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TABLE OF CONTENTS
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| PETITION FOR REHEARING | 1 |
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TABLE OF AUTHORITIES
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Cases
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| Allard
v. Scientology (1976) 58 Cal. App. 3d 439, 129 Cal. Rptr. 797..............................
CSI v. Richard Behar and Time Warner, Inc. 806 F.Supp. 1157...................................... ITT Telecom Products Corp. v. Dooley (1989) 214 Cal.App.3d 307, 319........................ Kugler v. Romain, 58 N.J. 522, 279 A.2d 640............................................................ Scientology v. Armstrong (1991) 232 Cal.App.3d 1060 , 283 Cal.Rptr. 917..................... Scientology v. Wollersheim (1996) 42 Cal.App.4th 628................................................. U.S. v. Heldt, 215 U.S.App.D.C. 206.......................................................................... Wollersheim v. Scientology (1989) 212 Cal.App.3d, 872............................................... |
20 15 10, 13 39 21 21 5 21
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| Statutes
18 U.S.C. §241......................................................................................................... 18 U.S.C. §1512....................................................................................................... 22
U.S.C. §§ 6401-6481
U.S. Constitution’s First Amendment.......................................................................... |
32 18 20, 31 34, 35, 36, 37, 38 8, 11
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Other Authorities 8 Witkin, Cal. Procedure (4th ed. 1997) Enforcement of Judgment .............................. Black’s Law Dictionary, Fifth Ed............................................................................. ii
Canadian Charter of Rights and Freedoms.................................................................. European Convention for the Protection of Human Rights and Fundamental Freedoms ... The Holy Bible........................................................................................................ The American Lawyer December 1980 ...................................................................... |
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32 32 12 30
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COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT, DIVISION FOUR
of this Court’s decision of October 19, 2005 granting Scientology’s petition for writ of certiorari or mandate. Armstrong respectfully submits that this Court committed factual and legal errors, which, if corrected, would require this Court to affirm the trial court’s May 20, 2004 order re sentences, or to direct the trial court to conduct a contractual unconscionability evidentiary hearing. 1
isolation of the few provided facts, some misleading and some flat out erroneous, from the real picture, from the real context, and from all that context’s real facts. This Court’s slim and erroneous facts and its avoidance of enormous sections of relevant reality create the appearance in reality of conscious cruelty.
factually indisputably Scientology’s target and victim in this case and far beyond. He has an inalienable human right to not be persecuted, and everything he writes and says is a proclamation that he cannot be persecuted. The California Courts’ files, and the record in this Court alone, document the reality he lives and discusses beyond any rational argument. This reality can be ignored, as this Court has done, but the reality cannot be opposed or argued against, since arguing against something requires addressing it. This Court improperly ignored reality and improperly made itself the trier of fact within the unreality left over in order to do what this Court, possessing the record it possessed, knew was unconscionable, apparently because it is unconscionable.
The evidence is that in December 1986, the parties entered into a settlement under which Armstrong received payment of a certain monetary sum that was a portion of a total sum of money paid to his attorney Michael J. Flynn to settle all of the claims of Mr. Flynn's clients. Ex. 1, p. 2, para. 3.
against the officers, agents, representatives, employees, volunteers, directors, successors, assigns and legal counsel of CSI; Church of Scientology of California, its officers, agents, representatives, employees, volunteers, directors, successors, assigns 2
and legal counsel; Religious Technology Center, its officers, agents, representatives, employees, legal counsel; volunteers, directors, successors, assigns; and all Scientology and Scientology affiliated organizations and entities and their officers, agents, representatives, employees, volunteers, directors, successors, assigns and legal counsel; Author Services, Inc., its officers, agents, representatives, employees, volunteers, directors, successors, assigns and legal counsel; L. Ron Hubbard, his heirs, beneficiaries, Estate and its executor; Author's Family Trust, its beneficiaries and its trustee; and Mary Sue Hubbard (“releasees” or “beneficiaries.”) Exs. 1, p.1, para. 1.
trying to make this case and the matter before this Court appear far more about the faceless corporate fiction CSI than the case and matter really are.
control of one person David Miscavige (“Miscavige”), who succeeded Scientology founder L. Ron Hubbard (“Hubbard”) as supreme director of the Scientology enterprise after Hubbard’s death in 1986. RApp. 14:24,25; 260:25-28. Miscavige, as Scientology director, is also clearly a beneficiary, and as the supreme director of Scientology he is the sole beneficiary-maker. If Miscavige decides to assign the benefits of the Armstrong contract to every entity and every person in the world, every entity and person in the world becomes a beneficiary.
paragraph 7.D. states that Armstrong agreed to maintain confidentiality and silence with respect to his experiences with the Church of Scientology and any knowledge or information he may have concerning the Church of Scientology, L. Ron Hubbard, or 3
any of the individuals and entities listed as beneficiaries or releasees in paragraph 1 of the contract. Exs. 1, p.6,7.
so in order to have some fact to make its decision look reasoned. There is no corporate entity called “the Church of Scientology.” Only the whole Scientology enterprise as a religion is the Church of Scientology. CSI, as has already been shown is not even a named organization in the contract’s paragraph 1. CSI’s officers, agents, representatives, employees, volunteers, directors, successors, assigns and legal counsel are included on the list, but not CSI. The one corporate Scientology entity that this Court has identified as the one corporate Scientology entity Armstrong is prohibited by contract from discussing is the one corporate Scientology entity noticeably not included on the list of named corporate Scientology entities that the contract actually prohibits him from discussing.
affiliated organizations and entities” included in the paragraph 1 beneficiaries list, and Armstrong is not arguing that CSI is a corporate Scientology loophole, which, because of its specific absence from the beneficiaries list, he is permitted to discuss. If that were so, he would obviously be tempted to make what he discusses, as this Court has done erroneously, all about CSI. But that would be totally dishonest.
he had no experiences with CSI to speak of to discuss. Armstrong did have twelve and a half years of experiences in the Scientology religion, and it was these experiences with the religion, not with CSI, that the contract prohibits him from discussing.
to sue Armstrong and to persecute him in this and other Courts. For that reason, obviously, Armstrong does discuss CSI as plaintiff, appellant, petitioner, and abuser of the judicial system herein. In fact, as even this Court must admit, it is impossible for Armstrong not to discuss CSI since it is impossible for him to even write this brief without discussing CSI and his experiences with CSI. Although it is impossible for 4
him not to discuss CSI, however, he rarely ever actually discusses CSI, because CSI is an essentially meaningless fiction. What Armstrong almost constantly discusses is just about everything else in the Scientology religion.
