Bixler v. Scientology: Reply To Return in Appeal
Bixler v. Scientology: Reply To Return in Appeal
Bixler v. Scientology: Reply To Return in Appeal
v.
Respondent.
1
CERTIFICATE OF INTERESTED ENTITIES
2
TABLE OF CONTENTS
I. INTRODUCTION 6
II. FACTUAL AND PROCEDURAL BACKGROUND 7
A. Petitioners were sexually abused by Defendant Masterson. 7
B. Petitioners were harassed by Defendants after reporting their abuse to
authorities outside of the Church of Scientology. 8
C. When Petitioners filed suit, defendants moved to compel “Religious
Arbitration” based on the agreements that required all arbitrators to be
“Scientologists in good standing.”. 9
D. Defendant Masterson was charged with rape and ordered by a Criminal
Protective Order to have no contact with Petitioners directly or through a third
party. 10
E. Defendant Masterson objected to any discovery propounded by Jane Doe #1
and Defendants refused to agree to a stay. 10
F. Despite the constitutional questions at issue, the trial court granted the
Motions to Compel Religious arbitration. 11
3
TABLE OF AUTHORITIES
CASES
Abbo v. Briski, (Fla. 4th D. Ct. App. Sept. 27,1995) 660 So. 2d1157, 1159-61.. 22,
25, 26
Abbo v. Briskin, (Fla. 4th DCA 1995) 660 So. 2d 1157 ....................................... 25
Abd Alla v. Mourssi, (Minn. Ct. App. 2004) 680 N.W.2d 569, 574 ..................... 14
Aflalo v. Aflalo, (N.J. Super. Ct. Ch. Div. Feb. 29, 1996) 685 A.2d 523, 541 ..... 21
Barrows v. Jackson, (1953) 346 U.S. 249, 254, 258 ............................................ 19
Bayside Timber Co. v. Board of Supervisors, 20 Cal. App. 3d 1, 4-5 (1971). ..... 29
Bowen v. Roy, (1986) 476 U.S. 693, 701-02......................................................... 24
Burton v. Wilmington, (1961) 365 U.S. 715, 722 ................................................. 18
Caviness v. Horizon Cmty. Learning Ctr., Inc., (9th Cir. 2010) 590 F.3d 806, 812
........................................................................................................................... 18
Davis v. Kozak, (2020) 2020 WL 5000760..................................................... 13, 25
Dial 800 v. Fesbinder ........................................................................................... 14
Dial 800, 12 Cal. Rptr. 3d 711, 724 ...................................................................... 22
Easterly v. Heritage Christian Schs., Inc., (S.D. Ind. Aug. 26, 2009) 2009 WL
2750099............................................................................................................. 15
Elmora Hebrew Center, Inc. v. Fishman .............................................................. 17
Elmora Hebrew Ctr., Inc. v. Fishman, (N.J. 1991) 593 A.2d 725, 731-32 ..... 15, 17
Employment Div. v. Smith, (1990) 494 U.S. 872, 877 .......................................... 24
Encore Productions, Inc. v. Promise Keepers ...................................................... 17
Franklin v. White Egret Condo., Inc., (Fla. 4th DCA 1977) 358 So. 2d 1084,
1088-89 ............................................................................................................. 19
Garcia v. Mother Church of Scientology Flag Serv. Org., Inc.et al., (M.D. Fla.
Sept. 20, 2019) No.8:13-cv-220-T-27TBM, 2015 WL10844160 ..................... 22
Gathright v. City of Portland, (9th Cir.2006) 439 F.3d 573, 576 n. 2 .................. 19
Gatton v. T-Mobile (2007) 152 Cal.App.4th 571, 579.......................................... 13
Gen. Conference of Evangelical Methodist Church v. Faith Evangelical Methodist
Church, (Iowa Ct. App. 2011) 809 N.W.2d 117, 124 ....................................... 15
Gen. Conference of Evangelical Methodist Church, 809 N.W.2d 117................. 15
Hale v. Morgan, 22 Cal. 3d 388, 394 (1978) ........................................................ 29
Higher Ground Worship Center, Inc. v. Arks, Inc., (D. Idaho 2011) No. 1:11-cv-
00077, 2011 WL 4738651 ................................................................................ 17
Hurd v. Hodge, (1948) U.S. 24, 31–36 ................................................................. 19
Ismailoff, (N.Y. Sur. Ct. Feb. 1, 2007) No. 342207, 2007 WL431024 ................ 22
Jabri Abri v. Qaddura, (Tex. App. 2003) 108 S.W.3d 404, 412-14 ..................... 14
Jenkins v. Trinity Evangelical Lutheran Church, (2005) 356 Ill. App. 3d 504 .... 15
Jones v. Wolf held that generally applicable legal issues can be reviewed on
“purely secular terms.” (1979) 443 U.S. 595, 604 ............................................ 25
Lizarraga v. City of Nogales, No. CV06474, 2007 WL 4218972 ........................ 30
Lopez v. McMahon, 205 Cal. App. 3d 1510, 1520-21 (1988) .............................. 28
Lugar v. Edmonson Oil Company, Inc., (1982) 457 U.S. 922, 937 ...................... 18
