People v. Calvary Chapel San Jose

• Decision Date: 15 August 2022
• Docket Number: H048708, H048734, H048947
• Citation: 82 Cal.App.5th 235,298 Cal.Rptr.3d 262
• Parties: The PEOPLE, et al., Plaintiffs and Respondents, v. CALVARY CHAPEL SAN JOSE et al., Defendants and Appellants. Calvary Chapel San Jose, et al., Petitioners, v. The Superior Court of Santa Clara County, Respondent; The People, et al., Real Parties in Interest. Mike McClure, et al., Petitioners, v. The Superior Court of Santa Clara County, Respondent; The People, et al., Real Parties in Interest.
• Court: California Court of Appeals Court of Appeals

82 Cal.App.5th 235
298 Cal.Rptr.3d 262

The PEOPLE, et al., Plaintiffs and Respondents,
v.
CALVARY CHAPEL SAN JOSE et al., Defendants and Appellants.

Calvary Chapel San Jose, et al., Petitioners,
v.
The Superior Court of Santa Clara County, Respondent;

The People, et al., Real Parties in Interest.

Mike McClure, et al., Petitioners,
v.
The Superior Court of Santa Clara County, Respondent;

The People, et al., Real Parties in Interest.

H048708, H048734, H048947

Court of Appeal, Sixth District, California.

Filed August 15, 2022
As Modified on Denial of Rehearing September 7, 2022

Attorneys for Defendants and Appellants CALVARY CHAPEL SAN JOSE et al.: Robert Henry Tyler, Mariah Rose Gondeiro, Advocates for Faith & Freedom

Attorneys for Plaintiffs and Respondents THE PEOPLE, et al.: James Robyzad Williams, County Counsel, Melissa Kiniyalocts, Lead Deputy County Counsel, Meredith A. Johnson, Deputy County Counsel, Jeremy Anthony Avila, Deputy County Counsel, Jeffrey F. Rosen District Attorney, David A. Angel Assistant District Attorney

Attorneys for Petitioners CALVARY CHAPEL SAN JOSE, et al.: Robert Henry Tyler, Mariah Rose Gondeiro, Tyler & Bursch, LLP

Greenwood, P. J.

82 Cal.App.5th 240

I. INTRODUCTION

In 2020 the State of California and the County of Santa Clara (collectively, the People) issued a series of public health orders intended to combat the Covid-19 pandemic. Relevant here, the public health orders included orders restricting indoor gatherings and requiring face coverings, social distancing, and submission of a social distancing protocol by businesses, including churches. Calvary Chapel San

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Jose (Calvary Chapel) and its pastors, Mike McClure and Carson Atherley (collectively, Calvary Chapel), failed to comply with any of these public health orders.

Due to Calvary Chapel's ongoing failure to comply with the public health orders, the People filed a complaint for injunctive relief. The trial court issued a November 2, 2020 temporary restraining order, followed by a November 24, 2020 modified temporary restraining order and preliminary injunction that enjoined Calvary Chapel from holding indoor gatherings that did not comply with the public health orders' restrictions on indoor gatherings and requirements that participants wear face coverings and socially distance. Calvary Chapel was also enjoined from operating without submitting a social distancing protocol to the County.

It is undisputed that Calvary Chapel violated the November 2, 2020 temporary restraining order, the November 24, 2020 modified temporary restraining order, and the preliminary injunction by failing to comply with any of the public health orders. The People then sought an order of contempt, which the trial court issued on December 17, 2020, based on Calvary Chapel's violation of the November 2, 2020 temporary restraining order and preliminary injunction. The trial court also issued a February 16, 2021 order of contempt, based on Calvary Chapel's violation of the November 24, 2020 modified temporary restraining order. The trial court additionally ordered Calvary Chapel, McClure, and Atherley to pay monetary sanctions pursuant to Code of Civil Procedure section 177.5¹ for violation of the court's orders, and pursuant to section 1218, subdivision (a) for contempt of court.

Calvary Chapel now seeks review of the trial court's contempt orders and orders to pay monetary sanctions in the three cases

298 Cal.Rptr.3d 266

before us, including H048708, People v. Calvary Chapel ; H048734, Calvary Chapel v. Superior Court ; and H048947, McClure v. Superior Court.² For the reasons stated below, we conclude that the temporary restraining orders and preliminary injunctions are facially unconstitutional pursuant to the recent guidance of the United States Supreme Court regarding the First Amendment's protection of the free exercise of religion in the context of public health orders that impact religious practice (see, e.g., Tandon v. Newsom (2021) 593 U.S. ––––, 141 S. Ct. 1294, 209 L.Ed.2d 355 ( Tandon ).) As the underlying orders which Calvary Chapel violated are void and unenforceable, we will annul the orders of contempt in their entirety and reverse the orders to pay monetary sanctions. (See In re Berry (1968) 68 Cal.2d 137, 140, 157, 65 Cal.Rptr. 273, 436 P.2d 273 ( Berry ).)

