RICO Act, Proposed Class Action against the Church - it is filed

[Amulek]

16 minutes ago, changed said:

Luke 11:42-44.

Well, I admit that my family does like to sit in the same seat each week. Whether or not it's the best seat is probably debatable.

To be honest, the only place where I demand the best seat is in the movie theater. Seriously, I am unapologetically picky when it comes to both theater and seat selection. 

Back in the day, I used to go to the box office well before it opened to be sure and get tickets for the screen I wanted to watch the film on, and then I would show up (at minimum) 30-45 minutes early - though if it was a blockbuster / opening day film kind of thing I would go hours early and just bring a book to read.

Ah, those days are gone. Now I can reserve the best seat in the best theater in the entire DFW metroplex from the comfort of my computer and show up right as the trailers begin. Life is good.  

 

[Hamba Tuhan]

56 minutes ago, changed said:

Luke 11:42-44.

Oh, I like games!

Ether 12:26.

 

[LoudmouthMormon]

11 hours ago, changed said:

On 9/30/2019 at 12:03 PM, LoudmouthMormon said:

Let's test that out.

Hey @Changed, here is a link to the Church's 100% financial transparency document about all the finances for all of Great Britain.

http://apps.charitycommission.gov.uk/Accounts/Ends51/0000242451_AC_20171231_E_C.PDF

All good for Great Britain?

Do you have a link for America? For all of it?  

No.  It's not available for America.  Is there a problem?

 

[Kenngo1969]

The Church of Jesus Christ of Latter-day Saints complies with the respective financial disclosure laws in the various countries in which it has operations, including the United States.  If you think that the United States should mandate more detailed disclosure, contact your Congressman.  I'm Ken Gourdin, and I approved this message.  

[smac97]

Yesterday Gaddy's attorney filed a motion seeking permission to file a longer-than-normal response to the Church's motion to dismiss (up to 8,000 words, where the usual limit is 6,500 words).

I think the Court will grant this motion.  I also think it won't make a difference.  The law is too much on the Church's side.

Thanks,

-Smac

[Kenngo1969]

1 hour ago, smac97 said:

Yesterday Gaddy's attorney filed a motion seeking permission to file a longer-than-normal response to the Church's motion to dismiss (up to 8,000 words, where the usual limit is 6,500 words).

I think the Court will grant this motion.  I also think it won't make a difference.  The law is too much on the Church's side.

Thanks,

-Smac

Is that rhetorical, response equivalent of the old saying, "When the law's not on your side, pound the facts.  When the facts aren't on your side, pound the law.  When neither the law nor the facts are on your side, pound the table!" at work?   

Edited October 4, 2019 by Kenngo1969

[smac97]

On 10/4/2019 at 12:31 PM, Kenngo1969 said:

Is that rhetorical, response equivalent of the old saying, "When the law's not on your side, pound the facts.  When the facts aren't on your side, pound the law.  When neither the law nor the facts are on your side, pound the table!" at work?   

Either that, or else "quantity over quality."

Thanks

-Smac

Edited October 9, 2019 by smac97

[Kenngo1969]

1 hour ago, Kenngo1969 said:

Is that rhetorical, response equivalent of the old saying, "When the law's not on your side, pound the facts.  When the facts aren't on your side, pound the law.  When neither the law nor the facts are on your side, pound the table!" at work?   

 

1 hour ago, smac97 said:

Either than, or else "quantity over quality."

Thanks

-Smac

Or both!  

[Stargazer]

On 10/2/2019 at 11:37 PM, Tacenda said:

Thanks for the story, but I clicked on the highlighted reference and it didn't work. Do you have the precise link? I'd love to read and follow up on this. 

Sorry, but I guess it's behind a paywall.

The article is adapted from a talk, for which there is fortunately a YouTube video, I just discovered. I'm afraid the audio leaves a bit to be desired.

https://www.youtube.com/watch?v=vg47Ph4LjsI

You can also read the Wikipedia article for more background -- it's more complicated than Br. Parry had time to get into.  It was a horrendous event indeed.  It wasn't the Church that ordered it, but there was sentiment against the Indians among some church members and local leaders.  A lot of *** for tat, and it wasn't all one way or the other way.

I find myself greatly affected by this event because of my ancestors -- I'm slightly native american, and my ancestors' tribe got some pretty bad treatment, too, at the hands of the whites.  In my own peoples' case, it wasn't as blatantly violent, but the results were not pretty either.  My great great grandmother's two sisters were murdered by white settlers in Northern California, because they were Indian (they were actually married to white men, but this didn't seem to matter to those who took their lives).

Jews have a lot of grievances against Germans, for the Holocaust, but even many of them strive to find forgiveness and not hold those responsible who were not involved (because they weren't born then, for one thing).  Grudge-holding is almost always counterproductive and soul-destroying.

Quote

Also, is there a way to say it and not use a word like "evil" being done?   

Don't know!  Plenty of evil is being done in the world. Sometimes people do evil to their own selves, by way of emotional outburst, or sustained ill will.  I can understand that someone who has evil done to them may feel it justified to return evil upon those who did the evil.  And perhaps such evil is deserved.  But when they return evil to those who have not harmed them, they do wrong not only to those who have not harmed them, but to themselves as well.

