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Days before crucial hearing, Scientology pulls out a ghost to sway a federal judge

Judge James D. Whittemore

Judge James D. Whittemore

Federal Tampa district Judge James D. Whittemore has been preparing in a very methodical way ahead of a February 18 evidentiary hearing that could have a huge impact on the Church of Scientology.

He’s already held one live hearing on this important preliminary matter, and in anticipation of next week’s event, he ordered both sides in the Luis and Rocio Garcia fraud lawsuit against the church to conduct numerous depositions.

We published one deposition transcript, two video segments from another (one, two), and detailed some of the complications about scheduling a third. But there were several others which were scheduled that we haven’t had a chance to discuss.

All of the depositions have been completed now, and there was a status hearing held the other day to clear up some matters before next week’s big showdown. And then, naturally, Scientology decided to throw a wrench into the works.

At the status hearing, its attorneys asked to file a “short” pleading summing up its position on the motion that will be heard in next week’s mini-trial. With all of the evidence gathered and the hearing itself just days away, the church’s request seemed a little presumptuous, but Whittemore relented and gave the attorneys leave to file a short statement.

Yesterday, Scientology filed its 25-page “bench memorandum” with 50 pages of exhibits. The Garcia side, we’re told, will now file a response, but for today, we have for you a copy of what the church filed.

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We think there are a number of things going on in this memo, some rather obvious, others more subtle. But it also reveals that for this hearing the church has brought back a ghost whose name is really going to startle some longtime Scientology watchers.

Are you ready? Can you say, Sherman Lenske? (Did you just see Jeffrey Augustine jump out of his seat? Anyone have some smelling salts?)

We kid, but believe us when we say there are some longtime, old style Scientology researchers who are going to be salivating, or palpitating, or just plain dropping their jaws to hear that Scientology has pulled Sherman Lenske off the shelf for a deposition in the Garcia lawsuit.

Hey, we’ve been trying to tell you that this is a big hearing that scares the crap out of Scientology leader David Miscavige. We think this new development should put any question of that to rest.

So the new folks are wondering, who is Sherman Lenske, and why are the oldtimers so worked up about him showing up for a deposition?

The simple answer is that he’s an attorney who helped Scientology complete its complex corporate restructuring in the early 1980s while L. Ron Hubbard was in seclusion.

He was one of the creators of the Church of Spiritual Technology, for example, the most secretive of Scientology entities, which digs vaults around the country for keeping the words of Hubbard safe from nuclear annihilation. If that weren’t weird enough, CST can, for a nominal fee, buy back the church’s trademarks and copyrights administered by the Religious Technology Center — the entity that David Miscavige nominally runs Scientology from — and take over control of the movement itself.

Because of that, and because Lenske not only founded CST but was named one of its “special directors,” a certain contingent of disaffected church members, unhappy former members, old time critics, and other folks obsessed with the most arcane of Scientology’s secrets, have imbued the name Sherman Lenske with legendary status.

Who was he, really, and as a special director of CST could he and the other directors be persuaded to remove Miscavige from power by voting him out or by pulling the trademarks from RTC?

Other, even more conspiratorial folks see in the timing of Lenske’s arrival — in 1981, when Hubbard had gone into hiding and his wife, Mary Sue, was stripped of her power following the Snow White prosecutions — as a covert takeover of Scientology that was secretly pulled off by the IRS or the CIA or black helicopters or the lizard folk, or what have you.

“That goose chase you’re on — that’s what we tried to make people do, lead them to follow that paper trail and think they were on to something. The people who think they’re following the power of control by looking at the lists of directors for CST are falling for the sham we set up,” Denise Brennan told us in 2013 in another story we wrote about CST with the help of Jon Atack.

Denise worked with Sherman Lenske and Lyman Spurlock and Norman Starkey to help make the “corporate sort-out” happen in 1981-1982, according to the wishes of Hubbard, who had gone into permanent hiding in February 1980.

Denise, who passed away last year, told us that the corporate sort-out was purposefully confusing and multi-layered, and in the end it’s all a sham anyway.

“It’s all just a scam that has nothing to do with who really runs Scientology. Who runs Scientology is David Miscavige, and he controls it through the Sea Organization,” she told us.

Still, juicy conspiracy stories die hard, and we expect the news that Sherman Lenske gave a deposition will send shockwaves through the Scientology watching community.

So why was Lenske brought out of the shadows to take part in the Garcia lawsuit?

Mainly to counter testimony by Mike Rinder.

If you remember, the point of this preliminary matter is an argument over Scientology’s internal justice procedures. The church wants Judge Whittemore to rule that the Garcias have to take their grievances to Scientology’s own arbitration system, after agreeing to do so when they signed contracts as members. But those arbitration procedures require the Garcias to take their fraud complaint to a three-person arbitration panel made up of church members in good standing. There’s no way that such a panel would ever hear impartially the grievances of former church members who have been “declared suppressive persons.”

In fact, the Garcias argue, Scientology’s arbitration rules are a sham, purposefully designed to prevent any former member from obtaining a refund. As evidence, they submitted a declaration by former Scientology spokesman and legal affairs executive Mike Rinder, who said that sometime around the year 2000, he helped write those rules, and he made sure they would never allow a refund to happen.

To impeach Rinder, Scientology brought in Lenske to say that he helped write the arbitration rules much earlier, in the 1980s when he was setting up those entities in the corporate sort-out.

