Was it something they said? The Scientology ‘arbitration’ hearing Judge Kleifield nuked

One of the most surprising turns in Scientology litigation in a generation occurred a few weeks ago when Los Angeles Superior Court Judge Steven Kleifield took matters into his own hands and challenged the Church of Scientology over its “religious arbitration” legal strategy.

Underground Bunker readers know that Scientology has been on a roll in recent years with this gambit, derailing two important lawsuits by claiming that former Scientologists should be denied the right to trial and should take their grievances instead to Scientology’s own internal religious arbitration procedure. Both times it worked, courts appeared helpless to stop it, and we saw a couple of important lawsuits thrown into limbo.

That appeared to be about to happen in an even more important lawsuit, the one brought by Danny Masterson’s rape accusers, who are suing the That ’70s Show actor and the Church of Scientology and its leader David Miscavige for what they say has been a years-long harassment campaign since they came forward to the LAPD with their sexual assault claims. (Masterson was charged criminally this June for raping three of the four women who sued him, but that is a separate matter from the lawsuit.)

On November 6 there was a showdown of sorts as the two sides argued over whether Scientology would be able to throw yet another lawsuit into stasis by successfully arguing that contracts the former Scientologists had signed as church members obligated them to take their complaints to arbitration, not to court. And not any kind of arbitration but a star chamber set up inside Scientology with Scientologists in good standing as arbitrators.

Arguing against it for the women was Marci Hamilton, a constitutional scholar, who told the court that it was a violation of the First Amendment to force former Scientologists into what is essentially a religious ritual. Attorney William Forman argued for Scientology that Hamilton was wrong and that at issue was simply a contract dispute.

Judge Kleifield wasn’t moved by either argument, and instead stunned both sides by announcing a week later, on November 13, that he was vacating the hearing entirely. He said he had noticed something curious about the federal law underpinning Scientology’s argument, the Federal Arbitration Act, which was passed in 1926. That law, he pointed out, was based on interstate commerce. In this lawsuit, Chrissie Carnell Bixler and her fellow plaintiffs are suing because they say they were stalked and libeled years after they left the church. How, Judge Kleifield asked, was that an issue of “commerce”?

Scientology’s answer to that question was stunning: wrecking human lives was its “commerce” it admitted, and the hearing on this matter is scheduled for this Friday. We can hardly wait.

But in the meantime, we were still curious about what had occurred in that November 6 hearing that so unmoved Judge Kleifield. What had both sides said? We spent weeks trying to get a transcript of it, and finally managed to obtain a copy.

And we know what document hounds many of you are. We thought, what the hell, instead of chopping it up, we’ll just show you the whole enchilada.

Another reason we thought it might be worth posting the entire document was that we often hear from people who wonder how courts can be moved by Scientology’s arguments. Here’s a pretty good example of litigation, Miscavige style. Would you be convinced by William Forman’s dexterous ability to cite case law? Let us know.

So set aside some time. Get your favorite beverage. Relax in your favorite reading spot. And prepare to be transported to the courtroom of Judge Kleifield, who was holding a hearing with attorneys who had Zoomed in. (This is the time of Covid, after all.)

Judge Kleifield: OK. On Bixler. Counsel, state your appearances. Start with plaintiffs.

Bobby Thompson: Good morning, your honor. Bobby Thompson for the plaintiff — plaintiffs.

Marci Hamilton: Good morning, your honor. Marci Hamilton for the plaintiff.

Judge Kleifield: Is that it for plaintiff?

Jeffrey Fritz: Jeff, Jeffrey Fritz for the plaintiff.

Judge Kleifield: OK. And for defendants?

William Forman: Good morning, your honor. William Forman. And I’m here with Peggy Dayton for defendant Church of Scientology international and Celebrity Centre International.

Robert Mangels: Yes. Good morning, your honor. Robert Mangels. I’m here with my partner, Matt Hinks for defendant, Religious Technology Center.

Andrew Brettler: And good morning, your honor. This is Andrew Brettler of Lavely & Singer for defendant, Masterson.

Judge Kleifield: We have a court reporter?

Court Reporter: Yes, your honor, I’m here.

Judge Kleifield: OK. Any other appearances? All right. I have to say that, you know, we’re all dealing with the technology. Some of the — some of your audio that I’ve heard so far has been a little unclear. So we’ll do the best we can. Obviously, you should identify yourself when you speak so the reporter will know who’s speaking and I’ll know who’s speaking. And we’ll do the best we can. So we have various motions to compel. I think there’s four motions to compel arbitration that we have on calendar. So who’s going to be — I think it’s just one counsel for each party is going to be speaking or am I wrong?

William Forman: Your honor, William Forman. I’m going to be speaking on behalf of defendants Church of Scientology International and Celebrity Centre International. And I imagine Mr. Mangels will be speaking on behalf of defendant Religious Technology Center.

Robert Mangels: That’s correct. This is Mr. Mangels.

Judge Kleifield: OK. Mr. Forman, for some reason it’s you that you’re coming across a little garbled. I’m not sure why that is.

William Forman: May I call in — should I call in, your honor, because I want to be heard?

Judge Kleifield: I couldn’t really understand the question. Should you call in, was that your question?

William Forman: Yeah. Yes.

Judge Kleifield: I think you should.

William Forman: Yes, I’ll do that.

Judge Kleifield: OK. You want to speak so we can see if you can be heard?

William Forman: I’m going to try again. This is William Forman for defendants Church of Scientology International and Celebrity Centre International.

Judge Kleifield: Very good.

William Forman: Thank you.

Judge Kleifield: OK.

Bobby Thompson: And, your honor, this is Bobby Thompson for the plaintiffs. Marci Hamilton will be addressing the motion to compel arbitration and First Amendment issues. And myself and Stewart Ryan will be addressing the issues regarding the stay.

Judge Kleifield: issues regarding the stay? OK. All right. Well, let’s do what we can. We have — we have minutes now until the ten o’clock calendar. I was hoping we could start a little sooner. What we could do — what we could do is we can do 20 minutes right now. And then we could wait until I finish my ten o’clock and then you’ll have — you’ll be free. You’ll have the morning. So why don’t we — let’s just get started. So why don’t — I know you all have things that you want to say. I have some questions that will undoubtedly arise during your presentations. So when I go like this, it just means to stop talking, otherwise, it’s very hard to get a record because people really can’t hear me speak when they’re speaking. So let me hear from — who wants to go first for the moving party?

William Forman: I will, your honor. This is William Forman for defendants Church of Scientology International and Celerity Centre International.

Judge Kleifield: OK.

William Forman: These agreements are quite straightforward, actually. These plaintiffs agreed with the church prior to accepting religious services from the church that, quote: “Should any dispute, claim, or controversy arise between me and the church or any other Scientology church, I will pursue resolution of that dispute, claim, or controversy solely and exclusively through Scientology’s internal ethics and justice and binding religious arbitration procedures.” And that is at paragraph 6(d) of the arbitration agreements. You could find examples of those at exhibit 8 of the papers. There’s no dispute as to that language. There’s no dispute that that language is clear. There’s no dispute that that is a broad arbitration provision that would seek the issues here that plaintiffs have brought. Plaintiffs did accept religious services from the church. They are now complaining that the church has committed certain acts against them and that the church is committed to a doctrine that they call Fair Game, which motivates those acts. The arguments in opposition to this are unique and not applicable. The plaintiffs claim that the provisions violate their First Amendment rights.

Judge Kleifield: Let me stop you. When you say their arguments are “unique,” what do you mean unique?