conclusion and decision it has reached to link Armstrong’s utterances, which constitute his breaches of the contract and his violations of the injunction, to CSI, the plaintiff and petitioner corporation herein. But CSI is just one of countless named and unnamed entities and individuals who comprise the beneficiaries. Exactly who or what all these beneficiaries are, Armstrong doesn’t know, and he believes that neither this Court nor the trial court know. Even CSI doesn’t know. Only David Miscavige knows who or what the beneficiaries are because he is the sole beneficiary-maker. If he declares that CSI is no longer a Scientology affiliated organization, which he alone can do, CSI disappears as a “beneficiary” altogether.
provision which states that Armstrong agreed that CSI and the other beneficiaries would be entitled to liquidated damages in the amount of $50,000 for each breach. Ex. 1, p.7. Who or what these other beneficiaries are is not known but it is believed that they number in the millions or billions.
are agents of Scientology, and there has been no showing that he does know. As this Court is aware, the Scientology enterprise in its core and in operation is an intelligence organization, RApp. 258:27-259-5, and it has had agents in the U.S. justice system at least as early as the 1970’s. See, e.g., U.S. v. Heldt, 215 U.S.App.D.C. 206. Clearly Scientology has agents and beneficiaries in the judiciary. 5
religious class of “Suppressive Persons,” any apparent wogs such as this Court that so clearly abet Scientology’s efforts to harm an SP, cannot but be considered Scientology’s agents. Armstrong has defined the terms “wogs,” “Suppressive Persons” or “SPs, and the related terms of “fair game,” and “black propaganda” or “black PR” in the record before this Court. See, e.g., RB, pp. 1,2, n.1,2, p. 4. R. App. 258:12- 262:14.
unknown beneficiaries around the world is to assume that anyone he could possibly discuss, or discuss anything with, is an agent, assign or some sort of beneficiary of Scientology’s unconscionable contract, so he proceeds and communicates as God guides him. This Court has itself failed to identify the contract’s beneficiaries, while glaringly misidentifying CSI as the one entity entitled to $50,000 for each breach.
beneficiaries, which Scientology states publicly that even without all its agents there are, then CSI’s cut of the liquidated damages penalty for each breach is ½ cent. This too, would not fit well in the tortured decision this Court needed in order to abet Scientology’s torture of Armstrong, of course, so this Court altered the facts to make CSI appear to be the sole beneficiary entitled to the whole $50,000 per utterance, and consequently wholly entitled to jail Armstrong. CSI’s cut of the $10,050,000 it was seeking in liquidated damages was actually $1.01, and CSI should have brought this case in small claims court. CSI’s actual “benefit” from the 28 days in jail that this Court has given to CSI to torture Armstrong is just under a quarter of a second.
6
The evidence is that the Marin Superior Court, specifically Judge Gary W. Thomas, enjoined Armstrong from voluntarily assisting any person, not a governmental organ or entity, intending to make, intending to press, intending to arbitrate, or intending to litigate a claim, regarding such claim or regarding pressing, arbitrating, or litigating it, against CSI, its officers, directors, agents, representatives, employees, volunteers, successors, assigns and legal counsel; Church of Scientology of California, its officers, directors, agents, representatives, employees, volunteers, successors, assigns and legal counsel; Religious Technology Center, its officers, directors, agents, representatives, employees, volunteers, successors, assigns and legal counsel; Church of Spiritual Technology, its officers, directors, agents, representatives, employees, volunteers, successors, assigns and legal counsel; all Scientology and Scientology affiliated Churches, organizations and entities, and their officers, directors, agents, representatives, employees, volunteers, successors, assigns and legal counsel; Author Services, Inc., its officers, directors, agents, representatives, employees, volunteers, successors, assigns and legal counsel; the Estate of L. Ron Hubbard, its executor, beneficiaries, heirs, representatives, and legal counsel; and/or Mary Sue Hubbard; voluntarily assisting any person, not a governmental organ or entity, defending a claim, intending to defend a claim, intending to defend an arbitration, or intending to defend any claim being pressed, made, arbitrated or litigated by any of the beneficiaries, regarding such claim or regarding defending, arbitrating, or litigating against it; voluntarily assisting any person, not a governmental organ or entity, arbitrating or litigating adversely to any of the beneficiaries; facilitating in any manner the creation, publication, broadcast, writing, filming audio recording, video recording, electronic recording or reproduction of any kind of any book, article, film, television program, radio program, treatment, declaration, screenplay or other literary, artistic or documentary work of any kind which discusses, refers to or mentions Scientology, the Church, and/or any of the beneficiaries; discussing with anyone, not a member of Armstrong's immediate family or his attorney, Scientology, the Church, and/or any of the beneficiaries. 7
deliberately false picture that the contract and injunction prohibited Armstrong from discussing a single Scientology entity, CSI, which Armstrong rarely discusses, while this Court ignores the fact and the evidence that the contract and injunction prohibit Armstrong from discussing the whole Scientology religion, is obvious. If this Court had acknowledged in its “facts” that Armstrong is prohibited by the contract and injunction from discussing the religion of Scientology and his religious experiences in the religion of Scientology, this Court would have much less of an excuse to avoid addressing the issue of these documents’ unlawful deprivation of Armstrong’s religious liberty guaranteed by the U.S. Constitution’s First Amendment and by other U.S. and California laws.
discussing is the Scientology religion and his religious experiences in the Scientology religion, yet this Court does not address this fact. Instead, this Court invents facts to make it appear that Armstrong is prohibited from discussing CSI. What this Court has done is equivalent to a Court not addressing the fact that a person is prohibited by “contract” from discussing the Christian religion or his religious experiences in the Christian religion, when that is the truth of the matter, and instead inventing facts to make it appear that the person is prohibited from discussing his experiences in the Little Corner Church of Christ, when he had never been in the Little Corner Church and had no experiences in it. It just makes it look ever so much more lawful and fair for a secular court to assess a person $50,000 per utterance and jail him for discussing his experiences with a corporation rather than a religion.
