extracted by their own government or three hundred in two days as of today papal congregants have been prevented from exercising the freedoms and liberties guaranteed under the constitution of the united states on an equal basis as  pecular activity continuously in varying degrees over the past year under the original executive order which is frontally challenged facially and as applied in our complaint on behalf of faithful californians s executive order and the three dash twenty governor new thing has decreed that the temples of god be either shut or severely limited while the doors to the temples of commerce remain open throughout this time period and widely traffic with few restrictions and certainly not restrictions comparable to the restrictions on people of thing in the recent supreme court decision of roman catholic diocese of brooklyn birth squabble the court clearly established what the arguing since the beginning of this case and this was one of the st cases filed to challenge the cool the restriction against people of faith in california namely supported stablish but the constitution does not countenance this type of two tier discriminatory  religion that place is from the very get go all religious activity at a lower level of respect and recognition by the government and other so called essential aspects of our lives and the supreme court very clearly establish the type of scrutiny that should be applied in the face of dozens of court rulings throughout the united states and in other words which  apply different levels of scrutiny and the court mandated that strict scrutiny should be applied to these restrictions on religion the supreme court also importantly struck down the hard that have been applied here in california and more and regularize the treatment of any control which i would agree is an important distinction in stopping the spread of the disease to commercial divers and and that is something that is a fundamental difference between the state of the law now and in new york versus what we have here in california as mr landry has argued and suit ordered that remains in effect not something that was legislatively reverse not something that has even been substantially modified by the governor can be moved at this place is there any factual record here to when you complain that you weren't given a chance to be heard but i look at the record and i don't find anything that i can point to to say this justifies injunction should not issue and it was also requested orally in addition to that at the hearing and was acknowledged by the court as a request in the court indeed and its eight page denial of a motion for a temporary restraining order to really dealt with the issues that were raised by our our motion for a temporary restraining order to enjoin the very a standard of minimal scrutiny which is not based in any of the united states supreme courts or those words last many decades of jurisprudence he would not be in the position of all of the other cases that have come before hope that a different result would apply and of course at the time of the original hearing we're talking about april in the early weeks of these restrictions i think everybody here listen to the governor say flatten the curve i'm person of faith with many others is that but then we began to see these discriminatory applications that allowed people to shop for alcohol and marijuana go to costco which any experience shopper will know is by no means their rapid in and out process and those of us who are faithful were told you may not worship and that is the basis on which we came to to the to that court and at that time your honor a circumstance that is now changed the counties were actually threatening to arrest congregants who congregate in a parking lot within their vehicle to hear their pastor speak from a far distance upon the filing of this lawsuit that particular restriction was rolled back and subsequently the counties have indeed eliminated their own special interpretations of the governor's order but they have pledged to build at the county defendants in this matter h pledged to continue the restriction on that the governor has implemented and that as i said change every few weeks let me ask you to focus because time is limited i've injunctive or restraining relief you apparently seek to justify directing the district court to enter a certain kind of order or the one hundred ourselves i guess because what i haven't found in looking in the record is either or record evidence to support the entry of any restraining order and you'll point me to either one of those your honor i can only point you to what i've already said which is that the average so far as to me like the answer is no but you that it took us a little long to get there but we've got that acknowledgement that we don't have a motion for a pulmonary injunction of a district court never ruled on such a motion part two what evidence is there in the record that would support either an entry by us or directions by us to the district court to grant you the relief you appear to seek the face of the governor's executive order is a violation of the united states constitution he or god you have no evidence that compares the restrictions imposed by the governor on a place of worship versus the restrictions apply by these two other activities and what we just argued about the preceding hour do you have any evidence to add to the evidence that was tossed in front of us in that case i have no evidence beyond the evidence that was introduced in the prior case your honor and that is because of the timing of this hearing at that at the start let me start at your start of your move to the excuse that it seemed to me this case was being developed through the summer and you made an affirmative action not to take advantage of the leave to amend that was granted in two days after his executive