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No.

IN THE

Supreme Court of the United States

d

CHURCH OF SCIENTOLOGY INTERNATIONAL,

—v.—

Petitioner,

LAURA ANN DECRESCENZO,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

PETITION FOR WRIT OF CERTIORARI

BERT H. DEIXLER LAURA BRILL N ICHOLAS F. D AUM KENDALL BRILL & KLIEGER LLP

10100 Santa Monica Blvd., Suite 1725 Los Angeles, California 90067 (310) 556-2700

ERIC M. LIEBERMAN

Counsel of Record

DAVID B. GOLDSTEIN RABINOWITZ, BOUDIN, STANDARD, KRINSKY, & LIEBERMAN, P.C.

45 Broadway, Suite 1700 New York, New York 10006 (212) 254-1111 elieberman@rbskl.com

Attorneys for Petitioner Church of Scientology International

i

QUESTIONS PRESENTED FOR REVIEW

1. Whether California’s penitent-clergy privi-

lege statute, Cal. Evid. Code §§ 1030-34, as authoritatively construed by the California courts, effects a denominational preference in violation of the Establishment Clause of the First Amendment because it protects only confidential penitential communications made to a single clergy person who may never further disclose such communica- tions to other clergy—a practice typical of only some denominations—but does not protect confi- dential penitential communications that, pursuant to the religious doctrine of petitioner and numer- ous other denominations, are made to more than one clergy or to a clergy person who must further disclose that communication to another clergy per- son who also must maintain the confidentiality of the communication?

2. Whether California’s penitent-clergy privi-

lege statute, as authoritatively construed by the California courts, effects a denominational pref- erence that impermissibly burdens the religious practices of only some religions, in violation of the Free Exercise Clause of the First Amendment, because it protects only confidential penitential communications made to a single clergy person who may never further disclose such communica- tions to other clergy—a practice typical of only some denominations—but does not protect confi- dential penitential communications that, pursuant to the religious doctrine of petitioner and numer- ous other denominations, are made to more than one clergy or to a clergy person who must further disclose that communication to another clergy per- son who also must maintain the confidentiality of the communication?

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PARTIES TO THE PROCEEDINGS BELOW AND RULE 29.6 STATEMENT

The names of all the parties to the proceedings in the Superior Court of California, Los Angeles County, the court whose order is sought to be reviewed, are Petitioner Church of Scientology International; Respondent Laura DeCrescenzo; and Religious Technology Center, which is a defendant in the proceedings in the Los Angeles County Superior Court, but is not a party to the dispute raised in this Petition.

Church of Scientology International and Religious Technology Center are not-for-profit religious corporations, have no parent corporation, and do not have any owners or issue any stock.

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TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED FOR REVIEW.

i

PARTIES TO THE PROCEEDINGS BELOW AND RULE 29.6 STATEMENT

ii

TABLE OF AUTHORITIES

vi

PETITION FOR WRIT OF CERTIORARI

1

OPINIONS BELOW

1

JURISDICTION

2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

2

STATEMENT

3

REASONS FOR GRANTING THE PETITION

17

I.

Certiorari is Appropriate Because California Has Erroneously Resolved An Important Issue of Federal Law by Creating an Unconstitutional Denominational Preference

17

iv

PAGE

 

A. California Law Creates a Denominational Preference, in which an Irremediable Constitutional Harm Occurs at the Time of Compelled Disclosure of the Confidential Penitential Communications

17

B. California’s Unprecedented Denominational Preference Substantially Burdens the Core Confessional Practices of Many Religions, Contrary to Decisions of Numerous State Appellate Courts, Which Construe Penitent-Clergy Privilege Statutes to Avoid Denominational Preferences

22

II.

California’s Denominational Preference Violates the Court’s Establishment Clause and Free Exercise Clause Jurisprudence

29

A. California’s Denominational Preference Conflicts with the Court’s Settled Establishment Clause Cases

29

B. California’s Denominational Preference Conflicts with the Court’s Settled Free Exercise Clause Cases

33

CONCLUSION

37

v

APPENDICES:

PAGE

Order of Supreme Court of California Denying Petition for Review

1a

Order of California Court of Appeal, Second Appellate District, Division Three, Denying Petition for Writ of Mandate Prohibition

2a

Order of Superior Court of California, County of Los Angeles, Granting Motion to Compel

3a

Transcript of Hearing and Oral Decision of Superior Court of California, County of Los Angeles, Granting Motion to Compel and Denying Claim of Privilege

6a

Opinion of California Court of Appeal, Second Appellate District, Division Three in Roman Catholic Archbishop of Los Angeles v. Superior Court of Los Angeles County

37a

vi

TABLE OF AUTHORITIES

Cases:

PAGE

Alt. Health Care Sys. v. McCown,

514

S.E.2d 691 (Ga. Ct. App. 1999)

27

Auto Equity Sales, Inc. v. Superior Court of Santa Clara Cnty.,

369

P.2d 937 (Cal. 1962)

6

Candice S. v. Superior Court, No. H032683, 2008 WL 3274099 (Cal. Ct. App. Aug. 11, 2008)

19, 20

Church of Scientology of California v. United States,

506

U.S. 9 (1992)

16

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,

508

U.S. 520 (1993)

33, 35

Cox Broad. Corp. v. Cohn,

420

U.S. 469 (1975)

21

Doe v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints,

90

P.3d 1147 (Wash. Ct. App. 2004

25, 26

Doe 2 v. Superior Court,

34

Cal. Rptr. 3d 458 (Ct. App. 2005)

19

Epperson v. Arkansas,

393

U.S. 97 (1968)

30

Everson v. Bd. of Educ. of Ewing Twp.,

330

U.S. 1 (1947)

29

vii

PAGE

Fort Wayne Books, Inc. v. Indiana,

489

U.S. 46 (1989)

21

Fowler v. Rhode Island,

345

U.S. 67 (1943)

31, 32

Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal,

546

U.S. 418 (2006)

32, 35

In re Grand Jury Investigation,

918

F.2d 374 (3d Cir. 1990)

27, 28

Larson v. Valente,

456

U.S. 228 (1982)

passim

Miami Herald Publ’g Co. v. Tornillo,

418

U.S. 241 (1974)

22

Nat’l Socialist Party of Am. v. Vill. of Skokie,

432

U.S. 43 (1977)

22

Oklahoma Publishing Co. v. District Court In and For Oklahoma County,

430

U.S. 308 (1977)

21

Org. for a Better Austin v. Keefe,

402

U.S. 415 (1971)

22

People v. Bragg,

824

N.W.2d 170 (Mich. Ct. App. 2012) .

28

People v. Edwards,

203

Cal. App. 3d 1358 (1988)

18

People v. Simental, 2009 WL 2426334 (Cal. Ct. App. Aug. 10, 2009)

19, 20

viii

PAGE

People v. Superior Court (Moore),

58 Cal. Rptr. 2d 205, 210

(Ct. App. 1996)

6

Reutkemeier v. Nolte,

161

N.W. 290 (Iowa 1917)

23, 24

Roman Catholic Archbishop of L.A. v. Superior Court,

32

Cal. Rptr. 3d 209 (Ct. App. 2005),

cert. denied, 547 U.S. 1071 (2006)

passim

S.O.S., Inc. v. Payday, Inc.,

886

F.2d 1081 (9th Cir. 1989)

11

Scott v. Hammock,

133

F.R.D. 610 (D. Utah 1990)

24, 25, 28

Scott v. Hammock,

870

P.2d 947 (Utah 1994)

19, 25, 29

State v. Archibeque,

221

P.2d 1045 (Ariz. Ct. App. 2009)

27

State v. Ellis,

756

So. 2d 418 (La. Ct. App. 1999)

28

State v. MacKinnon,

957

P.2d 23 (Mont. 1988)

26, 29

State v. Martin,

975

P.2d 1020 (Wash. 1999)

26, 29

Torcaso v. Watkins,

367

U.S. 488 (1960)

30

Trammel v. United States,

445

U.S. 40 (1980)

18

ix

Wallace v. Jaffree,

472 U.S. 38 (1985)

Walz v. Tax Comm’n,

397 U.S. 664 (1970)

PAGE

30

35

Constitutional and Statutory Provisions:

U.S. Const. Amend. I

passim

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

2

Cal. Evid. Code §§ 1030-34

passim

Cal. Evid. Code section 912

14

Other Authorities:

2

Witkin, California Evidence § 245 (5th ed. 2012)

20

7

Cal. L. Revision Commission Rep.

(1965)

10, 19, 32

California Practice Guide: Civil Trials and Evidence § 8:2241 (Eli Chernow, J. (ret.), ed. 2012)

James Madison, Memorial and Remonstrance

20

Against Religious Assessments

29, 36

John T. Noonan, Jr., The Lustre of Our Country: The American Experience of Religious Freedom (1998)

36

The Federalist No. 51 (James Madison)

30

PETITION FOR WRIT OF CERTIORARI

The Church of Scientology International (“the Church”) petitions for a writ of certiorari to review an order of the Superior Court of California, Los Angeles County, requiring the Church to produce records of confidential penitential communications to church ministers, discretionary review of such order having been denied by the Court of Appeal of the State of California, Second Appellate Dis- trict, and the Supreme Court of California (over the dissent of two Justices).

OPINIONS BELOW

The transcribed oral order of the Superior Court of California, Los Angeles County requiring peti- tioner to produce written records of confidential penitent-clergy communications (6a-36a), based on the reported decision in Roman Catholic Arch- bishop of L.A. v. Superior Court, 32 Cal. Rptr. 3d 209 (Ct. App. 2005), cert. denied, 547 U.S. 1071 (2006) (37a-105a), is not reported. The written order of the Superior Court of California, Los Angeles County requiring petitioner to produce written records of confidential penitent-clergy communications (3a-5a) is not reported. The order of the California Court of Appeal, Second Appel- late District denying petitioner’s Petition for Writ of Mandate (2a) is not reported. The order of the Supreme Court of California denying petitioner’s Petition for Review (1a) is not reported.

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JURISDICTION

The order of the Supreme Court of California was filed on May 15, 2013. Petitioner invokes this Court’s jurisdiction pursuant to 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The First Amendment to the Constitution of the United States provides, in relevant part:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech

California Evidence Code sections 1030-34 provide:

§ 1030. As used in this article, a “member of the clergy” means a priest, minister, religious practitioner, or similar func- tionary of a church or of a religious denomination or religious organization.

§ 1031. As used in this article, “penitent” means a person who has made a peniten- tial communication to a member of the clergy.

§ 1032. As used in this article, “penitential communication” means a communication made in confidence, in the presence of no third person so far as the penitent is aware, to a member of the clergy who, in the course of the discipline or practice of

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the clergy member’s church, denomina- tion, or organization, is authorized or accustomed to hear those communications and, under the discipline or tenets of his or her church, denomination, or organiza- tion, has a duty to keep those communica- tions secret.

§ 1033. Subject to Section 912, a penitent,

whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a penitential communica- tion if he or she claims the privilege.

§ 1034. Subject to Section 912, a member

of the clergy, whether or not a party, has

a privilege to refuse to disclose a peniten-

tial communication if he or she claims the privilege.

STATEMENT

In a precedential opinion of wide import, the California Court of Appeal in 2005 construed the State’s penitent-clergy privilege to protect confi- dential spiritual communications and counseling practices only when the communications are made to a single minister or clergy person; any further disclosure by that clergy person of any portion of the communication to other clergy (or any peni- tent communication in the presence of anyone other than a single clergy person), even when required by the beliefs, doctrine and practices of that denomination, completely destroys the privi- lege. Roman Catholic Archbishop of L.A. v. Supe- rior Court (“Catholic Archbishop”), 32 Cal. Rptr. 3d 209 (2005), cert. denied, 547 U.S. 1071 (2006)

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(37a-105a). Denominations that require, as part of their core religious practices, communications of a confidential spiritual nature to more than one clergy person or that such communications may or must be further disclosed to a small, select num- ber of other clergy are categorically excluded from the privilege.

No court outside California to petitioners’ knowledge has construed a state penitent-clergy privilege to be limited to a single penitent-single clergy communication, in which any further clergy-to-clergy disclosures pursuant to Church doctrine vitiate the privilege, and every court to address the question has held to the contrary. As these reported cases in numerous jurisdictions demonstrate, many denominations, including the Church of Jesus Christ of Latter-Day Saints, the Presbyterian Church and other Christian Churches, have religious doctrines and practices that are jeopardized by the rule of Catholic Arch- bishop, because confidential communicant-clergy communications are disclosed by the clergy person receiving the confidence to other clergy persons, or are made to more than one clergy person.

This case involves the religious practice known as “auditing,” which is the central religious prac- tice of the Scientology religion. In auditing, a form of religious counseling, the parishioner who seeks counseling engages in confidential communica- tions with a Scientology minister, called an “audi- tor,” who, as mandated by Church law, then communicates portions or all of the communica- tions to a senior clergy person, called a “Case Supervisor.” The Case Supervisor assists the audi- tor in counseling and ministering to the counselee.

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Scientology religious doctrine mandates that all records of auditing communications be maintained solely to further the religious and spiritual progress of a parishioner and in secrecy, and that neither the parishioner making the confidential communication nor the clergy who receive or review it will ever disclose such communications outside the limited confines of the auditing pro- cess.

In this case, the Superior Court denied the Church’s claim of privilege under California’s pen- itent-clergy privilege, Cal. Evid. Code §§ 1030-34, and has ordered the Church to produce highly con- fidential religious files (denominated “PC folders” or “auditing folders”) that contain written records of confidential communications plaintiff made to and received from Scientology clergy in the course of auditing.

The Superior Court expressed concern that its order requiring the Church to produce records of such communications created a denominational preference against those religions, such as Scien- tology, whose religious doctrines mandate that confidential penitent-clergy communications, including confessions, be heard by or reviewed by two or three ministers instead of the single clergy member typical of the Catholic confessional (12a- 15a). Nevertheless, the Superior Court concluded that, although the matter was “an issue of sub- stance,” it was bound by the prior published opin- ion of the California Court of Appeal in the Catholic Archbishop case (31a-32a). “I am subordi- nate to that Court,” the Court reasoned (32a). Accordingly, the court accepted the plaintiff’s argument that under Catholic Archbishop no priv-

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ilege exists where a confidential communication is divulged to anyone other than a single clergy per- son (32a).

The subsequent summary denials of discre- tionary review by the Court of Appeal and the Cal- ifornia Supreme Court (over the recorded dissent of two Justices) leave Catholic Archbishop in place as the authoritative construction of the California penitent-privilege statute and, under California law, Catholic Archbishop is binding throughout

the entire state and controls the decisions of every California trial court. See Auto Equity Sales, Inc. v. Superior Court of Santa Clara Cnty., 369 P.2d 937, 940 (Cal. 1962) (en banc) (“Decisions of every division of the District Courts of Appeal are bind- ing upon all the justice and municipal courts and

upon all the superior courts of this state

People v. Superior Court (Moore), 58 Cal. Rptr. 2d 205, 210 (Ct. App. 1996) (quoting Auto Equity Sales).

The Superior Court’s order perpetuates through- out California the unequal treatment accorded to the confessional and counseling practices of vari- ous denominations, based on differences in reli- gious doctrine and practice, but without any compelling or even important government interest in doing so. While denominations that conform their religious doctrines and practices to Califor- nia law enjoy the protections of the penitent clergy privilege, those worshippers and clergy of the disfavored denominations can have no assur- ance that penitential-clergy communications intended to remain confidential will not be subject to compelled disclosure in administrative or judi- cial proceedings.

.”);

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California law creates a sharp denominational preference in violation of the Religion Clauses of the First Amendment, raises a clear and impor- tant question of federal law, is contrary to deci- sions of the highest and intermediate appellate courts of sister states, and conflicts with a long line of settled decisions of this Court that prohibit denominational preferences.

1. Respondent Laura Ann DeCrescenzo

(“DeCrescenzo”) brought a civil action against the Church and another defendant in the California Superior Court, Los Angeles County on April 2, 2009, alleging, as subsequently amended, various claims, including for intentional infliction of emo- tional distress. The claims alleged acts of defen- dants between 1991 and 2004 while DeCrescenzo was a member of Scientology’s religious order, the Sea Organization, and a staff member of the Church. Complaint, DeCrescenzo vs. Church of Scientology Int’l, No. BC411018 (Cal. Super. Ct. Apr. 2, 2009), 2009 WL 890202.

2. The Scientology religion is based upon its

“Scripture,” which consists of the writings and recorded spoken words on Scientology of its “Founder,” L. Ron Hubbard. P.E. 1623. 1 Scientolo- gists believe that salvation depends on increasing one’s awareness of one’s spiritual identity through a practice of religious counseling called “auditing.” Id. 2703. Auditing is the core practice of the reli- gion; without auditing, there could be no Scientol- ogy in its current form. Id. 1623-24.

” are to pages of “Petitioner’s

Exhibits” submitted to and contained in the Record of the California Court of Appeal in support of the Church’s Peti- tion for Writ of Mandate to that court.

1 References to

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Auditing is ministered in confidential one-on- one sessions between an auditor and a parishioner under circumstances of guaranteed confidential- ity. Auditing uses “processes” to help a person locate areas of spiritual distress. There are many auditing processes. The different auditing levels require specifically trained auditors for each level of services, each of whom is mandated to maintain the confidentiality and secrecy of all communica- tions made in each session. Id. 2710.

Scientology Scripture mandates that the written record of all auditing sessions must be compiled into an auditing folder (also called “PC” or audit- ing folder). As these documents contain or refer to the parishioner’s communications to her auditors, they are kept strictly secure and confidential, and are not disclosed other than to the very select clergy members responsible for the auditing pro- cess, described below. Id. 1624.

All auditing that a parishioner receives is deter- mined and overseen by a “Case Supervisor.” The term “Case” is a general term for the summation of an individual’s difficulties, past events and acts preventing him from reaching his full spiritual potential and abilities. It is a person’s “case” that is addressed in Scientology auditing. A Case Supervisor must be highly trained as an auditor, which can require several years of further reli- gious study. The Case Supervisor directs all audit- ing for each individual under his care and is responsible for the auditors’ actions. The Case Supervisor’s instructions to the auditor are in writing and placed in the auditing folder. In approving the auditing process for each session, the Case Supervisor examines the parishioner’s

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auditing file, specifically for the purpose of ensur- ing that the auditing is performed in conformance with Scientology Scriptures. Id. 1625.

All clergy authorized by the Scientology Scrip- ture to review the auditing folders must take an oath to maintain the secrecy of all auditing com- munications. Parishioners are assured by the Church that their auditing communications and

records will be maintained as strictly confidential; they also agree not to disclose the contents of the communications made in the auditing process. Id.

1626.

Scientology places great religious emphasis on the confidentiality of a parishioner’s auditing fold- ers. The Church and its ministers have an abso- lute responsibility to maintain the secrecy of auditing files. Such folders cannot be disclosed without violating the fundamental religious tenets of the Church. The unauthorized disclosure of someone’s PC folder is one of the most serious ecclesiastical acts of misconduct within the Church. Turning over the PC folders of the parish- ioner’s auditing, even to the parishioner, is forbid- den. Id. 2712.

