bette Fleishman, a Synanon member who, at the direction of Synanon executives, participated in the destruction of subpoenaed evidence; 2) a sworn declaration dated September 12, 1983 by George Farnsworth, a former Synanon member who worked on a secret Synanon project to destroy and alter information in Synanon’s computer indices of the tape recordings and transcripts contained in the Synanon archives; 3) Superior Court Judge Leonard Braman’s October 12, 1983 ruling and opinion in Bernstein finding that Synanon had willfully destroyed and altered Synanon audio tapes that had been requested by the defense; 4) a ruling and opinion by United States District Court Judge Charles R. Richey dated February 9, 1984 dismissing the tax case because of Synanon’s “willful, systematic, and extensive destruction and alteration of documents and tapes relevant to a determination of Synanon’s tax-exempt status”; and 5) an in camera submission demonstrating Synanon’s continuing concealment of its scheme of evidence destruction and alteration throughout both the Bernstein and the tax cases.

The district court found that the government had made a prima facie showing of ongoing crimes and frauds during the period that Doe and Roe represented Synanon and that the crime-fraud exception to the attorney-client privilege therefore applied. Specifically, the court found that “Synanon perpetrated a continuing fraud connected with, but not limited to, the actual destruction of records. The later cover-up was designed to further an ongoing conspiracy to manipulate the process of the courts for Synanon’s own ends.” The court also found that this fraud necessarily involved the attorneys. The court therefore ordered Doe and Roe to appear before the grand jury and answer questions in connection with the violations. In response to the order, Doe and Roe filed affidavits with the district court stating that they felt compelled by the Code of Professional Responsibility to comply with the order of the court and would testify over the objections of their client rather than place themselves in contempt. This appeal by Synanon followed.


A. Appealability

An order in an ongoing proceeding to compel testimony or document production ordinarily is not appealable unless the party to whom it is addressed refuses to respond and is held in contempt. In re Sealed Case, 737 F.2d 94, 97 (D.C.Cir.1984) (Sealed Case III ). In cases where the person subpoenaed is not the holder of a privilege, however, appellate review may be available prior to the execution of the order compelling testimony. See Perlman v. United States, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950 (1918). The Perlman exception is based on the rationale that a witness whose privilege is not at stake has no incentive to preserve the privilege by committing contempt of court.

This court recently held that when circumstances make it unlikely that an attorney would risk a contempt citation in order to allow immediate review of a claim of privilege, the Perlman exception will apply. Sealed Case III, 737 F.2d at 97. See also United States v. Nixon, 418 U.S. 683, 691, 94 S.Ct. 3090, 3099, 41 L.Ed.2d 1039 (1974). Doe and Roe have sworn in affidavits that they will comply with the district court’s order and testify over the objections of their clients. We therefore accept immediate appellate review of Synanon’s claim of privilege under the Perlman exception.

B. The Crime-Fraud Exception

Communications otherwise protected by the attorney-client privilege are not protected if the communications are made in furtherance of a crime, fraud, or other misconduct. Clark v. United States, 289 U.S. 1, 14, 53 S.Ct. 465, 469, 77 L.Ed. 993 (1933); In re Grand Jury Subpoena Duces Tecum, 731 F.2d 1032 (2d Cir.1984); In re Sealed Case, 676 F.2d 793, 812 (D.C.Cir.1982) (Sealed Case II ). To overcome a claim of privilege, the government need not prove the existence of a crime or fraud beyond a reasonable doubt. Rather, the government must first make a prima facie showing of a violation sufficiently serious to defeat the privilege,3 and second, establish some relationship between the communication at issue and the prima facie violation. A prima facie violation is shown if it is established that the client was engaged in or planning a criminal or fraudulent scheme when it sought the advice of counsel to further the scheme. In re Murphy, 560 F.2d 326, 337 (8th Cir.1977). See also Sealed Case II, 676 F.2d at 814-15. The government satisfies its burden of proof if it offers evidence that if believed by the trier of fact would establish the elements of an ongoing or imminent crime or fraud.4 See Sealed Case II, 676 F.2d at 815. The determination that a prima facie showing has been made lies within the sound discretion of the district court and may be disturbed on appeal only if the district court abused its discretion. In re Berkley & Co., 629 F.2d 548, 553 (8th Cir.1980); In re September 1975 Grand Jury Term, 532 F.2d 734, 737 (10th Cir.1976).

The Fleischman and Farnsworth affidavits, based on the personal observations and participation of the affiants, reveal in extraordinary detail a pervasive and systematic scheme to destroy or alter subpoenaed evidence. The affidavits further reveal Synanon’s continuing efforts to conceal its wrongdoing before courts in which it was involved in litigation–all with the knowledge and participation of Synanon’s legal department. Synanon archivist, Steve Simon, for example, routinely perjured himself in litigation in which Synanon was involved, as did other Synanon officials. The affidavits also show that the computer tape inventory presented by Simon as Exhibit 1 to his November 1981 testimony given in Bernstein had been deliberately falsified.

In addition, the government offered Judge Braman’s and Judge Richey’s orders dismissing the cases before them as further evidence of Synanon’s fraudulent misconduct. Judge Braman heard eleven witnesses, received 78 exhibits and an approximately equal number of subexhibits on the charge that Synanon destroyed evidence, concealed its activities by perjury, and committed fraud upon the court. Based on his review of the evidence, including the Fleishman and Farnsworth affidavits, Judge Braman concluded

that the evidence clearly and convincingly establishes a willful, deliberate and purposeful scheme to … destroy extensive amounts of evidence and discoverable materials which probably would have had a dispositive bearing upon Synanon’s complaint….

The scheme further had as its purpose to cover up and conceal this destruction of evidence and discoverable materials by giving false testimony in deposition and before this Court in the hearing before Judge Fauntleroy, and further, to cover up and conceal the destruction by being disingenuous in the representations before this Court at the January, 1980 hearing before Judge Thompson, and in its responses to the defendants’ discovery.

Judge Richey reached a similar conclusion and dismissed the declaratory judgment action with prejudice due to

plaintiff’s willful, systematic, and extensive destruction and alteration of documents and tapes relevant to a determination of Synanon’s tax-exempt status. This “egregious misconduct” amounts to “a scheme to interfere with the judicial machinery performing the task of impartial adjudication, … by preventing the opposing counsel from fairly presenting … [its] case or defense.” Pfizer, Inc. v. International Rectifier Corp., 538 F.2d 180, 195 (8th Cir.1976). More than mere fraud between the parties, or an isolated instance of perjury, plaintiff has compounded its “unconscionable plan,” England v. Doyle, 281 F.2d 304, 309 (9th Cir.1960), by its indisputable misconduct before this court.

Judge Richey further found that “Synanon has continued its misconduct and perpetuated this fraud up to the present”–February 9, 1984.

The in camera exhibit provided a further account of the scheme of evidence destruction and the ensuing cover-up in both Bernstein and the tax case. In response to Judge Richey’s order requiring Synanon to account for the destroyed tapes, for example, Synanon produced as part of a pleading signed by attorney Doe a fraudulent inventory of the Charles E. Dederich tape library. In addition, although Synanon general counsel Philip Bourdette misrepresented and concealed information about Synanon’s archive system throughout the IRS audit, he stated in a summary affidavit filed with the court in the tax case that no such concealment or misrepresentation had ever taken place.

Synanon argues that these allegations of misconduct do not rise to the level of seriousness contemplated by the court in Sealed Case II, and therefore invocation of the exception is unwarranted. Synanon makes the astonishing assertion that the alleged wrongdoing–perjured testimony, document destruction, and similar misconduct–constitutes mere discovery abuse for which Synanon has been adequately punished by dismissal of its two lawsuits. Such a characterization seems disingenuous: the grand jury’s investigation into Synanon’s scheme of evidence destruction and concealment thereof involves possible federal crimes, not mere frauds between private litigants.5 Indeed, that perjury and obstruction of justice constitute “serious” misconduct strikes us as a relatively uncontroversial proposition.

Synanon claims, however, that the impact of its abuses on the adversary system “is of far less significance” than cases in which the misconduct “goes to the heart of the adversary system,” such as attempted bribery of a judge or corruption of jurors. The magnitude of the scheme of destruction and ensuing cover-up, however, belies this assertion. Synanon’s attempt to emasculate the court’s ability to ascertain the truth necessarily strikes at the very foundations of the adversary system and the judicial process. Indeed, the judicial process itself was a central target and tool of the alleged criminal and fraudulent activity at issue in this case.

In attempting to balance the important policies underlying the attorney-client privilege with those that would remove the privilege when it is abused, courts sometimes are required to draw fine lines in close cases. This case, however, is not one of them. The evidence relied on by the district court was more than circumstantial: it included actual findings of fact by courts of competent jurisdiction that Synanon had committed an ongoing fraud in litigation in which it was represented by Doe and Roe. In addition, the Fleishman and Farnsworth affidavits supported, and the in camera exhibit corroborated, the findings in every particular. Clearly, the district court correctly found that the government had sustained its burden in establishing a prima facie case of a violation sufficiently serious to defeat the privilege.

Synanon argues, however, that “mere coincidence in time between alleged acts of misconduct and the period of representation, without more” is insufficient to meet this burden, and that such a coincidence was all that was shown in this case. It also claims that there has been no prima facie showing of Synanon’s intent in consulting Doe and Roe and that such a showing is required in order to demonstrate that the representation was sought “in furtherance” of a crime or fraud. Synanon emphasizes that there is no contention or evidence that Doe or Roe were actually involved in the ongoing fraud and that Synanon’s purpose in retaining the attorneys was for the prosecution of legitimate civil lawsuits.

Doe and Roe’s knowledge of the cover-up, however, need not be established in order for the government to sustain its burden. It is well settled that an attorney’s ignorance of his client’s misconduct will not shelter that client from the consequences of his own wrongdoing.6 Regardless of whether Doe and Roe knowingly participated in the cover-up, the evidence amply supports a reasonable inference that their representation and advice in both suits assisted Synanon in carrying out its illegal and fraudulent scheme.

The government also is not required to make a specific showing of the client’s intent in consulting the attorney, especially in a case, like this one, in which the attorneys essentially served as “front men” in a scheme to subvert the judicial process itself.7 Although we agree that “mere coincidence in time,” without more, cannot support the invocation of the exception, the evidence presented to the district court clearly demonstrates more than just simple coincidence. Doe and Roe represented Synanon in litigation in which the most highly probative evidence had been destroyed and the destruction itself was the subject of an ongoing cover-up. Perjured testimony was given, and Doe and Roe were used to file and verify the authenticity of false documents. Doe and Roe thus were instrumentalities in the ongoing cover-up whether they realized it or not, and the fact that their primary role was the prosecution of legitimate lawsuits cannot whitewash Synanon’s ancillary use of the attorneys to assist in its fraudulent scheme. We therefore conclude that the district court applied the correct legal standard and properly found that the crime-fraud exception barred invocation of the attorney-client privilege.

C. The Breadth of the Exception

Clearly, the crime-fraud exception will defeat the attorney-client privilege only as to misconduct that occurred during the period of representation by Doe and Roe. Communications with Doe and Roe regarding past crimes, including misconduct that occurred during the California litigation, remain privileged. To the limited extent that past acts of misconduct were the subject of the cover-up that occurred during the period of representation, however, then past violations properly may be a subject of grand jury inquiry.

Synanon argues that the district court’s order that Doe and Roe appear before the grand jury and answer “any questions which the grand jury may ask in connection with the alleged violations” is impermissibly broad. Synanon further argues that because the district court did not review any question the government asked or proposed to ask, it failed to make the requisite findings as to whether the privileged communications at issue reasonably related to the alleged crime or fraud.

We see no reason, however, to remand this case for clarification of the scope of the order. When the district court’s opinion is read as a whole, the term “alleged violations” necessarily refers to violations that occurred during the time in which Doe and Roe represented Synanon. The government concedes that the order applies only to instances of fraud, perjury, and false document submission that transpired during the period of representation and not to prior acts or confessions beyond the scope of the continuing fraud. Such prior acts unquestionably remain within the protection of the attorney-client privilege.

Judge Robinson indicated in the transcript of the hearing of May 18, 1984 that he was prepared to rule on the propriety of each question on a question-by-question basis. This permits the court to make the requisite relatedness finding for each question to which counsel objects and is precisely the relief Synanon requested in its brief. In addition, given the nebulous distinction in this case between prior acts that remain protected by the attorney-client privilege and prior acts forming the basis of the ongoing cover-up that do not, we believe a question-by-question determination is not only appropriate but required by the circumstances. We therefore find that the scope of the order is not impermissibly overbroad.

For the foregoing reasons, the district court’s order is


MIKVA, Circuit Judge, concurring:

I join in the court’s decision but wish to stress the limits of our holding. The subpoenas we sustain today are directed solely against attorneys who represented their client in civil litigation; we thus do not decide whether communications between a criminal defense attorney and his or her client would be made unprivileged by a showing of client misconduct comparable to the one made here. In my view, the Sixth Amendment and the underlying policies of the common law privilege require heightened protection of confidential communications between lawyer and client when the lawyer is defending the client against criminal charges. In addition I note that the discussion of the crime-fraud exception in In re Sealed Case, 676 F.2d 793, 812-16 (D.C.Cir.1982) (Sealed Case II ), expresses the views of the author of the opinion but does not speak for the court. See id. at 797, 825.

1 The California litigation included, among others, suits against Time, Inc., the American Broadcasting Company, and Paul Morantz, an attorney who had frequently represented parties in suits against Synanon. According to affidavits filed in connection with this case, Synanon officials stated that the purpose of its libel suits against Time, Inc. and ABC was to punish them for unfavorable publicity and to “teach the media not to mess with Synanon.” In addition to these major lawsuits, Synanon routinely sued any individual who opposed the organization in any way, including a schoolteacher who wrote a letter to her U.S. Senator complaining about Synanon’s activities

Paul Morantz was a target of violence as well as lawsuits. On October 10, 1978, Mr. Morantz was bitten by a four foot rattlesnake placed in his mailbox by two Synanon “Imperial Marines.” Both the “Marines” and Charles Dederich pleaded nolo contendere to charges filed in connection with the attack.

2 Upon a motion by the attorneys, the district court ordered the record in this case to be sealed, and the parties to be referred to in every instance by the pseudonyms John Doe and James Roe. The district court based its decision on the need to safeguard the secrecy of this grand jury proceeding and to protect the attorneys against disclosures that might reflect adversely on their professional reputations. We see no reason to disturb the district court’s order

3 At least one court has framed the test in terms of probable cause to believe that a crime or fraud had been committed and that the communications were in furtherance thereof. See In re John Doe Corp., 675 F.2d 482, 491 & n. 7 (2d Cir.1982). As the Second Circuit noted in In re Grand Jury Subpoena Duces Tecum, 731 F.2d 1032, 1039 (2d Cir.1984), however, there is little practical difference between the two tests. “Both require that a prudent person have a reasonable basis to suspect the perpetration or attempted perpetration of a crime or fraud, and that the communications were in furtherance thereof.” Id

4 The majority of cases addressing the crime-fraud issue have dealt specifically with the work product privilege. As Judge Wright recognized in Sealed Case II, however, “[a]n exception or waiver of the work product privilege will also serve as an exception or waiver of the attorney-client privilege, since the coverage and purposes of the attorney-client privilege are completely subsumed into the work product privilege.” 676 F.2d at 812 (footnote omitted). See also In re Grand Jury Proceedings, 604 F.2d 798, 803 (3d Cir.1979) (generally, crime-fraud exception applies to the work product as well as attorney-client privilege, and in cases where the two privileges substantially overlap, there is no reason to apply different standards)

5 Synanon’s attempt to minimize the seriousness of its misconduct by characterizing it as incidental discovery abuse is inapposite. Misuse and abuse of the discovery process by litigants has been a matter of increasing concern to courts generally, and the deleterious effect on the judicial system cannot be overemphasized. See generally Renfrew, Discovery Sanctions: A Judicial Perspective, 67 CALIF.L.REV. 264 (1979); Addresses Delivered at the National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice, 70 F.R.D. 79 (1976); ABA Litigation Section, Report of the Special Committee for the Study of Discovery Abuse (1977). Since the Supreme Court’s decision in National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976), approving the imposition of severe sanctions in order to punish and deter such abuse, courts have increasingly been willing harshly to penalize litigants and lawyers who abuse the discovery process, particularly where the misconduct is as egregious as here. See, e.g., Litton Systems, Inc. v. American Tel. & Tel. Co., 700 F.2d 785 (2d Cir.1983), cert. denied, — U.S. —-, 104 S.Ct. 984, 79 L.Ed.2d 220 (1984) (affirming district court’s denial of costs and attorney’s fees to which plaintiff otherwise would have been entitled as a matter of law where plaintiff’s attorneys intentionally concealed evidence); General Atomic Co. v. Exxon Nuclear Co., Inc., 90 F.R.D. 290 (S.D.Cal.1981) (imposing sanctions upon party whose inability to produce requested documents was attributed to a deliberate strategy of concealment of evidence in anticipation of antitrust litigation). See generally E. Epstein, C. Corcoran, F. Kneger, W. Carr, An Up-Date on Rule 37 Sanctions After National Hockey League v. Metropolitan Hockey Clubs, Inc., 84 F.R.D. 145 (1979)

6 “[A] guilty client may not use the innocence or ignorance of its attorney to claim the court’s protection against a grand jury subpoena.” Sealed Case II, 676 F.2d at 812. See also In re Grand Jury Subpoena Duces Tecum, 731 F.2d at 1038; United States v. Hodge and Zweig, 548 F.2d 1347, 1354 (9th Cir.1977)

7 Synanon in effect is arguing that we place a greater burden on the government. To require a more specific showing of intent, however, would lead to either the kind of “minitrial” forbidden by the Supreme Court in United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), or a near evisceration of the exception. Sealed Case II, 676 F.2d at 815. In support of its argument, Synanon cites In re International Systems and Controls Corp. Securities Litigation, 693 F.2d 1235, 1243 (5th Cir.1982). In International Systems, the Fifth Circuit held that a showing of specific intent would be required before the disclosure of certain company documents otherwise protected by the work product privilege would be compelled. Unlike the present case, however, the movants in International Systems had made only allegations in support of its prima facie case; they had offered no other evidence. 693 F.2d at 1242

4. Beauchene v. Synanon Foundation Inc. (1979) 88 Cal.App.3d 342 , 151 Cal.Rptr. 769
[Civ. No. 43901. First Dist., Div. Four. Jan. 16, 1979.]
DONALD BEAUCHENE, Plaintiff and Appellant, v. SYNANON FOUNDATION, INC., Defendant and Respondent.
(Opinion by Christian, J., with Caldecott, P.J., and Rattigan, J., concurring.)
McGuinn & Moore, Bruce S. Osterman and David May for Plaintiff and Appellant.
David R. Benjamin for Defendant and Respondent.
Donald Beauchene appeals from a judgment of dismissal which was rendered after the court sustained a demurrer to his complaint in which he had alleged that Synanon Foundation, Inc. was liable for the intentional criminal behavior of Lynn Bentley, who injured appellant after eloping from a Synanon home.
[1] On appeal after a sustained demurrer, the court must assume the truth of the factual allegations of the complaint. (Hoyem v. Manhattan Beach City Sch. Dist. (1978) 22 Cal.3d 508, 517 [150 Cal.Rptr. 1, 585 P.2d 851].) [2] The function of a demurrer is to test the legal sufficiency of the challenged pleading. (Whitcombe v. County of Yolo (1977) 73 Cal.App.3d 698, 702 [141 Cal.Rptr. 189].) [88 Cal.App.3d 345]
Appellant in his complaint as modified by admissions in his briefs, alleges that Synanon Foundation, Inc. is a voluntary private rehabilitation institution that provides a structured or controlled environment for its residents. Its primary purpose is the rehabilitation of drug addicts, alcoholics, and other people with character disorders. With the prior approval of Synanon, California courts have sometimes sent convicted persons to Synanon rather than to a county jail or state prison. Before respondent accepts a convicted person, the person allegedly is screened and interviewed to determine whether his involvement in the program will be dangerous to himself, to Synanon, or to society generally. If respondent were to determine the candidate’s involvement would be dangerous, respondent would not accept the person, even if a court were willing to send him to the program.
Lynn Bentley was convicted of first degree burglary on May 2, 1975. The superior court admitted Bentley to probation on condition that he enter the “Synanon program and not leave said program without prior approval of the Probation Officer and the staff of Synanon.”
Prior to accepting Bentley, respondent allegedly had rejected several dangerous individuals who had been referred by the courts. When respondent accepted Bentley, respondent knew or should have known that he had a long history of behavioral difficulties, arrests, convictions, criminal confinement, and escape attempts. One superior court had ordered that Bentley, after serving time in jail for one conviction, enter the Delancey Street drug program and not leave there without approval of the program staff. The probation department later recommended that Bentley’s probation to Delancey Street be revoked, because of his inability to cooperate and comply with the rules of probation. Probation was revoked.
Respondent admitted Bentley on May 10; five days later Bentley, in violation of the court’s order and without the permission of the Synanon staff, “escaped” from the program. Bentley went on a “crime spree” that included the harming or killing of several people. On May 23, 13 days after leaving the program, Bentley shot appellant in the arm.
[3a] Appellant argues that respondent had a duty to exercise due care in accepting convicted persons into the Synanon program. Alternatively, appellant argues that respondent had an affirmative duty to prevent Bentley from leaving the program. [88 Cal.App.3d 346]
[4] Actionable negligence generally involves five elements:
(a) a defendant’s legal duty to exercise due care; (b) defendant’s breach of that duty; (c) the breach as the actual (“but for”) cause of plaintiff’s injury; (d) the breach as the proximate or legal cause of plaintiff’s injury; and (e) damages to plaintiff. (See Prosser, Torts (4th ed. 1971) p. 143; 4 Witkin, Summary of Cal. Law (8th ed. 1974) pp. 2749-2750.) Elements (b), (c), (d) and (e) are ordinarily questions of fact for a jury. The existence of a legal duty is primarily a question of law. (See 4 Witkin, supra, pp. 2755-2759.)
[3b] Appellant argues respondent is liable for Bentley’s criminal behavior under either of two theories. First, appellant argues respondent was under a duty (1) to refuse admittance to applicants whose record and history show that they constitute an unreasonably high risk, or (2) to reject all candidates who are unlikely to be rehabilitated, present a clear and immediate danger to the community, and would otherwise be jailed or imprisoned, or (3) to establish a blanket policy of refusing admittance to any felony probationer. Respondent allegedly breached the claimed duty by admitting Bentley to the program. Respondent’s officials knew or should have known that admitting Bentley, in light of his history of criminal and antisocial behavior, presented an unreasonably dangerous risk to society. Respondent’s breach was the actual cause of appellant’s injury: but for respondent’s accepting Bentley, Bentley would have been sent to prison, where he could not have harmed appellant. Respondent’s breach was the proximate cause of appellant’s injuries: Bentley’s criminal behavior was allegedly not a superseding cause. Respondent was negligent precisely because of the reasonably foreseeable likelihood that Bentley would commit criminal or antisocial acts. [5a] “If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby.” (Rest.2d Torts, § 449. See also Hoyem v. Manhattan Beach City Sch. Dist., supra, 22 Cal.3d 508, 521-522; 4 Witkin, Summary of Cal. Law, supra, at pp. 2922-2923.)
[3c] Under a second theory of liability, appellant argues that because of the special relationship that respondent undertook by accepting Bentley into its program, respondent had a duty to control Bentley’s behavior so as to prevent Bentley from “escaping” or leaving the program without authorization. Because admitting Bentley presented a risk to [88 Cal.App.3d 347] society, argues appellant, respondent breached its duty to control Bentley by not constructing “improvements to some of their physical plants so as to render them secure enough to prevent their dangerous probation inmates from escaping.”
Both theories of liability fail because of the faulty premise that respondent owed a duty of due care to appellant. [5b] Generally, a person owes no duty to control the conduct of another. Exceptions are recognized in limited situations where a special relationship exists between the defendant and the injured party, or between the defendant and the active wrongdoer. Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 435 [131 Cal.Rptr. 14, 551 P.2d 334, 83 A.L.R.3d 1166].) Appellant does not contend the first exception is applicable. (See Johnson v. California (1968) 69 Cal.2d 782, 785, 799 [73 Cal.Rptr. 240, 447 P.2d 352].) The issue is whether respondent owed appellant a duty under the second exception.
[6] “Duty” is “an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection” against the defendant’s conduct. (Prosser, Torts, supra, pp. 325-326.) The questions of duty and proximate cause are sometimes the same. (Id, p. 326; see also id, pp. 244-245; Tarasoff v. Regents of University of California, supra, 17 Cal.3d 425, 434.) [7] Principal policy considerations in deciding whether a duty exists include “the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.” Rowland v. Christian (1968) 69 Cal.2d 108, 113 [70 Cal.Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496].)
[3d] Here, the court must balance “the public interest in safety from violent assault” (Tarasoff v. Regents of University of California, supra, 17 Cal.3d 425, 440) against the public policy favoring innovative criminal offender release and rehabilitation programs. (County of Sacramento v. Superior Court (1972) 8 Cal.3d 479, 485 [105 Cal.Rptr. 374, 503 P.2d 1382]; Whitcombe v. County of Yolo, supra, 73 Cal.App.3d 698, 716, 717; State of California v. Superior Court (1974) 37 Cal.App.3d 1023, 1026, 1027 [112 Cal.Rptr. 706]; County of Santa Barbara v. Superior Court [88 Cal.App.3d 348] (1971) 15 Cal.App.3d 751 [93 Cal.Rptr. 406].) Although appellant’s injuries may be grievous, “[of] paramount concern is the detrimental effect a finding of liability would have on prisoner release and rehabilitation programs. Were we to find a cause of action stated we would in effect be encouraging the detention of prisoners in disregard of their rights and society’s needs.” (Whitcombe v. County of Yolo, supra, 73 Cal.App.3d 698, 716.) Each member of the general public who chances to come into contact with a parolee or probationer must risk that the rehabilitative effort will fail. (Johnson v. California, supra, 69 Cal.2d 782, 799; State of California v. Superior Court, supra, 37 Cal.App.3d 1023, 1027.)
The above cited cases applied Government Code section 845.8 to establish that a public entity or employee enjoys absolute immunity from liability for: “(a) Any injury resulting from determining whether to parole or release a prisoner or from determining the terms and conditions of his parole or release or from determining whether to revoke his parole or release. (b) Any injury caused by: (1) An escaping or escaped prisoner; (2) An escaping or escaped arrested person; or (3) A person resisting arrest.” (Gov. Code, § 845.8. But see Johnson v. California, supra, 69 Cal.2d 782, 799.) Respondent concededly is not a “public entity or public employee” within the meaning of section 845.8. But the same public policy that moved the Legislature to immunize public release and rehabilitation programs from liability–to encourage such innovations in the interests of criminal justice–compels the conclusion that respondent’s private release and rehabilitation program owed no legal duty to this appellant. In light of the purpose behind the governmental immunity, it would be incongruous to hold that, while the state is immune from liability for its decision to assign Bentley to, and his unauthorized departure from, the Synanon program, the program itself owed appellant a duty not to accept Bentley or to prevent his unauthorized departure. To hold respondent civilly liable would deter the development of innovative criminal offender release and rehabilitation programs, in contravention of public policy.
Because respondent owed no duty of due care to appellant, the complaint failed to state a cause of action.
The judgment is affirmed.