If the word "evil" is too strong for this case, I can substitute "wrong" for it, no problem.  "Evil" may be too strong, actually, since it may hold the connotation of intentional wrongdoing.  Few people who do wrong to themselves do so by intention; it's mainly by oversight.  And they may find themselves being affected by the backsplash of what they deal out.  The only time that I ever deliberately stole something, I did it because someone first stole from me.  And the person that I stole from wasn't the one who stole from me.  I did it out of anger -- because my property was stolen, even though it was hidden from sight, and this other person left his out in plain sight and wasn't stolen.  Of course I was wrong to do so, and my only excuse was my anger.  It could have gotten me in a lot of trouble, but fortunately I escaped any serious repercussions.  The man from who I stole got his property back, because I gave it back to him.  I never got mine back.

Edited October 4, 2019 by Stargazer

[The Nehor]

On 9/27/2019 at 4:29 PM, changed said:

Anyone who is not transparent with financial information is hiding something.

So when are you posting your bank and credit card statements?

[Thinking]

1 minute ago, The Nehor said:

So when are you posting your bank and credit card statements?

If you were donating money to a cause that changed was in charge of, then it would be appropriate for changed to be transparent. If not, then transparency should not be expected.

[Calm]

1 hour ago, Thinking said:

If you were donating money to a cause that changed was in charge of, then it would be appropriate for changed to be transparent. If not, then transparency should not be expected.

 But that is not what changed said or implied given the connotation of “hidden” when linked with finances. 

Edited October 5, 2019 by Calm

[The Nehor]

10 hours ago, Thinking said:

If you were donating money to a cause that changed was in charge of, then it would be appropriate for changed to be transparent. If not, then transparency should not be expected.

Changed gave no such proviso. Just a total declaration that if you are not transparent you are hiding something.

[Thinking]

17 hours ago, Calm said:

 But that is not what changed said or implied given the connotation of “hidden” when linked with finances. 

7 hours ago, The Nehor said:

Changed gave no such proviso. Just a total declaration that if you are not transparent you are hiding something.

I disagree.

On 9/27/2019 at 3:29 PM, changed said:

I think all non-profits, including religious non-profits, should be required to be 100% transparent about all the finances.

Anyone who is not transparent with financial information is hiding something.

Compare the price and benefits to say, the YMCA, to the price and benefits of the lds Corp and... well... 

Anyone obviously refers to the non-profits in the preceding sentence. Changed can correct me if I'm wrong.

Edited October 6, 2019 by Thinking

[Calm]

Just now, Thinking said:

I disagree.

Anyone obviously refers to the preceding sentence about non-profits.

Possible reading, changed can clarify.

[Stargazer]

nvrmnd

[Stargazer]

On 10/5/2019 at 5:58 PM, The Nehor said:

Changed gave no such proviso. Just a total declaration that if you are not transparent you are hiding something.

It's perfectly reasonable to hide things, by the way.  I'm hiding my kidneys, for instance.  You really don't want to see them, trust me.

[The Nehor]

4 hours ago, Stargazer said:

It's perfectly reasonable to hide things, by the way.  I'm hiding my kidneys, for instance.  You really don't want to see them, trust me.

Someone arrest this man! He is clearly smuggling something in his kidneys. Hand me a scalpel and I will check.

[smac97]

Litigation Update:

On Friday the court in the Gaddy matter granted Gady's motion seeking permission to file a longer-than-usually-allowed memorandum in opposition to the Church's Motion to Dismiss.

The memorandum in opposition is due tomorrow (10/8).

Thanks,

-Smac

[smac97]

Yesterday the plaintiff (Gaddy) in this lawsuit filed a response to the Church's Motion to Dismiss.  The response is attached below.

Here's a brief rundown:

1. Starting with a Gaffe

The brief starts out by quoting "a prominent Columbia professor, considered the foremost scholar regarding Mormon Church founder Joseph Smith."  That scholar, the brief states, is "Richard L. Bauman."

The brief quotes Prof. "Bauman's" remark "that for the Church to remain strong it has to reconstruct its narrative," and that "[t]he dominant narrative is not true; it can't be sustained."

Notably, the brief does *not* mention Prof. "Bauman's" subsequent explanation of what he meant:

Quote

Thanks for coming to my rescue Dan.  I had begun to pick up indications of these exchanges a few days ago.  I have been using the phrase “reconstruct the narrative” in recent talks because that is exactly what the Church is doing right now.  The Joseph Smith Papers offer a reconstructed narrative, so do some of the “Gospel Topics” essays.  The short First Vision film in the Church Museum of History mentions six accounts of Joseph’s experience and draws on all of them.  That is all reconstructing the narrative.  I got the phrase from a young woman who reported that she and her husband had both been through faith crises.  She had come back; he had remained alienated.  But both of them had to reconstruct the narrative.  We have to include, for example, the fact that that the first words to Joseph in the First Vision were:  “Your sins are forgiven.”  That makes us look again at his life and realize how important a part forgiveness played.  Similarly, we now have assimilated seer stones into the translation story.  A picture of a seer stone now appears in the Church History Museum display.  That would not have happened even five years ago.  The list goes on and on.

