U.S. District Court DISTRICT OF KANSAS (Wichita) CIVIL DOCKET FOR CASE #: 6:20−cv−01102−JWB−GEB

CLOSED

First Baptist Church et al v. Kelly et al Assigned to: District Judge John W. Broomes Referred to: Magistrate Judge Gwynne E. Birzer Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 04/16/2020 Date Terminated: 05/04/2020 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

First Baptist Church

represented by David A. Cortman Alliance Defending Freedom − GA 1000 Hurricane Shoals Road, NE, Suite D−1100 Lawrenceville, GA 30043 770−339−0774 Fax: 770−339−6744 Email: dcortman@adflegal.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Joshua A. Ney 900 South Kansas Avenue, Suite 402B Topeka, KS 66621 785−414−9065 Email: josh@joshney.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ryan A. Kriegshauser Kriegshauser Law, LLC 10505 West 138th Street, Unit 4493 Olathe, KS 66062 913−303−0639 Email: ryan@kriegshauserlaw.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ryan J. Tucker Alliance Defending Freedom − AZ 15100 North 90th Street Scottsdale, AZ 85260 480−444−0020 Fax: 480−444−0028 Email: rtucker@adflegal.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Tyson C. Langhofer Alliance Defending Freedom − VA 20116 Ashbrook Place, Suite 250 Ashburn, VA 20147 480−444−0020 Email: tlanghofer@ADFlegal.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff

represented by

Stephen Ormord Pastor
Plaintiff Calvary Baptist Church
Plaintiff Aaron Harris Pastor

David A. Cortman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua A. Ney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ryan A. Kriegshauser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ryan J. Tucker (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Tyson C. Langhofer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David A. Cortman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua A. Ney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ryan A. Kriegshauser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ryan J. Tucker (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Tyson C. Langhofer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David A. Cortman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua A. Ney (See above for address)

V. Defendant Laura Kelly Governor; in her official capacity
Defendant David Weishaar Adjutant General; in his official capacity

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ryan A. Kriegshauser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ryan J. Tucker (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Tyson C. Langhofer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jason Andrew Zavadil Irigonegaray & Associates 1535 SW 29th Street Topeka, KS 66611−1901 785−267−6115 Email: jason@itrlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
John B. Turney , Jr. Irigonegaray & Associates 1535 SW 29th Street Topeka, KS 66611−1901 785−267−6115 Fax: 785−267−9458 Email: bo@itrlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lumen Mulligan 1616 Indiana Street Lawrence, KS 66044 785−691−9367 Email: lumenmulligan1973@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Pedro L. Irigonegaray Irigonegaray, Turney, & Revenaugh, LLP 1535 SW 29th Street Topeka, KS 66611 785−267−6115 Fax: 785−267−9458 Email: pli@plilaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Terrence J. Campbell Barber Emerson, LC 1211 Massachusetts Street

Defendant Daniel E. Jackson, Jr. Geary County Sheriff; in his official capacity
Defendant William Carr Ford County Sheriff; in his official capacity
Movant Kansas Justice Institute

PO Box 667 Lawrence, KS 66044 785−843−6600 Fax: 785−843−8405 Email: tcampbell@barberemerson.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Cory R. Buck Case Linden, PC 2600 Grand Blvd., Suite 300 Kansas City, MO 64108 816−979−1520 Email: cory.buck@caselinden.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin D. Case Case Linden, PC 2600 Grand Blvd., Suite 300 Kansas City, MO 64108 816−979−1500 Fax: 816−979−1501 Email: kevin.case@caselinden.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patric S. Linden Case Linden, PC 2600 Grand Blvd., Suite 300 Kansas City, MO 64108 816−979−1500 Fax: 816−979−1501 Email: patric.linden@caselinden.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Cory R. Buck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin D. Case (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patric S. Linden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Samuel G. MacRoberts Kansas Justice Institute 12980 Metcalf Avenue, Suite 130 Overland Park, KS 66213 913−213−5018 Email: sam.macroberts@kansasjusticeinstitute.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Amicus Kansas Interfaith Action

represented by Alexander Joseph Luchenitser Americans United for Separation of Church and State 1310 L Street NW, Suite 200 Washington, DC 20005 202−466−3234 Fax: 202−466−3353 Email: luchenitser@au.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Richard Brian Katskee Americans United for Separation of Church and State 1310 L Street NW, Suite 200 Washington, DC 20005 202−466−3234 Fax: 202−466−3353 Email: katskee@au.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
William Skepnek Skepnek Law Firm, PA 1 Westwood Road Lawrence, KS 66044 785−856−3100 Email: bskepnek@skepneklaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 04/16/2020
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# Docket Text
1 COMPLAINT with trial location of Wichita (Filing fee $400, Internet Payment Receipt Number AKSDC−5119124.), filed by Aaron Harris, Calvary Baptist Church, First Baptist Church, Stephen Ormord. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9)(Langhofer, Tyson) (Entered: 04/16/2020)
2 CORPORATE DISCLOSURE STATEMENT by Calvary Baptist Church. (Langhofer, Tyson) Modified on 4/17/2020 to correct the filers. (mam) (Entered: 04/16/2020)
3 CORPORATE DISCLOSURE STATEMENT by First Baptist Church. (Langhofer, Tyson) Modified on 4/17/2020 to correct the filers. (mam) (Entered: 04/16/2020)
4 ENTRY OF APPEARANCE by Joshua A. Ney on behalf of All Plaintiffs (Ney, Joshua) (Entered: 04/16/2020)
5 (DISREGARD, see 6 ) −− ENTRY OF APPEARANCE by Ryan A. Kriegshauser on behalf of All Plaintiffs. (Kriegshauser, Ryan) Modified on 4/17/2020, document amended at 6 . (mam) (Entered: 04/16/2020)
6 AMENDED ENTRY OF APPEARANCE by Calvary Baptist Church, First Baptist Church, Aaron Harris, Stephen Ormord. Amendment to 5 Entry of Appearance. (Kriegshauser, Ryan) Modified on 4/17/2020 to retitle. (mam) (Entered: 04/16/2020)
7 MOTION FOR EXPEDITED HEARING AND MOTION FOR TEMPORARY RESTRAINING ORDER by Plaintiffs Calvary Baptist Church, First Baptist Church, Aaron Harris, Stephen Ormord. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)

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(Langhofer, Tyson). Added Motion for Hearing on 4/17/2020, title changed. (mam) (Entered: 04/17/2020)
8 CIVIL COVER SHEET by Plaintiffs Calvary Baptist Church, First Baptist Church, Aaron Harris, Stephen Ormord. (Langhofer, Tyson) (Entered: 04/17/2020)
NOTICE OF JUDGE ASSIGNMENT: Case assigned to District Judge John W. Broomes and Magistrate Judge Gwynne E. Birzer for all proceedings. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (jk) (Entered: 04/17/2020)
SUMMONS ISSUED as to Laura Kelly (issued to Attorney for service). (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry) (jk) (Entered: 04/17/2020)
9 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Defendant Laura Kelly. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Irigonegaray, Pedro) (Entered: 04/17/2020)
10 NOTICE of Hearing: THIS IS AN OFFICIAL NOTICE FOR THIS HEARING 7 Motion for Temporary Restraining Order and Expedited Hearing. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) Motion Hearing set for 4/17/2020 at 04:00 PM by Telephone before District Judge John W. Broomes. Counsel will be notified by e−mail of the dial in information. General public may dial (888) 363−4749, enter access code 7437782 and security code 1122. Parties as well as the general public are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings pursuant to United States District Court, District of Kansas Administrative Order 2020−6, as well as Local Rule 83.2.1. (jmr) (Entered: 04/17/2020)
11 MOTION for Leave to File Amicus Brief by Movant Kansas Justice Institute. (referred to Magistrate Judge Gwynne E. Birzer) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (mam) (Entered: 04/17/2020)
13 MINUTE ENTRY for proceedings held before District Judge John W. Broomes: MOTION HEARING held on 4/17/2020 re 7 MOTION for Temporary Restraining Order and Expedited Hearing/MOTION for Hearing filed by First Baptist Church, Calvary Baptist Church, Stephen Ormord and Aaron Harris. Matter taken under advisement. Written Order to follow. (Court Reporter Jana McKinney.) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (jmr) (Entered: 04/18/2020)
12 ORDER granting 11 Motion to File Amicus Brief. Entered by District Judge John W. Broomes on 04/18/2020. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (jmr) (Entered: 04/18/2020)
14 MEMORANDUM AND ORDER granting 7 Motion for TRO; denying 9 Motion to Dismiss for Failure to State a Claim. The court will file a separate order containing the terms of the TRO. A hearing on Plaintiffs' request for a preliminary injunction is scheduled for April 23, 2020, at 9:00 a.m. Signed by District Judge John W. Broomes on 4/18/2020. (sz) (Entered: 04/18/2020)
15 TEMPORARY RESTRAINING ORDER. It is therefore ordered that The Hon. Laura Kelly, in her capacity as Governor of the State of Kansas, is hereby enjoined and ordered to refrain from enforcing the prohibition in Executive Order No. 20−18 and Executive Order 20−25 prohibiting religious gatherings involving more than ten attendees, conducted by Plaintiffs First Baptist Church of Dodge City, Kansas, and Calvary Baptist Church of Junction City, Kansas, so long as those gatherings comply with the social distancing and public health protocols Plaintiffs have indicated in their complaint they are prepared to apply. This order shall expire no later than May 2, 2020, unless extended by the court for good cause. The matter is hereby scheduled for a preliminary injunction hearing on April 23, 2020, at 9:00 a.m., in Courtroom 238, U.S. Courthouse, 401 N. Market, Wichita, Kansas. Signed by District Judge John W. Broomes on 4/18/2020. (sz) (Entered: 04/18/2020)
16 NOTICE of Hearing: THIS IS AN OFFICIAL NOTICE FOR THIS HEARING (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)

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Preliminary Injunction Hearing set for 4/23/2020 at 09:00 AM in Wichita Courtroom 238 (JWB) before District Judge John W. Broomes. (jmr) (Entered: 04/18/2020)
17 ENTRY OF APPEARANCE by Pedro L. Irigonegaray on behalf of Laura Kelly (Irigonegaray, Pedro) (Entered: 04/20/2020)
18 ENTRY OF APPEARANCE by Lumen Mulligan on behalf of Laura Kelly. (Irigonegaray, Pedro) Modified on 4/20/2020 to change the attorney. (mam) (Entered: 04/20/2020)
19 MOTION for Brief−Scheduling Order by Defendant Laura Kelly. (Irigonegaray, Pedro) Modified on 4/21/2020 to remove referral information. (mam) (Entered: 04/20/2020)
MOTION REFERRAL to Magistrate Judge REMOVED as to: 19 MOTION for Order Brief−Scheduling Order. The motion will be resolved by the District Judge.(adc) (Entered: 04/20/2020)
20 MOTION for Order Motion for Telephonic Hearing by Defendant Laura Kelly (Irigonegaray, Pedro) Modified on 4/21/2020 to remove referral information (sz). (Entered: 04/20/2020)
MOTION REFERRAL to Magistrate Judge REMOVED as to: 20 MOTION for Order Motion for Telephonic Hearing. The motion will be resolved by the District Judge.(adc) (Entered: 04/20/2020)
21 ORDER granting 19 Motion for Brief Scheduling Order. Plaintiff's brief deadline is Tuesday, April 21, 2020, at 5:00 p.m.; Defendant's brief deadline is Wednesday, April 22, 2020, at 11:00 a.m.; and Plaintiff's reply brief deadline is 5:00 p.m. on Wednesday, April 22, 2020. Defendant's request for the Court to modify its order from an in−person hearing to a telephonic hearing is denied. Entered by District Judge John W. Broomes on 04/20/20. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (jmr) (Entered: 04/20/2020)
22 NOTICE of Hearing: THIS IS AN OFFICIAL NOTICE FOR THIS HEARING (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) Status Conference set for 4/21/2020 at 10:00 AM by Telephone before District Judge John W. Broomes. Counsel will be notified by e−mail of the dial in information.(jmr) (Entered: 04/20/2020)
23 MINUTE ENTRY for proceedings held before District Judge John W. Broomes: STATUS CONFERENCE held on 4/21/2020. (Court Reporter Jana McKinney.) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (jmr) (Entered: 04/21/2020)
24 ORDER. With the agreement of counsel, the court adopts the following briefing schedule. Defendant shall have until noon on April 23, 2020, to file a motion to dismiss and brief addressing the jurisdictional issue; Plaintiff shall have until 5:00 p.m. on April 24, 2020 to file a response; and Defendant shall have until 5:00 p.m. on April 25, 2020, to file a reply. The preliminary injunction hearing previously scheduled for April 23, 2020, is postponed pending further order of the court. The TRO previously issued 15 remains in effect. See Order for further details. Signed by District Judge John W. Broomes on 4/21/2020. (sz) (Entered: 04/21/2020)
25 TRANSCRIPT of Status Conference held April 21, 2020 before Judge John W. Broomes, Court Reporter Jana McKinney, 316−315−4268, jana_mckinney@ksd.uscourts.gov. Transcript purchased by: Mr. Pedro Irigonegaray and Mr. Tyson Longhofer.
NOTICE RE REDACTION OF TRANSCRIPTS: Within 7 calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.ksd.uscourts.gov. Please read this policy carefully. If no Notice of Intent to Redact is filed within the allotted time, this transcript will be made electronically available on the date set forth below.

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Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained from the court reporter or through PACER. Release of Transcript Restriction set for 7/20/2020. (jlm) (Entered: 04/21/2020)
26 MOTION for attorney Alexander Joseph Luchenitser to appear pro hac vice ( Pro hac vice fee $50, Internet Payment Receipt Number AKSDC−5122889.) by Amicus Kansas Interfaith Action (referred to Magistrate Judge Gwynne E. Birzer) (Attachments: # 1 ECF Registration Form)(Skepnek, William) (Additional attachment(s) added on 4/22/2020: # 2 Ink Signed Affidavit) (gw). (Entered: 04/21/2020)
27 MOTION for attorney Richard Brian Katskee to appear pro hac vice ( Pro hac vice fee $50, Internet Payment Receipt Number AKSDC−5122891.) by Amicus Kansas Interfaith Action (referred to Magistrate Judge Gwynne E. Birzer) (Attachments: # 1 ECF Registration Form)(Skepnek, William) (Additional attachment(s) added on 4/22/2020: # 2 Ink Signed Affidavit) (gw). (Entered: 04/21/2020)
28 CORPORATE DISCLOSURE STATEMENT by Kansas Interfaith Action identifying None as corporate parent (Skepnek, William) (Entered: 04/21/2020)
29 MOTION to File Amicus Brief by Amicus Kansas Interfaith Action (Attachments: # 1 Exhibit Brief of Kansas Interfaith Action as Amicus Curiae in Support of Defendant)(Skepnek, William) Modified on 4/22/2020 to remove referral information (sz). (Entered: 04/21/2020)
30 MOTION to Dismiss for Lack of Jurisdiction by Defendant Laura Kelly (Irigonegaray, Pedro) (Entered: 04/21/2020)
MOTION REFERRAL to Magistrate Judge REMOVED as to: 29 MOTION to File Amicus Brief . The motion will be resolved by the District Judge.(adc) (Entered: 04/22/2020)
31 ORDER granting 29 Motion to File Amicus Brief. Entered by District Judge John W. Broomes on 04/22/2020. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (jmr) (Entered: 04/22/2020)
32 (DISREGARD, filed under the wrong event.) −− AMENDED DOCUMENT by Calvary Baptist Church, First Baptist Church, Aaron Harris, Stephen Ormord. Amendment to 1 Complaint (attorney). (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10)(Langhofer, Tyson) Modified on 4/22/2020, see 33 for the corrected filing. (mam) (Entered: 04/22/2020)
33 AMENDED COMPLAINT against All Defendants, filed by Aaron Harris, First Baptist Church, Calvary Baptist Church, Stephen Ormord. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10)(Langhofer, Tyson) (Entered: 04/22/2020)
SUMMONS ISSUED as to William Carr, Daniel E. Jackson, Jr, David Weishaar. (issued to Attorney for service) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry) (sz) (Entered: 04/22/2020)
34 MOTION for attorney David A. Cortman to appear pro hac vice (Pro hac vice fee $50, Internet Payment Receipt Number AKSDC−5123720.) by Plaintiffs Calvary Baptist Church, First Baptist Church, Aaron Harris, Stephen Ormord (referred to Magistrate Judge Gwynne E. Birzer) (Attachments: # 1 ECF Registration Form)(Langhofer, Tyson) (Entered: 04/22/2020)
35 MOTION for attorney Ryan J. Tucker to appear pro hac vice (Pro hac vice fee $50, Internet Payment Receipt Number AKSDC−5123728.) by Plaintiffs Calvary Baptist Church, First Baptist Church, Aaron Harris, Stephen Ormord (referred to Magistrate Judge Gwynne E. Birzer) (Attachments: # 1 ECF Registration Form)(Langhofer, Tyson) (Entered: 04/22/2020)
36 MOTION to Dismiss Party William Carr by Defendant Laura Kelly (Irigonegaray, Pedro) (Entered: 04/22/2020)

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37 ORDER granting 26 Motion to Appear Pro Hac Vice of Alexander Joseph Luchenitser for Kansas Interfaith Action pursuant to D. Kan. Rule 83.5.4 for purposes of this case only. Signed by Magistrate Judge Gwynne E. Birzer on 4/22/20. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (adc) (Entered: 04/22/2020)
38 ORDER granting 27 Motion to Appear Pro Hac Vice of Richard Brian Katskee for Kansas Interfaith Action pursuant to D. Kan. Rule 83.5.4 for purposes of this case only. Signed by Magistrate Judge Gwynne E. Birzer on 4/22/20. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (adc) (Entered: 04/22/2020)
39 ORDER granting 34 Motion to Appear Pro Hac Vice of David A. Cortman for Plaintiffs Calvary Baptist Church, First Baptist Church, Aaron Harris, and Stephen Ormord pursuant to D. Kan. Rule 83.5.4 for purposes of this case only. Signed by Magistrate Judge Gwynne E. Birzer on 4/22/20. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (adc) (Entered: 04/22/2020)
40 ORDER granting 35 Motion to Appear Pro Hac Vice of Ryan J. Tucker for Plaintiffs Calvary Baptist Church, First Baptist Church, Aaron Harris, and Stephen Ormord pursuant to D. Kan. Rule 83.5.4 for purposes of this case only. Signed by Magistrate Judge Gwynne E. Birzer on 4/22/20. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (adc) (Entered: 04/22/2020)
41 MOTION to Modify Expanding Temporary Restraining Order and to Request Expedited Hearing by Plaintiffs Calvary Baptist Church, First Baptist Church, Aaron Harris, Stephen Ormord (referred to Magistrate Judge Gwynne E. Birzer) (Kriegshauser, Ryan) (Entered: 04/22/2020)
42 NOTICE of Hearing: THIS IS AN OFFICIAL NOTICE FOR THIS HEARING (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) Status Conference set for 4/23/2020 at 02:00 PM by Telephone before District Judge John W. Broomes. Counsel will be notified by e−mail of the dial in information. General public may dial (888) 363−4749, enter access code 7437782 and security code 8833. Parties as well as the general public are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings pursuant to United States District Court, District of Kansas Administrative Order 2020−6, as well as Local Rule 83.2.1.(jmr) (Entered: 04/23/2020)
43 RESPONSE by Plaintiffs Calvary Baptist Church, First Baptist Church, Aaron Harris, Stephen Ormord re 30 MOTION to Dismiss for Lack of Jurisdiction (Langhofer, Tyson) (Entered: 04/23/2020)
44 SUMMONS RETURNED EXECUTED −− Personal Service by Aaron Harris, First Baptist Church, Calvary Baptist Church, Stephen Ormord upon William Carr served on 4/22/2020, answer due 5/13/2020 (Langhofer, Tyson) (Entered: 04/23/2020)
45 MINUTE ENTRY for proceedings held before District Judge John W. Broomes: STATUS CONFERENCE held on 4/23/2020. (Court Reporter Jana McKinney.) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (jmr) (Entered: 04/23/2020)
46 TRANSCRIPT of Status Conference held April 23, 2020 before Judge John W. Brooms, Court Reporter Jana McKinney, 316−315−4268, jana_mckinney@ksd.uscourts.gov. Transcript purchased by: Mr. Pedro Irigonegaray; Mr. Tyson Longhofer.
NOTICE RE REDACTION OF TRANSCRIPTS: Within 7 calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.ksd.uscourts.gov. Please read this policy carefully. If no Notice of Intent to Redact is filed within the allotted time, this transcript will be made electronically available on the date set forth below.
Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After

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that date it may be obtained from the court reporter or through PACER. Release of Transcript Restriction set for 7/22/2020. (jlm) (Entered: 04/23/2020)
47 SUMMONS RETURNED EXECUTED −− Personal Service by Aaron Harris, First Baptist Church, Calvary Baptist Church, Stephen Ormord upon Daniel E. Jackson, Jr served on 4/22/2020, answer due 5/13/2020 (Langhofer, Tyson) Modified on 5/1/2020 to correct service and answer date(sz). (Entered: 04/23/2020)
48 NOTICE of Hearing: THIS IS AN OFFICIAL NOTICE FOR THIS HEARING (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) Status Conference set for 4/27/2020 at 02:00 PM by Telephone before District Judge John W. Broomes. Counsel will be notified by e−mail of the dial in information. General public may dial (888) 363−4749, enter access code 7437782 and security code 9944. Parties as well as the general public are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings pursuant to United States District Court, District of Kansas Administrative Order 2020−6, as well as Local Rule 83.2.1.(jmr) (Entered: 04/24/2020)
49 AGREED MOTION TO EXTEND TEMPORARY RESTRAINING ORDER AGAINST DEFENDANT GOVERNOR LAURA KELLY by Plaintiffs Calvary Baptist Church, First Baptist Church, Aaron Harris, Stephen Ormord. (referred to Magistrate Judge Gwynne E. Birzer) (Kriegshauser, Ryan) Modified on 4/27/2020 to change the motion type, re−titled. (mam) (Entered: 04/25/2020)
50 ENTRY OF APPEARANCE by Terrence J. Campbell on behalf of David Weishaar (Campbell, Terrence) (Entered: 04/27/2020)
51 ENTRY OF APPEARANCE by Kevin D. Case on behalf of William Carr, Daniel E. Jackson, Jr. (Case, Kevin) (Entered: 04/27/2020)
52 ENTRY OF APPEARANCE by Kevin D. Case on behalf of Daniel E. Jackson, Jr. (Case, Kevin) (Entered: 04/27/2020)
53 MINUTE ENTRY for proceedings held before District Judge John W. Broomes: STATUS CONFERENCE held on 4/27/2020. (Court Reporter Jana McKinney.) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (jmr) (Entered: 04/27/2020)
54 NOTICE of Hearing: THIS IS AN OFFICIAL NOTICE FOR THIS HEARING (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) Status Conference set for 5/5/2020 at 10:00 AM by Telephone before District Judge John W. Broomes. Counsel will be notified by e−mail of the dial in information. General public may dial (888) 363−4749, enter access code 7437782 and security code 3377. Parties as well as the general public are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings pursuant to United States District Court, District of Kansas Administrative Order 2020−6, as well as Local Rule 83.2.1.(jmr) (Entered: 04/27/2020)
55 MEMORANDUM AND ORDER denying 30 Motion to Dismiss for Lack of Jurisdiction; denying 36 Motion to Dismiss Party; denying 41 Motion to Modify. See Order for details. Signed by District Judge John W. Broomes on 4/27/2020. (sz) (Entered: 04/27/2020)
56 ORDER granting 49 Motion for Order. The TRO previously entered 15 will remain in effect until May 16, 2020, unless it is sooner terminated by dismissal of the case or by further order of the court. Signed by District Judge John W. Broomes on 4/27/2020. (sz) (Entered: 04/27/2020)
57 TRANSCRIPT of Status Conference held April 27, 2020 before Judge John W. Broomes, Court Reporter Jana McKinney, 316−315−4268, jana_mckinney@ksd.uscourts.gov. Transcript purchased by: Mr. P. Irigonegaray; Mr. T. Langhofer.
NOTICE RE REDACTION OF TRANSCRIPTS: Within 7 calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at

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www.ksd.uscourts.gov. Please read this policy carefully. If no Notice of Intent to Redact is filed within the allotted time, this transcript will be made electronically available on the date set forth below.
Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained from the court reporter or through PACER. Release of Transcript Restriction set for 7/27/2020. (jlm) (Entered: 04/27/2020)
58 AMICUS BRIEF in Support of Defendant by Amicus Kansas Interfaith Action. (Skepnek, William) (Entered: 04/29/2020)
59 AMICUS BRIEF re 11 MOTION to File Amicus Brief by Movant Kansas Justice Institute. (MacRoberts, Samuel) (Entered: 04/29/2020)
60 NOTICE OF VOLUNTARY DISMISSAL by All Plaintiffs (Langhofer, Tyson) (Entered: 05/04/2020)
Civil Case Terminated per 60 Plaintiffs' Notice of Voluntary Dismissal Without Prejudice/JWB chambers.(mam) (Entered: 05/04/2020)

 
 Case 6:20-cv-01102-JWB-GEB Document 1 Filed 04/16/20 Page 1 of 19

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

FIRST BAPTIST CHURCH ; PASTOR STEPHEN ORMORD; CALVARY BAPTIST CHURCH; PASTOR AARON HARRIS
Plaintiffs,
v.
GOVERNOR LAURA KELLY, in her official capacity,
Defendant. ____________________________________

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Case No.

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VERIFIED COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF

1. On April 7, 2020, five days before Easter Sunday, Kansas Governor Laura Kelly

issued Executive Order 20-18, which prohibited all “mass gatherings” of 10 or more people in a

confined or enclosed space at the same time. See Executive Order 20-18, attached as Exhibit 1

(hereinafter “EO 20-18”). EO 20-18 states it remains in effect until May 1, 2020.

2. While EO 20-18 carves out broad exemptions for 26 types of secular activities

from this gathering ban, including, bars and restaurants, libraries, shopping malls, retail

establishments, and office spaces the order singled out “churches and other religious services or

activities” to expressly prohibit any type of gathering of more than ten non-performing

individuals, regardless of whether social distancing, hygiene, and other efforts to slow the spread

of COVID-19 were practiced.

3. Notably, the allowance for persons to gather in particular contexts was carried

over from EO 20-14 to EO 20-18 for libraries with no express requirement that such persons do

so only if they can “engage in appropriate social distancing.” Under EO 20-18, persons can

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gather in shopping malls and retail establishments “where large numbers of people are present but are generally not within arm’s length of one another for more than 10 minutes.” Under EO 20-18 as under EO 20-14, persons can gather at restaurants and bars provided only that the facilities “preserve social distancing of 6 feet between tables, booths, bar stools, and ordering counters; and cease self-service of unpackaged food, such as in salad bars or buffets.” However, religious gathering were banned outright if the number of individuals present exceeded 10 persons.
4. As of the filing of this Complaint, despite widespread reporting and litigation before the Kansas Supreme Court, EO 20-18 has not been published by the Secretary of State in the Kansas Register.
5. EO 20-18 rescinded Executive Order 20-14, the Governor’s previous mass gathering ban. See Executive Order 20-14, attached as Exhibit 2 (hereinafter “EO 20-14”). EO 20-14 had expressly exempted “religious gatherings” from the mass gathering ban, provided that “attendees can engage in appropriate social distancing.” See id. at Section 2(c).
6. Moreover, Executive Order 20-16, the Governor’s state-wide “stay-at-home” order, expressly allowed Kansans to “perform or attend religious or faith-based services or activities” as exempt activities under the order. See Executive Order 20-16, attached hereto as Exhibit 3.
7. On April 8, 2020, Kansas Attorney General Derek Schmidt issued a memorandum to all Kansas prosecutors and law enforcement stating that the religious gathering prohibitions of EO 20-18 “likely violate both state statute and the Kansas Constitution.” See Memorandum from Attorney General Derek Schmidt (April 7, 2020), attached hereto as Exhibit 4 at 5.
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8. Attorney General Schmidt concluded in his memo that: provisions of the governor’s order that purport to criminalize certain gatherings for religious services or activities likely violate both state statute and the Kansas Constitution, which would render them void and unenforceable. . . . Law enforcement are advised to encourage cooperative compliance with the new provisions of EO 20-18 and to avoid engaging in criminal enforcement of its limitations on religious facilities, services or activities. Id. 9. On April 8, 2020, the Kansas Legislative Coordinating Council (hereinafter “LCC”) voted to rescind EO 20-18 under the ostensible authority of HCR 5025, citing the constitutionality concerns raised by Attorney General Schmidt’s memorandum. 10. On April 9, 2020, Governor Kelly sued the Kansas Legislature and the LCC in an original quo warranto action with the Kansas Supreme Court. 11. On April 11, 2020, the Kansas Supreme Court granted emergency relief to Kansas Governor by narrowly ruling that the LCC lacked the authority to rescind EO 20-18 under the plain language of HCR 5025. The court expressly declined to consider the constitutionality of the religious gatherings ban under EO 20-18, stating in its opinion that the religious liberty considerations must be brought in a separate action. See Kelly v. LCC et al., Slip Op. No. 122,765 at 3, 23 (Kan. 2020). 12. On Easter Sunday, April 12, 2020, in Dodge City, Kansas, Plaintiffs First Baptist Church and Pastor Stephen Ormord attempted to hold an outdoor, “drive-in” church service with approximately 20 of their congregants parked in cars in front of the church spaced 6 feet apart. Due to high winds and technological difficulties, the congregants were unable to hear or effectively participate in the service. The church had already adopted rigorous social distancing and health safety protocol to protect individuals gathered for worship, and the congregation was
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able to safely conduct the service within the sanctuary space pursuant to that protocol by remaining 6 feet apart throughout the service.
13. On Easter Sunday, April 12, 2020, in Junction City, Kansas, Plaintiffs Calvary Baptist Church and Pastor Aaron Harris held an in-door church service with 21 of their congregants while adopting rigorous social distancing and health safety protocols to protect individuals gathered for worship. A member of local law enforcement monitored the service inside the building.
14. On April 14, Pastor Harris spoke with the Geary County Sheriff to discuss whether the Sheriff would enforce the Executive Order 20-18 that was issued. The Sheriff warned Pastor Harris that he would be subject to criminal enforcement of Governor’s Executive Order 20-18 should his church hold an in-person service the following week in which more than 10 people were sitting in the pews.
15. On April 14, 2020, United States Attorney General William Barr issued a statement that “the First Amendment and federal statutory law” also prohibit governments from
impos[ing] special restrictions on religious activity that do not also apply to similar nonreligious activity. For example, if a government allows movie theaters, restaurants, concert halls, and other comparable places to assemble to remain open and unrestricted, it may not order houses of worship to close, limit their congregation size, or otherwise impede religious gatherings. Religious institutions must not be singled out for special burdens. See Statement of Attorney General William P. Barr, attached hereto as Exhibit 5. 16. In his statement, Attorney General Barr also announced the Department of Justice had filed a Statement of Interest in support of a Mississippi church that allegedly sought to hold parking lot worship services before being criminally cited by local law enforcement. See id; The United States’ Statement of Interest in Support of Plaintiffs, 4:20cv-64-DMB-JMV) (N.D.Miss. 2020), attached hereto as Exhibit 6.
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17. On April 15, 2020, counsel for First Baptist Church sent a letter to Clay Britton, general counsel for Governor Laura Kelly, requesting that Governor Kelly incorporate more narrowly tailored restrictions into her statewide order prohibiting churches from holding worship services with more than 10 non-performing members. In the letter, counsel requested the Governor make specific allowance for churches to hold in-person indoor worship services provided the church congregants follow rigorous social distancing and healthy safety protocol as set forth in the letter even though these requirements exceed those imposed by EO 20-18 on other similar secular facilities. See Letter to Clay Britton, Chief Counsel for Governor Laura Kelly, dated April 15, 2020, attached as Exhibit 7.
18. On April 16, Mr. Britton responded but did not permit the church to meet nor rescind or modify the Order, but rather stated that the Governor’s Office was reviewing the request and “will reach a decision as soon as tomorrow.” See Letter to Ryan Kriegshauser, dated April 16, 2020, attached as Exhibit 8.
19. As of April 15, 2020, the Kansas Department of Health and Environment (hereinafter “KDHE”) reports that Ford County, Kansas (Dodge City) has 32 confirmed cases of COVID-19. See KDHE COVID-19 Quick Stats, updated 4/15/2020, attached as Exhibit 9.
20. Ford County has a population of approximately 33,619 people. As of April 15, 2020, the per capita rate of COVID-19 infection in the county was approximately 0.095%, or approximately one tenth of 1%.
21. As of April 15, 2020, KDHE reports that Geary County, Kansas (Junction City) has 10 confirmed cases of COVID-19. See id.
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22. Geary County has a population of approximately 34,895 people. As of April 15, 2020, the per capita rate of COVID-19 infection in the county approximately 0.028%, or one thirty fifth of 1%.
JURISDICTION AND VENUE 23. This civil rights action raises federal questions under the United States Constitution, specifically the First and Fourteenth Amendments, and under federal law, particularly 42 U.S.C. § 1983. 24. This Court has subject matter jurisdiction over the federal claims under 28 U.S.C. § 1331 and 1343. 25. This Court has supplemental jurisdiction over the state claims under 28 U.S.C. § 1367. 26. This Court has authority to grant the requested declaratory relief under 28 U.S.C. §§ 2201 and 2002, the requested injunctive relief under 28 U.S.C. § 1343, and reasonable attorney fees and costs under 42 U.S.C. § 1988. 27. Venue is proper in this Court under 28 U.S.C. § 1391(b) because a substantial part of the events or omissions giving rise to the claims occurred in this district and Defendant resides in this district.
PARTIES 28. Plaintiff First Baptist Church is a non-profit church organized exclusively for religious purposes within the meaning of § 501(c)(3) of the Internal Revenue Code. First Baptist Church is located in Dodge City, Kansas. 29. Plaintiff Stephen Ormord serves as Pastor of First Baptist Church in Dodge City, Kansas.
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30. Plaintiff Calvary Baptist Church is a non-profit church organized exclusively for religious purposes within the meaning of § 501(c)(3) of the Internal Revenue Code. Calvary Baptist Church is located in Junction City, Kansas.
31. Plaintiff Aaron Harris serves as Pastor of Calvary Baptist Church in Junction City, Kansas.
32. Defendant Laura Kelly is the Governor of Kansas and is sued in her official capacity only.
FACTS First Baptist Church (Dodge City, Kansas) 33. First Baptist Church has continuously operated as a Christian church in Dodge City, Kansas since at least the 1930s. 34. The Church is affiliated with the American Baptist denomination. 35. First Baptist Church and Pastor Ormord believe that the Bible is the inspired Word of God and the sole authority for faith and practice. 36. They believe the Bible teaches, among other things, the requirement to gather together for corporate prayer and worship and that such assembly is necessary and good for the Church and its members’ spiritual growth. 37. The Church has a relatively small, rural congregation with an average attendance of between 50 and 75 people. 38. Despite the Church’s best efforts, it has been difficult for the church to offer an online service, and many congregants have internet bandwidth limitations or lack internet altogether and are therefore unable to participate in an on-line service.
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39. On Easter Sunday, April 12, 2020, the Church attempted to offer a “drive-in” service in its parking lot and online streaming of its service to congregants sitting in their individual cars. However, high winds and internet streaming problems made it impossible for congregants to listen to or effectively participate in the service. As a result, some congregants expressed their difficulties to the church on Facebook. Those part of the service inside the building followed its previous social distancing and health safety protocol as outlined herein during the service.
First Baptist Church’s Voluntary Response to COVID-19 Guidelines 40. As a response to federal, state, and local guidance at the beginning of the COVID19 outbreak, but prior to any local or state order regarding mass gatherings, First Baptist Church voluntarily adopted rigorous social distancing and health safety protocol to protect church service attendees. 41. In its most current form, this protocol, as outlined in Exhibit 4 (letter to Clay Britton), includes the following precautions: a. Prior to and following the in-person service, the facility will be deep cleaned; b. Invitations will be directed to regular church attendees for this in-person service; c. Individuals will be advised to continue to engage in “stay at home” protocols as
directed by EO 20-16 in order to attend the service; d. No church members are known to have had any contact with known COVID-19
confirmed cases; e. Attendees will be advised to perform temperature checks at home on all attendees
prior to attending the service. Individuals that are ill or have fevers will not attend;
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f. High-risk individuals will be advised not to attend the in-person service;

g. Attendees will be advised to bring their own PPE, including masks and gloves;

h. Attendees will be advised not to engage in hand shaking or other physical contact;

i.

Hand sanitizer will be available for use throughout the facility;

j.

The in-person service will be limited to 50 individuals in a space that has a

capacity for 300 individuals (a cross-shaped auditorium 50 feet by 74 feet at the

center; 2,950 square feet total, allowing almost 57 square feet available to each

attendee at maximum social distancing);

k. Co-habituating family units may sit closer together but otherwise the maximum

social distancing possible will be used, however, at a minimum, the CDC-

recommended protocol will be observed with a minimum distance of at least 6

feet;

l.

