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

[Damien the Leper]

8 hours ago, The Nehor said:

I am a sadist and I refuse to hurt you.  

Come on! I'm not even well liked around here. Surely I can get a punch!?!

[topcougar]

On 8/7/2019 at 6:01 PM, Calm said:

How does that make her cause well documented?  If they were a poorly documented book and website, just because they exist doesn't mean her case is well documented.

Given what I read in her papers and the amount of times I saw "upon information and belief" instead of actual references, I have my doubts about quality of documentation for her cause.

Or do you mean there is a lot of public information on her cause available?  As in "well known"?

I meant to express that it is well known that Burningham and Park  have an agenda or axe to grind. 

 

[topcougar]

On 8/8/2019 at 2:52 PM, smac97 said:

It took about 30 minutes.  I just skimmed through the complaint and made observations about the most obviously problematic parts of it.

Litigators can do this sort of stuff all day long.  It can be tedious, but not "exhausting."

Thanks,

-Smac

I think the lawyers hired to respond will spend much longer than your half hour.  This may be a gift to Kirton McConkie et. al.    or Stoel Rives LLP, but it is a waste a church funds that could ( and would ) be spent in much better ways.  Since this lawsuit is not going anywhere, I see it as a very selfish act by people seeking to feed their own drama. 

[smac97]

7 minutes ago, topcougar said:

I think the lawyers hired to respond will spend much longer than your half hour. 

I think you are correct.

7 minutes ago, topcougar said:

This may be a gift to Kirton McConkie et. al.    or Stoel Rives LLP, but it is a waste a church funds that could ( and would ) be spent in much better ways.  Since this lawsuit is not going anywhere, I see it as a very selfish act by people seeking to feed their own drama. 

Yes.  I never thought I would actually see a case that makes McKenna Denson's lawsuit reasonable by comparison.

Thanks,

-Smac

[Calm]

28 minutes ago, topcougar said:

I meant to express that it is well known that Burningham and Park  have an agenda or axe to grind. 

 

Thanks for the clarification. 

[Meadowchik]

The way I see this maybe having legal validity is in cases like my husband's. In 1990, he was taught by the missionaries in France. Of course, the reputation of Mormons in France, if any, was one as polygamists. So he asked the missionaries about it, and they told him polygamy started with Brigham Young as president of the church, and not with Joseph Smith. This would then not be a belief question, but a character question. To my husband, the fact that the founder Joseph Smith did not instigate polygamy, but that it originated with Brigham Young and was later disvowed by the church was essential to his conversion. For him, it spoke to the character of Joseph Smith as law-abiding versus non-law-abiding.

So, what if it can be demonstrated that, during correllation, for example, church manuals and distribution materials were significantly cleared of most if not all clear references to Smith's polygamy? This might demonstrate an deliberate attempt at hiding these facts, and thus behaving in a fraudulant manner.

[Calm]

3 hours ago, letsbreal said:

Interesting article about the case found here:

https://mormonfraud.blogspot.com/2019/08/the-gaddy-lawsuit-against-mormonchurch.html

Quote

Corporate shills, PsyOps operatives representing the interests of the "Deep State", and otherwise motivated contributors to social media discussion boards are engaging in the predictable exercise of creating a false and contrived appearance of consensus that the lawsuit has no merit. The well informed know better.

[Calm]

3 minutes ago, Meadowchik said:

The way I see this maybe having legal validity is in cases like my husband's. In 1990, he was taught by the missionaries in France. Of course, the reputation of Mormons in France, if any, was one as polygamists. So he asked the missionaries about it, and they told him polygamy started with Brigham Young as president of the church, and not with Joseph Smith. This would then not be a belief question, but a character question. To my husband, the fact that the founder Joseph Smith did not instigate polygamy, but that it originated with Brigham Young and was later disvowed by the church was essential to his conversion. For him, it spoke to the character of Joseph Smith as law-abiding versus non-law-abiding.

So, what if it can be demonstrated that, during correllation, for example, church manuals and distribution materials were significantly cleared of most if not all clear references to Smith's polygamy? This might demonstrate an deliberate attempt at hiding these facts, and thus behaving in a fraudulant manner.

Reading Sec 132 without assumptions at the very least suggests Joseph was participating.  Plus in the Church History Institute manuals being used since the 70s at least and possibly before, Joseph participating is mentioned along with one or two names of his wives minimum.  Now those manuals could have and imo should have said more, but I don't think it can be claimed the subject matter was cleared.

