GREENBELT, Md., Aug. 5, 2020 -- The United States District Court for the District of Maryland has scheduled a preliminary injunction hearing next week on Friday, August 14, 2020 at 10 a.m. At the hearing, the Court will consider plaintiffs', represented by Joseph Greenwald & Laake, request to enjoin the Montgomery County Health Officer's order prohibiting classroom instruction at religious and private schools in Montgomery County.
The hearing will be held before Federal Judge George J. Hazel. An announcement will be made later concerning the logistics of the hearing to ensure safe public access. The hearing has become necessary because the Montgomery County Health Officer has so far failed to comply with Governor Hogan's revised emergency order, which removes any potential legal authority for the Health Officer's blanket closure order.
The Health Officer's order is the only one of its kind in Maryland – or the country – which targets religious and private school classroom instruction for closure. The Health Officer issued this order while allowing restaurants, bars, day care facilities, colleges to remain open. There have been no Covid-19 reported cases in Montgomery County religious and private schools.
The Health Officer has continued to assert that he has authority independent of the Governor to issue a blanket order shutting down classroom instruction in all religious and private schools. The Health Officer now has State-retained private counsel who has asserted that the Health Officer has independent authority for his order.1 At a press briefing today at 12:30 p.m. with the County Executive, the Health Officer stated that "as it stands today, the order has not been rescinded."
The Health Officer issued an order on Friday, July 31 at 7:58 p.m. prohibiting all religious and private schools in Montgomery County from conducting in-person classroom instruction until October 1, 2020. The order was effective Monday morning, August 3, 2020 at 6:00 a.m. The order included criminal penalties for violation of the order, including fines and incarceration. The Health Officer had made no meaningful review of private schools' detailed safe reopening plans before issuing his order.
In issuing his order, the Health Officer premised his authority on Governor Hogan's emergency executive order that had been issued on Wednesday, July 29, 2020, which gave political subdivisions the authority to issue more stringent restrictions "requiring any businesses, organizations, establishments, or facilities to close and/or modify their operations" than the State requirements.
Since the pandemic began, Governor Hogan's emergency executive orders have not applied to schools. Instead, school reopenings have been subject to detailed guidelines issued by the State Superintendent of Schools, Karen B. Salmon. In the Maryland School Reopening Plan, she advised religious and private schools that they should make their own determinations as to how and when to reopen, consistent with CDC and State guidelines.
On Monday, August 3, 2020, Governor Hogan issued a revised emergency executive order in response to the Health Officer's order. The revised order exempted schools from the new authority given to political subdivisions in his Wednesday order. Governor Hogan made it clear that the Health Officer's order was "inconsistent with the power intended to be delegated" to the County:
Private and parochial schools deserve the same opportunity and flexibility to make reopening decisions based on public health guidelines. The blanket closure mandate imposed by Montgomery County was overly broad and inconsistent with the powers intended to be delegated to the Health officer.
When he learned about the Governor's Monday order at a press conference, the Health Officer was publicly dismissive. He stated that, "It doesn't matter if we see the tweet. It doesn't matter if we see the statement." Despite Governor Hogan's clear and unequivocal statement and order, the Health Officer has refused to rescind his unlawful order.
On Friday, the Health Officer expressly premised his emergency order on the Governor's July 29 executive order. The Health Officer is a State employee. He is jointly appointed by the State. He is paid by the State. He is required by State law to carry out State health policy. Since the Governor clarified his executive order on Monday, the Health Officer has been openly insubordinate. He has defied clearly articulated State health policy.
Governor Hogan has made it explicitly clear that State policy does not permit blanket closures of religious and private schools and that each school can make its own reopening decisions "as long as schools develop safe and detailed plans that follow CDC and state guidelines." The Maryland State Department of Education's "Recovery Plan for Maryland Education" makes it clear that each private school has the right to make its own reopening decisions consistent with CDC and State Department of Education guidelines.
The Health Officer's continued refusal to comply with the law and the Governor's order is creating continued chaos and confusion for thousands of Montgomery County families and the schools they have chosen. As schools are ready to reopen, the Health Officer's continued failure to rescind his illegal order exacerbates the confusion he created Friday night. This uncertainty has been created because the Governor has issued a clear directive but the Health Officer has refused to comply.
The Health Officer must act immediately to unequivocally and irrevocably rescind his unlawful order. The failure of the Health Officer, a State employee, to follow clearly established State policy and the explicit directive of the Governor, constitutes insubordination. He should not continue in office if he cannot comply with the Governor's clear directive and the State's established health policy.
The rule of law is important. If the Health Officer cannot follow the law and the clear directive of the Governor, plaintiffs will seek an order from the Federal court enforcing the law.
Statement of Counsel for Plaintiffs
Beahn, et al. v. Gayles, et al.
1 Because the County Health Officer is a State employee, actions against a county health pfficer are usually defended by the Office of the Maryland Attorney General. In this case, the Maryland Attorney General has determined that private counsel to represent the Health Officer.
Timothy F. Maloney
Attorney at Law
Office in Greenbelt, MD
Direct Dial: (240) 553-1107 Direct Fax: (240) 553-1737