William Forman: I mean, that there is no court in this country that has ever set aside for religious arbitration agreement because the plaintiff argued that arbitration would violate their First Amendment rights. That’s never happened, your honor. And on the other hand, we cited many cases in this court where religious arbitration is ordered. So this is quite unique and would be quite unprecedented. And the reason why it’s unique is that it’s wrong. This is simply a matter of contract between two private people. Private people can agree to limit their rights in whatever way they want. If I sign a nondisclosure agreement, I can’t claim that my First Amendment rights are violated. Arbitration itself is a limitation on constitutional rights. You’re giving up your constitutional right to a trial by jury. So, of course, arbitration concerns limitations on rights. And courts have looked at this when there is — between two private parties when you contract with any type of First Amendment right, you won. And so this, I think, their state action — their state argument does not even get off the ground. And as the U.S. Supreme court said, that constitutional due process protection does not extend to private conduct covering individual rights. That’s the NCAA case that we cite in our papers, 488 u.S. 179, 191 19 (1981). And as a result, that is why you see courts routinely enforce religious arbitration agreements. If there was a First Amendment violation, those cases could not get off the ground. And you see courts that reject a First Amendment argument. This is in the encore case out of the district of Colorado case that we cite in our papers where the court rejected exactly the argument being made here. And this court said, you know what, they agreed to limit arbitration even though the contract is over, that was their deal. And they said, in fact, not to enforce this agreement simply because it calls for religious arbitration would violate the First Amendment rights of the church. They are entitled as a matter of contract to come into agreements however they want. So this would violate the establishment clause of the First Amendment. And, in fact, you had the New Jersey supreme court in the Almora case, Almora Hebrew, cited in our papers, again, reject this argument. That a client has a free exercise challenge to religious tribunal objection because the parties contested to the proceedings for a religious tribunal. And cases in courts in California have enforced these religious arbitration agreements. We have the Dial 800 v. Fesbinder cited in our papers, where the court says the fact that three rabbis are the arbitrators and the decision will no doubt be based on principles of Jewish law does not bar its enforceability in California secular courts. So the First Amendment argument is a non-starter is a red herring. What we have after that, in fact, the church’s interest that when somebody joins a church, the church is, of course, free to set out what the terms of joining the church are. And there are supreme court cases going back to the Watson case we cited in our papers that churches are free to establish the terms, in fact, they must — they’re given a wide berth to establish the terms of membership. So to call it a contract of adhesion because the church simply says, here are the terms for joining, is quite misleading. You don’t bargain with the church about what their doctrine is. You don’t bargain with the church about what the terms of acceptance are. You know, and to plaintiffs’ mind, the Ten Commandments are a contract of the adhesion. But there’s no bargaining allowed on Mount Sinai. This is what you do to enter a church. And they agreed to it. And the scope of the agreement covers the disputes quite clearly. And they stated again and again and again their intent to be bound by these agreements. They said that their consent was completely given. That they were bounded — they were to be bounded exclusively by the faith of the church in all my dealings of any nature with the church. They agreed to waive legal recourse with respect to any dispute, claim, or controversy against the church regardless of the nature of the dispute, claim, or controversy. This agreement was unconditional and irrevocable. It was all plainly set forth in their agreements. Not in boiler plate. Paragraph after paragraph of these recitations of what one needs to do to join the Church of Scientology. So there could be no argument along those lines towards unconscionability and the adhesion issue does not apply here. And these were in a sense repeat customers. These were people who were, certainly as to the Jane Does one, two, and Ms. Bixler, people who have been members of the Church of Scientology for many years and understood what the deal was. And, finally, I’ll leave us with the issue of substantive unconscionability. The only thing they point to is that these arbitrators will be biased. And the issue of, actually, the arbitrator biased is not appropriate but these are the categories of arbitrators they agreed to. The substantive unconscionability is measured at the time you agreed. They agreed that Scientologists in good standing would be the arbitrators. The fact that they now claim that these people would be impartial is no objection to the appointment of this arbitration process. And we cite the National Football League case and the (unintelligible) BDF Simon case in our papers for precisely that proposition. And the fact of the matter is that if they try to sue the church, it’s only going to be Scientologists in good standing who would be qualified to consider these disputes. Those —

Judge Kleifield: Let me just stop your comments. So is it your belief then that the court can consider the unconscionability argument with respect to the arbitration agreement?

William Forman: I don’t believe it can as I covered in my opening. But I believe for the authority that we cited that the scope of issues to be arbitrated is broad in total including an assertion from the plaintiffs that presentation of this agreement to the court should relate an immediate dismissal of all claims that civil courts are to play no role. And where all issues are delegated to the arbitrator that include the issues of arbitrability under the Henry Schein case a couple years ago and other authority asserted in our papers.

Judge Kleifield: All right. So there is a — what is the language that supports that claim that the issue of arbitrability is delegated to the arbitrator?

William Forman: Yes, your honor. They agreed to be bound exclusively by the law of the Scientology religion. They agreed that any action should be — and that is at paragraphs 6(a) 3(d) of the agreement. And you can go to exhibit A. They agreed that any action should be dismissed immediately when the agreement is to be presented to the court. They agreed that Scientology justice proceedings shall be — shall bind them exclusively as I said, in all dealings of any nature of the church. And they waive legal recourse with respect to any claim or controversy against the church regardless of the nature. Those are at 6(d) of the paragraph — of the agreement. As we cite to the NASDAQ case, the second circuit case in our papers, quote, “Where a broad arbitration clause expressly commits all disputes to arbitration, all disputes necessarily includes disputes as to arbitrability.” There could be an issue of this court deciding arbitrability. They were challenging that there was fraud in the factum, but they do not allege that. They do not.

Judge Kleifield: Well, let me just stop you for a moment. So what you read, is that an express delegation to the arbitrator to determine issues of arbitrability? Is that expressed in the agreement?

William Forman: What I read is that all issues are to be delegated to the arbitrators. And when — and when a broad agreement expressly commits all disputes to arbitration that also necessarily includes disputes as to arbitrability. And, again, that is the NASDAQ case that we cite in our papers.

Judge Kleifield: OK. I have a lot of cases here. Just spell that case name for me.

William Forman: N-A-S-D-A-Q OMX group v. UBF. And it’s 770 f.3d 1010 at 1031 (2d cir. 2014). And I’d also refer the court to the Momot — I’m not sure if I’m saying it right. Momot v. Mastro, M-O-M-O-T v. Mastro, 652 f.3d 982 at 987 (9th cir. 2011).

Judge Kleifield: OK. Go ahead.

William Forman: There’s some other arguments that have been raised in opposition. One is that the enforcement would violate public policy. It’s a very vague argument. And as we cited in our papers, tort claims can be arbitrated — or are arbitrated. There’s no violation of public policy here. It cites to cases where there were allegations of sexual harassment but they have not made the claim against these defendants or anybody in this case. There was not — they are not those causes of action. And also, they now make an argument that under section 1281.2 (c), the court should deny arbitration because Mr. Masterson is a third party. We pointed out in our moving papers that he’s not qualified as a third party under the statute if he is alleged to be an agent of the other defendants. And that is the Laswell case 189 cal.App.4th 1399. And Rowe, r-o-w-e, 153 cal.App.4th at 190. They did not respond to that whatsoever in the opposition, and that is the argument they’ve been pushing and pushing in this case. In fact, I was part of the earlier hearing we were here on on the demurrer that Mr. Masterson, they were alleging was, in fact, our agent. As our agent, he does not qualify as a third party under section 1281.2(c), and therefore, that is no grounds to not enforce the agreement. Finally, they’ve asked for a boilerplate request for discovery in the opposition. They don’t ask for anything in particular. I don’t see how any could be called for here. The terms of the agreement are plain on the face of the agreement. It is either enforceable or not. But there’s no reason not to enforce these agreements for the arguments I’ve set forth, your honor.

