A California appeals court on Tuesday considered whether a lawsuit against harassment against the Church of Scientology should be decided by a jury or an arbitral tribunal composed of Scientologists.
The case was brought by women who said they had been persecuted and harassed after complaining to police that they had been raped by actor Danny Masterson, a Scientologist who has been criminally charged. Masterson, who starred in the hit comedy “That’s 70s Show,” is accused of raping three women between 2001 and 2003. A criminal trial is pending.
Four women and the husband of one of them also sued the church and Masterson, accusing them of being terrorized, persecuted and harassed in an attempt to intimidate them after they reported the alleged sexual assault.
They accused the church of hiring private investigators to monitor, track, video and photograph them, eavesdrop on their phones, hack their email accounts and home security systems, and even kill a dog. The church has denied any harassment.
Scientology says the former members who sued signed agreements when they joined the church to arbitrate any claim before a panel of Scientologists.
A lawsuit and a panel from the 2nd District Court of Appeal previously ruled that the arbitration agreement could be enforced. The case returned to the appellate court on Tuesday after the California Supreme Court ordered the judges to reconsider.
During a hearing, the appellate judges considered how, without knowing how the church would conduct the case, they could determine whether the Scientology arbitrators would be neutral. A judge suggested that it might make sense for the arbitration to continue and allow the losing party to go to court to object if the process had been biased.
Another judge tried to determine if the process would be fair, asking about the church’s rules of evidence.
Marci Hamilton, representing the plaintiffs, told the court that the arbitration would be conducted “only under the Scientology canon.”
She argued that religious arbitration could not be imposed on a person who was no longer a member of the religion.
“This is actually a direct violation of my clients’ 1st right of change to leave, to leave a religion forever,” she told the court.
Lawyers for the church disproved that the arbitration would not be a religious ritual, claiming that the three former Scientologists freely agreed to the process when they joined the church.
William Forman, representing the church, said in response to a question that a Scientology officer decides what evidence can be submitted in the process, but that his decision can be appealed to the arbitrators, who must be Scientologists “with a good reputation.”
Forman insisted that the church has not declared the plaintiffs “subversive persons.”
“I know they do not have,” he said. “It simply did not happen.”
Following an initial hearing on the rape charges against Masterson, Charlaine is a judge in the Los Angeles County Supreme Court.
Olmedo stated that Scientology has “an explicitly written doctrine” that “not only discourages, but prohibits” its members from reporting each other to law enforcement.
The policy explained why several of the women did not report Masterson’s alleged crimes to police for more than a decade, the judge found.
Masterson’s prosecutors testified during the initial hearing that the church tried to dissuade them from reporting Masterson to police.
The church has denied that it has a policy against police reporting. Masterson, who according to the trial has had prominent roles in the church, has pleaded not guilty to the rape charges.
Courts generally uphold religious arbitration agreements just as they do any other form of arbitration. At times, however, the courts have objected to religious arbitration awards that violate long-standing public order, such as child support, or that did not protect fundamental procedural rights.
Religious arbitration is most common in the United States among Orthodox Jews, who can allow religious arbitrators to decide issues as diverse as divorce and trade.
Michael A. Helfand, an expert in religious arbitration, said after Tuesday’s hearing that the court appeared to be inclined to let the case go to religious arbitration.
“I think the court has an intuition that there is something wrong with this arbitration,” he said. However, the lawyers in the case “did not provide the court with an appropriate way to differentiate this type of arbitration with other forms of arbitration.”
Helfand, a professor at the Pepperdine Caruso School of Law, said he believes the Scientology arbitration agreement is flawed because it says arbitrators must be “in good standing” at the church, a vague description that a court would not be. able to define.