ACCEPTED 03-14-00199-CV 5260121 THIRD COURT OF APPEALS AUSTIN, TEXAS 5/13/2015 9:20:07 AM June 9, 2015 June 9, 2015 JEFFREY D. KYLE CLERK No. 03-14-00199-CV ______________________________________ COURT OF APPEALS FILED IN 3rd COURT OF APPEALS THIRD JUDICIAL DISTRICT OF TEXAS AUSTIN, TEXAS AUSTIN, TEXAS 5/13/2015 9:20:07 AM ______________________________________ JEFFREY D. KYLE Clerk CHURCH OF SCIENTOLOGY INTERNATIONAL, et al. Appellants, v. MONIQUE RATHBUN, Appellee. ______________________________________ MOTION FOR LEAVE TO FILE NOTICE OF SUPPLEMENTAL AUTHORITY OF APPELLANT CHURCH OF SCIENTOLOGY INTERNATIONAL ______________________________________ On Appeal from the 207th Judicial District Court of Comal County, Texas Trial Court No. C-2013-1082B Hon. Dib Waldrip of the 433rd Judicial District Court, Presiding ______________________________________
Of Counsel: Thomas S. Leatherbury State Bar No. 12095275 Eric M. Lieberman Marc A. Fuller RABINOWITZ, BOUDIN, STANDARD, State Bar No. 24032210 KRINSKY & LIEBERMAN PC VINSON & ELKINS LLP 45 Broadway, Suite 1700 Trammell Crow Center New York, New York 10006 2001 Ross Avenue, Suite 3700 Telephone: 212.254.1111 Dallas, Texas 75201 Facsimile: 212.674.4614 Telephone: 214.220.7792 elieberman@rbskl.com Facsimile: 214.999.7792 tleatherbury@velaw.com mfuller@velaw.com Ricardo G. Cedillo George H. Spencer, Jr. State Bar No. 04043600 State Bar No. 18921001 Isaac J. Huron CLEMENS & SPENCER State Bar No. 24032447 112 E. Pecan Street, Suite 1300 Les J. Strieber III San Antonio, Texas 78205-1531 State Bar No. 19398000 Telephone: 210.227.7121 DAVIS, CEDILLO & MENDOZA, INC. Facsimile: 210.227.0732 McCombs Plaza, Suite 500 spencer@clemens-spencer.com 755 E. Mulberry Avenue San Antonio, Texas 78212 Telephone: 210.822.6666 Facsimile: 210.822.1151 rcedillo@lawdcm.com ihuron@lawdcm.com lstreiber@lawdcm.com
Attorneys for Appellant Church of Scientology International TO THE HONORABLE COURT OF APPEALS:
Appellant Church of Scientology International (“Church”) requests leave to
file a Notice of Supplemental Authority to address the Texas Supreme Court’s
recent decisions in Lippincott v. Whisenhunt, No. 13-0926, 2015 WL 1967025
(Tex. Apr. 24, 2015) (per curiam), and In re Lipsky, No. 13-0928, 2015 WL
1870073 (Tex. Apr. 24, 2015), and this Court’s recent decisions in Neyland v.
Thompson, No. 03-13-00643-CV, 2015 WL 1612155 (Tex. App.—Austin Apr. 7,
2015, no pet. history), and Serafine v. Blunt, No. 03-12-00726-CV, 2015 WL
2061922 (Tex. App.—Austin, May 1, 2015, no pet. history). Each of these recent
decisions presents issues under the Texas Citizens Participation Act, Tex. Civ.
Prac. Rem. Code § 27.001 et seq., that are relevant to the issues presented in this
appeal.
Wherefore, the Church prays that this Court grant this Motion for Leave to
File Notice of Supplemental Authority of Appellant Church of Scientology, which
is attached hereto as Exhibit 1, and grant any such other relief to which it may be
justly entitled.
