BERT H.

DEIXLER

LAURA BRILL
NICHOLAS F. DAUM KENDALL BRILL & KLIEGER LLP 10100 SANTA MONICA BLVD., SUITE 1725 Los ANGELES, CALIFORNIA 90067 (310) 556-2700

ERIC M. LIEBERMAN Counsel of Record DAVID B. GOLDSTEIN RABINOWITZ, BOUDIN, STANDARD, KRINSKY, & LIEBERMAN, P.C. 45 BROADWAY, SUITE 1700 NEW YORK, NEW YORK 10006 (212)254-1111

Counsel for Petitioner

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TABLE OF CONTENTS
PARTIES TO THE PROCEEDINGS BELOW AND RULE 29.6 STATEMENT...............................................................................................v OPINIONS BELOW, JURISDICTION AND RULE 23.2 STATEMENT...............................................................................................5 STATEMENT...............................................................................................7 REASONS FOR GRANTING THE STAY................................................15 THERE IS A REASONABLE PROBABILITY THAT I. CERTIORARI WILL BE GRANTED .......................................................15 THERE IS A SIGNIFICANT POSSIBILITY THAT II. THE LOWER COURTS DECISION WILL BE REVERSED UPONREVIEW .........................................................................................19 APPLICANT WILL SUFFER AN IRREPARABLE III. INJURY IF A STAY IS NOT ISSUED PENDING THE DISPOSITION OF THIS CASE BY THIS COURT..................................23 CONCLUSION...........................................................................................25

136760.1

TABLE OF AUTHORITIES Page CASES

Admiral Ins. Co. v. United States Dist. Court, 881 F.2d 1486 (9th Cir. 1989) ................................................... 25 Alternative Health Care Systems v. McCown, 514 S.E.2d 691 (Ga. Ct. App. 1999) ......................................... 18 Auto Equity Sales, Inc. v. Superior Court of Santa Clara Cn ty., 369 P.2d 937 (Cal. 1962) ............................................................ 11 Barclaysamerican Corp. v. Kane, 746 F.2d 653 (10th Cir. 1984) ................................................... 25 Barnes v. E-Systems, Inc. Group Hosp. Med.& Surgical Ins. Plan, 501 U.S. 1301 (1991) ................................................................... 15 Bd. of Educ. of Ewing Twp., 330 U.S. 1 (1947).......................................................................... 19 Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) ..................................................................... 22 Church of Scientology of California v. United States, 506 U.S. 9(1992) ...................................................................... 3,23

Cox Broad. Corp. V. Cohn, 420 U.S. 469 (1975) ....................................................................... 4

Doe v. Corporation of the President of the Church of Jesus Christ of Latter Day Saints, 90 P.3d 1147 (Wash. Ct. App. 2004) ........................................ 17 Epperson v. Arkansas, 393 U.S. 104 (1968) ..................................................................... 19 Fort Wayne Books, Inc. ii. Indiana, 489 U.S. 46 (1989).......................................................................... 4 Fowler v. Rhode Island, 345 U.S. 67 (1943)........................................................................ 20 Hernandez v. Commissioner, 490 U.S. 680 (1989) ....................................................................... 8

136760.1

II

In re Burlington Northern, Inc., 822 F.2d 518 (5th Cir. 1987)...................................................... 25 In re Grand Jury Investigation, 918 F.2d 374 (3d Cir. 1990) ................................................. 17, 18 In re Von Bulow, 828 F.2d 94 (2d Cir. 1987).......................................................... 25 Kerr v. United States Dist, Court, 426 U.S. 394 (1976) ..................................................................... 25 Larson v. Valente, 456 U.S. 228 (1982) ............................................................... 19, 20 Miami Herald Publg Co. v. Tornillo, 418 U.S. 241 (1974) ....................................................................... 4 1\Tati Socialist Party of Am. v. Viii. of Skokie, 432 U.S. 43 (1977).......................................................................... 4 Oklahoma Publishing Co. v. District Court In and For Oklahoma County, 430 U.S. 308 (1977) ....................................................................... 4 Org. for a Better Austin v. Keefe, 402 U.S. 415 (1971) ....................................................................... 4 People v. Bragg, 824 N.W.2d 170 (Mich. App. 2012) ..........................................18 Reutkemeier v. Nolte, 161 N.W. 290 (Iowa 1917)..........................................................17 Roman Catholic Archbishop of L.A. v. Superior Court, 32 Cal* Rptr.3d 209 (2005), cert. denied, 547 U.S. 1071 (2006).................................... 5, 8, 10 Scott v. Hammock, 133 F.R.D. 610 (D. Utah 1990) ................................................. 17 State v. Archibeque, 221 P.2d 1045 Ariz. Ct. App. 2009) ........................................ 18 State v. Ellis, 750 So.2d 418 (La. App. 1999) .................................................. 17 State v. MacKinnon, 957 P.2d 23 (Mont. 1988) ........................................................... 17 State v. Martin, 975 P.2d 1020 (Wash. 1999) ...................................................... 17