A single point of entry and single point of exit on opposite sides of the building

will be used, establishing a one-way traffic pattern to ensure social distancing;

m. Ventilation will be increased as much as possible, opening windows and doors, as

weather permits;

n. These procedures will be communicated to church members in advance of the

service;

o. Church bulletin and offering plates will not be used during the service;

p. Attendees will be advised to wash their clothes following the service;

q. If Church leadership becomes aware of a clear, immediate, and immanent threat

to the safety of the attendees or cannot follow the protocols listed above, the

gathering will be immediately disbanded.

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42. The Church and Pastor Ormord will continue to attempt to offer streaming services, weather and technology permitting, but seek to have the option to legally move their weekly Sunday worship service indoors if streaming services are not feasible or practicable, while practicing adequate social distancing and health safety protocol as recommended by federal, state, and local authorities, and without being subject to penalty or punishment.
Calvary Baptist Church (Junction City, Kansas) 43. Calvary Baptist Church has continuously operated as a Christian church in Junction City, Kansas since 1956. 44. The Church is an independent church, not closely affiliated with any association, convention, conference, or council of churches. 45. Calvary Baptist Church and Pastor Harris believe that the Bible is the inspired Word of God and the sole authority for faith and practice. 46. They believe the Bible teaches, among other things, the requirement to gather together for corporate prayer and worship and that such assembly is necessary and good for the Church and its members’ spiritual growth. 47. The Church has a relatively small congregation with an average attendance of between 75 and 100 people. Although the Church’s seating capacity is approximately 300, the Church will limit attendance to no more than 75. 48. The Church offers an online streaming option for viewing its service. 49. In order to offer an outdoor service, the Church must rent equipment on a weekly basis, including outdoor loud speakers, a tent canopy, and additional chairs.
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Calvary Baptist Church’s Voluntary Response to COVID-19 Guidelines 50. As a response to federal, state, and local guidance at the beginning of the COVID19 outbreak, but prior to any local or state order regarding mass gatherings, Calvary Baptist Church voluntarily adopted rigorous social distancing and health safety protocol to protect church service attendees. 51. For example, the Church: a. Split out pews and marked designated sitting areas to keep non-cohabitating
congregants at least six feet apart before, during, and after the worship service; b. Marked multiple entrances to encourage socially distanced foot traffic; c. Propped doors open during services to prevent the need for congregants to touch
doors while entering and exiting the church or sanctuary; d. Suspended the passing of offering plates; e. Actively discouraged handshaking or other social touching; f. Began offering hand sanitizer throughout the building; g. Procured face masks to offer to any interested persons. 52. The Church and Pastor Harris will continue to attempt to offer online streaming and outdoor services, weather and technology permitting, but seek to have the option to legally move their weekly Sunday worship service indoors when outdoor services are not feasible or practicable, while practicing adequate social distancing and health safety protocol as recommended by federal, state, and local authorities. 53. As recently as April 15, 2020, Pastor Harris has continued to communicate with law enforcement regarding the options for legally holding in-person church services. He has been
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directly informed by the Geary County Sheriff that any violations of EO 20-18 will be referred to the Geary County Attorney’s office for criminal prosecution.
COUNT I Violation of the First Amendment to the U.S. Constitution (Free Exercise) 54. Plaintiffs incorporate by reference paragraphs 1 through 53. 55. Plaintiffs’ sincerely held religious beliefs teach that Bible is the inspired Word of God and the sole authority for faith and practice. 56. Plaintiffs sincerely believe that the Bible teaches the necessity of gathering together for corporate prayer and worship and that such assembly is necessary and good for the Church and its members’ spiritual growth. 57. Executive Order 20-18 substantially burdens Plaintiffs’ religion by prohibiting them from holding in-person church services with more than 10 non-performing congregants. 58. Executive Order 20-18 substantially interferes with Plaintiffs’ ability to carry out their religious doctrine, faith, and mission. 59. Executive Order 20-18 targets, discriminates against, and shows hostility towards churches, including Plaintiffs. 60. Executive Order 20-18 is neither neutral nor generally applicable. 61. The State does not have a compelling reason for prohibiting church services where congregants can otherwise practice adequate social distancing protocol, especially when compared to the vast secular activities exempted under the order, nor has it selected the least restrictive means to further any purported interest. 62. Executive Order 20-18 violates the Free Exercise Clause of the First Amendment to the United States Constitution, both facially and as applied.
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63. In the absence of declaratory and injunctive relief, Plaintiffs will be irreparably harmed.
COUNT II Violation of the First Amendment to the U.S. Constitution (Free Speech) 64. Plaintiffs incorporate by reference paragraphs 1 through 53. 65. Executive Order 20-18 violates Plaintiffs’ freedom of speech by prohibiting them from engaging in religious speech through their church services, which occur exclusively on private property. 66. Executive Order 20-18 gives government officials unbridled discretion with respect to enforcement of the order and the imposition of any penalty, making the order susceptible to both content- and viewpoint-based discrimination. 67. Prohibiting or punishing Plaintiffs’ religious speech does not serve any legitimate, rational, substantial, or compelling governmental interest. 68. The State also has alternative, less restrictive means to achieve any interest that it might have. 69. Executive Order 20-18 violates the Free Speech Clause of the First Amendment to the United States Constitution, both facially and as applied. 70. In the absence of declaratory and injunctive relief, Plaintiffs will be irreparably harmed.
COUNT III Violation of the First Amendment to the U.S. Constitution (Right to Assemble) 71. Plaintiffs incorporate by reference paragraphs 1 through 53.
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72. The First Amendment prohibits the State from violating Plaintiffs’ right to peaceably assemble.
73. Executive Order 20-18 violates Plaintiffs’ right to peaceably assemble because the ban on in-person services does not serve any legitimate, rational, substantial, or compelling governmental interest.
74. In addition, the State has alternative, less restrictive means to achieve any interest that it might have.
75. Executive Order 20-18 violates the right to assemble under the First Amendment to the United States Constitution, both facially and as applied.
76. In the absence of declaratory and injunctive relief, Plaintiffs will be irreparably harmed.
COUNT IV Violation of Kansas Preservation of Religious Freedom Act 77. Plaintiffs incorporate by reference paragraphs 1 through 53. 78. The Kansas Preservation of Religious Freedom Act (hereinafter “KPRFA”) prohibits the government from substantially burdening a person’s civil right to exercise of religion, even if the burden results from a rule of general applicability, unless it can demonstrate that “application of the burden to the person” is “in furtherance of a compelling governmental interest” and “the least restrictive means of furthering that compelling governmental interest.” Kan. Stat. Ann. § 60-5303(a). 79. Defendant’s Executive Order is subject to KPRFA because KPRFA applies to “all state laws, rules, regulations and any municipal or county ordinances, rules or regulations and the implementation of those laws.” Id. § 11-61-1(7).
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80. Defendant’s Executive Order substantially burdens Plaintiffs’ religion by prohibiting them from holding in-person indoor church services with more than 10 nonperforming attendees.
81. Defendant’s Executive Order does not further a compelling interest, nor is it narrowly tailored to advance any compelling governmental interest.
82. Defendant’s Executive Order therefore violates KPRFA as applied to Plaintiffs. 83. In the absence of declaratory and injunctive relief, Plaintiffs will be irreparably harmed.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that the Court: a. Enter a temporary restraining order, preliminary injunction, and permanent injunction prohibiting the State of Kansas from enforcing the portion of Governor’s Executive Order 20-18 limiting church public gatherings to less than 10 non-performing persons, thus allowing Plaintiffs and their congregants to continue to meet for worship while practicing adequate social distancing; b. Enter a judgment declaring that Governor’s Executive Order 20-18 violates the U.S. Constitution’s Free Exercise, Free Speech, Right to Assemble, and Due Process Clauses. c. Enter a judgment declaring that Governor’s Executive Order 20-18 violates the Kansas Religious Freedom Restoration Act; d. Award Plaintiffs’ court costs and reasonable attorney fees; and e. Award such other and further relief as to which Plaintiffs may be entitled.
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JURY DEMAND
Plaintiffs hereby demand a trial by jury of all issues so triable pursuant to Rule 38 of the
Federal Rules of Civil Procedure and the Seventh Amendment of the United States Constitution.
It is respectfully requested that the jury trial be held in Wichita, KS given its geographic
proximity to all plaintiffs.
Respectfully submitted this 16th day of April 2020.
/s/ Tyson C. Langhofer Tyson C. Langhofer KS Bar No. 19241 ALLIANCE DEFENDING FREEDOM 20116 Ashbrook Place, Suite 250 Ashburn, VA 20147 (480) 388-8205 tlanghofer@ADFlegal.org
David A. Cortman* GA Bar No. 188810 ALLIANCE DEFENDING FREEDOM 1000 Hurricane Shoals Rd. NE Suite D-1100 Lawrenceville, GA 30043 (770) 339-0774 dcortman@ADFlegal.org
Ryan J. Tucker* AZ Bar No. 034382 ALLIANCE DEFENDING FREEDOM 15100 N. 90th St. Scottsdale, AZ 85260 (480) 444-0020 rtucker@ADFlegal.org
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/s/ Joshua A. Ney Joshua A. Ney, KS Bar No. 24077 NEY LAW FIRM, LLC 900 S. Kansas Ave., Ste. 402B Topeka, KS 66612 (785) 414-9065 josh@joshney.com /s/ Ryan A. Kriegshauser Ryan A. Kriegshauser KS Bar No. 23942 KRIEGSHAUSER LAW LLC 15050 W. 138th St., Unit 4493 Olathe, KS 66063 (913) 303-0639 ryan@kriegshauserlaw.us ATTORNEYS FOR PLAINTIFFS *Admission for Pro Hac Vice forthcoming.
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 Case 6:20-cv-01102-JWB-GEB Document 7 Filed 04/17/20 Page 1 of 24

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

FIRST BAPTIST CHURCH; PASTOR STEPHEN ORMORD; CALVARY BAPTIST CHURCH; PASTOR AARON HARRIS
Plaintiffs,
GOVERNOR LAURA KELLY, in her official capacity,
Defendant. ____________________________________

) ) ) ) ) ) ) Case No. 6:20-cv-01102 ) ) ) ) ) ) )

PLAINTIFFS’ MOTION FOR EXPEDITED HEARING AND MOTION FOR TEMPORARY RESTRAINING ORDER

Case 6:20-cv-01102-JWB-GEB Document 7 Filed 04/17/20 Page 2 of 24
TABLE OF CONTENTS Table of Authorities ................................................................................................................. iii INTRODUCTION .....................................................................................................................1 STATEMENT OF FACTS ........................................................................................................1 ARGUMENT .............................................................................................................................6 I. Plaintiffs are likely to succeed on the merits of their claims. ..............................................7
A. The church-closure order violates the Free Exercise Clause. ..................................7 B. The church-closure order violates the Free Speech Clause. ....................................9 C. The church-closure order is subject to strict scrutiny under both Kansas
law and the State Constitution because it substantially burdens Plaintiffs’ religious exercise. ....................................................................................................9 D. The church-closure order fails strict scrutiny. .......................................................12 II. Public Health Emergency in Kansas regarding COVID-19 does not justify shutting down Plaintiffs’ church services. .........................................................................14 A. The State’s targeted prohibition of Plaintiffs’ worship services does not have a real or substantial relation to the public health crisis. ................................15 B. The State’s order is a plain, palpable invasion of Plaintiffs’ constitutional rights. .....................................................................................................................16 C. The State’s decision to shut down Plaintiffs’ church services is arbitrary and oppressive........................................................................................................16 III. Plaintiffs have already suffered irreparable harm and will continue to suffer irreparable harm without an injunction..............................................................................17 IV. The balance of equities sharply favors Plaintiffs. ..............................................................18 V. An injunction would serve the public interest. ..................................................................18 CONCLUSION ........................................................................................................................18
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Cases

TABLE OF AUTHORITIES

Automated Manufacturing Systems, Inc. v. Martin, 467 F.2d 1181 (10th Cir.1972) ................................................................................................. 7

Brown v. Entertainment Merchandise Ass’n, 564 U.S. 786 (2011).................................................................................................................13

Burwell v. Hobby Lobby, 573 U.S. 682 (2014).................................................................................................... 13, 18

Beltronics USA v. Midwest Inventory Distribution, LLC 562 F.3d 1067 (10th Cir. 2009) .................................................................................................7
Church of the Lukumi Babalu Aye. Inc. v. City of Hialeah, 508 U.S. 520 (1993)...................................................................................................7–8, 13–14
Contractors Ass’n of Eastern Pa. v. City of Philadelphia, 6 F.3d 990 (3d Cir. 1993) ........................................................................................................13
Elrod v. Burns, 427 U.S. 347 (1976).................................................................................................................18
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006).................................................................................................................13
Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1145 (10th Cir. 2013) .....................................................................................18
Hodes & Nauser, MDs, P.A. v. Schmidt, 309 Kan. 610, 440 P.3d 461 (2019) ........................................................................................12
Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905)...................................................................................................................15

Lovell v. City of Griffin, 303 U.S. 444 (1938).............................................................................................................9
On Fire Christian Center, Inc. v. Fischer, No. 3:20-cv-264-JRW (W.D. Ky. Apr. 11, 2020) ...........................................................8–9, 14
Reed v. Town of Gilbert, 576 U.S. 155 (2015).............................................................................................................9

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State v. Smith, 155 Kan. 588, 127 P.2d 518 (1942) ....................................................................................12
Stinemetz v. Kansas Health Policy Authority, 45 Kan. App. 2d 818, 849-50, 252 P.3d 141 (2011)................................................................12
Susan B. Anthony List v. Driehaus, 814 F.3d 466 (6th Cir. 2016) ...................................................................................................13
Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017) ...............................................................................................................7
United States v. Chalk, 441 F.2d 1277 (4th Cir. 1971) .................................................................................................15
Widmar v. Vincent, 454 U.S. 263 (1981).............................................................................................................9
Statutes Kan. Const., Bill of Rights, § 7 ...............................................................................................12 Kan. Stat. Ann. § 48-939 .................................................................................................................1 Kan. Stat. Ann. § 60-5302 .......................................................................................................10 Kan. Stat. Ann. § 60-5303 ................................................................................................ 10–11
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INTRODUCTION This case is brought by two Kansas churches in rural communities who have put adequate social distancing measures in place to ensure the safety of churchgoers while holding in-person church services. These two churches file this action in order to be allowed the same discretion to operate as other exempt local secular businesses and libraries under Kansas Governor’s Executive Order 20-18. Technological difficulties and logistical impediments for streaming, outdoor, and “drive-in” services, as well as unpredictable and inclement weather require that the church be allowed to conduct these indoors, in-person services. Currently, in-person religious “mass gatherings” of more than 10 non-performing individuals have been criminalized by the State as described in Executive Order 20-18 (hereinafter “EO 20-18”). (See Pl.’s V. Compl. Ex. 1, ¶ 1.c, ECF No. 1-1, and K.S.A. § 48-939.) However, the same restrictions have not been placed on numerous secular organizations such as malls, retail stores, bars, restaurants, office buildings, and even libraries. (See Pl.’s V. Compl. Ex. 1, ¶ 1.c, ECF No. 1-1.)
STATEMENT OF FACTS Five days before Easter Sunday, on April 7, 2020, Governor Kelly issued EO 20-18 restricting mass gatherings of more than 10 people in a confined space, excluding clergy and assistants conducting the service. (See id.) When issuing EO 20-18, the Governor publicly cited concerns with three “clusters” of COVID-19 associated with churches out of the eleven total clusters identified at the time.1 Later, it was revealed that the majority of “clusters” were related to long-term care facilities but a similar number of clusters were related to “private businesses.”2
1 Jonathan Shorman, “Kansas Has 3 Church C-Related COVID-19 Clusters, state says amid scramble for Supplies,” Wichita Eagle (April 6, 2020), https://www.kansas.com/news/coronavirus/article241810656.html. 2 Michael Stavola, “Fifth Coronavirus Cluster Located in Sedgwick County,” Wichita Eagle (April 14, 2020), https://www.kansas.com/news/coronavirus/article241999411.html. It was also revealed that at least one religion-
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However, EO 20-18 primarily targeted churches while largely exempting gatherings in secular businesses.
The next day, on April 8, 2020, the Kansas Attorney General issued a five-page memorandum to Kansas prosecutors and law enforcement advising them not to enforce the ban on religious gatherings because it “likely violate[s] both state statute and the Kansas Constitution.” (See Pl.’s V. Compl. Ex. 4 at 5, ECF No. 1-4). Later that day, the Legislative Coordinating Counsel (LCC)3 revoked EO 20-18 pursuant to HCR 5025 citing the constitutional concerns with religious liberty raised by the Attorney General.4 On April 10, 2020, the Governor filed a Petition in Quo Warranto with the Kansas Supreme Court citing concerns that widespread religious gathering would erupt across the state on Easter if the Court did not rule immediately to clarify the confusion. See Pl.’s Mot. to Expedite, Kelly v. Legislative Coordinating Counsel, No. 122,765 (Kan. 2020). The next day, after oral argument, the Kansas Supreme Court struck down the LCC’s action, focusing on the text of HCR 5025 without making any ruling on the constitutional and religious liberties questions raised. The decision in this matter was issued by the Kansas Supreme Court late the day before Easter. This left the ban on religious gatherings intact.
Leading up to Easter Sunday, Plaintiffs in this action attempted to prepare their services based on the legal uncertainty involving religious mass gatherings. On Easter Sunday, April 12, Plaintiffs First Baptist Church, Dodge City, KS and Pastor Stephen Ormord attempted to hold an
related cluster (an administrative conference for denominational staff) had occurred prior to the issuance of any statewide stay-at-home or mass gathering orders. See Katie Moore, “Church conference in Kansas City, Kansas, linked to 44 COVID-19 cases, five deaths,” Kansas City Star (April 16, 2020), https://www.kansascity.com/news /coronavirus/article242066041 html. 3 The LCC is a 7-member council of legislative leadership. See K.S.A. § 46-1201. 4 A press release from Kansas House leadership is quoted by KWCH News. “Lawmakers Overturn Religious Worship Size Limits in KS, Rule Sticks in Sedgwick County,” KWCH News (April 8, 2020), https://www kwch. com/content/news/Kansas-AG-says-religious-restrictions-not-enforceable-569479791.html.
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outdoor “drive-in” church service with approximately 20 of their congregants parked in cars in front of the church. (See Pl.’s V. Compl. at ¶ 12, ECF No. 1.) Due to high winds and technological difficulties, the congregants were unable to hear or participate in the service. (Id.) The church had already adopted rigorous social distancing and health safety protocol to protect individuals gathered for worship, and the congregation was able to safely conduct the service within the sanctuary space pursuant to that protocol. (Id.) Given this experience, First Baptist Church has cited concerns with the availability of internet streaming and the logistics involved in “drive-in” services. (See Pl.’s V. Compl. Ex. 7, ECF No. 1-7 [Letter to Governor].) Additionally, concerns were raised about church members having low bandwidth or no internet access. (Id.)
On Easter Sunday, April 12, 2020, in Junction City, Kansas, Plaintiffs Calvary Baptist Church and Pastor Aaron Harris held an indoor church service with 21 of their congregants while adopting rigorous social distancing and health safety protocol to protect individuals gathered for worship. (See Pl.’s V. Compl. at ¶ 13.) These safeguards included:
 Splitting out pews and marking designated sitting areas to keep non-cohabitating congregants at least six feet apart before, during, and after the worship service;
 Marking multiple entrances to encourage socially distanced foot traffic;  Propping doors open to prevent the need for congregants to touch doors while
entering and exiting the church or sanctuary;  Suspending passing offering plates and bulletins;  Actively discouraging handshaking or other social touching;  Offering hand sanitizer throughout the building;  Providing face masks to offer to any interested persons.
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(Id. at ¶ 50.) A member of local law enforcement briefly monitored the service inside the building. (Id. at ¶ 13.) In the days following, Pastor Harris was contacted by the Geary County Sheriff and informed that he would be subject to criminal enforcement of Governor’s Executive Order 20-18 should his church hold an in-person service with more than 10 congregants in the pews in following weeks. (Id. at ¶ 14.) Furthermore, Kansas law enforcement officials, including the Geary County Sheriff, have publicly stated they intend to criminally enforce EO 20-18, despite the Kansas Attorney General’s legal recommendations against criminal enforcement.5
On April 15, 2020, in an effort to avoid conflict and in the spirit of cooperation, First Baptist Church sent a letter through counsel to Clay Britton, the Governor’s Chief Counsel. (See Pl.’s V. Compl. Ex. 7, ECF No. 1-7 [Letter to Governor].) In the letter, First Baptist Church implored the Governor to narrowly tailor EO 20-18 taking into account the following factors:
 The location of a religious gathering;  The presence of COVID-19 in the particular community at issue;  Whether certain personal protective gear (PPE) is used;  Whether additional safety protocols are used;  Whether enhanced social distancing measures are employed at both the gathering and in
the particular church community at issue (including the adherence to personal social distancing outside the gathering by participants by staying at home as well as the exclusion of “at-risk” individuals as identified by the Center for Disease Control);  Challenges faced by church communities in rural areas such as the unavailability of internet services and streaming capacity, the importance of in-person religious gatherings
5 Nicole Asbury, “Kansas Police say they will Enforce Gov. Kelly’s Order Limiting Religious Gatherings,” Kansas City Star (April 16, 2020), https://www.kansascity.com/news/politics-government/article241999171.html.
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on the mental health of already relatively isolated individuals, and other factors particular to various communities across the state. (Id.) Additionally, counsel for First Baptist Church offered to assist the Governor’s Chief Counsel in drafting a narrowly tailored Executive Order. (Id.) In the same letter, First Baptist Church proposed to hold an in-person service with numerous safeguards as follows:
 Prior to and following the in-person service, the facility will be deep-cleaned;  Invitations will be directed to regular church attendees for this in-person service;  Individuals will be advised to continue to engage in “stay at home” protocols as
directed by EO 20-16 in order to attend the service;  No church members are known to have had any contact with known COVID-19
confirmed cases;  Attendees will be advised to perform temperature checks at home on all attendees
prior to attending the service. Individuals that are ill or have fevers will not attend;  High-risk individuals will be advised not to attend the in-person service;  Attendees will be advised to bring their own PPE, including masks and gloves;  Attendees will be advised not to engage in hand shaking or other physical contact;  Hand sanitizer will be available for use throughout the facility;  The in-person service will be limited to 50 individuals in a space that has a capacity for 300 individuals (a cross-shaped auditorium 50 feet by 74 feet at the center; 2,950 square feet total, allowing almost 57 square feet available to each attendee at maximum social distancing);
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 Co-habituating family units may sit closer together but otherwise the maximum social distancing possible will be used, however, at a minimum, the CDCrecommended protocol will be observed with a minimum distance of at least 6 feet;
 A single point of entry and single point of exit on opposite sides of the building will be used, establishing a one-way traffic pattern to ensure social distancing;
 Ventilation will be increased as much as possible, opening windows and doors, as weather permits;
 These procedures will be communicated to church members in advance of the service;
 Church bulletin and offering plates will not be used during the service;  Attendees will be advised to wash their clothes following the service;  If Church leadership becomes aware of a clear, immediate, and immanent threat
to the safety of the attendees or cannot follow the protocols listed above, the gathering will be immediately disbanded. (Id.) The parties continue to negotiate but have not resolved the dispute at the time this Motions was filed. See Exhibit 1.
ARGUMENT Under Rule 65 of the Federal Rules of Civil Procedure, this Court may issue a temporary restraining order if Plaintiffs show a (1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable injury if the injunction is not issued; (3) that the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted; and (4)
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that the grant of the injunction will not disserve the public interest. See Beltronics USA, Inc. v. Midwest Inventory Distribution, LLC, 562 F.3d 1067, 1070 (10th Cir. 2009). All these factors are met here.
I. Plaintiffs are likely to succeed on the merits of their claims. To satisfy the “likelihood of success” inquiry, a plaintiff does not have to show ultimate
success at trial. Instead, it must present a prima facie case. Automated Mktg. Sys., Inc. v. Martin, 467 F.2d 1181, 1183 (10th Cir. 1972). Plaintiffs easily meet this standard.
A. The church-closure order violates the Free Exercise Clause. Laws that target religious groups for disfavored treatment are not neutral and generally applicable, and are thus always unconstitutional. Indeed, the Supreme Court has stated that government action “targeting religious beliefs as such is never permissible.” Church of the Lukumi Babalu Aye., Inc. v. City of Hialeah, 508 U.S. 520, 533 (1993) (emphasis added). And just three years ago, the Supreme Court reiterated that “[t]he Free Exercise Clause ‘protect[s] religious observers against unequal treatment’ and subjects to the strictest scrutiny laws that target the religious for ‘special disabilities’ based on their ‘religious status.’” Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2019 (2017) (quoting Lukumi, 508 U.S. at 533). EO 20-18 is not neutral on its face because it bans religious gatherings outright instead of allowing churches and church members to practice responsible cleanliness and social distancing, as is permitted for other exempt secular facilities. Plaintiffs here have voluntarily adopted procedures more than adequate to this end. But because the state has banned the gatherings, “First Amendment freedoms are curtailed to prevent isolated collateral harms not themselves prohibited by direct regulation.” Lukumi, 508 U.S. at 539. That is, “narrower regulation would achieve the [state’s] interest in preventing” the spread of the virus. Id.
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Because the order is granting secular, but not religious, exemptions, it is underinclusive and thus not generally applicable. The plain language of the EO singles out churches such as the Plaintiffs here for disfavored treatment. While a strict 10-person limit is placed on religious gatherings (excluding service participants), 26 exceptions are made for secular gatherings including “shopping malls,” “retail establishments,” “libraries,” and “restaurants and bars.” (See Pl.’s V. Compl. Ex. 1, ECF No. 1-1.)
This religious targeting also stands in stark contrast to the Governor’s earlier Executive Order 20-16, which classifies in-person church gatherings as “essential.” (See Pl.’s V. Compl. Ex. 2 at ¶ 12.b, ECF No. 1-2.) Simply put, EO 20-18 specifically targets religious institutions for unfair treatment while allowing other secular “essential” organizations to operate with wide latitude. “Despite the [state’s] proffered interest in preventing [the coronavirus], the [order is] drafted with care to forbid few [gatherings] but those occasioned by religio[n].” Lukumi, 508 U.S. at 543. This is unconstitutional.
Others agree. The court in On Fire Christian Center, Inc. v. Fischer, No. 3:20-cv-264JRW, 2020 WL 1820249 (W.D. Ky. Apr. 11, 2020), temporarily enjoined the City of Louisville from enforcing its ban on religious services, which prohibited “drive-in” services. Id. at *4.6 In so doing, the court noted that, while Louisville’s Mayor said it was “not really practical or safe to accommodate drive-up services,” the city still allowed drive-through restaurants and liquor stores to remain open. Id. at *4. The city therefore was “substantially burdening [the church’s] sincerely held religious beliefs in a manner that is not ‘neutral’ between religious and nonreligious conduct, with orders and threats that are not ‘generally applicable’ to both religious and non-religious conduct.” Id. at *6.
6 A copy the TRO ruling in On Fire Christian Center is attached to this motion as Exhibit 2.
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A similar action is pending against the City of Greenville’s church-closure order alleging it is neither neutral nor generally applicable in that it applies only to church drive-in services and to no others. Temple Baptist Church v. City of Greenville, No. 4:20-cv-64-DMB-JMV (N.D. Miss. Apr. 10, 2020). The United States Attorney General filed a Statement of Interest in Temple Baptist. (See Pl.’s V. Compl. Ex. 6 [Attorney General’s Statement of Interest].)
For these reasons, the order is subject to strict scrutiny, the highest standard of review. B. The church-closure order violates the Free Speech Clause. Religious speech is protected under the First Amendment. See, e.g., Widmar v. Vincent, 454 U.S. 263, 269 (1981); Lovell v. City of Griffin, 303 U.S. 444 (1938). And the government may not restrict private speech on private property, religious or otherwise, without satisfying strict scrutiny. Reed v. Town of Gilbert, 576 U.S. 155 (2015) (town’s sign ordinance restricting speech “on private property or on a public right of way” subject to strict scrutiny). Here, the State has categorically banned Plaintiffs from holding services on their own property. Because the Church’s services consist entirely of protected expression and speech, such as praise and worship, participation in biblical ordinances and rites, and religious preaching and teaching, the State’s church-closure order restricts speech and triggers strict scrutiny. As explained below, the State cannot satisfy that rigorous standard. C. The church-closure order is subject to strict scrutiny under both Kansas law
and the State Constitution because it substantially burdens Plaintiffs’ religious exercise. Kansas statute and the Kansas Constitution’s Bill of Rights each forbid the Governor from criminalizing participation in worship gatherings by executive order. The Kansas Preservation of Religious Freedom Act, K.S.A. § 60-5302 et seq., (“Religious Freedom Act”) provides:
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Government shall not substantially burden a person’s civil right to exercise of religion even if the burden results from a rule of general applicability, unless such government demonstrates, by clear and convincing evidence, that application of the burden to the person: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” See K.S.A. § 60-5303(a). The Religious Freedom Act applies to restrain actions by the “government,” which specifically includes both the state executive branch and local governments and officials. See K.S.A. § 60-5302(e). It protects the “exercise of religion,” which is defined broadly and expressly includes “the right to act . . . in a manner substantially motivated by a sincerely-held religious tenet or belief.” K.S.A. § 60-5302(c). Attending church, synagogue, temple, or mosque for the purpose of worship falls within the core of that definition. Further, the Religious Freedom Act the restrains government from “substantially burden[ing]” the exercise of religion, and “burden” specifically includes “assessing criminal . . . penalties.” See K.S.A. §§ 60-5302(a), 605303(a). There can be no doubt that imposing a criminal penalty of up to 1 year in jail and/or a $2,500 fine is a “substantial burden.” The Religious Freedom Act applies to provisions of EO 20-18 that impose restrictions on religious facilities, services, or activities. Consequently, EO 20-18 can survive scrutiny only if the government demonstrates that the application of EO 20-18 to persons gathering in such facilities or for such services or activities: “(1) Is in furtherance of a compelling governmental interest, and (2) is the least restrictive means of furthering that compelling governmental interest.” See K.S.A. § 60-5303(a). This is a “strict scrutiny” standard of review, which is the highest standard applied in the law and which governments rarely satisfy. As described above, Plaintiffs do not contest that the restrictions on religious gatherings in EO 20-18 may serve a compelling governmental interest of protecting the public health by
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slowing the spread of COVID-19. But the executive order also must be the “least restrictive means” of furthering that compelling interest. And the burden is on the government to prove by clear and convincing evidence that no less-restrictive means is available. See K.S.A. § 605303(a). It is impossible for the government to meet that burden here.
First, the State cannot show by clear and convincing evidence that it is currently necessary to subject every church or other religious services or activities throughout the state to the requirements in EO 20-18 to slow the spread of COVID-19. Current Centers for Disease Control guidance for faith-based organizations recommends a graduated approach based on community risk.7 Such an individually tailored, less-restrictive means is absent from the blanket statewide approach of EO 20-18.
Second, EO 20-18 exempts 26 categories of activities or facilities from its mass-gathering prohibitions, see Pl.’s V. Compl. Ex. 1 at ¶ 2.a–z, just as the prior version of the mass-gatherings order (Executive Order 20-14) had also exempted religious activities. Indeed, only religious activities (and non-religious funerals) are singled out for increased regulation under EO 20-18, while other indoor gatherings that invite similar interpersonal interaction and thus pose similar public health risk (such as gathering in shopping malls or other retail establishments or in libraries) remain unregulated, except by the less-restrictive means of general social distancing and hygiene guidelines.
Third, EO 20-18 offers no justification—much less clear and convincing evidence—for why voluntary compliance had failed to satisfy the compelling public health interest or why criminal penalties are now necessary to promote compliance by Kansans engaged in religious services or activities (but not, e.g., by those engaged in shopping, child care, providing
7 See “Resources for Community- and Faith-Based Leaders,” Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/index html (last accessed April 7, 2020).
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government or legal services, or being detoxified). Indeed, the continued reliance on socialdistancing and hygiene restrictions for mass gatherings in at least 26 other categories suggests the new burdens on religious services or activities – under penalty of arrest, imprisonment or criminal fine – are not the least-restrictive option to satisfy the State’s compelling interest.
The Kansas Supreme Court has also recognized similar religious freedom protections in the Kansas Constitution’s Bill of Rights that exceed the religious freedom protections in the federal Constitution. See State v. Smith, 155 Kan. 588, 127 P.2d 518 (1942); see also Hodes & Nauser, MDs, P.A. v. Schmidt, 309 Kan. 610, 440 P.3d 461 (2019) (recognizing that the Kansas Constitution’s limits on government action may exceed federal limits). Section 7 of the Kansas Bill of Rights provides:
The right to worship God according to the dictates of conscience shall never be infringed; nor shall any person be compelled to attend or support any form of worship; nor shall any control of or interference with the rights of conscience be permitted, nor any preference be given by law to any religious establishment or mode of worship. No religious test or property qualification shall be required for any office of public trust, nor for any vote at any election, nor shall any person be incompetent to testify on account of religious belief. Kan. Const., Bill of Rights, § 7. Kansas courts interpreting this provision have adopted a version of a strict scrutiny test substantially similar to that in the Religious Freedom Act. See Stinemetz v. Kansas Health Policy Authority., 45 Kan. App. 2d 818, 849–50, 252 P.3d 141, 160 (2011). As such, Kansas’ constitution independently requires the order to pass strict scrutiny, which it cannot do. D. The church-closure order fails strict scrutiny. Because strict scrutiny applies, the State must prove that banning Plaintiffs’ church services “advance[s] interests of the highest order and [is] narrowly tailored in pursuit of those interests.” Lukumi, 508 U.S. at 546. (cleaned up) The State cannot satisfy this “highest level of review.” Susan B. Anthony List v. Driehaus, 814 F.3d 466, 473 (6th Cir. 2016).
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While enacting safety measures to curb the spread of the COVID-19 may generally be considered a compelling interest, courts must “scrutinize the asserted harm of granting specific exemptions to particular religious claimants.” Burwell v. Hobby Lobby, Stores, Inc. 573 U.S. 682, 726–27 (2014) (internal markings omitted). Even “plausible hypotheses are not enough to satisfy strict scrutiny,” Contractors Ass’n of E. Pa. v. City of Phila., 6 F.3d 990, 1008 (3d Cir. 1993), and “ambiguous proof will not suffice,” Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786, 800 (2011). Thus, “broadly formulated” statewide interests and generalized descriptions of health risk, like those referenced in EO 20-18, are not compelling. See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 431 (2006). Moreover, “a law cannot be regarded as protecting an interest ‘of the highest order’ when it leaves appreciable damage to that supposedly vital interest unprohibited.” Lukumi, 508 U.S. at 547. (internal markings omitted)
Here, the State’s decision to ban Plaintiffs’ church services involving more than 10 nonperforming congregants is not narrowly tailored to serve any legitimate, let alone compelling, state interest. This is true for at least three reasons.
First, as noted, under the Governor’s current and previous stay-at-home orders, she designated “perform[ing] and attend[ing] religious or faith-based services or activities” as part of the essential function of “Preserv[ing] Constitutional or Legal Rights.” However, under EO 2018, religion is now singled out as a banned large group activity. This Order does not provide a scientific or public health basis for singling out religion. The constitution’s strict scrutiny standard, however, requires the articulation of a legitimate state interest in denying churches rights and privileges otherwise permitted for certain secular facilities.
Second, the Plaintiffs’ church services, when conducted with adequate social distancing and public health protocol, do not present the type of risk the State is purportedly trying to
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prevent. The Church’s parishioners will not spread COVID-19 merely by sitting in a church building. There is no circumstance unique to traditional church functions, activities, or rites that has been cited by the Governor as posing a particular risk to public health that do not exist in other similar settings such as libraries or office building, yet these facilities are exempt under EO 20-18.
And third, the State is not pursuing its purported public interest evenhandedly. The State allows individuals and businesses to engage in virtually identical activity in non-church settings with no threat of punishment. For instance, the church-closure order does not prohibit large groups of individuals from sitting inside a bar, library, shopping mall, or other retail establishment. However, it does prohibit congregants from gathering in a church. See Lukumi, 508 U.S. at 536–38 (concluding that when the same conduct “in almost all other circumstances [goes] unpunished,” religious conduct has been unconstitutionally “singled out for discriminatory treatment”); accord On Fire Christian Ctr., No. 3:20-cv-264-JRW, 2020 WL 1820249 at *7 (strict scrutiny not satisfied because State’s actions are “underinclusive” and “overbroad” in that they “don’t prohibit a host of equally dangerous (or equally harmless) activities that [the State] has permitted on the basis that they are ‘essential’”). II. Public Health Emergency in Kansas regarding COVID-19 does not justify shutting
down Plaintiffs’ church services. Defendant Kelly may argue that the COVID-19 crisis poses a unique circumstance that justifies the extraordinary restrictions imposed by EO-18. However, the government’s exercise of emergency powers “is not conclusive or free from judicial review.” United States v. Chalk, 441 F.2d 1277, 1281 (4th Cir. 1971). “A local enactment or regulation, even if based on the acknowledged police powers of a state, must always yield in case of conflict … with any right which [the U.S. Constitution] gives or secures.” Jacobson v. Commonwealth of Mass., 197 U.S.
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11, 25 (1905); accord On Fire Christian Ctr., No. 3:20-cv-264-JRW, 2020 WL 1820249, at *8 (“[E]ven under Jacobson, constitutional rights still exist. Among them is the freedom to worship as we choose.”).
The Jacobson Court looked at three factors for evaluating government actions that infringe fundamental rights: (1) whether the government action has a “real or substantial relation” to the public health crisis; (2) whether the government action is, “beyond all question, a plain palpable invasion of rights secured by the fundamental law;” and (3) whether the government action is arbitrary and oppressive. 197 U.S. at 31, 38. The Governor’s churchclosure order, and its enforcement by state and local law enforcement against Plaintiffs, fails to withstand scrutiny under each of these factors.
A. The State’s targeted prohibition of Plaintiffs’ worship services does not have a real or substantial relation to the public health crisis.
In EO 20-18, the Governor cited no authority that merely being present in a church building with more than 10 non-performing congregants would pose a unique and unacceptable threat to public health and safety. The Governor’s order cites no scientific, public health, or other authority that explains why churches and religious services or activities pose a special health risk in a way that other exempt secular facilities—such as libraries, shopping malls, restaurants, and bars—do not. Contrary to her initial public gathering ban in EO 20-16, EO 20-18 makes no allowance for churches to hold services with 10 or more non-performing congregants while practicing social distancing protocol. Without explanation, however, EO 20-18 allows libraries, shopping malls, restaurants, and bars to remain open to unlimited amounts of individuals as long as social distancing protocol is followed.
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In her public comments when issuing EO 20-18, the governor stated that three of eleven “clusters” of COVID-19 infections in the state had been traced to religious gatherings.8 However, she made no attempt to explain the particular local circumstances or conditions (e.g. urban, rural, size of gathering, type of religious gathering, worship service, informal social gathering, etc.) surrounding such “clusters,” whether social distancing protocol had been followed at such gatherings, or whether any of the facility conditions unique to churches were known to have contributed to the cluster outbreaks.
B. The State’s order is a plain, palpable invasion of Plaintiffs’ constitutional rights.
The State’s church-closure order precludes Plaintiffs from assembling and worshiping together with more than 10 non-performing congregants, even if ALL social distancing and public health recommendations of KDHE and local county orders are followed. For the reasons discussed in this motion, the State’s order is a plain, palpable invasion of constitutional rights.
C. The State’s decision to shut down Plaintiffs’ church services is arbitrary and oppressive.
EO 20-18 is beyond unreasonable—it is arbitrary and oppressive. Churches and religious gatherings were specifically targeted. The closure order includes particularized language clarifying the broad ban on church gatherings of over 10 people. The closure order goes to particular lengths to ban gatherings of congregants and parishioners within the same building or confined or enclosed space. It makes a limited exception to the 10-person limit solely for persons performing a religious service but makes no attempt to explain or justify its blanket prohibition, even if social distancing is practiced.
8 Shorman, supra note 1.
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EO 20-18’s arbitrary and oppressive targeting of churches can also be clearly seen when compared to the Governor’s previous mass gathering order, EO 20-14, in which religious gatherings were categorically exempt from the mass gathering prohibition “as long as attendees can engage in appropriate social distancing.”
Notably, the allowance for persons to gather in particular contexts was carried over from EO 20-14 to EO-18 for libraries with no express requirement that such persons do so only if they can “engage in appropriate social distancing.” Under EO 20-18, persons can gather in shopping malls and retail establishments “where large numbers of people are present but are generally not within arm’s length of one another for more than 10 minutes.” Under EO 20-18, as under EO 20-14, persons can gather at restaurants and bars provided only that the facilities “preserve social distancing of 6 feet between tables, booths, bar stools, and ordering counters; and cease self-service of unpackaged food, such as in salad bars or buffets.”
None of these particularized conditions expressly allowed for libraries, shopping malls, restaurants, or bars are available to Plaintiffs when gathering with their congregations. For churches, there is only a blanket ban on 10 or more non-performing attendees.
Criminalizing religious gatherings without regard to local conditions or the presence of adequate social distancing protocol does not further the interest at hand, and more importantly here, is unconstitutional. III. Plaintiffs have already suffered irreparable harm and will continue to suffer
irreparable harm without an injunction. The Supreme Court recognizes that the deprivation of “First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). Plaintiffs’ constitutional rights have been violated by the State and will continue to be violated absent immediate relief.
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IV. The balance of equities sharply favors Plaintiffs. The equities favor Plaintiffs because the law places a premium on protecting
constitutional rights. The State’s church-closure order irreparably harms Plaintiffs’ constitutional freedoms and significantly hinders their ministry to their parishioners and community. Meanwhile, an injunction will not harm the State at all. The State can achieve any valid interest through other orders already issued. It need not apply an unconstitutional order targeting churches. State and local health officers can subject known persons and “clusters” to orders of isolation and quarantine. The State is free to enact permissible and reasonable regulations on church services, including narrowly-tailored social distancing and gathering conditions precedent. But a flat ban on more than 10 non-performing attendees serves no governmental interest and is not narrowly tailored.
V. An injunction would serve the public interest. “[I]t is always in the public interest to prevent the violation of a party’s constitutional
rights.” Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1145 (10th Cir. 2013), aff'd’ sub nom. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014) (quotations omitted). This is particularly true for First Amendment freedoms. Because the requested injunction will accomplish this, the public interest also favors an order protecting Plaintiffs.
CONCLUSION Plaintiffs First Baptist Church, Pastor Stephen Ormord, Calvary Baptist Church, and Pastor Aaron Harris respectfully request that this Court grant their request for a Temporary Restraining Order, allowing them to continue their in-person, indoor church services with ten or more non-performing people while practicing adequate social distancing and public health protocol.
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Respectfully submitted this 17th day of April 2020.

