# Petition for Writ of Certiorari — Word of Faith World Outreach Center Church, Inc. v. Morales > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_0984%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1993 - **Citation:** 510 U.S. 823 ## Text Bupreme Court, U.S. () 92-1959 ~ w£r1cees JUN 9 1993 —t eerie othe CLERK In The Supreme Court of the United States October Term, 1992 * WORD OF FAITH WORLD OUTREACH CENTER CHURCH, INC., ET AL., Petitioners, DAN MORALES, Attorney General of Texas, Respondent. ¢ On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit $ PETITION FOR WRIT OF CERTIORARI * J.C. Joyce (Counsel of Record) Joyce & PoLLarD 515 South Main Mall, Suite 300 Tulsa, Oklahoma 74103 (918) 585-2751 Diane M. HENSON Boyce C. CaBANIss GRAVES, DOUGHERTY, HEARON & Moopy A Professional Corporation 515 Congress Avenue, Suite 2300 Austin, Texas 78701 (512) 480-5600 Attorneys for Petitioners June 8, 1993 COLLECT (402) 342-283 COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 } OR CALL d QUESTIONS PRESENTED 1. Whether the standard used by the Fifth Circuit in determining that Pullman abstention should be applied in this case is inconsistent with the standard used by other circuit courts and in conflict with the requirement announced by this Court that a case must turn on an ambiguous issue of state law for the Pullman doctrine to apply. 2. Whether the Fifth Circuit erred in reversing the district court’s refusal to abstain in favor of a preexisting state court proceeding filed by the Attorney General in light of the district court’s unchallenged finding that the Attorney General had filed the state court proceeding in bad faith and in retaliation for the Petitioners’ exercise of fundamental First Amendment rights. 3. Whether the Fifth Circuit abused its discretion by ordering the district court to abstain under the Pullman doctrine rather than certifying any unsettled issues of state law directly to the Texas Supreme Court as provided for under Texas law. ii LIST OF ALL PARTIES Reverend Robert Tilton Martha Phillips Tilton Word of Faith World Outreach Center Church, Inc. J.C. Joyce, Esq. Joyce & Pollard Diane M. Henson, Esq. Boyce C. Cabaniss, Esq. Graves, Dougherty, Hearon & Moody, P.C. Dan Morales, Attorney General for the State of Texas Renea Hicks, Special Assistant Attorney General Will Pryor, First Assistant Attorney General Mary F. Keller, Deputy Attorney General Joe Crews, Chief, Consumer Protection Division Virginia Pendergrass Bucy, Assistant Attorney General Ann Kitchen, Assistant Attorney General ili TABLE OF CONTENTS Page ye 8 ys i RE MT URI MMB 6 sca scccesccvnscccccscsccess ii pe 6. | Vv cca ha nee eb ses see tanevesce 1 Ne ce ti cebseescceessauwss 2 STATUTORY PROVISIONS INVOLVED............. 2 ee yy or 3 REASONS FOR GRANTING THE WRIT ........... 7 I. The Pullman Abstention Standard Applied by the Fifth Circuit Conflicts With the Standard Announced by this Court and is Inconsistent With the Standards Applied by Other Circuit eg ES a errr 7 Il. This Case Presents the Court With an Oppor- tunity to Fashion a Precise Standard for the Degree of Uncertainty Necessary in State Law to Justify the Application of Pullman Absten- CEM ECCARE CSAS WM Saeed sna racecesuseseses 11 Ill. The Fifth Circuit’s Holding That the Bad Faith Exception to Younger Abstention is Irrelevant to Pullman Abstention Profoundly Mis- construes the Nature of the Bad Faith Excep- tion and the Relationship Between the Younger en 14 IV. The Fifth Circuit Abused Its Discretion by Ordering Abstention Rather Than Certifying Any Ambiguous Issues of Texas Law Directly to the Texas Supreme Court Pursuant to Texas Rule of Appellate Procedure 114............. 17 iv TABLE OF CONTENTS - Continued COAAIIOIN 5 oisnci.cstuice eee 21 APPENDIX............. ix ree ages Eee App. i Vv TABLE OF AUTHORITIES Page Cases American Trial Law. Ass’n, N.J. Branch v. New Jersey S. Ct., 409 U.S. 467, 93 S.Ct. 627 te a Bellotti v. Baird, 428 U.S. 132, 96 S.Ct. 2857 (1976) .... 18 City of Houston v. Hill, 482 U.S. 451, 107 S.Ct. PISS oct a boa wh dd i ote 8, 18, 20 England v. Louisiana Bd. of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461 SO Pines eacnccks 20, 21 Harman v. Forssenius, 380 U.S. 528, 85 S.Ct. 1177 MAR SPR RTOS aire ae alee ia Sn dan 8 Harris County Comm’rs Court v. Moore, 420 U.S. A BS Be ) aia 19 Hawaii Hous. Authority v. Midkiff, 467 U.S. 229, I I ID i is oy 66h W bie be hv Kodnccs ou nec. 8 Lehman Bros. v. Schein, 416 U.S. 386, 94 S.Ct. 1741 IDE enh ek cke ee aS 18 Pearl Inv. Co. v. City of San Francisco, 774 F.2d a I 13 Pennzoil v. Texaco, 481 U.S. 1, 107 S.Ct. 1519 Sn CEE Pf Chena y PRR OL Dat aE at ae 16, 17 Pietzsch v. Mattox, 719 F.2d 129 (5th Cir. | 9 Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800 PEER Gb iae toy eek clr oe ce 8, 20 Railroad Comm’n v. Pullman Co., 312 U.S. 496, 61 ge Bisco cer.) OEE POPES OT Cae tik 3 Stephens v. Bowie County, 724 F.2d 434 (5th Cir. I heb Se skort ease Seni bubcek veces xeuees, 9 vi TABLE OF AUTHORITIES - Continued Page United Fence & Guard Rail Corp. v. Cuomo, 878 oe Fe ge Ser eerere err erry reer ree 9, 13 Virginia v. American Booksellers Ass’n., 484 U.S. Ps RO ee, Be CEs ba cc case cgicdapssencccicss 18 Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746 (1971)...3, 16 Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391 (1967) .... 20 STATUTES 2B USCA: & 1Z50)) Ceeme. TGRB). on asc scccssevccsncs 2 atk a ee, Be TTR ETT P eee eT ATC ree 5 Article 1302, Chapter 5, Texas Miscellaneous Cor- gw | . eee eee e verry ee eT eee 4, 5, 6 pe | Se PPE TREE TTT Le ee eee 17 Texas Deceptive Trade Practices - Consumer Pro- tection Act, Tex. Bus. & Com. Code § 17.41 et seq CRATE PASS DEER ESE ERA DARE ORE a 4, 5, 6, 10 TREATISES Erwin Chemerinsky, Federal Jurisdiction (1989) ....... 12 Charles A. Wright, Law of Federal Courts (1983)...... 18 17A Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Pro- EE Sy MD vo kenedse sk cadskaneseue 12, 13, 19 Law Review ARTICLES David P. Currie, The Federal Courts and the Ameri- can Law Institute (Pari II), 36 U. Chi. L. Rev. 268 Sy eee ee teres earn ae eke tee 3 Vii TABLE OF AUTHORITIES - Continued Page Julie A. Davies, Pullman and Burford Abstention: Clarifying the Roles of State and Federal Courts in Constitutional Cases, 20 U.C. Davis L. Rev. 1 i ee ane ae eabier eins ecules 3, 12, 13 Martha A. Field, Abstention in Constitutional Cases: The Scope of Pullman Abstention Doctrine, 122 U. PW My MOO OOD COs iccnesecenccerscusvccas, 13 Martha A. Field, The Abstention Doctrine Today, 125 U. Pa. L. Rev. 590, 602-03 (1977).................. 12 Martin H. Redish, Abstention, Separation of Powers, and the Limits of the Judicial Function, 94 Yale L.J. RR eee ieee chee ccs nds hock beck cna wanes 3 Peter H. Barber, Pullman Abstention: A Discussion of Issues and Strategies, 1983 Clearinghouse Rev. POM FS EARS Cilaie AGS Was ais GEC BENS Ako ck cae. 12, 13 Rex E. Lee & Richard G. Wilkins, An Analysis of Supplemental Jurisdiction and Abstention with Rec- ommendations for Legislative Action, 1990 B.Y.U. i Mg a Ole hae kek Gin ts dane aside cesas 11 Richard B. Lillich & Raymond T. Mundy, Federal Court Certification of Doubtful State Law Ques- tions, 18 UCLA L. Rev. 888 (1971) ................. 3 Theodore B. Eichelberger, Certification Statutes: Engineering a Solution to the Pullman Abstention Delay, 59 Notre Dame L. Rev. 1339 ae 3 Thomas G. Buchanan, Pullman Abstention: Recon- sidering the Boundaries, 59 Temp. L.Q. 1243 SSRI 66 GSS ety ica aa 3, 11, 12 viii TABLE OF AUTHORITIES - Continued Page CONSTITUTION United States Constitution, Amendment |....... passim United States Constitution, Amendment XI........... 2 * In The Supreme Court of the United States October Term, 1992 r’ v WORD OF FAITH WORLD OUTREACH CENTER CHURCH, INC., ET AL., Petitioners, V. DAN MORALES, Attorney General of Texas, Respondent. ¢ On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit & PETITION FOR WRIT OF CERTIORARI ° Petitioners, Word of Faith World Outreach Center Church, Inc. (the “Church”), Robert Tilton and Martha Phillips Tilton (the “Tiltons”) pray that a Writ of Cer- tiorari be issued to review the decision in this case of the United States Court of Appeals for the Fifth Circuit. ¢ OPINIONS BELOW The opinion of the United States Court of Appeals for the Fifth Circuit, reported at 986 F.2d 962 (Sth Cir. 1993), is attached hereto as Appendix A, App. 1-18. The opinion 1 of the United States District Court for the Western Dis- trict of Texas, reported at 787 F. Supp. 689 (W.D.Tex. 1992), is attached hereto as Appendix D, App. 23-63. ¢ JURISDICTION The opinion of the Fifth Circuit in this case was issued on March 29, 1993. (See Appendix A, App. 1-18) An order denying Appellees’ Motion for Rehearing before the Fifth Circuit was issued on April 26, 1993. (See Appendix C, App. 21-22) The jurisdiction of this Court is invoked pursuant to 28 U.S.C.A. § 1254(1) (Supp. 1993). ¢ STATUTORY PROVISIONS INVOLVED Although the proceedings below involved the First and Eleventh Amendments to the United States Constitu- tion and various provisions of Texas law, this Petition presents issues pertaining only to the proper application of Pullman abstention which is a non-statutory, court- made procedural doctrine. The Texas certification rule, Texas Rule of Appellate Procedure 114, is implicated in this Petition. Because Rule 114 is somewhat lengthy, its text is set out in Appendix E, App. 64-66. ¢ STATEMENT OF THE CASE This case involves the Pullman) abstention doctrine, the limits on its use, the need for a uniform standard for determining when its use is appropriate, its relationship to other species of abstention — namely the Younger? doc- trine — and its continued viability when direct state supreme court certification of uncertain state law issues is available. In short this case presents the Court with the opportunity to thoroughly examine one of the most con- troversial of all court-made procedural doctrines.3 ' Pullman abstention is so named after Railroad Comm’n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643 (1941), the case in which the doctrine was initially articulated. 2 Younger abstention takes its name from Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746 (1971), the case in which that doctrine was first expostulated. ° Each of the articles and treatises cited in this Petition is, to some extent, critical of the Pullman abstention doctrine. Some commentators advocate its abolition altogether. See Martin H. Redish, Abstention, Separation of Powers, and the Limits of the Judicial Function, 94 Yale L.J. 71 (1984); David P. Currie, The Federal Courts and the American Law Institute (Part II), 36 U. Chi. L. Rev. 268, 317 (1969). Others propose additional limitations on its application. See Thomas G. Buchanan, Pullman Abstention: Reconsidering the Boundaries, 59 Temp. L.Q. 1243 (1986); Julie A. Davies, Pullman and Burford Abstention: Clarifying the Roles of State and Federal Courts in Constitutional Cases, 20 U.C. Davis L. Rev. 1 (1986). Still others propose that its use be discontinued when direct state court certification is available. See Theodore B. Eichelberger, Certification Statutes: Engineering a Solution to the Pullman Abstention Delay, 59 Notre Dame L. Rev. 1339 (1984); Richard B. Lillich & Raymond T. Mundy, Federal Court Certifica- tion of Doubtful State Law Questions, 18 UCLA L. Rev. 888 (1971). The backdrop for this proposed examination is pro- vided by an extraordinary set of facts. This case was precipitated when the Attorney General of Texas attempted to suppress the religious teachings of what he acknowledges to be a bona fide church (App. 24, n.1) because he found them detrimental to the people of Texas. After waging war against Petitioners in the media, the Attorney General, claiming authority under the Texas Deceptive Trade Practices - Consumer Protection Act, Tex. Bus. & Com. Code § 17.41 et seg (the “DTPA”), demanded that the Church turn over documents which the district court found to be clearly protected by the United States Constitution. (App. 46) In reaction to this demand, the Church notified the Attorney General that it would seek protection through a federal court suit. (App. 26) To compel the Church to turn over these documents and, as the district court later found, to prevent the acquisition of federal jurisdiction (App. 31), the Attorney General filed a quo warranto proceeding in state court in which he sought the revocation of the Church’s charter, the appointment of a receiver over its assets, and a per- manent injunction against all operations of the Church. (App. 27) The Attorney General sought this draconian relief pursuant to Article 1302, Chapter 5, Texas Miscella- neous Corporation Laws Act (the “MCLA”). (Id.) The quo warranto action is still pending in the Probate Court of Travis County, Texas. 