3. DeCrescenzo was a member of the Sea Orga-

nization Order and a staff member of the Church from 1991 through 2004, during which time she frequently participated in auditing sessions, some- times on a daily basis. Over those 13 years, the confidential communications she made in the course of her auditing were received or reviewed by auditors and Case Supervisors, and no one else, and, in accordance with Scientology Scripture, records of her auditing were maintained within 42 auditing files. Each of these files contains records

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of individual, confidential auditing sessions between DeCrescenzo and trained clergy. Id. 1627.

4. On April 11, 2012, DeCrescenzo served the

Church with a request for production of docu- ments seeking, inter alia, all documents contained within her PC Folders. The Church objected to the requests for the PC Folders, on the ground that the communications were protected from disclo- sure by California’s penitent-clergy privilege statute, Cal. Evid. Code §§ 1030-34, which specifi- cally permits the privilege to be invoked by and on behalf of the “clergy” as well as by the “penitent.” 2 Section 1032 defines a “penitential communica- tion” as:

a communication made in confidence, in the presence of no third person so far as the penitent is aware, to a member of the clergy who, in the course of the discipline or practice of the clergy member’s church, denomination, or organization, is autho-

2 California Evidence Code section 1033 recognizes that the privilege belongs to both the penitent and the clergy and may be asserted by either on her own behalf. The Cali- fornia Law Revision Commission, which drafted the statute in 1965, explained that:

The extent to which a clergyman should keep secret or reveal penitential communications is not an appropriate subject for legislation; the matter is better left to the discretion of the individual cler- gyman involved and the discipline of the religious body of which he is a member. 7 Cal. L. Revision Commission Rep. 202 (1965). Here, the record establishes that Scientology doctrine forbids its clergy from disclosing the content of any auditing communication outside the auditing process itself (including supervisory review), whether or not the person audited attempts to do so.

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rized or accustomed to hear those commu- nications and, under the discipline or tenets of his or her church, denomination, or organization, has a duty to keep those communications secret.

The Church maintained that the privilege applied to the PC folders because the plaintiff’s auditing communications were made in each instance to a single clergy person, 3 in the presence of no third person, and under church doctrine the clergy per- sons had a duty to keep those communications “secret,” to be disclosed only to a select number of senior clergy. 4

3 The term “clergy” is broadly defined: “a priest, min- ister, religious practitioner, or similar functionary of a church or of a religious denomination or religious organi- zation.” Cal. Evid. Code § 1030. Likewise, the term “peni- tent” is not limited to one seeking absolution from sin, but is defined to mean simply “a person who has made a peniten- tial communication to a member of the clergy.” Id. § 1031. “Penitential communication” in turn is broadly defined by section 1032, as stated in the text above.

4 As the Church argued to the Superior Court, “secret” is widely and generally understood to have a broader scope and meaning than absolute exclusivity between two persons. The law recognizes the concept of secrecy in a variety of cir- cumstances, most notably in the concept of “trade secrets” and in the governmental classifications of documents as, inter alia, “secret” or “top secret.” It has been applied to mean a strict limitation of disclosure of the secret to those authorized to know it and who have a need to know it to carry out the functions related to the existence of the secret itself. See, e.g., S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1089 n.12 (9th Cir. 1989) (explaining that maintaining a trade secret requires measures such as “limiting access to a trade secret on ‘need to know basis,’” and that “controlled disclosure to employees and licensees is consistent with the

secrecy”). However, as authoritatively

requirement of

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The documents for which the Church has asserted the privilege consist of records or nota- tions from auditing sessions that were prepared by auditors as required by Scientology Scripture, or documents that reflect communications between a Case Supervisor and an auditor con- cerning DeCrescenzo’s auditing communications. Such documents specifically describe or refer to and include communications made in auditing ses- sions by DeCrescenzo. P.E. 1626-27.

On December 6, 2012, DeCrescenzo moved to compel the production of the PC folders and, after the Court ordered and the Church produced a privilege log, DeCrescenzo filed a renewed motion to compel. In support of her renewed motion, DeCrescenzo relied primarily on the decision in Catholic Archbishop, which involved grand jury subpoenas to the Catholic Archdiocese of Los Angles concerning records of interviews by Catholic senior clergy of priests who had been accused of sexual abuse. 32 Cal. Rptr. 3d at 214- 17 (38a-45a). Notably, the interviews were not undertaken pursuant to the traditional Catholic confessional, but rather were part of an investiga- tory process carried out by the Archdiocese itself. Id. at 216-17 (42a-45a). It was understood by all concerned that the records of the interviews would be disclosed to senior Church clergy, including possibly the Cardinal, and in fact they were so dis- closed. Id. at 230 (73a-75a).

construed by Catholic Archbishop, and as followed by the Superior Court here, “secret” for purposes of section 1032 is limited to absolute exclusivity between one parishioner and one clergy member, regardless of a denomination's religious doctrines and practices.

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The Court of Appeal in Catholic Archbishop explicitly held that the records of the interviews were not protected by the California penitent- clergy privilege precisely and solely because the confidences disclosed by the putatively errant priests were the subject of further internal disclo- sure to senior Church clergy:

The record demonstrates the participants in the Archdiocese’s troubled-priest inter- ventions knew any communications likely were to be shared with more than one per- son. According to the Archdiocese’s declared policy, priests experiencing psy- chological and sexual problems were encouraged to discuss those problems with the archbishop and the Vicar for Clergy. Furthermore, the subpoenaed documents themselves amply demonstrate that com- munications to and from the individual priests were routinely shared by Cardinal Mahony, whoever happened to be the cur- rent Vicar for Clergy, and sometimes other Archdiocese employees as well.

This sharing of information violates Evi- dence Code section 1032’s requirement that the penitent’s communication be “made in confidence, in the presence of no third person so far as the penitent is aware,” to a cleric who is obligated “to keep those communications secret.” The fact both parties to the original communi- cation knew it likely would be transmitted to a third person vitiated ab initio any privilege under Evidence Code section 1032, or, alternatively, constituted a

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waiver of the privilege under Evidence Code section 912, subdivision (a). 5

Id. (73a-75a).

The Church opposed DeCrescenzo’s motion to compel, arguing that Catholic Archbishop created an unconstitutional denominational preference in favor of the traditional Catholic confessional and similar practices and against denominations, including Scientology, in which confidential com- munications to clergy, including confessionals, involve more than one clergy member as a matter of religious doctrine.

On March 6, 2013, the Superior Court granted the motion to compel production of the auditing folders (3a-5a, 30a-34a). The Court recognized the significance of the Church’s privilege claim, and expressed its concerns that Catholic Archbishop’s construction of the statute created unconstitu- tional discrimination among denominations, not- ing that the issue might have to be resolved by the “Supreme Court of the United States” 6 (19a-30a).

5 California Evidence Code section 912(a) provides that voluntary disclosure by a holder of the privilege to third par- ties waives the privilege. This is limited, however, by section 912(c), which provides “A disclosure that is itself privileged is not a waiver of any privilege.” Thus, although under sec- tion 1032, a confidential communication by one clergy to another under the rules and doctrine of his or her denomi- nation that was intended to remain “secret,” would appear not to constitute a waiver under section 912(a), Catholic Archbishop’s authoritative construction of California law has held otherwise.

6 The Superior Court stated:

The Free Exercise problem comes up in a different context. They [the Church] are saying: This is the

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The Superior Court held, however, that it was

compelled to apply that construction by the Cali- fornia Court of Appeal’s decision in the Catholic Archbishop case, stating, “it [the Catholic Arch- bishop opinion] is only a decision made by an

but I think that

I am subordinate to that court” (32a). The court, based upon the opinion in Catholic Archbishop, concluded that the legislature restricted Califor- nia’s privilege exclusively to communications between a parishioner and one clergy person, which are not subsequently communicated to any third person, even another clergy person and even when such further communication is in further- ance of the religious practice and doctrines of the Church (31a-32a).

intermediate appellate court

way we minister to the person at the end of the

line

son is, we do it by committee. There are a number

They are

going to say this is a violation of free exercise and a—and because of the structure of the statute, while conferring privileges on certain religious denominations, which have, let’s say, a single priest or a single clergyman and a single penitent person, is, itself, one that is based on a premise about how a religion works. We, on the Scientology side, are a religion. And you can’t restrict a privi- lege, which you grant to certain religions, so that it cannot be used by other legitimate religions.

of people who have to deal with that

[L]ook, the way we treat a confessing per-

But our system is that we have this hierarchi-

cal system or somebody checking somebody else’s

work and so

matter which may get to the Supreme Court of the United States, and that’s okay. If that’s the court that has to hear it, that's the court that has to hear it. [19a-30a.]

I recognize that this is a

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5. On March 29, 2013, the Church filed a Peti-

tion for Writ of Mandate or Prohibition with the California Court of Appeal. On April 25, the same panel of the court that had decided the Catholic Archbishop case summarily denied the Petition without comment (2a). On April 29, 2013, the Church filed a Petition for Review in the Califor- nia Supreme Court. The Court denied the petition on May 15, 2013, with Justices Baxter and Chin stating that they would grant the petition (1a).

The Superior Court has ordered the Church to produce the confidential PC Folders by July 2, 2013. 7

7 Because the state courts have denied petitioners’ stay requests (1a-2a), petitioner contemporaneously is filing an Application for a Stay of the Superior Court’s order com- pelling production of the confidential auditing files. Although, as set forth therein, the harm from such compelled disclosure is substantial and irreparable, even if the Appli- cation for a Stay is denied, the issue will not be rendered moot, as substantial continuing harm to the Church will result from the continued possession of, access to, and use in judicial proceedings of these confidential religious commu- nications by others than Scientology clergy, which harms may be effectively remedied by the courts. See Church of Sci- entology of California v. United States, 506 U.S. 9, 13 (1992). For example, “a court does have power to effectuate a partial remedy by ordering the [Respondent] to destroy or return any and all copies it may have in its possession. The avail- ability of this possible remedy is sufficient to prevent this case from being moot.” Id. The courts may also prevent any use of the documents in court proceedings.

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REASONS FOR GRANTING THE PETITION

I. Certiorari is Appropriate Because Califor- nia Has Erroneously Resolved An Impor- tant Issue of Federal Law by Creating an Unconstitutional Denominational Prefer- ence

A. California Law Creates a Denomina- tional Preference, in which an Irreme- diable Constitutional Harm Occurs at the Time of Compelled Disclosure of the Confidential Penitential Communica- tions

California’s Catholic Archbishop rule limits application of the clergy-penitent privilege to the confessional practice that exists in certain denom- inations, notably the Roman Catholic Church, while denying it to others, including the Church of Jesus Christ of Latter-Day Saints, the Presbyte- rian Church, the Church of Scientology, and other Christian denominations. The Court should inter- vene to resolve this important issue of law and conform the law of the penitent-clergy privilege in California—our largest state with a huge variety of religious denominations—to the First Amend- ment, as well as to decisions of the highest and intermediate appellate courts of sister states that have considered the issue of the penitent-clergy privilege in similar contexts.

California’s penitent-clergy privilege is no mere technical rule of evidence. To the contrary, the statute is a recognition of the high importance this Nation attaches to religious freedom and the often critical role that confidential communica-

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tions between and among religious devotees and their clergy play in the religious experience of citi- zens and their churches. The California privilege derives from the traditional “priest-penitent” priv- ilege of the Catholic Church, which “recognize[d] the human need to disclose to a spiritual coun- selor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return.” Trammel v. United States, 445 U.S. 40, 51

(1980).

The present day clergy-penitent privilege has its origin in the early Christian Church sacramental confession which existed before the Reformation in Eng- land. It has evolved over the years into the contemporary “minister’s” privilege adopted in some form in virtually every state of this country.

People v. Edwards, 203 Cal. App. 3d 1358, 1362

(1988).

Numerous states recognized that the traditional privilege for the Catholic confessional was con- stitutionally too narrow, and therefore undertook to expand it to include confidential communica- tions in other denominations. In its modern form, the privilege is not restricted to confessions, but applies more broadly to encompass any confiden- tial communications to a clergy person of any denomination, recognizing:

the essential role that clergy in most churches perform in providing confiden- tial counsel and advice to their communi- cants in helping them to abandon

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wrongful or harmful conduct, adopt higher standards of conduct, and reconcile them- selves with others and God.

Scott v. Hammock, 870 P.2d 947, 952 (Utah 1994).

California adopted the modern form of the priv- ilege in 1965 when it amended the statute to elim- inate its application only to confessions and to expand it to all communicant-clergy confidential communications. See 7 Cal. L .Revision Commis- sion Rep. 201 (1965) (“Section 1032 extends the protection that traditionally has been provided only to those persons whose religious practice involves ‘confessions.’”).

Despite the clear intention of the legislature to adopt a non-discriminatory penitent-clergy privi- lege statute, the order of the California Superior Court in this case, and the governing precedent of the Catholic Archbishop case upon which it relies, establish an unconstitutional denominational preference as the law of California. It is no exag- geration to say that Catholic Archbishop, although an intermediate court opinion, is now well estab- lished as governing law in the state, has been treated as such by separate panels of the Califor- nia Court of Appeal, and has been followed throughout the state and in numerous California opinions. See, e.g., People v. Simental, No. E046303, 2009 WL 2426334, at *4-6 (Cal. Ct. App. Aug. 10, 2009) (unpublished) (denying privilege as to practices of Jehovah’s Witnesses); Candice S. v. Superior Court, No. H032683, 2008 WL 3274099, at *7 (Cal. Ct. App. Aug. 11, 2008) (unpublished) (same); Doe 2 v. Superior Court, 34 Cal. Rptr. 3d 458, 467 (Ct. App. 2005) (denying privilege as to practices of United Methodist Church). Similarly,

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the leading California treatises simply accept Catholic Archbishop’s denominational preference as governing law. See William Wegner et al., Cal- ifornia Practice Guide: Civil Trials and Evidence § 8:2241 (Eli Chernow, J. (ret.), ed. 2012); 2 Witkin, California Evidence § 245 (5th ed. 2012).

The California Supreme Court and lower Cali- fornia courts have had numerous opportunities to

correct this issue of grave constitutional signifi- cance to religious organizations, but have failed to do so. See, e.g., People v. Simental, No. E046303 (Cal. Nov. 19, 2009) (denying review); Candice S.

v. Superior Court, No. S166030 (Cal. Nov. 12,

2008) (same); Roman Catholic Archbishop of L.A.

v. Superior Court, No. S136932 (Cal. Nov. 16,

2005) (same). In this case as well, both the Cali- fornia Supreme Court, over the dissent of two Jus- tices, and the California Court of Appeal accepted the denominational preference established in Catholic Archbishop as the law of the state and refused to grant review. 8

Discriminatory compelled disclosure of a parish- ioner’s confidential auditing files is itself a con- stitutional harm against which the Religion Clauses guard; that harm cannot be undone once

8 Notably, the Catholic Archbishop and the priests did not raise the denominational preference issue in the California Court of Appeal or in their petitions for writ of certiorari, and the California Court of Appeal did not consider the issue. The reason may be that it would have been difficult or awkward for the Catholic Church to argue that the State’s proffered con- struction of the statute created a denominational preference in favor of the traditional Catholic confessional and disfavored the sui generis investigatory procedures of the Archdiocese. That may be a preference, but it would not constitute a denomina- tional preference.

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the compelled disclosure has occurred. The Church should not be put to the Hobson’s choice of obeying its religious obligations at the risk of discovery sanctions, including a default, and obeying a court order mandated by California’s plainly unconsti- tutional discriminatory privilege statute. Numer- ous decisions by the Court recognize that irremediable harm from an infringement of core First Amendment values may take place not only at the ultimate conclusion of an action, but during ongoing litigation. Here, the Superior Court’s order, and its endorsement by the higher Califor- nia courts pursuant to the state-law rule of Catholic Archbishop, imposes a denominational preference that violates the Court’s core Estab- lishment Clause and Free Exercise Clause hold- ings, and threatens religious practitioners throughout California with an ongoing infringe- ment of their First Amendment rights, in a man- ner that will generally be difficult for this Court to review. It is, accordingly, an order ripe for review. 9

9 The Court has often acted to preserve important First Amendment values when such values are threatened by actions of state courts taken during the course of ongoing litigation, so long as the state court decision “might seriously erode federal policy.” Cox Broad. Corp. v. Cohn, 420 U.S. 469, 484-85 (1975). For example, in Oklahoma Publishing Co. v. District Court In and For Oklahoma County, 430 U.S. 308, 310-12 (1977), the Court granted certiorari to review a state trial court’s interim order—which, as here, petitioner had sought to correct by writ proceedings in the state courts—prohibiting disclosure of the name or picture of a minor child in violation of this Court’s First Amendment jurisprudence. See also Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 55 (1989) (“Adjudicating the proper scope of First Amendment protections has often been recognized by this Court as a ‘federal policy’ that merits application of an

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B. California’s Unprecedented Denomi- national Preference Substantially Burdens the Core Confessional Prac- tices of Many Religions, Contrary to Decisions of Numerous State Appel- late Courts, Which Construe Penitent- Clergy Privilege Statutes to Avoid Denominational Preferences

Certiorari should be granted because the order of the Superior Court below and the Court of Appeal’s decision in Catholic Archbishop upon which it is based are unprecedented in modern times in this Nation in the manner in which they needlessly impose discrimination among religions. By construing the privilege defined by California Evidence Code section 1032 to apply exclusively to those denominations whose religious doctrine mandates that confidential communications to clergy be made only to a single clergy person who may not disclose them to one or a limited number of other clergy, while denying the privilege to

exception to the general finality rule.”); Nat’l Socialist Party of Am. v. Vill. of Skokie, 432 U.S. 43, 44 (1977) (holding state Supreme Court order denying stay of injunction order pro- hibiting Nazi party from marching sufficiently final for Supreme Court review); Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 247 n.6 (1974) (intervening after state court’s reversal and remand of lower state court’s denial of an injunc- tion, noting, “Whichever way we were to decide on the merits, it would be intolerable to leave unanswered, under these cir- cumstances, an important question of freedom of the press under the First Amendment; an uneasy and unsettled consti-

tutional posture

free press”); Org. for a Better Austin v. Keefe, 402 U.S. 415, 418, (1971) (holding state appellate court’s order sustaining pre-

liminary injunction that infringed on significant First Amend- ment values sufficiently final to permit review by this Court).

could only further harm the operation of a

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denominations, such as Scientology, whose doc- trine mandates that such confidences be commu- nicated from the clergy person receiving the confidence to senior clergy in furtherance of the purpose of the communication, California creates an impermissible denominational preference. The only difference between the confidential commu- nications at issue in this case and confidential communications that follow the model of the Catholic Confessional is that, under the discipline and doctrine of the Scientology religion, plaintiff’s confidential communications were confidentially disclosed by auditors to select senior clergy.

The denominational preference by no means works only against the Scientology religion. As reported cases demonstrate, numerous denomi- nations provide for confidential ”penitent”-clergy communications where the privileged disclosure either is made to more than one clergy person and/or is disclosed by the clergy person receiving the confidence to other clergy persons, all in fur- therance of the discipline and practice of that par- ticular denomination. In each such case, such communication was deemed consistent with and did not destroy the privilege. Indeed, the highest and intermediate appellate courts of at least sev- eral states have held that penitent-clergy privi- lege statutes must be construed to avoid discrimination among denominations.

