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Case Nos. B025924 and B038975

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE


CHURCH OF SCIENTOLOGY OF CALIFORNIA,

Plaintiff-Appellant,

and

MARY SUE HUBBARD

Intervenor-Plaintiff-Appellant,

v.

GERALD ARMSTRONG,

Defendant-Respondent.


OPPOSITION TO MOTION

TO SEAL RECORD ON APPEAL;

DECLARATION OF GERALD ARMSTRONG


Appeal from the Superior Court of the State
of California for the County of Los Angeles
Honorable Bruce R. Geernaert, Judge
Case No. C420153

Gerald Armstrong
In Pro Per
[former address]

 

TABLE OF CONTENTS

   
Page

 

I

INTRODUCTION

1

II
BY THEIR OWN CHOICES PLAINTIFFS
SACRIFICED THEIR RIGHT TO SEAL THE RECORD
2
III
SEALING THE DESIGNATED PORTIONS OF THE
RECORD ON APPEAL COULD BE NONSENSICAL
IV
PLAINTIFFS HAVE SHOWN NO GROUNDS
FOR SEALING THE RECORD ON APPEAL
V
THE WAKEFIELD CASE DOES NOT SUPPORT
SEALING THE RECORD IN ARMSTRONG
VI
DEFENDANT'S INTEREST IN KEEPING THE
RECORD ON APPEAL UNSEALED IS REAL
VII
THE PUBLIC'S INTEREST IN AN OPEN APPELLATE
RECORD IN THE ARMSTRONG CASE IS OVERWHELMING
VIII
CONCLUSION

i

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

CHURCH OF SCIENTOLOGY OF
CALIFORNIA,

        Plaintiff-Appellant,

        and
MARY SUE HUBBARD,

        Intervenor-Appellant,

        v.

GERALD ARMSTRONG,

        Defendant-Respondent.


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Case Nos. B025920 & B038975

LASC No. C420153

OPPOSITION TO MOTION TO
SEAL RECORD ON APPEAL

 

I

INTRODUCTION

    Defendant Gerald Armstrong opposes plaintiffs' motion to seal the

record on appeal. Plaintiffs have made no showing to justify sealing the

record, by their own actions they have waived any privacy rights they are

now seeking to protect, and such a sealing order would be both senseless and

violative of rights senior to those plaintiffs hope to vindicate.

    Plaintiffs ask this Court to seal these portions of the appellate record:

in Appeal No B025920 the trial testimony of defendant and witnesses

Vaughn Young and Laurel Sullivan, pages 57-60 and 251-277 in Appellants'

Appendix and pages 4-28 of Respondent's Brief; and in Appeal No. B038975

1

 

Exhibits C, K, L and N in Appellants' Appendix. Plaintiffs claim that these

portions contain discussions of or references to the documents which were

the subject of the litigation below, and they argue that sealing these portions

will preserve their property and privacy interests.

    Plaintiffs have not only not demonstrated that they possess any

property or privacy interests in the materials they seek to seal, but they

have long since lost, through their employment of public courts in this case,

their attacks on defendant in legal and other public arenas, and their unclean

hands in the matter before this Court, the rights they once had.

    But even if plaintiffs had not lost all their privacy rights in these

materials the requested sealing would be an idle act in which the law does

not engage. The vast majority of the pages plaintiffs want sealed are public

documents which for over seven years have been broadly circulated. Sealing

is also rendered a meaningless act because defendant could not be bound by

such an order while plaintiffs continue to attack him and use themselves

sealed materials in their attacks.

    The superior rights regarding the materials plaintiffs want sealed are

those of defendant whose safety from attack rests in part on the availability

of information and the openness of court files, and those of the public who

have a Constitutional right to precisely the kind of information these

materials contain.

 

II

BY THEIR OWN CHOICES PLAINTIFFS
SACRIFICED THEIR RIGHT TO SEAL THE RECORD

    Although specifically discussing probate court files the California Court

of Appeal in Estate of Hearst (1977) 67 Cal.App.3d 777, 136 Cal.Rptr.821

spells out the risk that every litigant who uses the courts accepts.

2

 

"when individuals employ the public powers of state
courts to accomplish private ends,[ ] they do so in full
knowledge of the possibly disadvantageous circum-
stance that the documents and records filed[ ] will be
open to public inspection." Id at 783

    Plaintiffs complain that unlike the appellants in Hearst they had no

way of recovering the subject documents other than bringing the lawsuit or

"seizing the documents" from defendant, which choice plaintiffs considered

inappropriate. But those were not plaintiffs' only options; they were but the

options plaintiffs' "fair game" policy mandated. Had plaintiffs eschewed fair

game, acted decently toward defendant and desisted in their attacks [1] it is

entirely conceivable that none of the subject documents would have been

made public through the court proceedings. As this Court noted in its

decision of July 29, 1991 in Church of Scientology of California v. Armstrong ,

283 Cal.Rptr.917, 924 "the conflict was created by plaintiffs, who threatened

Armstrong with harm."

    When plaintiffs chose after settlement of the cross complaint to

maintain their appeal from the trial court's decision they again did so with

full knowledge of the disclosure in the Court of Appeal of the contents of the

file that had been sealed by stipulation between the parties. In fact

plaintiffs in their briefs cite to documents they had removed from the court

file following the December 1986 settlement, [2] and quote directly from the


[1] See, e.g. Defendant's trial exhibits PP Suppressive Person Declare of Gerry
Armstrong of February 18, 1982
, and M Suppressive Person Declare of Gerry
Armstrong of April 22, 1982
.

