October 2020 - Parks & Recreation - 43

the health of Maryland residents. "
In so doing, Hogan had implemented emergency powers granted
to him by the state legislature. Specifically, the coronavirus-related
executive orders all referenced Title 14 of the Maryland Public Safety Article, Section 14-3A-03. This
Section empowered the Governor,
following the declaration of a catastrophic health emergency, to " order
the evacuation, closing or decontamination of any facility " and to " order
individuals to remain indoors or refrain from congregating. "
Accordingly, in response to the
COVID-19 pandemic, on March
5, 2020, Governor Hogan issued
a Proclamation of Catastrophic Health Emergency, which declared a state of emergency in
Maryland. This emergency order
was renewed on March 17, 2020;
April 10, 2020; and May 6, 2020.
This series of executive orders, referred to as " stay at home " orders,
prohibited gatherings of certain
numbers of people and ordered
the closure of certain businesses.
In pertinent part, the most recent
May 6 order prohibited gatherings
of more than 10 people and ordered
the closure of certain non-essential
businesses, but also allowed certain outdoor recreation areas and
non-essential retail establishments
to open. In addition, the order required individuals to wear face coverings in retail establishments and
on public transportation.
Violation of the order is a misdemeanor " subject to imprisonment
not exceeding one year or a fine not
exceeding $5,000 or both. " The order would remain in effect until termination of the state of emergency
or until it was otherwise rescinded,
superseded or amended.

In issuing these emergency orders, Governor Hogan consulted
with and relied on the advice of
acknowledged public health professionals. Based on that advice
and the data related to the rate and
number of infections and hospitalizations, the Governor decided
to make " a number of extremely
difficult choices that affected the
economic health of the state and
imposed restrictions on individual
liberties that, in ordinary times,
are freely enjoyed by all Maryland
residents. "
The plaintiffs in this case were
individuals threatened with arrest
if they violated the executive orders or who otherwise objected to
having to comply, including businesses that had been deemed nonessential, including defendants Antietam Battlefield KOA and Adventure Parks USA, LLC.
One of the plaintiffs, a Maryland
state delegate, Dan Cox, claimed
he was " threatened with criminal
prosecution " for " violating the
prohibition on large gatherings " if
he " attended or spoke at a VehicleRide Rally to Reopen Maryland on
May 2, 2020, " to protest the Governor's executive orders.
Accordingly, the plaintiffs petitioned the federal district court to
" enjoin the Governor's orders because of their impact on those individual liberties " guaranteed by the
First Amendment. As noted by the
federal district court, to overturn
the Governor's orders, the plaintiffs would have to show that these
emergency orders had " no real or
substantial relation to protecting
public health, or that they are beyond all question, a plain, palpable
invasion of rights secured by the
fundamental law. "

Judicial Review Standard
In reviewing these emergency
measures curtailing constitutional
rights during the COVID-19 pandemic, the federal district court applied a judicial standard of review
that would tend to defer to " the legislature's power to decide the best
way to protect public safety. " Accordingly, in reviewing legislative
actions to protect the public health,
the duty of the court would be limited to " adjudge, and thereby give
effect to the Constitution. "

The plaintiﬀs in this case
were individuals threatened
with arrest if they violated
the executive orders or who
otherwise objected to having
to comply.
As a result, in order to secure
a TRO or preliminary injunction, the plaintiffs would have
to demonstrate likely success in
" showing that the Governor's orders have either no 'real or substantial relation' to protecting public health or that they are 'beyond
all question, a plain, palpable invasion of rights' secured by the
fundamental law. "

Public Health Crisis
Response
In the opinion of the federal district court, the emergency order at
issue had a " real or substantial relation to the public health crisis. "
Specifically, the court found the
aim of the emergency order was
to reduce " the opportunities for
the virus to spread " :
The limit on gatherings has a
real and substantial relation to re-

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October 2020 - Parks & Recreation

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