5. United States of America, Plaintiff-Appellee, v. David R. Benjamin; Philip C. Bourdette; Miriam R. Bourdette; Cecilia Jason Dederich; Dan L. Garrett, Jr.; Elizabeth Missakian; Sybil Schiff; Steven Simon; Dan Sorkin, Defendants- Appellants. David R. Benjamin; Philip C. Bourdette; Miriam R. Bourdette; Cecilia J. Dederich; Dan L. Garrett, Jr.; Elizabeth Missakian; Sybil Schiff; Steven Simon; Dan Sorkin, Petitioners, v. United States District Court for the Eastern District of California, Respondent, United States of America, Real Party in Interest., 812 F.2d 548 (9th Cir. 1987
Robert D. Luskin, Washington, D.C., Kenneth W. De Vaney, Fresno, Cal., Thomas J. Nolan, Palo Alto, Cal., Richard Mazer, San Franciso, California; Jay W. Powell, Visalia, Cal., Tom Henze, Phoenix, Arizona; Robert N. Harris, Los Angeles, Cal., Mark E. Overland, Los Angeles, Cal., John L. Williams, San Jose, Cal., and Salvatore Sciandra, Fresno, Cal., for defendants-appellants.

Guy L. Goodwin, Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California.

Before CANBY, REINHARDT and THOMPSON, Circuit Judges.

CANBY, Circuit Judge:

Defendant-appellants seek review of the district court’s denial of their motion to dismiss an indictment on the ground of irregularities in the grand jury proceedings. The government moves to dismiss the appeal for lack of jurisdiction. In light of the Supreme Court’s decision in United States v. Mechanik, 475 U.S. 66, 106 S.Ct. 938, 89 L.Ed. 250 (1986), we find the district court order appealable under the collateral order doctrine.1


Following lengthy federal grand jury proceedings, defendants were charged on October 1, 1985 in a 22-count indictment with conspiracy, concealment of material facts, obstruction of justice, and perjury. The indictment grew out of an IRS audit of The Synanon Church, and civil litigation between Synanon, the United States, and private parties in California State and District of Columbia courts. Defendants are charged with committing perjury and making false statements to conceal the destruction and alteration of documents and tape recordings pertaining to those proceedings.

From the outset, defendants apparently were concerned about participation of a government consultant, Dr. Richard Ofshe, in the grand jury investigation. At the time of the grand jury proceedings, Ofshe was involved in a civil action for intentional infliction of emotional distress, abuse of process, and malicious prosecution against six of the nine criminal defendants in this action.

Ofshe amended his civil action to charge the six defendants with systematic destruction and concealment of evidence in his and other civil suits, placing in issue the exact allegations that form the basis for the later indictment against defendants. Immediately after amendment of Ofshe’s action, the government obtained an order from the United States District Court for the District of Columbia authorizing release of “documents and recordings subpeonaed by the grand jury to the government’s expert, Richiard [sic] J. Ofshe.”2 District of Columbia Chief Judge Aubrey Robinson Jr. granted the request “for the purpose of assisting the federal grand jury and the United States Attorney in the investigation.”3

To secure disclosure of the tape recordings and details of the investigation to Ofshe, the government represented to the district court that Ofshe’s assistance was necessary to the investigation because “the federal investigative agency involved lacks familiarity with Synanon records and the voices appearing on Synanon tape recordings….”4 The record on appeal indicates that the government did not, however, inform the district court of Ofshe’s civil suit against the defendants.5 The record also indicates that before the government’s ex parte motion for disclosure of the grand jury materials, the government was well aware of the civil suit and the fact that its expert consultant was seeking damages from defendants for the very conduct underlying the grand jury investigation.6

Defendants moved for discovery of the grand jury transcripts under Fed.R.Crim.P. Rule 6(e)(3)(C)(ii) in the District Court for the Eastern District of California. Through the court’s May 1, 1986 order denying discovery in part, defendants learned of Ofshe’s involvement in the grand jury proceedings; at the same time, defendants learned that the government failed to disclose Ofshe’s interest to the District Court for the District of Columbia in moving to secure disclosure of the materials.

Defendants then moved for dismissal of the indictment for violation of Rule 6(e)(2)7. Judge Robert E. Coyle of the Eastern District of California denied the motion.8 While acknowledging the government’s failure to disclose Ofshe’s interest to the District Court for the District of Columbia, he concluded that the problem was not serious and that the irregularity did not warrant dismissing the indictment.

Defendants appeal the order denying dismissal, asserting jurisdiction in this court under 28 U.S.C. Sec . 1291. The government has now moved to dismiss.


As a general rule, a party must “raise all claims of error in a single appeal following final judgment on the merits.” Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374, 101 S.Ct. 669, 673, 66 L.Ed.2d 571 (1981). Appellants seek to escape that rule by establishing that the district court’s denial of their motion to dismiss is appealable as a “collateral order” under the doctrine of Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). To qualify for this exception to the final judgment requirement, the order under appeal must meet three conditions.

First, it “must conclusively determine the disputed question”; second, it must “resolve an important issue completely separate from the merits of the action”; third, it must “be effectively unreviewable on appeal from a final judgment.”

Flanagan v. United States, 465 U.S. 259, 265, 104 S.Ct. 1051, 1055, 79 L.Ed.2d 288 (1984) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978)). It is the third requirement that is in dispute in this case, and it is the third requirement that has traditionally presented the greatest obstacle to interlocutory appeals like this one.

We have entertained claims of violations of Rule 6(e) and of other grand jury irregularities on appeal after final judgment. United States v. De Rosa, 783 F.2d 1401, 1404-07 (9th Cir.1986); United States v. Claiborne, 765 F.2d 784, 794-96 (9th Cir.1985), cert. denied, — U.S. —-, 106 S.Ct. 1636, 90 L.Ed.2d 182 (1986); United States v. Stone, 633 F.2d 1272, 1275 (9th Cir.1979). As a corollary, we have refused to entertain such claims on interlocutory appeal of a district court’s denial of a motion to dismiss an indictment. Our leading decision to that effect is United States v. Garner, 632 F.2d 758 (9th Cir.1980), cert. denied, 450 U.S. 923 , 101 S.Ct. 1373, 67 L.Ed.2d 351 (1981). Accord United States v. Bendis, 681 F.2d 561, 569 (9th Cir.1981) (following Garner ), cert. denied, 459 U.S. 973 , 103 S.Ct. 306, 74 L.Ed.2d 286 (1982). While we also based our decision in Garner on the disruptive effect interlocutory appeals would have on the criminal justice system, the foundation of our decision was the availability of review after final judgment. We stated that the one unanswered question that the appeal presented under the Cohen analysis was “whether the particular right involved would be ‘lost, probably irreparably’ if immediate appellate review [were] not available.” Garner, 632 F.2d at 765 (quoting Cohen, 337 U.S. at 546, 69 S.Ct. at 1225). And we answered that question in the concluding sections of our opinion when we quoted In re Grand Jury Proceedings (Johanson ), 632 F.2d 1033, 1039 (3d Cir.1980):

[F]lawed grand jury proceedings can be effectively reviewed by this court and remedied after a conviction [has] been entered and all criminal proceedings have been terminated in the district court…. Because delayed appellate review will not irreparably deny Johansen his right to an impartial grand jury (his conviction could be reversed if at a later stage we conclude the grand jury was tainted) the order is not reviewable immediately as a collateral order.

Garner, 632 F.2d at 766.

Appellants contend, however, that we cannot today deny their interlocutory appeal on the ground that their claim may effectively be reviewed after final judgment. They argue that effective review after conviction has been rendered unavailable by the recent decision of the Supreme Court in United States v. Mechanik, 475 U.S. 66, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986). In Mechanik, the defendants asserted, on appeal after conviction, that an irregularity in the grand jury proceedings rendered their convictions void. Although Fed.R.Crim.P. 6(d) provides that only “the witness under examination” shall be present at grand jury proceedings, two government witnesses had testified in tandem. The defendants did not discover the violation until after trial commenced. Defendants moved for dismissal, but the district court deferred ruling on the motion until the trial’s conclusion. The district court then denied the defendants’ motion. The Fourth Circuit set aside Mechanik’s conspiracy conviction, which had been “tainted” by the Rule 6 violation. A divided Supreme Court reversed.

In its majority opinion, the Court assumed that simultaneous presence of the two witnesses violated Rule 6(d) and that the district court might have been justified in dismissing portions of the indictment prior to trial. Mechanik, 106 S.Ct. at 941. The Court held, however, that the supervening jury verdict established that any error in the grand jury proceeding was harmless under Fed.R.Crim.P. Rule 52(a). Therefore, reversal of the conviction and dismissal of the indictment were inappropriate:

The error involving Rule 6(d) in these cases had the theoretical potential to affect the grand jury’s determination whether to indict these particular defendants for the offenses with which they were charged. But the petit jury’s subsequent guilty verdict not only means that there was probable cause to believe that the defendants were guilty as charged, but that they are in fact guilty as charged beyond a reasonable doubt. Measured by the petit jury’s verdict, then, any error in the grand jury proceedings connected with the charging decision was harmless beyond a reasonable doubt.

Mechanik, 106 S.Ct. at 941-42 (footnote omitted).

The question before us, then, is whether the effect of Mechanik will be to deprive appellants of any effective review of their claim after final judgment. Another way to put the question is to ask whether, after giving full precedential effect to Mechanik, we would be able to afford appellants any relief if their contentions proved to be meritorious. We conclude that the answer is “no.”

First, it seems clear enough that the harmless error doctrine adopted by the majority in Mechanik rendered the claim of grand jury irregularities asserted by the defendant there effectively unreviewable. Indeed, the government concedes that a similar application of the harmless error rule to appellants’ claims in this case would render them effectively unreviewable after final judgment.

It is true that there are distinctions between this case and Mechanik. Appellants here assert a violation of Rule 6(e)’s prohibition on disclosure of matters occurring before the grand jury, while Mechanik asserted a violation of Rule 6(d). We fail to see how this distinction could cause a difference in result, however. Appellants contend that the improper disclosure was to an interested witness for the purpose of assisting in the grand jury’s investigation. The argument is primarily one of taint, or an improper effect on the grand jury’s decision to indict. Yet any such effect on the grand jury’s probable cause determination will, under the rationale of Mechanik, be rendered harmless if a petit jury finds appellants guilty beyond a reasonable doubt. We would not be free to avoid a harmless error analysis under Federal Rule of Criminal Procedure 52(a) because the Mechanik majority saw “no reason not to apply this provision to ‘errors, defects, irregularities or variances’ occurring before a grand jury just as we have applied it to such error occurring in the criminal trial itself.” Mechanik, 106 S.Ct. at 942 (citation omitted).9

There is another distinction between this case and Mechanik. The grand jury irregularity in this case was the subject of a motion made and ruled upon before trial. In Mechanik, the irregularity was discovered, and the motion made, after the trial had begun. The majority in Mechanik stated: “We express no opinion as to what remedy may be appropriate for a violation of Rule 6(d) that has affected the grand jury’s charging decision and is brought to the attention of the trial court before the commencement of trial.” Id. at 943 (footnote omitted). This disclaimer means that Mechanik does not automatically apply to our case, involving as it does the denial of a pretrial motion to dismiss.

Nevertheless, we are convinced that we would be failing to accord Mechanik the precedential effect that is fairly due it if we failed to apply its harmless error doctrine to appellants’ claims after final judgment. Certainly the harmless error analysis that we have already quoted above would apply; the grand jury’s reasonable cause determination would have been mooted by conviction upon a finding of guilt beyond a reasonable doubt. In addition, much of the emphasis of the Mechanik majority opinion is on the societal costs of retrial, including loss of witness’ memory or availability, the possibility that the offender may escape retrial altogether, and delay in the administration of justice that may impede deterrence and rehabilitation. Id. at 942-43.

These societal costs of reversal and retrial are an acceptable and often necessary consequence when an error in the first proceeding has deprived a defendant of a fair determination of the issue of guilt or innocence. But the balance of interest tips decidedly the other way when an error has had no effect on the outcome of the trial.

… In such a case, the societal costs of retrial after a jury verdict of guilty are far too substantial to justify setting aside the verdict simply because of an error in the earlier grand jury proceedings.

Id. at 943. We fail to see how this language could be considered inapplicable to the present contentions of appellants if they were raised after trial and conviction.

Two other Circuits have applied Mechanik ‘s harmless error analysis to allegations of grand jury irregularities other than violations of Rule 6(d). In Porter v. Wainwright, 805 F.2d 930, 941-42 (11th Cir.1986), the Eleventh Circuit applied Mechanik ‘s harmless error rule to a claim of grand juror bias, brought on appeal after trial and conviction. The Seventh Circuit did the same with a claim of alleged prosecutor misconduct before the grand jury in United States v. Thomas, 788 F.2d 1250, 1254 (7th Cir.1986).

We conclude, therefore, that the effect of Mechanik is to render appellants’ claims effectively unreviewable after trial. See Mechanik, 106 S.Ct. at 943 (concurring opinion of Justice O’Connor). Appellants’ interlocutory appeal consequently satisfies the third Cohen requirement. See id. at 947 n. 1 (dissenting opinion of Justice Marshall) (Mechanik ruling could render denial of Rule 6(d) motion appealable before trial as collateral order).

We are aware of the decision of the Tenth Circuit in United States v. Taylor, 798 F.2d 1337, 1339-40 (10th Cir.1986). In that case, appellants had moved for dismissal of the indictment because the prosecution had “invaded the defense camp,” had failed to present exculpatory evidence to the grand jury, had biased the grand jury with “inadmissible, inflammatory, and prejudicial evidence,” and had improperly used state officers in the grand jury investigation. The district court denied the motion and appellants sought an interlocutory appeal. Id. at 1338. The court of appeals dismissed, holding that the grand jury irregularities could be effectively reviewed after final judgment notwithstanding Mechanik. The court of appeals ruled that the allegations of the appellants went beyond the question of probable cause and attacked the “fundamental fairness” of the criminal proceedings, which would be justiciable after final judgment and not subject to the Mechanik harmless error analysis. Id. at 1340.

We need not decide whether we agree with the court of appeals’ characterization of the appellants’ claims in Taylor. It is enough that we conclude that appellants’ claims of violation of Rule 6(e) in the present case are sufficiently aimed at the grand jury’s charging process that they fall within the ambit of Mechanik. The prejudice in this case that Mechanik would require us to evaluate in an appeal after conviction is an erroneous charging decision by the grand jury, for violations of Rule (6)(e), and Mechanik holds that any such prejudice is wiped out by the petit jury’s verdict. Nothing in Taylor leads us to change our conclusion that appellants’ claim of irregularities has been rendered effectively unreviewable after final judgment.

The government does not seriously contest the fact that the order being appealed, having met the third Cohen requirement, also meets the first two. The district court’s order was a final determination of the question whether the asserted violations of Rule 6(e) required dismissal of the indictment. Moreover, the order is collateral to the claims of guilt or innocence that are to be determined at the trial by a petit jury, under this indictment if appellants’ appeal is unsuccessful or possibly under a later indictment if the appeal is successful. See Garner, 632 F.2d at 765.

We conclude, therefore, that the district court’s order meets all of the requirements of Cohen and is now appealable under 28 U.S.C. Sec . 1291 as a collateral order. We recognize that interlocutory appeals can be disruptive of the criminal justice system, see Garner, 632 F.2d at 766, but means may be found to expedite such appeals and to weed out groundless ones promptly. See Richardson v. United States, 468 U.S. 317, 322, 104 S.Ct. 3081, 3084, 82 L.Ed.2d 242 (1984); Abney v. United States, 431 U.S. 651, 662 n. 8, 97 S.Ct. 2034, 2042 n. 8, 52 L.Ed.2d 651 (1977). Our conclusion that the district court’s order in this case is appealable as a collateral order stems not only from its meeting the technical requirements for an interlocutory appeal, but also from the fact that if no appeal is allowed at this stage, appellants will wholly fail to benefit from the protections Rule 6(e) imposes on the constitutionally-mandated grand jury process.10 Errors that affected the grand jury proceedings to the detriment of the accused, and that would have justified the district court in dismissing the indictment before trial, would go wholly unremedied if the district court itself erred in denying dismissal. We cannot believe that Congress and the Supreme Court intended such ineffectiveness for the Rule.11 An interlocutory appeal will prevent that untoward result, and Sec. 1291 is to be given a “practical rather than a technical construction.” Cohen, 337 U.S. at 546, 69 S.Ct. at 1226 (citing Cobbledick v. United States, 309 U.S. 323, 328, 60 S.Ct. 540, 542, 84 L.Ed. 783 (1940)).

The government’s motion to dismiss is denied. A briefing schedule will be established by separate order. Our disposition of this motion makes it unnecessary to address appellants’ conditional petition for writ of mandamus.


6. The district court’s reliance on Synanon Church v. United States, 579 F.Supp. 967, 976-77 (D.D.C.1984) as support for this holding is misplaced. Synanon states in a dictum the uncontroversial proposition that Rule 37 sanctions are available if a party has disobeyed a court’s order to produce documents, even if the opposing party had not previously requested those documents under Fed.R.Civ.P. 34. Id. The district court’s broad reading of Rule 37 does find some measure of support. See Alliance to End Repression v. Rochford, 75 F.R.D. 438, 440 (N.D.Ill.1976) (defendant’s pre-filing destruction of documents is a factor in court’s imposition of Rule 37 sanctions). See also Stubli v. Big D Int’l Trucks, Inc., 107 Nev. 309, 810 P.2d 785, 787-88 (1991) (plaintiff’s pre-filing destruction of evidence warrants sanctions under NRCP 37, which parallels Fed.R.Civ.P. 37); Fire Ins. Exch. v. Zenith Radio Corp., 103 Nev. 648, 747 P.2d 911, 913-14 (1987) (same).