[2] See, e.g. Appellants' Brief (dated December 20, 1989) p. 9 and 14, quoting
from trial Exhibit F, and p. 26, discussing exhibit AAA.

3

 

trial transcript they now seek to seal [3]. In Champion v. Superior Court

(1988) 201 Cal.App.3d 777, 247 Cal. Rptr. 630, which set out the procedure

to be followed when seeking an order to seal documents in appellate records,

the Court stated:

"Parties must also be careful not to enter into
stipulations in trial courts or to acquiesce to trial
court confidentiality requests expecting that the
stipulations or rulings will control the filing or
lodging of documents in the appellate courts."
Id at 789.

The Champion Court also concluded

"that a party seeking to lodge or file a document
under seal bears a heavy burden of showing the
appellate court that the interest of the party in
confidentiality outweighs the public policy in
favor of open court records." Id at 788.

Plaintiffs not only did not meet their burden, they did not even seek, until

seven years had elapsed, to seal any of the documents in the record on

appeal. This Court found that third party litigant Bent Corydon's motion to

unseal the Armstrong court file, which was brought within two years of the

sealing, was untimely. Plaintiffs' motion to seal is no less so.

    Two days prior to filing their motion to seal the record on appeal

plaintiffs filed a Petition For Review in the California Supreme Court from

this Court's July 29 order. Again plaintiffs have cited to trial exhibits which


[3] See, e.g., Appellants' Brief, from defendant's trial testimony, p. 14,
"nothing but an intelligence organization." (R.T. 1678-79), p.21, " lied from
his earliest youth all the way through and he was lying to me currently" (R.T.
1929)

4

 

are not available to the reviewing court [4] and to portions of the record they

seek to seal. [5] Plaintiffs have not filed a request to seal the record on appeal

in the Supreme Court, and they are using the record they seek here to seal to

forward their cause. Judicial estoppel would prevent the granting of

plaintiffs' motion.

    Defendant detailed what he knew of plaintiffs' acts against him in

violation of the December 1986 settlement agreement in his declaration of

March 15, 1990, filed in this appeal in support of Defendant's Reply To

Appellants' Opposition To Petition For Permission To File Response And For

Time, and his declaration of December 25, 1990, filed as Defendant's

Appendix. These declarations and the exhibits thereto are of substantial

consequence to the determination of rights of the parties herein, and

defendant requests that this Court take judicial Notice of them pursuant to

California Evidence Code §452(d) (court records), §455 and §459 (b) (reviewing

court has same power as trial court in determining propriety of taking

judicial notice of a matter). This Court did not consider these declarations in

its decision "as they were not considered by the trial court, " Armstrong at

922, but they are relevant to the sealing issue and now may properly be

considered.

    While plaintiffs falsely accuse defendant of violations of sealing orders

in this case they have themselves violated the sealing orders, including by


[4] See, e.g. Petition For Review, p.9, trial exhibit AAAA, p.11, trial exhibit F,
p.16, trial exhibit PP.

[5] See, e.g. Petition For Review, p.15, " nothing but an intelligence
organization." (R.T. 1678-79), p.16, confrontations with private
investigators (R.T. 1726, 1728, 2448)

5

 

use of the very trial exhibits they removed from the court file. [6] But

plaintiffs have not only not curtailed their use of the materials they move to

seal, they actively pervert what these materials state. Such a perversion is

contained within plaintiffs' motion. When refering to defendant's act of

obtaining from author Omar Garrison documents he would use in defending

himself, and sending these documents to the lawyer who would and did

defend him, plaintiffs religiously employ the words "stole", " stealing" or

"stolen". Plaintiffs' motion, pp. 1, 3, 5, 6, 8, 17. Stealing is a "felonious

taking." Black's Law Dictionary, 4th Ed. Rev., 1583. The trial court and this

Court specifically found defendant's "taking" of the subject documents not

felonious, but justified. Plaintiffs now seek to have hidden from the world

not only defendant's testimony, which the trial court relied on to understand

defendant's justification, but the trial court's decision in which the judge's


[6] Exhibits F, G, H, J and K to defendant's declaration of March 15, 1990 are
affidavits of Kenneth Long executed in October 1987 and filed in the case of
Church of Scientology of California v. Russell Miller & Penguin Books Limited
in the High Court of Justice, Case No. 6140 in London, England. Mr. Long, e.g.,
swears that defendant "refused to obey an order of the court, and retained
possession of documents which he had been ordered to surrender to the
court for safekeeping under seal," Ex. F, and "knowingly violated several
court orders -- the August 24, 1982 court order to turn in all materials to
the court and the June 20, 1984 court order sealing the documents.." Ex. J,
Mr. Long appended to his affidavits several documents which had been
entered into evidence at the trial in Armstrong and which plaintiffs had
retrieved from the court file after the signing of the December 1986 " Mutual
Release and Settlement Agreement
," (emphasis added) and after the sealing
pursuant to stipulation. See, e.g., Ex. F to defendant's declaration of March
15, 1990, affidavit of Kenneth David Long dated October 5, 1987. Document
entitled "Wage and Tax Statement 1977" for "Gerald David Armstrong" is
trial exhibit V; document entitled "Nondisclosure and Release Bond" is trial
exhibit U.

6

 

understanding is expressed. Pp 2 51-2 77 in Appellants' Appendix in Appeal

No. B025920 and Ex. C in Appellants' Appendix in Appeal No. B038975.