Marriage of Weiss, (Cal. Ct. App. 1996) 49 Cal. Rptr. 2d 339 ............................ 25
Matter of Berger, (N.Y. Sup. Ct. April 6, 1981) 81 A.D.2d 584 .......................... 21
4
Matter of Goldmar Hotel Corp., (N.Y. Sup. Ct. May 25,1954) 283 A.D. 935 .... 21
Matter of Jacobovitz, (N.Y. Sur. Ct. Dec. 9, 1968) 58 Misc.2d 330 .................... 21
Matter of Teitelbaum, 662 (N.Y. Sup. 2005) 10 Misc.3d 659 ............................. 21
Matter of Wertheim & Co. v. Halpert, (1979) 48 NY2d 681, 683........................ 21
Meshel v. Ohev Sholom Talmud Torah, (D.C. 2005) 869 A.2d 343, 346............ 15
Naoko Ohno v. Yuko Yasuma ................................................................................ 18
Nestel v. Nestel, (N.Y. Super. Ct. Mar. 6,1972) 38 A.D.2d 942 ........................... 21
New York Times Co. v. Sullivan ...................................................................... 19, 20
Ortiz v. Hobby Lobby Stores, Inc .......................................................................... 14
Our Lady of Guadalupe Sch. v. Morrissey-Berru, (2020) 140 S. Ct. 2049, 2060 24
Roman Catholic Diocese of Brooklyn v. Cuomo (2020) 141 S. Ct. 63, 67-68 ......17
Shelley v. Kraemer, (1948) 334 U.S. 1, 14 ........................................................... 19
Shelley v. Kraemer, (1948) 334 U.S. 1, 20, 68 ............................................... 19, 20
Sieger v. Sieger, (Sup. Ct., June 29, 2005) 2005 WL2031746 ............................ 21
Spivey v. Teen Challenge of Fla., Inc., (Fla. Dist. Ct. App. 2013) 122 So.3d 986
..................................................................................................................... 16, 20
State v. Deal, 740 N.W.2d 755 (Minn. 2007) ....................................................... 30
Suh v. Superior Court (2010) 181 Cal.App.4th 1504, 1522 ................................. 13
Szetela v. Discover Bank (2002) 97 Cal.App.4th 1094, 1099............................... 13
Weiss, 49 Cal. Rptr. 2d 339 at 347........................................................................ 25
West Virginia State Board of Education v. Barnette, (1943) 319 U.S. 624, 642.. 13
Wisconsin v. Yoder, (1972) 406 U.S. 205, 215 ..................................................... 26
Wisconsin v. Yoder, (1972) 406 U.S. 205, 215-16................................................ 24
Zummo v. Zummo, (Pa. Super. Ct. 1990) 574 A.2d 1130 ............................... 25, 26
STATUTES
CAL CONST. ART. I § 28 section (b)(5) ........................................................ 33
OTHER AUTHORITIES
Catholic Bishop of Spokane, (Bankr. E.D. Wash. 2005) 329 B.R. 304, 315
................................................................................................................. 29
Marriage of Weiss, 49 Cal. Rptr. 2d 339, 341, 347 (Cal. Ct. App. 1996) ... 24
Marriage of Weiss (Cal. Ct. App. 1996) 49 Cal. Rptr. 2d 339, 347 ............ 28
Rex Ahdar, Regulating Religious Coercion, 8 STAN. J. CIV. RTS. & CIV.
LIBERTIES 215, 220-24 (2012) ................................................................. 27
Roman Catholic Archbishop (Bankr. D.Or. 2005) 335 B.R. 842 ............... 30
5
I. INTRODUCTION
Petitioners in this case are victims of violent sexual assault and rape
by Defendant Daniel Masterson (with the exception of Petitioner Bixler-
Zavala who is the husband of Petitioner Carnell-Bixler) on various
occasions. Petitioners Carnell-Bixler, Jane Doe #1, and Jane Doe #2, are
former Scientologists; Petitioner Bixler-Zavala has never been a member of
the Church of Scientology.
6
distress, and loss of consortium, all Defendants except Defendant
Masterson moved to compel arbitration pursuant to their so-called
“arbitration agreements,” which are in reality unenforceable “religious
services agreements” that four Petitioners (Carnell-Bixler, Bixler-Zavala,
Jane Doe #1, and Jane Doe #2) were made to sign when they were
members and/or participated in religious services. (1 EP 113-16; 118-
21;123-26; 128-31; 133-36; 138-41; 143-48; 150-55; 157-162; 164-69;
171-76; 178-83; 185-90). The courts in this case are being asked to enforce
religious retribution against individuals who were raped and who have
rejected the faith.
7
During their relationship, Defendant Masterson “committed multiple acts of
sexual violence and assault against” her, even drugging her wine and
forcing anal sex on her. (1 EP 22).
Petitioner Jane Doe #1 was repeatedly sexually assaulted and anally
raped by Defendant Masterson at his home in April 2003. (1 EP 34-35).
Petitioner Jane Doe #2 was sexually assaulted by Defendant Masterson at
his home. (1 EP 51).
B. Petitioners were harassed by Defendants after reporting their
abuse to authorities outside of the Church of Scientology.
