Federal Complaint Challenges Md. Governor’s Shutdown Orders

Federal Complaint Challenges Md. Governor’s Shutdown Orders
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OCEAN CITY — It was likely only a matter of time with the weeks now turning into months, but a coalition including three state delegates and the Reopen Maryland organization this week filed suit in U.S. District Court seeking an end to Gov. Larry Hogan’s restrictions aimed at curbing the spread of COVID-19.

The 56-page complaint, filed in U.S. District Court on Saturday, challenges the governor’s authority to issue emergency declarations closing businesses deemed non-essential, prohibiting gatherings of 10 or more people- most specifically religious gatherings, implementing stay-at-home orders for Maryland residents, prohibiting or at least limiting commerce and free travel and, finally, requiring the wearing of masks or face coverings while conducting commerce.

Named as plaintiffs in the case are three state delegates including Dan Cox (R-4, Frederick and Carroll Counties), Neil Parrott (R-2A, Washington County), and Warren Miller (R-9A, Howard and Carroll Counties, in addition to the 22,000-strong Reopen Maryland organization, a handful of businesses and pastors and members of the clergy. Named as defendants in the suit are Hogan, Secretary of Health Robert Neall, Deputy Secretary of Public Health Services Fran Phillips and Maryland State Police Superintendent Colonel Woodrow Jones III.

Back in March, Hogan announced the first of several executive orders aimed at flattening the curve of the coronavirus in Maryland including the closure of non-essential businesses, stay-at-home directives and prohibitions on gatherings of 10 or more, including religious services, among others. While most agree the executive orders have helped stem the spread of the coronavirus, many, believe the time is now to start lifting the restrictions and allow the state to return to some sense of normal and reopen the economy.

However, the named plaintiffs in the suit, including three state delegates, two retired members of the armed services, two named businesses, nine pastors or members of the clergy, and the larger Reopen Maryland organization, assert Hogan never had the authority to implement the executive orders and restrictions in the first place under rights established in the U.S. and Maryland Constitutions.

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“A great object of our Union has been to uniformly advance and protect both the personal rights of individuals and of commerce, while not hindering the states from advancing those same rights at equal or greater pace,” the complaint reads. “The problem in Maryland is that Governor Hogan had done the reverse, even after being repeatedly petitioned to limit his power. His defense has been circular under color of law: that his alleged acting in preserving life satisfies his refusal to protect citizens’ liberty and happiness.”

The complaint argues the governor’s orders violate constitutional and federal laws protecting commerce, the right to assemble, the right to protest and the right to practice religion. The suit asserts certain businesses including some big-box retailers daily attract hundreds of customers and guests, while other small businesses deemed are withering and dying because they are considered non-essential

“Even if the court finds that a health emergency existed such that the Governor’s proclamation of executive powers were reasonable, the ongoing situation belies any such finding as does any rational statutory relation to the Governor’s actions of picking and choosing which businesses and social welfare or ministries can stay open, forcing everyone to remain in their houses, to wear masks to participate in commerce now being alleged for possibly at least a year or refuse to permit gatherings for free speech and assembly,” the complaint reads.

The complaint alleges there are ways to safely protect those most vulnerable to COVID-19, including continuing to implement certain social distancing and hygiene practices, while allowing most Marylanders to get back to working and living their lives free from onerous restrictions. The complaint points to other states that appear to be achieving both goals.

“As these other states have demonstrated, Governor Hogan can continue to pursue the state’s objective of preventing the spread of COVID-19 without unnecessarily burdening interstate commerce and business, trampling on individual liberties or treating religious gatherings in a discriminatory manner,” the complaint reads. “The state has numerous other, less restrictive alternatives available to it to do so.”

The federal suit seeks a preliminary injunction restraining and enjoining Hogan and all state staffers from enforcing the governor’s order pending a trial on the merits of the case for a permanent injunction.

“The governor’s orders suspend the laws towards the plaintiffs, preventing them from travel, confining them to their homes, forcing face coverings upon them in order to enter into commerce, suspecting their right to do business, to work, to worship, to speak and to be free from fear,” the complaint reads. “The governor’s unequivocal and unilateral exercise of authority over the constitutional rights of the plaintiffs deprive the plaintiffs of the rights they possess under state and federal laws, suspends or has the effect of suspending those laws unlawfully and passes its own administration of rules apart from the rule of law by the people.”

