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Why Scientology’s petition to the Texas Supreme Court mentions a dildo, and other surprises

SupremeCinco2

[El Cinco Supremo: Dave Lubow, Steve Sloat, Ed Bryan, Monty Drake, and CSI]

As our experts predicted, Scientology’s attorneys met their deadline yesterday and petitioned the Texas Supreme Court in an attempt to have an appellate decision reconsidered in Monique Rathbun’s harassment lawsuit against the church, even after the case has been put into some question since Monique fired her own set of attorneys three weeks ago and is without counsel.

In the filing, which we have for you below, the Church of Scientology International (CSI) restates its version of the evidence in the case, making it sound as favorable as possible for itself while making the Rathbuns sound like calculating villains. But that doesn’t really matter. The state supreme court is not there to re-litigate the facts of a case. So Scientology also presents arguments that it hopes will convince the court that there’s an issue here worth its time. (A separate brief has been filed for CSI’s fellow defendants, private investigators and other operatives who took part in the yearslong surveillance campaign aimed at Monique and her husband, former Scientology official Mark “Marty” Rathbun.)

These five defendants, more than two years ago now, filed an “anti-SLAPP” motion, claiming that Monique’s lawsuit was infringing their free speech rights and asking to have it thrown out of court. But the trial court judge in Comal County, Judge Dib Waldrip, concluded that Scientology is a business and was defending its turf, so it didn’t deserve the kind of protection guaranteed in the Texas anti-SLAPP statute, the Texas Citizens Participation Act (TCPA). The state’s Third Court of Appeals in Austin then took more than a full year before getting around to affirming Waldrip’s decision. Now, the defendants are asking the state supreme court to find that the appeals court erred.

They’re doing that in a couple of different ways. On the one hand, they’re saying the appeals court simply screwed up when it referred to a dildo that was mailed to Monique’s office. She blames Scientology for it as just one of many dirty tricks that were played against her after Marty began his blog criticizing Scientology leader David Miscavige in 2009. But because the sex toy was mailed anonymously, Judge Waldrip ignored it as evidence (even though he found for Monique in his decision). So if Waldrip ignored the dildo, the appeals court should have also, and the appeals court was mistaken to refer to it in its decision, Scientology says.

That seems like a pretty minor issue to motivate the interest of the state supreme court, which is under no obligation to take on this appeal for consideration. However, Scientology also points out that the TCPA is a relatively new law, and it has produced a lot of confusion in lawsuits around the state. In this case, the Austin court of appeals used a standard for considering one type of evidence in a way that was favorable to Monique, but other appeals courts, Scientology points out, have used a more neutral standard. One of the chief duties of a state supreme court is to settle such differences that arise in the appeals courts below it. And will that be enough of a discrepancy to interest the court in taking this on?

We asked TX Lawyer, a regular commenter here at the Bunker and an actual lawyer with appellate experience who has been providing us excellent analysis of these appeals. He tells us that he thinks the court will be interested in looking further into this case, which will happen in a well-defined set of steps.

TX Lawyer: Because it is an interlocutory appeal, not an appeal of a final judgment, the Texas Supreme Court can only review the case if one of the justices at the court of appeals had dissented, or if the opinion conflicts with another opinion from a different appellate court. Since the decision by the Austin court of appeals was unanimous, that means the church has to convince the Supreme Court that something in the opinion conflicts with what other appellate courts are finding. They’re trying to make that case by saying that the Austin court reviews the evidence in the light most favorable to the non-movant (Monique, in this instance), while other appeals courts have just reviewed the evidence neutrally. They also say the Austin court conflicts with other cases because this panel did not conduct a claim-by-claim analysis to distinguish between protected and unprotected conduct under the TCPA (our anti-SLAPP statute). Without reading the case law to confirm, these both sound like they’re at least somewhat credible conflicts in the case law, so the petition probably isn’t going to get tossed in the garbage right off the bat.