In Reutkemeier v. Nolte, 161 N.W. 290 (Iowa 1917), one of the earliest privilege cases, a mem- ber of a Presbyterian congregation made confi- dential communications, including confession of sin, to her pastor and three ruling elders of the congregation, pursuant to the “Confession of

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Faith” of the Presbyterian Church, “as well as other standard booklets setting forth the doctrine and policy of that denomination.” Id. at 292. The Iowa Supreme Court upheld the claim of privilege, holding that the communication was confidential and the elders were “ministers of the gospel.” Id. at 293.

The Church of Jesus Christ of Latter-Day Saints likewise provides for confidential communications to one or more clergy, as well as transmission of such communications to senior clergy in further- ance of the purpose of the communication. In Scott v. Hammock, 133 F.R.D. 610 (D. Utah 1990), a member of that church made a non-confessional communication to a single Church Bishop to obtain “ecclesiastical guidance,” which was con- sidered confidential within the doctrines of the Church. Id. at 613. The Bishop thereupon “trans- mitted the information to a ‘Stake’ bishop’s court” which had ecclesiastical authority to review the communication. Id. Warning that a construction of the statute to apply only to traditional confessions “would raise a distinct concern about respecting an establishment of religion by advancing one reli- gion and inhibiting another,” the court not only held that the original communication from the congregant to the bishop was confidential and privileged, but further held that the bishop’s sub- sequent communication to the bishop’s court like- wise remained privileged:

In this case, the communication was passed vertically from one religious authority up to another within the church hierarchy. Such communication was nec- essary as a part of the church sanction

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process and in carrying out church disci- pline. The need for the privilege to follow the communication in such circumstances is obvious and appropriate. Otherwise, the privilege would be destroyed and the con- fidence abridged. Therefore, the repeating of the defendant’s statement and its com- munication to superior religious authori- ties must be deemed cloaked with confidentiality and privileged from forced disclosure.

Id. at 619 (emphasis added). The district court certified the questions to the Supreme Court of Utah, which likewise concluded that the commu- nications were privileged. Scott v. Hammock, 870 P.2d 947 (Utah 1994).

A subsequent case provides greater detail con- cerning the Church of Jesus Christ of Latter-Day Saints’ doctrine in which confidential communi- cations are transmitted from one clergy person to others. In Doe v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, 90 P.3d 1147 (Wash. Ct. App. 2004), a penitent confessed his sins first to a bishop and then to the Stake bishop’s court. Id. at 1154. The court explained that under church doctrine, the penitent must repeat his communication to the Stake court to achieve salvation. See id. The Stake court included eighteen clergy, including the original bishop, the Stake president, his two counselors, and twelve “high priests,” who were essential to the furtherance of the religious purpose of the ecclesiastical procedure. Id. at 1152-53. Moreover, if the Stake imposes serious ecclesiastical disci- pline, it is required to submit a Report of Church Disciplinary Action to the senior officials of the

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Church. Id. at 1150. Emphasizing that all such internal communications were confidential and remained secret except to those to whom the com- munications were made, the Washington Court of Appeals upheld the claim of privilege, id. at 1154, finding that the privilege was not “vitiated” by communication of the communication to a third person “when the third person is another member of the clergy,” id. at 1153 (quoting State v. Martin, 975 P.2d 1020, 1027 (Wash. 1999)).

State v. MacKinnon, 288 Mont. 329, 957 P.2d 23 (Mont. 1988), involved confidential communica- tions made to clergy of the Missoula Christian Church. A congregant of that church made confi- dential communications to two members of the clergy (as well as in the presence of his ex-wife). Id. at 24-25. The trial court granted MacKinnon’s motion to suppress the statements made in those communications, as well as a document relating to the communications, recognizing that such com- munications were confidential within church prac- tice. Id. 10

10 The trial court in MacKinnon found that certain other communications were not privileged. MacKinnon, 957 P.2d at 24-25. The Montana Supreme court upheld that determination because, on the specific facts of that case, those communications had not been directed to the clergy in their professional capacities. Notably, the Montana Supreme Court did not conclude that communication to more than a single clergyperson would waive the privilege or rely on such a proposition as an alternative ground for its decision. Indeed, the Montana Supreme Court in MacKinnon specifi- cally adopted a broad interpretation of its clergy-penitent privilege, noting the importance of avoiding a construction that “might be discriminatorily applied because of differing judicial perceptions of a given church’s practices or religious doctrine.” Id. at 28.

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Thus, the orders of the courts below treat the confidential communicant-clergy statements made in numerous churches, including the Presbyterian, Jesus Christ of Latter-Day Saints, Scientology, and at least some Christian churches, in a dis- parate and unfavorable manner compared to churches where such communications are made exclusively to a single clergy who does not disclose the communication to another clergy.

In addition to the denominations that require or permit communicant-clergy confidential commu- nications to be shared by other members of the clergy, numerous denominations permit such com- munications to be made in the presence of one or more non-clergy members, usually close family, where such presence is necessary or in further- ance of the religious purpose of the communica- tion, which would also appear to run afoul of California’s strict one parishioner-one clergy priv- ilege. See, e.g., In re Grand Jury Investigation, 918 F.2d 374, 384, 385 n.14 (3d Cir. 1990) (involving communications to a Lutheran minister, court held “the presence of third parties, if essential to and in furtherance of the communication, should not void the privilege,” emphasizing contrary rule risked “the prospect of restricting the privilege to Roman Catholic penitential communications [which would] raise[ ] serious first amendment concerns”). 11 Thus, California’s privilege statute

11 See also, State v. Archibeque, 221 P.2d 1045, 1050 (Ariz. Ct. App. 2009) (holding confession to Mormon bishop in presence of wife privileged, because confession was con- fidential and held in furtherance of repentance process under church doctrine); Alt. Health Care Sys. v. McCown, 514 S.E.2d 691, 697-98 (Ga. Ct. App. 1999) (holding com- munications made by mother and two daughters, in con-

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also creates a denominational preference against the numerous denominations—including Luther- ans, Baptists, Methodists, and Mormons—that, in doctrinally prescribed circumstances, permit such communications to be made in the presence of third parties where permitted by church doc- trine. 12

Such denominational preferences in favor of one model of confession and against confidential com- munications in other religions has been disap- proved by numerous state and federal courts. In re Grand Jury Investigation; Scott, 133 F.R.D. at 618-19; Bragg, 824 N.W.2d at 186 (broadly con- struing privilege statute “lest it inadvertently show preference to one religion over another and

templation of death of husband/father, to minister of United Methodist Church “to provide pastoral counseling, spiritual guidance and support,” pursuant to church doctrine, privi- leged: privilege is not “waived by the presence of more than one person seeking spiritual comfort or counseling”); State v. Ellis, 756 So. 2d 418, 421 (La. Ct. App. 1999) (holding com- munications to Baptist minister in presence of “victim” of alleged aggravated assault privileged because made in expectation of confidence and minister was acting in “his professional capacity as a spiritual adviser” to two congre- gants of his church); People v. Bragg, 824 N.W.2d 170, 187 (Mich. Ct. App. 2012) (holding defendant’s communication to Baptist minister in presence of his mother privileged because it was “made in the course of discipline enjoined by the Baptist Church,” and was confidential).

12 The issue of communications in the presence of non- clergy third parties is not directly raised in this case because none of the communications plaintiff made to her Scientol- ogy clergy were in the presence of a third party, even another minister. The Court, however, may wish to address the broader issue as well, to insure that the California priv- ilege is applied in a constitutionally proper manner.

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thereby violate the Establishment Clause”); MacKinnon, 957 P.2d at 27-28 (quoting and adopt- ing Scott, 870 P.2d 947); Scott, 870 P.2d at 954; State v. Martin, 137 Wash.2d at 789 (citing and quoting MacKinnon).

II. CALIFORNIA’S DENOMINATIONAL PREFERENCE VIOLATES THE COURT’S ESTABLISHMENT CLAUSE AND FREE EXERCISE CLAUSE JURISPRUDENCE

California’s Denominational Prefer- ence Conflicts with the Court’s Set- tled Establishment Clause Cases

Although the Court has never directly addressed

the constitutional requirements for state-created penitent-clergy privileges, it has repeatedly made clear that the requirement of governmental denominational neutrality lies at the core of the Religion Clauses of the First Amendment. “The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state

can pass laws

or prefer one religion

over another.” Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1, 15 (1947). Madison’s Memorial and Remonstrance Against Religious Assessments, which formed the basis for the adoption of the reli- gion clauses in the First Amendment, emphasized that denominational neutrality was essential to the concept of religious freedom.

which aid one religion

nor the Federal Government

A.

Madison’s vision—freedom for all religion being guaranteed by free competition between religions—naturally assumed that every denomination would be equally

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at liberty to exercise and propagate its beliefs. But such equality would be impos- sible in an atmosphere of official denomi- national preference.

Larson v. Valente, 456 U.S. 228, 245 & n.22 (1982)

(quoting The Federalist No. 51 (James Madison)); see also Wallace v. Jaffree, 472 U.S. 38, 69 (1985) (O’Connor, J., concurring); Epperson v. Arkansas, 393 U.S. 97, 104, 106 (1968) (“The First Amend- ment mandates governmental neutrality between

The State may not adopt which ‘aid or oppose’

any

Torcaso v. Watkins, 367 U.S. 488, 495 (1960) (“Neither [a State nor the Federal Government]

can constitutionally pass laws or impose require-

ments which aid

belief in the existence of God as against those reli- gions founded on different beliefs.”).

Application of the Establishment Clause’s pro- hibition of denominational preferences is not lim- ited to cases where the government in terms explicitly has discriminated among denomina- tions. Rather, even where the government action has been expressed in terms that might appear facially neutral, this Court has not hesitated to strike down statutes or other government action when the effect upon religious practices is to fur- ther such preferences. Thus in Larson, the Court found unconstitutional on its face a solicitation statute that required churches to disclose the use of donated funds, but exempted those churches that received over 50% of their donations from members. The Court rejected the argument that because the 50% rule on its face did not single out

those religions based on a

This prohibition is absolute.”);

religion and programs or practices

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any denomination for unfavorable treatment and utilized “secular criteria,” it did not create a denominational preference:

the provision effectively distinguishes between “well-established churches” that have “achieved strong but not total finan- cial support from their members,” on the one hand, and “churches which are new and lacking in a constituency, or which, as a matter of policy, may favor public solic- itation over general reliance on financial support from members,” on the other hand.

456 U.S. at 246, n.23.

Similarly, in Fowler v. Rhode Island, 345 U.S.

67 (1943), the Court held unconstitutional a

facially neutral statute providing, “No person shall address any political or religious meeting in any public park,” which had been applied to arrest a Jehovah’s Witnesses minister. Id. at 67-68. The State conceded that the ordinance did not prohibit religious services in the park, but only speeches of the kind Fowler gave, which the State maintained was not a religious service. Id. at 69. The Court held that the State’s attempt to distinguish among denominations as to what was a religious service violated both the Establishment and Free Exercise Clauses. Id. at 69-70. In words especially perti- nent here, the Court explained, “Appellant’s sect has conventions that are different from the prac- tices of other religious groups,” id. at 69, but that “it is no business of courts to say that what is a religious practice or activity for one group is not religion under the protection of the First Amend- ment,” id. at 70. “Nor is it in the competence of

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courts under our constitutional scheme to approve, disapprove, classify, regulate, or in any manner control” religious practices, which would be “merely an indirect way of preferring one reli- gion over another.” Id.

As Larson teaches, state imposition of a denom- inational preference is subject to strict scrutiny, and can only be upheld where the preference is in furtherance of a state interest of the highest order and achieves that end by the least restrictive means. 456 U.S. at 246. California has already determined that no compelling interest prohibits application of a penitential-clergy privilege, and even took steps to eliminate a denominational preference in favor of the Catholic and other reli- gions by expanding the scope from “confessions” to all confidential communications, 7 Cal. L. Revi- sion Commission Rep. 201 (1965). There can be no defensible reason, compelling or otherwise, to extend the privilege for communications made to

a single clergy person, but to refuse to do so for communications made to two or three clergy or to confidential communications that one clergy per- son discloses to another according to the discipline and doctrine of the faith. The State cannot estab- lish an interest of the highest order to justify denying a religious exemption to one practice where it already has granted a religious exemp- tion to another: “It is established in our strict scrutiny jurisprudence that a law cannot be regarded as protecting an interest of the ‘highest

when it leaves appreciable damage to

order’

that supposedly vital interest unprohibited.” Gon- zales v. O Centro Espirita Beneficente Uniao Do

Vegetal, 546 U.S. 418, 433 (2006) (quoting Church

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of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 547 (1993)) (internal quotation marks omitted).

California’s Denominational Prefer- ence Conflicts with the Court’s Set- tled Free Exercise Clause Cases

The Free Exercise and Establishment clauses are mutually supportive, indeed congruent, with respect to state-created denominational prefer- ences. Thus, in Larson, the Court explicitly held that a denominational preference violated the Free Exercise Clause as well as the Establishment Clause. 456 U.S. at 245 (“Free exercise thus can be guaranteed only when legislators—and voters —are required to accord to their own religions the very same treatment given to small, new, or unpopular denominations.”).

In this case, the burden that Evidence Code sec- tion 1032 imposes on the free exercise of the Sci- entology religion not only is substantial, but threatens the very way in which Scientologists practice their religion. As shown, the central reli- gious practice of the Scientology religion is audit- ing. The success of auditing in addressing the parishioner’s spiritual needs and development, however, depends upon the guarantee that the auditing communications will not be disclosed outside the auditing process, including the super- visory participation of senior clergy. If a parish- ioner has committed a wrongful or potentially criminal act, he likely will not disclose such an act to an auditor if he knows that the government or a civil party may subpoena his auditing file and obtain his auditing communications. Pursuant to

B.

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core Scientology religious doctrine, that failure to disclose the act and to deal with its consequences through the auditing process will hinder the parishioner’s spiritual progress and even his sal- vation.

Thus, unless Scientology churches can assure parishioners of the inviolability of the auditing process and auditing files, the very practice of Sci- entology cannot proceed in the manner required by its religious doctrine. And the only way the Sci- entology religion can ensure the confidentiality of the auditing process in California would be to modify Scientology religious doctrine to conform to the dictates of the California statute—which pro- tects only penitent-clergy communications on the Catholic confessional model—an unacceptable, indeed, impossible course for religious doctrinal reasons. California’s burdening of those religious practices that do not conform to the State’s pre- ferred confessional model, however, cannot with- stand even the most cursory Free Exercise Clause scrutiny.

Critically, the free exercise claim here does not require the Court to determine whether, in the absence of any statutorily created privilege, there is a free exercise right to a communicant-clergy privilege that would provide a general exemption from the legal duty to give evidence created by neutral laws of general applicability. The free exercise claim here is founded upon the fact that the Legislature chose to recognize a religious priv- ilege, i.e., an exemption from the generally appli- cable duty to provide evidence, yet chose to extend the religious privilege only to some denominations and not to others. California Evidence Code sec-

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tion 1032 most decidedly is not a law of general application neutral as to religion; rather it is a law that was intended to and does apply only to religious practice, and does so in a discriminatory fashion.

When a state adopts a statute that specifically addresses a religious practice and relieves a bur- den on the exercise of the religious practices of some religions while not exempting others from that burden, its actions violate the Free Exercise Clause of the First Amendment, unless justified by the most compelling of government interests and achieved by the narrowest means available. Church of the Lukumi Babalu Aye, 508 U.S. at 531-32, 546 (“A law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny[,]

must advance ‘interests of the highest order’ and must be narrowly tailored in pursuit of those interests.”). In applying its free exercise review, “The Court must survey meticulously the cir- cumstances of governmental categories to elimi- nate, as it were, religious gerrymanders.” Id. at

534

(quoting Walz v. Tax Comm’n, 397 U.S. 664,

696

(1970) (Harlan, J., concurring)).

As discussed above with respect to petitioner’s Establishment Clause claim, California Evidence Code section 1032, as construed by the California courts, cannot survive strict scrutiny. Given that California long has recognized the existence of the privilege, there can be no rational argument that it has a compelling interest in applying that priv- ilege only to certain denominations or practices and not to others, based on their confessional doc- trines and practices. See Gonzales, 546 U.S. at

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433. Such an interest not only would not be com- pelling, it would be illegitimate: “To give exemp- tion to some denominations and not to all offends the equality with which all men enter society.” John T. Noonan, Jr., The Lustre of Our Country:

The American Experience of Religious Freedom 73 (1998) (discussing James Madison, Memorial and Remonstrance Against Religious Assessments); see Larson, 456 U.S. at 245.

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CONCLUSION

For the reasons stated the Court should grant the petition.

Dated: June 24, 2013

Respectfully submitted,

ERIC M. LIEBERMAN

Counsel of Record

DAVID B. GOLDSTEIN RABINOWITZ, BOUDIN, STANDARD, KRINSKY, & LIEBERMAN, P.C.

45 Broadway, Suite 1700 New York, New York 10006 (212) 254-1111 elieberman@rbskl.com

BERT H. DEIXLER LAURA BRILL N ICHOLAS F. D AUM KENDALL BRILL & KLIEGER LLP

10100 Santa Monica Blvd., Suite 1725 Los Angeles, California 90067 (310) 556-2700

Attorneys for Petitioner Church of Scientology International

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APPENDIX

1a

S210314

IN THE SUPREME COURT OF CALIFORNIA

En Banc

Filed May 15, 2013

CHURCH OF SCIENTOLOGY INTERNATIONAL, Petitioner,

—v.—

SUPERIOR COURT OF LOS ANGELES COUNTY et al.,

Respondents,

LAURA ANN DECRESCENZO et al.,

Real Parties in Interest.

The petition for review and application for stay are denied. Baxter and Chin, JJ., are of the opinion the peti- tion should be granted.

/s/ CANTIL-SAKAUYE

Chief Justice

35237 • Rabinowitz • APPENDIX part: 1 (revised 12/1/08)

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION 3

April 25, 2013

B247794

Los Angeles County No. BC411018

CHURCH OF SCIENTOLOGY INTERNATIONAL, Petitioner,

—v.—

SUPERIOR COURT OF LOS ANGELES COUNTY et al.,

Respondents,

LAURA ANN DECRESCENZO et al.,

Real Parties in Interest.

THE COURT:

The petition for writ of Mandate-Prohibition and request for Stay are denied.

35237 • Rabinowitz • APPENDIX part: 2 (revised 12/1/08)

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SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES

DATE: 03/06/13

HONORABLE RONALD M. SOHIGIAN JUDGE

HONORABLE

#1

JUDGE PRO TEM

V. KRBOYAN, CRT ASST

Deputy Sheriff

E. GARCIA

DEPUTY CLERK

DEPT. 41

ELECTRONIC RECORDING MONITOR

L . W. CORSON, CSR# 7135

8:30 am

BC411018

Reporter

LAURA ANN DECRESCENZO

vs

CHURCH OF SCIENTOLOGY INTERNATIONAL

35237 • Rabinowitz • APPENDIX part: 3 (revised 12/1/08)

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Plaintiff Counsel

KATHRYN SALDANA (X) SINDEE M. SMOLOWITZ

Defendant Counsel

ERIC M. LIBERMAN (X) ROBERT E. MANGELS (X) BERT H. DEIXLER (X)

NATURE OF PROCEEDINGS:

MOTION OF PLAINTIFF TO COMPEL COM-

PLIANCE

ORDERS OR ALTERNATIVELY FOR TERMI- NATING SANCTIONS;

DISCOVERY

WITH

THE

COURT’S

Matter is called for hearing.