I consider Rough Stone Rolling a reconstructed narrative.  It was shocking to some people.  They could not bear to have the old story disrupted in any way.  What I was getting at in the quoted passage is that we must be willing to modify the account according to newly authenticated facts.  If we don’t we will weaken our position.  Unfortunately, not everyone can adjust to this new material.  Many think they were deceived and the church was lying.  That is not a fair judgment in my opinion.  The whole church, from top to bottom, has had to adjust to the findings of our historians.  We are all having to reconstruct.   In my opinion, nothing in the new material overturns the basic thrust of the story.  I still believe in gold plates.  I don’t think Joseph Smith could have dictated the Book of Mormon text without inspiration.  I think he was sincere in saying he saw God.  The glimpse Joseph Smith gives us of divine interest in humankind is still a source of hope in an unbelieving world.

If anyone has questions about what I believe, I would be happy to hear from him or her.  I believe pretty much the same things I did sixty years ago when I was a missionary.

I think Prof. "Bauman" may not appreciate having his remarks misconstrued int his way.

Is Gaddy's attorney ignorant of this subsequent statement?  Or did she willfully fail to disclose it to the Court?

We report, you decide!

2. Differentiating "Beliefs" from "Facts"

The brief appears to want to differentiate "belief" from "facts."  She states that the Church's Motion erris "by characterizing the Complaint's allegations as requiring adjudication of Mormon beliefs."  It goes on to deny that the Complaint does not "challenge the truth or falsity of any belief or doctrine of the Church," and instead is "based solely upon material misrepresentations of fact."

This distinction doesn't work, and falls apart quite quickly.  The brief goes on to summarize the "statements of material fact" that the plaintiff wants the federal court to adjudicate as being "false."  This bullet list includes the First Vision (that it "features two personages").  Um, how is this a "fact" that can be differentiated from a "belief"?  How is this a "statement of material fact" that can be falsified through the presentation of competent, probative, admissible evidence?  How is this "fact" differently situated from, say, the "belief" that Jesus walked on water, raised the daughter of Jairus, or was Himself resurrected and ascended into heaven?  

The bullet list also identifies the translation of The Book of Mormon.  Again, how is this a "fact" (which ostensibly could be adjudicated by a federal court in 2019) but *not* a "belief" (which could not be adjudicated under the church autonomy / ecclesiastical abstention doctrine)?

The list also identifies Joseph Smith's translation of The Book of Abraham.

3. Micharacterization of Church's Gospel Topics Essays

The brief says that the Church "has now admitted in a series of essays that these statements are false."  This list is introduced with "These are the facts:" (presumably gleaned from the Church's essays).  It also states that the Church "has severely restricted dissemination of these essays."  No, it hasn't.  These essays have been posted online, readily and freely available to the entire world for years.

The list addresses three "facts": The First Vision, the translation of The Book of Mormon, and the translation of The Book of Abraham.  

The then presents a second list purportedly falsifying the first.  In it Gaddy states that the First Vision involved Joseph Smith "{seeking} the Lord, who forgave his sins--nothing more."  This is a fairly substantial misrepresentation of the Church's essay.  But more to the point, it's hard to imagine a federal judge characterizing this as a matter of "fact" that can be adjudicated in federal court in 2019, but not a matter of "belief" that is barred by the church autonomy / ecclesiastical abstention doctrine.

The brief also claims that The Book of Mormon "was not translated from an ancient record, but was created while Smith peered at a stone in a hat."  Again, folks, she is presenting this as a fact (which can be adjudicated), and *not* as a "belief" or "doctrine" (which cannot be adjudicated).  The brief also states that "the papyrus recovered in 1967, from which Smith was said to have translated the words of Abraham, is a common Egyptian funerary document."  

She does not mention that the Church has been acknowledging this for 50+ years.

The brief includes a footnote claiming that "there is an implied representation that Smith did in fact translate from the papyri.  However, he did not.  The facsimile figures are claimed to depict the Prophet Abraham, but {the Church} has admitted they do not."  Oi.

This section of the brief concludes with "Clearly, these are facts and not beliefs," that "{f}acts are susceptible to proof" that "{b}eliefs are not," and that "if proven, beliefs become facts."  Um, no.

4. Scientology Lawsuit Re: "Scientifically Guaranteed"

The next section of the brief states that "even in a religious context, fraudulent statements of fact {as opposed to religious belief} are not afforded First Amendment protection."  She cites In Van Schaick v. Church of Scientology of California, Inc., 535 F. Supp. 1125 (D. Mass. 1982), which was also mentioned in the Church's Motion to Dismiss.  In that case, "the plaintiff claimed that Scientologists misrepresented, among statements of religious belief and other concededly secular facts, that 'auditing' was scientifically proven to be conducive to health and well-being."  The brief argues that the court in that case found that the Scientology Church's statement about auditing was a factual one rather than a religious belief, and thus was not subject to a First Amendment religious liberty defense."

