First Appellate District, Division Four
Church of Scientology International v. Superior Court of the State of
California, County of Marin; Gerald Armstrong Real Party in Interest
Transcript: Oral Arguments
Petition for Writ of Certiorari or Writ of Mandamus
September 21, 2005
Start time: 11:00:19 Finish time: 11:23:18
JUSTICE RIVERA: All right. Calling line five. Church of Scientology vs.
The panel in this matter is myself, I'm Justice Rivera, and Justice,
Judge John Munter, who is sitting by special assignment from the San Francisco
Superior Court, and as well Justice Patricia Sepulveda. As you've already
she is not able to be present today. However the argument will be taped
in its entirety. It will be made available for her to hear and consider
prior to our making a decision in this matter.
We have alotted ten minutes per side for your arguments. Mr. -- is it
MR. MOXON: Yes, your Honor.
JUSTICE RIVERA: Mr. Moxon. Actually, before we begin, let me just make
a note. I hope that Mr. Armstrong received the order
indicating that the appeal had been dismissed and the only issue remaining
in this case is the petition
for writ of certoriari on the contempt proceedings. Okay.
So, how much of your time, if any, would you like to reserve for reply?
MR. MOXON: I think five minutes would be fine, your Honor.
JUSTICE RIVERA: Five. Okay. Um, we have read the briefs. We're familiar
with the record. And so I suggest that you don't
spend time repeating the facts or the history, procedural history of the
case, and that just proceed to your arguments.
MR. MOXON: Very good. May it please the court. I am counsel to the Church
of Scientology International who has been the victim of hundreds of violations
of a permanent
injunction by Mr. Armstrong. Mr. Armstrong is a man who has three times
been found in criminal contempt for violations of these court orders and
violations of the court's injunctions.
But because the law was not enforced, because these injunctions were
not enforced for a period of several years and Mr. Armstrong had fled the
jurisdiction, he has been now emboldened to state even in his, his opposition
papers, and state in his own words that he vows to continue to violate the
court's orders. He vows to continue to breach the injunction indefinitely
into the future. Even suggesting that since the court is not going to enforce
the sanctions against him, the criminal penalties against him, not going
to enforce the contempts against him, that he is suggesting that well perhaps
the best thing to do is to renegotiate a new agreement and pay him some
But we cannot have a court system where the courts will refuse to enforce
the orders, the final orders of other judges. We can't have a court system
where this system essentially encourages a form of anarchy by a contemnor.
I believe that the discharge
of the final orders by Judge Duryee was without jurisdiction. She didn't
have jurisdiction to issue those orders. She didn't have jurisdiction to
discharge them. She didn't have jurisdiction to combine them with the, with
the civil judgments against Mr. Armstrong. And therefore the ah, her orders
simply must be reversed. It's --
JUSTICE RIVERA: Let me ask you a couple of questions. First is, we know
that there is some authority for granting a remission of a contempt sentence.
And Mr. Armstrong argues that he is in a position to be the recipient of
such a remission. How do you respond to that?
MR. MOXON: He didn't argue that below. There was no remission by the
court. That was not an issue that is presented here. It can't be presented
the first time in appeal. And the authority that there is in the Vernon
case for allowing a remission is where there's, where there's good cause.
There was no cause shown for a remission below. Absolutely none. He appeared
after years of having been out of the jurisdiction. Admittedly.
Because the orders were being enforced the instant?
And he did absolutely nothing to, to warrant a remission, even if it
had been before the court. But it simply wasn't. But certainly he's met
none of the requirements indicating that, that he's entitled to a remission.
Indeed, his, his ah, well arrogance in saying "I'm thumbing my nose
at the court. Now as far as I'm concerned, I don't have to comply with,
with the court's rulings. I'm going to continue to violate it." Hardly
ah, bespeaks of a situation where a remission is appropriate. Again, even
it was before the court.
JUSTICE RIVERA: The second question I have, is um, on the third contempt,
the court sentenced -- fined him a thousand dollars concurrent with the
judgment. I'm assuming that means included in the five hundred thousand
MR. MOXON: I think that's right.
JUSTICE RIVERA: And you say she has no jurisdiction to do that?