8
Since reporting her abuse, Petitioner Jane Doe #2 has received many
unwanted phone calls and texts, her car has been vandalized, she has been
harassed on social media, and threatened multiple times. (1 EP 52-53).
C. When Petitioners filed suit, defendants moved to compel
“Religious Arbitration” based on the agreements that required
all arbitrators to be “Scientologists in good standing.”.
///
///
///
9
D. Defendant Masterson was charged with rape and ordered by a
Criminal Protective Order to have no contact with Petitioners
directly or through a third party.
After the filing of this lawsuit, on or about June 16, 2020 Masterson
was charged by the Los Angeles District Attorney with three counts of
rape, based on police reports filed by the Petitioners in this lawsuit. (4 EP
1028). The criminal investigation of Masterson, initiated by the Petitioners
in this lawsuit and referenced multiple times in the FAC, has become an
active criminal case. Masterson is facing multiple felony charges for
alleged conduct which forms the factual nucleus of Petitioners’ civil claims
against him.
10
request, citing in part his United States Constitutional rights against self-
incrimination. (4 EP 1032-70). Masterson’s counsel contacted counsel for
Petitioners asking for a stipulation to a stay of discovery pending the
resolution of the criminal case. (5 EP 1198-99). Petitioners would agree to
a stay but only as to all Petitioners and defendants because of the prejudice
to Petitioners in having to proceed to arbitrate their cases without the
participation of defendant Masterson. Counsel for defendants CSI, RTC,
and CCI have refused to agree to a stay of any fashion.
On December 31, 2020, the trial court returned an Order granting the
Motion to Compel Religious services arbitration of defendants’ CSI, CCI,
and RTC as to the claims of Petitioners Chrissie Carnell-Bixler, Cedric
Bixler, Jane Doe #1 and Jane Doe #2. (6 EP 1496-1510). The case of
Plaintiff Marie Bobette Riales was unaffected by this Order. Further,
whether the claims of all Petitioners as to defendant Masterson were
affected by this Order is unclear given that the trial court stated Masterson
may “participate” in religious services arbitration although Masterson never
affirmatively moved to enforce arbitration and no party fully and fairly
briefed the issue before the trial court. Finally, the trial court failed to state
whether the religious services arbitration was being compelled pursuant to
the Federal Arbitration Act (FAA) or the California Arbitration Act (CAA).
The trial court has not clarified its order. On March 9, 2021, the Court of
Appeal denied Petitioners’ petition for writ of mandate filed February 23,
2021.
11
On March 19, 2021, Petitioners’ filed a Petition for Review before
the Supreme Court of California. The following questions were presented:
(1) Does a rape victim and nonbeliever have the right to refuse a
“religious services arbitration” under the First Amendment where
such “arbitration” process specifies that all “arbitrators” shall be
ministers of the religion who are charged with applying that
religion’s “doctrine”?
(2) Does the First Amendment permit a court to force a rape victim who
left the faith to submit to religious services “arbitration” regarding
punishment inflicted upon the victims by the religious organization
for reporting the rape to the authorities?
(3) Are rape victims protected against being forced into a so-called
religious services arbitration with their perpetrator and his agents
during the pendency of the criminal case where: (a) the criminal
court issued a protective order against their perpetrator; and (b) the
California Constitution guarantees against the harassment of crime
victims?
On May 26, 2021, the California Supreme Court ordered that “The
petition for review is granted. The matter is transferred to the Court of
Appeal, Second Appellate District, Division Five, with directions to vacate
its order denying the petition for writ of mandate and to issue an order
directing the respondent superior court to show cause why the relief sought
in the petition should not be granted.”
The Court of Appeal ordered the trial court to show cause on
October 5, 2021, why the relief prayed for in the petition should not be
granted. The Court of Appeal ordered that the return to the order to show
cause, if any, shall be filed on or before July 9, 2021. Respondents filed
their return on that date. The Court of Appeal ordered that a reply, if any,
12
shall be filed on or before August 13, 2021. The Court of Appeal furthered
ordered that the order compelling arbitration is stayed pending resolution of
this matter or until further order of this court.
A. STANDARD OF REVIEW
13
Respondents do not cite to a single case that stands for the proposition that
forcing a non-believer into religious arbitration is permitted under the First
Amendment. The cases to which Respondents cite are materially
distinguishable from this case. Court. See generally, Resp. Memo §B.
Respondents only cite to two California cases in support of their
argument that courts unequivocally enforce religious arbitration agreements
or confirm awards issued by religious panels over First Amendment
objections. Resp. Memo, p.46, §B, ¶2. Respondents first cite to the California
Appellate Court decision in Dial 800 v. Fesbinder, a case where the court
enforced an arbitration award based on Jewish law where the issue in this
case---the right to choose one’s religion--was never raised. There, the parties
did not dispute religious arbitration but sought interpleader of funds in
secular court. (2004) 118 Cal. App. 4th 13, 26 (emphasis added). Respondents
also cite to Ortiz v. Hobby Lobby Stores, Inc., but in that case, as in Dial 800,
there was no discussion of religious arbitration and the court’s decision to
enforce the arbitration agreement was divorced from any First Amendment
considerations. (E.D.Cal. 2014) 52 F.Supp.3d 1070.
