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Here’s Scientology’s petition for rehearing in Masterson lawsuit, arguing that court blew it

[Chrissie Bixler and Scientology’s attorneys, Forman and Hinks]

Gene Maddaus at Variety broke the news this afternoon that Scientology had filed a petition with a California appeals court, asking for a rehearing after a recent big loss in the lawsuit filed by Danny Masterson’s rape accusers.

The appeals court had ruled that since Chrissie Bixler and Masterson’s other accusers were suing over the harassment they say they had experienced after leaving Scientology, the church couldn’t hold them to contracts they had signed while members years (even decades) earlier, which obligated them to take any grievance to “religious arbitration.”

It was a major defeat for Scientology after it had been on a six-year winning streak in multiple lawsuits, derailing cases with similar arbitration rulings.

In its petition, Scientology is arguing that it should get a rehearing because the appeals court overstepped its bounds, making its decision on facts and arguments that hadn’t been properly raised by Masterson’s accusers.

We have the document for you, and we’re looking forward to your thoughts on it. We were struck by how much Scientology focuses on the assumption that these women (and one of their husbands) had actually left the church, and when. They’re arguing that the appeals court made some assumptions about that which they shouldn’t have.

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We’re checking with our experts, but we think a petition for a rehearing might be a long shot. However, we have a feeling that this is a dry run for an appeal that Scientology will try later, perhaps at the US Supreme Court.

So let’s get into the petition.

Scientology attorneys William Forman and Matthew Hinks start out by characterizing the argument that Marci Hamilton, attorney for Masterson’s accusers, was making at the oral arguments hearing, that as former Scientologists, the plaintiffs should not be subject to a “religious ritual” like Scientology’s internal brand of arbitration.

Petitioners came before this Court claiming irreparable harm on a narrow theory: Litigating any claim in Scientology arbitration – their forum of choice under contract – violated their First Amendment rights because such arbitration was a religious ritual and they were now non-believers. Respondents addressed that Petition, and showed why it was not supported by the record or the law.

But the court, Scientology says, ruled on something else: That because the harm that was alleged, the harassment and stalking the plaintiffs are claiming, came after they had left the church, the contracts no longer applied to them. And they had First Amendment rights to leave the church. Scientology complains this was beside the point.

This Court did not rule on that Petition or the issues briefed within it. It held that Petitioners’ religious ritual argument – the basis for supposed irreparable harm – was “immaterial.” Then, this Court embarked on an examination of when Petitioners’ claims allegedly arose, the Petitioners’ status within the Church at that time, whether the claims “stemmed from” the contractual relationship with the Church, and fashioned a balancing test to weigh free exercise rights – none of which was addressed in the briefing.

This led the court to overstep its bounds, Scientology says.

This Court became the first in the nation to hold that “freely executed” religious arbitration agreements cannot be enforced over the First Amendment objections of a party who claims to be a “non-believer.”

There’s a lot of detail that follows, and especially about whether these former parishioners ever really left the church, and when. We figure that’s going to raise a lot of eyebrows with our ex-Scientologist members.

Help us go through the document and pull out your favorite parts!

 

Bixler v Scientology: Petit… by Tony Ortega

 

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An initial reaction from appellate attorney TX Lawyer: “Tremendous longshot, especially with an already unanimous panel. The most likely outcome on a motion for rehearing to a unanimous panel is that nothing gets changed. The second most likely outcome on a motion for rehearing is that they fix the previous opinion to make it more likely that you lose on further appeal. The third most likely outcome on a motion for rehearing is that one of the judges dies or retires in the interim, and even then you still probably lose unanimously. I did, one time, many years ago, get one judge on a court of appeals to change his mind and issue a dissent on denial of the motion for rehearing. That dissent meant I got jurisdiction in the Texas Supreme Court. Which ended up not doing my client any good other than further delay in paying up.”

 
UPDATE: And now that TX Lawyer has had an opportunity to go over the petition in detail…

They are trying to recast the court’s First Amendment ruling as an issue about the scope of the arbitration agreement. The court of appeals’ opinion was that it was unconstitutional to force religious adherents into religious arbitration for things done by the church after their adhering days were finished. Scientology wants it to be a dispute about whether the arbitration agreements covered things that happened after they left the church, which is exactly what the court of appeals already ruled against. I do not see that argument going anywhere.

They are also pitching Scientology as a First Amendment victim. Scientology should be free to exercise its contractual arbitration rights, they claim, because any secular outfit would be allowed to do so. It’s an interesting question whether an arbitration agreement sending all future claims between the parties would really be enforceable if, for instance, you quit your Peloton membership and Peloton subsequently set out on a campaign of harassment and pet poisoning and such against you. But I think the court of appeals is likely to stick with its previous decision is likely to hold: The First Amendment does not allow enforcement of a religious arbitration agreement for conduct that arose after the adherent became an ex-adherent.

