Hardball

When Scientology goes to court, it likes to play rough -- very rough

St. Petersburg Times, January 28, 1998
By Lisa Morgan

When prosecutors filed charges in the death of Scientologist Lisa McPherson, the Clearwater-based Church of Scientology -- the defendant -- had one clear response: The litigation will be "complex" and "voluminous" and will require "a significant number of hearings and significant hearing time."

Those words should echo ominously for Pinellas County prosecutors.

In a 14-month, worldwide survey, the St. Petersburg Times has documented a consistent pattern of church officials relentlessly pursuing its critics in legal actions that some charge are designed as much to harass as to achieve legal victory. In one year alone, the Times has found, Scientology spent more than $30-million on legal and professional fees.

From critics outside the church to former members who sue for fraud and abuse, when Scientology goes to court, most often it is with lawyers and legal papers that can overwhelm less wealthy opponents. In France, England, Sweden and Germany, the pattern is similar: sue the critics, sue the government and sometimes overwhelm the judges. Whenever necessary, use private investigators to probe your opponents' weaknesses and exploit them.

In the case of McPherson, who died in 1995 while in the care of fellow Scientologists in Clearwater, the church has responded to official inquiries in ways that bolster this reputation: By investigating the attorney who represents McPherson's family in a civil suit filed against Scientology and assailing his credibility.

By investigating the veteran medical examiner who spoke out about the case, and calling her a liar.

By mounting an angry march against Clearwater's police chief shortly before his detectives recommended criminal charges in the McPherson case.

By filing a motion in Pinellas-Pasco Circuit Court asking for a special judge to hear their many motions and to plan for a lengthy trial.

Some suggest it's all being done by the book -- L. Ron Hubbard's book.

"The purpose of a lawsuit is to harass and discourage rather than to win," Scientology's late founder wrote in a 1955 magazine article. "The law can be used very easily to harass, and enough harassment on somebody who is simply on the thin edge anyway . . . will generally be sufficient to cause his professional decease. If possible, of course, ruin him utterly."

Judges have repeatedly criticized Scientology for "playing fast and loose with the court system," escalating the costs to opposing parties and the judiciary. In 1993 a federal judge in California included a picture of a court file that had grown to more than 100 volumes in a decision that denounced Scientology for "evasions, misrepresentations, broken promises and lies" and criticized the organization for "viewing litigation as war."

"They don't practice law, they practice Scientology," says Daniel Leipold, a Los Angeles lawyer who has defended clients against Scientology. "For every nickel we spend, they spend $1. I consider Scientologists litigation terrorists."

But Scientology's current leaders deny Hubbard's legal writings are current church policy. Litigation, they say, has been the church's "last resort" while fighting to establish its rights as a religion. Buffeted by attacks from disgruntled ex-members and constantly challenged by governments here and around the world, Scientology's leaders describe themselves as persistent little guys, turning to the courts to protect themselves from abuse at the hands of religious bigots.

"Scientologists are, if nothing else, the antimatter of quitters," David Miscavige, Scientology's young leader, once bragged to an audience of 10,000 church members. "There's an old saying: When the going gets tough, pitbulls call a Scientologist."

But if they are little guys, they are little guys with big sticks.

To press its rights, Scientology has been able to turn to some of America's most powerful law firms. By church officials' own count, they employ more than 20 lawyers at a dozen firms, among them some of the leading lawyers on First Amendment and copyright law in the country. Scientology has its worldwide spiritual headquarters in Clearwater but draws its main lawyers from New York, Washington, San Francisco and Los Angeles. Most of their lawyers are non-Scientologists.

And Scientology has had the financial power to pursue cases that have taken literally decades to resolve. According to documents submitted to IRS by Scientology, the church spent $30-million in 1988 alone on legal and professional fees. Scientology's leaders point with pride to the virtual swarm of suits, countersuits and appeals against the Internal Revenue Service that ended in 1993 when the IRS recognized Scientology's status as a tax-exempt church. In return Scientology paid $12-million in back taxes and dropped more than 2,000 lawsuits filed against the IRS by individual Scientologists.