Respondents also point to cases from outside California to bolster
their argument, but once again there was no indication in those cases that the
parties objected to religious arbitration, or that a religious organization was
trying to co-opt the courts to wield its beliefs against someone who left the
faith. See Jabri Abri v. Qaddura, (Tex. App. 2003) 108 S.W.3d 404, 412-14
(involving disagreement over whether certain claims fell within the scope of
the agreement but where both parties favored religious arbitration); Abd Alla
v. Mourssi, (Minn. Ct. App. 2004) 680 N.W.2d 569, 574 (confirming an
arbitration award where the party seeking vacatur was unable to establish
fraud but where the parties agreed to arbitrate their differences before an
Islamic arbitration committee). Unlike the present case, nothing in those
cases indicate that a party objected to the religious arbitration, and therefore
14
the state could not coerce a party to participate in religious arbitration in
violation of their First Amendment rights.
Respondents also cite to cases that involved internal religious
disputes, and, therefore, are inapposite. Again, this case was brought by
individuals who no longer accept the faith of the defendants. This case,
therefore, involves an outside party invoking civil law against a religious
entity that harmed them. See, Gen. Conference of Evangelical Methodist
Church v. Faith Evangelical Methodist Church, (Iowa Ct. App. 2011) 809
N.W.2d 117, 124 (one church seeking to enforce arbitration agreement
against another church); Elmora Hebrew Ctr., Inc. v. Fishman, (N.J.
1991) 593 A.2d 725, 731-32 (a synagogue challenging a rabbinical court
determination regarding the contractual employment rights of a rabbi and
other members of congregation); Meshel v. Ohev Sholom Talmud
Torah, (D.C. 2005) 869 A.2d 343, 346 (internal dispute between members of
a Jewish congregation concerning the congregation's governing structure and
the ownership of its property); Jenkins v.
Trinity Evangelical Lutheran Church, (2005) 356 Ill. App. 3d 504 (enforcing
an agreement between an associate pastor with a church and the head pastor
and church to resolve disputes under church bylaws).
While Respondents cite to cases where courts enforced religious
arbitration over a party’s objection, those cases did not consider a Free
Exercise challenge. See, Easterly v. Heritage Christian Schs., Inc., (S.D. Ind.
Aug. 26, 2009) 2009 WL 2750099 at *1 (compelling arbitration under the
Rules of Christian Conciliation but holding that the party opposing
arbitration could challenge the validity of the arbitral decision on the ground
it “manifestly disregards” the law); Gen. Conference of Evangelical
Methodist Church, 809 N.W.2d 117.
Respondents cite only two cases from other jurisdictions compelling
religious arbitration over First Amendment challenges. See, Spivey v. Teen
15
Challenge of Fla., Inc., (Fla. Dist. Ct. App. 2013) 122 So.3d 986; Encore
Prods., Inc. v. Promise Keepers, (D. Col. 1999) 53 F.Supp.2d 1101. These
cases, however, are not binding on this Court, even on questions of federal
law, nor are they persuasive.
First, Respondents cite to Spivey v. Teen Challenge of Florida, Inc.,
which is not on point. Spivey involved the question of the role of an estate
representative who is overseeing an estate where the decedent had entered
into a voluntary arbitration agreement. (2013) 122 So.3d 986. The estate
representative personally objected on First Amendment grounds to the
religious arbitration, but the court held that she was obliged to step into the
decedent’s shoes for purposes of arbitration. “The question is whether
Ms. Spivey’s obligation as personal representative is to stand in [decedent’s]
shoes and comply with an arbitration agreement that no one disputes
[decedent] voluntarily entered.” Id. at 995. The Court concluded that the
plaintiff-representative could not claim the legal right for her personal
religious views to nullify and thereby supersede the religious arbitration
agreement into which the decedent and the facility voluntarily entered. Id.
Unlike in Spivey, it is Petitioners’ fundamental rights that are
presently being violated by the order compelling participation in a religious
arbitration process that would subject non-believers to the laws and religious
services of Scientology. Similarly, there was no indication in Spivey that the
decedent had abandoned his Christian faith or reversed his voluntary decision
to agreement to arbitration. In contrast, Petitioners long ago renounced their
commitments to Scientology and many of the acts underlying Petitioners’
claims occurred after their exit. Notably, the court in Spivey, while
highlighting the voluntary nature of the underlying agreement before them,
cautioned that a religious process should avoid practices that could run afoul
of the Florida Constitution’s Religious Freedom Clause, and that religious
arbitration generally may raise other public policy concerns. Id. at 993-94;
16
see also, FL CONST. ART. 1 §3 (“There shall be no law respecting the
establishment of religion or prohibiting or penalizing the free exercise
thereof. Religious freedom shall not justify practices inconsistent with
public morals, peace or safety.”) (emphasis added).
Finally, Respondents cite to Encore Productions, Inc. v. Promise
Keepers, a case involving two corporations where one corporation argued
that compelling arbitration under the Christian Conciliation Rules would
violate the Free Exercise rights of the corporation’s agents and employees.