7. People v. Synanon Foundation, Inc. (1979) 88 Cal.App.3d 304 , 151 Cal.Rptr. 757
[Civ. No. 3743. Fifth Dist. Jan. 15, 1979.]
THE PEOPLE, Plaintiff and Respondent, v. SYNANON FOUNDATION, INC., Defendant and Appellant.
(Opinion by Franson, J., with Brown (G. A.), P. J., concurring. Separate concurring opinion by Hopper, J.)
Dan L. Garrett, Jr., Howard M. Garfield and David F. Gomez for Defendant and Appellant.
Jay W. Powell and William A. Richmond, District Attorneys, Richard D. Sigmund and Robert C. Van Auken, Deputy District Attorneys, for Plaintiff and Respondent.
Statement of the Case fn. 1
This is an appeal from a pretrial order enjoining appellant from operating a private airport during the pendency of the action. [88 Cal.App.3d 306]
On May 31, 1977, respondent filed a complaint seeking to enjoin appellant’s operation of an airport on its property in the Sierra foothills in the northeast corner of Tulare County. The complaint alleged that the airport constituted a public nuisance per se because it was being operated without a special use permit, in violation of Tulare County Zoning Ordinance No. 352. fn. 2
The district attorney’s application for an ex parte temporary restraining order was denied on June 22, 1977, on the ground that respondent had failed to allege or prove any injury that would result to respondent before the matter was heard on notice.
Respondent’s application for preliminary injunction was heard on June 28, 1977. On September 21, 1977, the trial court rendered a decision, finding that the airport had been constructed and operated in violation of the law in that a permit was required under the county ordinance; that appellant had constructed the airport with notice that a permit was required, and that “upon balancing the equities,” appellant should be enjoined from operating the airport pending trial. The court specifically noted that its decision concerning the violation of the zoning ordinance was for the purpose of the preliminary injunction only and that the decision should not affect the ultimate rights of the parties at trial. On October 27, 1977, the preliminary injunction was issued. Appellant filed a timely notice of appeal.
On November 8, 1977, appellant petitioned this court for a writ of supersedeas and a stay of the enforcement of the injunction. We granted the petition and stayed the injunction pending the determination of the appeal.
Statement of Facts
Appellant is a nonprofit religious and charitable corporation established for the purposes of furthering the Synanon religion and the reeducation of character disordered persons. In 1972 appellant purchased 360 acres of land in the western Sierra foothills near Badger, California, to serve as its executive offices and spiritual center. On June 30, 1976, [88 Cal.App.3d 307] appellant purchased an additional 1,790 acres of land near Badger known as the Stapp Ranch. The ranch included an 80-acre meadow at an elevation of 3,100 feet which appellant developed into a private airport. Appellant’s investment in the land and improvements for the airport including a 4,450-foot long, 60-foot wide asphalt runway, adjacent hangars, buildings, airplanes and sailplanes was approximately $1.5 million.
The meadow where appellant’s airport was established had been used for agricultural purposes for the 15 years immediately preceding appellant’s acquisition of that property; however, the deposition of Mr. James Stapp, a prior owner of the property, revealed that the meadow was used as a landing strip for agricultural flights from 1951 to 1961. During that period portions of the meadow were also used for farming and quail hunting. In 1944 appellant’s predecessor had applied to the Tulare County Board of Supervisors for approval of the site as an airport and on November 28, 1944, the supervisors granted the approval. In 1945 the Civil Aeronautics Administration approved the site as a “designated landing area” pursuant to the federal Civil Aeronautics Act of 1938. On May 17, 1949, the Tulare County Board of Supervisors adopted a “Master Plan of Airports” depicting the location of the airport as an approved proposed site for a recreational/emergency airport. In 1959 the supervisors adopted ordinance No. 703 which provided that airports depicted on the 1949 master plan did not require a special use permit.
A new airport master plan was adopted by the supervisors in 1970. This plan recited that airports shown on the 1949 plan did not require a special use permit in the A-1 zone where appellant’s airport is located. The 1970 plan also expressed a need for a fog-free recreational multi-purpose airport in a designated area in the foothills. Appellant’s airport is in the designated area. Subsequent to the enactment of the 1970 plan, Tulare County Zoning Ordinance No. 352 was amended to provide that airports in conformity with the 1970 plan located in the A-1 zone do not require special use permits.
In the spring of 1976, when appellant began to explore the possibility of acquiring the Stapp Ranch, its representatives communicated with Robert Wall, the Planning Director and Chief Zoning Administrator of Tulare County. According to appellant’s affidavits, Wall said that the subject site would be suitable for an airport and that a special use permit would not be required. According to the declaration of Mr. Wall, he [88 Cal.App.3d 308] merely advised appellant’s representatives that he “hoped that they didn’t need a permit for their proposed airport” and “recommended they look at the 1970 Airport Master Plan and the Tulare County Zoning Ordinance.” Mr. Wall’s declaration, however, is silent regarding any conversations which he may have had with appellant’s representatives before July 6, 1976–the date the property was purchased. In a letter to Supervisor Fred Batkin dated July 13, 1976, Mr. Wall referred to a previous visit by appellant’s representatives to his office and to their contention that appellant should be able to build an airport on the property without a permit. He states in his letter, “We are carefully checking their contention to see if that is true. It appears … that it is.” (Italics added.) The letter further states, “It appears that [the] airport does conform to the General Plan.” Appellant’s agents declared that they acted in reliance on Wall’s representations when they purchased the Stapp Ranch and began to develop the meadow for use as an airport.
Shortly after appellant’s acquisition of the property, Mr. Wall formally requested an opinion from the county counsel’s office on whether a use permit was required for the airport. On July 21, 1976, a representative from the county counsel’s office delivered an oral opinion concerning this question at a board of supervisors’ meeting attended by one of appellant’s attorneys. The county counsel tentatively concluded that a use permit would be required because the subject airport was not in conformity with the 1970 airport master plan and, therefore, the amended zoning ordinance No. 352 required a permit.
On that same day, July 21, appellant’s representative sought the county planning department’s approval for the construction of a “general storage building” on the subject site. At that time Joe Hickman, a representative of the planning department, issued a building permit for a storage building; Hickman told Synanon’s agent that the building could not be used for airport purposes without a use permit. The next day, Mr. Wall wrote to appellant recommending that if the building was intended for airport use, no time or money should be invested until the required special use permit was obtained. Wall also stated that it might be difficult to obtain the permit because a number of local citizens opposed the development of the airport.
On July 29, 1976, the county counsel’s office issued its written opinion (a copy of which was sent to appellant’s counsel) that a use permit would be required for the airport. In substance, the county counsel ruled that a permit was required for the airport because it did not comply with the [88 Cal.App.3d 309] 1970 master plan in that it was not a “public use” airport, i.e., one open to the public. Also, the county counsel opined that the airport would not qualify as an “agricultural airport” without a permit.
Nevertheless, appellant continued to develop the property for an airport. It contends that it had no alternative because it already had let the contracts for construction of the runway and buildings at the airport when it was advised that a permit would be required. By August, the grading for the strip was accomplished and a number of buildings had been added to the meadow.
Appellant filed an application for a special use permit on August 12, 1976. It maintains that the permit was unnecessary and that the filing of the application was merely a good will and political gesture. Five months later the application was denied by the county planning commission. Appellant appealed the denial to the board of supervisors, then later withdrew its appeal. Appellant states that the reason for the withdrawal of the appeal was its discovery that the airport site had been approved in the 1949 master plan and that Tulare County zoning ordinances exempted airports in conformity with the master plan from the permit requirement.
Appellant completed development of the airport and commenced using it for flights and educational activities. On May 25, 1977, the Tulare County Board of Supervisors adopted a resolution directing the district attorney to file this action.
[1a] This appeal presents the question of the standard to be applied by a trial court in ruling on an application for a preliminary injunction to enforce a zoning ordinance. We hold that absent a clear showing that the ordinance is being violated, the court must weigh the relative harm to the defendant if the injunction is issued as against the harm to the plaintiff if it is not issued; that only when the harm to the plaintiff outweighs the harm to the defendant should the injunction issue. Stated otherwise, it is only upon a clear showing that the zoning ordinance is being violated that a conclusive presumption of irreparable injury to the public arises so as to justify the injunction without balancing the relative harm to the parties.
Whether to grant a preliminary injunction rests in the sound discretion of the trial court, and the order will not be reversed on appeal absent a clear abuse of discretion. (Continental Baking Co. v. Katz (1968) 68 [88 Cal.App.3d 310] Cal.2d 512, 527 [67 Cal.Rptr. 761, 439 P.2d 889].) However, since the decision is usually reached without a full hearing on the merits, it should not be made without balancing “the gravity of interim injury against the possibility of interlocutory judicial error.” (Italics added, Leubsdorf, The Standard for Preliminary Injunctions (1978) 91 Harv. L.Rev. 525.) As stated in People v. Pacific Land Research Co. (1977) 20 Cal.3d 10 [141 Cal.Rptr. 20, 569 P.2d 125]: “To secure a preliminary injunction the People were required to show, by evidence which would be admissible in open court, that, pending a trial on the merits, defendants should be restrained from exercising the right claimed by them. The purpose of the injunction is to preserve the status quo until a final determination is made upon the merits, and the issue before the court was whether defendants would suffer greater harm from its issuance than the People would suffer from its refusal. In making this assessment, the court was required to determine whether there was a reasonable probability that the People would prevail on the merits. [Citation.]” (Italics added, id, at p. 21.)
Respondent contends that since it seeks to enforce a zoning ordinance which provides that a violation of the ordinance is a public nuisance, it is relieved from proving actual harm to the public from the operation of the airport pending trial once it established to the trial court’s satisfaction that respondent probably would prevail on the merits. Respondent argues that an irrebuttable presumption of public harm arises from a probable zoning violation, citing People ex rel. Dept. Pub. Wks. v. Adco Advertisers (1973) 35 Cal.App.3d 507 [110 Cal.Rptr. 849]. Adco, however, does not stand for such a proposition. In that case the state, acting through its department of public works, filed a complaint for an injunction to compel the removal of a billboard that violated the Outdoor Advertising Act. (Bus. & Prof. Code, § 5200 et seq.) The trial court found there was no triable issue of fact as to the statutory violation and summarily granted a permanent injunction. The appellate court affirmed, noting that the defendant had conceded that its billboard violated the law; hence, a fortiori, the billboard was a public nuisance. In the present case, there is a serious question whether appellant’s airport violates zoning ordinance No. 352.
Assuming the airport is not exempt from the permit requirements merely because the site was approved under the 1949 master plan, a question would remain as to whether the airport conforms to the 1970 plan, thereby making a permit unnecessary. The latter plan recommends the establishment of an airport in a fog-free area which includes appellant’s meadow; it expressly provides that the multi-purpose airport “could be initiated by private development” and that “a private airport [88 Cal.App.3d 311] facility may satisfy” the need for such an airport. Whether the language of the 1970 plan should be interpreted as authorizing only a “public use” airport as contended by respondent or also a private use airport as contended by appellant, and whether the plan authorizes an airport only at one of the four designated sites or at any site within the fog-free area, are close questions indeed.
Respondent’s brief illustrates the very complexity of the issues: respondent acknowledges that the trial court had to resolve an apparent inconsistency between the airport master plan and the zoning ordinance. The master plan recommends that use permits be required for all airports, whether in conformance with the master plan or not, while the zoning ordinance recognizes an exception for airports in conformity with the plan. To resolve this apparent inconsistency, the trial court had to take into consideration the provisions of Government Code section 26027 which requires local zoning ordinances to make provision for areas where airports can be located as conforming uses. Respondent then argues that construing the airport master plan, the zoning ordinance and Government Code section 26027 together, the trial court could reasonably conclude that the exception of the zoning ordinance was a limited one designed to meet the minimum requirements of Government Code section 26027, and limit the exception to only those airports in strict conformity with the airport master plan. Having concluded that the ordinance exception was limited to airports in strict conformance with the master plan, respondent then argues that the trial court could conclude that appellant’s airport did not fall within the exception because it was not a public airport, and it was not located in one of the four suggested sites shown within the fog-free area. The argument is self-defeating in that substantial rather than strict conformance with the master plan may well satisfy the ordinance.
Even assuming the applicability of the permit requirement, there remains on the present record a serious question whether respondent will prevail at trial. Appellant asserts an estoppel defense alleging that it purchased the Stapp Ranch and developed the airport in reliance on express representations by the Tulare County Director of Planning that no permit would be required. [2] The law is clear that “[t]he government may be bound by an equitable estoppel in the same manner as a private party when the elements requisite to such an estoppel against a private party are present and, in the considered view of a court of equity, the injustice which would result from a failure to uphold an estoppel is of sufficient dimension to justify any effect upon public interest or policy which would result from the raising of an estoppel.” (City of Long Beach [88 Cal.App.3d 312] v. Mansell (1970) 3 Cal.3d 462 at pp. 496-497 [91 Cal.Rptr. 23, 476 P.2d 423].) We are fully cognizant of the trial court’s implied finding that appellant acted in bad faith in constructing the airport after notice that a permit would be required. We also recognize that the estoppel doctrine is inapplicable where it would defeat a strong public policy. (Strong v. County of Santa Cruz (1975) 15 Cal.3d 720 [125 Cal.Rptr. 896, 543 P.2d 264]; Carty v. City of Ojai (1978) 77 Cal.App.3d 329, 340-344 [143 Cal.Rptr. 506]; Cunningham, Vested Rights, Estoppel, and the Land Development Process (1978) 29 Hastings L.J. 625, 648-660.) Whether the operation without a special use permit of a privately owned, private use airport in the Sierra foothills available for emergency public use contravenes public policy is nebulous indeed. [1b] We do not suggest how this issue ultimately will be decided; we hold only that the estoppel question should not be decided on the basis of the perfunctory and conclusory affidavits which were before the trial court at the hearing on the preliminary injunction.
Appellant also contends that the provisions of ordinance No. 352 which require a special use permit for an airport in an A-1 zone are unconstitutionally vague under the Fourteenth Amendment; that a statute which either forbids or requires the doing of an act in terms so uncertain that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process. This standard has been applied to zoning regulations. (Sechrist v. Municipal Court (1976) 64 Cal.App.3d 737, 745 [134 Cal.Rptr. 733]; People v. Binzley (1956) 146 Cal.App.2d Supp. 889 [303 P.2d 903].) The fact that the Tulare County Planning Director believed that appellant would be exempt from the permit requirement under ordinance No. 352, at the very least suggests an uncertainty in the law. In State Bd. of Barber Examiners v. Star (1970) 8 Cal.App.3d 736 [87 Cal.Rptr. 450] a pertinent observation is made concerning the adjudication of constitutional issues at a preliminary hearing: “This case … presents a good example for application of the general rule that a preliminary injunction should not determine the ultimate rights of the parties. While the court below purported to rule on one of the constitutional questions involved, we hold that was an interim ruling which will not bind the court one way or the other at the trial [citations].” (8 Cal.App.3d at p. 740.)
Since it is not clear that the permit requirements of ordinance No. 352 apply to appellant’s airport and, if they do apply, that respondent will prevail on the estoppel and constitutional questions, the trial court should have weighed the relative harm to respondent if the injunction did not issue vis- -vis the harm to appellant if it were granted. (People v. Pacific [88 Cal.App.3d 313] Land Research Co., supra, 20 Cal.3d 10, 21; Continental Baking Co. v. Katz, supra, 68 Cal.2d 512, 528; see also Town of Southeast v. Gonnella (1966) 26 App.Div. 2d 550 [270 N.Y.S.2d 863]; Town of Carmel v. Meadowbrook National Bank (1959) 15 Misc.2d 789 [182 N.Y.S.2d 465]; Leubsdorf, The Standard for Preliminary Injunctions, supra, 91 Harv. L.Rev. 525.) Although the trial court stated in its decision granting the preliminary injunction that it had balanced the “equities,” it is clear that it did not weigh the relative harm to the parties. The record contains no proof of injury to the health, safety or enjoyment of life or property which individuals or the community would suffer by reason of the operation of the airport. (Civ. Code, §§ 3479, 3480.) The trial court accepted the People’s argument that by reason of the probable ordinance violation it would suffer irreparable harm if the injunction did not issue. The finding that appellant had constructed the airport with notice of the permit requirement presupposed the applicability of that requirement. Thus, in deciding to issue the injunction the court did not consider the “possibility of interlocutory judicial error” in its holding that the airport operation constituted a zoning violation. It failed to weigh this possibility of error against the interim injury to be suffered by the appellant. (Leubsdorf, The Standard for Preliminary Injunctions, supra, 91 Harv. L.Rev. 525.)
Whether or not we agree with appellant’s charitable and religious purposes and its business methods, it made a strong showing of interim harm if the injunction should issue. The application for preliminary injunction was made approximately one year after appellant had purchased the site and expended moneys in constructing the airport and the acquisition of personnel and aircraft. The declarations show that the suspension of flights would jeopardize appellant’s educational activities and the expeditious transporting of its members to and from its Badger facilities.
We recognize the strong governmental interest in enforcing a zoning ordinance; yet, if it is still unclear at the preliminary injunction stage whether the activities to be enjoined violate the ordinance, the injunction should not issue in the absence of proof of actual interim harm to the public resulting from the potential violation.
The trial court’s failure to balance appellant’s showing of interim harm against the governmental interest in securing compliance with the ordinance was an abuse of discretion. fn. 3 [88 Cal.App.3d 314]
We note finally that over a year and a half has elapsed since the commencement of this action. The best interests of the parties demand a speedy resolution of the issues involved here; we therefore deem it appropriate to suggest that the trial court schedule this action for trial at the earliest possible date.
The judgment is reversed.
8. Synanon Foundation, Inc. v. County of Marin (1982) 133 Cal.App.3d 607 , 184 Cal.Rptr. 129
[Civ. No. 54270. Court of Appeals of California, First Appellate District, Division Two. July 7, 1982.]
SYNANON FOUNDATION, INC., Plaintiff and Appellant, v. COUNTY OF MARIN et al., Defendants and Respondents.
(Opinion by Miller, J., with Grodin, P. J., and Rouse, J., concurring.)
Philip C. Bourdette and Andrew J. Weill for Plaintiff and Appellant.
George Deukmejian, Attorney General, Edward P. Hollingshead and Charles C. Kobayashi, Deputy Attorneys General, Thomas D. Bowman, County Counsel, Steven B. Bassoff, Deputy County Counsel, Douglas J. Maloney, County Counsel, and Allen A. Haim, Chief Deputy County Counsel, for Defendants and Respondents. County of Marin.
This is an appeal by Synanon Foundation from an order granting dismissal of its action for refund of property taxes paid to Tulare, [133 Cal.App.3d 609] Los Angeles, Alameda, and Marin Counties. The superior court granted dismissal of the complaint because the summons was not returned within one year after the commencement of the action as required by Revenue and Taxation Code section 5147. fn. 1 Despite the mandatory language of that section, we find that the provisions of section 5147 may be waived by voluntary actions of the defendant indicating an unequivocal intent to submit the issues to a trial on the merits.
Section 5147 provides that the court, on its own motion or motion of any defendant, must dismiss an action unless the summons is issued, served and returned within one year after commencement of the action. fn. 2 On March 14, 1978, appellant filed an action for refund of property taxes alleging that its airplanes and boats were used for religious, educational and charitable purposes and were thereby exempt from taxation. There is no question that the service of summons was made within the one-year period. fn. 3 However, the return of summons did not occur within one year of the commencement of the action as required by section 5147. The return was not made until March 20, 1979, one year and six days after the action was filed.
All respondents answered the complaint without raising any objections to the failure of appellant to make a timely return of summons. Discovery proceeded with appellant serving respondents with interrogatories and requests for production of documents. All respondents answered these interrogatories and provided documents in response to these requests without objection to the delay in returning the summons. On October 15, 1980, appellant filed its memorandum that civil case is at issue. In that memorandum, appellant represented that “all essential [133 Cal.App.3d 610] parties have been served with process or have appeared herein and that this case is at issue as to all such parties.” No respondent raised any objection to this memorandum.
