Karen#1
Well-known member
We’re fortunate to have appellate attorney TX Lawyer at the Underground Bunker to help us understand Scientology litigation.
We hope you enjoy this discussion with him!
— The Proprietor
[music]
Welcome back to another conversation with our appellate attorney expert, Texas Lawyer. Welcome back, Tex.
Hey there, Tony. How are you doing?
You know, it's been a little while. A few things have been happening in litigation involving the church, and I thought it's about time we have another conversation to help people understand what's going on. I guess the big one recently... Leah Remini had what I think you and I both felt was a pretty good result from
the appellate court. Scientology had tried to gut her lawsuit. The court did remove a few of her defamation claims, but in general, not only did they send her case back to trial court in pretty healthy shape, but He made some really important statements, some historic language about actual malice, I thought.
Basically a big victory for Leah, but there was that odd detail that it was unpublished. And again, real quick, help people understand what the appeals court means when they issue a ruling that's unpublished rather than published.
Yeah. Yeah. Well, the first thing to recognize is that all of these opinions are actually published these days. Anybody can go read the Leah Remini opinion and understand exactly what the court said in it. The difference is that back in the day, 30, 40 years ago, before all of the Internet and the electronic databases services started up,
courts could decide that they're... That their lesser opinions, the ones they didn't really think were all that important, or that sometimes they just wanted to keep hidden from the public because they didn't like the way the outcome came, that they could designate some of those opinions as unpublished,
and that would keep them out of the actual published written Westlaw reports, the case recorders. And so they've continued that practice, even though all of these opinions are now readily available to anybody with the even Google Scholar will get you to them easily enough. But they still continue the practice because it renders an unpublished opinion
of lesser value to no value when it comes to precedent in the law. So Leah's opinion is out there. Anybody who sees it is going to be able to cite it and know what it says and show how it applies to their case as well. But Leah really wanted to, apparently,
through her attorneys, see if she could get that opinion designated for publication. And unfortunately, even though she made a pretty good argument for it, the Court of Appeals quickly shot that down. For whatever reason, they decided not to publish it in the first place. They're going to stick with that, apparently.
But there's development even on that that we can get into.
Well, so yeah, Leah's attorneys filed a petition with the court. They came up with seven reasons why they felt that this did meet the sort of criteria for an opinion that the court would normally publish and not issue unpublished. And you were particularly impressed by one of those arguments.
It was the one about that this was going to be an ongoing situation, right?
Yes, it's an important matter of importance to the jurisprudence of the state. I forget exactly what the standard was for that publication. And by the way, it's a statutory standard. If they meet any of the statutory qualifications, they are supposed to publish it.
And so what Leah and her attorneys said to the Court of Appeal here is that, look, this is Something that you have acknowledged in the opinion itself is a question of importance to the people of the state. You've recognized that this is a big deal, but more important than that, to my mind,
was showing that they have established here a pattern of conduct on the part of Scientology that is going to keep repeating itself and has repeated itself. And they cited to both the Danny Masterson case and some of the briefing that has been submitted in that case.
As well as the Bixler appeal as examples of fair game being a matter of public concern, not just these private individual plaintiffs. And so I thought they had a pretty good chance and did not work out that way, unfortunately. The court very quickly, within about four or five days, denied the motion for publication.
But part of the California statute here Is that when the Court of Appeal denies publication or denies an application for publication, it automatically gets kicked up to the state Supreme Court to take a look at once that denial gets issued by the Court of Appeal. So it is now pending before the California Supreme Court.
No idea how that's going to come out, but they tend to rule pretty quickly on these things. And she still got hope.
Well, I mean, they're not saying anything publicly about what's going on, but can you hazard a guess as to why these three justices have decided that this does not have lasting importance to the public? Or, you know, what could possibly be their reasoning for For wanting this fairly righteously expressed opinion to be kept unpublished.