order that which is part of what we what we filed suit on that the only type of worship that were that was allowed at that time was worship digital be the only type of workers of a church that are considered or other places of worship that are considered to be essential are those who stand in front of a computer screen like myself right now delivering services which do not meet n they haven't been executive order has not been changed the governor's executive order that applies to the governor himself the ability to to decree who is essential and who is not in california does not make appropriate accommodations for fundamental constitutional protected speech in california and that itself on its face is a constitutional violation that persists to this day and different health officials in california have issued pursuant to the governor's discriminatory order have continued to make invidious distinction but even in this case at the very beginning of this litigation the government made the argument that based on or a sports event those are option to most people of faith they're certainly not the same as they dictate to worship regularly worship communally except the body of christ and all of the other things that require gathering in the case of the orthodox jewish congregation in india so we're all familiar with those and we can disagree about them but the governor from the beginning of this decreed those to be not as important  legislative alteration this is a policy change the policy change that the government relies on does not change the original executive order that is frontally attacked in our complaint but the factors are five is the policy change broad in scope and unequivocal in tone it is not effective leave the same restrictions have common various different shades and even when you have and and by the way just to be clear the government says that the up a straw man argument that says that we are now attempting to appeal all of these seven subsequent orders that is not the case your honor the reason that we cite those is to demonstrate to the court that the government cannot establish that the changes in policy the incremental change the policy that it has repeatedly made every few weeks to avoid frankly a judicial scrutiny i believe is one of the reasons that they've done that if they don't meet those tests they have not made permanent changes they have not made broad changes in scope the changes have never been unequivocal in anything the to the the nd factor is to the changes fully addressed all of the objectional desert alleged by the plague that has never been the case the plaintiffs in this case continue to challenge the executive order and they continue to challenge hard caps they continue to challenge nd class status of people  say whether the plaintiff's case was the catalyst for the new policy i actually doubt the government would argue that the plaintiff's case that this case was the catalyst for any of these the government in fact has studiously stated that it makes changes based on science and not based on any particular lawsuit how long has the policy been in place by the time the appeal is heard the policy change every few weeks the policy might be different by the time we go to bed tonight in the state and whether the governor the government has followed its new policies a it has not within five days after the order that the government cited to dismiss this case as moot the government changed the framework entirely and it has changed that framework i think the only three to four more times after that and one can will continue to change that framework based on the statement by the government so none of those factors in the rose fraud case are met and accordingly this case has not moved and indeed similar analysis was brought to bear in the brooklyn diocese case where and yet we are both in the same position the courts have continued to refuse to issue injunctions one claiming unconstitutional orders that are really very very similar if not worse than the orders at issue in new york and i think the attempts by the government to distinguish the new york scheme and the new york borders are lacking and so we would respectfully request our opportunity with this remoteness decision that resulted in the judgment being vacated to go back and the state of the court should affirm the district court's dismissal and deny plaintiff's apparent quest for trump to an injunction in the st instance and i think walking through the timeline might be helpful to the court given the somewhat a preliminary injunction at all nothing for close plaintiffs from moving for eliminating junction even on their original complaint as the case went forward it wasn't until july when the district court dismissed and i think as the court recognized with leave to a man plaintiff's original complaint because the regulatory framework had changed rather than amending scientist move for  reconsideration of that order which they are entitled to do again the court denied that motion for reconsideration did not foreclose the possibility the plaintiffs could amend their complaint again to challenge the regulatory framework and the the california has been able to worship in person outdoors and that's been unchanged since may i suppose that's eighty eight or eight months ago and then in june the state lifted any numerical restrictions for outdoor worship at all so that's that's been the case and it's in the middle of june planners are correct that indoor worship was you know was really restricted beginning in july but that doesn't change the fact that the state implemented an entirely new regulatory framework in august with with the blueprint which remains in effect  entire case should be dismissed with prejudice without leave two men to simply be original complain the original pleading the operative pleaded didn't challenge the operative