Plaintiffs' intention is to seal parts of the record so that they can create

confusion around what the record contains and misstate it in attacks on

critics of their antisocial acts and attitude.

     In the past two months plaintiffs have thrown caution to the wind in

their attack on defendant's credibility, and are boldly using the fruits of a

Scientology initiated illegal intelligence action they call the " Armstrong

operation," which are included in the documents plaintiffs have

"successfully" kept under seal in the Armstrong court file. Plaintiffs were

apparently encouraged by this Court's decision in Armstrong which

maintained the seal on the documents relating to the cross-complaint in the

court file, because they have subsequently used them with abandon.

    Plaintiffs-appellants utilize some tidbits from the "Armstrong

operation" in their recently filed Petition for Rehearing in this Court, Petition

for Rehearing, n.1, p. 6. They use their operation as grounds for a

$120,792,850 lawsuit against 17 Federal (Treasury Department) agents. And

they use it in an attempt to derail a lawsuit by former organization members

in Federal District Court.

    Exhibit A to the declaration of Gerald Armstrong filed herewith is a

copy of the complaint filed August 12, 1991 in Church of Scientology

International v. 17 Agents, No. 91-4301 SVW in US District Court, Central

District of California. At page 14 is the claim that

"The infiltration of the Church was planned as an
undercover operation by the LA CID along with
former Church member Gerald Armstrong, who
planned to seed church files with forged documents
which the IRS could then seize in a raid. The CID

7

 

actually planned to assist Armstrong in taking over
the Church of Scientology hierarchy which would
then turn over all church documents to the IRS for
their investigation." Ex. A.

Attorneys for the Scientology organization in the 17 Agents case are also

attorneys of record in Armstrong and are before this Court now asking for

another sealing order.

    Exhibit B filed herewith is a pleading entitled Further Response to

Order of July 2, 1985; Request for Stay; Memorandum of Points and

Authorities in Support Thereof; Declaration of John G. Peterson filed January

22, 1986 in Armstrong along with transcripts of the illegal videotape

operation. Plaintiffs used these documents at that time in an effort to

prevent defendant from obtaining his preclear folders from plaintiff

organization. At p. 6 Mr. Peterson avers that:

"Armstrong has admitted, in a videotaped
interview, to creating forged documents for
placement in Church files
for the sole purpose
of giving the false appearance of unethical or
illegal actions committed by the Church; and
[ ] Armstrong has admitted, in a videotaped
interview, his intention to commit perjury, as
well as advising others that proof is not required
to make allegations." Ex. B.

This is a matter which plaintiffs have insisted be sealed in the trial court's

file.

    Exhibit C filed herewith is a pleading entitled " Supplemental\

Memorandum in Support of Defendants' Motion to Dismiss Complaint with

Prejudice; Declarations of Sam Brown, Thorn Smith, Edward Austin, Lynn R.

Farny and Laurie Bartilson" filed August 26, 1991 in Aznaran v. Church of

Scientology of California, et al, No. CV 88-1786 JMI in US District Court for

the Central District of California. At p. 5 the Scientology organizations state:

8

 

"in November 1984 [ ] Armstrong was plotting
against the Scientology Churches and seeking
out staff members in the Church who would be
willing to assist him in overthrowing Church
leadership. The Church obtained information a
bout Armstrong's plans and, through a police-
sanctioned investigation, provided Armstrong
with the 'defectors" he sought." Ex. C.

      Exhibit D filed herewith is a pleading entitled "Reply in Support of

Defendants' Motion for Summary Judgment Based on Statute of Limitations"

also filed August 26, 1991 in Aznaran. At p. 34 the Scientology organizations

state:

"Armstrong's philosophy of litigation is that
facts and the truth are irrelevant and that all
that is required to prevail is to allege whatever
needs to be alleged is spelled out in a videotape
of Armstrong made in 1984 as part of a police-
authorized private investigation of individuals,
including Armstrong, who attempted to seize
control of the Church." Ex.D.

Scientology's reply is signed by Eric Lieberman who has been plaintiffs'

attorney of record throughout the Armstrong appeals.

    Exhibit E filed herewith is defendant's declaration executed on

September 3, 1991 and filed in Aznaran to refute the charges made by the

Scientology organization in their pleadings (Ex. C and D filed herewith) and in

another pleading entitled "Defendants' Opposition to Ex Parte Application to

File Plaintiffs' Genuine Statement of Issues [sic] Re Defendants' Motions (1) to

Exclude Expert Testimony; and (2) for Separate Trial on Issues of Releases

and Waivers: Request that Oppositions Be Stricken" also filed in Aznaran

August 26, 1991, and filed herewith as Exhibit F.

9

 

    Since the December 1986 settlement, plaintiffs have engaged in

assault after assault on defendant's character and credibility rather than

honestly face the malevolent nature of their fair game doctrine and the acts

this philosophy spawns.[7] The portions of the appellate record they now

seek to seal contain the trial judge's observations of defendant's credibility [8]

and the record in toto supports the judge's assessment of defendant's

credibility and confutes plaintiffs' calumny.