-1- Respectfully submitted,
/s/ Thomas S. Leatherbury Thomas S. Leatherbury State Bar No. 12095275 Marc A. Fuller State Bar No. 24032210 VINSON & ELKINS L.L.P. 2001 Ross Avenue, Suite 3700 Dallas, Texas 75201-2975 Telephone: 214.220.7792 Facsimile: 214.999.7792 tleatherbury@velaw.com mfuller@velaw.com
Ricardo G. Cedillo State Bar No. 04043600 Isaac J. Huron State Bar No. 24032447 Les J. Strieber III State Bar No. 19398000 DAVIS, CEDILLO & MENDOZA, INC. McCombs Plaza, Suite 500 755 E. Mulberry Avenue San Antonio, Texas 78212 Telephone: 210.822.6666 Facsimile: 210.822.1151 rcedillo@lawdcm.com ihuron@lawdcm.com
-2- George H. Spencer, Jr. State Bar No. 18921001 CLEMENS & SPENCER 112 E. Pecan Street, Suite 1300 San Antonio, Texas 78205-1531 Telephone: 210.227.7121 Facsimile: 210.227.0732 spencer@clemens-spencer.com
Of Counsel:
Eric M. Lieberman RABINOWITZ, BOUDIN, STANDARD, KRINSKY & LIEBERMAN PC 45 Broadway, Suite 1700 New York, NY 10006 Telephone: 212.254.1111 Facsimile: 212.674.4614 elieberman@rbskl.com
Attorneys for Appellant Church of Scientology International
CERTIFICATE OF CONFERENCE
On May 12, 2015, I conferred with Appellee’s counsel, Leslie Hyman, who stated that Appellee is not opposed to this motion.
/s/ Marc A. Fuller____________ Marc A. Fuller
-3- CERTIFICATE OF SERVICE The undersigned certifies that on the 13th day of May, 2015, the foregoing Motion for Leave to File Notice of Supplemental Authority of Appellant Church of Scientology International was served on the following attorneys in accordance with the requirements of the Texas Rules of Appellate Procedure via electronic filing or email.
Ray B. Jeffrey Marc F. Wiegand JEFFREY & MITCHELL, P. C. THE WIEGAND LAW FIRM, P.C. 2631 Bulverde Road, Suite 105 434 N. Loop 1604 West, Bulverde, TX 78163 Suite 2201 San Antonio, TX 78232
Elliott S. Cappuccio Lamont A. Jefferson PULMAN, CAPPUCCIO PULLEN HAYNES & BOONE LLP & BENSON, LLP 112 E. Pecan Street, Suite 1200 2161 N.W. Military Hwy., #400 San Antonio, TX 78205-1540 San Antonio, TX 78213
J. Iris Gibson Jonathan H. Hull HAYNES & BOONE LLP REAGAN BURRUS 600 Congress Ave., Suite 1300 401 Main Plaza, Suite 200 Austin, TX 78701 New Braunfels, TX 78130
O. Paul Dunagan Bert H. Deixler SARLES & OUIMET KENDALL BRILL KLIEGER 370 Founders Square 10100 Santa Monica Blvd., 900 Jackson Street Suite 1725 Dallas, TX 75202 Los Angeles, CA 90067
Stephanie S. Bascon Wallace B. Jefferson LAW OFFICE OF STEPHANIE S. BASCON, Rachel Ekery PLLC ALEXANDER DUBOSE JEFFERSON 297 W. San Antonio Street & TOWNSEND, LLP New Braunfels, TX 78130 515 Congress Avenue, Suite 2350 Austin, TX 78701
/s/ Thomas S. Leatherbury Thomas S. Leatherbury
-4- US 3518244v.1 EXHIBIT 1 No. 03-14-00199-CV ______________________________________
COURT OF APPEALS THIRD JUDICIAL DISTRICT OF TEXAS AUSTIN, TEXAS ______________________________________ CHURCH OF SCIENTOLOGY INTERNATIONAL, et al. Appellants, v. MONIQUE RATHBUN, Appellee. ______________________________________ NOTICE OF SUPPLEMENTAL AUTHORITY OF APPELLANT CHURCH OF SCIENTOLOGY INTERNATIONAL ______________________________________ On Appeal from the 207th Judicial District Court of Comal County, Texas Trial Court No. C-2013-1082B Hon. Dib Waldrip of the 433rd Judicial District Court, Presiding ______________________________________
Of Counsel: Thomas S. Leatherbury State Bar No. 12095275 Eric M. Lieberman Marc A. Fuller RABINOWITZ, BOUDIN, STANDARD, State Bar No. 24032210 KRINSKY & LIEBERMAN, PC VINSON & ELKINS LLP 45 Broadway, Suite 1700 Trammell Crow Center New York, New York 10006 2001 Ross Avenue, Suite 3700 Telephone: 212.254.1111 Dallas, Texas 75201 Facsimile: 212.674.4614 Telephone: 214.220.7792 elieberman@rbskl.com Facsimile: 214.999.7792 tleatherbury@velaw.com mfuller@velaw.com Ricardo G. Cedillo George H. Spencer, Jr. State Bar No. 04043600 State Bar No. 18921001 Isaac J. Huron CLEMENS & SPENCER State Bar No. 24032447 112 E. Pecan Street, Suite 1300 Les J. Strieber III San Antonio, Texas 78205-1531 State Bar No. 19398000 Telephone: 210.227.7121 DAVIS, CEDILLO & MENDOZA, INC. Facsimile: 210.227.0732 McCombs Plaza, Suite 500 spencer@clemens-spencer.com 755 E. Mulberry Avenue San Antonio, Texas 78212 Telephone: 210.822.6666 Facsimile: 210.822.1151 rcedillo@lawdcm.com ihuron@lawdcm.com lstreiber@lawdcm.com
Attorneys for Appellant Church of Scientology International Appellant Church of Scientology International (“Church”) submits this
Notice of Supplemental Authority to address the Texas Supreme Court’s recent
decisions in Lippincott v. Whisenhunt, No. 13-0926, 2015 WL 1967025 (Tex. Apr.