Scientology religion, or what is or is not a religious experience in the Scientology religion, any more than the Little Corner Christian Church controls the global Christian religion, controls what is or is not the Christian religion, or controls what is or is not a religious experience in the Christian religion. Only a thoroughly depraved leader of a Christian Church corporation like the Corner Church would use the secular 8
courts to enforce a “contract” that prevented a person from discussing his Christian religious experiences and even his Christian religious beliefs, assessed $50,000 in liquidated damages against him for every utterance about his Christian experiences and beliefs, and jailed and fined him if he did discuss his Christian religious experiences and beliefs. Only thoroughly cruel secular judges would change the facts in order to abet the depraved Christian leader’s efforts to enforce such a contract.
Miscavige to be the depraved leader whose efforts this court abets. He is directing the Scientology church corporation CSI to use the secular courts to enforce a “contract” that prevents Armstrong from discussing his Scientology religious experiences and religious beliefs, assesses $50,000 in liquidated damages against him for every utterance about his Scientology religious experiences and beliefs, and jails and fines him if he discusses his Scientology religious experiences and beliefs. This court’s alteration of the facts to conceal what it wants to punish Armstrong for discussing; that is, his religious experiences and beliefs in relation to the Scientology religion, in order to make it appear that this Court is punishing him for discussing his experiences in CSI, in which Armstrong was never a member, is very thoroughly cruel. In its opinion, this Court even quotes paragraph 7.D., wherein CSI is not mentioned at all, so there is no excuse, on the decent side of willful cruelty, for this Court to make this matter all about a corporation and not mention religion when this matter is all about religion.
Although it is true that Judge Thomas’ second contempt order did find that Armstrong’s injunction violations included disseminating a documentary work about CSI on the Internet on or about September 2, 1997, this finding is false. Ex. 10, 9
104:26-105:3. Appended hereto and incorporated herein by reference thereto is a true and correct copy of Armstrong’s Internet posting of September 2, 1997 to which the contempt order refers. This is a true and correct copy of what is identified as “Exhibit E” to the “Declaration of Andrew H. Wilson in support of Ex Parte Application for Order to Show Cause re Contempt.” As this Court can see, this posting is not about CSI, but about the Scientology religion. Judge Thomas apparently made this false finding of fact because he also sought, in order to accomplish the unconscionable, to avoid the religion and religious liberty issue.
numerous proceedings what Judge Thomas improperly did to escape saying anything about religion. From, e.g., Armstrong’s Appellant’s Opening Brief in the related appeal before this Court:
10
11
12
not asserting freedom of speech as a defense but was asserting the litigant's privilege: “Moreover, it is possible to waive even First Amendment free speech rights by contract.” (Emphasis added) Dooley says nothing about how possible it is to waive First Amendment religious rights. Judge Thomas’ dropping Dooley's free speech qualifier for the purpose of avoiding and consequently eliminating Armstrong’s religious rights and religious defenses is unconscionable, and has led to ten years of unconscionable results.
contempt order, stating that Armstrong caused to be disseminated on the Internet “a letter written to the Hon. Alfonse D'Amato concerning the efforts of CSI to combat religious discrimination in Germany.” Exs. 10, 105:21-25. Again there is no mention of CSI in this letter, again the letter is all about the Scientology religion and Armstrong’s religious experiences and beliefs in relation to the religion, and again why Scientology and Judge Thomas would want to make Armstrong’s expressions appear to be about CSI when his expressions are not about CSI is obvious. Scientology and Judge Thomas sought to avoid the religion and religious liberty issue, because addressing this issue would reveal that the injunction that prohibited Armstrong’s religious expressions of his religious experiences and religious beliefs in relation to the Scientology religion is a lawfully impermissible deprivation of Armstrong’s constitutionally guaranteed religious freedom.
expressions of his religious experiences and religious beliefs in relation to the Scientology religion for which Armstrong was found in contempt in Judge Thomas’ second contempt order (Ex. 10), Marin Superior Court Judge Lynn Duryee did have 13
those religious expressions in the record before her when she issued her order re sentences that this Court has now gutted. Judge Duryee wrote in her order:
Thus Judge Duryee had a far more complete record before her than this Court has had, including Armstrong’s actual religious expressions for which Scientology wants him jailed, in order to arrive at her conclusion and ruling remitting Armstrong’s punishment for those religious expressions because such punishment was unconscionable. This Court finds conscionable what Judge Duryee ruled unconscionable on less evidence than Judge Duryee had before her and on evidence this Court has itself invented.
religious expressions part of the record on appeal to show they were not about CSI. It is not reasonable to expect anyone would prophesy that this Court would go as far as it has to alter the evidence and facts and to select earlier false statements of fact in the record in order to make this case and Armstrong’s utterances appear to be about CSI when the case and his utterances are not about CSI at all but about religion.
Again, the evidence is that in its complaint CSI did not allege that paragraph 7.D. required Armstrong to maintain confidentiality about CSI. That paragraph required that Armstrong maintain confidentiality with respect to his experiences with the Scientology religion, the named beneficiary religious corporations, which do not 14
include CSI, and all the millions of unnamed religious beneficiaries among whom CSI is but one.
F.Supp. 1157 ran into the same “confusion” Scientology was generating between “Scientology,” the religion or cult, and “CSI,” a single corporate entity within the global enterprise. That Court, however, confronted, addressed and resolved the “confusion:”
This Court, on the other hand, has embraced and even added its “facts” to the Scientology-CSI “confusion,” and has done so for the wholly unlawful purpose of depriving Armstrong of his rights to a reasonable defense so as to punish him unconscionably. This is, of course, the same punishment that Judge Duryee found unconscionable and remitted in her order re sentences, which this Court has eviscerated. Thus what this Court is doing in toto is unconscionable, and this Court’s factual, legal and logic errors and gross omissions to achieve that unconscionable result are each unconscionable.
defendants of libeling CSI, Scientology falsely accuses Armstrong of telling the truth about CSI, the corporation. What Behar, Time and Armstrong were all doing, however, was telling the truth about Scientology, the religion or cult. This Court has a duty to tell the truth about what Armstrong is telling the truth about.
