State v. Valerie Saxion, Inc.

• Citation: 450 S.W.3d 602
• Decision Date: 04 December 2014
• Docket Number: No. 02–13–00227–CV.,02–13–00227–CV.
• Parties: The STATE of Texas and Greg Abbott, in his Official Capacity as Attorney General of the State of Texas, Appellants and Appellees, v. VALERIE SAXION, INC. and Valerie Saxion, Individually, Appellees and Appellants.
• Court: Court of Appeals of Texas

450 S.W.3d 602

The STATE of Texas and Greg Abbott, in his Official Capacity as Attorney General of the State of Texas, Appellants and Appellees

v.VALERIE SAXION, INC. and Valerie Saxion, Individually, Appellees and Appellants.

No. 02–13–00227–CV.

Court of Appeals of Texas, Fort Worth.

Dec. 4, 2014.

Greg Abbott, Attorney General of Texas, Daniel T. Hodge, David C. Mattax, James “Beau” Eccles, Susan M. Watson, Office of the Attorney General, General Litigation Division, Austin, for State.

Martin Merritt, Freidman & Feiger, Dallas, for Appellee.

PANEL: DAUPHINOT, WALKER and McCOY, JJ.

OPINION

BOB McCOY, Justice.

I. Introduction

In two issues in this accelerated interlocutory appeal, Appellants the State of Texas and Greg Abbott, in his official capacity as Attorney General of the State of Texas (collectively, the State) argue that the trial court erred by denying their plea to the jurisdiction on the Free Exercise and federal Religious Freedom Restoration Act (RFRA) claims of Appellees Valerie Saxion, Inc. and Valerie Saxion, individually (collectively, Saxion). See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(5), (8) (West 2008 & Supp.2014). The State presents this as a case about false and misleading labeling made in connection with the sale of dietary supplements in the Texas market.

In two issues in her cross-appeal, Saxion counters that the trial court erred by denying her motion for summary judgment on her counterclaims and affirmative defenses and characterizes the case as one involving religious speech infringed upon by government persecution.

Concluding that Saxion's cross-appeal does not fall under civil practice and remedies code section 51.014(a)(6), we dismiss the cross-appeal for want of jurisdiction. See id. § 51.014(a)(6) (West 2008 & Supp.2014). And we reverse the trial court's judgment on the State's plea to the jurisdiction with regard to Saxion's free exercise and federal RFRA claims, render a judgment of dismissal for the State on these claims, and remand this case to the trial court for further proceedings.

II. Factual and Procedural Background

The State sued Saxion for violations of the Texas Food, Drug, and Cosmetic Act (TFDCA) and the Deceptive Trade Practices Act (DTPA), listing page after page of allegations regarding Saxion's explicit and implicit statements—“on the internet, in labeling, and in promotional materials, including product catalogues and newsletters” —about the ability of her dietary supplements to diagnose, mitigate, treat, cure, and prevent disease.¹ See Tex. Health & Safety Code Ann. §§ 431.047, .0585 (West 2010); Tex. Bus. & Com.Code Ann. §§ 17.41, .46(a)-(b) (West 2011). The State also alleged that Saxion promoted herself as a “naturopathic” doctor, which Texas does not recognize, and stated that

any use of terms like “Doctor” or “Dr.” with VALERIE SAXION'S name or derivative of her name on the label, in labeling, or in advertising in Texas constitutes false advertising under both the TFDCA and the DTPA as this use implies directly or indirectly that Defendant VALERIE SAXION is a degreed doctor and/or authorized to practice medicine in Texas.

The State concluded its petition with the allegation that

[b]ased on the findings in paragraphs 16 through 27 above, incorporated herein by reference, Defendants have manufactured, held, offered for sale, distributed, sold, and/or introduced into commerce in Texas unapproved new drugs, misbranded drugs and foods, and falsely represented that these unapproved new drugs or misbranded foods could treat, mitigate, cure, or prevent various diseases. Defendants have also manufactured foods within Texas without a food manufacturer's license for each name listed as a manufacturer on the label.

The State contended in its petition's conclusion that Saxion's products fell under the auspices of the TFDCA and violated it because they had not been approved by the federal Food and Drug Administration (FDA), they were misbranded, and their labels were false or misleading. And it contended that in the course of trade and commerce, Saxion had engaged in false, misleading, and deceptive acts and practices that were unlawful under the DTPA.