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iii

Torcaso v. Watkins, 367 U.S. 488 (1960) .....................................................................19 Trammel v. United States, 445 U.S. 40 (1980)........................................................................16 Wallace v. Jaffree, 472 U.S. 38 (1985)........................................................................19 Wa lz v. Tax Co in m n, 397 U.S. 664 (1970) .....................................................................22

28 U.S.C. section 1257(a) ........................................................................6

28 U.S.C. section 1651 .............................................................................6 28 U.S.C. section 2101(f) .........................................................................6 Cal. Evid. Code section 1030 ............................................................2, 21 Cal. Evid. Code section 1032 ....................................................10, 11, 22

Cal. Evid. Code section 1033 ................................................................12

Cal. Evid.Code sections 1030-34..........................................................12

OTHER AUTHORITIES
7 Cal. L. Revision Commission Rep. 202 (1965) ..............................13

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iv

PARTIES TO THE PROCEEDINGS BEL RULE 29.6 STATEMENT

The names of all the parties to the proceedings in the California Supreme Court are included in the caption of the case. In addition, Religious Technology Center is a defendant in the proceedings in the Los Angeles County Superior Court, but is not a party to the dispute raised in this Petition. Church of Scientology International and Religious Technology Center are not-for-profit religious corporations, have no parent corporation, and do not have any owners or issue any stock.

136760,1

V.

IN THE

Supreme Court of the United States

CHURCH OF SCIENTOLOGY INTERNATIONAL, Petitioner,
V.

LAURA ANN DECRESCENZO Respondent.

WIMIMMUMADW-M 11

I,

CIRCUIT

Applicant Church of Scientology International ("the Church"), respectfully requests an immediate stay of an order issued by the Superior Court of California, Los Angeles County, requiring the Church to produce records of confidential penitential communications to church ministers (the "Production Order"). An application to stay the Production Order has been denied by the Superior Court, Los Angeles County, the Court of Appeal of the State of California, Second Appellate District, and the Supreme Court of California (over the dissent of two Justices), and the Church requests a stay of the Superior Courts order pending final resolution of the Churchs simultaneously-filed petition for writ of certiorari. The Production Order is attached at pages C 3a-5a and D 6a-36a of

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the Appendix in support of this stay application, submitted simultaneously herewith. As described in greater detail below, a stay of the Production Order pending resolution of the Churchs petition for writ of certiorari is necessary to avoid grave constitutional harm. Absent a stay, the Church will be compelled, based upon an unconstitutional denominational preference that discriminates in favor of certain religions and against others, to produce thousands of pages of important religious material that the Churchs core spiritual practice mandates be kept confidential. Once produced, the documents cannot be made confidential again, and harm to the Church and its parishioners from the discriminatory compelled disclosure cannot be undone. The Church should not be put to a Hobsons choice between obeying its religious obligations at the risk of discovery sanctions, including a default, and obeying a court order mandated by Californias plainly unconstitutional and discriminatory privilege statute. A stay from this Court would prevent this Hobsons choice and allow the Court to resolve the important constitutional issue concerning Californias discriminatory application of its clergy-penitent privilege. California has construed its Penitent-Clergy privilege statute, Cal. Evid. Code 1030 et seq., to create a denominational preference that violates both the Establishment Clause and the Free Exercise Clause of the First Amendment. Under the California precedent applied in this case, the privilege protects confidential penitential communications made to a single clergy

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persona practice typical of Catholicism and some other denominationsbut does not protect equally confidential spiritual communications of other denominations, whose religious doctrine and practice involves dissemination of equally confidential communications from a parishioners to more than a single clergy person. Applying this California precedent, a California lower court ordered the production of records held by the Church, over the Churchs privilege objection. Production is currently scheduled for July 2, 2013 If production takes place, religious

confidentiality as to the records at issue can never be regained, and one of core religious practices of the Church will have been irrevocably violated, due to Californias plainly unconstitutional application of its privilege law. Numerous decisions by the Court recognize that irremediable harm from an infringement of core First Amendment values may take place not only at the ultimate conclusion of an action, but during ongoing litigation, and that Although, as set forth herein, the harm from such compelled disclosure is substantial and irreparable, even if the Application for a Stay is denied, the issue will not be rendered moot, as substantial continuing harm to the Church will result from the continued possession of, access to, and use in judicial proceedings of these confidential religious communications by others than Scientology clergy, which harms may be effectively remedied by the courts. See Church of Scientology of California v. United States, 506 U.S. 9, 13 (1992). For example, "a court does have power to effectuate a partial remedy by ordering the [Respondent] to destroy or return any and all copies it may have in its possession. The availability of this possible remedy is sufficient to prevent this case from being moot." Id. The courts may also prevent any use of the documents in court proceedings.

