I have not had much time to dissect and comment on the order from Judge Barber in the Baxter/Paris case, sending them to scientology “arbitration,” so this is a bit stale. I was prompted to do this now by the request from the p[plaintiff’s lawyers to certify Judge Barber’s ruling for appeal to the 11th Circuit. The quirks of the system do not allow an appeal from his order — as it has not technically ended the case. It is now “stayed” pending the so-called arbitration. But because of the important and unique issues this order presents, they are asking the judge to certify his order for Appellate review.
Plaintiff’s Motion to Certify Order for Appeal
Before I get into any thoughts about what is wrong with Judge Barber’s ruling, I want to note the following statement reported in the Tampa Bay Times which speaks more loudly than anything of the complete sham that has been perpetrated on this and the other courts that have ruled in favor of scientology’s “arbitration” proceedings:
“We won,” Scientology spokesperson Ben Shaw said in a statement. “This decision is another victory for the Church. The judge has rejected plaintiffs bringing false and scurrilous allegations against the Church in court.”
This is the statement from the spokesperson for the organization that is supposed to be conducting this “fair” “arbitration.” He said what everyone familiar with scientology already knew and the courts have turned a blind eye to. Sending any case to scientology “arbitration” means they WON. The “judge has rejected plaintiffs false and scurrilous accusations” — by sending this to arbitration??? He doesn’t think he has “rejected” anything and in his order even comments on these allegations and how shocking they are. Of course, the outcome of a scientology “arbitration” is a foregone conclusion. The plaintiffs have already lost. Scientology gets to choose all the arbitrators who must be scientologist in good standing (meaning they follow what scientology tells them to do). They get to make up the rules of how the sham “arbitration” will be conducted. They get to approve the “findings.” And they already know the outcome before it starts.
How would you feel if you were on the other side of this “arbitration”? This is what the courts think is fair?
Scientology is SO brazen and convinced they can do anything they want, that they announce this in the media. We WON! And the “arbitration” hasn’t even taken place…
Now to Judge Barber’s ruling.
See my earlier post about the problem with Conservative judges.
Scientology “Arbitration”: They make up the rules as they go along
Religious Protections Run Amok
Scientology and Legal Conservatives
Conservatives tend to be strict constructionists when it comes to the law. What this means in layman’s terms is that rather than creating “new law” they try to decide cases based strictly on “precedents.” This a judicial bent that is particularly harmful for plaintiffs and particularly helpful for scientology in matters relating to so called “religious arbitration.”
And it could not be more apparent in this order requiring the Baxters and Valeska Guider to be subjected to a scientology sham “arbitration” proceeding rather than having their claims heard before an impartial jury.
His reasoning for this is based entirely on case law precedent — citing to the same things the Garcia opinion did (first post above “they make up the rules as they go along,”) — courts favor arbitration (even though this is “arbitration” in NAME only and bears no resemblance to any arbitration ever contemplated) and courts “cannot entangle themselves in controversy about church doctrines” and thus are “forbidden” from reviewing what the claimed arbitration procedures are, no matter how one-sided or insane they are. In theory, if scientology policy called for dunking people like they used to do to witches, courts would not be able to second guess the procedure as their “religious right” to conduct arbitration any way they want.
There is NO PRECEDENT for a “scientology arbitration” (because before Garcia no such thing had ever existed) the 11th Circuit tried to shoehorn “scientology arbitration” into the case law covering arbitration in general. Typically arbitration is conducted by impartial former judges or agreed upon neutral parties, not bound by their religious beliefs to try to destroy their enemies. In this case those seeking justice against scientology are “the enemy.” So, to apply the laws created for “normal arbitration” to the scientology version of “arbitration” is a travesty of justice.
Because the 11th Circuit ruled in favor of scientology in the Garcia case, Judge Barber relies on their Garcia ruling to determine his outcome here. But he compounds his errors as he fails to differentiate between the two cases — the Garcia’s were ADULTS who did not live in scientology facilities and were not members of the Sea Org. The “Agreements” that (wrongly) bound the Garcias to arbitration were for services they PAID FOR (even though the only money they were asking be returned was for services they DIDN’T take and thus didn’t sign a specific agreement about). Here, the victims were minors, held against their will and under constant duress and never paid for any services (as they were Sea Org members). But, there is now “precedent” for enforcing “scientology arbitration.”
Even Judge Barber seems to understand how outrageous his decision is in light of the circumstance of the case.
“An uninterested observer reading the amended complaint would likely be surprised and shocked by the conduct alleged. But under existing law, Plaintiffs are limited to seeking relief through arbitration within the Scientology organization itself, not through the courts. This is what the law appears to require even where, as here, Plaintiffs allege they were forced to sign the agreements – enforceable for a billion years – under duress. An uninterested observer might also find such a limitation on access to the courts to be surprising and shocking, but such a limitation appears to be required under governing law.”
Wow, he can’t do ANYTHING. And he goes on:
“Under existing law, this Court’s hands are tied.”
Perhaps he could have read the dissenting opinion in the 11th Circuit decision to see how he COULD HAVE done something about this and stood up for what is fair and equitable. That judge saw through the BS, but was outvoted by the two other justices on the panel.
Judge Barber took the easy road that won’t ruffle any conservative feathers.
You know Judge Barber, there were once “precedents” that upheld segregation too. Precedents are NOT always right. Facts and circumstances, equity and justice matter too.
Valeska Paris and Laura and Gawain Baxter deserve a fair trial of their claims. Not to be forced back into an organization they escaped from to undergo more of their phony, traumatizing rituals.
