We had a chance to talk with Monique Rathbun’s attorney Ray Jeffrey about Wednesday’s court hearing in Monique’s harassment lawsuit against the Church of Scientology and its leader, David Miscavige.
The most important result of the hearing is that Scientology’s attempt to quash a deposition of Miscavige was unsuccessful. Comal County Judge Dib Waldrip said that he could see more reason than ever why Monique’s legal team should get the opportunity to question Miscavige, and he even suggested it might take place in his courtroom because he anticipated that Scientology’s attorneys would object to virtually every question.
“He didn’t order that, but he indicated that he would consider that,” Jeffrey tells us.
“He ordered us to confer about document production, and confer about the deposition,” Ray added. “Of course, they’re almost certainly going to attempt some kind of appellate remedy, what’s called a writ of mandamus.”
Now that Judge Waldrip seems more determined than ever that Monique Rathbun has the right to depose Miscavige, Jeffrey says it’s becoming obvious that Scientology’s legal team is going to try to go over Waldrip to get Miscavige out of testifying.
A conspicuous addition to Scientology’s legal team was the arrival of Wallace Jefferson, who only recently stepped down from his position as the chief justice of the Texas Supreme Court. At the last two court hearings, Wallace has been taking notes as his brother, Lamont, has represented Miscavige and argued for hours on Wednesday in a vain effort to convince Judge Waldrip that Miscavige shouldn’t be deposed.
Jeffrey thinks Wallace Jefferson was brought in to prepare appeals, and he expects that Scientology’s team will soon be going to a state appeals court or the state supreme court asking for permission to file for a writ of mandamus.
“They don’t have a right to a mandamus. They have to apply to the Texas court of appeals or supreme court for the right to file it,” he explained to us. “Mandamus is supposed to be extraordinary.” He says he expects the Scientology team to put together a voluminous petition filled with references to religious rights to convince an appellate court that Judge Waldrip abused his discretion by calling for Miscavige to testify.
In the meantime, Scientology has until Monday to turn over evidence that Monique’s team has been asking for as they prepare for a February 3 and 4 hearing to answer the church’s ‘anti-SLAPP’ motion. By Wednesday, Waldrip wanted the two sides to have worked out evidence issues that Monique had brought up in her motion for sanctions. The message is clear — by next week, Scientology needs to start coming up with some actual documents generated during its multi-year operation of intense surveillance and harassment of Monique and her husband Mark ‘Marty’ Rathbun.
Marty was a high-ranking official in Scientology who worked directly with Miscavige until he defected in 2004. In 2009, after moving to Texas, he started a blog critical of Miscavige, and the Rathbuns say they were then subjected to four years of intense spying and harassment. The Church of Scientology International (CSI) has admitted that it was behind that campaign of protests and the filming of the Rathbuns, but Miscavige and another church entity, the Religious Technology Center (RTC), are asking to be let out of the lawsuit because they say Miscavige is only an ecclesiastical leader with nothing to do with the church’s operations in Texas.
Monique wants to depose him because she believes that Miscavige is intimately involved in all of the church’s retaliation campaigns, and she has submitted numerous declarations by former Scientology officials who agree with her.
Scientology’s team has submitted their own declarations, but problems with their veracity keep coming up, Jeffrey says.
“They constantly get tripped up on the facts,” he says.
“I went over two examples that are so clear,” he adds, referring to the testimony of RTC employee Warren McShane and a crime report from the Riverside County Sheriff’s Office. McShane’s story about Miscavige’s travel records changed after he submitted a declaration, and the church has refused to turn over the full report from the Sheriff’s Office, which is a key piece of evidence about a Scientology spying operation run in Texas.
Jeffrey explains that the more discrepancies in their version of events, the more Scientology holds back, the more Waldrip has reason to have Miscavige deposed so Monique can get to the bottom of his role in the surveillance campaign.
As for when Scientology might present Miscavige for questioning, Jeffrey acknowledged that it might be some months. “Judge Waldrip just basically acknowledged the fact that we’d want the documents first. Scientology is going to claim that Miscavige is unavailable, so there should be no problem turning over the documents first,” he says. “As usual, the judge was being careful and thoughtful.”
We asked attorney Scott Pilutik to give us his thoughts about Jeffrey’s suggestion that Scientology may be filing a petition for a writ of mandumus…
A state court writ of mandamus (and let me disclaim I’m not familiar with Texas’s specifically) is extraordinary for a few reasons, but one very symbolic reason in particular: it exists as a separate case wherein the applicant literally sues the judge, arguing in essence that the judge is so over the line that the higher court must direct that judge to do something (or, as here, stop doing something) or else the applicant will experience harm for which there is no adequate remedy. It’s reserved for trial court situations where a judge so clearly abuses his/her discretion that he/she must be stopped cold by a higher court.
What substantial rights are imperiled here? Miscavige having to answer questions in a deposition? Mandamus is a plausible equitable remedy where a party is about to be sentenced without a trial, or a home foreclosed on without notice, or any one of a thousand other more dire and compelling consequences than Miscavige being asked questions he’d prefer not to be asked. In other words, there is an adequate remedy at law — an ordinary appeal or motion to strike his testimony. After Miscavige gets deposed, what damage will there be to Scientology, religion, life, the universe and everything? We’ll all just callously shrug and say, “He got deposed. People get deposed.”
The problem, of course, is that there are simply too many facts piled atop other facts not in Scientology’s favor here. To sports-analogize, imagine a baseball team losing 5-1 entering the bottom of the ninth inning, and instead of taking the field, calling up MLB and asking it to award it a win because it didn’t like a few called strikes. Good luck and bon voyage, Captain Miscavige.
We’ll be looking to see if Scientology files that petition. In the meantime, Ray Jeffrey told us that in general, he was feeling relieved after yesterday’s long hearing.
“It was pretty tiring, but at least it turned out OK by the end of the day,” he says.
Posted by Tony Ortega on January 23, 2014 at 16:00
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