Consent Decree
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Las Vegas Review-JournalConsent Decree
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Las Vegas Review-JournalCase 3:20-cv-00303-RFB-VCF Document 74 Filed 05/13/21 Page 1 of 5
1 AARON D. FORD
Attorney General
2 CRAIG A. NEWBY (Bar No. 8591)
Deputy Solicitor General
3 State of Nevada
Office of the Attorney General
4 100 North Carson Street
Carson City, Nevada 89701-4717
5 (775) 684-1100 (phone)
6 (775) 684-1108 (fax)
Email: CNewby@ag.nv.gov
7
Attorneys for State Defendants
8
9 UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
10
11 CALVARY CHAPEL DAYTON VALLEY Case No. 3:20-cv-00303-RFB-VCF
12 Plaintiff,
vs. CONSENT DECREE
13
STEVE SISOLAK, in his official capacity
14 as Governor of Nevada, et al.,
15 Defendants.
16
17 I. INTRODUCTION AND BACKGROUND
18 On March 12, 2020, the Governor of the State of Nevada issued an Emergency
19 Declaration in response to the novel coronavirus that causes COVID-19. See Governor
20 Steve Sisolak, Declaration of Emergency for COVID-19, https://bit.ly/3jnk6CR. The
21 Emergency Declaration remains in effect until the Governor issues an order declaring an
22 end to the emergency. Pursuant to the Emergency Declaration, the Governor issued
23 Emergency Directive 021 on May 29, 2020. See Governor Steve Sisolak, Declaration of
24 Emergency Directive 021 – Phase Two Reopening Plan, https://bit.ly/2MOoYoj. The
25 Directive and related official guidance imposed a 50-person attendance limit on indoor
26 services in houses of worship.
27 Calvary Chapel Dayton Valley (“the Church”) brought this action under 42 U.S.C. §
28 1983 against the Governor and the Attorney General of Nevada (collectively “Nevada” or
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1 “the State”) and the Sheriff of Lyon County, each in his official capacity. The Church alleged
2 in its Amended Complaint that the 50-person attendance limit under Directive 021 and
3 related official State guidance violated the Free Exercise, Speech, and Assembly Clauses
4 of the First Amendment. See generally ECF 8. The church requested preliminary and
5 permanent injunctive relief prohibiting the Defendants from enforcing that limit on indoor
6 worship services and a judgment declaring the limit was unconstitutional, both facially and
7 as-applied. Id.; ECF 19 (motion for preliminary injunction). This Court denied the Church’s
8 Motion for Preliminary Injunction, relying largely on South Bay United Pentecostal Church
9 v. Newsom, ––– U.S. ––––, 140 S. Ct. 1613, 207 L.Ed.2d 154 (2020) (mem.), and the Church
10 appealed. See Calvary Chapel Dayton Valley v. Sisolak, 2020 WL 4260438 (D. Nev. June
11 11, 2020).
12 The Ninth Circuit held that the Church demonstrated a likelihood of success on the
13 merits of its free-exercise claim, based on Roman Cath. Diocese of Brooklyn v. Cuomo, 141
14 S. Ct. 63, 67, 208 L. Ed. 2d 206 (2020), that the Church established any enforcement of the
15 50-person attendance limit would cause irreparable harm, and that an injunction was in
16 the public interest. Calvary Chapel Dayton Valley v. Sisolak, 982 F.3d 1228, 1234 (9th Cir.
17 2020), cert. denied, No. 20-639 (U.S. Jan. 25, 2021). Accordingly, the court of appeals
18 reversed, instructed this Court to employ strict scrutiny to its review of Directive 021, and
19 preliminarily enjoined the State from imposing attendance limits on indoor religious
20 gatherings that are less favorable than 25% of the listed fire code capacity. Id. The 25%
21 attendance limit is the same limit that, under Emergency Directive 035, Nevada has
22 imposed on certain commercial entities, including “casinos; bowling alleys, arcades,
23 miniature golf facilities, amusement parks, and theme parks; restaurants, food
24 establishments, breweries, distilleries, and wineries; museums, art galleries, zoos, and
25 aquariums; and gyms, fitness facilities, and fitness studios.” Id. at 1230 n.1; see Governor
26 Steve Sisolak, Declaration of Emergency for Directive 035, https://bit.ly/36B5vhD. The
27 State has subsequently increased the attendance limit to 50% for all applicable entities,
28 including houses of worship. See Governor Steve Sisolak, Declaration of Emergency for
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1 Directive 037. The State intends to delegate attendance limits to Nevada counties upon
2 approval of local plans. See Governor State Sisolak, Declaration of Emergency for Directive
3 041.