/s/ Tyson C. Langhofer Tyson C. Langhofer KS Bar No. 19241 ALLIANCE DEFENDING FREEDOM 20116 Ashbrook Place, Suite 250 Ashburn, VA 20147 Telephone: (316) 265-8800 tlanghofer@ADFlegal.org

/s/ Joshua A. Ney Joshua A. Ney, KS Bar No. 24077 NEY LAW FIRM, LLC 900 S. Kansas Ave., Ste. 402B Topeka, KS 66612 Telephone: (785) 414-9065 josh@joshney.com

David A. Cortman* GA Bar No. 188810 ALLIANCE DEFENDING FREEDOM 1000 Hurricane Shoals Rd. NE Suite D-1100 Lawrenceville, GA 30043 Telephone: (770) 339-0774
dcortman@ADFlegal.org
Ryan J. Tucker* AZ Bar No. 034382 ALLIANCE DEFENDING FREEDOM 15100 N. 90th St. Scottsdale, AZ 85260 Telephone: (480) 444-0020
rtucker@ADFlegal.org

/s/ Ryan A. Kriegshauser Ryan A. Kriegshauser KS Bar No. 23942 KRIEGSHAUSER LAW LLC 15050 W. 138th St., Unit 4493 Olathe, KS 66063 Telephone: (913) 303-0639 ryan@kriegshauserlaw.us

Attorneys for Plaintiffs *Admission for Pro Hac Vice forthcoming.

19

Case 6:20-cv-01102-JWB-GEB Document 7 Filed 04/17/20 Page 24 of 24 CERTIFICATE OF SERVICE
I hereby certify that on April 17, 2020, a courtesy copy of this motion was delivered to counsel for Governor Laura Kelly.
/s/ Tyson C. Langhofer Tyson C. Langhofer KS Bar No. 19241 ALLIANCE DEFENDING FREEDOM 20116 Ashbrook Place, Suite 250 Ashburn, VA 20147 Telephone: (480) 388-8205 tlanghofer@ADFlegal.org
20

 
 Case 6:20-cv-01102-JWB-GEB Document 9 Filed 04/17/20 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

FIRST BAPTIST CHURCH;

)

PASTOR STEPHEN ORMORD;

)

CALVARY BAPTIST CHURCH;

)

PASTOR AARON HARRIS

)

Plaintiffs,

)

)

)

)

)

GOVERNOR LAURA KELLY,

)

in her official capacity,

)

)

Defendant.

)

____________________________________)

Case No. 6:20-cv-01102-JWB-GEB

MOTION TO DISMISS Governor Laura Kelly, by and through counsel Pedro L. Irigonegaray, of Irigonegaray, Turney, & Revenaugh, L.L.P., and Lumen N. Mulligan, Attorney at Law, moves for dismissal of Plaintiff’s cause of action as moot under Rule 12(b)(1) of the Federal Rules of Civil Procedure. In support of her motion, Governor Kelly states: 1. On April 16, 2020, Plaintiff’s filed this lawsuit challenging the constitutionality of
Executive Order 20-18. Executive Order 20-18 is attached as Exhibit 1. 2. On April 16, 2020, Governor Kelly’s administration advised Plaintiffs’ counsel she
was preparing an Executive Order revising the mass gathering prohibitions of Executive Order 20-18. 3. Governor Kelly signed Executive Order 20-25 on April 17, 2020. 4. Executive Order 20-25 rescinded and replaced Executive Order 20-18. Executive Order 20-25 is attached as Exhibit 2.

Case 6:20-cv-01102-JWB-GEB Document 9 Filed 04/17/20 Page 2 of 2
5. Since Executive Order 20-18 has been rescinded, Plaintiffs’ lawsuit is moot.
WHEREFORE, Governor Kelly respectfully requests this Court dismiss this action as
moot.
Respectfully submitted,
/s/ Pedro L. Irigonegaray Pedro L. Irigonegaray, #08079 J. Bo Turney, #26375 Jason A. Zavadil, #26808 Irigonegaray, Turney, & Revenaugh, L.L.P. 1535 S.W. 29th Street Topeka, Kansas 66611 (785) 267-6115 Office (785) 267-9458 Fax pedro@itrlaw.com bo@itrlaw.com jason@itrlaw.com
/s/ Lumen N. Mulligan Lumen N. Mulligan, #21337 Attorney at Law 1616 Indiana St. Lawrence, KS 66044 T: 785-691-9367 F: 785-691-9362 lumenmulligan1973@gmail.com
Certificate of Service
I, the undersigned, hereby certify that I electronically filed the foregoing Motion to dismiss with the Clerk of the Court by using the CM/ECF system, which will send a notice of electronic filing to counsel of record.
/s/ Pedro L. Irigonegaray Pedro L. Irigonegaray

 
 Case 6:20-cv-01102-JWB-GEB Document 14 Filed 04/18/20 Page 1 of 19

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

FIRST BAPTIST CHURCH; PASTOR STEPHEN ORMORD; CALVARY BAPTIST CHURCH; and PASTOR AARON HARRIS,
Plaintiffs,
v.
GOVERNOR LAURA KELLY, in her official capacity,
Defendant.

No. 20-1102-JWB

MEMORANDUM AND ORDER This matter is before the court on Plaintiffs’ “Motion for Expedited Hearing and Motion for Temporary Restraining Order.” (Doc. 7.) The motion was filed in conjunction with Plaintiffs’ verified complaint (Doc. 1), which alleges that enforcement of restrictions on religious activity in Defendant Governor Laura Kelly’s Executive Order (“EO”) 20-18 would violate Plaintiffs’ rights, including their First Amendment right to the free exercise of religion. The complaint seeks declaratory and injunctive relief pursuant to 42 U.S.C. § 1983, as well as relief under state law. The court held a telephonic hearing on the motion for temporary restraining order (“TRO”) on April 17, 2020, at 4:00 p.m. Prior to the hearing, Defendant filed a motion to dismiss, arguing the claims are moot because Governor Kelly signed EO 20-25 on April 17, 2020. (Doc. 9.) EO 20-25 alters some of the state-imposed restrictions on public activities, and it states in part that EO 20-18 “is rescinded

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and replaced by this order” as of the effective date of April 18, 2020, at 12:01 p.m.” (Doc. 9-2 at 5.)
For the reasons stated herein, Defendant’s motion to dismiss (Doc. 9) is DENIED and Plaintiffs’ motion for a temporary restraining order (Doc. 7) is GRANTED.
The Governor has issued a series of executive orders imposing restrictions on numerous public and private activities in light of the COVID-19 pandemic. For example, on March 17, 2020, the Governor signed EO 20-04, which among other things prohibited “mass gatherings” in the State of Kansas. The term was defined to include any public or private convening that brings together 50 or more people in a confined or enclosed space. The prohibition was expressly applied to mass gatherings at auditoriums, theaters, stadiums, and a number of other venues. The order contained a substantial list of activities or facilities that were exempt from the prohibition, including “Religious gatherings, as long as attendees can engage in appropriate social distancing.” Another order issued the same day (EO 20-07) closed public and private schools in Kansas. On March 24, 2020, the Governor issued EO 20-14, which prohibited mass gatherings of more than 10 people. The exemption for religious gatherings was maintained intact “as long as attendees can engage in appropriate social distancing.” Also, on March 24, 2020, the Governor issued EO 2015 establishing the Kansas Essential Functions Framework (“KEFF”), which identified essential functions that must be exempted from any “stay-at-home” order issued by local authorities. The essential functions identified in the order included a wide array of things, including “Preserve Constitutional Rights.”
On March 27, 2020, the Governor signed EO 20-16, which adopted a statewide “stay-athome” order directing all Kansas citizens to stay at home unless they were performing “an essential activity.” (Doc. 1-3 at 3.) The order exempted individuals performing listed essential functions
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from the prohibitions in the order, although it still required them, to the extent possible without significant disruption to essential functions, to use tele-working or, if meeting in person, to follow appropriate safety protocols, including maintaining a 6-foot distance between individuals. (Id. at 5.) The order restated and refined the KEFF essential functions. The essential function of preserving constitutional rights was expanded to include several items, including “Perform or attend religious or faith-based services or activities.” (Id. at 7.)
On April 7, 2020, five days before Easter, the Governor issued EO 20-18. It found enhanced measures were needed to slow the spread of COVID-19, and it made certain changes to existing prohibitions. In the provision listing venues to which the prohibition on “mass gatherings” applies, the order included for the first time “churches or other religious facilities” among the previously listed auditoriums, theaters, stadiums, and other venues. The order then adopted the following specific restriction on religious activities:
With regard to churches or other religious services or activities, this order prohibits gatherings of more than ten congregants or parishioner in the same building or confined or enclosed space. However, the number of individuals – such as preachers, lay readers, choir or musical performer, or liturgists – conducting or performing a religious service may exceed ten as long as those individuals follow appropriate safety protocols, including maintaining a six-foot distance between individuals and following other directive regarding social distancing, hygiene, and other efforts to slow the spread of COVID-19. (Doc. 1-1 at 3.) The order restricted a number of other activities as well, but it also maintained a long list of activities and facilities that were exempt from the prohibitions in the order. The exempted activities and facilities included most governmental operations. The list of exemptions also included, among others: airports; childcare locations; hotels; food pantries and shelters; detoxification centers; shopping malls “and other retails establishments where large numbers of people are present but are generally not within arm’s length of one another for more than 10 minutes”; libraries; restaurants, bars, and retail food establishments (including grocery stores),
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provided social distancing of 6 feet was maintained; office spaces; “manufacturing, processing, distribution, and production facilities”; public transportation; and job centers.
Plaintiffs filed this action on April 16, 2020, after sending a letter to the Governor asking that allowance be made for churches to hold in-person worship services provided the congregants follow rigorous social-distancing and safety protocols applicable to similar secular facilities. (Doc. 1 at 5.) The Governor’s counsel responded that the matter was under review and that an order would be issued soon. (Id.) On April 17, 2020, the Governor signed EO 20-25, which did not alter the restriction on religious activities, but which removed certain items (such as libraries) from the exempted functions or facilities, and it placed additional restrictions on some of the exempted activities. Among other things, it limited the exemption for retail establishments where large numbers of people were present to customers and employees that are “performing essential activities or essential functions under Executive Order 20-16.” Restaurants and bars were limited to no more than ten customers in the building, who must maintain a six-foot distance, but it allowed the number of persons operating the facility to exceed ten if they maintained safety protocols. Office spaces were still exempt but were limited to those “performing essential activities or functions as described and limited by Executive Order 20-16.” (Doc. 9-2.)
I. Jurisdiction This court has subject matter jurisdiction over Plaintiffs’ claims arising under federal law pursuant to 28 U.S.C. § 1331. The court further finds the exercise of this court’s jurisdiction over such claims is proper under the rule of Ex Parte Young, 209 U.S. 123 (1908) (plaintiff alleging violation of federal law may seek prospective injunctive relief against responsible state official).1 As for Defendant’s mootness argument, the court finds Plaintiffs’ claims are not moot. Mootness
1 This order is premised solely on Plaintiffs’ federal law claims and does not consider Plaintiffs’ claim that enforcement of Executive Order 20-18 violates Kansas law. (Doc. 1 at 14-15.)
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is a threshold issue because the existence of a live case or controversy is a constitutional prerequisite to federal court jurisdiction. Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1109 (10th Cir. 2010) (citation omitted.) “Article III's requirement that federal courts adjudicate only cases and controversies necessitates that courts decline to exercise jurisdiction where the award of any requested relief would be moot—i.e. where the controversy is no longer live and ongoing.” Cox v. Phelps Dodge Corp., 43 F.3d 1345, 1348 (10th Cir. 1994), superseded by statute on other grounds. In this instance, the controversy between the parties is ongoing, as the restrictions on religious activities in newly executed EO 20-25 (Doc. 9-2) are identical to the restrictions on religious activities found in EO 20-18, which formed the basis of the complaint. Plaintiffs have made a sufficient showing that a live controversy exists as to whether the Governor’s current restrictions on religious activity – found in both EO 20-18 and EO 20-25 – violate Plaintiffs’ First Amendment right to freely exercise their religion. The court thus concludes that it has jurisdiction over the dispute, and that Defendant’s motion to dismiss on mootness grounds (Doc. 9) should be denied.
II. Standards for issuance of a TRO When addressing a motion for temporary restraining order, the court applies the same standard as it applies to a motion for preliminary injunction. Four factors must be shown by the movant to obtain injunctive relief: (1) the movant is substantially likely to succeed on the merits; (2) the movant will suffer irreparable injury if the injunction is denied; (3) the movant’s threatened injury outweighs the injury the opposing party will suffer under the injunction; and (4) the injunction is in the public interest. Because a preliminary injunction is an extraordinary remedy, the movant’s right to relief must be clear and unequivocal. Tickets for Less, LLC v. Cypress Media, LLC, No. 20-2047-JAR-GEB, 2020 WL 528449, at *2 (D. Kan. Feb. 3, 2020). See also Winter v.
5

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Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). “Additionally, some preliminary injunctions are disfavored and require a stronger showing by the movant—viz., movants must satisfy a heightened standard. They are ‘(1) preliminary injunctions that alter the status quo; (2) mandatory preliminary injunctions; and (3) preliminary injunctions that afford the movant all the relief that it could recover at the conclusion of a full trial on the merits.’” Fish v. Kobach, 840 F.3d 710, 723– 24 (10th Cir. 2016) (citation omitted.) “In seeking such an injunction, the movant must make a strong showing both with regard to the likelihood of success on the merits and with regard to the balance of harms.” Id. (citation and internal quotation marks omitted.)
III. Analysis A. Status quo. Defendant argued at the hearing that Plaintiffs’ requested TRO should be denied because it would alter the status quo. The “status quo” in this context refers to “the last peaceable uncontested status existing between the parties before the dispute developed.” Hobby Lobby Stores, Inc. v. Sebelius, No. 12-6294, 2012 WL 6930302, at *1 (10th Cir. Dec. 20, 2012) (citing Beltronics USA, Inc. v. Midwest Inventory Distrib., LLC, 562 F.3d 1067, 1071 (10th Cir. 2009)). The last peaceable uncontested status between the parties was just prior to the enactment of EO 20-18, the first order which subjected Plaintiffs to the current restrictions on religious activities. Because the requested TRO would return the parties to that uncontested status, it would not alter the status quo and is not a disfavored injunction. See Free the Nipple-Fort Collins v. City of Fort Collins, Colorado, 916 F.3d 792, 798 (10th Cir. 2019) (the status quo was the parties’ status before the challenged ordinance was adopted.) B. Likelihood of success on the merits. To prevail on a claim under 42 U.S.C. § 1983, a plaintiff must show the deprivation of a federal right by a person acting under color of state law. The First Amendment provides in part
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that “Congress shall make no law … prohibiting the free exercise” of religion. U.S. Const. amend. I. The First Amendment applies to the States by virtue of the Fourteenth Amendment. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 301 (2000). Plaintiffs claim, among other things, that the restrictions on religious activity imposed by EO 20-18 (and now 20-25) violate Plaintiffs’ First Amendment right to freely exercise their religion, including their right to attend worship services in their respective church facilities. For reasons that follow, the court concludes, based on the matters presented so far, that Plaintiffs are likely to prevail on this claim.
i. Standard of review. The parties dispute the standard that applies to the court’s review of the Governor’s executive orders. At the hearing on the TRO, Defendant asserted that these executive orders are not subject to heightened scrutiny because they do not target religious activity, but instead apply broadly to a large swath of both secular and non-secular behavior. The court assumes Defendant is suggesting that this case is controlled by the less rigorous standards for review set forth in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). However, Smith was an unemployment case in which the plaintiff was denied unemployment benefits because he was fired for violating a generally applicable statute criminalizing the use of peyote, a hallucinogenic drug. Smith claimed that the government’s decision violated his rights under the Free Exercise Clause of the First Amendment. Id. at 874.
The statute at issue in Smith was a facially neutral law that criminalized the use of certain drugs that was “not specifically directed at [Smith’s] religious practice, and that is concededly constitutional as applied to those who use the drug for other reasons.” Id. at 878. The Supreme Court stated that it has never excused an individual “from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.” Id. at 879 (emphasis added). But the executive orders at issue in this case expressly restrict religious activity. Indeed, a fair reading of
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EO 20-18 and EO 20-25 shows that they operate as a wholesale prohibition against assembling for religious services anywhere in the state by more than ten congregants. While it is unclear at this stage of the proceedings exactly how many churches may be impacted by that proscription, it is fair to say that these executive orders will likely impact the majority of churches and religious groups in Kansas. Thus, EO 20-18 and EO 20-25 sweep far beyond the “incidental effect” on religious activity excused in Smith. Id.; see also Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993) (noting Smith’s application to incidental burdening of particular religious practices).
At the TRO hearing, Defendant also relied heavily on In re Abbott, No. 20-50264, 2020 WL 1685929 (5th Cir. Apr. 7, 2020), a case recently decided by the Fifth Circuit. In Abbott, the Fifth Circuit upheld an executive order issued by the governor of Texas that required healthcare providers to postpone non-essential surgeries and procedures during the COVID-19 pandemic in order to conserve critical medical resources and otherwise curb the spread of coronavirus infection. Plaintiffs in that case claimed that the executive order infringed the constitutional right to abortion. However, unlike the present case, the executive order at issue in Abbott made no mention of abortion or other constitutionally protected activity. Id. at *3.
Abbott relied heavily on Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), a case challenging a Massachusetts law that mandated smallpox vaccinations when the state was battling that disease. Abbott quoted Jacobson for propositions such as “‘[U]nder the pressure of great dangers,’ constitutional rights may be reasonably restricted ‘as the safety of the general public may demand’” Abbott at *1 (quoting Jacobson 197 U.S. at 29); “[b]ut ‘[i]t is no part of the function of a court’ to decide which measures are ‘likely to be the most effective for the protection of the public against disease’” Id. (quoting Jacobson, 197 U.S. at 30); and
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[I]n every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.
Id. at *6 (quoting Jacobson, 197 U.S. at 29). Abbott concluded its analysis, as relevant here, as
follows:
The bottom line is this: when faced with a society-threatening epidemic, a state may implement emergency measures that curtail constitutional rights so long as the measures have at least some “real or substantial relation” to the public health crisis and are not “beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” [Jacobson, 197 U.S.] at 31, 25 S. Ct. 358. Courts may ask whether the state’s emergency measures lack basic exceptions for “extreme cases,” and whether the measures are pretextual—that is, arbitrary or oppressive. Id. at 38, 25 S. Ct. 358. At the same time, however, courts may not second-guess the wisdom or efficacy of the measures. Id. at 28, 30, 25 S. Ct. 358.
Id. at *7.
Abbott’s reliance on Jacobson counsels further analysis of that case. Jacobson, like Abbott,
involved a facially neutral law, which required vaccination for smallpox. The issue in that case
did not involve the free exercise of religion, but rather a claim that the law invaded an individual’s
liberty “to care for his own body and health in such way as to him seems best,” as protected by the
Fourteenth Amendment. Jacobson, 197 U.S. at 26. And although it did not deal with a question
of religious liberty, Jacobson appears more in line with Smith in the sense that law at issue in
Jacobson did not expressly purport to interfere with rights secured by the Constitution. In
concluding that no constitutional violation occurred under the Massachusetts law, Jacobson said,
Smallpox being prevalent and increasing at Cambridge, the court would usurp the functions of another branch of government if it adjudged, as matter of law, that the mode adopted under the sanction of the state, to protect the people at large was arbitrary, and not justified by the necessities of the case. We say necessities of the case, because it might be that an acknowledged power of a local community to protect itself against an epidemic threatening the safety of all might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons.
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Id. at 28. Importantly, the second sentence of the foregoing quote points out that, even in such extreme cases as a public health crisis, the police power of the state is not without limits, and is subject to appropriate judicial scrutiny. And,
if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution. Id. at 28. At the TRO hearing, both sides argued most extensively about the application of the Supreme Court’s decision in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993). In that case, the City of Hialeah passed several facially neutral ordinances aimed at curbing the practice of animal sacrifice that was central to the religious practice of the Santeria religion. The Church of the Lukumi Babalu Aye, Inc., and its congregants practiced the Santeria religion and had recently announced plans to establish a church facility in Hialeah, Florida. Shortly thereafter, Hialeah’s city council called an emergency meeting and began enacting a series of ordinances that prohibited animal sacrifices and animal cruelty, and threatened those who violated the ordinances with criminal prosecution. The ordinances purported to extend these prohibitions to the killing of animals for food, but then carved out exemptions for slaughterhouses and other licensed establishments that killed animals for food purposes. Lukumi, 508 U.S. at 528. The Supreme Court ultimately concluded that the object of these ordinances was to target the Santeria church members. Id. at 535. The Court began its analysis of the claims in Lukumi with the proposition from Smith that “a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.” Id. at 531. However, “if the object of a law is to infringe upon or restrict practices
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because of their religious motivation, the law is not neutral, . . . and it is invalid unless it is justified by a compelling interest and is narrowly tailored to advance that interest.” Id. at 533. The neutrality analysis begins with the text of the law, itself, and the law “lacks facial neutrality if it refers to a religious practice without a secular meaning discernable from the language or context.” Id.
In this case, EO 20-18 and EO 20-25 expressly purport to restrict in-person religious assembly by more than ten congregants. In that sense, they are not facially neutral. Defendant asserts that despite the express restrictions imposed on religious assembly, the laws are facially neutral because they apply as well to a much broader swath of secular activity in addition to the overt limitations placed on church gatherings. Nevertheless, while these executive orders begin with a broad prohibition against mass gatherings, they proceed to carve out broad exemptions for a host of secular activities, many of which bear similarities to the sort of personal contact that will occur during in-person religious services. Lukumi indicates that a court should evaluate these exemptions in assessing a law’s neutrality. See Lukumi, 508 U.S. at 535-37.
The court pauses its analysis at this point to circle back to the initial question of what standard is to be applied in evaluating Plaintiffs’ claims under the Free Exercise Clause. Unsurprisingly, the parties have failed to identify any controlling authority for evaluating a wholesale prohibition on in-person religious services like that at issue in this case. Under ordinary circumstances, it goes without saying that the government could not lawfully expressly prohibit individuals from meeting together for religious services. Accordingly, the leading cases tend to address facially neutral laws that burden religious beliefs, or restrictions that explicitly or implicitly target particular religious groups or practices. Based on the relatively unique circumstances herein presented, the court concludes that Smith, Abbott, Jacobson, and similar
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cases do not provide the best framework in which to evaluate the Governor’s executive orders because all those cases deal with laws that are facially neutral and generally applicable.
The court concludes that Lukumi, though not identical, provides the most appropriate framework to evaluate this case. The ordinances at issue in Lukumi, though facially neutral in some respects, contained elements that were clearly targeted at religious practices, such as the prohibitions on ritual sacrifices. And although Lukumi dealt with laws that the Court concluded were ultimately aimed at a particular religious group, the court does not think that the Supreme Court would have excused the First Amendment violations in that case if the offending provisions had been part of a broader set of laws that did nothing to diminish the religious animus that was both explicit and implicit in the provisions targeting the church. Based on the foregoing reasoning, the court will evaluate Plaintiffs’ claims under the Free Exercise Clause according to the principles set forth in Lukumi.
“At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons.” Lukumi, 508 U.S. at 532. “A law lacks facial neutrality if it refers to a religious practice without a secular meaning discernable from the language or context.” Id. at 533.
In evaluating neutrality, courts are admonished to “survey meticulously the circumstances of governmental categories to eliminate, as it were, religious gerrymanders,”2 Lukumi, 508 U.S. 534, and, in particular, to consider in that context exceptions or exemptions granted to secular activity that are not extended to religious activity. See id.at 535-37. When “individualized
2 At the TRO hearing, the court indicated it did not perceive that this was necessarily a religious gerrymandering case. However, upon further analysis, the principles explained in Lukumi indicate that the court should consider the effect of the exemptions in these executive orders when evaluating neutrality.
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exemptions from a general requirement are available, the government ‘may not refuse to extend that system to cases of ‘religious hardship’ without compelling reason.’” Id. at 537 (quotation omitted).
In addition to neutrality, the Free Exercise Clause requires that “laws burdening religious practice must be of general applicability.” Lukumi, 508 U.S. at 542. “The principle that government, in pursuit of legitimate interests, cannot in a selective manner impose burdens only on conduct motivated by religious belief is essential to the protection of the rights guaranteed by the Free Exercise Clause.” Id. at 543. A law is underinclusive, and thus not generally applicable, when it fails to prohibit secular activity that endangers the same interests to a similar or greater degree than the prohibited religious conduct. Id.
A law that fails to satisfy the requirements of neutrality and general applicability is subjected to strict scrutiny. Id. at 546. “To satisfy the commands of the First Amendment, a law restrictive of religious practice must advance interests of the highest order and must be narrowly tailored in pursuit of those interests.” Id. (internal quotations omitted). When “[t]he proffered objectives are not pursued with respect to analogous non-religious conduct, and those interests could be achieved by narrower ordinances that burdened religion to a far lesser degree,” a lack of narrow tailoring invalidates the law. Id.
ii. Application to this Case. EO 20-18 and EO 20-25 both state that their prohibitions against mass gatherings apply to “churches or other religious facilities.” (EO 20-18 ¶1.b; EO 20-25 ¶1.b). Both orders expressly state in their respective paragraphs 1.c that “[w]ith regard to churches or other religious services or activities, this order prohibits gatherings of more than ten congregants or parishioners in the same building or confined or enclosed space [with exceptions for additional individuals conducting
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the service].” These provisions show that these executive orders expressly target religious gatherings on a broad scale and are, therefore, not facially neutral.
Given the circumstances, Plaintiffs have made a substantial showing that development of the current restriction on religious activities shows religious activities were specifically targeted for more onerous restrictions than comparable secular activities. The Governor previously designated the attendance of religious services as an “essential function” that was exempt from the general prohibition on mass gatherings. That designation has not been rescinded or modified, yet in EO 20-18 and EO 20-25 churches and religious activities appear to have been singled out among essential functions for stricter treatment. It appears to be the only essential function whose core purpose – association for the purpose of worship – had been basically eliminated.3 For example, the secular facilities that are still exempt from the mass gathering prohibition or that are given more lenient treatment, despite the apparent likelihood they will involve mass gatherings, include airports, childcare locations, hotels, food pantries and shelters, detoxification centers, retail establishments (subject to the distancing and “essential function” purpose noted above), retail food establishments, public transportation, job centers, office spaces used for essential functions, and the apparently broad category of “manufacturing, processing, distribution, and production facilities.” As Plaintiffs point out, the exemption for office spaces is broad enough to include such activities as providing real estate services.
The legitimate health and safety concerns arising from people attending religious services inside a church would logically be present with respect to most if not all these other essential
3 As Defendant points out, restaurants and bars were subjected to increased restrictions in EO 20-25, including the prohibition on mass gatherings. The order adopted an exemption that allowed the number of employees operating such facilities to exceed ten, provided they maintained safety protocols. (Doc. 9-2 at 4.) This restriction is arguably comparable to the restriction imposed on religious activity, but it appears to be the only essential function other than religious activities on which such a restriction was imposed. The order allows restaurant and bar facilities to continue takeout and delivery services.
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Case 6:20-cv-01102-JWB-GEB Document 14 Filed 04/18/20 Page 15 of 19
activities. Defendant has not argued that mass gatherings at churches pose unique health risks that do not arise in mass gatherings at airports, offices, and production facilities. Yet the exemption for religious activities has been eliminated while it remains for a multitude of activities that appear comparable in terms of health risks. Based on the record now before the court, the most reasonable inference from this disparate treatment is that the essential function of religious activity was targeted for stricter treatment due to the nature of the activity involved, rather than because such gatherings pose unique health risks that mass gatherings at commercial and other facilities do not, or because the risks at religious gatherings uniquely cannot be adequately mitigated with safety protocols.4 It is also an arbitrary distinction, in the sense that the disparity has been imposed without any apparent explanation for the differing treatment of religious gatherings. These facts undermine Defendant’s contentions and lead the court to conclude that EO 20-18 and EO 20-25 are not neutral laws of general applicability. Instead, they restrict religious practice while failing to “prohibit secular activity that endangers the same interests to a similar or greater degree.” As such, the restriction is likely subject to strict scrutiny, and can be sustained only if it is narrowly tailored to further the compelling state interest in slowing or halting the spread of COVID-19.
On the current record, Plaintiffs are likely to prevail on their assertion that the restriction on religious mass gatherings is not narrowly tailored. Specifically, Plaintiffs point to a number of other secular mass gathering activities or locations that merely require certain safety protocols, including social distancing. Given the similarities of physical proximity between these “essential” secular gathering and Plaintiffs’ religious gatherings (which are also deemed essential under EO 20-16), the court finds that Plaintiffs can likely show that the broad prohibition against in-person
4 At the TRO hearing, it was represented that a total of 35 COVID-19 clusters have been identified in Kansas, with 5 of those being attributable to churches. It was also represented that 13 of the clusters resulted at private companies, including a recent increase of 9 such clusters. No information was presented as to whether the clusters involving churches arose with or without the use any safety protocols such as social distancing.
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religious services of more than ten congregants is not narrowly tailored to achieve the stated public health goals where the comparable secular gatherings are subjected to much less restrictive conditions. For that reason, and for the reasons previously stated, Plaintiffs have shown they are likely to succeed on the merits of their claim alleging a violation of their First Amendment right to the free exercise of religion.
C. Irreparable harm. To obtain a TRO, Plaintiffs must show they will suffer irreparable harm in the absence of the order. Winter, 555 U.S. at 20. The Supreme Court has recognized that “the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). Plaintiffs have alleged that without a TRO, they will be prevented from gathering for worship at their churches this Sunday, April 19, 2020 and thereafter. The court concludes Plaintiffs have made a sufficient showing of irreparable harm.
D. Balance of the equities. Plaintiffs must also show that the balance of equities tips in their favor. Winter, 555 U.S. at 20. Plaintiffs have shown that they will be harmed by a deprivation of the constitutional right to freely exercise their religion, and that they face a threat of criminal penalties if they violate the current restrictions in EO 20-25. The court recognizes that the current pandemic presents an unprecedented health crisis in Kansas, and in this country. The Governor has an immense and sobering responsibility to act quickly to protect the lives of Kansans from a deadly epidemic. The court would not issue any restraint, temporary or otherwise, if the evidence showed such action would substantially interfere with that responsibility. Plaintiffs have shown, however, that they are willing to abide by protocols that have been determined by the Governor to be adequate to protect the lives of Kansans in the context of other mass gatherings. In view of that, and in view of the fact that a preliminary injunction hearing has been promptly scheduled for
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April 23, 2020, the court concludes that the balance of equities weighs in favor of granting a TRO, pending the preliminary injunction hearing, to permit Plaintiffs to engage in worship services under the conditions stated in this order.
E. Public interest. Lastly, to obtain a TRO, Plaintiffs must show that the granting of a TRO is in the public interest. Winter, 555 U.S. at 20. The public interest is furthered by preventing the violation of a party’s constitutional rights. Free the Nipple, 916 F.3d at 807. Additionally, for the reasons previously mentioned, the record shows that allowing Plaintiffs to gather for worship with the safety protocols similar to those applicable to other essential function mass gatherings is consistent with the interest in protecting public health.
F. Security. After considering the nature of the constitutional claim presented, and the absence of harm to Defendant from a temporary return to the status quo, the court determines that no security should be required for the issuance of the TRO. Cf. Fed. R. Civ. P. 65(c).
G. Scope of the TRO. Given the limited record before the court at this stage of the proceedings, and the gravity of the issues involved, the court is somewhat hesitant to simply say that Plaintiffs are free to conduct their religious services using the same social distancing and protective measures specified in the executive orders for similar exempt activities. In particular, Defendant has not had the opportunity to put on evidence that might support stricter safety measures for religious services. At the TRO hearing, Plaintiffs set forth specific plans for social distancing and safety precautions that appear to exceed the general requirements for similar exempt activities under EO 20-25. Until the court has an opportunity to hear evidence on these matters, the terms of the TRO will require Plaintiffs to comply with their proposed measures. Specifically,
First Baptist Church of Dodge City will adhere to the following:  Prior to and following the in-person service, the facility will be deep-cleaned;  Invitations will be directed to regular church attendees for this in-person service;
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 Individuals will be advised to continue to engage in “stay at home” protocols as directed by EO 20-16 in order to attend the service;
 No church members are known to have had any contact with known COVID-19 confirmed cases;
 Attendees will be advised to perform temperature checks at home on all attendees prior to attending the service. Individuals that are ill or have fevers will not attend;
 High-risk individuals will be advised not to attend the in-person service;  Attendees will be advised to bring their own PPE, including masks and gloves;  Attendees will be advised not to engage in hand shaking or other physical contact;  Hand sanitizer will be available for use throughout the facility;  The in-person service will be limited to 50 individuals in a space that has a capacity for
300 individuals (a cross-shaped auditorium 50 feet by 74 feet at the center; 2,950 square feet total, allowing almost 57 square feet available to each attendee at maximum social distancing);  Co-habitating family units may sit closer together but otherwise the maximum social distancing possible will be used, however, at a minimum, the CDC recommended protocol will be observed with a minimum distance of at least 6 feet;  A single point of entry and single point of exit on opposite sides of the building will be used, establishing a one-way traffic pattern to ensure social distancing;  Ventilation will be increased as much as possible, opening windows and doors, as weather permits;  These procedures will be communicated to church members in advance of the service;  Church bulletin and offering plates will not be used during the service;  Attendees will be advised to wash their clothes following the service;  If Church leadership becomes aware of a clear, immediate, and imminent threat to the safety of the attendees or cannot follow the protocols listed above, the gathering will be immediately disbanded.
Calvary Baptist Church of Junction City will adhere to the following:
 Splitting out pews and marking designated sitting areas to keep non-cohabitating congregants at least six feet apart before, during, and after the worship service;
 Marking multiple entrances to encourage socially distanced foot traffic;  Propping doors open to prevent the need for congregants to touch doors while
entering and exiting the church or sanctuary;  Suspending passing offering plates and bulletins;  Actively discouraging handshaking or other social touching;  Offering hand sanitizer throughout the building;  Providing face masks to offer to any interested persons.
(See Doc. 1 at 8-11.)
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Case 6:20-cv-01102-JWB-GEB Document 14 Filed 04/18/20 Page 19 of 19 IV. Conclusion Defendant’s motion to dismiss the complaint (Doc. 9) is DENIED. Plaintiffs’ motion for
a temporary restraining order (Doc. 7) is GRANTED. The court will file a separate order containing the terms of the TRO.
A hearing on Plaintiffs’ request for a preliminary injunction is scheduled for April 23, 2020, at 9:00 a.m.
_____s/ John W. Broomes__________ JOHN W. BROOMES UNITED STATES DISTRICT JUDGE
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 Case 6:20-cv-01102-JWB-GEB Document 15 Filed 04/18/20 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

FIRST BAPTIST CHURCH; PASTOR STEPHEN ORMORD; CALVARY BAPTIST CHURCH; and PASTOR AARON HARRIS,
Plaintiffs,
v.
GOVERNOR LAURA KELLY, in her official capacity,
Defendant.