Cox, who is listed both as a plaintiff and as the attorney for the plaintiffs, filed suit on Saturday after allegedly being threatened with enforcement efforts including incarceration or a hefty fine if he participated in a planned cross-state rally from western Maryland to Salisbury.

“Today, on behalf of thousands of Marylanders represented by 18 brave plaintiffs, I regrettably had to file suit to seek to rein in the overreaching of the governor’s orders,” Cox said in a statement. “As a delegate, I have fought hard in my Judiciary Committee for the governor’s legislative policies, I’ve co-sponsored nearly all his legislation, and I even gave a floor speech in defense of his budgetary authority which the Left was taking away this session. However, the line of freedom that the Supreme Court has explained is sacred to our American values and our natural liberty, has been crossed. On behalf of 22,000 Marylanders and millions who agree in this state, it’s past time, Mr. Governor, to lighten the heavy hand of your executive orders and stop picking winners and losers, and Reopen Maryland. Marylanders will not stand for continued house arrest and lock-downs and the destruction of our businesses and way of life.”

In the statement, Cox asserts there are ways of accomplishing the twin goals of keeping Marylanders safe from the coronavirus while reopening the state and jumpstarting its economy.

“We are smart enough to protect the elderly, those in nursing homes and those with vulnerable health conditions while also ensuring that the health and freedom of all Maryland is protected,” the statement reads. “This is not a partisan issue, this is our shared American way of life and we will keep it, so help us God.”

Meanwhile, other citizens and business owners have taken to change.org to start an online petition encouraging Hogan to open Maryland. Joseph Magnolia Jr., owner of 5 Star Plumbing, Heating and Cooling in Ocean City, started the petition with a goal of 200 signatures. As of 2:30 p.m., the petition had reached 193 signatures. It can be found here.

The petition reads, “It has been almost 7 weeks since The Governor ordered Casinos, Racetracks, Bars and Restaurants close their doors and almost 5 weeks since he ordered us to stay at home except for non-essential businesses. All businesses are essential. The Governor has not given us a timeline to re-open and his plan and rhetoric suggests that it could be June 1st (11 weeks closed) or July 1st (16 weeks closed) or longer. None of us know.

“In speaking with many of my fellow business owners and citizens, most agree with me that the plan should have been from the beginning and should be today to spend the money on protecting the population that will end up in ICU and or dead and allow the rest of the healthy population to go to work and live and breathe as we have done our entire lives. Invest in security and safety for the Nursing Homes, Hospitals, Medical Centers and Day Care Facilities. Order the elderly, those with immune weakening diseases, taking immune weakening drugs and those living with individuals who meet these criteria to self-quarantine. Fund Unemployment Insurance for those individuals who fall into this population. Order employers to allow employees in this population to take the time needed and not risk losing their jobs. We have wasted so much money in paying businesses and healthy people not to work. Allow the rest of the healthy population to live their lives, possibly contract Covid-19, build up the antibodies and beat it.

“By closing businesses, beaches, boardwalks, parks, recreational boating and forcing us to wear face coverings, etc.…; The State has taken away our civil rights. We have the right to run our businesses, work out together, socialize and breathe fresh air. We are responsible enough to take care of our own and we do not need the government forcing us into seclusion. Those who don’t agree have the right to continue stay at home & self-quarantine, wear face coverings and other PPE and stay 6’ away from others.

“Please join me in letting Governor Larry Hogan know that The State of Maryland must re-open now and that we are no longer going to allow him to take away our God Given and Constitutional Rights.”

About The Author: Shawn Soper

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Shawn Soper has been with The Dispatch since 2000. He began as a staff writer covering various local government beats and general stories. His current positions include managing editor and sports editor. Growing up in Baltimore before moving to Ocean City full time three decades ago, Soper graduated from Loch Raven High School in 1981 and from Towson University in 1985 with degrees in mass communications with a journalism concentration and history.