4 The parties have agreed to enter into this Consent Decree to resolve this matter
5 without further contested litigation. The parties agree that this Consent Decree resolves
6 all issues raised in the Church’s Amended Complaint (ECF 8) and Motion for Preliminary
7 Injunction (ECF 19) and is final and binding on the parties and their officials, agents,
8 employees, and successors.
9 II. SETTLEMENT OF CLAIMS
10 This Consent Decree is intended to resolve all claims by Calvary Chapel in its
11 Amended Complaint.
12 III. INJUNCTIVE AND PROSPECTIVE RELIEF
13 Nevada is permanently enjoined from:
14 1. Enforcing Directive 021’s and Directive 035’s numerical capacity limits
15 on indoor religious gatherings; and
16 2. Enforcing a percentage capacity limit on indoor religious gatherings
17 that is less favorable than the highest of the percentage capacity limits imposed on indoor:
18 (a) casinos; (b) entertainment venues (e.g., movie theaters, bowling alleys, arcades,
19 amusement parks, and theme parks); (c) food and spirits establishments (e.g., restaurants,
20 breweries, distilleries, wineries, and bars); (d) museums, art galleries, zoos, and
21 aquariums; and (e) gyms, fitness facilities, and fitness studios.
22 IV. DEFINITIONS
23 “Numerical capacity limit” means a fixed maximum number of persons (e.g., “the
24 occupancy shall not exceed 50 persons”).
25 “Percentage capacity limit” means a maximum number of persons expressed as a
26 fraction of 100 that is tied to a facility’s physical size (e.g., “the occupancy shall not exceed
27 25% of the listed fire code”).
28 ///
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1 V. ATTORNEY’S FEES AND COSTS
2 1. Nevada agrees to pay the Church reasonable attorney's fees and
3 taxable and non-taxable costs for the work performed and costs incurred in this Court and
4 the Ninth Circuit before the date of this Consent Decree. 1 If necessary State approvals from
5 the Board of Examiners and/or the Legislature’s Interim Finance Committee for any
6 agreement on the amount of reasonable attorney fees and costs are not received by the end
7 of business July 7, 2021, the Church shall file a fee and costs application with this Court
8 by July 30, 2021. Both Nevada and the Church reserve the right to appeal this Court’s
9 disposition of such application.
10 2. Separate from the previous paragraph, if (a) the Church seeks judicial
11 relief in enforcing this Consent Decree, and (b) the Church prevails in obtaining such relief
12 or Nevada corrects its alleged violation in response to the Church’s request for judicial
13 relief, Nevada agrees that it will pay the reasonable attorney’s fees and costs that the
14 Church incurs in seeking such relief. If an agreement on the amount of reasonable attorney
15 fees and costs cannot be reached, the Church shall file a fee and costs application with this
16 Court within 30 days of the date that this Court grants relief or that Nevada corrects its
17 alleged violation. Both Nevada and the Church reserve the right to appeal this Court’s
18 disposition of such application.
19 APPROVED and ORDERED May 13, 2021.
20
21
RICHARD F. BOULWARE, II
22 UNITED STATES DISTRICT JUDGE
23
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1 The Church’s application for attorney’s fees and non-taxable costs incurred during
27 Appeal No. 20-16169 is presently pending in the Ninth Circuit. See Cir. R. 39-1.6. The
parties will seek to stay consideration of that application in accordance with the terms of
28
this stipulated consent decree.
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1 AGREED:
2 For Calvary Chapel Dayton Valley: For the Governor and Attorney General:
3
/s/ Ryan J. Tucker /s/ Craig A. Newby
4 Ryan J. Tucker (AZ Bar 034382)* Craig A. Newby
ALLIANCE DEFENDING FREEDOM Deputy Solicitor General
5 15100 N. 90th Street STATE OF NEVADA
Scottsdale, AZ 85260 OFFICE OF THE ATTORNEY GENERAL
6
Telephone: (480) 444-0020 555 E. Washington, Ave., Ste. 3900
7 rtucker@adflegal.org Las Vegas, NV 89101
Telephone: (702) 486-3420
8 *Admitted pro hac vice cnewby@ag.nv.gov
9
For Sheriff Hunewill:
10
/s/ Brian R. Hardy
11 Brian R. Hardy (NV Bar 10068)
MARQUIS AURBACH COFFING
12
10001 Park Run Drive
13 Las Vegas, NV 89145
Telephone: (702) 382-0711
14 bhardy@maclaw.com
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