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The litigation in which Armstrong submitted a declaration to the presiding judge, and which resulted in the first contempt order, was not a CSI litigation at all. It was the case of Religious Technology Center v. Grady Ward, United States District Court for the Northern District of California, Case No. C-96-2027 RMW. R. App., 13-57. The Ward litigation is clearly identified as an RTC case throughout the record before this Court, and this Court misidentifies the litigation as a CSI litigation to help itself reach its improper decision. It is true that it was a CSI attorney Andrew Wilson who threatened Armstrong with prosecution in State Court if Armstrong complied with a Federal subpoena duces tecum served on him in the Ward case, but it was an RTC case in which Armstrong was subpoenaed, in which he was threatened by the CSI attorney, and in which he reported the threat by his declaration to the presiding judge.
because he was within his rights to submit a declaration to the presiding Federal Judge despite the contract prohibiting Armstrong from doing so because he was reporting a crime to the court. This contention is, however, an almost irrelevant part of what Armstrong actually contends made his submission of his declaration to the Federal Judge within Armstrong’s rights. This Court’s omission of the rest of what he contends creates a false picture of what Armstrong actually did and actually contends.
Ward case to produce the very declaration he produced and sent to the presiding Federal Judge. RApp. 10. This Court does not even mention that Armstrong was subpoenaed at all, despite this being detailed in the declaration, for which this Court says he must be jailed, and in his opposition (“Opp”) to Scientology’s writ petition. Opp., pp. 6-16. This Court does not mention that Scientology attorney Wilson threatened Armstrong with prosecution if Armstrong produced the documents he had 16
been commanded by subpoena to produce. This Court does not mention that Armstrong believes it to be not only his right but his duty to have sent the declaration to the U.S. District Court Judge. Opp. 13,14.
arguments concerning its validity, to the contract’s clauses prohibiting what Armstrong did is irrelevant, misleading and silly. The contract did not permit Armstrong to communicate one word about his experiences or beliefs to any government department, agency or official. Of course this is patently unlawful. Even Scientology knew it couldn’t get Judge Thomas to sign off on enforcement of such a clearly unlawful concept, so Scientology wrote into the injunction’s various prohibitions the “not a governmental organ or entity” exception. Ex. 5, 90,91. Judge Thomas did sign off on those exceptions.
that related to the contempt order’s validity and Armstrong’s arguments thereon. Since the U.S. District Court is unquestionably a governmental organ or entity, Armstrong had an unquestionable right to send his declaration to that Court for a number of reasons, including the injunction’s “not a governmental organ or entity” exception. Thus Armstrong’s sending the declaration to the Federal Court could not have been a violation of the injunction. That Judge Thomas found Armstrong guilty of violating the injunction that was Judge Thomas’ own order, when Armstrong clearly did not violate that injunction, no matter how unlawful the injunction might be, has always been very fishy.
agency for any reason, whether it helped that agency or not, or anyone else or not, and not just because what he had to communicate was a crime report. Armstrong wrote as much in his declaration reporting Scientology’s threatening him.
17
What Armstrong reported was a crime by Scientology’s lawyer, of course, specifically a violation of 18 U.S.C. §1512, “Tampering with a Witness, Victim, or an Informant.” Opp. 12-13. Thus Armstrong was doubly legally justified in sending his crime report by declaration to the presiding judge in the Federal Case in which the crime occurred.
crime report to the governmental organ or entity presiding in the Federal case in which Armstrong had been subpoenaed and threatened is enough to make any fair court conclude that jailing Armstrong for what he did is unconscionable and remit the sentence Judge Thomas had dishonestly imposed on Armstrong for reporting that crime. All of these facts were before Judge Duryee because all of these facts are in the record in the consolidated cases, which, as she states in her order discharging the contempts against Armstrong, she took judicial notice of before making that ruling.
Scientology’s application for an order to show cause re contempt in the first contempt matter, or served with the OSC re contempt. This Court does not mention that Armstrong had left California and was in Canada before Scientology filed its application. This Court does not mention when Armstrong was in Canada, of course, because Armstrong’s never having been served with Scientology papers that resulted in the first contempt order would be an undeniably valid reason for the remission of the punishment the contempt order inflicted, even if Armstrong had actually violated the injunction, which in this instance he had not.
which was filed in January 2001, “Armstrong further averred that he was living in British Columbia, Canada.” This is deceptive because it omits the important reality that Armstrong had been in Canada in 1997, before Scientology sought to have him punished for his crime report declaration to the Federal Judge, and that Scientology 18
had never served him with its papers that resulted in the contempt order. This Court also doesn’t mention that Armstrong still lives in Canada.
Armstrong being subpoenaed in the Ward case in U.S. District Court to produce documents, including the crime report declaration. This Court does not mention that the contempt order omits any mention of Scientology’s attorney threatening Armstrong with prosecution pursuant to the injunction the State Court found Armstrong had violated. This Court does not mention that the contempt order, while stating falsely what Armstrong recites in his crime report declaration as to why he sent it to the Federal Judge, omits completely Armstrong’s actual recitation in that declaration of why he actually sent it.
This is simply false. What Armstrong actually recited as his understanding was:
found in contempt of court in the second contempt order were uttered outside the U.S. This Court does not mention that the overwhelming majority of utterances for which Armstrong was found in contempt of court in the third contempt order were uttered 19
outside the U.S. This Court does not mention that Armstrong is a Canadian citizen. Mentioning that Armstrong is a Canadian and that his utterances comprising his religious expressions about the Scientology religion, were uttered in Canada or in Europe, of course, would necessitate addressing whether this Court had jurisdiction at all to punish him for those religious expressions. Armstrong has clearly expressed his belief in his opposition to Scientology’s writ petition that neither this Court, nor any court anywhere lawfully has that jurisdiction. Opp. 6-38.