Well, a lot of the law in there is not exactly groundbreaking. It's the facts that are what's important to this opinion because they recognize that Scientology actually, according to the evidence at least, engages in exactly this kind of conduct on a fairly routine basis. So what they may be thinking is that this is just such an unusual,
excuse me, unusual application of weird facts to result in this outcome in the case. Excuse me, I've been in deposition all day. My voice is going a little bit. So that may be what they're thinking. If I really wanted to get dark, they could be concerned about Scientology itself.
I mean, I don't know that Scientology has ever gone after judges in the past, but they can't be happy with this opinion. Other than that, I think they probably just figured that this was apart from the Scientology stuff. It's just a routine application of the anti slap statute in
the very familiar standards of First Amendment law when it comes to things like actual malice. Wow.
So, yeah, they denied it. And, you know, I really respect Leah for at least making the attempt because she has said this is not just about her. You know, this is the kind of ruling that can help people in other cases. And they'll probably cite it anyway. But, you know, if it's officially published,
that that makes it a better opportunity for other people.
Yeah, and California's rule doesn't apply, doesn't limit anybody else in other jurisdictions from citing it. They've got equal access to it. It's still persuasive authority if you're, for instance, suing Scientology in Florida or Georgia or wherever else.
Right. Well, right about the same time, the same court, Second Appellate District, made another decision. That's something we've been following, and that is Danny Masterson's criminal appeal. Danny Masterson is currently serving 30 years of life in prison for multiple, two forcible rapes that he was found guilty of in 2023.
And it's on appeal, and all the briefing's been done. They've had the hearing, but at the last minute, The court accepted Scientology's amicus brief, which I still think is such a huge story and something that the other media is generally ignoring. A few outlets are starting to pay more attention to it now.
But generally, the big media that cover Masterson just are not talking about this. And I find that such a mystery that Scientology has made it obvious that They are backing Danny and they have submitted this amicus trying to get him freed from prison.
The state attorney general turned in a response that you and I both thought was very strong. Great. Go ahead.
No, no, it was a great, great response. I loved it.
But then the court gave Danny the last word. He asked for and got permission to file his own response, which was written by Cliff Gardner, his attorney. And it basically argued that the state attorney general's argument wasn't persuasive. The point was, I liked how you put it.
It showed that Danny Masterson and Church of Scientology are exactly on the same page about this whole thing. They're both arguing that his rights were infringed because he was tried in a court that was hostile to his religion. Well, that's a lot of back and forth, but Scientology still wanted one more try.
Scientology applied for yet another response. They also wanted to respond to the state attorney general. And this time the court said no. And the court has said, that's it. This is over. Now they're going to go make a decision. I mean, what does that tell you? Is that anything significant?
No, not really, other than the fact that Danny, as the criminal defendant here, probably has a lot better claim of right to respond to the state's amicus brief. Than Scientology does to reply in support of its own. And we saw the court once before back in December, November,
deny leave to file for Scientology and its front group collection of supporters. And it doesn't really surprise me that they did so again here. Although I think I've mentioned in the past that the usual practice of an appellate court is to just Allow just about any amicus to come in
and file their brief and then have it promptly get ignored. Right.
I don't know. Gardner did bring up some of these issues about the court being hostile to Scientology in the appeal brief itself. So I've asked you about this. Do you think they'll just say, if they deny Scientology, Will they just say denied? No, you said they're going to write a whole thing about it. Yep.
So they may get into this stuff. Don't you think they may get into this stuff, at least to some level? Absolutely.
I don't think they can avoid it. Okay.
That'll be really interesting.
That'll be really interesting. That's going to be a really interesting opinion when it comes out. I expect it to be quite lengthy, quite detailed, because when you're talking about A criminal defendant who's been sentenced to somewhere between three decades and life, the court wants to show itself to have taken everything that
that criminal defendant has to say in defense of himself seriously and to have considered it thoroughly.
Right. And they have 90 days, 90 days from exactly when, when Danny's final response came in or when they denied Scientology. I'm not 100% sure, but either way- I am 100% sure.