4 A more detailed account of the somewhat complex sequence of events that led to the filing of Petitioner’s federal complaint is provided in Appendix F, App. 67-72. Two days after the Attorney General filed his quo warranto proceeding which threatened the very existence of the Church, Petitioners filed this action in federal district court pursuant to 42 U.S.C.A. § 1983 (1981), con- tending that the Attorney General’s actions violated the First Amendment to the United States Constitvtion and seeking an injunction to prevent the Attorney General from attempting to enforce his document demand and from prosecuting his quo warranto proceeding. Following a two day trial, the district court held that: (i) Texas law was “clear” that the DTPA, the claimed source of authority for the document demand, was not applicable to an entity, like the Church, that sold nothing and was in no way involved in trade or commerce (App. 38), (ii) the application of the DTPA to the Church vio- lated the Establishment Clause of the First Amendment (App. 51-53), (iii) the Attorney General’s demand that the Church turn over all of its sensitive documents, including tapes of all of its sermons and a list of its members, violated the Free Exercise Clause and the Freedom of Association Clause of the First Amendment (App. 46), and (iv) the application of the MCLA, the claimed source of authority for the filing of the quo warranto suit, to the Church violated the Church’s rights under the First Amendment because the “remedies provided under the MCLA and sought by the Attorney General would wholly deprive the Plaintiffs of their right to worship” (App. 54-55). Based on these findings, the district court perma- nently enjoined the quo warranto proceeding and the Attorney General's attempts to obtain constitutionally protected documents from the Church. (App. 62-63) The district also court rejected the Attorney General’s request that it abstain under either the Younger or Pullman abstention doctrines because it found that the Attorney General’s actions against the Church, including the filing of the quo warranto proceeding, were taken in bad faith. (App. 32) The district court also expressly found that the Attorney General had filed his quo warranto action for the purpose of retaliating against the Petitioners’ exercise of their First Amendment rights. (App. 33-34) On appeal the Fifth Circuit ruled that the district court should have abstained pursuant to the Pullman doctrine. The court reached this result based solely on its conclusion that the case turned on state law issues that are “fairly susceptible to an interpretation that might avoid or substantially modify the federal constitutional question.” (App. 11-12) The court did not determine that the state statutes involved, the DTPA and the MCLA, were ambiguous or uncertain. Indeed, with respect to the DTPA, the Fifth Circuit concluded that it was “highly likely” that the district court’s finding that the DTPA did not apply to the Church was correct. (App. 14) With respect to the MCLA, the Fifth Circuit noted that none of the exceptions to its application included churches or religious corporations (App. 14, n.8), but concluded that “nonetheless, a state court might impose a limiting con- struction on the statute.” (Id.) The Fifth Circuit’s own conclusions, therefore, indicate that no real uncertainty exists regarding the application of the two state statutes to the Church - the DTPA does not apply and the MCLA does. : Although the district court found that the Attorney General filed the quo warranto proceeding in bad faith and - alll 7 to retaliate for Petitioners’ exercise of their First Amend- ment rights, the Fifth Circuit nevertheless held that the bad faith exception to the Younger abstention doctrine is irrelevant for the purposes of Pullman abstention. (App. 17, n.10) Indeed, the Fifth Circuit supported its decision to abstain under the Pullman doctrine based on the exis- tence of the pending quo warranto proceeding. (App. 18, n.12) In their Motion for Rehearing the Petitioners requested that the court not only reconsider its holding on Pullman abstention but also, alternatively, that it cer- tify any ambiguous issues of state law directly to the Texas Supreme Court pursuant to the Texas certification rule. The Fifth Circuit denied Petitioners’ Motion for Rehearing without comment. a REASONS FOR GRANTING THE WRIT I. The Pullman Abstention Standard Applied by the Fifth Circuit Conflicts With the Standard Announced by this Court and is Inconsistent With the Standards Applied by Other Circuit Courts. The standard developed by the Fifth Circuit and applied in this case to determine the applicability of Pullman abstention omits the most critical element of the Pullman doctrine. This Court has repeatedly held that the application of the Pullman abstention doctrine is appro- priate only if two elements are satisfied: (1) the state Statute at issue must be uncertain, unsettled, or ambig- uous and (2) it must be fairly subject to an interpretation which will render unnecessary or substantially modify the federal constitutional question. City of Houston v. Hill, 482 U.S. 451, 468, 107 S.Ct. 2502, 2513 (1987); Hawaii Hous. Authority v. Midkiff, 467 U.S. 229, 236, 104 S.Ct. 2321, 2327 (1984); Harman v. Forssenius, 380 U.S. 528, 535, 85 S.Ct. 1177, 1182 (1965). The first element of the standard — that the issue of state law involved be uncertain, unsettled, or ambiguous — is an absolute prerequisite for the applica- tion of the Pullman doctrine. City of Houston v. Hill, 482 U.S. at 469, 107 S.Ct. at 2514 (“when a statute is not ambiguous, there is no need to abstain even if state courts have never interpreted the statute”) and Procunier v. Mar- tinez, 416 U.S. 396, 402-03, 94 S.Ct. 1800, 1806 (1974) (unsettled state law is “the essential prerequisite for abstention”). The standard developed by the Fifth Circuit directly conflicts with this Court’s holdings by requiring the pres- ence of only one of these elements as a prerequisite for the application of the Pullman doctrine: In order to app!y the [Pullman] abstention doc- trine, the district court must be convinced that at least one of three factors is present: (1) Whether the disposition of a question of state law involved in the case can eliminate or narrow the scope of the federal constitu- tional issue; (2) Whether the state law question presents difficult, obscure or unclear issues of state law; or (3) Whether a federal decision could later con- flict with subsequent state court resolutions concerning the same regulatory program or scheme, thus engendering more confusion. (Emphasis added) Stephens v. Bowie County, 724 F.2d 434, 435 (Sth Cir. 1984).5 See also Pietzsch v. Mattox, 719 F.2d 129, 131 (Sth Cir. 1983). Because only one of these three factors need be present, under the Fifth Circuit’s standard a federal court can abstain under the Pullman doctrine if the resolution of the state law issue involved will narrow or eliminate the federal constitutional issue — even if the State law is not uncertain or ambiguous. That was the precise result in the instant case. The Fifth Circuit abs- tained solely on its conclusion that the Texas statutes at issue were fairly subject to an interpretation which would moot the federal constitutional claims brought by Peti- tioners. (App. 12) (“The question thus presented is whether the statutes at issue here apply full force to the church or are susceptible of a limiting construction that would alleviate the unconstitutional burdens the district court found they imposed on the church.”) The Fifth Circuit did not examine the statutes at issue to determine if their application to the facts of this case was uncertain under Texas law. On the contrary, the court endorsed the ° This standard should be compared to the standard adopted by the Second Circuit: The three basic conditions that must be present to trigger Pullman abstention reflect the policies that underlie the doctrine: First, the state statute must be unclear or the issue of state law uncertain; second, resolution of the federal issue must depend upon the interpretation given to the ambiguous state provision; and third, the state law must be susceptible of an interpretation that would avoid or modify the federal constitutional issue. (Emphasis added) United Fence & Guard Rail Corp. v. Cuomo, 878 F.2d 588, 594 (2d Cir. 1989). 10 district court’s finding that Texas law was “clear” that the DTPA could not be applied to the Church: It is highly likely, as the district court noted, that the DTPA does not even apply to the church. Significantly, it is the DTPA that provides the Texas Attorney General with the investigative authority upon which the objectionable January 13, 1992, demand letter was predicated. A state court ruling to the effect that the DTPA does not apply to the church plainly would moot any federal constitutional claim, at least insofar as it was premised upon the application of the DTPA. (App. 14) The Fifth Circuit would thus force the parties to relitigate this issue in state court even though the district court has already resolved it and the Fifth Circuit found it “highly likely” that the district court’s resolution was correct. This pointless result wastes judicial resources and does not serve the policies underlying the Pullman doc- trine. Commentators have noted that the Pullman absten- tion standard applied by the Fifth Circuit is inconsistent with the purpose of the Pullman doctrine -and with Supreme Court precedent: The approach taken by the Fifth Circuit clearly demonstrates a failure to perceive the purposes of the Supreme Court in establishing the Pull- man abstention doctrine . . . [The Fifth Circuit’s] approach has the potential to extend the scope of Pullman abstention far beyond its limited function and purpose. By requiring only one of the Supreme Court’s triggering elements must be met before abstention is ordered, the Fifth Circuit acts counter to precedent established by the Supreme Court. 11 Footnotes omitted. Buchanan, supra, at 1255-56.© See also Rex E. Lee & Richard G. Wilkins, An Analysis of Supple- mental Jurisdiction and Abstention with Recommendations for Legislative Action, 1990 B.Y.U. L. Rev. 321, 340-41 (conclud- ing that the Fifth Circuit’s Pullman standard allows appli- cation of the doctrine to a far wider range of cases than does the standard used in the Second Circuit). The Court should grant writ in this case to correct the erroneous and widely criticized Pullman abstention standard applied by the Fifth Circuit. II. This Case Presents the Court With an Opportunity to Fashion a Precise Standard for the Degree of Uncertainty Necessary in State Law to Justify the Application of Pullman Abstention. The Court should grant writ in this case in order to formulate a consistent standard for determining the extent to which state law must be unclear in order to trigger the application of Pullman abstention. Although the Court has consistently required the presence of an unclear or ambiguous issue of state law as a prerequisite for abstention under the Pullman doctrine, virtually every commentator who has addressed Pullman abstention has bemoaned the fact that the Court has failed to articulate a consistent standard for the degree of ambiguity necessary to render abstention appropriate. See, e.g., 17A Charles A. © After noting “substantial disparity among the circuits” in the application of the Pullman doctrine, the author concluded that the Pullman standard applied by the Second Circuit is con- sistent in furthering the purposes of the Supreme Court. Id. at 1252. The Second Circuit standard is set out above at note 5. 12 Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4242 at 42 (2d ed. 1988) (“The Court has not defined with precision what degree of unclarity in state law is needed to justify Pullman-type abstention”); Erwin Chemerinsky, Federal Jurisdiction § 12.2.1 at 599 (1989) (the “Supreme Court has offered relatively little guidance about how unclear the state law must be [to trigger Pullman abstention”]); Buchanan, supra, at 1251 (“the lack of a concise, workable definition of the proper circumstances in which to apply Pullman abstention provides the lower federal courts with little in the way of guidance”); Davies, supra, at 7 (“Commenta- tors have noted the existence of different shades of ‘unclarity’ and the uncertainty of how unclear state law must be to justify abstention”); Peter H. Barber, Pullman Abstention: A Discussion of Issues and Strategies, 1983 Clearinghouse Rev. 1093 at 1097 n.49 (reviewing the vary- ing standards announced by the Court for the necessary degree of ambiguity in state law to trigger Pullman abstention). Some commentators have suggested that the lack of a precise standard for the degree of unclarity in state law necessary to trigger the Pullman doctrine has led to abuse of the doctrine by lower courts. See Wright, Miller & Cooper, supra, § 4242 at 43-44 (“Indeed the standard on when state law is sufficiently unclear to justify abstention is so amorphous that it has been suggested that decisions on whether to abstain may be shaped by the court’s view of the substantive issues that the case presents,” citing Martha A. Field, The Abstention Doctrine Today, 125 U. Pa. L. Rev. 590, 602-03 (1977), and Buchanan, supra, at 1251). 13 This case presents the Court with the opportunity to announce a precise standard for the degree of unclarity necessary to trigger the Pullman doctrine. Commentators have urged the adoption of a standard under which a federal court would abstain under Pullman only if the dispositive issue of state law involved is so unclear that the court would run a “substantial” risk of error in decid- ing it. Davies, supra, at 48 (“courts should confine Pull- man abstention to those instances in which the underlying and potentially dispositive question of state law is so unclear that federal courts would runa substantial risk of error in deciding it”); Barber, supra, at 1097 (“the best view is that Pullman is appropriate only when the state law raises substantial doubt as to its correct interpreta- tion”). In perhaps the most influential work dealing with Pullman abstention,” Professor Martha Field Proposes a standard under which a federal court would abstain from deciding an issue of state law only when the state law is so unclear that the “chance of error is reasonably great.” Martha A. Field, Abstention in Constitutional Cases: The Scope of Pullman Abstention Doctrine, 122 U. Pa. L. Rev. 1071, 1090 (1974). The Field standard has already been adopted by the Second and the Ninth Circuits. United Fence & Guard Rail Corp. v. Cuomo, 878 F.2d 588, 595 (2d Cir. 1989); Pearl Inv. Co. v. City of San Francisco, 774 F.2d 1460, 1465 (9th Cir. 1985). | 7 Professors Wright, Miller and Cooper acknowledge Pro- fessor Field’s 1974 article in the Pennsylvania Law Review to be the “outstanding work in the area of Pullman abstention.” Wright, Miller & Cooper, supra, § 4244 at 81 n.44. 