The State sought an injunction against Saxion to stop her from engaging in the practices set out in its petition—a comprehensive list of twenty-four activities pertaining to, among other things, misbranding, misrepresentation, and mislabeling by failing to disclose that claims to diagnose, mitigate, treat, cure, or prevent disease cannot legally be made for dietary supplements² and in other manners; representing that a person has a sponsorship, approval, status, affiliation, or connection that she does not have by using the title “Doctor,” or the abbreviation “Dr.”; making misleading claims, either explicitly or implicitly, to diagnose, mitigate, treat, cure, or prevent disease for dietary supplements through any means, “including, but not limited to, websites, product labels and brochures, catalogs, advertisements, third party vendors, and third party websites unless the claims meet the requirements of a health claim or qualified health claim, structure/function claim, or nutrient claim authorized by federal regulation or ... otherwise permitted by” the FDA; and disseminating false advertisements.

Saxion counterclaimed for declaratory and injunctive relief against the State of Texas and against Gregg Abbott “in his official capacity as Attorney General,” asserting that her statements were based on her sincerely held religious beliefs and arguing, among other things, that the State's suit implicated her free exercise and free speech rights and her corresponding rights under the state constitution. Saxion nonetheless admitted in her pleadings that the speech to which she referred was “not contained on the labels of her products.”

In support of her religious-message argument, Saxion pointed to certain passages from a book she had authored:

1. Realize there is a problem! The first step to utilizing your spiritual authority over food or whatever has a hold on you is admitting you have a problem.

2. Ask for the Holy Spirit's help! Ask the Holy Spirit to reveal anything that is not pleasing to Him. If you really want to be free, listen when he answers. You may be surprised what he reveals to you.

3. Repent! Ask the Lord to forgive you for allowing food to have such a strong hold on your life, and thank Him for [s]howing you this area of your life that needs work. Don't beat yourself up over it. Just repent and receive God's forgiveness and love.

...

God has placed herbs, minerals and vitamins for us to understand and utilize to maintain health and regain health[.] He [h]as instructed man through His Word on how to utilize these for our personal wellness. [Emphasis added.]

Saxion contended that she needed protection from state action that deprived or substantially burdened her free exercise of religion under the First Amendment, under the federal RFRA, and under the state constitution.

Saxion sought a declaratory judgment that her statements were not illegal under the TFDCA, DTPA, or any state law; that the “Federal FDCA as amended by DSHEA [the Dietary Supplemental Health Education Act]” expressly or impliedly preempted the State's TFDCA and DTPA claims; that her due process rights would be violated if civil monetary penalties or an injunction were imposed on her under the TFDCA or DTPA; and that her equal protection and First Amendment rights would be violated by an injunction for the State. She also sought a prohibitory injunction against the attorney general “in his official capacity, and officers, agents[,] appointees[,] and employees of the State of Texas from enforcing Tex. Pen[al] Code [section] 31.52” against her; from censoring or threatening to censor her by prior restraint; or from imposing or threatening to impose civil monetary penalties or damages with regard to her rights of free speech, free press, and free exercise. The State raised sovereign, official, and qualified immunity defenses in response to Saxion's claims.

Saxion filed a combined traditional and no-evidence motion for summary judgment, arguing that the State's lawsuit violated the federal RFRA and, for the first time, the Texas RFRA, and her constitutional rights to freedom of religion, free exercise, and free speech.

To her motion, Saxion attached her eleven-page affidavit. In her affidavit, Saxion averred that she promoted dietary supplements to be used in conjunction with faith in God, that she was a regular on TBN's Praise the Lord and hosted TBN's Alternative Health, and that the attorney general's office intended to silence her ministry and destroy her business. Saxion also stated in her affidavit that

when ministering on TV or in person, any reference to any ingredient(s) that may be found in a dietary supplement(s) or food(s) was/were always referenced by an ingredient's common or scientific name and never in the mentioning or promotion of a specific brand. For example, if I spoke on vitamin C

, I called it vitamin C [,] which is readily available for purchase in multitudes of stores and countless websites.

Saxion incorporated portions of one of her books, which included the following statement:

Let me assure you, when I talk about feeling great all the time, there are no magic vitamins or minerals or hormones that do the trick ... No amount of cleansing and detoxifying will remove bitterness, unforgiveness [sic], fear, or any other bad attitude that shouldn't be there. Ask our wonderful heavenly father for wisdom so that you can pluck out the real root and be free and healthy all the time.

Saxion also contended in her affidavit that an assistant attorney general had ridiculed her religious beliefs, that the State had demanded that she lie about her degree in naturopathy

based on its allegation that she had improperly represented that she had sponsorship, approval, status, affiliation, or connection by using the title “Doctor,” or the abbreviation “Dr.,” and that s...