Judge: Church’s neighbors didn’t show they can win noise lawsuit
A judge turned down a request from neighbors of newhope church for a temporary restraining order against the church’s noise because they hadn’t convinced him they can win their lawsuit.
Superior Court Judge Bryan Collins in an order signed Monday said the neighbors to date “have not met their burden of showing that there is a likelihood of success on the merits” if and when the case comes to trial.
Lawyers for the church were quick to seize on the ruling as a sign that the neighbors have a weak case. But the neighbors’ lawyer, David McKenzie, said the decision “doesn’t give me pause in the least” because the case is still in its early stages.
So far, lawyers have presented “a fraction of the evidence this court is going to consider,” McKenzie said. “No way can this case be resolved in a couple of affidavits, and there is certainly more to come.”
Collins will preside later this spring over the neighbors’ request for a preliminary injunction against the church.
State statute and appellate-court rulings make it clear the neighbors at that point will have establish both that they are likely to win a trial and that they’d suffer an irreparable loss if the noise isn’t stopped before trial.
An injunction and a restraining order are slightly different animals under the law, as a restraining order is a short-term stopgap, issued in advance of a full-on hearing about an injunction and eventually a trial.
State statute allows judges to issue restraining orders if the side that files a lawsuit appears likely to suffer an “immediate and irreparable injury, loss or damage” if the suit’s target keeps doing whatever spawned the case.
The North Carolina statute on restraining orders doesn’t ask that the likelihood-of-success issue be addressed. But such demands do exist in federal courts and in the law of other states.
McKenzie and his clients – residents of the Hills at Southpoint subdivision – asked initially for both a restraining order and an injunction. The residents say the sound of music from newhope’s services and rehearsals is penetrating their homes.
Two of the church’s lawyers, Bill Thomas and Jay Ferguson, argued against the restraining order on the grounds that the neighbors are unlikely to prevail. But they cited state appellate cases that dealt with injunctions.
Restraining orders and injunctions “serve the same functions and both require a showing of likelihood on success on the merits,” Ferguson said in an email. In it, he added there “are not many appellate cases” on the point.
That’s because the denial of a restraining order is “not usually appealed,” he said.
Ferguson added that a prominent N.C. Court of Appeals case – a 2001 ruling that tossed a lawsuit against former Gov. Mike Easley – had “denied” a restraining order on likely-to-prevail grounds.
The case targeted Easley’s habit, while he was still the state’s attorney general, of appearing in taxpayer-funded public service announcements. Critics said the appearances amounted to subsidized campaign advertising.
The appeals court sided with a trial judge in ruling that Easley’s critics lacked standing to sue. It also noted, in passing, that the trial judge had rejected on likely-to-prevail grounds the critics’ request for a restraining order.
Thomas and Ferguson argued that newhope’s neighbors can’t prevail because the First Amendment protects the church’s services and because North Carolina courts “recognize that in modern society, landowners are not entitled to an absolute right to silence.”
“When living in a modern, urban society, homeowners must learn to overlook the sound of cars and planes, the sounds of sirens, the sources of dogs barking and yard equipment, and the occasional sounds of music that are overheard from a neighboring church’s worship service,” they said in one court filing.
In other action, Thomas on Tuesday secured a March 12 trial date for newhope pastor Benji Kelley’s separate attempt to fight off a city ticket that alleges the church violated Durham’s noise law.