COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT, DIVISION FOUR

REPLY IN SUPPORT OF PETITION FOR A WRIT OF CERTIORARI OR, IN THE
ALTERNATIVE, A WRIT OF MANDAMUS

After Order re Sentences For Contempt by the Hon. Lynn Duryee,
County of Marin

[page break]

TABLE OF CONTENTS

-i-

TABLE OF AUTHORITIES

CASES

-ii-

Petitioner Church of Scientology International, submits this Reply

Memorandum to Respondent Gerald Armstrong's Brief in Opposition to

Petition for Writ of Certiorari or, in the Alternative, a Writ of Mandamus.

I Armstrong Offers No Legal Response to the

Petition

As addressed in the Petition, the contempt orders issued by Judge

Thomas on June 3, 1997 and February 11, 1998, are final conclusive

judgments, as indeed, is Judge Duryee's contempt Order of May 20, 2004.

(Petitioner's Exhibits, Tabs 8, 10 and 17.)¹ Judge Duryee possessed no

jurisdiction to override or alter those rulings or to discharge the sentences

that had been imposed while Armstrong was a fugitive. Armstrong's

Opposition Brief ignores the numerous authorities to this effect set forth in

the Petition.

Similarly, the Petition addressed the substantial authority that Judge

Duryee's discharge of the contempt sentences by virtue of Armstrong's

mere appearance in court, was unlawful. Again, Armstrong's Opposition

Brief ignores Petitioner's authority.

Finally, Armstrong provides no law refuting or responding to the

numerous authorities supplied by Petitioner indicating that a compensatory

damage award cannot substitute for a lawfully imposed contempt sanction.

¹ References to "Petitioner's Exhibits, Tab _" refer to Exhibits in Support
of Petition for A Writ of Certiorari or, in the alternative, a writ of
mandamus, volumes I and II.

1

Because the entirety of the Petition is legally unrefuted, Judge

Duryee's order overriding and discharging Judge Thomas's (and her own)

sentences for contempt must be vacated, and the penalties for Armstrong's

contempt of court reinstated.

Because Armstrong fails to address the issues raised by the Petition,

the arguments in the lengthy Opposition Brief are irrelevant. In the

event that the Court wishes to consider the assertions in Armstrong's

Brief, Petitioner responds as follows:

II Armstrong Seeks to Argue Matters Already Fully and

Finally Adjudicated Against Him, and Other Matters Not

Properly Before

the Court

Armstrong complains at length that the 1986 contract with the

Church giving rise to the injunction and contempts is unlawful for various

reasons. However, the enforceablility, legality, constitutionality or "great

stupidity" (as Armstrong characterizes it) of the contract underlying

Armstrong's repeated contemptuous acts, has been repeatedly litigated and

lost by Armstrong (Petitioner's Exhibits, Tabs 5, 6, 8, 9, 10 and 13), leading

to a finding by Judge Duryee that the matter is res judicata. (Petitioner's

Exhibits, Tab 16, transcript page 56.)

Because Judge Duryee found that any issues raised by Armstrong

concerning why the contract should not be enforced were barred by the

doctrine of res judicata, and found that the contract and injunction would be

2

enforced, petitioners obviously did not seek review of that aspect of the

Court's ruling.

Moreover, Armstrong did not seek review of the Court's ruling that

res judicata barred relitigation of the enforceability of the contract and

legality of the injunction requiring Armstrong to comply with the terms of

the contract. The issues of legality and enforceability are therefore not

properly before this Court.

Thus:

• whether Armstrong has been the subject of alleged torts is not before
  
  the Court;
  
  
• whether Armstrong's alleged divine instruction to disobey the
  
  Court's injunction justified his contempt is not before the Court;
  
  
• whether "Scientology's" privileged response to IRS inquiries in 1992
  
  mentioning Armstrong justified his breaches of the contract and
  
  violations of the injunction is not before this Court;
  
  
• whether the contract is enforceable against Armstrong in Europe or
  
  Canada is not before the Court;
  
  
• whether Armstrong's filing of affidavits in federal court in 1997
  
  properly warranted contempt findings against him is not before this
  
  Court;
  
  
• whether Armstrong's claimed religious beliefs (acquired after he
  
  entered into the contract), are violated by his compliance with the

3

Court's injunction is not before the Court.

Armstrong's further justification for breaching the contract and

violating the Court's injunction, is that there is a conspiracy to destroy his

reputation and that he must therefore utilize self-help to respond. However,

Armstrong's remedy for any alleged tort against him is not to ignore the

Superior Court's injunctions. Rather, as Judge Duryee stated, Armstrong's

remedy for any alleged torts would be a claim for damages for defamation

or other cause of action.

