January 2009 Archives

I realize that we're trundling on down the procedural rabbit hole here, and it's pretty easy to get lost, so let me start by providing an enumerated roundup of where we are and how we got here.

1. In November, 2008, Godelman and Le Shay filed its 3d Amended Complaint, alleging wrongful termination [pdf] against Diskeeper. Among the relief requested is a prospective injunction which would prevent Diskeeper from requiring present and future employees to take Hubbard Management Technology courses.

2. On December 10, 2008, Diskeeper moves to strike [pdf] Godelman's prospective injunction request, arguing that it is barred as a matter of law, an argument I believe they fell far short in demonstrating.

3. On January 13, 2009, Godelman opposed Diskeeper's motion to strike, arguing that the prospective injunction request is permitted by law and that the injunction request was not "irrelevant, false or improper," which is the legal threshold one must establish in order for the court to strike material from a pleading.

3A. After I posted item #3, I received a letter from Diskeeper's counsel, vaguely threatening me with having violated a court ordered confidentiality stipulation and requesting that I retain 'all correspondence related to this matter.' I surmised in an ARS post that Diskeeper's sensitivity was likely due to the presence of Exhibits C & D from Godelman's opposition (item #3 above). Exhibit C contained selected pages from the LRH Organization Executive Course, and Exhibit D was excerpted transcripts of Craig Jensen's deposition.

This brings us up to date, and brings us to the next chapter of the evolving procedrual saga:

4. Diskeeper's Reply to Godelman's opposition [pdf], along with a, wait for it... an Objection and Request to Strike Evidence Submitted by Plaintiffs in Support of Opposition to Diskeeper Corporation's Motion to Strike.

The Reply first argues, in somewhat convoluted fashion, that (1) Godelman failed to address Diskeeper's argument that a business may adopt a religious practice into its business model; (2) a total lack of authority notwithstanding, the federal standard of review for California's Labor Law (FEHA) with respect to the free exercise of religion should be strict scrutiny, because FEHA's "direct purpose and effect is to regulate or limit religious practice"; and (3) a total lack of authority notwithstanding, California's Constitution mandates strict scrutiny with respect to religious free exercise questions.

If the above doesn't make sense to you, it's not you--it really doesn't make sense. Diskeeper's argument that the plaintiffs requested injunction "would violate both statutory and First Amendment and California constitutional protections of an employer's right to incorporate religious practices in the workplace" (a) utterly fails to account for plaintiffs' free exercise interest, the presence of which renders a motion to strike as entirely improper, given that competing free exercise interests cannot effectively be weighed without trial; and (b) even if plaintiff's' free exercise interest was not present, Diskeeper's argument for application of a strict scrutiny standard is dubious at best, since far a better argument can be made that FEHA is a neutral law of general applicability, and does not, as Diskeeper contends, target and/or regulate religious practice.

As noted above, Diskeeper also filed an Objection and Request to Strike Evidence, which seeks to strike Exhibits C & D from Godelman's motion, as well as certain statements made by Diskeeper's attorney, Barry Kaufman. Their basis for this argument is these items are unauthenticated and improperly admitted extrinsic evidence. Kaufman's affirmation is not being offered as evidence, of course [the statement is, verbatim: "discovery has by now unequivocably confirmed that new employees at Diskeeper are required to study, learn and apply the so-called 'Hubbard Management Technology' in performance of their work for Diskeeper (and that their failure or refusal to do so can result in discipline or discharge)."], so I don't really know what to make of Diskeeper's characterization of the statement as being extrinsic evidence.

Diskeeper also asserts that the Hubbard Management Technology excerpts (Exhibit C) are unauthenticated and, despite failing to make any argument as to why the Craig Jensen deposition transcripts (Exhibit D) should also be considered extrinsic evidence, moves to strike those as well. Diskeeper sums up its argument, presumably with a straight face, that Kaufman's statements and Exhibits are "not the proper subject or proper evidence for consideration on a motion to strike," but are rather factual disputes more properly brought during trial. This assertion is especially ironic given that I've said precisely the same thing about Diskeeper's motion to strike--they very well could prevail on the merits of their argument that a prospective blanket injunction preventing Diskeeper from requiring (note emphasis) LRH Management Technology is improper... but at trial, not in a motion to strike.

