Abundant Life Baptist Church of Lee's Summit v. Jackson Cnty., Case No. 4:20-00367-CV-RK

• Court: United States District Courts. 8th Circuit. Western District of Missouri
• Writing for the Court: ROSEANN A. KETCHMARK, JUDGE
• Citation: 539 F.Supp.3d 978
• Parties: ABUNDANT LIFE BAPTIST CHURCH OF LEE'S SUMMIT, MISSOURI, Plaintiff, v. JACKSON COUNTY, MISSOURI, Jackson County Health Department, Frank White Jr., Troy Schulte, Bridgette Shaffer, Truman Medical Center, Incorporated, Defendants.
• Docket Number: Case No. 4:20-00367-CV-RK
• Decision Date: 17 May 2021

539 F.Supp.3d 978

ABUNDANT LIFE BAPTIST CHURCH OF LEE'S SUMMIT, MISSOURI, Plaintiff,
v.
JACKSON COUNTY, MISSOURI, Jackson County Health Department, Frank White Jr., Troy Schulte, Bridgette Shaffer, Truman Medical Center, Incorporated, Defendants.

Case No. 4:20-00367-CV-RK

United States District Court, W.D. Missouri, Western Division.

Signed May 17, 2021

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Jonathan R. Whitehead, Law Offices of Jonathan R. Whitehead, LLC, Lees Summit, MO, for Plaintiff.

Joshua Neal Haner, Dawn Joanna Diel, Jackson County Counselor's Office, Kansas City, MO, for Defendants Missouri Jackson County, Frank White, Jr., Troy Schulte.

Amy D. Fitts, Brisa Ileana Izaguirre Wolfe, Polsinelli PC, Kansas City, MO, for Defendants Jackson County Health Department, Bridgette Shaffer, Truman Medical Center, Incorporated.

ORDER

ROSEANN A. KETCHMARK, JUDGE

Before the Court are two motions to dismiss: one filed by Defendants Jackson County, Missouri, Troy M. Schulte, and Frank White, Jr. (Doc. 33); and another filed by Defendants Jackson County Health Department ("Health Department"), Bridgette Shaffer, and Truman Medical Center, Inc. ("TMC") (Doc. 34). The motions are fully briefed. (Docs. 38, 41, and 42.) For the reasons set forth below, the motions are DENIED in part and GRANTED in part.

I. OVERVIEW

Plaintiff Abundant Life Baptist Church of Lee's Summit, Missouri, is a church

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located in Jackson County, Missouri.¹ Plaintiff filed its First Amended Complaint ("Complaint") on October 30, 2020. (Doc. 24.) Plaintiff alleges Defendants Health Department, TMC,² White,³ Shaffer,⁴ and Schulte⁵ discriminated and continue to discriminate against religious groups and activity in issuing emergency public health orders in response to the threat posed by the novel coronavirus disease 2019 (COVID-19). Plaintiff's Complaint refers to these emergency public health orders as the "Plan," which includes such orders "starting from the Stay at Home Order, continuing with the Phase 1 Plan, Phase 2.5, orders to effectuate future phases of the Plan, and Defendants’ criteria, guidance, interpretations, and policies related to the Plan." Plaintiff alleges these "constitute a unified set of laws, orders, guidance, interpretations and policies, responding to the same health emergency." Plaintiff alleges Defendants White, Schulte, and Shaffer acting on behalf of TMC as operator of the Health Department, claim undifferentiated authority to issue orders constituting the Plan, and so are legally responsible for the Plan.

A. Stay at Home Order

Abundant Life alleges Defendants issued a "Stay at Home" Order on March 24, 2020, which was amended on April 16, 2020. The Stay at Home Order generally directed "nonessential" businesses within the county to shut down and prohibited unauthorized gatherings outside single households. The Stay at Home Order did not include houses of worship in the "essential" business category. The Stay at Home Order imposed less harsh rules on essential businesses than those imposed on nonessential businesses. Under this Order Plaintiff was prohibited from holding worship services.

