Legacy Church, Inc. v. Kunkel, No. CIV 20-0327 JB\SCY

CourtUnited States District Courts. 10th Circuit. District of New Mexico
Writing for the CourtJAMES O. BROWNING, UNITED STATES DISTRICT JUDGE
Citation472 F.Supp.3d 926
Decision Date13 July 2020
Docket NumberNo. CIV 20-0327 JB\SCY
Parties LEGACY CHURCH, INC., Plaintiff, v. Kathyleen M. KUNKEL and the State of New Mexico, Defendants.

472 F.Supp.3d 926

LEGACY CHURCH, INC., Plaintiff,
v.
Kathyleen M. KUNKEL and the State of New Mexico, Defendants.

No. CIV 20-0327 JB\SCY

United States District Court, D. New Mexico.

Filed July 13, 2020


Colin Hunter, Jordy Stern, Diego Esquibel, The Barnett Law Firm, P.A., Albuquerque, New Mexico, Attorneys for the Plaintiff.

Nicholas M. Sydow, Civil Appellate Chief, Office of the New Mexico Attorney General, Albuquerque, New Mexico, Attorneys for Defendant State of New Mexico.

Matthew L. Garcia, Chief General Counsel to Governor Michelle Lujan Grisham, Jonathan J. Guss, Deputy General Counsel to Governor Michelle Lujan Grisham, Santa Fe, New Mexico, Attorneys for Defendant Kathyleen Kunkel.

A. Blair Dunn, Western Agricultural Resource and Business Advocates, LLP, Albuquerque, New Mexico and Mark L. Rienzi, William J. Haun, Peter M. Torstensen, Jr., The Becket Fund for Religious Liberty, Washington, D.C., Attorneys for Amicus Curiae the Becket Fund for Religious Liberty.

Alex J. Luchenitser, Richard B. Katskee, Sarah Goetz, Americans United for Separation of Church and State, Washingon, D.C., Attorneys for amicus Americans United for Separation of Church and State.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE

472 F.Supp.3d 935

THIS MATTER comes before the Court on: (i) the Verified Emergency Motion for a Temporary Restraining Order, Preliminary Injunction, and Permanent Injunctive Relief, filed April 14, 2020 (Doc. 9)("PI Motion"); (ii) the Motion for Leave to File Amicus Curiae Brief and Proposed Amicus Curiae by Proposed Amicus the Becket Fund for Religious Liberty in Support of Plaintiff, filed April 17, 2020 (Doc. 17)("Becket Fund Amicus Motion"); (iii) the Motion to Dismiss Plaintiff's Original Complaint, Request for Temporary Restraining Order, and Permanent Injunction, filed April 27, 2020 (Doc. 33)("MTD"); (iv) the Unopposed Motion of Americans United for Separation of Church and State for Leave to File Amicus Curiae Brief in Opposing to Plaintiff's Motion for Preliminary Injunction and in Support of Defendant's Motion to Dismiss, filed May 6, 2020 (Doc. 44)("Americans United Amicus Motion"); and (v) the Opposed Motion Seeking Leave to Allow Secretary Kunkel to Testify Telephonically or Through Audiovisual Means at the July 10, 2020 Preliminary Injunction Hearing, filed July 8, 2020 (Doc. 75)("Witness Motion"). The Court held an evidentiary hearing on July 10, 2020, and argumentative hearings in April, May, and July, 2020. The primary issues are: (i) whether Plaintiff Legacy Church, Inc. ("Legacy Church") is entitled to a preliminary injunction against Defendant Secretary of the New Mexico Department of Health Kathyleen Kunkel's Public Health Emergency Orders1 ("Public Health Orders") on the grounds that the Public Health Orders impermissibly burden Legacy Church's rights under the Free Exercise Clause of the First Amendment to the Constitution of the United States; (ii) whether Legacy Church is entitled to a preliminary injunction against the Public Health Orders on the grounds that they impermissibly infringe on Legacy Church's rights under the Freedom of Assembly Clause of the First Amendment; (iii) whether Legacy Church has stated a plausible claim that Secretary Kunkel's Public Health Orders, which have imposed varying degrees of restriction on religious mass gatherings, among other activities, violate Legacy Church's asserted rights under the Free Exercise Clause; (iv) whether Legacy Church has stated a plausible claim that the Public Health Orders violate Legacy Church's rights under the Freedom of Assembly Clause; (v) whether the Court should permit proposed amici curiae The Becket Fund for Religious Liberty ("Becket Fund") and Americans United for Separation of Church and State ("Americans United") to submit amicus briefs; and (vi) whether the Court should permit Secretary Kunkel to testify telephonically or through audiovisual means at the hearing on the PI Motion. The Court concludes that: (i) Legacy Church is not substantially likely to succeed on the merits of its claim that the Public Health Orders violate Legacy Church's Free Exercise rights, because the Public Health Orders are neutral with respect to religion and generally applicable; (ii) Legacy Church is not substantially likely to succeed