California for his religious expressions outside the U.S. This issue is clearly what the case and record in this Court are all about, even though this Court completely avoids the issue. This Court clearly desires to punish Armstrong, even to the extent of inventing facts to help it achieve a result already ruled unconscionable. This Court is accomplishing Armstrong’s punishment, moreover, by willfully failing to address the facts and laws that challenge and in fact bar this Court’s assumption of the jurisdiction it has assumed.
expressions for which this Court wants to punish him were expressed after the U.S. enacted the International Religious Freedom Act (“IRFA”), 22 U.S.C. §§ 6401-6481, in January 1998. In his opposition brief, Armstrong discussed the IRFA in detail and the fact that the contract, injunction, contempt orders and their punishment are in willful violation of the IRFA. Opp. 29-38. This Court makes no mention whatsoever of the IRFA or its relationship to Armstrong’s contempts.
religious expressions were protected, and in fact encouraged by the IRFA, and could not be stripped from him by contract, or by some California Court, this Court would have to address the religious freedom issue. Addressing the religious issue would reveal Scientology to be exactly the kind of religious persecutor that the IRFA was enacted to protect people like Armstrong against. Even while omitting any mention of the IRFA, this Court still finds space to state that Armstrong had not shown that in 20
violating the injunction he operated under an honest mistake of law. This Court is not being honest about a whole set of honest mistakes of law, which in reality are not mistakes at all.
religious class, the “Suppressive Persons” or “SPs,” or even mention the SPs at all. This Court says nothing about the “Suppressive Person” doctrine, which is undeniably religious as the key doctrine in Scientology religious scripture that directs Scientology’s and Scientologists aggressive, dishonest and threatening actions toward Armstrong. He provided a wealth of evidence about the SP doctrine and its application as “fair game” in the record before this Court, which this Court ignores. See, e.g., Opp. Pp. 23-26, RApp. 258:12-262:14. This Court doesn’t mention that Armstrong’s wife is a declared SP, that Scientology declared Armstrong an SP in 1982, and considered him an SP at all times he expressed the subject religious expressions.
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SPs, and that Armstrong is a strategic SP target in that war. This Court makes no mention of Scientology’s religious scriptures ordering Scientology’s troops to raid and harass SPs; cut off their communications, funds and connections; deprive them of political advantages, connections and power; create a frenzy of hate against them; degrade their image to beast level; wage a war of total attrition on them; and just go all the way in and obliterate them. See, e.g., Opp., 23-26; RApp. 1-3.
doctrine, Scientology agents since 1982 have, inter alia, physically battered Armstrong on six occasions; run into him bodily with a car; terrorized him on a highway in California and an autobahn in Germany; attempted multiple times to have him charged criminally on false evidence, including with the LA DA, the FBI, and the prosecutor in Ekaterinberg, Russia; sued him six times; drove him into bankruptcy; run covert intelligence operations on him; attempted to entrap him in sting operations; filed numerous false statements about him in legal proceedings; broke into his car and stole extremely valuable documents and artwork; terrified his neighbors and his family; threatened to assassinate him; forged hundreds of Internet postings, including racist postings, over his name; and created and disseminated countless black PR attacks on him around the world, including to government agencies, media and the clergy. See, e.g., Opp, 4,5; RB, 9-30; RApp. 261:25-262:14.
Wogs (“CoW”), a principally Internet church and religion, or even mention that Armstrong is a wog, another religious and racial denomination created by Scientology religious scripture. This Court does not mention that Armstrong’s religious expressions for which Scientology wants him jailed and fined are also CoW’s religious scriptures. This Court has avoided confronting CoW, and Armstrong’s religious role in CoW and in the wog race and wog religions, because addressing these realities would require this Court addressing the religious issue in this matter before it, and that 22
would thwart this Court’s desire to unconscionably punish Armstrong for the Scientology religionists. RApp. 272:4-17; Opp. 22,23.
that Scientology is a religion. Despite everything Armstrong has said about this fact in hundreds of pages in the record, there is no mention that the enterprise prosecuting Armstrong -- the conglomerate of beneficiaries, and whatever it is that Armstrong must be silent about -- is a religion, or a thought system, or even a cult. This court is helping Scientology hide its religious nature, activities and writings in order to achieve an unconscionable result in a secular court, using secular contract law.
and to obtain all the benefits and protections that go with being a religion. It has employed countless attorneys and academics to prove by dint of endless repetition and overwhelm that its nature is religious, that it is organized for religious purposes, that its activities, even warring on SPs, are religious, and that its writings, even those ordering the battle tactics its troops are to employ to war on SPs, are religious scripture. This Court’s ignoring of Scientology’s nature, purposes, activities and writings in order to reinstate for that organization punishment that a judge with a conscience had remitted a year earlier as unconscionable, is disgraceful.
this Court has also ignored Armstrong’s nature, purposes, activities and writings, for the obvious reasons stated. His nature, purposes, activities and writings are just as religious in just the same way as Scientology’s are religious. It is not believable that California Courts can lawfully enforce this “contract” that so prohibits and punishes inarguably religious expressions about religious nature, purposes, activities and writings. This Court pronounces the unlawful lawful, and the unconscionable conscionable, in part by ignoring the religion and the realities of religion, which the case and the contempts are all about. This Court ignores the religion happening in order to strip Armstrong’s religious rights. This Court states: 23
The Marin Court actually wrote in her judgment:
Judge Duryee did not limit punishment that would be unconscionable to liquidated damages. It is particularly shocking for this Court to claim this, because it is for the purpose of inflicting the very punishment Judge Duryee had ruled unconscionable and remitted.
It is clear that Judge Duryee, having read Armstrong’s expressions that comprised these violations and having read his statements and arguments in the record, found that sending Armstrong to jail and fining him for his violations of the contract and injunction, was an unconscionable result that shocked her conscience. She acted to limit the application of the contract’s clauses so as to avoid any unconscionable result. She had the statutory authority to limit applications of the contract that would result in unconscionable results jailing and fining Armstrong, just as she had the authority to limit the application of the contract that would result in the unconscionable assessment of zillions of dollars in liquidated damages. This Court is quite clearly seeking to reinstate that unconscionable result, something that this Court cannot lawfully do. 24
To the contrary, what the trial court did, resulting in its May 20, 2004 order re sentences, could only be a remission. A remission, in this context certainly, is “a forgiveness or condonation of an offense or injury; or, at common law, the act by which a forfeiture or penalty is forgiven.” Black’s Law Dictionary, Fifth Ed. Judge Duryee accepted that Armstrong had expressed what he was accused of, and that those expressions violated the injunction and constituted contempts. She found, however, that the punishment that was inflicted on Armstrong for those expressions was an unconscionable result. She acted to avoid that unconscionable result by remitting the punishment to which Armstrong had earlier been sentenced. She called the remission a “discharge,” because she forgave or dispensed with the totality of the punishment, but it is nevertheless a remission. It is unconscionable that this Court asserts that there is no evidence that the remission was a remission when all the evidence shows it was a remission. That this Court is doing the unconscionable for the purpose of reinstating the unconscionable result that was remitted is unconscionably unconscionable. This Court supports its assertion that the remission was not a remission with the assertion that:
This is untrue. The Court stated early in the trial during a discussion about the contempt punishment that she would hold a hearing on it at the end of the trial.