(D. Colo. 1999) 53 F. Supp. 2d 1101, 1106, 1112. Though the court
acknowledged that “it may not be proper for a district court to refer civil
issues to a religious tribunal,” the court concluded, with little analysis, that
doing so would be proper “when the parties agree to do so.” Id. In so holding,
the court did not analyze or consider the arguments presented by Petitioners.
Specifically, the court did not consider that one has the right to choose one’s
religion, which includes the right to exit. Instead, the court relied on Elmora
Hebrew Center, Inc. v. Fishman, a case where the court referred a religious
dispute to a religious tribunal as required under the abstention doctrine.
(N.J. 1991) 593 A.2d 725, 731. Elmora is materially distinguishable from
Encore and Petitioners’ case, both of which involve(d) secular disputes. For
this reason, courts have questioned the Encore holding. See, e.g., Higher
Ground Worship Center, Inc. v. Arks, Inc., (D. Idaho 2011) No. 1:11-cv-
00077, 2011 WL 4738651, at *4 n.4 (questioning in dicta
whether Encore was correctly decided).
Respondents cite no cases that directly address the First Amendment
right at issue here: the right of Petitioners to reject a religion and its practices,
without judicial coercion.
///
///
///
17
C. THE FIRST AMENDMENT FREE EXERCISE CLAUSE
PROTECTS PETITIONERS’ ABSOLUTE RIGHT TO CHOOSE
ONE’S RELIGION, INCLUDING THE RIGHTS TO REJECT AND
EXIT A RELIGION, WITHOUT GOVERNMENT COERCION
Petitioners maintain that the trial court violated their First Amendment
rights by compelling participation in religious services arbitration conducted
by Scientologists in good standing and guided by the beliefs of Scientology.
First, Respondents incorrectly argue that judicial enforcement of private
agreements can never amount to state action and thus that enforcement of the
religious arbitration agreement cannot violate Petitioners’ First Amendment
rights. Further, Petitioners’ characterization of the religious services
agreement as a “religious ritual” is supported by the record, and the court
may apply neutral principles of law to determine whether the religious
services agreement is enforceable without violating Respondents’ First
Amendment rights.
1. Judicial Enforcement of Religious Arbitration Agreements Against
Non-Believers Amounts to State Action Subject to Constitutional
Scrutiny
Petitioners satisfy the Fourteenth Amendment’s state-action
requirement so long as the “conduct allegedly causing the deprivation of a
federal right [is] fairly attributable to the State.” Lugar v. Edmonson Oil
Company, Inc., (1982) 457 U.S. 922, 937; see also, Caviness v. Horizon
Cmty. Learning Ctr., Inc., (9th Cir. 2010) 590 F.3d 806, 812. There is no
precise formula for discerning state action, rather “[o]nly by sifting facts and
weighing circumstances can the nonobvious involvement of the State in
private conduct be attributed its true significance.” Burton v. Wilmington,
(1961) 365 U.S. 715, 722.
Respondents’ reliance upon Naoko Ohno v. Yuko Yasuma to argue that
judicially enforced arbitration agreements can never amount to state action
is misplaced. (9th Cir. 2013) 723 F.3d 984. The question in that case was
18
whether the courts’ recognition and enforcement of a foreign damages award
could transform the underlying foreign court’s judgement into domestic state
action subject to constitutional scrutiny. Id. at 998-1001. While the Naoko
court answered this question in the negative, the court explicitly states that
“decisions of a domestic court in the United States do constitute
governmental action.” 723 F.3d at 994. The court explained further that “the
action of state courts and of judicial officers in their official capacities [has
long been] regarded as action of the State within the meaning of the
Fourteenth Amendment.” Id. at 994 (citing Shelley v. Kraemer, (1948) 334
U.S. 1, 14). The same is true for federal courts. Id. (citing Gathright v. City
of Portland, (9th Cir.2006) 439 F.3d 573, 576 n. 2;- cf. Hurd v. Hodge, (1948)
U.S. 24, 31–36; Franklin v. White Egret Condo., Inc., (Fla. 4th DCA 1977)
358 So. 2d 1084, 1088-89 (holding judicial enforcement of a private
agreement is state action)).
The United States Supreme Court first held that judicial enforcement
of a private right or obligation can constitute state action triggering
constitutional scrutiny in Shelley v. Kraemer, (1948) 334 U.S. 1, 20, 68,
which held that racially restrictive covenants in private contracts could not
be enforced by the courts. See also, Barrows v. Jackson, (1953) 346 U.S.
249, 254, 258 (applying same state action principle to court’s award of
damages for violation of discriminatory private contract). Although
Respondents note that the Shelley holding has generally been confined to the
context of discrimination claims under the Equal Protection Clause, there is
no indication in either Shelley or Naoko that the state action inquiry could
not be applied in the context of First Amendment Religion Clause challenges.
Resp. Memo, p.51-52, §C (1). This prospect is support by the United States
Supreme Court holding in New York Times Co. v. Sullivan, where a court
order that infringed a constitutional right—there, free speech—constituted
“state action” regardless of the “private” nature of the litigation. (1964) 376
19
U.S. 254, 265-66. It flows from the Court’s holding that the denial to
adequately protect First Amendment rights renders the reviewing court the
“state actor.”