The Van Schaick case does not seem very helpful to Gaddy, for a number of reasons.  First, the court in that case was a federal district court in Massachusetts, and hence carries no weight as precedent.  The district court in Utah is on equal footing with the one in Massachusetts, and is under no obligation to follow Van Schaick.  

Also, the Van Schaick decision was an interim one, not a final decision by the Court.  It pertained to a motion to dismiss, which was granted in most respects, including, "Count V," which alleged that "that defendants fraudulently represented that auditing was scientifically guaranteed to provide an array of benefits, including a higher I.Q. for Van Schaick and her children, immunity from various illnesses, cures for various ailments and better eyesight."  The court found that the complaint's use of the phrase "scientifically guaranteed" was deisgned to "avoid" the First Amendment defense.  The court dismissed Count V, but gave the plaintiff permission to file an amended complaint to try it again.  (As this case is about 40 years old, I could not determine if the plaintiff every attempted to do this.)

Also, the Van Schaick decision allowed Count V to survive pretty much only because the phrase "scientifically guaranteed" was used in it (to describe the benefits of auditing).  She'll have a very hard time claiming that the Church has presented its doctrines as "scientifically guaranteed."  To the contrary, the Church emphatically points to faith and guidance from the Holy Spirit as the basis for one's testimony, and not on scientific guarantees.

Also, the court in Van Schaick specifically emphasized that "{w}ords are not always adequate, however, to divide precisely that which relates to the sacred and that which is purely secular."  The court goes on to quote an earlier (1971) case: "What the layman reads as straight science fiction becomes to the believer a bit of early imperfect scripture. The result of all this is that what may appear to the layman as a factual scientific representation (clearly false) is not necessarily this at all when read by one who has embraced the doctrine of the Church."  In other words, there is often not a concrete and specific delineation between "fact" and "belief."  But Gaddy *really* needs just such a concrete/specific delineation.  That Gaddy is citing Van Schaick for this proposition is a strong indicator of the weakness of her legal argument on this point.

Also, Van Schaick goes on to to hold that the RICO statute  "does not extend to claims like those plaintiff asserts" (and instead applies commercial/business injury situations).

These are just the few points I could think of off the top of my head.  I'm sure there are more.  This is the *strongest* case Gaddy could find to substantiate her position?

The brief claims that the Church's teachings "are factual, having non-religious sources of verification not reliant upon religious beliefs."  Really?  What would those "sources" be?  Are they capable of providing competent, probative, admissible evidence that the First Vision did *not* occur?  That The Book of Mormon was *not* translated from Gold Plates "by the gift and power of God?"

5. "Fraud" as to Identity of a Group

The next section of the brief cites a 1988 case, Molko v. Holy Spirit Association, Inc., for the proposition that "misrepresentation of material fact as an inducement to joint a religion is actionable fraud."  46 Cal. 3d 1092, 1119, 762 P.2d 46, 61 (1988), as modified on denial of reh'g (Dec. 1, 1988), superseded on other grounds by statute, as stated in Aguilar v. Atl. Richfield Co., 25 Cal. 4th 826, 854, 24 P.3d 493, 513 (2001), as modified (July 11, 2001).

In Molko, the allegation of "fraud" was that the Church's representatives "knowingly misrepresented the Church's identity with the intent to induce each of them to associate with and ultimately join the Church."  Not really a comparable fact pattern.  Fraud as to the identity of a group does not implicate adjudication of religious doctrines/beliefs.

6. "Fraud" as to "Undue Influence"

Next, the brief cites In re The Bible Speaks, 869 F.2d 628, 645-46 (1st Cir. 1989), or the proposition that "{a} Church could not '…use the cloak of religion' to commit fraud or undue influence."  Again, this is not a very help case for Gaddy, as it specifically notes that "[o]nly beliefs rooted in religion are protected by the Free Exercise Clause, which, by its terms, gives special protection to the exercise of religion."  (Citing Thomas v. Review Bd. of the Indiana Employment Sec. Div., 450 U.S. 707, 713, 101 S.Ct. 1425, 1429, 67 L.Ed.2d 624 (1981).)

The facts of this case are complex, but the gist of it is that a religous group used "undue influence" to specifically persuade the plaintiff to give the group millions of dollars in donations.  In contrast, the Church teaches the same doctrines/beliefs to everyone, and invites everyone to do the same things (have faith, repent, be baptized, keep the commandments, etc.).  The "fraud" in this case arose because of "undue influence" that does not exist as pertaining to The Church of Jesus Christ of Latter-day Saints.

The decision goes on to say that "purely secular statements of fact to be shielded from legal action merely because they are made by officials of a religious organization."  Good luck, Gaddy, in arguing that the Church's teachings about the First Vision and the translation of The BoM/BoA are "purely secular statements of fact."