[7] See, e.g., Exhibit E to declaration of March 15, 1990, a document circulated
by plaintiff organization in 1987, "Armstrong's numerous false claims and
lies on other subject matters;" Exhibits F, G, H, J and K to 3-15-90
declaration, affidavits of Kenneth Long accusing defendant of sealing order
violations; Exhibit H, "Gerald Armstrong has been an admitted agent
provocateur of the U.S. Federal Government;" Exhibit I to 3-15-90
declaration, affidavit of Sheila MacDonald Chaleff, "Mr. Armstrong is known
to me to be a US government informant who has admitted on video tape that
he intended to plant forged documents within the Church of Scientology and
then using the contents to get the Church raided where these forged
documents would be found and used against the Church;" Exhibit E to
defendant's declaration of 2 5 December 1990, declaration of Kenneth Long
dated March 26, 1990, "Armstrong had intentionally perjured himself on
numerous occasions, and had as well knowingly violated orders issued by
judges at all levels ranging from the Los Angeles Superior Court to the
Supreme Court of the United States;" Exhibit C filed herewith, at p. 6,
defendant's "criminal attitude;" Exhibit D filed herewith, at p. 2,3, "the utter
disregard of the truth that the Aznarans have made the trademark of their
litigation effort, bears the unmistakable signature of Gerald Armstrong,
whose theory of litigating against Churches of Scientology, as captured on
videotape in 1984, is not to worry about what the facts really are, but
instead to choose a state of "facts" that should survive a challenge by the
Church and "just allege it."

[8] Memorandum of Intended decision in Armstrong, at p. 255 of Appellants'
Appendix, "the basic thrust of [defendant's] testimony is that he did what he
did, because he believed that his life, physical and mental well being, as well
as that of his wife were threatened because the organization was aware of
what he knew about the life of LRH, the secret machinations and financial
activities of the Church, and his dedication to the truth;" p. 257 of Appellants'
Appendix, "the court finds the testimony of Gerald and Jocelyn Armstrong,
Laurel Sullivan, Nancy Dincalcis (sic) Edward Walters, Omar Garrison, Kima
Douglas and Homer Schomer to be credible, extremely persuasive, and the
defense of privilege or justification established or corroborated by this
evidence.....In all critical and important matters, their testimony was precise,
accurate, and rang true;" . R.T. at 2511, Judge Paul G. Breckenridge, Jr,
commenting to plaintiffs' counsel during cross-examination of defendant, "all
you are doing is convincing me that this man has a fabulous memory."

10

 

    Plaintiffs assert that they "made every effort to vindicate their

privacy interests without doing them further damage;" Motion, p. 11, but in

reality they have worked very hard to destroy whatever rights they once

had. The trial court found in 1984 that "neither plaintiff has clean hands."

Memorandum of Intended Decision, Appellants' Appendix at p. 251.

Plaintiffs have a history of destruction of evidence. Memorandum of

Intended Decision, Appellants' Appendix at p. 264, July 29, 1991 Opinion at

p. 6. Here they have used the documents they want sealed in attacks on

defendant. Plaintiffs' hands are still unclean in connection with the

controversy before this Court so must be denied the relief they seek. See,

e.g., Moriarty v. Carlson (1960) 184 Cal.App.2d 51, 7 Cal.Rptr.282, quoting

from Lynn v. Duckel, 46 Cal.2d 845, 299 P.2d 236:

"The rule is settled in California that whenever
a party who, as actor, seeks to set judicial
machinery in motion and obtain some remedy,
has violated conscience, good faith or other
equitable principle in his prior conduct, then
the doors of the court will be shut against him
in limine; the court will refuse to interfere on
his behalf to acknowledge his right, or to afford
him any remedy." Id at 850.

11

 

III

SEALING THE DESIGNATED PORTIONS OF THE
RECORD ON APPEAL WOULD BE NONSENSICAL

    The trial testimony of defendant, Vaughn Young and Laurel Sullivan

originated in 1984 in open court attended by public and press. The

testimony remained available to the public in the court file until the

December 11, 1986 stipulated sealing. Judge Breckenridge stated at that

time:

"Of course, there have been innumerable people
in the interim who have come forward and
examined the file. I haven't the slightest idea
who all those people are, but certainly we can't
go back and retract from them whatever they
have seen or observed or copied."

The testimony has been public in the record on appeal since 1984.

    The reporters' transcripts of proceedings were obtained by defendant

throughout the month-long trial, and by its end he possessed the complete

record. All the daily transcripts were loaned to Mrs. Brenda Yates whose

husband owned a photocopy service. Mrs. Yates copied the entire record,

made it available to the public, distributed it and advertised to sell it.

Kenneth Long states in his declaration of October 8, 1987, filed in the Miller

case in England:

"Produced and shown before me now is exhibit
"KDL 39" which is a true copy of several pages
from a July/August 1984 publication entitled
"The Journal of the Advanced Ability Center."
Contained in the classified section of this
publication is an advertisement from Brenda
Yates offering for sale copies of the Armstrong
Trial Transcripts." Exhibit K to March 15, 1990 declaration.

12

 

Mrs. Yates recalls that she sold, copied and delivered approximately twenty-

five copies of the Armstrong trial transcript around that time. See

declaration of Gerald Armstrong filed herewith.

    Immediately following the trial Mrs. Yates also selected out of the

record some one hundred fifty pages which she made into a pack and

distributed. She recalls that she sold or gave away approximately one

hundred copies of that pack of transcript pages.

    The Armstrong trial decision, which is also often and generally called

"the Breckenridge decision," and which plaintiffs seek to seal in the appellate

record as pages 251-277 in Appellants' Appendix in Appeal No. B025920

and Exhibit C in Appellants' Appendix in Appeal No. B038975, has been a

public document since June 20, 1984. It was affirmed by this Court on July

29, 1991.