Indeed, Armstrong filed precisely such a claim, which was also

adjudicated against him. In November 1997, as a fugitive from California

where warrants were outstanding for his arrest, Armstrong filed an action

against the Church of Scientology International in federal court in Nevada

sounding in defamation and intentional infliction of emotional distress. The

Complaint made essentially all of the same allegations raised in his

Opposition Brief herein. (Petitioner's Supplemental Exhibits, Tab 19,

Declaration of Andrew Wilson and Ex. S thereto.²) That action was

dismissed with prejudice in 1998, and the judgment of dismissal affirmed in

2000 by the United States Court of Appeals for the Ninth Circuit.

Armstrong v. Church of Scientology International (9^th Cir. 2000) 243 F.2d

546.

² See Petitioner's Supplemental Exhibit in Support of Petition for Writ of
Certiorari, or in the Alternative, a Writ of Mandamus, Vol. III.

4

Thus, Armstrong is well aware of the existence of legal remedies to

rectify the alleged affronts.

The sole issues before the Court are those raised by the Petition

relating to the Superior Court's authority to discharge the contempt and

collapse the civil judgements and criminal sanctions. Essentially the

entirety of Armstrong's Opposition Brief consists of frivolous justifications

for his continuing contempt, which are simply not at issue and should

therefore be ignored.

III Armstrong's Contemptuous Brief Demonstrates the Need

to Reinstate the Contempt Sanctions

Whatever rights Armstrong possessed to speak, write and

communicate with the media or other third parties about Scientology, were

bargained away. Armstrong was paid $800,000 consideration in 1986 to

settle then-pending claims and to stop his anti-Scientology hate campaign.

Armstrong took the money, spent it, and now complains of the

conundrum in which he finds himself: entering into a contract, accepting the

consideration, but claiming it impinges upon his rights to free speech and

purported religious beliefs. However, a person may contract away a right,

In re Steinberg (1983) 148 Cal.App.3d 14, 18-20; ITT Telecom Products

Corp. v. Dooley (1989) 214 Cal.App.3d 307, 319; Snepp v. United States

(1980) 444 U.S. 507, 509, fn. 3, as several courts have found that

Armstrong has done.

5

Armstrong fled the jurisdiction to avoid the several contempt

findings and sanctions.³ Now, with Judge Duryee's ruling, Armstrong can

effectively ignore the injunction because he is judgment proof, and ignore

contempt findings against him because no penalty will attach for his

contempt of the Court's rulings. Indeed, Armstrong admits in his

Opposition Brief that the Superior Court's actions have created these

precise effects, stating that Judge Duryee's judgment, "has encouraged

Armstrong to continue to express his religious beliefs about the Scientology

Armstrong's lengthy justification for violation of the Court's

injunctions because of his purported religious belief, is not only barred by

res judicata as noted above, it is also frivolous. To summarize Armstrong's

argument:

• he entered into the contract in 1986, and accepted $800,000 to
  
  refrain, inter alia, from public discussions and commentary
  
  regarding the Scientology religion ⁴;

³ Armstrong takes umbrage with the assertion that he fled the jurisdiction
because of the court's rulings. Rather, he says he "had to flee abroad" to
escape religious persecution (Opposition Brief at 22), i.e., the enforcement
of the Court's judgments which he claims are contrary to his purported
religious practice, the central tenet of which is breaching the terms of the
contract. Armstrong returned to California for the contempt hearing only
after his lengthy absence caused the warrants to expire, and the judges who
previously found him in contempt had left the bench.

⁴ This was demanded in the contract in exchange for the monetary
consideration, because the Church sought to resolve informally

6

• he spent the money;
  
  
• he started a new religion (Opposition at 33) ⁵;
  
  
• the central asserted precept of his new claimed religion, is to speak
  
  out against the Scientology religion as often as possible, thus
  
  breaching the contract; and
  
  
• since the contract purportedly violates the precepts of his new
  
  claimed religion, he is no longer bound by it. (Opposition at 34.)

  Acceptance of his position would utterly negate the constitutional

guarantee to citizens to enter into contracts and would trump any

commercial transaction if one of the parties to a contract asserted it violated

a new found religious belief. If this sort of justification for breach of

contract was supported by law, it would take little imagination to predict

what the fertile minds of some persons caught in an unfavorable contract

could claim, e.g., "I do not have to pay for the car I was sold and set on fire

because I have a new-found religious belief that cars are dangerous," or "I

don't have to perform by delivering $800,000 worth of goods for which I

was paid because I have new-found religious belief that capitalism is evil,"

etc.

These examples are no more legally frivolous than the position taken

by Armstrong. Armstrong may profess any purported religious belief he

Armstrong's crusade of making thousands of false, defamatory and
inflammatory assertions.

⁵ The record reflects no membership in Armstrong's religion but himself.

7

wants or claims he has created, but he simply cannot take the substantial

benefit of a contract, breach the contract based upon his claim of religious

belief, and keep the benefits of the contract notwithstanding the breach.