Judge Kleifield: OK. Let me ask you a question. In all the cases that you have submitted and the big stack of cases that you gave me, did any of those religious arbitration agreements have a lifetime agreement to arbitrate a dispute?

William Forman: I know that in the — I know that in the encore case that the — I don’t have that exhibit. I don’t know what the agreement is there. But I know that that was enforcing a religious arbitration after the underlying agreement had already terminated.

Judge Kleifield: OK. Well, sure. I can understand there’s a dispute that parties, they don’t want anything to do with each other anymore. The contract expires but then somebody brings a claim and they say, OK, well, that’s subject to arbitration. But what if the parties enter into an arbitration agreement and then 20 years later something happens? And you — they bring a claim against some of the parties that says, “All right, well, we agreed to arbitration 20 years ago.” typical case when they don’t have anything to do with each other for 20 years, you would say, “Well, why would I be bound by that?” but here we have an agreement which I understand your position is you’re bound — they’re bound to for life. And of those cases you say that the encore case that involves that? There was an actual, explicit agreement that says “I agree forever to arbitrate any matters through religious arbitration for any matters, any claim, any dispute that we have for the rest of my life?” have you seen that in any of those cases?

William Forman: Your honor, I know that the agreements survive — the agreement to arbitrate survive the agreements themselves. And these terms whether they’re under Christian Coalition or to arbitrate disputes by beth din typically do not have a time limitation on them because they are part of a religious community. And I would say that it is a condition to joining the church that you sign these agreements. So it’s not like a commercial setting in that sense. And this is a pledge for as long as you might have claims against the church to arbitrate your issues against the church. Furthermore, these are not just tangential issues, your honor. They are — they make allegations throughout the complaint that they were abused by the church while they were at the church, that the church ignored their complaints about Mr. Masterson, but they covered up complaints about Mr. Masterson while they were at the church. And these are incorporated into all their claims, that these incorporate facts that go to their participation in the church into their claims. So there’s that part of the scope. And Ms. Bixler and her husband signed these agreements many years after some of the claims of assault from Mr. Masterson happened. Furthermore, their whole theory of evidence for this case, there is no evidence in the complaint. On our demurrer, we said there were no factual allegations made whatsoever against these defendants and rests on pointing to a so-called doctrine called Fair Game. That is their so-called evidence. They say the church has this doctrine, and therefore, we are confident that the church is the person who’s been harassing them. Even though we don’t have any eyewitnesses as to who’s been harassing us. They are calling it what they say is the church doctrine. So I don’t know how this court would ever dictate what is or is not a church doctrine in this court. And it is exactly the type of situation where you should have a religious arbitration agreement in force because they are using as their evidence what they claim to be church doctrine. That is not arguable or to be considered at all.

Judge Kleifield: Do I need to — do I need to even consider the open-ended waiver of the jury trial rights and agreement to arbitrate? Does that matter or is your argument that the claims being made in this case are so intertwined with what happened earlier while they were active members of the church, that it all just falls within the arbitrate — within the arbitration agreement even if it wasn’t unlimited — for an unlimited time?

William Forman: We argue both, your honor. I believe we are correct in to the applicability of the terms. The terms are broad and are enforceable just as they are, but we also do argue throughout our briefs that their claims do relate to their involvement with the church while they were in the church. Their claims incorporate offenses that allegedly occurred while they were church parishioners and are part of the religious services. You can find this in the church’s — the Church of Scientology’s motion on Bixler’s and Jane Doe 1 at pages 11 and 12 and at our Jane Doe 2 motion at pages 14 to 15. And that argument was completely ignored in the opposition. They just sailed by. They did not engage with it at all. But as I said, we argued both. We argued that the claims are intertwined the way they plead them, the way they incorporated them, and the way they rely on what they claim to be church doctrine to try to prove their case. And also that the — that we as the church are entitled to set the terms of people joining it. And this court may think that it seems odd that the term be for a lifetime, but the court is not here to rewrite the terms of how people join our church. That is protected. And there’s long lines of authority from the Watson case to Serbian Orthodox all cited in our papers. Protecting the rights of the church to determine which is a self-governing and who may be a member of the church and on what conditions.

Judge Kleifield: I think you made — I think you cited that case also for the proposition that the court ought not to look at the fairness of the arbitration procedure for First Amendment reasons. Didn’t you cite the case for that?

William Forman: We did. And similar language was cited in the — one of the Garcia federal district court opinions in Florida that would be identified as Garcia in the papers. Where the judge there said well plaintiffs made this agreement how the arbitration was conducted for argument sake under secular notions of due process. And the free exercise clause prohibits the court from resolving their disputes and certainly in the interpretation of the application of Scientology doctrine.

Judge Kleifield: Well, OK. So that case, though, had to do with, I think — I don’t recall what position he had. I think he was defrauded for something of the sort. He actually had a position within the church and he wanted the — a court to find that the church didn’t comply with its own rules in resolving the dispute. I believe that was what that case was about. And doesn’t that distinguish from a situation where you’re not just applying an internal rule? You’re alleging that there’s courts that occurred outside of the church statutory violations, whatever — whatever it is. Isn’t that distinguishable from just, OK, this is — well, isn’t that distinguishable?

William Forman: I think the facts that you refer to were not the Garcia facts, which involved a former member of the church who was no longer part of the church. I think you were referring to Serbian Orthodox.

Judge Kleifield: Yeah, the Orthodox case.

William Forman: I just want to make clear on the record I was pursuing the right thing.

Judge Kleifield: OK.

William Forman: The facts of Serbian Orthodox are different. The principle is the same. That churches are given wide latitude on how they determine to have the structure themselves and affiliate themselves with congregants. So you also have in the Watson case in the United States supreme court that said, “All who unite themselves in church do so with an implied consent to its government and are bound to submit to it. We cannot decide who ought to be members of the church.” This goes to the terms of parish membership that the court would, in fact, be rewriting saying, like, this language either doesn’t mean what I think it means or I’m not going to enforce this language. I’d also have the court look at The Church of Scientology Flag Service organization v. Clearwater, 2 f.3d 1514, where the church — the court would not entertain an action by parishioners to alter church rules. And they said the option is that is they want to joint a church, they acquiesce to its rules. So the courts that have looked at the procedures have found them to be adequate and fair as the court did in the Garcia case and as the judge also — that’s Judge Burdge also did in the Haney matter, which was decided in January of this year in L.A. Superior court.

Judge Kleifield: I don’t know that — I don’t know that what Judge Burdge did is precedent. I have no idea what the facts were in Judge Burdge’s case. I don’t know what the allegations were. I know there was an order from him. There was a transcript. But I don’t know how I can or should consider what Judge Burdge did in a different case with presumably different facts.

William Forman: I understand that’s not precedent, your honor. But it also involves some of the identical scope language which you asked about and has any court enforced language like this. So I’m bringing that to your attention as with the identical scope language in the Garcia case in Miami — or not Miami but Orlando.

Judge Kleifield: So as I understand it, though, typically in terms of unconscionability analysis, I mean, the secular motions of unconscionability I was wondering how I could even — if I wanted to apply that to religious arbitration. I mean, do I — I don’t know how I can consider rights to discovery for things of that sort. So it is a major question as to whether I am even entitled to consider any issues of unconscionability or not. I mean, it is what it is with the — it’s church — I assume it’s church law is really what we’re talking about, isn’t it?

William Forman: That’s correct, your honor.