I am 100% sure because looking at the docket sheet, what it said when they denied the Scientology reply brief or the reply amicus- Was that the case had been argued and is now being submitted on that date, which I think was August 24th. So sometime probably right before Thanksgiving,
we will be seeing in all probability that court's decision on the merits of Danny's criminal appeal.
Okay, so instead of late October, now we're thinking mid November.
Yeah, and this is, again, for anybody who hasn't heard this before, California has a very unique rule that says that once a case has been, or an issue, an argument, a motion has been, quote unquote, submitted, the court has 90 days to issue its ruling.
So we saw them take almost the full 90 days on the Bixler case, and obviously they had Leah's opinion ready to go, because it came out like 10 or 12 days after the case was submitted. Eight days, Dex. Which tells you they had it written in advance and used that oral argument
to test out whether they thought they had it right. And I don't know whether they adjusted anything or not, but they certainly start
from scratch. That's true. That's true. Speaking of the Bixler case, the other little thing that came in recently, the Jane Doe's, that's the civil lawsuit against Danny Madison and the Church Scientology filed by the Jane Doe's. It's actually been going on longer than all the others. It was filed in 2019, even before Danny was charged criminally.
The Jane Doe's had a wonderful result at the appellate level. Scientology, like with Leah's case, had tried to gut it with an anti-slap. And the court just, they're requiring the tiniest little changes in the lawsuit. But other than that, it's just a complete victory for the Jane Does.
And great, that's wonderful. And then the California Supreme Court blew out Scientology in record time, too.
Well, yes. But that's what I was going to bring up, is that, okay, so the Jane Does won. But Scientology was left wondering, okay, but what about the AI issue? During the briefing in that appeal, John Cucera, attorney for the Jane Doe's, had submitted a response that Scientology claimed showed evidence of hallucinatory AI citations.
Read more
tonyortega.substack.com
We hope you enjoy this discussion with him!
— The Proprietor
[music]
Welcome back to another conversation with our appellate attorney expert, Texas Lawyer. Welcome back, Tex.
Hey there, Tony. How are you doing?
You know, it's been a little while. A few things have been happening in litigation involving the church, and I thought it's about time we have another conversation to help people understand what's going on. I guess the big one recently... Leah Remini had what I think you and I both felt was a pretty good result from
the appellate court. Scientology had tried to gut her lawsuit. The court did remove a few of her defamation claims, but in general, not only did they send her case back to trial court in pretty healthy shape, but He made some really important statements, some historic language about actual malice, I thought.
Basically a big victory for Leah, but there was that odd detail that it was unpublished. And again, real quick, help people understand what the appeals court means when they issue a ruling that's unpublished rather than published.
Yeah. Yeah. Well, the first thing to recognize is that all of these opinions are actually published these days. Anybody can go read the Leah Remini opinion and understand exactly what the court said in it. The difference is that back in the day, 30, 40 years ago, before all of the Internet and the electronic databases services started up,
courts could decide that they're... That their lesser opinions, the ones they didn't really think were all that important, or that sometimes they just wanted to keep hidden from the public because they didn't like the way the outcome came, that they could designate some of those opinions as unpublished,
and that would keep them out of the actual published written Westlaw reports, the case recorders. And so they've continued that practice, even though all of these opinions are now readily available to anybody with the even Google Scholar will get you to them easily enough. But they still continue the practice because it renders an unpublished opinion
of lesser value to no value when it comes to precedent in the law. So Leah's opinion is out there. Anybody who sees it is going to be able to cite it and know what it says and show how it applies to their case as well. But Leah really wanted to, apparently,
through her attorneys, see if she could get that opinion designated for publication. And unfortunately, even though she made a pretty good argument for it, the Court of Appeals quickly shot that down. For whatever reason, they decided not to publish it in the first place. They're going to stick with that, apparently.
But there's development even on that that we can get into.