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this Court may intervene, by means of a stay and otherwise, to prevent such harm. 2 Here, the Superior Courts order, and its endorsement by the higher California courts pursuant to the state-law rule of Catholic Archbishop, imposes a denominational preference that violates the Courts core Establishment Clause and Free Exercise Clause holdings, and threatens religious The Court has often acted to preserve important First Amendment values when such values are threatened by actions of the state courts taken during the course of ongoing litigation, so long as the state court decision "might seriously erode federal policy." Cox Broad. Corp. v. Cohn, 420 U.S. 469, 484-85 (1975). For example, in Oklahoma Publishing Co. v. District Court In and For Oklahoma County, 430 U.S. 308, 310-12 (1977), this Court granted certiorari to a state trial courts interim order which, as here, petitioner had sought to correct by writ proceedings in the state courts - prohibiting disclosure of the name or picture of a minor child in violation of this Courts First Amendment jurisprudence. See also Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 55 (1989) ("Adjudicating the proper scope of First Amendment protections has often been recognized by this Court as afederal policy that merits application of an exception to the general finality rule."); Natl Socialist Party of Am. v. Vill. of Skokie, 432 U.S. 43, 44 (1977) (holding state Supreme Court order denying stay of injunction order prohibiting Nazi party from marching sufficiently final for Supreme Court review); Miami Herald Publg Co. v. Tornillo, 418 U.S. 241, 247 n.6 (1974) (intervening after state courts reversal and remand of lower state courts denial of an injunction, noting that "Whichever way we were to decide on the merits, it would be intolerable to leave unanswered, under these circumstances, an important question of freedom of the press under the First Amendment; an uneasy and unsettled constitutional posture . . . could only further harm the operation of a free press"); Org. for a Better Austin v. Keefe, 402 U.S. 415, 418 (1971) (holding state appellate courts order sustaining preliminary injunction that infringed on significant First Amendment values sufficiently final to permit review by this Court).
2

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practitioners throughout California with an ongoing infringement of their First Amendment rights, in a manner that will generally be difficult for this Court to review. It is, accordingly, an order ripe for review, and one that may and should be stayed by this Court.

OPINIONS BELOW, JURISDICTION AND RULE 23.2 STATEMENT On March 6, 2013, the Superior Court of California, Los
Angeles County, issued the attached transcribed oral order of the Superior Court of California, Los Angeles County requiring petitioner to produce written records of confidential penitentclergy communications. Stay App. C 3a-5a and D 6a-36a. 3 The Superior Courts order was based on the reported decision in

Roman Catholic Archbishop of L.A. v. Superior Court ("Catholic Archbishop"), 32 Cal. Rptr. 3d 209 (2005), cert. denied, 547 U.S.
1071 (2006); Stay App E. The Superior Court, at the time the order was issued, agreed to make its order effective on May 6, 2013. Stay App. D 33a. On March 29, 2013, the Church filed a Petition for Writ of Mandate or Prohibition with the California Court of Appeal, and sought a further stay of the Superior Courts Order with that court. On April 25, the same panel of the court that had decided References to "Stay App." are to the Appendix of materials submitted in support of this stay application. This Appendix includes, for the Courts reference, Declarations of Warren McShane and Allan Cartwright, submitted to the Superior Court, that describe the religious practice and documents at issue and the harm to the Church from disclosure absent a stay.

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the Catholic Archbishop case summarily denied the Petition without comment, and simultaneously denied the Churchs request for a stay. Stay App. B 2a. On April 29, 2013, the Church filed a Petition for Review in the California Supreme Court, together with a request for a stay pending review. The California Supreme Court denied the petition and stay request on May 15, 2013, with Justices Baxter and Chin stating that they would grant the petition. Stay App. A la. On May 16, 2013, the Superior Court again denied the Churchs request for a stay, and ordered the Church to produce the confidential PC Folders by 9:30 a.m. on July 2, 2013. Stay App. F 106a-108a. Absent intervention by this Court, a stay is not available from any other court or judge. The Church has already requested that the California Court of Appeal and Supreme Court stay the matter, but those courts have declined to do so. The Church has also requested that the Superior Court stay its order pending review by this Court, but the Superior Court specifically declined to do so, and ordered production by July 2, 2013. Stay App. F 106a-108a. Accordingly, if a stay is to be issued, it must come from this Court. The Church, having sought review from the higher California courts including the California Supreme Court, invokes this Courts jurisdiction pursuant to 28 U.S.C. section 1257(a), and this Court has jurisdiction to stay the Production Order under 28 U.S.C. section 2101(f) and 28 U.S.C. section 1651 (the All Writs Act).

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STATEMENT In a precedential opinion of wide import, the California Court of Appeal in 2005 construed Californias penitent-clergy privilege to protect spiritual communications and counseling practices only when the communications are limited to a single spiritual advisor; any further disclosure by that clergy person of any portion of the communication to senior clergy (or any penitent communication in the presence of anyone other than a single clergy person), even when required by the beliefs, doctrine and practices of that denomination, completely destroys the privilege. Catholic Archbishop, 32 Cal. Rptr. 3d 209 (2005), cert.

denied, 547 U.S. 1071 (2006); Stay App. E 37a-105a.