Since that IRS decision, Scientology leaders say, its litigation has dropped dramatically in the United States as the organization, now recognized as a church, has endeavored to seek peace.

"Litigiousness, I always think, is a cry by losers," said Sandy Rosen, a New York lawyer whose firm has represented Scientology in cases where the church has sought to sanction critics for printing Hubbard's copyright works on the Internet.

"The church does not choose to litigate, it isn't their way of choice to vindicate their problems, litigation really is the last resort," said Monique Yingling, a Washington, D.C., lawyer who has represented Scientology for 14 years. She insists that the church has never been litigious.

Yet, since it began in the early 1950s, Scientology has found itself embroiled in continuing legal fights. A survey of its litigation mirrors a history of the organization's struggle to define itself and explain its practices.

Some of the lawyers who have represented clients suing Scientology during the past 10 years say they have seen no change in the way Scientology conducts its legal actions since the IRS settlement.

"Litigating against them is fearsome," says Ford Greene, a California lawyer who has a current case against Scientology and has represented other clients dating back to the mid-1980s. "As much as a dump truck full of legal papers becomes a regular occurrence."

But the legal work is not the real problem, Greene insists. That comes from the "extracurricular attention" opposing lawyers get when they are pursued by private investigators, forced to fend off bar association complaints and deal with rumors spread around their neighborhoods.

Greene says he has seen no change in Scientology's tactics since 1993.

"They litigate by mud and by volume and behind-the-scenes intimidation," Greene said.

Kennan Dandar, the lawyer who represents the McPherson estate, agrees. Shortly after filing suit against Scientology, Dandar got a call from Scientology attorney Elliott Abelson.

Dandar said Abelson promised that Scientology "will bury you."

When he asked for more detail, Dandar said Abelson promised that Scientology will drag him all over the world taking depositions until he is ruined and buried.

Marty Rathbun, a high-ranking Scientology official, said Dandar "is making it up" to attract media attention.

So far Dandar has seen private investigators hired by Scientology contact his former clients looking for damaging information and lodged a protest with the court. Scientology's lawyers say they were merely trying to find out how Dandar got the McPherson case so they could file a bar complaint against him if he solicited it.

Private investigators

Scientology insists that only its lawyers hire private investigators to look into the personal background of those who oppose the church when it is associated with a lawsuit. Each time a private investigator is hired, it is done through Scientology lawyers.

Critics say private investigators are often used to spread false rumors to their friends and neighbors and to intimidate those who dare oppose Scientology. Some of the lawyers who fight Scientology say the investigators are hired through Scientology lawyers only so they can protect reports that are produced as legally privileged "work product."

Hubbard, Scientology's founder, recommended using private investigators to "noisily investigate" anyone attacking Scientology. Hubbard said anyone who attacks the church is hiding a criminal past, an accusation reiterated last fall by church officials who were questioned by NBC about their surveillance of Boston millionaire Bob Minton and his family.

Scientology officials have tracked down Minton family members all over the world, written letters to his estranged wife offering to help expose her husband's extramarital affair and distributed literature calling Minton a "religious bigot."

Minton has spent more than $2.2-million helping church critics involved in lawsuits and has helped pay expenses for a lawsuit filed by Lisa McPherson's family against Scientology.

Church officials say they investigated Minton in an attempt to find out why he is spending money against them.

In the case of a Boston Herald reporter who was pursued by private investigators, Scientology officials said they were trying to find out what motivated him to write a negative article "potentially in contemplation of a lawsuit."

In California, Scientology was accused of hiring private investigators to develop information on the senior partners of a large Los Angeles law firm that represented a defendant in a lawsuit.

In sworn statements taken for a lawsuit in 1997, Los Angeles lawyer Graham E. Berry said Scientology attorney Elliot Abelson; Mike Rinder, a high-ranking Scientology official; and others visited the senior partner at his law firm in early 1995 and threatened to expose extramarital affairs of several partners in the firm, among other irregularities discovered by private investigators.

