ST. LOUIS (CN) --- An attorney for televangelist Jim Bakker and his Morningside Church argued before the Eighth Circuit on Thursday that a federal judge erred in dismissing their free speech lawsuit against investigating officials from Arkansas and California looking into a fake Covid-19 cure.
Attorney Derek A. Ankrom of Spencer Fane in Springfield, Missouri, represented Bakker and Morningside before the three-judge panel in a teleconference hearing.
“The court could have ordered jurisdictional discovery and it could have held an evidentiary hearing to determine whether or not personal jurisdiction was found,” Ankrom told the panel. “It elected not to do so.”
He said since the decision to dismiss was based solely on motions and briefs, the court must view the allegations in favor of the plaintiffs.
At issue are efforts by both Arkansas Attorney General Leslie Rutledge and Los Angeles City Attorney Mike Feuer to prevent Bakker from “hawking” his Silver Solution product as a Covid-19 cure on his TV program "The Jim Bakker Show."
“In February 2020, in a nationwide television broadcast, the appellants sold silver solution claiming that it treated Covid-19,” Vincent P. France, an attorney with the Arkansas Attorney General’s Office, told the panel. “As a result, consumers in Arkansas purchased this, which resulted in Attorney General Rutledge’s investigation.”
In response to the investigation, the Blue Eye, Missouri-based Morningside Church and Bakker filed a lawsuit in the Western District of Missouri against the officials, claiming the demand for confidential church information violated their rights to establishment, free speech, free exercise and free press clauses under the First Amendment.
A federal judge dismissed the case based on lack of jurisdiction, prompting the appeal to the St. Louis-based Eighth Circuit.
Ankrom told the appeals court that the investigating officials are blurring the lines between a declaratory judgment and a Section 1983 action in asking the panel to reject his clients' case.
“The tort in this case is not investigation, not the enforcement of the state officials, the state laws,” the attorney argued. “Instead, the underlying conduct that is alleged to give rise to tort is, in fact, the content of communications, mainly a civil investigative demand against subpoena received by the Morningside party that compels them to compile documents, both from Morningside Church Productions, as well as its affiliates, including Morningside Church and its employees and pastor Jim Bakker.”
U.S. Circuit Judges James Loken, a George H.W. Bush appointee, and Ralph R. Erickson, a Donald Trump appointee, spent most of Ankrom’s alloted time questioning him on using freedom of religion to thwart earnest investigative action.
Loken went as far as saying if Ankrom is claiming that religious freedom trumps the ability to demand production for out-of-state discovery, then he was making “a truly heroic argument.”
Ankrom answered, “We believe that to the extent that an out-of-state regulator seeks the production of information that would disclose the members of a church, and their contribution histories, regardless of whether those members reside in that state, is a violation of the First Amendment.”
The two conservative judges pressed further, eventually asking Ankrom if he is saying the church is exempt from all consumer investigations due to freedom of religion, noting that officials can’t investigate consumer fraud without first obtaining the information from Morningside.
“Our position relates to the identities of the individuals and to the extent that it would tie it to specific transactions with contributions,” Ankrom said. “You are correct. I believe you are not correct to the extent that you wouldn't be able to obtain as a state regulator information beyond that. You would certainly be able to obtain information related to the transactions themselves.”
Loken and Erickson pressed Arkansas' attorney on how Missouri’s long-arm statute did not apply to this case in giving Morningside jurisdiction.
“You can’t hide behind religion to defraud the public,” France said.
The panel responded by saying that is a merit argument, not a jurisdictional one.
“There is still no personal jurisdiction,” France answered. “General Rutledge wasn’t trying to cause harm to people in Missouri, she was trying to protect the Arkansas consumers.”
Attorneys Jonathan H. Eisenman, of the Los Angeles City Attorney’s Office, and Samuel Hofmeister, of Bryan Cave in St. Louis, also argued on behalf of the California officials in the matter.
“The only link between my clients and Missouri is the plaintiff happens to reside there,” Hofmeister said. “The simple fact that my client took actions in California directed at plaintiff, who my client may have known were Missouri residents or having Missouri connections, is not sufficient on its own to establish personal jurisdiction.”
Eisenman echoed Hofmeister's position while arguing on behalf of the Los Angeles city attorney.
“The only argued connection between Mike Feuer and state of Missouri is a subpoena, served and enforceable only in California, that the Merced County District Attorney Kimberly Lewis issued,” Eisenman said. “That doesn't even connect Lewis with Missouri.”
U.S. Circuit Judge Jane Kelly, a Barack Obama appointee, joined Loken and Erickson on the panel, which did not indicate when it would issue a ruling.
Bakker faces a similar challenge over his silver solution product relating to Covid-19 cure claims from the Missouri attorney general. That case is pending in Stone County Circuit Court.
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