The decision also states: "Neither our decision in this case nor the proceedings below implicates the religious tenets of TBS or the beliefs of its adherents. The findings and rulings rest solely on secular statements and actions. The facts relied upon have not been derived from an inquiry into the religious principles of TBS or the truth and sincerity of its adherents' beliefs. There has been no inquiry as to whether Stevens and the other TBS adherents were acting in accord with what they perceived to be the commands of their faith. See Thomas v. Review Bd., 450 U.S. at 716, 101 S.Ct. at 1431. Those who run TBS may freely exercise their religion, but they cannot use the cloak of religion to exert undue influence of a non-religious nature with impunity. The five million dollar gift and the half million dollar gift might have had their seeds in the religious beliefs of plaintiff but they were both nurtured and brought to fruition by misstatements and distortions of facts that had no basis either in the religious tenets of TBS or the plaintiff's religious beliefs."  Again, good luck to Gaddy in getting around this language.

7. "Fraud" as to a Medal of Honor

The brief next cites case law holding that "fraud is not protected speech."  Well, yes.  But in the case she cites, United States v. Alvarez, 567 U.S. 709, 132 S. Ct. 2537, 183 L. Ed. 2d 574 (2012), "Alvarez falsely told colleagues at a local government board meeting that he had received the Congressional Medal of Honor."  How is that factual misstatement (which has nothing to do with religious belief) even *remotely* relevant to the Church's teachings about Joseph Smith's theophany in 1820, which is *squarely* within the realm of religious belief?  

Moreover, "fraud" is a very particular type of "speech."  There are a lot of elements to it:

• (1) [t]hat a representation was made; 
• (2) concerning a presently existing material fact; 
• (3) which was false; 
• (4) which the representor either 
• --(a) knew to be false, or 
• --(b) made recklessly, knowing that he had insufficient knowledge upon which to base such representation; 
• (5) for the purpose of inducing the other party to act upon it; 
• (6) that the other party, acting reasonably and in ignorance of its falsity; 
• (7) did in fact rely upon it; 
• (8) and was thereby induced to act; 
• (9) to his injury and damage.

Prince v. Bear River Mut. Ins. Co., 2002 UT 68, ¶ 41, 56 P.3d 524 (citation and internal quotation marks omitted).

Of these, elements 3 and 4 appear to be the most problematic for Gaddy.  How does she propose to establish, even in the most preliminary sense, that the Church's teachings about the First Vision, the BoM translation, etc. are "false"?  And how does she propose to establish that the Church's leaders in 2019 are propagating the teachings of the Church while knowing that they are "false," or else propagating them "recklessly"?  (For further information about pleading fraud claims in Utah, please see this article I wrote and had published in the Utah Bar Journal in 2017: "A Primer for Pleading Fraud Claims in Utah" - https://www.utahbar.org/wp-content/uploads/2017/11/July_Aug_2017_FINAL.pdf)

The brief next cites case law for the proposition that "fraud has been denied protection under religious liberty arguments."  Again, yes.  But the case cited by Gaddy, Gonzalez v. Roman Catholic Archbishop of Manila, 280 U.S. 1, 50 S.Ct. 5, 74 L.Ed. 131 (1929) (nearly a hundred years old - Gaddy is really scraping the bottom of the barrel), the dispute was about the appointment of a chaplain, and whether the person appointed was entitled to income accrued during the vacancy.

Gaddy concedes that the Supreme Court "declined to insert itself into the tribunal’s determination of the ecclesiastical controversy" but notes that there is an exception for "fraud."  I think she'll have a hard time suggesting that this exception is intended to apply to religious beliefs about events that happened nearly 200 years ago.

There are a few more cases she cites, but this is taking too long.  Skipping ahead...

8. Trying to Avoid the Church Autonomy Doctrine

Gaddy next cites a case stating that the "Church Autonomy Doctrine" ("CAD") "operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar." Hosanna–Tabor Evangelical Lutheran Church and School v. E.E.O.C., 565 U.S. 171, 132 S.Ct. 694, 181 L.Ed.2d 650, fn. 4 (emphasis added); see also Bryce v. Episcopal Church in Diocese of Colorado, 289 F.3d 648, 654 (10th Cir. 2002).

In other words, Gaddy is arguing that CAD does not apply at this stage of the litigation.  In this I think she is wrong, and it took me about ten seconds and a single google search to sort that out:

Quote

In Hosanna-Tabor, the Court revisited what is often called the "ministerial exception," the idea that it is impermissible for the Courts to challenge a church's determination of who can act as its ministers, even when such causes of action would otherwise be permitted by federal law. 565 U.S. at 185, 132 S.Ct. at 704.
...
{T}he Hosanna-Tabor Court did not extend its determination on subject matter jurisdiction beyond the ministerial exception to the broader church autonomy doctrine. Specifically, the Supreme Court stated:

Quote

A conflict has arisen in the Courts of Appeals over whether the ministerial exception is a jurisdictional bar or a defense on the merits.... District courts have power to consider ADA claims in cases of this sort, and to decide whether the claim can proceed or is instead barred by the ministerial exception.

Hosanna-Tabor, 565 U.S. at 195 n.4, 132 S.Ct. at 709.