The arguments presented in the brief here are also devoted solely to those two technical issues, which is a wise move by the attorneys. At this stage, the goal is to convince the court that the case is important enough to take a more detailed look through briefs on the merits, which are much longer than the briefs allowed at this stage. The message they are sending here is that there is a conflict about the procedures for applying the TCPA, and that the Supreme Court needs to fix it so everyone will know what the law really is. So yeah, this is a case about Scientology and the First Amendment, but more importantly for now, it’s about broken Texas case law. That is the sort of thing that the Supreme Court loves to take up.

The Bunker: OK, so you’re saying that the church has probably pointed out enough of a discrepancy between how this law is being applied by different appeals courts that the court might be interested in moving to the next step. What did you think about the section where they go over the background facts of the case, and do their best to make the Rathbuns look bad?

TX Lawyer: Note that the church has gone back to complaining about Marty’s supposed infringement of church trademarks and sale of unauthorized auditing services. I thought they had abandoned a lot of that rhetoric after Judge Waldrip pointed out that it put the church squarely into the TCPA’s exception for cases “brought against a person primarily engaged in the business of selling or leasing goods or services, if the statement or conduct arises out of the sale or lease of goods [or] services . . . .” That’s one of the reasons why Judge Waldrip denied the motion to dismiss, although the court of appeals never reached that part of the trial court’s order. Either way, it seems like it’s coming back to the forefront of the story. The church will have to beat that issue sooner or later if they want to win the appeal, so it appears that they have decided not to hide from it.

Of course, the recitation of facts as a whole is extremely one-sided. But that’s really just window dressing. For appellate purposes, what really matters are the facts that were found by the trial court, not Scientology’s self-serving cherry-picking of claimed facts from the record on appeal.

The petition appears to be correct in claiming that the court of appeals improperly relied on facts that the trial court rejected, namely the anonymous office dildo. I’m not really sure that’s a big deal, though, as it doesn’t mean that the court of appeals’ legal analysis was incorrect. At most, I think that error could lead to sending the case back to the court of appeals to reconsider the case without the offending evidence, where they would inevitably just fix the error and still come to the same conclusion.

The Bunker: That did seem a bit overblown. But what did you think of Scientology’s attempt to interest the court in the legal inconsistencies in the appeals courts regarding this anti-SLAPP law?

TX Lawyer: The brief does a solid job of explaining how the various cases to date have reached, either expressly or implicitly, different conclusions on how to judge the evidence that the defendant was engaged in speech or activity covered by the TCPA. That will certainly get the judges’ attention, because as you note, fixing those kinds of legal conflicts is one of the highest priorities of any supreme court, and Texas is no different in that respect. Ultimately, the justices will have to decide if this is the right case to resolve those disputes, and that remains to be seen.

As they have frequently done in the past, Team Scientology has done a great job of polishing the law and the facts into something that looks really persuasive from a legal standpoint. In the past, of course, Team Monique — Ray Jeffrey, Marc Wiegand, Elliott Cappuccio, and Leslie Hyman — did a fantastic job of punching holes in the church’s version of the case. It is a shame they will not be able to do that again this time.

The Bunker: So what’s the next step?

TX Lawyer: Mrs. Rathbun does not have to file a response at the present time, as the court cannot rule without asking for a response to be filed. Practically speaking, however, they are overwhelmingly likely (probably within the next 30 days or so) to request a response, as it only takes the vote of one justice to do so.

The Bunker: And then Monique will need to submit a response, and at this point she doesn’t have an attorney to help her do that. That will be interesting.

TX Lawyer: After Monique files a response, the church will then get the opportunity to file a short reply, after which the justices will vote on whether or not to take a closer look at the case by requesting full briefs on the merits. If three of the nine justices vote for merits briefs, the briefing will begin all over again, with a little more than three times the word limits of the current round of briefing. I will bet you just about anything that there are three votes for merits briefs. This case is just too interesting not to take a closer look.

After merits briefs are complete, one of the court’s law clerks will draft and circulate a bench memo analyzing the issues and making recommendations on what the court should do with the case. If there are four justices who want to hear the case on the merits, at that point it would most likely be set for oral argument. The court could try to draft a per curiam opinion without oral argument, but those opinions are really supposed to be reserved for cases where the law is clear and settled, which would not apply here. After oral argument, it would take the votes of at least five justices to reverse the Austin Court of Appeals and allow the church to prevail.