As a result, Berry said, he was directed to drop all litigation against Scientology. His client's files were transferred to a storage center until a court ordered the files turned over to another lawyer.

Berry has since left the firm and continues to handle litigation against Scientology.

Rathbun said Berry "was hallucinating" when he made the statements. In an affidavit signed for the 1997 lawsuit, the firm's senior partner denied being blackmailed.

Berry said he has seen no change in the "aggressive and frightening" way Scientology litigates since the 1993 IRS settlement.

"If anything, it's worse than ever," Berry added.

In addition to hiring outside investigators, Scientology also teaches its own members how to do investigations to help "investigate public matters and individuals," according to documents filed in several different lawsuits.

The McPherson case is just the latest where Scientology has been forced to defend itself against a repeated charge: that it abuses its members.

Lawrence Wollersheim pressed a similar case years ago -- and that case still continues today.

A victory that wasn't

In 1980 Wollersheim, a former member of the Church of Scientology, filed suit in Los Angeles seeking damages for the emotional trauma and financial losses he says he suffered as a member of Scientology In 1986, after a hard-fought, five-month trial, a jury awarded Wollersheim $30-million in damages, later reduced to $2.5-million.

Wollersheim, now a resident of Boulder, Colo., is still trying to collect.

What followed his initial "win" was a numbing flurry of appeals, motions and suits.

Lawyers for Scientology didn't just appeal the original verdict. They filed suits against Wollersheim's lawyers, some of the witnesses and others associated with Wollersheim. They also sued Wollersheim -- four times.

Scientology's lawyers say the individual lawsuits could have been part of the original lawsuit, but California court rules forced them to file separate suits.

While the original lawsuit was pending, Scientology reorganized its corporate structure, transfering the assets away from the Church of Scientology of California, then the "mother church" of a worldwide organization.

When the initial appeals were over, Wollersheim found himself with a judgment against a corporation that had no remaining assets. So he went back to court in 1996 and asked a judge to declare several other Scientology corporations as "alter egos" of the defunct mother church.

In 1997 Los Angeles Superior Court Judge John Shook accused Scientology of deliberately transferring its assets and acting in bad faith to deprive Wollersheim of a verdict he won in the courts. Pay up, the court ordered.

Scientology appealed again, but not before posting a $9-million bond to guarantee eventual payment of its debt to Wollersheim. In early February of this year an appeals court in California returned the case to the lower court, saying the judge used the wrong standard in considering evidence. Additional hearings are likely.

Along the way Wollersheim has accrued millions in legal costs while managing to collect about $500,000 in legal fees from courts that declared some of Scientology's efforts frivolous attempts to run up his legal costs.

In 1994 Scientology became the first target of California's new SLAPP suit law, a measure aimed at preventing people from using the state's court system to punish enemies by filing lawsuits. The decision was upheld by California's Court of Appeal in 1996 in a decision that accused Scientology of using the courts "to bludgeon the opponent into submission." Wollersheim was awarded lawyer's fees totaling $289,000. California's Supreme Court refused to review the decision in May 1996.

After the U.S. Supreme Court affirmed Wollersheim's multimillion-dollar verdict against the church, Scientology filed suit again, alleging that California Judge Ronald Swearinger, the trial judge, had been prejudiced against them. Swearinger, the Scientologists argued, decided their case while harboring unfounded fears that Scientologists slit his tires, followed him during the trial and had drowned his border collie, Duke.

Judge Edward Kakita dismissed the lawsuit and declared it in violation of a California law designed to encourage the public to participate in government and speak freely. Scientology appealed. The California Court of Appeal on Feb. 1, 1996, affirmed the lower court's decision in a stinging order that recounted all of Scientology's efforts to use the courts to get Wollersheim.