[Meadowchik]

3 minutes ago, Calm said:

Reading Sec 132 without assumptions at the very least suggests Joseph was participating.  Plus in the Church History Institute manuals being used since the 70s at least and possibly before, Joseph participating is mentioned along with one or two names of his wives minimum.  Now those manuals could have and imo should have said more, but I don't think it can be claimed the subject matter was cleared.

"Significantly cleared." How much of the prevailing narrative changed? I'm asking rhetorically. To be fair, that would require some pretty heavy research, and in my husband's case, research of French-language distribution materials.

[Calm]

3 minutes ago, Meadowchik said:

"Significantly cleared." How much of the prevailing narrative changed? I'm asking rhetorically. To be fair, that would require some pretty heavy research, and in my husband's case, research of French-language distribution materials.

I don't know the Law in other countries, but I find it highly unlikely that given it was taught in one of the more popular (from what I saw) religion classes in the Church's universities for the past 50 years as well as being offered for personal study through the church catalogue/distribution center and often ward libraries to all English speakers (not sure about nonEnglish speaking members, but would assume most Institute manuals were translated into the more popular languages) plus the subject gets all tangled up with other religious aspects...and it even could be argued polygamy is downplayed because of past persecutions by the US government, I just don't see a lawsuit based on fraud about Joseph's polygamy having legal legs.

[Calm]

Quote

1 Verily, thus saith the Lord unto you my servant Joseph, that inasmuch as you have inquired of my hand to know and understand wherein I, the Lord, justified my servants Abraham, Isaac, and Jacob, as also Moses, David and Solomon, my servants, as touching the principle and doctrine of their having many wives and concubines

2 Behold, and lo, I am the Lord thy God, and will answer thee as touching this matter.

3 Therefore, prepare thy heart to receive and obey the instructions which I am about to give unto you; for all those who have this law revealed unto them must obey the same.

4 For behold, I reveal unto you a new and an everlasting acovenant; and if ye abide not that covenant, then are ye damned; for no one can reject this covenant and be permitted to enter into my glory...

52 And let mine handmaid, Emma Smith, receive all those that have been given unto my servant Joseph, and who are virtuous and pure before me; and those who are not pure, and have said they were pure, shall be destroyed, saith the Lord God.

53 For I am the Lord thy God, and ye shall obey my voice; and I give unto my servant Joseph that he shall be made ruler over many things; for he hath been faithful over a few things, and from henceforth I will strengthen him.

54 And I command mine handmaid, Emma Smith, to abide and cleave unto my servant Joseph, and to none else. But if she will not abide this commandment she shall be destroyed, saith the Lord; for I am the Lord thy God, and will destroy her if she abide not in my law.

55 But if she will not abide this commandment, then shall my servant Joseph do all things for her, even as he hath said; and I will bless him and multiply him and give unto him an hundred-fold in this world, of fathers and mothers, brothers and sisters, houses and lands, wives and children, and crowns of eternal lives in the eternal worlds.

These verses at least suggest one should consider if Joseph was a polygamist.  I think with even just these verses one would have to prove official teachings actually denied his participation, not just mostly ignored it given leadership encouraged members to study the scriptures and the D&C is likely in the homes of the majority of Saints.

Add to that teachings in the Institute manuals and that there is no attempt to present missionaries as professionally trained, I don't see how a case on fraud could be built.

(not justifying the minimal teaching in terms of how Joseph's life and the lives of his wives should have been taught as I believe their devotion to the gospel and restoration should be highly honored, just saying I don't think it comes close to meeting any legal standard of misbehaviour.

Edited August 24, 2019 by Calm

[Anijen]

On 8/24/2019 at 1:43 PM, Meadowchik said:

To my husband, the fact that the founder Joseph Smith did not instigate polygamy, but that it originated with Brigham Young and was later disvowed by the church was essential to his conversion. For him, it spoke to the character of Joseph Smith as law-abiding versus non-law-abiding.

Polygamy, although was against moral standards during Joseph's time, was not made illegal until 1862 with the Morrill Act. So, Joseph was a law abiding citizen.

 

Quote

what if it can be demonstrated that, during correllation, for example, church manuals and distribution materials were significantly cleared of most if not all clear references to Smith's polygamy? This might demonstrate an deliberate attempt at hiding these facts, and thus behaving in a fraudulant manner.

This is a common critique of the Church, that the Church hides its history. I do not know of a single member or non-member with a high school education that did not know "mormons" practiced polygamy. It is very common knowledge. It has been given fault of Brigham Young (not Joseph) mainly because that is when polygamy was openly practiced. however, most members I know also know that polygamy started before Brigham Young.