Query: Would it work the other way around? If an ex-member set the local org on fire, would Scientology not be able to take its claim to arbitration to make the ex- pay for the damage? If a cake shop agrees to make a wedding cake for a same-sex couple, then the owner gets a visit from Heteronormative Jesus before the wedding, can the cake shop refuse to deliver? I doubt the church-as-victim claim is going to succeed because the court of appeals has already rejected it sub silentio, but it raises interesting theoretical questions.

That thing I mentioned last night about how moving for rehearing might end up prompting to fix its opinion so you’re more likely to lose on further appeal? That seems like what is happening with the church’s argument that the plaintiffs have been equivocal on whether they are complaining about post-exit conduct or both pre- and post-exit acts. It seems like a fair point by the church, but it’s also the kind of point that is unlikely to make at least two of the judges change their minds about the outcome. If they bother to fix it, they can just clarify that even though some of the background issues originate from when the plaintiffs were inside the church, the substance of the causes of action is all post-exit. The court can even add that to the extent any claim seeks to recover for actions that occurred while they were still in, that claim would have to be referred to arbitration. I think that’s already implicit in the previous opinion, but stating it expressly would not hurt.

Overall, I think Scientology’s attorneys do a fairly good job of pointing out the disconnects between the arguments presented by the plaintiffs’ lawyers and the opinion that emerged from the court of appeals. I do think the appellate court kind of saved the plaintiffs from their lawyers’ own arguments (which was also the obvious point of the California Supreme Court’s order that nah, y’all need to think harder about this one). I am skeptical that it will make any difference in the end. The court of appeals has already made up its mind, SCOCA got the result it wanted, and SCOTUS is smart enough not to get tangled up in weirdo Scientology litigation. Whatever appellate shenanigans are left to play out, I expect this thing is headed to discovery and the merits of the case in the trial court sooner or later.

 
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Jon Atack and Karen de la Carriere

 

 

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Sign up for a daily email when we post a new story on Scientology.

Did you know you can get an email every morning when we post our daily Scientology story? We know some of the folks who come to the Underground Bunker aren’t here to talk about the politics of the day, and that’s why we created a daily politics feature over at our other blog, The Lowdown, and we ask readers to take their political discussions over there. And if you drop us a line at tonyo94 AT gmail, we’ll put you on the list so you get a morning reminder that a new Scientology story has been posted — and only for our Scientology stories.

 
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Source Code

“I don’t say that you could walk up to the tomb of Alexander and bring Alexander back into the tomb and have him knock the dust together again and resurrect. See, I don’t say that you could do this. But I don’t say you can’t.” — L. Ron Hubbard, February 5, 1957

 
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Avast, Ye Mateys

“The demands for books to meet increased org activity generated by the FEBCs returning is a subject of concern. Pubs Org fell low in income after mid-1970 and has not recovered and is travelling at a non-viable level now reflected in its crossed Cash-Bills. Non E has been assigned with a Liability Condition in the offering and a general rocket has been set. A strong US center is being urged by me, an order not fully carried out a long time ago. Measures will have to be taken. Eval in Data Bureau should get to work on its WHY. There was a spectacular stat change in mid 1970 after which no recovery.” — The Commodore, February 5, 1971

 
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Overheard in the FreeZone

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“Because the tech was created in the future then this timeline was created in this future and sent here to this time now I don’t want to confuse anyone. The static creates the new viewpoint but since the real time this universe is running is in a future time then the static created this viewpoint in the now of the future but sent me to this period of time. Does this make sense?”

 
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Past is Prologue

2000: Mark Bunker, filmmaker for the Lisa McPherson Trust, was attacked this week by a worker at the home of German Scientologist Gottfried Helnwein. “This morning Mark Bunker went with German film maker Peter Reichelt and Hans Michael Kassel, director of documentary film for the German TV station ARD, to Gottfried Helnwein’s house on Palm Bluffs Road, about a mile and a half north of 33 N. Ft. Harrison. Gottfried is a Scientology artist in Germany who has apparently been denying he is a Scientologist, and Peter and Hans Michael were here gathering documentary footage to prove he is an active Scientologist. As Mark was videotaping, a man ran out of Gottfried’s house and assaulted Mark with a hammer. He hit Mark’s camera twice but luckily did not hurt Mark, although Mark was extremely frightened and shaken when this man ran at him and struck him with a dangerous weapon. The man then went back into the front door of Gottfried’s house, and soon after that two police officers arrived. Mark spoke to Officer Kelly, and told him that a man had just assaulted him with a hammer and asked the officer if he wanted to see it on videotape. He asked Mark if he had informed the man that he was audiotaping him. Then Officer Kelly told Mark that he was going to arrest him for audiotaping the hammer-wielding man without his knowledge! [W]ithin a few minutes Sergeant John Zegzdryn arrived on the scene….Sergeant Zegzdryn approached Mark to see if he wanted to file a complaint about the man with the hammer. Mark said absolutely yes, he wanted the man arrested. But the police officers then told us that they were not going to arrest the man, that they were going to refer the matter to the state attorney’s office. The man who assaulted Mark with the hammer is named Richard Bernard.”