Denominations that require, as part of their core religious practices, communications of a confidential spiritual nature to more than one clergy person or that such communications may or must be further disclosed to a small, select number of senior clergy are categorically excluded from the privilege. In this case, the California courts applied the denominational preference established in Catholic Archbishop to documents derived from the religious practice of "auditing," which is the central religious practice of the Scientology religion. Stay App. G llla-113a, 124a. In auditing, a form of religious counseling, the parishioner who seeks counseling engages in confidential communications with a Scientology minister, called an "auditor," who, as mandated by Church law, then communicates portions or all of the communications to a senior clergy person, called a "case supervisor." Stay App. G 115a-117a.

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The case supervisor assists the auditor in counseling and ministering to the counselee. Id. Scientology religious doctrine mandates that all records of auditing communications be maintained solely to further the religious and spiritual progress of a parishioner and in secrecy, and that neither the parishioner making the confidential communication nor clergy who receive or review it will ever disclose such communications outside the limited confines of the auditing process. Stay App. G 118a-121a. Relying upon Catholic Archbishop, the California Superior Court ordered auditing records produced, reasoning that the mere fact that the auditing communications were ultimately conveyed to a second clergyperson, the case supervisor, as opposed to a single clergyperson exclusively, was sufficient to void or waive the privilege as to the auditing materials. Absent this Courts intervention, the auditing records at issue are required to be produced by July 2, 2013, and an irreparable harm will be done to the Churchs religious practice. 1. The Scientology religion is based upon its "Scripture,"

which consists of the writings and recorded spoken words on Scientology of its "Founder," L. Ron Hubbard. Stay App. G llOaliIa. Scientologists believe that salvation depends on increasing ones awareness of ones spiritual identity through a practice of religious counseling called "auditing." Stay App. G 111a-118a. Auditing is the core practice of the religion; without auditing, there could be no Scientology in its current form. Id; see Hernandez v. Commissioner, 490 U.S. 680, 684-685 (1989).

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2.

Auditing is ministered in confidential one-on-one

sessions between an auditor and a parishioner under circumstances of guaranteed confidentiality. Stay App. G 118a121a. Auditing requires specifically trained auditors for each level of services, each of whom is mandated to maintain the confidentiality and secrecy of all communications made in each session. Stay App. 116a-118a. 3. Scientology Scripture mandates that the written

record of all auditing sessions must be compiled into an auditing folder (called a "Preclear" or "PC" folder). Stay App. 115a. As these documents contain or refer to the parishioners communications to her auditors, they are kept strictly secure and confidential, and are not disclosed other than to the very select clergy members responsible for the auditing process, described below. Stay App. 115a, 118a-121a. Scientology places great religious emphasis on the confidentiality of a parishioners auditing folders. Id. The Church and its ministers have an absolute responsibility to maintain the secrecy of auditing files.

Id. Such folders cannot be disclosed without violating the

fundamental religious tenets of the Church.

Id. The

unauthorized disclosure of someones PC folder is one of the most serious ecclesiastical acts of misconduct within the Church, and can lead to expulsion from the Church. Stay App. 120a-121a. Turning over the PC folders of the parishioners auditing, even to the parishioner, is forbidden. Id. 4. Here, the Scientology practice of auditing has come

into conflict with the California legal rule announced in Catholic

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Archbishop. Catholic Archbishop involved grand jury subpoenas

to the Catholic Archdiocese of Los Angles concerning records of interviews by Catholic senior clergy of priests who had been accused of sexual abuse. 32 Cal. Rptr. 3d at 214-17; Stay App. E 38a-45a. The interviews were not undertaken pursuant to the traditional Catholic confessional, but rather part of an investigatory process carried out by the Archdiocese itself. It was understood by all concerned that the records of the interviews would be disclosed to senior Church clergy, including possibly the Cardinal, and in fact they were so disclosed. Id. The California Court of Appeal in Catholic Archbishop, faced with these facts, construed the California statutory language establishing Californias priest-penitent privilege. Specifically, it considered California Evidence Code section 1032, which defines a Penitential Communication as a: communication made in confidence, in the presence of no third person so far as the penitent is aware, to a member of the clergy who, in the course of the discipline or practice of the clergy members church, denomination, or organization, is authorized or accustomed to hear those communications and, under the discipline or tenets of his or her church, denomination, or organization, has a duty to keep those communications secret. Cal. Evid. Code 1032 (emphasis added). Construing the provision that the penitential communication must be made "in the presence of no third person so far as the penitent is aware," the California appellate court explicitly held that the records of the interviews were not protected by the California penitent-

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10

clergy privilege precisely and solely because the confidences disclosed by the priests were the subject of further internal disclosure to senior Church clergy: The record demonstrates the participants in the Archdioceses troubled-priest interventions knew any communications likely were to be shared with more than one person. According to the Archdioceses declared policy, priests experiencing psychological and sexual problems were encouraged to discuss those problems with the archbishop and the Vicar for Clergy. Furthermore, the subpoenaed documents themselves amply demonstrate that communications to and from the individual priests were routinely shared by Cardinal Mahoney, whoever happened to be the current Vicar for Clergy, and sometimes other Archdiocese employees as well. This sharing of information violates Evidence Code section 1032s requirement that the penitents communication be "made in confidence, in the presence of no third person so far as the penitent is aware," to a cleric who is obligated "to keep those communications secret." The fact both parties to the original communication knew it likely would be transmitted to a third person vitiated ab initio any privilege under Evidence Code section 1032, or, alternatively, constituted a waiver of the privilege under Evidence Code section 912, subdivision (a).