restrictions plainest never alleged in mandate requires them to worship indoors and they're saying where you are that worshipping outdoors is simply infeasible it might be the case that that's true you know defendants are arguing that i think that's the showing that a south bay has made  allowance of outdoor worship services again it might be the case but it's a requirement to demonstrate article three standing that plainest make that show and plaintiffs have the burden of showing no for the purposes of reconsideration counsel for the state approach plaintiff counsel said would you like to amend the complaint given that the records permitting the house of land said no and then we're in a situation where plaintiffs have had every opportunity to amend their complaint to explain why they are harmed by their currently operative restrictions and why those currently operative restrictions are unconstitutional  in their briefings and today argue that executive order thirty three dash twenty remains on the books that is true however that executive order says nothing about worship services  it doesn't it certainly doesn't set forth the regulatory framework that's a in place today at the time the in march again when players father complain and move bird zero all in person worship was shut down since then subsequent executive orders and subsequent orders from the public health officer i was permitted in person worship and set forth the currently operative regulatory s event far from a legislative action and far from a complete overhaul of the details regulatory framework was a single email from the director of a veterans administration campus and this court found that that the blueprint certainly covers the whole you know nearly i would say all secular and religious activities that could operate in the state is certainly addresses the objectionable measures the plaintiffs raised  in their complaint which is there the odal ban on in person worship services that was the case in march and was no longer the case and may the blueprint has been in place since august which in the life of this pandemic is you know quite lengthy it's nearly half of the time that this endemic as has been raging the country in the world and certainly the objectionable on dog has been referred again outdoor worship because i'm not as familiar with the counties involved here and where they stand in the tears was there a period of time over the past ten months that we're talking about during w either of these counties were in a tear other than tear one of the blueprint yes your honor from may from late may to mid july san bernardino riverside county is were permitted to worship indoors up to one hundred dollars people or twenty five percent capacity yes so is the time the district court took up the an order dismissal based on mootness the difference was not limited to the outdoor worship but also included authorisation for a limited capacity indoor worship service is that correct yes your honor that's correct the same was true of all know when the when the district court considered the motion for reconsideration in august plaintiffs i believe at least one of the counties and perhaps the county defendants and corroborate this at least one of plaintiff counties was in it here higher than tier one meaning they could also have worship services up to one hundred people or twenty five percent and that was before the district place i had the date of the letter from the marge de was i think and has argued here that the order reflected religious discrimination or reflected treatment of religion as non essential as compared to other activities which redeemed more essential and that plane just argue remained the thrust of their claim cents it says nothing about worship services and it says nothing about other activities rather what it calls for is a total shutdown of all it's a total stay at home order everyone must stay in their home and then the executive order creates an exception except as designated by the public health officer that a few days later the public health officer issued a critical infrastructure list houses of worship were on that list but that list has been subsequently superseded by you know the various orders from the public health officer to the point where the currently operative word here is the blueprint and that also the regional stay at home order where wise so the executive order and thirty three dosh when he says nothing about well you know worship may not take place here but these activities matey please it says nothing all it is is the complete everyone must stay in their homes offered and the regulatory framework that they had challenge in their complaint was the same regulatory framework was at issue in dot decision in their in their rid of injunction to the supreme court found that or sorry counties moving up and down the tier the difference years in the blueprint rather what we have in this situation was the original complaint challenge the original executive order and completely overhauled by an entirely new standard for determining man is i think in plainest brief they argue that it must be absolutely certain that moodiness is taking place that's not the standard but this course as applied for government directing plaintiffs to amend the complaint in another sense you can look at the plainest refusal to amend the complaint and agreeing that judgment should be entered looks more like a voluntary dismissal so that certain entering judgement in those circumstances certainly wasn't  original stay at home order i think i've made clear and i think the record makes clear that houses of worship have been essential since day one of the executive order from back in march in the critical infrastructure list i don't think there's any evidence on the record indicating that governor newsom or any state officials considers houses of worship to be entertainment