This distinction is important, and has been noted by several courts in other jurisdictions since Hosanna-Tabor was decided. For example, this issue was considered directly by the Supreme Court of Tennessee in Church of God in Christ, Inc. v. L. M. Haley Ministries, Inc., --- S.W.3d. ----, 2017 WL 4183065 (Tenn. 2017) (rehearing denied October 10, 2017).  Recognizing the important differences between the church autonomy doctrine and the ministerial exception, the Supreme Court of Tennessee determined Hosanna-Tabor was not applicable, and where the church autonomy doctrine applies it functions as a bar to subject matter jurisdiction. Church of God in Christ, Inc. at *7-8.
...
[T]he Supreme Court did not address the ecclesiastical abstention doctrine in Hosanna--Tabor.... The Supreme Court itself has described the ecclesiastical abstention doctrine in a manner that suggests it constitutes a subject matter jurisdictional bar, where applicable. Specifically, the Supreme Court stated that civil courts exercise "no jurisdiction" over a matter "strictly and purely ecclesiastical in its character." Watson, 80 U.S. at 733. The Supreme Court defined ecclesiastical disputes as matters concerning "theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them." Id. at 733; see also Serbian E. Orthodox Diocese for U.S. and Can. v. Milivojevich, 426 U.S. 696, 713-14, 96 S. Ct. 2372, 49 L. Ed. 2d 151 (1976) (quoting Watson, 80 U.S. at 733).

The above language is from an Oklahoma Supreme Court case: Doe v. The First Presbyterian Church of U.S.A. of Tulsa, 2017 OK 106.

In sum, the case cited by Gaddy pertains to "ministerial exception" concept (which is an affirmative defense, and which apparently is not properly raised in the early stages of litigation), and not the Church Autonomy Doctrine (which, unlike "ministerial exception," *is* an issue that can be raised in the early stages of litigation).

Wow.  If a ten-second googling up-ends an argument central to her brief, what will happen when the brief is *really* scrutinized?

9. Mischaracterizing the Church's Argument

The brief goes on to say that the Church is asking for "wholesale immunity from judicial involvement if the dispute involves church actions or if it even occurs in a religious setting."  

This is a bunch of hooey.

10. Trying to Circumvent Utah Case Law

The brief goes on to argue that the Utah Supreme Court was wrong in its decision in Franco v. Church of Jesus Christ of Latter-day Saints, 2001 Utah 25, 21 P.3d 198 (Utah 2001).  

Wow.  Burningham really steps in it here.  She doesn't really present argument, just assertions.  Moreover, she says Franco was wrongly decided in that it dismissed "breach of fiduciary duty" claims.  That claim was characterized by the Utah Supreme Court as one of several "negligence-based claims."  Fraud is a intent-based, not negligence-based, claim.

Moreover, the Utah Supreme Court characterized these claims as sounding in "clergy malpractice."  Such a claim would require the court to identify the "duty" of clergy, and the "level of expertise expected of a similar professional, i.e., a reasonably prudent bishop, priest, rabbi, minister, or other cleric in this state."  The Utah Supreme Court correctly noted that "{d}efining such a duty would necessarily require a court to express the standard of care to be followed by other reasonable clerics in the performance of their ecclesiastical counseling duties, which, by its very nature, would embroil the courts in establishing the training, skill, and standards applicable for members of the clergy in this state in a diversity of religions professing widely varying beliefs. This is as impossible as it is unconstitutional; to do so would foster an excessive government entanglement with religion in violation of the Establishment Clause."

I think Gaddy will have a very hard time persuading the federal court that Franco was wrongly decided.

-----

There's more to the brief, but I think this covers the most interesting parts of it.

Having only skimmed the brief, I am sure I have missed a number of points that probably bear attention and discussion.  However, even with only a brief skimming it looks like a fairly weak rebuttal to the Church's Motion to Dismiss.

The next step will be for the Church's attorneys to prepare and file a "Reply" to Gaddy's brief, then the court will probably schedule a hearing to receive oral argument.  The hearing will likely be in December or January.  Thereafter, the court will issue a written decision.  If the court grants the Motion to Dismiss, I think we can expect Gaddy to file an appeal to the Tenth Circuit.  If that happens, I think the Tenth Circuit will affirm the lower court's dismissal.  I think the law favors the Church's position on this issue.

On the other hand, if the federal court denies the Church's Motion to Dismiss, the Church will likely file an "interlocutory" appeal to the Tenth Circuit.

We'll see what happens.

Thanks,

-Smac

Dist.D.Utah_2-19-cv-00554_23 (1).pdf

Edited October 9, 2019 by smac97

[Calm]

Thanks again, Smac for these analyses.

[Loran]

On 8/5/2019 at 11:56 PM, Calm said:

At the bottom is the proposed class action paper. I can’t cut and paste from it and haven’t read much, but it specifies it is not about beliefs, but is focused on the Church misrepresenting its history and thus leading to members making choices they wouldn’t have if they had known the truth. 

 

In that case, it mirrors exactly a similar lawsuit  (not a class action) brought around fifty years ago be Walter Martin on the same basis: that the Church was misrepresenting its own doctrine to investigators and then doing a kind of "bait and switch," particularly with the temple.

Martin's suit was thrown out of court, as I recall.