Back to the often used critique that the Church hides its history. This is simply not true. I have been in many classrooms were polygamy has been brought up, even a few when I attended young mens. I learned of polygamy, mountain meadows, etc., in church before I learned it from any anti-mormon or their literature. 

In conclusion, the Church is a church, not a library of history. The Church will teach us how to get closer to the Savior rather than give us a lecture on how to defend polygamy. It is not their goal to be our historians, it is their goal to bring us closer to Christ.

[Meadowchik]

On 8/26/2019 at 10:30 PM, Anijen said:

Polygamy, although was against moral standards during Joseph's time, was not made illegal until 1862 with the Morrill Act. So, Joseph was a law abiding citizen.

 

This is a common critique of the Church, that the Church hides its history. I do not know of a single member or non-member with a high school education that did not know "mormons" practiced polygamy. It is very common knowledge. It has been given fault of Brigham Young (not Joseph) mainly because that is when polygamy was openly practiced. however, most members I know also know that polygamy started before Brigham Young.

Back to the often used critique that the Church hides its history. This is simply not true. I have been in many classrooms were polygamy has been brought up, even a few when I attended young mens. I learned of polygamy, mountain meadows, etc., in church before I learned it from any anti-mormon or their literature. 

In conclusion, the Church is a church, not a library of history. The Church will teach us how to get closer to the Savior rather than give us a lecture on how to defend polygamy. It is not their goal to be our historians, it is their goal to bring us closer to Christ.

Polygamy was illegal in Illinois code in 1833 with the Illinois Anti-Bigamy Law. Joseph Smith broke that state's laws with his plural marriages in Illinois.

As I have said earlier in the thread, my husband asked the missionaries specifically if polygamy started with Joseph Smith. They said that, no, it did not. The official representatives of the church to him misinformed him of a very simple and controversial fact about the church's history. 

[Duncan]

This showed up

https://www.courthousenews.com/court-has-no-role-in-womans-beef-with-religion-mormon-church-says/

I wonder when the Judge will make a ruling

[Stargazer]

6 minutes ago, Meadowchik said:

Polygamy was illegal in Illinois code in 1833 with the Illinois Anti-Bigamy Law. Joseph Smith broke that state's laws with his plural marriages in Illinois.

Yeah, this is going to sound like somewhat pedantic, but bigamy is a crime in which a man marries a second woman according to law while a previous marriage remains legally binding.  If I am legally married to woman A, and then also live with woman B without benefit of marriage, then it cannot by definition be bigamy.  And since the issuance of a marriage license requires that one certify one is not currently legally married, one would not seek to get such a license or have a legal justice of the peace or licensed minister perform such a wedding.  Hence one would be married to one woman, not two.  I've tried to research the legislative history of current Illinois law in order to come up with the original language of the 1833 statute, but it's a bit of a slog.  It might have been that the original statute had language that covered the matter of cohabitation without benefit of marriage. But I doubt it, since the law pre-dated the arrival of the Saints in Illinois and they had no reason to include such a detail -- which might have been covered by anti-adultery statutes in any case.

Up until 1862 when the Morrill Anti-Polygamy Act was passed, polygamy was perfectly legal in the Utah territory.  Interestingly, President Lincoln actually forbade the federal authorities in Utah to enforce the law!  It was apparently a tacit agreement with President Young that the law wouldn't be enforced as long as the Mormons didn't join the Civil War on the side of the Confederacy.

I do wonder if the objection to polygamy with connection with the law of the land fails if the law of the land doesn't forbid it?  If it's legal, it's OK?

6 minutes ago, Meadowchik said:

As I have said earlier in the thread, my husband asked the missionaries specifically if polygamy started with Joseph Smith. They said that, no, it did not. The official representatives of the church to him misinformed him of a very simple and controversial fact about the church's history. 

The "official representatives of the church" in question might not have known about Joseph's involvement, hence the deception might have been simple ignorance.  When I joined the Church in 1966 I was aware of polygamy, but not specifically Joseph's involvement in it.  This lack of awareness on my part was still in place when I served my mission, but I didn't have any opportunity to ignorantly misinform anyone because the question never came up. By the time it came to my awareness that he must have been involved, it didn't seem to be any kind of problem.

I still cannot muster much if any objection to the concept, since it has always been clear to me that God didn't have any objection to it, and it was only our cultural prejudices which cast polygamy into doubtful light (or worse).  Even such luminaries as Martin Luther didn't object to it in principle.

[Stargazer]

39 minutes ago, Duncan said:

This showed up

https://www.courthousenews.com/court-has-no-role-in-womans-beef-with-religion-mormon-church-says/

I wonder when the Judge will make a ruling

Interesting article, which includes these tidbits:

"Mormons migrated to Ohio in 1831 due to persecution for their beliefs, which included polygamy, and Smith was killed by an angry mob while jailed in Missouri in 1844."