The bottom line is that Diskeeper's motion to strike Godelman's request for prospective injunctive relief opened the door for Godelman to go out on the same limb Diskeeper's been granted; and now Diskeeper wants to limit the limb for itself. 

Claire Headley ("Claire"), wife of Marc Headley ("Marc") , who recently filed a lawsuit alleging labor law violations (which I wrote about here), has followed up her husband's lawsuit with a similar lawsuit of her own. Claire's complaint (which I converted to html here--the pdf can be read here) makes allegations similar to those by her husband, namely that Scientology violated California's labor laws in failing to pay her minimum wage and overtime. Claire's complaint largely mirrors her husbands with regard to the labor law claims, which I've already addressed (and concluded that they represent a potentially devastating threat to Scientology's business model), so I'll confine my remarks to the differences between her suit and her husband's suit.

For one thing, Claire's suit adds a significant defendant not present in Marc's suit--Scientology's Religious Technology Center ("RTC"), which sits above the also-named Church of Scientology International ("CSI") on the Scientology org chart. Whereas Marc worked exclusively for Golden Era Productions, an unincorporated entity under the CSI umbrella, Claire worked a variety of jobs including as a secretary for David Miscavige, the effective head of every Scientology entity, and the Chairman of RTC. CSI is considered the "mother church" and most of the management structure falls under it, but RTC controls Scientology's trademarks and copyrights, and thus serves as the black hole into which the bulk of Scientologists' money disappears.

More significant than the additional defendant is Claire's claim that she was "ordered and coerced to have abortions by [Scientology] management." Paragraph 28 of the complaint states:

Plaintiff Headley worked for Defendants CSI and RTC for many years before her escape in 2005. During this time, Plaintiff became pregnant on two occasions. Plaintiff was ordered to terminate these pregnancies by forced abortions. Plaintiff is aware that this was a relatively common practice at Gold Base. Plaintiff has knowledge of approximately twenty other female employees ordered to have abortions.

Alongside the forced abortion allegation, Claire complains of other "unlawful and unfair business practices," namely: (i) "retaliation against Plaintiff’s family business and others for pursuing labor claims"; (ii) human trafficking; and (iii) unlawfully requiring lie detector testing through the use of Scientology's "e-meter." These claims are not causes of actions in and of themselves, but are rather individual arguments in support of a larger unfair competition claim under California's Business & Professions Code § 17200 et seq. Claire also employs the forced abortion allegation as a separate common law discrimination claim.

Claire's forced abortion allegation comes well corroborated.

In a 1986 affidavit, ex-Sea Org member Mary Tabayoyon stated: "The September 28, 1986 Flag Order No. 3905 forbade Sea Org members from having any more new children. The reason given by ED Int. was that the Sea Org simply did not have the time, money and resources to raise children properly."

In a 1998 declaration, Jesse Prince stated: "In late 1991, my wife Monika became pregnant and although we were elated, she was ordered to abort the child. The reason for the abortion order is that Sea Org members were not allowed to have children."

In a 2001 declaration, Tera Hattaway spoke of the coercive techniques used to encourage abortion: "She went on to tell me that the spirit doesn’t enter the baby’s body until the baby is born. She made the point that all I would be “killing” is a piece of meat essentially. We discussed this for a couple of days and she showed me definitions in the L. Ron Hubbard Technical Dictionary to persuade me to have an abortion."

In a 2001 declaration, Astra Woodcraft stated: "Approximately 1½ years before I left, a new rule came out stating that if you got pregnant, you had to either get an abortion, which was heavily pushed, or leave. The rule had previously been that if you got pregnant, you had to get an abortion or be sent to a small and failing lower organization where you had to fend for yourself and your baby."

