Periodically, CDMedia will be inviting attorneys to publish some legal analysis on states' laws or state regulations that if abused, violates individual liberties. In this article, we have invited Jennifer Lester, Esq. for her analysis on Maryland's Quarantine Laws as of today with an historical perspective.
Attorney Lester's Own Words:
On March 5, 2020, five weeks after the World Health Organization (WHO) declared the COVID-19
(SARS-CoV-2) virus a Public Health Emergency of International Concern, Governor Larry Hogan issued an Executive Order declaring a state of emergency in Maryland. 1 With this March 5, 2020 declaration of emergency, Maryland citizens became aware that one person, the Governor, had immense power to dictate and confine their daily activities. During the 15 months that Maryland’s State of Emergency remained in place, the Governor only exercised a fraction of the powers available to him under Maryland’s Emergency Management Act. 2
Some readers may be familiar with the New York State lawsuit regarding their NY state quarantine regulation, rather than the quarantine Maryland legislation. In NY, the judge found in the lower court that regulation was unconstitutional and lacking in due process in July 2022, but that has not stopped the NY governor and attorney general. They are now appealing that lower court decision. That regulation would allow the state to remove someone from their own residence and give the state the authority to place someone in a state quarantine facility. A similar law has been in place in Maryland since 2002. Since July 1, 2021, when Maryland’s unprecedented 15-month state of emergency officially came to an end, laws permitting a Maryland Governor to exercise these emergency powers have been greatly expanded.
HISTORY OF MARYLAND’S EMERGENCY MANAGEMENT ACT
In the 2002 and 2003 legislative session, and with several updates since then, including in
2021 and 2022, the Maryland General Assembly passed legislation patterned after the Model
State Emergency Health Powers Act (“MSEPHA”). 4 In response to the September 11th terrorist attacks 5 and bioterrorist Anthrax attacks through mail sent to Congressional representatives and members of the media, the Administration introduced in the Maryland 2002 legislative session the “Catastrophic Health Emergencies – Powers of the Governor and the Secretary of Health and Mental Hygiene” (SB 234). This Maryland legislation consisted of a package overhauling the Maryland Governor’s emergency powers as recommended by a task force appointed by the Governor, Speaker of the House and President of the Senate. This task force was charged with preparing the Maryland legislative response to the 2001 terrorist attacks. Companion bills were introduced by Maryland's Speaker of the House and the Senate President proposing changes to modernize Maryland’s emergency management laws through an expansion of the Governor’s authority to declare a catastrophic health emergency and streamline the Governor’s authority to “immediately assume emergency powers in the event of a threat or occurrence of any enemy attack, act of terrorism, or public health catastrophe.”6 In addition to expansion of the Governor’s powers, the proposed legislation required “State and county law enforcement officers and health officers” to “execute and enforce orders, rules, and regulations made by the Governor in response to these emergency situations.” 7
In addition to the Governor, the Secretary of Health and Mental Hygiene (now the Maryland Department of Health) was granted a broad expansion of power, whether under a declared catastrophic health emergency or simply in the course of duties to “take actions to prevent conditions that endanger public health.” 8 Violations of any orders issued by the Governor during a State of Emergency could result in a misdemeanor charge with one year imprisonment or a $1,000 fine, and willful violations could be charged as a felony with a three-year imprisonment and/or $10,000 fine. 9 That spring, the proposed legislation passed both houses, and Governor Parris Glendening signed the Catastrophic Health Emergencies bill into law dramatically curtailing individual rights.
YOU ARE A BIOTERRORIST UNTIL WE DECIDE YOU ARE NOT A BIOTERRORIST: THE GOVERNOR’S AUTHORITY TO REQUIRE INDIVIDUALS TO ENTER AND REMAIN IN QUARANTINE FACILITIES.
