On Friday, we broke the big news that Comal County Judge Dib Waldrip had denied Scientology’s convoluted ‘anti-SLAPP’ motion which had upended Monique Rathbun’s harassment lawsuit against the church over the past few months.
What we failed to point out, however, is how central to Waldrip’s 25-page order was an argument that had been forwarded by Monique’s attorney Leslie Hyman. It was Hyman who argued to Waldrip that Scientology couldn’t both want protection as a business (in a trademark dispute) and as a religion (in a free speech fight).
That argument turned out to be a motion-killer, as Waldrip agreed with Hyman and said that as long as Scientology acted like a business trying to crush the competition (Monique’s husband Marty offering non-sanctioned Scientology counseling), then the anti-SLAPP statute didn’t apply to them.
It was a brilliant piece of lawyering, and now, we get to see Leslie Hyman in action again.
Yesterday, she filed Monique’s response to the Texas Third Court of Appeals, where Scientology has petitioned for a writ of mandamus, asking the appeals court to find that Judge Waldrip had abused his discretion by granting Monique the right to depose Scientology leader David Miscavige.
We know this case is complex for non-lawyers, so we’ll try carefully to explain where we are before diving into the 48-page document itself.
Monique filed her lawsuit in August, alleging that Scientology and its leader, David Miscavige, had put her through several years of harassment simply because her husband, Mark “Marty” Rathbun, was a former high-level church official who, in 2009, began speaking out critically about his former boss. Monique herself had never been a member of Scientology, but for four years she’d been spied on, endured daily demonstrations outside her home, and put up with church-hired private investigators confronting her friends and family, telling them frightening things about Marty.
She sued a couple of church entities, Miscavige, and has also named a couple of private investigators and other operatives as defendants. But Miscavige and the entity he nominally runs, the Religious Technology Center (RTC) filed “special appearances,” arguing that the court had no jurisdiction over them. Miscavige has had nothing whatsoever to do with Texas and shouldn’t be part of a lawsuit there, his attorneys argued.
Monique convinced Judge Waldrip that in order to resolve that dispute, she should have the right to question Miscavige directly. She convinced Waldrip by providing voluminous evidence, in the form of affidavits by former church officials, that a complex surveillance operation like the one aimed at the Rathbuns would never happen without the intimate knowledge of and micro-managing by Miscavige.
After Waldrip found that Miscavige should be deposed in order to decide the question of jurisdiction, Miscavige petitioned the Third Court of Appeals for a writ that would overturn Waldrip’s order. Our legal experts have pointed out that this is, in essence, Scientology suing Judge Waldrip, and they’ll be trying to convince an appellate panel of three judges that Waldrip abused his discretion by allowing the deposition to be scheduled.
In her response, Leslie Hyman writes on behalf of Monique that Judge Waldrip was correct in ordering the deposition of Miscavige, and that Scientology has mostly tried to confuse the issue with arguments that have nothing to do with the point of the lawsuit.
[Scientology does] not even attempt to show how the trial court reached a decision “so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.” They fail to cite a single case holding that a trial court abused its discretion by ordering a named defendant to sit for a jurisdictional deposition.
Instead, [Scientology spends] much of [its] Petition discussing a “media-driven” religious or ecclesiastical dispute between the Church of Scientology and Mrs. Rathbun’s husband, Marty Rathbun. Mrs. Rathbun does not deny that her husband and the Church have had disagreements about Mr. Miscavige’s behavior as the leader of the Church. Unfortunately for [Scientology's] petition before this Court, and notwithstanding their 99 uses of forms of the terms “religion” and “ecclesiastic,” this case is not about a religious dispute.
After restating the facts of the case, Hyman then zeroes in on one of Scientology’s main arguments for its appeal — that asking a CEO like Miscavige to sit for questioning is what is known as an “apex deposition,” and is often the way plaintiffs try to leverage big settlements out of opponents.
But Hyman says the “apex deposition” argument doesn’t apply because David Miscavige, in this lawsuit, is a named defendant, not just the leader of a corporation that happens to be in court.
And not only is Miscavige named in the suit, Monique has already provided voluminous evidence that a surveillance operation like the “Squirrel Busters” couldn’t have happened without Miscavige’s knowledge and approval.
The fact that Miscavige and RTC may have acted through intermediaries in hiring, directing, instructing, and communicating with the operatives is jurisdictionally irrelevant. Mrs. Rathbun presented the trial court with evidence that Mr. Miscavige is the absolute, unquestioned authority in Scientology’s activities, and that he, and only he, decides who is an enemy to be attacked.
Hyman also handles Scientology’s religious freedom arguments, pointing out that Miscavige shouldn’t escape a deposition on religious grounds when the dispute itself — Monique’s harassment — is not a religious matter.
(It’s also fascinating to see Hyman refer to numerous past Scientology legal conflicts, and actually quote from the court’s findings in Wollersheim.)
At the end, Hyman lets loose with this humdinger…
[Scientology describes] Mrs. Rathbun’s desire to take a defendant’s deposition as a quest for the holy grail…[Scientology's] description of Mrs. Rathbun’s claims and the relevance of the deposition to this suit bears as much resemblance to reality as Monty Python and the Holy Grail bears to the historical description of the chalice of the Last Supper. The Church’s version of the central facts of the dispute between it and Marty Rathbun is simply irrelevant to Mrs. Rathbun’s complaints of stalking, harassment, and other tortious behavior.
We look forward to your observations of this fascinating document.
Oral arguments at the Court of Appeal are scheduled for April 9. But remember, this dispute is solely about deposing David Miscavige as jurisdictional discovery to help resolve the “special appearance” issue.
Posted by Tony Ortega on March 18, 2014 at 07:00
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