472 F.Supp.3d 936

on the merits of its claim that the Public Health Orders violate its Assembly Clause rights, because the Public Health Orders are unrelated to the suppression of speech or religion, serve a compelling state interest, and significantly less restrictive alternatives are not available; (iii) Legacy Church has not stated a plausible claim that the Public Health Orders violate its Free Exercise rights, because the Public Health Orders are generally applicable and neutral with respect to religion; (iv) Legacy Church does not state a plausible claim that the Public Health Orders violate its rights to assemble, because the Public Health Orders are unrelated to the suppression of speech or religion, serve a compelling state interest, and significantly less restrictive alternatives are not available; (v) the Court grants the Becket Fund and Americans United leave to submit amicus briefs, because both have expertise in First Amendment law that will aid the Court in determining the issues before it; and (vi) Secretary Kunkel may testify through audiovisual means at the hearing on the PI Motion, because Secretary Kunkel cites valid health concerns and her audiovisual testimony will not prejudice the parties. The Court thus denies the PI Motion, grants the Becket Fund Amicus Motion, grants the MTD, grants the Americans United Amicus Motion, and grants the Witness Motion. Because the coronavirus pandemic -- and the public health threat that it presents to the State of New Mexico -- is evolving rapidly, and several intervening Public Health Orders have superseded the Public Health Emergency Order (PHO 4-11-20)("April 11 Order") against which Legacy Church filed its Complaint, Request for Temporary Restraining Order, and Permanent Injunction, filed April 11, 2020 (Doc. 1)("Complaint"), the Court evaluates each substantive Public Health Order. In doing so, the Court concludes that Legacy Church cannot state a plausible First Amendment claim. Accordingly, the Court denies Legacy Church leave to amend the Complaint, because amendment would be futile.

FACTUAL BACKGROUND

Because the Court addresses two separate motions that challenge separate Public Health Orders and which are subject to separate standards, the Court includes two factual sections. First, the Court provides the undisputed facts that govern the PI Motion. Second, the Court provides the facts that Legacy Church alleges in its Complaint which govern the MTD.2

1. The PI Motion.

A motion for a preliminary injunction "requires the Court to make predictions

472 F.Supp.3d 937

about the plaintiff's likelihood of success." Herrera v. Santa Fe Pub. Sch., 792 F. Supp. 2d 1174, 1179 (D.N.M. 2011) (Browning, J.). Rule 52 of the Federal Rules of Civil Procedure states: "In granting or refusing an interlocutory injunction, the court must [ ] state the findings and conclusions that support its action." Fed. R. Civ. P. 52(a)(2). " ‘[T]he findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at trial on the merits.’ " Herrera v. Santa Fe Pub. Sch., 792 F. Supp. 2d at 1179 (quoting Attorney Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 776 (10th Cir. 2009) )(alteration in Herrera v. Santa Fe Public Schools only). See Univ. of Tex. v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981) ("[A] preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits."); Firebird Structures, LCC v. United Bhd. of Carpenters and Joiners of Am., Local Union No. 1505, 252 F. Supp. 3d 1132, 1140 (D.N.M. 2017) (Browning, J.). The United States Court of Appeals for the Tenth Circuit notes "that when a district court holds a hearing on a motion for preliminary injunction it is not conducting a trial on the merits." Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188 (10th Cir. 2003). Moreover, "[t]he Federal Rules of Evidence do not apply to preliminary injunction hearings." Heideman v. S. Salt Lake City, 348 F.3d at 1188. Accordingly, the Court finds as follows:

1. Legacy Church is a Christian church that provides church services at three locations in Bernalillo County, New Mexico; one location in Santa Fe County, New Mexico; and one location in Collin County, Texas. See Complaint ¶ 1, at 1; Locations/Times, Legacy Church, https://www.legacychurchnm.com/locations/times (last visited July 7, 2020).