The migration to Ohio had nothing to do with polygamy, which hadn't yet been revealed, and nothing to do with persecution, as the migration to there occurred because there were a large number of new converts there.  Smith died in Illinois, not Missouri.

Some people just can't do basic research.

[Meadowchik]

26 minutes ago, Stargazer said:

Yeah, this is going to sound like somewhat pedantic, but bigamy is a crime in which a man marries a second woman according to law while a previous marriage remains legally binding.  If I am legally married to woman A, and then also live with woman B without benefit of marriage, then it cannot by definition be bigamy.  And since the issuance of a marriage license requires that one certify one is not currently legally married, one would not seek to get such a license or have a legal justice of the peace or licensed minister perform such a wedding.  Hence one would be married to one woman, not two.  I've tried to research the legislative history of current Illinois law in order to come up with the original language of the 1833 statute, but it's a bit of a slog.  It might have been that the original statute had language that covered the matter of cohabitation without benefit of marriage. But I doubt it, since the law pre-dated the arrival of the Saints in Illinois and they had no reason to include such a detail -- which might have been covered by anti-adultery statutes in any case.

Up until 1862 when the Morrill Anti-Polygamy Act was passed, polygamy was perfectly legal in the Utah territory.  Interestingly, President Lincoln actually forbade the federal authorities in Utah to enforce the law!  It was apparently a tacit agreement with President Young that the law wouldn't be enforced as long as the Mormons didn't join the Civil War on the side of the Confederacy.

I do wonder if the objection to polygamy with connection with the law of the land fails if the law of the land doesn't forbid it?  If it's legal, it's OK?

The "official representatives of the church" in question might not have known about Joseph's involvement, hence the deception might have been simple ignorance.  When I joined the Church in 1966 I was aware of polygamy, but not specifically Joseph's involvement in it.  This lack of awareness on my part was still in place when I served my mission, but I didn't have any opportunity to ignorantly misinform anyone because the question never came up. By the time it came to my awareness that he must have been involved, it didn't seem to be any kind of problem.

I still cannot muster much if any objection to the concept, since it has always been clear to me that God didn't have any objection to it, and it was only our cultural prejudices which cast polygamy into doubtful light (or worse).  Even such luminaries as Martin Luther didn't object to it in principle.

I do not reject polygamy in general in principle, but I do reject coercion, including spiritual coercion. That is the sticking point for me, and it is a direct result of the "hammer of spiritual authority" which you and I have been discussing in the thread about imperfect leaders. A value of the individual results in the value of the individual's ability to consent to relationships like marriage.

And it is extremely troubling that there were LDS apostles fully engaging in plural marriage who, while on their missions in Europe, told worried investigators that the church was not practicing polygamy back in the states. People were assured, and then followed them to the states, only to find out the "anti-Mormon lies" were true, and that they were expected to accept the practice of Mormon polygamy as part of the faith community.

[Kenngo1969]

On 8/13/2019 at 11:34 AM, smac97 said:

I think you are correct.

Yes.  I never thought I would actually see a case that makes McKenna Denson's lawsuit reasonable by comparison.

Thanks,

-Smac

   

[sheilauk]

On 8/24/2019 at 8:06 PM, Calm said:

I don't know the Law in other countries, but I find it highly unlikely that given it was taught in one of the more popular (from what I saw) religion classes in the Church's universities for the past 50 years as well as being offered for personal study through the church catalogue/distribution center and often ward libraries to all English speakers (not sure about nonEnglish speaking members, but would assume most Institute manuals were translated into the more popular languages) plus the subject gets all tangled up with other religious aspects...and it even could be argued polygamy is downplayed because of past persecutions by the US government, I just don't see a lawsuit based on fraud about Joseph's polygamy having legal legs.

Well we know it would have no legs in the UK since someone already tried and got very short shrift and a lot of costs.  I don't see it succeeding in the US either and not because of some batty conspiracy theories. 

[Kenngo1969]

2 hours ago, sheilauk said:

Well we know it would have no legs in the UK since someone already tried and got very short shrift and a lot of costs.  I don't see it succeeding in the US either and not because of some batty conspiracy theories. 

Always nice to Cyber-see my sister from across the pond!  Hope all is well with you and yours!