The court noted that during 11 years of litigation, Wollersheim had been forced to sell all of his assets and go $900,000 into debt, not including lawyer's fees he still owed. The court found the lawsuit "consistent with a pattern of conduct by the church to employ every means, regardless of merit, to frustrate or undermine" Wollersheim's case.

"When one party to a lawsuit continuously and unsuccessfully uses the litigation process to bludgeon the opponent into submission, those actions must be closely scrutinized for constitutional implications," the court noted.

Despite the adverse rulings in California, Scientology sued Wollersheim once again in Colorado, alleging that he and others violated federal copyright laws by maintaining FACTNet, a library of Scientology information available on the Internet.

Scientology officials say Wollersheim invited some of the lawsuits and rebuffed settlement efforts, leaving them no choice but to fight it out in court.

"Wollersheim's existence is litigation with Scientology," says Rosen, Scientology's copyright lawyer. "Somebody has to sit down with him . . . and say today is the first day of the rest of your life, why don't you get on with it instead of fighting yesterday's battle?"

Church officials say Wollersheim repeatedly goaded Scientology to sue him because he had insurance that would cover the cost of legal fees.

Leipold, the Los Angeles lawyer who now represents Wollersheim, said Scientology's description of the situation "is their fantasy, it simply bears no relationship to reality."

Wollersheim has put much of his life into litigation against Scientology, but not because he wanted to.

"If they really wanted to settle with Larry, it could be done," Leipold said. "But they always put in one thing that makes it absolutely impossible, a hook to keep a sword hanging over his head."

Scientology frequently agrees to settle litigation only when the opposing party agrees to forgo future criticism of the church or pay stiff fines for speaking out.

Wollersheim says that fighting Scientology has become part of his life.

"There are many times when resistance is its own reward," Wollersheim says.

Attacking its critics

Scientology has also relentlessly pursued critics in the Cult Awareness Network and at Time magazine.

Scientology filed a libel lawsuit against Time after the publication of "Scientology: Thriving cult of greed and power" in 1991. Time spent more than $7.3-million defending itself against the lawsuit before it was dismissed in 1996. In addition to suing the magazine, Scientology also sued several of those quoted in the Time article, which labeled Scientology as a big business hiding behind First Amendment protections. The church also tried to subpoena Time reporter Richard Behar into an IRS lawsuit and accused a federal magistrate of leaking information to Behar.

Behar, now a senior writer for Fortune magazine, filed a counterclaim against Scientology alleging the church used private investigators to harass him, illegally obtained copies of his credit report and telephone records and contacted his friends and neighbors to ask about his health, whether he had trouble with the IRS and whether he had ever taken drugs.

Behar said he was subjected to more than 190 hours of questioning over 30 days while Scientology lawyers grilled him in the libel case. The questions included some about life inside his parents' home while he was still in his mother's womb; Scientology teaches that some problems can be traced to bad prenatal experiences.

"I felt it was extremely excessive," Behar said as he described the questioning. "They were asking questions that were often far afield. They were on some major fishing expeditions with me."

There are also times when the Church of Scientology tries to distance itself from litigation that deeply involves the church's interests. A series of lawsuits -- 21 filed during a 17-month period from New York to California and a total of 50 suits in all -- eventually led to the bankruptcy of one of the church's harshest critics: the Cult Awareness Network.

Although the suits were filed by Scientologists and handled by longtime Scientology lawyer Kendrick Moxon, Scientology officials say the organization did not provide financial backing for the suits.

In bankruptcy court, CAN's assets and name were bought by a Scientologist. Now when the hot line rings at CAN, it is answered by a Scientologist. This month a federal judge in Chicago ordered CAN's records -- 360 boxes that contain the confidential files of those who complained to CAN -- sold at public auction.

The copyright weapon

Scientology has been successful getting the support of U.S. courts over questions of copyright infringement. On several occasions judges have been persuaded to let Scientologists, in tandem with U.S. marshals, enter the homes of its critics to seize evidence showing critics are violating copyright or trademark laws.

The resulting "raids" sometimes left the judges who issued the orders wondering what they had done.