Finally, just some pure speculation on my part. One thing that occurred to me is that if the court does show interest in the case, there could be one or more attorneys willing to volunteer and take on the appeal for Mrs. Rathbun just for the sake of getting some experience and goodwill with the Texas Supreme Court. That kind of thing happens all the time at the U.S. Supreme Court, and maybe it could happen here too. But whether such an offer would even be accepted seems doubtful given the unexplained firing of an entire team of attorneys who were objectively winning the case.

The Bunker: Scott Pilutik suggested to us that the court might solicit someone in the state bar association to help Monique if it is really interested in hearing the case.

TX Lawyer: It might be possible for the court to solicit some legal assistance for Monique, although I am unaware of that ever happening, at least in the time that I’ve been practicing. But the reason I think that could happen is because if the court is really interested in these issues, they will want to see them presented properly, not by a pro se respondent (someone representing themselves in court) or her ghost-writing spouse. The court could not have anyone represent Monique without her consent, however. In a weird way, having the respondent suddenly go pro se actually makes it somewhat less likely that the court will ultimately decide to grant the petition and set the case for oral argument. It’s important to the justices to get the law right, and that becomes quite a bit less likely when one of the two sides analyzing the law for the court is a complete amateur. But that may just be a wash, if the church’s analysis ends up being persuasive.

The Bunker: A brief like this does seem like it has a good chance to get the court interested in moving forward on it. If that’s the case, why would Scientology leader David Miscavige be interested in settling the lawsuit at this point? Wouldn’t he want to see how his team succeeds, especially against an unrepresented opponent?

TX Lawyer: The only reason I can see Miscavige having to settle after this petition, and knowing that the Rathbuns are now on their own, legally-speaking, is that he might decide that the litigation just isn’t worth the expense. Also, monkeys might fly out of my butt. He has no reason in the world to settle this now!

The Bunker: So again, to review, we’ll be waiting to see if just one justice on the state supreme court decides that he or she wants to hear more in this case, and then asks Monique to file a response. Her response would need to wrestle with these issues of law, not the background facts in the case. If that happens, we sure wish her luck. And if it moves beyond that, to a full court consideration of the case…

TX Lawyer: If you look at the prayer for relief at the end of the brief, they are asking the court to reverse the court of appeals’ decision and remand the case back to that court to decide the “second step” question of whether Monique established a prima facie case for each element of her legal claims. So it would not appear that a Texas Supreme Court win would bring an end to the lawsuit, just more appellate proceedings.

The Bunker: Wow. A lot to think about. Thank you, TX Lawyer, and now we’d like to hear from our readers about this interesting new document. Give it a good look…

 

Monique Rathbun v. Scientology: CSI state supreme court Petition

 
And here’s the separate brief filed by the other defendants, private investigators Dave Lubow and Monty Drake, Squirrel Buster Ed Bryan, and hired spy Steven Gregory Sloat…

 

Monique Rathbun v. Scientology: Supreme Court petition #2

 
We asked TX Lawyer to look at the second petition, and he gave us these thoughts…

It’s ironic that their primary issue is complaining the court of appeals didn’t evaluate their own alleged conduct individually. If anything, Sloat and Drake (the paid surveillance team), plus Bryan and Lubow (the heads of the harassment squad) are even more directly tied to the actionable conduct than the church itself. Yeah, we all know who calls the shots on this sort of stuff, but let’s not forget that the trigger is actually pulled by morally culpable human beings, not all of whom are even believers of the Hubbard mythos.

Legally speaking, I don’t think the court of appeals’ failure to analyze their individual culpability was any kind of error if the court was correct in deciding that the conduct overall was not protected by the TCPA. That part of the motion is the defendants’ burden to prove, and if they can’t show it’s protected activity, it shouldn’t matter who did what.