14 In this case the Fifth Circuit concluded that it was “highly likely” that the district court’s interpretation of the primary state statute at issue in this case is correct. Based on this finding, the chances of the district court’s interpretation of state iaw being in error cannot be “rea- sonably great.” Under the Second and Ninth Circuit stan- dards therefore, the Fifth Circuit’s decision to abstain under Pullman was in error. The Court should grant the writ in this case in order to provide a consistent standard for determining whether state law is sufficiently unclear to trigger abstention under the Pullman doctrine. III. The Fifth Circuit’s Holding That the Bad Faith Exception to Younger Abstention is Irrelevant to Pullman Abstention Profoundly Misconstrues the Nature of the Bad Faith Exception and the Rela- tionship Between the Younger and Pullman Doc- trines. ; The Fifth Circuit refused to accept the district court’s conclusion that the Attorney General's bad faith filing of the state court quo warranto action rendered abstention in favor of that proceeding inappropriate under both the Younger and the Pullman doctrines. The reasoning applied by the Fifth Circuit in reaching this result treats Younger and Pullman abstention as two separate, unrelated doc- trines and effectively reads the critical bad faith exception out of the Younger doctrine. The Fifth Circuit’s reasoning is completely at odds with this Court’s global approach to abstention. The district court expressly found that seven differ- ent actions taken by the Attorney General against Peti- tioners, including the filing of the state court guo warranto 15 proceeding, constituted bad faith. (App. 29-30) Speci- fically, the district court found that the Attorney General had filed the state court proceeding in which he sought to strip the Church of its charter, appoint a receiver over its assets and enjoin its minister from conducting the busi- ness of the Church, for the purpose of retaliating against Petitioners for exercising their rights under the First Amendment. (App. 33-34) The district court concluded that these facts precluded the application of either Youn- ger or Pullman abstention. (App. 32) With little discussion, the Fifth Circuit peremptorily dismissed this basis for the district court’s rejection of Pullman abstention: [W]e are persuaded that prosecutorial bad faith and harassment, although constituting a recog- nized exception to Younger abstention, possesses little or no relevance for Pullman-type situations. (App. 17, n.10) In so holding, the Fifth Circuit completely misconstrues the nature of the bad faith/harassment exception to Younger abstention and the relationship between the various abstention doctrines. The bad faith exception to the Younger doctrine is premised on the conclusion that a bad faith state court proceeding filed by a state official for the purpose of retaliation or harass- ment is, in itself, a constitutional violation. Justice Stew- art succinctly stated the rationale behind the bad faith exception to the Younger doctrine: [I]f there has been bad faith and harassment — official lawlessness — in a statute’s enforcement- . .. the reasons of policy for deferring to state 16 adjudication are outweighed by the injury flow- ing from the very bringing of the state proceed- ings, by the perversion of the very process that is supposed to provide vindication, and by the need for speedy and effective action to protect federal rights. Citations omitted. Younger v. Harris, 401 U.S. 37, 56, 91 S.Ct. 746 (1971) (J. Stewart, concurring). The existence of a state proceeding filed in bad faith by a state official must therefore constitute a valid basis for refusing to abstain not only under the Younger doctrine but also under the Pullman doctrine. Neither Younger nor Pullman abstention can justify forcing a party to endure an uncon- stitutional, bad faith state court proceeding. The Fifth Circuit’s holding also flies in the face of this Court’s articulation of the interrelated nature of the two doctrines: [CJonsiderations similar to those that mandate Pullman abstention are relevant to a court’s deci- sion whether to abstain under Younger. The var- ious types of abstention are not rigid pigeonholes into which federal courts must try to fit cases. Citations omitted. Pennzoil v. Texaco, 481 U.S. 1, 11 n.9, 107 S.Ct. 1519, 1526 n.9 (1987). In this case the Fifth Circuit has ruled that a consideration fundamental to the Younger doctrine is completely irrelevant to the Pullman doctrine. Indeed, the Fifth Circuit actually relies on the existence of the quo warranto proceeding as a consider- ation supporting its application of Pullman abstention. (App. 18, n.12 (existence of a pending state court pro- ceeding in which issues of state law may be resolved a ae at we nea 17 Supports application of Pullman doctrine)) By expressly approving the continuation of the state court Proceeding, the Fifth Circuit has effectively stripped the Younger doc- trine of its bad faith exception, endorsed the Attorney General’s bad faith efforts to thwart federal jurisdiction and retaliate against Petitioners’ exercise of their First Amendment rights, and, Perhaps most ironically, has well illustrated the intrinsic error, rejected by this Court in Pennzoil, of treating Younger and Pullman abstention as unrelated doctrines. This Court should grant writ to reaf- firm its holding in Pennzoil and correct the Fifth Circuit’s “pigeonhole” approach to abstention. IV. The Fifth Circuit Abused Its Discretion by Order- ing Abstention Rather Than Certifying Any Ambiguous Issues of Texas Law Directly to the Texas Supreme Court Pursuant to Texas Rule of Appellate Procedure 114. Rather than force Petitioners to endure a state court proceeding brought in bad faith for the Purpose of relitigating facts already found by the district court, the Court of Appeals should have simply certified any unclear questions of state law directly to the Texas Supreme Court. Texas Rule of Appellate Procedure 114 allows the Court of Appeals to certify to the Texas Supreme Court any unsettled questions of Texas law. (App. 64-66) This Court has enthusiastically endorsed the use of certification as an alternative to Pullman abstention when 18 direct certification is available. Virginia v. American Book- sellers Ass’n., 484 U.S. 383, 396, 108 S.Ct. 636, 644 (1988) (“Certification, in contrast to the more cumbersome and (in this context) problematic abstention doctrine, is a method by which we may expeditiously obtain [an authoritative construction of state law]”); City of Houston v. Hill, 482 U.S. at 470, 107 S.Ct. at 2514 (“the certification procedure is useful in reducing the substantial burdens of cost and delay that abstention places on litigants”); Bellotti v. Baird, 428 U.S. 132, 150-51, 96 S.Ct. 2857, 2868 (1976) (“the availability of an adequate certification pro- cedure ‘does, of course, in the long run save time, energy, and resources and helps build a cooperative judicial fed- eralism,’ ” quoting Lehman Bros. v. Schein, 416 U.S. 386, 391, 94 S.Ct. 1741, 1744 (1974)). Certification, as opposed to Pullman abstention, is particularly appropriate in this case because it is the only method by which federal jurisdiction may be retained 8 Commentators are virtually unanimous in strongly pre- ferring certification to the much more burdensome Pullman abstention doctrine. See, e.g., Charles A. Wright, Law of Federal Courts § 52 at 315 (1983): Although there is still disagreement on the desir- ability of certification in cases of unclear state law, there is no such disagreement about the value of certi- fication in situations of the Pullman type. The state law questions that are intertwined with federal con- stitutional issues in Pullman-type cases can be resolved more expeditiously by certification than by the traditional method of requiring a party to com- mence a declaratory judgment action in the state trial court and take the decision there to the highest court of the state. 19 pending the resolution of any ambiguous state law issues. When issues of Texas law are involved, a federal court applying the Pullman doctrine cannot follow the pro- cedure mandated by this Court and retain jurisdiction pending the outcome of proceedings in state court. Ameri- can Trial Law. Ass‘n, N.J. Branch v. New Jersey S. Ct., 409 U.S. 467, 469, 93 S.Ct. 627, 629 (1973). Instead, the federal court must dismiss the proceeding, leaving the federal plaintiffs to refile in federal court when and if proceed- ings in state court are concluded. Harris County Comm'rs Court v. Moore, 420 U.S. 77, 88 n.14, 95 S.Ct. 870, 875 n.14 (1975). As pointed out in Wright and Miller, direct certi- fication to the Texas Supreme Court, which became avail- able in 1987, now allows federal courts to discontinue this “highly artificial practice.” Wright, Miller & Cooper, supra, § 4243 at 66-67. The ramifications of the district court’s inability to retain jurisdiction in this case are of critical significance. First, the district court will not be able to grant any form of interim relief to protect Petitioners’ federal constitu- tional rights pending state court resolution of the state law issues involved. Under the circumstances of this case ~ a State attorney general misusing the power of his office in an attempt to suppress the First Amendment rights of an acknowledged, bona fide church — the inability of the district court to grant interim relief is crucial. Second, because the federal suit must be dismissed, Petitioners lose the benefit of the district court’s determination of 20 fact issues.? This Court has expressly rejected that result. England v. Louisiana Bd. of Medical Examiners, 375 U.S. 411, 417, 84 S.Ct. 461, 466 (1964) (“in cases where, but for the application of the abstention doctrine, the primary fact determination would have been by the District Court, a litigant may not be unwillingly deprived of that deter- mination”). Finally, the fact that Petitioners’ federal suit must be dismissed will significantly add to the expense and delay associated with the application of the Pullman doctrine in this case. If the Texas courts resolve state law so that the constitutional issues already decided by the district court are not mooted, Petitioners will be forced to start over again in the district court by refiling and relitigating their federal constitutional claims. This result would greatly exacerbate the delay and expense attendant upon the application of Pullman abstention.!° 9 This case is tailor-made for certification because all fact findings necessary to the resolution of any state law issues have already been made by the district court. These findings of fact have gone unchallenged by the Attorney General. Certification therefore would not be complicated by the necessity of any additional fact finding. 10 The delay that would be caused by the application of the Pullman doctrine in this case is particularly serious due to the fundamental nature of First Amendment rights involved. This Court has repeatedly expressed an unwillingness to apply Pull- man abstention with its attendant delays when fundamental rights, particularly First Amendment rights, are at issue. City of Houston v. Hill, 482 U.S. at 467-68, 107 S.Ct. at 2513; Procunier v. Martinez, 416 U.S. at 404, 94 S.Ct. at 1807; Zwickler v. Koota, 389 U.S. 241, 252, 88 S.Ct. 391, 397 (1967). or ee ee ee a 21 The use of certification would also avoid the pro- cedural balancing act required of Petitioners to preserve their federal constitutional claims for federal court. See England v. Louisiana Bd. of Medical Examiners, 375 U.S. at 420, 84 S.Ct. at 467 (setting out requirement that Pullman plaintiff submit federal constitutional claims to state court so that court may construe state law in “light of those claims,” but must at the Same time reserve those Claims to avoid later res judicata preclusion in federal court). Even though certification is a singularly appropriate alternative to abstention under the facts of this case, the Fifth Circuit refused Petitioners’ request that any uncer- tain issues of Texas law be certified to the Texas Supreme Court. That refusal, under the circumstances present here, was an abuse of discretion. This Court should- enforce its long-standing preference for certification over abstention by requiring the Court of Appeals to certify any questions of Texas law directly to the Texas Supreme Court.11 CONCLUSION The jurisprudence Surrounding the Pullman absten- tion is currently in a state of disarray. This disarray is illustrated by the Fifth Circuit's holding in this case. The "1 It should be noted that under the Texas certification stat- ute only this Court or the Fifth Circuit can certify questions in this case. The district court cannot do so. (App. 64) 22 Fifth Circuit reached its conclusion that Pullman absten- tion was appropriate in this case only by using an erro- neous, widely-criticized standard that conflicts with the standard applied by other circuit courts, and by conclud- ing that the bad faith use of state law by a state official for the purpose of deterring Petitioners from exercising their constitutional rights, while critical to the Younger doctrine, is irrelevant to the Pullman doctrine. Finally, by flatly refusing to certify any ambiguous issues of state law directly to the Texas Supreme Court, the Fifth Circuit ignored the extraordinary costs of abstaining in this case and further ignored this Court’s repeated exhortations to use certification, when available, as an alternative to abstention. This case presents the Court with a golden opportunity to clarify and impose consistency on the use of Pullman abstention. For the foregoing reasons, Petitioners respectfully pray that a Writ of Certiorari issue to review the decision of the Court of Appeals for the Fifth Circuit. Respectfully Submitted, J.C. Joyvce (Couns::! >f Record) Joyce £. PoLLarRD 515 South Main Mall, Suite 300 Tulsa, Oklahoma 74103 (918) 585-2751 Diane M. HENSON Boyce C. CABANISS Graves, DouGHERTy, HEARON & Moopy A Professional Corporation 515 Congress Avenue, Suite 2300 Austin, Texas 78701 (512) 480-5600 Attorneys for Petitioners App. i Appendix Table of Contents Appendix A Opinion of United States Court of Appeals for the Fifth Circuit, Dated March 29, 1993...... App. Appendix B Judgment of United States Court of Appeals for the Fifth Circuit, Dated March 29, 1993...... App. Appendix C Opinion on Petition for Rehearing to United States Court of Appeals for the Fifth Circuit, I OE osc sce ce cnsccccece App. Appendix D Opinion of the United States District Court for the Western District of Texas, Dated March 18, Saeko dw hn ood ose kn ccaevcccecee, App. Appendix E Texas Rule of Appellate Procedure 114: Certi- fication of Questions of Law by United States es ves sa veccccncsessss vine App. Appendix F Detailed Factual Background of This Case... .App. 19 21 23 67 App. 1 APPENDIX A WORD OF FAITH WORLD OUTREACH CENTER CHURCH, INC., Plaintiffs-Appellees, Vv. Dan MORALES, Attorney General of Texas, Defendant-Appellant. No. 92-8178. United States Court of Appeals, Fifth Circuit. March 29, 1993. Texas Attorney General filed quo warranto petition in state court to compel church to produce records and to obtain forfeiture of charter, dissolution of corporation, and appointment of receiver. Church and its leaders sought injunction in federal court seeking determination of rights and privileges. The United States District Court for the Western District of Texas, Sam Sparks, J., 787 F.Supp. 689, entered injunction against Attorney General, and he appealed. The Court of Appeals, Jerry E. Smith, Circuit Judge, held that: (1) Eleventh Amendment immu- nity did not bar action by church and its leaders, and (2) Pullman abstention was required. Reversed and remanded. Appeal from the United States District Court for the Western District of Texas. Before REAVLEY, SMITH, and EMILIO M. GARZA, Circuit Judges. JERRY E. SMITH, Circuit Judge: iii i App. 2 The Texas Attorney General appeals the district court’s injunction permanently prohibiting him from attempting to obtain certain records and documents from the Word of Faith Family Church (“Word of Faith”) and enjoining him from further prosecuting the state court action in which he sought them. In a diligent and well- intentioned effort to resolve the competing consider- ations, the district court found that the Attorney Gen- eral’s threatened investigation violated the church’s First Amendment associational and religious freedoms. Because we discern certain unsettled state law issues, the resolution of which may render moot the federal constitu- tional