A federal judge has ruled that Tampa, Fla., lawyer Ken Dandar can’t withdraw from a case he filed against the Church of Scientology because no other lawyer wants to take on the organization.

That puts Dandar “in a pickle,” the St. Petersburg Times reports, because Dandar had agreed to stop suing Scientology in a confidential 2004 settlement, and a state court seeking to enforce the deal has fined him $50,000 plus $1,000 for every day he stays in the case.

Dandar filed the federal suit against the church's Flag Service Organization last year, but he eventually sought to withdraw after church lawyers objected. The state judge who fined Dandar, Senior Circuit Judge Robert Beach, held a hearing on his fate on Tuesday.

The St. Petersburg Times was unable to report on the proceedings because Beach agreed with an objecting Scientology lawyer and ordered the journalist out of the courtroom. All the case files have been closed since the confidential 2004 settlement of the suit, filed on behalf of the family of a woman who died while in the care of church members.

Legal Ethics: Conflicting Rulings Put Lawyer Who Agreed to Stop Suing Scientology ‘in a Pickle’
American Bar Association Journal 1st Sept 2010
http://www.abajournal.com/news/article/ ... gy_in_a_pi

This motion provides a peek into what went on in state court on Tuesday before Beach, who obviously sided with Scientology again, and indeed, upped the ante. The question now is whether the fed court judge deems Beach's actions as interference, which the Fed judge didn't precisely define. In the most immediate sense, all that occurred Tuesday was the entry of more and severe sanctions against Dandar. The motion hints that Beach gave the green light for a money judgment against Dandar, which, if signed, would seem to be interference, one would think, since having a money judgment entered against you has many immediate and adverse consequences. But it's not yet signed, so the fed judge may hesitate, depending on how legalistic he is. Or he may not hesitate--clearly Beach ignored his Order/warning so why wait? As I said earlier, the state/fed issue is messy, and he likely wants to avoid Going There unless he absolutely has to. As Merryday warned in his Order, it would be unseemly should this conflict flare up into hot inter-jurisdictional court on court action.

Federal judge suspends state judgment against lawyer in dispute with Scientology

By Craig Pittman, Times Staff Writer
In Print: Saturday, September 4, 2010

Scientology's most vocal local critic, Ken Dandar, faced disaster. A circuit judge had found him in contempt of court this week and assessed a judgment of $130,000 — to be paid to the Church of Scientology. Dandar might lose his car. He might even lose his law license.

(Judge) Merryday questioned why (Judge) Beach conducted his contempt hearing on Dandar behind closed doors. At the church's request, Beach has sealed every document in the case. Documents sent to the Second District Court of Appeal and the Florida Supreme Court aren't public either.

Potter said he felt squeamish about even talking about Dandar's case in open court. But Merryday refused to close his courtroom doors to the public.

"I'm not going to be entering any seals unless I see a lawful reason, and I can't even see the beginning of a reason," the judge said. He said he wouldn't be swayed by "some circuit judge somewhere who appears for all I can tell to have sealed something for some unknown reason."

Defendant's joint motion for summary judgment can be read here, hot off PACER.

The first two paragraphs summarize their argument:


When a party files a motion for summary judgment, they need to show that there are no issues of fact for a jury to decide and the matter can be disposed of by a judge on a legal basis alone. If Brennan/Gentile/FLAG win their motion, the case is over, and if they lose the case proceeds to trial.

....And the judge [Beach] apparently threatened to revoke Dandar's law license, something he has no power to do.

It is difficult to come up with a charitable explanation for Beach's actions.

First off, he closed the hearing in which he sanctioned Dandar. The settlement agreement may have been confidential, but there is no reason to close a hearing to enforce the agreement. Moreover, even if there were reasons to hold the hearing behind closed doors, when it became a disciplinary action, it should not have proceeded under seal.

Second, the fines appear to be a way to coerce Merryday [the Judge in the actual federal court lawsuit] to yield, which he should not.

Beach has construed the McPherson agreement to mean Dandar, who was not only the lawyer in the case but also a party, would never sue Scientology again. Indeed, Dandar may have agreed not to sue the organization personally, but that should not have restricted his ability to practice law. An agreement to "disengage" from one case is not a promise not to sue in another.

Dandar has appealed Beach's sanctions to the 2nd District Court of Appeal in Lakeland. The judges there need to provide the clarity and transparency that Beach has failed to bring to the case.

....more in article link....

TAMPA - In a rare clash between courts, a federal judge today said he will order a state judge not to interfere with a lawyer's handling of a federal case involving the Church of Scientology.

A visibly irritated U.S. District Judge Steven D. Merryday granted a motion by lawyer Kennan Dandar, who is representing the estate of Kyle Thomas Brennan in a wrongful death suit against the church.