On November 21, 1980, the Marin County superior court sent notice to all parties of a trial setting conference to be held on February 4, 1981. On December 8, 1980, one year and nine months after the service of summons and almost three years after the action was filed, respondent State Board of Equalization filed a motion to dismiss the action because of appellant’s failure to return the summons within one year as required by section 5147. Respondents County of Marin and County of Tulare joined in the motion. After a hearing on respondents’ motion, the trial court entered an order to dismiss appellant’s complaint. The court concluded that the language of section 5147 mandated a dismissal of the action, that the conduct of the respondents in filing answers and participating in discovery did not constitute a stipulation in writing that time might be extended, and that there was no conduct on the part of the respondents that would constitute an estoppel. The primary question presented for our determination is whether the trial court erred in failing to consider the doctrine of waiver as an implied exception to the one-year dismissal provision of section 5147.
We have found no case interpreting the mandatory one-year time limitation for service and return of summons set out in section 5147. However, Code of Civil Procedure section 581a, subdivision (a), fn. 4 mandating dismissal of civil actions unless service and return is made within three years after the action is filed, contains substantially similar language. [1] Under general rules of statutory construction, we may consider the judicial interpretation of similar words used in another statute dealing with analogous subject matter. (People v. Corey (1978) 21 Cal.3d 738, 743 [147 Cal.Rptr. 639, 581 P.2d 644]; Evartt v. Superior Court (1979) 89 Cal.App.3d 795, 800 [152 Cal.Rptr. 836]; Estate of Hoertkorn (1979) 88 Cal.App.3d 461, 465-466 [151 Cal.Rptr. 806].) In this regard, we consider the considerable body of case law developed on the mandatory dismissal provision of Code of Civil Procedure section 581a, subdivision (a) (hereinafter section 581a) to be especially pertinent to the question before us. Neither appellant nor respondents challenge this thesis. [133 Cal.App.3d 611]
Section 5147 expressly creates a single statutory exception to the directive that an action must be dismissed when a plaintiff fails to serve and return the summons within one year. “[W]here the parties have filed a stipulation in writing that the time may be extended” noncompliance with the one-year time limitation will be excused. Appellant urges that the answer and response to discovery filed by respondents constitute a “written stipulation” extending the time for returning the summons.
In the early case of Miller & Lux Inc. v. Superior Court (1923) 192 Cal. 333, 340 [219 P. 1006], our Supreme Court considered the rationale underlying the express “written stipulation” exception set forth in Code of Civil Procedure sections 583 and 581a: fn. 5 “The provision that a written stipulation be entered into was intended to preclude all disputes, with their attendant charges and countercharges of overreaching and unethical conduct, by a requirement that clear and uncontrovertible evidence be presented to the court that the statutory time was deliberately intended to be extended by both parties.”
We cannot ascertain anything in the record before us that evidences a clear intention on the part of respondents to extend the statutory time for the return of summons. Indeed, there is nothing to indicate that respondents were even aware of section 5147 until their motion to dismiss was filed. The filing of an answer to the complaint and responding to discovery requests reflects respondents’ intention to actively participate in the litigation. However, this activity falls far short of evidencing a clear and uncontrovertible intent to waive the mandatory time provisions of section 5147 undoubtedly contemplated by the Legislature in drafting this exception. [133 Cal.App.3d 612]
Since the single statutory exception to the mandate of section 5147 is inapplicable to this case, we must examine whether there exists any countervailing considerations that can defeat a mandatory dismissal of this action for noncompliance with the statutory time frame established for the return of summons. The striking metamorphosis of judicial attitude toward the parallel language of section 581a is particularly instructive in this examination.
Early cases held that this section was mandatory and jurisdictional and exceptions not expressly set out by statute were not recognized. (Gonsalves v. Bank of America (1940) 16 Cal.2d 169, 172 [105 P.2d 118]; Cahn v. Jones (1950) 101 Cal.App.2d 345, 348 [225 P.2d 570].) This rigid view of section 581a has given way to a viable body of judicially created exceptions to the mandatory directive of section 581a to be applied “‘with a view of subserving, rather than defeating the ends of substantial justice.'” (Wyoming Pacific Oil Co. v. Preston, supra, 50 Cal.2d 736, 741.) Implied exceptions to the strict time limits of section 581a have been recognized where compliance with the manner of service prescribed in the statute was impossible, impracticable, or futile. (Busching v. Superior Court (1974) 12 Cal.3d 44, 53 [115 Cal.Rptr. 241, 524 P.2d 369];Borglund v. Bombardier, Ltd. (1981) 121 Cal.App.3d 276, 279 [175 Cal.Rptr. 150].)
Until recent years, the court rejected the view that the defendant’s conduct could in any way prevent dismissal under section 581a. (Siskiyou County Bank v. Hoyt (1901) 132 Cal. 81, 84 [64 P. 118]; White v. Superior Court (1899) 126 Cal. 245, 247 [58 P. 450]; Sauer v. Superior Court (1925) 74 Cal.App. 580, 584 [241 P. 570].) ButTresway Aero, Inc. v. Superior Court (1971) 5 Cal.3d 431 [96 Cal.Rptr. 571, 487 P.2d 1211] marked a change in judicial attitude. Tresway clearly enunciated the rule that equitable estoppel is available to a plaintiff who has failed to comply with the requirements of section 581a in reasonable reliance upon the words or conduct of the defendant.
In applying these exceptions to the case at bar, there is no showing that it was impossible, impracticable, or futile to return the summons within one year of the commencement of the action. Furthermore, respondents’ actions in participating in the litigation played no role in inducing appellant to delay the return of summons. Appellant’s assertion that the provisions of section 5147 may be waived by a defendant’s voluntary submission to the jurisdiction of the court for a ruling on the merits goes beyond either the statutory or judicially recognized exceptions [133 Cal.App.3d 613] to the similar mandate of section 581a. fn. 6 But the clear tendency of the courts not to be restricted to the literal language of a similar time limitation statute suggests that appellant’s contention warrants careful consideration.
The recent Supreme Court case ofHocharian v. Superior Court (1981) 28 Cal.3d 714 [170 Cal.Rptr. 790, 621 P.2d 829] laid to rest the continuing judicial debate on whether the three-year time limitation for serving and returning the summons set out in section 581a is a requirement to obtain jurisdiction over the action. The court settled the question by declaring that the three-year provision, despite the mandatory language, was not jurisdictional. (Id, at p. 721, fn. 3.) This signals a freer exercise of trial court discretion in preventing the unfair results often occasioned by a mechanical application of the statute. We read Hocharian as breathing new vitality into the admonition of Wyoming Pacific Oil Co. v. Preston, supra, 50 Cal.2d 736, 741, that each case is to be “decided on its own particular facts, and no fixed rule can be prescribed to guide the court in its exercise of discretionary power under all circumstances.”
In the instant action, the respondents undoubtedly had the right to request that the action be dismissed on the ground that the summons had not been returned within the one-year period set out in section 5147. If the objection had been made in a timely manner, fn. 7 the court would have had ample authority upon which to base a dismissal even in light of the fact that the respondents were served with notice of the action before the one-year period had expired. (See Tandy Corp. v. Superior Court (1981) 117 Cal.App.3d 911 [173 Cal.Rptr. 81]; Kaiser Foundation Hospitals v. Superior Court (1975) 49 Cal.App.3d 523 [122 Cal.Rptr. 432]; Miles & Sons, Inc. v. Superior Court, supra, 181 Cal.App.2d 151; Frohman v. Bonelli (1949) 91 Cal.App.2d 285 [204 P.2d 890].) [133 Cal.App.3d 614]
[2] However by filing answers, setting forth affirmative defenses, and participating in discovery, the respondents indicated an intent to submit the issues to the court for a determination on the merits. They did not avail themselves of the rights conferred by section 5147 for almost two years until the case was clearly at issue and assigned for trial setting conference. In view of the escalating costs of conducting discovery and the increasing demands on the resources of the judiciary to efficiently process cases, the attitude of the court in Bayle-Lacoste & Co. v. Superior Court, supra, 46 Cal.App.2d 636, 645, comports with our own: “Litigants should not be permitted to inject themselves into a controversy, raise issues therein and then change position and seek to avoid the contest.”
The purpose of statutory dismissal statutes like section 5147 is to “promote the trial of cases before evidence is lost, destroyed, or the memory of witnesses becomes dimmed.” (General Motors Corp. v. Superior Court (1966) 65 Cal.2d 88, 91 [52 Cal.Rptr. 460, 416 P.2d 492].) However, the time limitation set out in section 5147 is not designed to arbitrarily ignore the actions of the parties involved, as is illustrated by the ability of the litigants to extend the statutory time by written agreement. We join with the reasoning of the court in Holder v. Sheet Metal Worker’s Internat. Assn. (1981)121 Cal.App.3d 321, 326-327 [175 Cal.Rptr. 313] in noting that “there exists no policy reason why the exceptions of waiver and estoppel should be viewed and treated in a different manner than the implied exceptions of impossibility, impracticability and futility ….”
[3] In view of the strong public policy that litigation be disposed of on the merits rather than narrow procedural grounds (Hocharian v. Superior Court, supra, 28 Cal.3d 714, 724), we find that if the net effect of a defendant’s conduct is to submit the issues for a determination on [133 Cal.App.3d 615] the merits, the right to pursue a dismissal under section 5147 can be waived.
The judgment is reversed and the case remanded for trial on the merits.
Grodin, P. J., and Rouse, J., concurred
9. County of San Diego v. Montgomery , 23 Cal.App.3d 174
[Civ. No. 10630. Court of Appeals of California, Fourth Appellate District, Division One. January 28, 1972.]
COUNTY OF SAN DIEGO, Plaintiff and Respondent, v. JOHN C. MONTGOMERY, as Director, etc., Defendant and Appellant; JULIA HOLMES et al., Interveners and Appellants
(Opinion by Ault, J., with Brown (Gerald), P. J., and Coughlin, J., concurring.) [23 Cal.App.3d 175]
Thomas C. Lynch, Attorney General, and Anthony M. Summers, Deputy Attorney General, for Defendant and Appellant.
Sharon Green for Interveners and Appellants.
Robert G. Berrey, County Counsel, and Lloyd M. Harmon, Jr., Deputy County Counsel, for Plaintiff and Respondent.
The Director of the State Department of Social Welfare appeals from a judgment of the superior court decreeing Julia Holmes and [23 Cal.App.3d 176] her two minor children were not eligible for public assistance under the Aid to Families with Dependent Children program (Welf. & Inst. Code § 11200 et seq.), and granting the County of San Diego’s petition for a writ of mandate commanding the director to set aside his prior contrary decision. The decision of the director which the trial court reviewed and reversed in the mandate proceedings (See Welf. & Inst. Code, § 10962) was based upon a hearing held by a department referee pursuant to Welfare and Institutions Code section 10950. We conclude the trial court’s judgment must be upheld because the evidence at the hearing demonstrated neither Mrs. Holmes nor her children were in need of public assistance.
In January 1967, Julia Holmes applied to the San Diego County Department of Welfare to obtain public assistance for herself and her two small children under the Aid to Families with Dependent Children program (AFDC). She and her children then were, and for some time prior thereto had been, residents of a home in San Diego operated by Synanon Foundation, Inc. By letter dated March 17, 1967, the county welfare department denied the application, basing the denial upon a policy change directive issued by the head of the department under which AFDC benefits to Synanon residents were to be discontinued. In brief, the specific reasons for the denial and the change in policy, as stated in the letter, were: Synanon was not subject to licensing regulations; it was not possible for the department to determine the value of “currently used resources” for residents of Synanon, or to verify that all AFDC funds were used for the benefit of the children and caretaker, or to verify that Synanon House was the best available substitute for the children’s own home.
When her application for public aid was denied, Mrs. Holmes applied for a “fair hearing” before the State Department of Social Welfare pursuant to Welfare and Institutions Code section 10950. During May and July of 1967, a referee from the department heard testimony from 22 witnesses. The evidence showed residents of Synanon lived in a communal arrangement, with all of their needs being supplied by Synanon, which levied no specific charge but might exact payment according to the individual resident’s ability to pay. The undisputed evidence established Synanon had been, and was, supplying “everything” to Mr. Holmes and her children, charging them nothing. These goods and services, worth approximately $300 per month, included food, shelter, clothing, utilities, transportation, toiletries and private needs, and a modest amount for spending money. Mrs. Holmes testified she would donate any AFDC funds which were awarded her to Synanon. The maximum of public aid to which Mrs. Holmes would have been entitled, if eligible, was $191 per month.
The referee concluded Mrs. Holmes’ claim should be granted. His decision, [23 Cal.App.3d 177] adopted by the Director of the State Department of Social Welfare on June 28, 1968, stated: “The discontinuance of AFDC on behalf of the claimant’s children solely on the basis of her participation in the Synanon Foundation program is not warranted. … Eligibility for AFDC must be determined on an individual basis.
“* * *
“Based therefore on the evidence, it is found that the claimant was eligible for AFDC on behalf of her children on the basis of need, notwithstanding her residence in Synanon Foundation.” (Italics added.) The county was ordered to pay the grant in the amount of the legal entitlement from the date of application.
The County of San Diego petitioned the superior court for a writ of mandate to compel the director to set aside his order. In his return to the writ, the director admitted Synanon furnished “everything” necessary for the support of Mrs. Holmes and her children, admitted the value of the goods and services furnished was in excess of $300 per month and conceded the maximum public aid to which Mrs. Holmes and her children would have been entitled was the sum of $191 per month. Julia Holmes intervened in the superior court action, individually and on behalf of her children, seeking affirmation of the director’s order.
Apparently the matter was submitted to the superior court on the record of the proceedings before the referee of the State Department of Social Welfare. Based upon the record, the trial judge found and concluded: (1) The department’s finding Julia Holmes and her children were eligible for public assistance under the AFDC program on the basis of need was not supported by substantial evidence in the light of the whole record, and (2) Synanon provided for and met all the basic and special needs of Julia Holmes and her children. The judgment which followed in effect set aside and nullified the director’s previous order establishing Mrs. Holmes’ entitlement to AFDC funds. The director and Julia Holmes have appealed, and Mrs. Holmes has adopted the director’s brief on appeal as her own.
[1a] While the Director’s brief on appeal touches the issue before us, the main thrust of the argument he advances misses the mark. Mistakenly implying the trial court’s judgment holds to the contrary, he frames the issue on appeal as follows: “Eligibility for AFDC must be established by an individual determination of need, and not upon a general policy applied to all residents of Synanon.” In our view, the issue to be decided in the fair hearing before the referee of the State Department of Social Welfare, which carried forward in the superior court action and carries forward [23 Cal.App.3d 178] on appeal, was whether Mrs. Holmes and her children were, or were not, entitled to public assistance under the evidence and the applicable law. The hearing was not intended as a vehicle for the State Department of Social Welfare to question the propriety of the County Welfare Department’s general policy toward Synanon residents or the alleged shortcomings in its investigation procedures. The director’s correct claim that eligibility for AFDC must be established by an individual determination of need applies equally to the hearing before his own department. Certainly, if the evidence at that hearing established the ineligibility of Mrs. Holmes and her children for public aid because of lack of need, it was the director’s duty to declare it, irrespective of the fact the county’s original denial of her application may have been premised upon an improper general policy toward Synanon residents or resulted from an insufficiently individualized investigation.
Welfare and Institutions Code section 11200 et seq. are a part of the Aid to Families with Dependent Children program established by the Social Security Act of 1935 (See 42 U.S.C.A. § 601 et seq.). California courts have recognized the interdependence of the California and the federal act. (See Pearson v. State Social Welfare Board, 54 Cal.2d 184 , 189, 214 [5 Cal.Rptr. 553, 353 P.2d 33].) The federal act, in section 606(a) defines a dependent child as a “needy child who has been deprived of parental support or care ….” (Italics added.) Similar eligibility requirements are set forth in Welfare and Institutions Code section 11250: “Aid, services, or both, shall be granted under the provisions of this chapter, and subject to the regulations of the department, to families with related children under the age of 18 years, … in need thereof because they have been deprived of parental support or care due to: (a) The death, physical or mental incapacity, or incarceration of a parent; or (b) The divorce, separation or desertion of a parent or parents and resultant continued absence of a parent from the home for these or other reasons; or (c) The unemployment of a parent or parents.” (Italics added.) Deprivation of parental support alone, under the contingencies enumerated in subsections (a), (b) and (c), is not sufficient to entitle an applicant family to public aid under the program. Before public aid may be granted to a family, the section makes it unmistakably clear the children must be in need thereof. fn. 1
[2] That applicants for public assistance under the AFDC program must demonstrate actual need is established by both California and federal [23 Cal.App.3d 179] case law. In People v. Shirley, 55 Cal.2d 521 , at page 525 [11 Cal.Rptr. 537, 360 P.2d 33, 92 A.L.R.2d 413], the Supreme Court stated: “Under its express terms the provisions of the Welfare and Institutions Code are to be administered fairly, with due consideration not only for the needs of applicants but also for the safeguarding of public funds. (Welf. & Inst. Code, § 103.3) [now 11004]. If children are not in need, they are obviously not eligible for assistance regardless of who is paying for their support.” (Italics added.) (See also County of Kern v. Coley, 229 Cal.App.2d 172 , 180 [40 Cal.Rptr. 53].)
Appellant’s reliance upon King v. Smith, 392 U.S. 309 [20 L.Ed.2d 1118, 88 S.Ct. 2128], to establish a contrary rule is misplaced. There, the Supreme Court declared invalid an Alabama “substitute father” regulation which disqualified a family for AFDC funds if the “substitute father” cohabited with the children’s mother, regardless of whether he contributed to the support of the family. As the trial court carefully and succinctly pointed out in its memorandum opinion filed in this case, the “substitute father” in King was neither willing nor able to support the children of the cohabitating mother, and did not in fact support them. The Supreme Court in its opinion stated: “Further, there is no question that regular and actual contributions to a needy child, including contributions from the kind of person Alabama calls a substitute father, can be taken into account in determining whether the child is needy. In other words, if by reason of such a man’s contribution, the child is not in financial need, the child would be ineligible for AFDC assistance without regard to the substitute father rule.” (King v. Smith, 392 U.S. 309, 319-320 [20 L.Ed.2d 1118, 1127, 88 S.Ct. 2128, 2134-2135].)
[1b] In the instant case, the undisputed evidence at the hearing before the state department referee showed all the basic and special needs of Mrs. Holmes and her children were being furnished by Synanon at a higher level than AFDC regulations themselves would permit. Moreover, the director’s pleading in the mandate proceedings admitted these facts to be true. In the superior court proceedings, both the pleadings and the record under review demonstrated Mrs. Holmes and her children were not eligible for AFDC assistance. The trial court’s judgment requiring the director to set aside his contrary decision was correct.
The judgment is affirmed.
10. In re Faucette , 253 Cal.App.2d 338
[Crim. No. 12032. Second Dist., Div. Two. Aug. 8, 1967.]
In re Frederick M. Nicholas on Behalf of GEORGE GILBERT FAUCETTE on Habeas Corpus.
Thomas C. Lynch, Attorney General, William E. James, Doris H. Maier, Assistant Attorneys General, and Anthony M. Summers, Deputy Attorney General, for Appellant.
Frederick M. Nicholas, A. L. Wirin, Fred Okrand and Laurence R. Sperber for Respondent.
On December 14, 1965, a petition for a writ of habeas corpus was filed in the court below on behalf of George Gilbert Faucette, hereinafter referred to as “petitioner.” This petition alleges that petitioner is “a parolee under the jurisdiction of the Department of Corrections of the State of California …” and that he “is being illegally held in custody, confinement and restraint by the Department of Corrections of the State of California, and that the illegality thereof consists in this, to wit:
“Petitioner, who is now residing at Synanon House in Santa Monica, California, has been ordered by the Department of Corrections to remove himself and his possessions therefrom or suffer the revocation of his parole and that he is thereby being deprived of rights to which he is entitled under the Constitution and laws of the State of California and of the United States. …”
Said petition concludes with a prayer for relief including the following: “(1) That a Writ of Habeas Corpus directed to Walter Dunbar, Director of the Department of Corrections of the State of California, issue for the purpose of inquiring into the cause of the restraint and delivering the said George Gilbert Faucette therefrom.
“(2) That an Order to Show Cause why the relief prayed for should not be granted and a Temporary Restraining Order be issued pending the hearing and determination of said Order to Show Cause, restraining Walter Dunbar, his officers, agents, employees, representatives and all persons acting in concert or participating with him, from engaging in or performing, directly or indirectly, any or all of the following acts: (A) Imposing as a condition of the parole of George Gilbert Faucette that he refrain from residing at Synanon House in Santa Monica, California. (B) Revoking the parole [253 Cal.App.2d 340] of George Gilbert Faucette or harassing or otherwise taking reprisals against him as a result of his residence at Synanon House in Santa Monica, California.”
After a reasonably extended hearing, the trial court entered an order which declares “that the Petitioner is entitled to full consideration of his application to the Adult Authority fn. 1 to remain at Synanon House and that pending a full determination by the Adult Authority as to the appropriateness of the petitioner’s request, his continued residence there should not alone be a ground for revocation of his parole.”
