WILLIAM H. FORMAN
Partner +1 213-615-1992 WHForman@winston.com
October 1, 2021
VIA TRUEFILING (Case No. B310559)
To the Honorable Presiding Justice and Associate Justices of the Court of Appeal, Second Appellate District, Division Five: Respondents and Real Parties in Interest Church of Scientology International, Church of Scientology Celebrity Centre I nternational, and Religious Technology Center
(“Respondents”) submit this letter in
response to the Court’s
order of September 22, 2021, requesting letter briefs
on “[w]hether the compelled
arbitration is sufficiently neutral to constitute an enforceable arbitration,
” and
specifically raising the issue of arbitrator neutrality. As Respo
ndents’ briefs have shown, religious arbitration is
commonplace in the United States. Inherent in the nature of religious arbitration is the requirement that the arbitrators, at the very least, be members of the religion and conversant in the governing religious precepts. Scientology arbitration is part of this tradition, and employs procedures that are recognized as fair for the mutual selection of arbitrators and require the arbitrators to be impartial. Furthermore, the First Amendment prohibits this Court from disturbing the criteria for the selection of arbitrators, as secular notions of due process do not control religious arbitration, and from interfering with or altering
a religion’s terms for persons
to join the religion.
Watson v. Jones
(1871) 80 U.S. 679, 727;
Serbian Eastern Orthodox Diocese v. Milivojevich
(1976) 426 U.S. 696, 715. Finally, the Agreements at issue show all indicia of an intent to arbitrate as discussed in
Cheng-Canindin v. Renaissance Hotel Associates
(1996) 50 Cal.App.4th 676.
A.The Scientology Arbitration Procedures.
To assert a claim under Scientology arbitration procedures, Petitioners mustsubmit a request for arbitration to the International Justice Chief and designate an arbitrator to hear and resolve the matter. (6 EP 1501, 1503.) Respondents then would designate a second arbitrator, and the two designated arbitrators would select a third. (
Id
.) The selected arbitrators must be “Scientologists in good
1
Court of Appeal, Second Appellate DistrictDaniel P. PotterElectronically RECEIVED on 10/1/2021 at 3:49:30 PM
Court of Appeal, Second Appellate DistrictDaniel P. PotterElectronically FILED on 10/1/2021 by Karla Dominguez, Deputy Clerk
October 1, 2021 Page 2
standing
” –
no other requirement is stated. (
Id
.)
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For instance, there is no requirement that the arbitrators be employees of any of the Respondents. Once selected, the three arbitrators then would hear the dispute and make a
“binding” decision. (
Id
.; 7 DEO 1642 ¶ 6.e. [Exemplar Agreement]; s
ee generally
Return, ¶¶ 27-29.) Petitioners further agreed
to be bound “exclusively” by Scientology law “in all . . . dealings of any nature with the Church,” and
that they were forever waiving their recourse to civil courts in their dealings with Respondents. (6 EP 1501; 7 DEO 1642 ¶¶ 6.a., c.) Scientology arbitrators, as a matter of religious doctrine acknowledged by the
Garcia
court,
are instructed to “conduct th[e] arbitration in a fair and neutral manner,” regardless of the status of the parties.
Garcia v. Church of Scientology Flag Service Org
. (M.D. Fla. 2018) 2018 WL 3439638, *2 (“
Garcia
”).
As stated
in the uncontradicted and unchallenged evidence below, “Scientology Justice is a
formalized system designed for fair and equitable treatment
”
(7 DEO 1554 ¶ 18), and it is a principle
of Scientology Justice to attain “tolerance, mercy, [and] understanding” (
7 DEO1555 ¶ 19.)
B.The Scientology Arbitrator Requirements Are Fair and Are Protectedby the First Amendment.
1.The Requirement that the Arbitrators Be Scientologists in Good Standing Is Inherently Fair and Reasonable.
In light of Petitioners’ agreements to be bound “exclusively” by
Scientology law in their dealings with the Church, and to submit any and all disputes for handling
“through Scientology’s internal Ethics, Justice and binding
religious arbitration procedures” (
6 EP 1502-1503; 7 DEO 1642 ¶¶ 6.d., e. [Exemplar Agreement]), the requirement that the arbitrators of such disputes be Scientologists is the only rational and fair result. Religiously-qualified tribunals are common, if not universal, in religious arbitrations.
Dial 800 v Fassbinder
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Petitioners have asserted without any cite to the record that Mr. Masterson could serve as an arbitrator of their claims. That is incorrect. As an interested party, Mr. Masterson may not serve as an arbitrator. Petitioners also
assert that it is “not in
di
spute” that “any and all persons who will participate and/or arbitrate this matter are Masterson’s agents (and vice
-
versa).” (Reply, at 9.) The only “support” cited for these claims are references to Petitioners’
conclusory allegations that Mr. Masterson is an agent of or a principal of Respondents, (
id
.), and each is disputed.
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October 1, 2021 Page 3
(2004) 118 Cal.App.4th 32 (enforcing agreement to arbitrate before religious tribunal of rabbis). Indeed, courts reject arguments of religious affiliation as proof of
ex ante
arbitrator bias.
Gen. Conference of Evangelical Methodist Church v. Evangelical Methodist Church
(N.D. Ga. 2011) 807 F. Supp. 2d 1291, 1294-95, 1301 (enforcing arbitration provision that called for panel of church arbitrators:
“The Supreme Court has repeatedly c
ounseled that [under] the FAA ... courts should not presume, absent concrete proof to the contrary, that arbitration systems
will be unfair or biased”);
Easterly v. Heritage Christian Schools
(S.D. Ind. Aug. 26, 2009) 2009 WL 2750099 (rejecting claims that arbitrators would be inherently biased because of their religious beliefs and affiliations);
Jenkins v. Trinity Evangelical Lutheran Church
(Ill. App. 2005) 356 Ill. App. 3d 504, 512 (rejecting
partiality argument based on the fact that “the dispute resol
ution procedure calls
for arbitrators who are either members or employees of the [defendant] Synod,” because “Plaintiff has not pointed to any specific prejudice he would suffer under the bylaws, but only a generalized fear of partiality.”).
It is in this context that
Garcia
noted that the plaintiffs
agreed “to arbitrate
in accordance with Scientology arbitration procedures, including the selection of
arbitrators in good standing with the Church, whose partiality was a given.”
Garcia
did not find that Scientology arbitrators are inherently biased. Rather, the
“partiality” statement refers to the fact that the Garcias, having agreed to
Scientologists as arbitrators, could not object to an arbitrator simply for being a
Scientologist: “To the extent,
therefore, [the Garcias] challenge the partiality of the arbitrators because of their standing with the Church, they agreed to inherent
partiality in their agreements. ‘Where an agreement entitles the parties to select interested arbitrators, ‘evident partiality’ cannot serve as a basis for vacating an
award under § 10(a)(2) [of the Federal Arbitration Act] absent a showing of
prejudice.’
Winfrey v. Simmons Foods, Inc
., 495 F.3d 549, 551 (8th Cir. 2007).”
Garcia, supra
, at *3.
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With respect to the Garcias’ claims that no Scientologists ever would give them
relief because they had been
declared “suppressive persons,”
in fact, the Scientologist arbitrators awarded the Garcias $18,495.36 against the church defendants.
Garcia
, *2. As
Garcia
held, while it was “the Church’s position that
Plaintiffs should be awarded nothing, the arbitrators were instructed to make independent findings and decisions
as to Plaintiffs’ claims. The arbitration award
of more than $18,000 demonstrates that the arbitrators made an independent
finding.”
Id
., *3, n. 4.
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