claims, we conclude that the district court should have abstained from the exercise of jurisdiction under the doctrine enunciated in Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). I. Word of Faith is a church founded in 1976 as a Texas nonprofit corporation. Its professed beliefs apparently do not include a vow of poverty: With 12-13,000 members and some 500,000 people on its mailing list, Word of Faith grossed $65 million in revenues in 1991 on an operating budget of $50 million.! On November 21, 1991, the American Broadcasting Company aired a Prime Time Live television program unflattering to both the church and its pastor, the Rever- end Robert Tilton (collectively, with Mrs. Tilton, the 1 The parties have stipulated that Word of Faith is a bona fide church holding sincere religious beliefs. App. 3 “church”). The program put forth against the church essentially four accusations: that the church was run as a sole proprietorship and that the Reverend and Mrs. Tilton therefore had direct access to church funds; that the church falsely represented that it provided financial sup- port to a Haitian orphanage; that the church had sent out vials of holy water purporting to be from the Red Sea that in fact were from Taiwan; and that prayer requests solic- ited by Reverend Tilton never reached him but in fact were thrown into the garbage by the bank that processes the church’s mail and deposits its contributions. After the program aired, the church’s attorney wrote to both federal and state governmental agencies, includ- ing the Texas Attorney General, and offered to meet with them and to permit review and inspection of the church’s records for the purpose of satisfying the governmental agencies that the allegations made on Prime Time Live were false. The Attorney General declined this invitation; the United States Postal Service and the Federal Bureau of Investigation accepted. On January 13, 1992, the Consumer Protection Divi- sion of the Office of the Attorney General faxed to the church a demand for documents pursuant to the Texas Deceptive Trade Practices-Consumer Protection Act (“DTPA”), Texas Bus. & Com. Cope ANN. § 17.41 et seq. Upon receipt of the demand letter, the church again requested a meeting with the Attorney General and his personnel, which the Attorney General again refused. Thereafter, pursuant to an oral request, the Attorney Gen- eral’s office remitted the January 13, 1992, document demand to the print and television media. App. 4 The publication of the Attorney General’s document demand letter resulted in further unfavorable publicity to the church, apparently prompting it to harden its position and to decline any further cooperation with the Attorney General. Even so, the church yet again requested a meet- ing with the Attorney General at which counsel for the church represented, both orally and in writing, that if the Attorney General could convince his “clients” that their records should be examined, the records would be made available. The Attorney General again declined the meet- ing. The church’s counsel then advised the Attorney Gen- eral of his intention to file a lawsuit in federal court on February 6, 1992. On February 5, 1992, five days before the deadline specified in the January 13th demand letter, the Attorney General filed a petition in quo warranto in the Probate Court of Travis County, Texas, pursuant to his authority under the Miscellaneous Corporation Laws Act (“MCLA”), Tex.Rev.Civ.Stat.ANN. art. 1302-5.05. The Attorney General sought not only to compel production of the records he had requested but also, as his pleadings indicated, “forfeiture of [the church’s] charter and disso- lution of the corporation and appointment of a Receiver to take possession of the affairs of the corporation and appointment of a Receiver to take possession of the affairs of the [church], to rehabilitate, reorganize, con- serve or liquidate the affairs of the corporation,” as well as a “Permanent Injunction against the [church], its offi- cers, directors, stockholders, agents, employees, and rep- resentatives whomsoever from conducting any business of the [church], and from disposing of or concealing in App. 5 any manner or any way the property or other assets of any kind or nature whatsoever of the {[Church].”2 On February 7, the day after the probate court issued its show cause order and scheduled the matter for hear- ing on March 9, 1992, the church filed its lawsuit in the Western District of Texas.3 The district court that same day issued a Temporary Restraining Order to halt the state court proceedings; on March 18, 1992, it issued its Memorandum Opinion and Order enjoining the Attorney General from attempting to obtain the church’s docu- ments and records or from further prosecuting the state court quo warranto proceeding. The Attorney General appeals. II. We review the district court’s order for abuse of discretion and reverse if the order was based upon an erroneous legal standard or clearly erroneous factual findings. Gaudiya Vaishnava Soc’y v. City & County of San Francisco, 952 F.2d 1059, 1062 (9th Cir.1990), cert. denied, — US. __, 112 S.Ct. 1951, 118 L.Ed.2d 555 (1992). The ? The documents requested by the Attorney General in his original, January 13, 1992, document demand letter are summa- rized in the district court’s published opinion. See Word of Faith World Outreach Ctr. Church, Inc. v. Morales, 787 F.Supp. 689, 699 (W.D.Tex.1992). 3 On March 4, 1992, the Attorney General filed with the Travis County Probate Court his First Amended Petition and a modified document demand letter, both of which differed from the originals in certain material particulars. An important factor in our analysis, these alterations in the nature of the Attorney General’s actions are discussed more fully below. App. 6 Attorney General argues that Eleventh Amendment immunity bars the action, the district court incorrectly applied First Amendment caselaw, and Pullman absten- tion compels the district court to abjure jurisdiction in favor of the state court proceeding. It is beyond civil [sic] that the Eleventh Amendment generally bars suits in federal court by a citizen of a state against his state or a state agency or department. Penn- hurst State School & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984); Hirtz v. Texas, 974 F.2d 663, 665 (5th Cir.1992). The amendment does not, however, bar suits for injunctive relief against state offi- cials. Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). In Young, the Court upheld the issuance of an injunc- tion against the Minnesota Attorney General, foreclosing his attempt to enforce a state statute alleged to violate the Fourteenth Amendment. Employing an analogy to ultra vires corporate acts, the Court held that the unconstitu- tional statute was effectively void and therefore could not confer immunity upon a state official. Since the state could not constitutionally authorize the Attorney Gen- eral’s action, the Attorney General was “stripped of his official or representative character and [was] subjected in his person to the consequences of his individual con- duct.” Id. at 160, 28 S.Ct. at 454. Although the logic of Young has not been extended to suits seeking relief in the form of money damages or “equitable restitution,” see Edelman v. Jordan, 415 U.S. 651, 664-68, 94 S.Ct. 1347, 1356-58, 39 L.Ed.2d 662 (1974), prospective injunctive relief may still be had by way of the Young fiction. App. 7 The Attorney General contends that the instant case fits within Pennhurst’s holding that, consistent with the Eleventh Amendment, a federal court may not enjoin a state official to act in accordance with state law.4 The Attorney General argues that, in determining that the Texas DTPA and MCLA afford the Attorney General no authority to conduct the sort of all-encompassing investi- gation of the church that was sought here and that the Attorney General thus was acting ultra vires his official capacity and therefore was subject to suit under Young, the district court construed state law, namely the DTPA and MCLA. Therefore, Pennhurst applies, and the district court had no authority to enjoin the state court proceed- ing. The Attorney General’s argument misconstrues Penn- hurst. While the district court necessarily determined whether the church came within the provisions of the DTPA and MCLA (and therefore whether the Attorney 4 In Pennhurst, 465 U.S. at 106, 104 S.Ct. at 911, The Court stated that when a plaintiff alleges a state official’s violation of state law, the entire basis for the doctrine of Young and Edelman disappears. A federal court's grant of relief against state officials on the basis of state law, whether pro- spective or retroactive, does not vindicate the supreme authority of federal law. On the contrary, it is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law. Such a result directly conflicts with the principles of federalism that underlie the Eleventh Amendment. We conclude that Young and Edelman are inapplicable in a suit against state officials on the basis of state law. App. 8 General had authority to investigate the church pursuant to the powers accorded him therein), this was primarily a determination antecedent to the court’s finding that the Attorney General was acting in his individual capacity for purposes of Eleventh Amendment immunity. “Under existing law, federal courts must necessarily construe local law and administrative regulations to ascertain if there is a[n] interest protected by the federal constitu- tion.” Patchette v. Nix, 952 F.2d 158, 162 (8th Cir.1991). The Attorney General cannot push the Young-like square peg of the facts of this case into the round-holed immunity recognized in Pennhurst. The court’s alternative holding - that even if the DTPA and MCLA did permit the Attorney General to conduct such an intrusive investigation of the church, the statutes would violate the First Amendment as thus applied — underlines the fact that the ultimate basis for the suit was an alleged violation of federal law. This fact distinguishes the instant case from Pennhurst, where the Court expressly noted that “[n]o one questions that the petitioners in operating Pennhurst were acting in their official capacity.” Pennhurst, 465 U.S. at 109 n. 17, 104 S.Ct. at 912 n. 17.5 Here, the district court found the Attorney General was not acting in his official capacity. 5 This fact, the Court added, took the facts in Pennhurst out of that exception to Eleventh Amendment immunity provided where a state official’s actions are unauthorized by state law. “Since it cannot be doubted that the statutes at issue here gave petitioners broad discretion in operating Pennhurst, the con- duct alleged in this case would not be ultra vires. .. . ” Penn- hurst, 465 U.S. at 110-11, 104 S.Ct. at 913-14 (citations omitted). Thus, Pennhurst stands for the proposition that the Eleventh Amendment bars suit not, as the district court found here, oe ae App. 9 Moreover, nothing in Pennhurst supports the proposi- tion that merely by construing Pennsylvania law to deter- mine whether the defendants were acting in an official or individual capacity, the district court acted contrary to the Eleventh Amendment. Anytime a court declares a state statute unconstitutional, it first must determine just what the statute means. Such was the case in Ex parte Young; nothing the Attorney General has advanced per- suades us that this case is distinguishable from the set- ting of that landmark decision. As the Supreme Court has stated, it is plain “that the Eleventh Amendment does not bar an action against a state official that is based on a theory that the officer acted beyond the scope of his Statutory authority or, if within that authority, that such authority is unconstitutional.” Florida Dep't of State v. Treasure Salvors, Inc., 458 U.S. 670, 689, 102 S.Ct. 3304, 3317, 73 L.Ed.2d 1057 (1982). Accordingly, our jurisdiction over this case is not barred by the Eleventh Amendment. II. Even though we rightfully may exercise jurisdiction in this case, we nonetheless may decline to do so in accordance with the discretionary doctrines of federal court abstention set forth in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and Pullman. Younger abstention is generally deemed appropriate where where the state official’s actions are alleged to be unauthorized by state law but where state law imposes an affirmative duty upon the official, and it is that duty that provides the basis for the injunctive relief sought. App. 10 assumption of jurisdiction by a federal court would inter- fere with pending state proceedings, whether of a crimi- nal, civil, or even administrative character. See, e.g., Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 12-14, 107 S.Ct. 1519, 1526-27, 95 L.Ed.2d 1 (1987) (federal courts may not enjoin state ¢ivil proceedings between private parties); Middlesex County Ethics Comm. v. Garden State Bar Ass‘n, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982) (extending Younger to state administrative proceedings involving important state interests). Here, the district court repeatedly found that the Attorney General’s sole purpose in filing the state court quo warranto proceeding was “to retaliate for or to deter the church and the Tiltons from exercising their constitu- tional rights in declining to furnish the documents and records demanded, and this ‘retaliation’ was a major motivating factor and played a prominent role in the Attorney General’s decision to file the quo warranto pro- ceedings.” 