Judge Kleifield: Yeah. OK. Was there anything more that you wanted to raise at this point? What I may do is hear the ten o’clock cases. Well —

William Forman: I don’t want to delay your ten o’clock litigants. So I’m happy to shut up now, your honor.

Judge Kleifield: Well, maybe — maybe if we — I don’t know how much more time we’re going to need. Let me just find out if — just a moment. Both parties checked in for the ten o’clock?

The clerk: Yes.

Judge Kleifield: All right. Maybe I should take a break for a while. Looks like we’ve been disconnected. All right. Well, we’re going to take a break, and we’ll get back to you.

(brief recess was taken.)

Judge Kleifield: Do we have everybody back? I don’t think so. Here they come. OK. All right. Here we go. So we’re back. You should have my undivided attention. Was there anything else, Mr. Forman, that you wanted to address?

William Forman: Before the break, you asked me were there any agreements with churches that did not seem to have a time limitation on the arbitration provisions. And so I just went back and looked through the facts of the cases. We cite — we have a string of cites of religious arbitration cases at page 18 footnote 9 of the Church of Scientology’s motion to compel as to Bixler and Jane Does 1, and I believe it’s in the other papers as well. There’s a case cited there General Conference of the Evangelical Methodist Church, which is 807 f.Supp.2nd 1291. That’s from the northern district of Georgia. That’s 2011 and there —

Judge Kleifield: Your voice is a little faint right now.

William Forman: OK. Let me direct it back to the phone. My speaker is in a different place than my screen. So let me reorient. And in that case, the General Conference of Evangelical Methodist Church, there was a discussion of the — of arbitration rules that were provided for by the discipline of the Evangelical Methodist church. So their internal doctrines and rules for resolving disputes. And there — there was a provision that the parties agree that they will attempt to resolve all trial nondoctrinal disputes among themselves without resorting to courts and they be religiously arbitrated. And that if the parties are unable to reserve — resolve a future nondoctrinal dispute among themselves, they shall resolve that dispute by means of Christian conciliation mediation or arbitration. And arbitration was ordered in that case where the parties also agreed that they waived all legal action between them and they pledge that resolution of the parties themselves should be through Christian conciliation mediation and legally binding arbitration as the sole means by which nondoctrinal disputes may be resolved. And there’s another case we cited —

Judge Kleifield: All right. Which case were you just citing from?

William Forman: Sorry. That’s General Conference of Evangelical Methodist Church and the citation is 807 f.Supp.2d 1291 northern district of Florida 2011. It’s cited in our moving papers at footnote nine with the string cite on other religious arbitration cases. And —

Judge Kleifield: I’m there. I’m there. I’ve got the footnote. I’ve got the footnote.

William Forman: OK. And the other — as I said, and that recites the rules of the Evangelical Methodist church, the nationwide rules. And then another authority in that same footnote is Jenkins v. Trinity Evangelical Lutheran Church, 825 northeast 2nd 1206. And there you had a case where a minister left the church and was subsequently defamed by the church. But that — that lawsuit is now to be subject to religious arbitration because the parties had agreed under the Lutheran church, slash, Missouri synod rules that the 1 Corinthian fix caused upon all parties to a disagreement accusation, et cetera, to rely exclusively and fully on the synod system of reconciliation and conflict resolution. And as I said, this was held to apply to a cause of action that arose after this person left the church. And it says, the use of the synod’s conflict resolution procedure shall be the exclusive and final remedy for those who are in dispute. Other agreements I didn’t see — other cases I didn’t see discussion one way or the other. But certainly I did not see any case that said, “We’re cutting off your right, Church, we’re cutting off your right to impose arbitration agreements because it’s been awhile since the agreement was entered into” or because this person is no longer a member of the church. There’s no case I’ve seen that holds that. In fact, the Encore case was held to apply to somebody who was not a member of the church, of course, and that’s why they raised the First Amendment concerns. Same with the Elmore Huberts. So that’s — that’s what I was able to find for you during the break, your honor. That’s the only thing I wanted to raise with you.

Judge Kleifield: OK. All right. Now, we have counsel for the other moving party who want to be heard before I hear from plaintiff?

Robert Mangels: Yes. Robert Mangels for Religious Technology Center, your honor. I don’t have anything to add at this point in time in addition to what Mr. Forman said.

Judge Kleifield: OK. Thank you. Thank you. OK. All right then, I’ll hear from plaintiff.

Marci Hamilton: Thank you. Thank you, your honor. This is Marci Hamilton. I’m here on behalf of the plaintiffs. Essentially, before they were sexually assaulted and before they reported it and got into trouble, they had arbitration agreements. So let me just explain two things about the facts of this case and then we can — then I’ll go onto the First Amendment rights exit. This is a case about the fundamental right of someone to exit church. Thereafter, arguing for the right to trap someone for a billion years in a church they no longer profess. But the scope of this — this so-called arbitration is actually a religious ritual called “committee of evidence” that’s in the church is actually just for self-improvement and spiritual advancement. This is a spiritual services, a religious services contract that you can ask and someone would sign and agree to when they wanted to be a member and wanted to be part of the religious faith. It says — it uses the phrase “any dispute” and, of course, a billion years, et cetera. But it’s really — the scope of the agreement is over self-improvement and spiritual practices. So — and there’s no express delegation of arbitrability in the agreement. And so arbitrability really does go on to the court. But I think the single most important issue in this case is the one that is the nationally important issue, and that is do religious believers have a right to exit a religious organization? They certainly have a right to join, and they have an absolute right to believe anything they want. But there is no — there’s no meaning to the right to join under the concepts of the Barnett case at the supreme court, the Cantwell case at the supreme court, Employment Vision versus Smith. All the way back to Reynolds, the very first free exercise case. There is no content to a right to join a religion if you don’t also have the right to exit. And what every one of these plaintiffs are saying is that they have the right to exit Scientology, and they have the right not to be subjected to their religious services. And in particular, religious services that are governed by church law as Mr. Forman explained. Now, unfortunately, Mr. Forman doesn’t fully understand the Establishment Clause. This whole concept of ecclesiastical exception that this court shouldn’t get involved Kedrof, Serbian those cases are about disputes between believers. And the first thing it stands for is that no one, no court may interfere in a dispute between believers. But no courts are holding that judges can’t hear cases involving child sex abuse by clergy. Why? Because that’s not a dispute between believers even if their victim of child sex abuse was a member of the church at the time of the sex abuse. This is a case, fundamentally, about the rule of law and about neutral application of principles. And so this is a case like Jones v. Wolf and mainstream supreme court cases. They don’t have a single case that shows that there is a right of a religious group to trap a believer in a dispute resolution system after they’ve been raped and treated horrifically by an organization and they have left the faith. So our position is pretty straightforward. Yep.

Judge Kleifield: Let me just stop you for a moment. So are you saying that somebody is a member of a church, they’re a believer, and something awful happens, and they have an arbitration agreement. They leave the church, they say, “I am no longer a believer,” then they are no longer subject to the arbitration agreement?

Marci Hamilton: They’re not subject to this kind of religious services arbitration agreement, number 1. Number 2, yes. If you leave a religious organization, they do not have a First Amendment right to continue to subject — be subjected to their religious observances or services. It’s just that would be a violation of the establishment clause. It would be coercion implemented by the court. Their facetious argument that there is no reaction here is utterly indefensible. Yes. They are asked for —

Judge Kleifield: Hold on.

Marci Hamilton: Yep, go ahead.

Judge Kleifield: Hold on one second. So you have an employment agreement that has an arbitration clause and the plaintiff is harassed and the plaintiff says I quit. And then filed a claim with the department of fair employment and housing and gets a right-to-sue letter. And then they sue. The plaintiff is bound by the arbitration agreement, aren’t they?