The Court having read and considered the moving papers now hears arguments.

After arguments, the Court now rules as follows:

Plaintiffs Motion to Compel Compliance is GRANTED. Plaintiffs Motion for Terminating Sanctions is DENIED.

Grounds for the Court’s ruling are as fully reflected moving papers of the motion grated, and the opposing papers of the denied motion.

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Compliance with the Court’s order must take place by 5/6/13.

Notice waived.

MINUTES ENTERED

03/06/13

COUNTY CLERK

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6a

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

DEPARTMENT 41 HON. RONALD M. SOHIGIAN, JUDGE CASE NO. BC411018

LAURA ANN DECRESCENZO, AKA LAURA A. DIECKMAN,

VS.

PLAINTIFF,

CHURCH OF SCIENTOLOGY INTERNATIONAL, A CORPORATE ENTITY, AND DOES 1-20,

DEFENDANTS.

REPORTER’S TRANSCRIPT OF PROCEEDINGS

WEDNESDAY, MARCH 6, 2013

APPEARANCES:

SEE ATTACHED

LA WANNA WALTERS CORSON, CSR NO. 7135, RPR OFFICIAL REPORTER

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APPEARANCES:

FOR PLAINTIFF:

BLUMBERG LAW CORPORATION

BY:

SINDEE M. SMOLOWITZ, ESQ.

444

WEST OCEAN BOULEVARD

SUITE 1500 LONG BEACH, CALIFORNIA 90802

METZGER LAW GROUP

BY:

KATHRYN SALDANA, ESQ.

401

EAST OCEAN BOULEVARD

SUITE 800 LONG BEACH, CALIFORNIA 90802

FOR DEFENDANT CHURCH OF SCIENTOLOGY, INTERNATIONAL:

KENDALL, BRILL, KLIEGER

BY:

BERT H. DEIXLER, ESQ. 10100 SANTA MONICA BOULEVARD SUITE 1725 LOS ANGELES, CALIFORNIA 90067

NICHOLAS F. DAUM, ESQ.

FOR DEFENDANT CHURCH OF SCIENTOLOGY, INTERNATIONAL:

RABINOWITZ, BOUDIN, STANDARD, KRINSKY & LIEBERMAN, P.C.

BY:

45 BROADWAY SUITE 1700 NEW YORK, NEW YORK 10006

ERIC M. LIEBERMAN, ESQ.

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FOR DEFENDANT RELIGIOUS TECHNOLOGY:

JEFFER, MANGELS, BUTLER & MITCHELL

BY:

1900 AVENUE OF THE STARS 7TH FLOOR LOS ANGELES, CALIFORNIA 90067

ROBERT E. MANGELS, ESQ.

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CASE NUMBER: BC411018

CASE NAME: DECRESCENZO VS. CHURCH OF SCIENTOLOGY

LOS ANGELES, CALIFORNIA WEDNESDAY, MARCH 6, 2013

DEPARTMENT 41 HON. RONALD M. SOHIGIAN, JUDGE

REPORTER: LAWANNA WALTERS CORSON, CSR NO. 7135, RPR

TIME: 4:00 P.M.

APPEARANCES: (AS NOTED ON TITLE PAGE.)

THE COURT: DECRESCENZO AGAINST THE CHURCH OF SCIENTOLOGY. MS. SALDANA: GOOD AFTERNOON, YOUR HONOR. KATHRYN SALDANA OF METZGER LAW. MS. SMOLOWITZ: SINDEE SMOLOWITZ OF BLUMBERG LAW CORPORATION, ON BEHALF OF PLAINTIFF. MR. DEIXLER: GOOD AFTERNOON, YOUR HONOR. BERT DEIXLER OF KENDALL, BRILL & KLIEGER, ON BEHALF OF THE CHURCH OF SCIENTOLOGY. MR. LIEBERMAN: ERIC LIEBERMAN OF THE RABINOWITZ FIRM IN NEW YORK, CO-COUN-

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SEL TO MR. DEIXLER, CHURCH OF SCIEN- TOLOGY. MR. MANGELS: GOOD AFTERNOON. ROBERT MANGELS, ON BEHALF OF RELI- GIOUS TECHNOLOGY CENTER.

GONE

THROUGH ALL YOUR PAPERS. DO YOU WANT TO SAY ANYTHING MORE, PLAINTIFFS? MS. SMOLOWITZ: GO AHEAD. MS. SALDANA: YES, I APOLOGIZE. I JUST WANT TO REITERATE A FEW POINTS THAT WERE MADE IN OUR REPLY BRIEF. AS THE COURT KNOWS, THE PRIVILEGE LOG CONTAINS A NUMBER OF DESIGNA- TIONS DESCRIBING DOCUMENTS THAT WOULD INVOLVE THIRD PERSONS. AND PUR- SUANT TO BOTH STATUTORY AND CASE LAW IN CALIFORNIA, THE CLERGY PENITENT PRIVILEGE DOES NOT APPLY— THE COURT: PURSUANT TO WHAT? MS. SMOLOWITZ: BOTH THE STATUTORY AND CASE LAW IN CALIFORNIA, THE CLERGY PENITENT PRIVILEGE DOES NOT APPLY TO ANY COMMUNICATION THAT INVOLVES A THIRD PERSON. WITH OUR MOTION, WE SUBMITTED A DECLARATION FROM THE PLAINTIFF, INDI- CATING THAT IT WAS HER UNDERSTANDING THAT ALL OF HER P.C. FILES COULD BE REVIEWED BY OTHER THIRD PERSONS. WE ALSO SUBMITTED A DECLARATION BY MS.

THE

COURT:

ALL

RIGHT.

I

HAVE

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DECRESCENZO, WHOSE CURRENT NAME IS DICKMAN, INDICATING THAT A NUMBER OF INDIVIDUALS WERE IDENTIFIED BY DEFEN- DANT C.S.I. AS BEING HER MINISTERS. SHE IS UNAWARE OF, AND SHE WAS NEVER AUDITED BY. AND GIVEN THE FACT THAT THIRD PER- SONS COULD REVIEW ANY OF HER COMMU- NICATIONS OR ANY OF HER P.C. FOLDERS, WE BELIEVE THAT THE CLERGY PENITENT PRIVILEGE DOES NOT APPLY. DEFENDANTS HAVE FAILED TO ESTABLISH THAT IT APPLIES, AND THEY SHOULD BE ORDERED TO PRODUCE THE REQUESTED DOCUMENTS. THE COURT: HOW DOES THAT APPLY TO THE—HOW DO YOU DEAL WITH THE CONTENTION MADE BY THE DEFENDANTS THAT THE WAY THIS RELIGION IS SET UP, THE METHOD INVOLVES, NECESSARILY, UNNAMED PEOPLE WHO ARE MINISTERS, EVEN THOUGH SHE DOES NOT CONFRONT THEM, OR FOR THAT MATTER, I GATHER, EVEN KNOW THAT THEY EXIST? AND THE REASON I SAY THAT, I ASK THAT QUESTION, FIRST OF ALL, BECAUSE IT IS IN THE RECORD. THAT’S THE WAY THEY TALK ABOUT IT. SECONDLY, ALTHOUGH THEY HAVEN’T QUITE MADE THIS POINT YET, THEY ARE SAYING, LOOK, IF YOU—THEY WOULD SAY— WHEN THIS CASE GETS TO THE SUPREME COURT OF THE UNITED STATES OR ELSE- WHERE, THEY ARE GOING TO SAY, LOOK, IF YOU CONSTRUE THE PRIVILEGE IN THE WAY

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THAT THE PLAINTIFF CONTENDS IT SHOULD BE CONSTRUED, THAT IS BASICALLY A DETERMINATION OF THE TERM “MINISTER,” AS THE DEFENSE USES IT, WHICH IS SUC- CESSIVELY BROAD, COMPREHENDING THE UNNAMED NUMBER AND THE—AN UNSPEC- IFIED NUMBER AND UNNAMED PERSON, YOU ARE, IN EFFECT, CONFOUNDING OUR RIGHTS AND THE FREE EXERCISE, UNDER THE FREE-EXERCISE RIGHTS. FREE EXER- CISE FALLS TO THE FIRST AMENDMENT. WHAT YOU ARE DOING IS PRESCRIBING, IN ESSENCE, A CERTAIN STYLE OR METHOD OF RELIGIOUS MINISTRATION. BUT OURS IS A RELIGION THAT HAS BEEN ADJUDICATED, AND IT—WE SAY WE HAVE, AND THE RECORD IS UNDISPUTED THAT WE DO HAVE, AT LEAST TO THIS EXTENT, THIS TEAM MIN- ISTER OR CONSECUTIVE OR MULTIPLE MIN- ISTER SITUATION. HOW WOULD YOU DEAL WITH THAT, RECOGNIZING, AS I SAY, THAT THE ISSUE LURKING BELOW THE SURFACE IS SOMETHING THAT IS CONNECTED WITH THE FREE-EXERCISE CLAUSE AND WITH THE CORRESPONDING RIGHTS IN THE CALI- FORNIA CONSTITUTION? LET ME PUT YOU A HYPOTHETICAL CASE THAT MIGHT INDICATE WHAT THEY ARE TALKING ABOUT. LET’S SAY THERE WERE A CONCEPTION IN THE MIND OF THE CALI- FORNIA LEGISLATURE AND THE CALIFOR- NIA GOVERNOR, WHEN THE EVIDENCE CODE WAS ENACTED, THAT—PARDON ME—RELI- GIOUS MINISTERS WERE ALL MEN.

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SO LET’S SAY THAT THE CODE HAD BEEN WRITTEN TO SAY—THE EVIDENCE CODE HAD BEEN WRITTEN TO SAY THE DEFINI- TION OF A CLERGY PERSON IS A MAN WHO ACTS AS A MINISTER, IN A RELIGIOUS CON- TEXT AND SO FORTH. AND LET’S SAY THERE WAS A RELIGIOUS DENOMINATION THAT SAID, WELL, MINISTRY, IN OUR RELIGION OR BRANCH OF RELIGION, INCLUDES FEMALES, TOO. WE HAVE ORDAINED FEMALE MINIS- TERS. SO THIS LEGISLATURE HAS, IN EFFECT, WRITTEN A STATUTE THAT VISU- ALIZES MALE PERSONS. WE USE FEMALE PERSONS. AND THAT CREATES A FREE- EXERCISE PROBLEM. AND YOU HAVE MADE THAT SWITCH BETWEEN MALE AND FEMALE; IN OTHER WORDS, THAT IS A SEC- TION OR AS FASHIONABLE TO SAY “GENDER- RELATED.” YOUR CONTENTION IS, OR THE PROBLEM THAT YOUR CONTENTION GIVES RISE TO, IS THE SINGULAR, PLURAL ISSUE, ONE OR MORE THAN ONE. AND ONE IN CONTACT WITH OR OTHERS BEHIND THE SCENES, NOT IN CONTACT WITH, HIS WORK IS ABSO- LUTELY NECESSARY IN THE WAY THIS PAR- TICULAR RELIGION IS ORGANIZED. HOW WOULD YOU TREAT THAT PROBLEM, WHICH, AS I SAY, IS IN THE CASE, AND WOULD BE GIVEN RISE TO? YOU WANT TO TALK ABOUT IT? MS. SMOLOWITZ: YEAH, I WILL RESPOND, YOUR HONOR. THE COURT: YEAH, GO AHEAD.

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MS. SMOLOWITZ: IN YOUR HYPOTHETICAL, WE ALL KNOW THAT GENDER DISPARITIES ARE PROTECTED UNDER THE CONSTITU- TION. THE COURT: NO, I AM NOT SAYING THIS INVOLVES—I AM NOT SAYING THAT THE HYPOTHETICAL THAT I GAVE YOU IS ONE IN WHICH YOU CAN MAKE REFERENCE TO EQUAL TREATMENT AS TO WHAT YOU REFERRED TO AS “GENDER DISPARITIES.” QUITE THE OTHER WAY AROUND. THERE WAS SOMETHING CALLED “EQUAL RIGHTS AMENDMENT,” AND THE EQUAL RIGHTS AMENDMENT HAS NOT BEEN PASSED. SO THERE IS ONLY CERTAIN SITU- ATIONS IN WHICH YOU HAVE GENDER DISPARITIES UNDER CONSTITUTIONAL PRO- TECTION. FOR EXAMPLE, IT WAS ONLY RECENTLY THAT THE ARMED FORCES CAME OUT WITH A RULING SAYING THAT WE ARE GOING TO PERMIT WOMEN IN COMBAT FUNCTIONS. AND BEFORE THAT, LITIGATION WOULD NOT HAVE ESTABLISHED THAT. WHAT I AM SAYING IS, THERE IS, AS THE DEFENSE IS GOING TO ARGUE AT SOME STAGE ALONG THE LINE, THEY ARE GOING TO SAY THERE IS, IN THE DESCRIPTION OF THIS PRIVILEGE, THE ONE THAT WE ARE ASSERTING, AN INHERENT FREE EXERCISE DEFEATING BIAS. AND THE FREE EXERCISE DEFEATING BIAS IS, IT VISUALIZES A SIN- GLE CLERGY PERSON, BUT IN ACTUALITY, WE USE MULTIPLES. WE HAVE IT DONE

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BY—AND YOU CAN USE ANY TERM YOU WANT. WE HAVE IT DONE BY COMMITTEE. WE HAVE IT DONE BY CONSECUTIVE OR VERTICAL ORGANIZATION. AND YOU CAN’T PROHIBIT US FROM DOING IT, BECAUSE THAT IS, ON OUR SHOWING, AS SIGNIFICANT A PART OF OUR RELIGIOUS OBSERVANCE AS HAVING THE PRIVILEGE APPLIED TO MALES AND FEMALES. AND IT IS NOT A GENDER DISPARITY POINT THAT IS INDICATED. IT IS A POINT THAT HAS TO DO, IN MY HYPOTHETICAL, WITH WHETHER THERE IS AN UNDERLYING PRESUMPTION OR UNDER- LYING ASSUMPTION ON THE PART OF THE LEGISLATIVE BODY, AND IN THE TEXT OF THE STATUTE, WHICH PRESCRIBES OR VISU- ALIZES A CERTAIN METHOD OF RELIGIOUS OBSERVANCE OR RELIGIOUS MINISTRATION, WHICH IS CONTRARY TO THE FACT. AND WHAT THEY WOULD SAY IS, YOU CAN’T DO THAT UNDER THE FREE-EXERCISE RIGHTS. IT IS NOT THAT THE—AND SO I HAVE TRIED TO GIVE YOU WHAT IS A HYPOTHETICAL WHICH DEALS WITH FREE EXERCISE.

I WOULD RECOGNIZE THAT I HAVE USED

THE EXAMPLE OF MALE/FEMALE, BUT I USE THE EXAMPLE TO PRESENT THAT TO YOU AND SAY, THE FREE-EXERCISE POINT IS THE ONE THAT IS IMPLICATED.

I AM NOT TRYING TO REVITALIZE ANY OF

THE DEBATES THAT HAVE GONE ON ABOUT THE PROPOSED EQUAL RIGHTS AMEND- MENT OR ANYTHING HAVING TO DO WITH THE GENDER-BASED DISCRIMINATION. I AM

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TALKING ONLY ABOUT THE FREE-EXERCISE POINT. HOW WOULD YOU TREAT THAT? MS. SMOLOWITZ: IF I MAY, YOUR HONOR— THE COURT: SURE. MS. SMOLOWITZ: —CONTINUE. AS CONTAINED IN OUR REPLY PAPERS, WE ADDRESS THAT ISSUE HEAD-ON, STARTING ON THE BOTTOM OF PAGE 5. AND THE FREE EXERCISE—THE RIGHT OF FREE EXERCISE DOES NOT RELIEVE AN INDIVIDUAL OF THE OBLIGATIONS TO COMPLY WITH A VALID AND NEUTRAL LAW OF APPLICABILITY, ON THE GROUND THAT THE LAW PROSCRIBES OR PRESCRIBES CONDUCT THAT IS RELI- GION PRESCRIBES OR PROSCRIBES. AND IT IS CITED TO THE EMPLOYMENT DIVISION OREGON CASE, OR AS WE SAY, CITED ANOTHER WAY, A LAW THAT IS NEUTRAL AND OF GENERAL APPLICABILITY NEED NOT BE JUSTIFIED BY A COMPELLING GOVERN- MENT INTEREST, WHICH IS THE UNDER BASIS OF THE FREE-EXERCISE CLAUSE, EVEN IF THE LAW HAS THE INCIDENTAL EFFECT OF BURDENING A PARTICULAR RELIGIOUS PRACTICE. CHURCH OF THE LUKUMI BABALU AYE, INC.— THE COURT: YEAH, THAT WAS THE ANIMAL SACRIFICE CASE. AND THEY WOULDN’T QUARREL WITH THAT AS A GENERAL PROPO- SITION. WHAT THEY WOULD SAY IS, WAIT A

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MINUTE. THAT’S DIFFERENT. THERE IS NO INCIDENTAL ISSUE HERE. WHAT WE ARE SAYING IS, THE WAY OUR DENOMINATION OR SECT OR PERSUASION WORKS, IS THAT WE HAVE THIS—I RECOG- NIZE THAT THE ENTIRE PROBLEM IS THAT THE EXTRAORDINARY OR HIGHLY UNUSUAL SET OF TENETS WHICH ARE REFERRED TO, AND THESE CONCEPTS, LIKE CLEAR AND— THAT THIS RELIGION STEMMED FROM THE WORK OF THIS WRITER AND SO FORTH. SO I RECOGNIZE THAT THIS IS KIND OF A CASE WHERE WE ALMOST HAVE DIFFICULTY ARTICULATING THE POINT, BECAUSE OF THE UNUSUAL QUALITIES OF THIS. BUT THEY ARE NOT SAYING, LOOK, WE ARE NOT SAYING THAT THIS IS INCIDENTAL OR—WHAT WE ARE SAYING IS, THE WAY WE WORK IS EXACTLY IN THIS WAY. AND IF YOU SAY THAT WE ARE NOT ENTITLED TO ASSERT THIS PRIVILEGE, WHAT YOU ARE SAYING IS THAT OUR METHOD OF ORGANI- ZATION IS, ITSELF, UNPROTECTED UNDER THE LAW, WITH RESPECT TO CONFIDEN- TIALITY. AND THAT IS A DIRECT ATTACK ON WHAT WE DO. MS. SMOLOWITZ: YES, YOUR HONOR, BUT —THAT’S THE POINT THAT ANY ENTITY THAT HAPPENS TO PASS MUSTER UNDER I.R.S. TAX EXEMPTIONS CAN THEN TRY TO CLOUD THEMSELVES IN A PRIVILEGE THAT DOESN’T MEET THE FACTORS OF FALLING UNDER A PROTECTED PRIVILEGE.