[smac97]

On 8/29/2019 at 5:33 AM, Duncan said:

This showed up

https://www.courthousenews.com/court-has-no-role-in-womans-beef-with-religion-mormon-church-says/

I wonder when the Judge will make a ruling

I read through the Motion to Dismiss filed by the Church's attorneys (available here).  A few thoughts:

1. The Motion to Dismiss covers a lot of the issues I noted in my preliminary assessment on August 5 (see here).  That's not to say that I was particularly prescient about the basis for the Church's position.  Frankly, any attorney with just a few years of experience could've easily seen the substantial and obvious flaws in the Complaint.  Shoot, many people with no training in the law at all could probably detect something seriously "off" about it.

2. The main arguments for dismissal advanced by the Church's attorneys are:

• All of the issues presented in the Complaint are questions of religious faith.  These questions simply cannot be adjudicated in a secular courtroom.  In my preliminary assessment I referenced this concept as the "ecclesiastical abstention doctrine."  The attorneys here reference that phrase in footnote 2, but elsewhere refer to it as "church autonomy" doctrine (footnotes 2 and 3, pp. 12, 15,17, 20, 23).  I think these two terms ("ecclesiastical abstention" and "church autonomy" are essentially interchangeable.  This legal doctrine arises from the First Amendment's protections of Free Exercise of religious belief.
   
• The plaintiff's fraud-based claims are not testable in court.  A necessary component of fraud is that the purported statements (in this case, the Church's teachings about Joseph Smith's theophanies, the means of the translation of the Book of Mormon, and the authenticity the Book of Abraham) be factually "false."  However, these "statements" are plainly and exclusively within the parameters of religious doctrine, and as such are beyond the jurisdiction of U.S. courts.  That is, it would be unconstitutional for a federal (or state) court to render an opinion about the verity of these statements.  As the attorneys put it: "Fraud claims based on religious facts are outside a civil court’s jurisdiction—they are simply barred."  Yep.  The attorneys recite a number of prior cases that specifically and unequivocally reject the plaintiff's fraud theory.  It is embarrassing that the plaintiff's attorney filed the Complaint while knowing of such prior case law, so much so that it may very well be a frivolous filing (though I suspect the Court will not go that far in its assessment).
   
• The attorneys note that the plaintiff attempts to say that the Church and its leaders owe a "fiduciary duty" to its members, and that they breached this duty to "exercis{ing} 'influence' over her by some type of 'mind control.'"  First, it is embarrassing that the plaintiff's attorney actually presented a federal judge with a complaint alleging "mind control" (that phrase is actually used in the Complaint).  I am embarrassed for her.  It shows a rather strong lack of judgment on her part.  Her reputation will take a hit for presenting such a stupid claim to a federal judge.  Second, the "breach of fiduciary duty" claims are barred for the same reason as described above.  The only way for the federal court to adjudicate these claims would be for it to make factual and legal findings as to the truth and legitimacy of the Church's religious teachings.  The courts, both state and federal, are constitutionally barred from making or allowing such inquiries.  Third, that these claims are constitutionally barred is painfully obvious.  It is simply embarrassing that an attorney with 34 years of experience chose to present them to a federal judge.  She will now become a punchline.  A cautionary tale about how not to behave as an attorney.  There may even be an ethical question about the propriety of an attorney charging a client for filing a lawsuit like this.
   
• The attorneys also critique the plaintiff's claim for "intentional infliction of emotional distress," and note that it is simply a variation of her fraud-based and fiduciary-duty-based claims.  The attorneys present a solid list of prior cases that definitively reject such a claim as alleged against religious group's teachings and claims.  Yet again, the attorney who filed this should be embarrassed.
   
• The attorneys also review the plaintiff's RICO-based claims.  Again, they really ream these claims, and do so with citation to prior case law about which the plaintiff's attorney must have known.

3. The Motion to Dismiss is succinct, and yet quite well-drafted, and even eloquent in some places.  Some excerpts:

Quote

For example, the Court would be required to answer the following questions:

• Did God and Jesus Christ appear to Joseph Smith, the Church’s founder, in 1820?
• Is the Book of Mormon the word of God?
• Are other books of the Church’s canonical scripture true?

None of these questions belongs in a courtroom. The law does not call on judges or juries to determine the truth or falsity of any religion. It is not the province of judges or juries to determine whether Moses parted the Red Sea, whether Noah predicted and survived the flood, whether Mohammed ascended to heaven, whether Buddha achieved a state of enlightenment, whether Jesus walked on water, or whether Joseph Smith saw God and Jesus Christ. Each of these issues lies outside the purview of our legal system. Any pronouncement by a judge or a jury that God does—or does not—exist would be meaningless. The same is true for the various ways people have experienced God and used words to describe such experiences. Any trial seeking to adjudicate such religious issues makes a mockery of both the court and religion.