    The Breckenridge decision is forever a piece of international

jurisprudence. It will continue to be used by litigants or governmental

agencies as long as the undeniably litigious Scientology organization takes

legal or factual positions contrary to Judge Breckenridge's findings. On the

issue of unity of control, see, e.g. final adverse ruling dated July 8, 1988

issued by the Department of the Treasury to the Church of Spiritual

Technology, filed herewith as Exhibit G. This ruling is now part of Church of

Spiritual Technology v. US, No. 581-88T in the United States Claims Court.

See item 945 at p. 70 of Plaintiffs' Exhibits to Complaint filed herewith as

Exhibit H.

"Witness testimony in the Armstrong case alleged
that the project known as Mission Corporate
Category Sort-Out (MCCS) had been undertaken
by the Church of Scientology of California in 1980.
The alleged purpose of the MCCS project was,

13

 

according to the testimony of Laurel Sullivan, to
devise a new organizational structure to conceal
L. Ron Hubbard's continued control of the Church
of Scientology." Final adverse ruling, p. 2."

Utilizing testimony any (sic) witnesses from the
Armstrong case, the government successfully
argued that Mr. Hubbard was a managing agent
of the Church of Scientology of California as late
as 1984. See the Founding Church [of Scientology
of Washington, D.C., Inc.] v. Director, F.B.I., [et al

802 F.2nd 1448 (1985), cert.den]." Final adverse
ruling p. 4.

Plaintiffs themselves lament:

"It is precisely the trial court's "findings" [ ]
which other parties in other litigation continually
have sought to invoke against the Church, either
to support their own allegations or as collateral
estoppel." Appellants' Opening Brief in Appeal
No. B025920, n.31, p.27.

    The Breckenridge decision has been cited, discussed and quoted in

countless newspaper articles and several books. See, e.g. Miller, Russell,

Bare-Faced Messiah: The True Story of L. Ron Hubbard (1987) 370-372,

filed herewith as Exhibit I; Corydon, Bent and Hubbard, L. Ron, Jr., L. Ron

Hubbard: Messiah or Madman (1987), 238-248, filed herewith as Exhibit J;

Atack, Jon, A Piece of Blue Sky: Scientology, Dianetics and L. Ron Hubbard

Exposed (1990), 328-334, filed herewith as Exhibit K.

     Although plaintiffs have moved to seal two copies of the Breckenridge

decision in the appellate record, they have not moved to seal several other

copies which have been filed in the same open record. [9] If plaintiffs intend


[9] See, e.g. Exhibit I to plaintiffs' Petition for Writ of Supersedeas filed
December 19, 1988, Exhibit A to Real Party in Interest, Bent Corydon's
Response to Petition for Writ of Supersedeas filed December 23, 1988, and
Exhibit A to Defendant's Reply to Appellants' Opposition to Petition for
Permission to File Response filed March 30, 1990, all in Appeal No. B038975;
and Exhibit A to plaintiffs' Motion to Seal Record on Appeal now before this
Court.

14

 

that only the two decision copies they have designated should be sealed and

the other copies left unsealed and unaffected by the sealing, then they ask

this Court to order a senseless act. If they intend that the authenticity and

validity of not only the unsealed copies of the Breckenridge decision in the

record on appeal but the perhaps thousands of copies of the Breckenridge

decision world wide be rendered questionable, and the meaning of the

decision and case be confused, they ask this Court to abet a conspiracy to

obstruct justice. When seeking to seal court records in which their antisocial nature

and acts have been exposed, plaintiffs are fond of pronouncing that "[i]n the

analogous area of trade secrets, it is routine for courts to seal judicial

records." Motion at 9, Appellants' Opening Brief in Appeal No. B038975 n. 12

at 21. The application of the rationale of trade secrets law, however, reveals

just how silly plaintiffs' effort to seal the record on appeal here is. Not only

are there no trade secrets in the Breckenridge decision, or anywhere else in

the appellate record, there are no non-trade secrets. The decision has been

so widely distributed, is so publicly available and has been so universally

used in legal and non-legal contexts that sealing it in the Armstrong

appellate record would be, in the area of trade secrets, analogous to sealing

in 1991 a Henry Ford patent for the internal combustion engine.

    Plaintiffs also seek to have sealed pages 57 - 60 in Appellants'

Appendix in Appeal No. B025920, TRO issued in the case below, August 24,

15

 

1982; pages 4-28 of Respondent's Brief in Appeal No. B025920; and Exhibits

K, L and N in Appellants' Appendix in Appeal No. B038975, respectively Bent

Corydon's Opposition to Motion to Unseal File, November 2, 1988; Plaintiffs/

Intervenor's and Cross-Defendant's Motion for Clarification and/or

Reconsideration to Preserve Seal on One Document Previously Held Excluded

from Evidence and Held to Be Protected by Attorney-Client Privilege, and

Five Additional Documents Previously Excluded from Evidence and

Maintained Under Seal, November 15, 1988, and Opposition to Motion to

Reconsider, November 23, 1988.

    While plaintiffs claim that the August 24, 1982 TRO has been under

seal since December 1986, they themselves have used it publicly after that

time. Kenneth Long stated in his affidavit of October 7, 1987, filed in the

Miller case:

"On August 24, 1982, the Honorable Judge John
L. Cole of the Los Angeles County Superior Court
issued a Temporary Restraining Order requiring
Mr. Armstrong, his counsel, and all other persons
participating or working in concert with Mr.
Armstrong to surrender to the Clerk of the Los
Angeles Superior Court all of the documents
taken by Mr. Armstrong. There is now produced
and shown to me marked as "KDL 15" a copy of
the Temporary Restraining Order. As the Court
will see, the terms of that Order specified that
the documents surrendered to the Court would
remain under seal, available only to the parties
in the action and only for the purposes of that
action." Exhibit F to defendant's declaration of
March 15, 1990, at p.7.

