Opinion
Case No. 3:20-cv-05050-MDH
07-08-2020
MORNINGSIDE CHURCH, INC., Morningside Church Productions, Inc., and Jim Bakker, Plaintiffs, v. Leslie RUTLEDGE, Attorney General for the State of Arkansas, Kimberly R. H. Lewis, District Attorney for the County of Merced, California, Tori Verber Salazar, District Attorney for the County of San Joaquin, California, Mike Feuer, City Attorney for the City of Los Angeles, California, Defendants.
Arsenio Lenell Mims, I Jeremiah W. Nixon, Dowd Bennett LLP, Clayton, MO, Benjamin J. Shantz, Derek Adam Ankrom, Spencer Fane LLP, Springfield, MO, for Plaintiffs. Matthew Lee Dameron, Williams Dirks Dameron LLC, Kansas City, MO, Vincent P. France, Pro Hac Vice, Arkansas Attorney General, Little Rock, AR, for Defendant Leslie Rutledge. James Dale Lawrence, Samuel Hofmeier, Bryan Cave Leighton Paisner, LLP, Kansas City, MO, Roger S. Matzkind, Pro Hac Vice, Merced County, Merced, CA, for Defendant Kimberly R. H. Lewis. James Dale Lawrence, Samuel Hofmeier, Bryan Cave Leighton Paisner, LLP, Kansas City, MO, Richard J. Sordello, Jr., Office of the County Counsel, Stockton, CA, for Defendant Tori Verber Salazar. Agnes P. Ursea, Pro Hac Vice, Los Angeles City Attorney's Office, Gabriel S. Dermer, Pro Hac Vice, Los Angeles City Attorney, Los Angeles, CA, Matthew Lee Dameron, Williams Dirks Dameron LLC, Kansas City, MO, for Defendant Mike Feuer.
Arsenio Lenell Mims, I Jeremiah W. Nixon, Dowd Bennett LLP, Clayton, MO, Benjamin J. Shantz, Derek Adam Ankrom, Spencer Fane LLP, Springfield, MO, for Plaintiffs.
Matthew Lee Dameron, Williams Dirks Dameron LLC, Kansas City, MO, Vincent P. France, Pro Hac Vice, Arkansas Attorney General, Little Rock, AR, for Defendant Leslie Rutledge.
James Dale Lawrence, Samuel Hofmeier, Bryan Cave Leighton Paisner, LLP, Kansas City, MO, Roger S. Matzkind, Pro Hac Vice, Merced County, Merced, CA, for Defendant Kimberly R. H. Lewis.
James Dale Lawrence, Samuel Hofmeier, Bryan Cave Leighton Paisner, LLP, Kansas City, MO, Richard J. Sordello, Jr., Office of the County Counsel, Stockton, CA, for Defendant Tori Verber Salazar.
Agnes P. Ursea, Pro Hac Vice, Los Angeles City Attorney's Office, Gabriel S. Dermer, Pro Hac Vice, Los Angeles City Attorney, Los Angeles, CA, Matthew Lee Dameron, Williams Dirks Dameron LLC, Kansas City, MO, for Defendant Mike Feuer.
ORDER
DOUGLAS HARPOOL, UNITED STATES DISTRICT JUDGE
Before the Court is Plaintiffs' Motion for Temporary Restraining Order and/or Preliminary Injunction. (Doc. 7). Plaintiffs move the Court for an order temporarily restraining and/or preliminarily enjoining Defendants Leslie Rutledge, in her official capacity as the Attorney General for the State of Arkansas ("Rutledge"), Kimberly R. H. Lewis, in her official capacity as the District Attorney for the County of Merced, California ("Lewis"), Tori Verber Salazar, in her official capacity as the District Attorney for the County of San Joaquin, California ("Salazar"), and Mike Feuer, in his official capacity as the City Attorney for the City of Los Angeles, California ("Feuer") (collectively, "Defendants"), from (1) taking any action against Plaintiffs for their alleged violation of the Arkansas Deceptive Trade Practices Act, A.C.A. § 4-88-101, et seq. ("ADTPA"), California False Advertising Law, Cal. Bus. & Prof. Code § 17500 ("FAL"), or California Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 ("UCL"), resulting from the content of their sermons, efforts to inculcate, or solicitation of contributions in conjunction with the offering of Silver Solution, or other products, as part of Plaintiffs' religious practice and exercise, and (2) taking any action against Plaintiffs for their failure to comply with the CID issued by Rutledge or Subpoena issued by Lewis, Salazar, and Feuer, pending the determination of Plaintiffs' right to judgment on the merits of their claim for relief in this action.