25
The trial transcript is clear that Judge Duryee is talking about having a hearing on the validity of the contempt orders at the end of the case, meaning at the end of the liquidated damages case.
to tell him that a lot of the evidence he was describing might be evidence in connection with the contempt order, rather than for the liquidated damages case.
Judge Duryee then proceeded to consolidate the trial on Scientology’s liquidated damages claim with the hearing on the contempt orders that she had earlier stated would be after the trial.
26
was also a hearing on the earlier contempts, for which warrants had issued, and Judge Smith's contempt order, for which no warrant had issued.
Thus it is indisputable that a trial or hearing occurred simultaneously, with Scientology’s agreement, on both the liquidated damages claim and on the validity of the contempt orders, and that whatever evidence Judge Duryee listened to or read could be applied, if relevant, to either matter. This Court’s statement that “the court merely announced its intention to discharge the contempt punishments is not accurate.
reasons. The motion or request to remit is inherent in what attorney Greene stated in his opening argument, which Judge Duryee acknowledged as relating to the contempts even more than it related to the liquidated damages case. A motion or request to remit is also inherent and specifically stated in Armstrong’s evidence in the Court record Judge Duryee had before her. See, e.g., Armstrong’s opposition to OSC re contempt that was filed before Judge Smith.
27
Judge Duryee refers to Armstrong’s opposition in the trial transcript, and this Court mentions it in its decision. The motion to remit was also inherent in the existence of a hearing at all on the contempts. When Judge Duryee stated that she was setting a hearing “on the validity of them,” which Scientology agreed to, remission became a logical, lawful and possible result in that hearing.
hearing for the ridiculously obvious reason that she remitted the sentences before any such formal motion or request could be made. Only a nut would move to remit punishment that had, by whatever form or type of court order, already been dispensed with. This Court is saying that because Armstrong and his lawyer were not nuts, and consequently didn’t formally move or request Judge Duryee with some special formal words to remit the punishment she had remitted, that punishment must be reinstated. Nuts. By ignoring the reality of the fact that a hearing was held on the validity of the contempt punishments, and that Judge Duryee properly and within her jurisdiction remitted those punishments, and by conducting its own hearing and finding “no circumstances in the record justifying a remission,” this Court actually and unlawfully subjects Armstrong to double jeopardy.
did during the hearing on their validity, is reflective of just what an exceedingly unconscionable result she found that punishment to be. Without more evidence than what she had heard or what she had read in the record before her, she had heard enough to have her conscience shocked and to act to avoid that unconscionable result by remitting it. What she did with her quasi sua sponte remission of the unconscionable result is most certainly no legitimate basis whatsoever for this Court to reinstate that unconscionable result. 28
This Court states:
Duryee’s remission of the sentences is false. This Court cannot simply assert away these circumstances, however, by stating falsely that they don’t exist. The circumstances exist.
California where a person has ever been jailed for expressing his religious beliefs about a religion. Nor has he found any other instance where a Court, as this Court is doing, has declared conscionable and reinstated punishment, with or without even ordering a hearing, which a lower court had declared unconscionable and remitted. Nor has Armstrong found any case where there has been a judicial enforcement of any contract as unconscionable as Scientology’s contract, or one which, post-Emancipation Proclamation, so enslaved an individual, so stripped him of so many rights, so allowed the punishment this Court is so willing to reinflict, and was so one-sided. It appears possible that in the history of California jurisprudence perhaps there has never been so unconscionable a decision in such an unusual case, which said not one word about the one-sidedness and cruelty that made it all unconscionable. So the case is unusual.
would persecute Armstrong forever, and the entity about whom he necessarily speaks to nullify all persecution. These words quite clearly are given with the hope and 29
prayer of nullifying Scientology’s effort, which this case and matter are, to persecute him. Having a Scientology case to judge is unusual, because of Scientology’s war against judges, a phrase that stuck after a 1980 American Lawyer article with that title, as well as Scientology much broader war against Suppressive Persons, which this court abets, and for the religion’s reputation for dishonesty and rapacity. Everything makes this an unusual case.
injunction he operated under an honest mistake of law is untrue, although actually irrelevant. This Court even identifies a mistake of law that it says Armstrong operated under, although as it is worded it is irrelevant and not a mistake of law he was operating under at all.
Armstrong did believe he was reporting a crime, and he believed that no contract could lawfully prevent the reporting of a crime. It is easy to see where any reasonable person would honestly believe something like that. The alternative, of contracting with people to not report crimes, would sound to a reasonable and honest person like a criminal conspiracy or blackmail. This Court doesn’t really say if reporting future crimes is a right that the victims of the crimes, or anyone, can contract away. And of course the Court cannot state the truth because it could not then order the unconscionable punishment Scientology has got it to reinflict on Armstrong.
was justified in reporting that crime, and Judge Duryee was justified in remitting the punishment for reporting that crime. If a contract can lawfully prohibit the reporting of a crime, then Armstrong was honestly mistaken and operated under that mistake of law, and again a basis existed for Judge Duryee to remit the punishment. No one has ever shown Armstrong where a contract that prohibited reporting future crimes was 30
ever declared lawful, and he honestly believes that criminal conspiracies and blackmail are not lawful. Thus he really is honest in his mistake, if he really is mistaken.
unlawful, and that only lawful orders must be obeyed. If Armstrong is under a mistake of law, it is certainly honest, since what reasonable person would have dreamed that unlawful orders must be obeyed. Armstrong has operated under that belief about the law, whether mistaken or not, from the moment the Marin Court issued the order that made him examine its lawfulness. If Armstrong is not under a mistake of law, and unlawful orders do not have to be obeyed, then Armstrong was justified in not obeying the order, Judge Duryee was justified in remitting the punishment for not obeying the order, and this Court is not justified in reinstating that punishment. Obviously this Court wants Armstrong to get the message that unlawful orders, including its own unlawful order here, must be obeyed just as if they were lawful. But that would be a dishonest mistake of law.
Religious Freedom Act of 1998. This Court also ignored the fact that this is a law he believed made his religious expressions lawful, made Scientology’s effort to suppress and punish those expressions abominable, and even encouraged him to express his religious expressions as called. He certainly lives outside the U.S. and practices his religion outside the U.S., so the IRFA unquestionably applies to him. If the IRFA really does protect him in this circumstance and encourage his expression of his religious beliefs, as its language very clearly states, then he was justified in expressing the religious expressions he expressed, Judge Duryee was justified in remitting his punishment for those expressions, and this Court is not justified in reinstating that punishment. If the IRFA is a sham or a joke, or there is some exception for Scientology’s victims, then Armstrong was under an honest mistake of law thinking it was real, serious and for everyone, and again there is a justification for remission.
