Harvest Rock Church, Inc. v. Gavin Newsom

982 F.3d 1240

Opinion

FILED FOR PUBLICATION DEC 23 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

HARVEST ROCK CHURCH, INC., itself No. 20-56357 and on behalf of its member churches in California; HARVEST INTERNATIONAL D.C. No. MINISTRY, INC., itself and on behalf of its 2:20-cv-06414-JGB-KK member churches in California, Central District of California, Los Angeles Plaintiffs-Appellants, ORDER v.

GAVIN NEWSOM, in his official capacity as Governor of the State of California,

Defendant-Appellee.

Before: O'SCANNLAIN, RAWLINSON, and CHRISTEN, Circuit Judges.

Order by Judges RAWLINSON and CHRISTEN, Partial Concurrence and Partial Dissent by Judge O’SCANNLAIN

The court has received appellants’ emergency motion for injunction pending

appeal. The response to the motion is due at 9:00 a.m. Pacific Time on December

28, 2020. The optional reply in support of the motion is due at 9:00 a.m. Pacific

Time on December 29, 2020. FILED Harvest Rock Church, Inc. v. Newsom, No. 20-56357 DEC 23 2020 MOLLY C. DWYER, CLERK O’SCANNLAIN, J., concurring in part and dissenting in part: U.S. COURT OF APPEALS

Although I have no objection to the briefing schedule set forth in the court’s

order, I strongly object to our failure to accommodate, even in a temporary fashion,

Harvest Rock Church’s request for relief from California’s severe restrictions on

indoor worship services by December 24.

The requested deadline is hardly arbitrary: The church seeks immediate

action from our court so that its members can worship on Christmas Day, one of

the most sacred holy days in the Christian calendar. And it is not the church’s fault

that it finds itself in this predicament. The church moved for a temporary

restraining order against California’s worship-related restrictions as soon as this

case was remanded following a decision by the Supreme Court—yet it had to wait

more than two weeks before the district court ruled on that motion. When the

district court finally denied its motion two days ago, Harvest Rock Church filed a

notice of appeal the same day. The next day, yesterday, the church moved for an

emergency injunction from our court.

Our General Orders provide that, in exactly such a scenario, we may treat an

emergency motion seeking action within 48 hours as a request for temporary relief

until the panel “can more fully consider the merits of the motion.” 9th Cir. Gen.

Order 6.4.b. At this point—and as we are already familiar with many of the issues

1 presented in this case—Harvest Rock Church’s claims against California’s

restrictions appear strong. See generally Roman Catholic Diocese of Brooklyn v.

Cuomo, 141 S. Ct. 63 (2020) (per curiam) (enjoining similar COVID-19 related

restrictions in New York); Calvary Chapel Dayton Valley v. Sisolak, – F.3d – ,

2020 WL 7350247 (9th Cir. 2020) (enjoining similar COVID-19 related

restrictions in Nevada); Harvest Rock Church, Inc. v. Newsom, 977 F.3d 728, 732–

37 (9th Cir. 2020) (O’Scannlain, J., dissenting) (concluding that Harvest Rock

Church was likely to prevail on its previous appeal from the district court’s denial

of a preliminary injunction), vacated 981 F.3d 764 (9th Cir. 2020). Nonetheless, I

do not object to the panel’s determination that more time is needed to evaluate the

merits of Harvest Rock Church’s motion. But we should not deprive the church of

any hope of relief during the period of time it takes our court to do so.

Even if we need more time to consider the pending motion in full, we should

have granted the church at least the temporary relief it needs to ensure that its

members can exercise freely the fundamental right to practice their Christian

religion on one of the most sacred Christian days of the year. U.S. Const.

amend. I.