Walter Dunbar, in his capacity as Director of the Department of Corrections, has appealed from this order and in his brief states his contentions as follows: “(1) Habeas corpus does not lie to review an order of the Department of Corrections directed to a parolee when no action is taken to suspend, cancel, or revoke parole;” and “(2) It is not an abuse of discretion for the Department of Corrections to refuse to permit petitioner to reside at Synanon.”
[1] Preliminary, we hold that petitioner is mistaken in his contention that this order is not appealable. Section 1506 of the Penal Code provides that an appeal may be taken by the People “from a final order of a superior court made upon the return of a writ of habeas corpus discharging a defendant or otherwise granting all or any part of the relief sought. …” By the present order the trial court granted petitioner’s prayer that the Adult Authority be required to give consideration to his request for permission to continue his residence at Synanon. Also to the extent that the order restrains future action by the Adult Authority, it grants a part of the relief sought and partakes of the nature of a preliminary injunction.
The evidence bearing upon the issues of law herein presented is essentially uncontradicted. For some 15 years petitioner, who was 53 years old at the time of the hearing in the trial court, has been afflicted with a serious problem of narcotic addiction. Since 1954, he has been in and out of prison serving a two to twenty-year sentence for possession of narcotics. His presently effective release on parole is his fifth. [253 Cal.App.2d 341] He has been returned to prison after short periods outside its walls following each of four prior releases by reason of his inability to control his narcotic habit.
Apparently fearing another relapse and having met other persons who had found help for their similar problems through residence at the facilities operated by Synanon Foundation, Inc. fn. 2 in Santa Monica, California, petitioner sought admittance and was accepted therein on December 7, 1965. On the same day he notified his parole officer, E. L. Arnold, of this change of residence. On December 13, 1965, petitioner received a post card from Parole Officer Arnold requesting that he report to his parole office the following day together with his clothing and personal belongings.
Indicating that he had not yet returned again to the use of narcotics, petitioner filed his pending petition for relief contending, in effect, that since narcotic addiction is an “illness” (cf. People v. Robinson, 370 U.S. 660, 666-667 [8 L.Ed.2d 758, 762-763, 82 S.Ct. 1417]; People v. Victor, 62 Cal.2d 280 , 301-304 [42 Cal.Rptr. 199, 398 P.2d 391]; People v. O’Neil, 62 Cal.2d 748 , 754 [44 Cal.Rptr. 320, 401 P.2d 928]; People v. Sullivan, 234 Cal.App.2d 562 , 568-569 [44 Cal.Rptr. 524]; Welf. & Inst. Code, § 3000), one suffering from such an “illness,” even if he be a parolee whose rights and privileges are concededly most limited, should not be summarily prevented from seeking assistance in a chosen facility without, at least, some reasonable precedent investigation and consideration of such facility by the Adult Authority.
[2] Petitioner does not challenge the general rule that a parolee has no right to choose his own residence. (Cf. People v. Denne, 141 Cal.App.2d 499 , 507 et seq. [297 P.2d 451].) He concedes that one of the conditions of his parole, to which he agreed prior to release from confinement, is that his choice of residences would be subject to approval by his parole officer. He contends only that in view of the unusual nature of his basic problem, i.e., an “illness” which in his case had progressed to such a stage that it is generally regarded as “incurable” and terminal, his efforts to achieve rehabilitation, the success of which he regards as dependent upon his continued residence at the designated facility, should not be frustrated without requiring the controlling [253 Cal.App.2d 342] authority to give reasonable consideration to the merit of his choice before taking negative action.
Further, petitioner acknowledges that the discretion granted by the Legislature to the Adult Authority, a special administrative agency, necessarily is extremely broad and should not be the subject of judicial interference absent the most clear and convincing showing that such discretion has been abused. However, petitioner contends that appellant’s summary rejection of his attempt to help himself did not amount to an abuse of discretion but, in practical terms, constituted a complete failure to exercise any discretion in the premises. After considering the evidence presented, the trial court concurred with this contention stating in its Opinion and Order:
“The Court recognizes that the Adult Authority has vast discretionary powers, and we think that the Attorney General correctly states the law when he urges that the Court cannot substitute its discretion for the discretion of the Adult Authority. …
“If the Court had found that after careful consideration of the elements suggested for consideration in the Denne case [supra, 141 Cal.App.2d 499], the Adult Authority concluded the petitioner and society would be better helped in a hotel room rather than Synanon House, this Court would not impose his judgment over that of the authority’s in such determination. The evidence, however, indicates no substantial consideration was given to the validity of petitioner’s request to reside at Synanon House.”
Contrary to appellant’s basic premise on this appeal, the trial court did not conclude that it would be an abuse of discretion for the Adult Authority to deny petitioner’s request to reside at, and receive help from, the facilities operated by Synanon Foundation, Inc. upon any of the several potential bases for such denial suggested in appellant’s brief. This is true because appellant’s position at trial was that it had not denied petitioner’s request to reside at Synanon and had established no policy either permitting or disapproving such residence for parolees.
[3] Appellant, of course, is correct in his observation that where an administrative body is granted the power to control certain activities, that body ordinarily must be given the opportunity to act before judicial intervention is sought. This doctrine is commonly known as “exhaustion of administrative remedies.” It is well established that exhaustion of administrative [253 Cal.App.2d 343] remedies is a jurisdictional prerequisite to resort to court action. (Abelleira v. District Court of Appeal, 17 Cal.2d 280 , 292 [109 P.2d 942, 132 A.L.R. 715] et seq.) Until the administrative body has acted, there is nothing for the court to review. (Western Surgical Supply Co. v. Affleck, 110 Cal.App.2d 388 , 391 [242 P.2d 929].)
[4] On the other hand, where, as here, an administrative body has declined to exercise its discretion or has demonstrated by its actions that it intends to act without proper consideration of the subject matter, habeas corpus is an appropriate method of seeking declaratory and injunctive relief. (In re Gonsalves, 48 Cal.2d 638 , 642 [311 P.2d 483]; In re Bramble, 31 Cal.2d 43 , 53-54 [187 P.2d 411]; In re Marzec, 25 Cal.2d 794 , 797 [154 P.2d 873].)
Perhaps the most anomalous aspect of the instant proceeding is that the desires expressed by both appellant and petitioner appear to be entirely consistent with the order made by the trial court. Appellant contended that the trial court should not usurp the right of his agency to grant or deny petitioner’s request to reside at Synanon until appellant had had an opportunity to act thereon.petitioner agreed with this contention but urged that appellant should not be permitted to reject his request automatically and arbitrarily without first giving it consideration on its merits. The following order made by the trial court would appear to satisfy both parties.
“The Court concludes that the order to move, without giving reasonable consideration to petitioner’s request to remain at Synanon House, since it is a matter which may materially affect the petitioner’s health and safety, is arbitrary and oppressive, and relief should be granted. The Petition for Writ of Habeas Corpus will, therefore, be granted. The Court declares that the Petitioner is entitled to full consideration of his application to the Adult Authority to remain at Synanon House and that pending a full determination by the Adult Authority as to the appropriateness of the petitioner’s request, his continued residence there should not alone be a ground for revocation of his parole.” (Italics added.)
We find nothing in this order inconsistent with appellant’s contention that the Adult Authority should be permitted to make an investigation and a determination of appellant’s request before its decision is subjected to judicial review. On the contrary, the court’s order does no more than require the authority to do that which it asserts it wishes to do but which [253 Cal.App.2d 344] the evidence clearly demonstrated it had to that date refused to do. The following observations made by the trial court in its Opinion and Order find ample support in the record:
“The respondent, Adult Authority, has not favored the Court with any evidence indicating that it has considered the use of Synanon facilities in its overall program for rehabilitation of addicts on parole. The Court is, frankly, unable to understand the lack of interest in such a proven technique for rehabilitation of addicts. One of the great problems recognized by all law enforcement agencies is the tendency of persons once addicted to the use of drugs to relapse into such use. The relapse of a parolee constitutes, in effect, a failure on the part of the parole program and it appears to the Court that an agency vested with such authority, discretion and responsibility as the Adult Authority, should in the sound exercise of its discretion, carefully consider the facilities of such an institution as Synanon House as an effective adjunct to the parole program. The consequence of failure in any instance of the parole program, represents a serious loss to the public and a serious threat to the health and welfare of the parolee so involved.”
In his brief filed herein appellant asserts that it should not be deemed an abuse of discretion for the authority to refuse to allow petitioner to reside in the facilities operated by Synanon Foundation, Inc., if after full consideration of the question it determines that despite the alternative checks provided by Synanon residence it should not forego its customary requirement that parolees be subjected to nalline or other tests to determine whether or not they have reverted to the use of narcotics. This may well be true, but there is nothing in the trial court’s order that is in conflict therewith. The point made by the trial court is that to date no such determination has been made. To quote further from the trial court’s Opinion and Order:
“Prior to the determination by parole officer Arnold that the petitioner should move from Synanon House to a hotel room east of Sepulveda Boulevard, the Department of Corrections had not made any evaluation of either the physical facilities of Synanon House, nor had they approved or disapproved Synanon House as a place of residence for parolees. Neither parole officer Arnold, nor any other representative of the Department of Corrections had ever visited Synanon House. No one from the Department of Corrections had made any first-hand inspection of the living facilities, nor [253 Cal.App.2d 345] had they made any examination of the program and procedures conducted at Synanon House. Between July of 1959 and July of 1961, at least one former addict parolee under the jurisdiction of the Department of Corrections was permitted to reside at Synanon House without objections. The testimony of parole officer Arnold and a supervisor of the Department of Corrections indicate that prior to giving Mr. Faucette notice to move no serious consideration was given, if indeed any at all by the Department, as to the suitability of Synanon House for parolees. Likewise, the evidence indicates the Department has no present policy at all with reference thereto. …
“Considerable testimony was offered relating to the usefulness, as compared to the dangers, in connection with the use of nalline tests. The uncontroverted testimony adduced at the hearing, indicated that Synanon House discourages the use of nalline tests which are conducted for the purpose of determining if the person tested has been a recent user of certain types of narcotics.
“The Adult Authority normally prescribes that parolees take nalline tests. Testimony adduced by a representative of the Adult Authority indicates that under certain circumstances nalline tests are waived by the Adult Authority and that the waiver of such tests is discretionary with the Adult Authority. While it has been argued that the use of the nalline test, or non-use, is a determinative factor in this case, the Court does not agree with this contention.
“If after full consideration of the advantages, as compared to possible disadvantages, the Adult Authority would conclude that Synanon House is a desirable place for a former drug addict, and would provide for him a reasonable opportunity to receive supportive help, such as is available at Synanon House, the Adult Authority might well, in its sound discretion, find that sufficient other safeguards and methods of drug addiction detection are available and present at Synanon House to warrant their granting a waiver of the nalline test for such resident during the period of his residence thereto.”
The other possible grounds suggested by appellant as potential bases for refusing to allow petitioner to receive assistance at the Synanon facilities need not be passed upon at this time. For example, if after full investigation and consideration the Adult Authority should refuse to permit parolees to reside at the Synanon facilities because of an inability to work out a cooperative agreement with the officers thereof, or, assuming [253 Cal.App.2d 346] that the Synanon House falls within the purview of Health and Safety Code, section 11391, that it fails to meet the requirements thereof, or because its buildings are not approved by the appropriate fire marshal’s or other health and safety inspectors, or because of the “controversial” nature of its theory of therapy and rehabilitation, it may order petitioner to remove therefrom without in any fashion violating the present order of the trial court.
It appears from the undisputed evidence in the present record, however, that no such investigation had been made and consideration had been given to these matters at the time of the hearing below.
In conclusion, we believe that the trial court quite properly refused to pass upon the hypothetical questions as to what the court’s attitude should be if, after considering petitioner’s request, appellant might ultimately determine to reject it. It was sufficient for the purposes of the present proceeding to require that such consideration be given.
The order under review is affirmed.
Roth, P. J., and Fleming, J., concurred.
Synanon Foundation, Inc. is a private non-profit corporation operated largely by former addicts that seeks to assist narcotic users who desire to achieve freedom from addiction. Following an investigation by the California Assembly Interim Committee on Criminal Procedure, the following Findings and Recommendations were printed in the Assembly Interim Committee Reports, 1961- 1963, Volume 22, No. 3, p. 73:
“The existence of Synanon serves several useful purposes:
“1. It is keeping approximately 100 former addicts off of narcotics. This feat in itself benefits not only the persons directly involved but also the community at large by preventing crimes committed to finance addiction.
“2. It saves the taxpayers a sizeable amount of money which they should otherwise have to spend to keep these people in jails or state hospitals.
“3. It provides a valuable educational service by sending speakers to any requesting school, church, club or other facility.
“4. It provides an unparalleled opportunity for research on every aspect of narcotics addiction. These possibilities are not being adequately exploited at the present time.
“5. There is no known ‘cure’ for narcotics addiction. An essential part of addiction is the tendency to relapse and return to the use of narcotics. Judged in comparison to other narcotic treatment programs Synanon appears to be a most promising effort to rehabilitate narcotic addicts.
“1. Recognizing that there are many approaches but no proven formulae for addict rehabilitation, we recommend that the State of California [253 Cal.App.2d 347] take a friendly but nondirective interest in Synanon and any other private attempts to rehabilitate narcotic addicts.
“2. We recommend that one of the publicly supported universities in Southern California co-ordinate a research program to study the causes of addiction and to appraise the various rehabilitation efforts, both public and private, being made throughout the United States.
“3. It is hoped that such a study might enable California to develop effective methods to prevent addiction.”
Persons on parole or probation granted by federal authorities and by the States of Nevada, Oregon, New Jersey, Minnesota, Missouri, Connecticut, Ohio, Massachusetts, New York, Florida and Illinois are residing at Synanon facilities. At the time of the instant hearing 18 residents at Synanon were on probation from the California state courts.prior to 1961, California parolees were permitted to reside at Synanon but apparently this practice was halted by reason of charges of zoning violations brought against the organization by the City of Santa Monica. At the time of the instant action evidence was introduced that these actions involving zoning disputes were “off calendar.”
Published analyses of the Synanon operations include:
Daniel Casriel, M.D.–Book–So Fair A House: The Story of Synanon–Prentice-Hall, Inc., 1963.
Lewis Yablonsky–Book–Synanon: The Tunnel Back–The Macmillan Company, 1965.
Lewis Yablonsky–Article–“The Anticriminal Society: Synanon”–Federal Probation, Vol. XXVI, No. 3, September, 1962.
Rediffusion, Ltd.–London–Film–“A House on the Beach,” 1965.
Walker Winslow–Article–“Synanon–An Application of the Reality Principle”–The Municipal Court Review, Fall Issue, 1964.
Elliott L. Markoff, M.D.–Study–“The Dynamics of Synanon”–April, 1964.
Marshall S. Cherkas, M.D.–Article–“A Radical Approach to the Problem of Addiction”–Scientific Proceedings, 1964.
Rita Volkman & Donald R. Cressey–Article–“Differential Association and the Rehabilitation of Drug Addicts”–The American Journal of Sociology, Vol. LXIX, No. 2, September, 1963.
Gertrude Samuels–Article–“Where Junkies Learn to Hang Tough”–New York Times, May, 1965.
Time Magazine–Article–Vol. LXXVII, No. 15, April 7, 1961.
Time Magazine–Article–“Synanon House, Reno, Nevada”–Vol. LXXXI, No. 9, March 1, 1963.
Life–Article–“A Tunnel Back Into the Human Race”–March 9, 1962.
Wall Street Journal–Article–October, 1965.
John R. Fry–Article–“Aid for the Addicted”–Presbyterian Life, July 15, 1963. [253 Cal.App.2d 348]
¬ FN 1. Throughout the proceedings references are made alternately to the “Adult Authority” and to the “Department of Corrections.” As the Attorney General has pointed out, the Adult Authority is a subsidiary agency of the Department of Corrections established by the Legislature as a specialized body to determine such questions as the controls which should be placed upon parolees. (Cf. People v. Morse, 60 Cal.2d 631 , 642-646 [36 Cal.Rptr. 201, 388 P.2d 33, 12 A.L.R.3d 810].)
¬ FN 2. References to materials describing Synanon Foundation, Inc., its activities and methodology are set forth in the appendix hereto.
11. Reader’s Digest Assn. v. Superior Court (1984) 37 Cal.3d 244 , 208 Cal.Rptr. 137; 690 P.2d 610
[S.F. No. 24686. Supreme Court of California. November 19, 1984.]
READER’S DIGEST ASSOCIATION, INC., et al., Petitioners, v. THE SUPERIOR COURT OF MARIN COUNTY, Respondent; SYNANON CHURCH et al., Real Parties in Interest
(Opinion by Broussard, Acting C. J., expressing the unanimous view of the court.) [37 Cal.3d 245]
Pillsbury, Madison & Sutro, William I. Edlund, Walter R. Allan, John A. Sutro, Jr., Donald M. Egeland and David Otis Fuller, Jr., for Petitioners.
No appearance for Respondent.
Bourdette, Benjamin & Weill, Philip C. Bourdette and David R. Benjamin for Real Parties in Interest.
Petitioners seek a writ of mandate to review a ruling of the Marin County Superior Court denying their motion for summary judgment.
Petitioners are codefendants in a suit for libel and related causes of action filed by the Synanon Church (Synanon) and Charles Dederich, its founder. Plaintiffs allege that they were defamed in an article written by David MacDonald, an employee of Reader’s Digest, and published in the July 1981 edition of Reader’s Digest. The article, entitled The Little Paper That Dared, describes how David and Cathy Mitchell, publishers of the Point Reyes Light, received the Pulitzer Prize for a series of reports and articles critical of Synanon. Although Synanon has filed other suits attacking the articles in the Point Reyes Light, the present action relates only to the Reader’s Digest article.
David MacDonald based his article on the Mitchells’ newspaper accounts, their subsequent book, The Light on Synanon, research papers on Synanon by Richard of she, professor of sociology at the University of California, and conversations with of she and the Mitchells. The Mitchells reviewed a draft of the article and suggested corrections, some of which Reader’s Digest adopted.
The article recounts the history of Synanon from its inception in 1958 as a program for the rehabilitation of drug addicts. It notes the transformation of Synanon into an “alternative life-style community,” claiming to be a church, and describes the Mitchells’ accusation that local officials had been lax in enforcing the law against Synanon. The Reader’s Digest article went on to charge that Synanon had adopted a policy of intimidation, and cited examples: an assault on a former member when he returned to visit the Synanon facility in west Marin County, and a similar attack on another [37 Cal.3d 250] member who left Synanon when he refused Dederich’s orders to have a vasectomy. In particular, the article discussed the case of Paul Morantz, an attorney who had filed several suits against Synanon and who was bitten by a rattlesnake placed in his mailbox. Dederich and two Synanon members were charged with conspiracy to murder Morantz, and were subsequently convicted and sentenced.
Despite the numerous and serious charges stated in the article, plaintiffs’ lawsuit singles out only three sentences as defamatory. These sentences read: “Synanon was founded in 1958 by Charles Dederich, a reformed alcoholic, to rehabilitate drug addicts. Though his spectacular claims of success were never proved, Dederich and Synanon attracted publicity and enough cash donations to start a string of addiction centers. … Since 1968, minimal drug rehabilitation work had been attempted; funds, however, were still solicited on that basis.” Plaintiffs assert that the sentences communicate to the reader “that plaintiffs have not been and are not successful in rehabilitating drug addicts and other character-disordered persons and that plaintiffs’ representations of success were fraudulently made to enrich themselves.” fn. 1
Synanon’s suit names Reader’s Digest, MacDonald, of she, and the Mitchells as defendants. Reader’s Digest and MacDonald moved for summary judgment. They claim that Synanon and Dederich are “public figures” under the New York Times doctrine (New York Times Co. v. Sullivan (1964) 376 U.S. 254 [11 L.Ed.2d 686, 84 S.Ct. 710, 95 A.L.R. 2d 1412]), and consequently that defendants can be liable only for a statement “made with ‘actual malice’ ¶ that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” (376 U.S. at pp. 279-280 [11 L.Ed.2d at p. 706].) The moving defendants maintain that there is no triable issue of fact as to actual malice, and hence that they are entitled to summary judgment. The trial court stated that the issue was close, but denied the motion. [1] Reader’s Digest and MacDonald now seek review by writ of mandate. fn. 2 We will conclude that the trial court erred in denying the motion for summary judgment and that the writ of mandate should therefore issue. [37 Cal.3d 251]
I. Summary Judgment as a Favored Remedy in Defamation Actions.