Marci Hamilton: Well, actually, the cases that are cited in their brief are outdated. The governing case law in anything having to do with a member of the ministry or clergy is Hosana Taber. I mean, that’s a ministerial exception case. The courts are not permitted to get involved in ministerial exception cases. But the supreme court has been very clear that in a dispute that does not involve an employee and that does not involve the religious institution and that employee, the ministerial exception does not apply.

Judge Kleifield: Right.

Marci Hamilton: And so that’s as recently as this term.

Judge Kleifield: So let’s get back to my — to my illustration here or my hypothetical about the person who leaves the employment where, I believe, that they’re still subject to the arbitration agreement in the employment contract. Are you saying that the rule is different for a church member that if they have an arbitration agreement, even if the conflict arises while they are a church member, once they say, “I’m leaving the church, I don’t believe anymore,” that at that point, they’re no longer subject to the arbitration agreement?

Marci Hamilton: That’s right, your honor. This court could not — may not, under the First Amendment, enforce an agreement against someone who has chosen to choose a different belief. First of all, this court can’t even delve into whether or not they have the right beliefs or not. But this court can certainly ask if they are a member of the faith. So — but the bottom line here, the absolute bottom line is that what the Church of Scientology really wants to accomplish is that no one can ever exit. Right. They simply cannot. That is a violation of those believers’ First Amendment rights to choose another faith. This is not arbitration anyway. It’s not arbitration in any kind of ordinary sense of the term. They call it arbitration. This is, in fact, a committee of evidence which would be formed for the purpose of attacking each of these women for reporting the sexual assaults they suffered. So the notion that we’re dealing with anything like an employment arbitration agreement just doesn’t fit the facts. These women never agreed to a secular arbitration agreement with Church of Scientology. They agreed to a religious services agreement. They have left. They certainly cannot be forced by any court in the United States to then be forced back into the fold to be subjected to religious services controlled by three members on an arbitration panel and then controlled by the international chief justice of the church, which is exactly what their system requires.

Judge Kleifield: Wo when somebody — when somebody leaves — and I don’t want to belabor this. But when somebody leaves the church, is there — is there a distinction between being bound by the arbitration agreement for acts that occur afterwards that are unrelated to anything that happened while they were a member of the church, and acts — a case for acts that are related to something that happened while they were a member of the church. Did you see the distinction I’m maybe (unintelligible) making?

Marci Hamilton: So the — I take it the distinction is, are they bound by the agreement to arbitrate while they are a member? Yes. Are they bound by the arbitration agreement if they have departed and the arbitration agreement — it goes beyond the scope of what they’re suing about. And that’s what’s happened here.

Judge Kleifield: OK. So I think I — I think I didn’t express myself very well.

Marci Hamilton: OK.

Judge Kleifield: Somebody leaves — somebody’s in the church, there’s an arbitration agreement. Something happens after they leave. And the church says, “You’re bound by the arbitration agreement.” And plaintiff says, “No. This happened later. I’m not bound by that. I don’t believe anymore. That doesn’t apply.” That’s one situation. The other situation is that the plaintiff leaves, says, “I don’t believe anymore.” And somebody will make the claim for something that happened while they were a member of the church. Is there a distinction between those as to whether they’re bound by the arbitration agreement?

Marci Hamilton: Your honor, forgive me. But the question assumes a fact that’s not stated, which is what is the arbitration agreement? If there is an arbitration agreement with the religious organization that involves — it’s just a secular arbitration agreement. And it says “We’ll arbitrate if you fall on our slippery sidewalk.” That’s one thing. But that’s not what this case is about. This is denominated by the church itself as a religious services agreement. This isn’t arbitration in any way that anyone can imagine. They call it that but it is not arbitration. It is a terrifying proceeding imposed on people who have left the faith. These women have left the faith forcing them to go back to a religious service as part of receiving justice for what’s been done to them is unconstitutional. We’re simply asking for enforcement of mutual general applicable law under Jones v. Wolf.

Judge Kleifield: OK. Is that it?

Marci Hamilton: So if I could, I think that Mr. Forman didn’t quite represent the universe of cases involving arbitration and the court’s involvement accurately. New York, of course, has a very active Orthodox Jewish community, and they often have arbitration agreements. And those New York cases In re: Ismailoff and in Sieger v. Sieger, essentially what the court says is that they can’t enforce a religious agreement. This is a religious agreement. Both of those cases clearly say that. And this has been a matter of litigation much more in New York among Orthodox Jews than it has been between Scientologists. And one of the main reasons for that just as a fact is the level of vitriol the victims are forced to endure if they do leave and do what the church doesn’t want. So what Mr. Forman says this is new. It’s because the vast majority of victims in the United States have not had the wherewithal to fight. But these are really bright women who simply aren’t going to put up with the sexual assault and then — and it’s not our phrase. This is — Fair Game is the name that the religious organization gives the practices. We are not presenting the word Fair Game as a theological idea at all. We’re presenting it as the objective evidence of the pattern of horrific behavior toward these sexual assault victims who reported their assaults.

Judge Kleifield: OK. Are you — the point of that is, are you asking me to take into account the nature of the religious arbitration that these women would be subject to? Is that the point of your comments, as I understand you right?

Marci Hamilton: Well, right. I mean, the point is that this is not — it’s easy to fall into the trap that they’ve set of treating what they call arbitration as arbitration. But it’s actually a religious service, and no court may force anyone to undergo a religious practice if they no longer — whether they believe or not. And so this court lacks the authority under the First Amendment to force these plaintiffs into religious services adopted by Scientology. That’s really the bottom line. The arbitration in this case is irrelevant. We’re simply invoking neutral principles of law to the harm done to these victims and we’re asking for the court to hear the mutual principles of law. They try to throw this monkey wrench in but it’s not an enforceable agreement the court could ever enforce.

Judge Kleifield: Now, do you believe that’s the primary issue that is for me to decide?

Marci Hamilton: Yeah. I mean, I think the primary issue is the First Amendment rights of the plaintiffs to not be subjected to a religious service against their will.

Judge Kleifield: OK. Was there anything else that you wanted to be heard on?

Marci Hamilton: Only that — I mean, if the court were to consider this an arbitration like any other arbitration, the — it fails as being unconscionable but — as we argue. But it’s completely one-sided. The fact that a panel is three Scientologists in good standing, and that’s in the plain language of the agreement (unintelligible) Scientologists (unintelligible) in good standing; so —

Judge Kleifield: OK. We were kind of cutting out again, the audio. But I recall now that you are arguing First Amendment issues. And did we have any further argument then from somebody else —

Marci Hamilton: First Amendment, right.

Judge Kleifield: — on any issues?

Marci Hamilton: I’m arguing First Amendment and unconscionability. Bobby Thompson is arguing the stay issue, which arose as part of the criminal prosecution.

Judge Kleifield: OK. I’ll then — did you want to continue that? Maybe you should start again on unconscionability because you were cutting out.

Marci Hamilton: Oh, I’m sorry. I’m sorry. So on unconscionability there are five pillars under California law in this case. There must be a third party decision maker. It must be neutral, an opportunity for those to be heard and a binding decision. This is a one-sided process that is conducted by three Scientologists against someone who has fled the faith. And so it is not remotely third party. Yep.

Judge Kleifield: Let me stop you — let me stop you there. The argument was made that the court, for First Amendment reasons, cannot second guess the church. That would be — I mean, that I cannot evaluate the fairness of their procedure because that is — it’s a matter of their religious right to create whatever procedure that they think is appropriate. I mean, there — I can envision all kinds of procedures that perhaps, from a secular standpoint, would say well that doesn’t comport with the code of civil procedure or, you know, California case law. But is that for me to decide?

