Scientology accusers ask court for a trial, not a religious arbitration

San Francisco — A California appeals court on Tuesday considered whether a harassment lawsuit against the Church of Scientology should be decided by a jury or an arbitration board of Scientologists.
The case was brought by women who said they were stalked and harassed after they complained to police that they had been raped by actor Danny Masterson, a Scientologist who has been criminally charged. Masterson, who starred in the hit sitcom “That ’70s Show,” faces charges of raping three women between 2001 and 2003. A criminal trial is pending.

Four women and the husband of one of them also sued the church and Masterson, charging they were terrorized, stalked and harassed in an effort to intimidate them after they reported the alleged sexual assaults.

They accused the church of hiring private investigators to surveil, follow, video and photograph them, tapping their phones, hacking their email accounts and home security systems, and even killing a dog. The church has denied any harassment.

Scientology says the former members who sued signed agreements when they joined the church to arbitrate any claims before a panel of Scientologists.

A trial court and a panel of the 2nd District Court of Appeal previously ruled the arbitration agreement could be enforced. The case returned to the appeals court Tuesday after the California Supreme Court ordered the judges to reconsider.

During a hearing, the appellate justices pondered how they, without knowing how the church would conduct the proceedings, could determine whether the Scientology arbitrators would be neutral. One justice suggested it might make sense for the arbitration to proceed and allow the losing party to go to court to object if the process had been biased.

Another justice tried to determine whether the process would be fair, asking about the church’s rules of evidence.

Marci Hamilton, representing the plaintiffs, told the court the arbitration would be conducted “solely according to Scientology cannon.”

She argued that religious arbitration could not be imposed upon someone who was no longer a member of the religion.
“This is in fact a direct violation of my clients’ 1st Amendment rights to exit, to leave a religion forever,” she told the court.

Lawyers for the church countered that the arbitration would not be a religious ritual and argued that the three former Scientologists freely agreed to the process when they joined the church.

William Forman, representing the church, said in response to a question that a Scientology justice officer decides which evidence may be submitted in the process, but that his decision may be appealed to the arbitrators, who must be Scientologists “in good standing.”

Forman insisted the church has not declared the plaintiffs to be “subversive persons.”

“I know they have not,” he said. “That simply has not happened.”

After a preliminary hearing on the rape charges against Masterson, Los Angeles County Superior Court Judge Charlaine
Olmedo ruled that Scientology has “an expressly written doctrine” that “not only discourages, but prohibits” its members from reporting one another to law enforcement.

The policy explained why several of the women did not report Masterson’s alleged crimes to the police for more than a decade, the judge found.

Masterson’s accusers testified during the preliminary hearing that the church tried to dissuade them from reporting Masterson to police.

The church has denied it has a policy against reporting fellow members to the police. Masterson, who the lawsuit said has held prominent roles in the church, has pleaded not guilty to the rape charges.

Courts generally uphold religious arbitration agreements just as they do any other form of arbitration. At times, though, courts have objected to religious arbitration awards that violated long-standing public policy, such as child support, or that failed to protect basic procedural rights.

Religious arbitration is most common in the United States among Orthodox Jews, who may allow religious arbitrators to decide issues as diverse as divorce and commerce.

Michael A. Helfand, an expert on religious arbitration, said after Tuesday’s hearing that the court appeared inclined to allow the case to go to religious arbitration.

“I think the court has an intuition that something is awry with this arbitration,” he said. But the attorneys in the case “did not provide the court with an adequate way to differentiate this form of arbitration with other forms of permissible arbitration.”

Helfand, a professor at Pepperdine Caruso School of Law, said he believes the Scientology arbitration agreement is flawed because it says the arbitrators must be “in good standing” with the church, a vague description that a court would be unable to define.