 
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Random Howdy

“The one thing that LRH and D.M. have elevated to a fine art is cheapness. I heard stories about J. Paul Getty when I was a kid and he had nothing on these guys.”

 
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Full Court Press: What we’re watching at the Underground Bunker

Criminal prosecutions:
Danny Masterson charged for raping three women: Next hearing set for February 8. Trial scheduled for August 29.

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‘Lafayette Ronald Hubbard’ (a/k/a Justin Craig), aggravated assault, plus drug charges: Last hearing was on January 18, referred to grand jury.
Jay and Jeff Spina, Medicare fraud: Jay sentenced to 9 years in prison. Jeff’s sentencing to be scheduled.
Hanan and Rizza Islam and other family members, Medi-Cal fraud: Pretrial conference March 25 in Los Angeles
David Gentile, GPB Capital, fraud: Next pretrial conference set for February 11.
Joseph ‘Ben’ Barton, Medicare fraud: Pleaded guilty, awaiting sentencing.
Yanti Mike Greene, Scientology private eye accused of contempt of court: Next hearing February 15.

Civil litigation:
Luis and Rocio Garcia v. Scientology: Eleventh Circuit affirmed ruling granting Scientology’s motion for arbitration. Garcias considering next move.
Valerie Haney v. Scientology: Forced to ‘religious arbitration.’ US Supreme Court denied Valerie’s petition Oct 4.
Chrissie Bixler et al. v. Scientology and Danny Masterson: Appellate court removes requirement of arbitration on January 19, case remanded back to Superior Court. Scientology has said it will file an anti-SLAPP motion.
Brian Statler Sr v. City of Inglewood: Third amended complaint filed, trial set for June 28.
Author Steve Cannane defamation trial: Trial concluded, Cannane victorious, awarded court costs. Appeal hearing held Aug 23-27. Awaiting a ruling.
Chiropractors Steve Peyroux and Brent Detelich, stem cell fraud: Lawsuit filed by the FTC and state of Georgia in August, now in discovery phase.

 
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THE PROSECUTION OF DANNY MASTERSON

We first broke the news of the LAPD’s investigation of Scientology celebrity Danny Masterson on rape allegations in 2017, and we’ve been covering the story every step of the way since then. At this page we’ve collected our most important links, including our four days in Los Angeles covering the preliminary hearing and its ruling, which has Danny facing trial and the potential sentence of 45 years to life in prison.

SCIENTOLOGY: FAIR GAME

After the success of their double-Emmy-winning, three-season A&E series ‘Scientology and the Aftermath,’ Leah Remini and Mike Rinder continue the conversation on their podcast, ‘Scientology: Fair Game.’ We’ve created a landing page where you can hear all of the episodes so far.

LEAH REMINI: SCIENTOLOGY AND THE AFTERMATH

An episode-by-episode guide to Leah Remini’s three-season, double-Emmy winning series that changed everything for Scientology watching. Originally aired from 2016 to 2019 on the A&E network, and now on Netflix.

SCIENTOLOGY’S CELEBRITIES, from A to Z

Find your favorite Hubbardite celeb at this index page — or suggest someone to add to the list!

 
Other links: SCIENTOLOGY BLACK OPS: Tom Cruise and dirty tricks. Scientology’s Ideal Orgs, from one end of the planet to the other. Scientology’s sneaky front groups, spreading the good news about L. Ron Hubbard while pretending to benefit society. Scientology Lit: Books reviewed or excerpted in a weekly series. How many have you read?

 
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THE WHOLE TRACK

[ONE year ago] Scientologist David Gentile charged by feds in $1.8 billion Ponzi-like fraud scheme
[THREE years ago] Mark Bunker: Clearwater’s Officer (now Chief) Slaughter oversaw the Scientology detail
[FOUR years ago] Are you Sci-Curious? Here’s Scientology’s 2018 Super Bowl ad
[FIVE years ago] Scientology’s Super Bowl ad: Here’s your sneak peek at what it’s going to be like
[SIX years ago] When David Miscavige was riding high with ‘The Basics’ — Scientology’s 2008 New Year’s event!
[SEVEN years ago] LEAH REMINI IN TALKS TO SUE SCIENTOLOGY: MIKE RINDER TESTIMONY
[EIGHT years ago] It’s a make-or-break day for Monique Rathbun vs Scientology in a Texas courtroom
[NINE years ago] Best Twitter Reactions to Scientology’s Super Bowl Ad
[TEN years ago] Scientology Wants It Both Ways: The Church’s Opposite Legal Strategies In Florida and Texas