Well, so yeah, Leah's attorneys filed a petition with the court. They came up with seven reasons why they felt that this did meet the sort of criteria for an opinion that the court would normally publish and not issue unpublished. And you were particularly impressed by one of those arguments.
It was the one about that this was going to be an ongoing situation, right?
Yes, it's an important matter of importance to the jurisprudence of the state. I forget exactly what the standard was for that publication. And by the way, it's a statutory standard. If they meet any of the statutory qualifications, they are supposed to publish it.
And so what Leah and her attorneys said to the Court of Appeal here is that, look, this is Something that you have acknowledged in the opinion itself is a question of importance to the people of the state. You've recognized that this is a big deal, but more important than that, to my mind,
was showing that they have established here a pattern of conduct on the part of Scientology that is going to keep repeating itself and has repeated itself. And they cited to both the Danny Masterson case and some of the briefing that has been submitted in that case.
As well as the Bixler appeal as examples of fair game being a matter of public concern, not just these private individual plaintiffs. And so I thought they had a pretty good chance and did not work out that way, unfortunately. The court very quickly, within about four or five days, denied the motion for publication.
But part of the California statute here Is that when the Court of Appeal denies publication or denies an application for publication, it automatically gets kicked up to the state Supreme Court to take a look at once that denial gets issued by the Court of Appeal. So it is now pending before the California Supreme Court.
No idea how that's going to come out, but they tend to rule pretty quickly on these things. And she still got hope.
Well, I mean, they're not saying anything publicly about what's going on, but can you hazard a guess as to why these three justices have decided that this does not have lasting importance to the public? Or, you know, what could possibly be their reasoning for For wanting this fairly righteously expressed opinion to be kept unpublished.
Well, a lot of the law in there is not exactly groundbreaking. It's the facts that are what's important to this opinion because they recognize that Scientology actually, according to the evidence at least, engages in exactly this kind of conduct on a fairly routine basis. So what they may be thinking is that this is just such an unusual,
excuse me, unusual application of weird facts to result in this outcome in the case. Excuse me, I've been in deposition all day. My voice is going a little bit. So that may be what they're thinking. If I really wanted to get dark, they could be concerned about Scientology itself.
I mean, I don't know that Scientology has ever gone after judges in the past, but they can't be happy with this opinion. Other than that, I think they probably just figured that this was apart from the Scientology stuff. It's just a routine application of the anti slap statute in
the very familiar standards of First Amendment law when it comes to things like actual malice. Wow.
So, yeah, they denied it. And, you know, I really respect Leah for at least making the attempt because she has said this is not just about her. You know, this is the kind of ruling that can help people in other cases. And they'll probably cite it anyway. But, you know, if it's officially published,
that that makes it a better opportunity for other people.
Yeah, and California's rule doesn't apply, doesn't limit anybody else in other jurisdictions from citing it. They've got equal access to it. It's still persuasive authority if you're, for instance, suing Scientology in Florida or Georgia or wherever else.
Right. Well, right about the same time, the same court, Second Appellate District, made another decision. That's something we've been following, and that is Danny Masterson's criminal appeal. Danny Masterson is currently serving 30 years of life in prison for multiple, two forcible rapes that he was found guilty of in 2023.
And it's on appeal, and all the briefing's been done. They've had the hearing, but at the last minute, The court accepted Scientology's amicus brief, which I still think is such a huge story and something that the other media is generally ignoring. A few outlets are starting to pay more attention to it now.
But generally, the big media that cover Masterson just are not talking about this. And I find that such a mystery that Scientology has made it obvious that They are backing Danny and they have submitted this amicus trying to get him freed from prison.
The state attorney general turned in a response that you and I both thought was very strong. Great. Go ahead.
No, no, it was a great, great response. I loved it.
But then the court gave Danny the last word. He asked for and got permission to file his own response, which was written by Cliff Gardner, his attorney. And it basically argued that the state attorney general's argument wasn't persuasive. The point was, I liked how you put it.
