Ray Jeffrey
We expect to get a copy of the order itself a little later this afternoon, but we’ve confirmed that Judge Waldrip was not swayed by the arguments made by Church of Scientology International lawyer George Spencer, which we witnessed two weeks ago at the county courthouse in New Braunfels, Texas.
Disqualification motions are common in Scientology litigation, but rare otherwise. After an afternoon of argument by the church that Jeffrey and his team were unethical clowns who deserved to be kicked off the case, we heard attorney Marc Wiegand respond when Tampa Bay Times journalist Joe Childs asked him if he’d ever been the subject of a similar motion.
“Never. Not in 32 years as a lawyer,” he said, shaking his head.
As we said reporting from the courtroom, Spencer’s arguments didn’t seem to be making headway with Waldrip, who questioned the motion’s basic premise — that Marty Rathbun could really be violating some kind of confidentiality when he helped his wife’s lawsuit by providing her with an affidavit.
Monique began dating Mark “Marty” Rathbun in 2005, a year after he had left the Church of Scientology after 27 years, most of them as the second-highest ranking official in the organization. In 2009, Marty began a blog to criticize his old boss, Miscavige, and since then, the Rathbuns say they’ve been subjected to intense surveillance and harassment by the church’s private investigators.
Monique filed suit on August 16 and was granted a temporary restraining order that prevents Miscavige and the church from snooping on her at least until a hearing for a temporary injunction can be continued later this month. The Church of Scientology International, one of several defendants named by Monique, answered the suit by saying her complaint was too vague. Two other defendants — David Miscavige and the Religious Technology Center, Scientology’s nominally controlling entity — both filed “special appearances,” denying that they were subject to the court’s jurisdiction, and asking to be let out of the lawsuit. To bolster that request, Miscavige filed a declaration, saying that he has never conducted business in the state of Texas.
Monique’s attorneys then filed an answer, giving more details about her harassment, and also filed an affidavit from Marty Rathbun, who said Miscavige had not told the truth — over the years he worked directly with Miscavige, Rathbun had helped him run several operations in Texas.
The church’s attorneys then filed a motion to disqualify Monique’s attorneys. They argued that Rathbun had revealed information about Miscavige in his affidavit that violated the confidentiality of his position in the church. Monique’s attorneys should have known that Rathbun was violating that confidentiality, and so they acted unethically when they submitted Rathbun’s affidavit to shore up his wife’s lawsuit. That unethical behavior, the church’s attorneys said, required Judge Waldrip to dismiss Jeffrey, Wiegand, and Cappuccio from the case.
But Waldrip did not agree.
During his argument on September 13, George Spencer seemed to strain to convince Waldrip that Rathbun was somehow like an attorney switching sides during a lawsuit. But Rathbun wasn’t an attorney, Waldrip pointed out, and his employment with the church was years ago.
“I’m having a hard time getting as far as you want me to go,” Waldrip told Spencer.
Ray Jeffrey, meanwhile, told Waldrip that Scientology was just using a tactic from its playbook, and that the motion was more about delaying the lawsuit than a genuine ethical concern.
“Your honor, this is a despicable motion. They ought to be ashamed of themselves,” he said in court.
Now, with the disqualification motion out of the way, the next big issue in the lawsuit — jurisdiction over David Miscavige and the RTC — becomes the focus of the case. Depositions have been scheduled, documents demanded, and then on October 18, another hearing will be held over jurisdictional issues, and Jeffrey will likely make his best argument that the jurisdictional issues cannot be properly considered unless he gets to depose David Miscavige.
That should be a very interesting day in court.
(PS: We’re hearing that the chances the October 18 hearing gets moved back are actually pretty good, so we may have to wait a little longer.)
UPDATE: And here’s Judge Dib Waldrip’s motion…
Monique Rathbun v. Scientology, Disqualify Motion Denied
And now we have some analysis from Manhattan attorney Scott Pilutik…
The judge’s opinion is a dry, methodical beat-down of a stream of bad arguments by Scientology. I get the sense that Judge Waltrip is mindful of the likelihood of an appeal; indeed, parts almost read like an appeals court decision, considering and neatly distinguishing all the cases cited by Scientology. As I mentioned in my earlier analysis, Marty simply isn’t an employee of Jeffrey; and Waldrip, acknowledging that key distinction, declined to carve out an exception for Marty.
The judge also makes clear that CSI was requesting Jeffrey be disqualified because Marty’s prior position within Scientology robbed the court of jurisdiction, but that disqualification rests instead on a nexus between the instant litigation and the previous employment, a far narrower basis than a jurisdiction-based disqualification. As I said earlier, “To take CSI’s argument to its logical end, no ex-employee with sensitive, damaging information concerning legal strategy could ever be used against their former employer.” The judge obviously wasn’t going to give them that.
With regard to the last paragraph, the judge is merely posing a hypothetical to demonstrate that alternate remedies existed which Scientology didn’t bother to request. But it’s important to realize that he’s not concluding anything about how he might rule if such requests were made, only that they were existing, less drastic remedies than disqualifying Ray Jeffrey.
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Posted by Tony Ortega on October 1, 2013 at 15:00
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