The TRO was created by plaintiff organization, it has been a public document

since 1982, and it contains no conceivably private or confidential materials.

he only effect of sealing it now would be confusion.

16

 

    Exhibits K, L and N in Appellants' Appendix in Appeal No. B038975

have never been sealed. They comprise public documents, they were filed

publicly, plaintiffs did not move to seal them in the trial court's record, and

they have been public for almost three years. These materials, moreover,

concern matters and documents which have been the subject of litigation

between plaintiff organization and the United States Government from 1984

until the present. [10]

    Respondent's Brief in Appeal No. B025920, in which plaintiffs seek to

seal pages 4 to 28, has been part of the open record on appeal since January

1986. It is clear that this Court depended on these pages of the brief in its

consideration of the facts and issues in the case. [11] Plaintiffs do not ask

that their briefs be sealed, even though they, like respondent's brief, cite to

the trial transcript and documents admitted into evidence at trial. Sealing

pages 4-28 of respondent's brief would have the effect, therefore, of leaving


[10] See, e.g., regarding the MCCS tapes, U.S. v. Zolin, 809 F.2d 1411 (9th Cir.
1987), op. withdrawn, reh.gr. en banc (9th Cir. 1987), 832 F.2d 127, reh.
dismd. en banc, 842 F.2d 1135 (9th Cir. 1988), am'd 850 F.2d 610 (9th Cir.
1988), cert.gr. 488 U.S. 907, 109 S.Ct. 257, 102 L.Ed.2d 246, motion den .
489 U.S. 1005, 109 S.Ct. 1110, 103 L.Ed.174 (1989) aff'd in part and
vacated in part
, 491 U.S. 994, 109 S.Ct. 2619, 105 L.Ed.469 (1989), on
remand
, 905 F.2d 1344 (9th Cir. 1990), reh.den. en banc (unpublished
order September 19, 1990); cert.denied, Church of Scientology v. U.S.,
___U.S.___, 59 U.S.L.W. 3636 (March 18, 1991) Also see, regarding the "five
documents," e.g., the "Order Allowing the United States of America to
Examine and Copy Exhibits 5-K, 5-L, 5-0, 5-P and 6-0," filed in the
Armstrong case August 27, 1991 and filed herewith as Exhibit L.

[11] See, e.g. documents shredding at Gilman Hotsprings, Resp. Bf. at 10,11;
Armstrong Opinion at 919,920; defendant's November 1981 report
regarding factual inaccuracies in Hubbard biographies, Resp. Bf. at 14, 15;
Armstrong Opinion at 920.

17

 

stand plaintiffs' statement of facts and thus confusing any reader of the

record on appeal and allowing plaintiffs to restate and reinterpret the facts

of the case. Although this would please plaintiffs it is unfair to defendant

and the public.

    Since all the materials plaintiffs want sealed are public records,

sealing them would be an idle act. But even if it were found that any of the

materials were not public and merited being considered private and

confidential and therefore sealed, such a sealing would also be an idle act,

since plaintiffs continue to attack defendant in present time concerning

matters in the record on appeal, and he has a Constitutional right to defend

himself, including by use of the "sealed materials."

    It is a well known maxim of jurisprudence that "the law neither does

nor requires idle acts." California Civil Code § 3532, Stockton v. Stockton

Plaza Corp. ( 1968) 261 Cal.App.2d 639, 68 Cal.Rptr. 266.It is an idle act

plaintiffs urge this Court to order.

 

IV

PLAINTIFFS HAVE SHOWN NO GROUNDS
FOR SEALING THE RECORD ON APPEAL

    This Court prescribed in Armstrong what was necessary for its

consideration of a motion to seal. "Should plaintiffs move to seal the record

on appeal, we would require a much more particularized showing," than

merely "that their pursuit of an action brought primarily for the purpose of

protecting their respective privacy interests in the documents converted by

Armstrong should not cause disclosure of the very information they sought

to protect, through references in the record to such information." Id at 923.

Yet plaintiffs' motion simply repeats that argument, and the portions they

seek to seal do not come close to a "much more particularized showing."

18

 

     Plaintiffs also argue, exactly as they did in their appeal from Judge

Geernaert's order unsealing the Armstrong court file, that "Judge

Breckenridge was aware in entering the sealing order, the privacy interest of

appellants was exceptionally strong." Appellants' Brief in Appeal No.

B038975 at 13, Motion at 10. But this Court stated in Armstrong: "We are

unaware of any showing made before Judge Breckenridge, other than the

parties stipulation, justifying sealing by the trial court of the record in this

case." Id. at 921. Particularized showings were made during the trial

document by document, at which time Judge Breckenridge made

particularized rulings, admitting some documents into evidence, allowing

portions of some documents to be read into the record, and upholding

plaintiffs' privacy rights in some documents and maintaining them under

seal.

     Plaintiffs have also not followed the Court's guidelines for parties

seeking to seal appellate records as laid down in Champion v. Superior Court ,

supra 201 Cal.App.3d 787, 2 47 Cal.Rptr. 624.

"A request to seal a document must be filed
publicly and separately from the object of the
request. It must be supported by a factual
declaration or affidavit explaining the particular
needs of the case. Where the contents of the
to-be-sealed document become a focus of the
argument for sealing, the request must refer
the court to the to-be-sealed document, where
the court may review its contents and any
content-specific declarations and arguments
about sealing it." Id. at 788.

