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Appeals court: Would deposing Scientology’s leader violate Texas law?

DavidMiscavige2Nick Rogers called us from Austin with a report of what happened today in the Texas Third Court of Appeals as three justices wrestled with the question of whether Church of Scientology leader David Miscavige should be deposed in Monique Rathbun’s harassment lawsuit.

In December, Comal County judge Dib Waldrip ruled that Monique could depose Miscavige about his role in what the Church of Scientology has already admitted to — spending years to surveil her and her husband Marty Rathbun with the use of private investigators and other operatives.

Miscavige’s attorneys filed a petition for a writ of mandamus, which is essentially like putting Judge Waldrip himself on trial. In order to overturn Waldrip’s order and save himself from a deposition, Miscavige has to prove that Waldrip “abused his discretion” when he ruled.

In its petition to the court, Miscavige’s attorneys went on at length about how he was the “ecclesiastical leader” of a rapidly growing worldwide religion, and that it would violate Miscavige’s religious rights to be subjected to questioning.

But in the courtroom today, Nick tells us most of the discussion centered not on religion, but instead on Texas law about “apex depositions.”

This was another part of Scientology’s argument, that the law shields CEOs of companies from being dragged into lawsuits simply as a form of harassment. As the “apex” of a corporation, CEOs should not have to endure questions they have no answers to merely as a legal tactic.


Scientology argues that the law applies in his case, and that Monique Rathbun is trying to depose Miscavige simply as a form of leverage.

Nick tells us that Wallace Jefferson, Miscavige’s attorney and until recently the chief justice of the Texas Supreme Court, made that argument again during the 20 minutes he had to make a presentation.

During her 20 minutes, Monique’s attorney Leslie Hyman countered that by saying the apex deposition law doesn’t apply in this case because Miscavige is not just the “CEO” of Scientology, but he’s actually a named defendant in the lawsuit, and the person the Rathbuns believe was most responsible for directing the harassment at them.

“It wasn’t a very long hearing. Most of the arguments were over whether Miscavige is defined as an apex deposition. That’s what they seemed most interested in,” Nick tells us.

Monique’s lead attorney, Ray Jeffrey, tells us that Justice Melissa Goodwin — one of three justices on the appeals panel — asked a question that Wallace Jefferson didn’t seem to have thought through.

By relying so heavily on the apex deposition rule, did that mean Scientology was giving up on its other argument, that a Texas court simply had no jurisdiction over him? “She said, by merely making this argument about apex depositions, they may have already waived their objection to jurisdiction,” Jeffrey tells us.

Nick and Jeffrey both told us that the justice with the most questions was Scott Field, who grilled Hyman about whether Monique’s team had really done enough during depositions of Scientology employees Warren McShane and Allan Cartwright to get the answers they needed before trying to depose Miscavige.

“The reality of those depositions is that they denied that Miscavige had anything to do with the Rathbun operation,” Ray Jeffrey told us. “Then, when I asked them, how would you know that — how often do you see him? — Cartwright acknowledged that he has no contact with Miscavige. McShane said he knew that Miscavige was not involved. But he admitted that he’s not around Miscavige very often, doesn’t talk to him on the phone. So how does he know?”

Justice Field, however, asked if they had tried to find out from McShane and Cartwright who else would have known more about Miscavige’s involvement. Nick says that Hyman responded that they would just end up doing deposition after deposition.

“It’s kind of Catch-22 for us. They deny he has any connection, but they tell us we should have asked more questions,” Jeffrey said.

Nick told us that another interesting question Field asked was, what allegation had been made about Miscavige’s personal motivation — how would it benefit him to harass the Rathbuns?

“Hyman said it was a personal benefit, to harm the people who are trying to harm me,” Nick said.

Perhaps the most interesting question, Nick says, came at the end, when Wallace had come back after Leslie Hyman’s twenty minutes with time for rebuttal. The question was asked by Justice David Puryear, who said to Wallace, how would you articulate the abuse of discretion by the trial court? Doesn’t trial court have room for discretion?

In other words, what did Judge Waldrip do wrong by deciding that Miscavige could be deposed? This is, after all, the threshold for the writ, that Waldrip had abused his discretion as a judge.

Nick tells us that Wallace answered probably the only way that he could, by saying the facts in the case made the choice for Waldrip clear, and he made the wrong choice.

Ray Jeffrey pointed out to us that Scientology can’t simply disagree with Waldrip’s ruling, they have to show that Waldrip abused his position.

“I just think it’s a lot to say that after all the work he did, that Judge Waldrip abused his discretion,” he said.

We asked him if Scientology’s showy arguments about religion ever came up at all.

“In the opening argument by Jefferson, he really didn’t addresss it at all, but Leslie addressed it in her argument. So when Jefferson got up on rebuttal, he did a couple of minutes on the usual ‘dynamic, growing religion,’ and that these affidavits and depositons are old, and that Scientology is growing and all that sort of thing,” Jeffrey said.

Overall, Jeffrey says, the whole thing seemed rather routine.

“The most questions came from Justice Field. He didn’t seem to be pushing any kind of agenda. They all seemed pretty neutral. None of them knew how to say Miscavige’s name,” he said. “It just underscores again that the Church of Scientology is not well known in Texas.”

Jeffrey said that Monique’s team is “cautiously optimistic.”

The three-justice panel will consider the evidence and issue a ruling sometime in the next 60 days, we’re told.


Posted by Tony Ortega on April 9, 2014 at 18:05

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