No. 20-1102-JWB

TEMPORARY RESTRAINING ORDER This matter is before the court on Plaintiffs’ “Motion for Expedited Hearing and Motion for Temporary Restraining Order.” (Doc. 7.) The motion was filed in conjunction with Plaintiffs’ verified complaint (Doc. 1), which alleges that enforcement of Defendant Governor Laura Kelly’s Executive Order 20-18 would violate Plaintiffs’ rights, including their First Amendment right to the free exercise of religion. The complaint seeks declaratory and injunctive relief pursuant to 42 U.S.C. § 1983 and other provisions. The court held a telephonic hearing on the motion for temporary restraining order (“TRO”) on April 17, 2020, 4:00 p.m. This court has jurisdiction over Plaintiffs’ claims under federal law pursuant to 28 U.S.C. § 1331. The court further finds the exercise of this court’s jurisdiction over such claims is proper under the rule of Ex Parte Young, 209 U.S. 123 (1908).1

1 This order is premised solely on Plaintiffs’ federal law claims and does not consider or apply to Plaintiffs’ claim that enforcement of Executive Order 20-18 violates Kansas law. (Doc. 1 at 14-15.)

Case 6:20-cv-01102-JWB-GEB Document 15 Filed 04/18/20 Page 2 of 4
Based on the materials presented and the arguments of counsel, the court finds: (1) Plaintiffs are likely to succeed on the merits of their claim alleging a violation of their First Amendment right to the free exercise of religion; (2) in the absence of preliminary relief, Plaintiffs are likely to suffer irreparable harm in the form of denial of their constitutional right to the free exercise of their religion, arising from state-imposed restrictions on religious exercises that are not narrowly tailored to further the compelling governmental interest in halting the spread of COVID19, and which are more severe than restrictions on some comparable non-religious activities; (3) the balance of equities tips in Plaintiffs’ favor; and (4) an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (setting forth the elements required for preliminary injunctive relief.)
IT IS THEREFORE ORDERED that The Hon. Laura Kelly, in her capacity as Governor of the State of Kansas, is hereby enjoined and ordered to refrain from enforcing the prohibition in Executive Order No. 20-18 and Executive Order 20-25 prohibiting religious gatherings involving more than ten attendees, conducted by Plaintiffs First Baptist Church of Dodge City, Kansas, and Calvary Baptist Church of Junction City, Kansas, so long as those gatherings comply with the social distancing and public health protocols Plaintiffs have indicated in their complaint they are prepared to apply.
The protocols Plaintiff First Baptist Church of Didge City will adhere to include:  Prior to and following the in-person service, the facility will be deep-cleaned;  Invitations will be directed to regular church attendees for this in-person service;  Individuals will be advised to continue to engage in “stay at home” protocols as
directed by EO 20-16 in order to attend the service;  No church members are known to have had any contact with known COVID-19
confirmed cases;  Attendees will be advised to perform temperature checks at home on all attendees
prior to attending the service. Individuals that are ill or have fevers will not attend;  High-risk individuals will be advised not to attend the in-person service;
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 Attendees will be advised to bring their own PPE, including masks and gloves;  Attendees will be advised not to engage in hand shaking or other physical contact;  Hand sanitizer will be available for use throughout the facility;  The in-person service will be limited to 50 individuals in a space that has acapacity for 300
individuals (a cross-shaped auditorium 50 feet by 74 feet at the center; 2,950 square feet total, allowing almost 57 square feet available to each attendee at maximum social distancing);  Co-habitating family units may sit closer together but otherwise the maximum social distancing possible will be used, however, at a minimum, the CDC recommended protocol will be observed with a minimum distance of at least 6 feet;  A single point of entry and single point of exit on opposite sides of the building will be used, establishing a one-way traffic pattern to ensure social distancing;  Ventilation will be increased as much as possible, opening windows and doors, as weather permits;  These procedures will be communicated to church members in advance of the service;  Church bulletin and offering plates will not be used during the service;  Attendees will be advised to wash their clothes following the service;  If Church leadership becomes aware of a clear, immediate, and immanent threat to the safety of the attendees or cannot follow the protocols listed above, the gathering will be immediately disbanded.
The protocols Plaintiff Calvary Baptist Church of Junction City will adhere to include:
 Splitting out pews and marking designated sitting areas to keep non-cohabitating congregants at least six feet apart before, during, and after the worship service;
 Marking multiple entrances to encourage socially distanced foot traffic;  Propping doors open to prevent the need for congregants to touch doors while
entering and exiting the church or sanctuary;  Suspending passing offering plates and bulletins;  Actively discouraging handshaking or other social touching;  Offering hand sanitizer throughout the building;  Providing face masks to offer to any interested persons.
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Case 6:20-cv-01102-JWB-GEB Document 15 Filed 04/18/20 Page 4 of 4 SO ORDERED at 6:46 PM, April 18, 2020, at Wichita, Kansas. This order shall expire no later than May 2, 2020, unless extended by the court for good cause. The matter is hereby scheduled for a preliminary injunction hearing on April 23, 2020, at 9:00 a.m., in Courtroom 238, U.S. Courthouse, 401 N. Market, Wichita, Kansas.
_____s/ John W. Broomes__________ JOHN W. BROOMES UNITED STATES DISTRICT JUDGE
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 Case 6:20-cv-01102-JWB-GEB Document 29 Filed 04/21/20 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

FIRST BAPTIST CHURCH, PASTOR STEPHEN ORMORD, CALVARY BAPTIST CHURCH, and PASTOR AARON HARRIS,
Plaintiffs,
v.
GOVERNOR LAURA KELLY, in her official capacity,
Defendant.

Case No. 20-1102-JWB

MOTION BY KANSAS INTERFAITH ACTION FOR LEAVE TO FILE BRIEF AS AMICUS CURIAE
IN SUPPORT OF DEFENDANT
In accordance with Local Rule 7.1, Kansas Interfaith Action requests leave to file the attached amicus curiae brief in support of Defendant. Defendant has consented to the filing of the brief; Plaintiffs have not informed amicus of their position.
Kansas Interfaith Action is a statewide, multi-faith issue-advocacy organization that “puts faith into action” by educating, engaging and advocating on behalf of people of faith and the public regarding critical social, economic, and climate justice issues. KIFA (pronounced “KEE–fa”) supporters are shaped by the values of our diverse faiths, which connect us to an age-old concern for justice, peace, and human dignity. Rooted in faith, we join hands across difference to work for moral public policy in Kansas. KIFA is a state public policy office of the Central States

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Synod of the Evangelical Lutheran Church in America and is a partner of the KansasOklahoma Conference of the United Church of Christ.
KIFA supports Governor Kelly’s inclusion of houses of worship in the tenperson limit for public gatherings in her executive order. As faith leaders, KIFA’s members place a high value on their religious freedom. But they believe that no one’s right to worship is being limited; only their ability to gather physically is affected. The pandemic is an extenuating circumstance that calls on people of faith to accept temporary limitations on public worship that would be unacceptable in normal circumstances. As the attached brief explains, given the extraordinary circumstances that exist today, the Governor’s order does not violate the Free Exercise Clause of the U.S. Constitution.
For the foregoing reasons, the proposed amicus respectfully requests that the Court grant this motion to file the attached proposed amicus brief.
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Respectfully submitted,
RICHARD B. KATSKEE* ALEX J. LUCHENITSER*
Americans United for Separation of Church and State
1310 L Street NW, Suite 200 Washington, DC 20005 (202) 466-3234 (202) 466-3353 (fax) luchenitser@au.org

/s/ William J. Skepnek
WILLIAM J. SKEPNEK Skepnek Law Firm P.A. 1 Westwood Road Lawrence, KS 66044 (785) 856-3100 (785) 856-3099 (fax) bskepnek@skepneklaw.com

* Pro hac vice motions submitted herewith or forthcoming. Counsel for Amicus Curiae

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CERTIFICATE OF SERVICE I certify that on April 21, 2020, the foregoing motion was filed using the Court’s CM/ECF system, together with a proposed order, proposed brief, and corporate disclosure statement. All participants in the case are registered CM/ECF users and will be served electronically via that system. Service will be sent to: Pedro L. Irigonegaray John B. Turney, Jr. Jason Andrew Zavadil Irigonegaray, Turney, & Revenaugh, LLP 1535 SW 29th Street Topeka, KS 66611 Counsel for Defendant Lumen Mulligan 1616 Indiana Street Lawrence, KS 66044 Counsel for Defendant Ryan A. Kriegshauser Kriegshauser Law, LLC 1050 West 138th Street, Unit 4493 Olathe, KS 66062 Counsel for Plaintiffs Tyson C. Langhofer Alliance Defending Freedom – VA 20116 Ashbrook Place, Suite 250 Ashburn, VA 20147 Counsel for Plaintiffs Joshua A. Ney 900 South Kansas Avenue, Suite 402B Topeka, KS 66621 Counsel for Plaintiffs
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Case 6:20-cv-01102-JWB-GEB Document 29 Filed 04/21/20 Page 5 of 5 Samuel G. MacRoberts Kansas Justice Institute 12980 Metcalf Avenue, Suite 130 Overland Park, KS 66213 Counsel for Movants Kansas Justice Institute
/s/ William J. Skepnek
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 Case 6:20-cv-01102-JWB-GEB Document 30 Filed 04/21/20 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

FIRST BAPTIST CHURCH; ET AL. Plaintiffs, V. GOVERNOR LAURA KELLY, in her official capacity, Defendant.

) ) ) ) ) Case No. 6:20-cv-01102 ) ) ) ) )

MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION During the April 21, 2020, 10:00 am, telephonic scheduling conference, this Court raised
concerns regarding its subject matter jurisdiction and ordered briefing. Defense counsel moved at the scheduling conference that this Court stay its April 18, 2020 TRO, ECF No. 15, in light of the subject matter jurisdiction questions looming over this suit. The Court denied that oral motion.
In light of the additional legal authorities in this written motion, which were not before the Court at the April 21, 2020 conference, Defendant respectfully renews its motion to STAY the TRO during the pendency of this jurisdictional inquiry. Defendant also respectfully prays that this Court DISMISS this entire case for lack of subject matter jurisdiction under the Eleventh Amendment; or in the alternative, DISMISS Plaintiffs’ Count IV for lack of subject matter jurisdiction under the Eleventh Amendment, and DISMISS the remainder of the Complaint for lack of subject matter jurisdiction as moot.

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I. The Ex Parte Young Exception To The Eleventh Amendment Does Not Apply To Governor Kelly Here Because She Lacks The Power To Enforce EO 20-25.
The Eleventh Amendment bars Plaintiffs’ suit. The Eleventh Amendment generally bars suits against a state in federal court commenced by citizens of that state or citizens of another state. See Hans v. Louisiana, 134 U.S. 1, 13–15 (1890). In Ex parte Young, however, the Supreme Court held that the Eleventh Amendment does not bar a suit against a state official in federal court that seeks only prospective equitable relief for violations of federal law. See 209 U.S. 123, 159–60 (1908). This exception is predicated upon the state official having “some connection” with the enforcement of the challenged state action. Id. at 157 (“In making an officer of the state a party defendant in a suit to enjoin the enforcement of an act alleged to be unconstitutional, it is plain that such officer must have some connection with the enforcement of the act, or else it is merely making him a party as a representative of the state, and thereby attempting to make the state a party.”).
In In re Abbott, --- F.3d ---, 2020 WL 1911216 (5th Cir. April 20, 2020), the Texas governor issued emergency, public-health, executive orders in response to COVID-19. Plaintiff in that case challenged one such order as infringing the constitutional right to access abortion medical services in a suit naming the governor, inter alia, as a defendant. The Fifth Circuit, on mandamus review, held that the federal district court lacked subject matter jurisdiction to proceed under Ex parte Young. Id. at *6. Looking solely to the Texas governor’s statutory, executiveorder powers, the Fifth Circuit concluded that he has the power to “‘issue,’ ‘amend,’ or ‘rescind’ executive orders, not to ‘enforce’ them.” Id. The Fifth Circuit further reasoned that “[t]he power to promulgate law is not the power to enforce it.” Id. (citing Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 152 (1991) (distinguishing between the Secretary of Labor’s “powers to promulgate and to enforce national health and safety standards”)). As such,
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the appellate court held that the federal courts lack subject matter jurisdiction to proceed against the Texas governor in an attempt to enjoin the emergency, public health order he issued.
Tenth Circuit precedent aligns with the In re Abbott holding. The Tenth Circuit brings added clarity to the Ex parte Young holding, stating that “[d]efendants are not required to have a ‘special connection’ to the unconstitutional act or conduct. Rather, state officials must have a particular duty to ‘enforce’ the statute in question and a demonstrated willingness to exercise that duty.” Peterson v. Martinez, 707 F.3d 1197, 1205 (10th Cir. 2013) (quoting Prairie Band Potawatomi Nation v. Wagnon, 476 F.3d 818, 828 (10th Cir. 2007)). Here, Governor Kelly lacks “a particular duty” to enforce EO 20-25 for several reasons.
First, EO 20-25(4)-(5) itself vests enforcement duties in local authorities, not the governor. EO 20-25(4) states that “local authorities shall retain whatever legal authority they otherwise possess to restrict or prevent access to places where people may gather in violation of this order or Executive Order 20-16.” Similarly, EO 20-25(5) recognizes that law enforcement officers, not the governor, retain the duty and discretion to enforce this executive order. See EO 20-25(5) (“Law enforcement officers enforcing this order should use their discretion and consider the totality of the circumstances as they determine appropriate enforcement action.”).
Second, the Kansas Emergency Management Act does not create a “particular duty” in the governor to enforce EO 20-25. Governor Kelly issued EO 20-25 pursuant to K.S.A. 48-925(b). See EO 20-25 “Now Therefore” ¶. This statute does not grant Governor Kelly enforcement powers over executive orders, including EO 20-25. Kansas Statutes Annotated 48-925(b) states that “the governor may issue orders and proclamations which shall have the force and effect of law during the period of a state of disaster emergency.” (emphasis added). Section 48-925(d) further clarifies that the governor’s power is limited to issuing orders. See K.S.A. 48-925(d) (“The governor shall
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exercise the powers conferred by subsection (c) by issuance of orders under subsection (b).”). Further, K.S.A. 48-925(d) states that “the adjutant general, subject to the direction of the governor, shall administer such orders.” This provision does not vest the adjutant general with criminal law enforcement power. Rather, working in concert with K.S.A. 48-905a(a), this last sentence in K.S.A. 48-925(d) reinforces that the adjutant general remains tasked as the state’s chief emergency management officer. See K.S.A. 48-905a(a) (“The division of emergency management and the powers, duties and functions thereof shall be administered, by the adjutant general, who shall be the chief administrative officer thereof, under the supervision of the governor.”). Accord In re Abbott, 2020 WL 1911216 at *6 (reviewing a nearly identical Texas statutory scheme).
Third, Kansas law generally does not vest the governor with criminal law enforcement power. The In re Abbott opinion did not address the Texas governor’s constitutional or broader statutory power or duty to enforce criminal law. While there are some differences in the underlying gubernatorial power under the Kansas and Texas constitutions, these differences are not outcomedeterminative to the jurisdictional question here, rendering In re Abbott highly persuasive.
The Texas Constitution in Article IV, § 10 states that the governor “shall cause the laws to be faithfully executed.” The Kansas Constitution, by contrast, in Article I, § 3 states that the “supreme executive power of this state shall be vested in a governor, who shall be responsible for the enforcement of the laws.” This unadorned textual comparison could lead to the legally erroneous conclusion that while the Texas governor may lack the power to enforce criminal laws, the Kansas governor does.
The Kansas Supreme Court, however, has consistently held that the Kansas attorney general, not the governor, is constitutionally the chief law enforcement officer of the state of Kansas. “And so, while primarily the Governor is charged with the execution of the law, next to
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him the Attorney General is the chief law officer of the state.” State v. Finch, 128 Kan. 665, 280 P. 910, 911 (1929); see also id. at 912 (“[t]he attorney-general of a state is its principal law officer. His authority is coextensive with the public legal affairs of the whole community.”). The Kansas high court continues to take this approach, holding that the “Attorney General, a constitutional officer (Const.Kan. Art. 1, s 1), is the chief law enforcement officer of the state.” State ex rel. Miller v. Rohleder, 208 Kan. 193, 194 (1971). The Rohleder court further held that the attorney general and the county attorneys are the state’s prosecuting attorneys, “specifically charged” with pursuing “criminal suits arising under the laws of the state in which the state is interested.” Id. at 195. The Tenth Circuit also holds that “[t]he Kansas Attorney General is the ‘chief law officer of the state.’” Maley v. Kansas, 543 F. App'x 889, 890 (10th Cir. 2013). As the District of Kansas has previously held, “[t]his general enforcement power [in Kan. Const. Art. I, § 3] . . . is not sufficient to establish the connection to the statute required to meet the Ex parte Young exception to Eleventh Amendment immunity.” Day v. Sebelius, 376 F. Supp. 2d 1022, 1031 (D. Kan. 2005), aff'd sub nom. Day v. Bond, 500 F.3d 1127 (10th Cir. 2007).
These judicial holdings are sound in light of Kansas’s statutory scheme. Kansas statutes generally vest criminal law prosecution and enforcement power to officers other than the governor. See, e.g., K.S.A. 19-702(a) (county attorneys are charged with the duty to prosecute criminal cases); K.S.A. 19-801a (county sheriffs are independent officers from the governor); K.S.A. 75702 (attorney general charged with the duty to prosecute criminal cases); K.S.A. 75-704 (attorney general charged with aiding county attorneys in the fulfillment of their duties); K.S.A. 75-711 (the KBI reports to the attorney general).
Neither of the two exceptions in Kansas statute to the general lack of gubernatorial involvement in criminal law enforcement apply here. First, Kansas statute places only one law
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enforcement agency under gubernatorial control, the Kansas Highway Patrol. See K.S.A. 742113(b) (governor appoints the superintendent of the highway patrol). The Kansas Highway Patrol, however, lacks statutory authority to enforce EO 20-25. See K.S.A. 74-2105(a)(1) (limiting the patrol’s “principal function . . . [to] enforcement of the traffic and other laws of this state relating to highways, vehicles and drivers of vehicles. . . .[and] perform[ance of] security duties for public officials.”). Second, Kansas statute retains a vestige from the Prohibition era that empowers the governor to employ “special attorneys.” See K.S.A. 75-116 (the governor may “employ special attorneys with the powers of assistant attorneys general . . . to make investigations and to secure evidence relative to violations of the liquor and other criminal laws”) (passed in 1929). Even if this residual statute were to apply here, the statute does not empower such special attorneys to bring law-enforcement police action or to prosecute criminally; but rather, such special attorneys may only summon witnesses and take testimony. Id.
Governor Kelly lacks the authority to enforce EO 20-25 as a policing matter or to bring a criminal prosecution for violations of EO 20-25. As such, she lacks “a particular duty” to enforce EO 20-25 that would empower Plaintiffs to rely upon the Ex parte Young exception to the Eleventh Amendment in this suit. See Peterson, 707 F.3d at 1205. As such, this Court should dismiss Plaintiffs’ claims for lack of subject matter jurisdiction.
II. The Eleventh Amendment Bars Plaintiffs’ Claims under K.S.A. 60-5301 et seq. Additionally, this Court lacks jurisdiction to grant Plaintiffs’ state-law-based relief. See
Complt. at ¶ 77-83. Even if this Court holds that the Ex parte Young exception applies to Plaintiffs’ federal claims against Governor Kelly, it does not apply to their state law causes of action. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984); ANR Pipeline Co. v. Lafaver, 150 F.3d 1178 (10th Cir. 1998) (holding Ex parte Young does not overcome Eleventh
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Amendment immunity in regard to state law claims), overruled on other grounds by Hill v. Kemp, 478 F.3d 1236, 1259 (10th Cir. 2007).
III. Plaintiffs’ Case Remains Moot Leaving This Court Without Subject Matter Jurisdiction.
Defendant raised mootness as a grounds for dismissal prior to the TRO hearing. This Court denied the motion. See TRO Memorandum, ECF No. 14, at 2. Because Defendant believes this matter remains moot, as a matter of preservation for potential appellate review, counsel renews this motion. Plaintiffs’ Complaint remains moot and should be dismissed for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). Mootness is a function of the relief requested in the complaint. See Taylor v. McElroy, 360 U.S. 709, 711 (1959). Here, Plaintiffs’ Complaint seeks injunctive and declaratory relief only as to EO 20-18. See Cmplt. at Prayer for Relief (a)-(c). EO 20-25 rescinded and replaced EO 20-18 on April 18, 2020. See EO 20-25(6). As such, the relief sought vis-a-vis EO 20-18 in the Complaint is moot. Further, Plaintiffs’ boilerplate “other and further relief” language is not sufficient to make out a new ground for relief that escapes mootness. Cf. Bishop v. U.S. ex rel. Holder, 962 F. Supp. 2d 1252, 1271 (N.D. Okla.) (holding that such boilerplate language cannot be construed as a request for alternative remedies so as to save a moot suit for injunctive relief from dismissal), aff'd on other grounds sub nom. Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014). As such, this Court continues to lack subject matter jurisdiction on mootness grounds. See Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1109 (10th Cir. 2010) (federal courts “have no subject-matter jurisdiction if a case is moot.”).
Conclusion For the foregoing reasons, Defendant respectfully prays that this Court STAY its TRO during the pendency of this jurisdictional inquiry, and DISMISS the entire complaint for lack of
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subject matter jurisdiction under the Eleventh Amendment; or in the alternative, DISMISS Plaintiffs’ Count IV for lack of subject matter jurisdiction under the Eleventh Amendment, and DISMISS the remainder of the complaint for lack of subject matter jurisdiction as moot.
RESPECTFULLY SUBMITTED GOVERNOR LAURA KELLY
/s/Pedro L. Irigonegaray Pedro L. Irigonegaray, #08079 IRIGONEGARAY, TURNEY, & REVENAUGH, L.L.P. 1535 SW 29th Street Topeka, KS 66611 T: 785-267-6115 F: 785-267-9458 pedro@itrlaw.com /s/ Lumen N. Mulligan Lumen N. Mulligan, #21337 Attorney at Law 1616 Indiana St. Lawrence, KS 66044 T: 785-691-9367 F: 785-691-9362 lumenmulligan1973@gmail.com Attorneys for Defendant Governor Laura Kelly
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 Case 6:20-cv-01102-JWB-GEB Document 33 Filed 04/22/20 Page 1 of 30

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

FIRST BAPTIST CHURCH ;

)

PASTOR STEPHEN ORMORD;

)

CALVARY BAPTIST CHURCH;

)

PASTOR AARON HARRIS,

)

Plaintiffs,

)

)

v.

)

)

)

GOVERNOR LAURA KELLY,

)

in her official capacity; ADJUTANT GENERAL )

DAVID WEISHAAR, in his official capacity;

)

GEARY COUNTY SHERIFF DANIEL E.

)

JACKSON, JR. in his official capacity; FORD )

COUNTY SHERIFF WILLIAM CARR, in his )

official capacity,

)

)

Defendants.

)

____________________________________

)

Case No. 6:20-cv-01102-JWB-GEB

AMENDED VERIFIED COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF

1. On April 7, 2020, five days before Easter Sunday, Kansas Governor Laura Kelly

issued Executive Order 20-18, which prohibited all “mass gatherings” of 10 or more people in a

confined or enclosed space at the same time. See Executive Order 20-18, attached as Exhibit 1

(hereinafter “EO 20-18”). EO 20-18 stated it remained in effect until May 1, 2020.

2. While EO 20-18 carved out broad exemptions for 26 types of secular activities

from this gathering ban, including, bars and restaurants, libraries, shopping malls, retail

establishments, and office spaces the order singled out “churches and other religious services or

activities” to expressly prohibit any type of gathering of more than ten non-performing

individuals, regardless of whether social distancing, hygiene, and other efforts to slow the spread

of COVID-19 were practiced.