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THE COURT: THEY ARE NOT SAYING THAT THEY ARE A RELIGION BECAUSE THE I.R.S. HAS DECLARED THEM THAT. MS. SMOLOWITZ: WELL, THEY ARE SAYING THEY HAVE ALREADY BEEN DECLARED A RELIGION. THE COURT: THEY ARE SAYING THERE ARE EXPLICIT STATEMENTS IN CASE LAW THAT SAYS, YEAH, THIS IS A RELIGION. MS. SMOLOWITZ: BUT THERE IS CASE LAW IN CALIFORNIA, WHICH IS RIGHT ON POINT WITH RESPECT TO THIS CASE, WHICH IS THE ARCHDIOCESE CASE, WHICH IS CITED EXTENSIVELY IN OUR PAPERS, AS WELL AS THE DOE V SUPERIOR COURT CASE. AND IN THAT CASE, THE COURT HELD EXCLUSIVELY THAT THERE IS NO PRIVILEGE THAT APPLIES WHEN THERE IS DISCLOSURE TO A THIRD PERSON, EVEN IF IT IS THE ARCH- DIOCESE. THE COURT: THAT IS DISCLOSURE. THEY ARE NOT TALKING ABOUT DISCLOSURE. THEY ARE SAYING: THE WAY THIS ENGINE OF— MS. SMOLOWITZ: BUT THAT’S JUST HIDING UNDER IT, YOUR HONOR. THE COURT: WELL, I MEAN, YOU CAN SAY IT IS HIDING UNDER IT, BUT THE— MS. SMOLOWITZ: OF COURSE, IT IS. THAT’S WHAT THE CHURCH SAID. THAT’S WHAT THE CATHOLIC CHURCH SAID. THE WAY WE OPERATE HERE, IN ORDER TO TAKE CARE OF OUR PRIESTS, WHO ARE SUFFERING

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UNDER SOME SORT OF SEXUAL PROBLEM OR ANYTHING ELSE, IS THAT IT IS NECESSARY TO DISCLOSE IT TO THE HIGHER-UPS IN THE ORGANIZATION IN ORDER TO TREAT THAT PRIEST; AND THEREFORE— THE COURT: PRECISELY. MS. SMOLOWITZ: —THE THIRD-PARTY EXCEPTION, WHICH IS NOT IN OUR STATUTE, WHEN IT COMES TO THE CLERGY PRIVILEGE, APPLIES ANYWAY. THE COURT: PRECISELY. BUT IN THOSE CASES, IT WAS TO TREAT THE PRIEST. HERE, THEY ARE SAYING: WE ARE NOT TREATING THE FIRST IN-CONTACT MINIS- TER. WHAT WE ARE DOING IS TREATING THE PARISHIONER. WE ARE TREATING THE METHOD— MS. SMOLOWITZ: BUT THEY CLAIM SHE IS A MINISTER, TOO. THE COURT: WHO CLAIMS WHO IS A MIN- ISTER? MS. SMOLOWITZ: CHURCH OF SCIENTOL- OGY CLAIMS THAT OUR CLIENT IS ALSO A MINISTER. THE COURT: NO, BUT THAT’S NOT THE— MS. SMOLOWITZ: WELL, THAT’S NOT WHAT THE DEFENSE RAISED HERE BECAUSE IT DOESN’T WORK FOR THEM. BUT— THE COURT: WELL, I WAS TRYING TO GET TO THE END OF THE SENTENCE. WHAT I WAS SAYING IS, THAT IS NOT THE WAY THE FREE-EXERCISE PROBLEM COMES

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UP. THE FREE-EXERCISE PROBLEM COMES UP IN A DIFFERENT CONTEXT. THEY ARE SAYING: THIS IS THE WAY WE MINISTER TO THE PERSON AT THE END OF THE LINE. SO, FOR EXAMPLE, IF THE ARCHDIOCESE HAD SAID WHICH IT PROBABLY CAN’T, BECAUSE EVERYBODY KNOWS THE INTER- NAL ORGANIZATION OF ROMAN CATHOLI- CISM, BECAUSE OF THE ANCIENTNESS OF ITS ORGANIZATION AND BECAUSE THESE POINTS ARE ALL WELL UNDERSTOOD AND, INDEED, HIGHLY AND WIDELY PUBLICIZED AND COMMENTED UPON BY THE CHURCH, BY THE ROMAN CATHOLIC CHURCH ITSELF. BUT IF SOMEONE SAID, LOOK, THE WAY WE TREAT A CONFESSING PERSON IS, WE DO IT BY COMMITTEE. THERE ARE A NUMBER OF PEOPLE WHO HAVE TO DEAL WITH THAT, AND IT IS NOT FOR THE PURPOSE OF DEAL- ING WITH THE PROBLEMS OF THE CONFES- SOR. IT IS, RATHER, FOR THE PURPOSE OF DEALING WITH THE—BY “CONFESSOR,” I MEAN CONFESSOR IN THE RELIGIOUS SENSE, IN OTHER WORDS, THE PRIEST WHO RECEIVES THE CONFESSION. I DON’T MEAN THE PERSON WHO MAKES THE CONFESSION. WHAT THEY ARE SAYING ON THE DEFENSE SIDE ON THIS CASE IS, OUR METHOD OF DEALING WITH OUR PARISHIONERS, WHETHER THEY ARE MINISTERS OR NOT MINISTERS OR WHAT HAVE YOU IS, WE HAVE TO DO THAT ON A COMMITTEE ARRANGED IN THIS HIERARCHIC OF A WAY.

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SO IT SEEMS TO ME THAT THE ARGU- MENTS THAT YOU HAVE MADE DON’T EXACTLY FIT THE BILL, FRANKLY. THE ARGUMENTS THE OTHER SIDE MAKES, ARE NOT ABSOLUTELY CONCLUSIVE, BUT THAT IS THE WAY IT IS. AND I AM GOING TO HAVE TO DEAL WITH THE MATTER BY MAKING THE BEST OR LEAST WRONG DECISION I CAN MAKE. SO I AM ASKING YOU TO GO STRAIGHT AT THIS POINT. IN THIS SITUA- TION, WHERE—NOW, YOU HAVE SAID THEY ARE LYING. BUT— MS. SMOLOWITZ: WELL, I AM NOT—I DIDN’T. NOBODY IS SAYING THEY ARE LYING, YOUR HONOR. I AM SAYING, YOU CAN STRUCTURE AN ORGANIZATION TO GET AROUND DISCLOSURES, ESPECIALLY WHEN THERE ARE LAWSUITS BEING FILED ALL OVER THE PLACE, AND YOU ARE TRYING TO HIDE BEHIND THE PRIVILEGE FROM PRO- DUCING THE VERY DOCUMENTS THAT ARE NEEDED TO PROVE UP THE CASE.

EXACTLY WHAT A

PRIVILEGE DOES. MS. SMOLOWITZ: WELL, BUT IN THIS INSTANCE, YOUR HONOR, I JUST—JUST THE FIRST TWO TABS OF 3,000 DOCUMENTS SHOW THAT THE PRIVILEGE LOG DOES NOT IDENTIFY THE PURPORTED CLERGY. THERE IS NO FOUNDATION IN THE DECLARATIONS FOR WHO THOSE CLERGY ARE, AND THERE ARE DISCLOSURES MADE ON EVERY PAGE, TO SOME UNKNOWN THIRD-PARTY, FOR THE PURPOSE OF MINISTERING TO HER PUR-

THE

COURT:

THAT’S

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PORTED RELIGIOUS NEEDS, WHICH ARE NOT IDENTIFIED OR EXPRESSED. THE COURT: SO WHAT YOU ARE SAYING— LET ME SEPARATE WHAT YOU HAVE SAID INTO TWO CATEGORIES. CATEGORY ONE, ALL PRIVILEGES WOULD PERMIT SOMEBODY TO LIE, BECAUSE THEY ARE PRIVILEGES THAT RESTRICT INFORMA- TION FOR REASONS THAT ARE EXTRINSIC TO THE TRUTH VALUE OF THE INFORMA- TION THAT WOULD BE SUBMITTED. MS. SMOLOWITZ: I DID NOT USE THOSE WORDS “TO LIE,” YOUR HONOR. I AM SORRY. THAT IS NOT WHAT I MEANT. I MEANT, YOU CAN SET UP ANY ORGANI- ZATION IN SUCH A WAY THAT IT CAN FIT INTO A PRIVILEGE, EVEN IF IT DOESN’T REALLY FIT THE MOLD OF WHAT THE LEG- ISLATURE INTENDED. THE LEGISLATURE WAS CLEAR THAT IT IS A COMMUNICATION INTENDED TO BE PRIVATE BETWEEN THE IDENTIFIED CLERGY, WHO FITS WHAT A CLERGY IS. THE COURT: WHERE DO YOU GET THAT OUT OF THE LANGUAGE OF THE LEGISLA- TURE?

PAPER-

IT

WORK, YOUR HONOR. THE COURT: BUT WE DON 1 T NEED TO DO THAT. WE CAN GO RIGHT TO THE LEGISLA- TURE; RIGHT? WE CAN GO— MS. SMOLOWITZ: YOU CAN GO RIGHT TO THE CODE, BECAUSE THE CODE SAYS IT.

MS.

SMOLOWITZ:

IS

IN

THE

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THE COURT: YEAH, THE EVIDENCE CODE. WHERE DO YOU WANT ME TO LOOK FOR THAT? MS. SMOLOWITZ: EVIDENCE CODE 911(B) STATES THAT: “EXCEPT AS OTHERWISE PRO- VIDED BY STATUTE, NO PERSON HAS A PRIV- ILEGE TO REFUSE TO DISCLOSE ANY MATTER,” BLAH, BLAH, BLAH; RIGHT? IT GOES ON TO THAT. THE COURT: YEAH. MS. SMOLOWITZ: AND THEN 912(D): “THE CALIFORNIA LEGISLATURE SPECIFICALLY DEFINES THE STATUTORY PRIVILEGES THAT MAY INCLUDE A DISCLOSURE IN CONFI- DENCE TO A THIRD PERSON WITHOUT CON- STITUTING A WAIVER OF THE PRIVILEGE.” THE COURT: AND WHERE DO YOU LOOK FOR THAT? MS. SMOLOWITZ: 912(D). THE COURT: I’VE GOT IT. OKAY. MS. SMOLOWITZ: THIS EXCEPTION IS LIM- ITED TO ONLY THE LAWYER-CLIENT PRIVI- LEGE, THE PHYSICIAN-PATIENT PRIVILEGE, THE PSYCHOTHERAPY-PATIENT PRIVILEGE, THE SEXUAL ASSAULT COUNSELOR-VICTIM PRIVILEGE, AND THE DOMESTIC VIOLENCE COUNSELOR-VICTIM PRIVILEGE. NOTABLY ABSENT IS THE CLERGY PENITENT PRIVI- LEGE. AND THAT WAS THE BASIS FOR THE ARCH- DIOCESE RULING, TOO, BECAUSE IT IS NOT PART OF THE STATUTORY PRESCRIBED

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PRIVILEGES, REGARDLESS OF THE TYPE OF RELIGION YOU HAVE. MS. SALDANA: ALSO, EVIDENCE CODE SEC- TION 1032— THE COURT: YEAH, THAT’S WHERE YOU WANT TO GO. YOU WANT TO GO TO 1032. MS. SALDANA: IT LIMITS IT TO OUTSIDE THE PRESENCE OF A THIRD PERSON. THE COURT: YEAH. AND DO YOU UNDER- STAND WHAT I AM SAYING IS, THEY ARE GOING TO SAY THAT THIS IS A VIOLATION OF FREE EXERCISE AND A—AND BECAUSE THE STRUCTURE OF THE STATUTE, WHILE CONFERRING PRIVILEGES ON CERTAIN RELIGIOUS DENOMINATIONS, WHICH HAVE, LET’S SAY, A SINGLE PRIEST OR A SINGLE CLERGYMAN AND A SINGLE PENITENT PER- SON, IS, ITSELF, ONE THAT IS BASED ON A PREMISE ABOUT HOW A RELIGION WORKS. WE, ON THE SCIENTOLOGY SIDE, ARE A RELIGION. AND YOU CAN’T RESTRICT A PRIVILEGE, WHICH YOU GRANT TO CERTAIN RELIGIONS, SO THAT IT CANNOT BE USED BY OTHER LEGITIMATE RELIGIONS. HERE IS A COMMUNICATION, MADE IN CONFIDENCE, IN THE PRESENCE OF NO THIRD PERSON, TO A MEMBER OF THE —THEY SAY THERE WAS NO THIRD PERSON AROUND WHEN SHE MADE THE STATE- MENTS. AND THE—BUT OUR SYSTEM IS THAT WE HAVE THIS HIERARCHICAL SYS- TEM OR SOMEBODY CHECKING SOMEBODY ELSE’S WORK AND SO FORTH.

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YOU THINK THAT YOUR ARGUMENT THAT YOU MADE, SUFFICES, HUH? MS. SMOLOWITZ: YES, YOUR HONOR, BECAUSE I THINK THAT THE COURT ALREADY ADDRESSED THAT IN THE ARCH- DIOCESE CASE. THAT WAS THE EXACT ARGUMENT MADE IN THAT CASE, THAT— THE COURT: NO. THE ARGUMENT IN THE ARCHDIOCESE CASE WAS WHAT YOU SAID THE FIRST TIME. WHICH IS, WHAT WE ARE TRYING TO DO IS PROTECT THE PRIEST AND DEAL WITH THE PRIEST.

MS. SMOLOWITZ: BUT IT WENT BEYOND THAT. IT ALSO SAID—IT ALSO SAID THERE WAS NO RIGHT TO A PRIVILEGE, ONE, FIRST OF ALL, WHEN IT IS DISCLOSED TO THIRD PARTIES, REGARDLESS OF HOW YOUR RELI- GIOUS STRUCTURE IS. BECAUSE THEY ARGUED— THE COURT: DOES IT SAY THAT?

ONLY

I

WANT TO ADDRESS TWO POINTS. FIRST—

THE COURT: JUST ANSWER THE QUESTION I ASK. AS YOU SEE, IT IS 20 MINUTES AFTER

4:00.

MS.

SALDANA:

IF

CAN

JUST—I

MS. SALDANA: ALL RIGHT. SURE.

MS.

SMOLOWITZ:

DON’T

WORRY

THE TIME .

ABOUT

THE COURT: WHAT DID YOU SAY, MA’AM?

MS.

SMOLOWITZ:

WORRY ABOUT THE TIME.

I

TOLD

HER

NOT

TO

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THE COURT: WHY NOT WORRY ABOUT THE TIME? YOU WANT TO STAY HERE AFTER—I JUST TOLD HER TO WORRY ABOUT THE TIME. WHY WOULD YOU SAY, “DON’T WORRY ABOUT THE TIME”? WHAT DID YOU HAVE IN MIND? MS. SMOLOWITZ: SHE SAID IT. I JUST TOLD HER NOT TO SAY IT AND JUST GO FORWARD, THAT’S ALL, SO WE CAN GET THIS DONE. THAT’S WHAT I SAID TO HER. I DIDN’T SAY NOT TO—I THINK IT IS BEING TAKEN OUT OF CONTEXT. AND WE’RE WAY— THE COURT: I OBSERVED THE CONTEXT. IT WAS RIGHT HERE IN FRONT OF ME. MS. SMOLOWITZ: YOUR HONOR— THE COURT: GO AHEAD, COUNSEL FOR THE PLAINTIFF. MS. SALDANA: IN THE CATHOLIC ARCH- BISHOP CASE, FIRST, IN THAT CONTEXT, WHEN THEY WERE TALKING ABOUT THE TROUBLED PRIEST INTERVENTIONS, THE PRIEST THEMSELVES WERE ACTUALLY THE PENITENT IN THAT CIRCUMSTANCE, BECAUSE THEY WERE BEING COUNSELED BY RELIGIOUS OFFICIALS HIGHER THAN THEM, FOR THE PURPOSES OF THEIR OWN CONDITION, AND TO BE COUNSELED IN THAT SENSE. SO IT IS IDENTICAL TO THIS CASE, IN THAT SENSE. IT IS JUST LIKE THE DEFENDANT SOMETIMES CLAIMS THAT LAURA DECRESCENZO WAS A MINISTER. BUT IN THIS PARTICULAR CASE, THIS IS A

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PENITENTIAL COMMUNICATION, AND SHE WAS THE PENITENT. SO IN THAT CASE, THE CHURCH ASSERTED THAT CONFIDENTIAL COMMUNICATIONS WERE MADE IN THE COURSE OF TROUBLED PRIEST INTERVENTION. AND THAT UNDER THE TENETS OF THE CHURCH, BOTH CAR- DINAL MAHONEY AND THE VICOR FOR THE CLERGY, WERE AUTHORIZED TO HEAR THOSE COMMUNICATIONS. AND JUST LIKE OUR CASE— THE COURT: SO YOU ARE JUST GOING TO GO THROUGH THE ARGUMENT AGAIN. AND I DON’T QUARREL WITH YOU GOING THROUGH THE ARGUMENT AGAIN, AND I DON’T QUARREL WITH THE ARGUMENT. WHAT I AM SAYING IS—IF YOU ARE GOING TO SAY THAT, THERE IS NO REASON TO SAY IT AGAIN. I UNDERSTAND COMPLETELY YOUR POSITION. ON THE DEFENSE SIDE, WHO WANTS TO SAY WHATEVER YOU WANT TO SAY? I HAVE GONE THROUGH YOUR PAPERS, TOO. MR. DEIXLER: I WOULD APPRECIATE IT. IF I MIGHT RESPOND JUST TO ILLUMINATE THE CONSIDERATION OF THE ARCHBISHOP CASE FOR MORE DISCUSSION. FIRST, IT WASN’T A QUESTION OF INTER- PRETING THE FIRST AMENDMENT ON EITHER THE PRE-EXERCISE CLAUSE OR THE ESTABLISHMENT CLAUSE PIECE, WHICH WOULD BE THE PREFERENCE OF ONE RELI- GION OVER ANOTHER.