Catholic Archbishop, 32 Cal. Rptr. 3d at 229; Stay App. E 73a75a. Under California law, this decision is binding throughout the entire state and controls the decisions of every California

trial court. See Auto Equity Sales, Inc. v. Superior Court of Santa
Clara Cnty., 369 P.2d 937, 940 (Cal. 1962) ("Decisions of every
division of the District Courts of Appeal are binding upon all the

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11

justice and municipal courts and upon all the superior courts of this state"). 5. Respondent Laura Ann DeCre scenzo ("De Crescenzo")

brought a civil action against the Church and another defendant in the California Superior Court, Los Angeles County on April 2, 2009, alleging, as subsequently amended, various claims, including for intentional infliction of emotional distress. The claims alleged acts of defendants between 1991 and 2004 while DeCrescenzo was a member of Scientologys religious order, the Sea Organization, and a staff member of the Church.

Complaint, DeCrescenzo vs. Church of Scientology Intl, No.

BC411018 (Cal. Super. Ct. Apr. 2, 2009), 2009 WL 890202. 6. On April 11, 2012, DeCrescenzo served the Church

with a request for production of documents seeking, inter alia, all documents contained within her PC Folders. The Church objected to the requests for the PC Folders, on the ground that the communications were protected from disclosure by Californias penitent-clergy privilege statute, Cal. Evid. Code 1030-34, which specifically permits the privilege to be invoked by and on behalf of the "clergy" as well as by the "penitent." 4 See Stay App. H 124a.

California Evidence Code section 1033 recognizes that the privilege belongs to both the penitent and the clergy and may be asserted by either on her own behalf. The California Law Revision Commission, which drafted the statute in 1965, explained that: The extent to which a clergyman should keep secret or reveal penitential communications is not an

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12

7.

The documents the Church has withheld from

production consist of records or notations from auditing sessions made on standardized forms for auditing that were prepared by auditors in connection with Scientology Scripture, or documents that reflect communications between a Case Supervisor and an auditor concerning De Crescenzos auditing communications. Stay App. H 124a. Such documents specifically describe or refer to and include communications made in auditing sessions by DeCrecenzo. Id. 8. On December 6, 2012, DeCrescenzo moved to compel

the production of the PC folders and, after the Court ordered and the Church produced a privilege log, DeCrescenzo filed a renewed motion to compel. 9. In support of her renewed motion, DeCrescenzo relied

primarily on the decision in Catholic Archbishop. See Stay App. D 9a-11a. The Church opposed DeCrescenzos motion to compel, arguing that Catholic Archbishop created an unconstitutional denominational preference in favor of the traditional Catholic appropriate subject for legislation; the matter is better left to the discretion of the individual clergyman involved and the discipline of the religious body of which he is a member.

7 Cal. L. Revision Commission Rep. 202 (1965). Here, the

record establishes that Scientology doctrine forbids its clergy from disclosing the content of any auditing communication outside the auditing process itself (including supervisory review), whether or not the person audited attempts to do so.

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13

confessional and similar practices and against denominations, including Scientology, in which confidential communications to clergy, including confessionals, involve more than one clergy member as a matter of religious doctrine. See Stay App. D ha12a. 10. On March 6, 2013, the Superior Court granted the

motion to compel production of the auditing folders. Stay App. C 3a-5a, D 6a-34a. The Court recognized the significance of the Churchs privilege claim, and expressed its concerns that Catholic

Archbishops construction of the statute created unconstitutional

discrimination among denominations, noting that the issue might have to be resolved by the "Supreme Court of the United States." Stay App. D 30a. The Superior Court held, however, that it was compelled to apply that construction by the California Court of Appeals decision in the Catholic Archbishop case, stating, "it [the

Catholic Archbishop opinion] is only a decision made by an

intermediate appellate court, but I think that I am subordinate to that court." Stay App. D 32a. 11. As noted above, the Church has sought, but failed to

obtain, a reversal or stay of Superior Courts order from the higher California courts, and the Superior Court has ordered that the auditing documents at issue must be produced by July 2, 2012. Stay App. A la, B 2a, F lOGa. If that happens, the religious confidentiality over these documents will be permanently and irrevocably violated.