Before addressing the merits of the ruling below, we first examine whether summary judgment is a favored or disfavored remedy in defamation cases. In 1978, this court in Good Government Group of Seal Beach, Inc. v. Superior Court (1978) 22 Cal.3d 672 [150 Cal.Rptr. 258, 586 P.2d 572], said that “because unnecessarily protracted litigation would have a chilling effect upon the exercise of First Amendment rights, speedy resolution of cases involving free speech is desirable. [Citing Dombrowski v. Pfister (1965) 380 U.S. 479, 486-487 [14 L.Ed. 22, 28-29, 85 S.Ct. 1116].] Therefore, summary judgment is a favored remedy, and upon such a motion the trial court must determine whether there is a sufficient showing of malice to warrant submission of that issue to the jury.” (P. 685.) Court of Appeal decisions echo this approving view of summary judgment, though cautioning that summary disposition is not appropriate if a triable issue of fact exists. (See Kaufman v. Fidelity Fed. S. & L. Assn. (1983) 140 Cal.App.3d 913 , 920 [189 Cal.Rptr. 818]; Bill v. Superior Court (1982) 137 Cal.App.3d 1002 , 1015 [187 Cal.Rptr. 625]; Desert Sun Publishing Co. v. Superior Court (1979) 97 Cal.App.3d 49 , 53 [158 Cal.Rptr. 519]; Fuhrman v. Risner (1979) 92 Cal.App.3d 725 , 730-731 [155 Cal.Rptr. 122].)
The United States Supreme Court, and in particular Chief Justice Burger, however, has implied that summary judgment may be unsuited for deciding issues of actual malice. In Hutchison v. Proxmire (1979) 443 U.S. 111 [61 L.Ed.2d 411, 99 S.Ct. 2675], the district court had granted summary judgment for defendant, noting that in deciding issues of actual malice “summary judgment might well be the rule rather than the exception.” (P. 120 [61 L.Ed.2d at p. 422].) While reversing the district court on other grounds (the high court held that plaintiff was not a public figure and thus the New York Times standard did not apply), the opinion commented in a footnote: “Considering the nuances of the issues raised here, we are constrained to express some doubt about the so-called ‘rule’. The proof of ‘actual malice’ calls a defendant’s state of mind into question, New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and does not readily lend itself to summary disposition. [Citations.] In the present posture of the case, however, the propriety of dealing with such complex issues by summary judgment is not before us.” (443 U.S. at p. 120, fn. 9 [61 L.Ed.2d at p. 422].) fn. 3 [37 Cal.3d 252]
It is pointless to declare in the abstract that summary judgment is a favored or disfavored remedy. A more subtle analysis is required ¶ one that explains how a motion for summary judgment should be decided in a defamation case under the New York Times test. [2] The Fifth Circuit in Rebozo v. Washington Post Co. (1981) 637 F.2d 375, undertook such an analysis and reached the following conclusion: “[T]he standard of review of First Amendment defamation actions, as in all summary judgment cases, is whether the record, construed in a light most favorable to the party against whom the judgment has been entered, demonstrates there are genuine issues of fact which, if proven, would support a jury verdict for that party. Since, however, a jury verdict in a defamation case can only be supported when the actual malice is shown by clear and convincing evidence, rather than by a preponderance of evidence as in most other cases, Brewer v. Memphis Publishing Co., 626 F.2d 1238, 1258 (5th Cir. 1980), the evidence and all the inferences which can reasonably be drawn from it must meet the higher standard.” (P. 381.)
We recognize a potential chilling effect from protracted litigation as well as a public interest in resolving defamation cases promptly. That does not mean, however, that a court should grant summary judgment when there is a triable issue of fact as to actual malice. Instead, courts may give effect to these concerns regarding a potential chilling effect by finding no triable issues unless it appears that actual malice may be proved at trial by clear and convincing evidence ¶ i.e., evidence sufficient to permit a trier of fact to find for the plaintiff and for an appellate court to determine that the resulting judgment “‘does not constitute a forbidden intrusion on the field of free expression'” (Bose Corp. v. Consumers Union, supra, 466 U.S. 485 at p. [80 L.Ed.2d 502 at p. 515]). To this extent, therefore, summary judgment remains a “favored” remedy in defamation cases involving the issue of “actual malice” under the New York Times standard.
II. Synanon and Charles Dederich Are “Public Figures.”
Synanon and its founder, Dederich, first contest their status as “public figures,” a question of law which is crucial to the proper resolution of their libel claim. fn. 4 In New York Times Co. v. Sullivan (1964) 376 U.S. 254 [11 L.Ed.2d 686, 84 S.Ct. 710, 95 A.L.R.2d 1412], the United States Supreme Court fundamentally altered judicial treatment of defamation actions by placing a significant constitutional limitation on the ability of a public official to recover damages for a defamatory falsehood. Emphasizing the importance of free expression and a free press under the First Amendment, [37 Cal.3d 253] the Supreme Court determined that “public officials” may not prevail in an action for libel relating to their official conduct absent proof that the statement was made with “actual malice.” (See also St. Amant v. Thompson (1968) 390 U.S. 727, 731 [20 L.Ed.2d 262, 267, 88 S.Ct. 1323].) Three years later, the court held that “public figures” ¶ like public officials ¶ must also prove actual malice in order to recover in a defamation action. (Curtis Publishing Co. v. Butts (1967) 388 U.S. 130 [18 L.Ed.2d 1094, 87 S.Ct. 1975].) Though holding that the plaintiffs in the two cases before it properly fell under the aegis of “public figures,” the court did not offer an encompassing definition of that term. fn. 5 Further refinement of the concept was developed in subsequent United States Supreme Court decisions.
In Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323 [41 L.Ed.2d 789, 94 S.Ct. 2997], the court provided a twofold rationale for extending the New York Times rule to “public figures.” First, it recognized that public figures are generally less vulnerable to injury from defamation because of their ability to resort to effective “self help.” Such persons ordinarily enjoy considerably greater access than private individuals to the media and other channels of communication. This access in turn enables them to counter criticism and to expose the fallacies of defamatory statements. (418 U.S. at p. 344 [41 L.Ed.2d at p. 808].) Second, and more significantly, the court cited a normative consideration that public figures are less deserving of protection than private persons because public figures, like public officials, have “voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them.” (418 U.S. at p. 345 [41 L.Ed.2d at p. 808]; see also Curtis Publishing Co. v. Butts, supra, 388 U.S. at p. 164 [18 L.Ed.2d at p. 1116] (Warren, C. J., conc. in result).)
Having thus explained the rationale for the public figure classification, the Gertz decision defined two classes of public figures. The first is the “all purpose” public figure who has “achiev[ed] such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts.” The second category is that of the “limited purpose” or “vortex” public figure, an individual who “voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues.” (418 U.S. at p. 351 [41 L.Ed.2d at p. 812].) Unlike the “all purpose” public figure, the “limited purpose” public figure [37 Cal.3d 254] loses certain protection for his reputation only to the extent that the allegedly defamatory communication relates to his role in a public controversy. [3a] In the present case, we find that Synanon should at the very least be classified as a “limited purpose” public figure for the purposes of this general controversy, and that Dederich is a public figure to the extent that his conduct in directing the activities of Synanon is at issue.
[4] The cases decided since New York Times and Gertz make it clear that a person or group should not be considered a “public figure” solely because that person or group is a criminal defendant (Wolston v. Reader’s Digest Assn., Inc., supra, 443 U.S. 157); has sought certain relief through the courts (Time, Inc. v. Firestone (1976) 424 U.S. 448 [47 L.Ed.2d 154, 96 S.Ct. 958]); or merely happens to be involved in a controversy that is newsworthy (Time, Inc. v. Firestone, supra). Rather, as this court recognized in Vegod Corp. v. American Broadcasting Companies, Inc. (1979) 25 Cal.3d 763 [160 Cal.Rptr. 97, 603 P.2d 14], a “public figure” plaintiff must have undertaken some voluntary act through which he seeks to influence the resolution of the public issues involved. fn. 6 As such, the mere involvement of a person in a matter which the media deems to be of interest to the public does not, in and of itself, require that such a person become a public figure for the purpose of a subsequent libel action.
In sum, when called upon to make a determination of public figure status, courts should look for evidence of affirmative actions by which purported [37 Cal.3d 255] “public figures” have thrust themselves into the forefront of particular public controversies. As is reflected in the evolution of the public figure doctrine, from Butts through Gertz, Firestone and Wolston, such a determination is often a close question which can only be resolved by considering the totality of the circumstances which comprise each individual controversy.
[3b] In the instant matter, it is clear that both Synanon and Dederich should indeed by accorded public figure status for the proper resolution of their defamation action. This determination is not based on the organization’s and Dederich’s own statements regarding their public visibility and reputation, fn. 7 but instead is grounded in their myriad attempts to thrust their case and Synanon in general into the public eye.
Plaintiffs have been the subject of a full-length movie (a 1966 production entitled “Synanon” and starring Chuck Connors as the Charles Dederich character), four books, favorable magazine articles in Life, Time and even Reader’s Digest (two 1970 articles) and numerous newspaper articles. For many years Synanon engaged in extensive publicity campaigns in which it sought and achieved a favorable reputation as an organization for the rehabilitation of drug addicts.
When Synanon’s reputation began to sour somewhat in the late 1970’s, largely as a result of the articles in the Point Reyes Light, Synanon’s response went far beyond defensive litigation. In 1979, shortly after the Point Reyes Light received the Pulitzer Prize, the United Press International (UPI) filed a formal complaint against Synanon with the National News Council. UPI charged therein that the foundation had engaged in systematic efforts “to threaten UPI’s reputation and, generally, object to any news coverage which reflects unfavorably upon Synanon.” UPI further charged that Synanon’s lawyers have been “flooding the nation’s news media with letters threatening libel suits as a part of the systematic pattern of intimidation designed to suppress all stories they considered unfavorable.” Even reports on the award of the Pulitzer Prize to the Point Reyes Light drew form letters demanding retraction on pain of suit. [37 Cal.3d 256]
In investigating UPI’s charges, the National News Council staff discovered that the foundation had initiated the “Retraction Project.” According to Synanon’s own reports, this project sent out at least 960 letters to the media during 1978 and 1979, arguing its case and intentionally attracting further attention to its cause. Recipients included all the major television networks and many of their affiliates as well as hundreds of newspapers ranging from the Wall Street Journal and the New York Times to the Billings Gazette (Mont.). Synanon also contracted with a nationwide service to provide clips of articles published relating to its activities, and according to its report, 11,136 such clips were provided during 1978 and 1979 alone.
While any person or organization has the right to engage in publicity efforts and to attempt to influence public and media opinion regarding their cause, such significant, voluntary efforts to inject oneself into the public arena require that such a person or organization be classified as a public figure in any related defamation actions. In the instant case, Synanon and its founder have sponsored massive publicity and self-promotion efforts over a period of many years and apparently increased these efforts with regard to the present controversy. As such, they enjoyed remarkable access to the media through which to counter any criticisms they deemed to be unwarranted and voluntarily exposed themselves to increased risk of injury from unfavorable commentary about them. Thus they have clearly met the standards for “public figure” status for purposes of this defamation action.
III. The Record Presents No Triable Issue of Actual Malice.
As we noted earlier, the New York Times decision superimposed a constitutional standard on the common law of libel. [5] If the person defamed is a public figure, he cannot recover unless he proves, by clear and convincing evidence (see New York Times Co. v. Sullivan, supra, 376 U.S. 254, 285-286 [11 L.Ed.2d 686, 706-707]), that the libelous statement was made with “‘actual malice’ ¶ that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” (Pp. 279-280 [11 L.Ed.2d at p. 706].) That decision did not define the phrase “reckless disregard,” and its use of the term ¶ “actual malice” ¶ which had a different meaning in the common law of libel, engendered some confusion.
Four years later, in St. Amant v. Thompson, supra, 390 U.S. 727, the high court sought to clarify the constitutional standard. First, it explained, “reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing [37 Cal.3d 257] with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.” (P. 731 [20 L.Ed.2d at p. 267].) fn. 8
The quoted language establishes a subjective test, under which the defendant’s actual belief concerning the truthfulness of the publication is the crucial issue. (See Alioto v. Cowles Communications, Inc. (N.D. Cal. 1977) 430 F.Supp. 1363, 1365-1366.) This test directs attention to the “defendant’s attitude toward the truth or falsity of the material published … [not] the defendant’s attitude toward the plaintiff.” (Widener v. Pacific Gas & Electric Co. (1977) 75 Cal.App.3d 415 , 434 [142 Cal.Rptr. 304].)
[6] Although the ultimate issue is thus the good faith of the publisher, the court explained that a defendant cannot “automatically insure a favorable verdict by testifying that he published with a belief that the statements were true. The finder of fact must determine whether the publication was indeed made in good faith. Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call. Nor will they be likely to prevail when the publisher’s allegations are so inherently improbable that only a reckless man would have put them in circulation. Likewise, recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.” (St. Amant v. Thompson, supra, 390 U.S. 727, 732 [20 L.Ed.2d 262, 267-268], fn. omitted.)
[7] As St. Amant’s examples suggest, actual malice can be proved by circumstantial evidence. “[E]vidence of negligence, of motive and of intent may be adduced for the purpose of establishing, by cumulation and by appropriate inferences, the fact of a defendant’s recklessness or of his knowledge of falsity.” (Goldwater v. Ginzburg (2d Cir. 1969) 414 F.2d 324, 342; Widener v. Pacific Gas & Electric Co., supra, 75 Cal.App.3d 415 , [37 Cal.3d 258] 434.) A failure to investigate fn. 9 (see Widener v. Pacific Gas & Electric Co., supra, 75 Cal.App.3d 415 , 435), anger and hostility toward the plaintiff (id., at p. 436), reliance upon sources known to be unreliable (Curtis Publishing Co. v. Butts, supra, 388 U.S. 130, 156 [18 L.Ed.2d 1094, 1111]; Pep v. Newsweek, Inc. (S.D.N.Y. 1983) 553 F.Supp. 1000, 1002), or known to be biased against the plaintiff (Fisher v. Larsen (1982) 138 Cal.App.3d 627 , 640 [188 Cal.Rptr. 216]; Burns v. McGraw-Hill Broadcasting Co., Inc. (Colo. 1983) 659 P.2d 1351, 1361-1362) ¶ such factors may, in an appropriate case, indicate that the publisher himself had serious doubts regarding the truth of his publication.
We emphasize that such evidence is relevant only to the extent that it reflects on the subjective attitude of the publisher. (St. Amant v. Thompson, supra, 390 U.S. 727, 732-733 [20 L.Ed.2d 262, 268]; Pep v. Newsweek, Inc., supra, 553 F.Supp. 1000, 1003; Velle Transcendental Research Ass’n v. Sanders (C.D.Cal. 1981) 518 F.Supp. 512, 518-519.) The failure to conduct a thorough and objective investigation, standing alone, does not prove actual malice, nor even necessarily raise a triable issue of fact on that controversy. (See St. Amant v. Thompson, supra, 390 U.S. 727, 733 [20 L.Ed.2d 262, 268]; Beckley Newspapers v. Hanks (1967) 389 U.S. 81, 84-85 [19 L.Ed.2d 248, 252, 88 S.Ct. 197].) Similarly, mere proof of ill will on the part of the publisher may likewise be insufficient. (Gomes v. Fried (1982) 136 Cal.App.3d 924 , 934-935 [186 Cal.Rptr. 605].)
[8a] Upon examining the record before us, we find no triable issue as to actual malice. There is no direct evidence that MacDonald or other Reader’s Digest personnel believed the questioned passages in the article were false, or even entertained serious doubts respecting their truth. Reader’s Digest relied primarily upon the writings and conversations with Professor of she and the Mitchells. Dr. of she is a professor of sociology at a leading university and the author of a number of studies on Synanon; the Mitchells received the Pulitzer Prize for their reports and editorials on Synanon. Plaintiffs questioned the objectivity of these sources, and the extent of their [37 Cal.3d 259] knowledge of Synanon, but do not question that Reader’s Digest considered them to be persons of unsullied reputation. fn. 10
[9] In this setting, Reader’s Digest’s failure to contact Synanon or to conduct an objective investigation is relatively inconsequential. A publisher does not have to investigate personally, but may rely on the investigation and conclusions of reputable sources. “Where the publication comes from a known reliable source and there is nothing in the circumstances to suggest inaccuracy, there is no duty to investigate.” (Bindrim v. Mitchell (1979) 92 Cal.App.3d 61 , 73 [155 Cal.Rptr. 29]; see Brewer v. Memphis Pub. Co., Inc. (5th Cir. 1980) 626 F.2d 1238; Vandenburg v. Newsweek, Inc. (5th Cir. 1975) 507 F.2d 1024, 1028; Barger v. Playboy Enterprises, Inc., supra, 564 F.Supp. 1151, 1157; Trans World Accounts, Inc. v. Associated Press (N.D.Cal. 1977) 425 F.Supp. 814, 822; Martin Marietta Corp. v. Evening Star Newspaper (D.D.C. 1976) 417 F.Supp. 947, 958-959; cf. Velle Transcendental Research Ass’n v. Sanders, supra, 518 F.Supp. 512, 518-519 [reliance on sources of doubtful reputation but corroborated each other].) fn. 11
Neither is there a duty to write an objective account. A publisher is “not required to provide an objective picture (New York Times Company v. Connor (5th Cir. 1966) 365 F.2d 567, 576) or an accurate one [citing Time, Inc. v. Pape (1971) 401 U.S. 279 (28 L.Ed.2d 45, 91 S.Ct. 633)]” (Gomes v. Fried, supra, 136 Cal.App.3d 924 , 934). So long as he has no serious doubts concerning its truth, he can present but one side of the story. (Vandenburg v. Newsweek, Inc., supra, 507 F.2d 1024, 1028.) The Reader’s Digest could properly tell the story of how the Mitchells won the Pulitzer Prize, and in that story reflect the Mitchells’ views on Synanon, without also presenting Synanon’s side of the picture. Fair and objective reporting may be a worthy ideal, but there is also room, within the protection of the First Amendment, for writing which seeks to expose wrongdoing and arouse righteous anger; clearly such writing is typically less than objective in its presentation. [37 Cal.3d 260]
[10] Synanon argues that Reader’s Digest’s knowledge that Synanon had already sued Dr. of she and the Mitchells for libel should have led Reader’s Digest to require independent corroboration of the statements from these sources. It also maintains that when Reader’s Digest received a demand for retraction before it published certain foreign language editions of the article, it was then on notice of the need for further investigation. (See Bindrim v. Mitchell, supra, 92 Cal.App.3d 61 , 74.)
Both arguments assume that the threat or filing of a libel action should cause a publisher to have serious doubts about the truth of its story and the truthfulness of its sources. But Reader’s Digest was aware that, as reported in MacDonald’s article, “Synanon’s 40-member legal department often used the courts to silence articles and block efforts at governmental control.” A National News Council report described Synanon as using litigation “for coercing the press into silence about Synanon and its affairs,” and the Pulitzer Prize Committee, in awarding the prize to the Mitchells, praised their refusal to yield to threats of lawsuits. The threat of a libel suit by Synanon might well give a publisher pause, but it would not necessarily lead it to doubt the truthfulness of its article or its sources.
Plaintiffs point to a letter written by MacDonald a year before the article was published, in which he wrote: “For what started as a do-good organization, I must say Synanon seems very, very nasty indeed, and litigious as hell.” They suggest that this letter proves that MacDonald was biased against them. At the time he wrote the letter, however, MacDonald was well into the preparation of his article; he was aware of Synanon’s hoarding of arms, the assaults upon former members, the burning of the house of a former member, the rattlesnake attack on Attorney Morantz, and of Synanon’s numerous lawsuits. His letter seems a reasonable reaction to what he had learned in preparing to write the article, and does not indicate a state of mind that would suggest that he had serious doubts about the article’s veracity.
Plaintiffs also point out that one of the Reader’s Digest editors deleted the phrase “one time heroin user” from a description of Jack Hurst, a Synanon director, and made the marginal notation “credibility ¶ of rehabilitation program!” Plaintiffs infer from this cryptic comment that the editor was unwilling for the article to acknowledge that even one former drug user had been rehabilitated by Synanon. But under the St. Amant standard, the nonobjectivity of the editor is not the issue. To show actual malice, plaintiffs would have to draw the inference that the editor’s knowledge of Hurst’s rehabilitation led him to doubt the truth of the article’s statements that after 1968 Synanon’s rehabilitation program was minimal. This is a dubious inference at best; moreover, with the Hurst deletion as the strongest evidence [37 Cal.3d 261] we have found in the record to support plaintiffs’ position, we conclude that a trier of fact could not find clear and convincing evidence of actual malice. fn. 12
[11] Plaintiffs further rely, however, on the argument that the Reader’s Digest article factually departs from the statements and information furnished by of she and the Mitchells. Such a contention squarely raises the question of the extent to which the New York Times standard of actual malice permits the exercise of “literary license.”
The language of New York Times itself clearly implies that all publications must necessarily be permitted some degree of flexibility in their choice of the proper words and phrases to describe the subject at issue: “[E]rroneous statement is inevitable in free debate, and … must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need … to survive.'” (New York Times, supra, 376 U.S. at pp. 271-272 [11 L.Ed. at p. 701], citation omitted.) Further, the United States Supreme Court has reaffirmed this concept in several more recent decisions. “Realistically, … some error is inevitable; and the difficulties of separating fact from fiction convinced the court in New York Times, Butts, Gertz, and similar cases to limit liability to instances where some degree of culpability is present in order to eliminate the risk of undue self-censorship and the suppression of truthful material.” (Herbert v. Lando (1979) 441 U.S. 153, 171-172 [60 L.Ed.2d 115, 131, 99 S.Ct. 1635].)
