Scott Pilutik
We pointed out that the recitation of facts in the petition is very familiar to those of us who have been following along with Scientology’s arguments since Monique filed her lawsuit in August. But we wanted to get more perspective on the legal argument that Scientology used in its petition, which was written by Wallace Jefferson, who recently left his position as chief justice of the Texas Supreme Court.
We turned to our legal adviser, Manhattan attorney Scott Pilutik, for some insights.
It’s a very well-drafted petition, which shouldn’t be a surprise, I guess. Wallace Jefferson clearly understands what judges want to read. I’ll ignore his restatement of the facts for now, which are fairly disingenuous, as you’d expect them to be.
The legal basis upon which Jefferson primarily relies on is the apex discovery doctrine, which exists to provide a layer of protection for the top rung of a corporation, usually the CEO, from insincere discovery attempts seeking to create settlement leverage. It imposes a burden on the plaintiff to show that the official has “unique or superior knowledge of relevant facts” — only then can the deposition go forward.
AdvertisementJefferson is picky about which allegations to cite in support of his contention that Miscavige has no unique or superior knowledge of the facts underlying this case, wisely choosing to ignore entirely the inconvenient allegations and evidence. Jefferson presumes Miscavige’s Scientology to be a typical checks-and-balances corporate structure, where an aloof CEO makes macro decisions behind a buzzing hive of managers, committees, and boards. But there’s evidence to the contrary of course, some which has already raised the eyebrow of Judge Waldrip.
The closest I looked at any particular argument was Jefferson’s “directed-a-tort” argument in response to the allegation that Rathbun established minimum contacts by alleging that Miscavige hired private investigators to harass Monique in Texas. Jefferson bafflingly contends that Monique’s attorney Ray Jeffrey is confusing liability with jurisdiction, and cites a number of cases for this proposition. Without wading too far into the deep end, my sense is that Jefferson is recontextualizing snippets of case law that have no real application here, and which cases all rested on inapposite and far murkier facts. Monique is alleging that Miscavige personally oversaw the efforts of long-running, ongoing operations within the state of Texas; activity that required the purchase and/or rental of property, which often required police intervention, and so on. There’s your purposeful availment, and there’s your minimum contacts necessary to establish jurisdiction.
I think it’s likely that much of Jefferson’s pristine rhetoric has a similar house-of-cards quality, but there are just too many arguments to sift through in a brief overview.
I’ll just point out that at the bottom of this is the question of whether Judge Waldrip abused his discretion in ordering Miscavige’s deposition. Given that so many facts are in dispute; given how Scientology has conducted itself throughout the discovery process; and given how many facts Scientology has admitted to and recast as religious activity… I don’t see how it’s possible to conclude at this stage that Judge Waldrip has exceeded his discretion in ordering Miscavige’s deposition.
Scott also urged us to take a look at comments left by “TX Lawyer” at our post last night. “Pass along my endorsement of his analysis, because it’s spot on,” Scott told us.
We’re going to try to assemble some of the observations made by TX Lawyer, and try to put them in the right order…
1) I’ll open with a response to Tony’s question about the timing of the court of appeals’ decision on this. Basically, it could be anywhere from a few weeks to six or more months, maybe even a year. The court is allowed to summarily deny the petition without even waiting for a response, which wouldn’t take much longer than a couple weeks — basically, they’d be deciding that the thing is meritless and not worth any consideration.
If any of the three judges (the case will be assigned to a 3-judge panel) decide that they want to hear from the other side, the real party in interest (i.e., Monique Rathbun) will be requested to file one. Typically, that response would be put on a 20- or 30-day deadline, with extensions of equal length being routinely granted. Realistically speaking, this case is way too interesting for the judges to ignore, so it’s a moral certainty that there will be a response brief requested. Miscavige would be able to file a shorter reply brief after that (although they could theoretically deny it without time for a reply, I’ve never seen or heard of that happening). All told, with full briefing, you’re probably looking at 60-90 days from now before that’s complete. If the court decides to just deny it at that stage, it would typically happen within a month or two after briefing is complete. If they decide to write a full opinion, that might take longer. And if they decide to set it for oral argument prior to ruling, it will take even longer than that.
I’ve had mandamus cases that were killed within a few weeks, and others that have stretched out over a couple years (including the inevitable follow-up mandamus to the Texas Supreme Court). There’s just no firm timeline, but the more interested the courts are in the case and its issues, the longer it can be expected to take.
2) Apex depositions: What they are invoking here is the principle that you don’t get to depose Bill Gates* just because you have a lawsuit against Microsoft. Basically, you can’t get the deposition of a high-level muckety-muck of a company unless that person has unique knowledge of the facts or you haven’t been able to gain discovery of the facts without the testimony of said muckety-muck. The argument they’re making here is that Miscavige is the apex guy, but everyone under him swears up and down that he’s innocent of all these salacious claims, so there’s your answer right there and now you can’t take any depositions.
The problem with that argument — aside from the obvious incentive of underlings to protect their boss/overlord/tiny tryant from judicial scrutiny by offering perjured testimony — is that Monique submitted affidavits and exhibits showing that the testimony they are relying on is b.s.
*Bill Gates was eventually subjected to deposition back in the late 1990’s antitrust lawsuit against Microsoft. By all accounts, he was a terrible witness. People whose authority doesn’t get challenged tend not to be very good at defending themselves under the examination of a capable and properly-armed litigator.
3) The brief appears to be deeply invested in the notion that Monique is only claiming personal jurisdiction over Miscavige through some sort of jurisdictional bank shot, particularly the notion that they are trying to “pierce the veil” of Scientology’s corporate form to reach one of its individual personnel. That shouldn’t work here, as it misstates both the claim that Monique is making against Miscavige and who bears the ultimate burden of proof.
