SAN FRANCISCO –
An appeals court in California on Tuesday considered whether an arbitration claim 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 persecuted and molested after complaining to police that they had been raped by actor Danny Masterson, a criminally accused Scientologist. Masterson, who starred in the hit sitcom “That ’70s Show,” was charged with raping three women between 2001 and 2003. Criminal proceedings are pending.
Four women and the husband of one of them also sued the Church and Masterson, accusing them of terrorism, persecution and harassment in order to intimidate them after reporting the alleged sexual assault.
They accused the church of hiring private detectives to monitor, track, film and photograph them, wiretap their phones, hack their email accounts and home security systems, and even kill a dog. The church rejects all harassment.
Scientology says that the former members who sued signed agreements when they joined the Church to settle any claims before a panel of Scientologists.
A court and a panel of the 2nd District Court of Appeal have previously decided that the arbitration agreement can be enforced. The case returned to the appeals court on Tuesday after the California Supreme Court ordered judges to reconsider it.
During a hearing, the appellate judges pondered how, without knowing how the church would conduct the process, they could determine whether the Scientology arbitrators were neutral. One judge suggested that it might make sense to continue the arbitration and allow the losing party to go to court to appeal if the proceedings were biased.
Another judge tried to determine whether the trial was fair and asked about the Church’s rules of evidence.
Marci Hamilton, who represents the plaintiffs, told the court that the arbitration would be conducted “strictly according to the Scientology cannon.”
She argued that religious arbitration could not be imposed on anyone who was no longer a member of the religion.
“This is indeed a direct violation of my clients’ 1st Amendment, the right to leave a religion forever,” she told the court.
Church lawyers countered that the arbitration was not a religious ritual, arguing that the three former Scientologists voluntarily consented to the process when they entered the church.
William Forman, who represents the Church, responded to a question that a Scientology judicial officer will decide what evidence may be presented in the trial, but that his decision can be appealed to the arbitrators, who Scientologists must be “in good standing” .
Forman insisted that the Church did not designate the plaintiffs to be “subversives.”
“I know they didn’t,” he said. “That just didn’t happen.”
After a preliminary hearing on the rape allegations against Masterson, Judge Charlaine. in Los Angeles District Court
Olmedo ruled that Scientology had “an expressly written doctrine” that “not only discourages but forbids” its members from reporting each other to law enforcement agencies.
The policy explained why several of Masterson’s women had not reported alleged crimes to the police in more than a decade, the judge found.
Masterson’s prosecutors testified during the preliminary hearing that the Church tried to dissuade them from reporting Masterson to the police.
The Church has denied having a policy against reporting other members to the police. Masterson, who was charged with a prominent role in the Church, has pleaded not guilty to the rape allegations.
Courts generally uphold religious arbitration agreements as well as any other form of arbitration. Occasionally, however, courts have objected to religious arbitral awards that violate longstanding public order, such as child support, or fail to protect basic procedural rights.
Religious arbitration is most common in the United States among Orthodox Jews, which can allow religious arbitrators to resolve matters as diverse as divorce and trade.
Religious arbitration expert Michael A. Helfand said after Tuesday’s hearing that the court seemed inclined to take the case to religious arbitration.
“I think the court has an intuition that something is wrong with this arbitration,” he said. But the lawyers in the case “did not provide the court with an adequate means to distinguish this form of arbitration from other admissible forms of arbitration”.
Helfand, a professor at the Pepperdine Caruso School of Law, said he believed the Scientology arbitration agreement was flawed because it said that the arbitrators must be “in good standing” with the church, a vague description that a court does not could define.
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