[topcougar]

Thank you for your cogent analysis. It was "brief" relative to what you could have written about this 35 page brief by Burningham.  I also read the brief and did not want to undertake a summary as you did.  You made some really good points.  I agree with all of them. It also seems interesting to me  and ill considered that she began her brief with a quote by Professor Bauman.   She is arguing that the leaders of the Church intentionally  mispresented facts of the restoration.  Professor Bauman's is not a leader of the Church. His opinion is not an admission by the church; it is not admissible evidence of fraud by the Church; and it is not persuasive legal authority on any of the theories she has alleged.  His opinion cannot help her case - but once it becomes known that she has taken it out of context, it will diminish her credibility with the Court. Bauman's out of context quote may be useful for non legal reasons to persuade hearts and minds, but it does not help from a legal standpoint. 

From your summary I also see that she has cited cases that are easily distinguishable  which will also undercut her case. Finally, her argument that a legal authority should be disregarded because it was "wrongly decided"  is always viewed as a desperate argument  - almost a concession that you have nothing better.  The chances of a Federal Court agreeing that a State Supreme Court case was wrongly decided - in effect nullifying  a state precedent -  are minimal because it is the policy of the Federal Courts to respect state law that is not superseded by conflicting Federal law - which Kay didn't even suggest. 

Based on  her brief, I think the Church's motion to dismiss has a good chance of be granted at least in part.   The Court  will either gut this  case or throw it out entirely.  Let's hope for the latter so the church can use sacred funds  to build rather than defend the kingdom. 

[smac97]

Quick Litigation Update:

The Church has requested additional time and additional length for the reply brief.  The reply brief is now due November 5.

Thanks,

-Smac

[smac97]

Quick Update:

Yesterday the Church's attorneys filed a "Reply" to the plaintiff's opposition to the Motion to Dismiss.  It is attached.  Here is the outline of the Reply:

I. THE FIRST AMENDMENT REQUIRES DISMISSAL OF EVERY ONE OF MS. GADDY’S CLAIMS
--A. The First Amendment prohibits judicial review of religious claims, whether characterized as “facts” or “beliefs.”
--B. The Cases Cited by Ms. Gaddy Do Not Support Her Arguments
--C. Ms. Gaddy’s Arguments Regarding Adjudication of Sincerity of Belief and Regulation of Actions Fail
II. UTAH LAW PROHIBITS MS. GADDY’S FIDUCIARY DUTY CLAIMS
III. MS. GADDY’S RICO CLAIM FAILS

The Reply's opening salvo is pretty good:

Quote

Ms. Gaddy alleges that her former faith was fraudulently induced by the Church’s claims about Joseph Smith’s visions and translations of ancient scriptural records. She would not have believed that Joseph was a prophet who received divine revelations, she says, if the Church had not lied to her about Joseph Smith having a vision of God and Jesus Christ, and had it not told her that Joseph translated the Book of Mormon and the Book of Abraham from ancient records. Opp. at 7-8. Explicit in her argument is the assertion the Constitution allows this Court to decide whether these religious claims are true, or whether Joseph Smith and the Church he founded are a fraud. Nothing less than that is at stake.

Both the Free Exercise Clause and the Establishment Clause prohibit Ms. Gaddy’s claims. The Free Exercise Clause absolutely, without any qualification, protects a church’s right to teach and proclaim its doctrine, no matter how non-believers may regard those teachings or measure them against prevailing secular or scientific standards. The Establishment Clause prohibits courts from becoming entangled in religious affairs—and exercising control over religion—by declaring some religious teachings false and others true. It separates church from state in the realm of religious doctrine.

Ms. Gaddy makes a futile effort to avoid the First Amendment by claiming that she is only asking the Court to adjudicate questions of “fact,” not ones of “belief.” And—as she defines those terms—the Church’s religious teachings about which she complains are issues of “fact” not “belief.” But the line the First Amendment draws is not between belief and fact, it is between religious and nonreligious. Religious claims, even if deemed false by some secular standard, are absolutely protected by the First Amendment. “Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs.” United States v. Ballard, 322 U.S. 78, 86 (1944). Regardless of the label Ms. Gaddy applies to the Church’s teachings, they are inherently religious. The First Amendment does not allow the government—including the judiciary—to declare that any religious doctrine is true or false. Instead, the law properly leaves that determination to individual citizens.

Unsurprisingly, Ms. Gaddy cannot point to any court in the country that has adopted her “fact” versus “belief” construct. The construct itself makes no sense because a great many religious beliefs are about historical facts. Examples include: Jesus Christ’s resurrection, Mohammed’s ascension to heaven, Moses’ parting of the Red Sea, Noah’s construction of the ark, and many, many more. Individuals and religious organizations have a great many religious beliefs about these religious facts. To say that a court may adjudicate their truth or falsity because they are questions of fact would strip all meaning from the First Amendment’s protection of religious liberty. Indeed, the United States Supreme Court has consistently held that “[t]he free exercise of religion means, first and foremost, the right to believe and profess whatever religious doctrine one desires.” Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 877 (1990). Ms. Gaddy’s lawsuit directly attacks that fundamental right and therefore must be dismissed—with prejudice.