Plaintiffs' Complaint seeks prospective declaratory and injunctive relief pursuant to 42 U.S.C. § 1983 arising from Defendants' alleged violations of Plaintiffs' rights under the Establishment, Free Exercise, Free Speech, and Free Press Clauses of the First Amendment, and the Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution.
Defendants oppose Plaintiffs' motion and have filed motions to dismiss Plaintiffs' Complaint for lack of jurisdiction. On June 18, 2020, the Court held a hearing on the pending motion for temporary restraining order and/or preliminary injunction. After careful consideration of the record before the Court, and for the reasons set forth herein, the Court denies the motion. (Doc. 7).
The pending motions to dismiss for jurisdiction are not all ripe for review at this time.
STANDARD
The Eighth Circuit has summarized the factors required to determine whether a temporary restraining order should be issued pursuant to Rule 65 of the Federal Rules of Civil Procedure. The factors are set forth in Dataphase Sys., Inc. v. C L Sys., Inc. , 640 F.2d 109 (8th Cir. 1981) as follows:
In sum, whether a preliminary injunction should issue involves consideration of (1) the threat of irreparable harm to the movant; (2) the state of balance between this harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that movant will succeed on the merits; and (4) the public interest.
Id. at 113. The burden of establishing the necessity of a temporary restraining order is on the movant. See Gelco Corp. v. Coniston Partners , 811 F.2d 414, 418 (8th Cir. 1987). Further, no single factor is determinative in balancing the equities. Dataphase , 640 F.2d at 113. The United States Supreme Court and the Eighth Circuit Court of Appeals have made clear that a temporary restraining order is an extraordinary and drastic remedy and should not be granted unless plaintiffs clearly carry their burden of persuasion. See Mazurek v. Armstrong , 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) ("It frequently is observed that a preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion."); Sanborn Mfg. Co., Inc. v. Campbell/Hausfeld Scott Fetzer Co. , 997 F.2d 484, 485-96 (8th Cir. 1993) (the burden on the movant "is a heavy one").
DISCUSSION
Defendants in this case are elected and/or appointed governmental officials empowered by their respective jurisdictions with responsibility of enforcing consumer protection laws. Plaintiffs are a not-for-profit corporation, which describes itself as a church, a for-profit corporation, wholly owned by the church, and an individual employed as a "minister" by both. Plaintiffs contend that informational inquiries and document requests from Defendants investigating constituent complaints of possible consumer fraud, as well as any action that may be taken in follow up to those informational requests, infringe upon their right of religious freedom and other rights under the First Amendment of the Constitution. Specifically, Plaintiffs argue the inquiries require disclosure of the names of their church partners. They contend Defendants' actions to enforce consumer protection laws against them constitute governmental intrusion into the substance of, and basis or foundation for, certain fundamental religious beliefs. Defendants argue they have made it clear they are not requesting a list of any church members, even given Plaintiffs' broad definition of that term (Plaintiffs refer to these individuals as "partners"), and that their inquiries are limited to representations made in relation to, and furtherance of, the sale of a product consumed in their respective jurisdictions. They note that their requests for information are focused on any products related to Silver Solution offered by Plaintiffs and any representations made by Plaintiffs regarding whether the products are effective in the treatment or eradication of COVID-19.