Marci Hamilton: The only thing that, judge, you need to decide is whether or not this is a religious service, period. The — what I always find interesting in these cases is the church is arguing that it’s the only religious entity in the room. What we’re saying is our clients are also religious. But they don’t share the faith of this religious organization. They have escaped it. And so this court may not question what each side believes, that’s true. But — and frankly, given that this is a religious service by it’s very title by its plain language, all that this court needs to find as a matter of fact is that, essentially, they’re so-called, laughably called arbitration agreement is, in fact, a religious service, for which nonbelievers are trying to be drawn back to be subjected to the cruelty of this organization. There is no right of any religious organization to trap a believer that is what — yep.

Judge Kleifield: OK, so let’s say — let’s say we are — we are dealing with a believer, and they’re a member, and they get into a dispute and the church says, “OK. You have to go through the arbitration procedure.” Can I second guess the procedure that the believer has to go through?

Marci Hamilton: No. Under the establishment clause, you may not enter that universe of that dispute between true believers. That is what the entire line of supreme court cases say. But what we’re dealing with is tortuous victims that have left the faith and the faith is no longer relevant to their claim. They’re claiming horrendous treatment of them that is a violation of secular and neutral law. Religious entities are subjected to neutral, generally, applicable law. That’s just a fact. And so what this court can’t do is force our clients into this religious service. And not being able to do that, it just leaves the case as one of mutual generally applicable laws. It’s really quite straightforward.

Judge Kleifield: OK. Anything further before I hear from Mr. Thompson?

Marci Hamilton: Only that — and I guess Bobby will be talking about Marsy’s Law. So I will leave it to him. I will leave those issues to him.

Judge Kleifield: OK.

Marci Hamilton: Thank you, your honor.

Judge Kleifield: You’re welcome. Mr. Thompson, can you hear me?

The clerk: Mr. Thompson?

Bobby Thompson: Yes, your honor. Can you hear me?

Judge Kleifield: I could hear you now.

Bobby Thompson: OK. Thank you. Sorry about that.

Judge Kleifield: Sure.

Bobby Thompson: Your honor, as you know, there’s a criminal proceeding against defendant Daniel Masterson. And in that case, there’s been a protective order put in place that prevents any contact between the plaintiffs and Mr. Masterson. If this court is to grant the defendants’ motions to compel arbitration, that is specifically going to put these plaintiffs in contact with Mr. Masterson and his agents, the church. So it’s our position that, if you grant this order, you’re going to be — or grant these motions, you’re going to be violating that protective order in the criminal proceeding and Marsy’s Laws, which gives our plaintiffs specific protections not to be — or to undergo any sort of contact or discovery with Mr. Masterson and the church.

Judge Kleifield: All right. You know, I may have overlooked it. Did you submit a copy of a protective order in your papers?

Bobby Thompson: Your honor, the protective order was not in our possession at the time of our opposition, but we did file a sur-reply and attached a copy to it.

Judge Kleifield: OK. I did not — I did not read the sur-reply. Is that what you were dealing with in the sur-reply?

Bobby Thompson: Yes, your honor, that specific issue only.

Robert Mangels: Your honor, may address that? Your honor, first — your honor, first, Robert Mangels, on behalf of Religious Technology. I just wanted to note that there was an objection filed to the improper sur-reply by the Church of Scientology Celebrity Centre on the obvious grounds it was an improper sur-reply.

Judge Kleifield: Yes, that’s fine. But if it’s new matter that might make a difference. Mr. Mangels, did you — did you see a discussion or a copy of a protective order?

Robert Mangels: I saw some photocopies someplace of a protective order, yes. They filed it with part of their sur-reply. Your honor, new matter has to be something they wouldn’t have known before. This law has been in effect for a number of years. And they just pulled this one out of the blue. It was an improper sur-reply to raise at this point in time.

Judge Kleifield: Well, the — what have they known about for years? The law or the protective order?

Robert Mangels: They had known about a protective order for a while and they had to file their papers. They also knew about the law. But Mr. Forman raised his hands.

William Forman: Your honor, if I may. This Marsy’s Law issue, it’s correct, it was raised for the first time in sur-reply. Danny Masterson was charged in June, a month before they filed their opposition. Marsy’s law isn’t about a protective order. It’s about rights of a victim in a criminal proceeding. So the criminal proceeding was instituted in June. If they wanted to raise Marsy’s Law in opposition, they could have. The protective order was served before the time of — was issued and served before the time of their opposition. A few days beforehand. So the protective order is kind of a red herring here. Their sur-reply is based on the fact that these are victims under Marsy’s Law but that charging decision came down in June. And in any event, the protective order was issued before their opposition was filed. They had no permission to file the sur-reply. And we stated our objection that we wanted to be briefed on the issue if the court’s going to consider any argument on it.

Judge Kleifield: I understand. Specifically, I would not — I would not read a sur-reply also (unintelligible). That wasn’t without leave with the court.

William Forman: The protective order was issued six —

Court reporter: Excuse me, your honor. Excuse me, your honor. Excuse me, your honor.

William Forman: I’m sorry. William Forman. The protective order was issued six days before their opposition and in open court. It was delivered on (unintelligible) — and I believe the plaintiff was at that proceeding.

Court reporter: Excuse me. There’s —

Judge Kleifield: Somebody has an echo.

William Forman: OK.

Judge Kleifield: Ms. Castaneda, you want to tell me your concerns?

Court reporter: There’s some type of echo and I’m not hearing your honor and Mr. Forman properly.

Judge Kleifield: There’s somebody that has an echo. Maybe someone needs to turn off their audio from their computer.

William Forman: I’m hearing an echo too.

Judge Kleifield: All right. Let’s try again.

William Forman: is there an echo now, madam court reporter?

Court reporter: I don’t seem to hear that now.

William Forman: OK.

Court reporter: I can hear it when I talk now. So I don’t know if anybody talks, you can hear it. But if it’s silent, then it doesn’t happen.

William Forman: I will — just if I may finish up the piece I was telling, your honor. The protective order was issued in open court on September 18th. I understand some of the plaintiffs even attended that court proceeding. And the opposition was filed six days later. So they knew about it certainly beforehand. And in any event, the — their basis for asserting Marsy’s Law is not a protective order. It’s the fact that they are named as victims in a criminal proceeding and the charges against Mr. Masterson were announced in late June. Well before their opposition.

Judge Kleifield: Well, I suppose that while we’re on the subject, I ought to take a look at the protective order regardless of whether the sur-reply was improperly filed without leave of court. If there was a protective order, I need to know about it. So let me — let me take a look. How do I find it? I don’t see it attached here to your sur-reply.

Bobby Thompson: Your honor, there’s a declaration that I submitted along with the sur-reply that has a copy of it.

Judge Kleifield: All right. Hold on. Well, I would have to be convinced that that somehow prevents me from ordering an arbitration. I believe that — well, I would have to be convinced of that. There are civil cases that are brought between parties where there are stay away orders. I don’t think this would be unusual in that respect. OK. I hear the argument.

Bobby Thompson: Your honor, Bobby Thompson. And I will be brief again. The point is, as part of the church’s, quote, unquote, religious arbitration, she’s going to have to face her accuser in that proceeding. And that would violate this protective order. As to when we receive it, your honor, the hearing was on the 15th of September. The court did not order it until the 18th and as you know, paperwork flowing in and out of Los Angeles superior court is not exactly forthcoming. In my declaration, I attested to the fact that we did not know this order had been entered into at the time of our opposition six days later.