Contained primarily within the “Public Safety” article of the Maryland Code under Title 14 “Emergency Management,” the “Maryland Emergency Management Agency Act” (“MEMAA”) re-codified and greatly expanded existing statutes contained in various parts of Maryland law which permitted the Governor to utilize the state’s police powers to address emergency situations. MEMAA consolidated these police powers and brought the State’s emergency management functions under the Maryland Emergency Management Agency. Originally established as an agency within the Military Department, in 2021 MEMA became a principal department of the Executive Branch of the State government with the Governor
appointing the Secretary of the Department. 10 The Governor, in his sole discretion has the
authority to declare a State of Emergency if he “finds that an emergency has developed or is impending due to any cause.” 11 The State of Emergency becomes effective immediately on the
issuance of an executive order or proclamation and remains in effect for 30 days unless lifted by
the Governor.12 Prior to the expiration of the initial 30-day period, the Governor can issue a renewal for another 30 days.13 There are no restrictions on the Governor’s ability to renew the State of Emergency for ongoing 30-day periods. From March 2020 through July 2021 the Governor maintained a continuous State of Emergency due to the COVID-19 pandemic. A joint resolution by Maryland’s General Assembly can “terminate” a declared State of Emergency at any time.14 Realistically, in a state dominated by one political party, it is very unlikely that the legislative body will have the political will to unite to challenge the Governor’s declaration.
Once an emergency is declared the Governor has broad power and “may assume direct operational control over all or part of an emergency management function authorized under subtitles 2 and 4 of Title 14 of the Public Safety Article.15 Declaration of a “catastrophic health emergency” confers additional powers on the Governor to curtail civil liberties. A “catastrophic health emergency” includes any “situation in which extensive loss of life or serious disability is threatened imminently because of exposure to a deadly agent.” 16 A “deadly agent” is defined as “(1) anthrax, ebola, plague, smallpox, tularemia, or other bacterial, fungal, rickettsial, or viral agent, biological toxin, or other biological agent capable of causing extensive loss of life or serious disability; (2) mustard gas, nerve gas, or other chemical agent capable of causing extensive loss of life or serious disability; or (3) radiation at levels capable of causing extensive loss of life or serious disability.” 17
Exposure to a deadly agent occurs when there is a “release, distribution, or transmission of a deadly agent in this State” or in another State, or when individuals have been exposed to the deadly agent within in or outside of the State of Maryland.18 Once the public health emergency has been declared, broad authoritarian powers are given to the Governor to authorize the Secretary of Health or “other designated official” to take far-reaching and unrestricted action which violates every individual’s rights to private property and bodily autonomy.
In regards to private property, under a public health emergency the Governor has the
right to “seize immediately anything needed to respond to the medical consequences of the
catastrophic health emergency.” 19 The Governor may further order the Secretary, and any
other designated official, to “control, restrict, or regulate the use, sale, dispensing, distribution, or
transportation of anything needed to respond” to the catastrophic health emergency. 20 Along with
the wide-ranging powers to seize any and all private property, the Governor also has comprehensive and unencumbered authority to impose medical decisions on individuals.
Maryland law permits the Governor, Secretary of Health, or their designated agent, to
require individuals to submit to medical testing, treatment, vaccination, or to “go and remain in
places of isolation or quarantine until the Secretary or other designated official determines that
the individual no longer pose a substantial risk of transmitting the disease or condition to the
public.” 21 No proof that the individual has actually been exposed to “disease or condition” is
required, only that the government official “determines” that a person may pose a “substantial
risk of transmitting the disease.” The determination of whether or not an individual might spread
a disease is left up to the agent appointed by an unelected government official, the Secretary of
Health. Without providing any evidence, this government agent can detain any individual and
force him or her into a government quarantine center, with limited rights to contest the
government official’s actions in court after the quarantine has commenced. The law further
allows agents to order “groups of individuals to go to and remain in places of isolation or
quarantine.” 22 Individuals may challenge the isolation or quarantine order by requesting a
hearing before the Circuit Court.23
Limited due process rights are provided by instructing the court to hold a hearing within three
days of receiving a challenge to a quarantine or isolation order, but the request for a hearing does
not stay the order. Upon a showing of extraordinary circumstances by the Secretary or other
designated government official, the court may extend the time frame for a hearing from the
mandated three-day time frame.24 An order for isolation or quarantine may be upheld if the court
determines that such order is necessary “and reasonable to prevent or reduce the spread of the
disease or outbreak believed to have been caused by the exposure to the deadly agent.” 25 Courts