Merryday told Scientology attorneys they "have forced my hand on this issue."

The order is the latest chapter in a years-long animus between the church and Dandar, one of its most persistent adversaries.

It's "very, very rare" for a federal judge to tell a state court judge what to do, said Michael Allen, a professor of constitutional law at Stetson University College of Law, noting a federal law on the books since 1793 makes most such orders illegal.

There are "extraordinarily narrow" exceptions, Allen said, including one allowing federal judges to issue injunctions against state judges to protect their own jurisdiction. This case arguably falls into that category, although Allen predicts "massive appeals."

New stuff hot off the PACER:

Plaintiff's response to defendant's summary judgment motion [PDF]

Lance Marcor Declaration (in support of plaintiff's response to defendant's summary judgment motion [PDF]

Much of this is interesting, but I'll refrain from commenting until I've had a chance to digest.

Oh, and there's this too:

Federal court's injunction versus Beach and Scientology. [PDF]

This ruling couldn't have gone any better for Dandar. Merryday took his time and got the law right (in my opinion), though the precise issue has been so rarely litigated that it will likely be appealed to the 11th Circuit. Merryday saw right through Beach, even using the phrase "...Beach, acting on behalf of Scientology..."

Aside from the smackdown on Beach, Merryday provided an additional public service by quoting the language from the settlement agreement at issue.


Quote:


The order goes on to state that Dandar is listed as a "party" to the settlement agreement, and this was the basis for Beach's rulings restricting Dandar under it. Wally Pope argued in the Tribune article that the question of whether Dandar is also bound by the agreement was addressed at the time and "heavily negotiated."

Even if, for the sake of argument, Pope's statement is accurate and Dandar intended to be bound by the agreement, the matter is far from settled inasmuch as interpreting the agreement to include Dandar requires an illegal construction. Namely, Rule 4-5.6 of the Rules Regulating the Florida Bar:


Quote:


Merryday includes Beach's reasoning why Rule 4-5.6 doesn't apply, all of which are flatly unpersuasive. To wit, (1) case law developed regarding the scope of Rule 4-5.6 after the agreement was signed (ed.: so? this is less a reason than an observation); (2) & (3) Scientology would be harmed because they've thus far conducted themselves as if the agreement was valid (ed.: invaliding a clause within the agreement does not necessitate invalidation of the entire agreement; and (4) Dandar holds a personal and unreasonable animus against Scientology (ed.: Beach is a flat-out whore).

Judge Beach objects to the injunction [PDF file here]. I'll read and try to figure this out later.

Okay, I've had a chance to read, and I have more questions than answers, but that's not surprising. Judge Beach challenges the federal court's injunction against him (not Scientology) on the grounds that (1) Judge Beach was not a "party" capable of being subject to injunctive relief per FRCP 65 (2) the federal court does not have jurisdiction over Judge Beach; (3) the federal court did not provide him notice, which is required of any permanent injunction; and (4) the federal court exceeded its authority (under the All Writs Act) in issuing the injunction.

Before addressing the merits of the above claims, I'll note a very interesting, and possibly only relevant, passage in the introduction:




The emphasized lines above suggest to me that Beach is signaling to the federal court that the injunction against him is unnecessary because Beach will recuse himself if Merryday lifts the injunction as it relates to Beach. The injunction was issued as it was in part to prevent a scheduled hearing before Beach, which Beach cancelled. Thus, there is no scheduled activity before Beach at the present time.

This begs the question: If Merryday were to lift the injunction against Beach, what would then happen to the state claims brought against Dandar by FLAG? Well, Scientology is still bound by the federal court injunction, so any action they would attempt to take would violate the injunction. I would want to know whether the act of assigning a new judge to the case would somehow automatically trigger a status hearing, but that seems unlikely. In any case, the injunction enjoins "State judge Robert Beach of Pinellas County, Florida, and any other judge of the Circuit Court for Pinellas County, Florida, or elsewhere presiding in Estate of Lisa McPherson v. [FLAG]," so Dandar has some ammo if this occurs.

Turning now to Beach's argument against the injunction as it applies to him, we're into some seriously unchartered territory, since the injunction was issued per the rarely utilized All Writs Act, and the body of law upon which to decide the issue is scant. Indeed, in support of his argument that the injunction cannot issue without notice, he cites a 5th Circuit case, a 4th Circuit case (FL is in the 11th Circuit), and a U.S. Supreme Court case from 1799.