Here, plaintiffs have appended to their motion as Exhibit A the Breckenridge

decision, which is one of the documents they wish to have sealed. And they

have not provided this Court with "content-specific declarations and

19

 

arguments about sealing" the portions of the record they have designated,

but have provided only a non-specific declaration which but repeats the

argument in the motion.

 

V

THE WAKEFIELD CASE DOES NOT SUPPORT
SEALING THE RECORD IN ARMSTRONG

Contrary to plaintiffs' assertion that the case of Wakefield v. Church of

Scientology of California (11th Cir. 1991) ____F.2d____, Slip. Op. 4625

forwards their argument for sealing the record an appeal, it undermines it.

Plaintiffs claim that "[i]n that case, plaintiff Wakefield settled a case with

defendant Church, and then repeatedly violated her settlement agreement

by violating its confidentiality provisions." Motion at 14. In Armstrong it is

plaintiff organization which has repeatedly violated the settlement

agreement thereby forcing defendant to respond. Plaintiffs claim that

defendant Scientology organization "brought contempt proceedings against

Wakefield, and sought to have the proceedings in camera, in order to protect

the very privacy rights placed at issue by Wakefield's conduct." Motion at

14. In Armstrong defendant seeks to have the court records kept unsealed

and publicly available to protect himself from plaintiff organization's

conduct. And where the district court was quoted in Wakefield as stating

that "due to the plaintiff's complete and utter disregard of prior orders of

this court, the court concludes that any restriction short of complete closure

would be ineffective," in Armstrong it is plaintiff organization which has

violated court sealing orders, and now nothing short of complete disclosure

would be ineffective.

20

 

In this motion to seal the record on appeal plaintiffs aver that the

non-disclosure conditions of the settlement agreement Wakefield had

entered into with the Scientology organization were reciprocal, that what the

organization sought to enjoin her from disclosing were "matters which

Wakefield and the Church had agreed to keep confidential." Motion at 15.

The 11th Circuit Court of Appeals apparently understood the non-disclosure

conditions to be reciprocal when it stated that "[o]n September 9, 1988, the

magistrate judge issued a report and recommendation which concluded that

Wakefield had violated the settlement agreement, and the Church had fully

complied with the agreement's terms and conditions." Id. at 4626. In a

Motion to Delay or Prevent the Taking of Certain Third Party Depositions

dated November 1, 1989 and filed in the case of Corydon v. Church of

Scientology International, Los Angeles Superior Court No. C694401, and filed

in Appeal No. B038975 as Exhibit D to defendant's declaration of March 15,

1990, defendant Scientology organization stated:

"One of the key ingredients to completing these
settlements, insisted upon by all parties involved,
(emphasis in original) was strict confidentiality
respecting: (1) the Scientology parishioner or
staff member's experiences within the Church of
Scientology; (2) any knowledge possessed by the
Scientology entities concerning those staff members
or parishioners; and (3) the terms and conditions
of the settlement agreements themselves." 3-15-90
declaration, Ex. D, p.4.

Yet in response defendant's allegations in the March 15, 1990 declaration

of violations of the settlement agreement by Scientology, organization

attorney Lawrence Heller wrote in a declaration dated March 27, 1990 filed

in the Corydon case in support of an Opposition to Motion for Order Directing

21

 

Non-Interference with Witnesses, and filed as Exhibit F to defendant's

declaration of December 25, 1990 in Appeal No. B038975:

"The confidentiality provisions of the Armstrong
Settlement Agreement are nor (sic) in nature.
Mr. Armstrong does have duties of confidentiality
[ ] [h]owever, there are no reciprocal duties of
confidentiality under the terms of the Armstrong
Settlement Agreement that apply to any Church
parties in the settlement." Defendant's Appendix, p89.

The Wakefield Court either did not have before it, or did not know that it

had before it, such an anti-public policy punching bag agreement, so their

opinion regarding violations of plaintiff Wakefield's settlement agreement is

inapplicable here.     But the Wakefield opinion is applicable for its strong argument in

favor of openness in our courts generally and in the Armstrong appellate

record specifically, for parties such as plaintiffs herein will misstate and

misuse secret agreements and secret proceedings just because they are

secret.

 

VI

DEFENDANT'S INTEREST IN KEEPING THE
RECORD ON APPEAL UNSEALED IS REAL

    A sworn statement in a foreign court labeling defendant "an admitted

agent provocateur of the U.S. Federal Government," 3-15-90 declaration

Exhibit H, at 4, although easily viewed as hilarious, especially in light of what

defendant really is, is, in this period of human history, something very

calculated and sinister. The perverse use of an intelligence operation

Scientology ran against defendant in 1984 in the organization's battle with

the Criminal Investigation Division of the IRS in 1991 is heartbreaking. See,

22

 

Exhibit A at p. 14. The perjurious declarations of plaintiffs' attorneys are

frightening. See, e.g. Exhibit E, defendant's declaration of September 3, 1991

in response to attacks by various lawyers; and defendant's declaration of

December 25, 1990, filed in Appeal No. B038975 as Defendant's Appendix.

    That defendant has been under attack from plaintiff organization since

the December 1986 settlement is unquestionable. Since filing their motion to

seal the record on appeal, plaintiffs have filed a motion in Los Angeles

Superior Court to Enforce the Settlement Agreement, for Liquidated Damges

of $100,000 and to Enjoin Future Violations. Defendant is filing this motion

herewith as Exhibit M in a sealed envelope. It is his opinion, however, that

the motion contains no part, document or evidence that is not a matter of

public record, and he has no objection to this exhibit being unsealed by this

Court.