In its very recent decision on this same issue, the United States Supreme Court clearly recognized the need for a certain degree of literary license when properly applying the New York Times standard to the facts of each case. In Bose Corp. v. Consumer’s Union, supra, 466 U.S. 485 [80 L.Ed.2d 502], the alleged defamatory material consisted of a statement in Consumer Reports magazine that the musical sound projected by Bose’s speakers tended [37 Cal.3d 262] to wander “about the room.” Plaintiff corporation argued that the sound in fact tended to wander “along the wall” and introduced the testimony of the engineer who performed the evaluation for defendant magazine in order to corroborate this latter interpretation. The United States Supreme Court rejected plaintiff’s argument that such a choice of words constituted defamation and approved the author’s choice of words as a valid exercise of literary license. They characterized the magazine’s adoption of the particular phrase “about the room” as “‘one of a number of possible rational interpretations’ of an event ‘that bristled with ambiguities’ and descriptive challenges for the writer. [Citation.] The choice of such language, though reflecting a misconception, does not place the speech beyond the outer limits of the First Amendment’s broad protective umbrella …. The statement in this case represents the sort of inaccuracy that is commonplace in the forum of robust debate to which the New York Times rule applies. [Citing Time, Inc. v. Pape (1970) 401 U.S. 279, 290-292 (28 L.Ed.2d 45, 53-54, 91 S.Ct. 633).]” (Bose Corp. v. Consumer’s Union, supra, 466 U.S. 485, [80 L.Ed.2d 502, 525].) fn. 13
The allegedly defamatory statements in the instant case provide similarly apposite examples of the importance of literary license to a competent and free press. The two sentences which Synanon has claimed to be particularly defamatory focus on the phrase that the foundation’s “spectacular claims of success were never proved,” and the statement that “[s]ince 1968, minimal drug rehabilitation work had been attempted; funds, however, were still solicited on that basis.” Synanon contends that neither of these two statements finds any support in Reader’s Digest’s research and specifically in the interviews with the Mitchells and Professor of she. However, if we permit Reader’s Digest a reasonable degree of flexibility in its choice of language, Synanon’s claims fail on both counts. [37 Cal.3d 263]
Regarding the statement that Synanon’s “spectacular claims of success were never proved,” the record reveals that documentary sources available to the defendants reported that numerous claims of high success rates had been made by or attributed to Synanon and Dederich. These included a claimed cure rate for addicts of up to 90 percent. There was no evidence that Synanon or Dederich had ever disclaimed these reports. Indeed, Synanon’s own publications boasted that the foundation was “the world’s foremost authority on curing drug addiction,” and that its “cure rate is 100%.” Synanon’s own publicity release stated that it had “helped some 40,000 drug addicts, alcoholics and juvenile delinquents” and is “the grandfather of over 3,000 American self-help programs.” Dederich himself asserted that he “personally helped hundreds, and possibly thousands, of people,” and that Synanon’s rehabilitation rate was and is “totally miraculous.”
The record also reveals that plaintiffs themselves have on occasion acknowledged that there is no basis for such claims of success. Indeed, Dederich personally stated, “Our statistics are utterly ridiculous. One in thirty stayed …. We don’t call ourselves any kind of rehab place …. We’re just lying.” Equally as important, despite Synanon’s assertions to the contrary, it is clear that both the Mitchells and Dr. of she believed that many of Synanon’s claims were, at the very least, exaggerated. Plaintiffs draw attention to the fact that David Mitchell was unwilling in deposition to use the precise term “spectacular” when describing Synanon’s claims of success, but there is much evidence in the record which indicates the Mitchells’ grave doubts about many of Synanon’s broad claims. In a similar vein, although Synanon contends that Dr. of she never made that exact statement either, their own “expert” analysis of Dr. of she’s statements are in accord with defendants’ interpretation. For example, they stated “the thrust of [of she’s] paper is that Synanon never achieved the degree of successful drug rehabilitation that it claimed or that outsiders believed … of she … sees the whole history of Synanon as a failure to cure addicts.”
It is readily apparent that both Synanon and Reader’s Digest correctly interpreted Dr. of she’s study and its conclusion about Synanon’s claims of success. In fact, the study at one point concluded, “No rigorous research has ever shown Synanon’s approach worked any better than dozens of other drug programs …. What set Synanon apart from all other programs was not success but public relations.” When this study and many of Synanon’s and Dederich’s own statements are examined, it becomes clear that Reader’s Digest’s statement regarding “spectacular” claims of success which were unproven draws support from a fairly wide sampling of evidence. When this evidence is considered in the important context of an author’s right to choose appropriate words and phrases, Synanon’s quibbling over the use of [37 Cal.3d 264] the word “spectacular” in no way constitutes a legitimate showing of defamation. A fair reading of all the material which was available to Reader’s Digest and author MacDonald at the time the article was written clearly suggests that the description of Synanon’s success claims as “spectacular” and “never proved” falls within an acceptable range of literary license.
In like manner, Reader’s Digest’s statement that since 1968 minimal drug rehabilitation work had been attempted, though funds were still solicited on that basis, also seems well within the range of appropriate literary license. Synanon emphasizes that none of MacDonald’s sources offer any figures as to the extent of Synanon’s rehabilitative program during the 1970’s. They argue, in effect, that a program which has been deemphasized and assigned secondary status might still be more than “minimal.” However, strong evidence indicates that this characterization was not only adequately supported by Reader’s Digest’s sources but also an accurate appraisal of reality.
Once again, Synanon and Dederich’s own statements about the changing nature of the organization lend significant support to the author’s assertion. fn. 14 In addition to this source of confirmation, David Mitchell, who had investigated the Synanon operation for several years, confirmed in his deposition testimony that he advised the defendants that the article accurately reported Synanon’s activities and conduct. This was in accord with information which Mitchell had received from his own sources that “very little of [Synanon’s] activities were involved in curing addicts. It was still going on, but it was a small part of the overall activities of Synanon.” Moreover, on reviewing the draft of the Reader’s Digest article, David Mitchell himself suggested that the word “minimal” be employed, indicating that it was preferable to “very little.”
Dr. of she also had stated in several of his writings that the drug rehabilitation activities had been greatly deemphasized after 1968, leaving what was only a “small scale” program. This conclusion is supported by a variety [37 Cal.3d 265] of other evidence in the record, and Synanon again appears to be merely quibbling with the author’s choice of words. Given the importance of permitting a reasonable degree of literary license, the statement in question seems easily supportable and by no means an act in reckless disregard of the truth. fn. 15
IV. Plaintiffs’ Other Causes of Action.
[12] Although the parties concentrated their argument on the asserted cause of action for libel, plaintiffs’ second amended complaint set forth several additional causes of action. These included claims for intentional infliction of emotional distress, invasion of privacy by placing plaintiffs in a “false light,” and invasion of privacy by intrusion in plaintiffs’ private affairs. Each of these additional causes of action are based upon the same facts as the cause of action for libel. Our conclusion that plaintiffs have failed to show a triable issue of fact as to actual malice requires summary judgment on every claim based upon the publication of the Reader’s Digest article.
The New York Times decision defined a zone of constitutional protection within which one could publish concerning a public figure without fear of liability. That constitutional protection does not depend on the label given the stated cause of action (see New York Times Co. v. Sullivan, supra, 376 U.S. 254, 269 [11 L.Ed.2d 686, 700]); it bars not only actions for defamation, but also claims for invasion of privacy (Time, Inc. v. Hill (1967) 385 U.S. 374, 387-388 [17 L.Ed.2d 456, 467, 87 S.Ct. 534]; Goldman v. Time, Inc. (N.D.Cal. 1971) 336 F.Supp. 133, 137-138; Kapellas v. Kofman (1969) 1 Cal.3d 20 , 35 fn. 16 [81 Cal.Rptr. 360, 459 P.2d 912]). Dederich’s cause of action for intentional infliction of emotional distress presents an issue of first impression, but fails for the same reason as his causes of action for defamation and privacy: liability cannot be imposed on any theory for what has been determined to be a constitutionally protected publication. [37 Cal.3d 266]
V. Conclusion.
[8b] The Reader’s Digest article described Synanon as an organization which, under Dederich’s leadership, had eventually adopted and carried out a policy of violence and intimidation. It is replete with statements referring to serious crimes, including attempted murder. The present lawsuit, however, ignores most of those charges, and instead quibbles about the wording of what would appear to be three of the more innocuous sentences in the article. fn. 16
One sentence asserted that Dederich’s “spectacular claims of success were never proved ….” Synanon’s own statements, as well as Reader’s Digest’s sources, indicate that plaintiffs claimed an extraordinary rate of success at rehabilitating drug addicts; plaintiffs merely deny that the claims themselves were “spectacular.” Reader’s Digest said that since 1968 “minimal drug rehabilitation work had been attempted”; plaintiffs admit that since 1968 Synanon’s drug rehabilitation program has been deemphasized, and that it is now secondary to the main purposes of the organization, but argue only that even a deemphasized program may possibly be more than “minimal.” Reader’s Digest said Synanon still solicits funds for its drug rehabilitation program; plaintiffs respond only that Synanon also solicits funds for other purposes.
None of the alleged defamatory statements goes beyond what a responsible staff writer might draft on the basis of the information provided him by his sources. The sources themselves were persons of good, indeed distinguished, reputation. There is nothing at all in the record to suggest that MacDonald or anyone else at the Reader’s Digest had any serious doubt as to the reliability of the sources or the truth of the challenged statements.
Since we conclude that the record reveals no clear and convincing evidence of “actual malice,” as that term is defined in the controlling decisions of the United States Supreme Court, and thus fails to raise a triable issue of fact, summary judgment should therefore have been entered in favor of codefendants David MacDonald and the Reader’s Digest. Let a peremptory writ of mandate issue directing the trial court to vacate its order denying petitioners’ motion for summary judgment and to enter its order granting the motion. [37 Cal.3d 267]
Mosk, J., Kaus, J., Reynoso, J., Grodin, J., Lucas, J., and Rouse, J., concurred.
¬ FN 1. We do not understand the reference to “character-disordered persons” in the complaint and in plaintiffs’ arguments. The questioned sentences, as we read them, refer only to the rehabilitation of drug addicts and to the solicitation of funds for that purpose.
¬ FN 2. “A writ of mandate is a proper remedy to compel a trial court to grant a motion for summary judgment where the affidavits in support of the moving party are sufficient to sustain a judgment in his favor, and his opponent does not by counteraffidavit show facts sufficient to present a triable issue of fact.” (Roman Catholic Archbishop v. Superior Court (1971) 15 Cal.App.3d 405 , 410 [93 Cal.Rptr. 338]; Iversen v. Superior Court (1976) 57 Cal.App.3d 168 , 170-171 [127 Cal.Rptr. 49]; see Whitney’s at the Beach v. Superior Court (1970) 3 Cal.App.3d 258 , 265-266 [83 Cal.Rptr. 237].)
¬ FN 3. The court referred to this footnote in Wolston v. Reader’s Digest Assn., Inc. (1979) 443 U.S. 157, 161, footnote 3 [ 61 L.Ed.2d 450, 416, 99 S.Ct. 2701], but again declined to decide the role of summary judgment in defamation litigation. In Bose Corp. v. Consumers Union (1984) 466 U.S. 485 [80 L.Ed.2d 502, 104 S.Ct. 1949], the district court had granted summary judgment for plaintiff; the court of appeals reversed and the Supreme Court affirmed the court of appeals. Its decision holds that an appellate court has a duty to make an independent examination of the record in First Amendment cases, but did not discuss whether such cases should be decided by summary judgment.
¬ FN 4. The trial court found as a matter of law that Synanon and Dederich were “public figures” under the relevant standards.
¬ FN 5. In Curtis Publishing Co. v. Butts, supra, 388 U.S. 130 the plaintiff was an athletic director of a major university who challenged a magazine report that he had conspired with a counterpart at another university to fix the outcome of a football contest. Plaintiff in the companion case of Associated Press v. Walker (1967) 388 U.S. 130 [18 L.Ed.2d 1094, 87 S.Ct. 1975] was a retired Army officer who had “thrust himself into the vortex of the controversy” over admission of blacks to a state university. As noted above, both were held to be “public figures” for purposes of their defamation suits.
¬ FN 6. In Wolston v. Reader’s Digest Assn., Inc., supra, 433 U.S. 157, for example, the Supreme Court addressed more specifically the factors which control whether or not a particular plaintiff is a “public figure.” Wolston, who had been undergoing interrogation with respect to the activities of Soviet intelligence agents in the United States, failed to respond to a grand jury subpoena. He subsequently pleaded guilty to contempt charges and received a suspended sentence. These proceedings were attended by considerable newspaper publicity, but Wolston then returned to relative obscurity until, some 16 years later, a publisher named him as one of several “Soviet agents identified in the United States.” He sued for libel; the publisher asserted the qualified constitutional privilege on the ground that Wolston had become a “public figure.” Lower courts agreed with the publisher; the Supreme Court reversed. Particularizing its comments to the facts before it, the Supreme Court said: “[T]he mere fact that petitioner voluntarily chose not to appear before the grand jury, knowing that his action might be attended by publicity, is not decisive on the question of public-figure status. … [A] court must focus on the ‘nature and extent of an individual’s participation in the particular controversy giving rise to the defamation.’ … [P]etitioner never discussed this matter with the press and limited his involvement to that necessary to defend himself of the contempt charge. … [¶] [The] simple fact that these events attracted media attention also is not conclusive of the public-figure issue. A private individual is not automatically transformed into a public figure just by becoming involved in or associated with a matter that attracts public attention. …” (443 U.S. at p. 167.)
For a detailed discussion of the factors to be considered in determining whether an individual is a public figure for the purposes of a certain issue, see Note, Constitutional Protection of Critical Speech and the Public Figure Doctrine: Retreat by Reaffirmation (1980) Wis. L.Rev. 568.
¬ FN 7. The record contains numerous examples of Synanon and Dederich’s own evaluation of their fame. For example, by their own declarations in documents filed in court proceedings, Synanon claims to be “internationally renowned,” a “renowned expert,” “world-famous,” “widely recognized,” and “widely known to the community generally.” Both Synanon and Dederich claim to have an “international reputation.” Dederich summed it up: “We had had enormous amounts of publicity. Now, we really are world famous. I have been more famous than Santa Claus and more people knew about me than knew about World War II. We have been written about, photographed and movied and televised and so on pretty ¶ pretty steadily through the years. I don’t think we are as famous as Muhammed Ali. Of course, nobody is. But we are pretty famous.”
¬ FN 8. The court further observed that “[i]t may be said that such a test puts a premium on ignorance, encourages the irresponsible publisher not to inquire, and permits the issue to be determined by the defendant’s testimony that he published the statement in good faith and unaware of its probable falsity. Concededly the reckless disregard standard may permit recovery in fewer situations than would a rule that publishers must satisfy the standard of the reasonable man or the prudent publisher. But New York Times and succeeding cases have emphasized that the stake of the people in public business and the conduct of public officials is so great that neither the defense of truth nor the standard of ordinary care would protect against self-censorship and thus adequately implement First Amendment policies. Neither lies nor false communications serve the ends of the First Amendment, and no one suggests their desirability or further proliferation. But to insure the ascertainment and publication of the truth about public affairs, it is essential that the First Amendment protect some erroneous publications as well as true ones. We adhere to this view and to the line which our cases would have drawn between false communications which are protected and those which are not.” (390 U.S. at p. 731-732 [20 L.Ed.2d at p. 267].)
¬ FN 9. Plaintiff argues that the Reader’s Digest had a higher duty to investigate because the article was not “hot news,” citing Curtis Publishing Co. v. Butts, supra, 388 U.S. 130, 156 [18 L.Ed.2d 1094, 1111] (opn. of Harlan, J.). The plurality opinion in Curtis proposed an objective standard ¶ “highly unreasonable conduct” (p. 158 [ 18 L.Ed.2d at p. 1113]) ¶ to govern liability in suits by public figures who were not public officials. That standard has since been superseded for both public figures and public officials by the subjective standard set out in St. Amant v. Thompson, supra, 390 U.S. 727. As a result, the distinction between “hot news” and other news drawn by Butts has lost much of its force (see discussion in Barger v. Playboy Enterprises, Inc. (N.D.Cal. 1983) 564 F.Supp. 1151, 1156); it remains relevant only in that a failure to investigate cannot be significant if there was no time to investigate.
¬ FN 10. Compare Curtis Publishing Co. v. Butts, supra, 388 U.S. 130 (reliance without corroboration upon man on criminal probation who claimed to have overheard a telephone call); Pep v. Newsweek, Inc., supra, 553 F.Supp. 1000 (reliance upon source reputed to be a compulsive gambler, a swindler and a liar).
¬ FN 11. The superior court, in finding a triable issue of fact as to Reader’s Digest’s alleged reckless disregard of the truth, quoted Goldwater v. Ginzburg, supra, 414 F.2d 324, 343, where the court stated that “[r]ecklessness is, after all, only negligence raised to a higher power.” (Accord, Fisher v. Larsen, supra, 138 Cal.App.3d 627 , 640.) That language in the context of the New York Times standard is somewhat misleading. “Reckless disregard of the truth,” as defined in St. Amant v. Thompson, supra, 390 U.S. 727, does not mean gross or even extreme negligence, but requires actual doubt concerning the truth of the publication.
¬ FN 12. Plaintiffs raise two other matters. First, they assert that the Reader’s Digest Editorial Research Manual admonishes researchers to “begin with available Digest Sources,” but that MacDonald ignored two Reader’s Digest articles published in 1970 which praised Synanon’s rehabilitation program. Both articles were primarily concerned with the Synanon program of the 1960’s, and do not substantially contradict MacDonald’s thesis that Synanon has changed since 1968, and that drug rehabilitation is now minimal.
Plaintiffs also suggest that MacDonald’s notes of a conversation with Dr. of she show that he was aware of Synanon’s continued drug rehabilitation program. The notes read: “Undeserved rep. as miracle drug cure … 1,000 a year coming in. Far more successful in business than in rehab.” Those notes show only that MacDonald was aware of about 1,000 persons entering the program a year, but that Dr. of she did not consider the program very successful. The article did not say that Synanon had no drug rehabilitation program, but only that its program was “minimal.” An unsuccessful program which attempts to treat 1,000 persons a year, carried on by an organization which invests the greater part of its energy in other matters, could be characterized as a “minimal” program.
¬ FN 13. Although California courts have never directly addressed this concept of literary license, there is an appropriate analogy in the “fair report” privilege. Civil Code section 47, subdivision 4, provides that a privileged publication is one made by a “fair and true report” of various official proceedings. Several cases have been decided under this statute, and all permit a certain degree of flexibility/literary license in defining “fair report.” “‘It is well settled that a defendant is not required in an action of libel to justify every word of the alleged defamatory matter; it is sufficient if the substance, the gist, the sting of the libelous charge be justified. …'” (Hayward v. Watsonville Register-Pajaronian and Sun (1968) 265 Cal.App.2d 255 , 262 [71 Cal.Rptr. 295], citing Kurata v. Los Angeles News Pub. Co. (1935) 4 Cal.App.2d 224 [40 P.2d 520].)
Similarly, the court in Handelsman v. San Francisco Chronicle (1970) 11 Cal.App.3d 381 [90 Cal.Rptr. 188] pursued the definition of “fair and true.” There, defendant newspaper published an account of a civil lawsuit filed against the plaintiff which was “translated” by the writer, who characterized the allegation of civil conversion as “outright theft.” The court also cited Kurata, supra, 4 Cal.App.2d at pages 227-228: “‘”If the substantial imputations be proved true, a slight inaccuracy in the details will not prevent a judgment for the defendant, if the inaccuracy does not change the complexion of the affair so as to affect the reader of the article differently than the actual truth would.”‘” (Handelsman, supra, 11 Cal.App.3d at p. 387.)
¬ FN 14. For just one example, Reader’s Digest obtained through discovery a tape recording of a 1977 speech by Dederich to Synanon members in which he says: “We are not … a rehabilitation place for dope fiends. We’re, we’re not. We stopped being that a long, long time ago. Very, very little of our energy goes into that situation. Almost none …. That notion is ten to twelve years old, that we are somehow a rehab place for dope fiends. We don’t rehab dope fiends. They don’t stay. We’ve been out of that business for a long time.”
Reader’s Digest does not claim that MacDonald relied on this tape recording in writing his article. The recording nevertheless lends support to our conclusion that MacDonald’s characterization of Synanon’s program during the 1970’s as “minimal” is not an act of reckless disregard of the truth and in fact is quite an appropriate characterization.
¬ FN 15. Plaintiffs suggest that summary judgment should be denied to permit them to conduct further discovery. Plaintiffs have already deposed Dr. of she, David Mitchell, David MacDonald and Heather Chapman (the Reader’s Digest research editor). They have served and received responses to four sets of interrogatories and four sets of requests for documents. Their request for additional discovery suggests no specific persons or documents to be examined, but merely notes that “many editors and other individuals involved with the subject article have not yet been deposed.” The possibility that plaintiffs will uncover clear and convincing evidence of actual malice by deposing various unnamed persons peripherally involved in the Reader’s Digest editorial process is remote, and does not justify this court’s abstaining from a decision on the merits of the summary judgment motion.
¬ FN 16. Compare Cervantes v. Time, Inc., supra, 464 F.2d 986, in which plaintiff, the Mayor of St. Louis, challenged only four paragraphs of an eighty-seven paragraph article charging that plaintiff had business relationships with criminal organizations in the city. The decision affirmed a summary judgment for the defendant.
12. Mitchell v. Superior Court (1984) 37 Cal.3d 268 , 208 Cal.Rptr. 152; 690 P.2d 625

