The recent, very disappointing decision from the 11th Circuit Court of Appeals in the Garcia case highlights once again the problem of trying to deal with scientology in the courts: they understand too well how to game the system. The old adage that when the facts are not on your side, argue the law is page 2 of the scientology playbook. Page one is: baffle them with bullshit disguised as “religious practices.”
Legal decisions are based on precedent:
Precedent refers to a court decision that is considered as authority for deciding subsequent cases involving identical or similar facts, or similar legal issues. … If the facts or issues of a case differ from those in a previous case, the previous case cannot be precedent.
Scientology got a double-whammy when they convinced two of the three Appellate Court Justices (Chief William Pryor, a Bush appointee and Robert Luck a Trump appointee) to follow them down the rabbit hole of precedent in this case, while essentially ignoring the facts. I have previously commented about my concerns with conservative judges — Religious Protections Run Amok— sadly this decision confirms those fears.
The precedent double-whammy is:
1) courts generally have favored arbitration and
2) courts don’t involve themselves in matters of religion.
Both are understandable. But in this case resulted in a terrible decision that will go a long way to denying anyone recourse for anything scientology ever does.
It is natural for overworked courts to strongly favor cases being resolved through arbitration. Typically such arbitrations are conducted by retired judges and follow many of the same rules as you find in a court room, but they are faster and more efficient. Courts are extremely reticent to undermine arbitration agreements as it would open the door to everyone who feels they didn’t get what they wanted out of arbitration demanding courts take up their grievance, defeating the point of arbitration. But here, Scientology hoodwinked the system by simply using the word “arbitration” when they had no such thing. Apparently it is easy for judges to simply buy into the idea that because they use the word arbitration, there is some semblance of validity to it.
This plays right into the second prong of the double-whammy. Courts are not supposed to insert themselves into religious disputes due to the constitutional separation of church and state. Scientology knows this full well and plays the religion card hard and often. Somehow they manage to convince judges (and two out of three justices on this Appellate Court panel) that they have the right to demand that a court enforce their contracts (Enrollment Agreements), yet the court is forbidden from passing judgment on the details of the contract (ie whether what they claim is “arbitration” is in fact fair) because everything is dictated by “religious procedure” — simply because they call it “religious arbitration.”
In normal circumstances, their decision would be understandable. But applying precedents from REAL arbitration cases and using the principles of law based on REAL religions is inappropriate here. Why shouldn’t they simply follow precedent? When this case was filed there had NEVER been a scientology “religious arbitration.” Not one. It was just a made up term. Scientology could offer nothing ads to how such a thing would be done and eventually asserted it would be conducted under the rules of a Committee of Evidence. Every scientologist on earth knows that is NOT an “arbitration.” (See my earlier posts on this: A Scientology Committee of Evidence is NOT Arbitration, Concerning Scientology “Religious Arbitration”, Shameful Scientology “Religious Arbitration” Destroying Justice)
The correct approach here was to do what Justice Robin Stacie Rosenbaum (Obama appointee) did. Look at the FACTS.
In the underlying proceedings there had been specific FINDINGS OF FACT by Judge Whittemore. The findings of fact are NOT open to review.
An appellate court does not reweigh evidence, resolve factual disputes, or make credibility determinations because appellate judges do not have the benefit of observing the presentation of evidence at trial.
Rosenbaum took the time to note the facts that had been established in the court. Those facts led him to the inevitable, entirely rational conclusion that not only was there no arbitration procedure that anyone who had signed the agreement could reasonably understand, but that scientology just made it up as they went along. He gives a wonderful analogy to the rules of a football game derives from “Scientology principles.”
Below are some of the most relevant sections from Justice Rosenbaum’s dissent. The emphasis is mine. (You can find the entire Rosenbaum Dissent here)
ROSENBAUM, J., dissenting
You can’t make up the rules as you go along. It’s a basic concept of fairness, and it’s one that applies to arbitration as well. No wonder. If a party to the arbitration can create the rules governing the arbitration as the arbitration progresses, it enjoys an insurmountable advantage that effectively guarantees its victory. That’s not an arbitration; it’s just plain arbitrary. And a federal court should not be a rubber stamp for the kind of inherently unfair, anything-the-arbitration-contract-drafting-party-wants-goes “arbitration” that necessarily occurs when the agreement-drafting party can subject the other party to whatever rules it desires—even changing the rules—as the arbitration unfolds.
