The opinion of the court was delivered by: LEVET
The present action, by way of a counterclaim, is for libel brought by defendants Bernard Green and Barbara Green against plaintiff The Church of Scientology of California, Inc. (sometimes referred to as "the Church"). One of the original claims of the Church sought to enjoin the Greens from holding themselves out as "bona fide" ministers of the Church. All claims of the Church have been withdrawn.
Although the case has been completely tried, the sole issue for determination presently before this court is whether there was publication of the alleged libelous statement. Obviously, if there is no publication then there is no libel. Other issues, although tried, have been deferred pending a decision on this limited issue.
After hearing the testimony of the parties, examining the exhibits, the pleadings, the Proposed Findings of Fact and Conclusions of Law with respect to the issue of publication, this court makes the following Findings of Fact and Conclusions of Law:
1. This court has jurisdiction over the subject matter of the litigation and the parties hereto.
2. The Church of Scientology of California, Inc. is a non-profit corporation, incorporated under the laws of the State of California, with its principal place of business in Los Angeles, California.
3. Bernard Green and Barbara Green reside at 685 West End Avenue, New York, New York, and are presently operating from that address an unincorporated association known as the "International Awareness Center."
Bernard Green became a member of Scientology in 1953 and received training for several years thereafter. He held a "franchise" of the Church of Scientology and was operating said franchise in 1969. In such a capacity he conducted spiritual counseling. (17-34, 38-43, 69.)
Barbara Ferraro married Bernard Green in 1968 and together they operated the Scientology franchise. (170-171.)
On or about November 20, 1969 the Scientology franchise held by the Greens was cancelled by a notice from the Church of Scientology of New York. (123-124; Ex. 3.)
4. On December 10, 1969 a document from the Church bearing the heading, "Writ of Expulsion," was received by Bernard Green in the mail. The document, dated December 3, 1969, contained the alleged libelous statement:
"1. Further evidence found indicts Bernard Green of attempted blackmail of parishioners he has counseled." (50-52; Ex. B.)
Clarice Jackson, an Ethics Officer and member of the Church of Scientology of California, authored the writ which was sent to Bernard Green. After the formulation of the writ Jackson personally carried it to Fred Hare and Hanna Eltringham, officers of the Church, for their approval. The names of Jackson, Hare and Eltringham appear on the writ (Ex. B) as co-originators. Jackson then typed the original handwritten draft onto a stencil. Two copies of the stencil were then mimeographed, in Jackson's presence, by one James Isaacson. Isaacson was a L. Ron Hubbard (LRH),
Communicator, whose duties were "to watch the organization, that it was running correctly, that it was following the prescribed policy . . . and that the ethics decisions that came down were done correctly . . ." (374.) In such a capacity Isaacson was responsible for mimeographing ethic orders such as the writ sent to Bernard Green. (325-326, 374-375; Ex. B.)
Clarice Jackson mailed one copy of the writ to Bernard Green and placed the other copy in the locked files of the Church. (339-342.)
The original writ prepared by Clarice Jackson differed from the letters or copies of the writ claimed by the Greens to have been received by other members of the Church (Ex. B) in three respects:
(A) It did not have a border of approximately two inches from the top and bottom edges of the paper;
(B) There were no initials on the original prepared by Jackson as found in the lower left corner of Exhibit B;
(C) The writ, when mailed by Jackson, was placed in a white envelope and folded in thirds. There is no indication on Exhibit B, the writ received by Bernard Green, that it had been folded.
6. Bernard Green's allegation of publication by the Church is not supported by the credible evidence.
Green contends that there was publication of the writ when it was mailed in California and received in New York by Barbara Green, Michael Gerson, Michael Kates, Frank Catricola and Allan Ferguson.
(A) Barbara Green testified that she first saw a copy of the writ when her husband showed it to her. (159-160.) This, obviously, is not a publication on which a libel action can be ...