In Arlington, Va., outspoken Scientology critic Arnie Lerma was sipping his morning coffee on Saturday, Aug. 12, 1995, when a crowd knocked at his door. Federal marshals and private investigators hired by Scientology stayed for more than three hours going through his private papers and computer files before leaving with his computers, his Rolodex and armloads of personal papers and books.

In Boulder, Colo., Wollersheim and another former Scientologist, Bob Penny, were both at their homes, asleep in bed, on Aug. 22 when Scientologists and federal marshals raided their houses and began seizing their possessions. Wollersheim says the intruders broke the lock on the door to the room where documents were stored and ransacked his closets, bedroom, bathroom and kitchen before leaving with his computer files as well as books and papers on Scientology.

Wollersheim said many of the documents seized at his home were entrusted to him by lawyers who were using him as a consultant in other suits against Scientology. Other papers were part of a library that contains thousands of Scientology documents. Wollersheim and Penny founded FACTNet, a library filled with information on cults and available on the World Wide Web (http://www.factnet.org).

Former Scientologist Dennis Erlich was at home in Glendale, Calif., on Feb. 13, 1995, when Scientology conducted a 7 1/2-hour search of his papers and computer files. When his doorbell rang at 7:30 a.m., Erlich called police but was told he had to let in the private investigators hired by Scientology. Armed with a federal court order that allowed the search, the investigators searched his house until 3 p.m. and confiscated computer files that included all of his personal correspondence and financial data.

In all three cases federal judges later questioned whether the raids were necessary or appropriate. And all three judges ordered Scientology to return the items seized.

In Virginia, U.S. District Judge Leonie M. Brinkema said Scientology initially approached the court with what appeared to be a straightforward copyright and trade secret problem.

"However the court is now convinced that the primary motivation . . . is to stifle criticism of Scientology in general and to harass its critics," Brinkema added three months after Lerma's records were seized.

Lerma was found in violation of the federal copyright law and fined $2,500, but the court rejected Scientology's claim for $1.4-million it spent on legal fees, saying Lerma had been punished enough.

Judges in California and Colorado also expressed concern over Scientology's actions.

"The court is disturbed by the possibility that plaintiffs (Scientology) copied the entirety of Erlich's hard drive onto a tape for examination at their leisure," wrote U.S. District Judge Ronald M. Whyte of San Jose a few months after the raid. "Without consent this constitutes a significant intrusion into Erlich's private affairs that was not justified."

Whyte also questioned whether Scientologists deleted materials from Erlich's hard drive and ordered the immediate return of all articles seized.

In Colorado U.S. District Judge John J. Kane Jr. ordered Scientology to return the records to Wollersheim, saying he never authorized the organization to take possession of the seized records.

Late Friday Scientology reached an agreement with the lawyers for FACTNet and dismissed the four year old lawsuit in exchange for a promise that FACTNet will not violate the church's copyright in the future.

The no-notice searches were a coup for Scientology, but its critics are still pursuing other means to fight the church over the Internet. These days any secret Scientology document posted to the Net in the United States is quickly duplicated to Net sites in other countries where copyright laws vary.

In fact, as Scientology litigation of all kinds has declined in the U.S., a different story is unfolding overseas. Scientology has been involved in continuing legal battles throughout Europe. (See separate story, page XX).

But in the United States, church leaders say they believe they are entering a new peaceful phase that will, over time, spread to the overseas operations. With the IRS exemption in hand, they expect litigation to continue to decline as the church is increasingly accepted in America as a modern religion.

Cranes over downtown Clearwater stand in testament to the church's continued growth as the church and its members change the face of that city. But standing in the way is Pinellas-Pasco State Attorney Bernie McCabe, the prosecutor and a fresh charge that strikes at the heart of Scientology's claim that it helps its adherents.

In two days of interviews in February, two of Scientology's top officers and five lawyers from around the United States answered pages of questions from the St. Petersburg Times. Only one case was off limits: the death of Lisa McPherson.

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