Appeal from a judgment of the Southern District of New York, Owen, Judge, 590 F. Supp. 181, awarding $84,067.81 in attorneys' fees and costs under 42 U.S.C. § 1988 to defendants-appellees against the Holy Spirit Association for the Unification of World Christianity, following the voluntary dismissal with prejudice of the action pursuant to Fed. R. Civ. P. 41(a) (2).
Mansfield, and Pierce, Circuit Judges, and Bartels, District Judge*fn*
MANSFIELD, Circuit Judge:
The Holy Spirit Association for the Unification of World Christianity ("HSA" or the "Unification Church"), a controversial organization, appeals a judgment of the Southern District of New York, Richard Owen, Judge, 590 F. Supp. 181, ordering it to pay $84,067.81 in attorney's fees and costs, plus interest, to the defendants after the voluntary discontinuance with prejudice of a suit by Unification Church member Anthony Colombrito against Galen Kelly, an individual whose occupation is to "deprogram" youths who join HSA or similar organizations. We reverse.
"Deprogramming," as characterized by Kelly, is a process designed to provide a church or cult member with an opportunity in a neutral setting to sleep, to eat, to evaluate the manner in which he wishes to live his life and then, well-rested and well-fed, to make an independent decision about whether to remain involved in the group. HSA, on the other hand, characterizes "deprogramming" as a process involving kidnapping and forcing an individual to renounce his religious beliefs.*fn1 Kelly conceded in his trial testimony that "deprogramming" sometimes was carried out by holding persons in custody against their will, and that at the time of the events in this case he had "deprogrammed" approximately 100 to 130 people, perhaps 50% of whom were members of the Unification Church.
This case arises out of a 1979 effort by the parents of Anthony Colombrito to forcibly remove their 27-year-old son from the influence of the Unification Church. In March 1977 Anthony voluntarily joined the Church. In 1978 his parents became concerned about his health and well-being. He had dropped out of graduate school, quit his job, ceased or reduced his loan payments, lost interest in returning to his parents' home in New Jersey or in even visiting it, and spent 15 hours or more a day working on a fundraising team for the Church, selling flowers on the street. When the Colombritos visited Anthony at the Church seminary in Barrington, Dutchess County, New York, where he was living, his mother believed that he looked exhausted and confused, having stayed up working the previous night to make up for the time set aside for the visit. She described him as unable to tie his shoes to make decisions, and even to distinguish between a knife and a fork.
Worried about her son, Mrs. Colombrito in September 1978 communicated with Galen Kelly, a private investigator who had made a career out of providing parents with services and methods designed to induce their children to leave the Unification Church and other sects. At Kelly's suggestion, Mrs. Colombrito through an attorney applied ex parte in June 1979 to a New Jersey state court for an order of guardianship that would give her temporary custody of Anthony. Although new Jersey law requires such petitions to be accompanied by affidavits from two physicians, see N.J.R. Civ.Prac. 4:74-7(b), Mrs. Colombrito provided only one affidavit, from a doctor whose son had joined the Church and had later been deprogrammed. The complaint stated that Anthony was last domiciled in New Jersey but was residing in Atlanta, Georgia, beyond the court's jurisdiction. The complaint also stated that there from or induced to leave the jurisdiction of the court" even though he was not within the court's jurisdiction. In another filing, Mrs. Colombrito describes her son as "domiciled at various addresses not of his own choosing." By the time of the deprogramming, Anthony was in New York, also outside of the new Jersey court's jurisdiction.
Although Kelly's letter to Mrs. Colombrito named a New Jersey judge who had been "very cooperative in signing [such] orders," that judge did not hear the case. Instead, in mid-June 1979 New jersey Superior Court Judge Henry H. Wiley, to whom the case was submitted ex parte, ordered a hearing in September on Anthony's alleged incapacity and simultaneously appointed a guardian ad litem and granted Mrs. Colombrito custody of Anthony for 45 days. Temporary custody was later extended through mid-October (after which the matter was dismissed by stipulation).