787 F.Supp. at 694-95. This determination, the court concluded, brought the instant case within that narrow exception to Younger abstention in which a state court action is brought in bad faith or for a retaliatory motive. See, e.g., Wilson v. Thompson, 593 F.2d 1375, 1387 (5th Cir.1979); Shaw v. Garrison, 467 F.2d 113, 122 (5th Cir.), cert. denied, 409 U.S. 1024, 93 S.Ct. 467, 34 L.Ed.2d 317 (1972). The Attorney General does not appeal the district court’s refusal to abstain on Younger grounds, and ES ee ee ey ee ne App. 11 accordingly we are foreclosed from reviewing it.6 Pullman abstention, however, is addressed to the inappropriate- ness of federal court resolution of difficult or unsettled questions of state law and the undesirability of reaching constitutional questions that might be mooted by the application of state law. See Pullman, 312 U.S. at 500, 61 S.Ct. at 645. The fact that Younger considerations might not be implicated on appeal, therefore, does not preclude the application of Pullman’s differently-focused doctrine. See Hodory, 431 U.S. at 480 n. 11, 97 S.Ct. at 1904 n. 11. We acknowledge that Pullman abstention is not nec- essarily proper whenever a state law question must be decided in order to reach the federal question. “Unless the state law in question is fairly susceptible of an inter- pretation that might avoid or substantially modify the federal constitutional question, federal courts should exercise their properly invoked jurisdiction.” O’Hair v. White, 675 F.2d 680, 693 (Former 5th Cir.1982) (en banc); see also County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 189, 79 S.Ct. 1060, 1063, 3 L.Ed.2d 1163 (1959) (Pull- man abstention appropriate “in cases presenting a federal © See Ohio Bureau of Employment Servs. v. Hodory, 431 U.S. 471, 480 & n. 10, 97 S.Ct. 1898, 1904 & n. 10, 52 L.Ed.2d 513 (1977) (“If the State voluntarily chooses to submit to a federal forum, principles of comity do not demand that the federal court force the case back into the State’s own system.”) Morales v. Trans World Airlines, U.S. ___, __n. 1, 112 S.Ct. 2031, 2036 n. 1, 119 L.Ed.2d 157 (1992) (“Petitioner [Attorney General of Texas] has not argued for abstention, and the federal-state comity consid- erations underlying Younger are accordingly not implicated.”). For the above reason, we do not address the issue of whether the district court correctly applied the very narrow “bad faith or harassment” exception to Younger. App. 12 constitutional issue which might be mooted or presented in a different posture by a state court determination of pertinent state law”). IV. The question thus presented is whether the statutes at issue here apply full-force to the church or are suscept- ible of a limiting construction that would alleviate the unconstitutional burdens the district court found they imposed upon the church. The district court found that application of the DTPA and MCLA to the church - inasmuch as these authorized the Attorney General's intrusive document demand - violated the church’s First Amendment rights of free association, see NAACP v. Ala- bama ex rel. Patterson, 357 U.S. 449, 460-61, 78 S.Ct. 1163, 1170-71, 2 L.Ed.2d 1488 (1958), and inextricably inter- twined church and state in violation of the entanglement prong of the Establishment Clause test first enunciated in Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971). The district court’s conclusion as to the DTPA’s unconstitutionality as applied to the church was prem- ised primarily upon the-unconstitutionality of the Attor- ney General’s demand for the church’s membership and / or contributor lists - an obvious infringement of the First Amendment associational right announced in NAACP v. Alabama. See Word of Faith, 787 F.Supp. at 699-701.7 In the 7 The district court also faulted the Attorney General’s doc- ument demand for its unreasonable and oppressive scope, “insofar as it requires the Plaintiffs to produce an enormous App. 13 district court’s view, the DTPA also ran afoul of the Establishment Clause by virtue of the availability, under the statute, of injunctive relief and continuing jurisdiction to monitor the church’s compliance with any injunction that might be entered against it. Id. at 701-02. Essentially the same associational and excessive entanglement concerns underlay the district court’s con- viction that the MCLA also violated the church’s First Amendment rights. The MCLA’s investigative provisions authorize the Attorney General to inspect and investigate virtually any aspect of a corporation’s activities, and it provides penalties for non-compliance with the Attorney General’s request, including forfeiture of the corporate charter, injunctive relief to deny the right to transact business within the state, and fines and imprisonment of uncooperative corporate officers. See id. at 703-04. We venture no opinion as to the correctness of the district court’s decision on the constitutional merits, for we need not do so in order to apply the Pullman doctrine to the particulars of this case. The district court, despite its apparent conviction that the consumer-fraud DTPA statutes does not apply to the church, see id. at 696-98 & n. 7, nonetheless proceeded to address the federal constitu- tional issue as if the DTPA did apply. Likewise, the court found the state court receivership originally sought by amount of documents, which do not appear to have relevance to the alleged purpose of the investigation.” Word of Faith, 787 F.Supp. at 699 n. 10. We do not understand the court to have made a constitutional ruling on this ground. Absent such a foundation, this issue was not properly before the court and is best resolved by the state trial court in the first instance. App. 14 the Attorney General pursuant to the MCLA to be an unconstitutional penalty as applied to the church, despite the court’s recognition that the receivership provision was unavailable in the quo warranto proceeding. Id. at 703 n. 15. In short, the unsettled questions regarding the appli- cation of state law in this case, depending upon how a state court would resolve them, could have mooted the federal constitutional issue. It is highly likely, as the district court noted, that the DTPA does not even apply to the church. Significantly, it is the DTPA that provides the Texas Attorney General with the investigative authority upon which the objectionable January 13, 1992, demand letter was predicated. A state court ruling to the effect that the DTPA does not apply to the church plainly would moot any federal constitutional claim, at least insofar as it was premised upon the application of the DTPA. The district court did not discuss whether the MCLA properly applies to the church; we assume, arguendo, that it does.* Nonetheless, a state court might impose a limit- ing construction on the statute or find that the church’s 8 Article 1302-1.03 B of the MCLA provides, Except to the extent that any provisions of this Act are expressly made inapplicable by any provision of the Texas Business Corporation Act, the Texas Non-Profit Corporation Act, or any special Statute of this State per- taining to a particular type of corporation, this Act shall govern (1) all domestic corporations, including without limitation those corporations heretofore or hereafter organized under any Statute of the State. . . . None of the excepted statutes expressly limits the MCLA’s application to churches or religious corporations. | ssinbiniiaunaiiaaasiieilaaeieeaeiaeia | 3 App. 15 March 30, 1992, voluntary dissolution of its corporate form mooted the Attorney General’s investigation pur- suant to the statute.9 Lastly, the district court found that the church did not qualify as a “charitable trust” within the meaning of Tex.Prop.Cope ANN. § 123.001 (Vernon’s Supp.1992). We voice no opinion as to the correctness of this conclusion or its concomitant, that the Travis County Probate Court thereby was deprived of the jurisdiction provided by Texas Prosate Cope ANN. § 5A(d) (West Supp.1993). See Word of Faith, 787 F.Supp. at 704-05 & n. 18. We do note, however, that this jurisdictional question presents yet another contested question of state law with the potential to moot the federal constitutional question. Pullman abstention was appropriate here, where “ ‘unsettled ques- tions of state law must be resolved before a substantial federal constitutional question can be decided’ because ‘the state courts may interpret [the] challenged state stat- ute[s] so as to eliminate, or at least to alter materially, the constitutional question presented.’ ” Pennzoil, 481 U.S. at 29, 107 S.Ct. at 1535 (Blackmun, J., concurring) (citations omitted). One last aspect of this case likewise materially alters or even eliminates the federal constitutional question, namely, the Attorney General’s representations - ten- tatively before the district court, but with more force ® In this regard, we note that the Attorney General’s ability under the MCLA to dissolve the church’s corporate charter and forfeit its right to do business in the state poses little threat when the church, by dissolving voluntarily, has beaten him to the punch. Ciel App. 16 before this panel at oral argument - that he no longer seeks to discover the church’s membership or list of contributors, to have a receiver appointed to conduct the church’s affairs, or to pursue imprisonment of church officers pursuant to the MCLA. The modified demand letter and amended state court petition, both dated March 4, 1992, reflect these changes in the Attorney General's position. Taken together, they address a substantial part, if not all, of the district court’s constitutional qualms, and, in our opinion, dispel the “exceptional circum- stances” justifying the district court’s assumption of juris- diction. See Word of Faith, 787 F.Supp. at 694. The district court’s apparent conclusion that an exception to Pullman abstention was presented by the “great and immediate” threat of irreparable injury to the church by the Attorney General’s unconstitutional actions, see id., was predicated upon the original state court petition and demand letter.!° The amended petition 10 In its opinion, the district court discussed both Pullman and Younger abstention before concluding that an exception applies to both. According to the court, “[t]hese circumstances satisfy, in this Court’s judgment, the requirements on exceptions to abstention of irreparable injury being ‘great and immediate’ and the conduct of the Attorney General as ‘bad faith, harass- ment or any other unusual circumstance that would require equitable relief.’ ” 787 F.Supp. at 694. We have discussed, see supra note 6, the bad faith and harassment exception to Younger abstention. The threat of “irreparable injury” generally excepts a case from the applica- tion of Pullman abstention “in the most extraordinary circum- stances when fundamental rights such as voting rights are involved.” O’Hair v. White, 675 F.2d at 694. See also Procunier v. Martinez, 416 U.S. 396, 404, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974) (facial challenge to statute under First Amendment justi- item iia ace iii el App. 17 and modified demand letter suggest there now exists no continuing constitutional violation sufficient to justify the exception to abstention, especially in light of the many unresolved state law issues in the case. Therefore, abstention in this case is proper “to avoid unwarranted determination of federal constitutional questions. When federal courts interpret state statutes in a way that raises federal constitutional questions, ‘a con- stitutional determination is predicated ona reading of the statute that is not binding on state courts and may be discredited at any time - thus essentially rendering the federal-court decision advisory and the litigation under- lying it meaningless.’ ” Pennzoil, 481 U.S. at 11, 107 S.Ct. at 1526 (quoting Moore v. Sims, 442 U.S. 415, 428, 99.S.Ct. 2371, 2379, 60 L.Ed.2d 994 (1979)). The muddled presenta- tion of the issues in this case — the question of whether proper jurisdiction resides in the state trial court, whether the investigative powers provided the Attorney General by the DTPA and MCLA may be invoked against the church, and which state court petition and demand letter we should look to — should make apparent the danger of fies assumption of jurisdiction), Zwickler v. Koota, 389 U.S. 241, 248, 88 S.Ct. 391, 395, 19 L.Ed.2d 444 (1967) (same). We have reversed the district court’s refusal to abstain under Pullman at least in part because we believe the Attorney General’s mod- ified request presents no continuing constitutional violation jus- tifying the “extraordinary” exception to Pullman represented by these cases. We do not understand the district court to have rejected Pullman — as it did Younger - on the basis of the Attorney General’s bad faith; indeed, we are persuaded that prosecutorial bad faith and harassment, although constituting a recognized exception to Younger abstention, possess little or no relevance for Pullman-type situations. App. 18 a federal court’s interfering at too early a stage, only to promulgate an advisory opinion.'! Pullman seems tailor- made for application to this case, where we must take care to “avoid the waste of a tentative decision as well as the friction of a premature constitutional adjudication.” Pullman, 312 U.S. at 500, 61 S.Ct. at 645.12 For the above reasons, we REVERSE and REMAND to the district court for an appropriate disposition in accordance with this opinion. 11 See e.g. Pennzoil, 481 U.S. at 11 n. 9, 107 S.Ct. at 1526 n. 9 (“In some cases, the probability that any federal adjudication would be effectively advisory is so great that this concern alone is sufficient to justify abstention, even if there are no pending state proceedings in which the question could be raised.”) (Cit- ing Pullman.) 12 Lastly, we are persuaded that Word of Faith has, in the Texas court system, an adequate state forum in which to obtain a resolution of the state law issues while preserving its federal constitutional claims. See Nissan Motor Corp. v. Harding, 739 F.2d 1005, 1010-11 (5th Cir.1984) (discussing importance of availabil- ity of adequate state forum in abstention analysis). Indeed, the potential for a ready resolution of the church’s claims in state court confirms us in our conclusion that Pullman abstention is warranted here. See 17A CHar.es A. WRIGHT, ET AL. FEDERAL PRAc- TICE AND PRocebure § 4242, at 60 (2d ed. 1988) (“A factor that will tip the scales in favor of abstention is if there is already pending a state court action that is likely to resolve the state questions without the delay of having to commence proceedings in state court.”). | App. 19 APPENDIX B UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 92-8178 (Filed March 29, 1993) D.C. Docket No. A 92 CA 89 WORD OF FAITH WORLD OUTREACH CENTER CHURCH, INC., A CHURCH NON- PROFIT TEXAS CORPORATION, ET AL., Plaintiffs-Appellees, versus DAN MORALES, in his official capacity as Attorney General of the State of Texas, and Individually, ET AL., Defendants, DAN MORALES, in his official capacity as Attorney General of the State of Texas, and Individually, Defendant-Appellant. Appeal from the United States District Court for the Western District of Texas Before REAVLEY, SMITH and EMILIO M. GARZA, Cir- cuit Judges. JUDGMENT This cause came on to be heard on the record on appeal and was argued by counsel. App. 20 ON CONSIDERATION WHEREOF, It is now here ordered and adjudged by this Court that the judgment of the District Court in this cause is reversed, and the cause is remanded to the District Court for further proceedings in accordance with the opinion of this Court. IT IS FURTHER ORDERED that each party bear its own costs on appeal. March 29, 1993 ISSUED AS MANDATE: App. 21 APPENDIX C IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 92-8178 WORD OF FAITH WORLD OUTREACH CENTER CHURCH, INC., A CHURCH NON- PROFIT TEXAS CORPORATION, ET AL., Plaintiffs-Appellees, versus DAN MORALES, in his official capacity as Attorney General of the State of Texas, and Individually, Et