What was the legal basis for Armstrong to win a libel suit against minister Robinson? Ans: The plain truth about the incest! With all his money, Dorothy Armstrong could be paid off and quickly be flown in on the Church jet to testify the incest never happened. But Dorothy Armstrong never denied the incest, nor would she ever sign any statements to that effect. With scores of ministerial character witnesses as to Armstrong's temperance with Dom Perignon and good character, Armstrong should have easily been able to prove Robinson was a liar, that he was fabricating these preposterous claims of HWA drunkenness, molestation and repeated incestual sexual assaults out of thin air, to get a publication injunction and complete retraction, sue Robinson and win big money for damages to Armstrong's character and reputation.
Since Robinson had the truth about Armstrong's incest in his book, the WCG lawyers knew couldn't win with the facts- so they decided not to sue Robinson for libel. Instead, they then resorted to a legally inept, questionable, ineffectual backup legal strategy to try to stop publication - they based their lawsuit on a supposed ministerial breach of WCG confidentiality, meaning that Robinson should have kept the truth about the Apostle's felonious incest with his daughter a secret, only for Pasadena insiders. This weak, unsupportable breach of confidentiality suit by Armstrong was not about challenging the facts or material truth contained in Herbert Armstrong's Tangled Web of his incestual sexual assaults with his minor daughter or his alcoholism. His suit was solely about maintaining WCG ministerial confidentiality! The irony is, many WCG ministers are known to have regularly violated rules of ministerial confidentiality, when they revealed private details about members obtained from ministerial counseling on a regular basis, right from their Sabbath pulpits.
CORNWALL, an individual, and Sherwin McMichael, an individual, Plaintiffs-Appellees,
United States Court of Appeals,Tenth Circuit.
July 7, 1981.
James M. Sturdivant and John Henry Rule of Gable, Gotwals, Rubin, Fox, Johnson & Baker, Tulsa, Okl., for defendant-appellant.
James L. Kincaid, J. David Jorgenson and Keith P. Ellison of Conner, Winters, Ballaine, Barry & McGowen, Tulsa, Okl., for plaintiffs-appellees.
Before DOYLE, McKAY and LOGAN, Circuit Judges.
McKAY, Circuit Judge.
After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Cir. R. 10(e). The cause is therefore ordered submitted without oral argument.
Appellants, defendants below, filed a petition to remove this action to the United States District Court on June 5, 1980. A co-defendant, Interstate Book Company, did not join in the petition for removal and the petition was thus procedurally defective. See Tri-Cities Newspapers, Inc. v. Tri-Cities Pressmen Local 349, 427 F.2d 325 (5th Cir. 1970). Five days after filing the petition for removal the removing defendants filed an application and notice for an order remanding the action to the state court. Plaintiffs concurred in the view that the matter had been improperly removed and also urged the trial court to tax attorney's fees and costs to defendants. Plaintiffs seek to avoid the traditional American rule which disfavors the allowance of attorney's fees by invoking the exception to that rule which sanctions an award of attorney's fees when a party's opponent acts " 'in bad faith, vexatiously, wantonly, or for oppressive reasons.' " Hall v. Cole, 412 U.S. 1, 5, 93 S.Ct. 1943, 1946, 36 L.Ed.2d 702 (1973) (quoting 6 J. Moore, Federal Practice P 54.77(2), p. 1709 (2d ed. 1972)). See also Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 258-59, 95 S.Ct. 1612, 1622, 44 L.Ed.2d 141 (1975).
The trial court found, with adequate support in the record, that "(t)his case was removed improvidently and frivolously because it was obvious that this Court was fully without removal jurisdiction of this action either on federal question grounds or on diversity grounds." Record, vol. 1, at 146. The court awarded attorney's fees in the amount of $6,000.