Respondents’ reliance on Spivey to limit the holding of Shelley is
misplaced. Id. As Petitioners note infra §B, the signatories to the agreement
in Spivey did not object to religious arbitration and thus there was no state
action compelling a signatory to the agreement, against their will, to engage
in a religious arbitration procedure. 122 So.3d 986. Further, the court
indicated that had the decedent objected to the arbitration that the case might
raise serious religion clause questions. 122 So.3d at 991-93.
Respondents rely on cases that are materially distinguishable, if not
entirely inapplicable, to Petitioners’ case which, unlike those previously
before the courts in this state, contemplates the liberty interests afforded to
Petitioners as signatories to the religious arbitration agreements. As the court
in Shelley holds, private parties to a contract must comply with constitutional
requirements should they wish for their agreement to be enforceable in court.
Respondents are free to believe what they choose, but they may not coopt the
courts into imposing on Petitioners’ beliefs they now reject by imposing on
them religious services arbitration.
20
While the action of a civil court enforcing religious arbitration or
confirming or voiding a decision by a religious tribunal would seem to raise
clear First Amendment concerns, the vast majority of court opinions
reviewing the enforceability of religious arbitration agreements do not
address this issue at all. See, e.g., Nestel v. Nestel, (N.Y. Super. Ct. Mar.
6,1972) 38 A.D.2d 942 (“[J]udicial process is more broadly gauged and
better suited [than arbitration] in protecting [a child’s best interests]”);
Matter of Jacobovitz, (N.Y. Sur. Ct. Dec. 9, 1968) 58 Misc.2d 330; Matter
of Berger, (N.Y. Sup. Ct. April 6, 1981) 81 A.D.2d 584; Matter of Goldmar
Hotel Corp., (N.Y. Sup. Ct. May 25,1954) 283 A.D. 935. Other courts side-
step First Amendment analysis by simply refusing to enforce religious
arbitration agreements on public policy grounds. See, e.g., Matter of
Teitelbaum, 662 (N.Y. Sup. 2005) 10 Misc.3d 659, (“Arbitration agreements
are unenforceable where substantive rights, embodied by statute, express a
strong public policy which must be judicially enforced”) (citing Matter of
Wertheim & Co. v. Halpert, (1979) 48 NY2d 681, 683).
22
3. Petitioners’ Characterization of the Arbitration Agreement
as A Religious Service or Ritual Is Supported by The
Record
Petitioners correctly classified the religious arbitration required by the
“Agreements” as a religious service or ritual. The trial court stated and the
Respondents’ acknowledged that Petitioners signed multiple Religious
Services Enrollment Agreements affirming their dedication to Scientology
and agreeing to resolve disputes within Scientology. Farny Decl. in support
of CSI Motion, Exhibits 7-10. The agreement to arbitrate and Petitioners’
affirmation of Scientology are not severable−Petitioners’ ability to
participate as members in the Church was predicated on their consent to
religious services. Notably, the agreements establish the nature of that
consent as memorializing Petitioners’ “intention to participate in Scientology
Religious Services only for the purposes of self-improvement and spiritual
advancement,” Bixler Agreements, §5 (emphasis added), and “to achieve
spiritual betterment.” Doe 2 Agreement, § 13.
Moreover, the Religious Services Enrollment Application Agreement
and General Release documents expressly state that any dispute subject to
the agreements would be “by [their] very nature” “a matter of religious
doctrine.” Farny Decl. in support of CSI Motion, Exhibit 9. This language
alone provides sufficient evidence on the record that the arbitration
agreements were religious services or rituals, notwithstanding that the
religious arbitration will be adjudged by members in good standing in the
Church of Scientology and will be governed according to the doctrine and
bylaws of the Church.
Despite Respondents’ protestations, the religious arbitration at issue
is not just tangentially impacted by religious doctrine—it is defined by it. See
generally, 1 EP 185-90. The vehicle by Petitioners and other signatories of
23
such agreements must address their religious disputes may thus be
appropriately referred to as a religious act.
4. The Abstention Doctrine Does Not Apply to the Facts of this Case
and Courts Can Apply “Neutral Principles of Law” to Adjudicate
the Parties’ Purely Secular Disputes
The First Amendment’s guarantee that “Congress shall make no law .
. . prohibiting the free exercise of religion” holds an important place in our
scheme of ordered liberty, but our courts have steadfastly maintained that
“[n]ot all burdens on religion are unconstitutional.” Bowen v. Roy, (1986)
476 U.S. 693, 701-02; see also, Employment Div. v. Smith, (1990) 494 U.S.
872, 877; Wisconsin v. Yoder, (1972) 406 U.S. 205, 215-16 (“Although a
determination of what is a ‘religious’ belief or practice entitled to
constitutional protection may present a most delicate question, the very
concept of ordered liberty precludes allowing every person to make his own
standards on matters of conduct in which society as a whole has important
interests.”).
24
Clauses are not a refuge for criminal or tortious behavior that harms the
vulnerable.