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SECONDLY, THE SPECIFIC FACTS OF THE CASE, FOUND BY THE COURT AT PAGE 209, WERE THAT BOTH PARTIES TO THE ORIGI- NAL COMMUNICATION KNEW IT LIKELY WOULD BE TRANSMITTED TO A THIRD PER- SON AND, THEREFORE, VICIATED ABINITIO A PRIVILEGE UNDER THE EVIDENCE CODE. SO THE FACTUAL SETTING IS MATERIALLY DIFFERENT FROM THE ONE WHICH WE ARE PRESENTED WITH HERE. THE COURT: HOW CAN THAT POSSIBLY BE, SINCE WHAT YOU ARE TALKING ABOUT IN YOUR CLIENT’S CASE, AND IN ALL THE DEFENDANT’S CASES, IS THAT THIS WAS A TENET OF OUR RELIGION. IT IS THE WAY THE RELIGION IS ORGANIZED AND STRUC- TURED, AND THIS IS THE WAY IT IS DONE. SO IT MUST HAVE BEEN KNOWN, AT THE TIME THAT DECRESCENZO MADE ANY STATEMENT, THAT IT WOULD BE COMMU- NICATED, BECAUSE THERE WERE THESE PEOPLE WHO WERE THE SUPERVISORS, OR WHATEVER YOU CALL THE NEXT PERSON IN LINE. I DON’T MEAN TO BIND YOU TO A PAR- TICULAR CHARACTERIZATION. MR. DEIXLER: THEY ARE CALLED “CASE SUPERVISORS.” AND UNDER THE STRUC- TURE OF THIS RELIGION, THEY ARE MINIS- TERS WHO ARE ENGAGED IN THE MINISTERING TO THE PENITENT. AND THE WAY THAT THIS RELIGION IS STRUCTURED, IS THAT THE—I WILL SAY THE ONSITE MIN- ISTER, IN ORDER TO ENSURE ORTHODOXY AND ORTHODOX APPLICATION OF THE RELI-

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GION, HAS THE ADVICE WHICH HE IS GIVEN, THE INFORMATION WHICH IS RECEIVED, ENSURED FOR ACCURACY AND COMMIT- MENT TO THE SCRIPTURE, BY THE PERSON WHO IS CALLED THE CASE SUPERVISOR. THAT IS THE RELIGIOUS STRUCTURE. THERE IS NO DISCLOSURE INTENTION OF IT GOING TO A THIRD-PARTY, OUTSIDE THE PENITENTIAL RELATIONSHIP. INDEED, THE COMMUNICATION ONE COULD SAY, UNDER THE DEFINITIONS AND THE STATUTE 1030, 1031, 1032, IS THAT THE ONSITE AUDITOR, WHO MAKES A COMMUNICATION TO THE CASE SUPERVISOR, IS, HIMSELF, WITHIN THE DEFINITION OF A PENITENT. IF ONE WORKS THROUGH— THE COURT: I UNDERSTAND THIS IS ESSENTIALLY THE ARGUMENT YOU MAKE IN YOUR PAPERS, AND I DON’T QUARREL WITH THE ARGUMENT HERE. I WILL MAKE A RUL- ING, BUT I AM NOT ASSISTED TOO MUCH BY YOUR REPEATING. ANYTHING ELSE THAT YOU WANTED TO SAY? MR. DEIXLER: IT IS IMPERATIVE, AND I AM SURE THE COURT UNDERSTANDS IT, THAT THE CONSTITUTIONAL STAKES ARE CLEAR THAT THIS MATTER RELATES DIRECTLY— THE COURT: IN EITHER DIRECTION, BY THE WAY. MR. DEIXLER: —IN FREE EXERCISE. OR WERE YOU TO RULE THAT THE MANNER IN WHICH THIS CHURCH PERFORMS ITS

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DUTIES, DEFINES ITS MINISTERS, WOULD REPRESENT A PREFERENCE AND A VIOLA- TION OF THE ESTABLISHMENT CLAUSE, CHOOSING ONE TYPE OF MINISTERIAL STRUCTURE TO ANOTHER. AND THAT IS OUTSIDE THE AMBIT OF WHAT COURTS ARE PERMITTED TO DO, UNDER AN UNBROKEN LINE OF CASES. THE COURT: I UNDERSTAND THAT. I AM THE ONE WHO MENTIONED IT. IT IS VIVIDLY PRESENTED ON THIS RECORD, AND THERE IS NO HIDING OR ANYTHING LIKE THAT. I WON’T HEAR ANY FURTHER ARGUMENTS FROM EITHER SIDE. IT SEEMS TO ME YOU BRIEFED THE MATTER FULLY, AND IT SEEMS TO ME VERY INTELLIGENTLY ON BOTH SIDES. AND I RECOGNIZE THAT THIS IS A MATTER WHICH MAY GET TO THE SUPREME COURT OF THE UNITED STATES, AND THAT’S OKAY. IF THAT’S THE COURT THAT HAS TO HEAR IT, THAT’S THE COURT THAT HAS TO HEAR IT. MY ORDER WILL BE THIS: THE MOTION TO COMPEL COMPLIANCE IS GRANTED. THE MOTION FOR THE—INSOFAR AS IT SEEKS TERMINATING SANCTIONS, HOWEVER, IS DENIED. I THINK TERMINATING SANCTIONS WOULD BE EXCESSIVE HERE. I THINK THAT, OBVIOUSLY, UNDER THE CALIFORNIA LAW, YOU CAN’T HAVE A TERMINATING—YOU CAN’T HAVE A TERMINATING—YOU CAN’T HAVE A DISCOVERY RELATED SANCTION WHICH PUTS THE PREVAILING PARTY IN A BETTER POSITION THAN THE PREVAILING

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PARTY WOULD HAVE BEEN HAD THE MATE- RIAL BEEN DISCLOSED AND HAD IT BEEN COMPLETELY FAVORABLE. I THINK A TER- MINATING SANCTION WOULD BE, THERE- FORE, EXCESSIVE.

YOU LAWYERS, BECAUSE YOU ARE CALI- FORNIA PRACTITIONERS, RECOGNIZE THAT WHAT I AM TALKING ABOUT IN THIS PHASE OF THE ORDER, IS THE LANGUAGE FROM THE SAUER AGAINST THE SUPERIOR COURT OF SAN DIEGO COUNTY CASE OF 195 CALI- FORNIA APPELLATE 3D 213, OVER ON PAGE 228. AND I THINK THAT THE PARTIES ARE ACTING WITH SUBSTANTIAL JUSTIFICATION HERE, ALSO. SO THE TERMINATING SANC- TIONS WOULD BE IMPROPER FOR THAT SEP- ARATE REASON.

I RECOGNIZE THAT THE ISSUE PRESENTED

IS AN ISSUE OF SUBSTANCE. IT IS NOT A TRIVIALLY RAISED POINT, BUT I DO THINK

THAT THE SITUATION IN THE CASE, IS ONE THAT REQUIRES ME TO MAKE THE RULING THAT I HAVE JUST DESCRIBED. I AGREE WITH THE PLAINTIFF’S POSITION CON- CERNING THE WAY IN WHICH THE PRIVI- LEGE WORKS. I THINK THAT THE LAW IS THAT THERE IS NO REQUIREMENT THAT ANYBODY, IN ANY STATE, MUST GRANT A PRIVILEGE, EXCEPT BY THE TERMS OF THE LAW. UNDER CALIFORNIA LAW, THE PRIVI- LEGES ARE ONLY THOSE SET OUT IN THE EVIDENCE CODE.

I ACCEPT THE ARGUMENT MADE BY THE PLAINTIFF CONCERNING THE ROMAN

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CATHOLIC ARCHBISHOP CASE, WHICH IS RAISED AT 131 CALIFORNIA APPELLATE 4TH 417. I RECOGNIZE THAT CASE WAS NOT TAKEN ANY FURTHER. SO YOU MIGHT SAY, WELL, IT IS ONLY A DECISION MADE BY AN INTERMEDIATE APPELLATE COURT. AND THAT WOULD BE AN OPEN ARGUMENT, BUT I THINK THAT I AM SUBORDINATE TO THAT COURT. I FIND THAT THE—IT IS THE C.S.I. ORGANIZATION HERE, THAT IS INVOLVED.

C.S.I. CLAIMS THAT THERE ARE 3,000 DOCU- MENTS THAT ARE PRIVILEGED. I HAVE BEEN

A LITTLE HYPERBOLIC. IT’S ACTUALLY 2,891

DOCUMENTS, BUT 3,000, IT SEEMS TO ME, IS

A CONVENIENT NUMBER THAT WE CAN USE.

MY DETERMINATION IS THAT THERE HAS NOT BEEN A SUFFICIENT FACTUAL DESCRIPTION OF THE DOCUMENTS TO PER- MIT AN INTELLIGENT AND REASONED JUDI- CIAL EVALUATION OF THE CLAIM OF PRIVILEGE. I AM USING THE LANGUAGE HERE. IT IS IN THE CASE BOOK AT 122 CALI- FORNIA APPELLATE 4TH. IT IS OVER ON PAGE 1074. THAT’S THE LANGUAGE FROM THE PEOPLE VS. LOCKYER CASE. AND MY FINDING HERE IS THAT THE C.S.I. ORGANIZATION HAS—IT HAS ASSERTED THE PRIVILEGE. BUT MY VIEW IS THAT IT HAS NOT DEMONSTRATED THE ACTUAL EXIS- TENCE OF THE PRIVILEGE, AND THE BUR- DEN IS ON THE PARTY ASSERTING THE PRIVILEGE TO DO THAT. I FIND THAT IT HAS NOT BEEN DONE. ONE EXAMPLE, FOR EXAM- PLE, IS THE DESCRIPTION OF DOCUMENT

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004 AND DOCUMENT 0031. I THINK THOSE ARE EXTREMELY VAGUE, GENERAL DESCRIPTIONS THAT SEEM TO ME NOT TO PASS MUSTER. SO I AM GOING TO ORDER THAT THERE BE —I GATHER THAT THE DEFENDANTS, C.S.I., IS CLAIMING THAT THERE WERE ABOUT 260 PEOPLE—I THINK THE NUMBER WAS 259 PEOPLE—WHO WERE IN THE CHAIN OF MIN- ISTRATION HERE. NOW, I RECOGNIZE THAT I HAVE MADE A RULING THAT IS GOING TO, PERHAPS, PRE- CIPITATE AN APPLICATION FOR APPELLATE REVIEW. AND SINCE I DON’T WANT ANY- BODY TO BE DISABLED BY MERE REQUIRE- MENTS OF SPEED, FROM OBTAINING OR AT LEAST CONSIDERING WHETHER THEY WANT MEANINGFUL APPELLATE REVIEW, I AM GOING TO GIVE YOU SOME TIME. I AM GOING TO SAY THAT COMPLIANCE WITH MY ORDER CAN TAKE PLACE. I AM GOING TO GIVE YOU 60 DAYS WITH WHICH TO COMPLY. TODAY IS THE 6TH OF MARCH. AND I AM GOING TO SAY, COMPLIANCE MUST BE BY THE 6TH OF MAY, 2013. IS THAT ENOUGH TIME FOR YOU TO GET YOUR APPEAL OR WRIT OR WHATEVER IT IS YOU ARE GOING TO DO? MR. DEIXLER: YES, YOUR HONOR. IT HAS BEEN MY EXPERIENCE, FROM TIME TO TIME —WE CERTAINLY WILL CONSIDER APPEL- LATE REVIEW. IT HAS BEEN MY EXPERI- ENCE THAT SOMETIMES THE APPELLATE COURT DOESN’T—

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THE COURT: ASK FOR A STAY ORDER. I AM NOT GOING TO SAY ANYTHING SUPER- SEDEAS OR SOMETHING LIKE THAT. I AM MAKING THE ORDER THAT SEEMS TO BE PROPER HERE. I RECOGNIZE THAT YOU ARE GOING TO LOCK HORNS ON THE APPELLATE COURT, AND YOU MAY WANT TO DO THAT. IT IS PERFECTLY ALL RIGHT. I DON’T HAVE ANY GRUDGE AGAINST IT. SO I AM GOING TO SAY THE COMPLIANCE DATE IS THE 6TH OF MAY, 2013. WHAT THAT MEANS IS, WE MAY BE ALL FILED UP WITH MOTION C.C.P. 437(C). THAT IS JUST THE WAY IT GOES, AND I WILL HAVE TO RESCHEDULE SOMETHING. IN OTHER WORDS, I AM NOT GOING TO TRY TO SOLVE ALL THE MANAGEMENT PROB- LEMS IN THE CASE. AND CONTRARY TO WHAT YOU THINK, I AM GOING TO TERMI- NATE PROCEEDINGS RIGHT NOW BECAUSE WE ARE CLOSING. IF YOU WANT TO COME BACK TOMORROW—DO YOU WANT ME TO ORDER YOU BACK TOMORROW MORNING? WAIVE NOTICE ON THE DEFENSE SIDE? MR. DEIXLER: YES.

PLAINTIFF SIDE, WAIVE

NOTICE? MS. SMOLOWITZ: YES.

THE

COURT:

(PROCEEDINGS CONCLUDED.)

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

DEPARTMENT 41 HON. RONALD M. SOHIGIAN, JUDGE CASE NO. BC411018

LAURA ANN DECRESCENZO, AKA LAURA A. DIECKMAN,

VS.

PLAINTIFF,

CHURCH OF SCIENTOLOGY INTERNATIONAL, A CORPORATE ENTITY, AND DOES 1-20,

DEFENDANTS.

REPORTER’S CERTIFICATE

I, LA WANNA WALTERS CORSON, OFFICIAL REPORTER OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, FOR THE COUNTY OF LOS ANGELES, DO HEREBY CERTIFY THAT THE FOREGOING PAGES 1 THROUGH 22, COMPRISE A FULL, TRUE, AND CORRECT TRANSCRIPT OF THE PROCEED-

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INGS HELD IN THE ABOVE-ENTITLED MAT- TER ON WEDNESDAY, MARCH 6, 2013. DATED MARCH 21, 2013.

LA WANNA WALTERS CORSON,

OFFICIAL REPORTER

CSR NO. 7135, RPR

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COURT OF APPEAL, SECOND DISTRICT, DIVISION 3, CALIFORNIA

THE ROMAN CATHOLIC ARCHBISHOP OF LOS ANGELES,

—v.—

Petitioner,

SUPERIOR COURT OF LOS ANGELES COUNTY,

Respondent;

THE PEOPLE, Real Party in Interest.

DOES 1 AND 2,

—v.—

Petitioners,

SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent;

THE PEOPLE,

Real Party in Interest.

Hennigan, Bennett & Dorman, J. Michael Hennigan, Donald F. Woods, Jr., and Jeffrey S. Koenig, Los Angeles, for Petitioner The Roman Catholic Archbishop of Los Angeles.

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Law Offices of Guzin & Steier and Donald H.

Steier, Los Angeles, for Petitioners Doe 1 and Doe

2.

O’Melveny & Myers and Charles C. Lifland, Los Angeles, for Monsignor Thomas J. Green as Amicus Curiae on behalf of Petitioners.

No appearance for Respondent.

Steve Cooley, District Attorney (Los Angeles), and Lael Rubin, William Hodgman, Brentford J. Ferreira and Patrick D. Moran, Deputy District Attorneys, for Real Party in Interest.

KLEIN, P.J.

INTRODUCTION

This proceeding arises out of a grand jury inves- tigation into allegations that two Roman Catholic priests, petitioners Doe 1 and Doe 2 (sometimes hereafter referred to as the Priests), sexually assaulted children while they worked for peti- tioner Roman Catholic Archbishop of Los Angeles, a Corporation Sole (hereafter referred to as the Archdiocese). In seeking to quash grand jury sub- poenas duces tecum, petitioners raise issues that require a balance of the rights of religious belief and practice with the rules of the criminal justice system. As the California Supreme Court noted in con- nection with this state’s evidentiary privilege for clergy-penitent communications (Evid.Code,

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§§ 1030–1034), “the statutory privilege must be recognized as basically an explicit accommodation by the secular state to strongly held religious tenets of a large segment of its citizenry.” (In re Lifschutz (1970) 2 Cal.3d 415, 428, 85 Cal.Rptr. 829, 467 P.2d 557.) While it is true the right to religious freedom holds a special place in our his- tory and culture, there also must be an accommo- dation by religious believers and institutions to the rules of civil society, particularly when the state’s compelling interest in protecting children is in question. Although the religion clauses of the First Amendment to the United States Constitution “embrace[ ] two concepts,—freedom to believe and freedom to act,” the first concept “is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society.” (Cantwell v. Connecticut (1940) 310 U.S. 296, 303–304, 60 S.Ct. 900, 84 L.Ed. 1213, fn. omitted.) The Los Angeles County Grand Jury subpoe- naed various documents from the Archdiocese which purportedly would allow the grand jury to determine whether to indict the Priests. Petitioners objected to disclosure of the subpoe- naed documents, primarily relying on the freedom of religion clauses in the federal and California Constitutions and on California’s evidentiary priv- ileges. Some of petitioners’ objections were sus- tained, but the great majority of them were overruled. Petitioners seek to reverse the adverse rulings. With the exception of a single document, we affirm the rulings ordering the subpoenaed materials to be turned over to the grand jury.

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PROCEDURAL BACKGROUND

In June and July 2002, the Los Angeles County Grand Jury served subpoenas duces tecum on the Archdiocese’s custodian of records, seeking docu- ments relating to child sexual abuse allegedly committed by certain Roman Catholic priests. Except for routine attorney-client communica- tions, the Archdiocese turned over the requested documents. However, several priests and the Archdiocese immediately filed motions to quash the subpoenas. As a result, none of the documents has been turned over to the grand jury. The parties to this proceeding, the petitioners, the Priests and the Archdiocese, and the real party in interest, the District Attorney of Los Angeles County (District Attorney), stipulated to the appointment of Retired Judge Thomas Nuss as referee (hereinafter, referee) to resolve substan- tive issues raised by the motions to quash. On July 15, 2002, the referee concluded the sub- poenas were not defective for failing to meet the affidavit requirements set forth in Code of Civil Procedure sections 1985, subdivision (b) (affidavit shall be served with subpoena duces tecum show- ing good cause and materiality) and 1987.5 (ser- vice of subpoena duces tecum is invalid without affidavit). On July 29, 2002, petitioners sought a writ of mandate from this court vacating the referee’s order denying their motions to quash. We issued an order to show cause. After briefing and oral argument, we held a California grand jury has the power to issue a subpoena duces tecum and that such a subpoena does not require a good cause

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affidavit. (M.B. v. Superior Court (2002) 103 Cal.App.4th 1384, 127 Cal.Rptr.2d 454.) 1 On June 25, 2004, the referee quashed all the grand jury subpoenas in response to the United States Supreme Court’s decision in Stogner v. California (2003) 539 U.S. 607, 123 S.Ct. 2446, 156 L.Ed.2d 544, which held California’s newly enacted statute of limitations for child molestation was unconstitutional when used to revive time- barred prosecutions. However, the referee granted the People leave to serve new subpoenas request- ing the identical documents on the assurance and subsequent showing the People were investigating credible, prosecutable claims against named targets. On June 30, 2004, the People served the two grand jury subpoenas, one for Doe 1 and one for Doe 2, at issue in this writ proceeding. On July 9, 2004, Does 1 and 2 moved to quash the new subpoenas. The Archdiocese followed with its own motion to quash. On September 7, 2004, the referee issued a deci- sion which substantially rejected petitioners’ motions to quash. Out of the approximately 285 subpoenaed documents challenged by petitioners below, the referee sustained 53 objections and ordered the remaining documents turned over to the grand jury. Of the 53 sustained objections, one was based on the attorney-client privilege (Evid.Code, § 954), two were based on the clergy- penitent privilege (Evid.Code, §§ 1033–1034), and

1 We also decided a second writ petition in this matter. (See Los Angeles Times v. Superior Court (2003) 114 Cal.App.4th 247, 7 Cal.Rptr.3d 524.)

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50 were based on the physician-patient privilege (Evid.Code, § 1014). The referee stayed disclosure of the documents to enable the parties to seek review. Thereafter, the Archdiocese filed a petition for writ of mandate in this court seeking to prevent disclosure of 15 documents the referee had ruled could go to the grand jury. The Priests filed their own petition for writ of mandate asking this court to prevent the disclosure of any documents to the grand jury. The petitions were consolidated, an order to show cause was issued, production of doc- uments was stayed, and briefing was obtained from the parties. An amicus curiae brief from Monsignor Thomas Green, a professor of canon law, was filed in sup- port of petitioners’ claims.

FACTUAL BACKGROUND

1. Petitioners’ claim the subpoenaed docu- ments cannot be disclosed to grand jury.

Petitioners contend the referee erred in ruling the subpoenaed documents should be disclosed to the grand jury because compliance with the sub- poenas would violate constitutional and statutory rules. Petitioners assert a Catholic bishop has a religious obligation to care for the physical, emo- tional and spiritual well-being of the priests within his diocese. Petitioners argue all the com- munications arising out of this obligation, includ- ing communications with the accused priests and the psychotherapists who treat them, are pro- tected from disclosure by the constitutional right

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to freedom of religion and by California’s psy- chotherapist-patient and clergy-penitent eviden- tiary privileges. In support of these claims, petitioners submitted evidentiary declarations, which were opposed by declarations filed by the District Attorney.