24, 2015) (per curiam), and In re Lipsky, No. 13-0928, 2015 WL 1870073 (Tex.
Apr. 24, 2015), and this Court’s recent decisions in Neyland v. Thompson, No. 03-
13-00643-CV, 2015 WL 1612155 (Tex. App.—Austin Apr. 7, 2015, no pet.
history), and Serafine v. Blunt, No. 03-12-00726-CV, 2015 WL 2061922 (Tex.
App.—Austin, May 1, 2015, no pet. history).
Lippincott v. Whisenhunt
The Supreme Court’s decision in Lippincott presents the threshold issue of
whether and when a court must apply the Texas Citizens’ Participation Act on an
issue of free speech. See Tex. Civ. Prac. & Rem. Code § 27.001 et seq. The Act
applies when a “legal action is based on, relates to, or is in response to the
[defendant’s] exercise of . . . the right of free speech.” TCPA § 27.005(b). The
“exercise of the right of free speech” is defined as “a communication made on a
matter of public concern.” Id. § 27.001(3). The Court’s decision resolves one of
the main legal disputes in this appeal, i.e., whether the Act applies only to a
“communication” that is made to the public. The Sixth Court of Appeals in
Lippincott had held that the Act does not apply to private communications, a
position adopted by the district court below and strongly urged by Appellee here.
See Whisenhunt v. Lippincott, 416 S.W.3d 689, 697-98 (Tex. App.—Texarkana -1- 2013), rev’d, Lippincott, 2015 WL 1967025; Brief of Appellee at 39-42; Dist. Ct.
Op. at 20-24. The Church has argued, to the contrary, that the statute’s definition
of the term “communication” is not limited to “public” communications. So long
as a communication satisfies the statutory definition of a “matter of public
concern,” it comes within the scope of the TCPA even if it is private. See Reply
Brief at 13-14.
In reversing the Sixth Court of Appeals, the Supreme Court has confirmed
that the Church’s view is correct. Focusing on the Act’s specific language as well
as the Legislature’s injunction to construe the Act “liberally to effectuate its
purpose and intent fully,” TCPA § 27.011, the Court found that a “communication”
can be public or private, in any form or media. Accordingly, contrary to
Appellee’s argument, if a “communication” is private, but on a “matter of public
concern,” it meets the statutory definition:
This statute defines “communication” to include any form or medium, including oral, visual, written, audiovisual, or electronic media—regardless of whether the communication takes a public or private form. Tex. Civ. Prac. & Rem. Code § 27.001(1). The plain language of the statute imposes no requirement that the form of the communication be public. Had the Legislature intended to limit the Act to publicly communicated speech, it could have easily added language to that effect. See In re M.N., 262 S.W.3d 799, 802 (Tex. 2008). In the absence of such limiting language, we must presume that the Legislature broadly included both public and private communication. Tex. Civ. Prac. & Rem. Code § 27.011. -2- Lippincott, 2015 WL 1967025, at *2.
Lippincott confirms that Appellants’ communications come within the ambit
of the TCPA. First, the communications concerning Marty Rathbun, which
plaintiff incorporated as part of every cause of action alleged (whether made in a
public forum or to a few individuals) were indisputably about a public figure, and
are thus matters “of public concern” within the TCPA. Id. § 27.001(7)(D).
Moreover, as the Church has demonstrated—and Appellee did not dispute—
Appellee is a public figure in her own right. See, e.g., Brief of Appellant at 30-31
(citing cases and record evidence); Reply Brief at 13 (noting that Appellee
conceded this point by not responding to it); 3RR194-99; 1CR150-56.