And here:

Quote

In short, the First Amendment prohibits the state—including the judiciary—from wading into disputes rooted in religious doctrine. The government may not declare one religion true and another false. The questions presented by Ms. Gaddy’s Complaint are quintessentially ones of faith and doctrine. According to her Complaint, Ms. Gaddy has lost her faith in the Church’s teachings. The First Amendment protects her right to believe—or disbelieve—whatever she chooses.  The First Amendment also affords the Church and its members the same privilege.  A cause of action does not arise whenever an individual converts from one religion to another, much less when an individual loses her religious faith. It is for these reasons that Ms. Gaddy’s lawsuit fails and should be dismissed with prejudice.

The Motion to Dismiss also provides a synopsis (an accurate one) of the Church's teachings which are challenged in the Complaint.  It feels a little weird to read such things in a legal filing.  I read dozens and dozens of these sorts of documents every week/month, but they are overwhelmingly about matters of law.  Contract law.  Statutory law.  Tort law.  And these filings are generally quite clinical and detached, even dry.  Judges are generally not interested in drama or high emotion.  These are busy folks, each responsible for hundreds of lawsuits pending at any given time.  So to read filings in a federal lawsuit that describe Joseph Smith's theophanies, his translation of the Gold Plates, etc. is . . . odd.  It's just out of place.  The Church's attorneys did so only to "set the table," so to speak.  To establish that the plaintiff's claims are entirely rooted in matters of religious faith and expression.  They did a good job of doing so without becoming combative or emotional.  This is in stark contrast to the overlong and emotion-laden and full-of-histrionics Complaint.  I just can't wrap my head around the fact that a seasoned and experienced attorney actually put her name to the Complaint and filed it in federal court.

4. On occasion, however, I'll get some weird filing from a pro se litigant (a person representing himself in court) that meanders into speculative territory.  Or maudlin claims.  Or wholly irrelevant tangents.  Or outright absurdities.  I once had a fellow file a lawsuit claiming that he should be excused from repaying his home loan because the loan was not backed by gold bullion at Fort Knox.  Another fellow tried to argue that he should be allowed to put real property (which was jointly owned with a number of other parties) into a trust to hold for him in perpetuity because he planned to have his head decapitated at death and cryogenically frozen, in anticipation of it later being re-attached and him being re-animated at some point in the future (and, therefore, he needed to be able to hold on to the real estate for dozens or hundreds of years, despite what the other owners may want to do with it).

Fortunately, the weirdo/diatribe lawsuits are few and far between.  Litigation is an expensive and stressful and time-consuming process.  The situation becomes worse when someone tries to inject absurdities and stupidities into the legal system.  Doing so is an abuse and misuse of the legal system.  It wastes the Court's already limited time and resources.  It forces the defendants to waste time and money (sometimes substantial amounts of both) in fighting claims that have no chance of winning.  It is for this reason that there are standing rules that prohibit attorneys from filing frivolous lawsuits.  It seems like the plaintiff's attorney broke those rules.

The weirdo lawsuits are rare because litigation is expensive and complex and difficult.  Also, lawsuits are filed in public.  They are matters of public record, such that few pro se litigants are willing to do a Don Quixote impersonation by filing an asinine lawsuit that has zero chance of success.  And yet here we do not have a pro se litigant.  The Complaint was filed by an attorney who has been licensed and practicing for thirty four years.  What a debacle.  What a farce.  What a stupid thing to do, professionally speaking.

5. I previously predicted: "I think the Church's attorneys will not spend much (if any) time on the Complaint's structural defects (failure to properly plead fraud-based allegations), and will instead file a Motion to Dismiss based on the Ecclesiastical Abstention Doctrine.  And I think such a motion will be granted."  Having read the Motion to Dismiss, I am still of this opinion.  However, I look forward to reading the plaintiff's memorandum in opposition, which will likely be due in a few weeks.

Thanks,

-Smac

Edited August 30, 2019 by smac97

[Duncan]

11 minutes ago, smac97 said:

I read through the Motion to Dismiss filed by the Church's attorneys (available here).  A few thoughts:

1. The Motion to Dismiss covers a lot of the issues I noted in my preliminary assessment on August 5 (see here).  That's not to say that I was particularly prescient about the basis for the Church's position.  Frankly, any attorney with just a few years of experience could've easily seen the substantial and obvious flaws in the Complaint.  Shoot, many people with no training in the law at all could probably detect something seriously "off" about it.