MR. MOXON: That's right. She doesn't. Because the criminal contempt is
completely different than the compensatory damage award. You cannot -- there's
a number of cases that we've cited indicating you can't combine the two.
You can't, ah, you can't fine someone civilly in a criminal proceeding,
and you can't allow the civil proceeding to, in a sense, pay for a contempt
against the court. The party that's been victimized in a sense by the contempt
is the court itself. And by the payment, or the award of a payment, for
civil damages to the civil party obviously doesn't pay the court the fine.
Obviously it has nothing to do with the incarceration that's been issued.
JUSTICE RIVERA: Is it, is it? Isn't it true that the parties agreed that
the two proceedings would be heard
MR. MOXON: Ah, heard at the same time. Now that was sprung on them of
course at the, at the day of the trial. The court announced that they would
be heard together. The court had the, had the authority to do that, to hear
them together. But that doesn't mean that they're heard together for the
purposes of combining the judgments. You can't combine a civil and a criminal
judgment. Whatever Judge Duryee thought because she had been assigned the
case, and told the parties that morning she had been assigned the case --
that has no affect on her ability to say, "Okay, now I'm gonna throw
out this criminal contempt because you've been hit with a damage award in
a civil case." They're apples and oranges, and they don't mix.
JUSTICE RIVERA: Do you challenge her authority to um, to deem the jail
time served on the third contempt by Mr. Armstrong's appearance in court?
MR. MOXON: Absolutely. Appearance in court is not jail time. Appearance
in court is an appearance in court. He ah, as I indicated, he fled the jurisdiction
for years. He never served a day of jail time. You know, when you -- you
know, many times a person is held in temporary custody pending a trial.
And that would be time served. But there's been no time served here.
In any event these were final judgments. She absolutely did not have
the authority to deem time served for the final judgments of Judge Smith
and, and the other judge.
JUSTICE RIVERA: There hadn't been a sentence at that point --
MR. MOXON: There most certainly had.
JUSTICE RIVERA: The underlying contempt had been adjudicated but no sentence
had been imposed.
MR. MOXON: Ah, that's not correct your Honor. Sentences had been imposed.
JUSTICE RIVERA: On the third contempt?
MR. MOXON: Not on the third. But on the first two --
JUSTICE RIVERA: No, I'm talking about the third contempt only right now.
MR. MOXON: The third contempt? It's an interesting question. I've been
grappling with that one myself. What could she have done? She could have
issued any ruling that she wanted to issue with respect to that third contempt.
If she had said, "I've considered this third contempt. I find you in
contempt and I'm not going to sentence you at all," she had the authority
to do that. But she didn't do that. What she did is, "I'm sentencing
you to five days. Okay? That's done. Now, that I've sentenced you to five
days, I'm going to consider it time served because you're here today."
It's too late to do that.
JUSTICE RIVERA: Is there authority directly on point saying that there
is, there is no ability of a judge to deem the time served?
MR. MOXON: I haven't seen any. But I know that there is clear authority
that we have cited to the court indicating that she didn't have the authority
to alter the prior contempt.
JUSTICE RIVERA: No, I'm talking about the third contempt now.
MR. MOXON: Third contempt. I -- no I haven't found anything. I don't
know what she could have done on that. Ah, I'm saying it makes sense because
she's combining the civil and the criminal that she didn't have the authority
to do it. But honestly I don't know. You know as to the third contempt it's
probably a, ah, you know, it's, it's an odd twist in an odd case.
JUSTICE RIVERA: Okay, thank you.
MR. MOXON: I don't know.
MR. ARMSTRONG: Your Honor, I appreciate the opportunity to be here. And
I have come here along with my wife from Canada in large part to let you
know that contrary to what Scientology says, I am not a fugitive. I'm here
and I've never been a fugitive. I left California before any of these contempts.
Or rather, before any of the convictions on the contempts.
The first contempt I think really is an extraordinary where, while I
was in the process of leaving, I received a subpoena for production of documents
in a federal case. The following day I received a letter from Scientology's
attorney threatening me with prosecution should I produce those documents.