Al., Defendants, DAN MORALES. in his official capacity as Attorney General of the State of Texas, and Individually, Defendant-Appellant. Appeal from the United States District Court for the Western District of Texas ON PETITION FOR REHEARING (April 26, 1993) Before REAVLEY, SMITH and EMILIO M. GARZA, Cir- cuit Judges. PER CURIAM: App. 22 IT IS ORDERED that the petition for rehearing filed in above entitled and numbered cause be and the same is hereby DENIED. ENTERED FOR THE COURT: /s/ J. Smith United States Circuit Judge CLERK’S NOTE: SEE FRAP AND LOCAL RULES 41 FOR STAY OF THE MANDATE. eT ts eT ee ——eEeEE———— App. 23 APPENDIX D WORD OF FAITH WORLD OUTREACH CEN- TER CHURCH, INC., a Church non-profit Texas corporation, Robert G. Tilton and Martha Phillips Tilton, Plaintiffs, Vv. Dan MORALES, in his official capacity as Attorney General of the State of Texas, Defendant. Civ. No. A 92 CA 089. United States District Court, W.D. Texas, Austin Division. March 18, 1992. Diane M. Henson, Graves, Dougherty, Hearon & Moody, Austin, Tex., J.C. Joyce, Joyce & Pollard, Tulsa, OKl., for plaintiffs. Rose Ann Reeser, David Guillory, Texas Atty. Gen- eral’s Office, Austin, Tex., for defendant. MEMORANDUM OPINION AND ORDER SPARKS, District Judge. This case involves serious issues of the rights of freedom of religion and of association under the First Amendment of the Constitution of the United States, Article 1 § 6 of the Texas Constitution, and the govern- mental rights of the State of Texas in enforcing its laws regarding non-profit corporations chartered under state law. On November 21, 1991, ABC’s Prime Time Live pub- lished a television network special involving, in part, the App. 24 Word of Faith World Outreach Center Church, Incorpo- rated, and Robert G. Tilton, two of the three plaintiffs in this lawsuit. The import cf this publication was not flat- tering to either the church or Mr. Tilton, but the accuracy or inaccuracy of the reporting is not relevant to the issues in this lawsuit.! Subsequent to November 21, 1991, the attorney representing Word of Faith World Outreach Cen- ter Church, Inc. and Robert G. Tilton, wrote federal and state governmental agencies, including the Attorney Gen- eral of the State of Texas, and offered to meet with these governmental agencies and to permit review and inspec- tion of the church’s records for the purpose of satisfying the governmental agencies that the allegations made in Prime Time Live were false. The United States Postal Ser- vice and the Federal Bureau of Investigation accepted this offer, conferred with the attorney and were furnished with any records of the church requested, including financial records documenting the revenues and expendi- tures of the church. The Attorney General declined this invitation both initially and subsequently. On January 13, 1992, the Consumer Protection Divi- sion of the Office of the Attorney General of Texas sent to the Plaintiffs, by facsimile transmission, a demand for documents pursuant to the Texas Deceptive Trade Prac- tices-Consumer Protection Act (Sec. 17.41, et seq., of the 1 Likewise, the religious beliefs, practices and testimonies of Mr. and Mrs. Tilton for the Church and themselves are imma- terial to the issues in this case as the Attorney General stipu- lated Word of Faith World Outreach Center Church, Inc. is a bona fide church holding sincere religious beliefs. App. 25 Texas Bus. & Com. Code of the State of Texas). The demand states in the first paragraph: The Consumer Protection Division of the Office of the Attorney General has reason to believe that Word of Faith Family Church and World Outreach Center . . . has engaged in trade prac- tices and charitable solicitations which may vio- late provisions of state law including the Texas Consumer Protection and Deceptive Trade Prac- tices Act... . Both the nature and extent of the documents demanded were not reasonable and included documents clearly the Attorney General was not entitled to obtain from any religious organization and/or church.2 Upon receipt of the January 13, 1992, demand, the Plaintiffs, through their counsel, again requested a meet- ing with the Attorney General and his personnel, and, for reasons still unclear and unconvincing to the Court, the Attorney General and his personnel continued in their refusal to meet with the attorney representing the Word of Faith World Outreach Center Church, Inc. and Mr. and Mrs. Tilton. The church and Mr. and Mrs. Tilton clearly had First Amendment rights to assert to the demand for documents made on January 13, 1992, and did so on their own behalf and their members. Thereafter, the Attorney General, following an oral request to do so, remitted, by facsimile transmission, the January 13, 1992, document demand to the press and 2 On January 13, 1992, the Attorney General and his staff well knew they were dealing ostensibly with a church and its minister and had to anticipate First Amendment probiems. ‘ App. 26 television media. The Attorney General justifies this action by its own interpretation of Art. 6252-17a, V.A.T.S., and contends there was no choice but to deliver to the media this document notwithstanding the express terms of the statute under which the demand was made, which specified information obtained from such a request was confidential and could not be released except by court order. The publication of the January 13, 1992, Attorney General demand to the media resulted in wide spread, unfavorable publicity to the church and Mr. Tilton. This action by the Attorney General had the overall effect of “hardening” the attitude of the church, the Tiltons, and their counsel against any cooperation with the Office of the Attorney General and the release of any documents whatsoever. Notwithstanding, counsel for the church and the Tiltons again requested a meeting with the Attorney Gen- eral and represented, orally and in writing, that, if the representatives of the Attorney General could convince his “clients” that records should be examined, the records would be made available. Again, the Attorney General declined any meeting. Counsel for the church and the Tiltons then advised the Attorney General he would file a lawsuit in the United States District Court before the deadline of February 10, 1992, to determine their respec- tive rights and privileges. On February 5, 1992 (five days 3 Section 17.61(f) of the Texas Deceptive Trade Prac- tices-Consumer Protection Act expressly excepts this informa- tion from public disclosure, as does Art. 1302-5.04 of the Texas Miscellaneous Corporation Laws Act, and Articles 6252-17a(3)(a)(1) and (2) of the Open Records Act authorizes nondisclosure by the Attorney General. App. 27 before the deadline date set by the Attorney General for the inspection and copying of the documents demanded on January 13, 1992), the Attorney General, pursuant to Art. 1302-5.05, filed a petition in quo warranto in the Probate Court of Travis County, Texas.4 The petition in quo warranto, verified by the department head of the Consumer Protection Division of the Attorney General, expressly alleged: This suit is brought in the nature of quo warranto against the Defendant corporation . . . for the purpose of obtaining a permanent injunction ordering Defen- dant to produce records as requested by the Attorney General, for forfeiture of Defendant's charter and dissolution of the corporation, an appointment of a receiver to take possession of the affairs of the Defendant, to rehabilitate, to reorganize, con- serve, or liquidate the affairs of the corporation, as the case may be... . A further purpose of this suit is to obtain, after notice and hearing, a tempo- rary injunction and a permanent injunction against the Defendant, its officers, directors, stock- holders, agents, employees, and representatives whomsoever from conducting any business of the Defendant. ... (emphasis added). Further, said petition alleges: * On February 5, 1992, the Attorney General deliberately did not seek to enforce the remedy under the Texas Deceptive Trade Practices-Consumer Protection Act by filing a lawsuit ina district court in Dallas, Texas, requesting an order that the Plain- tiffs comply with the documents demanded on January 13, 1992. | App. 28 Article 1302, Chapter 5, Texas Miscellaneous Corporation Laws Act, provides that the Attor- ney General or his representatives are entitled to examine any books or records of a Texas corpo- ration as he may deem necessary. ... (emphasis added). The testimony from the Assistant Attorney Generals in charge of this investigation, the records demand of January 13, 1992, and the filing of the quo warranto peti- tion establish unequivocably that the Attorney General interprets the two statutes (Texas Deceptive Trade Prac- tices-Consumer Protection Act and Texas Miscellaneous Corporation Laws Act) as giving the Attorney General complete discretion to request any documents from any corporate entity (including a non-profit corporation which operates as a church with its principal or sole purpose of religious activities). Now, after the filing of this lawsuit, the Attorney General admits its demand for documents of January 13, 1992, and its petition in quo warranto were inappropriate and should be amended in light of apparent recent knowledge he is dealing with a church.5 5 It must be stated that the departmental head of the Con- sumer Protection Department, who personally verified the peti- tion in quo warranto, testified he believed that the pleadings in the quo warranto petition were simply what a “good lawyer” would plead under the circumstances. In addition, the March 4, 1992, amended document demand states that “[w]hile we [the Consumer Protection Division] do not adopt your legal position in this matter, in an effort to respond to your concerns, we submit to you this modified request for documents. .. . ” (emphasis in original). App. 29 The testimony of the department head of the Con- sumer Protection Division of the Office of the Attorney General is that the purpose of the filing of the quo war- ranto petition was to enforce its demand for the records of the church and Mr. Tilton. However, he admitted the timing and location of the filing was to attempt to insure the litigation would be in the Probate Court in Travis County rather than federal court where the Plaintiffs represented they would file this lawsuit.6 The Plaintiffs contend that frequent public comment by the Office of the Attorney General regarding the alleged investigation of the church and Mr. Tilton, as well as the conduct described above, constitutes such “bad faith” as to justify refusal to tender any documents of the Plaintiffs and to permanently enjoin the Attorney General from further investigation and public comment. The department head of the Consumer Protection Division of the Office of the Attorney General defends the public statements made by the Attorney General by testifying the staff made “no comment” statements to the media on 80 percent of its inquiries, apparently believing the other occasions of public comment, during an investigation, were appropriate and responsible conduct. The Court expressly finds from the evidence that the actual statements made by Assistant Attorney Generals and the Attorney General did not technically accuse ° The Court specifically finds the lawsuit filed by Attorney _ General on February 5, 1992, was a reaction to being advised the Plaintiffs would file in federal court and an attempt by the Attorney General to invoke an abstention doctrine defense based on pending state litigation. App. 30 either the church and/or Mr. and Mrs. Tilton of anything, but, on each occasion of public comment, the publicity generated was negative to the church and the Tiltons. The Court finds from the evidence that the conduct of the _ Attorney General and his personnel in stating the Con- sumer Protection Division of the Office of the Attorney General had “reason to believe” the church and the Tiltons violated the Texas Deceptive Trade Practices-Con- sumer Protection Act when they had no substantial evi- dence for the accusations, the Attorney General's refusing to meet with or confer with the attorney representing the church, selecting the documents demanded from both the church and the Tiltons on January 13, 1992, publishing to the media the accusations and demand of January 13, 1992, continuing to make public comment regarding the Plaintiffs, refusing all proffered cooperation from the Plaintiffs, and filing the verified petition in quo warranto on February 5, 1992, was neither professional nor respon- sible, bordering on the unethical, and constitutes “bad faith.” This conduct is not what is expected of attorneys charged with the responsibility of being the legal repre- sentatives of the State of Texas. However, the Court does not find this “bad faith” conduct prevents the Attorney General of Texas from appropriately using his authority to investigate the corpo- rate plaintiff to determine if it is truly a non-profit corpo- ration under Texas law. ABSTENTION The Attorney General requests dismissal of this case under the abstention doctrine, contending that its quo ee App. 31 warranto proceedings in the Probate Court of Travis County, Texas, filed on February 5, 1992, preempts this Court’s action. The Attorney General relies on Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), and related cases. As previously stated, the Court specifically finds from the evidence the Attorney General filed the petition in quo warranto on February 5, 1992, reacting to the repre- sentation by Plaintiffs’ counsel a lawsuit would be filed in the United States District Court to determine the rights and privileges of the parties. The Attorney General, through his supervisor of the Consumer Protection Divi- sion, admits a purpose of the filing of the quo warranto proceedings was to attempt to establish venue and juris- diction in the Probate Court of Travis County prior to the filing of any federal lawsuit. Thus, the quo warranto pro- ceedings were filed with a purpose by the Attorney Gen- eral to defend the federal lawsuit to be filed by February 10, 1992, on the grounds of abstention. For that reason alone, this Court does not believe that abstention would be appropriate in this case. Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974), Wooley v. May- nard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977). The Court finds specifically that it has jurisdiction over the parties and subject matter; that exceptional cir- cumstances certainly exist; and that injunctive relief is necessary for the adequate protection of constitutional rights. Ealy v. Littlejohn, 569 F.2d 219 (5th Cir.1978). However, there are other reasons for not bowing to the abstention request of the Attorney General. Despite iii initiate nnn App. 32 the number of treatises and volumes of cases reviewed, this Court cannot determine any consistent pattern of the Courts in applying the abstention doctrine except that the exceptions are few and must be cautiously granted. It is beyond dispute freedoms of religious worship and of association are foundation pillars of our country. This is true no matter how “flim flam” the religious doctrines and procedures (including solicitation of funds from members and expenditures) of any particular church may appear to others. For generations Americans have died and been persecuted defending these specific constitu- tional rights. In this particular case, the Attorney General of the State of Texas has utilized its own interpretation of a statute (Texas Deceptive Trade Practices-Consumer Pro- tection Act) to publicly accuse a church of fraud and demand documents clearly constitutionally protected. - The accusation and demand for documents and records are enforced by pleadings in quo warranto requesting dis- solution of the corporate church, appointment of a receiver to manage its affairs, and an injunction against its ministers from conducting the business of the church which is admitted (by stipulation) to be a bona fide religious organization. These circumstances satisfy, in this Court’s judgment, the requirements on exceptions to abstention of irreparable injury being “great and immedi- ate” and the conduct of the Attorney General as “bad faith, harassment or any other unusual circumstance that would require equitable relief.” The Court particularly finds persuasive Judge Debevoise’s opinion in New Jersey — Philadelphia Presbytery v. New Jersey State Bd. of Educ., 482 F.Supp. 968 (D.N.J. App. 33 1980), aff'd, 654 F.2d 868 (3d Cir.1981). There, like here, there were state actions to enforce substantively valid Statutes that effectively stopped religious activities, including instruction, education and worship and to enjoin related individuals from the same. See id. at 973. Had the Attorney General merely fiied a lawsuit in a Dallas state district court for the determination whether an order, pursuant to the Texas Deceptive Trade Prac- tices-Consumer Protection Act (the statute under which the Attorney General alleges his authority to investigate and demand records in this case), should issue requiring the production of the records and documents, this Court, like Judge Debevoise, may have yielded to the state court on abstention grounds. But that is not the case, and the Attorney General's filing the quo warranto petition speci- fying the relief requested by the State under these circum- stances compels this Court to act. Furthermore, in Smith v. Hightower, 693 F.2d 359, 366-67 (5th Cir.1982), our Fifth Circuit, in affirming its previous holding in Wilson v. Thompson, 593 F.2d 1375 (5th Cir.1979), held there is a three-part test in determining an exception to Younger. The case at bar comes within this established rule. First, the Court finds from the evidence that the Plaintiffs have established that their declining to deliver the records and documents demanded by the Attorney General was an exercise of legitimate and valid First Amendment rights, i.e. constitutionally protected. Second, the Court finds from the evidence that the Attorney General’s filing the guo warranto proceedings was motivated by a purpose to retaliate for or to deter the a App. 34 church and the Tiltons from exercising their constitu- tional rights in declining to furnish the documents and records demanded, and this “retaliation” was a major motivating factor and played a prominent role in the Attorney General's decision to file the quo warranto pro- ceedings. Third, the Court finds from the evidence that the Attorney General would not have filed a quo warranto proceeding under these circumstances “but for” the church and the Tiltons’ exercising their constitutional rights. The evidence does not even suggest the Attorney General had independent grounds for any such action. Therefore, this Court declines to dismiss this case pursuant to the abstention doctrine. Turning now to the merits, the Plaintiffs specifically seek to enjoin the Attorney General from conducting any civil investigation or inves- tigation of any kind of the Plaintiffs’ religion pursuant to the DTPA and the MCLA, and fur- ther to enjoin the Attorney General from forfeit- ing, or attempting to do so in any Court action, this Plaintiff Church’s charter and its right to conduct its religious service in the State of Texas pursuant to the MCLA and further to prohibit the Attorney General from levying any fine against the Church pursuant to the MCLA and further to prohibit and enjoin the Attorney Gen- eral from imprisoning Robert G. Tilton, the prin- cipal minister of this religion and/or his wife Martha Phillips Tilton, or any other member or employee of this Plaintiff Church pursuant to the MCLA, and further to prohibit the Attorney App. 35 General from interfering, meddling or entang- ling with or in the religious and or financial affairs of Word of Faith World Outreach Center Church, Inc. or abridging the Plaintiffs’ constitu- tional right of freedom of religion in any man- ae Plaintiffs’ First Amended Original Complaint and Application for Injunctive Relief, para. 19 (emphasis in original). The Attorney General has requested the Plaintiffs to produce a lengthy list of documents, records, and other materials he believes relevant to his investigation of the Plaintiffs under the Deceptive Trade Practices-Consumer Protection Act (DTPA) and under the common law of charitable trusts. Thus, this Court must determine (1) whether the DTPA applies to the Plaintiffs on its face; (2) whether the DTPA, as interpreted by the Attorney General, can be constitutionally applied to the church or its representa- tives; (3) whether the Texas Miscellaneous Corporation Laws Act (“MCLA”) applies to the Plaintiffs on its face; (4) whether the MCLA, as interpreted by the Attorney General, may be constitutionally applied to the Plaintiffs; (5) whether the church is a charitable trust subject to Texas common law concerning charitable trusts; (6) whether the Attorney General may constitutionally inves- tigate and inspect records of the church under Article 4, Section 22 of the Texas Constitution, which authorizes the Attorney General to inquire into the charter rights of private corporations and take action to prevent a corpora- tion from exceeding its powers authorized by law; and (7) whether the Attorney General has the power and author- ity to investigate the church and inspect records under App. 36 any other law, for instance the Texas Non-Profit Corpora- tion Act, and, if so, to what extent may that power be exercised under state law and the United States Constitu- tion. TEXAS DECEPTIVE TRADE PRACTICES-CONSUMER PROTECTION ACT In his January 13, 1992, demand the Attorney General published he “had reason to believe that Word of Faith Family Church & World Outreach Center . . . has engaged in trade practices and charitable solicitations which may violate provisions of state law including the Texas Con- sumer Protection and Deceptive Trade Practices Act (“DTPA”).”7 Accordingly, the Attorney General required 7 Specifically, the Attorney General stated he had reason to believe that the Church’s activities violated section 17.46(a) of the DTPA and the following provisions of section 17.46(b) of the DTPA: (b)(2) Causing confusion or misunderstanding as to the source, sponsorship, approval, or certification of goods or services; (b)(5) Representing that goods or services have spon- sorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have or that a person has a sponsorship, approval, status, affilia- tion, or connection which he does not; (b)(12) Representing that an agreement confers or involves rights, remedies, or obligations which it does not have or involve, or which are prohibited by law; (b)(19) Representing that a guarantee or warranty confers or involves rights or remedies which it does not have or involve; and (b)(23) Failing to disclose information concerning goods or services which was known at the time of the oh bees Ct dit ee App. 37 the production of documentary material for inspection and copying pursuant to the DTPA and the MCLA. In his brief and in hearings before this Court, the Attorney General continues to maintain the Plaintiffs are subject to the DTPA because it is alleged they solicit and accept donations from members and others, distribute various pamphlets, books, and objects, and make certain representations that are not technically accurate. Plain- tiffs, in opposition, argue that the DTPA does not apply as they are not engaged in “trade or commerce” and the contributors to the church (“members”) are not “con- sumers” because no money is required to receive any- thing from the church or to have Mr. Tilton pray over returned objects or perform other acts and because con- tributors’ donations are not requested for any specific purpose. This Court agrees the Texas Deceptive Trade Prac- tices-Consumer Protection Act has no applicability in this case. Although no Texas court has considered the appli- cability of the DTPA to church activities and donations, transaction if such failure to disclose such informa- tion was intended to induce the consumer into a trans- action into which the consumer would not have entered had the information been disclosed. January 13, 1992, letter from the Attorney General to the Tiltons (emphasis added). Note that the Attorney General would be unable to prove violations against the Church under any of the Provisions using the words “goods”, “services”, and “con- sumer”, regardless of the DTPA’s applicability otherwise. As defined in Section 17.45, each of those words requires that a person seek to purchase or lease a good or service. See Tex.Bus. & Com.Code Ann. § 17.45(1), (2), (4). App. 38 the language of the DTPA as well as Texas case law make clear the Plaintiffs are not subject to the DTPA. The Attorney General's Office asserts its authority to investigate and inspect documents under the auspices of Sections 17.60 and 17.61 of the DTPA, which give the Attorney General power to investigate and inspect rele- vant documentary material when the Attorney General has “reason to believe that a person is engaging in, has engaged in, or is about to engage in any act or practice declared to be unlawful by this subchapter [the DTPA]. ...” See Tex. Bus. & Com.Code Ann. §§ 17.60, 17.61 (Vernon’s 1992 Supp.). Section 17.46(a) makes unlawful “[flalse, misleading, or deceptive acts or prac- tices in the conduct of any trade or commerce” and gives a list of some acts which fall within the definition of pro- scribed conduct. Id. § 17.46(a) (emphasis added). “Trade” and “commerce” are defined in Section 17.45(6) as “the advertising, offering for sale, lease, or distribution of any good or service, of any property, tangible or intangible, real, personal, or mixed, and any other article, commodity, or thing of value, wherever situated, ....” In its brief the Attorney General focuses on “the advertising . . . or distribution of any good or service” and claims that under this definition and the case of Mother & Unborn Baby Care of N. Texas, Inc. v. State, 749 S.W.2d 533 (Tex.App. — Ft. Worth 1988, writ denied), cert. denied 490 U.S. 1090, 109 S.Ct. 2431, 104 L.Ed.2d 988 (1989), all that is needed to fall within “trade” or “com- merce”, and to be subject to the DTPA, is advertising or distribution of a good or service whether or not it is advertised as though it were for sale, and whether or not App. 39 the recipient of the good or service believed it to be for sale or sought to purchase it. Not only is this a misinterpretation of Mother & Unborn Baby Care of North Texas, Inc. v. State, in which the Court found that misleading advertising led women to believe doctors would perform abortions for a fee, see id. at 537, but the reading of the DTPA as a whole makes it clear that the Texas legislature was concerned with “busi- ness”, not gratuitous, transactions. Furthermore, there must be some “consumer”, either the plaintiff or, if the Attorney General is bringing the action, “consumers” within the statutory definition whose rights will be pro- tected. See generally, Tex.Bus. & Com.Code §§ 17.41, et seq.; see also Pennington v. Singleton, 606 S.W.2d 682 (Tex.1980); Mother, 749 S.W.2d 5%3. As stated by the Texas Supreme Court, “[ljegislative intent should be determined from the language of the entire Act and not isolated portions.” Pennington, 606 S.W.2d at 686. “[L]egislative intent rather than the strict letter of the Act will control.” Id. The Legislature’s intent was clearly stated in Section 17.44. “This subchapter shall be liberally construed and applied to promote its under- lying purposes, which are to protect consumers against false, misleading, and deceptive business practices, uncon- scionable actions, and breaches of warranty and to pro- vide efficient and economical procedures to secure such protection.” Tex.Bus. & Com.Code Ann. § 17.44 (emphasis added). It is not just to be liberally construed, rather it is to be liberally construed to promote its express purposes. See id.; see also Pennington, 606 S.W.2d at 686, 688, 690. App. 40 Section 17.44 makes it clear that the “false, mislead- ing, or deceptive acts or practices in the conduct of any trade or commerce” described in Section 17.46 must be “business” acts or practices. Solicitation of funds from church members, and new members,’ is not a business practice. See Murdock v. Pennsylvania, 319 U.S. 105, 111, 63 S.Ct. 870, 874, 87 L.Ed. 1292 (1943). The Attorney General cannot seize upon a technical ambiguity in one section of the Act to try to insure that Texas residents donate their money only in ways he deems wise. The DTPA was meant to protect those residents from deceptive “busi- ness” acts and practices only. Nor can the church’s or Mr. Tilton’s actions be described as “unconscionable”, protection against which is also a purpose under Section 17.44. Donating money to a religious cause one believes in can hardly be to one’s detriment as a result of being taken advantage of to a “grossly unfair degree”. See Tex.Bus & Com.Code Ann. § 17.45(5). That is clearly a value judgment the Attorney General is incapable of making in this case. Finally, there are no grounds for a breach of warranty action, the only remaining purpose of the DTPA enumer- ated in Section 17.44. Because the DTPA does not define or create any warranties, the Attorney General must establish the existence of a warranty based on statutory or common law. See La Sara Grain Co. v. First Nat'l Bank of Mercedes, 673 S.W.2d 558, 565 (Tex.1984). Express or implied warranties arise out of contracts or sales. Again, 8 Plaintiffs testified that a contributor is automatically con- sidered to be a “member” of the