If Lenske’s deposition contained more explosive revelations, they weren’t part of the few pages that were excerpted for Scientology’s bench memo.

In the rest of the memo, Scientology restates its position on its motion to compel arbitration, arguing that the Garcias signed contracts which require them to take grievances to Scientology’s internal justice rather than to a civil court. But here’s a new wrinkle. Even though it was Scientology that injected its arbitration rules into the lawsuit with its motion to compel, it doesn’t like that now Judge Whittermore might be in a position to declare those rules a sham.

To hold for Plaintiffs, the Court must determine that Plaintiffs correctly define church justice procedures and that the church does not. There is nothing that is more contrary to well established First Amendment doctrine….This court cannot adjudicate whether the procedures contained within the 1963 policy letter apply to internal arbitration proceedings in a manner contrary to that determined by senior church authorities. That is a question of church law for the Defendants to decide.

In other words, judge, we just want you to follow Scientology’s rules, not interpret them. Is this an effective last-minute strategy? Or has Scientology once again risked the wrath of Whittemore, who is a stickler for page limits and protocol? We look forward to hearing from the lawyers in our commenting community.

Here’s the bench memo…

 

Garcia v. Scientology: Defendants Bench Memorandum

 
Supporting documents

Pages from the deposition of Mike Ellis: Ellis is Scientology’s International Justice Chief, another shadowy figure who is the only “terminal” for ex-members to communicate with. Ellis is grilled by Garcia attorney Ted Babbitt over the assertion Ellis had made in his declaration, that L. Ron Hubbard’s 1963 policy letter about “committees of evidence” should also be followed for arbitration. But that’s pretty theoretical, since it’s never actually been tried. And it would be a little like using a court martial to handle a financial dispute.

Pages from the deposition of Luis Garcia
Pages from the deposition of Sherman Lenske
Pages from the deposition of Allan Cartwright

 
UPDATE: We asked TX Lawyer for an assessment of Scientology’s filing, and here’s what he sent us…

I can’t predict how the judge will react to this filing, though it does seem like typical Scientology overkill. That said, it’s not unusual for a litigant to file a bench memo in advance of an important hearing or a trial. They can be a really useful way of focusing the court on the key issues, at least as the filing party sees them.

On the substance, the brief is trying to set up a Catch-22 situation. Arbitration law says that the judge has to determine whether Scientology’s arbitration system is legitimate, but the First Amendment means the judge has to defer to Scientology’s determination that the arbitration system is legitimate.

As the brief puts it (p.8), “A court cannot begin to adjudicate what is and is not church doctrine or the importance of the doctrine to the religion.” The conflict here is whether arbitration — which is only authorized as a dispute resolution system in the first place due to the Federal Arbitration Act and its state law equivalents — qualifies as “church doctrine,” or whether it is something else that courts are indeed allowed to examine. The problem with that argument is that Scientology is arguing the arbitration is contractual, not doctrinal. There’s a big difference between “We have a contract!” and “Hubbard said we should arbitrate!” Contracts are not exempt from judicial scrutiny under the First Amendment, even if the subject matter of the agreement affects religious institutions or principles.

As the U.S. Supreme Court put it way back in 1872: “Religious organizations come before us in the same attitude as other voluntary associations for benevolent or charitable purposes, and their rights of property, or of contract, are equally under the protection of the law, and the actions of their members subject to its restraints.” So Scientology is trying to present this as a doctrinal dispute rather than a contractual one. The overlap between those two fields looks like that is where this is going to be resolved, first by Judge Whittemore and then probably by the 11th Circuit.

This is going to be a fascinating hearing.

 
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Bonus photos from our tipsters

You remember Sarah Erlich, who recently announced on Facebook that her 16-year-old son, Arthur, had joined the Sea Org. Here’s the caption on her latest photo at Instagram (she’s the woman on the left side in the photo): “Such a great night.. The amazing Nicole & Sean surprised us by taking us to a live escape gaming experience with their genius friend who has an IQ of 197 (5th smartest guy in the world).” The “genius” she’s referring to is the man in the center, Walter O’Brien, who has come in for some criticism from the press about his claims.

 
Sarah_Ehrlich

 
The folks at London org celebrate Scientology’s full page ad in that city today. What was that about advertising standards in the UK we keep hearing about from our commenters?

 
LondonAd

 
Arwen Elys Dayton, wife to Sky Dayton, both Delphi grads, signs copies of her new YA novel, Seeker, which launched Tuesday.

 
Arwen_Dayton

 
Is it Going Clear that has Scientologists feeling feisty? The Riverpark Mission in Sacramento just posted this item on its Facebook page, linking to a year-old article about Kirstie Alley calling defector Leah Remini a “bigot”…

 
SciRiverpark

 
Scientologists are using social media more than ever. Drop us a line if you spot them posting images to Instagram or Facebook!

 
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Posted by Tony Ortega on February 13, 2015 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 cover to cover with the help of LA attorney and former church member Vance Woodward

UP THE BRIDGE: Claire Headley and Bruce Hines train us as Scientologists

GETTING OUR ETHICS IN: Jefferson Hawkins explains Scientology’s system of justice

SCIENTOLOGY MYTHBUSTING: Historian Jon Atack discusses key Scientology concepts

PZ Myers reads L. Ron Hubbard’s “A History of Man” | Scientology’s Master Spies | Scientology’s Private Dancer
The Underground Bunker’s Official Theme Song | The Underground Bunker FAQ

 

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