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3. Notably, the allowance for persons to gather in particular contexts was carried over from EO 20-14 (Governor Kelly’s previous mass gathering order) to EO 20-18 for libraries with no express requirement that such persons do so only if they can “engage in appropriate social distancing.” Under EO 20-18, persons could gather in shopping malls and retail establishments “where large numbers of people are present but are generally not within arm’s length of one another for more than 10 minutes.” Under EO 20-18 as under EO 20-14, persons could gather at restaurants and bars provided only that the facilities “preserve social distancing of 6 feet between tables, booths, bar stools, and ordering counters; and cease self-service of unpackaged food, such as in salad bars or buffets.” However, religious gatherings were banned outright if the number of non-performing individuals present exceeded 10 persons.
4. EO 20-18 rescinded Executive Order 20-14, the Governor’s previous mass gathering ban. See Executive Order 20-14, attached as Exhibit 2 (hereinafter “EO 20-14”). EO 20-14 had expressly exempted “religious gatherings” from the mass gathering ban, provided that “attendees can engage in appropriate social distancing.” See id. at Section 2(c).
5. Moreover, Executive Order 20-16, the Governor’s state-wide “stay-at-home” order, expressly allowed Kansans to “perform or attend religious or faith-based services or activities” as exempt activities under the order. See Executive Order 20-16, attached hereto as Exhibit 3.
6. On April 8, 2020, Kansas Attorney General Derek Schmidt issued a memorandum to all Kansas prosecutors and law enforcement stating that the religious gathering prohibitions of EO 20-18 “likely violate both state statute and the Kansas Constitution.” See Memorandum from Attorney General Derek Schmidt (April 7, 2020), attached hereto as Exhibit 4 at 5.
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7. Attorney General Schmidt concluded in his memo that: provisions of the governor’s order that purport to criminalize certain gatherings for religious services or activities likely violate both state statute and the Kansas Constitution, which would render them void and unenforceable. . . . Law enforcement are advised to encourage cooperative compliance with the new provisions of EO 20-18 and to avoid engaging in criminal enforcement of its limitations on religious facilities, services or activities. Id. 8. On April 8, 2020, the Kansas Legislative Coordinating Council (hereinafter “LCC”) voted to rescind EO 20-18 under the ostensible authority of HCR 5025, citing the constitutionality concerns raised by Attorney General Schmidt’s memorandum. 9. On April 9, 2020, Governor Kelly sued the Kansas Legislature and the LCC in an original quo warranto action with the Kansas Supreme Court. 10. As early as April 3, 2020, prior to the issuance of EO 20-18 legislative leadership had discussions with the Governor’s Office regarding the constitutionality of imposing a limitation on church gatherings. Those discussions continued after the issuance of EO 20-18 and after the LCC attempted to revoke EO 20-18. Indeed, prior to the Governor filing the Quo Warranto action, legislative leadership requested that the Governor merely remove the criminal penalties associated with EO 20-18 and they would allow the EO to stand. That request was refused and the Quo Warranto action was ultimately filed by the Governor. 11. On April 11, 2020, the Kansas Supreme Court granted emergency relief to Governor Kelly by narrowly ruling that the LCC lacked the authority to rescind EO 20-18 under the plain language of HCR 5025. The court expressly declined to consider the constitutionality of the religious gatherings ban under EO 20-18, stating in its opinion that the religious liberty considerations must be brought in a separate action. See Kelly v. LCC et al., Slip Op. No. 122,765 at 3, 23 (Kan. 2020).
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12. On Easter Sunday, April 12, 2020, in Dodge City, Kansas, Plaintiffs First Baptist Church and Pastor Stephen Ormord attempted to hold an outdoor, “drive-in” church service with approximately 20 of their congregants parked in cars in front of the church spaced 6 feet apart. Due to high winds and technological difficulties, the congregants were unable to hear or effectively participate in the service. The church had already adopted rigorous social distancing and health safety protocol to protect individuals gathered for worship, and the congregation was able to safely conduct the service within the sanctuary space pursuant to that protocol by remaining 6 feet apart throughout the service.
13. On Easter Sunday, April 12, 2020, in Junction City, Kansas, Plaintiffs Calvary Baptist Church and Pastor Aaron Harris held an in-door church service with 21 of their congregants while adopting rigorous social distancing and health safety protocols to protect individuals gathered for worship. A member of local law enforcement monitored the service inside the building.
14. On April 14, Pastor Harris spoke with the Geary County Sheriff, Defendant Daniel E. Jackson Jr., to discuss whether the Sheriff would enforce the prohibition on church gatherings in EO 20-18. Defendant Jackson warned Pastor Harris that he would be subject to criminal enforcement of Governor’s Executive Order 20-18 should his church hold an in-person service the following week in which more than 10 people were sitting in the pews.
15. On April 14, 2020, United States Attorney General William Barr issued a statement that “the First Amendment and federal statutory law” also prohibit governments from
impos[ing] special restrictions on religious activity that do not also apply to similar nonreligious activity. For example, if a government allows movie theaters, restaurants, concert halls, and other comparable places to assemble to remain open and unrestricted, it may not order houses of worship to close, limit their congregation size, or otherwise impede religious gatherings. Religious institutions must not be singled out for special burdens.
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See Statement of Attorney General William P. Barr, attached hereto as Exhibit 5. 16. In his statement, Attorney General Barr also announced the Department of
Justice had filed a Statement of Interest in support of a Mississippi church that allegedly sought to hold parking lot worship services before being criminally cited by local law enforcement. See id; The United States’ Statement of Interest in Support of Plaintiffs, 4:20cv-64-DMB-JMV) (N.D.Miss. 2020), attached hereto as Exhibit 6.
17. On April 15, 2020, counsel for First Baptist Church sent a letter to Clay Britton, general counsel for Governor Kelly, requesting that Governor Kelly incorporate more narrowly tailored restrictions into her statewide order prohibiting churches from holding worship services with more than 10 non-performing members. In the letter, counsel requested the Governor make specific allowance for churches to hold in-person, indoor worship services provided the church congregants follow rigorous social distancing and healthy safety protocol as set forth in the letter; requirements which exceed those imposed by EO 20-18 on other similar secular facilities. See Letter to Clay Britton, Chief Counsel for Governor Laura Kelly, dated April 15, 2020, attached as Exhibit 7.
18. On April 16, Mr. Britton responded but did not permit the church to meet nor rescind or modify the Order, but rather stated that the Governor’s Office was reviewing the request and “will reach a decision as soon as tomorrow.” See Letter to Ryan Kriegshauser, dated April 16, 2020, attached as Exhibit 8.
19. Later that day, Counsel for the Plaintiffs replied that they were proceeding with a lawsuit, given the limited time frame before Sunday.
20. On April 16, 2020, Plaintiffs filed their original Verified Complaint. Plaintiffs’ counsel sent an electronic copy of the Verified Complaint to Mr. Britton.
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21. On April 17, 2020, Plaintiffs filed a Motion for Expedited Hearing and Motion for a Temporary Restraining Order (hereinafter, the “Motion for TRO”).
22. Later that same day, in response to the Complaint, the Governor’s Office issued Executive Order 20-25 (“EO 20-25”) which revoked and replaced EO 20-18. See EO 20-25 attached as Exhibit 9.
23. Also on that same day, Defendant Kelly filed a Motion to Dismiss attaching EO 20-25 as an exhibit. (Doc. 9).
24. EO 20-25 removed “libraries” and “shopping malls” from the list of exceptions to the “mass gatherings” limitation and made clarifying comments related to the restrictions on retail establishments and retail food establishments but maintained the prohibition on religious gatherings of more than 10 non-performing people.
25. On April 17, the Court held an expedited hearing on both the Motion for TRO and the Motion to Dismiss.
26. On April 18, the Court issued a Memorandum and Order (Doc. 14) denying the Motion to Dismiss and granting the Motion for TRO. The Court also issued a TRO (Doc. 15) enjoining Defendant Kelly from enforcing EO 20-18 and EO 20-25 against Plaintiffs provided that Plaintiffs comply with the social distancing guidelines set forth in the TRO.
27. After the issuance of the TRO, the Governor released the following statement which was widely reported by Kansas media outlets:
We are in the middle of an unprecedented pandemic. We all want to resume our normal lives as soon as possible, but for now the data and science tell us there’s still a serious threat from COVID-19 – and when we gather in large groups, the virus spreads. My executive order is about saving Kansans’ lives and slowing the spread of the virus to keep our neighbors, our families and our loved ones safe. During public health emergencies, we must take proactive measures to save lives.
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Kansas has had six deaths and more than 80 cases of COVID-19 that have originated from religious gatherings. The court’s temporary order noted that, given the gravity of the issues involved, the order only applies to the two plaintiffs to the lawsuit. All other religious gatherings must continue to adhere to the requirements of Executive Order 20-25 and limit gatherings to 10 or fewer attendees. Kansas is not alone in restricting gatherings, including religious gatherings. A majority of states and hundreds of local governments across the country have imposed similar temporary restrictions to combat the COVID-19 pandemic. There have been at least eight other legal challenges like this one, and so far none of them have ruled against a mass gathering restriction like ours. Courts across the country have recognized that during this pandemic emergency the law allows governments to prioritize proper public health and safety, This is not about religion. This is about a public health crisis. This ruling was just a preliminary step. There is still a long way to go in this case, and we will continue to be proactive and err on the side of caution where Kansans’ health and safety is at stake. 28. On Saturday, April 18, 2020, Plaintiff First Baptist Church (“FBC”) finalized preparations to conduct an in-person service on April 19, 2020. 29. On April 19, 2020, FBC conducted an in-person service and offered streaming service to congregants that did not attend in person. 30. FBC complied with the following social distancing and public health protocols contained in the TRO and posted notices of those protocols on all facility doors:
 Prior to and following the in-person service, the facility was deep-cleaned;
 Notices were directed to regular church attendees for this in-person service;
 Individuals were advised to continue to engage in “stay at home” protocols as directed by EO 20-16 in order to attend the service;
 No church members were known to have had any contact with known COVID-19 confirmed cases;
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 Attendees were advised to perform temperature checks at home on all attendees prior to attending the service. Individuals that were ill or had fevers were advised not to attend;
 High-risk individuals were advised not to attend the in-person service;  Attendees were advised to bring their own PPE, including masks and gloves;  Attendees were advised not to engage in hand shaking or other physical contact;  Hand sanitizer was available for use throughout the facility;  The in-person service was limited to 40 individuals in a space that has capacity
for 300 individuals and pews were marked off with colored tape to achieve maximum social distancing.  Cohabitating family units were allowed sit closer together but otherwise the maximum social distancing possible was be used, however, at a minimum, the CDC recommended protocol was observed with a minimum distance of at least 6 feet;  A single point of entry and single point of exit on opposite sides of the building was used, establishing a one-way traffic pattern to ensure social distancing;  Ventilation was increased as much as possible, opening windows and doors, as weather permitted;  These procedures were communicated to church members in advance of the service;  Church bulletin and offering plates were not used during the service;  Attendees were advised to wash their clothes following the service;
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 Church leadership was not aware of a clear, immediate, and immanent threat to the safety of the attendees and did not determine it was unable to follow the protocols listed above.
31. Approximately 26 individuals attended FBC’s service on April 19, 2020. FBC was able to hold their worship service consistent with the guidelines and without any unexpected complications.
32. In-person congregants at FBC reported a meaningful experience and enthusiastically enjoyed personally participating in the service after weeks of social distancing.
33. Unfortunately, as with previous services, the internet live stream encountered problems including a bad echo at the beginning of the service, interruptions, and off-site listeners having difficulty viewing the internet-streamed service due to bandwidth limitations.
34. Similarly, after the TRO was issued, Plaintiff Calvary Baptist Church (“CBC”) finalized preparations to conduct an in-person service on April 19, 2020.
35. On April 19, 2020, CBC conducted an in-person service and offered its streaming service again to congregants who chose not to attend in person. 1
36. CBC complied with the following social distancing and public health protocols contained in the TRO and posted notices listing the protocols on all facility doors:
 Splitting out pews and marking designated sitting areas to keep non-cohabitating congregants at least six feet apart before, during, and after the worship service;
 Marking multiple entrances to encourage socially distanced foot traffic;
1 See “Junction City Church Holds First Service After Federal Judge Allows Gatherings,” KWCH, April 19, 2020 available at https://www.kwch.com/content/news/Junction-City-church-holds-first-service-after-Fed-judge-allowsgatherings-569774191.html.
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 Propping doors open to prevent the need for congregants to touch doors while entering and exiting the church or sanctuary;
 Suspending passing offering plates and bulletins;  Actively discouraging handshaking or other social touching;  Offering hand sanitizer throughout the building;  Providing face masks to any interested persons. 37. CBC was able to hold their worship service consistent with the guidelines and without any unexpected complications. Approximately 30 individuals attended the morning service on April 19, 2020. 38. In-person congregants enthusiastically enjoyed personally participating in the service after weeks of social distancing. 39. As of April 15, 2020, the Kansas Department of Health and Environment (hereinafter “KDHE”) reports that Ford County, Kansas (Dodge City) has 32 confirmed cases of COVID-19. See KDHE COVID-19 Quick Stats, updated 4/15/2020, attached as Exhibit 10. 40. Ford County has a population of approximately 33,619 people. As of April 15, 2020, the per capita rate of COVID-19 infection in the county was approximately 0.095%, or approximately one tenth of 1%. 41. Since April 15, 2020, Ford County has seen a large increase in confirmed cases of COVID-19 in at least two meat processing plants in the county. Widespread media reports, as well as comments by members of Governor Kelly’s administration, state that the increase in cases in Ford County is almost solely located in the meat packing plants. The meatpacking processing plants remain open at this time, and Governor Kelly’s administration has worked
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directly with the meat packing plants to help them adopt social distancing measures to keep the
meat packing plants in operation.
42. On April 20, 2020, at a press conference, Secretary of Agriculture Mike Beam
responded to a question regarding the point at which the meat processing plants would be closed
by stating: “We’re not there. Obviously, it’s happened in other states and that’s why Governor
Kelly has put an emphasis on let’s do all we can to make sure we keep those viable and protect
our workers.” (emphasis added).
43. Later in the press conference, Secretary Beam stated:
The question is about is there anything specific to the meat processing industry that causes a bigger risk, and I would say, these are plants with larger numbers of employees, and in many situations they would be working fairly close to each other. A lot of the facilities like this with this many employees are no longer operating, but this is a critical infrastructure need, but at the same time as these plants are responsive, they’re spreading people out where they can, and they’re installing individual shields between workers, making sure they all have facial protection. So those are steps to minimize that. But the one thing we learned when we visited with the plants is they will do what they can and want to know how they can do more. But what drives this as much as anything is what people do when they’re not at work, and it just reinforces the need for social distancing in our daily lives.
(Emphasis added).
44. At that same press conference, Secretary of Health and Environment Lee Norman
responded to a question regarding whether specific numbers of cases would be released by the
plants by stating:
We typically at the state level don’t release that information, and we allow the local health department since they have primary jurisdiction to do the investigation or release that kind of information. It’s a delicate balancing act, and it’s really not as much about privacy as about the sharing of information so that people understand where their real risks really are. A great example is, we’ll say, in Dodge or Garden City, that we also are tracking a lot of the family members, and we want to make sure we don’t evaluate the people working in the plants as if they were a separate entity detached from their families and from their communities and so we want to make sure that we one, don’t instill fear and have people stay home needlessly, and
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secondly, we really give the families everything they need as well, so it’s a delicate balancing act, and typically we leave it to the local health officials. (Emphasis added). 45. As of April 15, 2020, KDHE reports that Geary County, Kansas (Junction City) has 10 confirmed cases of COVID-19. See id. 46. Geary County has a population of approximately 34,895 people. As of April 15, 2020, the per capita rate of COVID-19 infection in the county approximately 0.028%, or one thirty fifth of 1%.
JURISDICTION AND VENUE 47. This civil rights action raises federal questions under the United States Constitution, specifically the First and Fourteenth Amendments, and under federal law, particularly 42 U.S.C. § 1983. 48. This Court has subject matter jurisdiction over the federal claims under 28 U.S.C. § 1331 and 1343. 49. This Court has supplemental jurisdiction over the state claims under 28 U.S.C. § 1367. 50. This Court has authority to grant the requested declaratory relief under 28 U.S.C. §§ 2201 and 2002, the requested injunctive relief under 28 U.S.C. § 1343, and reasonable attorney fees and costs under 42 U.S.C. § 1988. 51. Venue is proper in this Court under 28 U.S.C. § 1391(b) because a substantial part of the events or omissions giving rise to the claims occurred in this district and Defendants reside in this district.
PLAINTIFFS
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52. Plaintiff First Baptist Church is a non-profit church organized exclusively for religious purposes within the meaning of § 501(c)(3) of the Internal Revenue Code. First Baptist Church is located in Dodge City, Kansas.
53. Plaintiff Stephen Ormord serves as Pastor of First Baptist Church in Dodge City, Kansas.
54. Plaintiff First Baptist Church is located in Dodge City, Ford County, Kansas. 55. Plaintiff Calvary Baptist Church is a non-profit church organized exclusively for religious purposes within the meaning of § 501(c)(3) of the Internal Revenue Code. Calvary Baptist Church is located in Junction City, Kansas. 56. Plaintiff Calvary Baptist Church is located in Junction City, Geary County, Kansas. 57. Plaintiff Aaron Harris serves as Pastor of Calvary Baptist Church in Junction City, Kansas.
DEFENDANTS 58. Defendant Laura Kelly is the Governor of Kansas and is sued in her official capacity only. 59. On March 12, 2020, Governor Kelly declared a state of disaster emergency and has not yet altered that declaration or lifted the state of disaster emergency. 60. Under Kansas’ Emergency Management Act, K.S.A. 48-924 et seq., the governor has very broad legislative and executive authority during a state of disaster emergency to create laws and policies and to directly enforce those laws and policies under threat of criminal penalty using the state’s police power.
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61. Defendant Kelly has the legislative power to “issue orders and proclamations which shall have the force and effect of law during the period of a state of disaster emergency declared under subsection (b) of K.S.A. 48-924, and amendments thereto.” K.S.A. 48-925(b).
62. By issuing the prohibitions and regulations in the executive orders at issue in this suit, Defendant Kelly exercised her legislative powers.
63. By ordering and directing enforcement of those same executive orders, Defendant Kelly has used her executive power to enforce, or promised to enforce, those same prohibitions and regulations.
64. K.S.A. 48-925(a) grants the governor very broad executive power: “[d]uring any state of disaster emergency declared under K.S.A. 48-924, and amendments thereto, the governor shall be commander-in-chief of the organized and unorganized militia and of all other forces available for emergency duty.”
65. That section also states that “[t]o the greatest extent practicable, the governor shall delegate or assign command authority by prior arrangement, embodied in appropriate executive orders or in rules and regulations of the adjutant general, but nothing herein shall restrict the authority of the governor to do so by orders issued at the time of a disaster.” (Emphasis added).
66. Further, K.S.A. 48-925(c)(10) gives the Governor the power to “require and direct the cooperation and assistance of state and local governmental agencies and officials,” including the enforcement of her Executive Orders. (Emphasis added).
67. Under Kan. Const. art. I, § 3, “the supreme executive power of this state shall be vested in a governor, who shall be responsible for the enforcement of the laws of this state.”
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68. No other constitutional executive officer is vested constitutionally with law enforcement power.
69. Under Kan. Const. art. VIII, § 4, the governor, as head of the militia, has the power to enforce EO 20-25 by “call[ing] out the militia to execute the laws.”
70. Under K.S.A. 48-934, the governor and her subordinates also have the authority “during a state of disaster emergency proclaimed under K.S.A. 48-924,” to exercise the “powers and duties and immunities of peace officers of the state of Kansas.” That is, Defendant Kelly and her subordinates have police power to enforce state laws, including EO 20-25, during a state of disaster emergency.
71. Governor Kelly and her subordinates, including the other Defendants, thus possess the power to enforce the church gathering prohibition.
72. Under K.S.A. 48-939: “The knowing and willful violation of any provision of this act or any rule and regulation adopted by the adjutant general under this act or any lawful order or proclamation issued under authority of this act … shall constitute a class A misdemeanor and any person convicted of such violation shall be punished as provided by law therefor.”
73. Thus, Defendant Kelly and her subordinates have the power to impose criminal penalties on anyone, including Plaintiffs, who violates the church gathering ban. EO 20-18 was issued pursuant to Defendant Kelly’s powers under the Emergency Management Act.
74. Thus, EO 20-18 includes a direct command to law enforcement, over which she exercises temporary direct control pursuant to K.S.A. 48-925, to enforce the provisions of EO 20-18. EO 20-18 does not legally restrict in any way the ability for Governor Kelly, or any of her subordinates, to enforce the provisions of EO 20-18.
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75. Defendant Kelly has decided to enforce the church gatherings prohibition pursuant to the above powers in her recent order, EO 20-25, which superseded EO 20-18 on April 17, 2020.
76. In EO 20-25, Defendant Kelly “direct[s] and order[s]” EO 20-25 “pursuant to the authority vested in me as Governor of the State of Kansas, including the authority granted me by K.S.A. 48-924 and K.S.A. 48-925.”
77. Defendant Major General David Weishaar, Adjutant General of Kansas, is sued in his official capacity only.
78. As Adjutant General of Kansas, Defendant Weishaar is the head of the state militia, leads the state’s Army and Air Guard operations, directs the state’s division of homeland security, and, as relevant here, directs the state’s division of emergency management.
79. Under K.S.A. 48-905(a), Defendant Weishaar is the “chief administrative officer” of the state’s division of emergency management, and he is “under the supervision of the governor.”
80. Under K.S.A. 48-203: The governor shall be commander in chief of the militia and shall have supreme command of the military forces of the state while in the service of the state. . . . The governor shall appoint, subject to confirmation by the senate as provided in K.S.A. 75-4315b, one adjutant general with the rank of major general, who shall be chief of staff. . . . The term of office of [the adjutant general and] officers appointed pursuant to this section shall be during the pleasure of the governor appointing them and until their successors are appointed and confirmed. (Emphasis added). 81. Under K.S.A. 48-907, Defendant Weishaar has broad powers to direct the Division of emergency management, including the powers:
 “[t]o adopt, amend and repeal rules and regulations,”
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 “to supervise and direct investigations, and report to the governor with recommendations for legislation or other appropriate action as the adjutant general deems necessary, with respect to any type of activity or matter of public concern or welfare insofar as the same is or may be related to emergency management,”
 “to appoint committees to aid the adjutant general in the discharge of the powers and duties conferred,”
 “to require and direct the cooperation and assistance of state and local agencies and officials,” and “to serve as the chief administrative officer,” and
 “to do all acts and things, not inconsistent with law, for the furtherance of emergency management relief.”
82. Under K.S.A. 48-934, Defendant Weishaar also has the authority “during a state of disaster emergency proclaimed under K.S.A. 48-924,” to exercise the “powers and duties and immunities of peace officers of the state of Kansas.” That is, Defendant Weishaar and his division have police power to enforce state laws, including executive orders, during a state of disaster emergency while acting under the direct control and supervision of the governor.
83. Defendant Weishaar also has the power to “appoint law enforcement officers to serve under the command of the adjutant general.” K.S.A. 48-204(b)(5).
84. On March 12, 2020, Governor Kelly declared a state of disaster emergency. Governor Kelly has not altered that declaration or lifted the state of disaster emergency since that date.
85. In her March 12 declaration, Governor Kelly empowered Defendant Weishaar, as Adjutant General, to exercise “[a]ny or all of the powers conferred upon the Governor by the
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Case 6:20-cv-01102-JWB-GEB Document 33 Filed 04/22/20 Page 18 of 30
Kansas Emergency Management Act” as the governor “deem[s] appropriate during this period of proclaimed State of Disaster Emergency.”
86. In her declaration, Governor Kelly declared: “I hereby proclaim, direct and order the Adjutant General of the State of Kansas to activate the disaster response and recovery portions of the Kansas Response Plan. The Adjutant General shall coordinate local and interjurisdictional disaster plans applicable to the political subdivisions of areas affected by this Proclamation.” (Emphasis added).
87. As Adjutant General, Defendant Weishaar is thus responsible, both directly and through his subordinates, and alongside other peace officers in the state, for enforcing the church gathering prohibition against anyone who violates it, including Plaintiffs.
88. Defendant William Carr, the Sheriff of Ford County, Kansas, is sued in his official capacity only.
89. Defendant Daniel E. Jackson, Jr., the Sheriff of Geary County, Kansas, is sued in his official capacity only.
90. Pursuant to K.S.A. 48-925(c)(10) Defendants Carr and Jackson are subject to the Governor’s power to “require and direct the cooperation and assistance of state and local governmental agencies and officials,” including the enforcement of her Executive Orders, during a period of emergency declaration. (Emphasis added).
91. Under K.S.A. 19-813, Defendants Carr and Jackson have the power during peacetime and emergencies to “keep and preserve the peace in quiet and suppress all … unlawful assemblies” in their respective counties, and to “apprehend[] or secur[e] any person” and to call other county officials to their aid in exercising that power.
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92. Defendants Carr and Jackson, as Sheriffs, also have the authority to delegate this authority among their respective undersheriffs, deputies, and other subordinates. K.S.A. 19-805.
93. As Sheriff of Ford County, Defendant Carr has the power, both personally and through his subordinates, to enforce the church gathering prohibition against anyone in Ford County who violates it, including Plaintiff First Baptist Church.
94. As Sheriff of Geary County, Defendant Jackson has the power, both personally and through his subordinates, to enforce the church gathering prohibition against anyone in Geary County who violates it, including Plaintiff Calvary Baptist Church.
FACTS First Baptist Church (Dodge City, Kansas) 95. First Baptist Church has continuously operated as a Christian church in Dodge City, Kansas since at least the 1930s. 96. The Church is affiliated with the American Baptist denomination. 97. First Baptist Church and Pastor Ormord believe that the Bible is the inspired Word of God and the sole authority for faith and practice. 98. They believe the Bible teaches, among other things, the requirement to gather together for corporate prayer and worship and that such assembly is necessary and good for the Church and its members’ spiritual growth. 99. The Church has a relatively small, rural congregation with an average attendance of between 50 and 75 people. 100. Despite the Church’s best efforts, it has been difficult for the church to offer an online service, and many congregants have internet bandwidth limitations or lack internet altogether and are therefore unable to participate in an on-line service.
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101. On Easter Sunday, April 12, 2020, the Church attempted to offer a “drive-in”

service in its parking lot and online streaming of its service to congregants sitting in their

individual cars. However, high winds and internet streaming problems made it impossible for

congregants to listen to or effectively participate in the service. As a result, some congregants

expressed their difficulties to the church on Facebook. Those part of the service inside the

building followed its previous social distancing and health safety protocol as outlined herein

during the service.

First Baptist Church’s Voluntary Response to COVID-19 Guidelines

102. As a response to federal, state, and local guidance at the beginning of the COVID-

19 outbreak, but prior to any local or state order regarding mass gatherings, First Baptist Church

voluntarily adopted rigorous social distancing and health safety protocol to protect church

service attendees.

103. In its most current form, this protocol, as outlined in Exhibit 4 (letter to Clay

Britton), includes the following precautions:



Prior to and following the in-person service, the facility will be deep cleaned;



Invitations will be directed to regular church attendees for this in-person service;



Individuals will be advised to continue to engage in “stay at home” protocols as

directed by EO 20-16 in order to attend the service;



No church members are known to have had any contact with known COVID-19

confirmed cases;



Attendees will be advised to perform temperature checks at home on all attendees

prior to attending the service. Individuals that are ill or have fevers will not

attend;

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

High-risk individuals will be advised not to attend the in-person service;



Attendees will be advised to bring their own PPE, including masks and gloves;



Attendees will be advised not to engage in hand shaking or other physical contact;



Hand sanitizer will be available for use throughout the facility;



The in-person service will be limited to 50 individuals in a space that has a

capacity for 300 individuals (a cross-shaped auditorium 50 feet by 74 feet at the

center; 2,950 square feet total, allowing almost 57 square feet available to each

attendee at maximum social distancing);



Co-habituating family units may sit closer together but otherwise the maximum

social distancing possible will be used, however, at a minimum, the CDC-

recommended protocol will be observed with a minimum distance of at least 6

feet;



A single point of entry and single point of exit on opposite sides of the building

will be used, establishing a one-way traffic pattern to ensure social distancing;



Ventilation will be increased as much as possible, opening windows and doors, as

weather permits;



These procedures will be communicated to church members in advance of the

service;



Church bulletin and offering plates will not be used during the service;



Attendees will be advised to wash their clothes following the service;



If Church leadership becomes aware of a clear, immediate, and immanent threat

to the safety of the attendees or cannot follow the protocols listed above, the

gathering will be immediately disbanded.

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104. The Church and Pastor Ormord will continue to attempt to offer streaming services, weather and technology permitting, but seek to have the option to legally move their weekly Sunday worship service indoors if streaming services are not feasible or practicable, while practicing adequate social distancing and health safety protocol as recommended by federal, state, and local authorities, and without being subject to penalty or punishment.
Calvary Baptist Church (Junction City, Kansas) 105. Calvary Baptist Church has continuously operated as a Christian church in Junction City, Kansas since 1956. 106. The Church is an independent church, not closely affiliated with any association, convention, conference, or council of churches. 107. Calvary Baptist Church and Pastor Harris believe that the Bible is the inspired Word of God and the sole authority for faith and practice. 108. They believe the Bible teaches, among other things, the requirement to gather together for corporate prayer and worship and that such assembly is necessary and good for the Church and its members’ spiritual growth. 109. The Church has a relatively small congregation with an average attendance of between 75 and 100 people. Although the Church’s seating capacity is approximately 300, the Church will limit attendance to no more than 75. 110. The Church offers an online streaming option for viewing its service. 111. In order to offer an outdoor service, the Church must rent equipment on a weekly basis, including outdoor loud speakers, a tent canopy, and additional chairs.
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Calvary Baptist Church’s Voluntary Response to COVID-19 Guidelines 112. As a response to federal, state, and local guidance at the beginning of the COVID19 outbreak, but prior to any local or state order regarding mass gatherings, Calvary Baptist Church voluntarily adopted rigorous social distancing and health safety protocol to protect church service attendees. 113. For example, the Church: a. Split out pews and marked designated sitting areas to keep non-cohabitating
congregants at least six feet apart before, during, and after the worship service; b. Marked multiple entrances to encourage socially distanced foot traffic; c. Propped doors open during services to prevent the need for congregants to touch
doors while entering and exiting the church or sanctuary; d. Suspended the passing of offering plates; e. Actively discouraged handshaking or other social touching; f. Began offering hand sanitizer throughout the building; g. Procured face masks to offer to any interested persons. 114. The Church and Pastor Harris will continue to attempt to offer online streaming and outdoor services, weather and technology permitting, but seek to have the option to legally move their weekly Sunday worship service indoors when outdoor services are not feasible or practicable, while practicing adequate social distancing and health safety protocol as recommended by federal, state, and local authorities. 115. As recently as April 15, 2020, Pastor Harris has continued to communicate with law enforcement regarding the options for legally holding in-person church services. He has been
23

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directly warned by the Geary County Sheriff, Defendant Jackson, that any violations of EO 2018 et seq. will be criminally enforced.
COUNT I Violation of the First Amendment to the U.S. Constitution (Free Exercise) 116. Plaintiffs incorporate by reference paragraphs 1 through 114. 117. Plaintiffs’ sincerely held religious beliefs teach that the Bible is the inspired Word of God and the sole authority for faith and practice. 118. Plaintiffs sincerely believe that the Bible teaches the necessity of gathering together for corporate prayer and worship and that such assembly is necessary and good for the Church and its members’ spiritual growth. 119. Executive Order 20-25 substantially burdens Plaintiffs’ religion by prohibiting them from holding in-person church services with more than 10 non-performing congregants. 120. Executive Order 20-25 substantially interferes with Plaintiffs’ ability to carry out their religious doctrine, faith, and mission. 121. Executive Order 20-25 targets, discriminates against, and shows hostility towards churches, including Plaintiffs. 122. Executive Order 20-25 is neither neutral nor generally applicable. 123. The State does not have a compelling reason for prohibiting church services where congregants can otherwise practice adequate social distancing protocol, especially when compared to the vast secular activities exempted under the order, nor has it selected the least restrictive means to further any purported interest. 124. Executive Order 20-25 violates the Free Exercise Clause of the First Amendment to the United States Constitution, both facially and as applied.
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125. In the absence of declaratory and injunctive relief, Plaintiffs will be irreparably harmed.
COUNT II Violation of the First Amendment to the U.S. Constitution (Free Speech) 126. Plaintiffs incorporate by reference paragraphs 1 through 114. 127. Executive Order 20-25 violates Plaintiffs’ freedom of speech by prohibiting them from engaging in religious speech through their church services, which occur exclusively on private property. 128. Executive Order 20-25 gives government officials unbridled discretion with respect to enforcement of the order and the imposition of any penalty, making the order susceptible to both content- and viewpoint-based discrimination. 129. Prohibiting or punishing Plaintiffs’ religious speech does not serve any legitimate, rational, substantial, or compelling governmental interest. 130. The State also has alternative, less restrictive means to achieve any interest that it might have. 131. Executive Order 20-25 violates the Free Speech Clause of the First Amendment to the United States Constitution, both facially and as applied. 132. In the absence of declaratory and injunctive relief, Plaintiffs will be irreparably harmed.
COUNT III Violation of the First Amendment to the U.S. Constitution (Right to Assemble) 133. Plaintiffs incorporate by reference paragraphs 1 through 114. 134. The First Amendment prohibits the State from violating Plaintiffs’ right to peaceably assemble.
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135. Executive Order 20-25 violates Plaintiffs’ right to peaceably assemble because the ban on in-person services does not serve any legitimate, rational, substantial, or compelling governmental interest.
136. In addition, the State has alternative, less restrictive means to achieve any interest that it might have.
137. Executive Order 20-25 violates the right to assemble under the First Amendment to the United States Constitution, both facially and as applied.
138. In the absence of declaratory and injunctive relief, Plaintiffs will be irreparably harmed.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that the Court: a. Enter a temporary restraining order, preliminary injunction, and permanent injunction prohibiting Defendants from enforcing the portion of Governor’s Executive Order 20-25 limiting church public gatherings to less than 10 non-performing persons, thus allowing Plaintiffs and their congregants to continue to meet for worship while practicing adequate social distancing; b. Enter a judgment declaring that Governor’s Executive Order 20-25 violates the U.S. Constitution’s Free Exercise, Free Speech, Right to Assemble, and Due Process Clauses. c. Award Plaintiffs’ court costs and reasonable attorney fees; and d. Award such other and further relief as to which Plaintiffs may be entitled.
JURY DEMAND Plaintiffs hereby demand a trial by jury of all issues so triable pursuant to Rule 38 of the Federal Rules of Civil Procedure and the Seventh Amendment of the United States Constitution.
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It is respectfully requested that the jury trial be held in Wichita, KS given its geographic
proximity to all plaintiffs.
Respectfully submitted this 22nd day of April 2020.
/s/ Tyson C. Langhofer Tyson C. Langhofer KS Bar No. 19241 ALLIANCE DEFENDING FREEDOM 20116 Ashbrook Place, Suite 250 Ashburn, VA 20147 (480) 388-8205 tlanghofer@ADFlegal.org
David A. Cortman* GA Bar No. 188810 ALLIANCE DEFENDING FREEDOM 1000 Hurricane Shoals Rd. NE Suite D-1100 Lawrenceville, GA 30043 (770) 339-0774 dcortman@ADFlegal.org
Ryan J. Tucker* AZ Bar No. 034382 ALLIANCE DEFENDING FREEDOM 15100 N. 90th St. Scottsdale, AZ 85260 (480) 444-0020 rtucker@ADFlegal.org
/s/ Joshua A. Ney Joshua A. Ney, KS Bar No. 24077 NEY LAW FIRM, LLC 900 S. Kansas Ave., Ste. 402B Topeka, KS 66612 (785) 414-9065 josh@joshney.com
27

Case 6:20-cv-01102-JWB-GEB Document 33 Filed 04/22/20 Page 28 of 30 /s/ Ryan A. Kriegshauser Ryan A. Kriegshauser KS Bar No. 23942 KRIEGSHAUSER LAW LLC 15050 W. 138th St., Unit 4493 Olathe, KS 66063 (913) 303-0639 ryan@kriegshauserlaw.us ATTORNEYS FOR PLAINTIFFS *Admission for Pro Hac Vice forthcoming.
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Case 6:20-cv-01102-JWB-GEB Document 33 Filed 04/22/20 Page 29 of 30

VERIFICATION

I declare under penalty of perjury that the foregoing Amended Verified Complaint has been examined by me and that the factual allegations therein are true to the best of my information, knowledge, and belief.

Dated: April 22, 2020

~ -~-~ ~? U) d
PastorStephe'1onoor~d ~ ~ ~ ~First Baptist Church

Case 6:20-cv-01102-JWB-GEB Document 33 Filed 04/22/20 Page 30 of 30

VERIFICATION
/
I declare under penalty of perjury that the foregoing Amended Verified Complaint has been examined by me and that the factual allegations therein are true to the best ofmy information, knowledge, and belief.

Dated: April 22, 2020

7 1

//

:'/ ;' ,

/.'I/ I

I . i/i.(1,.,'I ....~ .

-:,'.,·:..:::-:/ vC.. /

Pastor Aaron Harris

Calvary Baptist Church

 
 Case 6:20-cv-01102-JWB-GEB Document 36 Filed 04/22/20 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

FIRST BAPTIST CHURCH; ET AL. Plaintiffs, V. GOVERNOR LAURA KELLY, in her official capacity, ET AL. Defendant.

) ) ) ) ) Case No. 6:20-cv-01102 ) ) ) ) )

SUGGESTION OF LACK OF SUBJECT MATTER JURISDICTION OVER SHERIFF CARR

During the April 21, 2020, 10:00 am, telephonic scheduling conference, this Court raised concerns regarding its subject matter jurisdiction and ordered briefing. Defense counsel moved at the scheduling conference that this Court stay its April 18, 2020 TRO, ECF No. 15, in light of the subject matter jurisdiction questions looming over this suit. The Court denied that oral motion. Defendant Kelly filed her Fed. R. Civ. P. 12(b)(1) motion on April 21, 2020. See ECF, No. 30. Plaintiffs, in response, filed their First Amended Complaint that added the Adjutant General and the Sheriffs of Ford and Geary County. See ECF, No. 32 (April 22, 2020).
In light of the Amended Complaint, Governor Kelly enters this suggestion that this Court lacks jurisdiction over Ford County Sheriff William Carr. Governor Kelly respectfully suggests that this Court DISMISS this entire case for lack of subject matter jurisdiction under the Eleventh Amendment as to Defendant Carr. Given the allegations in the Amended Complaint, at this time,

Case 6:20-cv-01102-JWB-GEB Document 36 Filed 04/22/20 Page 2 of 6
it would appear that this Court does not face an Eleventh Amendment bar regarding the claims against Sheriff Jackson or Adjutant General Weishaar.
Argument
The Eleventh Amendment Bars Jurisdiction Over Sheriff Carr. The Eleventh Amendment applies to sheriffs in Kansas. In determining whether a particular entity receives Eleventh Amendment immunity, the court considers whether the entity is an “arm of the state.” Mt. Healthy City Sch. Dist. v. Doyle, 429 U.S. 274, 280 (1977). The Tenth Circuit sets forth a four-factor test for this analysis: (1) How is the entity characterized under state law? (2) What is the entity’s degree of autonomy from the state? (3) Where does the entity get its operating funds? (4) Is the entity primarily concerned with state or local affairs? Steadfast Ins. Co. v. Agric. Ins. Co., 507 F.3d 1250, 1253 (10th Cir. 2007). “If a state entity is more like a political subdivision—such as a county or city—than it is like an instrumentality of the state, that entity is not entitled to Eleventh Amendment immunity.” Id. The Tenth Circuit, in an unpublished decision, and a number of courts in the District of Kansas have held that Kansas sheriffs act on behalf of the state and are therefore immune from suit in federal court. See Hunter v. Young, 238 Fed.Appx. 336, 338 (10th Cir. 2007); Arnold v. City of Olathe, Kansas, No. 18-2703-CM, 413 F. Supp. 3d 1087, 1109 (D. Kan. Sept. 11, 2019) ("The Tenth Circuit and a number of judges in the District of Kansas have held that Kansas sheriffs act on behalf of the state and are therefore immune from suit in federal court."); Broyles v. Marks, No. 18-3030-SAC, 2018 WL 2321822, at *4 (D. Kan. May 22, 2018); Self v. Cnty. of Greenwood, No. 12-1317-JTM, 2013 WL 615652, at *2 (D. Kan. Feb. 19, 2013); Brown v. Kochanowski, No. 073062-SAC, 2012 WL 4127959, at *9 n.3 (D. Kan. Sept. 19, 2012), aff'd 513 Fed.Appx. 715 (10th

Case 6:20-cv-01102-JWB-GEB Document 36 Filed 04/22/20 Page 3 of 6
Cir. 2013). Some decisions from the District of Kansas courts, however, have found that sheriffs are not entitled to immunity in Kansas. See, e.g., Trujillo v. City of Newton, No. 12-2380-JAR, 2013 WL 535747, at *10 (D. Kan. Feb. 12, 2013); Reyes v. Bd. of Cnty. Comm'rs of Sedgwick Cnty., No. 07-2193-KHV, 2008 WL 2704160, at *7–9 (D. Kan. July 3, 2008).
This Court should agree with the analysis in those cases finding Kansas sheriffs immune under the Eleventh Amendment. First, the Kansas legislature created the office of the sheriff. Kan. Stat. Ann. 19-801a. Sheriffs in Kansas are required—by statute—“to keep and preserve the peace in their respective counties, and to quiet and suppress all affrays, riots and unlawful assemblies and insurrections, for which purpose, and for the service of process in civil or criminal cases, and in apprehending or securing any person for felony or breach of the peace, they, and every coroner, may call to their aid such person or persons of their county as they may deem necessary.” Kan. Stat. Ann. 19-813. And the State of Kansas is responsible for prosecuting violations of Kansas law. Nielander v. Bd. of Cnty. Comm'rs, 582 F.3d 1155, 1164 (10th Cir. 2009) (holding that county attorneys act on behalf of the state, not the county, in Kansas).
Second, the board of county commissioners in Kansas lacks authority to determine how a county sheriff chooses his employees or expends budgeted funds. Bd. of Cnty. Comm'rs v. Nielander, 62 P.3d 247, 251 (Kan. 2003). County sheriffs are not subject to local control. Rather, The sheriff is an independently elected officer whose office, duties, and authorities are established and delegated by the legislature. K.S.A. 19-801a et seq. Thus, the sheriff is not a subordinate of the board of county commissioners and neither are the undersheriff or the sheriff’s deputies and assistants. Rather, the sheriff is a state officer whose duties, powers, and obligations derive directly from the legislature and are coextensive with the county board. Nielander, 62 P.3d at 251.

Case 6:20-cv-01102-JWB-GEB Document 36 Filed 04/22/20 Page 4 of 6
The third and fourth factors are not of weight here. Even if the county funds the sheriff’s operations and the sheriff has relatively limited geographical authority, these factors were the same for county attorneys in Nielander, and the Tenth Circuit still held that they were entitled to Eleventh Amendment immunity. 582 F.3d at 1164; see also McMillian v. Monroe Cnty., 520 U.S. 781, 791 (1997) (recognizing that salary source and geographic limitations are not dispositive of whether an entity is an arm of the state). Based on these factors, as well as Hunter v. Young (albeit an unpublished opinion), this Court should determine that the suit against Sheriff Carr and Sheriff Jackson is governed by the Eleventh Amendment.
The Eleventh Amendment generally bars suits against a state in federal court commenced by citizens of that state or citizens of another state. See Hans v. Louisiana, 134 U.S. 1, 13–15 (1890). In Ex parte Young, however, the Supreme Court held that the Eleventh Amendment does not bar a suit against a state official in federal court that seeks only prospective equitable relief for violations of federal law. See 209 U.S. 123, 159–60 (1908). This exception is predicated upon the state official having “some connection” with the enforcement of the challenged state action. Id. at 157 (“In making an officer of the state a party defendant in a suit to enjoin the enforcement of an act alleged to be unconstitutional, it is plain that such officer must have some connection with the enforcement of the act, or else it is merely making him a party as a representative of the state, and thereby attempting to make the state a party.”). The Tenth Circuit brings added clarity to the Ex parte Young holding, stating that “[d]efendants are not required to have a ‘special connection’ to the unconstitutional act or conduct. Rather, state officials must have a particular duty to ‘enforce’ the statute in question and a demonstrated willingness to exercise that duty.” Peterson v. Martinez, 707 F.3d 1197, 1205 (10th Cir. 2013) (quoting Prairie Band Potawatomi Nation v. Wagnon, 476 F.3d 818, 828 (10th Cir. 2007)) (emphasis added).

Case 6:20-cv-01102-JWB-GEB Document 36 Filed 04/22/20 Page 5 of 6
Sheriff Carr lacks a demonstrated willingness to enforce EO 20-25, rendering this court without subject matter jurisdiction over him pursuant to the Eleventh Amendment. Here, while Sheriff Carr and Sheriff Jackson hold “a particular duty” to enforce EO 20-25, Sheriff Carr lacks “a demonstrated willingness to exercise that duty.” Plaintiffs’ Amended Complaint alleges that Sheriff Jackson will enforce EO 20-25. See Amd. Cmplt. at ¶ 14. Notably, they make no such allegation regarding Sheriff Carr. As the party asserting jurisdiction, the Plaintiffs bear the burden to establish it. Fed. R. Civ. P. 8(a)(1). Again, they offer no allegations that Sheriff Carr intends to enforce EO 20-25, this on its own is a sufficient basis to dismiss, as the Plaintiffs have failed to meet their burden.
Moreover, Sheriff Carr’s own statements undercut any such possible assertion. Sheriff Carr has stated: “‘As it currently stands our intention will be to continue educating the public on the Governor’s Executive Orders,’ Ford County Sheriff Bill Carr said. ‘We will continue to assess the situation as it presents changes on a continual basis. As for enforcement of violations, we will look at each situation on a case-by-case basis.’” See Vincent Marshall, “Enforcement of stay-athome orders taken case by case,” Dodge City Daily Globe (April 2, 2020), available at https://www.dodgeglobe.com/news/20200402/enforcement-of-stay-at- home-orders-taken-caseby-case. Sheriff Carr’s statement shows that Plaintiffs lack any demonstrated willingness on behalf of Sheriff Carr to enforce EO 20-25. As such, this Court lacks subject matter jurisdiction over Sheriff Carr pursuant to the Eleventh Amendment.

Case 6:20-cv-01102-JWB-GEB Document 36 Filed 04/22/20 Page 6 of 6
Conclusion
For the foregoing reasons, Defendant respectfully prays that this Court DISMISS the entire
complaint for lack of subject matter jurisdiction under the Eleventh Amendment as to Defendants
Carr..
RESPECTFULLY SUBMITTED GOVERNOR LAURA KELLY
/s/Pedro L. Irigonegaray Pedro L. Irigonegaray, #08079 IRIGONEGARAY, TURNEY, & REVENAUGH, L.L.P. 1535 SW 29th Street Topeka, KS 66611 T: 785-267-6115 F: 785-267-9458 pedro@itrlaw.com
/s/ Lumen N. Mulligan Lumen N. Mulligan, #21337 Attorney at Law 1616 Indiana St. Lawrence, KS 66044 T: 785-691-9367 F: 785-691-9362 lumenmulligan1973@gmail.com
Attorneys for Defendant Governor Laura Kelly

 
 Case 6:20-cv-01102-JWB-GEB Document 41 Filed 04/22/20 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

FIRST BAPTIST CHURCH ; PASTOR STEPHEN ORMORD; CALVARY BAPTIST CHURCH; PASTOR AARON HARRIS
Plaintiffs,
v.
GOVERNOR LAURA KELLY, in her official capacity, ET AL.
Defendants. ____________________________________

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Case No. 6:20-cv-01102-JWB-GEB

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MOTION TO EXPAND TEMPORARY RESTRAINING ORDER TO ADDITIONAL PARTIES AND REQUEST FOR EXPEDITED HEARING

COMES NOW Plaintiffs in this matter, by and through counsel, and respectfully move

this Court for an Order expanding the Temporary Restraining Order issued April 18, 2020 to

enjoin, in addition to Defendant Governor Laura Kelly, the remaining Defendants: Adjutant

General David Weishaar, Geary County Sheriff Daniel E. Jackson, Jr., and Ford County Sheriff

William Carr. In support of their Motion, Plaintiffs state the following:

1. The verified facts and statements of law in Plaintiffs’ Amended Verified Complaint

for Declaratory Judgment and Injunctive Relief (Doc. 3) are incorporated herein by reference.