2. The main arguments for dismissal advanced by the Church's attorneys are:

• All of the issues presented in the Complaint are questions of religious faith.  These questions simply cannot be adjudicated in a secular courtroom.  In my preliminary assessment I referenced this concept as the "ecclesiastical abstention doctrine."  The attorneys here reference that phrase in footnote 2, but elsewhere refer to it as "church autonomy" doctrine (footnotes 2 and 3, pp. 12, 15,17, 20, 23).  I think these two terms ("ecclesiastical abstention" and "church autonomy" are essentially interchangeable.  This legal doctrine arises from the First Amendment's protections of Free Exercise of religious belief.
   
• The plaintiff's fraud-based claims are not testable in court.  A necessary component of fraud is that the purported statements (in this case, the Church's teachings about Joseph Smith's theophanies, the means of the translation of the Book of Mormon, and the authenticity the Book of Abraham) be factually "false."  However, these "statements" are plainly and exclusively within the parameters of religious doctrine, and as such are beyond the jurisdiction of U.S. courts.  That is, it would be unconstitutional for a federal (or state) court to render an opinion about the verity of these statements.  As the attorneys put it: "Fraud claims based on religious facts are outside a civil court’s jurisdiction—they are simply barred."  Yep.  The attorneys recite a number of prior cases that specifically and unequivocally reject the plaintiff's fraud theory.  It is embarrassing that the plaintiff's attorney filed the Complaint while knowing of such prior case law, so much so that it may very well be a frivolous filing (though I suspect the Court will not go that far in its assessment).
   
• The attorneys note that the plaintiff attempts to say that the Church and its leaders owe a "fiduciary duty" to its members, and that they breached this duty to "exercis{ing} 'influence' over her by some type of 'mind control.'"  First, it is embarrassing that the plaintiff's attorney actually presented a federal judge with a complaint alleging "mind control" (that phrase is actually used in the Complaint).  I am embarrassed for her.  It shows a rather strong lack of judgment on her part.  Her reputation will take a hit for presenting such a stupid claim to a federal judge.  Second, the "breach of fiduciary duty" claims are barred for the same reason as described above.  The only way for the federal court to adjudicate these claims would be for it to make factual and legal findings as to the truth and legitimacy of the Church's religious teachings.  The courts, both state and federal, are constitutionally barred from making or allowing such inquiries.  Third, that these claims are constitutionally barred is painfully obvious.  It is simply embarrassing that an attorney with 34 years of experience chose to present them to a federal judge.  She will now become a punchline.  A cautionary tale about how not to behave as an attorney.
   
• The attorneys also critique the plaintiff's claim for "intentional infliction of emotional distress," and note that it is simply a variation of her fraud-based and fiduciary-duty-based claims.  The attorneys present a solid list of prior cases that definitively reject such a claim as alleged against religious group's teachings and claims.  Yet again, the attorney who filed this should be embarrassed.
   
• The attorneys also review the plaintiff's RICO-based claims.  Again, they really ream these claims, and do so with citation to prior case law about which the plaintiff's attorney must have known.

3. The Motion to Dismiss is succinct, and yet quite well-drafted, and even eloquent in some places.  Some excerpts:

And here:

The Motion to Dismiss also provides a synopsis (an accurate one) of the Church's teachings which are challenged in the Complaint.  It feels a little weird to read such things in a legal filing.  I read dozens and dozens of these sorts of documents every week/month, but they are overwhelmingly about matters of law.  Contract law.  Statutory law.  Tort law.  And these filings are generally quite clinical and detached, even dry.  Judges are generally not interested in drama or high emotion.  These are busy folks, each responsible for hundreds of lawsuits pending at any given time.  So to read filings in a federal lawsuit that describe Joseph Smith's theophanies, his translation of the Gold Plates, etc. is . . . odd.  It's just out of place.  The Church's attorneys did so only to "set the table," so to speak.  To establish that the plaintiff's claims are entirely rooted in matters of religious faith and expression.  They did a good job of doing so without becoming combative or emotional.  This is in stark contrast to the overlong and emotion-laden and full-of-histrionics Complaint.  I just can't wrap my head around the fact that a seasoned and experienced attorney actually put her name to the Complaint and filed it in federal court.

4. On occasion, however, I'll get some weird filing from a pro se litigant (a person representing himself in court) that meanders into speculative territory.  Or maudlin claims.  Or wholly irrelevant tangents.  Or outright absurdities.  I once had a fellow file a lawsuit claiming that he should be excused from repaying his home loan because the loan was not backed by gold bullion at Fort Knox.  Another fellow tried to argue that he should be allowed to put real property (which was jointly owned with a number of other parties) into a trust to hold for him in perpetuity because he planned to have his head decapitated at death and cryogenically frozen, in anticipation of it later being re-attached and him being re-animated at some point in the future (and, therefore, he needed to be able to hold on to the real estate for dozens or hundreds of years, despite what the other owners may want to do with it).