… at the time the arbitration agreements were entered, the Church of Scientology had “binding religious arbitration procedures.” But following an evidentiary hearing, the district concluded that, in fact, it did not.
In response to the Church’s assertion that its Committee on Evidence provides the rules and procedures governing arbitration, the district court determined that the Church “failed to present any convincing evidence supporting [this] constrained contention.” Among other reasons why the court found that to be the case, the court noted that
(1) “the arbitration agreements make no reference to the Committee on Evidence”;
(2) “the word ‘arbitration’ cannot be found in the Committee on Evidence or in L. Ron Hubbard’s book”; and
(3) “even a superficial comparison of the arbitration agreements with the provisions in the Committee on Evidence supports Plaintiffs’ contention that the Committee on Evidence could not, absent an ad hoc determination, provide the rules and procedures of arbitration.” As the court explained, “Even [the IJC] acknowledged numerous irreconcilable inconsistencies exist between the arbitration agreements and the provisions in the Committee on Evidence.”
And as for the IJC’s testimony that he “made a prior determination that the Committee on Evidence applies to Scientology arbitration . . . five to ten years before,” the district court found the IJC’s “testimony was not credible.” Even the Church’s counsel implicitly conceded that the Church lacked existing rules of procedure. In fact, he advised the Garcias’ attorney in writing before the arbitration that “[t]he conduct of the religious arbitration will be decided by the IJC at the appropriate time during the arbitration.”
Not only did the Church not have existing arbitration rules and procedures as late as the time of the Garcias’ “arbitration” here, but until the Garcias’ “arbitration,” the district court found, “there ha[d] never even been an arbitration in the Church.” The district court cited this fact as further support for the Garcias’ position that “no rules and procedures for conducting arbitration exist[ed]” at the time of the Garcias’ “arbitration.” In short, the district court found, as a matter of fact, that the Church had no rules and procedures for conducting the actual “arbitration” not only at the time the Garcias signed the agreements but as late as when their “arbitration” occurred.
….saying an arbitration will be “conducted in accordance with Scientology principles” is a lot like saying a football game will be played in accordance with Scientology principles or principles of any other religion, such as Christianity, for example. What does that mean? Will it be tackle, touch, flag, or something else? Will there be eleven people on a team? Will there be four downs? Will the teams have to pick up ten yards within those four downs to receive another four downs? Will the field be 100 yards long? Will holding qualify for a penalty? How about clipping? False starts? And if so, what will those penalties be? Will there be touchdowns, field goals, extra points, safeties, and two-point conversions? If so, how much will each count? And so on. Religious principles are no more meaningful in identifying the form and procedure of arbitration than they are in establishing the form and procedure of a football game. Will the parties be permitted attorneys? Will they be allowed to put on evidence? Cross examine witnesses? Make statements themselves? Present argument? For those matters, will the parties even be allowed to be present for the arbitration, or will it be determined on submissions? The fact is, a vague statement that arbitration will be “conducted in accordance with Scientology principles” answers none of these or any other procedural or format questions.
At the “arbitration,” the IJC did, in fact, make up the rules—and change them—as the proceedings went on. For example, before arbitration, the IJC testified in his deposition that the attorney for the Garcias could be present at the arbitration, but could not “represent” them. Once it was time to actually arbitrate, though, the Garcias were told that the procedures “[did] not contemplate participation by an attorney” and that civil lawyers “[had] no role to play at the arbitration.” The IJC also testified that the Garcias would be permitted to testify at the arbitration, but the arbitrators consistently cut Mr. Garcia off when he tried to present his case and told him he could not submit any “entheta,” a Scientology term for material that is critical of Scientology. Similarly, pre-arbitration, the IJC testified that the Garcias would be able to “present [their] side of the story” and “originate whatever [they] wanted to.” But then at the arbitration, the IJC prohibited the Garcias from bringing witnesses because “their testimony could not possibly be confirmed,” and he heavily redacted the Garcias’ evidence for entheta before giving it to the arbitrators.
The full decision is here: Garcia 11th Circuit Ruling
I only hope that other judges recognize what has happened. Scientology has pulled the wool over too many judicial eyes. Common sense and fairness has been trumped by legal and religious double-speak.