Scientology generally responds by labeling its accusers liars and apostates, but the excerpts above are but a sample of the countless other ex-members who have stated the same--the corroboration is on a level too vast and broad to dismiss so lightly. These stories share a commonality of motive and purpose: Scientology coerces and forces abortions because pregnant staff members are simply bad for business, due to the added expenses involved in the medical needs for pregnant women, the time lost when the pregnant woman cannot work, and the expense involved in providing day care when the child is born. The one-time cost of an abortion solves the problem.

Claire also alleges human trafficking, also as part of a larger unfair competition claim. Unlike the forced abortions allegation, there is a statutory analogue for human trafficking, namely California Penal Code § 236.1, which states that "[a]ny person who deprives or violates the personal liberty of another with the intent to ... obtain forced labor or services, is guilty of human trafficking." Section 236.1 goes on to define "unlawful deprivation or violation of the personal liberty of another" as the "substantial and sustained restriction of another's liberty accomplished through fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to the victim or to another person[.]"[FN1]

While human trafficking has obviously been going on for centuries, United States law has only recently begun to address the topic, mostly in response to women's groups bringing attention to the women being brought into the United States to work as prostitutes. While the California legislature likely didn't have Scientology in mind when it passed the statute, it nevertheless appears broad enough that Claire could assert a claim under the CTVPA independently, although California does not explicitly provide civil remedy to trafficked persons. [CORRECTION: California Civil Code 52.5 provides a civil cause of action for human trafficking--see end of post for update] Professor Kathleen Kim, a professor at Loyala Law School created an instructive Powerpoint presentation, entitled "Civil Remedies for Victims of Human Trafficking" in which she extrapolates on the civil options available to victims of human trafficking, noting that the Federal human trafficking statute, upon which the California statute is modeled, provides a private cause of action.

Kim also suggests that civil human trafficking claims could be brought under the Thirteenth Amendment (involuntary servitude); the Alien Tort Claims Act; RICO; the Fair Labor Standards Act; Title VII of the Civil Rights Act; Contract, tort, or negligence claims; or under state labor codes, which is what Claire Headley has done here, alleging human trafficking as part of her unfair business practices claim.

If the court were to rely on the penal code definition (stated above), Claire would have to show that Scientology "substantially restricted" her liberty through "deceit" or "coercion" because Scientology intended to obtain her forced labor. This does not seem an especially difficult task, although there would be a question as to which burden of proof would be employed (the criminal "beyond a reasonable doubt" burden is more difficult to show than the civil "preponderance of evidence" standard).

Claire's complaint also departs from Marc's in one other interesting way in that it specifically requests "A permanent injunction prohibiting Defendants and their agents for ordering and/or coercing abortions with respect to their employees." A similar request for a permanent injunction affecting non-parties going forward is presently at the heart of the Godelman v. Diskeeper lawsuit, presently ongoing in the same court (and which I've written about extensively on this blog, for which I've received legal threats from Diskeeper's counsel). In that case, Diskeeper's Scientologist lawyer, Tim Bowles, objected to an injunction prayer for relief that, if granted, would prohibit Diskeeper from requiring any employee to study, adopt, or apply L Ron Hubbard's "Managment Tech" or "Study Technology" and thus moved to strike it from the complaint on the basis that it implicated Diskeeper's religious freedom (despite their somewhat hypocritical argument that Hubbard Management and Study Technology are not religious). . Diskeeper's motion to strike has not yet been ruled on but it would be interesting to see if Scientology responds to Claire's request for prospective relief in the same manner.