This case arises as the nation is confronted with a COVID-19 pandemic. Millions of citizens have been diagnosed with the illness and over 125,000 have lost their lives. Both tolls continue to rise. Governmental units are taking emergency steps to control the spread of the disease, including the prohibition of public gatherings, a limit on crowd size, the closure of certain businesses, mandatory social distancing, and a requirement of wearing masks. The nation is eager, if not desperate, to find an effective treatment for the disease.
Plaintiffs broadly define their church membership to include anyone who has ever viewed any part of their daily television show (produced by their for-profit corporation) even if the viewer momentarily paused on their show while flipping channels and even if the viewer shares none of the beliefs expressed on the show. Plaintiffs also consider anyone who has ever ordered the Silver Solution product line from their webpage to be a "partner" of their church, including those who may have ordered products without ever watching the television show or attending any in-person service. They contend their church partnership does not require any request for or consent on the part of the partner. Plaintiffs explain that their many religious beliefs include the importance of maintaining a healthy body in preparation for the second coming of Jesus and the rapture. They contend they "offered" Silver Solution both on their television program and on the internet as a means to help "partners" maintain optimal health. They acknowledge they provide the product upon request only to those willing to make a certain minimum level church contribution. Plaintiffs deny that offering Silver Solution in exchange for a defined contribution amount to the church is a sale. Plaintiffs also deny that they ever represented Silver Solution to be an effective cure or treatment for COVID-19. They note that Silver Solution products have been sold at various retail "health store" outlets before the COVID-19 outbreak and that they believe Silver Solution enhances overall health.
In March 2020, the FDA and FTC contacted Plaintiffs with concerns regarding their efforts to offer Silver Solution to its church "partners." The Attorney General of Missouri has also expressed concerns of Plaintiffs' offering of Silver Solution and has initiated an action involving Plaintiffs and its sale of the product. That action remains pending before Missouri Courts. Plaintiffs contend that the actions of the FDA and FTC led to their decision to stop offering Silver Solution in March of 2020.
Defendants deny this court has jurisdiction and deny that any step they have taken infringe Plaintiffs' religious freedom. They contend that any litigation concerning the scope of their authority to investigate complaints by citizens of their jurisdictions, under laws enacted by their jurisdictions, should first be resolved by the courts of their own jurisdictions. Defendants Mike Feuer, in his official capacity as the Los Angeles City Attorney, Kimberly R. H. Lewis, in her official capacity as the District Attorney for the County of Merced, California, and Tori Verber Salazar, in her official capacity as the District Attorney for the County of San Joaquin, California (the "California Defendants") contend the "tortious act" on which Plaintiffs base their claim is the April 29, 2020 subpoena issued by Defendant Lewis in Merced, California to Plaintiffs' registered address in California.
The City of Los Angeles City Attorney Mike Feuer sent a letter to the Jim Bakker Show in Blue Eye Missouri, dated March 11, 2020 concerning claims made by Plaintiffs regarding the Silver Solution product. Neither California Defendants, Feuer and Salazar, issued a subpoena to Plaintiffs, however all the California Defendants participated in a telephone call with Plaintiffs' counsel, at his request, regarding the subpoena issued by Lewis. The California Defendants argue that due to the lack of personal jurisdiction the Court should deny the Motion for Temporary Restraining Order.
The Court has serious concerns as to whether it has jurisdiction over Plaintiffs' claims. However, the Court will enter a ruling on the pending motions to dismiss for lack of jurisdiction once all the motions have been fully briefed.
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The Arkansas Attorney General's Office received several inquiries from Arkansas consumers regarding the sale of Silver Solution by Plaintiffs. Based on the inquiries, the Arkansas Attorney General's Office opened an investigation and issued a Civil Investigative Demand ("CID") to Plaintiffs in Missouri on March 24, 2020 in order to gather facts and circumstances concerning the sales of Silver Solution to Arkansas consumers. Subsequent to the filing of this lawsuit, but after serving its subpoena on Plaintiffs, the Arkansas Attorney General initiated an enforcement action against Plaintiffs before Arkansas courts. Plaintiffs contend the action was filed in an effort to dissuade this Court from exercising jurisdiction. The Arkansas Attorney General contends this suit was filed to try to circumvent any follow up action by the Attorney General based on the subpoena.
