OCEAN CITY — It remains to be seen if Gov. Larry Hogan will impose even tighter restrictions as the COVID-19 numbers in Maryland continue to spike, but if he does, he will be justified from a legal standpoint based on the ruling of a federal judge this week.
In May, a coalition of plaintiffs, including the Reopen Maryland organization, a handful of businesses and pastors around the state and three state delegates filed suit in U.S. District Court seeking to end Hogan’s restrictions aimed at curbing the spread of COVID-19. In the suit, the plaintiffs challenged the governor’s authority to, among other things, close businesses deemed non-essential, prohibit gatherings of 10 or more people, implement stay-at-home orders, prohibit or at least limit commerce and free travel and require the wearing of face-coverings in public.
Of course, in the weeks following the filing of the federal suit, the COVID numbers in Maryland abated to the point many of the ultra-restrictive measures implemented by the governor in the spring were eased. In recent weeks, however, those key metrics have continued to spike and Hogan has implemented new directives, including a handful more this week.
On Wednesday, U.S. District Court Judge Catherine Blake dismissed the plaintiffs’ suit against Hogan and the other named defendants, effectively ending the legal challenge to the restrictive measures. In perhaps one of the more ominous passages in the 11-page opinion, the judge suggests Hogan would be justified if he eventually went back the restrictions imposed in the spring.
“Though the substance of the plaintiffs’ claims has not changed, the public health context in which those claims arose has,” the opinion reads. “Since May, the number of positive cases in Maryland has risen to 167,656 and the number of deaths has risen to 4,160. After a more stable period in late summer and early fall, the state’s positivity rate is now over six percent, with some counties reporting an even higher rate. The restrictions about which the plaintiffs originally complained were relaxed as the public health crisis abated, and, unfortunately, may go back into effect as the threat to public health continues to worsen.”
It’s important to note the statistics cited in the judge’s opinion reflect the latest data as of Monday. By Thursday, the numbers increased to 174,733 total cases in Maryland including 4,220 deaths. The positive-testing rate increased to over 7% for the first time in months.
The judge’s opinion asserts the plaintiffs were not successful in arguing the merits of their case.
“The plaintiffs have not plausibly alleged that there is no real and substantial relationship between the governor’s orders and the public health,” the opinion reads. “The plaintiffs allege in their amended complaint and in their opposition that less restrictive measures are available to Governor Hogan and that it is unequal treatment to designate some businesses, but not theirs, as essential. But alleging that an order goes too far in protecting public health is not the same as pleading has no real and substantial relation to protecting public health. Thus, the plaintiffs have failed to plead allegations sufficient to satisfy the first test.”
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.
In her opinion, Blake systematically addressed each of the plaintiffs’ allegations in the complaint and came to the conclusion the governor did and does have the authority to implement executive orders for the greater good of public health and safety. For his part, Hogan has asserted from the beginning he and his task force team have attempted to tiptoe the fragile balance between curbing the spread of the coronavirus and keeping the state’s economy up and running. In the opinion released on Wednesday, the federal judge appeared to support his methods.
“It is not the role of the judiciary to second-guess policy choices favoring one reasonable method of preventing the spread of a disease over another, which is precisely what the plaintiffs request this court to do,” the opinion reads. “Reasonable people, including informed government and public health officials, may debate whether the governor’s orders at any moment go too far, or not far enough, in protecting the public from this deadly pandemic. Based on the allegations, the court cannot conclude that Governor Hogan’s measures are arbitrary or unreasonable, or that they violate any of the plaintiffs’ constitutional rights.”