It showed that Danny Masterson and Church of Scientology are exactly on the same page about this whole thing. They're both arguing that his rights were infringed because he was tried in a court that was hostile to his religion. Well, that's a lot of back and forth, but Scientology still wanted one more try.
Scientology applied for yet another response. They also wanted to respond to the state attorney general. And this time the court said no. And the court has said, that's it. This is over. Now they're going to go make a decision. I mean, what does that tell you? Is that anything significant?
No, not really, other than the fact that Danny, as the criminal defendant here, probably has a lot better claim of right to respond to the state's amicus brief. Than Scientology does to reply in support of its own. And we saw the court once before back in December, November,
deny leave to file for Scientology and its front group collection of supporters. And it doesn't really surprise me that they did so again here. Although I think I've mentioned in the past that the usual practice of an appellate court is to just Allow just about any amicus to come in
and file their brief and then have it promptly get ignored. Right.
I don't know. Gardner did bring up some of these issues about the court being hostile to Scientology in the appeal brief itself. So I've asked you about this. Do you think they'll just say, if they deny Scientology, Will they just say denied? No, you said they're going to write a whole thing about it. Yep.
So they may get into this stuff. Don't you think they may get into this stuff, at least to some level? Absolutely.
I don't think they can avoid it. Okay.
That'll be really interesting.
That'll be really interesting. That's going to be a really interesting opinion when it comes out. I expect it to be quite lengthy, quite detailed, because when you're talking about A criminal defendant who's been sentenced to somewhere between three decades and life, the court wants to show itself to have taken everything that
that criminal defendant has to say in defense of himself seriously and to have considered it thoroughly.
Right. And they have 90 days, 90 days from exactly when, when Danny's final response came in or when they denied Scientology. I'm not 100% sure, but either way- I am 100% sure.
I am 100% sure because looking at the docket sheet, what it said when they denied the Scientology reply brief or the reply amicus- Was that the case had been argued and is now being submitted on that date, which I think was August 24th. So sometime probably right before Thanksgiving,
we will be seeing in all probability that court's decision on the merits of Danny's criminal appeal.
Okay, so instead of late October, now we're thinking mid November.
Yeah, and this is, again, for anybody who hasn't heard this before, California has a very unique rule that says that once a case has been, or an issue, an argument, a motion has been, quote unquote, submitted, the court has 90 days to issue its ruling.
So we saw them take almost the full 90 days on the Bixler case, and obviously they had Leah's opinion ready to go, because it came out like 10 or 12 days after the case was submitted. Eight days, Dex. Which tells you they had it written in advance and used that oral argument
to test out whether they thought they had it right. And I don't know whether they adjusted anything or not, but they certainly start
from scratch. That's true. That's true. Speaking of the Bixler case, the other little thing that came in recently, the Jane Doe's, that's the civil lawsuit against Danny Madison and the Church Scientology filed by the Jane Doe's. It's actually been going on longer than all the others. It was filed in 2019, even before Danny was charged criminally.
The Jane Doe's had a wonderful result at the appellate level. Scientology, like with Leah's case, had tried to gut it with an anti-slap. And the court just, they're requiring the tiniest little changes in the lawsuit. But other than that, it's just a complete victory for the Jane Does.
And great, that's wonderful. And then the California Supreme Court blew out Scientology in record time, too.
Well, yes. But that's what I was going to bring up, is that, okay, so the Jane Does won. But Scientology was left wondering, okay, but what about the AI issue? During the briefing in that appeal, John Cucera, attorney for the Jane Doe's, had submitted a response that Scientology claimed showed evidence of hallucinatory AI citations.
Read more
TX Lawyer 17: Leah Remini’s lawsuit goes to the State Supreme Court!
We’re fortunate to have appellate attorney TX Lawyer at the Underground Bunker to help us understand Scientology litigation.
tonyortega.substack.com