The way that a special appearance works here is that (1) the plaintiff pleads jurisdictional facts against the defendant, (2) the defendant then denies or tries to negate those jurisdictional facts by submitting a sworn affidavit or declaration, and (3) the plaintiff then bears the evidentiary burden to persuade the trial judge that there really is sufficient proof of the defendant’s “minimum contacts” with Texas.
Here, Monique met item (1) by pleading that Miscavige personally directed the harassment campaign against her and Marty. If it is ultimately proven by adequate evidence, that pleading would be sufficient to assert jurisdiction over Miscavige because you can be made to answer in a Texas court for conduct that you directed at Texas, even if you never personally stepped foot in Texas in connection with that conduct.
Miscavige met item (2) by denying in his affidavit that he knew anything about the harassment, what with him being so ecclesiastically busy with other matters to give the tiniest bit of thought to . . . what were their names again?
Thus, the issue of jurisdiction has been joined at item (3), which has yet to be resolved: Is there sufficient evidence that Miscavige directed the harassment campaign against Monique? Ray Jeffrey submitted some of his evidence on that point — notably, Marty’s declaration about Miscavige’s control and the 2007 text messages from Mike Rinder showing Miscavige micromanaging a similar harassment campaign. But he also asked for more time and permission to take discovery to enable him to refute Miscavige’s claims of blissfully ecclesiastical innocence, and that is what Judge Waldrip granted.
So what does that have to do with the mandamus? In Part II of the argument section, they go on at length about how Monique has supposedly failed to submit evidence demonstrating the existence of personal jurisdiction over Miscavige.* So their argument is that Monique should not be able to take discovery to meet her burden in step (3) because she has failed to meet the burden she is required to meet in step (3).
Fortunately, there is nothing at all unusual about courts ordering discovery when the plaintiff needs it to meet their burden of proving jurisdictional facts. I don’t see that going very far, and I hope that Jeffrey taunts this Catch-22 argument mercilessly in his own brief.
*At first glance, RTC seems to be almost an afterthought in this brief. Miscavige is much more in focus here. As usual, art imitates life.
4) On Wallace Jefferson: He certainly knows how to present an appeal or a mandamus proceeding. So do many other appellate lawyers in this state. Jefferson hasn’t been back in practice long enough to meaningfully compare him against the other great appellate lawyers around here, but he’s far from the only guy capable of doing this, and doing it very well. My guess is that he (and his brother) ended up on the case due to one of Miscavige’s instructions to go forth and find him the most impressive wog lawyer in the state. “Sir, we just found out that the Chief Justice of the Texas Supreme Court is going to be available next month.” How could that not appeal to Miscavige’s grandiosity?
5) As I posited a few weeks back when I first signed up, the brief is making a serious pitch on the angle that the courts just shouldn’t get involved in what is supposedly an ecclesiastical/religious dispute. That’s smart lawyering for Texas (more so at the Texas Supreme Court than a court of appeals, I would expect, but you really have to raise it at the lower court to present it to the Supremes). That issue has become a cause celebre for social conservatives in the last few years — recall all the complaints about the contraceptive coverage requirement, the recent right-to-discriminate-against-gays legislation, etc. Our Supreme Court is extremely conservative and extremely Republican, so there’s a serious chance that they’ll want to consider that issue. Of course, factually speaking, that claim really doesn’t fit into the existing ecclesiastical abstention doctrine because Monique Rathbun is not and has never been a member of the Church of Scientology. I would expect even Texas courts to be unenthusiastic about granting religious organizations/persons any sort of immunity from their actions vis a vis unaffilliated parties.
By the way, this argument really should have been presented in a plea to the jurisdiction (our phrase for a motion to dismiss due to lack of subject matter jurisdiction). It makes little to no procedural sense in the context of a special appearance, much less in a discovery battle necessitated by the petitioner’s special appearance, which claims that Texas courts have no personal jurisdiction over me. This is akin to saying “You have no authority to touch me, Texas!” while simultaneously saying “You’re not allowed to inquire whether you have any authority to touch me!”
Thanks, TX Lawyer, for these well-written insights.
Now, we have one more question of our own. The timing of this petition is interesting. Perhaps it was determined by statute or something. But sometime in the next 28 days, Judge Waldrip will be ruling on Scientology’s anti-SLAPP motion, and if he sides with the church this lawsuit is over — making this petition for a writ of mandamus regarding Miscavige’s deposition moot.
Did Scientology need to file this petition now as a procedural matter, or did they file it now as an indication that they don’t have much hope that Judge Waldrip will rule their way on the anti-SLAPP?
If that’s a dumb question, we have no doubt our growing legal committee will let us know!
——————–
Karen de la Carriere talks to Mark Fisher
Another interesting interview video from Karen as Fisher counters Scientology’s fictions about its corporate structure…
——————–
Posted by Tony Ortega on February 20, 2014 at 07:00
E-mail your tips and story ideas to tonyo94@gmail.com or follow us on Twitter. We post behind-the-scenes updates at our Facebook author page. Here at the Bunker we try to have a post up every morning at 7 AM Eastern (Noon GMT), and on some days we post an afternoon story at around 2 PM. After every new story we send out an alert to our e-mail list and our FB page.
Learn about Scientology with our numerous series with experts…
BLOGGING DIANETICS (We read Scientology’s founding text) 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25
UP THE BRIDGE (Claire Headley and Bruce Hines train us as Scientologists) 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41
GETTING OUR ETHICS IN (Jefferson Hawkins explains Scientology’s system of justice) 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14
SCIENTOLOGY MYTHBUSTING (Historian Jon Atack discusses key Scientology concepts) 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41
PZ Myers reads L. Ron Hubbard’s “A History of Man” | Scientology’s Master Spies | Scientology’s Private Dancer
