First Baptist Church v. Kelly

457 F.Supp.3d 1072

FIRST BAPTIST CHURCH; Pastor Stephen Ormord; Calvary Baptist Church; and Pastor Aaron Harris, Plaintiffs,

v.Governor Laura KELLY, in her official capacity; Adjutant General David Weishaar, in his official capacity; Geary County Sheriff Daniel E. Jackson, Jr., in his official capacity; and Ford County Sheriff William Carr, in his official capacity, Defendants.

No. 20-1102-JWB

United States District Court, D. Kansas.

Signed April 27, 2020

David A. Cortman, Pro Hac Vice, Alliance Defending Freedom, Lawrenceville, GA, Joshua A. Ney, Topeka, KS, Ryan A. Kriegshauser, Kriegshauser Law, LLC, Olathe, KS, Ryan J. Tucker, Pro Hac Vice, Alliance Defending Freedom, Scottsdale, AZ, Tyson C. Langhofer, Alliance Defending Freedom, Ashburn, VA, for Plaintiffs.

Jason Andrew Zavadil, John B. Turney, Jr., Irigonegaray & Associates, Pedro L. Irigonegaray, Irigonegaray, Turney, & Revenaugh, LLP, Topeka, KS, Lumen Mulligan, Lawrence, KS, for Defendant Laura Kelly.

Terrence J. Campbell, Barber Emerson, LC, Lawrence, KS, for Defendant David Weishaar.

Cory R. Buck, Kevin D. Case, Patric S. Linden, Case Linden, PC, Kansas City, MO, for Defendants Daniel E. Jackson, Jr., William Carr.

MEMORANDUM AND ORDER

JOHN W. BROOMES, UNITED STATES DISTRICT JUDGE

This matter is before the court on Defendant Governor Laura Kelly's motion to dismiss (Doc. 30), Defendant Kelly's motion (or "suggestion") to dismiss Defendant William Carr (Doc. 36), and Plaintiffs’ motion to modify the temporary restraining order ("TRO"). (Doc. 41.) The motions are sufficiently briefed (Doc. 43) and further briefing has been waived or is unnecessary. For the reasons stated herein, the foregoing motions are DENIED.

I. Background and Facts

The legal landscape of the case has been altered by the filing of Plaintiffs’ amended complaint. (Doc. 33). That pleading names three additional defendants, all in their official capacities: David Weishaar, Kansas Adjutant General, Geary County Sheriff Daniel E. Jackson, Jr., and Ford County Sheriff William Carr. The amended complaint asserts three claims for deprivation of First Amendment rights under color of state law and seeks injunctive and declaratory relief under 42 U.S.C. § 1983. The amended complaint omits a claim under state law that was asserted in the initial complaint.

Plaintiffs are two churches in Kansas and their respective pastors. Defendant Laura Kelly is the Governor of the State of Kansas. On April 16, 2020, Plaintiffs filed a verified complaint (Doc. 1) seeking relief from Executive Order ("EO") 20-18, issued by Governor Kelly on April 7, 2020.

EO 20-18 was one of a series of executive orders issued by Governor Kelly to address the ongoing COVID-19 pandemic. The order was issued pursuant to the governor's authority granted by K.S.A. 48-924 and 48-925. (Doc. 33-1 at 3.) EO 20-18 contained numerous prohibitions, as well as a number of exemptions, relating to public and private activities. It prohibited "mass gatherings," defined as groups of ten or more people in a confined or enclosed space. (Id. ) One provision stated that "[w]ith regard to churches or other religious services or activities, this order prohibits gatherings of more than ten congregants or parishioners in the same building or confined or enclosed space," excluding those individuals conducting or performing a religious service so long as they followed safety protocols, including maintaining separation of six feet (i.e. , social distancing). (Doc. 33-1 at 3.) The order then set forth a list of 26 types of secular activities or facilities that were exempt from the prohibition on mass gatherings or that were subject to lesser restrictions. (Id. ) The exemptions included bars and restaurants, libraries, shopping malls, retail establishments, and office spaces. (Doc. 33 at 1.)

EO 20-18 superseded EO 20-14, a prior order that had exempted religious gatherings altogether from the prohibition on mass gatherings so long as attendees maintained appropriate social distancing. (Doc. 33 at 2.) Additionally, the governor's prior statewide "stay-at-home" order, EO 20-16, expressly allowed Kansans, subject to some restrictions, to "perform or attend religious or faith-based services or activities" as an exempt "essential function." (Doc. 33-3.)