Justice Rosenbaum wasn’t fooled. Too many others are. Let’s hope some take note for the future.
Joe Pendleton says
I guess maybe I just haven’t followed these cases closely enough , but wouldn’t forcing a person to engage in a religious arbitration WITH A RELIGION THAT THEY HAVE LEFT AND WHOSE POLICIES AND PRINCIPLES THEY NOW OPPOSE, violate their First Amendment right of religious freedom? Are these plaintiffs even pleading that?
Mike Rinder says
YEs and yes
“The People v. O. J. Simpson: American Crime Story” constituted the first season of the FX channel’s true crime anthology television series. This series attracted a wide audience, critical acclaim, and garnered several awards. (Curiously, a first-ever television Emmy award for series’ producer, John Travolta, who also played real-life defense attorney, Robert Shapiro.)
I had the sense the creative team for this show was drawn to tell this story, and audiences were drawn to watching it, because of the case’s lingering cloud of injustice.
“The People v. O.J. Simpson” was written by Golden Globe-winning producers, Scott Alexander and Larry Karaszewski. I wonder if their team would have appetite to take on another real-life tale of injustice: the Garcia’s. Obviously, this real-life injustice is not so much in the public consciousness as the O.J. Simpson story. But with the intrigue surrounding Scientology, and the despair and madness of the Garcia family saga, this story is an excellent candidate for a well-made television mini-series.
What is a next available means to shine the light of truth as “the best disinfectant”? A television mini-series is worth considering. I believe there would be an audience for it.
Ref: James Bryce in his 1888 book, The American Commonwealth: “Selfishness, injustice, cruelty, tricks and jobs of all sorts shun the light: to expose them is to defeat them.”
I find the rulings in the Garcia case, and the related rulings in Masterson related civil cases to be the most abhorrent Scientology-related rulings any US courts have ever made. People signing the enrollment agreements really do not have a clue what they are letting themselves in for in the future. At the very least some sort of broad warning against Scientology enrollment forms and the trap of agreeing to Scientology arbitration should be published online.
And herein lies the problem. According to the US Constitution Judges don’t make law (precedent). The Framers knew the huge problems that causes (from British system) and excluded it from our system. Unfortunately the constitution isn’t follow and we get this injustice.
Do you have any contacts in the legal field who are interested enough to do an article, or push to get an article on Scientology’s arbitration short history, namely the Garcias’ arbitration experience?
An “American Lawyer” article, or similar article?
The public deserve to know about Scientology’s arbitration history, vs let’s say the Jewish rabbi counsel arbitrations that have gone on for years. In one of the online court hearings, the Scientology side lawyers referred to one case of the Jewish rabbis who held the arbitration for two Jewish followers, but even though not both of the same Jewish sub sect, they did not have any trouble with the Jewish rabbis on the arbitration counsel.
MY GUESS is that there is NOT a precedent yet, of having two different sect members disagree on their arbitration counsel members, as was the case with the Garcias not being allowed any input into who was on their arbitration counsel. Where in the Jewish rabbis arbitration counsels, my guess is there has NOT been any disagreement from the people on both sides who agree to the Jewish rabbis’ counsels.
This is the cutting edge of religion NOT encroaching religious beliefs into secular arbitration.
I’ll bet, with research, someone who looks into all of the various religious arbitration counsel setups, that the opposing sides didn’t disagree on the arbitration counsel for religious reasons.
The constitution of the arbitration counsel cannot invade religious beliefs into the arbitration, that is fundamentally not allowed by US Constitutional law precedents.
There has to be a case and the Garcias I would think. have a case, to sue the court that let religious beliefs enter into the arbitration that went against the Garcias.
Whereas, in the Jewish rabbi panels who are arbiters, I doubt there can be found any persons disagreeing with the arbitrations of the Jewish rabbis.
Do you have any legal friends to get this into American Lawyer magazine?
There is no high level case law about this. The problem is that congress hasn’t addressed this vis-a-vis arbitration laws. State laws can easily be written to handle this situation
Thanks. Have you notice the 28 Nov 2021 LA Times article, a front page article. Anything of note in that article you spot.
I had made many “donations” to Scientology in the years before the “religious arbitration agreement” came into being. Many, many thousands of dollars given that were held on my account until the time I came in to receive the services.