25
Amendment analysis undertaken in that case applies equally to the
enforceability of religious arbitration agreements. The court in Weiss
considered whether a party is contractually bound by their Declaration of
Faith to raise their child in a certain religion. 49 Cal. Rptr. 2d 339. In holding
that the agreement was not legally enforceable in view of the party’s
inalienable free exercise rights, the Weiss court explained, “only those
interests of the highest order and those not otherwise served can overbalance
legitimate claims to the free exercise of religion.” Id. at 342 (citing Wisconsin
v. Yoder, (1972) 406 U.S. 205, 215). The court’s decision was informed by
this very “fundamental principle.” Id.
Likewise, the court in Zummo refused to enforce a similar prenuptial
agreement over the objections of one of the parties for reasons that
“enforcement would be contrary to a public policy embodied in the First
Amendment Establishment and Free Exercise Clauses (as well as their state
equivalents) that parents be free to doubt, question, and change their beliefs.”
574 A.2d at 1144; see also, Abo, , 660 So. 2d at 1159 (explaining that the
concerns related to enforcement are even greater “when the parent to be
compelled later suffers . . . a genuine, good faith change of religious
conscience.”). In so holding, the court noted that religion is a “lifelong
dynamic process” and that “the First Amendment specifically preserves the
essential religious freedom for individuals to grow, to shape, and to amend
this important aspect of their lives” and that these freedoms “may not be
bargained away.” Id. at 1146-48. As the court in Abo explains, “[w]e would
reduce the right to the free exercise of religion by half if we did not recognize
the right to change one’s religious mind.” 660 So.2d at 1159.
The Religious Services Arbitration agreement in this case is
unenforceable, because Petitioners have the inalienable right to change their
minds about religion, and they have. The trial court has compelled the
26
Petitioners to adhere to a faith they now reject, which is a plain violation of
the First Amendment.
D. COERCED RELIGIOUS PRACTICES ARE NOT ENTITLED TO
CONSTITUTIONAL PROTECTION UNDER THE FIRST
AMENDMENT’S RELIGION CLAUSES
27
by compelling Scientology arbitration only if the primary purpose of the
assistance is secular, the assistance neither promotes nor inhibits
Scientology, and providing such assistance would not excessively entangle
Scientology and the state. Lemon v. Kurtzman, (1971) 403 U.S. 602, 612-
613. Respondents’ arguments fail the Lemon test, and this Court may not
coerce Petitioners back into Respondents’ fold.
E. THE ARBITRATION ORDER VIOLATES BOTH MARSY’S
LAW AND THE PROTECTIVE ORDER
28
several times examined constitutional issues raised for the first time on
appeal” or in cases where there are important issues of public policy, such
as in this case. Hale v. Morgan, 22 Cal. 3d 388, 394 (1978); Bayside
Timber Co. v. Board of Supervisors, 20 Cal. App. 3d 1, 4-5 (1971).
2. The Arbitration Order Violates Marsy’s Law
29
them to sit for an interview, deposition, or the equivalent thereto during the
religious ritual that is Scientology’s religious arbitration. The context in
which these violations occur—on the street or during a Scientology
religious ritual—is of no moment when it comes to the sacred constitutional
guarantees of Marsy’s Law. Instead, what matters is a violation or threat of
a violation of Marsy’s Law. Here, by being forced to undergo religious
arbitration, Petitioners, who are no doubt victims in the parallel criminal
case, would be forced to endure violations of Marsy’s Law at the hands of
their abuser, the criminal defendant, and those operating on his behalf. The
criminal defendant, and the Church which operates to support him, would
not use this arbitration process for any other purpose other than to subvert
and circumvent the criminal discovery process, all in violation of the
guarantees owed to Petitioners under Marsy’s Law.
The attempts by Respondents to undermine the constitutional
provisions and cases cited by Petitioners are unavailing. The propositions in
each case cited are unassailable no matter how hard Respondents may try,
and each leads to the same conclusion: a crime victim’s rights are sacred
and no process, criminal, civil, or religious, should be used to subvert them,
and especially not with the imprimatur of the court. See State v. Deal, 740
N.W.2d 755 (Minn. 2007) (staying civil discovery depositions of a minor
sexual assault victim by a criminal defendant, finding that the state and the
public had a compelling interest in protecting minors and victims of sexual
abuse that outweighed any public interest in the integrity of the criminal
and civil process); State v. Lee, 245 P.3d 919 (Ariz. Ct. App. Jan. 13, 2011)
(“victims retain their constitutional right to refuse defendant’s request for a
deposition under Arizona’s Victim Bill of Rights” where the defendants in
a criminal action attempted to force a deposition of the victim in a parallel
civil lawsuit); Lizarraga v. City of Nogales, No. CV06474, 2007 WL
4218972, at *3 (D. Ariz. Nov. 29, 2007) (order) (staying a civil case
30
because the risk of mental and emotional harm to the victim “outweighed
the disadvantage to the Defendant of not proceeding with the civil case.”).
3. The Arbitration Order Clearly Violates Judge Espinoza’s
Protective Order
Finally, Respondents claim that the arbitration order would not run
afoul of the protective order, entered in the parallel criminal case by the
judge overseeing that matter as a mechanism to protect Petitioners from
contact by their rapist. Their arguments in support of their position are
laughable.