Defendants argue Plaintiffs' broad reading of its religious rights associated with the "offering" of a product in exchange for a contribution (which they note looks a lot like a sale) would allow abuses and the fraudulent sale of merchandise under the guise and subterfuge of religious freedom. Defendants contend they are not only empowered to investigate fraudulent misrepresentation in connection with the sale of products but that investigations to protect the public from fraud are their duty and responsibility under the laws of their jurisdiction. Here, Defendants state, at a minimum, they have the right to seek information related to Plaintiffs' sales of this product to consumers in their jurisdiction through Plaintiffs' broadcasted programs and any internet sites in order to assure the offering of the product by the "church" is part of sincerely held religious beliefs. They contend such an inquiry requires them to review information concerning the basis of representations of product performance and safety.
After due consideration of the record before the Court, the Court DENIES Plaintiffs' request for a TRO. The Court finds Plaintiffs have been unable to demonstrate irreparable harm. The Court is mindful of Plaintiffs' concern regarding the chilling effect the government could have upon their exercise of First Amendment rights. Here, however, Defendants have agreed to drop requests for the specific names of individual recipients of Silver Solution. Further, the Court notes Plaintiffs ceased offering Silver Solution products in March after they received inquiries from the FDA and FTC. Plaintiffs' cessation of offering the products had already occurred prior to their receipt of requests from any of these Defendants and was not based on the action of these Defendants. Finally, the Court notes that Plaintiffs deny ever representing that Silver Solution is an effective treatment or cure to COVID-19 which is the focus of the Defendants' inquiries. Plaintiffs cannot establish that they will be irreparably harmed by any action of Defendants which prevents them, or even discourages them, from doing something they say they have never done and do not intend to do. Any claim of harm based on any further enforcement actions pursued by any of the Defendants is speculative and premature. At this time there is no way for the Court to know exactly what enforcement action may ultimately be pursued by Defendants or granted by the Courts of the States under whose laws Defendants act.
Plaintiffs are also unable to establish they are likely to prevail. The jurisdictional issues raised by Defendants alone raise doubt about the likelihood that Plaintiffs will prevail in this Court. The Court also has serious concerns regarding the breadth of religious freedom Plaintiffs' claim. Plaintiffs' allege violations of their religious freedom as a "religious organization" "offering" a product (in exchange for a church contribution) to the public either through their television show or the internet. They effectively argue that as long as representations made about a product are based on their claim of a sincerely held religious belief the government has no right whatsoever to test the validity of their representations. Such a broad interpretation of religious freedom is especially concerning as it relates to alleged representations regarding the safety and efficiency of products the church is "offering" in exchange for contributions. The Court finds that such a broad interpretation opens the door to the criminally inclined to fraudulently market products to the harm and detriment of the consumer public under the protection and subterfuge of religious freedom. The fact that the church unilaterally considers purchasing consumers to be church partners does not eliminate this concern. While caution and deference should define the government's approach in these situations, at least some governmental inquiry into representations concerning product offerings by "religious organizations," including an inquiry into the basis and sincerity of the representations being made, and the safety of the product for use by the public, seems appropriate. A review of the requests received by Plaintiffs from the Defendants at this time appears to the Court to be within the bounds of reasonable inquiry and focused on the protection of constituents of the governmental entities conducting the investigation. The public interest is served by having consumer protection laws enforced against those who might abuse and misuse the protection of religious freedom under the First Amendment. The actions taken by Defendants regarding Plaintiffs and their offering of Silver Solution products during the COVID-19 pandemic thus far are narrowly focused so as to serve the public interest.
WHEREFORE, for the reasons set forth herein, the Court DENIES Plaintiffs' motion for a temporary restraining order. The Court will issue a subsequent ruling on the pending motions to dismiss once those motions have been fully briefed.