SUMMARY: Supreme Court upholds journalist right to protect sources as necessary for a free press and to encourage sources to give information. It explored First Amendment underpinnings for the rule that a plaintiff must demonstrate falsity before obtaining invasive and expensive discovery concerning the defendant’s allegedly malicious mental state required to be liable for a false statement against a public figure. In Mitchell , the Supreme Court issued a writ of prohibition to block Synanon’s efforts to engage in wide-ranging discovery from Dave and Cathy Mitchell who furnished the allegedly defamatory information to Reader’s Digest magazine. The plaintiff, Synanon, “wanted to review all documents available to the [couple] in order to prove that [they] selectively relied on some documentary evidence and ignored other evidence more favorable to Synanon.” ( Id. at p. 273.) To safeguard the First Amendment, the high court concluded a plaintiff in such circumstances must “make a prima facie showing that the alleged defamatory statements are false before requiring disclosure.” ( Id. at p. 283.) The court reasoned, “[t]he falsity of the . . . charges . . . should be drawn into question and established as a jury issue before discovery is compelled,'” because “‘to routinely grant motions seeking compulsory disclosure . . . without first inquiring into the substance of a libel allegation would utterly emasculate . . . fundamental principles . . . .'”
[S.F. No. 24685. Supreme Court of California. November 19, 1984.]
DAVID MITCHELL et al., Petitioners, v. THE SUPERIOR COURT OF MARIN COUNTY, Respondent; SYNANON CHURCH et al., Real Parties in Interest
(Opinion by Broussard, Acting C. J., expressing the unanimous view of the court.) [37 Cal.3d 269]
Paul Alexander, Robert E. Borton, Pamela A. Mull, Andrea G. Asaro, Regina A. Stagg and Heller, Ehrman, White & McAuliffe for Petitioners.
No appearance for Respondent.
Bourdette, Benjamin & Weill, Philip C. Bourdette and David R. Benjamin for Real Parties in Interest.
Petitioners David and Cathy Mitchell seek a writ of prohibition to prevent the Marin County Superior Court from enforcing a discovery order requiring petitioners to produce documents revealing confidential sources of information. Their petition brings before this court for the first time the question whether in a civil action a newsperson has a privilege to refuse to reveal confidential sources or information obtained from those sources.
This petition stems from a libel action by The Synanon Church (Synanon) and Charles Dederich against the Reader’s Digest, the Mitchells, David MacDonald, and Richard of she. A petition for writ of mandate to review the trial court’s denial of a motion for summary judgment by MacDonald and the Reader’s Digest is also before this court. (Reader’s Digest Assn. v. Superior Court (1984) ante, p. 244 [208 Cal.Rptr. 137, 690 P.2d 610].) The opinion in that case sets out the background of the underlying lawsuit, describes the Reader’s Digest article which led to that suit, and analyzes the alleged defamatory statements in that article.
In brief summary, the Reader’s Digest article, by staff writer David MacDonald, describes how the Mitchells won the Pulitzer Prize for a series of reports and editorials critical of Synanon which appeared in their weekly newspaper, the Point Reyes Light. The article contains the following statements: “Synanon was founded in 1958 by Charles Dederich, a reformed alcoholic, to rehabilitate drug addicts. Though his spectacular claims of success were never proved, Dederich and Synanon attracted publicity and enough cash donations to start a string of addiction centers. … Since 1968, minimal drug rehabilitation work had been attempted; funds, however, were still solicited on that basis.” Plaintiffs charge that such language implies that plaintiffs were not successful at drug rehabilitation and that their claims of success were fraudulently made to enrich themselves. [37 Cal.3d 273]
Although Synanon and its members have filed other lawsuits against the Mitchells, charging defamation in the Point Reyes Light and in the Mitchells’ later book, The Light on Synanon, the present case concerns only the Reader’s Digest account. Synanon claims that the Mitchells, Professor Richard of she, David MacDonald, and the Reader’s Digest “conspired and acted in concert with each other to write, edit and publish to and among each other and to the readers of the article the false, malicious and defamatory words and language contained therein.”
The Reader’s Digest revealed the sources for its article: the Mitchell’s newspaper accounts, The Light on Synanon, Professor of she’s research papers, conversations with of she and the Mitchells, and a few other, less significant, sources. Plaintiffs, however, want to discover the sources’ sources. They sent the Mitchells 2 requests to produce documents, the first listing 27 broad categories of documents and the second specifying over 10 different documents. We do not set out the requests in full, as many are overlapping or duplicative. The breadth of the discovery sought is indicated by request number 8 from the first set of requests, which asks for “Each and every document, other than as described [and requested] above, referring to or relating to Synanon and/or Charles E. Dederich in the possession, custody or control of defendants prior to the publication of the Reader’s Digest Article.” Synanon’s counsel made it clear that they were not limiting their request to documents shown to MacDonald or the Reader’s Digest; they wanted to review all documents available to the Mitchells in order to prove that the Mitchells selectively relied on some documentary evidence and ignored other evidence more favorable to Synanon.
The Mitchells objected to request number 8 and many other requests on the ground “that it is vague and ambiguous and, to the extent it is intelligible, is overbroad, unduly burdensome, and calls for information protected from disclosure by, inter alia, The First Amendment to the Constitution of the United States, The First Amendment to the Constitution of the State of California and the common law.” fn. 1 The superior court, however, ordered the Mitchells to identify every document responsive to the first and second requests, and to produce all documents described under specific items, including request number 8, of the first request to produce.
The Mitchells, uncertain whether the court had ruled on their claim of privilege, withheld documents tending to reveal confidential sources and asked the court to clarify its order. Ruling from the bench in response to [37 Cal.3d 274] the motion to clarify, the judge stated that he was ruling that the asserted privilege does “not exist in California.” [1a] The Mitchells now seek a writ of prohibition to bar enforcement of the court’s order requiring them to produce the withheld documents.
[2] California by statute (Evid. Code, § 1070) and by constitutional amendment (art. I, § 2, subd. (b)) provides that “[a] publisher, editor, reporter, or other person connected with or employed upon a newspaper … shall not [“cannot” in Evid. Code] be adjudged in contempt … for refusing to disclose the source of any information procured while so connected or employed for publication in a newspaper … or for refusing to disclose any unpublished information.” fn. 2 Since contempt is generally the only effective remedy against a nonparty witness, the California enactments grant such witnesses virtually absolute protection against compelled disclosure. A party to civil litigation who disobeys an order to disclose evidence, however, may be subject to a variety of other sanctions, including the entry of judgment against him. (See Code Civ. Proc., § 2034.) Neither Evidence Code section 1070 nor article I, section 2, subdivision (b), protects a party against such sanctions. (See Playboy Enterprises, Inc. v. Superior Court (1984) 154 Cal.App.3d 14 , 26 [201 Cal.Rptr. 207].) [3] [1b] The Mitchells, as defendants in Synanon’s libel suit, therefore seek to assert a nonstatutory privilege based on the broad protections for freedom of the press enshrined in the United States Constitution and the correlative provision (art. I, § 2, subd. (a)) of the California Constitution. fn. 3
In Zerilli v. Smith (D.C.Cir. 1981) 656 F.2d 705, Judge J. Skelly Wright explained the importance of a reporter’s privilege to the fundamental values protected by the First Amendment. “The First Amendment,” he said, “guarantees a free press primarily because of the important role it can play as ‘a vital source of public information.’ [Citing Grosjean v. American Press Co. (1936) 297 U.S. 233, 250 (80 L.Ed. 660, 668, 56 S.Ct. 444).] … Without an unfettered press, citizens would be far less able to make informed political, social, and economic choices. But the press’ function as a vital source of information is weakened whenever the ability of journalists [37 Cal.3d 275] to gather news is impaired. Compelling a reporter to disclose the identity of a source may significantly interfere with this news gathering ability; journalists frequently depend on informants to gather news, and confidentiality is often essential to establishing a relationship with an informant.” (Pp. 710-711, fns. omitted.)
In similar language Judge Irving Kaufman in Baker v. F. & F. Investment (2d Cir. 1972) 470 F.2d 778, certiorari denied, 411 U.S. 966 [36 L.Ed.2d 686, 93 S.Ct. 2147], declared that: “Compelled disclosure of confidential sources unquestionably threatens a journalist’s ability to secure information that is made available to him only on a confidential basis. … The deterrent effect such disclosure is likely to have upon future ‘undercover’ investigative reporting, the dividends of which are revealed in articles such as [this] threatens freedom of the press and the public’s need to be informed.” (P. 782.) fn. 4
Judicial decisions, however, recognize that other significant values favor disclosure. Herbert v. Lando (1979) 441 U.S. 153 [60 L.Ed.2d 115, 99 S.Ct. 1635], reminds us “that the individual’s interest in his reputation is also a basic concern” (p. 169 [ 60 L.Ed.2d at p. 129]), and that the assertion of an evidentiary privilege would impede his ability to prove actual malice (p. 170 [ 60 L.Ed.2d at p. 130]). Justice Stewart in Garland v. Torre (2d Cir. 1958) 259 F.2d 545, certiorari denied, 358 U.S. 910 [3 L.Ed.2d 231, 79 S.Ct. 237], acknowledged the argument for privilege based on the First Amendment, but added that “[b]asic too are courts of justice, armed with the power to discover the truth. The concept that it is the duty of a witness to testify in a court of law has roots fully as deep in our history as does the guarantee of a free press.” (P. 548.) The Iowa Supreme Court in Winegard v. Oxberger (1977) 258 N.W.2d 847, 850, referred to “the longstanding principle that the public has a right to every person’s evidence.” fn. 5 [37 Cal.3d 276]
We cannot ignore or subordinate the First Amendment values furthered by the protection of confidential sources and information; at the same time, we must recognize the parallel importance of the policy favoring full disclosure of relevant evidence. When called upon to weigh the fundamental values arguing both for and against compelled disclosure, the overwhelming majority of courts have concluded that the question of a reporter’s privilege in civil cases must be decided on a case-by-case basis, with the trial court examining and balancing the asserted interests in light of the facts of the case before it. Thus, the courts conclude, there is neither an absolute duty to disclose nor an absolute privilege to withhold, but instead a qualified privilege against compelled disclosure which depends on the facts of each particular case. (See Zerilli v. Smith, supra, 656 F.2d 705, 712; Bruno & Stillman, Inc. v. Globe Newspaper Co. (1st Cir. 1980) 633 F.2d 583, 595-596; Miller v. Transamerican Press, Inc. (5th Cir. 1980) 621 F.2d 721, 725, cert. den., 450 U.S. 1041 [68 L.Ed.2d 238 101 S.Ct. 1759]; Riley v. City of Chester, supra, 612 F.2d 708, 715; Silkwood v. Kerr-McGee Corp. (10th Cir. 1977) 563 F.2d 433, 438; Carey v. Hume (D.C. Cir. 1972) 492 F.2d 631, 636, cert. den., 417 U.S. 938 [41 L.Ed.2d 661, 94 S.Ct. 2654]; Baker v. F & F Investment, supra, 470 F.2d 778, 784; DeRoburt v. Gannett Co., Inc. (D. Hawaii 1981) 507 F.Supp. 880, 884; Loadholtz v. Fields (M.D.Fla. 1975) 389 F.Supp. 1299, 1301; Democratic National Committee v. McCord, supra, 356 F.Supp. 1394, 1397-1398; Apicella v. McNeil Laboratories, Inc., supra, 66 F.R.D. 78, 82; Gadsden County Times, Inc. v. Horne (Fla.App. 1983) 426 So.2d 1234, 1241; Winegard v. Oxberger, supra, 258 N.W.2d 847, 850; Senear v. Daily Journal-American, etc., supra, 641 P.2d 1180, 1183.) fn. 6
The only California case to address this question also concluded that a claim of privilege must be judged by balancing the asserted interests on a case-by-case basis. (KSDO v. Superior Court (1982) 136 Cal.App.3d 375 , 384-385 [186 Cal.Rptr. 211].)
In arguing against a qualified reporter’s privilege, Synanon relies on two United States Supreme Court decisions, Branzburg v. Hayes (1972) 408 [37 Cal.3d 277] U.S. 665 [33 L.Ed.2d 626, 92 S.Ct. 2646] and Herbert v. Lando, supra, 441 U.S. 153. Neither involved the assertion of a reporter’s privilege in a civil case and, as we shall explain, nothing in the reasoning of those cases precludes recognition of a qualified privilege.
Branzburg raised the question whether newspersons could be required to testify before a grand jury investigating crimes. The majority opinion, by Justice White, acknowledged that news gathering falls within First Amendment protection, but said that the public interest in law enforcement and in ensuring effective grand jury proceedings outweighed the burden on news gathering said to result from requiring reporters to respond to grand jury subpoenas.
Justice Powell, the fifth member of the Branzburg majority, wrote a concurring opinion. In it, he observed that “The Court does not hold that newsmen, subpoenaed to testify before a grand jury, are without constitutional rights with respect to the gathering of news or in safeguarding their sources.” (P. 709 [33 L.Ed.2d p. 656].) Justice Powell then went on to state that if a newsman claimed a privilege to withhold information, “The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions.” (P. 710 [33 L.Ed.2d p. 656].)
Reasoning that Justice Powell’s position represents the “minimum common denominator” (Gilbert v. Allied Chemical Corp., supra, 411 F.Supp. 505, 510) of the Branzburg majority, subsequent cases have concluded that it does not preclude the use of a balancing test to evaluate the claim of privilege in civil cases. (See Zerilli v. Smith, supra, 656 F.2d 705, 711; Bruno & Stillman, Inc. v. Globe Newspaper Co., supra, 633 F.2d 583, 594; Loadholtz v. Fields, supra, 389 F.Supp. 1299, 1301.) The leading case, Baker v. F & F Investment, supra, 470 F.2d 778, observed that “Manifestly, the Court’s concern with the integrity of the grand jury as an investigating arm of the criminal justice system distinguishes Branzburg from the case presently before us. If, as Mr. Justice Powell noted in that case, instances will arise in which First Amendment values outweigh the duty of a journalist to testify even in the context of a criminal investigation, surely in civil cases, courts must recognize that the public interest in a non-disclosure of journalists’ confidential news sources will often be weightier than the private interest in compelled disclosure.” (Pp. 784-785.)
In Herbert v. Lando, supra, 441 U.S. 153, plaintiff, a reputed military hero, sued Lando, the producer and editor of a television program, and [37 Cal.3d 278] author of a subsequent article. Plaintiff deposed Lando and asked numerous questions relating to how Lando decided what to include, and what not to include, in the program and article. Lando refused to answer on the ground that the First Amendment prohibited inquiry into the state of mind of those who edit, produce, or publish and into the editorial process.
The majority opinion, again by Justice White, rejected this claim of privilege. In effect, the majority reasoned that the New York Times test, which requires proof of actual malice to recover for defamation against a public figure (see New York Times Co. v. Sullivan (1964) 376 U.S. 254, 279-280 [11 L.Ed.2d 686, 706-707, 84 S.Ct. 710, 95 A.L.R.2d 1412]) properly balanced the interest of the press and the interest of litigants seeking discovery, and that imposing an additional editorial privilege would upset that balance and make it virtually impossible for a plaintiff to assemble proof to comply with that test. (See 441 U.S. at p. 170 [60 L.Ed.2d at p. 130].) Once again Justice Powell wrote a separate concurring opinion, primarily to emphasize “the additional point that, in supervising discovery in a libel suit by a public figure, a district court has a duty to consider First Amendment interests as well as the private interests of the plaintiff.” (P. 178 [60 L.Ed.2d at p. 135].)
Herbert involved an editorial privilege, not a reporter’s privilege. Lower courts quickly noted that distinction. The Fifth Circuit, in Miller v. Transamerican Press, Inc., supra, 621 F.2d 721, said that “The policies supporting a First Amendment privilege would appear to be stronger … where a defamation plaintiff seeks to compel disclosure of the name of a confidential informant … than they were in either Branzburg or Herbert. In Herbert, the Supreme Court reasoned that requiring disclosure of journalists’ thought processes would have no chilling effect on the editorial process; the only effect would be to deter recklessness. However, forced disclosure of journalists’ sources might deter informants from giving their stories to newsmen. … [A] defamed plaintiff might relish an opportunity to retaliate against the informant.” (P. 725; accord, Gadsden County Times, Inc. v. Horne, supra, 426 So.2d 1234, 1240, fn. 7.) In Greenleigh Associates, Inc. v. The New York Post Corporation (1980) 79 App.Div.2d 588 [434 N.Y.S.2d 388], the court applied this distinction and upheld discovery of the newspaper’s editorial process, but not of its confidential sources.
We agree with those courts which have distinguished Branzburg and Herbert from the issue of discovery of sources in civil litigation. In criminal proceedings, both the interest of the state in law enforcement, recognized as a compelling interest in Branzburg (see 408 U.S. 665, 700 [33 L.Ed.2d 626, 650]), and the interest of the defendant in discovering exonerating evidence outweigh any interest asserted in ordinary civil litigation. Discovery [37 Cal.3d 279] of the editorial process, permitted by Herbert, does not pose the same threat of inhibiting investigative reporting as would the disclosure of confidential sources. As the Herbert court itself observed, a conscientious editor is unlikely to be deterred from publishing by the fear that his identity and editorial process were subject to discovery. (See 441 U.S. 153, 173-174 [60 L.Ed.2d 115, 131-132].) A confidential source, on the other hand, might well be deterred by the threat that his identity and information might be made public.
[4] Synanon finally argues that the power of the superior court to issue discovery protective orders to protect against “annoyance, embarrassment, or oppression” (Code Civ. Proc., § 2019) is a sufficient safeguard against the abuse of discovery, and makes recognition of a qualified reporter’s privilege unnecessary. But discovery which seeks disclosure of confidential sources, and information supplied by such sources, is not ordinary discovery. Judicial concern is not limited to cases of harassment, embarrassment, or abusive tactics; even a limited, narrowly drawn request may impinge upon First Amendment considerations. When a reporter’s privilege has been defined by the courts, the limitations on that privilege described, and the relevant considerations set out, Code of Civil Procedure section 2019 provides the statutory basis for the issuance of protective orders safeguarding against harassment. The broad language of that section, however, cannot substitute for judicial explication of the basic privilege.
[5a] We conclude that in a civil action a reporter, editor, or publisher has a qualified privilege to withhold disclosure of the identity of confidential sources and of unpublished information supplied by such sources. The scope of that privilege in each particular case will depend upon the consideration and weighing of a number of interrelated factors.
First, the scope of the privilege depends on the nature of the litigation and whether the reporter is a party. In general, disclosure is appropriate in civil cases, especially when the reporter is a party to the litigation. (In California, where a shield law prevents the use of contempt to enforce disclosure orders (see p. 274, ante), compelling disclosure from a nonparty reporter may be impractical even in a case in which other considerations argue in favor of disclosure.) Zerilli v. Smith, supra, 656 F.2d 705, explained that “[w]hen the journalist is a party, and successful assertion of the privilege will effectively shield him from liability, the equities weigh somewhat more heavily in favor of disclosure. … [T]his will be particularly true in libel cases involving public officials or public figures. … Plaintiffs in those cases must prove both that the allegedly defamatory publication was false, and that it was made with ‘actual malice.’ Proof of actual malice will frequently depend on knowing the identity of the newspaper’s [37 Cal.3d 280] informant, since a plaintiff will have to demonstrate that the informant was unreliable and that the journalist failed to take adequate steps to verify his story. Protecting the identity of the source would effectively prevent recovery in many Times-type libel cases. … We take care to point out, however, that disclosure should by no means be automatic in libel cases. Where other relevant factors suggest disclosure is inappropriate, the privilege should prevail.” (P. 714, fn. omitted.) fn. 7 [1c] Thus the present case, a libel suit in which discovery is sought from a party defendant, fn. 8 is of the type suitable for requiring disclosure, depending upon the balancing of other relevant considerations.
[5b] A second consideration is the relevance of the information sought to plaintiff’s cause of action. (See Miller v. Transamerican Press, Inc., supra, 621 F.2d 721, 726; Bruno & Stillman, Inc. v. Globe Newspaper Co., supra, 633 F.2d 583, 597.) The majority view, which we adopt, is that mere relevance is insufficient to compel discovery; disclosure should be denied unless the information goes “to the heart of the plaintiff’s claim.” (Garland v. Torre (2d Cir. 1958) 259 F.2d 545, cert. den., 358 U.S. 910 [3 L.Ed.2d 231, 79 S.Ct. 237]; accord, Zerilli v. Smith, supra, 656 F.2d 705, 713; Silkwood v. Kerr-McGee Corp., supra, 563 F.2d 433, 438; Carey v. Hume, supra, 492 F.2d 631, 636; Baker v. F & F Investment, supra, 470 F.2d 778, 784; KSDO v. Superior Court, supra, 136 Cal.App.3d 375 , 385-386; cf. Britt v. Superior Court (1978) 20 Cal.3d 844 , 859 [143 Cal.Rptr. 695, 574 P.2d 766].)
The parties before us dispute whether the disclosure plaintiffs seek goes to the “heart” of their suit against the Mitchells or is only peripheral to that matter. The dispute centers on the question of the liability of a reporter who furnishes defamatory material to the publisher, but does not control the content of the ultimate publication. Plaintiffs contend that through disclosure they will learn “[t]he extent to which the petitioners [Mitchells] were told, and then ignored, facts contrary to their defamations” and “[t]he extent to which petitioners sought only to find derogatory information. …” They suggest the possibility that they will discover that the Mitchells had no sources, or at least no reliable sources. The Mitchells, on the other hand, urge that we adopt the view advanced by the Court of Appeal that as sources the Mitchells would be liable only if they conspired with the Reader’s Digest to publish maliciously false statements about plaintiffs or exercised some form of control over the content of the article. Proof of conspiracy or control, [37 Cal.3d 281] they maintain, not the identity of their sources, lies at the heart of this lawsuit. fn. 9
We do not agree with the restrictions on the responsibility of a reporter proposed by the Court of Appeal. [6] In our opinion, if a source acting with actual malice furnishes defamatory material to a publisher with the expectation that the material (either verbatim or in substance) will be published, the source should be liable for the publication. As the United States Supreme Court said in 1899, if a publisher was furnished “with information of a libelous character … for the purpose and with the intention of having the same published … we think that the defendant might be held liable for such publication on the ground that it was published by his aid and procurement. …” (Washington Gas Light Company v. Lansden (1899) 172 U.S. 534, 549-550 [43 L.Ed. 543, 550, 19 S.Ct. 296].) More recently, the court in Campo v. Paar (1963) 18 App.Div.2d 364 [239 N.Y.S.2d 494, 498], held that “Anyone giving a statement to a representative of a newspaper authorizing or intending its publication is responsible for any damages caused by the publication.”
The law relating to the liability of an original defamer for republication offers relevant guidelines. According to the Restatement Second of Torts (1977) section 576, the original defamer is liable if either “the repetition was authorized or intended by the original defamer” (subd. (b)) or “the repetition was reasonably to be expected” (subd. (c)). California decisions follow the restatement rule. (See Di Giorgio Corp. v. Valley Labor Citizen (1968) 260 Cal.App.2d 268 , 273 [67 Cal.Rptr. 82]; Curley v. Vick (1963) 211 Cal.App.2d 670 , 673 [27 Cal.Rptr. 501].) In McKinney v. County of Santa Clara (1980) 110 Cal.App.3d 787 [168 Cal.Rptr. 89], the court, holding a defendant liable for a foreseeable republication by the plaintiff himself, explained that “[t]he rationale for making the originator of a defamatory statement liable for its foreseeable republication is the strong causal link between the actions of the originator and the damage caused by the republication.” (P. 797.)
The present suit does not precisely allege a republication. Plaintiffs are suing for the defamation in the Reader’s Digest, not (in this suit) for statements appearing in the Point Reyes Light or The Light on Synanon, and do not allege that the Reader’s Digest repeated the exact words of the Mitchells. The rule imposing liability for republication, however, turns on foreseeability, [37 Cal.3d 282] not exact reproduction. If plaintiffs can show a sufficient causal link between the Mitchells and the Reader’s Digest article, they can come within the rationale of the republication rule. The Mitchells would then be responsible for language in the article based on information furnished by them to the Reader’s Digest.
The liability of the Mitchells, however, would depend upon proof that they acted with actual malice in the original publication of the defamatory matter. (Cf. Montandon v. Triangle Publications (1975) 45 Cal.App.3d 932 [120 Cal.Rptr. 196].) [1d] Discovery of the Mitchells’ sources, and information derived from such sources, may be essential to proving actual malice, and thus goes to “the heart” of plaintiffs’ claim against these defendants. The discovery sought by plaintiffs, however, is quite broad, and is not limited to sources whose information relates to the alleged libelous statements. The Reader’s Digest article contains many other statements critical of Dederich and the Synanon operation. Knowledge of the source of such statements, while arguably relevant to the suit, is not sufficiently essential to justify overriding the reporter’s privilege.
[5c] Third, virtually all cases agree that discovery should be denied unless the plaintiff has exhausted all alternative sources of obtaining the needed information. (See, e.g., Baker v. F & F Investment, supra, 470 F.2d 778, 784; Gilbert v. Allied Chemical Corp., supra, 411 F.Supp. 505, 510; KSDO v. Superior Court, supra, 136 Cal.App.3d 375 , 384-386.) [7] Compulsory disclosure of sources is the “last resort” (Senear v. Daily Journal-American, etc., supra, 641 P.2d 1180, 1184), permissible only when the party seeking disclosure has no other practical means of obtaining the information. (See Zerilli v. Smith, supra, 656 F.2d 705, 714-715.)
[1e] In the present case plaintiffs made no showing that they have exhausted alternative sources of information. Many of the Mitchells’ sources are known ¶ Professor of she and other persons mentioned in the Reader’s Digest article or the Mitchells’ own publications. Such persons can be deposed to discover what information they furnished the Mitchells. Moreover, to the extent plaintiffs seek to prove that the Mitchells deliberately ignored information furnished them favorable to Synanon, it is likely that the sources of the information would readily come forward and cooperate with plaintiffs. There may well be an irreducible core of information which cannot be discovered except through the Mitchells, but plaintiffs have not yet reduced their discovery to that core.
[5d] Fourth, the court should consider the importance of protecting confidentiality in the case at hand. (See Bruno & Stillman, Inc. v. Globe Newspaper Co., supra, 633 F.2d 583, 597; Democratic National Committee v. [37 Cal.3d 283] McCord, supra, 356 F.Supp. 1394, 1397; Senear v. Daily Journal-American, etc., supra, 641 P.2d 1180, 1184.) [8] The investigation and revelation of hidden criminal or unethical conduct is one of the most important roles of the press in a free society ¶ a role that may depend upon the ability of the press and the courts to protect sources who may justifiably fear exposure and possible retaliation. Thus when the information relates to matters of great public importance, and when the risk of harm to the source is a substantial one, the court may refuse to require disclosure even though the plaintiff has no other way of obtaining essential information.
[5e] Finally, the court may require the plaintiff to make a prima facie showing that the alleged defamatory statements are false before requiring disclosure. fn. 10 [9] “The falsity of the … charges … should be drawn into question and established as a jury issue before discovery is compelled” (Bruno & Stillman, Inc. v. Globe Newspaper Co., supra, 633 F.2d 583, 597), because “to routinely grant motions seeking compulsory disclosure … without first inquiring into the substance of a libel allegation would utterly emasculate the fundamental principles [of New York Times and similar cases]” (Cervantes v. Time, Inc. (8th Cir. 1972) 464 F.2d 986, 993).
This requirement is closely related to the previous one. There is a great public interest in the truthful revelation of wrongdoing, and in protecting the “whistleblower” from retaliation; there is very little public interest in protecting the source of false accusations of wrongdoing. A showing of falsity is not a prerequisite to discovery, but it may be essential to tip the balance in favor of discovery.
[1f] The Reader’s Digest article, and especially the earlier writings by the Mitchells, clearly relate to matters of public importance; they allege serious wrongdoing by a powerful private organization, and complicity by public officials. Defendants have hinted that sources might be subject to retaliation but have offered no proof on the point. Plaintiffs, on the other hand, have not attempted a prima facie showing of the falsity of the defamatory statements.
In conclusion, the superior court in this case ordered extensive disclosure of sources and information on the ground that there was no reporter’s privilege in California. We have concluded that the basis for this ruling was [37 Cal.3d 284] erroneous; that the California courts should recognize a qualified reporter’s privilege, depending upon a balancing of the relevant considerations in each case. In the present case, the generality of plaintiffs’ requests, the absence of a showing that alternative sources had been exhausted, and the absence of a prima facie showing of falsity strike the balance against discovery of the scope envisioned in the ruling below.
Let a peremptory writ of prohibition issue, restraining the superior court from enforcing its discovery order of November 16, 1982, insofar as such order requires petitioners to produce documents which reveal confidential sources or information furnished by such sources. fn. 11
Mosk, J., Kaus, J., Reynoso, J., Grodin, J., Lucas, J., and Rouse, J., concurred.
¬ FN 1. By “The First Amendment to the California Constitution” the Mitchells presumably mean article I, section 2, which embodies the California constitutional protection of freedom of the press. This article was part of the original California Constitution of 1849, where it was article I, section 9, and was not an amendment.
¬ FN 2. Approximately half of the states have enacted newsmen’s shield laws more or less similar to the California law. (For a listing as of 1980, see Comment, The Newsman’s Qualified Privilege: An Analytical Approach (1980) 16 Cal. Western L.Rev. 331, 368, fn. 284.)
¬ FN 3. Two courts have recognized a common law reporter’s privilege without relying on constitutional provisions. (Riley v. City of Chester (3d Cir. 1979) 612 F.2d 708, 715; Senear v. Daily Journal-American, etc. (1982) 97 Wn.2d 148 [641 P.2d 1180, 1182].) Evidence Code section 911, however, precludes the creation of a common law privilege in California. According to section 911, “[e]xcept as otherwise provided by statute … [n]o person has a privilege to refuse to disclose any matter or to refuse to produce any writing, object, or other thing.” Section 911 obviously cannot bar privileges based on constitutional provisions, but does prevent judicial creation of new common law privileges.
¬ FN 4. Two other cases present dramatic illustrations of the value of the reporter’s privilege. Democratic National Committee v. McCord (D.D.C. 1973) 356 F.Supp. 1394, involved an attempt to compel reporters to reveal the identity of sources who supplied information concerning the Watergate burglary, information which eventually led to the resignation of President Nixon. In denying disclosure, the court stated that it “cannot blind itself to the possible ‘chilling effect’ the enforcement of these broad subpoenas would have on the flow of information to the press, and so to the public.” (P. 1397.) In Gilbert v. Allied Chemical Corp. (E.D.Va. 1976) 411 F.Supp. 505, the court held that a radio station could refuse to disclose sources who told it of the medical hazards at a chemical manufacturing plant; the court noted that “[I]f a news station or newspaper is forced to reveal the confidences of their reporters, the sources so disclosed, other confidential sources of other reporters, and potential confidential sources will be significantly deterred from furnishing further information to the press.” (P. 508.)
¬ FN 5. Apicella v. McNeil Laboratories, Inc. (E.D.N.Y. 1975) 66 F.R.D. 78 was a product liability suit in which both plaintiffs and defendants wanted to depose the editor of a medical newsletter who claimed to have knowledge, based on secret sources, of dangerous properties of a drug. The court noted that in such cases there is a public interest in full disclosure so that other physicians and patients can evaluate the risks of the drug. (See id., at p. 82.)
¬ FN 6. A few courts have rejected even a qualified privilege. The Idaho Supreme Court so held in Caldero v. Tribune Pub. Co. (1977) 98 Idaho 288 [562 P.2d 791], certiorari denied, 434 U.S. 930 [54 L.Ed.2d 291, 98 S.Ct. 418], but later said that it would not require disclosure when the confidential sources supplied only leads and not relevant evidence. (Sierra Life Ins. v. Magic Valley Newspapers (1980) 101 Idaho 795 [623 P.2d 103, 109].) The Massachussetts Supreme Judicial Court held that there was no privilege, qualified or absolute. (Dow Jones & Company, Inc. v. Superior Court (1973) 364 Mass. 317 [303 N.E.2d 847, 849].) In a later case, however, it indicated its willingness to reconsider discovery guidelines in cases involving confidential sources. (Matter of Roche (1980) 381 Mass. 624 [411 N.E.2d 466, 476].) Adams v. Associated Press (S.D.Tex. 1969) 46 F.R.D. 439, 441, held that there was no reporter’s privilege under Texas law.
¬ FN 7. Other cases distinguishing between discovery against a party and a nonparty reporter include Silkwood v. Kerr-McGee Corp., supra, 563 F.2d 433, 438; and KSDO v. Superior Court, supra, 136 Cal.App.3d 375 , 385-386.
¬ FN 8. We do not decide the question whether the reporter’s privilege may be asserted by a party plaintiff.
¬ FN 9. The Court of Appeal observed that under the language of plaintiffs’ complaint the Mitchells could be liable for defaming plaintiffs in the Mitchells’ communications with the Reader’s Digest. The complaint does not identify the substance of any communication by Mitchells to the Reader’s Digest, but could conceivably be amended after discovery to allege such communications.
¬ FN 10. Justice Brennan, dissenting in Herbert v. Lando, supra, 441 U.S. 153, 197 [60 L.Ed.2d 115, 147], proposed to require a plaintiff to make a prima facie showing in order to overcome a claim of editorial privilege. The majority rejected that proposal. (441 U.S. at p. 174, fn. 23 [60 L.Ed.2d at p. 133].) We do not construe that rejection, in the context of a claimed privilege for the editorial process of the publisher, as barring a court from requiring a prima facie showing in evaluating a claimed reporter’s privilege.
¬ FN 11. This decision is without prejudice to the right of real parties in interest of file a new motion to compel production of documents which reveal confidential sources or information furnished by such sources, based upon a showing sufficient to overcome the qualified privilege described in this opinion.