U.S. Constitution. 31
If Armstrong is right, he is justified in expressing his religious expressions because the First Amendment guarantees his free exercise of his religion, Judge Duryee is justified in remitting the punishment for those expressions, and this Court is not justified in reinstating that punishment. If Armstrong is wrong, then his mistake about the First Amendment’s religion clause is an honest one that virtually every American shares.
seeks to enforce against him could not lawfully be enforced in Canada, because they are an impermissible deprivation of Armstrong’s fundamental freedoms in violation of the Canadian Charter of Rights and Freedoms and the European Convention for the Protection of Human Rights and Fundamental Freedoms. Opp. 7-9 If he is honestly mistaken, or if he is right, about these human rights charters outside the U.S., he was justified in expressing all the religious expressions he expressed in Canada and in Europe, Judge Duryee was justified in remitting his sentence for his expressions, and this Court is not justified in reinstating that sentence.
in its campaign to silence and crush Armstrong, and destroy his rights and privileges secured to him by the Constitution or laws of the United States, constitutes a crime, specifically a violation of 18 U.S.C. §241, Conspiracy Against Rights. RB, 3;Opp, 26. If Armstrong is right, of course, he cannot 32
lawfully be prohibited from communicating about that criminal conspiracy. If he is wrong, he is under an honest mistake of law.
of law about all or any of the laws he identified as permitting him to do what he did, then Armstrong was correct that those laws did indeed permit him to do what he did. If this Court honestly believed that Armstrong was under a mistake of law, then this Court dishonestly stated otherwise, and for the improper purpose of inflicting unconscionable punishment on him. Certainly Armstrong did not hide his honest belief about the many laws that permitted him to do what this Court would punish.
complied, or will ever comply, with the injunction to unconscionably punish him, rather than apply this fact where it should be applied. What Armstrong is claiming is that it is impossible for him to comply with the injunction. This Court even notes, albeit sarcastically and to support its unconscionable desire to punish Armstrong, that he claimed that compliance is “literally impossible.” Attorney Greene stated his understanding of why compliance was impossible for Armstrong at the trial.
33
violating the contract and injunction must have the same weight in the consideration of remissions of punishment as his compliance would have if compliance were possible. Obviously it is Scientology’s nature, purposes and activities, religious or not, that make compliance impossible. No one in his right mind would run up a liquidated damages tab in the trillions mentioning an obscenely litigious and vindictive totalitarian cult, and risk going to prison for the rest of his life for mentioning that cult, if it was not impossible to not mention it! It would even be impossible for Armstrong to get this Court and every court to understand it’s impossible for him not to speak about Scientology if he doesn’t talk about it. The impossibility of the contemnor complying with the order cannot but be an absolute mitigating factor for remission of any punishment inflicted on him for that noncompliance.
few very limited, and here virtually irrelevant, slivers of law, selected by Scientology to govern the case, in order to pronounce that Judge Duryee lacked the authority to remit the punishment against Armstrong, while this Court completely ignores the clear and powerful California statute, C.C.C.§1670.5, which specifically gave her that authority in exactly that circumstance. 34
possessed, the authority that statute gave her to avoid an unconscionable result. She remitted the sentences. If she had not, she would have failed to act to avoid a result that appeared to her unconscionable after her conscience was shocked. Her conscience was shocked when she grasped the facts in the record before her, which this Court religiously and improperly evades and alters.
contract’s liquidated damages penalty and limit the application of the contract’s silence requirement to avoid both unconscionable results that Scientology sought in the consolidated trial or hearing. Armstrong argued in some breadth in his briefs that C.C.C.§1670.5 was the law to be applied in the case, in both Scientology’s appeal and in its writ petition.
him being ruled unconscionable, its recourse by law was not to try to get this Court to pronounce the unconscionable conscionable, which, perversely, this Court has done. Scientology’s remedy was to avail itself of the opportunity C.C.C.§1670.5 afforded a party in Scientology’s shoes to present evidence on the contract’s commercial setting, purpose and effect to get the Marin Court to change its mind about the unconscionability rulings. If after the hearing on the contract’s commercial setting, purpose and effect the Marin Court still found the unconscionable contract unconscionable, then Scientology could seek review of that judgment in the Court of Appeal.
Scientology filed an appeal to get this Court to reverse the judgment limiting the unconscionable result of the application of the liquidated damages clause, and filed a writ petition to get this Court to vacate the order discharging the unconscionable result of the application of the contract’s injunctive relief clause. This Court ignores the statute and Armstrong’s arguments thereon utterly, which is more shocking than just fishy, and worse, this Court does so in order to inflict the unconscionable. 35
the lawful decision this Court must make, if it does not rehear this matter, rethink its law and logic, and deny Scientology’s petition, is to direct the trial court to conduct the evidentiary hearing that C.C.C.§1670.5 mandates, on the contract’s commercial setting, purpose, and effect to aid that court in making the determination as to whether the punishment is unconscionable as that court found. This Court seriously overstepped its authority to do something wrong, and it must back up and correct that wrong.
to leap over the evidentiary hearing that is the proper remedy, and send Armstrong directly to jail and fine him without a fair hearing. This Court does so by willfully ignoring reality and law and even inventing facts. This particular assault on Armstrong’s rights is particularly cruel because the punishment this Court wants to inflict on Armstrong has already been ruled unconscionable and remitted.