2. The legal authorities and arguments contained in Plaintiffs’ Motion for Expedited

Hearing and Motion for Temporary Restraining Order (Doc. 7) with Exhibits (Docs. 7-1 and 7-2)

are incorporated herein by reference.

3. On April 16, 2020, Plaintiffs filed the original Complaint against Governor Laura

Kelly in her official capacity.

1

Case 6:20-cv-01102-JWB-GEB Document 41 Filed 04/22/20 Page 2 of 4
4. On April 17, Plaintiffs moved the Court for a Temporary Restraining Order as to Defendant Kelly. Later that day, an expedited hearing was held on the Motion.
5. On April 18, this Court issued a Memorandum and Order along with a Temporary Restraining Order enjoining the Governor from enforcing Executive Order 20-18 (“EO 20-18”) and Executive Order 20-25 (“EO 20-25”) against Plaintiffs.
6. On April 21, counsel for Governor Kelly filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction.
7. On April 22, Plaintiffs filed an Amended Complaint to address developments related to the issuance of EO 20-25 and adding Adjutant General David Weishaar, Geary County Sheriff Daniel E. Jackson, Jr., and Ford County Sheriff William Carr as additional Defendants (hereinafter “Additional Defendants”).
8. Plaintiffs will file a response to the Governor’s Motion to Dismiss within the timeframe established by the Court’s Order (Doc. 24) demonstrating that the Court has subject matter jurisdiction to enjoin Governor Kelly from enforcing EO 20-25.
9. As detailed in the Amended Verified Complaint, Kansas law also grants concurrent authority to Defendants Carr, Jackson, and Weishaar to enforce EO 20-25 against Plaintiffs.
10. As a result, to ensure that Executive Order 20-25 is not unconstitutionally enforced against Plaintiffs by either the Governor, pursuant to her supreme directive enforcement powers derived in part from Kan. Const. Art. I, § 3 and K.S.A. 48-925(a) & (c)(10), or by the three Additional Defendants pursuant to their delegated ordinary peacetime and/or extraordinary emergency enforcement powers derived from relevant statutes and the emergency directives of the Governor, the Court’s Temporary Restraining Order should be expanded to enjoin all four named Defendants.
2

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11. Accordingly, Plaintiffs respectfully request that the Temporary Restraining Order issued on April 18, 2020 be expanded to include both Defendant Kelly and the Additional Defendants.
12. Plaintiffs request an expedited hearing on this Motion because another Sunday is less than four days away and Plaintiffs wish to gather for worship pursuant to the social distancing protocols proposed to the Court and set forth in the Temporary Restraining Order.
WHEREFORE, for the foregoing reasons, Plaintiffs respectfully pray the Court expand the Temporary Restraining Order to enjoin Governor Laura Kelly, Adjutant General David Weishaar, Geary County Sheriff Daniel E. Jackson, Jr., and Ford County Sheriff William Carr from enforcing the religious activity prohibition of EO 20-25 against Plaintiffs.
Respectfully submitted this 22nd day April 2020.
/s/ Tyson C. Langhofer Tyson C. Langhofer KS Bar No. 19241 ALLIANCE DEFENDING FREEDOM 20116 Ashbrook Place, Suite 250 Ashburn, VA 20147 (480) 388-8205 tlanghofer@ADFlegal.org David A. Cortman* GA Bar No. 188810 ALLIANCE DEFENDING FREEDOM 1000 Hurricane Shoals Rd. NE Suite D-1100 Lawrenceville, GA 30043 (770) 339-0774 dcortman@ADFlegal.org
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Ryan J. Tucker* AZ Bar No. 034382 ALLIANCE DEFENDING FREEDOM 15100 N. 90th St. Scottsdale, AZ 85260 (480) 444-0020 rtucker@ADFlegal.org /s/ Joshua A. Ney Joshua A. Ney, KS Bar No. 24077 NEY LAW FIRM, LLC 900 S. Kansas Ave., Ste. 402B Topeka, KS 66612 (785) 414-9065 josh@joshney.com /s/ Ryan A. Kriegshauser Ryan A. Kriegshauser KS Bar No. 23942 KRIEGSHAUSER LAW LLC 15050 W. 138th St., Unit 4493 Olathe, KS 66063 (913) 303-0639 ryan@kriegshauserlaw.us ATTORNEYS FOR PLAINTIFFS *Admission for Pro Hac Vice forthcoming.
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

FIRST BAPTIST CHURCH; PASTOR STEPHEN ORMORD; CALVARY BAPTIST CHURCH; PASTOR AARON HARRIS
Plaintiffs,
GOVERNOR LAURA KELLY, in her official capacity; ADJUTANT GENERAL DAVID WEISHAAR, in his official capacity; GEARY COUNTY SHERIFF DANIEL E. JACKSON, JR. in his official capacity; FORD COUNTY SHERIFF WILLIAM CARR, in his official capacity,
Defendants.

) ) ) ) ) ) ) Case No. 6:20-cv-01102 ) ) ) ) ) ) ) )

PLAINTIFFS’ OPPOSITION TO DEFENDANT KELLY’S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION

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TABLE OF CONTENTS TABLE OF AUTHORITIES ...................................................................................................III INTRODUCTION .....................................................................................................................1 RELEVANT BACKGROUND .................................................................................................3 ARGUMENT .............................................................................................................................5 I. The Governor’s motion should be denied because she is a properly
named defendant under Ex parte Young....................................................................5 A. The Governor has the power to enforce EO 20-25. .................................................6 B. That the attorney general has general law enforcement authority does not
mean the Governor lacks the power to enforce EO 20-25.....................................11 II. The Plaintiffs’ lawsuit is still not moot. ...................................................................15 CONCLUSION ........................................................................................................................16
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Cases

TABLE OF AUTHORITIES

Day v. Bond, 500 F.3d 1127 (10th Cir. 2007) ................................................................... 14, 15

Day v. Sebelius, 376 F. Supp. 2d 1022 (D. Kan. 2005).......................................................... 14, 15

Ex Parte Young, 209 U.S. 123 (1908) ............................................................................ 4 - 7, 10, 14

Finstuen v. Crutcher, 496 F.3d 1139 (10th Cir. 2007) ......................................................................... 10

Heinz v. Shawnee County Commissioners, 136 Kan. 104, (1932) ......................................................................................... 14

In re Abbott, 2020 WL 1911216 (5th Cir. Apr. 20, 2020) ...................................................... 10

Memorial Hospital Association, Inc. v. Knutson, 722 P.2d 1093 (Kan. 1986) ................................................................................ 14

Northeastern Florida Chapter, Associated General Contractors of America v. Jacksonville, 508 US 656 (1993) ............................................................................................. 16

Petrella v. Brownback, 697 F.3d 1285 (10th Cir. 2012) ........................................... 8, 9

Prairie Band Potawatomi Nation v. Wagnon, 476 F.3d 818 (10th Cir. 2007) ........................................................................ 7 - 9

Robinson v. Kansas, 295 F.3d 1183 (10th Cir.2002) ............................................................................ 9

Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159 (10th Cir.2012) ............................................................................ 9

South Carolina Wildlife Federation v. Limehouse, 549 F.3d 324 (4th Cir. 2008) ........................................................................... 7, 8

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State v. Dawson, 119 P. 360 (Kan. 1911) ...................................................................................... 14
State v. Finch, 128 Kan. 665, (1929) ......................................................................................... 14
VanSickle v. Shanahan, 511 P.2d 223 (Kan. 1973) .................................................................................... 1
Statutes Kan. CONST. art. I, § 3 ................................................................................................... 3 Kan. CONST. art. VIII, § 4 .............................................................................................. 3 K.S.A. 19-813 ............................................................................................................... 14 K.S.A. 48-203 ......................................................................................................... 11, 12 K.S.A. 48-204 ............................................................................................................... 12 K.S.A. 48-907 ............................................................................................................... 12 K.S.A. 48-924 ......................................................................................................10, 15 K.S.A. 48-925 .................................................................................. 2 - 4, 6, 7, 10, 11, 15 K.S.A. 48-932 ............................................................................................................... 10 K.S.A. 48-934 ............................................................................................................... 12 K.S.A. 48-939 ............................................................................................................... 10 K.S.A. 75-702 ............................................................................................................... 14
Other Authorities Montesquieu, The Spirit of the Law I 35 (vol. 7, Thatcher ed.,
The Ideas that Have Influenced Civilization)...............................................1
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INTRODUCTION Governor Laura Kelly has declared a statewide public health emergency to respond to a global pandemic. That declaration has been ratified by the legislature, and she has now assumed the full force and might of the state’s executive power over all 105 counties. By law, her power to direct the state’s law enforcement community in its execution of the state’s criminal laws is supreme and total. In no other legal moment is the full force and effect of Article I, Section 3 of the Kansas Constitution so purely distilled: “The supreme executive power of this state shall be vested in a governor, who shall be responsible for the enforcement of the laws of this state.” Pursuant to K.S.A. 48-924 and 925, Kansas Governor Laura Kelly has assumed extraordinary legislative and executive functions of the state government that in ordinary times would be anathema to a democratic republic.1 But, these are not ordinary times. As a result of her legislatively ratified emergency declaration under K.S.A. 48-924, Governor Kelly has temporarily assumed the legislative function of a onewoman legislature. Under K.S.A. 48-925(b), she “may issue orders and proclamations which shall have the force and effect of law during the period of a state of disaster emergency.”
1“When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.” VanSickle v. Shanahan, 511 P.2d 223, 239 (Kan. 1973) (citing Montesquieu, The Spirit of the Law (7, Thatcher Editor, The Ideas that Have Influenced Civilization, p. 35).
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But more fundamentally—via the merger of the Governor’s constitutional “supreme executive power” with the statutory suspension of the distribution of executive power within the administrative state and its subsidiary local elected officials—she has assumed the extraordinary powers of a unitary executive pursuant to K.S.A. 48-925(a) and (c). During a ratified emergency, she is constitutionally and statutorily the “commander-in-chief of the organized and unorganized militia and of all other forces available for emergency duty.” See K.S.A. 48-925(a). With her assumed domestic powers during a statewide emergency, she may:
 require and direct the cooperation and assistance of state and local governmental agencies and officials;
 commandeer or utilize any private property in the state;  utilize all resources of the state government and local units of
government;  rearrange the “supervision, personnel or functions” of the state’s
executive agencies to engage in emergency management activities;  direct and compel the evacuation of any part of the state;  control the movement and occupancy of persons and animals within
the state; and  command the state’s resources to provide temporary emergency
housing; See id. at (c)(2), (3), (4), (5), (7), (9) and (10) (emphasis added). This list of her emergency executive powers is not exhaustive. See id. at (c)(11).
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The key to deciding whether this federal court has jurisdiction under the Eleventh Amendment to restrain her from enforcing her church gathering ban, and specifically, whether Governor Laura Kelly has “some connection with the enforcement” of the Executive Order 20-25 (“EO 20-25"), lies in considering the governor’s extraordinary executive powers as outlined above. Ex Parte Young, 209 U.S. 123, 157 (1908) (under the Eleventh Amendment, an enjoined state executive officer “must have some connection with the enforcement of the act”). When considering the constitutional background of this statutory grant of executive prerogative, it is clear that the Governor is the proper—and principal—law enforcement official to be enjoined. See Petrella v. Brownback, 697 F.3d 1285, 1293– 94 (10th Cir. 2012) (when the constitutionality of a state law is challenged where only prospective, non-monetary relief is sought, the Governor is a proper party, along with other state officials responsible for the enforcement of that statute) (discussing Ex parte Young, 209 U.S. at 161).
Governor Kelly is the chief law enforcement officer generally during peacetime, and has consolidated enforcement power during a declared emergency. She maintains directive and complete control over the state’s military personnel and state and local peace officers. She has complete connection with the enforcement of EO 20-25, and she must be enjoined from directing the arrests of persons safely gathering for church or other religious activities.
RELEVANT BACKGROUND Under Article I, Section 3 of the Kansas Constitution, “the supreme executive power of this state shall be vested in [Governor Kelly], who shall be responsible for
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the enforcement of the laws of this state.” No other executive officer is vested constitutionally with law enforcement power. In addition, under Article VIII, Section 4 of the Kansas Constitution, Governor Kelly has the “power to call out the militia to execute the laws,” including executive orders. Under the Kansas Constitution, the Governor is clearly the ultimate executive officer in the State of Kansas with the duty to enforce Kansas law.
What is more, Governor Kelly has broad legislative and executive authority during states of disaster emergency. The Kansas Emergency Management Act (KEMA) grants the Governor the authority to “require and direct the cooperation and assistance of state and local governmental agencies and officials,” including ordering enforcement of EO 20-25. K.S.A. 48-925(c)(10) (emphasis added). In addition, KEMA gives her the legislative power to “issue orders and proclamations which shall have the force and effect of law during the period of a state of disaster emergency.” K.S.A. 48-925(b). And it provides that, “[d]uring any state of disaster emergency,” she is the “commander-in-chief of the organized and unorganized militia and all other forces available for emergency duty.” K.S.A. 48-925(a). While the Governor shall, “[t]o the greatest extent practicable,” “delegate or assign command authority by prior arrangement, embodied in appropriate executive orders,” nothing “shall restrict [her] authority to do so by orders issued at the time of a disaster.” Id.
Given this framework, Governor Kelly has exercised her legislative power during this state of emergency by issuing the prohibitions and regulations in EO 20-
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25. And by ordering and directing enforcement of EO 20-25, Governor Kelly has exercised her executive power by enforcing (and promising to enforce) those same prohibitions and regulations.
ARGUMENT I. The Governor is a properly named defendant under Ex parte Young
because she is vested with the emergency power to enforce her orders. The Governor seeks dismissal from and of this suit pursuant to the sovereign immunity provision of the Eleventh Amendment.2 Under Ex Parte Young, this Court has jurisdiction to enjoin the Governor for issuing unconstitutional legislative emergency proclamations when she has some “connection to the enforcement” of such proclamations. 209 U.S. at 157. When the challenged state official is vested with such enforcement power she is subject to an injunctive remedy. Id. The Governor argues in her motion that she must be dismissed as a party because she lacks the power and authority to enforce her own executive orders during an emergency. Different court, different tune. Just two weeks ago, the Governor rightly claimed before the Kansas Supreme Court that during a declared emergency under K.S.A. 48-924, her “authority is at its maximum.” See Memo. in Supp. of Pet. in Quo Warranto at 8, Kelly v. Legislative Coordinating Council, Case
2 Given that Plaintiffs have amended their complaint to include other state and local officials with authority to enforce the Governor’s church gathering ban against the Plaintiffs, the Governor’s motion cannot result in complete dismissal of this lawsuit. By adding additional government officials who also possess law enforcement authority subject to and concurrent with the Governor’s supreme law enforcement power, such officials must be enjoined from enforcing an Executive Order, which falls afoul of the First Amendment. In any event, a dismissal of the Governor from this lawsuit should not affect the court’s jurisdiction to prohibit the enforcement of her unconstitutional church ban against the remaining Defendants.
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No. 122,765 (Kan.). Certainly, her newly adopted legislative function is at its maximum pursuant to K.S.A. 48-925(b).
But this power to decree law pales in comparison to her power to enforce such decrees during a period of emergency under K.S.A. 48-925(a) and (c). It is inexplicable, then, that the Governor fails to mention these new, consolidated law enforcement powers under K.S.A. 48-925(a) and (c) anywhere in her motion to dismiss, except for the illogical proposition that her executive powers (e.g., commandeer or utilize any private property in the state; utilize all resources of the state government and local units of government; require and direct the cooperation and assistance of state and local governmental agencies and officials) are somehow limited to her temporary legislative powers. See MTD at 7 (incorrectly suggesting that the extent of her powers in K.S.A. 48-925(a) and (c) are limited by K.S.A. 48925(b).)
The Governor cannot have it both ways. She cannot claim the maximum extent of her executive and legislative powers when making sweeping legislative decrees and marshalling the full might of the state’s military, administrative, and law enforcement officers to meet a public health emergency, and then attempt to hide behind the “discretion” of local law enforcement officers when she has gone too far.
A. The Governor has the supreme power to enforce EO 20-25. When a state law is challenged as unconstitutional, a defendant must have
“some connection with the enforcement of the act” to properly be a party to the suit. Ex Parte Young, 209 U.S. at 157. This requirement merely ensures that the proper
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party is before the federal court. Id. at 158–59. Thus, it has primarily been “a bar to injunctive actions where the relationship between the state official sought to be enjoined and the enforcement of the state statute is significantly attenuated.” S. Carolina Wildlife Federation v. Limehouse, 549 F.3d 324, 333 (4th Cir. 2008). As the Fourth Circuit put it, the requirement “serve[s] as a measure of proximity to and responsibility for the challenged state action.” Id. (emphasis in original). In other words, it “ensures that a federal injunction will be effective with respect to the underlying claim.” Id.
The Tenth Circuit takes a similar approach. To fall within the Ex Parte Young exception to Eleventh Amendment immunity, plaintiffs must show only that the named officials have “some connection” to the enforcement of the challenged law. Prairie Band Potawatomi Nation v. Wagnon, 476 F.3d 818, 828 (10th Cir. 2007). Plaintiffs therefore need not establish a “special connection” between the named officials and EO 20-25. Id. In fact, the named officials need not even be “specifically empowered to ensure compliance with the statute at issue.” Id. It is enough that they “currently assist in giving effect to the law.” Id.
In Prairie Band, a Native American tribe sued various Kansas state officials, including the Superintendent of the Kansas Highway Patrol, to force the state to recognize motor vehicle registrations and titles issued by the tribe. Id. at 820. Like the Governor does here, the Kansas officials denied a sufficient connection between themselves and the challenged law because they were “not specifically empowered to enforce the state statute in question.” Id. at 828. The Tenth Circuit disagreed,
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explaining that the officials need not be “specifically empowered” to enforce the law as long as they were responsible for “giving effect” to the law. Id.
Under that general standard, the Tenth Circuit has specifically opined that the Kansas Governor is a proper party under Ex Parte Young where injunctive relief is sought against the enforcement of an unconstitutional state law. Petrella v. Brownback, 697 F.3d 1285, 1293-1294 (10th Cir. 2012). In Petrella , Kansas Governor Sam Brownback was a party to a lawsuit challenging the constitutionality of the state’s school finance law along with several other Kansas executive branch officials, including the commissioner of education, all the members of the state board of education, the Kansas Attorney General, and the Kansas State Treasurer. Id. When the Governor and other executive branch officials sought to be dismissed from the suit based on a purported lack of causation between the Governor’s enforcement power and the alleged constitutional injury, the court summarily concluded:
It cannot seriously be disputed that the proper vehicle for challenging the constitutionality of a state statute, where only prospective, nonmonetary relief is sought, is an action against the state officials responsible for the enforcement of that statute. See Ex parte Young, 209 U.S. 123, 161, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Nor can it be disputed that the Governor and Attorney General of the state of Kansas have responsibility for the enforcement of the laws of the state. See Kan. CONST. Art. I § 3; Kan. Stat. Ann. § 75–702. And this Court has already held, in another challenge to Kansas's school finance scheme, that the state school board officials and Commissioner of Education are proper defendants in such a suit. See Robinson v. Kansas, 295 F.3d 1183, 1191 (10th Cir.2002), abrogated on other grounds by Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159 (10th Cir.2012). Id.
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Like Governor Brownback in Petrella, Governor Kelly is a proper party to this suit for injunctive relief. Not only is Governor Kelly vested with the “responsibility for enforcement of laws of the state,” but she is also particularly “empowered” to enforce EO 20-25 and is undeniably responsible for “giving effect” to it. See id.; Prairie Band, 476 F.3d at 828.
Moreover, Plaintiffs’ basis for including Governor Kelly as the principal defendant in this case is not simply due to the fact that she has enforcement power over her own emergency executive orders, nor even that she has expressed a willingness to enforce, but fundamentally that she already has employed her executive powers to enforce her decrees of law. Indeed, the Governor has plainly “direct[ed] and order[ed]” law enforcement authorities to enforce EO 20-25.3 And in so doing, she has relied on both her constitutional and emergency statutory powers. See EO 20-25 at 2 (“NOW, THEREFORE, pursuant to the authority vested in me as Governor of the State of Kansas, including the authority granted me by K.S.A 48924 and K.S.A 48-925, in order to slow the spread of COVID-19, I hereby direct and order . . . .”).
In other words, the Governor did not merely issue EO 20-25 pursuant to her legislative powers under K.S.A. 48-925(b), but instead did so pursuant to her executive powers under 48-925(a). These executive powers include her power over
3 The Governor asserts that because EO 20-25 references local officials’ enforcement authority and discretion (but not the Governor’s), she cannot have any enforcement authority of her own. But it is well-established that a defendant need not be identified in the challenged statute itself to fit within the Ex parte Young exception. See Finstuen v. Crutcher, 496 F.3d 1139, 1151 (10th Cir. 2007) (“[I]t is not necessary that the officer’s enforcement duties be noted in the act.”) (citation omitted).
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the adjutant general and state militia as commander-in-chief as well as her power to “require and direct the cooperation and assistance of state and local governmental agencies and officials” to enforce her orders. K.S.A. 48-925(c)(10).
It should also not escape attention that the major criminal enforcement provision cited for a violation of EO 20-25 is contained in KEMA and is directly based on the Governor’s orders. K.S.A. 48-939 states:
The knowing and willful violation of any provision of this act or any rule and regulation adopted by the adjutant general under this act or any lawful order or proclamation issued under authority of this act whether pursuant to a proclamation declaring a state of disaster emergency under K.S.A. 48-924 or a declaration of a state of local disaster emergency under K.S.A. 48-932, shall constitute a class A misdemeanor and any person convicted of such violation shall be punished as provided by law therefor. Accordingly, after utilizing her legislative powers to issue an order, KEMA has a criminal penalty derivative of the Governor’s authority that also vests her, and others, including those she directs, with the ability to enforce her order criminally. This interaction between the Governor’s legislative and executive powers is at the core of “giving effect” to the law. In this way, then, Governor Kelly’s powers diverge significantly from the executive powers addressed by the court in In re Abbott, 2020 WL 1911216 (5th Cir. Apr. 20, 2020). There, the Texas governor had only the power to “issue,” “amend,” or “rescind” executive orders; he could not “enforce” them. Id. at *6. In stark contrast, under KEMA, Governor Kelly has the power to enforce EO 20-25. She is not simply equipped with the executive machinery over which she employs direct control in peacetime, i.e. the state highway patrol, the capitol police, the adjutant general, and
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the state militia. Rather, during a period of emergency, she may directly employ the full might of the Kansas executive branch, including the power to direct state and local law enforcement in the enforcement of her decrees.
B. The Governor has enforcement powers directly and through her deputies, including the Kansas Adjutant General.
The Adjutant General, as the Governor’s main deputy in an Emergency, has enhanced enforcement abilities and is charged with the enforcement of the Governor’s orders. In an emergency, the Governor of Kansas is the “commander-inchief of the organized and unorganized militia and of all other forces available for emergency duty.” K.S.A. 48-925(a). In fact, the Governor’s command is “supreme” over the military forces of the state. K.S.A. 48-203. As the Adjutant General is appointed by the Governor with Senate confirmation and serves at the pleasure of the governor, he is under the Governor’s direct control and influence. K.S.A. 48-203; see also K.S.A. 48-905(a). The Adjutant General is the head of both the Kansas National Guard and the state militia. Normally, he has the ability to appoint qualified law enforcement officers to serve under his command. K.S.A. 48-204(b)(5). However, during a time of emergency, the Adjutant General’s law enforcement powers become even more pronounced. Under KEMA, military personnel, in addition to law enforcement officers, are granted power to enforce emergency orders. K.S.A. 48-934 states:
“Law enforcement officers, military personnel, or other persons authorized to assist them, while engaged in maintaining or restoring the public peace or safety or in the protection of life or property during a state of disaster emergency proclaimed under K.S.A. 48-924, shall have all powers duties and immunities of peace officers of the state of
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Kansas in addition to all powers, duties and immunities now otherwise provided by law.” Additionally, the Adjutant General has derivative powers to direct local law enforcement officials to assist in the enforcement the Governor’s Orders under KEMA. K.S.A. 48-907(g). In an emergency, he even has the authority to “supervise and direct investigations” related the public welfare and his emergency management role, reporting directly to the Governor. K.S.A. 48-907(e). In her March 12 declaration, Governor Kelly empowered Defendant Weishaar, as Adjutant General, to exercise “[a]ny or all of the powers conferred upon the Governor by the Kansas Emergency Management Act” as the governor “deem[s] appropriate during this period of proclaimed State of Disaster Emergency.”4 In her declaration, Governor Kelly declared: “I hereby proclaim, direct and order the Adjutant General of the State of Kansas to activate the disaster response and recovery portions of the Kansas Response Plan. The Adjutant General shall coordinate local and interjurisdictional disaster plans applicable to the political subdivisions of areas affected by this Proclamation.” (Emphasis added). Accordingly, the Adjutant General has been fully vested with his emergency powers and is able to act as a peace officer throughout the State of Kansas. Similar to the Governor’s own description of her emergency powers, the Adjutant General’s powers are also at a “maximum” in a state of emergency.
4 A copy of the Governor’s Disaster Declaration is available at https://governor.kansas.gov/wpcontent/uploads/2020/03/2020-03-12-Proclamation.pdf
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Under KEMA, the Adjutant General serves as the coordination “hub” in an emergency and is given broad powers, both executively and legislatively. Because of this, he and his agency have the power to enforce the Governor’s Executive Orders and have been instructed to work with local political subdivisions. Given the close supervision and supreme command of the Governor, the Adjutant General is specially situated to enforce the Governor’s orders, particularly in times of emergency.
C. The Governor, not the Attorney General, is the “chief law enforcement officer” of Kansas.
The Governor also argues for dismissal because Kansas courts generally consider the Kansas attorney general to be the “chief law enforcement officer of the state.” MTD at 4, 9 (citations omitted). While this traditional designation for the attorney general is a convenient legal fiction, and is appropriate and controlling in times of peace, it flies too close to the constitutional sun during an emergency.5 “The
5See Meml. Hosp. Ass'n, Inc. v. Knutson, 722 P.2d 1093, 1097 (Kan. 1986): The attorney general's powers are as broad as the common law unless restricted or modified by statute. State v. Finch, 128 Kan. 665, 280 Pac. 910 (1929). Our scheme of government provides for a county or district attorney as a law officer for each county and the attorney general as the law officer for the entire state. Heinz v. Shawnee County Comm'rs, 136 Kan. 104, 12 P.2d 816 (1932). It is the attorney general who appears for the state and prosecutes and defends all actions and proceedings, civil or criminal, in which the state is interested or is a party in the supreme court. The attorney general is the chief law officer, subject only to direction of the governor and the legislature.
(Emphasis added). See also K.S.A. 75-702 (when required by the governor, attorney general must appear in court to prosecute civil or criminal matters in which state is a party); State v. Dawson, 119 P. 360 (Kan. 1911) (the governor has broad executive authority to direct the Attorney General in certain circumstances).
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supreme executive power of this state shall be vested in a governor, who shall be responsible for the enforcement of the laws of this state.” Kan. CONST. Art. I, § 3.6
The only express constitutional grant of law enforcement power is in the governor and the governor alone. The legislature has distributed the responsibility to enforce law in peacetime among various constitutional, appointed, and elected officials at the state and local level. See e.g. K.S.A. 19-813 (criminal law enforcement authority of sheriffs). But it nevertheless vests the governor alone with the constitutional law enforcement power. Admittedly, “[t]his general enforcement power [during peacetime] is not sufficient to establish the connection to the statute required to meet the Ex parte Young exception to Eleventh Amendment immunity” if “the Governor has no involvement with the enforcement of [a particular law].” Day v. Sebelius, 376 F. Supp. 2d 1022, 1031 (D. Kan. 2005), aff'd sub nom. Day v. Bond, 500 F.3d 1127 (10th Cir. 2007).
However, during periods of emergency, the legislature has by law reconsolidated the chief law enforcement power in the governor. As detailed above, KEMA consolidates all the supreme law enforcement power of the state in the Governor during a time of emergency by activating her specific constitutional powers as commander-in-chief and conveying power to direct all other law enforcement. See supra at 1. That is why this grant of special executive and
6 It should also be noted that the Governor continued to threaten the enforcement of EO 20-18 after being notified by the Attorney General that her order was likely unconstitutional in his memorandum to law enforcement. See Amended Complaint, Exhibit 4 (Doc. 33-4). This action included filing suit against the Legislative Coordinating Counsel to maintain her criminal enforcement power. Id. , ¶¶ 8-11. Indeed, even after this Court issued the Temporary Restraining Order in this case, the Governor announced that EO 20-25 was in effect and would be enforced. Id., ¶ 27.
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legislative powers to the Governor is strictly limited in time: the legislature must “activate” these powers by ratification, or she must resort to 30-day renewals of this extreme executive power. See K.S.A. 48-924(b). The Governor’s power during times of emergency is awesome and vast.
Notably, none of the cases referenced by the Governor that designate the attorney general as the “chief law enforcement officer” arose during a state of emergency or involve the governor’s exercise of emergency powers. Nor do they give this Court a complete picture of the governor’s authority in disaster situations like this one. By enacting K.S.A. 48-925, the legislature by law has suspended the ordinary distribution of law enforcement power among the state’s constitutional and statutory executive officers. During periods of emergency, the Governor’s law enforcement authority is supreme pursuant to K.S.A. 48-925. And nothing in the constitution, aside from the people’s inalienable rights, challenges this proposition. II. Plaintiffs’ suit—and the criminalization of church—is still not moot.
In her motion, Governor Kelly renews her contention that this lawsuit is moot and should be dismissed because the complaint “seeks injunctive and declaratory relief only as to EO 20-18,” which was “rescinded and replaced” by EO 20-25. MTD at 7. This Court should again deny the argument for three reasons.
First, the Governor has failed to justify why this Court should reverse its earlier ruling on this issue. Second, the Supreme Court has made clear that "a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice . . . because the defendant's repeal of the objectionable language would not preclude it from
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reenacting precisely the same provision if the District Court's judgment were vacated.” Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 US 656, 662 (1993). To be sure,
[here,] there is no mere risk that [the Governor] will repeat [her] allegedly wrongful conduct; [she] has already done so. Nor does it matter that the new ordinance differs in certain respects from the old one. City of Mesquite does not stand for the proposition that it is only the possibility that the selfsame statute will be enacted that prevents a case from being moot; if that were the rule, a defendant could moot a case by repealing the challenged statute and replacing it with one that differs only in some insignificant respect. The gravamen of petitioner's complaint is that its members are disadvantaged in their efforts to [hold a church service]. The new ordinance may disadvantage them to a lesser degree than the old one, but . . . it disadvantages them in the same fundamental way. Id. at 662. Finally, the Plaintiffs have filed an amended complaint now referencing and challenging EO 20-25. (See Doc. 33). The amended complaint moots the Governor’s mootness argument.
CONCLUSION For the foregoing reasons, Defendant’s motion to dismiss for lack of subject matter jurisdiction should be denied. Respectfully submitted this 23rd day of April, 2020.
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/s/ Tyson C. Langhofer Tyson C. Langhofer KS Bar No. 19241 ALLIANCE DEFENDING FREEDOM 20116 Ashbrook Place, Suite 250 Ashburn, VA 20147 Telephone: (316) 265-8800 tlanghofer@ADFlegal.org

/s/ Joshua A. Ney Joshua A. Ney, KS Bar No. 24077 NEY LAW FIRM, LLC 900 S. Kansas Ave., Ste. 402B Topeka, KS 66612 Telephone: (785) 414-9065 josh@joshney.com

David A. Cortman GA Bar No. 188810 ALLIANCE DEFENDING FREEDOM 1000 Hurricane Shoals Rd. NE Suite D-1100 Lawrenceville, GA 30043 Telephone: (770) 339-0774
dcortman@ADFlegal.org

/s/ Ryan A. Kriegshauser Ryan A. Kriegshauser KS Bar No. 23942 KRIEGSHAUSER LAW LLC 15050 W. 138th St., Unit 4493 Olathe, KS 66063 Telephone: (913) 303-0639 ryan@kriegshauserlaw.us

Ryan J. Tucker AZ Bar No. 034382 ALLIANCE DEFENDING FREEDOM 15100 N. 90th St. Scottsdale, AZ 85260 Telephone: (480) 444-0020
rtucker@ADFlegal.org

Attorneys for Plaintiffs

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Case 6:20-cv-01102-JWB-GEB Document 43 Filed 04/23/20 Page 22 of 22 CERTIFICATE OF SERVICE
I hereby certify that on April 23, 2020, I caused the foregoing to be filed with the Clerk of the Court using the ECF system, which will provide electronic copies to counsel of record.
/s/ Tyson C. Langhofer Tyson C. Langhofer KS Bar No. 19241 ALLIANCE DEFENDING FREEDOM 20116 Ashbrook Place, Suite 250 Ashburn, VA 20147 Telephone: (480) 388-8205 tlanghofer@ADFlegal.org
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 Case 6:20-cv-01102-JWB-GEB Document 49 Filed 04/25/20 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

FIRST BAPTIST CHURCH ; PASTOR STEPHEN ORMORD; CALVARY BAPTIST CHURCH; PASTOR AARON HARRIS
Plaintiffs,
v.
GOVERNOR LAURA KELLY, in her official capacity, ET AL.
Defendants. ____________________________________

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Case No. 6:20-cv-01102-JWB-GEB

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AGREED MOTION TO EXTEND TEMPORARY RESTRAINING ORDER AGAINST DEFENDANT GOVERNOR LAURA KELLY

COMES NOW Plaintiffs and Defendant Governor Laura Kelly in this matter, by and

through counsel, pursuant to Fed. R. Civ. P. 65(b)(2) and for good cause shown, for an Order

extending the Temporary Restraining Order against Governor Laura Kelly (Doc. 15) an additional

fourteen days to May 16, 2020. In support of their Motion, parties state the following:

1. Rule 65(b)(2) of the Federal Rules of Civil Procedure states:

Every temporary restraining order issued without notice must state the date and hour it was issued; describe the injury and state why it is irreparable; state why the order was issued without notice; and be promptly filed in the clerk's office and entered in the record. The order expires at the time after entry—not to exceed 14 days—that the court sets, unless before that time the court, for good cause, extends it for a like period or the adverse party consents to a longer extension. The reasons for an extension must be entered in the record.

(Emphasis added).

2. On April 18, 2020, this Court issued a Temporary Restraining Order (hereinafter

“TRO”) enjoining the Governor from enforcing EO 20-25 against Plaintiffs. (Doc. 15). The TRO

currently expires May 2, 2020 “unless extended by the court for good cause.” See id.