That said, the proposition that notice and a hearing is required before a permanent injunction is issued is well settled, I believe, though less clear that it applies with regard to an injunction issued via the All Writs Act. However, it seems unlikely to me that Beach would appear before a hearing called by Merryday, which is one likely reason, I believe, he's begging for an opportunity to recuse himself. Because should Merryday agree with Beach's argument that notice and a hearing was required, Merryday may just take him up on it, and Beach would be required to go disgrace himself before that Court.

Beach's remaining arguments are less persuasive. Beach made himself a party per FRCP 65 when he acted in concert with FLAG, per Merryday. "State judge Beach, acting at the behest of Scientology, ..." This is something Beach might contest at a hearing, but again, does he really want to go there? I can't imagine why he would.

It also seems fairly clear that the federal court has jurisdiction over Judge Beach, due to Judge Beach having subjected himself to the court's jurisdiction when he sanctioned Dandar for his practicing in federal court. Beach's argument on this point is barely a page long, and barely coherent at that, so I won't waste my own time refuting it.

Finally, Beach contends that the federal court erred to the extent it relied on the All Writs Act to issue its injunction because the injunction directed at Judge Beach did not "aid, protect, or preserve the court's jurisdiction." Beach argues that the injunction "simply ensures that the Plaintiff will be represented by a particular attorney." This, of course, is a mischaracterization of the federal court's order, which issued the injunction because (a) Beach had usurped the jurisdiction of the Middle District of Florida in effectively determining Dandar's fitness to practice there; and (b) Beach had aimed his coercion of Dandar not at Dandar, whose motion to withdraw was denied, but the Middle District of Florida (and this Beach cannot do).

It's additionally worth noting that Beach egregiously mischaracterizes the federal court order to the extent he states that the injunction "effectively reverses a State Court ruling that has been affirmed on appeal." To the contrary, the federal court took great pains to note that it was not ruling on the merits of the state case whatsoever. The federal court reversed nothing, but rather stayed the damages. Dandar will have to revisit the state court ruling at some point, and will likely look to appeal to the FL supreme court.

St. Petersburg lawyer Martin Errol Rice, who represents Beach, said Beach's chief goal in getting the order lifted is to recuse himself. He said Beach feels that recent events have "cast kind of a cloud" over his role in the case.

Okay, I don't quite know what went on in the hearing, which lasted 35 minutes according to the clerk's

minutes, but the upshot is that the injunction was revised

[PDF here] ever so

slightly, which modification does not include any clarification as to whether Beach may recuse himself

from the state case.

In order to explain the differences between the original and modified injunctions, I'll quote the

relevant section of both, below.

First, the September 28 Injunction:



Next, today's [October 12] Injunction, with relevant differences emphasized:




As I pointed out in a previous post, Beach's argument was as follows:




The modified injunction specifically addresses Beach's first argument, that he was not a party, by making

it unambiguously clear that he considers Beach as having acted "in concert with Scientology or

Scientology's counsel" and thus within the ambit of FRCP 65. So I guess today didn't go well for Beach. I

do not know whether he actually attended, though the clerk's minutes reflect that Beach's attorney

attended.

The modified order also cured whatever lack of notice deficiency it held simply by providing Beach with a

hearing. The other two arguments are not addressed by the modified injunction. I'll keep an eye out for a

St. Pete Times article to see if they have any play by play from the hearing.

Beach later said he planned to recuse himself immediately.

Ok, to sum, Merryday let Beach out of the state case. I do not believe, as the article suggests, that

this much was made clear by the modified injunction, but whatever--it's not ultimately necessary that the

injunction clarify that Beach be able to recuse himself if Merryday clarified it at the hearing.

This is obviously good for Dandar down the road because Beach's ruling(s) will have to be revisited at

some point in the future, and should Dandar be able to have it/them reversed by a higher court, those

higher courts will be remanding the case to a trial court judge other than Beach, who, one could

reasonably hope, will be less intent on destroying Dandar on behalf of Scientology.

Okay, I missed this yesterday, or it just arrived on PACER. It's Merryday's Order modifying

the injunction [PDF], which is

separate from the modified injunction. In it, Merryday clarifies the reason for modifying the injunction,

and further clarifies that either injunction permitted Beach to recuse himself. Merryday mostly expounds

on the basis for Beach's inclusion under FRCP 65, because he is "in active concert or participation," and

later, "in palpable concert" with Scientology. Embarrassing.

Perhaps more importantly, Merryday affirmatively states that Scientology's actions in state court were

designed to secure the dismissal of the Brennan wrongful death suit. Is this a possible basis for an

additional cause of action? Hmm.

And here's the Beach order recusing himself [PDF]

Relevant text:



It's interesting that he's recused himself only from the Lisa McPherson case and any case involving Ken Dandar, as opposed to instead recusing himself from the case, Dandar, and FLAG, et al. I interpret this to be a tiny act of rebellion on Beach's part given that his conduct that led us to this point has as much to do with him tipping the scales on Scientology's behalf as it does tipping the scales to Dandar's detriment. But whatever--it doesn't matter to the fed court what Beach does so long as he doesn't issue further orders and judgments against Dandar, which, by this recusal order, are no longer a possibility.