Second, Appellants’ communications, whether public or “private,” in
response to Rathbun’s extensive public campaign to disparage the Church and its
leadership, as well as Appellee’s direct participation in those activities, related to
the religious dispute between the Church and the Rathbuns over ecclesiastical
issues important to the Scientology community. See TCPA § 27.001(7)(B)
(“‘matter of public concern’ includes an issue related to . . . community well-
being”). In light of this evidence, Lippincott leaves no room for Appellee to argue
that Appellants’ communications were not “made in connection with a matter of
public concern” within the TCPA.
-3- In re Lipsky
The Supreme Court’s decision in Lipsky relates to the second TCPA inquiry:
the non-movant’s burden to establish by “clear and specific evidence a prima facie
case for each essential element of the claim in question.” TCPA § 27.005(c).
Lipsky held that a non-movant can rely on circumstantial evidence and rational
inferences to satisfy her burden. 2015 WL 1870073, at *7. Unlike the issue in
Lippincott, however, this is not a point of meaningful contention on this appeal.
Instead, the parties focused on the issue of how clear and specific the non-
movant’s evidence must be. The Church emphasized that Appellee presented no
evidence, or only mere speculation and conjecture, to support her causes of action.
See, e.g., Brief of Appellant at 47 (“Here, there is no evidence, let alone ‘clear and
specific evidence,’ that the Church played any part whatsoever in persuading
Plaintiff’s employer to breach her employment contract.”).
On this issue, Lipsky supports the Church’s position, as does this Court’s
post-Lipsky decision in Serafine. The Supreme Court rejected as legally
inadequate an attempt by the non-movant to meet its burden of showing prima
facie evidence on one of its causes of action. 2015 WL 1870073, at *9. In
particular, the Court concluded that “bare, baseless opinions” and conclusory
allegations unsupported by “specific facts” are not a “sufficient substitute for the
clear and specific evidence required to establish a prima facie case under the
TCPA.” Id. -4- Accordingly, the Court’s holding1 provides additional support to Appellants.
Neyland v. Thompson
Whereas Lippincott and Lipsky involved only the “right of free speech”
under the TCPA, Neyland involved both “free speech” and the “right of
association.” See Neyland, 2015 WL 1612155, at *4-5. The Neyland plaintiff’s
suit was based on communications made among members of a homeowners’
association (“HOA”). Id. at *1. In determining whether these communications fell
within the “right of association” protected by the TCPA, the Court looked to the
plain language of the TCPA, noting that the Legislature had broadly defined “right
of association” to include all communications “between individuals who join
together to collectively express, promote, pursue, or defend common interests.” Id.
at *1, 4 (citing TCPA § 27.001(2)). HOA members “share common interests,”
thus communications between them are protected under the TCPA. Id. at *4.
Here, as in Neyland, Appellants rely on the “right of association” in addition
to the “right of free speech.” As members of the Scientology community,
Appellants share common religious interests, including the motivation to guard
against its adulteration. Accordingly, communications among them relating to
these religious issues fall within the TCPA’s protection of the “right of
1 We note that neither Lipsky, Lippincott, nor Serafine involved the third level of inquiry mandated under the TCPA, as amended in 2013: whether, even to the extent a plaintiff may meet her prima facie burden, a movant has shown that it nevertheless is entitled to prevail as a matter of law. See TCPA § 27.005(d). We reiterate that the Church made that showing with respect to each of plaintiff’s four causes of action.
-5- association.” Contrary to Appellee’s argument, it does not matter whether
Appellants’ communications would be protected under the First Amendment “right
of association.” But see Brief of Appellee at 43 n.26 (arguing that Appellants’
communications are not protected under the constitutional right of association).
Serafine v. Blunt
Serafine involves the third right protected under the TCPA: the “right of
petition.” 2015 WL 2061922, *1-2. Again, the Court looked to the plain language
of the statute in determining the scope of the right, which brings within its ambit
even disputes between private parties. Id. at *4; but see Brief of Appellee at 46-48
(arguing that only activity relating to petitions made to the Government are
protected).
Following Lipsky, the Court applied the “clear and specific evidence”
requirement to find that the non-movants had provided vague and conclusory
evidence in support of their counterclaim relating to Serafine’s filing of a lawsuit,
requiring the dismissal of that portion of their counterclaim under the Act.