Judge Kleifield: All right. Well, obviously, nobody has briefed the issue or at least the other side has not briefed the issue as to whether I’m prohibited from ordering an arbitration due to the existence of the protective order. Now, we can agree on it.

William Forman: Yes.

Judge Kleifield: Well, we’ll have to deal with that. Now, I understood you were going to argue something about the stay.

Bobby Thompson: Well, I think the point of that was in connection with the protective order. Defendant, Daniel Masterson, has filed a motion to stay the case. if —

Judge Kleifield: I’m sorry. Stop. A motion to stay what case?

Bobby Thompson: This case, your honor.

Andrew Brettler: That’s not accurate, your honor. This is Andrew Brettler, attorney for Mr. Masterson. We filed a motion to stay this discovery as to Danny Masterson only pursuant to his constitutional rights. That motion is scheduled to be heard before the court on January 29th.

Judge Kleifield: All right. Go ahead.

Bobby Thompson: Well, the point of it, your honor, is they’re trying — defendant Daniel Masterson is — has asked the court to stay discovery as to it, which would prevent plaintiff from pursuing its cases against the defendant churches in this case. Undoubtedly, if they lose the motion to compel arbitration, they will — the defendant churches will be seeking a motion — or an appellate motion to have a second look at your order. So, you know, it appears to the plaintiffs that all of the parties — at some point this case is going to be stayed, and perhaps this issue should be left for a different day. But it just appeared as a practical matter to the parties or to the plaintiffs that one way or another, this case is going to be stayed and, your honor, could defer your decisions on the motion to compel arbitrations.

Robert Mangels: Your honor, Robert Mangels on behalf of Religious Technology. We do not agree at all with any stay of the proceedings. In fact, it’s not even pending before the court today. If there’s going to be any consideration of the stay beyond the one filed by Mr. Brettler, I think it should be on a notice motion with regular briefing so we can have an arrangement on it. Mr. Thompson just pulled this out of the air and it’s not before the court today.

Judge Kleifield: All right. Well, I don’t — I don’t see the relationship between ordering a case to arbitrations and staying the action and — as opposed to issuing a discovery stay so that a party can exercise their First Amendment rights. I don’t really see the link. OK. Anything — anything more?

William Forman: Your honor, anything more direct to that all serve Mr. Thompson.

Judge Kleifield: I’m addressing Mr. Thompson. Was there anything on that?

Bobby Thompson: I’m sorry. Thank you.

Judge Kleifield: Mr. Thompson?

Bobby Thompson: No, your honor.

Judge Kleifield: OK. All right. Who wants to be — Mr. Forman, do you want to be heard again then?

William Forman: Yeah. I just want to be heard briefly on some of the statements made by Ms. Hamilton on the First Amendment and the nature of what’s going on here. I think the framing of the dispute is very misleading. Nobody is being forced to do anything. Nobody is being forced to participate in any ritual. These plaintiffs came to this court and filed an action against us. They signed agreements with us saying they would never do that, that they were waiving their rights to pursue actions against us in a civil court. That is all that’s happening here, that we are petitioning this court for that not to happen going forward because they agreed to pursue their actions in another forum, period. That is the neutral application of law. That is the contract principle to be enforced. They’re not being forced to participate in any religious ritual. They have brought this action. They can’t bring it here. We’re asking the court to stop it because of their agreements. If they don’t want to participate in Scientology arbitration, they are free to do that as well. But they just can’t pursue their case here. That is the contract principle at issue. Now, Ms. Hamilton said that I made misstates. And she cited to two New York cases, which, in fact, we point out again and again say the opposite of what they say they say. The Sieger v. Sieger case just cited in our papers and we respond to was a New York appellate decision and Ms. Hamilton was absolutely right. In New York law, there are many instances of religious arbitration being ordered by the court. Particularly as to rabbinical arbitration, which is called a beth din. Beth din arbitrations are ordered all the time under New York law. Something that could not happen, I think, if the plaintiffs’ propositions were accepted here. And in Sieger v. Sieger what happened there was, there was no rabbinical arbitration provision in the agreements with the party. One party said, our agreement invokes rabbinical law, which necessarily includes arbitration. And the court said, “I can’t read rabbinical law. I’m not qualified to do that.” And since the contract did not — and the court said, since the contract did not contain a provision that expressly provides for violations of disputes before a rabbinical court, which would allow the court to decide the issue on mutual principles of law without reference to any religious principles. So there, the objection in Sieger by the court was, you do have a religious arbitration agreement in your agreement. That I could enforce. But I can’t read religious text and decide what the obligations of the parties are otherwise. Same thing in the In re: Ismailoff case where the court noticed that the agreement specifically provides for enforcement of the rights of the parties under New York law. In addition, in the absence of any reference in the agreement to a beth din, we can’t compel arbitration under the First Amendment. So if you did reference rabbinical arbitration, you can, as New York courts have done time and again and as California court has done in the 800 — Dial 800 v. Fesbinder case where the California court of appeal said, yes, you can. We can enforce a religious arbitration judgment that is rabbinical law and had a rabbinical tribunal of rabbis sitting there. OK. So as to the overarching point that is made here is, in effect, that if you join a church — if you join a church and agree to arbitrate your disputes with them, that agreement is null and void when you decide. So if you leave the church, if you decide later that you’re a nonbeliever, that agreement is not enforceable. That is unfair. That unfairly prejudices churches. And, in fact, the encore case that we have been talking about, this case from the district court in Colorado that said, quote, “Indeed refusal to enforce the parties’ arbitration agreement could itself arguably constitute an impermissible entanglement. Defendant church could claim impedance of the practice of religion or creation of an unjust unbias against religion, thereby depriving the defendant church of its free exercise rights.” If this court decides I’m not going to enforce an agreement because the church is a member of it because it calls for religious arbitration that is an impedance of our First Amendment rights. Again, because the church has been — you’ve selected an arbitration provision, you’re not going to enforce because it’s part of a religious agreement. That is the violation of First Amendment rights. On the other hand, plaintiffs are not being forced to do anything. They have already waived their right to pursue this case in state court. That’s what they agreed to. And — as between two parties that make a contract, as I began this discussion, they can contract away any First Amendment right they want. Also, this idea that the whole entire characterization that Ms. Hamilton made of this proceeding is a fiction. The court has before it two decisions in the Garcia district case where there was an arbitration. The court should read those and see exactly what happened there. We are asking this court to simply enforce the provisions of the agreement. This — our defendants have not brought a case against these plaintiffs. They are not being called to face charges in a Scientology court. The decisions of the arbitrators are binding for the terms of the agreement. They are not subject to reversal by a Scientology justice chief. The agreement says what the terms are and we are here to enforce it. If they are trying to make up another agreement that they want to enforce or say can’t be enforced, they can go at that all day long. That’s not in the four corners of the agreement that we have with these plaintiffs. So everything they’ve talked about how things, like they say, really happens is not only not true. It contradicts the expressed terms of the agreement. And that’s all we’re here to talk about.

Judge Kleifield: All right. I am going to take the motions under submission. I think I should have a written order, although it is more work for me. I think I would like to do that. We have on calendar — I’m looking ahead. We have a hearing on that motion to stay discovery, which is scheduled for January 29th. And I think that’s the only hearing that we have. I don’t know why we don’t have another case management conference scheduled. But why don’t we make sure we do that now. We’ll set a case management conference on January 29th, I mean, because even if I grant these motions, it doesn’t — it’s not for all of the plaintiffs; right?

William Forman: Correct, your honor.