The forced abortion and human trafficking allegations serve to bolster an otherwise decent claim, although the unfair business practice claim may turn to some degree on the nature of Claire's work, which isn't made entirely clear in the complaint (Scientology will want to argue that Claire's work was religious in nature, so further scrutiny will likely be paid to precisely what Claire did for CSI and RTC). But unlike Marc's suit, which focuses primarily on minimum wage and overtime pay, if it were found that Scientology engaged in tortious behavior by forcing and coercing abortions or engaging in human trafficking, a religious exemption argument may not be available to them, regardless of what Claire did for each organization. Religious organizations are as liable as secular ones for their tortious acts.

In sum, Claire's claim would seem to have a decent chance of success at trial, assuming she can prove her allegations to a jury; but if history is an accurate indicator, Scientology will go to significant lengths to make sure it doesn't get that far. Miles to go before we sleep, but the vehicle is promising for a change.

* [FN1] For a concise summary of the California Trafficking Victims Protection Act, see Michael C. Payne, The Half-Fought Battle; A Call for Comprehensive State Anti-Human Trafficking Legislation and a Discussion of How States Should Construct Such Legislation, 16 Kan. J.L. & Pub. Pol'y 48 (2006).

---

UPDATE: California Civil Code 52.5 provides a civil cause of action for human trafficking. To summarize the statute, the civil cause of action defines human trafficking identically to California's Penal Code (section 236.1), and provides a range of remedies (actual (treble), compensatory, and punitive damages, as well as injunctive relief, attorney's fees and costs). The statute of limitations is five years tolled from the "freedom date," or until the victim turns 26 (8 years past majority), if trafficking occurred while underage. Perhaps quite significantly, the statute of limitations can even be tolled (won't begin until a later time) if the victim was under a "disability" at the time the trafficking took place--disability could mean "insanity, imprisonment, or other incapacity or incompetence " If the defendant induces the delay in filing (e.g., threats, duress), they're estopped (legally prevented) from asserting the statute of limitations as a defense. Moreover, if the statute of limitations is suspended due to a disability, the estoppel applies to all other related claims arising out of the trafficking.

Yesterday I received what at first glance appeared to be a Cease and Desist from Diskeeper's counsel, An Nguyen, in the Godelman v. Diskeeper case, about which I've posted here and here.

The letter (which can be read HERE [PDF]), implies that the material I've previously posted was confidential and that my posts contravene a confidentiality order issued in this case last year. The letter also requests that I retain all correspondence relating to how I came to obtain the material I posted. The letter also contains the confidentiality order in question. My response is below.

Dear An,

Thank you for your letter, and I'm sorry you feel my posts are misleading--I respectfully disagree.

I have reviewed the documents on my site as well as the confidentiality order. Preliminarily, I will note that your letter declines to allege or identify any of the material I've posted as being subject to the protective order in this case. If this is an oversight on your part, please identify which documents you feel are subject to the protective order so that our discussion can have more meaning.

Perhaps, on the other hand, your failure to allege or identify any documents subject to the protective order is an acknowledgment that none of the material I've posted is subject to the protective order, which states in paragraph 3, that "Documents become designated material when visibly marked by the producing, disclosing, or otherwise designating party as "CONFIDENTIAL" to be subject to this Order." [emphasis added] Of the possibly relevant material hosted on my site, no document is visibly marked as "CONFIDENTIAL," or marked in any way which would lead a reasonable person to construe them as such. Moreover, none of the exhibits within the documents are visibly marked as "CONFIDENTIAL."

Your letter goes on to imply untoward behavior on my part in seeking to learn "how [I] obtained information and/or documents related to this case," despite that every pleading and filing in this case is publicly available from the Los Angeles County Superior Court web site (!). If the documents were intended to be designated as confidential, not only should they have been visibly labeled as such, but they probably should not be publicly available on the Los Angeles County Superior Court web site.

Finally, as I am not party to this litigation, perhaps you could better explain why you 'anticipate my compliance' with regard to this order. My blog is a journalistic pursuit that regularly deals with matters such as religious discrimination, to which Mr. Godelman's lawsuit is highly relevant. Moreover, this lawsuit has a great deal of public relevance and I will therefore view correspondence such as yours, including future correspondence pursuing the same, as attempts to intimidate and censor. Likewise, I will view any action directed at me in light of California's anti-SLAPP provisions (which specifically provide for the recovery of attorneys fees by prevailing parties). Kindly note also that I will post this and any future correspondence related to this matter, on my site.

