Lewandowski v. Danforth

• Court: Missouri Supreme Court
• Writing for the Court: DONNELLY
• Citation: Lewandowski v. Danforth, 547 S.W.2d 470 (Mo. 1977)
• Decision Date: 14 March 1977
• Docket Number: No. 59509,59509
• Parties: Helen LEWANDOWSKI et al., Appellants, v. John C. DANFORTH, Attorney General, State of Missouri, Respondent.

Page 470

547 S.W.2d 470

Helen LEWANDOWSKI et al., Appellants, v. John C. DANFORTH, Attorney General, State of Missouri, Respondent.

No. 59509.

Supreme Court of Missouri, en banc.

March 14, 1977.

Charles C. Shafer, Jr., Kansas City, for appellants.

Harvey M. Tettlebaum, Asst. Atty. Gen., Jefferson City, for respondent.

DONNELLY, Judge.

In this cause, the constitutionality of § 407.040, RSMo Supp.1973, is questioned. It reads as follows:

"1. When it appears to the attorney general that a person has engaged in or is engaging in any act or practice declared to be unlawful by sections 407.010 to 407.130 or when he believes it to be in the public interest that an investigation should be made to ascertain whether a person in fact has engaged in or is engaging in any such act or practice, he may execute in writing and cause to be served upon any person who is believed to have information, documentary material, or physical evidence relevant to the alleged or suspected violation, an investigative demand requiring such person to appear and testify, or to produce relevant documentary material or physical evidence for examination, at such reasonable time and place as may be stated in the investigative demand, concerning the advertisement, sale or offering for sale of any goods or services or the conduct of any trade or commerce that is the subject matter of the investigation; except that, this section shall not be applicable to criminal proceedings.

"2. Each civil investigative demand shall

"(1) State the statute and section thereof, the alleged violation of which is under investigation, and the general subject matter of the investigation;

"(2) Describe the class or classes of information, documentary material, or physical evidence to be produced thereunder with reasonable specificity so as fairly to indicate the material demanded;

"(3) Prescribe a return date within which the information, documentary material, or physical evidence is to be produced; and

"(4) Identify the members of the attorney general's staff to whom such information, documentary material, or physical evidence is to be made available.

"3. No civil investigative demand shall:

"(1) Contain any requirement which would be unreasonable or improper if contained in a subpoena duces tecum issued by a court of this state; or

"(2) Require the disclosure of any documentary material which would be privileged, or which for any other reason would not be required by a subpoena duces tecum issued by a court of this state.

"4. Service of any civil investigative demand, notice, or subpoena may be made by:

"(1) Delivering a duly executed copy thereof to the person to be served or to a partner or to any officer or agent authorized by appointment or by law to receive service of process on behalf of such person;

"(2) Delivering a duly executed copy thereof to the principal place of business in this state of the person to be served; or

"(3) Mailing by registered or certified mail a duly executed copy thereof addressed to the person to be served at the principal place of business in this state or, if said person has no place of business in this state, to his principal office or place of business;

"(4) The mailing thereof by registered mail, requesting a return receipt signed by the addressee only, to the last known place of business, residence or abode within or without this state of such person for whom the same is intended."

Appellants, the principals of Pen Pals International (PPI), instituted this proceeding by filing in the Circuit Court of Jackson County a Petition to Set Aside the Civil Investigative Demand (CID) issued by Respondent, the Attorney General of Missouri. The CID called for production by appellants of:

1. the actual number of solicitations mailed by PPI to Missourians since January 1, 1975;

2. the number of State residents who enrolled with PPI under the "half price discount offer";

3. the names of members across the nation who are known by PPI to have formed "strong and romantic attachments" and "marriages" that resulted from associations formed through PPI;

4. a gross income and cost statement, including the salaries, wages and profits of all employees and owners;

5. a list of names, addresses and phone numbers of all Missourians who have joined PPI since January 1, 1975;

6. a list of the names and addresses of all employees, past or present, of PPI since January 1, 1975.

The information sought by Respondent was demanded under the authority of § 407.040, supra. Respondent claimed to believe appellants have used "fraud, deception or misrepresentation in connection with the sale and advertisement of the above goods and services including, but not limited to misrepresentation of the enterprise as a non-profit organization, and misrepresentation of the possibility of forming 'strong and romantic' attachments through referrals by Pen Pals International."

In response to appellants' petition, Respondent filed a motion to dismiss on the grounds of improper venue and because the petition failed to state a cause of action. The circuit court agreed that no cause of action was stated in the petition, and the case was dismissed without prejudice and with 20 days leave granted appellants to file an amended petition. Appellants filed a Motion to Set Aside the Court's Order which was overruled. Appeal was perfected to this Court.

Before considering the challenges to § 407.040, supra, which authorizes the Attorney General of this State to issue a CID, we note the similarity of § 407.040 to procedures in the Federal Antitrust Civil Process Act found codified at 15 U.S.C.A. § 1312. Since the Missouri CID statute has received virtually no judicial attention, the best available authority on the subject consists of federal decisions which have construed and applied the provisions of the Federal Antitrust Civil Process Act. (In State ex rel. Danforth v. Independence Dodge, Inc., 494 S.W.2d 362, 363 (Mo.App.1973), Judge Wasserstrom noted the parallel between the federal and state laws but did not find it necessary to rule on the authority and scope of a CID). See generally, Annot. 10 A.L.R. Fed. 677; von Kalinowski, Antitrust Laws and Trade Regulations, Vol. 16L, § 93 (1976).

Appellants...