Judge Kleifield: So we still need to figure out what the progress of the case will be. So let’s set a case management conference for January 29th, 2021 at 8:30 a.m. And in the meantime, these motions are under submission.

Robert Mangels: Your honor, Robert Mangels. Just before we do that, for Religious Technology Center. Your honor indicated you’re going to issue an order. I’m sure you probably had the same thing in mind but we request a stay made on the decision, formally under the code with civil procedure with respect to these motions. Thank you.

William Forman: That’s what I was going to say.

Judge Kleifield: To the extent that a statement is required for an arbitration, I’m sure my order will satisfy that requirement.

Robert Mangels: Thank you.

William Forman: Your honor, the statement of decision is required for petition on arbitration.

Judge Kleifield: OK. All right. That’s fine.

William Forman: Thank you.

Judge Kleifield: All right. Then I will see you next time. Somebody — if you could give notice. Are there any parties not here?

William Forman: Everyone’s here.

Judge Kleifield: So anybody who is not waiving notice, raise your hand. OK. Record will reflect that notice is waived. All right. Thank you, everyone.

William Forman: Thank you, your honor.

Robert Mangels: Thank you, your honor.

Judge Kleifield: We’ll go off the record.

(whereupon, the proceedings were concluded.)

Source Code

“I have a book which proves absolutely the presence of demons and demon exorcism and proves completely a priori — oh, the most fascinating reasoning is the bulk of this book. You just feel your brains go creak as you read this thing…They go on and prove absolutely that the word of the church is law. And then they prove the fact there was a demon present. Just as I say, you, just, brains go kind of creak. It’s got one of these things in practically every column, two columns to the page, quarto-size volume, for about three or four hundred pages. It’s a very old book and was printed way way back when. Fascinating volume. Well, I want to prove pan-determinism to you on this line now. Now, a thetan can see what he can be; he can be what he can see. Now, have any of you ever seen God? Well, come on, come on, have any of you ever seen God? All right. You’ve never seen God, huh? OK. If you have never seen God, this proves conclusively that God is the Supreme Being at the eighth dynamic. Isn’t that right? Oh, yes it does! Because you’ve never seen God and you’re being self-determined, which is the first dynamic. So this merely demonstrates to you that individuals are not pan-determinism. You follow this?” — L. Ron Hubbard, December 16, 1954

 
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Avast, Ye Mateys

“Lt. Cmmdr. Irene Dunleavy is reprimanded for rudeness and violation of F.O. 38 to a senior officer. The next occurrance will result in something more than a reprimand. She is to re-check out on this F.O. within one week.” — MarySue Hubbard, Captain, December 16, 1968

 
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Overheard in the FreeZone

“I’m going to disconnect from a bunch of so called Scientologists from this zoo they call ‘freezone.’ They are in my view just poor people with a lot of bypassed charge from their association with the cult called the Church of Scientology and are now dramatizing their own case. I am going to stay in contact and thrive with all the free-spirited, sincere people who actually want to do Scientology. I am interested in growth, in enlightenment, in living a better life with good people. We don’t need cults.”

 
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Past is Prologue

1997: The supermarket tabloid Globe carried an article this week in which Scientologist Kirstie Alley claims her love for her boyfriend dates back over 500 years. “‘I’m so in love with James because he reminds me of my ex-husband Francesco from 500 years ago,’ Kirstie confided to a pal. ‘We were married in the 1400s in a past life.’ But despite her startling confession, the sexy star of Veronica’s Closet takes the far-out notion of past lives with a grain of salt. ‘Past lives to me are so, like, who cares?’ says Kirstie, 42. ‘We’ve all had trillions of them. But every once in a while there are some truly pleasurable ones that you want to remember!’ Kirstie plunged into her passionate romance with 34-year-old James after hubby Parker Stevenson filed for divorce in March. They’d been married for 14 years and adopted two children together, Lillie, 3, and William, 5. But the actress’ belief in past lives is not new —it’s rooted in her Scientology religion. ‘Scientologists believe in the idea of past lives, but not reincarnation,’ a spokesman explained to GLOBE.”

 
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Random Howdy

“If communication is the universal solvent, why is it that in Scientology you can’t communicate with other Scientologists or non-Scientologists about how the tech works and what it’s done for you? Is it because it will make their heads explode like the guy in Scanners? Why are there no theologians in Scientology? Why can’t you ask a course supervisor what they think Hubbard really meant by a certain passage? Why is it that Scientologists are only able to respond to non-Scientologists with rote responses?”

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

Criminal prosecutions:
— Danny Masterson charged for raping three women: Masterson’s demurrer denied Oct 19, arraignment delayed to Jan 6.
— Jay and Jeff Spina, Medicare fraud: Jay’s sentencing delayed for ‘Fatico’ hearing on Jan 19.
— Hanan and Rizza Islam and other family members, Medi-Cal fraud: Next pretrial conference set for Jan 12 in Los Angeles

Civil litigation:
— Luis and Rocio Garcia v. Scientology: Oral arguments were heard on July 30 at the Eleventh Circuit
— Valerie Haney v. Scientology: Forced to ‘religious arbitration.’ Petition for writ of mandate denied Oct 22 by Cal 2nd Appellate District. Petition for review by state supreme court denied Dec 11.
— Chrissie Bixler et al. v. Scientology and Danny Masterson: Dec 18, re-hearing on motions to compel arbitration; Jan 29, Masterson’s request to stay discovery pending the criminal case
— Matt and Kathy Feschbach tax debt: Eleventh Circuit ruled on Sept 9 that Feshbachs can’t discharge IRS debt in bankruptcy. Nov 18: Feshbachs indicated they will enter into consent judgment to pay the debt.
— Brian Statler Sr v. City of Inglewood: Second amended complaint filed, trial set for Nov 9, 2021.

Concluded litigation:
— Author Steve Cannane defamation trial: Trial concluded, Cannane victorious, awarded court costs.
— Dennis Nobbe, Medicare fraud, PPP loan fraud: Charged July 29. Bond revoked Sep 14. Nobbe dead, Sep 14.
— Jane Doe v. Scientology (in Miami): Jane Doe dismissed the lawsuit on May 15 after the Clearwater Police dropped their criminal investigation of her allegations.

 
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SCIENTOLOGY BLACK OPS: Tom Cruise and dirty tricks

The Australian Seven News network cancelled a 10-part investigation of Scientology and its history of dirty tricks. Read the transcripts of the episodes and judge for yourself why Tom Cruise and Tommy Davis might not have wanted viewers to see this hard-hitting series by journalist Bryan Seymour.

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’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] Scientology celebrated New Year’s Eve on Saturday, and once again we had someone there
[TWO years ago] Where in the U.S. the next set of Scientology ‘Ideal Orgs’ will be popping up next
[THREE years ago] L. Ron Hubbard’s son was troubled, but don’t discount him entirely: few knew his father better
[FOUR years ago] SPECIAL EPISODE ADDED: Leah Remini series adds Monday hour featuring Paulette Cooper
[FIVE years ago] Australian media outs Scientologist behind ‘super city’ plans near Melbourne
[SIX years ago] Scientology attorneys ask Garcia judge — Keep Mike Rinder away from us!
[SEVEN years ago] EXCLUSIVE: Roslyn Cohn’s one-woman show skewering Scientology — complete!
[EIGHT years ago] Sunday Funnies: Scientology Sets Its Worldwide New Year’s Party!
[NINE years ago] Writing OT VIII, a Pot Bust, and More From L. Ron Hubbard

 
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Posted by Tony Ortega on December 16, 2020 at 07:00

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, 1995-2019 Just starting out here? We’ve picked out the most important stories we’ve covered here at the Underground Bunker (2012-2019), 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