We have said that a trial court which awards attorney's fees under the "bad faith, vexatious, wanton, or oppressive" exception to the American rule "will be reversed only in circumstances which do not show a reasonable ground for the conclusion that vexatiousness existed." Ryan v. Hatfield, 578 F.2d 275, 277 (10th Cir. 1978). Yet here we do not even have a finding of vexatiousness. Notwithstanding a request by plaintiffs to find bad faith, the trial court found only that "removal of this action was improvident and frivolous." Record, vol. 1, at 147. Although "a case can be so frivolous as to reflect impermissible conduct," Americana Industries, Inc. v. Wometco de Puerto Rico, Inc., 556 F.2d 625, 628 (1st Cir. 1977), the trial court did not indicate that its interpretation of frivolous was to be equated with the intent-laden terminology of "bad faith, vexatious, wanton, or oppressive." In fact, the trial court seemed to be advocating a negligence standard for the award of attorney's fees when it interpreted "frivolous" at the hearing: "I have come to the conclusion that the commencement of this proceeding in this court was frivolous in that if counsel had carefully reviewed the applicable law counsel would have known that this court would not have jurisdiction." Record, vol. 4, at 31.
An award of attorney's fees under the bad faith exception to the American rule "is punitive, and the penalty can be imposed 'only in exceptional cases and for dominating reasons of justice.' " United States v. Standard Oil Co., 603 F.2d 100, 103 (9th Cir. 1979) (quoting 6 J. Moore, Federal Practice P 54.77(2) pp. 1709-10 (2d ed. 1972)). Further, we agree that "(i)nvocation of the bad faith exception to the normal federal rule that attorney's fees may not be recovered requires more than a showing of a weak or legally inadequate case." Americana Industries, Inc. v. Wometco de Puerto Rico, Inc., 556 F.2d 625, 628 (1st Cir. 1979). These considerations highlight the narrowness of the exception under which the trial court purported to award attorney's fees in this case. The exception is not invoked by findings of negligence, frivolity, or improvidence. The trial court's award of attorney's fees is reversed.
Defendants also challenge the trial court's award of $352 for plaintiffs' costs. We find that 28 U.S.C. § 1447(c) allows an award of "just costs" if "it appears that the case was removed improvidently and without jurisdiction." This statutory standard of "improvidence" is clearly less stringent than the "bad faith" standard that must be met in order for a court to award attorney's fees in cases of this nature. The difference between costs and attorney's fees has been noted by other courts. See Bradley v. School Board of City of Richmond, 416 U.S. 696, 706 n.8, 94 S.Ct. 2006, 2013, 40 L.Ed.2d 476 (1974); Demsey & Associates, Inc. v. S.S. Sea Star, 500 F.2d 409, 411 (2d Cir. 1974). We find the trial court's finding of frivolousness to meet § 1447(c)'s "improvidence" standard and affirm the award of costs.
Even during this time of "sexual freedom" the American nation was recently shocked to witness a television program, "The Phil Donahue Show," on which victims of incest discussed their emotional suffering that resulted from such parental abuse. The psychological penalty for such sin continues for generations.
Sometimes perpetrators of such crimes try to justify themselves by citing the case of Lot, the nephew of Abraham, in the book of Genesis. Does the biblical account of the conduct of Lot in any way justify a man taking his own daughter? Let's look at this matter:
- Lot was without a wife, as she had been killed on the trip from Sodom.
- Lot was not the initiator, his daughters were. They plied him with wine, in preparation for what they wanted, children. They thought all mankind had been destroyed, and they wanted to preserve the race.
- Lot performed his part while drunk and never repeated that reprehensible conduct.
Many American states legislated the death penalty in such cases in the earlier years of this country. I knew personally of such a case in Texas back in the 1950's. The father was executed in Huntsville for such an act. He was convicted in Live Oak County, Texas. He had seduced his thirteen-year-old daughter and had continued the affair with her until relatives discovered the crime. It was his own people who demanded the death penalty and the State of Texas accommodated them. I don't know for sure, but I suspect the laws of Oregon and California were not all that different during the thirties and forties.
Incest is a terrible and unnatural crime, an extreme perversity. That is why I was shocked beyond measure to hear that Herbert Armstrong was, himself, guilty of this vile sin. I learned of this in the summer of 1979 from members of his own family. The story, sordid beyond imagination, was told in awful detail.
One family source was Garner Ted Armstrong. Last summer, as HWA attacked his own son in such savage fury, his son was in the depths of despair. His emotional mix included anger and deep hurt. In such a state he told family secrets that otherwise would have been locked within him forever. He said he had learned in 1971 of his father's incredible conduct during the '30's and '40s. The story came directly to him in lurid detail, but he kept it sealed in his own consciousness for all those years. But, in the spring of 1978 while in his father's house for the last time, his father had threatened to "destroy him." Ted, in response, replied, "Dad, I will destroy you. I know about you and -----." (He was speaking of the younger of his two sisters.)