Order on Motions to Compel Arbitration and to Dismiss
For these terrible rulings by judges in these cases, you can thank the following people
Donald Trump
Mitch McConnell and Republican senators… including the “moderate” ones
The federalist society and conservative donors
Certain Senate Democrats who keep things like the filibuster in place, effectively giving a free veto to republicans and stopping real reform.
Red States – we are looking at you.
Even after FDR got a lot of opposition to putting more seats on the Supreme Court, at least the justices changed their tune and actually started upholding the New Deal legislation. How likely is that with our current Supreme Court?
And as revolutionary as the US Constitution and the Bill of Rights was in the late 18th century, maybe we need to stop treating a 240 year old document written by predominantly white, property-owning men like its an LRH policy letter.
I think the best way to attack this is to target either the original contract as not being valid or look to the statute and try to get scientology arbitration declared invalid.
Could a company require an ex-employee to be judged by an arbitrator from the company, who is not legally bound to be neutral? Even in a dispute with the company? What about declaring that the board of directors are the arbitration panel for any disputes with the company? At a certain point, there has to be some minimal standard for arbitration.
If the Judge is using precedent to send it back to Arbitration where is the precedent he/she can call on to stop it going back to Arbitration. In cases like these, lawyers need to go armed with all the cases that demonstrate that Arbitration is not the only logical outcome. Only one case needs to go against Scientology and then the house of cards will tumble. I am sure the Judges are looking for an excuse not to send it to Arbitration but right now it doesn’t appear that they are being presented with one.
“Sigh.”
The judge refers to “existing law,” which is much of the problem – the Federal Arbitration Act fails to protect adequately against abuse and injustice, and improper “limitation on access to the courts.” Congress recently fixed some of that regarding particularly egregious circumstances, but a broader legislative overhaul of the act is necessary to really address the broader problems. Still, courts ought to rule that it’s unconstitutional for courts to delegate authority to private arbitration that doesn’t guarantee fundamental rights such as impartial jurists and access to counsel – and help spur a fix by Congress.
In my first year of law school, I was taught that unconscionable contracts are not enforceable. The court here acknowledges that the complaint alleges surprising and shocking conduct. If the facts here are not unconscionable, then nothing could meet that standard.
Indeed, if a billion year contract is enforceable then why limit it? I can only imagine what I agreed to — or what I might agree to — within that time.
I can see Judge Barber becoming $camology’s go-to judge for anymore cases of this type. When you find a good thing, stick to it.
This is not a conservative vs liberal issue. Case precedence is SOP from local courts all the way to the Supreme Court, and has probably been that way since Marbury vs Madison in 1803. Nowadays, with most courts overloaded with cases, I suspect that case precedence has become a convenient way to shuttle people through the legal system. My cynical view is that justice is a bonus if you happen to be lucky enough to get it. Saving time and money seems to be the primary goal.
Mike, I think you incorrectly state what a conservative or strict constructionist believes. Look into it , because it’s almost the exact opposite of what you said.
I am completely baffled by the rulings in this, the Garcia case and others in regards to religious arbitration (no matter WHAT was signed or earlier ruled) as the senior law is the Constitution. Ordering a person to a religious arbitration in a religion they not only no longer believe in, but now actively oppose, is a direct violation of one’s right to religious freedom as stated in the First Amendment. They are being ordered to participate in a church action against their will .
A conservative would go by the Constitution, not a previous ruling, which is almost bogus on its face. A judge could simply rule with the CONSTITUTION as the earlier ruling and dare the other side to take it as high as the Supreme Court.
You would think so. But these conservative judges don’t want to rock the boat. And the conservative boat includes protecting the rights of churches to do as they wish. It’s a very effective lobby. Just look at the USSC… it’s probably the worst Tim we in history to take a challenge on a ruling like this to the USSC.
The judge sends the abused to the abuser to get condemned and further abused by their sham-arbitration.
What a weird and perverted ‘justice’ system.
Totally true pluvo. Very well said.
We don’t have a justice system. We have a LEGAL system — true justice is an unattainable thing, because nobody can truly know another’s heart. So the legal system that has been built, out of the ruins of the reign of King Richard (who was an idiot) and John (who was a greedy evil little… Well, Miscavige). Until humans can read minds, the system we have is the best that has ever been. By and large, with honest people in charge, the legal system is good.
The goal of this system, however, is not justice but law. And there will always be those who learn to game the system, to either twist laws to allow them to do evil, or to use those laws to be able to gain the advantage over their fellow man. There will also always be the weak, the ones who get gamed, who are taken advantage of. Unfortunately, these politicians — and I include judges in this as well, tend to be lily-livered people-pleasers who are unwilling to take a stand for that which they KNOW is right, simply because they think someone will dislike them. It makes it worse that a full year or more of most tenures in elected office is spent trying to getnre-elected, and especially in those times those politicians are going to go into full-om ostrich mode, hoping the problem will just go away.
The system isn’t perfect, and people are not perfect either. Unless we vote in people with spines, this will continue to be the norm in this legal system.
,,
Ah, yeah, “legal” system; of course. Thanks for the (political) lecturing.
You make a (political) assertion, I make an assertion. Lecturing? Not really. Words matter.
But you can be right if you really, really have to be.
Remember that everything Hitler did was perfectly legal.
Facts are toxic to the organization.
Outstanding points Mike. Are we going to hear from Mayor Bass at all on any efforts to get Washington to look at these travesties of justice? I know she seemed concern during her last term in Congress. I’ve been writing to my members of Congress with absolutely no response. I try to be fair, impartial (I was never a Scientologist after all), and used the facts regarding their abuses of people and their 501 C(3) status.
I know something can be done, but it’s going to take some political champions to jump on board from both sides of the aisle to effect change. This is so frustrating to watch happen.