    It is clear to defendant that plaintiffs seek to destroy his credibility,

his character and his person, and that one of their weapons is the sealing of

his words and hiding the record of their actions against him. Safety for

honest men lies in openness; safety for the dishonest lies in secrecy. As long

as defendant's words are available to the public he enjoys some safety.

When all his words have been sealed there remains no deterent to plaintiffs

going a step further and sealing him.

     This Court has a golden opportunity in this matter to send a message

to plaintiffs to cause them to abandon their hope of enlisting theassistance

of the judiciary to hide their past and confuse the truth, and to place their

hope for a peaceful future in openness, not secrecy.

23

 

VII

THE PUBLIC'S INTEREST IN AN OPEN APPELLATE
RECORD IN THE ARMSTRONG CASE IS OVERWHELMING

     Quoting from Estate of Hearst, supra, this Court delineated the public

policy regarding access to court records:

"If public court business is conducted in private,
it becomes impossible to expose corruption,
incompetence, inefficiency, prejudice and
favoritism. For this reason traditional Anglo-
American jurisprudence distrusts secrecy in
judicial proceedings and favors a policy of
maximum public access to proceedings and
records of judicial tribunals. [ ] And the California
Supreme Court has said, 'it is a first principle
that the people have the right to know what is
done in their courts. (In re Shortridge (1893)
99 Cal. 526, 530 [34 P.227,228].) Absent strong
countervailing reasons, the public has a legitimate
interest and right of general access to court
records ...." Armstrong, supra. 283 Cal.Rptr. at 921,
Estate of Hearst. supra, 67 Cal.App.3d at 784,
136 Cal.Rptr. at 824.

    The Armstrong case vividly demonstrates why secrecy in court files is

distrusted. Taking advantage of the sealed trial court file and a secret gag

agreement, plaintiff organization used matters from the court file, including

sealed trial exhibits, in litigation against opponents who did not have access

to the same sealed materials. They attacked defendant with his own

documents while threatening him with lawsuits if he defended himself, and

they perverted the meaning of matters within the sealed file. Once the file

was sealed, plaintiffs fought with all their legal might litigants, such as Bent

Corydon, who sought access to evidence which, in an open court file, would

have been available with as little effort as filling out a file request slip and

handing it to a court clerk.

24

 

     Plaintiffs herein are public figures, as was L. Ron Hubbard, whom most

of the documents which gave rise to the litigation and much of the evidence

adduced at trial concerned. Plaintiff organization advertises broadly and

forcefully, recruits actively, seeks publicity, is notorious and very wealthy.

Its doctrine of "fair game" toward its perceived enemies has been recognized

and denounced by several courts including this one. Plaintiffs' history,

policies and actions are matters of great public interest, and public policy

therefore requires that the record on appeal, which deals with these history,

policies and actions be kept unsealed and complete.

    Plaintiffs do not seek to seal the record on appeal to vindicate privacy

rights. As Judge Breckenridge stated in his famous decision: "The Guardian's

Office, which plaintiff (Mrs. Hubbard) headed, was no respector of anyone's

civil rights, particularly that of privacy." Decision at p. 12. Although

plaintiff organization has renamed the Guardian's Office's and changed its

head it has not altered its nature. It is plaintiffs' hope to conceal the facts,

confuse the issues, pervert the truth, and deny the public the information it

needs and has a Constitutional right to for making rational choices.

25

 

VIII

CONCLUSION

     Plaintiffs have made no showing that would justify sealing the record

on appeal, whereas plaintiffs' unclean hands, public policy, defendant's

interests and the fact that all the to-be-sealed documents have been for

years in the public domain overwhelmingly warrant keeping the record

open.

Dated: October 14, 1991

Respectfully submitted
[Signed] G. Armstrong
Gerald Armstrong
In Pro Per

26


 

SERVICE LIST
(Opposition to Motion to Seal Record on Appeal)

ERIC M. LIEBERMAN, ESQ.
RABINOWITZ, BOUDIN, STANDARD,
KRINSKY & LIEBERMAN, P.C.
740 Broadway - Fifth Floor
New York, New York 10003-9518

MICHAEL LEE HERTZBERG, ESQ.
740 Broadway - Fifth Floor
New York, New York 10003-9518

BOWLES & MOXON
6255 Sunset Boulevard, Suite 2000
Hollywood, California 90029

TOBY L. PLEVIN, ESQ.
10700 Santa Monica Blvd.
Suite 4-300
Westwood, CA 90025

CLERK OF THE SUPERIOR COURT
County of Los Angeles
111 North Hill Street
Room 204
Los Angeles, CA 90012

 


PROOF OF SERVICE BY MAIL

    I am a resident of the County of Marin, State of California. I am over

the age of eighteen (18) years and not a party to the within action. My

business address is 711 Sir Francis Drake Blvd, San Anselmo, California

94960.

    On October 15, 1991 I caused to be served the within OPPOSITION TO

MOTION TO SEAL RECORD ON APPEAL on interested parties in this action by

placing a true copy thereof enclosed in a sealed envelope with postage

thereon fully prepaid in the United States mail at San Anselmo, California,

addressed to the persons and addresses specified on the service list attached.

    Executed on October 15, 1991 at San, Anselmo, California.

    I declare that the foregoing is true and correct.

[Signed] L. Phippeny
L. Phippeny
   

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