JUSTICE RIVERA: Mr. Armstrong, the time has long since run for you to
challenge the adjudication of the underlying contempt. That, that had to
take place a long time ago. So, I'd appreciate your addressing these other
issues that are raised by ah, the petitioner which are whether the thousand
dollar fine can be combined with the civil damages and whether the trial
court had jurisdiction to um alter the sentences that were imposed by the
first judge in the first two contempt proceedings.
MR. ARMSTRONG: As Scientology has itself said, your Honor, the court
has the power, the authority to remit such sentences if there is good cause,
if there are grounds. Now, the court obviously believed that there were
grounds. In fact there is a, an indication in the record at page
58 of the trial transcript where she -- where Scientology's lawyer says
that, oh, he says my only excuse is that I allege a conspiracy between Scientology
and former Marin Superior Court Judge Thomas. And she says, "No, he
has other reasons than that." Something to that effect.
There would have been a discussion of the circumstances or the mitigating
factors except that that was not necessary at the time, if there -- because
she simply either remitted or discharged. If there remains a question as
to whether or not such factors exist then, as your Honor noted, I did indeed
list a number of what I believe are very profound factors which mitigate
So if there exists a question of fact, that court is the trier of fact.
And I would ask that this be sent back to the, to the Marin court to see
whether or not there are mitigating factors. What are the mitigating factors?
I believe that I have a right in arguing such mitigating factors to bring
up the religious argument, which to me is what this case is all about. Scientology
analogizes my contempts to ah, a car dealership. It analogizes itself to
dealership and analogizes me to an automobile arson, arsonist, which
I think is, is ridiculous. By law, by United States law, I am encouraged
in fact to do what I do.
I have the same religious rights. This is a religious persecution case.
My communications are my religious expression. They can't be otherwise.
They are about a religion.
JUDGE MUNTER: Excuse me. Let me ask you, is this what you are saying?
On the remission, there was no evidence before the trial judge of good cause,
ah for the remission, but that you didn't have a fair opportunity to present
a good cause showing?
MR. ARMSTRONG: No, your Honor. What I'm saying is, Mr. Moxon said, "Well
I didn't make a motion." She remitted. There was no discussion up to
that point. Or, she discharged. If she had said, "Okay, let's talk
about these sentences now." Because she reserved
judgment about those right at the beginning of the trial. And if there
was, then certainly I would have had the opportunity right there to present
what are the mitigating factors. And I believe that if there exists right
now a controversy on whether or not such mitigating factors exist, then
it should go back to the Marin trial court and I would be glad at that point
to put on the facts and to put on a legitimate defense of those contempts.
JUSTICE RIVERA: Mr. Armstrong, my, I am gathering that your good cause
for remission is substantially identical to the defense you presented for
MR. ARMSTRONG: Not at all, your Honor.
JUSTICE RIVERA: -- religious persecution, that this was, should-- it
was supposed to be a bilateral contract, and it was only enforced unilaterally
and a number of other arguments of that nature.
MR. ARMSTRONG: Well, it certainly would have included those things, because
it is one 23-year history of persecution by the Scientology organization.
So the whole history potentially could have come in. The fact that these
alleged contempts happened largely outside the United States, where I am
completely protected by another set of laws and by international human rights
Scientology is not here for the purpose that they claim, to uphold the
dignity of the court. I listed a series of very serious misrepresentations
to this court and to the other court that Scientology has stated in order
to be here, in order to get me thrown in jail. This is not an organization
which in so doing, in lying about me, or lying about the procedure is upholding
the dignity of the court. It simply is not true. If there is any, if this
court believes that there is any real legitimate reason for sending me to
jail, then I ask for understanding and I ask for mercy. Scientology will
not just --
The record I think also is very clear. Scientology attorney Andy Wilson
states that he wants me in jail so that Scientology can get
satisfaction. That's not a purpose allowed by law. They are not here
to uphold the dignity of this court or the justice system or the Marin court.