IV The Validity of the Finding of Criminal Contempt Is Not

Properly at Issue

Armstrong also improperly argues that the contempts against him

were civil and not criminal. As noted above, Armstrong did not file a

petition to challenge the court's criminal contempt. Thus, he should not be

heard to make such an argument in opposition to the Petition.

In any event, Armstrong is wrong. The distinction between civil and

criminal contempt proceedings hinges on the nature of the relief to be

afforded. Civil contempts are coercive penalties that may be avoided by

compliance with the order and are designed to achieve the object

of the order. Punitive measures that cannot be escaped by compliance and

are intended to vindicate the authority of the court, are criminal contempts. In

re Ivey (2000) 85 Cal.App.4th 793, 803; Culver City v. Superior Court in

and for Los Angeles County (1952) 38 Cal.2d 535.

Armstrong's contempt is not coercive in nature. The contempt order

punishes past violations of court orders and is therefore criminal contempt.

V Armstrong's Brief Demonstrates Why the Contempt

Orders Must Be Enforced

In this case, the purpose of criminal contempt has been rendered

nugatory by the nature of the Court's sentencing, by illegally vacating the

8

prior contempt sentences and by allowing Armstrong effectively to receive

no penalty for his contempts. Armstrong has formally announced that he

need not obey the orders of this State: "It is true that [I] disobeyed the

Marin Court's injunction on many occasions, and [I] continue[] every day to

disobey it." (Opposition Brief at 40.)

Clearly the Court's prior contempt orders, unexecuted, had no effect

on Armstrong. But, Judge Duryee's toothless finding of contempt against

him and the Court's limitation against any future damages arising out of the

contract beyond the $800,000 Armstrong received, has emboldened him

even further. Thus, in his Opposition Brief he flagrantly proclaims that he

sees no reason not to ignore the Court's injunctions in the future, stating of

himself,

Judge Duryee has gone a long way toward
validating Armstrong's position regarding the
injunction's unlawfulness with her judgment
that the liquidated damages provision is
unconscionable, and further by bringing
Scientology to acknowledge that her judgment
"immunize[s Armstrong] from any future
liability for breaching a contract he admits
having breached well over 200 times, has been
adjudicated to have breached 137 times, and
which he vows to continue to breach
indefinitely in the future."

(Opposition Brief at 40.)

Armstrong concludes that even after more than 200 separate

contempts, since he had fled the jurisdiction for years his mere appearance

in Court was so praiseworthy that he may now commit as many contempts

9

as he wishes, with no sanction. As Armstrong understood the proceedings,

as stated in his Opposition Brief at page 44:

Among all the other mitigating factors that
Judge Duryee could see, it was a mitigating
factor to her, mentioned by her, that Armstrong
showed up. Sometimes it's good to show up.

Apparently for Judge Duryee it is. But that is not a mitigating factor

for any other fugitive who after 8 years finally appears before judge for

sentencing. This "mitigating" factor is unprecedented in the law as a basis

to vacate all prior sentences imposed, and consider the appearance to be

"time served" when not a minute of time was "served."

Nothing could more dramatically demonstrate than Armstrong's own

words that the Court's orders over the last several years have created no

restraint upon the man. Overtly mocking the Court's injunctions,

Armstrong concludes that since "Judge Duryee has immunized Armstrong

from any future liability," Scientology should negotiate a new "contract"

with him to compensate him for all of the potential breaches he intends to

make in the future. (Opposition Brief at 46.)

It is a perverse result for a victim to come to court for enforcement

of an injunction, have the criminal for the third time held in contempt, and

the criminal conclude that since the Court will sentence him but not enforce

the sentences, it is time for the victim to give him more money.

CONCLUSION

This Court should issue a writ of certiorari or of mandamus directing

the Superior Court to reinstate in full the three prior contempt sanctions

10

imposed upon Armstrong. Unless the Court's orders of contempt are

enforced, they are utterly pointless.

11

PROOF OF SERVICE

          I am employed in the County of Los Angeles, State of California. I
am over the age of eighteen (18) years and not a party to the within action.

          On February 15, 2005, I served the foregoing document described as:

REPLY IN SUPPORT OF PETITION FOR A WRIT OF CERTIORARI
OR, IN THE ALTERNATIVE, A WRIT OF MANDAMUS

by first class mail, postage prepaid, on interested parties in this action as
follows:

Gerry Armstrong
#1-45950 Alexander Avenue
Chilliwack, B.C. V2P 1 L5
Canada

Marin County Superior Court
Hon. Lynn Duryee
3501 Civic Center Drive
San Rafael, CA 94913

          Executed on February 15, 2005 at Los Angeles, California.

          I declare in accordance with the laws of the State of California,
under penalty of perjury, that the foregoing is true and correct.

Exhibits to Reply Brief:

Wilson Declaration 12-01-1997

Armstrong Usenet post 11-26-1997 "The Beginning of the End of Endless Black PR"