2. Petitioners’ evidentiary declarations; their reliance on the church’s “formation of clergy” doctrine.

In declarations supporting its motion to quash, the Archdiocese asserted that according to Roman Catholic doctrine, bishops are the direct succes- sors of the 12 apostles of Jesus Christ. 2 Under the church’s “formation of clergy” doctrine, a bishop is charged with the responsibility of sanctifying his priests, and is obligated to “care for and treat any emotional, physical, or spiritual problem a priest may be experiencing.” 3 In carrying out this obliga- tion, a bishop “may establish detailed boundaries for his priests concerning chastity” and “pass judg-

2 We express no opinion regarding the validity of any interpretation of religious doctrine contained in these dec- larations.

3 This citation comes from the referee’s final decision in this matter. Although this, and similar factual state- ments, originated in declarations filed by the parties in this court, most of those declarations have been filed under seal. Therefore, this opinion will refer to the facts alleged below either by citing the referee’s decision, which is not under seal, or by referring generically and circumspectly to docu- ments presently filed under seal. (See Huffy Corp. v. Superior Court (2003) 112 Cal.App.4th 97, 105, 4 Cal.Rptr.3d 823; In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292, 308, 116 Cal.Rptr.2d 833.)

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ment in particular cases concerning the obser-

vance of this obligation. The bishop is obliged to intervene and judge inappropriate conduct of any priest and to impose restrictions and penalties as appropriate in his moral judgment.” The Archdiocese argued these tasks require “open com- munications between the bishop and his priests.”

A bishop “is permitted to appoint Episcopal

vicars. An Episcopal vicar has the same power as a Bishop in the specific type of activity for which he is appointed.” The archbishop in Los Angeles, Cardinal Mahony, has appointed such a vicar, called the Vicar for Clergy, who is obligated to care for the “emotional, physical, psychological and spiritual lives” of the archdiocesan priests. Monsignor Craig Cox, who is both a canon lawyer and the Vicar for Clergy, declared Cardinal Mahony had established policies for the Archdiocese under which accusations of clerical sexual misconduct immediately are investigated. “The involved priest is confronted and is encour- aged to discuss whatever problems he is experi- encing regarding chastity.” “Msgr. Cox states ‘Based on the fundamental religious relationship between the bishop and his priest, the priest is encouraged to communicate his deepest psycholog- ical and sexual issue[s], to undergo psychiatric evaluation and treatment, and to share the results

of this therapy with the Vicar and the Bishop. All of this for the purpose of the ongoing formation and sanctification of the priest.’ ” (Italics added.)

If “a canonical investigation of a boundary viola-

tion or accusation of sexual misconduct [is required], the process is conducted in accord with

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the requirements of Canons 1717–1719” 4 and pur-

suant to Archdiocesan practice. These Canons require the bishop to inquire carefully either per- sonally or through some acceptable person, about the facts and circumstances and about the

[T]o date, the

imputability of the offense. [ ]

bishops and priests have always understood that these records would be confidential, and files cov-

ering these materials would be kept separately from the priest’s normal personnel file.”

3. The District Attorney’s evidentiary declarations.

In an attempt to rebut petitioners’ evidentiary claims, the District Attorney submitted declara- tions from Thomas Doyle, a Roman Catholic priest who is also an expert in canon law. Father Doyle stated it is expected the prelimi- nary investigation, required by Canons 1717–1719, will generate a written record. “The information contained in the record may be sensi- tive and is to be treated accordingly with due regard for the reputations of those involved. It may however, be licitly and properly disclosed to civil law enforcement agencies if it involves [a] matter as serious as sexual abuse.” Father Doyle asserted “investigations of child abuse docu-

4 Canon 1717, section 1, provides, in part: “Whenever an ordinary has knowledge, which at least seems true of a delict, he is carefully to inquire personally about the fact. .” “Canon 1719 states in part: ‘[T]he acts of the investi- gation, the decrees of the ordinary which initiated and con- cluded the investigation, and everything which preceded the investigation are to be kept in the secret archive of the curia if they are not necessary for the penal process.’ ”

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mented by the Archdiocese, through the Vicar for Clergy, which are kept in the ‘secret archives’ (confidential files) can be and have been supplied to law enforcement in other jurisdictions.”

4. Referee’s final decision on petitioners’ claims.

In his final decision, the referee rejected peti- tioners’ claims all the subpoenaed documents had arisen out of the archbishop’s religious obligation to care for the physical, emotional and spiritual well-being of his priests, and, therefore, that dis- closing them to the grand jury would violate a con- stitutional right to freedom of religion, California’s evidentiary privileges for clergy-peni- tent and psychotherapist-patient communications, and various other rules of law. The referee held the subpoenas violated neither the free exercise clause nor the establishment clause of the federal Constitution. Further, com- pliance with the subpoenas would not impermissi- bly burden petitioners’ religious beliefs or practice under Employment Div., Ore, Dept. of Human Res. v. Smith (1990) 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (Smith ), nor would it create an impermissible governmental entanglement with internal church affairs under Lemon v. Kurtzman (1971) 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745. As for California’s free exercise clause, even under the pre-Smith (Smith, supra, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876), compelling state interest test, disclosure was required because the government has a compelling interest in prosecut- ing child molesters.

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While the referee found evidence in the record to support the assertion Cardinal Mahony had a reli- gious obligation to care for his priests, he also found the Archdiocese simultaneously had been engaged in the kind of routine investigation any employer would undertake upon learning a trusted employee had been accused of child molestation. In addition, the referee held the clergy-penitent privilege was inapplicable where the communication had been disclosed to a third person. Regarding the principal remaining issues, the referee concluded the psychotherapist-patient privilege protected some of the subpoenaed docu- ments, that the prosecution of Doe 1 and Doe 2 was not precluded by the United States Supreme Court’s statute of limitations ruling in Stogner v. California, supra, 539 U.S. 607, 123 S.Ct. 2446, 156 L.Ed.2d 544, that the prosecutor had not improperly manipulated the grand jury process, and that the subpoenas were not impermissibly vague or overbroad.

CONTENTIONS

Petitioners’ chief contentions are that disclosure of the subpoenaed documents is barred by the First Amendment of the federal Constitution and by the free exercise clause of the California Constitution, as well as by Evidence Code provi- sions relating to the clergy-penitent and psy- chotherapist-patient privileges. Additionally, petitioners contend disclosure of the subpoenaed documents is barred by California’s attorney-client and work product priv-

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ileges; under Stogner v. California, supra, 539 U.S. 607, 123 S.Ct. 2446, 156 L.Ed.2d 544, disclo- sure of the subpoenaed documents is barred by the ex post facto clause; the District Attorney improp- erly usurped the grand jury’s authority; the sub- poenas duces tecum were impermissibly vague and were issued without proper authority and without the requisite good faith affidavit; and dis- closure of the subpoenaed documents is barred by assorted statutory and constitutional rules.

DISCUSSION

1. Constitutional right to freedom of religion does not bar disclosure of the subpoenaed documents.

Petitioners contend the disputed documents 5 cannot be turned over to the grand jury without violating their right to freedom of religion. In par- ticular, they claim disclosure of the subpoenaed documents will violate the free exercise and estab- lishment clauses of the First Amendment to the federal Constitution, as well as the free exercise clause of the California Constitution. For the rea- sons explained below, petitioners’ contention is without merit.

5 While the Archdiocese is challenging only the dis- closure of 15 documents, the Priests are disputing every sin- gle document the referee ordered turned over to the grand jury.

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a. General principles.

“The Religion Clauses of the First Amendment provide: ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.’ The first of the two Clauses, commonly called the Establishment Clause, com- mands a separation of church and state. The sec- ond, the Free Exercise Clause, requires government respect for, and noninterference with, the religious beliefs and practices of our Nation’s people.” (Cutter v. Wilkinson (2005) 544 U.S. 709, 125 S.Ct. 2113, 2120, 161 L.Ed.2d 1020.) The First Amendment “safeguards the free exercise of the chosen form of religion. Thus the Amendment embraces two concepts,—freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society.” (Cantwell v. Connecticut, supra, 310 U.S. 296, 303–304, 60 S.Ct. 900, 84 L.Ed. 1213, fn. omitted.) Judicial decisions regarding the religion clauses of the First Amendment are subject to de novo review. (See Rubin v. City of Burbank (2002) 101 Cal.App.4th 1194, 1199, 124 Cal.Rptr.2d 867 [establishment clause challenge to religious invo- cation at municipal function reviewed de novo].)

b. No violation of the free exercise clause of the federal Constitution.

Petitioners’ contention that disclosure of the subpoenaed documents would violate the free exercise clause of the federal Constitution is defeated by Smith.

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(1) Smith’s new rule for evaluating free exercise claims rests on “neu- tral laws of general applicability.”

In Smith, supra, 494 U.S. 872, 110 S.Ct. 1595,

108 L.Ed.2d 876, a case involving peyote use by

members of the Native American Church in a state (Oregon) which had not granted an exemp- tion for sacramental use of the drug, the United

States Supreme Court adopted a new rule for eval- uating free exercise claims. Smith rejected the for- mer balancing test (see Sherbert v. Verner (1963)

374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965),

under which “governmental actions that substan- tially burden a religious practice must be justified by a compelling governmental interest,” reasoning “We have never held that an individual’s religious beliefs excuse him from compliance with an other- wise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurispru- dence contradicts that proposition.” (Smith, supra,

494 U.S. at pp. 878–879, 883, 110 S.Ct. 1595.)

Under the new rule, “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’ [Citation.]” (Id. at p. 879, 110 S.Ct. 1595, italics added.) In Church of the Lukumi Babalu Aye, Inc. v. Hialeah (1993) 508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472, the United States Supreme Court summed up its newly-announced rule “In address- ing the constitutional protection for free exercise

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of religion, our cases establish the general propo- sition that a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the inci- dental effect of burdening a particular religious A law failing to satisfy these require- ments must be justified by a compelling govern- mental interest and must be narrowly tailored to advance that interest.” (Id. at pp. 531–532, 113 S.Ct. 2217, italics added.) Although Smith involved criminal conduct, the case is not limited to such situations. As Smith commented, “The government’s ability to enforce generally applicable prohibitions of socially harm- ful conduct, like its ability to carry out other aspects of public policy, ‘cannot depend on measur- ing the effects of a governmental action on a reli- gious objector’s spiritual development.’ [Citation.] To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is ‘compelling’—permitting him, by virtue of his beliefs, ‘to become a law unto himself,’ [cita- tion]—contradicts both constitutional tradition and common sense.” (Smith, supra, 494 U.S. at p. 885, 110 S.Ct. 1595, fn. omitted, italics added; see Gary S. v. Manchester School Dist. (1st Cir.2004) 374 F.3d 15, 18 [rejecting argument Smith was “limited to instances of socially harmful or crimi- nal conduct,” court applied Smith to claim the Individuals with Disabilities Education Act was unconstitutional as applied to disabled child attending Catholic elementary school].) Smith is applicable here and defeats petitioners’ contention the First Amendment’s free exercise

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clause bars disclosure of the subpoenaed docu- ments.

(2) The “ecclesiastical abstention” doctrine does not apply.

Petitioners, however, argue an exception to the Smith rule applies, namely, the ecclesiastical abstention doctrine. This doctrine grew out of the so-called church property cases. However, the church property cases, as exemplified by the ones cited by the Archdiocese, are inapposite because they involve internal church disputes whose reso- lution crucially depend on interpretations of reli- gious doctrine. 6 However, the case at bar is not, at its core, an internal church dispute. It is a criminal investiga- tion into suspected child molestation allegedly committed by Catholic priests. Smith itself char- acterized the church property decisions as cases in which the government was impermissibly “lend

6 The Archdiocese relied on the following church prop- erty cases. Watson v. Jones (1872) 80 U.S. (13 Wall.) 679, 20 L.Ed. 666, 1871 WL 14848, arose out of a schism in the Pres- byterian Church during the Civil War about the morality of slavery, which led to legal disputes between rival congre- gations over entitlement to church property. Watson deferred to a ruling by the church’s national governing body. In Kedroff v. St. Nicholas Cathedral (1952) 344 U.S. 94, 73 S.Ct. 143, 97 L.Ed. 120, where the right to use church prop- erty depended on the validity of a religious official’s eccle- siastical appointment, the court deferred to the church’s own ruling. Serbian Orthodox Diocese v. Milivojevich (1976) 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151, reversed a decision, reinstating a defrocked bishop, predicated on the lower court’s theory the church’s internal disciplinary process had been defective.

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[ing] its power to one or the other side in contro- versies over religious authority or dogma.” (Smith, supra, 494 U.S. at p. 877, 110 S.Ct. 1595.) The case at bar does not involve an internal church dispute over religious authority or dogma.

(3) The “ministerial exception” doc- trine does not apply.

Petitioners also argue the Smith rule does not defeat their free exercise claim because the so- called ministerial exception doctrine applies. Petitioners’ reliance on this exception is mis- placed. The ministerial exception doctrine is based on the notion a church’s appointment of its clergy, along with such closely related issues as clerical salaries, assignments, working conditions and ter- mination of employment, is an inherently religious function because clergy are such an integral part of a church’s functioning as a religious institution. (See, e.g., Werft v. Desert Southwest Annual Conference (9th Cir.2004) 377 F.3d 1099, 1101.) This is not an employment case and the ministe- rial exception doctrine has no application here.

(4) Smith applies to these grand jury subpoenas.

The Archdiocese contends Smith is inapplicable because there is no legislative act at issue, and because subpoenas are not neutral laws of general application. This argument misconstrues the

notion of generally applicable neutral laws. “A law

is

is not neutral towards religion if its ‘object

to infringe upon or restrict practices because of

their religious

.’ [Citation.] A law is

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not generally applicable if it ‘in a selective manner impose[s] burdens only on conduct motivated by

.’ ” (Catholic Charities of

Sacramento, Inc. v. Superior Court (2004) 32 Cal.4th 527, 550, 10 Cal.Rptr.3d 283, 85 P.3d 67.)

The neutral law of general applicability at issue here is the statutory and common law 7 basis of California’s grand jury process. That this particu- lar grand jury investigation and the subpoenas it generated are directed at a Catholic archdiocese is merely an incidental effect of the grand jury process. In Matter of Grand Jury Subpoena (Chinske) (D.Mont.1991) 785 F.Supp. 130, the petitioner claimed that having to comply with a grand jury subpoena would violate his religious beliefs. At oral argument, the petitioner’s attorney

“attempted to distinguish Smith

by claiming

religious

that the compulsion to testify before the grand jury is not a law of general application prohibiting certain conduct.” (Id. at p. 133.) Commenting that “[c]ounsel clearly does not appreciate the scope of the Supreme Court’s recent rulings concerning free exercise claims,” the federal court held “Smith clearly does not apply only to cases where the law in question prohibits certain conduct, since the court considered tax collection cases in

7 As this court pointed out in M.B. v. Superior Court, supra, 103 Cal.App.4th at pp. 1388–1389, 127 Cal.Rptr.2d 454 “our Supreme Court has emphatically ‘rejected the con- tention that the California grand jury [is] a “purely” statu- tory body, wholly distinct from its common law predecessor.’ (People v. Superior Court (1973 Grand Jury) (1975) 13 Cal.3d 430, 440, fn. 11, 119 Cal.Rptr. 193, 531 P.2d 761. .)”

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reaching its decision. [Citation.] The laws of this land compel all persons to pay taxes assessed by various governmental bodies, regardless of their

In much the same way,

the laws of this land compel all persons to testify before the grand jury when subpoenaed to do so. .” (Id. at pp. 133–134.) Assuming for the pur- pose of decision that the petitioner’s religious beliefs were sincere, the court held the free exer- cise claim was defeated by Smith because any bur- den on petitioner’s religious beliefs was not the object of the grand jury subpoena, but “ ‘merely the incidental effect of a generally applicable and otherwise valid’ governmental action.” (Id. at p. 134.) We similarly conclude the grand jury subpoenas here do not violate the free exercise clause of the federal Constitution because they are based on a valid and neutral law of general applicability that will have, at most, an incidental effect on the archdiocese’s practice of keeping confidential the communications arising out of the Archbishop’s formation of clergy obligation of caring for his priests.

religious convictions,

c. No violation of the establishment clause of the federal Constitution.

Petitioners contend disclosure of the subpoenaed documents is barred by the establishment clause of the federal Constitution. This claim is without merit because the primary effect of enforcing the subpoenas will not require the government either to interfere with the internal workings of the Archdiocese, or to choose between competing reli- gious doctrines.

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“The Establishment Clause provides that

‘Congress shall make no law respecting an estab-

lishment of

Kurtzman, 403 U.S. 602[, 91 S.Ct. 2105, 29

L.Ed.2d 745]

lished a three-part test for determining whether a statute violates the Establishment Clause: [ ] First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion. [Citation.]” (E.E.O.C. v. Catholic University of America (D.C.Cir.1996) 83 F.3d 455, 465.) “Although it is difficult to attach a precise mean- ing to the word ‘entanglement,’ courts have found an unconstitutional entanglement with religion in situations where a ‘protracted legal process pit[s] church and state as adversaries,’ [citation], and where the Government is placed in a position of choosing among ‘competing religious visions.’ [Citation.]” (Ibid.) “Not all entanglements, of course, have the effect of advancing or inhibiting religion. Interaction between church and state is inevitable, [citation], and we have always toler- ated some level of involvement between the two. Entanglement must be ‘excessive’ before it runs afoul of the Establishment Clause.” (Agostini v. Felton (1997) 521 U.S. 203, 233, 117 S.Ct. 1997, 138 L.Ed.2d 391.) The Archdiocese asserts that, under Lemon, “[t]he constitutional question can be simply put:

Does the state action (here it is a subpoena) inter- fere with a religious practice?” The Archdiocese answers this question as follows “The effect of

.’ [Citation.] In Lemon v.

(1971), the Supreme Court estab-

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these subpoenas is to interfere with the bishop’s pastoral and episcopal relationship with his priests in need, to destroy any serious pastoral discussion of deeply personal and intimate con- cerns of the priests regarding their celibacy, sexu- ality and emotional and psychological needs, and to ‘foster an “excessive government entanglement with religion.” ’ [Citation.] More specifically, these subpoenas interfere directly with ecclesiastical policy by mandating the disclosure of information that, under Roman Catholic practice, is held in strict confidence.’’ The Archdiocese asserts the closest Supreme Court decision to the case at bar is NLRB v. Catholic Bishop of Chicago (1979) 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533, which held the National Labor Relations Board’s (NLRB) exercise of jurisdiction over lay teachers at Catholic high schools presented a significant First Amendment risk. However, the core issue in that case was whether there had been unfair labor practices, and it was this issue which was necessarily entan- gled with questions of religious doctrine. 8 However, the core issue in the case at bar is whether children were molested by priests who

8 The case involved “charges of unfair labor practices filed against religious schools,” to which “the schools had responded that their challenged actions were mandated by their religious creeds. The resolution of such charges by the [NLRB], in many instances, will necessarily involve inquiry into the good faith of the position asserted by the clergy- administrators and its relationship to the school’s religious mission.” (NLRB v. Catholic Bishop of Chicago, supra, 440 U.S. at p. 502, 99 S.Ct. 1313.)

