Scientologists Appeal to Texas Supreme Court

Courthouse News/February 24, 2016

By Erik De La Garza

Austin -- The Church of Scientology asked the Texas Supreme Court to review a judge's rejection of its First Amendment argument in a lawsuit from a woman they filmed, surveilled and outside of whose home they protested for 199 days.
     
Monique Rathbun sued the Church of Scientology International, its leader David Miscavige, and four people she accused of harassing her, in 2013. Her husband, Marty Rathbun, was known as Scientology's number two executive behind Miscavige, before he walked away in 2004 after 27 years on the inside, according to court records.
     
Five years after he deserted the church, Marty Rathbun began denouncing Miscavige's "criminal mistreatment of Scientology clergy," his wife said in her original complaint.
     
Monique Rathbun said she has never been a member of the church and did not join her husband in speaking out about Scientology issues. But she says the church worked around the clock for three years to destroy her as she and her husband sought refuge in the Texas Hill Country.
     
The church acknowledges that it conducted surveillance of the Rathbuns via private investigators who are not Scientologists. It claims it did this to collect information for pre-litigation investigation of the Rathbuns' alleged trademark infringements.
     
The church claims Marty Rathbun defamed it in an attempt to create his own version of "Independent Scientology" using Scientology intellectual property.
     
In its 92-page petition for review , the church says the Rathbuns performed auditing services out of their home office using a Scientology religious artifact called an e-meter, which should be used only by licensed and authorized ministers.
    
 It acknowledges that Scientologists known as the "Squirrel Busters" protested and filmed outside the Rathbuns' home-office for an alleged 199 days, but says that was protected speech.
     
"Defendants do not deny the presence of the Squirrel Busters outside of plaintiff's home/office. In fact they assert it was their right to protest there in response to Marty Rathbun's years-long attacks on their church," the church says in its brief. "Their activities, which plaintiff conceded never involved assault or trespassing, included attempts to question the Rathbuns about Scientology and their anti-Scientology activities."
     
In Rathbun's long list of complaints against the church, she says she has been "harassed, insulted, surveilled, photographed, videotaped, defamed, and humiliated to such a degree as to shock the conscience of any decent, law-abiding person."
    
 She calls the ordeal "aggressive" intimidation.
     
A trial court judge in Comal County, just north of San Antonio, rejected the church's attempts to dismiss the lawsuit in 2014. A Texas appellate court ruled in November last year that the church's monitoring of Rathbun is not a protected right of free speech or association.
     
The church, two of its members and two private investigators filed separate petitions for review of the Austin-based Third Court of Appeal's decision that tossed out their free speech argument under the Texas Citizen's Participation Act.
     
The law protects the constitutional right to petition, speak freely and associate freely, but has created confusion among state appellate courts, the church claims.
     
"The TCPA is a crucial tool for protecting First Amendment rights. But the Act's step-one 'preponderance-of-the-evidence' inquiry has confused and divided intermediate courts of appeals; it will continue to do so until this court intervenes," the church said in its petition for review.
    
 The church also challenged the Court of Appeals reliance on allegations that its members sent Rathbun a sex toy at her job. It says the trial court struck that allegation but the appeals court used it anyway.
     
"The court of appeals' conclusion thus relied on evidence the trial court struck, while ignoring evidence the trial court credited regarding the Squirrel Busters' activities," the church says.
     
It claims that Rathbun's "lawsuit is based upon acts undertaken by defendants to counter the vicious public attacks, principally by her husband, and to protect the church's intellectual property rights."
    
 The Church of Scientology International did not respond to a request for comment Tuesday.
     
Its two members named in Rathbun's lawsuit - Ed Bryan and David Lubow, along with private investigators Monty Drake and Steven Gregory Sloat - filed a separate petition for review.
     
Their 28-page petition argued that the Court of Appeals failed to provide each defendant individual attention and did not consider whether, at step one, the factual basis for Rathbun's lawsuit as to each defendant was covered by the TCPA.
     
The state Supreme Court is under no obligation to take up the interlocutory appeal for consideration; the nine justices will vote on whether to grant or deny the petition for review.
     
A response is due March 21. Rathbun fired her attorneys in January and is representing herself.
     
Miscavige did not file a motion to dismiss and is not a party to the appeal.