Judge Duryee that some clause or clauses of Scientology’s contract were unconscionable, he himself also claimed that some clauses were unconscionable, and he stated that he desired to avail himself of the evidentiary opportunity that C.C.C.§1670.5 afforded him to prove that unconscionability. There has been no such evidentiary hearing in this case from its inception. Armstrong has never had the opportunity to present evidence as to contract’s commercial setting, purpose and effect.
lengths to prevent him from receiving a fair trial or fair hearing in this case, specifically on the circumstances at the time of the signing of the contract, on its purpose, and on its effects. The fact that Scientology has gone to such extraordinary and unlawful lengths to prevent such a hearing must be construed as evidence of the contract’s unconscionability, and of Scientology’s guilty knowledge of its unconscionability. The contract has always been unconscionable, and up until the 36
2004 trial, Scientology had successfully prevented that finding being made and successfully prevented Armstrong from receiving a hearing on that unconscionability.
from receiving a C.C.C.§1670.5 hearing. There was also, of course, no urgent need until this Court’s October 19 decision for Armstrong to avail himself of such a hearing, since Judge Duryee had, even without conducting a specific C.C.C.§1670.5 hearing, adjudged both the astronomical liquidated damages punishment and the contempt punishment Scientology sought, unconscionable. Scientology’s last minute voluntary dismissal of its appeal, of course, means that Scientology has accepted Judge Duryee’s judgment, which specifically states that it would be unconscionable to punish Armstrong beyond what the benefit was that was conferred to him.
and the trial transcript make very clear, beyond the benefit conferred to Armstrong and consequently unconscionable. Although this Court mentions that Scientology had dismissed its appeal of Judge Duryee’s judgment, this Court completely ignores the effect of that dismissal on the contempt punishments, and on Scientology and what it is seeking in its writ petition. In order to successfully ignore this effect, as has been shown, this Court even misstates the judgment’s language as finding it would be unconscionable to punish Armstrong with liquidated damages beyond the benefit conferred to him. The judgment states that any punishment of Armstrong, which certainly included the contempt punishments before Judge Duryee, beyond the benefit conferred to him was unconscionable.
punishment to the unconscionability judgment, and the remittance or discharge of that punishment to entry of that judgment. Although Scientology’s appeal could conceivably have stayed the application of the judgment to the contempt punishment, with Scientology’s dismissal of the appeal of that judgment, the judgment now unquestionably prevents this Court’s doing what it has done, which is inflict more unconscionable punishment on Armstrong. 37
turns, while torturing the facts to make the case appear to turn on 8 Witkin, Cal. Procedure (4th ed. 1997) Enforcement of Judgment, § 347, p. 355 and City of Vernon v. Superior Court (1952) 39 Cal.2d 839, 842-843, are clear. If this Court mentioned C.C.C.§1670.5, it would have to address what in the record in the trial court shocked Judge Duryee’s conscience so much that she ruled both the liquidated damages atrocity and the contempt punishments unconscionable. Furthermore, if this Court identified those facts that shocked her conscience, this Court could not state, as it falsely states, that there were no circumstances in the record justifying a remission.
search for and declare missing from the record, that he operated on an honest mistake of law, or that he complied with the order, or that the case was unusual. Judge Duryee almost certainly observed that the case is unusual, but probably did not give Armstrong's mistakes of law or his failure to comply much weight or notice in her examination of the unconscionability of the punishment Scientology sought to inflict on Armstrong. Her findings of fact focused on the indicia of unconscionability, not on the irrelevancies this Court can’t find in the record.
C.C.C.§1670.5, ruled the contempt punishments against Armstrong unconscionable, this Court ignores all the findings of fact she made on which that unconscionability ruling was based. She found that the contract’s clauses pursuant to which Armstrong was being punished were completely one-sided.
would be unconscionable to punish Armstrong beyond the benefit conferred to him, 38
limited the liquidated damages to what had been conferred to Armstrong, and remitted the contempt punishment. One-sidedness is, of course, an indicium of contractual unconscionability. From Black’s, supra:
on Armstrong had no time limit, and consequently that he could be punished by liquidated damages, jail sentences and fines the rest of his life, a patently unconscionable condition.
affirmative defenses until the end of time. She obviously found that condition unconscionable because she ruled the punishment Scientology was seeking unconscionable, and unconscionability is, as even this Court observes, one of Armstrong’s affirmative defenses. Her judgment and Scientology’s dismissal of its appeal of that judgment confirm that, at least regarding Scientology’s contract, unconscionability trumps res judicata. It is never too late, contrary to what this Court asserts, to declare a contract unconscionable and limit its application to avoid unconscionable results.
his religious experiences and religious beliefs about the Scientology religion was unconscionable. She probably found it unconscionable that Scientology sought to punish Armstrong for these religious expressions expressed in Canada and Europe. She probably also found it unconscionable that the organization seeking to punish Armstrong is a wealthy totalitarian cult that sought this punishment pursuant to its unconscionable religious Suppressive Person doctrine. That these things are 39
unconscionable is why this Court deliberately ignored them to order reinstated the unconscionable punishment Judge Duryee had remitted.
Armstrong’s appeal of the Thomas injunction unconscionable. Scientology engineered that dismissal on the basis of Armstrong not serving the jail sentence for sending his crime report declaration to the Federal Judge, the very punishment Judge Duryee found unconscionable. Obviously this Court ignores the circumstances surrounding its dismissal of Armstrong’s appeal, including what he reported, the subpoena, and no service on Armstrong of any application or OSC, because what this Court did was indeed unconscionable.
unconscionable war on Armstrong, this Court now orders another unconscionable cruelty, which had already been declared unconscionable. This Court does the unconscionable by declaring it has nothing to do with unconscionability, and serving up facts about anything but.
matter for rehearing, and/or deny Scientology’s writ petition, and/or direct the Marin Superior Court to conduct an evidentiary hearing in compliance with C.C.C.§1670.5. Dated: November 1, 2005
40
CERTIFICATE OF LENGTH Pursuant to Rule 14(c)(1) of the California Rules of Court, respondent Gerry Armstrong certifies that the number of words in this brief, according to the word count of the computer program used to prepare the brief, is 13,962 words. Gerry Armstrong 41
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PROOF OF SERVICE
I am employed in the Province
of British Columbia, Canada. I am over the
age of eighteen years and am not a party to the above-entitled action. My business
address is #1-45950 Alexander Avenue, Chilliwack, B.C. V2P 1L5.
On November 2, 2005 I served the following documents:
PETITION FOR REHEARING
on the following persons on the date set forth below, by placing true copies
thereof
enclosed in sealed envelopes addressed as stated on the service list, as follows:
| By Mail |
I caused such envelope with postage
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Clerk of the Superior Court
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California Supreme Court (4 copies) |
| XX By Express Mail |
Kendrick Moxon
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I declare under penalty
of perjury under the laws of Canada, the United
States, and the State of California that the above is true and correct.
Executed on November 2, 2005 at Chilliwack, B.C., Canada
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Caroline Letkeman |
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