

After more than a year since an oral hearing was held in the case, the Texas Third Court of Appeals has finally ruled in Monique Rathbun’s favor, denying the Church of Scientology’s appeal of a lower court’s ruling.

Monique sued Scientology for harassment in 2013, accusing the church of using private investigators and other operatives to follow her and her husband, former Scientology official Mark “Marty” Rathbun, from 2009 to 2013 in what amounted to unreasonable surveillance and a disruption to their lives. Last year, Scientology filed an “anti-SLAPP” motion against Rathbun, arguing that its activities were protected free speech in a religious dispute with her husband. Comal County District Judge Dib Waldrip denied the church’s motion, but Scientology then appealed that ruling to the Third Court of Appeals, where Scientology had earlier won a decision that prevented Scientology leader David Miscavige from being deposed in the lawsuit.

This time, the three-judge panel found that Scientology had failed to prove that its activities were protected and couldn’t be the basis for a lawsuit…

The Scientology Defendants failed to demonstrate, by a “preponderance of the evidence,” that Rathbun’s causes of action for intentional infliction of emotional distress, invasion

Advertisement of privacy by intrusion on seclusion and by public disclosure of private facts, and tortious interference with contract were “based on, related to, or in response to” the Scientology Defendants’ “exercise of their right of free speech, right to petition, or right of association.” They have therefore failed to establish that the [Texas anti-SLAPP statute] applies to this case. Consequently, we affirm the trial court’s order denying the Scientology Defendants’ motions to dismiss.

The court did not, however, give Monique everything she was asking for. It denied her request for attorneys’ fees. But otherwise, this is a total win for her after the long wait. We reached out to Leslie Hyman, the appeals attorney who wrote Monique’s briefs to the court and spoke at the oral hearing last year.

“We are very pleased that the court saw through the church’s attempt to recast into protected activity Monique’s complaints of stalking and harassment and the church’s attempt to shield its wrongdoing with a Texas statute not meant for that purpose,” Leslie told us.

We’re still plowing through the 18-page decision, and we’ve reached out to other legal observers for their thoughts on the document. We noticed a footnote which suggests that the panel were interested in the testimony of Bert Leahy, the videographer who was briefly hired by the “Squirrel Busters” crew filming the Rathbuns. Also, that the court took seriously Scientology’s written policies about harassing people it considers enemies.

Ray Jeffrey, Monique’s attorney, points out that Scientology may appeal this decision to the Texas Supreme Court. But for now, we need to brush up on where this case was a year ago when it was stopped in its tracks by this motion. Although it’s been more than two years since Monique filed her lawsuit, we’re still just in the preliminary phases of it, arguing jurisdictional matters.

This was an unusually long wait for a decision, our local experts in Texas tell us, but in the end it was a total victory for Monique. And that’s after Scientology spent huge money assembling a dream team of attorneys — including Lamont Jefferson, brother of the former chief justice of the Texas Supreme Court. He was specifically brought in to spearhead appeals like this, but this time, he didn’t get what he asked for.

Here’s the document…

Rathbun v. Scientology: Appeal Opinion



Here’s some analysis from our legal expert, Scott Pilutik…

It’s sometimes difficult to get a read on where an appeals court really stands on a case, since most appeals involve wordy analysis of explicit, sometimes opaque legal questions, which questions are often a bit afield from the underlying facts. But the Texas Third District gives away the game in footnote 10, citing a recent Texas Tech Law Review article on the virtues of the TCPA entitled “Bullies Beware: Safeguarding Constitutional Rights Through Anti-SLAPP in Texas.” The appeals court remarks that “[i]n light of the Scientology Defendants’ attempted use of the TCPA as a shield to protect the type of conduct alleged in this case, we find the title of that article ironic.” The irony of Scientology hiding behind a shield meant to bring bullies to heel is a point I and many others made the minute Scientology brought its motion. Because, yeah, ironic bullies indeed. The opinion otherwise dryly dismantles Scientology’s two arguments: (1) the TCPA was properly invoked because Scientology’s conduct targeting Monique (less generously, their harassment of her) relate to protected speech; and (2) Monique failed to demonstrate a factual basis (by the “preponderance of evidence” standard) for her claims (intentional infliction of emotional distress, invasion of privacy, and tortious interference). Important to the analysis of the latter, the court initially blurs a distinction between the TCPA’s requirement that the claimant (here Monique) demonstrate that factual basis “by a preponderance of evidence” and the summary-judgment standard, by which a plaintiff’s complaint is presumed as true unless negated by additional evidence. Should Scientology appeal to the Texas Supreme Court, this will likely be square one. The appeals court then accepts as fact—again, for the purpose of construing Monique’s complaint in a light most favorable to her—both Bert Leahy’s and Marty’s affidavits. The court notes that Scientology spent an incongruent degree of energy in recasting Monique’s complaint in terms of how it impacts the their documentary filmmaking ventures than demonstrating how Monique’s claims were necessarily false. The court: “Other than argue that the “protest and film production” endeavors of the “Squirrel Busters” are protected rights of free speech and thus within the scope of the TCPA, the Scientology Defendants do not directly address the specific conduct Rathbun complains of, which includes following her while she went to and from work, shopping, out to dinner with friends, and walking her dog. Nor do they explain how alleged visits to Rathbun’s family members, friends, and coworkers during which they allegedly gave warnings about Rathbun’s personal safety while married to Marty Rathbun, constitute conduct covered by the TCPA.” Scientology’s reading of the TCPA would perversely stand its burden-shifting provision on its head by requiring any target of its harassment (well, harassment by “documentary filmmakers” at least) to prove its case against the harasser in advance of trial. The appeals stops short of proclaiming this view to be as perverse as its natural result would suggest, but it does seem to be aware of it. The appeals court makes two other useful observations. After listing the litany of Scientology’s harassing conduct, it flatly refutes the notion that that conduct was a “communication” “made in connection with a matter of public concern.” To get there, it also finds that Monique is not a “limited-purpose public figure.” Public figures, by defamation and privacy law, have to show invasions of their person by higher standards of evidence. It seems likely that Scientology will appeal on this basis as well. (“But but but… Monique said mean things about Scientology! After we provoked her, sure, but but she said things!”]



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BOOK NOTES



We didn’t get a chance to include photos in our book, so we’ve posted them at a dedicated page. Reader Sookie put together a complete index and we’re hosting it here on the website. Copies of the paperback version of ‘The Unbreakable Miss Lovely’ are on sale at Amazon. The Kindle edition is also available, and shipping instantly.

Our book tour is concluded for now. We’ll let you know about future appearances. Previous events: Santa Barbara (5/16), Hollywood (5/17), Orange County (5/17), San Diego (5/20), San Francisco (5/22), New York (6/11), Chicago (6/20), Toronto (6/22), Clearwater (6/28), Washington DC (7/12), Hartford (7/14), Denver (7/17), Dallas (7/20), Houston (7/22), San Antonio (7/24), Austin (7/25), Paris (7/29), London (8/4), Boston (8/24), Phoenix (9/15), Cleveland (9/23), Minneapolis (9/24), Portland (9/27), Seattle (9/28), Vancouver BC (9/29), Sydney (10/23), Melbourne (10/25), Adelaide (10/28), Perth (10/30)



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Posted by Tony Ortega on November 6, 2015 at 11:15

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