Fortunately, the weirdo/diatribe lawsuits are few and far between.  Litigation is an expensive and stresseful and time-consuming process.  The situation becomes worse when someone tries to inject absurdities and stupidities into the legal system.  Doing so is an abuse and misuse of the legal system.  It wastes the Court's already limited time and resources.  It forces the defendants to waste time and money (sometimes substantial amounts of both) in fighting claims that have no chance of winning.  It is for this reason that there are standing rules that prohibit attorneys from filing frivolous lawsuits.  It seems like the plaintiff's attorney broke those rules.

The weirdo lawsuits are rare because litigation is expensive and complex and difficult.  Also, lawsuits are filed in public.  They are matters of public record, such that few pro se litigants are willing to do a Don Quixote impersonation by filing an asinine lawsuit that has zero chance of success.  And yet here we do not have a pro se litigant.  The Complaint was filed by an attorney who has been licensed and practicing for thirty four years.  What a debacle.  What a farce.  What a stupid thing to do, professionally speaking.

5. I previously predicted: "I think the Church's attorneys will not spend much (if any) time on the Complaint's structural defects (failure to properly plead fraud-based allegations), and will instead file a Motion to Dismiss based on the Ecclesiastical Abstention Doctrine.  And I think such a motion will be granted."  Having read the Motion to Dismiss, I am still of this opinion.  However, I look forward to reading the plaintiff's memorandum in opposition, which will likely be due in a few weeks.

Thanks,

-Smac

❤️❤️❤️

[Tacenda]

On 8/24/2019 at 12:43 PM, Meadowchik said:

The way I see this maybe having legal validity is in cases like my husband's. In 1990, he was taught by the missionaries in France. Of course, the reputation of Mormons in France, if any, was one as polygamists. So he asked the missionaries about it, and they told him polygamy started with Brigham Young as president of the church, and not with Joseph Smith. This would then not be a belief question, but a character question. To my husband, the fact that the founder Joseph Smith did not instigate polygamy, but that it originated with Brigham Young and was later disvowed by the church was essential to his conversion. For him, it spoke to the character of Joseph Smith as law-abiding versus non-law-abiding.

So, what if it can be demonstrated that, during correllation, for example, church manuals and distribution materials were significantly cleared of most if not all clear references to Smith's polygamy? This might demonstrate an deliberate attempt at hiding these facts, and thus behaving in a fraudulant manner.

It could even be said about a child being baptized at eight! The age of eight is way too young to make the decision to be baptized into a church they know practically nothing about, most at that age still believe in the tooth fairy, Easter Bunny, and Santa Claus.

[Stargazer]

On 8/29/2019 at 2:02 PM, Meadowchik said:

I do not reject polygamy in general in principle, but I do reject coercion, including spiritual coercion. That is the sticking point for me, and it is a direct result of the "hammer of spiritual authority" which you and I have been discussing in the thread about imperfect leaders. A value of the individual results in the value of the individual's ability to consent to relationships like marriage.

Yes, I like that in these enlightened times in our culture that marriage is not a matter of forced arrangement, like it used to be (at least in the circles of nobility and royalty), and like it frequently still is in some other cultures.  Looking back on former times, I note that arranged marriage was accepted, and both the man and the woman were expected to go along, and even forced to go along, both to seal family interrelationships and conclude political alliances.  

Can you imagine how Eve felt when she realized that she had no choice at all other than to be married to that Adam character?

On 8/29/2019 at 2:02 PM, Meadowchik said:

And it is extremely troubling that there were LDS apostles fully engaging in plural marriage who, while on their missions in Europe, told worried investigators that the church was not practicing polygamy back in the states. People were assured, and then followed them to the states, only to find out the "anti-Mormon lies" were true, and that they were expected to accept the practice of Mormon polygamy as part of the faith community.

And yet one doesn't hear much about this as a problem -- this is new to me, at least.  Do you have any sources for aftermaths where converts arriving from Europe who had been assured that polygamy wasn't occurring, and then discovered otherwise?  Are there many who turned around and went back, or at least wanted to?

[sheilauk]

21 hours ago, Kenngo1969 said:

Always nice to Cyber-see my sister from across the pond!  Hope all is well with you and yours!

Thanks!   We're all well at the moment (mum is getting over pneumonia).  Hope all is well with you!  (Tried to send you a message but couldn't! )  (board members - please excuse the derail!)