Justice Anthony Kennedy
Los Angeles Superior Court Judge Ronald Sohigian has already decided that DeCrescenzo is entitled to her own “pc files” — confessional material that was compiled while she worked for the church from only nine years of age, joining the Sea Org at twelve and then finally leaving it at 25 in 2004. Scientology has appealed and lost that decision twice, most recently at the California Supreme Court.
Now, Scientology wants the U.S. Supreme Court to review that state supreme court decision, but in the meantime, it wants an emergency stay to freeze the case so the church doesn’t have to turn over the documents on July 2.
Yesterday, the church filed for a writ of certiriori to overturn the lower court order, and it also filed an application for an emergency stay with Justice Anthony Kennedy, who is assigned to hear such applications from California.
According to a guide to applications published by the court, there are several potential outcomes to the church’s request for a stay…
— Kennedy could simply deny it without comment.
— If he denies it, the church could send a new application to another justice.
— Kennedy could ask DeCrescenzo for a response before making a decision.
— Kennedy could grant the stay.
Previously, the church has argued that DeCrescenzo’s pc files — which fill more than 100 folders — should be protected under California’s “priest-penitent” law, as if the material in the documents were analogous to secrets whispered to a priest in Catholic confession. But Sohigian rejected that analogy, pointing out that not only were the things DeCrescenzo said in Scientology “auditing” sessions written down, but those notes were then shared with many different Scientology officials — the church itself has admitted that 259 people helped compile and review her confessional statements over the course of her church employment. (For more background on DeCrescenzo’s career in Scientology and the dramatic way she finally left, see our previous story.)
As DeCrescenzo’s attorneys have pointed out in her victorious appeals, those files not only contain notes taken during her Scientology auditing, but also a record of her responses when she was interrogated about her work and about her private life. They’ve also pointed out that the church itself has introduced as evidence things that were in DeCrescenzo’s files — records of positive things she said about her advancement in Scientology. Her attorneys have argued that the church cannot have it both ways — it cannot pick out things that are helpful to its defense, but call the rest of the material religious and privileged.
But that’s exactly what Scientology has done in its appeals, arguing that everything in the files is “deeply religious” and should be protected under the priest-penitent law. To the California Supreme Court, the church argued that the state law itself was unconstitutional because it didn’t afford Scientology the same protection it would to the Catholic church. That appeal was denied without a written decision.
Now, Scientology will ask the U.S. Supreme Court to review the constitutionality of the California law, and will argue that what DeCrescenzo said during brutal Sea Org interrogations is “deeply religious” and strictly confidential — even though DeCrescenzo is the purported “penitent” herself and has waived confidentiality.
A hearing in Sohigian’s court is scheduled for Monday — Scientology has also filed a motion asking for a protective order, arguing that if it does have to turn over DeCrescenzo’s files, they should be kept from the public. That motion will be decided, and Scientology will then have to turn over the documents on July 2, unless the U.S. Supreme Court intervenes.
UPDATE: We have some analysis of the church’s application by our resident legal mind, Manhattan attorney Scott Pilutik…
I’m in the middle of a project which renders my hands both dirty and covered in paint so I haven’t been able to get through the entire thing. But it’s noteworthy that they filed this just as the Supreme Court term is ending; it’s kind of like asking your teacher to change your final term paper grade as she’s driving away for the summer.
There is no time period by which SCOTUS has to act; Rule 22 states that “The Clerk will advise all parties concerned, by appropriately speedy means, of the disposition made of an application.” So even though Scientology is up against the clock, SCOTUS isn’t, though I wouldn’t be surprised to see them deny it quickly.
I do think Scientology’s legal argument is somewhat novel though, and I wouldn’t be absolutely shocked if they got their stay. But ultimately, California’s priest-penitent statute prohibiting the content from being shared with third parties isn’t different from most other states; so this can rather be perceived (as it should) as Scientology not being discriminated against, but seeking a special carveout or exception that only applies to them.
But in at least one sense, they’re right: California’s interpretation does effectively render all PC folders — because they’re naturally shared with dozens/hundreds of staff — as falling outside the priest-penitent privilege; even current members can no longer rely on the privilege. (And remember, legally speaking, the privilege is less about privacy than about information being used against you as evidence in court.)
That said, the reason a priest-penitent statute prohibiting third-party sharing is constitutionally permissible is because at the the most rudimentary policy level, the privilege belongs to the penitent moreso than the priest — it exists to prevent the priest from being compelled to testify against the penitent, not to protect church secrets. Laura has waived the privilege, and that should be sufficient; in Eric Lieberman’s petition he unsurprisingly declines to mention this fact, focusing solely on the waiver by third-party-sharing aspect, and its inherent supposed unfairness.
For Laura’s sake I hope this stay request is denied quickly, but as a legal observer it would be fascinating to see her case get such a huge spotlight.
DeCrescenzo: Scientology Emergency Application for Stay
DeCrescenzo: Scientology's Petition for Writ of Certiriori
DeCrescenzo: Scientology's Letter to Supreme Court clerk
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Posted by Tony Ortega on June 25, 2013 at 16:55
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