Very truly yours,

Scott Pilutik

“And I would like to state for the record that I object to having my religious beliefs held up to public ridicule and scorn by an officer of the court.” – Craig Jensen

“And anyone who objects and says, I'm not going to consider the Hubbard Management System; I'm not going to partipate in it in any way is distancing themselves from any possibility of doing the job he was hired to do. And I don't have to talk to him to figure that out.” – Craig Jensen

Alexander Godelman and Marc Le Shay (“Godelman”) have filed a strong response [PDF] to Diskeeper’s motion to strike in their wrongful termination suit against Diskeeper. I wrote about the suit here only last month, but in a sentence, Godelman and Le Shay allege that they were forced to participate in “training programs” which was, in actuality, barely veiled Scientology indoctrination and were fired when they refused to participate.

Godelman supplies some procedural backstory to the case, which I’ll briefly summarize. The complaint was first filed in July 2007. The attorneys met, and after “several demurrers and delays,” according to Godelman’s motion, Diskeeper’s Answer to the Complaint was not filed until May 2008. In October 2008, at least one dozen people were deposed, including Craig Jensen. At some point probably around this same time, Godelman amended the complaint to include an injunctive remedy, one which would prevent Diskeeper from using Hubbard Management Tech in the future. With a trial date now looming, Diskeeper moved to continue (extend) the trial date, because, the newly introduced injunctive remedy, they argued, was a “fundamental change in the legal and factual stance of the case” and that it needed additional time to file a motion to strike the injunctive remedy. The court granted Diskeeper’s request, which brings us up to date—Diskeeper filed its motion to strike, which I discussed in the previously mentioned post from last month, and Godelman and Le Shay’s opposition was filed this past week.

Godelman responds to the motion to strike by noting something I briefly pointed out in my post, which is that a motion to strike is an inappropriate vehicle for Diskeeper’s argument—motions to strike are appropriate either to strike “irrelevant, false or improper matter.” Because injunctive relief is specifically authorized by the statute under which Godelman brings this suit, it’s not really possible to argue that the request should be stricken as “irrelevant, false or improper”. The court may eventually decide against awarding Godelman’s injunction request, but, Godelman essentially argues, it’s a matter to be decided after the trial, not before it.

Godelman points out that Diskeeper’s motion to strike places a great deal of mistaken reliance on the EEOC v. Townley Engineering case (“Townley”), where the Ninth Circuit ruled against an employer who required that its employees attend religious services. In so ruling, however, the Ninth Circuit also found the plaintiff’s requested injunctive remedy to be too broad, and remanded so that the district court could more narrowly tailor it. The Court in Diskeeper may well decide to follow Townley on this aspect, but Diskeeper misreads the Ninth Circuit as stating a rule of law, as opposed to applying the law to the facts before it. The court could conclude that although a blanket injunction was inappropriate in Townley, it’s appropriate in Diskeeper.

Godelman also notes that Scientology's motion to strike relied on an outdated interpretation of the free exercise clause. Formerly, a law which interfered with religion had to have a "compelling" government interest (a test also known as "strict scrutiny"), else such a law was unconstitutional; but this test was rejected in 1990 by the Supreme Court in Employment Division v. Smith, which stated the present-day rule , that a “neutral law of general applicability” did not violate a religious claimant’s free exercise rights. In other words, only laws that target religion violate free exercise rights. The anti-discrimination law at the heart of the Diskeeper case is almost certainly a neutral law of general applicability.

The filing contains a host of interesting exhibits as well, including selected pages from a deposition of Craig Jensen, and an affirmation from attorney Barry Kaufman, which provides some insight into the behind the scenes legal wrangling.

