WILLIAM H. FORMAN
Partner +1 213-615-1992 WHForman@winston.com
October 8, 2021
VIA TRUEFILING
(Case No. B310559)
To the Honorable Presiding Justice and Associate Justices of the Court of Appeal, Second Appellate District, Division Five: This Court asked a question about the neutrality of Scientology arbitration procedures. Petitioners did not answer it. They instead relied on extra-record sources, evidence that was rejected, and false characterizations of Scientology doctrine to imagine an arbitration untethered from the agreed-upon procedures. This argument by strawman infects Petitioners’ legal analysis, which cites to inapposite authority and standards of arbitrator selection contrary to precedent. Petitioners do not ask this Court to consider the terms of their Agreements in ruling on the Petition, but rather an invented set of doctrines, practices, and beliefs that they claim disqualify all Scientologists from serving as arbitrators.
A.
Petitioners’ Factual Statements Are Unsupported by the Record.
Petitioners’ Letter does not contain a single cite to the record or to the Trial Court’s Order. That is because Petitioners’ arguments depend upon an invented narrative. The invention begins with the Garcia declaration (the subject of a motion to strike). In 2018, the district court in
Garcia
considered a nearly identical declaration in denying Mr. Garcia’s motion to vacate the $18,000 arbitration award in his favor. Defendants challenged Mr. Garcia’s assertions of unfair exclusion of evidence, exclusion of witnesses, exclusion of his lawyers, and the conduct of the arbitration in general. The court found the Garcia declaration “unpersuasive,” “disingenuous,” and “belie[d]” by the evidence, and rejected its assertion that the arbitrators were not independent.
Garcia v. Church of Scientology Flag Service Org
. 2018 WL 3439638, *3-4 and n. 4 (“
Garcia
”). Nevertheless, Petitioners continue to assert that any arbitration could not possibly be fair because the arbitrators would be “forbidden” from siding with Petitioners, and would be “ostracized” and “subject to punishment” for doing so. (Pets.’ Letter at 5.) Petitioners don’t cite to the record for any of this, and with good reason. The Trial Court here rejected Petitioners’ evidence on supposed Scientology arbitrator bias, finding it filled with “unsupported assumptions,
Court of Appeal, Second Appellate DistrictDaniel P. PotterElectronically RECEIVED on 10/8/2021 at 4:57:13 PM
Court of Appeal, Second Appellate DistrictDaniel P. PotterElectronically FILED on 10/8/2021 by Karla Dominguez, Deputy Clerk
October 8, 2021 Page 2
foundational deficiencies, irrelevant matters, improper opinions, and arguments.” (6 EP 1500.) Petitioners have not challenged that ruling. Furthermore, Petitioners have not been “declared” (equivalent to excommunication), and, even if they were, the arbitrators would be instructed to treat them fairly and neutrally.
Garcia
, * 1. Petitioners argue that the International Justice Chief (IJC) may overturn the decision of the arbitrators and can deliberate with the arbitrators. Those inventions contradict the express language of the Agreement that the
arbitrators
hear any dispute and that their decision is
binding
. (Return ¶¶ 27-29.) Petitioners claim that Respondents are “mandating” that the arbitrators “be members of the organization.” (Pets.’ Letter at 6.) That is false. The only requirement is that arbitrators be Scientologists in good standing. (6 EP 1501, 1503.) There are hundreds of Scientology churches and missions. The arbitrators could be parishioners of any of them. The arbitrators need not be selected from the Respondent organizations, and even if they were, parishioners of a religious organization are neither the entity itself nor parties to this dispute. In the end, Petitioners’ argument amounts to the assumption that
all
Scientologists are incompetent to serve as arbitrators. When Petitioners assert that any Scientologist in good standing would be “mandated” to treat Petitioners as “enemies” of the Church (Petition at 11, 38; Reply at 6, 9), they invoke supposed Church doctrine regarding what Scientologists must believe. Not only are the allegations about Scientology doctrine false (Resps.’ Letter at 2 & n. 2), they invite the Court to make an impermissible adjudication of doctrine.
Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Mem. Church
(1969) 393 U.S. 440, 450 (courts may not determine “matters at the very core of a religion— the interpretation of particular church doctrines and the importance of those doctrines to the religion.”). Petitioners’ slander about arbitrators being “ostracized” and “subject to punishment” is nothing but a demand that the Court accept Petitioners’ false statements of supposed Scientology doctrine. That is forbidden.
Epperson v. Arkansas
(1968) 393 U.S. 97, 104 (Government “may not . . . promote one religion or religious theory against another. . . .”).
B.
None of Petitioners’ Authority Stands for the Proposition That Respondents May Not Use Religiously-Qualified Arbitrators.
Respondents’ Letter showed that the First Amendment protects the rights of a religious organization to require religious qualifications for its religious tribunals. Furthermore, a core purpose of the Federal Arbitration Act (“FAA”) is “to give effect to the intent of the parties.”
Lamps Plus, Inc. v. Varela
(2019) 139
October 8, 2021 Page 3
S.Ct. 1407, 1416 (2019) (citation omitted).
That includes the right to define the qualifications for arbitrators or to even select arbitrators with known biases.
Sphere Drake Ins. Ltd. v. All American Life Ins
. (7th Cir. 2002) 307 F.3d 617, 620. Accordingly, the FAA precludes
ex ante
challenges to the arbitrators the parties agreed upon. (Resps.’ Letter at 4.) Petitioners’ authority does not contradict any of this. With respect to Respondents’ First Amendment rights, Petitioners assert that
Jones v. Wolf
(1979) 443 U.S. 595 somehow prohibits enforcement of the Agreements as unconscionable.
Jones
in fact
requires
enforcement of the Agreements.
Jones
states that a court may use neutral principles of law in adjudicating a matter involving a religious organization “so long as it involves no consideration of doctrinal matters, whether the ritual and liturgy of worship or the tenets of faith.”
Id
., at 602. The Trial Court used neutral principles of contract law to find that the parties entered into agreements that had clear and unambiguous arbitration provisions that applied to their disputes. (6 EP 1505-08.)
See also Meshel v. Ohev Sholom Talmud Torah
, 869 A.2d 343, 354 (D.C. Ct. App. 2005) (“a civil court can resolve appellants’ action to compel arbitration according to objective, well-established, neutral principles of law”). What
Jones
said courts may not do is what Petitioners are asking: adjudicate issues that involve “consideration of doctrinal matters.”
Id
., at 602. The argument that Scientology arbitration is “unconscionable” because the arbitrators are Scientologists
necessarily
involves consideration of doctrinal issues such as whether Scientologists are “mandated” by doctrine to rule against Petitioners. Questions about whether the terms for joining Scientology are “reasonable” are inseparable from a judgment about what a faith may ask of its followers.
1
Respondents argued that the substantive provisions of the FAA applied to the Agreements, and the Trial Court cited to both the CAA and FAA in its Order. (7 DEO 1532-33; 6 EP 1498, 1500.)
2
Unconscionability has not been briefed by the parties. Neither the Petition nor the Reply mentions the word “unconscionable,” and
Cheng-Canindin
addressed formation,
not
unconscionability. Procedural and substantive unconscionability raise many questions outside the briefing. For instance, Petitioners failed below to argue procedural unconscionability, which must be shown along with substantive unconscionability before an agreement will be found unenforceable.
Crippen v. Central Valley RV Outlet
(2004) 124 Cal. App. 4th 1159. While Petitioners admit entering into the Agreements, each asserted that they had no recollection of signing them, so they have not offered any evidence of coercion, oppression, duress, or surprise in the formation of the Agreements. (11 DEO 2567-68.)