2. Legacy Church is a "mega church" with nearly 20,000 church members. Legacy Church Profile, USA Churches, http://www.usachurches.org/church/legacy-church.htm (last visited July 7, 2020). See Coronavirus updates, April 14, Albuquerque J., https://www.abqjournal.com/1443415/coronavirus-updates-april-14.html (last visited July 7, 2020).

3. Legacy Church offers one to three church services each Sunday at its two locations in Albuquerque, New Mexico; at its one location in Rio Rancho, New Mexico; and at its one location...

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28 practice notes
  • ETP Rio Rancho Park, LLC v. Grisham, No. CIV 21-0092 JB/KK
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • February 8, 2021
    ...State is primarily the judge of regulations required in the interest of public safety and welfare"); Legacy Church, Inc. v. Kunkel, 472 F. Supp. 3d 926, 1048 (D.N.M. 2020)(Browning, J.)("Legacy Church"); Grisham v. Reeb, No. S-1-SC-38336, --- P.3d ---, 2020 WL 6538329, at *4 (reaffirming th......
  • ETP Rio Rancho Park, LLC v. Grisham, CIV 21-0092 JB/KK
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • September 30, 2021
    ...involving the PHOs. See, e.g., Hernandez v. Grisham, 499 F.Supp.3d 1013 (D.N.M. 2020)(Browning, J.); Legacy Church, Inc. v. Kunkel, 472 F.Supp.3d 926 (D.N.M. 2020)(Browning, J.). In its review of these PHOs, the issues generally have not been determining what the PHOs cover, but whether wha......
  • Hernandez v. Grisham, No. CIV 20-0942 JB\GBW
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • October 14, 2020
    ...amidst a global pandemic’ is a compelling governmental interest." Joint Response at 32 (citing Legacy Church, Inc. v. Kunkel, 472 F.Supp.3d 926, No. CV 20-0327 JB\SCY, 2020 WL 3963764 (D.N.M. July 13, 2020) (Browning, J.)). The Defendants note that the State's interest in combatting COVID-1......
  • Hernandez v. Grisham, No. CIV 20-0942 JB\GBW
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • December 18, 2020
    ...futile. See Response to MTA at 4-5 (citing Burke v. New Mexico, 696 F. App'x 325, 329 (10th Cir. 2017) ; Legacy Church, Inc. v. Kunkel, 472 F.Supp.3d 926, 1086 (D.N.M. 2020) (Browning, J.)(" Legacy II")). The Defendants note that the Proposed Amended Complaint ("PAC") contains only two refe......
  • Request a trial to view additional results
28 cases
  • ETP Rio Rancho Park, LLC v. Grisham, No. CIV 21-0092 JB/KK
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • February 8, 2021
    ...State is primarily the judge of regulations required in the interest of public safety and welfare"); Legacy Church, Inc. v. Kunkel, 472 F. Supp. 3d 926, 1048 (D.N.M. 2020)(Browning, J.)("Legacy Church"); Grisham v. Reeb, No. S-1-SC-38336, --- P.3d ---, 2020 WL 6538329, at *4 (reaffirming th......
  • ETP Rio Rancho Park, LLC v. Grisham, CIV 21-0092 JB/KK
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • September 30, 2021
    ...involving the PHOs. See, e.g., Hernandez v. Grisham, 499 F.Supp.3d 1013 (D.N.M. 2020)(Browning, J.); Legacy Church, Inc. v. Kunkel, 472 F.Supp.3d 926 (D.N.M. 2020)(Browning, J.). In its review of these PHOs, the issues generally have not been determining what the PHOs cover, but whether wha......
  • Hernandez v. Grisham, No. CIV 20-0942 JB\GBW
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • October 14, 2020
    ...amidst a global pandemic’ is a compelling governmental interest." Joint Response at 32 (citing Legacy Church, Inc. v. Kunkel, 472 F.Supp.3d 926, No. CV 20-0327 JB\SCY, 2020 WL 3963764 (D.N.M. July 13, 2020) (Browning, J.)). The Defendants note that the State's interest in combatting COVID-1......
  • Hernandez v. Grisham, No. CIV 20-0942 JB\GBW
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • December 18, 2020
    ...futile. See Response to MTA at 4-5 (citing Burke v. New Mexico, 696 F. App'x 325, 329 (10th Cir. 2017) ; Legacy Church, Inc. v. Kunkel, 472 F.Supp.3d 926, 1086 (D.N.M. 2020) (Browning, J.)(" Legacy II")). The Defendants note that the Proposed Amended Complaint ("PAC") contains only two refe......
  • Request a trial to view additional results

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