Yep.  The "fact v. believe" thing is a very weak legal argument.  The Reply pretty much decimates it:

Quote

“Beliefs” versus “facts” is a false dichotomy. Individuals have “beliefs” about “facts”—including religious ones. Black’s Law Dictionary defines “belief” as “[a] state of mind that regards the existence or truth of something as likely or relatively certain; conviction about the truth of something.” Black’s Law Dictionary, 189 (11th ed. 2019). Thus, a religious belief is a “conviction about the truth” of something religious in nature. Indeed, many religious beliefs relate to historical fact. The following two questions, for example, are religious beliefs about historical facts:

• Was Jesus Christ resurrected three days after being crucified?
• Did Moses part the Red Sea?

Both questions relate to the historicity of religious claims. And both are theoretically “susceptible to proof.” As to Jesus Christ’s resurrection, believers would point to written accounts of witnesses testifying to have seen him after his crucifixion. Indeed, some attest that they spoke with him and felt the wounds in his hands, feet, and side. In contrast, non-believers would point to the testimonies of Roman soldiers that Jesus Christ’s body was stolen from his tomb by his disciples. And non-believers could no doubt marshal expert medical testimony that the human body is incapable of resurrection, especially after the passage of three days.

The biblical account of Moses parting the Red Sea is equally a question of historical “fact” that is “susceptible to proof.” Archaeological experts could provide testimony on the evidence (or lack thereof) of a mass exodus from Egypt in ancient times. They could similarly offer evidence (or lack thereof) about whether an Egyptian army was drowned in the Red Sea. Egyptologists could provide evidence on whether ancient Egyptian texts support the account of enslavement of the Hebrew people and Moses leading them to freedom through the Red Sea. And hydrologists could testify that a body of water like the Red Sea could not have been “parted” as described in the book of Exodus.

Ms. Gaddy’s Complaint envisions a similar trial regarding some of the Church’s religious teachings. The canonical account of Joseph Smith’s First Vision would be defended by the Church. The Church would point to Joseph Smith’s expansive 1838 account where he described a vision of two “personages”—God and Jesus Christ. Ms. Gaddy would seek to discredit that account with another that references only the Lord. Similarly, the Church would defend its teaching that Joseph Smith translated the Book of Mormon—“by the gift and power of God.” Ms. Gaddy would disagree that the process was a “translation.” Finally, the Church would maintain that the Book of Abraham is a divinely inspired translation of the teachings of the biblical prophet Abraham. Ms. Gaddy would dispute that assertion.

Under Ms. Gaddy’s theory, each of these questions are ones of “fact” (not “belief”) and are therefore capable of adjudication. In theory, a jury could weigh the written testimonies of early Christians against those of the Roman soldiers. It could also weigh those witnesses against the testimony of medical experts. And the jury could ultimately reach a conclusion about whether Jesus Christ was resurrected, or about which of the different accounts of the resurrection in the four Gospels is accurate. In the course of doing so, the jury might have to decide which of scriptural account of Paul’s vision of the resurrected Jesus is accurate. Similarly, a jury could decide whether Moses parted the Red Sea by weighing the testimony of archaeologists, Egyptologists, and hydrologists. And a jury could decide whether Joseph Smith saw God and Jesus Christ or only the Lord. But a jury verdict that Jesus Christ was (or was not) resurrected or that Moses did (or did not) part the Red Sea or that Joseph Smith did (or did not) see God and Jesus Christ would be meaningless. The idea that those fundamental theological questions—which have been debated by millions of people for hundreds, or in some instances, thousands of years—can be “proven” (or “disproven”) in court and settled by a judge and jury is absurd.

Regardless, the distinction Ms. Gaddy attempts to draw between “facts” and “beliefs” is false. The resurrection of Jesus Christ is a deeply-held religious belief for Christians. Similarly, many orthodox Jews, Christians, and Muslims believe in the historicity of Moses parting the Red Sea. And members of the Church believe that God and Jesus Christ appeared to Joseph Smith and that he translated the Book of Mormon and the Book of Abraham by the gift and power of God. Clearly, “beliefs” and “facts” are not mutually exclusive concepts, as Ms. Gaddy maintains.

Quite so.  

Note that the Church's attorneys are not denying that the Church's claims are "factual," but that they are "religious beliefs relat{ing} to historical fact" and are not appropriately adjudicated "by a judge and jury."

I'd go on, but I can't really improve upon the Reply itself, so I'd just end up quoting most of it.  I encourage interested parties to read it (and the plaintiff's brief, which is attached to this post).

I've previously been pretty hard on the plaintiff's attorney.  Having reviewed all of the materials in this case (the Complaint, the Church's Motion to Dismiss, the plaintiff's opposing Memorandum, and the Church's Reply), I find myself only further persuaded that the attorney should be ashamed of herself.  She is wasting the Court's valuable time by having filed this dreck.  I would even go so far as to question her ethics if she charged her client a single penny for it.

The Church's Motion to Dismiss is going to be granted.  I would be very, very surprised if otherwise.

Thanks,

-Smac

Dist.D.Utah_2-19-cv-00554_26.pdf