A potentially devastating lawsuit [PDF] was filed by Marc Headley in Los Angeles County Court on January 5 against the Church of Scientology International (CSI), alleging that CSI violated California labor law by failing to pay Headley, and others similarly situated, minimum wage or for the overtime he routinely worked as an employee of Golden Era Productions, an unincorporated entity which is chiefly responsible for producing and selling Scientology's promotional videos and materials. Headley estimates that he was paid approximately 39 cents an hour for the time he worked at Golden Era between 1989 to 2005, during which time he sometimes worked 100+ hour, 7 day weeks uncompensated for his overtime.

Headley also alleges that he was forced by Scientology to sign various documents, under duress, acknowledging that he had no rights as an employee, and that he was not given copies of these documents.

Headley's claims are hardly shocking to anyone even vaguely familiar with Scientology, who could tell you that the working conditions for a Scientology staff member are routinely reported to be atrocious by ex-members. What is surprising is that someone has finally seen fit to address it, given the extreme hurdles facing anyone who chooses to sue Scientology.

The complaint anticipates Scientology's likely legal response--in short, that it is a religious organization exempt from ordinary labor laws. The suit's response to this anticipated defense is that religious organizations are not exempt in all instances from labor laws relating to minimum wage and relies heavily on the US Supreme Court case Alamo Found'n v. Secy. of Labor, 471 US 290 (1985) in support of its argument, which I'll now briefly describe below.

The Secretary of Labor brought suit against Tony Alamo's fundamentalist Christian church, alleging that it operated numerous commercial entities and in doing so violated minimum wage, overtime, and recordkeeping provisions of the Fair Labor Standards Act (FLSA). The Alamos operated "service stations, retail clothing and grocery outlets, hog farms, roofing and electrical construction companies, a recordkeeping company, a motel, and companies engaged in the production and distribution of candy," and staffed these businesses with "drug addicts, derelicts, or criminals before their conversion and rehabilitation." The Court found that the Alamos were subject to ordinary labor laws because (1) the church was, under the FLSA (specifically 29 USC sec. 203(s)), "an enterprise engaged in commerce or in the production of goods for commerce"; and (2) its workers were "employees" within the meaning of the Act.

The Court rejected the Alamos' argument that it was not en enterprise within the meaning of the Act because it was a 501(c)(3) tax exempt organization, noting that religious and non-profit organizations are not exempted by FLSA.  The Code of Federal Regulations specifically states that

"where [religious or non-profit] organizations engage in ordinary commercial activities, such as operating a printing and publishing plant, the business activities will be treated under the Act the same as when they are performed by the ordinary business enterprise."

The Alamos further argued that their church should be exempt because its commercial activities are "infused with a religious purpose," but the Court noted that the lower courts had correctly disposed of this argument too, where it found that the Alamos' "businesses serve the general public in competition with ordinary commercial enterprises," and thus permitting the organization to pay substandard wages would give it an unfair advantage over competitors.

Scientology's Golden Era Productions shares some similarities with the Alamos' commercial enterprises but also some differences. It's not clear whether those differences will lead a court to distinguish Headley's suit from Alamo. It's also not clear whether the fact that Headley is not suing under the FLSA but instead makes an unfair competition claim under California's Business & Professional Code (sec. 17203), and California Labor Law will permit the Court to treat this case differently than similar cases, most/all of which fall under the FLSA (and thus Alamo). From my limited research, there is some interplay between California labor law (which is often described as "complex") and the FLSA. (I presume that the absence of a FLSA claim is indicative of Headley's lawyer's desire to keep the case in California state court as opposed to federal court.)