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14

REASONS FOR GRANTING THE STAY

This Court has identified three general criteria that must be met by a stay applicant: (1) "a reasonable probability that certiorari will be granted (or probable jurisdiction noted), (2) "a significant possibility that the judgment below will be reversed, and (3) "a likelihood of irreparable harm (assuming the correctness of the applicants position) if the judgment is not

stayed." Barnes u. E-Systems, Inc. Group Hosp. Med.& Surgical Ins. Plan, 501 U.S. 1301, 1302 (1991). Here, all three criteria are
met.

I. THERE IS A REASONABLE PROBABILITY THAT CERTIORARI WILL BE GRANTED

The issue raised by this case is one of national importance and great significance to a wide range of religious groups: namely, the ability of a state to use its clergy-penitent privilege to establish a denominational preference in favor of certain denominations, notably Catholicism, while denying it to others, including the Church of Latter Day Saints, the Presbyterian Church, Scientology, and other Christian denominations. The order of the Superior Court below and the Court of Appeals decision in Catholic Archbishop upon which it is based are unprecedented in modern times in the manner in which they needlessly impose discrimination among religions. Californias clergy-penitent privilege derives from the traditional "priestpenitent" privilege, which "recognize[d] the human need to

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15

disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive clerical consolation in return." Trammel v. United States, 445

U.S. 40, 51 (1980). But California has interpreted its clergypenitent statute to protect the confidential spiritual counseling provided by some religions, but not others. The only difference between the confidential communications at issue in this case and confidential communications that follow the model of the Catholic Confessional is that, under the discipline and doctrine of the Scientology religion, plaintiffs confidential communications were confidentially disclosed by auditors to select senior clergy. California law protects the Catholic model of confidential confession, but not that of other religions. The denominational preference by no means works only against the Scientology religion. As reported cases demonstrate, numerous denominations provide for confidential communicantclergy communications where the privileged disclosure either is made to more than one clergy person and/or is disclosed by the clergy person receiving the confidence to senior clergy persons, all in furtherance of the discipline and practice of that particular denomination. Some other denominations (unlike the Church, where auditing is initially a one-on-one communication) permit non-clergy to be present at the time a penitential communication is made. Many courtsthough not the courts of Californiahave examined penitential communications made in these circumstances, and have held that the privilege must be applied in these circumstances, to avoid discrimination among

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16

denominations. See, e.g., Reuthemeier v. Nolte, 161 N.W.

290

(Iowa 1917) (disclosures within the Presbyterian Church to more than one minister held privileged); Scott v. Hammock, 133 F.R.D. 610, 613 (D. Utah 1990) (communications to a "Bishops Court" of the Church of Latter Day Saints that involved multiple clergypersons held to be privileged and confidential); Doe v. Corporation of the President of the Church of Jesus Christ of Latter Day Saints, 90 P.3d 1147, 1154 (Wash. Ct. App. 2004) (communications from penitent to a Bishops Court of the Church of Latter Day Saints held privileged; the privilege was not "vitiated" by communication of the communication to a third person "when the third person is another member of the clergy.") (quoting State v. Martin, 975 P.2d 1020, 1027 (Wash. 1999)); State v. MacKinnon, 957 P.2d 23, 24-25 (Mont. 1988) (confidential communications made to more than one clergyperson of the Missoula Christian Church, trial court granted in part motion to suppress, recognizing that the communications were confidential within church practice); In re Grand Jury Investigation, 918 F.2d 374, 384-85 (3d Cii. 1990) (involving communications to a Lutheran minister, court held "the presence of third parties, if essential to and in furtherance of the communication, should not void the privilege"; emphasizing contrary rule risked "the prospect of restricting the privilege to Roman Catholic penitential communications [which would] raisefl serious First Amendment concerns"); State v. Ellis, 750 So.2d 418 (La. App. 1999) (holding communications to Baptist minister in presence of "victim" of alleged aggravated assault privileged because made in

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17

expectation of confidence and minister was acting in "his spiritual capacity as spiritual advisor to two congregants of his church"); Alternative Health Care Systems v. McCown, 514 S.E.2d 691, 697-98 (Ga. Ct. App. 1999) (holding communications made by mother and two daughters, in contemplation of death of husband/father, to minister of United Methodist Church "to provide pastoral counseling, spiritual guidance," pursuant to church doctrine, as privileged; privilege is not "waived by the presence of more than one person seeking spiritual comfort or counseling"); People v. Bragg, 824 N.W.2d 170 (Mich. App. 2012) (holding defendants statements to Baptist minister in presence of his mother privileged because it was "made in the course of discipline enjoined by the Baptist Church", 824 N.W. at 187, and was confidential); State v. Archibeque, 221 P.2d 1045, 1050 (Ariz. Ct. App. 2009) (holding confession to Mormon bishop in presence of wife privileged, because confession was confidential and held in furtherance of repentance process under church doctrine) 5 Thus, Californias privilege statute also creates a denominational preference against the numerous denominationsincluding Lutherans, Baptists, Methodists, and Latter Day Saintsthat permit such communications to be made in the presence of third parties where permitted by church doctrine, thereby "raising serious First Amendment concerns." In re Grand Jury Investigation, 918 F.2d at 384-85. The issue of communications in the presence of non-clergy third parties is not directly raised in this case because none of the communications plaintiff made to her Scientology clergy were in the presence of a third party, even another minister. The Court, however, may wish to address the broader issue as well, to insure that the California privilege is applied in a constitutionally proper manner.