B. Phase 1 Order

On May 11, 2020, the "Eastern Jackson County Recovery Plan Phase 1" ("the Phase 1 Order") became effective. Under the Phase 1 Order, essential businesses could open for business if they maintained social distancing and preventative practices and had a social distancing protocol. Retail stores could open if they limited the number of people allowed into the building to specified percentages of the facility occupancy limit, maintained social distancing and implemented preventative practices, and had a social distancing protocol. Personal services (e.g. salons) were to follow the same rules to be open for business by appointment only. Entertainment venues, gyms and fitness centers, outdoor playgrounds, and sports courts were to remain closed. Large gatherings, including those at churches, funerals, and weddings, were limited to ten people, were to maintain social distancing and preventative practices, and could be held as drive-in services with social distancing. Restaurants and bars selling food were able to allow dining in, but curbside and pickup were encouraged. Restaurants and bars were to follow

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the same additional restrictions as retail stores and personal services businesses.

Plaintiff alleges the Phase 1 Order applied rules to it based on the religious motivation for a gathering and not on objective, measurable safety criteria, and treated religious groups unequally based on geography in that Kansas City, Missouri's rules applied in parts of western Jackson County, Missouri and were more generous to churches than the Phase 1 Order's rules.

C. Amended Phase 1 Order

After Defendants were served this lawsuit, an Amended Phase 1 Order and brochure were issued, dated May 12, 2020, and received by Plaintiff May 14, 2020.⁶ The Amended Phase 1 Order subjected church gatherings to substantially the same limits as "non-essential businesses that are frequented by the public," and churches were not designated as "essential" organizations. The Amended Phase 1 Order subjected commercial businesses to less restrictive rules. The Amended Phase 1 Order subjected Plaintiff to rules based on Plaintiff's religious status or motivation, not safety criteria, and allowed different rules in Kansas City, Missouri than in eastern Jackson County, Missouri.

D. Phase 2 Order

Phase 2 of the Plan was effective beginning June 1, 2020. Under the Phase 2 Order, places of worship could gather at "50% of the lowest occupancy load on the certificate of occupancy of the room or facility (whichever is lower) in which the gathering is occurring. This is only permissible as long as adequate social distancing (6 feet) can be maintained." The brochure regarding Phase 2 also showed rules for Phase 3, under which Plaintiff could gather at 75 percent capacity, but did not provide a date for implementation. The rules of the Phase 2 and Phase 3 Orders continued to offer less restrictive rules to other non-religious gatherings, particularly "essential" commercial operations, and limited Plaintiff based on religious motivation or status rather than measurable safety criteria.

E. Phase 2.5 Order

On July 1, 2020, Defendant Shaffer issued the Phase 2.5 Order on behalf of the Health Department operated by TMC, and in her capacity as director of the Jackson County Health Department. Defendants Shaffer, the Health Department, and TMC ordered Plaintiff to exclude people without masks under penalty of law for both Plaintiff and worshipers without regard to modifications or accommodations under the Phase 2.5 order, which Plaintiff does not wish to do. Phase 2.5 continued to offer less restrictive rules for "essential" businesses, "penaliz[ing]" religiously motivated gatherings differently than other, non-religiously motivated gatherings. Phase 2.5 limited outdoor religious gatherings to 100 people, not counting employees, which would have prevented Plaintiff from offering "car church" services as alternatives to indoor worship services. The Phase 2.5 Order did not require organizations to enforce the face covering requirements. TMC in its operations of the Health Department did issue posters on July 1, 2020, which claimed businesses had a duty to enforce the Order, as well as issuing business guidance which claimed to require a business to post signs concerning masks, to enforce the face covering mandate in the business, and to ask all customers two County-mandated questions. TMC, through its operations of the Health Department, threatened

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that "[f]ailure to enforce the face covering mandate within the confines of the business may result in a notice of non-compliance which is punishable by fine, imprisonment, or both."

F. The Amended Phase 2.5 Order

On October 2, 2020, Defendants issued a new, Amended Phase 2.5 Order, signed by Defendants White, Shaffer, and Schulte, and a new Recovery Plan brochure. The Amended Phase 2.5 Order delegated authority to Defendant Shaffer to "extend[ ], rescind[ ], supersede[ ], or amend[ ]" the Order. The Amended Phase 2.5 Order defined "gatherings" to include "religious services" and imposed a permission-based system for gatherings of more than 100 people, requiring them to submit a gathering protocol at least 72 business hours in advance of the event to be approved by Jackson County and made easily accessible to all attendees. The gathering protocol required churches to list all dates and times of their events and upload plans, diagrams, seating charts, and other materials relevant to their events. Churches had to follow all the listed measures in the document and seek permission to gather. Approval could be revoked at any time with possible punitive action for failure to comply with Jackson County Health Department orders. The gathering protocol document listed no requirements for the basis of the County's approval or...