We conclude that the term “clear and specific evidence” refers to the quality of evidence required to establish a prima facie case, while the term ‘prima facie case’ refers to the amount of evidence required to satisfy the nonmovant’s minimal factual burden.
Serafine, 2015 WL 2061922, at *3. The Court assumed without discussion and
without argument from the parties, however, that because the non-movant’s
-6- counterclaim was based on both petition activity (the filing of the lawsuit) covered
by the Act and other alleged acts not covered by the Act, that only the petition
activity would be subject to analysis under the TCPA, and that the other allegations
would be remanded. Id. at *4.2
The question of how to address such “mixed claim” issues was briefed and
argued in this appeal. See Reply Brief. at 20-21. As the Church showed, in such
cases arising under the California anti-SLAPP statute, Cal. Code Civ. P. § 425.16
et seq., “[w]here . . . a cause of action is based on both protected activity and
unprotected activity, it is subject to [the anti-SLAPP statute] unless the protected
conduct is merely incidental to the unprotected conduct.” Haight Ashbury Free
Clinics, Inc. v. Happening House Ventures, 184 Cal. App. 4th 1539, 1551 (2010)
(“the pleading of other, indeed numerous other, indisputably ‘unprotected’ theories
of liability does not eliminate or reduce the chilling effect of the exercise of free
speech and petition” created by the allegations of activity covered by the statute);
Fox Searchlight Pictures, Inc. v. Paladino, 89 Cal. App. 4th 294, 308 (2001) (“[A]
plaintiff cannot frustrate the purposes of the SLAPP statute through a pleading
tactic of combining allegations of protected and unprotected activity under the
label of one ‘cause of action’”). A non-movant, of course, could still go forward 2 The issue of how so-called “mixed claims” are to be treated under the TCPA was neither briefed nor argued in the Serafine case. From the opinions, it does not appear that Serafine even included the acts other than the lawsuit and lis pendens within her motion. Thus, the Court did not address or analyze the “mixed claim” issue on its merits. The issue was discussed in the concurring opinion in Serafine. See 2015 WL 2061922 at *29-30 (Pemberton, J., concurring).
-7- with that portion of his mixed claim that is not encompassed within the Act by
demonstrating, within the context of the motion to dismiss brought under the Act,
that his claim is supported by clear and specific evidence of a prima facie case and
is not otherwise subject to dismissal. Indeed, as potentially demonstrated here,
such a course is squarely consistent with interests of judicial economy.
Moreover, because Serafine did not involve pre-suit investigation of
potential civil litigation, the Court did not consider whether such activities are so
closely related and indeed often necessary to future or ongoing litigation as to
come within the scope of the TCPA’s right to petition. As the Church showed
(Brief at 34-35; Reply Brief at 16), a faithful adherence to the language of the
TCPA, as Lippincott mandates, confirms that Appellants’ retention of licensed
professionals to investigate Appellee’s provocative conduct against their faith, in
contemplation of possible affirmative or defensive litigation or of possible
complaints to law enforcement (as occurred), sufficiently “relates to” their right to
petition a court or government official for relief as to fall within the ambit of the
Act. See, e.g., Tichinin v. City of Morgan Hill, 177 Cal. App. 4th 1049, 1071
(2009) (“the investigation of a potential claim is normally and reasonably part of
effective litigation, if not an essential part of it”); see also Dickens v. Provident
Life & Acc. Ins. Co., 117 Cal. App. 4th 705, 708-09 (2004) (“[A] defendant’s
alleged participation in procuring a criminal prosecution against a plaintiff falls
within the ambit of the anti-SLAPP statute.”). -8- Based on these additional authorities, the Church respectfully re-urges its
request that this Court reverse the district court’s order denying its motion to
dismiss, grant the motion, and render judgment for the Church.
Respectfully submitted,
Of Counsel: /s/ Thomas S. Leatherbury Thomas S. Leatherbury Eric M. Lieberman State Bar No. 12095275 Rabinowitz, Boudin, Standard, Marc A. Fuller Krinsky & Lieberman PC State Bar No. 24032210 45 Broadway, Suite 1700 Vinson & Elkins LLP New York, New York 10006 2001 Ross Avenue, Suite 3700 Telephone: 212.254.1111 Trammell Crow Center Facsimile: 212.674.4614 Dallas, Texas 75201 elieberman@rbskl.com Telephone: 214.220.7792 Facsimile: 214.999.7792 tleatherbury@velaw.com mfuller@velaw.com
Attorneys for Appellant Church of Scientology International
-9- US 3519264v.1