The amended complaint indicates that Plaintiffs desire to conduct religious services involving more than ten attendees but they are subject to a threat of criminal prosecution for violation of the governor's executive orders if they do so. Plaintiff Aaron Harris was allegedly told by the Geary County Sheriff on April 14, 2020, that he would be subject to criminal enforcement of the order if he conducted an indoor service with more than ten attendees. (Doc. 33 at 4.) This allegedly occurred after Kansas Attorney General Derek Schmidt advised law enforcement officers in an April 8 memo to avoid criminal enforcement of the limitation on religious services. (Id. at 3.) On April 15, 2020, Plaintiff First Baptist Church wrote the governor's counsel requesting an allowance for church services under restrictions similar to those applicable to secular essential activities involving mass gatherings. On April 16, 2020, the governor's counsel responded that the request was under review and that a decision would be reached soon. (Doc. 33-8.) Plaintiffs’ initial complaint was thereafter filed on April 16, 2020.

On April 17, 2020, Plaintiffs filed a motion for a TRO and an expedited hearing. (Doc. 7.) Later that day, the governor signed EO 20-25, which revoked and replaced EO 20-18. (Doc. 33 at 6; Doc. 33-9.) EO 20-25 removed "libraries" and "shopping malls" from the list of exempted facilities for purposes of mass gatherings, and it added some restrictions on retail establishments and retail food establishments, but it maintained the same prohibition on religious gatherings of more than ten non-performing attendees. (Doc. 33-9 at 3.) The exempted activities and facilities not subject to the mass gathering prohibition continued to include many governmental operations, as well a number of other items, among which were included: airports, public and private schools when used for certain purposes; childcare facilities; hotels; food pantries; detoxification centers; retail establishments (subject to requirements that customers maintain a six-foot distance and be performing essential activities or functions under EO 20-16); retail food establishments; office spaces if used for essential activities or functions under EO 20-16; manufacturing, processing, distribution, and production facilities; public transportation; and job centers. (Id. at 3-5.)

The court held a hearing on the motion for TRO on April 17, 2020, and issued a Memorandum and Order and TRO the following day. The TRO enjoined the governor from enforcing the restriction on the number of attendees at religious gatherings against Plaintiffs, provided Plaintiffs comply with social distancing and other safety protocols. (Docs. 14, 15.) The court denied Defendant's motion to dismiss the action for mootness. (Doc. 14 at 19.)

According to the amended complaint, after issuance of the TRO the governor released a statement to the press. Among other things, the release stated that the TRO applied only to the two Plaintiffs and that "[a]ll other religious gatherings must continue to adhere to the requirements of Executive Order 20-25 and limit gatherings to 10 or fewer attendees." (Doc. 33 at 7.) The amended complaint adds extensive allegations concerning the governor's authority to enforce orders such as EO 20-25, and it alleges the governor has directed enforcement of her executive orders and has used her executive power to enforce, or has promised to enforce, those restrictions. (Doc. 33 at 14.)

The amended complaint alleges subject matter jurisdiction in this court under 28 U.S.C. § 1331 and 1343. (Doc. 33 at 12.) Invoking 42 U.S.C. § 1983, Plaintiffs allege that the religious restriction in EO 20-25 violates their rights under the Free Exercise Clause of the First Amendment. (Id. at 24.) They similarly claim it violates their First Amendment rights to engage in free speech and to peaceably assemble. (Id. at 25-26.) Plaintiffs allege they will suffer irreparable harm in the absence of declaratory and injunctive relief. The relief sought in the complaint includes, among other requests, a TRO, preliminary injunction, and permanent injunction against enforcement of the portion of EO 20-25 that prohibits more than ten attendees at religious services. (Id. at 26.)

In issuing the TRO, the court found the exercise of jurisdiction was proper under Ex Parte Young , 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). (Doc. 14 at 4.) In Ex Parte Young , the Supreme Court recognized an exception to a State's Eleventh Amendment immunity for certain suits seeking injunctive relief to prevent a state officer from enforcing an unconstitutional act. (Doc. 14 at 4.)

At a subsequent telephonic hearing, the court notified the parties of the Fifth Circuit's recent decision in In re Abbott , 956 F.3d 696, 708-09 (5th Cir. 2020). The Fifth Circuit concluded the Ex Parte Young exception was inapplicable to the governor of Texas because although he was empowered to "issue," "amend," or "rescind" executive orders, under Texas law he had no authority to "enforce" them. Id. As such, he did not have a connection to enforcement of the orders to satisfy the Ex Parte Young exception and was immune from suit in federal court.

Defendant thereafter filed a motion to dismiss that asserts this suit is barred by Eleventh Amendment immunity. (Doc. 30 at 1.) Defendant Kelly thereafter filed a motion to dismiss Defendant Carr. (Doc. 36). Plaintiffs have filed a response. (Doc. 43.)

II. Defendant Kelly's Motion to Dismiss (Doc. 30.)

Governor Kelly moves to dismiss on the basis of Eleventh Amendment immunity, arguing she lacks the "particular duty to enforce" EO 20-25 that is required for the Ex Parte Young exception to apply. (Doc. 30 ...