Scientology files Notice of Appeal of the September 28 Injunction Order [PDF]. Note: Notice of Appeal is not the appeal itself.

Scientology simultaneously files a motion [PDF] to stay the trial pending the resolution of the appeal (which takes forever).

I'll try to analyze over the next few days. Busy right now.

I believe that a hearing is scheduled today to discuss the Summary Judgment

motion, against which, I note, Dandar filed a supplementary response

[PDF] to defendants' summary judgment motion. The supplementary response notes a host of

conflicting stories and deliberate acts to conceal the Gentiles' post-incident involvement, which argue

against finding summary judgment.

FLAG filed an emergency motion with the 11th Circuit to stay the district court's injunction. [PDF]. Hopefully the 11th Circuit will deny it before I have a chance to analyze Scn's chances.

Not much is 'standard' here, or rather, this factual scenario is pretty unique, which is why FLAG's cases, arguments, and citations with regard to the 'likelihood of success on the merits' prong are all not quite on point and very general, which is probably what dooms this motion.

Page 8 lays out the four criteria necessary to consider for their emergency motion to succeed: (1) the likelihood that Scientology will ultimately prevail in appealing the underlying issue, i.e., the likelihood that the appeals court would lift the district court's injunction staying Scientology and the FL state court from enforcing its sanctions against Dandar; (2) the harm to Scientology if their motion is denied; (3) the harm to the Brennan estate if the Appeals court rules in Scientology's favor and lifts the injunction preventing the enforcement of Beach's order; and (4) harm to the public interest.

Scientology obviously argues that it will ultimately prevail because the fed district court had no authority to interfere with the state court and that it was unsupported by a factual hearing. In support of that argument they cite cases involving the interaction and overlap between state and federal courts whose underlying facts only barely resemble the facts here. I've not thoroughly gone through these cases but even taking FLAG's interpretation of those cases at face value, they're merely citing the general principles expressed in those cases rather than strictly applying those cases to the present matter. I'm not persuaded but then I'm somewhat biased. Additionally, FLAG is asking the 11th Circuit to consider facts not on the underlying record in furtherance of its argument, of which the 11th will take a dim view.

Scientology obviously argued that they will suffer irreparable harm should the 11th not grant its motion, citing their contractual rights per the agreement and FL's ability to enforce its orders (which doesn't harm Scientology, but whatever). Yawn. They're careful to not mention that the supposed contractual right they're seeking to enforce has as its core goal the death of the underlying lawsuit, but I imagine the 11th will get that.

And Scientology obviously argues that there would be no harm to the estate should the injunction be lifted. The district court obviously thought otherwise else it would have a) granted Dandar's motion to withdraw; and b) wouldn't have granted the injunction preventing the enforcement of the FL injunction. I think the district court might have done a better job of explaining why the Brennan estate had no other recourse except to retain Dandar as its attorney, but I don't think that matters all that much either.

The motion is well drafted and impressive for what it has to work with, but staying an injunction is always an uphill climb. They're usually only granted when the lower court so obviously fucked up that undoing it is the only clear recourse. This situation is pretty unique though, and I can't see the 11th Circuit stepping in now, though I'll admit that I don't know what it would do on a non-emergency appeal.

First, I understand that the trial is set to begin on November 15, 2010.

A number of documents were apparently filed in preparation for the trial, which were available on pacer and which are as follows:

• Defendants' proposed voir dire [PDF]
• Defendants' proposed jury instruction [PDF]
• Defendants' trial brief [PDF]
• Defendants' motion to bifurcate [PDF]

I'll separately list FLAG's motion for clarification with regard to the scope of the Court's injunction, since it doesn't pertain to the trial. [PDF]

I've not really gone through these but hope to later.

Good question. In this context, the stated emergency is the impending trial. Any decision from the 11th Circuit would need to be rendered before November 15 because any opinion granting Scientology their relief would effectively force Dandar off as Brennan's counsel which would then require the trial to be rescheduled the Estate searched for new counsel. This emergency 'appeal' isn't really an appeal (it's a motion), though it does force the 11th Circuit to consider the merits of Scientology's arguments on appeal, though not as fully as those arguments will be on full appeal (the legal question the judges ask themselves differs--the movant has to show that he/she will likely prevail on the appeal, whereas an appellant who might ultimately prevail may not be able to show that likelihood; the hurdle is higher at this stage, in other words).

The actual appeal cannot take place until after a decision in the trial.