Following the New Jersey court's issuance of the orders, the Colombritos visited Anthony in August 1979 at the HSA seminary in Barrington, New York. They induced him to join them for a ride in their automobile to Kingston, N.Y., for dinner. Anthony testified that while he was seated in the back set [seat] of his parents' car in a parking lot, with his father in the front seat, Kelly and a colleague (Eric Shufelt), came up to the car, opened the rear door, entered the car, locked the doors, and kept him in the middle between them so that he could not escape. With the three (Kelly, Anthony and Shufelt) in the back seat Anthony's father, as prearranged with Kelly, drove the car, followed by another automobile with which Kelly was in radio communication, to a trailer located on isolated farm land in Accord, N.Y., owned by Kelly's grandmother. Kelly, who at times was armed with a pistol, and his colleagues then kept Anthony overnight against his will in the trailer, stated that under the court order they could keep custody of him for 30 days, and made efforts to "deprogram" him. Guards were posted at Anthony's door and he reasonably believed that if he tried to leave he would be physically prevented from doing so.
The abduction was interrupted the following day by police who had been called by the Unification Church. The police found Anthony tired but rational, clear and normal in his conduct and responses. He stated that he was being held against his will and wanted to return to the Church. He then returned to the Church seminary. At no time during these events was he in the State of New Jersey.
That fall, Colombrito brought the present suit in the Southern District of New York against Kelly and Kelly's firm and associates. The complaint alleged that the defendants had (1) conspired, motivated by animus against his religion, to deprive him of his civil rights in violation of 42 U.S.C. § 1985 (3),*fn2 (2) deprived him of his constitutional rights under color of state law, in violation of 42 U.S.C. § 1983, and (3) discriminated against him in violation of New York State Civil Rights Law. It sought a permanent injunction against Kelly, compensatory and punitive damages, and attorneys' fees under 42 U.S.C. § 1988.
After approximately two years of discovery, trial was commenced before Judge Owen, sitting without a jury. Anthony Colombrito testified about his membership in the Unification Church, the nature of his religious beliefs, the abduction, and Kelly's attempt to deprogram him. The record reveals Anthony's answers throughout his examination and extensive cross-examination to be clear, rational and responsive. On cross-examination he acknowledge that he believed that his parents had acted out of love and concern for him, however misguided, and that he had acted pursuant to their wishes in going with them to Kingston, where he was kidnapped. Plaintiff called defendant Kelly as a hostile witness, and Kelly described his work, including the attempted "deprogramming" of Colombrito. There was also testimony from a police officer about the kidnapping report received by the police department and about the department's response. In addition, plaintiff introduced extracts of depositions of the attorney who had obtained the guardianship order in New Jersey and of the guardian ad litem appointed by the New Jersey court.
At the close of plaintiff's case, the defendants moved for a directed verdict on all claims. Judge Owen dismissed the § 1983 claim on the ground that Colombrito had not shown the requisite state action, concluding that there was no evidence that the defendants had conspired with the New Jersey state judge who issued the guardianship order. At most, the state judge had neglected to determine whether the requested guardianship order was within the statutory authorization. Judge Owen reserved decision on Colombrito's § 1985(3) and state law claims.
The defense then sought to establish that the Church was not a bona fide religion protected by § 1985 (3) and that Kelly had acted not out of animus towards Colombrito's religion but out of Mrs. Colombrito's concern for her son's well-being. Several former Church members who had been deprogrammed by Kelly testified that the Church deceptively recruited young adults, "brainwashed" the recruits, deprived them of free choice, and exploited them in continuous fundraising efforts to the detriment of their health. Religious and medical professions and parents of former Church members gave similar testimony. In particular, an experienced psychiatrist gave his medical opinion that HSA members were under church-imposed mind control.
In rebuttal plaintiff called as witnesses a series of professions possessed of advanced education, graduate degrees and/or experience in practice or teaching in the fields of religion, physics, adult psychology, theology, and psychiatry, some of whom were members of the Unification Church. In general they testified favorably with respect to the religious views and activities of the church. One expert (Coleman), an experienced psychiatrist, testified to the various meanings of the term "brainwashing" and gave his opinion that mind control was not being exercised by the Church.
During trial the defense had expressed its desire to subpoena Reverend Moon, the leader of HSA and Colombrito's purported Messiah, in order to determined whether HSA was a bona fide religion or a calculated sham. Judge Owen issued a subpoena for Moon, which, for procedural reasons, this Circuit refused to quash. On discovering that Moon would be required to testify, Colombrito notified Judge Owen that he wished to dismiss his suit against Kelly with prejudice under Rule 41 (a) (2). Fearing that Colombrito was not expressing his own views but rather those of the Church, which was paying the litigation expenses and which had been involved in the decision to initiate the suit, Judge Owen held a hearing inquiring into plaintiff's decision to drop the suit. Because of inconsistencies between the testimony of Colombrito and his attorneys that seemed to the judge to indicate that a decision to discontinue the suit had been ...