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worked for the Archdiocese, an issue having no comparable religious doctrine aspect. Also pertinent here is Society of Jesus of New England v. Com. (2004) 441 Mass. 662, 808 N.E.2d 272, in which the Massachusetts Supreme Judicial

Court rejected a claim that disclosure of a priest’s personnel file, in connection with a criminal prose- cution for sexual assault, would violate the estab- lishment clause. The court explained “With regard to the test of ‘effect’ on religion, we must look at the law’s ‘principal or primary effect,’ Lemon v. Kurtzman, supra, not at its incidental effects. Here, the alleged inhibition on religion is not a ‘principal or primary’ effect of the subpoena, although it may, in a subtle way, provide some disincentive that would arguably discourage accused priests from being totally forthcoming

[ ] Nor does the enforce-

ment of this subpoena result in any excessive gov- ernment entanglement with religion. The court can decide issues of relevance, burdensomeness, and the applicability of the asserted privileges without having to decide matters of religion or embroil itself in the internal workings of the Jesuits. Indeed, the only form of ‘entanglement’ with reli- gion at issue in the motions to quash is a form that [the priest] and the Jesuits have themselves invited, namely, the court’s consideration whether [the priest’s] communications qualify for protec- tion under the priest-penitent Assessment of the applicability of that privilege does not lead to excessive government entangle- ment in religion.” (Id. at p. 283, fn. omitted, italics added.)

with their

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This case is analogous to Society of Jesus of New England v. Com., supra, 441 Mass. 662, 808 N.E.2d 272, rather than to NLRB v. Catholic Bishop of Chicago, supra, 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533. We conclude disclosure of the subpoenaed documents to the grand jury will not result in excessive entanglement or any other violation of the establishment clause.

d. “Hybrid rights” exception to Smith not applicable.

Petitioners contend disclosure of the subpoenaed documents would violate the First Amendment because the so-called hybrid rights exception to the Smith rule applies in this case. The Archdiocese argues “the neutrality rule of Smith does not apply” here because “the challenged state conduct interferes with the free exercise of reli- gion and causes excessive entanglement.” This claim is without merit. As a doctrinal matter, the nature and scope of the so-called hybrid rights exception to Smith is

rather nebulous. “The Smith court developed the hybrid claim exception in an effort to explain sev- eral past decisions which invalidated on free exer- cise grounds laws that appeared to be neutral and generally applicable. [Citation.]” (Gary S. v. Manchester School Dist. (D.N.H.2003) 241 F.Supp.2d 111, 121, fn. omitted, affd. (1st Cir.2004) 374 F.3d 15, 19.) “The most relevant of the so-called hybrid cases is Wisconsin v. Yoder,

406 U.S. 205, 232–33

L.Ed.2d 15] (1972), in which the Court invalidated a compulsory school attendance law as applied to Amish parents who refused on religious grounds

[92 S.Ct. 1526, 32

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to send their children to school.” (Brown v. Hot, Sexy and Safer Productions, Inc. (1st Cir.1995) 68 F.3d 525, 539.) Under the hybrid rights theory, “ ‘the First Amendment [still] bars application of a neutral, generally applicable law to religiously motivated action’ if the law implicates not only ‘the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other consti- tutional protections, such as freedom of speech and of the press [.]’ [Citation.] In such ‘hybrid’ cases, the law or action must survive strict scrutiny.” (San Jose Christian College v. Morgan Hill (9th Cir.2004) 360 F.3d 1024, 1031.) However, even assuming a hybrid rights excep- tion to Smith, it would not apply to this case because the Archdiocese merely has combined a free exercise claim with a meritless establishment clause claim. (See Catholic Charities of Sacramento, Inc. v. Superior Court, supra, 32 Cal.4th at p. 559, 10 Cal.Rptr.3d 283, 85 P.3d 67, fn. 15 [“Catholic Charities perfunctorily asserts that its claims under the establishment clause [citation] also justify treating this case as involv- ing hybrid rights. We have, however, already determined that those claims lack merit.”].) Hence, Smith’s “valid and neutral rule of law of general applicability” standard does apply to peti- tioners’ federal free exercise claim.

e. California free exercise claim is meritless.

Petitioners contend the Smith rule does not apply to a free exercise claim under the California Constitution and that we should apply, instead, the pre-Smith compelling state interest test.

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However, we conclude that even pursuant to the former strict scrutiny test, under which govern- mental actions that substantially burden a reli- gious practice must be justified by a compelling governmental interest, disclosure of the subpoe- naed documents would not violate petitioners’ rights. Therefore, we need not decide whether Smith applies to California’s free exercise clause. California’s free exercise clause (Cal. Const., art. I, § 4.) provides “Free exercise and enjoyment of religion without discrimination or preference are guaranteed. This liberty of conscience does not excuse acts that are licentious or inconsistent with the peace or safety of the State.” The Smith case was decided in 1990. In 2004, the California Supreme Court was faced in Catholic Charities of Sacramento, Inc.v. Superior Court, supra, 32 Cal.4th 527, 10 Cal.Rptr.3d 283, 85 P.3d 67 with a claim that the pre-Smith test applies to California’s free exercise clause because its language differs from the federal free exercise clause. 9 “Catholic Charities’ final argument for applying strict scrutiny invokes the free exercise clause of the California Constitution. [Citation.] That clause, Catholic Charities contends, forbids the state to burden the practice of religion, even incidentally, through a neutral, generally applica- ble law, unless the law in question serves a com- pelling governmental interest and is narrowly

9 Whereas the federal clause prevents Congress from passing any law prohibiting the free exercise of religion, California’s free exercise clause guarantees the “[f]ree exer- cise and enjoyment of religion without discrimination or .” (Cal. Const., art. I, § 4.)

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tailored to achieve that interest. Catholic Charities asserts, in other words, that we must interpret the California Constitution the same way the United States Supreme Court interpreted the federal Constitution’s free exercise clause in Sherbert, supra, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965.” (Catholic Charities, at p. 559, 10 Cal.Rptr.3d 283, 85 P.3d 67, fn. omitted.) Saying that in the proper case it would not have hesitated “to declare the scope and proper inter- pretation of the California Constitution’s free exercise clause,” Catholic Charities of Sacramento, Inc. v. Superior Court, supra, 32 Cal.4th at page 562, 10 Cal.Rptr.3d 283, 85 P.3d 67 concluded it did not need to do so because the pre-Smith strict scrutiny test 10 had been met. Catholic Charities involved the claim by a religiously-connected non- profit public benefit corporation that it had been impermissibly burdened by the Women’s Contraception Equity Act (WCEA), a law requir- ing certain health and disability contracts to cover prescription contraceptives. The Supreme Court held “Assuming for the sake of argument the WCEA substantially burdens a religious belief or practice, the law nevertheless serves a compelling state interest and is narrowly tailored to achieve that interest. [ ] The WCEA serves the compelling state interest of eliminating gender discrimina-

10 “Under [the strict scrutiny] standard, a law could not be applied in a manner that substantially burdened a reli- gious belief or practice unless the state showed that the law represented the least restrictive means of achieving a com- pelling interest or, in other words, was narrowly tailored.” (Catholic Charities of Sacramento, Inc. v. Superior Court, supra, 32 Cal.4th at p. 562, 10 Cal.Rptr.3d 283, 85 P.3d 67.)

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tion.” (Catholic Charities of Sacramento, Inc. v. Superior Court, supra, 32 Cal.4th at pp. 563–564, 10 Cal.Rptr.3d 283, 85 P.3d 67.) We reach a similar conclusion here. As the fol- lowing case law demonstrates, the grand jury’s investigation into suspected child molestation serves a compelling state interest and is narrowly tailored to achieve that interest. In Branzburg v. Hayes (1972) 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626, in the course of hold- ing that reporters may be required to testify before grand juries about the criminal conduct of their confidential sources, the United States Supreme Court said “Although the powers of the grand jury are not unlimited and are subject to

the supervision of a judge, the longstanding prin-

ciple [is] that ‘the public

man’s evidence,’ except for those persons protected by a constitutional, common-law, or statutory .” (Id. at p. 688, 92 S.Ct. 2646, italics added.) “The requirements of those cases, [cita- tion], which hold that a State’s interest must be ‘compelling’ or ‘paramount’ to justify even an indi- rect burden on First Amendment rights, are also met here. As we have indicated, the investigation of crime by the grand jury implements a funda- mental governmental role of securing the safety of the person and property of the citizen, and it appears to us that calling reporters to give testi- mony in the manner and for the reasons that other citizens are called ‘bears a reasonable rela- tionship to the achievement of the governmental purpose asserted as its justification.’ [Citation.]” (Id. at p. 700, 92 S.Ct. 2646, italics added.)

has a right to every

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With a nod to Branzburg, many federal cases since have held that compelled testimony before a grand jury in violation of a witness’s religion does not constitute a free exercise violation. We rely on federal cases in this context because (1) before Smith was decided, both the federal and the California free exercise clauses were analyzed under the compelling state interest test (see Walker v. Superior Court (1988) 47 Cal.3d 112, 138–141, 253 Cal.Rptr. 1, 763 P.2d 852), and (2) we have found no California cases involving free exercise clause claims in a grand jury context. These federal cases have assumed, for the pur- pose of decision, that the witness’s objection to testifying was both sincerely held and religiously grounded. Each case concluded the ensuing bur- den on the witness’s religious belief was out- weighed by the compelling state interest in obtaining grand jury testimony. (See In re Grand Jury Empaneling of Special Grand Jury (3d Cir.1999) 171 F.3d 826, 832 [even if Orthodox Jewish law proscribed giving grand jury testimony against family member, “the government’s inter- est in securing the evidence” in white collar crime case was “compelling” because “the duty to prose- cute persons who commit serious crimes is part and parcel of the government’s ‘paramount responsibility for the general safety and welfare of all its citizens’ ”]; Grand Jury Proceedings of John Doe v. U.S. (10th Cir.1988) 842 F.2d 244, 247–248 [Mormon belief proscribing intra-family testimony before grand jury was outweighed by compelling state interest in investigating violation of federal criminal law]; In re Three Children (D.N.J.1998) 24 F.Supp.2d 389, 392 [“the government’s interest

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in investigating and successfully prosecuting crimes, which invariably includes taking the grand jury testimony of witnesses, far outweighs the incidental burden on the professed free exer- cise of religion in this matter.”]; see also Congregation B’Nai Jonah v. Kuriansky (1991) 576 N.Y.S.2d 934, 936 [172 A.D.2d 35, 39] [state’s interest in enforcing subpoenas for Medicaid fraud investigation outweighed infringement on free exercise “Unquestionably, the State has a pro- found interest in fighting corruption in the Medicaid industry and in enforcing its tax laws [citations].”].) The Priests also argue that because the “docu- ments pertain to confidential communications of a most private nature between a Roman Catholic bishop and the priests he ordained,” their disclo- sure “will chill the free exercise of their religion, and inevitably and impermissibly alter the rela- tionship [between] Catholic bishops and priests and the way they practice their religion.” However, several jurisdictions have rejected similar arguments and we agree with their rea- soning. (See People v. Campobello (2004) 348 Ill.App.3d 619, 284 Ill.Dec. 654 658–59, 810 N.E.2d 307, 311–312 [Catholic diocese must com- ply with government subpoena in sexual assault prosecution against priest, even if Canon 489 requires bishop to maintain secret archive for files relating to internal church discipline]; Com. of Penn. v. Stewart (1997) 547 Pa. 277 [690 A.2d 195, 201–202] [criminal defendant’s compelling inter- est in fair trial outweighed Catholic diocese’s claim to withhold documents deemed confidential under canon law because “the burden on the

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Diocese’s religious freedom furthers a compelling governmental interest by the least restrictive means available”]; Society of Jesus of New England v. Com., supra, 441 Mass. 662, 808 N.E.2d 272, 279 [state could subpoena personnel file of priest charged with sexual assault even if such disclosure would inhibit “communications that are necessary to maintain the Jesuits’ rela- tionship with one of its own priests”].) Hence, we conclude that even if the pre-Smith compelling state interest test governs a California free exercise claim, that test is met here.

f. Conclusions regarding federal and state constitutional contentions.

We are not persuaded by any of petitioners’ free- dom of religion arguments. We conclude disclosure of the subpoenaed documents is not barred by the First Amendment to the federal Constitution, or by the free exercise clause of California’s Constitution. Having so determined, we next examine the two principal statutory grounds peti- tioners rely on to prevent disclosure of the subpoe- naed documents to the grand jury, the clergy-penitent privilege and the psychotherapist- patient privilege.

2. Documents in question do not satisfy criteria for application of clergy-penitent privilege, irrespective of the formation of clergy theory.

Evidence Code section 1032, within the article relating to the clergy-penitent privilege, defines a “penitential communication” as “a communication made in confidence, in the presence of no third per-

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son so far as the penitent is aware, to a member of the clergy who, in the course of the discipline or practice of the clergy member’s church, denomina- tion, or organization, is authorized or accustomed to hear those communications and, under the dis- cipline or tenets of his or her church, denomina- tion, or organization, has a duty to keep those communications secret.” (Italics added.) 11 Petitioners argue the subpoenaed documents constitute privileged penitential communications within the meaning of Evidence Code section 1032 because they were generated in the course of the formation of clergy process during the Archdiocese’s interventions to help troubled priests. Petitioners’ contention fails. The penitential communications are not privileged because they were not “made in confidence, in the presence of no third person so far as the penitent is aware,” to a cleric who is obligated “to keep those communi- cations secret.” (Evid.Code, § 1032.)

11 The other clergy-penitent privilege statutes provide that: “a ‘member of the clergy’ means a priest, minister, reli- gious practitioner, or similar functionary of a church or of a religious denomination or religious organization” (Evid.Code, § 1030); “ ‘penitent’ means a person who has made a penitential communication to a member of the clergy” (Evid.Code, § 1031); “[s]ubject to [Evidence Code] Section 912, a penitent, whether or not a party, has a priv- ilege to refuse to disclose, and to prevent another from dis- closing, a penitential communication if he or she claims the privilege” (Evid.Code, § 1033); and, “[s]ubject to [Evidence Code] Section 912, a member of the clergy, whether or not a party, has a privilege to refuse to disclose a penitential com- munication if he or she claims the privilege” (Evid.Code, § 1034).

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a. Statutory scheme is controlling.

“Evidence Code section 911 provides, in relevant part: ‘Except as otherwise provided by statute: [ ]

. [ ] (b) No person has a privilege to refuse to disclose any matter or to refuse to produce any writing, object, or other thing.’ This section declares the California Legislature’s determina- tion that ‘evidentiary privileges shall be available only as defined by statute. [Citation.] Courts may not add to the statutory privileges except as

required by state or federal constitutional law [citations], nor may courts imply unwritten excep- tions to existing statutory privileges. [Citations.]’ (Roberts v. City of Palmdale (1993) 5 Cal.4th 363,

see

373, 20 Cal.Rptr.2d 330, 853 P.2d 496

Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 656, 125 Cal.Rptr. 553, 542 P.2d 977)

. [privileges contained in Evidence Code are

exclusive and courts are not free to create new privileges as matter of judicial policy unless con-

stitutionally

Inc. v. Superior Court (2003) 114 Cal.App.4th 881, 887, 8 Cal.Rptr.3d 146, italics added.) “In section 911 of the Evidence Code, the Legislature clearly intended to abolish common law privileges and to keep the courts from creat- ing new nonstatutory privileges as a matter of judicial policy. [Citations.] Thus, unless a privi- lege is expressly or impliedly based on statute, its existence may be found only if required by consti- tutional principles, state or federal.” (Welfare Rights Organization v. Crisan (1983) 33 Cal.3d 766, 769, 190 Cal.Rptr. 919, 661 P.2d 1073.)

.” (American Airlines,

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b. Parties’ respective burdens of proof.

Ordinarily, “[t]he party claiming [an eviden- tiary] privilege carries the burden of showing that the evidence which it seeks to suppress is within the terms of the statute.” (D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 729, 36 Cal.Rptr. 468, 388 P.2d 700; see, e.g., Department of Motor Vehicles v. Superior Court (2002) 100 Cal.App.4th 363, 370, 122 Cal.Rptr.2d 504 [per Chadbourne, Department of Motor Vehicles bore burden of establishing claim of privilege based on Evid.Code, § 1040 (public entity has privilege to resist disclosure of official information)].) Here, however, it was ultimately the District Attorney’s burden to overcome the presumption of confidentiality. Evidence Code section 917 provides at subdivi- sion (a) “Whenever a privilege is claimed on the ground that the matter sought to be disclosed is a communication made in confidence in the course of the lawyer-client, physician-patient, psychother- apist-patient, clergy-penitent, husband-wife, sex- ual assault victim-counselor, or domestic violence victim-counselor relationship, the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the bur- den of proof to establish that the communication was not confidential.” (Italics added.) Thus, in this context, the privilege-claimant “has the initial burden of proving the preliminary facts to show the privilege applies.” (Story v. Superior Court (2003) 109 Cal.App.4th 1007, 1014,

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135 Cal.Rptr.2d 532, italics added.) 12 “Once the claimant establishes the preliminary facts

, the burden of proof shifts to the opponent of the privilege. To obtain disclosure, the opponent must rebut the statutory presumption of confidentiality

set forth in [Evidence Code] section 917[, subdivi-

Alternatively, the opponent of the

privilege may show that the privilege has been waived under [Evidence Code] section 912 [13] . .” (Story, supra, at p. 1015, 135 Cal.Rptr.2d 532, italics added.)

sion (a).]

12 Thus, for example, where the psychotherapist-

patient privilege is claimed, “ ‘[p]reliminary facts’ means the existence of a psychotherapist-patient relationship, ‘that is, that the person [the claimant] consulted was a “ ‘psy-

section 1010, and

chotherapist’ ” within the meaning of

[the claimant] was a “ ‘patient’ ” within the meaning of section 1011.’ [Citation.]” (Story v. Superior Court, supra, 109 Cal.App.4th at p. 1014, 135 Cal.Rptr.2d 532.)

13 Evidence Code section 912, subdivision (a), provides:

“Except as otherwise provided in this section, the right of any person to claim a privilege provided by Section 954 (lawyer-client privilege), 980 (privilege for confidential mari- tal communications), 994 (physician-patient privilege), 1014 (psychotherapist-patient privilege), 1033 (privilege of peni- tent), 1034 (privilege of clergyman), 1035.8 (sexual assault counselor-victim privilege), or 1037.5 (domestic violence counselor-victim privilege) is waived with respect to a com- munication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone. Consent to disclosure is manifested by any state- ment or other conduct of the holder of the privilege indicat- ing consent to the disclosure, including failure to claim the privilege in any proceeding in which the holder has the legal standing and opportunity to claim the privilege.”

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c. Standard of review.

We review the trial court’s privilege determina- tion under the substantial evidence standard. “ ‘ “When the facts, or reasonable inferences from the facts, shown in support of or in opposition to the claim of privilege are in conflict, the determi- nation of whether the evidence supports one con- clusion or the other is for the trial court, and a reviewing court may not disturb such finding if there is any substantial evidence to support it [citations].” ’ [Citation.] Accordingly, unless a claimed privilege appears as a matter of law from the undisputed facts, an appellate court may not overturn the trial court’s decision to reject that claim.’’ (HLC Properties, Limited v. Superior Court (2005) 35 Cal.4th 54, 60, 24 Cal.Rptr.3d 199, 105 P.3d 560, fn. omitted.)

d.