His father had been on a high-handed autocratic binge. But at that comment he sat down quietly and responded, "Well, Ted, there have been times when I have been very far away from God." (Admittedly, this was a strange turn of events in the relationship of the two whom HWA had likened to God the Father and Jesus Christ!)
Ted has told many people that there was a look in his father's eyes he had never seen before. Ted knew his father was now determined to totally destroy any credibility he might have. It was either him or his son. Self-preservation now demanded such action. It was a matter of give or get, and HWA meant to get!
None who have objectively heard the incest story in its awful detail doubt it. This is a vital chapter left out of HWA's autobiography. This sin occurred over a long span of years, a decade after his ordination to the ministry, according to his own family members. No wonder he was not receptive to David Antion's "qualifications for the ministry" paper back in 1974.
Many of us have wondered why HWA was so forceful in covering up Ted's sins for so many years. Ted then seemed to be an extension of himself in his own mind and was not even a separate entity. It was like covering for himself. But when finally he knew he must cut his son off, he had to go all the way. It was either destroy or be destroyed. and there were still some things he wanted to "get" out of life even if he were nearly ninety.
Such matters should not normally be mentioned, but this is by no means a normal case. The welfare of thousands is at stake, and thousands who look to HWA, idolizing him as if he were God himself, must come to understand how dangerous such a view is. Thousands around the world have been hurt by blindly following this man. Now people must be given enough information to make an intelligent decision on whether this is the man who is going to lead them to safety during the "crisis at the close," or whether he is just going to continue taking their money and calling them "dumb sheep"!
Some may feel I should just cover up this whole sordid affair and forget it. But I find that impossible to do, because the welfare of too many people hinges on the truth about his personality.
Paul wrote to Christians of his day: "Take no part in the unfruitful works of darkness, but instead expose them. For it is a shame even to speak of the things that they do in secret" (Eph. 5:11-12, RSV). Earlier in the same chapter, Paul had written: "But immorality and all impurity or covetousness must not even be named among you, as is fitting among saints" (Eph. 5:3, RSV).
"But," some say, "you shouldn't judge God's apostle." The Bible says otherwise! Jesus Christ himself commended the Ephesian church for trying and testing those who claimed to be apostles. Notice Jesus' words: "Thou hast tried them which say they are apostles, and are not, and has found them liars" (Rev. 2:2).
Can someone preach truth for many years and fail in his own spiritual life? Of course! Lucifer did, Solomon did, and so have many others down through the years. That is why Christ asked, "And why call ye me, Lord, Lord, and do not the things which I say?" (Luke 6:46). Christ also said that out of the abundance of the heart the mouth speaks (Luke 6:45). The way a man talks in private is the way he is. His public utterances alone aren't enough to judge a man's character—his trustworthiness. It is especially necessary to know what kind of man you follow when he promises to lead you in the kingdom of God.
In Matthew 7:21-23, we read this warning from Jesus himself:
"Not every one that saith unto me, Lord, Lord, shall enter into the kingdom of heaven; but he that doeth the will of my Father which is in heaven. Many will say to me in that day, Lord, Lord, have we not prophesied in thy name? and in thy name have cast out devils? and in thy name done many wonderful works? And then will I profess unto them, I never knew you: depart from me, ye that work iniquity."In the 59th chapter of Isaiah, that prophet warns of those who conceive mischief, lie, and bring forth iniquity. Their feet run to do evil. The way of peace they know not. They make themselves crooked paths, and they weave spiders' webs. But Isaiah promises in the name of God that those webs shall not be a covering for their sins in the end!
Herbert Armstrong has become tangled in his own web of lies. And the time has come for him to be revealed for what he really is. May God help his followers to see.
But I still doubted the incest allegations -- that is until Mr. Gary Antion confirmed that they were entirely true when I talked with him after his sermon on the last day of Unleavened Bread, April 12. I'd asked him if he'd read David Robinson's book. He said he had. I told him that I'd read in another publication that Dorothy Mattson told his brother David Antion (a former WCG evangelist) all about the incest. (They were and are in-laws.) He nodded. I asked him if David ever said anything to him about it. "Yes," he said.
"What did he say?" I responded.
"He told me the story was true," he calmly said.