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3. On April 23, 2020, the Court held a public telephone status conference to discuss procedural planning matters related to holding an expedited preliminary injunction hearing.
4. At this status conference, the Court ordered the parties to meet and confer to develop a proposed plan for holding the preliminary injunction hearing, including exchanging of discovery and proposed exhibits, developing stipulations of fact, and determining how to facilitate live witness testimony or other alternatives for submitting the matter to the Court.
5. Immediately after the Court hearing, counsel for Plaintiffs and Defendants began engaging in comprehensive, good faith discussions regarding the Court’s order.
6. On April 24, on a teleconference call with businesses around the state, Defendant Kelly stated that her current intention was to not extend the statewide restrictions under many of her executive orders past May 3, 2020 at 11:59 p.m.
7. Later that day, after significant exchange between the parties of potential witness statements, affidavits, and other documents, counsel for the parties met by video conference to continue discussions regarding an agreed procedure for conducting a preliminary injunction hearing.
8. At the beginning of the call, Plaintiffs’ counsel suggested that the Court’s comments at the hearing the previous day regarding a one-time extension may be a prudent alternative to attempting to conduct discovery, depositions, and other preparations for an expedited preliminary injunction hearing within just a few days during a public emergency.
9. Defendant Kelly’s counsel indicated they would confer with their client regarding this proposal.
10. Later in the video conference, counsel for Defendant Laura Kelly stated a key witnesses for the defense, Secretary of Health and Environment Lee Norman, may be unavailable
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for live or deposition testimony in the foreseeable future given his current duties managing the public health emergency around the State.
11. After continuous negotiations leading up to the filing of this Agreed Motion to Extend the TRO, the Parties have agreed to the following procedural plan during this pendency of an Extended TRO:
a) The Extended TRO shall expire on May 16, 2020 unless sooner terminated due to dismissal of the case.
b) Unless public-health information dictates otherwise, Governor Laura Kelly, through counsel, represents to the Court that as of today, she currently intends to issue an order extending the restrictions of EO 20-25 to May 3, 2020, to coincide with the current expiration date of the “stay home” restrictions in EO 20-16 and EO 20-24.
c) Unless public-health information dictates otherwise, Governor Kelly further intends to issue a new executive order with less restrictive mass gathering provisions that will start May 4, 2020.
d) The Governor’s General Counsel Clay Britton represents that EO 20-25 expires May 1, 2020, but new re-opening restrictions are set to go into effect on the expiration of the statewide stay-home order on May 3. So, EO 20-25 is likely to be extended for two days, syncing it with the statewide stay-home order and therefore expiring on May 3, 2020. The Governor will issue new re-opening restrictions to go into effect on May 4, 2020. As of now, those restrictions will not prohibit gatherings in which individuals can consistently maintain a 6-foot distance and follow other safety protocols (such as disinfecting surfaces, etc.). While the details
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may be subject to change between now and next weekend, unless there is a significant change in trends or status of the pandemic, the new restrictions will be significantly less restrictive than those currently in place. Counsel for Governor shall notify Plaintiffs of the exact draft language of the next prospective executive order prior to May 4, 2020. e) Counsel for Governor shall notify Plaintiffs of the exact draft language of the next prospective executive order prior to May 4, 2020. f) Based upon the facts in 11(b)-(e) above, Plaintiffs will file, to which Governor Kelly will consent (if requested), a Fed. R. Civ. P. 41(a)(1)(A) voluntary dismissal no later than 11:59 p.m. on May 6, 2020, provided, in the event Plaintiffs believe the Governor’s new executive order does not cure the constitutional violations alleged in Plaintiffs’ Amended Verified Complaint and subsequent pleadings, Plaintiffs shall not be bound to file a voluntary dismissal and may move the court any time prior to 11:59 p.m. on May 6, 2020 to set a temporary restraining order or preliminary injunction hearing and new scheduling order. 12. Parties agree to the extension of a TRO for the reasons stated above and in ¶ 14 below. 13. In the event the Court grants this agreed motion, Parties respectfully request the court suspend any current scheduling orders until May 4, 2020 in anticipation of this case becoming moot. 14. The current TRO should be extended for good cause based on the following reasons:
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• Based on Governor Kelly’s public comments on April 24, 2020 regarding her
current intention to not extend statewide restrictions of her executive orders past
May 3, 2020 and her representations to the parties and the Court in this Motion,
there is a likelihood this matter will be moot in the near future.
• A one-time 14-day extension of the TRO would allow parties adequate time, if
needed, to conduct limited discovery and briefing in the event the Plaintiffs believe
new restrictions present in a new Executive Order are not constitutionally sound.
WHEREFORE, for the foregoing reasons, Plaintiffs and Defendant respectfully pray the
Court enter an Order extending the Temporary Restraining Order against Governor Laura Kelly
(Doc. 15) an additional fourteen days to May 16, 2020.
Respectfully submitted this 25nd day April 2020.
Prepared and submitted by:
/s/ Tyson C. Langhofer Tyson C. Langhofer KS Bar No. 19241 ALLIANCE DEFENDING FREEDOM 20116 Ashbrook Place, Suite 250 Ashburn, VA 20147 (480) 388-8205 tlanghofer@ADFlegal.org
David A. Cortman* GA Bar No. 188810 ALLIANCE DEFENDING FREEDOM 1000 Hurricane Shoals Rd. NE Suite D-1100 Lawrenceville, GA 30043 (770) 339-0774 dcortman@ADFlegal.org
Ryan J. Tucker* AZ Bar No. 034382 ALLIANCE DEFENDING FREEDOM 15100 N. 90th St.
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Scottsdale, AZ 85260 (480) 444-0020 rtucker@ADFlegal.org
/s/ Joshua A. Ney Joshua A. Ney, KS Bar No. 24077 NEY LAW FIRM, LLC 900 S. Kansas Ave., Ste. 402B Topeka, KS 66612 (785) 414-9065 josh@joshney.com
/s/ Ryan A. Kriegshauser Ryan A. Kriegshauser KS Bar No. 23942 KRIEGSHAUSER LAW LLC 15050 W. 138th St., Unit 4493 Olathe, KS 66063 (913) 303-0639 ryan@kriegshauserlaw.us
ATTORNEYS FOR PLAINTIFFS *Admitted Pro Hac Vice
Reviewed and agreed to by:
/s/ Pedro L. Irigonegaray Pedro L. Irigonegaray, #08079 IRIGONEGARAY, TURNEY, & REVENAUGH, L.L.P. 1535 SW 29th Street Topeka, KS 66611 T: 785-267-6115 F: 785-267-9458 pedro@itrlaw.com
/s/ Lumen N. Mulligan Lumen N. Mulligan, #21337 Attorney at Law 1616 Indiana St. Lawrence, KS 66044 T: 785-691-9367 F: 785-691-9362 lumenmulligan1973@gmail.com
ATTORNEYS FOR DEFENDANT GOVERNOR LAURA KELLY
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 Case 6:20-cv-01102-JWB-GEB Document 55 Filed 04/27/20 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

FIRST BAPTIST CHURCH; PASTOR STEPHEN ORMORD; CALVARY BAPTIST CHURCH; and PASTOR AARON HARRIS,
Plaintiffs,
v.
GOVERNOR LAURA KELLY, in her official capacity; ADJUTANT GENERAL DAVID WEISHAAR, in his official capacity; GEARY COUNTY SHERIFF DANIEL E. JACKSON, JR., in his official capacity; and FORD COUNTY SHERIFF WILLIAM CARR, in his official capacity,

No. 20-1102-JWB

Defendants.

MEMORANDUM AND ORDER This matter is before the court on Defendant Governor Laura Kelly’s motion to dismiss (Doc. 30), Defendant Kelly’s motion (or “suggestion”) to dismiss Defendant William Carr (Doc. 36), and Plaintiffs’ motion to modify the temporary restraining order (“TRO”). (Doc. 41.) The motions are sufficiently briefed (Doc. 43) and further briefing has been waived or is unnecessary. For the reasons stated herein, the foregoing motions are DENIED. I. Background and Facts The legal landscape of the case has been altered by the filing of Plaintiffs’ amended complaint. (Doc. 33). That pleading names three additional defendants, all in their official capacities: David Weishaar, Kansas Adjutant General, Geary County Sheriff Daniel E. Jackson,

Case 6:20-cv-01102-JWB-GEB Document 55 Filed 04/27/20 Page 2 of 18
Jr., and Ford County Sheriff William Carr. The amended complaint asserts three claims for deprivation of First Amendment rights under color of state law and seeks injunctive and declaratory relief under 42 U.S.C. § 1983. The amended complaint omits a claim under state law that was asserted in the initial complaint.
Plaintiffs are two churches in Kansas and their respective pastors. Defendant Laura Kelly is the Governor of the State of Kansas. On April 16, 2020, Plaintiffs filed a verified complaint (Doc. 1) seeking relief from Executive Order (“EO”) 20-18, issued by Governor Kelly on April 7, 2020.
EO 20-18 was one of a series of executive orders issued by Governor Kelly to address the ongoing COVID-19 pandemic. The order was issued pursuant to the governor’s authority granted by K.S.A. 48-924 and 48-925. (Doc. 33-1 at 3.) EO 20-18 contained numerous prohibitions, as well as a number of exemptions, relating to public and private activities. It prohibited “mass gatherings,” defined as groups of ten or more people in a confined or enclosed space. (Id.) One provision stated that “[w]ith regard to churches or other religious services or activities, this order prohibits gatherings of more than ten congregants or parishioners in the same building or confined or enclosed space,” excluding those individuals conducting or performing a religious service so long as they followed safety protocols, including maintaining separation of six feet (i.e., social distancing). (Doc. 33-1 at 3.) The order then set forth a list of 26 types of secular activities or facilities that were exempt from the prohibition on mass gatherings or that were subject to lesser restrictions. (Id.) The exemptions included bars and restaurants, libraries, shopping malls, retail establishments, and office spaces. (Doc. 33 at 1.)
EO 20-18 superseded EO 20-14, a prior order that had exempted religious gatherings altogether from the prohibition on mass gatherings so long as attendees maintained appropriate
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social distancing. (Doc. 33 at 2.) Additionally, the governor’s prior statewide “stay-at-home” order, EO 20-16, expressly allowed Kansans, subject to some restrictions, to “perform or attend religious or faith-based services or activities” as an exempt “essential function.” (Doc. 33-3.)
The amended complaint indicates that Plaintiffs desire to conduct religious services involving more than ten attendees but they are subject to a threat of criminal prosecution for violation of the governor’s executive orders if they do so. Plaintiff Aaron Harris was allegedly told by the Geary County Sheriff on April 14, 2020, that he would be subject to criminal enforcement of the order if he conducted an indoor service with more than ten attendees. (Doc. 33 at 4.) This allegedly occurred after Kansas Attorney General Derek Schmidt advised law enforcement officers in an April 8 memo to avoid criminal enforcement of the limitation on religious services. (Id. at 3.) On April 15, 2020, Plaintiff First Baptist Church wrote the governor’s counsel requesting an allowance for church services under restrictions similar to those applicable to secular essential activities involving mass gatherings. On April 16, 2020, the governor’s counsel responded that the request was under review and that a decision would be reached soon. (Doc. 338.) Plaintiffs’ initial complaint was thereafter filed on April 16, 2020.
On April 17, 2020, Plaintiffs filed a motion for a TRO and an expedited hearing. (Doc. 7.) Later that day, the governor signed EO 20-25, which revoked and replaced EO 20-18. (Doc. 33 at 6; Doc. 33-9.) EO 20-25 removed “libraries” and “shopping malls” from the list of exempted facilities for purposes of mass gatherings, and it added some restrictions on retail establishments and retail food establishments, but it maintained the same prohibition on religious gatherings of more than ten non-performing attendees. (Doc. 33-9 at 3.) The exempted activities and facilities not subject to the mass gathering prohibition continued to include many governmental operations, as well a number of other items, among which were included: airports, public and private schools
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when used for certain purposes; childcare facilities; hotels; food pantries; detoxification centers; retail establishments (subject to requirements that customers maintain a six-foot distance and be performing essential activities or functions under EO 20-16); retail food establishments; office spaces if used for essential activities or functions under EO 20-16; manufacturing, processing, distribution, and production facilities; public transportation; and job centers. (Id. at 3-5.)
The court held a hearing on the motion for TRO on April 17, 2020, and issued a Memorandum and Order and TRO the following day. The TRO enjoined the governor from enforcing the restriction on the number of attendees at religious gatherings against Plaintiffs, provided Plaintiffs comply with social distancing and other safety protocols. (Docs. 14, 15.) The court denied Defendant’s motion to dismiss the action for mootness. (Doc. 14 at 19.)
According to the amended complaint, after issuance of the TRO the governor released a statement to the press. Among other things, the release stated that the TRO applied only to the two Plaintiffs and that “[a]ll other religious gatherings must continue to adhere to the requirements of Executive Order 20-25 and limit gatherings to 10 or fewer attendees.” (Doc. 33 at 7.) The amended complaint adds extensive allegations concerning the governor’s authority to enforce orders such as EO 20-25, and it alleges the governor has directed enforcement of her executive orders and has used her executive power to enforce, or has promised to enforce, those restrictions. (Doc. 33 at 14.)
The amended complaint alleges subject matter jurisdiction in this court under 28 U.S.C. § 1331 and 1343. (Doc. 33 at 12.) Invoking 42 U.S.C. § 1983, Plaintiffs allege that the religious restriction in EO 20-25 violates their rights under the Free Exercise Clause of the First Amendment. (Id. at 24.) They similarly claim it violates their First Amendment rights to engage in free speech and to peaceably assemble. (Id. at 25-26.) Plaintiffs allege they will suffer
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irreparable harm in the absence of declaratory and injunctive relief. The relief sought in the complaint includes, among other requests, a TRO, preliminary injunction, and permanent injunction against enforcement of the portion of EO 20-25 that prohibits more than ten attendees at religious services. (Id. at 26.)
In issuing the TRO, the court found the exercise of jurisdiction was proper under Ex Parte Young, 209 U.S. 123 (1908). (Doc. 14 at 4.) In Ex Parte Young, the Supreme Court recognized an exception to a State’s Eleventh Amendment immunity for certain suits seeking injunctive relief to prevent a state officer from enforcing an unconstitutional act. (Doc. 14 at 4.)
At a subsequent telephonic hearing, the court notified the parties of the Fifth Circuit’s recent decision in In re Abbott, No. 20-50296, 2020 WL 1911216, at *6 (5th Cir. Apr. 20, 2020). The Fifth Circuit concluded the Ex Parte Young exception was inapplicable to the governor of Texas because although he was empowered to “issue,” “amend,” or “rescind” executive orders, under Texas law he had no authority to “enforce” them. Id. As such, he did not have a connection to enforcement of the orders to satisfy the Ex Parte Young exception and was immune from suit in federal court.
Defendant thereafter filed a motion to dismiss that asserts this suit is barred by Eleventh Amendment immunity. (Doc. 30 at 1.) Defendant Kelly thereafter filed a motion to dismiss Defendant Carr. (Doc. 36). Plaintiffs have filed a response. (Doc. 43.)
II. Defendant Kelly’s Motion to Dismiss (Doc. 30.) Governor Kelly moves to dismiss on the basis of Eleventh Amendment immunity, arguing she lacks the “particular duty to enforce” EO 20-25 that is required for the Ex Parte Young exception to apply. (Doc. 30 at 3.) The motion also seeks dismissal of Plaintiffs’ claim arising
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under state law. The latter request is now moot, as Plaintiffs have omitted the state law claim from their amended complaint.
The court is guided in its analysis and its ultimate decision by the following words from Ex Parte Young:
“It is most true that this court will not take jurisdiction if it should not; but it is equally true that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the Constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the Constitution. Questions may occur which we would gladly avoid, but we cannot avoid them. All we can do is to exercise our best judgment, and conscientiously to perform our duty.” 209 U.S. at 123 (quoting Cohens v. State of Virginia, 19 U.S. 264, 404 (1821)). A. Standards for the Ex Parte Young exception. The Eleventh Amendment provides in part that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against any one of the United States by Citizens of another State….” U.S. Const. amend. XI. The Supreme Court has extended the sovereign immunity recognized by this amendment to suits against a State by its own citizens. Edelman v. Jordan, 415 U.S. 651, 663 (1974). There are exceptions to this immunity, including one recognized in Ex Parte Young, which allows certain suits against individual state officers acting in their official capacity if the complaint alleges an ongoing violation of federal law and the plaintiff seeks prospective relief. Levy v. Ks. Dept. of Soc. and Rehab. Svcs., 798 F.3d 1164, 1169 (10th Cir. 2015). Ex Parte Young involved a preliminary injunction against the attorney general of Minnesota to prevent him from instituting any action or enforcing penalties against the plaintiffs for their violation of certain railroad commission orders enacted under Minnesota law. The
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plaintiffs claimed the commission’s orders deprived them of due process and other federal constitutional rights. When the attorney general disobeyed the federal court’s injunction, he was found in contempt. He sought a writ of habeas corpus in the Supreme Court, arguing the federal court did not have jurisdiction because he was entitled to Eleventh Amendment immunity. See Ex Parte Young, 209 U.S. at 126-34.
The Supreme Court first found that the subject matter jurisdiction of the federal court was proper because the case involved questions under the Constitution of the United States. Id. at 145. It next found the Minnesota acts were unconstitutional. Id. at 148. As for Eleventh Amendment immunity, the Court found that “individuals who, as officers of the state, are clothed with some duty in regard to the enforcement of the laws of the state, and who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected [by] an unconstitutional act, violating the Federal Constitution, may be enjoined by a Federal court of equity from such action.” Id. at 156. The court cautioned, however, “it is plain that such officer must have some connection with the enforcement of the act, or else it is merely making him a party as a representative of the state, and thereby attempting to make the state a party.” Id. at 157. Such a connection was required, otherwise “the constitutionality of every act passed by the legislature could be tested by a suit against the governor and the attorney general, based upon the theory that the former, as the executive of the state, was, in a general sense, charged with the execution of all its laws, and the latter, as attorney general, might represent the state in litigation involving the enforcement of its statutes.” Id. That would be a “convenient” way of obtaining a resolution, but it would be inconsistent with Eleventh Amendment immunity. Id. At the same time, it is not necessary that a duty of enforcement be declared in the same act which is to be enforced. “The fact that the state officer, by virtue of his office, has some connection with the enforcement of the act,
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is the important and material fact, and whether it arises out of the general law, or is specially created by the act itself, is not material so long as it exists.” Id. The required connection may exist not only where the official has an express duty to enforce the provision, but also where the official has complete discretion as to whether or not to attempt enforcement of the law. Id. at 15859. As for the Minnesota attorney general:
It would seem to be clear that the attorney general, under his power existing at common law, and by virtue of these various statutes, had a general duty imposed upon him, which includes the right and the power to enforce the statutes of the state, including, of course, the act in question, if it were constitutional. His power by virtue of his office sufficiently connected him with the duty of enforcement to make him a proper party to a suit of the nature of the one now before the United States circuit court. Id. at 161. The Supreme Court ultimately found the attorney general was not shielded by Eleventh Amendment immunity and dismissed his petition. The recent Abbott decision holding that the Texas governor had no connection to enforcement of his executive orders was based on that governor’s specific powers under Texas law and the case law of the Fifth Circuit. Whether Governor Kelly has the required connection to enforcement of her executive orders depends upon the particulars of Kansas law and on Tenth Circuit authority applying Ex Parte Young. The Tenth Circuit has applied Ex Parte Young to suits involving state governors on several occasions. In Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014), same-sex couples sued the Utah governor, attorney general, and a county clerk, claiming Utah’s constitutional and statutory prohibitions on same-sex marriage violated their constitutional rights. A district court granted summary judgment to the plaintiffs. On appeal, the Tenth Circuit addressed whether the governor and attorney general had standing to appeal. That issue turned in part on whether these officials possessed authority to enforce the challenged provisions, an inquiry that is “related to whether,
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under Ex Parte Young, they are proper state officials for suit.” Id. at 1201.1 The court noted that under Ex Parte Young, an officer “need not have a special connection to the allegedly unconstitutional statute; rather, he need only have a particular duty to enforce the statute in question and a demonstrated willingness to exercise that duty.” Id. (quoting Chamber of Comm. of the U.S. v. Edmondson, 594 F.3d 742, 760 (10th Cir. 2010)).
The court in Kitchen found the governor had the requisite connection to enforcement, pointing, among other things, to the Utah constitution, which vests the governor with the entire executive power of the state. Id. at 1203. The court also noted statutory provisions giving the governor supervisory authority over all executive officers. Id. at 1202. Those provisions allowed the governor to require the attorney general to aid any county attorney or district attorney in the discharge of their duties or in the prosecution of any clerk that violated the challenged provisions. Id. at 1202. The court also found the governor had demonstrated a willingness to exercise his duty to ensure that clerks and state officials enforced the prohibition, noting the governor had “coordinated state agencies’ response to the district court’s order,” by informing his cabinet that agencies facing conflicting laws should consult with an assistant attorney general, and if there were no conflicting laws “you should conduct business in compliance with the federal judge’s ruling” until an appeal was decided. Id. at 1203. “Thus, state agencies with responsibility for the recognition of out-of-state marriages are being directed by the Governor in consultation with the Attorney General.” Id. Ultimately, the Tenth Circuit concluded “the Governor’s and the Attorney General’s actual exercise of supervisory power and their authority to compel compliance from county clerks and other officials provide the requisite nexus between them and” the challenged provision. Id. at 1204.
1 See also Cressman v. Thompson, 719 F.3d 1139, 1146 (10th Cir. 2013) (noting relationship between standing and Ex Parte Young).
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In Petrella v. Brownback, 697 F.3d 1285 (10th Cir. 2012), a suit challenging the constitutionality of a school financing law was brought against the Kansas governor and attorney general. The Tenth Circuit brushed aside a challenge to the plaintiffs’ standing to sue these defendants: “It cannot seriously be disputed that the proper vehicle for challenging the constitutionality of a statute, where only prospective, non-monetary relief is sought, is an action against the state officials responsible for enforcement of that statute. [citing Ex Parte Young]. Nor can it be disputed that the Governor and Attorney General of the state of Kansas have responsibility for the enforcement of the laws of the state. See Kan. Const. Art. I § 3; Kan. Stat. Ann. § 75-702.” Id. at 1294. Specifically, Article I Section 3 of the Kansas Constitution states that the governor “shall be responsible for the enforcement of the laws of this state.”
In Bishop v. Oklahoma, 333 F. App’x 361 (10th Cir. 2009), the suit involved a challenge by same-sex couples to Oklahoma’s constitutional prohibition on same-sex marriage. The Tenth Circuit concluded the plaintiffs lacked standing to sue the governor and attorney general of the state under Ex Parte Young because those officials had no connection to enforcement of the provision. The court noted that these officials’ “generalized duty to enforce state law, alone, is insufficient to subject them to a suit challenging a constitutional amendment they have no specific duty to enforce.” Id. at 364. The court pointed out that in Oklahoma, recognition of marriages was within the administration of the judiciary rather than the executive branch of government. Id. at 365. Moreover, any criminal enforcement of the provision would be directed at the clerk who issued a license, not at the plaintiffs. Id.
Synthesizing the foregoing cases from the Tenth Circuit, Petrella, a case specifically addressing the governor of Kansas, suggests that the governor’s constitutional law enforcement authority alone may be sufficient to satisfy Ex Parte Young and make her a proper defendant. See
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Animal Legal Def. Fund v. Kelly, No. CV 18-2657-KHV, 2020 WL 362626 (D. Kan. Jan. 22, 2020), amended, No. CV 18-2657-KHV, 2020 WL 1659855 (D. Kan. Apr. 3, 2020) (citing Petrella and so holding). In that sense, the Tenth Circuit in Petrella apparently concluded that the Kansas governor’s express constitutional responsibility for “enforcement of the laws” distinguished the case from Ex Parte Young’s admonishment that although a governor is, “in a general sense, charged with the execution of all [a state’s] laws,” that general duty is insufficient to convey jurisdiction. Ex Parte Young, 209 U.S. at 157 (emphasis added in both quotes). By contrast, Bishop stated, with respect to a suit against the governor of Oklahoma, “the Oklahoma officials' generalized duty to enforce state law, alone, is insufficient to subject them to a suit challenging a constitutional amendment they have no specific duty to enforce,” Bishop, 333 F. App'x at 365; however, in that case the contested law was directed entirely at judicial personnel, and no member of the executive branch would ever have any role in enforcing that law with respect to the plaintiffs. Id. Indeed, Kitchen made the same observation, noting that “[o]ur holding in Bishop turned on the conclusion that marriage licensing and recognition in Oklahoma were within the administration of the judiciary.” Kitchen, 755 F.3d at 1202. And Kitchen itself relied in part on the Utah constitution vesting its governor with the state’s executive power, although Kitchen also looked to the governor’s statutory authority and specific conduct in relation to enforcing the relevant laws in concluding that the Utah governor was subject to suit.
Taken collectively, the court concludes that an expansive reading of Petrella might indicate that the Kansas governor’s obligation to not only execute the laws, but specifically to enforce the laws under Article I Section 3 of the Kansas Constitution, is sufficient to satisfy the requirements of Ex Parte Young. However, given the dearth of analysis in that case, combined with the Supreme Court’s cautionary words about using a governor’s general executive authority to justify
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jurisdiction under Ex Parte Young, and the extensive statutory authority given the governor of Kansas to enforce her executive orders under the relevant statutes, the court need not read Petrella so broadly in this case. Rather, the court will rely on the more rigorous analysis from Kitchen. Accordingly, the court will consider the governor’s enforcement authority under the Kansas Constitution and relevant statutes, as well as evidence of any actual or threatened enforcement.
B. Application to Governor Kelly As indicated previously, the Kansas Constitution makes the governor ultimately responsible for enforcement of the laws of Kansas: “The supreme executive power of this state shall be vested in a governor, who shall be responsible for the enforcement of the laws of this state.” Kan. Const. art. I, § 3. Plaintiffs’ challenge in this case concerns EO 20-25, which was issued by Governor Kelly pursuant to her authority under the Kansas Emergency Management Act (“KEMA”), K.S.A. 48-904, et seq. Among other things, KEMA created a division of emergency management within the office of the adjutant general. The management, powers, duties, and functions of that division are administered by the adjutant general “under the supervision of the governor.” K.S.A. 48-905a. The adjutant has various powers and duties, including to supervise and direct investigations, and report to the governor concerning any matter of public welfare related to an emergency; “to require and direct the cooperation and assistance of state and local governmental agencies and officials”; and “to do all things, not inconsistent with law, for the furtherance of emergency management activities.” K.S.A. 48-907. The act is not to be construed to affect the jurisdiction or responsibilities of police forces “other than during a declared state of disaster emergency.” K.S.A. 48-923. It also does not limit the authority of the governor to declare martial law or exercise any other powers vested in the governor under the constitution, statutes, or common law. Id.
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The act further provides in part that “[t]he governor shall be responsible for meeting the dangers to the state and people presented by disasters,” and it authorizes the governor to declare a state of disaster emergency. K.S.A. 48-924(b)(1). Such a declaration ordinarily expires no later than 15 days after issuance, but it can be extended in certain circumstances. While the declaration is in effect, “the governor shall be commander-in-chief of the organized and unorganized militia and of all other forces available for emergency duty.” K.S.A. 48-925(a). “The governor may issue orders and proclamations which shall have the force and effect of law” during that period. The knowing and willful violation of any lawful order issued under the act is a criminal offense.2 Among other powers, the governor may “utilize all available resources of the state government and of each political subdivision as reasonably necessary to cope with the disaster”; “transfer the supervision, personnel or functions of state departments and agencies or units thereof for the purpose of performing or facilitating emergency management activities”; and “perform and exercise such other functions, powers and duties as are necessary to promote and secure the safety and protection of the civilian population.” K.S.A. 48-925(c). The act specifically authorizes the governor to “require and direct the cooperation and assistance of state and local governmental agencies and officials.” K.S.A. 49-925(c)(10). It further provides that the governor “shall exercise the powers conferred by subsection (c) by issuance of orders under subsection (b).” K.S.A. 48925(d).
2 K.S.A. 48-939 provides as follows: The knowing and willful violation of any provision of this act or any rule and regulation adopted by the adjutant general under this act or any lawful order or proclamation issued under authority of this act whether pursuant to a proclamation declaring a state of disaster emergency under K.S.A. 48-924 or a declaration of a state of local disaster emergency under K.S.A. 48-932, shall constitute a class A misdemeanor and any person convicted of such violation shall be punished as provided by law therefor.
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Collectively, when properly invoked, the provisions of KEMA vest the governor with extensive legislative, executive, and law enforcement powers. Under K.S.A. 48-925(b), the legislature delegated a portion of its legislative power to the governor, authorizing her to enact temporary laws as authorized elsewhere in KEMA through the use of executive orders and proclamations. Similarly, in section 48-925(c), the governor’s legislative powers are extended to allow suspension of certain regulatory statutes, and to essentially reorganize state departments and agencies for purposes of responding to the disaster. K.S.A. 48-925(c)(1), (3). Other provisions further enhance the governor’s executive powers. See, e.g., K.S.A. 48-925(a) (placing governor in command of all state militia forces and “all other forces available for emergency duty”); 48925(c)(2) (authority to use all state and local resources to cope with disaster). However, the most relevant provisions for our purposes include K.S.A. 48-925(c)(10), authorizing the governor to “require and direct the cooperation and assistance of state and local governmental agencies and officials;” as well as section 48-925(c)(11), vesting the governor with the authority to “perform and exercise such other functions, powers and duties as are necessary to promote and secure the safety and protection of the civilian population.” Undoubtedly, the plain language of section 48925(c)(10) encompasses the ability to “require and direct” state and local law enforcement officials in ensuring compliance with the governor’s executive orders issued under KEMA. Moreover, if there was any doubt about the breadth of the language in subsection (c)(10), then the sweeping general authority that she has under subsection (c)(11) would appear to authorize such enforcement activities. In fact, K.S.A. 48-934 seems to anticipate that possibility when it vests local law enforcement officers with “power, duties, and immunities” of state law enforcement officers when they engage in “maintaining or restoring the public peace or safety” during a disaster emergency.
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In sum, the governor of Kansas is explicitly charged with enforcing state law under Article I Section 3 of the Kansas Constitution. Moreover, in the specific context of the current declaration of disaster emergency under KEMA, the governor is authorized to not only enact laws through her use of executive orders, she is authorized to compel compliance with those laws through her power over state and local law enforcement officials and the sanctions of the criminal law. Thus, the governor has a sufficient connection with enforcement of the relevant executive order to satisfy that element under Kitchen and Ex Parte Young.
Next, we turn to the question of whether the governor has demonstrated a sufficient willingness to enforce the offending provisions of her executive orders. EO 20-25, which contains the challenged restriction on religious gatherings, states in a preamble that the governor’s administration “will do whatever it can” to assist Kansans including by “preventing the gathering of people into groups” that could spread COVID-19. (Doc. 33-9 at 3.) The body of EO 20-25 contains two specific references to enforcement of the order. One states in part that, notwithstanding EO 20-25 or 20-16, “local authorities shall retain whatever legal authority they otherwise possess to restrict or prevent access to places where people may gather in violation of” EO 20-25 or EO 20-16. (Doc. 33-9 at 6, ¶4.) The next paragraph provides that “[l]aw enforcement officers enforcing this order should use their discretion and consider the totality of the circumstances as they determine appropriate enforcement action.” (Id., ¶5.) The latter paragraph shows that the governor exercised authority by directing law enforcement officers as to how they are to enforce EO 20-25. That exercise of authority was statutorily authorized by K.S.A. 48925(c)(10), which allows the governor to require and direct the cooperation of state and local officials during an emergency declaration. EO 20-25 explicitly directs law enforcement officers concerning enforcement and directs them to consider all circumstances and exercise discretion.
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The terms of the order itself show that Governor Kelly asserted authority to enforce the order. Additionally, the amended complaint alleges that after the TRO was issued in this case, the governor released a media statement indicating that the TRO only applies to the Plaintiffs and that “[a]ll other religious gatherings must continue to adhere to the requirements of EO 20-25….” (Doc. 33 at 7.) In sum, the record clearly shows that Governor Kelly has “a particular duty to enforce the [order] in question and a demonstrated willingness to exercise that duty.” Kitchen, 755 F.3d at 1201. Accordingly, the governor is not entitled to dismissal on Eleventh Amendment immunity grounds.
The governor’s arguments to the contrary are not persuasive. The governor argues that EO 20-25 “vests enforcement duties in local authorities, not the governor.” (Doc. 30 at 3.) As an initial matter, the argument that EO 20-25 “vests” local authorities with enforcement duties presumes that the enforcement power was the governor’s to begin with. At any rate, EO 20-25 in no way purports to divest the governor of enforcement authority. EO 20-25(4) states only that local authorities retain the authority they otherwise possess to restrict access to places where people may gather in violation of the order. And EO 20-25(5) instructs law enforcement officers to consider all of the circumstances and to exercise discretion when enforcing the order. That reinforces the point that the governor is specifically connected to enforcement of the order. The governor also argues that KEMA only allows the governor to issue orders and does not give her the power to enforce them. (Doc. 30 at 3-4.) But KEMA grants the governor power to issue orders directing the assistance of local officials, which would include a directive of the type in EO 20-25 on how officers should approach enforcement.
The governor further contends the Kansas Supreme Court has held that the Kansas attorney general is the chief law enforcement officer of the state, such that the attorney general, not the
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governor, is vested with criminal law enforcement power. (Doc. 30 at 4-5.) The issue here, however, is not whether the attorney general might also have some particular duty to enforce the order, but whether the governor has the requisite connection. And for the reasons indicated above, the record clearly shows the governor has a particular duty and the willingness to enforce EO 2025.3
III. Defendant Kelly’s Motion (or “Suggestion”) to Dismiss Defendant Carr. (Doc. 36.)
Defendant Kelly filed a document entitled “Suggestion of Lack of Subject Matter Jurisdiction over Sheriff Carr.” (Doc. 30.) The document does not actually move for dismissal of Defendant Carr (who had not appeared in this action at the time the “suggestion” was filed), but “suggests” the court should dismiss Defendant Carr based on Eleventh Amendment immunity. (Id. at 2.)
The governor’s counsel does not represent Defendant Carr and has no standing to move for dismissal on his behalf. See EEOC v. Brooks Run Min. Co., LLC, 2008 WL 2543545, *2 (S.D. W. Va. June 23, 2008) (“It is generally accepted that parties lack standing to seek dismissal of parties other than themselves.”) Accordingly, the motion will be denied for lack of standing. The denial is without prejudice to refiling by a party with standing.
IV. Plaintiffs’ Motion to Expand TRO. (Doc. 41.)
3 The governor’s suggestion that only the attorney general can direct criminal law enforcement is not supported by KEMA or by the language of EO 20-25. Moreover, the record shows that Attorney General Derek Schmidt issued a memorandum to Kansas prosecutors and law enforcement officers on April 8, 2020. (Doc. 33-4.) He concluded that the restriction on religious gatherings in EO 20-18 likely violated Kansas law, and he advised law enforcement officers to “avoid engaging in criminal enforcement” of the provision. (Id. at 6.) Given the allegations that a law enforcement officer warned Plaintiff Harris on April 14, 2020, that he would be subject to criminal penalties if he violated the religious gathering restriction, it is not reasonable to infer that the attorney general was directing the officer to enforce the provision.
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Plaintiffs move to modify the terms of the TRO to apply it not only to Governor Kelly, but also to the three Defendants named in the amended complaint. (Doc. 41.) The court orally denied this motion during the status conference of April 23, 2020. As the court noted, given the existence of the TRO, Plaintiffs are unlikely to face a credible threat of harm from enforcement of EO 2025 by the recently added Defendants. As such, no modification of the TRO is necessary. Should circumstances change, Plaintiffs are free to renew the request. The motion is accordingly denied.
V. Conclusion This is not a case like that envisioned in Ex Parte Young, in which a plaintiff, disgruntled with some new law enacted by the legislature, attacks that law by choosing the governor as a convenient defendant based on her general duty to see that the laws are faithfully executed. Instead, this is a case in which the governor has been vested with extraordinary powers to both create law and oversee its enforcement, and the governor in this case has exercised those powers in a way that Plaintiffs contend is unconstitutional toward them. Accordingly, federal jurisdiction to address those claims is proper. Defendant Kelly’s arguments to the contrary are rejected. Defendant Kelly’s motion to dismiss for lack of jurisdiction (Doc. 30) is DENIED; Defendant Kelly’s “suggestion” to dismiss Defendant Carr (Doc. 36) is DENIED for lack of standing; and Plaintiffs’ motion to modify the TRO (Doc. 41) is DENIED. IT IS SO ORDERED this 27th day of April, 2020, at Wichita, Ks.
_____s/ John W. Broomes_________ JOHN W. BROOMES UNITED STATES DISTRICT JUDGE
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 Case 6:20-cv-01102-JWB-GEB Document 56 Filed 04/27/20 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

FIRST BAPTIST CHURCH; PASTOR STEPHEN ORMORD; CALVARY BAPTIST CHURCH; and PASTOR AARON HARRIS,
Plaintiffs,
v.
GOVERNOR LAURA KELLY, in her official capacity; ADJUTANT GENERAL DAVID WEISHAAR, in his official capacity; GEARY COUNTY SHERIFF DANIEL E. JACKSON, JR., in his official capacity; and FORD COUNTY SHERIFF WILLIAM CARR, in his official capacity,

No. 20-1102-JWB

Defendants.

ORDER This matter is before the court on the joint motion of Plaintiffs and Defendant Governor Laura Kelly to extend the temporary restraining order (“TRO”) currently in effect until May 16, 2020. (Doc. 49.) Rule 65 provides in part a TRO expires no later than 14 days after its entry, unless the court “for good cause, extends it for a like period or the adverse party consents to a longer extension.” Fed. R. Civ. P. 65(b)(2).1

1 The foregoing rule technically applies only to a TRO issued “without notice.” The instant TRO was issued after Defendant received notice and an opportunity to be heard. But the appropriate procedure where the parties need additional time to prepare for a preliminary injunction hearing, as was the case here, is to set a preliminary injunction hearing “still within the time limitations of Rule 65(b).” See Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 441 (1974).

Case 6:20-cv-01102-JWB-GEB Document 56 Filed 04/27/20 Page 2 of 2 For the reasons stated in the joint motion, the court finds good cause for extension of the TRO and further finds Defendant Kelly has consented to the parties’ proposed extension. (Doc. 49 at 4.) The agreed motion to extend (Doc. 49) is accordingly GRANTED. The TRO previously entered (Doc. 15) will remain in effect until May 16, 2020, unless it is sooner terminated by dismissal of the case or by further order of the court. IT IS SO ORDERED this 27th day of April, 2020, at Wichita, Ks.
_____s/ John W. Broomes__________ JOHN W. BROOMES UNITED STATES DISTRICT JUDGE
2

 
 Case 6:20-cv-01102-JWB-GEB Document 60 Filed 05/04/20 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

FIRST BAPTIST CHURCH;

)

PASTOR STEPHEN ORMORD;

)

CALVARY BAPTIST CHURCH;

)

PASTOR AARON HARRIS

)

)

Plaintiffs,

)

) Case No. 6:20-cv-01102-JWB-GEB

GOVERNOR LAURA KELLY,

)

in her official capacity; ADJUTANT GENERAL )

DAVID WEISHAAR, in his official capacity; )

GEARY COUNTY SHERIFF DANIEL E.