And I would ask your Honor, to really -- I appreciate that you have studied
this record. I, I think, you know, I think that a studying of the record
will indicate that a true gigantic miscarriage of justice has occurred that
went back to Judge Thomas in 1995. And it is only through my slogging against
tremendous odds that finally I got that judgment of unconscionability. And
I think that that in itself, because she did link those things, to finally
declare that contract unconscionable, I believe is a mitigating factor of
JUSTICE RIVERA: Well Mr. Armstrong, the judge didn't find the contract
unconscionable. The judge found that any amount of liquidated damages exceeding
eight hundred thousand dollars would be unconscionable.
MR. ARMSTRONG: She found
that punishment beyond the benefit that was conferred on me to be unconscionable,
and this is most definitely punishment beyond the eight hundred thousand.
JUSTICE RIVERA: That was not -- I don't think that that was the court's
finding. But let me ask you a different question and that is, my understanding
of the law is that remission occurs if the compliance with the court's order
is ultimately obtained. Has there com-- has there been compliance with any
of the court orders pertaining to this settlement agreement?
MR. ARMSTRONG: Uh, it, compliance your Honor is literally impossible.
Do you know that if you look at both the judgment and if you look at the
contract, I am not permitted to be here today. Judge Thomas originally interpreted
and enforced the contact based on what was included within the four corners
of that contract. It does not permit me to be here. It does not permit me
to file lawsuits against Scientology because necessarily I must discuss
Scientology in, to be here. I am not compelled by subpoena. And how could
that contract possibly be lawful when it requires that I not make myself
be amenable to subpoena, when it requires that I not communicate, even to
courts or to government, government agencies. That contract prohibits me.
Who in their right mind -- and that comes down to the unconscionable --
of an unconscionable-- unconscionability and unconscionable contract. And
that is, who in their right mind, not deluded, would sign such a contract.
And who but someone unfair and seeking injustice would present such a contract
for signing. I was forced, literally forced to sign that contract. I had
no chance. And I knew at the time, because I had litigated against this
organization, and because I had been fair game for five years up to that
time, and because I am a religious class. They have made me a religious
class, the Suppressive Person.
It is an absolutely abhorrent, shocking condition to be in. The threat never
They have, at this very minute, they have an agent across the street
from me who has run an operation on me for over a year now. Literally across
the street. Do you know that according to the contract, I can't even say
the name "Tom Cruise." If I say, "Tom Cruise's movie was
lovely" he is a benificiary
of this contract -- I go to jail and fifty thousand dollars? The whole
thing is madness, and it really has to stop. I ask this court. You know--
JUSTICE RIVERA: Mr. Armstrong? Your time is expired.
MR. ARMSTRONG: Okay. Thank you, your Honor.
MR. MOXON: Very briefly, your Honor, some of the arguments you've heard
today have been made for a decade. They've been adjudicated. They've been
resolved. They're all res judicata. Notwithstanding the fact that they're
not accurate. For example, Mr. Armstrong is certainly able to file litigation.
He filed a lawsuit for purported defamation in the US District Court in
Nevada and that
case was litigated there. There's no issue as to whether or not he can,
he can do what he's done.
The court did not remit. There is no, there is no order of remission
by the court below. I think that that's an issue that's a bit of a red herring.
That's, that's not an issue in this case. It didn't say that it had remitted.
There were no arguments on a remission as the court point outed-- pointed
out. There would be some requirement to demonstrate that a party had complied
with an order or that it was unfair.
Mr. Armstrong took money in this contract. He spent the money and he
says, "Now I don't want to have to comply with it because I think it's
unconscionable. I'm going to keep the money and I'm going to continue violating
the contract as much as I please."
That's been adjudicated against him. Many times.
The purpose of this is not to throw him in jail. The purpose is to gain
compliance with the injunction. If he wanted to pay it back, just as counsel
said below in the trial, if he wants to pay the money back, he can do whatever
he wants. I'd be very happy to vacate this and get out of court. I don't
want to have to be here any more.
But the fact of the matter is, it's been adjudicated, and something has
to, some reason has to follow the rule of law that the court's orders must
be complied with, they must be enforced, and until they're enforced, I don't
know what it will take to gain compliance with him. Thank you.
JUSTICE RIVERA: Thank you. The matter is submitted.
A CD audio recording of
oral argument in this case was obtained from the
of the First
District Court of Appeal. This unofficial transcription was made by
Letkeman on September 30, 2005. [top]