As to the similarities between Golden Era Productions and Alamo, they both drastically underpaid and overworked their employees while providing them with housing and every other amenity imaginable. However, the individual businesses in Alamo operated in secular spheres--that is, their service stations, retail clothing stores, and motels directly and unfairly competed with corresponding secular entities, for whom the option to underpay its workers did not exist. Scientology will no doubt argue that Golden Era is engaged in promotional activities as opposed to commercial, and there is therefore no risk of unfair competition--it does not compete because it is the only entity that produces in L Ron Hubbard videos, and its adherents the only targeted class, unlike, say, a motel, which would target every demographic.

The response to this, I would think, is to note that the type of work Headley was engaged in at Golden Era--video production--is work also typically performed by secular entities, who otherwise might benefit from being contracted by Scientology for this work, and are thus in fact harmed in an unfair competition sense. The issue is not the content of the business's output or the output's target audience, in other words, but rather the type of business and whether there is a secular analogue capable and available to perform the same work.

This notion has some legal precedent too--In Mitchell v. Pilgrim Holiness Church Corp., 210 F.2d 879 (7th Cir. 1954), a religious organization operated and staffed a printing press, from which it printed "pamphlets, leaflets, magazines and other printed material most of which is of a religious nature," and argued because religious message was not commerce, it should be exempt from the FLSA. The Fifth Circuit concluded that the religious content of the pamphlets was of no consequence, and that "[there is no] intimation that the minimum standard of living as fixed by the Act is not just as necessary to the health and well-being of the defendant's employees as it is to the health and well-being of the employees of any other printing establishment."

Mitchell is almost perfectly analogous to Golden Era, which too is a publisher of religious material utilizing underpaid labor.  California is not bound to follow a federal Fifth Circuit decision, of course, but with so little case law speaking directly to this issue, it seems likely that the Court will at least confront Mitchell, if not be persuaded by it. 

On Scientology's side, there is little support in case law for the argument they will inevitably make, should the case proceed to trial. Mitchell has been distinguished but once, by McClure v. The Salvation Army, 460 F.2d 553, 558 (5th Cir.), cert. denied, 409 U.S. 896 (1972).  McClure did not concern minimum wage provisions, however, but was rather a wrongful termination claim brought by a fired a church minister. The Fifth Circuit determined that the minister was not an employee under Title VII of the Civil Rights Act, and further, that finding that the minister was wrongfully terminated would necessitate an impermissible encroachment into the Salvation Army's right to free exercise or religion. McLure was followed by Werft v. Desert Southwest Annual Conf. of United Methodist Church, 377 F.3d 1099, 1100 n.1 (9th Cir. 2004).  The ministerial exception established in McLure was just recently extended to FLSA scenarios by the Seventh Circuit in Schleicher v. Salvation Army, 2007 U.S. Dist. LEXIS 2836 (7th Cir. 2007), but Schleicher concerned the wages of a minister, and thus not an employee under the FLSA.

Alamo has been distinguished many times, but never again in the context of a religious group seeking to evade labor laws, so the penultimate battle at trial will chiefly be over whether to follow or distinguish Alamo, as I describe above.

Before trial, of course, there will be a slew of motions and creative lawyering by Scientology to delay this trial until the end of time. There is undoubtedly the most serious legal challenge they've faced in years and they almost certainly realize it and will act accordingly. One especiallly intriguing pretrial question is whether Scientology will challenge Headley on the basis of the numerous releases and waivers Headley signed. Headley speaks of the releases in his complaint, alleging that they are invalid for lack of consideration and unconscionable, an assertion which is likely correct. Although Headley doesn't include the releases in his complaint, and I thus have no actual knowledge of them, I have reviewed many other Scientology releases and have noted prior occasions their telltale signs--they all inevitably lack consideration and usually contain unconscionable terms. Headley adds that his were signed under duress, an assertion which I have little trouble believing.  Will Scientology actually produce Headley's signed releases as evidence of his relinquishing the right to sue? A loss on this front would be a minor devastation as Scientology has relied on these unconscionable releases for years (and although they've never really been tested, the releases likely "work" in that many ex-members are probably intimidated into not bringing a suit against Scientology because they assume the release is valid; invalid or not, the releases possess a deterrent quality).