)

JACKSON, JR. in his official capacity; FORD )

COUNTY SHERIFF WILLIAM CARR, in his )

official capacity,

)

Defendants.

)

PLAINTIFFS’ NOTICE OF VOLUNTARY DISMISSAL WITHOUT PREJUDICE
WHEREAS, Plaintiffs filed this action on April 16, 2020, challenging Defendant Kelly’s Executive Order 20-18 (replaced by EO 20-25) prohibiting all mass gatherings of 10 or more people in a confined or enclosed space at the same time, while carving out broad exemptions for 26 types of secular activities and singling out churches and other religious services or activities for prohibition.
WHEREAS, EO 20-25 expired at 11:59 p.m. on May 3, 2020. WHEREAS, EO 20-25 was replaced by Executive Order 20-29 which allows churches to gather for in-person worship subject to maintaining a 6-foot distance between individuals with an exception for “infrequent or incidental moments of closer proximity.”

1

Case 6:20-cv-01102-JWB-GEB Document 60 Filed 05/04/20 Page 2 of 3

Therefore, pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i), Plaintiffs voluntarily dismiss without prejudice all claims brought in their Verified Complaint in the above-captioned case.
Respectfully submitted this 4th day of May, 2020.

/s/ Tyson C. Langhofer Tyson C. Langhofer KS Bar No. 19241 ALLIANCE DEFENDING FREEDOM 20116 Ashbrook Place, Suite 250 Ashburn, VA 20147 Telephone: (316) 265-8800 tlanghofer@ADFlegal.org

/s/ Joshua A. Ney Joshua A. Ney, KS Bar No. 24077 NEY LAW FIRM, LLC 900 S. Kansas Ave., Ste. 402B Topeka, KS 66612 Telephone: (785) 414-9065 josh@joshney.com

David A. Cortman GA Bar No. 188810 ALLIANCE DEFENDING FREEDOM 1000 Hurricane Shoals Rd. NE Suite D-1100 Lawrenceville, GA 30043 Telephone: (770) 339-0774
dcortman@ADFlegal.org

/s/ Ryan A. Kriegshauser Ryan A. Kriegshauser KS Bar No. 23942 KRIEGSHAUSER LAW LLC 15050 W. 138th St., Unit 4493 Olathe, KS 66063 Telephone: (913) 303-0639 ryan@kriegshauserlaw.us

Ryan J. Tucker AZ Bar No. 034382 ALLIANCE DEFENDING FREEDOM 15100 N. 90th St. Scottsdale, AZ 85260 Telephone: (480) 444-0020
rtucker@ADFlegal.org

Attorneys for Plaintiffs

2

Case 6:20-cv-01102-JWB-GEB Document 60 Filed 05/04/20 Page 3 of 3 CERTIFICATE OF SERVICE
I hereby certify that on May 4, 2020, I caused the foregoing to be filed with the Clerk of the Court using the ECF system, which will provide electronic copies to counsel of record.
/s/ Tyson C. Langhofer Tyson C. Langhofer KS Bar No. 19241 ALLIANCE DEFENDING FREEDOM 20116 Ashbrook Place, Suite 250 Ashburn, VA 20147 Telephone: (480) 388-8205 tlanghofer@ADFlegal.org
3

 
 Case 6:20-cv-01102-JWB-GEB Document 58 Filed 04/29/20 Page 1 of 24

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

FIRST BAPTIST CHURCH, PASTOR STEPHEN ORMORD, CALVARY BAPTIST CHURCH, and PASTOR AARON HARRIS,
Plaintiffs,
v.
GOVERNOR LAURA KELLY, in her official capacity,
Defendant.

Case No. 20-1102-JWB

BRIEF OF KANSAS INTERFAITH ACTION AS AMICUS CURIAE IN SUPPORT OF DEFENDANT

RICHARD B. KATSKEE* ALEX J. LUCHENITSER*
Americans United for Separation of Church and State
1310 L Street NW, Suite 200 Washington, DC 20005 (202) 466-3234 (202) 466-3353 (fax) luchenitser@au.org

WILLIAM J. SKEPNEK Skepnek Law Firm P.A. 1 Westwood Road Lawrence, KS 66044 (785) 856-3100 (785) 856-3099 (fax) bskepnek@skepneklaw.com

* Pro hac vice motions submitted herewith or forthcoming.
Counsel for Amicus Curiae

Case 6:20-cv-01102-JWB-GEB Document 58 Filed 04/29/20 Page 2 of 24
TABLE OF CONTENTS Page(s)
Table of Authorities ............................................................................................. ii Identity and Interests of Amicus Curiae .............................................................1 Introduction and Summary of Argument ............................................................2 Argument...............................................................................................................4 I. The Order Does Not Violate The Free Exercise Clause..............................4
A. The order is neutral toward religion. ...................................................5 B. The order is generally applicable..........................................................6 II. The Order Satisfies The Compelling-Interest Test. ....................................8 A. The order serves a compelling governmental interest. .......................9 B. The order is narrowly tailored. .......................................................... 10 III. The Establishment Clause Forbids The Requested Exemption. ............. 11 Conclusion .......................................................................................................... 16
i

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TABLE OF AUTHORITIES
Page(s)
Cases
American Life League, Inc. v. Reno, 47 F.3d 642 (4th Cir. 1995) ...................................................................................... 9
Binford v. Sununu, No. 217-2020-CV-00152 (N.H. Super. Ct. Mar. 25, 2020)....................................... 4
Braunfeld v. Brown, 366 U.S. 599 (1961) ............................................................................................ 4, 13
Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) .........................................................................................passim
Compagnie Francaise de Navigation a Vapeur v. Louisiana Board of Health, 186 U.S. 380 (1902) .................................................................................................. 9
Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327 (1987) ................................................................................................ 14
Cutter v. Wilkinson, 544 U.S. 709 (2005) ................................................................................................ 13
Employment Division v. Smith, 494 U.S. 872 (1990) .........................................................................................passim
Epperson v. Arkansas, 393 U.S. 97 (1968) .................................................................................................. 11
Estate of Randolph v. City of Wichita, No. 118,842, __ P.3d __, 2020 WL 288978 (Kan. Ct. App. Jan. 21, 2020) ................................................................................... 7
Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985) ...................................................................................... 3, 12, 13
Friends of DeVito v. Wolf, No. 68 MM 2020, 2020 WL 1847100 (Pa. Apr. 13, 2020) ........................................ 4
Frisby v. Schultz, 487 U.S. 474 (1988) .......................................................................................... 10, 11
Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982) ................................................................................................ 10
ii

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Grutter v. Bollinger, 539 U.S. 306 (2003) .................................................................................................. 9
Hannibal & St. Joseph R.R. Co. v. Husen, 95 U.S. 465 (1877) .................................................................................................... 9
Hosanna-Tabor Lutheran Evangelical Church & School v. EEOC, 565 U.S. 171 (2012) .......................................................................................... 13, 14
Hotze v. Hidalgo, No. 2020-22609 (Tex. Dist. Ct. Apr. 13, 2020)......................................................... 3
Jacobson v. Massachusetts, 197 U.S. 11 (1905) ...........................................................................................passim
Legacy Church, Inc. v. Kunkel, No. 1:20-cv-327-JB-SCY, ECF No. 29 (D.N.M. Apr. 17, 2020) ......................................................................... 3
Maryville Baptist Church, Inc. v. Beshear, No. 3:20-cv-278-DJH, ECF No. 9 (W.D. Ky. Apr. 18, 2020) ........................................................................ 3
McCormick v. Stalder, 105 F.3d 1059 (4th Cir. 1997) ................................................................................ 10
McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005) .......................................................................................... 11, 12
Nigen v. New York, No. 1:20-cv-01576-EK-PK, , ECF No. 7 (E.D.N.Y. Mar. 29, 2020).................................................................... 3, 4
Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984) .................................................................................................... 8
Prince v. Massachusetts, 321 U.S. 158 (1944) ...................................................................................... 4, 10, 13
Real Alternatives, Inc. v. Secretary Department of Health & Human Services, 867 F.3d 338 (3d Cir. 2017) .................................................................................... 14
Reynolds v. United States, 98 U.S. 145 (1879) .................................................................................................... 5
Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) ................................................................................................ 11
iii

Case 6:20-cv-01102-JWB-GEB Document 58 Filed 04/29/20 Page 5 of 24
Sherbert v. Verner, 374 U.S. 398 (1963) .................................................................................. 8, 9, 10, 11
Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989) .............................................................................................. 12, 13
Tolle v. Northam, No. 1:20-cv-00363-LMB-MSN, ECF No. 9 (E.D. Va. Apr. 8, 2020), appeal docketed, No. 20-1419 (4th Cir. Apr. 13, 2020)............................................ 3
Ungar v. N.Y.C. Housing Authority, 363 F. App’x 53 (2d Cir. 2010).................................................................................. 8
United States v. Lee, 455 U.S. 252 (1982) .......................................................................................... 12, 13
Whitlow v. California, 203 F. Supp. 3d 1079 (S.D. Cal. 2016) ............................................................. 10, 11
Wisconsin v. Yoder, 406 U.S. 205 (1972) ............................................................................................ 9, 10
Workman v. Mingo County Board of Education, 419 F. App’x 348 (4th Cir. 2011) ............................................................................ 10
Constitutions, Statutes, and Orders
U.S. Const. amend I..............................................................................................passim
42 U.S.C. § 2000bb(b) et seq. ......................................................................................... 8
Executive Order 20-25 (2020) (Kelly) (E.O. 20-25)..............................................passim
Kan. Stat. Ann. § 21-5231 ............................................................................................. 6
Other Authorities
Associated Press, 20,000: US Death Toll Overtakes Italy’s as Midwest Braces, N.Y. TIMES (Apr. 11, 2020), https://nyti.ms/2ySaHzK .......................................................................................... 2
Attorney General William P. Barr Issues Statement on Religious Practice and Social Distancing, United States Department of Justice (Apr. 14, 2020), https://bit.ly/2RIYzHO ...................................................... 7
Matthew Barakat, Judge rejects lawsuit over order; no religious exemption, WASH. POST (Apr. 9, 2020), https://wapo.st/2xiqeIE............................................................................................. 4
iv

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Anna Christianson & Tiffany Littler, Gov. Kelly issues executive order to limit church gatherings, funerals, KSNT (updated Apr. 7, 2020 4:13 PM), https://bit.ly/3bZV0F5.............................................................................. 6
City News Service, Judge Denies Church’s Attempt to Hold In-Person Easter Sunday Services, FOX5SANDIEGO.COM (Apr. 10, 2020), https://bit.ly/3ccPvTG ............................................................................................... 4
Hilda Flores, One-third of COVID-19 cases in Sac County tied to church gatherings, officials say, KCRA (Apr. 1, 2020, 2:55 PM), https://bit.ly/2XlCpPu..................................................... 15
Bailey Loosemore & Mandy McLaren, Kentucky county ‘hit really, really hard’ by church revival that spread deadly COVID-19, LOUISVILLE COURIER JOURNAL (updated Apr. 2, 2020 9:24 AM), https://bit.ly/2XkKCnd ..................................... 15
Katie Mettler, How the coronavirus compares with the flu, WASH. POST (Mar. 10, 2020, 3:30 PM), https://wapo.st/3b3xC9L ........................... 1
Richard Read, A choir decided to go ahead with rehearsal; Now dozens of members have COVID-19 and two are dead, L.A. TIMES (Mar. 29, 2020), https://lat.ms/2yiLbU6 ............................................. 15
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IDENTITY AND INTERESTS OF AMICUS CURIAE Kansas Interfaith Action is a statewide, multi-faith issue-advocacy organization that “puts faith into action” by educating, engaging and advocating on behalf of people of faith and the public regarding critical social, economic, and climate justice issues. KIFA (pronounced “KEE–fa”) supporters are shaped by the values of our diverse faiths, which connect us to an age-old concern for justice, peace, and human dignity. Rooted in faith, we join hands across difference to work for moral public policy in Kansas. KIFA is a state public policy office of the Central States Synod of the Evangelical Lutheran Church in America and is a partner of the KansasOklahoma Conference of the United Church of Christ. KIFA supports Governor Kelly’s inclusion of houses of worship in the tenperson limit for public gatherings in her executive order. Most congregations associated with KIFA have been meeting on-line since mid-March. KIFA believes that this is the most sensible course of action to take in the face of the unprecedented COVID-19 pandemic. As faith leaders, KIFA’s members place a high value on their religious freedom. But the faith traditions represented among KIFA’s constituency do not require public gatherings for worship as part of the practice of faith. Instead, public gatherings are only preferred. Though in some cases, such as Catholic mass and Jewish services, elements of worship require personal attendance, these requirements can be fulfilled within the ten-person limit of Governor Kelly’s executive order. Therefore, we believe that, under the Governor’s order, no one’s right to worship is being limited; only their ability to gather physically is affected. The pandemic is an extenuating circumstance
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that calls on people of faith to accept temporary limitations on public worship that would be unacceptable in normal circumstances. But these are not normal circumstances, and we are willing to accept a temporary inconvenience for a greater good—the life and health of our congregants and our communities.
INTRODUCTION AND SUMMARY OF ARGUMENT Kansas, along with most of the rest of the world, is facing a pandemic. The United States now has the most reported COVID-19-related deaths worldwide, and confirmed cases in the Midwest are increasing. See Associated Press, 20,000: US Death Toll Overtakes Italy’s as Midwest Braces, N.Y. TIMES (Apr. 11, 2020), https://nyti.ms/2ySaHzK. Leaders at all levels of government have therefore been asked to act decisively to protect their constituents’ lives. As part of a statewide emergency public-health response, Governor Kelly has temporarily barred in-person gatherings of more than ten people to reduce the risk of transmission. Though this order does have the effect of limiting some of Plaintiffs’ religious activities, it does not violate their religious-exercise rights. The Supreme Court explained in Employment Division v. Smith, 494 U.S. 872 (1990), and Church of the Lukumi Babalu Aye v. City of Hialeah, 505 U.S. 520 (1993), that neutral, generally applicable laws reflecting no discriminatory intent toward religion do not violate the Free Exercise Clause of the First Amendment. Governor Kelly’s order complies with this principle: The virus is just as likely to spread at religious events as at nonreligious ones, so the order applies to all gatherings equally, regardless of motivation. And the order allows faith leaders and houses of worship to continue operating under constraints similar to those imposed on other permitted activities.
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But even if the Court were to conclude that heightened scrutiny should apply, the mass-gathering ban would still survive because it is narrowly tailored to advance the compelling governmental interest in protecting Kansas residents from a deadly disease.
What is more, the Establishment Clause of the First Amendment forbids granting an exemption from the order for religious services. For if government imposes harms on third parties when it exempts religious exercise from the requirements of the law, it impermissibly favors the benefited religion and its adherents over the rights, interests, and beliefs of the nonbeneficiaries. See, e.g., Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 709–10 (1985). Holding that religious gatherings must be exempted from the Governor’s public-health order would do just that. A single contagious person at a church can infect scores of fellow congregants, who may then expose family, friends, and strangers, including countless people who did not attend the service.
For reasons similar to those set forth here, many courts have rejected challenges like this case to COVID-19-related orders in recent weeks. See Maryville Baptist Church, Inc. v. Beshear, No. 3:20-cv-278-DJH, ECF No. 9 (W.D. Ky. Apr. 18, 2020) (denying TRO); Legacy Church, Inc. v. Kunkel, No. 1:20-cv-327-JB-SCY, ECF No. 29 (D.N.M. Apr. 17, 2020) (denying TRO in 100-page opinion); Hotze v. Hidalgo, No. 2020-22609 (Tex. Dist. Ct. Apr. 13, 2020) (denying TRO); Tolle v. Northam, No. 1:20-cv-00363-LMB-MSN, ECF No. 9 (E.D. Va. Apr. 8, 2020) (reaffirming and expounding upon denial of preliminary injunction), appeal docketed, No. 20-1419 (4th Cir. Apr. 13, 2020); Nigen v. New York, No. 1:20-cv-01576-EK-PK, ECF No. 7
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(E.D.N.Y. Mar. 29, 2020) (denying TRO); Binford v. Sununu, No. 217-2020-CV-00152

(N.H. Super. Ct. Mar. 25, 2020) (denying preliminary injunction); City News Service,

Judge Denies Church’s Attempt to Hold In-Person Easter Sunday Services,

Fox5SanDiego.com (Apr. 10, 2020), https://bit.ly/3ccPvTG (San Diego, California,

federal judge denied TRO); Matthew Barakat, Judge rejects lawsuit over order; no

religious exemption, WASH. POST (Apr. 9, 2020), https://wapo.st/2xiqeIE (Russell

County, Virginia, state judge denied TRO); see also Friends of DeVito v. Wolf, No. 68

MM 2020, 2020 WL 1847100, at *1 (Pa. Apr. 13, 2020) (rejecting First Amendment

and other constitutional challenges by non-life-sustaining businesses). This Court

should do the same.

ARGUMENT

I.

THE ORDER DOES NOT VIOLATE THE FREE EXERCISE CLAUSE.

It is natural that, in difficult and scary times like these, people will desire the

comfort and support that their faith community provides. The freedom to worship in

accordance with one’s spiritual practices and traditions is a right of the highest order,

but the constitutional guarantee of religious freedom has never provided absolute

license to engage in conduct consistent with one’s religious beliefs. E.g., Braunfeld v.

Brown, 366 U.S. 599, 603 (1961) (plurality opinion). Yet Plaintiffs argue here that the

Free Exercise Clause prohibits temporary limitations on religious gatherings even in

the face of a severe global pandemic. That claim is not supported by the law: “The

right to practice religion freely does not include liberty to expose the community . . . to

communicable disease.” Prince v. Massachusetts, 321 U.S. 158, 166–67 (1944).

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Though government cannot forbid a religious practice because it is religious, religion-based disagreement with the law does not excuse noncompliance. “To permit this would be to make the professed doctrines of religious belief superior to the law of the land,” which would “in effect . . . permit every citizen to become a law unto himself.” Smith, 494 U.S. at 879 (quoting Reynolds v. United States, 98 U.S. 145, 166– 67 (1879)). Rather, laws that burden religious conduct are constitutionally permissible—and need satisfy rational-basis review only—when they are neutral toward religion and apply generally. Lukumi, 508 U.S. at 531; Smith, 494 U.S. at 879. Governor Kelly’s order here easily satisfies these requirements.
A. The order is neutral toward religion. The neutrality requirement means that a law must not “infringe upon or restrict practices because of their religious motivation.” Lukumi, 508 U.S. at 533 (emphasis added). That prohibition bars discrimination against religion both facially and through “religious gerrymanders” that target specific religious conduct. Id. at 534. The order here evinces no hostility toward religion. It bans all mass gatherings, religious or not: No gatherings that would put more than ten people in close contact are allowed for any purpose. Executive Order 20-25 (2020) (Kelly) (E.O. 20-25) ¶¶ 1.a–1.b. The meaning of that facially neutral blanket prohibition is unchanged by the order’s inclusion of religious gatherings in a non-exhaustive list of examples of types of gatherings that are prohibited—religious gatherings would fall within the order’s scope regardless. Far from showing hostility toward religion, the evolution of the Governor’s orders shows the Governor’s respect for and solicitousness toward religion. Religious
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gatherings were initially fully exempted from the orders. See Mem. & Order, ECF No. 14, at 14. The vast majority of faith communities were already meeting virtually when that version was in effect, however (as is the case now). It was only in response to factual developments showing the risk of unrestricted religious gatherings that the Governor added a restriction on religious services involving more than ten congregants or parishioners in the same enclosed space. See id. at 15 n.4; Anna Christianson & Tiffany Littler, Gov. Kelly issues executive order to limit church gatherings, funerals, KSNT (updated Apr. 7, 2020 4:13 PM), https://bit.ly/3bZV0F5 (one quarter of Kansas cases linked to religious gatherings). But even that restriction allows more than ten people—including “preachers, lay readers, choir or musical performers, or liturgists”—to conduct or perform a religious service so long as they observe social-distancing guidelines. E.O. 20-25 ¶ 1.c. This history shows a careful reluctance to interfere with religious activities, not anti-religious animus.
B. The order is generally applicable. General applicability is closely related to neutrality. Lukumi, 508 U.S. at 531. It means that government, “in pursuit of legitimate interests, cannot in a selective manner impose burdens only on conduct motivated by religious belief.” Id. at 543. In other words, government cannot restrict religious conduct while allowing substantial comparable “nonreligious conduct that endangers [the asserted governmental] interests in a similar or greater degree.” Id. The Governor’s order generally prohibits gatherings of ten or more people and therefore plainly does not pursue the State’s interests “only against conduct with a religious motivation.” See Lukumi, 508 U.S. at 546.
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That the order acknowledges some categorical exemptions does not negate its general applicability. Because “[a]ll laws are selective to some extent,” they need not be universal to be generally applicable. See Lukumi, 508 U.S. at 542–43. Kansas law, for example, exempts cases of self-defense from liability for assault and battery (Kan. Stat. Ann. § 21-5231; Estate of Randolph v. City of Wichita, No. 118,842, __ P.3d __, 2020 WL 288978, at *7 (Kan. Ct. App. Jan. 21, 2020)), but no one understands that carveout to create a constitutional right to an exemption for religiously motivated uses of force. Rather, the fundamental question is whether the scope of a law’s coverage demonstrates animus toward religious conduct by subjecting it to burdens not placed on a significant swath of analogous nonreligious conduct. See id. at 542– 46 (explaining that city ordinances ostensibly aimed at protecting public health and preventing animal cruelty worked exclusively to bar Santeria religious animal sacrifice while leaving other animal slaughter unaffected).
Comparing similarly situated activities is key to sniffing out religious discrimination. Cf. Attorney General William P. Barr Issues Statement on Religious Practice and Social Distancing, United States Department of Justice (Apr. 14, 2020), https://bit.ly/2RIYzHO (urging that religious gatherings be treated like similar nonreligious gatherings, such as those at movie theaters, restaurants, and concert halls). A typical in-person religious service could have dozens of people sitting together in a room for an extended time, probably speaking to one another or singing at various points. Executive Order 25 bars analogous gatherings: It also applies to parades, social clubs, art shows, movie screenings, political conferences, educational lectures, restaurant dining rooms, libraries, and other events and venues.
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Governor Kelly’s order thus does not single out religious gatherings while permitting similar nonreligious gatherings. Moreover, the order draws no distinctions based on religious views or motivations with respect to exempt activities and locations—hospitals and food pantries, for example, are not subject to the gathering ban whether or not they have a religious affiliation. E.O. 20-25 ¶¶ 2.k, 2.o; cf. Ungar v. N.Y.C. Hous. Auth., 363 F. App’x 53, 56 (2d Cir. 2010) (holding that limited categorical exceptions to public-housing policy did not negate general applicability because exceptions were equally available to religious and nonreligious applicants). II. THE ORDER SATISFIES THE COMPELLING-INTEREST TEST.
Even if the Court were to conclude that the Governor’s order must satisfy heightened scrutiny, it would still be lawful, because it is narrowly tailored to achieve a compelling governmental interest. See Lukumi, 508 U.S. at 531 (defining the compelling-interest test).1 More than a century of constitutional jurisprudence demonstrates that restrictions on religious exercise tailored to containing contagious diseases withstand the strictest judicial scrutiny. Before its decision in Smith in 1990, the Supreme Court interpreted the Free Exercise Clause to require application of the compelling-interest test whenever religious exercise was substantially burdened by governmental action. See, e.g., Sherbert v. Verner, 374 U.S. 398, 407 (1963); see also 42 U.S.C. § 2000bb(b) (purpose of federal Religious Freedom Restoration Act was “to
1 Plaintiffs argue that their claims under the Kansas Constitution and the Kansas Preservation of Religious Freedom Act trigger heightened scrutiny. But the Eleventh Amendment bars federal courts from enjoining state officials to comply with state law. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984). So those claims cannot support injunctive relief from this Court.
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restore the compelling interest test as set forth in” Sherbert and Wisconsin v. Yoder, 406 U.S. 205 (1972)). The Court’s pre-Smith free-exercise decisions make clear that the test, while exacting, is not “fatal in fact” (Grutter v. Bollinger, 539 U.S. 306, 326– 27 (2003)). And they routinely acknowledged that there is no right to religious exemptions from laws tailored to shield the public from serious disease.
A. The order serves a compelling governmental interest. The State has a compelling interest in protecting the health and safety of the public in general and in preventing the spread of disease in particular. See Sherbert, 374 U.S. at 402–03; accord Yoder, 406 U.S. at 230 & n.20; Am. Life League, Inc. v. Reno, 47 F.3d 642, 655–56 (4th Cir. 1995). Indeed, an extensive body of case law reflects the overriding importance of the government’s interest in combating communicable diseases. “[P]owers on the subject of health and quarantine [have been] exercised by the states from the beginning.” Compagnie Francaise de Navigation a Vapeur v. La. Bd. of Health, 186 U.S. 380, 396–97 (1902). On that basis, more than a century ago, the Supreme Court upheld a mandatory-vaccination law aimed at stopping the spread of smallpox. See Jacobson v. Massachusetts, 197 U.S. 11, 25 (1905). The Court straightforwardly rejected the idea that the Constitution barred such compulsory measures to protect health, citing the “fundamental principle” that personal liberty is subject to restraint “in order to secure the . . . health . . . of the state.” Id. at 26 (quoting Hannibal & St. Joseph R.R. Co. v. Husen, 95 U.S. 465, 471 (1877)). Because “a community has the right to protect itself against an epidemic of disease which threatens the safety of its members,” individual rights are subject to reasonable
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restrictions—especially during a public-health emergency such as the one that we now face. See Jacobson, 197 U.S. at 27.
The Supreme Court has thus repeatedly reaffirmed that public-health regulations like mandatory immunizations that burden religious exercise withstand heightened judicial scrutiny. See Sherbert, 374 U.S. at 402–03 (citing mandatory vaccinations in Jacobson as example of burden on religion that is permissible under strict scrutiny); Yoder, 406 U.S. at 230; see also Prince, 321 U.S. at 166–67. Lower federal courts have also consistently recognized that the governmental interest in preventing the spread of communicable disease is compelling. See, e.g., Workman v. Mingo Cty. Bd. of Educ., 419 F. App’x 348, 353–54 (4th Cir. 2011) (“[T]he state’s wish to prevent the spread of communicable diseases clearly constitutes a compelling interest.”); McCormick v. Stalder, 105 F.3d 1059, 1061 (4th Cir. 1997) (“[T]he prison’s interest in preventing the spread of tuberculosis, a highly contagious and deadly disease, is compelling.”); Whitlow v. California, 203 F. Supp. 3d 1079, 1089–90 (S.D. Cal. 2016) (collecting cases showing compelling governmental interest in fighting the spread of contagious disease). The State’s interest here in stanching the spread of COVID-19 is no less compelling. And it calls for placing limitations consistent with the State’s public-health interests on all mass gatherings, including religious ones.
B. The order is narrowly tailored. The compelling-interest test requires that the challenged law be narrowly tailored to the interest at stake. E.g., Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607 (1982). Even “[a] complete ban can be narrowly tailored . . . if each activity within the proscription’s scope is . . . appropriately targeted.” Frisby v.
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Schultz, 487 U.S. 474, 487 (1988); see Roberts v. U.S. Jaycees, 468 U.S. 609, 628–29 (1984) (ban on all gender discrimination is narrowly tailored to combatting evil of gender discrimination). Accordingly, the Supreme Court (see Sherbert, 374 U.S. at 403 (citing Jacobson, 197 U.S. at 26–27)) and many other courts (see, e.g., Whitlow, 203 F. Supp. 3d at 1089–90 (collecting cases)) have concluded that blanket prohibitions on refusing immunizations satisfy strict judicial review.
Governor Kelly’s order operates in the same way. No vaccine for COVID-19 yet exists, so the only way to slow its spread is to limit the number of opportunities for person-to-person transmission. Temporarily restricting the size of in-person gatherings and enforcing social-distancing guidelines in permitted activities is how the State achieves that objective. And because the State cannot know who is infected at any given time, the order is no broader than necessary to ensure that the targeted activities—physical gatherings that create opportunities for transmission of the virus—are curtailed. As modern technology allows religious services and activities to be conducted remotely, the order permits central and essential religious practices to go on. Indeed, the order’s restrictions on religious services are carefully tailored to allow houses of worship and faith leaders to continue operations while many businesses and other institutions are forced to close completely. III. THE ESTABLISHMENT CLAUSE FORBIDS THE REQUESTED EXEMPTION.
The rights to believe, or not, and to practice one’s faith, or not, are sacrosanct. But they do not extend to imposing the costs and burdens of one’s beliefs on others. The federal Religion Clauses “mandate[ ] governmental neutrality between religion and religion, and between religion and nonreligion.” McCreary County v. ACLU of
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Ky., 545 U.S. 844, 860 (2005) (quoting Epperson v. Arkansas, 393 U.S. 97, 104 (1968)). That neutrality requirement forbids the government not just to target religion for worse treatment (see Part I, supra) but also to grant religious exemptions that would detrimentally affect nonbeneficiaries (see Estate of Thornton, 472 U.S. at 709–10). For when government purports to accommodate the religious exercise of some by shifting costs or burdens to others, it prefers the religion of the benefited over the rights, beliefs, and interests of the nonbeneficiaries, in violation of the Establishment Clause. Exempting Plaintiffs from the order would contravene this settled constitutional rule.
a. In Estate of Thornton, for example, the U.S. Supreme Court invalidated a law requiring employers to accommodate Sabbatarians in all instances, because “the statute t[ook] no account of the convenience or interests of the employer or those of other employees who do not observe a Sabbath.” 472 U.S. at 709–10. The Court held that “unyielding weighting in favor of Sabbath observers over all other interests” has “a primary effect that impermissibly advances a particular religious practice,” violating the Establishment Clause. Id. at 710. Similarly, in Texas Monthly, Inc. v. Bullock, the Court invalidated a sales-tax exemption for religious periodicals because, among other defects, it unconstitutionally “burden[ed] nonbeneficiaries” by making them pay “to offset the benefit bestowed on subscribers to religious publications.” 489 U.S. 1, 18 n.8 (1989) (plurality opinion).
The Supreme Court’s pre-Smith Free Exercise Clause jurisprudence is consistent, demonstrating that religious exemptions that harm others cannot be required even under the compelling-interest test. In United States v. Lee, the Court
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rejected an Amish employer’s request for an exemption from paying social-security taxes because the exemption would have “operate[d] to impose the employer’s religious faith on the employees.” 455 U.S. 252, 261 (1982). In Braunfeld, the Court declined to grant an exemption from Sunday-closing laws because it would have provided Jewish businesses with “an economic advantage over their competitors who must remain closed on that day.” 366 U.S. at 608–09. And in Prince, the Court denied a request for an exemption from child-labor laws to allow minors to distribute religious literature because while “[p]arents may be free to become martyrs themselves . . . it does not follow [that] they are free . . . to make martyrs of their children.” 321 U.S. at 170. That is because “[r]eal liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own [liberty] . . . regardless of the injury that may be done to others.” Jacobson, 197 U.S. at 26.
In short, a religious accommodation “must be measured so that it does not override other significant interests” (Cutter v. Wilkinson, 544 U.S. 709, 722 (2005)) and must not “impose substantial burdens on nonbeneficiaries” (Texas Monthly, 489 U.S. at 18 n.8 (plurality opinion)). When nonbeneficiaries would be unduly harmed, religious exemptions are forbidden. Cutter, 544 U.S. at 720; Estate of Thornton, 472 U.S. at 709–10.
b. In only one narrow set of circumstances (in two cases) has the U.S. Supreme Court ever upheld religious exemptions that materially burdened third parties— namely, when core Establishment and Free Exercise Clause protections for the ecclesiastical authority of religious institutions required the exemption. In Hosanna-
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Tabor Lutheran Evangelical Church & School v. EEOC, 565 U.S. 171, 194–95 (2012), the Court held that the Americans with Disabilities Act could not be enforced in a way that would interfere with a church’s selection of its ministers. And in Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 339–40 (1987), the Court upheld, under Title VII’s statutory religious exemption, a church’s firing of an employee who was not in religious good standing. These exemptions did not amount to impermissible religious favoritism, and therefore were permissible under the Establishment Clause, because they directly implicated “church autonomy.” Real Alts., Inc. v. Sec’y Dep’t of Health & Human Servs., 867 F.3d 338, 352 (3d Cir. 2017).
This case does not implicate the special protections for ecclesiastical authority because it does not present questions regarding internal matters such as hiring clergy or determining religious membership. Rather, it presents the opposite question: whether there is a constitutional right to put countless people outside the church at greater risk of exposure to deadly disease.
c. Granting an exemption to Plaintiffs here would elevate their religious preferences over the health of the entire community. By holding religious gatherings, Plaintiffs not only would put themselves in danger but also would increase the risk of contagion for everyone with whom they or their parishioners come into contact, including children, the elderly, and others at the highest risk of severe illness.
The State is facing an unprecedented public-health emergency, and in response to this grave threat, the Governor has ordered the people of Kansas to forgo large gatherings and to observe social-distancing guidelines during certain permitted
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activities. Governor Kelly has determined that these steps will slow the spread of the virus and ultimately save lives.
If the State is instead forced to exempt Plaintiffs—and all others who follow with legal challenges—everyone will be in greater danger of contracting the virus. Religious gatherings are just as likely as any other gathering to spread COVID-19, and the examples are sadly piling up across the country. Officials in Sacramento County, California, for example, have traced roughly a third of the county’s more than 300 confirmed cases back to church gatherings. Hilda Flores, One-third of COVID-19 cases in Sac County tied to church gatherings, officials say, KCRA (Apr. 1, 2020, 2:55 PM), https://bit.ly/2XlCpPu. After a church-choir practice—at which members attempted to observe distancing and hygiene guidance—45 out of 60 attendees fell ill, and two tragically died. Richard Read, A choir decided to go ahead with rehearsal; Now dozens of members have COVID-19 and two are dead, L.A. TIMES (Mar. 29, 2020), https://lat.ms/2yiLbU6. And a church event in Louisville last month has been “linked to at least 28 cases . . . and two deaths.” Bailey Loosemore & Mandy McLaren, Kentucky county ‘hit really, really hard’ by church revival that spread deadly COVID19, LOUISVILLE COURIER JOURNAL (updated Apr. 2, 2020), https://bit.ly/2XkKCnd.
A single unwitting carrier in Plaintiffs’ congregations could cause a ripple effect throughout the entire community: That one carrier might pass the virus to his neighbors in the pews, who might then return home and pass it to their family members, including people at high risk of severe illness. If those infected family members then go to the doctor’s office, or to the grocery store for milk, they may potentially expose others, who may then do the same to their families—and so on.
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And the more people who get sick, the more strain is placed on the hospital system, and the greater the chance that people die due to lack of healthcare resources. The Establishment Clause forbids the government to grant religious exemptions for conduct that threatens to harm so many.
CONCLUSION KIFA’s members believe that, in the extraordinary circumstances we face today, Governor Kelly’s order is consistent with the teachings of the faith traditions that form the basis of our organization. The Jewish principle pikuah nefesh teaches that saving a life is of the utmost importance and that almost every mandated religious observance, no matter how central, is secondary to it. With the cooperation of all of us, this pandemic will abate, and people of faith will be able to celebrate many more Easters and Passovers together in their extended communities. But “[t]he dead cannot praise the Lord.” Psalms 115:16. Christians profess that Jesus said, “Where two or three are gathered in my name, I’m there with them.” Matthew 18:20. In a discussion about the worship-style differences between Judeans and Samaritans, Jesus responded: “The time is coming—and is here!—when true worshippers will worship in spirit and truth. The Father looks for those who worship him this way. God is spirit, and it is necessary to worship God in spirit and truth.” Luke 4:23–24. At the evangelical heart of the Christian faith is the central belief that faithful worship and encounter with God in Christ can never be limited to a specific building, place, or time. Christians are always free, at any time and place, alone or with others, to call upon God in an attitude of
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worship. This spiritual practice is in no way limited by the Governor’s order. And, alongside worship, healing and care for the sick have been defining elements of Christian faith practices since Jesus’s own ministry. Cooperative support of safer-athome orders in the midst of this pandemic is the most faithful witness a Christian can offer in these times.
Respecting these beliefs, Governor Kelly’s executive order aims at a delicate balance: taking steps to protect public health while not unduly burdening the free exercise of religion. KIFA believes that the Governor has done so effectively, limiting (but not eliminating) in-person gatherings while other elements of religious and congregational life continue via technology. The order is a temporary measure based on extenuating circumstances, and when the disaster abates so will these restrictions. KIFA believes that the value of human life outweighs the inconvenience caused by the executive order, and we urge the Court to deny Plaintiffs’ request for a preliminary injunction against the Governor’s order.
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Respectfully submitted,
RICHARD B. KATSKEE* ALEX J. LUCHENITSER*
Americans United for Separation of Church and State
1310 L Street NW, Suite 200 Washington, DC 20005 (202) 466-3234 (202) 466-3353 (fax) luchenitser@au.org
* Pro hac vice motions submitted herewith or forthcoming.

/s/ William J. Skepnek
WILLIAM J. SKEPNEK Skepnek Law Firm P.A. 1 Westwood Road Lawrence, KS 66044 (785) 856-3100 (785) 856-3099 (fax) bskepnek@skepneklaw.com

Date:

April 21, 2020.

Counsel for Amicus Curiae

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