 
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Scientology disconnection, a reminder

Bernie Headley (1952-2019) did not see his daughter Stephanie in his final 5,667 days.
Valerie Haney has not seen her mother Lynne in 2,565 days.
Katrina Reyes has not seen her mother Yelena in 3,070 days
Sylvia Wagner DeWall has not seen her brother Randy in 2,590 days.
Brian Sheen has not seen his grandson Leo in 1,610 days.
Geoff Levin has not seen his son Collin and daughter Savannah in 1,501 days.
Christie Collbran has not seen her mother Liz King in 4,808 days.
Clarissa Adams has not seen her parents Walter and Irmin Huber in 2,676 days.
Carol Nyburg has not seen her daughter Nancy in 3,450 days.
Doug Kramer has not seen his parents Linda and Norm in 1,781 days.
Jamie Sorrentini Lugli has not seen her father Irving in 4,254 days.
Quailynn McDaniel has not seen her brother Sean in 3,570 days.
Dylan Gill has not seen his father Russell in 12,136 days.
Melissa Paris has not seen her father Jean-Francois in 8,055 days.
Valeska Paris has not seen her brother Raphael in 4,223 days.
Mirriam Francis has not seen her brother Ben in 3,804 days.
Claudio and Renata Lugli have not seen their son Flavio in 4,065 days.
Sara Goldberg has not seen her daughter Ashley in 3,101 days.
Lori Hodgson has not seen her son Jeremy and daughter Jessica in 2,816 days.
Marie Bilheimer has not seen her mother June in 2,341 days.
Julian Wain has not seen his brother Joseph or mother Susan in 696 days.
Charley Updegrove has not seen his son Toby in 1,871 days.
Joe Reaiche has not seen his daughter Alanna Masterson in 6,422 days
Derek Bloch has not seen his father Darren in 3,571 days.
Cindy Plahuta has not seen her daughter Kara in 3,891 days.
Roger Weller has not seen his daughter Alyssa in 8,746 days.
Claire Headley has not seen her mother Gen in 3,865 days.
Ramana Dienes-Browning has not seen her mother Jancis in 2,221 days.
Mike Rinder has not seen his son Benjamin and daughter Taryn in 6,524 days.
Brian Sheen has not seen his daughter Spring in 2,630 days.
Skip Young has not seen his daughters Megan and Alexis in 3,028 days.
Mary Kahn has not seen her son Sammy in 2,904 days.
Lois Reisdorf has not seen her son Craig in 2,487 days.
Phil and Willie Jones have not seen their son Mike and daughter Emily in 2,982 days.
Mary Jane Barry has not seen her daughter Samantha in 3,236 days.
Kate Bornstein has not seen her daughter Jessica in 14,345 days.

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Posted by Tony Ortega on February 4, 2022 at 22:35

E-mail tips to tonyo94 AT gmail DOT com or follow us on Twitter. We also post 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 new book with Paulette Cooper, Battlefield Scientology: Exposing L. Ron Hubbard’s dangerous ‘religion’ is now on sale at Amazon in paperback and Kindle formats. Our book about Paulette, The Unbreakable Miss Lovely: How the Church of Scientology tried to destroy Paulette Cooper, is on sale at Amazon in paperback, Kindle, and audiobook versions. We’ve posted photographs of Paulette and scenes from her life at a separate location. Reader Sookie put together a complete index. More information can also be found at the book’s dedicated page.

The Best of the Underground Bunker, 1995-2021 Just starting out here? We’ve picked out the most important stories we’ve covered here at the Underground Bunker (2012-2021), The Village Voice (2008-2012), New Times Los Angeles (1999-2002) and the Phoenix New Times (1995-1999)

Other links: BLOGGING DIANETICS: Reading Scientology’s founding text cover to cover | 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 | Shelly Miscavige, 15 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 | The mystery of the richest Scientologist and his wayward sons | Scientology’s shocking mistreatment of the mentally ill | The Underground Bunker’s Official Theme Song | The Underground Bunker FAQ

Watch our short videos that explain Scientology’s controversies in three minutes or less…

Check your whale level at our dedicated page for status updates, or join us at the Underground Bunker’s Facebook discussion group for more frivolity.

Our non-Scientology stories: Robert Burnham Jr., the man who inscribed the universe | Notorious alt-right inspiration Kevin MacDonald and his theories about Jewish DNA | The selling of the “Phoenix Lights” | Astronomer Harlow Shapley‘s FBI file | Sex, spies, and local TV news | Battling Babe-Hounds: Ross Jeffries v. R. Don Steele

 

Tony Ortega at The Daily Beast

 

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