I will be keeping a close eye on this lawsuit as it progresses and write about it as time allows.

On January 6, the Riverside County Board of Supervisors, on behalf of the Church of Scientology, will vote on an ordinance that would criminalize certain tartgeted picketing of residences. The ordinance is similar to one proposed and which failed to gain the necessary support only weeks ago.

As Eugene Volokh pointed out, Riverside's original oridinance [PDF] was likely doomed to fail--while restrictions on the picketing of targeted residences are constitutionally permissible (see Frisby v. Schultz, 487 U.S. 474 (U.S. 1988), Klein v. San Diego County, 463 F.3d 1029 (9th Cir. 2006)), restrictions which are overbroad or vague such as Riverside's first draft will fail if challenged. Riverside's first ordinance prohibited picketing within 300 feet of a residence.

County Supervisor Jeff Stone is the sponsor behind these ordinances (on behalf of Scientology), and with the introduction of a similar ordinance, the question is: Does this new ordinance remedy the prior ordinance's constitutional deficiencies? And regardless of its constitutional deficiencies, will it pass anyway?

Taking the last question first, as a matter of pure politics, it seems unlikely that Jeff Stone would've reintroduced this amended ordinance without first attempting to mollify the previous no-votes. But as we don't really know, there's no sense dwelling on the realpolitick issue.

Regardless of whether Jeff Stone has the votes, is this new ordinance constitutionally bulletproof? Whereas the previous ordinance prohibited picketing or protesting within 300 feet of a targeted residence, the new ordinance shortens that distance to 50 feet, but measures this distance not from the targeted dwelling but from the property boundary. The new version also creates an exception that would permit picketing on the sidewalk opposite a residence. Here is the actual text of both:

OLD:
Section 4. PROHIBITION. No person shall engage in picketing activity that is targeted at and within three hundred (300) feet of a residential dwelling in the unincorporated areas of the County of Riverside.

NEW:
Section 4. PROHIBITION. No person shall engage in picketing activity that is targeted at and within fifty (50) feet (measured from the lot line) of the property upon which the targeted dwelling is located in the unincorporated areas of the County of Riverside, except the sidewalk space on the opposite side of the street from the tarageted dwelling.

The new statute [PDF] appears, on its face, to rectify its overbreadth problem by permitting picketing nearer to its target (and adding the sidewalk exception), but only when you consider the statute's intended beneficiary do you realize that it still prevents anyone from picketing Scientology's "Gold" base. A look at Gold base in Google Maps illuminates some of the problems:

 

To begin, Gold isn't a residence as anyone typically thinks of one--rather, it is a fortified compound containing residential buildings. Therefore, the statute's shortening the length protesters are permitted to picket from 300 to 50 feet matters little where Scientology's Gold base is concerned if one is measuring from the property line.

The revised ordinance appears to have pulled off quite the trick, in fact--it appears on one hand to better comport with existing case law by more "narrowly tailoring" its restrictions, while making it even more difficult to picket Gold. By measuring from the property line instead of the dwelling, the zone of protection has effectively been widened, especially as a) Gold's property line is not marked out; b) the part of Gilman Springs Road upon which a protester would ordinarily picket appears to be a public easement running through property belonging to the Church of Scientology. Additionally, looking at the area in Google Maps, Gilman Springs Road doesn't appear to have a sidewalk, meaning that the ordinance's exception is effectively meaningless in this context (and even if a "sidewalk" could be imputed to be near the curb of the adjacent property, the "adjacent property" to either "sidewalk," belongs to Scientology along Gilman Springs Road.)

The revised ordinance's most clever feat could also be its biggest problem, then--while protesters can somewhat reliably measure from a residence, they cannot so easily measure from a property line, as they cannot be expected to be aware of all property lines, which aren't always obvious to the naked eye, at least in the same way a residence is. It may be, therefore, that any restriction that requires a protester to measure from a property line would be unconstitutionally vague.