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18

Thus, Californias application of its law of evidence denies the privilege to confidential communicant-clergy statements made in numerous churches, including the Presbyterian, Latter Day Saints, Scientology, and at least some Christian churches. The California law unquestionably discriminates against those denominations, and in favor of churches, like the Catholic Church, where such communications are made exclusively to a single clergy who does not disclose the communication to another clergy.

IL THERE IS A SIGNIFICANT POSSIBILITY THAT THE LOWER COURTS DECISION WILL BE REVERSED UPON REVIEW
This Court has made repeatedly clear that state-imposed religious denominational preferences are abhorrent to the First Amendment. "The establishment of religion clause of the First Amendment means at least this: Neither a state nor the Federal Government . . . can pass laws which aid one religion. . . or prefer one religion over another." Bd. of Educ. of Ewing Twp., 330 U.S. 1, 15 (1947); Larson v. Valente, 456 U.S. 228, 245 & n.22 (1982); see also Wallace v. Jaffree, 472 U.S. 38, 69 (1985) (OConnor, J., concurring); Epperson v. Arkansas, 393 U.S. 104, 106 (1968) ("The First Amendment mandates governmental neutrality between religion and religion. . . . The State may not adopt programs or practices. . . which aid or oppose any religion. This prohibition is absolute."); Torcaso v. Watkins, 367 U.S. 488, 495 (1960) ("Neither [a State nor the Federal Government] can constitutionally pass laws or impose requirements which aid.

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those religions based on a belief in the existence of God as against those religions founded on different beliefs."). Application of the Establishment Clauses prohibition of denominational preferences is not limited to cases where the government in terms explicitly has discriminated among denominations. Rather, even where the government action has been expressed in terms that might appear facially neutral, this Court has not hesitated to strike down statutes or other government action when the effect upon religious practices is to further such preferences. Thus in Larson, the Court found unconstitutional on its face a solicitation statute that required churches to disclose the use of donated funds, but exempted those churches that received over 50% of their donations from members. 456 U.S. at 246, ii.23. In Fowler v. Rhode Island, 345 U.S. 67 (1943), the Court held unconstitutional a facially neutral statute providing, "No person shall address any political or religious meeting in any public park," which had been applied to arrest a Jehovahs Witnesses minister.
Id. at 67-68. The State

conceded that the ordinance did not prohibit religious services in the park, but only speeches of the kind Fowler gave, which the State maintained was not a religious service. Id. at 69. The Court held that the States attempt to distinguish among denominations as to what was a religious service violated both the Establishment and Free Exercise Clauses.
Id. at 69-70.

As Larson teaches, state imposition of a denominational preference is subject to strict scrutiny, and can only be upheld where the preference is in furtherance of a state interest of the

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highest order and achieves that end by the least restrictive means. 456 U.S. at 247. California has already determined that no compelling interest prohibits application of a penitentialclergy privilege. There can be no defensible reason, compelling or otherwise, to extend the privilege for communications made to a single clergy person, but to refuse to do so for communications made to two or three clergy or to confidential communications that one clergy person discloses to another according to the discipline and doctrine of the faith. The State cannot establish an interest of the highest order to justify denying a religious exemption to one practice where it already has granted a religious exemption to another. Californias construction of its clergy-penitent privilege also violates the Free Exercise Clause. It threatens the very way in which Scientologists practice their religion. As shown above, the central religious practice of the Scientology religion is auditing. Stay App. G lila-liSa. The success of auditing in addressing the parishioners spiritual needs and development, however, depends upon the guarantee that the auditing communications will not be disclosed outside the auditing process, including the supervisory participation of senior clergy. Id. at 115a-121a. If a parishioner has committed a wrongful or potentially criminal act, he likely will not disclose such an act to an auditor if he knows that the government or a civil party may subpoena his auditing file and obtain his auditing communications. Id. at liSa, 120a. Pursuant to core Scientology religious doctrine, that failure to disclose the act and to deal with its consequences through the

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auditing process will hinder the parishioners spiritual progress and even his salvation. Id. When a state adopts a statute that specifically addresses a religious practice and relieves a burden on the exercise of the religious practices of some religions while not exempting others from that burden, its actions violate the Free Exercise Clause of the First Amendment, unless justified by the most compelling of government interests and achieved by the narrowest means

available. Church of Luhumi Babalu Aye u. City of Hialeah, 508

U.S. 520, 531-32, 546 (1993) ("A law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny, . . . must advance interests of the highest order and must be narrowly tailored in pursuit of those interests"). In applying its free exercise review, "The Court must survey meticulously the circumstances of governmental categories to eliminate, as it were, religious gerrymanders." Id. at 534 (quoting Walz v. Tax Commn, 397 U.S. 664, 696 (1970) (Harlan, J., concurring)). As discussed above, California Evidence Code section 1032, as construed by the California courts, cannot survive strict scrutiny. Given that California long has recognized the existence of the privilege, there can be no rational argument that it has a compelling interest in applying that privilege only to certain denominations or practices and not to others, based on their confessional doctrines and practices.