Years later when I arrived for those services I was told I had to sign the “religious arbitration agreement (otherwise called enrollment for service contract or something similar). I thought, what if I don’t sign it? I won’t be able to use any of the money on my account and if I asked for a refund I’d be declared an SP. Bottom line the cult would keep my money one way or another. Does this sound like undue influence or pressure? I sure felt I had no choice but to sign the damn arbitration agreement.
Anyone else go though this too?
Maybe the issue of undue influence should be brought up in court?
No, you didn’t pursue your options and didn’t consult an atty. Thus you cannot sue on that basis.
Zee Moo says
“That’s not an arbitration; it’s just plain arbitrary.” While the $cieno procedures of ‘arbitration’ are arbitrary, the conclusion is foretold.
I have been surprised that the Clampire hasn’t had another ‘arbitration’ and publicized it. Just to try to look more ‘legal’.
I am not surprised by this decision.
Kudos to the Garcias for remaining true to their determination to
fight Captain McSavage’s religious mafia/cult corporation.
I wouldn’t hope for a common sense ruling from the Supreme Court, either…
jim rowles says
Thank you, mike, for this thorough and progressive dismantling of scientology duplicity. Each writeup that shows what they DO compared to what they SAY gets into the internet and becomes searchable to investigators. This attack with truth will prevail when widely known and accepted, even by the legal system.
Gaming the system works for a while and then becomes rejected. In the case of corporate scientology this cannot happen soon enough.
Karl Woodrow says
The Constitution says that Congress may not establish religion nor prohibit the freedom to practice one’s religion.
However, it does not say that Congress may not define and/or restrict the procedures of arbitration clauses in contracts. It can. And it has done so in the past.
Two out of three of those judges made a grave error. Religious doctrines cannot and should not trump Secular Law. Otherwise, we become a religious state and the 1st amendment is gone.
Religious arbitration is bad for the religion as well as the parishioner… witness the recent troubles of the Catholic Church.
I have faith that members of the Supreme Court can rise above their own religious beliefs and practices and render a just decision in this misuse of commercial arbitration statutes by religious organizations.
However Karl, they haven’t made law in this area that outlaws when the church has done. So your argument doesn’t yet exist…
This is so sick……it’s all about THEM & THEIR “rules & regulations”…………………..or so it seems.
MIND BLOWING THAT : The precedent double-whammy is:
1) courts generally have favored arbitration and
2) courts don’t involve themselves in matters of religion.
What’s good for the goose is good for the goose….the gander can go “f” themselves or “do as I say, NOT as I DO”……….so the Garcia family & others don’t stand a chance in court
A no doubt mega file of their own DOUBLE SPEAK….AS IN……………………………….
” I KNOW YOU BELIEVE YOU UNDERSTAND WHAT YOU THINK I SAID, BUT I AM NOT SURE YOU REALIZE THAT WHAT YOU HEARD IS NOT WHAT I MEANT”………………..
The religion loophole needs to be closed.
Zee Moo says
‘Religion’ is not a loophole here. It is the camouflage that the wily clam is hiding behind. This ‘religion’ is a business, not a ‘religion’
Amen! I’ve seen & read about many religions, this is the ONE religion where one has to keep PAYING huge amnouts of cold hard cash or credit endlessly to be “educated” in their ways. If one doesn’t PAY & keep on keeping on…………..they are SLAMMED & SHAMED .
Fear is a great motivator & intimated, keeps everyone in line to keep paying & paying or else……………so sad.
Ammo Alamo says
Is there a trascript of the Garcia ‘arbitration’? I doubt it. I’ve read all of the prior posts about their case both here and at Tony Ortega’s Bunker site, and I can’t recall anything like a transcript or recording being allowed. However, I have no doubt that Scientology’s hidden cameras and microphones might have been busily at work behind the scene, behind the wall, accurate recording swiftly secreted away to the Tiny Tyrant’s Macallan-fueled listening post, where he could have a good laugh at his power over the entire sham.
What a travesty of justice. What has happened to ordinary intelligence and common sense when judges and district judges can be so easily hoodwinked?
And what about the Members in Good Standing who heard what the IJC allowed to be presented? Some day one or all of them will leave Scientology, I have no doubt, or possibly it will leave them… Their report of the Garcia case would make very interesting reading, or the threat of it being made public might be a big stick to leverage a golden parachute from Miscavige.