Respondents first claim that because the Protective Order does not
specifically mention the Church Defendants that the arbitration cannot
offend the order. This is untrue for two reasons. First, the Church
Defendants clearly would be third parties acting on behalf of Masterson.
Plaintiffs’ First Amended Complaint alleged that Masterson and the Church
Defendants were agents of the other and the Church Defendants adopted
this very position before the trial court. 5 EP 1378 (counsel for the Church
of Scientology referring to Masterson, “[a]s our agent, he does not qualify
as a third party under section 1281.2(c)”) (emphasis added). The trial court
recognized as much. 6 EP 1509. Furthermore, the reality is that the trial
court, sua sponte and without any briefing from any party, ordered that
Masterson participate in the religious arbitration. Second, whether or not
the Church Defendants would then be acting as third parties on behalf of
Masterson (and there is no question they would be) then becomes irrelevant
to the analysis as the trial court is compelling Petitioners to have direct
contact with criminal defendant Masterson, including but not limited to
being questioned by Masterson and/or his representative outside the
criminal justice process. Therefore, the religious arbitration proceedings, as
specifically crafted sua sponte by the trial court, violate the protective order
on its face.
31
Respondents then argue that because arbitration is not specifically
mentioned in the protective order that the religious arbitration proceedings
ordered by the trial court cannot violate the protective order. Once again,
their argument misses the mark. The protective order put in place by Judge
Espinoza is crystal clear: there is to be no contact between criminal
defendant Masterson or third parties on his behalf with Petitioners. There is
nothing to analyze in this regard as the language of the protective order is
absolute. The religious arbitration ordered by the trial court would violate
this provision of the protective order. Merely because the criminal trial
court did not identify the myriad ways in which there could be contact from
Masterson or third parties on his behalf or the myriad ways in which the
order could be violated does not mean that the criminal trial court intended
to exempt the religious arbitration proceedings, which had not yet even
been ordered by the trial court, from the terms of the order. Any contact—
even voluntary contact on the part of Petitioners—would violate the terms
of the order.
Finally, Respondents argue that Petitoners should be forced to turn
to the arbitration panel for protection. The religious arbitration procedures
at issue here are designed to harass and terrorize non-believers such as
Petitioners. 5 EP 1117 – 1126. The arbitration panel may be composed only
of Church members in good standing. Id. This could even include
Masterson himself. Id. To suggest that Petitioners must turn to the stacked
deck of a panel of religious arbiters when they have already been given the
protections of the criminal trial court by way of the protective order is
nonsensical. Respondents then go on to admit that violations of the
protective order are bound to occur in their religious arbitration proceedings
but suggest this is acceptable because contact between parties and witnesses
in their religious arbitrations are inevitable and that this is not unique. This
is, of course, hardly the case and Respondents fail to produce a single
32
example of a circumstance where any arbitration, religious or otherwise,
was conducted while a concurrent criminal prosecution was ongoing that
had in place an absolute bar to contact between crime victims and a
criminal defendant or his representatives such as the circumstances that
exist here. Respondents cannot be permitted to chalk up violations of a
criminal protective order such as the one at issue here as routine and
inevitable. Judge Espinoza’s words, no matter what Respondents may
claim, have meaning and are supported by the force of law.
33
VERIFICATION
_____________________
Robert W. Thompson
Attorney for Petitioners
34
CERTIFICATION
By: _____________________________
Robert W. Thompson
35
PROOF OF SERVICE
(C.C.P. §1013(a), 2015.5)
Andrew B. Brettler
Lavely & Singer, P.C.
2049 Century Park E., Suite 2400
Los Angeles, California 90067
Email: [email protected]
Attorney for Defendant Daniel Masterson
36
I, the undersigned, also hereby declare under penalty of perjury as
follows: I am a citizen of the United States, and over the age of eighteen
years, and not a party to the within action, my business address is 700
Airport Boulevard, Suite 160, Burlingame, California 94010. On this date, I
caused to be mailed this REPLY TO RETURN TO ORDER TO SHOW
CAUSE ON PETITION FOR WRIT OF MANDATE:
Los Angeles County Superior Court (via USPS)
Central District, Stanley Mosk Courthouse, Dept. 57
111 North Hill Street
Los Angeles, CA 90012
By: _____________________________
Robert W. Thompson
37
Court of Appeal, Second Appellate District
Daniel P. Potter
Electronically FILED on 8/13/2021 by Karla Dominguez, Deputy Clerk
PROOF OF SERVICE
STATE OF CALIFORNIA
California Court of Appeal, Second
STATE OF CALIFORNIA
Appellate District
California Court of Appeal, Second
Appellate District
Case Name: Chrissie Carnell Bixler et al. v. Superior Court
of Los Angeles County et al.
Case Number: B310559
Lower Court Case Number: 19STCV29458
At the time of service I was at least 18 years of age and not a party to this legal
1.
action.
This proof of service was automatically created, submitted and signed on my behalf
through my agreements with TrueFiling and its contents are true to the best of my
information, knowledge, and belief.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
8/13/2021
Date
/s/Robert Thompson
Signature