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III. APPLICANT WILL SUFFER AN IRREPARABLE INJURY IF A STAY IS NOT ISSUED PENDING THE DISPOSITION OF THIS CASE BY THIS COURT
In the event a stay is not granted, the lower Courts judgment will take effect, and the Church will be permanently harmed by the disclosure of privileged materials that form part of one of its central ecclesiastical practice. The California Superior Court has ordered production of the records at issue by July 2, 2013, such that on that date the documents will be turned over to the Plaintiff in the matter and the confidential protection of the documents will be lost. , Once lost, the religiously-significant confidentiality of the records at issue cannot be regained. Within the Scientology religion, the central religious practice is auditing, and, for the auditing process to be successful, it must remain confidential. Stay App. G 111a-115a. Auditing is a necessary part of the Scientology doctrine of spiritual progress. A parishioner engaged in auditing may disclose various "overts," consisting of wrongful or harmful acts, comparable to the concept of sin. Id. 114a-115a. The auditor will do more than simply provide absolution for an overt, however; rather the auditor, with religiously necessary assistance of the case supervisor, and the

To be clear, however, and as noted above at Footnote 1, supra, while the harm from disclosure is irreparable, once the auditing records are produced the issue will not be rendered moot, as there is still ongoing and significant harm to the Church due to the continued possession of the sensitive religious documents by nonChurch authorities. See Church of Scientology of California, 506 U.S. at 13.

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parishioner will work to enable the parishioner to overcome both the cause and effect of the overt. Id. Only by confronting his or her overts through an ongoing auditing process may a Scientologist achieve spiritual progress and salvation. Id. lilali3a. To be effective, however, this process depends upon the guarantee that the disclosuresboth of the parishioner and of the relevant clergybe maintained as confidential.

Id. 113a

121a. If a parishioner has committed a wrongful act such as, for example, an extra-marital affair or alcohol abuse, he likely will not disclose such an act to an auditor if he knows that his spouse, the government, a civil party may subpoena his auditing file and then publicly disclose his confessions or disclosures. Id. 112a118a. Similarly, an auditor may alter or abstain from providing advice if he or she is aware that public disclosure is a possibility.

Id. Under the Scientology religion, both the failure to disclose the
act and to deal with its consequences properly through the auditing process will hinder the possibility of spiritual progress for Scientologists. Id. 112a-121a. Unless Scientology churches can assure parishioners and auditors of the inviolability of the auditing process and auditing files, the very practice of Scientology will be burdened and cannot proceed in the manner and with the openness required by religious doctrine. Id. Thus, if it is not stayed, the Production Order will work irrevocable harm to the Church and its religionnot only in this case, but as to the Churchs practice more generally. Courts routinely recognize that the harm involved in being erroneously compelled to produce privileged material is irreparable.

See, e.g.,

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Admiral Ins. Co. v. United States Dist. Court, 881 F.2d 1486, 1491 (9th Cir. 1989) (noting "the irreparable harm a party likely will suffer if erroneously required to disclose privileged materials or communications"); In re Von Bulow, 828 F.2d 94 (2d Cir. 1987); In re Burlington I\To rthern, Inc., 822 F.2d 518 (5th Cir. 1987); Barclaysamerican Corp. u. Kane, 746 F.2d 653 (10th Cir. 1984).
Cf. Kerr v. United States Dist. Court, 426 U.S. 394, 404 (1976)

(affirming Ninth Circuits denial of mandamus where petitioners could claim no absolute privilege). If this is true as to attorneyclient privileged communications, which generally affect only a particular client on a particular issue, it is a fortiori true here, where the compelled disclosure of Church material, based on Californias discriminatory application of its law of evidence, would work irrevocable harm to the practice of an entire religion. Accordingly, a stay is necessary to protect against serious constitutional injury, and should be issued by the Court. CONCLUSION For the reasons stated the Court should issue a stay of the Production Order pending this Courts final disposition of the Churchs Petition for Writ of Certiorari.

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Dated: June 21, 2013

Respectfully submitted,

By:

Eric M. Lieberman
BERT H. DEIXLER LAURA BRILL NICHOLAS F. DAUM KENDALL BRILL & KLIEGER LLP 10100 SANTA MONICA BLVD., SUITE 1725 Los ANGELES, CALIFORNIA 90067 (310) 556-2700 ERIC M. LIEBERMAN Counsel of Record DAVID B. GOLDSTEIN RABINOWITZ, BOUDIN, STANDARD, KRINSKY, & LIEBERMAN, P.C. 45 BROADWAY, SUITE 1700 NEW YORK, NEW YORK 10006 (212)254-1111

Counsel for Petitioner

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