I would describe this brief as complementary rather than duplicative. The CSI brief does complain a little bit about the appellate court’s failing to look at the individual claims and not segregating the actionable and non-actionable conduct, but this one is more focused on the individual actors.

I would also opine that this brief is pretty distinct in tone and approach of the CSI brief. While it was undoubtedly reviewed, revised, and approved by the church’s lawyers, I do not think it was written by them. This really reads like the work of lawyers who are focused on their individual clients, not just the overlords who are actually paying the bills. It is more concerned with showing the defendants are innocent, rather than just talking about conflicts in the case law. But it’s also the sort of brief that is much more easily rebutted if there is contrary evidence in the record, which I suspect is the case here.

 
He also sent this additional thought…

You may have already noticed this, but this is the first time I have recognized it. The church has made a slight adjustment to its legal team. The lead lawyer here is Doug Alexander. He’s one of the most respected appellate lawyers in the state, particularly at the Supreme Court. He is also the law partner of former Chief Justice Wallace Jefferson, who led the legal team on behalf of David Miscavige and RTC when they won the writ of mandamus to shut down Miscavige’s deposition.

I didn’t notice it at the time, but Doug’s name has been on the case for CSI since the first motion for extension was filed in December.

The reason this is noteworthy to me is that the legal team had been keeping up appearances of representing separate interests between Miscavige/RTC and CSI. Back in the trial court, they were setting up CSI to take the fall if there is liability in the lawsuit, while manning a firewall between CSI and RTC. That firewall is a bit less credible when they are all being represented by the same law firm — Alexander, Dubose, Jefferson & Townsend. And yet they don’t include Jefferson’s name on this brief, which is a bit curious too.

 
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Scientology’s other ad airing now on network TV

Following recent tradition, Scientology aired a new ad during local spots in this year’s Super Bowl and then began showing more ads during prime time broadcasts in the ensuing weeks. This year, however, rather than just show the same Super Bowl ad over and over, Scientology has been running a second ad during such broadcasts as the Grammy Awards show.

The second ad touts Scientology’s “social betterment” campaigns, front groups that are intended to boost the image of founder L. Ron Hubbard while giving outdated advice about drug abuse, etc.

Here’s the 30-second ad you may have been seeing lately in prime time…

 

 
How meaningful are these numbers? Well, you might take a look at how we took apart a previous ad that was in the same style. (Scientology’s Golden Era Productions loves those typographical displays that woosh around the screen).

 
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3D-UnbreakablePosted by Tony Ortega on February 20, 2016 at 07:00

E-mail tips and story ideas to tonyo94 AT gmail DOT com or follow us on Twitter. We post behind-the-scenes updates at our Facebook author page. After every new story we send out an alert to our e-mail list and our FB page.

Our book, The Unbreakable Miss Lovely: How the Church of Scientology tried to destroy Paulette Cooper, is on sale at Amazon in paperback and Kindle editions. We’ve posted photographs of Paulette and scenes from her life at a separate location. Reader Sookie put together a complete index. More information about the book, and our 2015 book tour, can also be found at the book’s dedicated 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 L.A. 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

Other links: Shelly Miscavige, ten years gone | The Lisa McPherson story told in real time | The Cathriona White stories | The Leah Remini ‘Knowledge Reports’ | Hear audio of a Scientology excommunication | Scientology’s little day care of horrors | Whatever happened to Steve Fishman? | Felony charges for Scientology’s drug rehab scam | Why Scientology digs bomb-proof vaults in the desert | PZ Myers reads L. Ron Hubbard’s “A History of Man” | Scientology’s Master Spies | Scientology’s Private Dancer | The mystery of the richest Scientologist and his wayward sons | Scientology’s shocking mistreatment of the mentally ill | Scientology boasts about assistance from Google | The Underground Bunker’s Official Theme Song | The Underground Bunker FAQ

Our Guide to Alex Gibney’s film ‘Going Clear,’ and our pages about its principal figures…
Jason Beghe | Tom DeVocht | Sara Goldberg | Paul Haggis | Mark “Marty” Rathbun | Mike Rinder | Spanky Taylor | Hana Whitfield

 

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