Legacy Church, Inc. v. Kunkel

• Citation: 472 F.Supp.3d 926
• Decision Date: 13 July 2020
• Docket Number: No. CIV 20-0327 JB\SCY,CIV 20-0327 JB\SCY
• Parties: LEGACY CHURCH, INC., Plaintiff, v. Kathyleen M. KUNKEL and the State of New Mexico, Defendants.
• Court: U.S. District Court — District of New Mexico

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

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 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 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 in Edgewood, New Mexico. See Locations/Times, Legacy Church, https://www.legacychurchnm.com/locations/times (last visited July 7, 2020).

4. Legacy Church's location at 7201 Central Ave. NW, Albuquerque, New Mexico 87121 ("Central Campus") has an auditorium that is 31,000 square feet and that holds over 2,500 people. Declaration of Steve Smothermon ¶¶ 5, 7, at 1, filed April 14, 2020 (Doc. 15)("Smothermon Decl.").³

5. Legacy Church's three Sunday services at the Central Campus are aired on broadcast television and live-streamed on Legacy Church's website. See Smothermon Decl. ¶ 7, at 1; T.V. Broadcast, Legacy Church, https://www.legacychurchnm.com/tvbroadcast (last visited July 7, 2020); Live Stream, Legacy Church,...