church, and the Attorney General did not dispute this construction. App. 41 the facts of this case show that no sales or contracts existed. Donations were distinct and separate from prayer requests and receipt of other materials or acts from Mr. Tilton or the church and cannot form the bases of sales or the consideration for contracts. In addition to there being no “trade” or “commerce” to satisfy Section 17.46 and no action protected against under Section 17.44, there are no “consumers”. The fact that Section 17.47, which gives the Consumer Protection Division the power to bring an action for injunctive relief, does not explicitly require the Attorney General to act on behalf of some consumer is irrelevant. The purpose of the DTPA is to protect “consumers” and no other class of persons. See Tex.Bus. & Com.Code Ann. § 17.44. That purpose is paramount to technical readings of individual sections. See id.; see also Pennington, 606 S.W.2d at 686. Furthermore, the very name of the Act, the Deceptive _Trade Practices-Consumer Protection Act, and the name of the agency in charge of enforcing the Act, the Con- sumer Protection Division, also indicate that the Attorney General can only act under the DTPA to protect con- sumers. A “consumer” under the DTPA is a person “who seeks or acquires by purchase or lease, any goods or services. ...” Tex.Bus. & Com.Code Ann § 17.45(2). In order to be a consumer, one must purchase or seek to purchase goods or services. Rutherford v. Whataburger, Inc., 601 S.W.2d 441, 444 (Tex.App. - Dallas 1980, writ ref. n.r.e.) (plaintiff who had won a contest prize but not received it was not a “consumer” because he did not seek or purchase to seek the prize and because no purchase App. 42 was required to enter the contest); Mother, 749 S.W.2d at 538 (women seeking abortions were “consumers” because they sought to purchase a service). Contributors to the church do not seek to purchase goods or services. Plaintiffs do not advertise goods or services for sale. Contributors to the church are not required to give donations in order to receive pamphlets, books, or other goods. Nor is a donation required before Mr. Tilton will pray over a prayer request or perform other acts. There is nothing to make contributors to the church believe their contributions are in return for requested materials or acts by the church or Mr. Tilton. In fact, not only do members sometimes make “vows” or contributions without requesting any materials or acts to be performed by Mr. Tilton, but the church makes it a practice to inform persons who seek to “purchase” items that the church no longer sells anything and offers to refund their money. Contributors to the church are not “consumers”, and the Attorney General may not bring a DTPA action to protect their interests. Even if the DTPA were applicable to the Plaintiffs on its face, it still could not be constitutionally applied to the Plaintiffs as interpreted by the Attorney General. The fact that the DTPA has a valid purpose and was not enacted to discriminate against a religion or restrict the free exercise of a religion, does not mean any effects on the Plaintiffs are merely incidental and permissible under the First Amendment. See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 220, 92 S.Ct. 1526, 1535-36, 32 L.Ed.2d 15 (1972); Bates v. City of Little Rock, 361 U.S. 516, 523, 80 S.Ct. 412, 416, 4 L.Ed.2d 480 (1960); N.A.A.C.P. v. Alabama, 357 U.S. 449, 462, 78 S.Ct. 1163, 1171-72, 2 L.Ed.2d 1488 (1957); Murdock, 319 App. 43 U.S. at 115, 63 S.Ct. at 876. The investigation sought by the Attorney General under the provisions of the DTPA in this case unduly burden the Plaintiffs’ First Amendment rights to exercise their religion free from excessive gov- ernmental interference or entanglement. Sections 17.60 and 17.61 of the DTPA give the Attor- ney General unfettered discretion to inquire into the inner workings of the church and inspect and copy its documents and records. Section 17.60 allows the Con- sumer Protection Division of the Office of the Attorney General to require the church to file a statement or report as to “all the facts and circumstances concerning the alleged violation and such other data and information as the consumer protection division deems necessary” whenever it “has reason to believe that a person is engaging in, has engaged in, or is about to engage in any act or practice declared unlawful by this subchapter, or when it reason- ably believes it to be in the public interest... .” Tex.Bus. & Com.Code Ann. § 17.60 (emphasis added). Section 17.61 gives the Consumer Protection Division authority to demand a person to produce documentary material and permit inspection and copying “[w]henever the consumer protection division believes that any person may be in possession . . . of any documentary material relevant to the subject matter of an investigation of a possible viola- tion of this subchapter. ... ” Id. § 17.61(a) (emphasis added). | The Attorney General clearly interprets these sec- tions as broadly as they appear, applying them to the Plaintiffs without consideration for any First Amendment Rights as a religious organization. In the January 13, 1991, : App. 44 document demand sent to the Tiltons, the Attorney Gen- eral demanded, amongst other things: (1) Media plans and insertion data for television presentations and written solicitations made by the Church; (2) All documents, shipping records, memoranda and other materials relating to the handling of prayer requests and any other solicitation material which is claimed to be the subject of any prayer or other entreaty to God by Robert Tilton or any other person employed by the Church from January 1, 1989, to and including the present; (3) All cancelled checks and other documentary material relating to contributions sent to each orphanage, mission, ministry, and charitable organization by Robert Tilton or the Church during the period from January 1, 1989 to and including the present; (4) Testimonials or complaints from any individuals who have sent money or anything else of value to Robert Tilton, Marte Tilton, the Church, or any other Church entity from January 1, 1989, to and including the present; (5) List of all Church employees and consultants that have received in excess of $100,000 from the Church or any Church entity from January 1, 1987, to and includ- ing the present, including the name, address, and tele- phone number of each person and amounts received; (6) List of all persons who have been paid or remu- nerated in any way in excess of $100,000 from the Church App. 45 or any Church entity from January 1, 1987, to and includ- ing the present, including the name, address, and tele- phone number of each person; (7) List of all persons who have sent contributions to the Church and any other Church entity from January 1, 1989, to and including the present, including name, address, telephone number, amount and date of contribu- tion; (8) List of all vendors and/or contract labor that have received payments in excess of $50,000 from the Church and any other Church entity from January 1, 1987, to and including the present, including name, address, telephone number, and amounts and dates received; (9) Copies of the minutes of meetings of the board of directors for the Church held since January 1, 1987, to and including the present; (10) List of all members of Robert Tilton’s family who are involved in any way with the production of Robert Tilton’s television broadcasts; (11) A copy of all policy or procedure manuals relating to the method and manner in which the Church, other Church entities, and Robert Tilton solicit contribu- tions; (12) A copy of every advertisement, brochure, or other document used in the promotion or marketing of the Church and all other Church entities.° ® To avoid undue repetition, the Court has combined some of the Attorney General's specific requests in this list. App. 46 The scope and substance of these requests are clearly unconstitutional.!° The State has no constitutional author- ity to know a person’s membership in or support of any church. The State has no constitutional authority to know what a person believes, how he or she practices religion, or how he or she supports religious activities. Nor does the State have constitutional authority to probe into the internal operations of a church without limitation or com- pelling purpose. The First Amendment right to freedom of religious belief and freedom of association protects this kind of information. Implicit in these First Amendment freedoms is pri- vacy of belief and association. See Buckley v. Valeo, 424 U.S. 1, 65-67, 96 S.Ct. 612, 657, 46 L.Ed.2d 659 (1976); Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 544, 83 S.Ct. 889, 892-93, 9 L.Ed.2d 929 (1962); Bates v. City of Little Rock, 361 U.S. at 523, 80 S.Ct. at 416; N.A.A.C.P. v. Alabama, 357 U.S. at 462, 78 S.Ct. at 1171-72. Disclosure of who belongs to a group or who contributes to a group, and how much, has been vigorously safe- guarded by the United States Supreme Court. See id. The Court has recognized that disclosure to the public, or to the State, of a groups’ members or contributors can harm the group by subjecting them to harassment or causing 10 The scope of the request is also unreasonable and clearly oppressive insofar as it requires the Plaintiffs to produce an enormous amount of documents, which do not appear to have relevance to the alleged purpose of the investigation. For exam- ple, the Church grosses approximately $65,000,000 a year. The number of checks received and mailed out and the documents produced, even over a three-year period, would be unimagin- able, much less easily produced. App. 47 new members to not join for fear of disclosure or harass- ment or other reprisal. E.g., Gibson, 372 U.S. 539, 83 S.Ct. 889 (Florida legislative committee could not require Gib- son to produce N.A.A.C.P.’s organization list for the com- mittee). The Attorney General argues that the church’s First Amendment rights of free exercise of their religion and association are not harmed because the DTPA requires that the Attorney General not publicly disclose informa- tion gathered under Section 17.61 See Tex.Bus. & Com.Code Ann. § 17.61(f). This argument is seriously flawed. Nothing prevents the Attorney General from dis- closing information gathered under Section 17.60, and given past interpretations of statutes by the Attorney General,"! it is not unforeseeable that the Attorney Gen- eral might seize upon this distinction. In addition, the mere threat of disclosure has been recognized as seriously harming a group by causing new members to not join and old members to withdraw in fear of hostility or reprisal. Bates, 361 U.S. at 524, 80 S.Ct. at 417; Familias Unidas v. Briscoe, 619 F.2d 391, 398, 400 (5th Cir. 1980). Thus, if the Attorney General is permitted to make such a request and discloses the request, as done in this case, that in itself is a significant intrusion on the " Recall that the Attorney General interprets the Open Records Act exemption of information “demed confidential by law” to mean that it is nonetheless permissible to release to the media document requests for information made confidential by the DTPA and the MCLA, describing in detail what the Attorney General is seeking. See Tex.Rev.Civ.Stat.Ann. Art. 6252-17a(3)a)(1) (Vernon’s 1992 Supp.); Tex.Bus. & Com.Code Ann. § 17.61(f); Tex.Rev.Civ.Stat.Ann. Art. 1302-5.04. App. 48 Plaintiffs’ First Amendment rights. Such harm was shown in this case by the Plaintiffs, who testified that the number of new members joining the church has decreased and the number of old members withdrawing has increased. Death threats and other forms of harass- ment have also increased. This harms not only the Plain- tiffs’ rights of association but also the exercise of their religion, which to a large degree involves attracting new members to their faith and encouraging people to make “vows” to God. Furthermore, Section 17.61(f) states that information gathered under that section may be used “in the enforce- ment of this subchapter, including presentation before any court.” Given the publicity surrounding the hearings in this case so far, the Attorney General would be hard pressed to argue that information gathered will not be made public in the future. Absent a compelling State interest, the Attorney Gen- eral’s “signficant encroachment” upon “important and traditional aspects of individual freedom” cannot be tol- erated. See Bates 361 U.S. at 524, 80 S.Ct. at 417; N.A.A.C.P. v. Alabama, 357 U.S. at 463, 78 S.Ct. at 1172; Familias, 619 F.2d at 399. The Attorney General’s proffered reason for investigation is to determine if the Plaintiffs are persuad- ing people to contribute to the Church through misrepre- sentations or fraud. Membership lists and contributors lists will not further that interest. Full and complete documentation of the Church’s internal affairs may fur- ther that purpose, but such discretion is overbroad and if not more narrowly drawn cannot survive constitutional App. 49 attack.!? Cf. Int’l Soc’y for Krishna Consciousness v. City of Houston, 689 F.2d 541, 556 (5th Cir.1982) (Houston ordi- nance, simply requiring registration for groups to solicit, did not require membership lists or lists of contributors or inquire about the organization’s internal operations, apart from its public solicitation, and thus was constitu- tional). Allowing the Plaintiffs to petition to modify or set aside the demand does not rectify the infringement on Plaintiffs’ First Amendment rights. See Tex. Bus. & C. § 17.61(g); see also Murdock, 319 U.S. 105, 63 S.Ct. 870. Plaintiffs should not be forced to resort to the courts to be allowed to exercise their First Amendment rights. Section 17.61(g) of the DTPA requires just that in order for a person to challenge the Attorney General’s document demand. Having to resort to the courts before exercising a First Amendment right is even more of an infringement than requiring fees to be paid first. See id. Section 17.61(g) is not, contrary to the Attorney General’s opinion, “ade- quate due process”. Furthermore, proceeding with the investigation under the DTPA, as interpreted by the Attorney General, 2 The Attorney General, during the hearings, tacitly admits both the January 13, 1992, document demand and requested relief in the quo warranto proceedings are unconstitu- tionally invasive and requested that amendments to both docu- ments be allowed. The testimony of the Assistant Attorney Generals, in the hearings and in the proposed amended docu- ment request, however, remains consistent - they appropriately acted under their statutory authority in the DTPA. This “King’s X" approach merely emphasizes the unco [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_0984%3A1. Public record. Not legal advice.