or frivolous  in any way there is no simply no nothing in the record you know indicating that the state has any animal as sir or considers houses of worship to be less essential as we discussed at length in the previous hearing the state's restrictions on all activities and looting houses of worship is purely based on the risk that those activities it has nothing to do with any consideration the house of worship you know or worship or religious worship is is less important in earth you know is entertainment like music entertainment all the record simply doesn't reflect that it in any way i was some level i i do want to voice a little concern it has less to do perhaps with the position taken by the state than by the position articulated by the district court which to be fair was operating under a legal understanding which they should from last april i don't have the particular date here but it did draw a distinction between no i'll say just grocery stores without food we don't know and i'm not sure that's a viable distinction indeed i was on the very dubious that's a viable distinction and it does suggest that perhaps the district court was approaching this with the notion of well whatever churches fall on the spectrum they don't here was the denial of a temporary restraining order based on three days of time for the states to garner its evidence and and prepare an opposition there's no indication that it's time to amount to a preliminary injunction no evidence was heard there were no evidentiary findings and nothing for close plaintiffs to make their case a preliminary injunction juncture so it and certainly plaintiffs haven't presented any evidence that the at the grocery store the state acknowledges poses some risk and that's why the state imposes onerous restrictions on grocery shopping in the regional stay at home order thirty five percent and a whole host of employment related  really impacted counties mitigating efforts like masks like distancing is insufficient to mitigate the rest risk posed by such a risky activity like an indoor car you know an indoor congregated activity of a share  experience like a worship service or like a lecture i'm again i compare bring in the lecture concert comparison not to say that worship is of the same value but rather that it poses a similar risk because those activities are him that you're on the right that's different all right i understand what you're saying but i don't think we can fairly say the plaintiffs disregarded the court order court is an opportunity they elect not to take it that may mean that all they can proceed with is what they've put on the table already and that would if they are to be the argument that somehow the original order issued by the governor discriminated against religion by deeming it not as essential as other things that adam and moot in the district court doesn't seem to have engaged with whether that first order was itself discriminatory and maybe it did i'll go back and look at that again because i hadn't had it framed by his claim in my obscured i just i'm not sure i'm comfortable with the notion of saying it's moot like it's gone away because the basic dispute is still there we just spent the st last hour talking about the basic so that's  discomfort anything you can offer to me and i appreciate i understand that your honor in south bay players have given defendants and the corps and the district court the opportunity to consider the currently operative they've explained why they believe the blueprint of the original stay at home orders unconstitutional and they've also explained why be believe they are harmed by those operative restrictions in contrast in this case and get plaintiffs haven't given defendants or the order you know those findings are an appealable as well as we've gone on it was reading of briefing no findings of fact so again if it's still wanted to pursue their claims or present evidence why they believe even the original executive order was unconstitutional argument that was made in south bay that we've addressed state has presented on rebutted evidence of instances of outbreaks throughout california including in churches nearby in san diego and in you know emergency in a public health crisis i think the just recorded and south bay said that would be a lot like preventing you know a local health inspector from inspecting any restaurants that hadn't had salmonella or food poisoning outbreaks so this is the mere notion that are there haven't been any outbreaks that that there's no support but that necessary leads you know that state is required to show that each and every church or house of worship in the state of california has and twenty when riverside county officials rescinded its public health orders throughout this case of hells of commingled the legislative action taken by the state and county of halley's and attempted to consolidate them into one legal posture that tactic appellants argue that riverside county has pledged the words used by council this this morning to enforce the state's kovan one thousand restrictions this alleged promise or pledge however again is nothing more than a  twenty where in riverside county board of supervisors voted to rescind its public health orders and align itself with the state home orders from the governor by aligning itself with the state the county was not promising or pledging to enforce the governor's order instead it was actually rescinded more stringent public help orders that it hadn't acted such as a mandatory face covering and social distancing order in their reply brief appellant argue that secession exception does not apply because it was based on an executive order not some legislative action as mentioned by the state in any email could suffice but this argument also failed us to riverside eyes you capacity in riverside county the county has not reimposed as public health