II. FACTUAL AND PROCEDURAL BACKGROUND

A. The Preliminary Injunction

1. The Complaint

In October 2020 plaintiffs the People of the State of California, the County of Santa Clara (County), and Sara H. Cody, M.D. (Dr. Cody) in her official capacity as Health Officer for the County of Santa Clara, filed a complaint for injunctive relief against defendants Calvary Chapel and its senior pastor, Mike McClure (collectively Calvary Chapel).

Plaintiffs alleged that Calvary Chapel had failed to comply with certain state and county public health orders that had been issued to protect the public during the COVID-19 pandemic at a time when no cure or vaccine was available. Plaintiffs asserted that "[t]he best way to protect the public from COVID-19 is to undertake risk-mitigation measures to prevent transmission and infection, such as avoiding indoor gatherings, wearing face coverings, keeping sufficient physical distance, and avoiding singing or shouting near others while indoors." Plaintiffs further asserted that the evidence had shown that indoor gatherings posed a greater risk of COVID-19 transmission, since the virus spread from person to person through respiratory droplets, and that "[c]hurch gatherings are a common source of ‘superspreader’ events."

The specific public health orders that Calvary Chapel had violated included, according to plaintiffs, the following orders: (1) the County's July 2, 2020 risk reduction order requiring all businesses to submit a social distancing protocol, requiring all persons to maintain a minimum distance of six feet from persons outside their household, requiring all persons within a business

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(including a church) to wear face coverings unless medically exempt, and imposing limitations on gatherings as subsequently directed by Dr. Cody; (2) Dr. Cody's gatherings directives, as revised from July 8, 2020, through September 8, 2020, that prohibited indoor gatherings that brought "together multiple people from separate households in a single space," such as religious services, and required face coverings for outdoor gatherings unless medically exempt; (3) the State's August 28, 2020 order implementing the "Blueprint for a Safer Economy," a tiered system for modifying public health measures based on Covid-19 test and case rates, which placed the County in the most restrictive Tier 1 (prohibiting indoor gatherings) prior to September 8, 2020, and then in the less restrictive Tier II (imposing capacity limitations on gatherings of 25% capacity or 100 persons, whichever was fewer); (4) the County's

298 Cal.Rptr.3d 267

October 5, 2020 revised risk reduction order, which applied to all activities and sectors and required submission of a social distancing protocol, wearing face coverings at all times (including inside churches), and maintaining six feet of social distance from persons outside one's household; and (5) Dr. Cody's October 13, 2020 revised gatherings directive, which allowed indoor gatherings with a capacity limitation of 25% or 100 persons, whichever was fewer, and continued to prohibit indoor singing.

To authorize enforcement of these and other pandemic-related public health orders, on August 11, 2020, the County's Board of Supervisors adopted Urgency Ordinance No. NS-9.921, which created "a comprehensive civil enforcement program to combat the spread of COVID-19." The Urgency Ordinance included a schedule of fines for violation of the public health orders, as confirmed or observed by the County's code enforcement officers during their investigation of public complaints.

After receiving a complaint about Calvary Chapel, the County issued an August 21, 2020 cease and desist letter that demanded that Calvary Chapel comply with the public health orders and cease to hold indoor gatherings. Calvary Chapel allegedly failed to comply with the cease-and-desist letter. After the County's code enforcement officers' investigations revealed that Calvary Chapel had continued to violate the public health orders, they issued a series of notices of violation of health officer orders from August 23, 2020, to October 25, 2020. According to plaintiffs, Calvary Chapel has accrued more than $350,000 in fines that were imposed by the County due to Calvary Chapel's unlawful public gatherings and violations of the requirements for social distancing, face coverings, and submission of a social distancing protocol.³

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Based on these and other allegations, including defendant McClure's statement in the local newspaper, the San Jose Mercury News, that Calvary Chapel would not comply with the public health orders, plaintiffs sought a temporary restraining order, a preliminary injunction, and a permanent injunction to enjoin Calvary Chapel "from conducting any gathering or service that does not fully comply with relevant State and County public health orders, including the Risk Reduction Order, the Gatherings Directive, the State August 28 Order, the Revised Risk Reduction Order, and the Revised Gatherings Directive."

2. November 2, 2020 Temporary Restraining Order

After filing their complaint, plaintiffs applied for a temporary restraining order and an order to show cause why a preliminary injunction should not issue. The trial court granted the application in the November 2, 2020 order.

The temporary restraining order included in the November 2, 2020 order enjoined Calvary Chapel from "1. Conducting any gathering that does

82 Cal.App.5th 244

not fully comply with both the State and County public health orders, including but not limited to: holding gatherings indoors in excess of 100 people or 25% of capacity, whichever is less; holding outdoor gatherings...