orders logic would dictate that with this situation at hand and the lack of evidence in the record to suggest that it would do so there is no reason to keep the previously argued namely that the activities are capable of repetition and yet are baiting review and obviously this doctrine stems from the roe case but i think that this particular set of facts before the court that has been before the court in all of the clothing cases is a quintessential example of that and as i made reference to in my initial part of my argument literally every six weeks on average the government has changed it would expect that they would hold and be fine tuning but i'm trying to figure out ok for the parties involved here what changes have affected your clients how they may worship whether they may  learned from stage counsel and i assume you will confirm at some point these counties moved from teared to did tier one but i haven't heard anything that suggests the rules that apply to your clients have been regularly going back and for sounds like there was a time they could have been doors and there is a time they could well there was a time to worship and adore as your honor that is correct briefly i think that might have been a period of forty five days or so i don't have those exact numbers i apologize for that but for a period of weeks they were able to worship with strict numerical hard caps as well as capacity caps and place those hard caps have been ruled by the united had to do with your trying to tell us this policy changes so often you can't keep up with it and i haven't had to be the case for your clients and i'm waiting for you to tell me why my understanding is mistaken your honor in the original lawsuit and as all the papers reflect we are attacking the governor's original order and the immediately following initial order and that is referenced in the governor's initial order he says i'm going to set up a system where if you're going to go out of your house and  an essential worker as the california department of public health will tell us who that is your criminal ok so that's the framework that we're challenging that hasn't been the facts and that is currently the law in california that is currently order you're probably not in your home but i don't think you're under arrest i mean seriously are you trying to tell us that nothing has changed your honor i'm an essential worker under my county's regulation and my law firm and i am following the restrictions for any law firm that applies i know i am not committing a crime here because i am more favored than a person who wants to worship if i were to go to attempt to go to my sikh temple and  across the bay i would be committing a crime so that's the distinction so that framework has always been there at times they've had more or less discriminatory than of application of their rights but the point changes have affected your clients because if there is a show going going on trying to avoid review that's a problem but i haven't heard that you're now telling me you have the same problem from day one so maybe the problem isn't the show game what is the problem i have i believe i have argued that and it's in our papers but to be clear again all of our of moving papers for the injunction and in our fair complaint make reference to  the orders that in effect ok so there is the governor's order that's the st order that is still in effect the california department of public health order came right after that restricted my client's to video worship only that has been changed to include despite what the counsel for the state says indeed people are being threatened with arrest for sitting in their cars outdoors and with church services that changed and then eventually into or  was allowed and then eventually ninety nine percent of the state was but back into a place where no indoor worship was allowed and i suppose in lake tahoe today you might be able to ski and you might also be able to go to church that is not a real communal worship opportunity for most californians and so those changes are what renderer the legal review of the government scheme putting religious activities into a lower tier and then commerce which is indisputable i don't think the government government even challenges that that have aids or you know every few weeks the government keeps changing the contours of it and that is why we have had some amendments and that is why in our case we believe it would be if you child whatever you amended  substantive situation that occurred at the beginning of this case remains the case today the government set up a framework that immediately allowed cosco and now various what i would describe as not eating but rather buy clothes at macy's or other commercial establishments here open they are much more open or open at all compared to houses of worship to worship or not open and most of the state of california today and that invidious distinction was in the governor's order originally he set up this here where he decides what's essential and what's not religion is essential and i would say that whatever i thought about that employee i think about essential than others when costco safeway whole foods they're not protected in the constitution but our right to worship is with no right of the government to tell us how to do it in the way that it has happened here and you know when you see the governor saying you know as i don't think will be disputed by the appellee that we're in a different world now and this is in the record the governor may never go back to the way we were before that is why this case even though the underlying record has that underlying regulations have changed and it's important for this court to allow the review to occur and for these to be redressed so that in the future when the next disease comes along we don't have similar situations where judges are telling us that