are given wide discretion to keep a quarantine order in place, and do not require any proof that
an individual, or group of individuals actually poses a threat to public health.26 The quarantine
orders are in effect for an automatic 30-day period and may be re-issued for additional 30-day
time periods so long as the State of Emergency remains in effect.27 While quarantined, a public
health officer may enter your home and “disinfect” your house if it is determined by the public
health officer that your house has been exposed to “the disease.”28 This “disinfection” of your
home can include the destruction of any items of personal property within your home.29
ABUSE OF GOVERNMENT POWER UNDER THE GUISE OF PUBLIC HEALTH
Our federal U.S. Constitution and Bill of Rights, and Maryland State Constitution and
Declaration of Rights guarantee each individual’s protection of inalienable rights, including the
right to due process.30 The right to due process simply means that the state cannot take away
your individual liberties without providing you with a legal basis and the opportunity to challenge that authority in court. Practically, this means that the police cannot show up at your
home and remove you to a state detainment facility without first obtaining a warrant from a
Judge or commissioner based upon evidence presented of probable cause that you have
committed a crime. Under Maryland’s Emergency Management Act, and other provisions related
to control of infectious disease, your due process rights are non-existent. No evidence has been
presented that you have violated any criminal law, yet a government agent can forcibly detain
you without due process because you have been determined, without evidence, to be a threat to
public health. Once a public health emergency is declared, the Governor, through the Secretary
of Health, or their agent (i.e. Department of Health Employee), can require any individual who
refuses to comply with the government’s directives for medical testing, medical treatment, or a
vaccination to be taken to a State quarantine center. 31 In addition, if any individual, or groups of
individuals, are suspected to have been possibly exposed to a virus, fungal infection, or another
agent which is “capable” of causing serious disability or death, the Governor, Secretary of
Health, or their agents, can require you to go into a quarantine center for up to 30 days, which 30-day period can be renewed as long as a State of Emergency remains in place.32 While citizens
have the right to challenge the quarantine order in court, a legal challenge does not stop the
quarantine, and the individual must challenge the order while interned in a quarantine center.33
Since you are under a quarantine order, you do not have the right to appear in person at the court
proceeding, instead, an authorized representative, who can be appointed by the court, may appear
on your behalf.34 Imagine the protests that would occur if our criminal laws were changed to mirror the public health quarantine laws.
When the changes to Maryland’s emergency management laws were introduced in 2002,
several organizations raised concerns about the impact of these proposed laws on an individual’s
constitutional rights. The most notable comments were submitted by the American Civil
Liberties Union (“ACLU”), which ironically was remarkably silent on any abuse of individual
liberties throughout 2020-2021 while Maryland was under an ongoing State of Emergency. In
2002, before the “new normal” took hold, the ACLU still believed in the sanctity of individual
rights and submitted five pages of testimony criticizing the proposed laws as facially
unconstitutional because, in part, of the overly the broad definition of “catastrophic health
emergency.” The ACLU correctly cautioned that “[u]nder the current definition, any threat of
imminent loss of life, no matter how remote the possibility can trigger a declaration of a public
health emergency.”35 This broad definition combined with the unchecked powers granted to the
Governor and Secretary of Health made the ACLU declare that the organization was “extremely
concerned about the broad new powers granted to the Governor and Secretary of Health…..and
the absence of any meaningful safeguards to protect the rights of Marylander who may be
subject to this Act.”36
The ACLU recommended revisions to the law as “restrictions on liberty are considered
the primary response to a health emergency” and “forced treatment, testing, and vaccination
implicate the most fundamental right to bodily integrity.”37 Maryland’s proposed Catastrophic
Health Emergencies legislation, the ACLU pointed out, failed to contain “many protections” of
individual rights that were included “in the model [MSEPHA] act” upon which Maryland’s law
is based.38 Concerns over due process violations were raised by the ACLU with the legislation
granting the right to force individuals into isolation and quarantine and to seize private property
without compensation.39 Restrictions on the rights of individuals to peaceably assemble were
admonished as a violation of fundamental human rights guaranteed by the First Amendment.40
The ACLU’s comments fell on deaf ears and little was changed from the bill as introduced by
the Administration, with the exception of reducing the “willful violation” of the Governor’s
orders from a felony to a misdemeanor.41
CONCLUSION
From March 2020 through July 2021, Maryland residents experienced the application
of these revised emergency management laws. Fortunately, the Governor Hogan did not issue orders
requiring individuals into quarantine facilities, and for the most part life has returned to
“new normal," but Americans are continually reminded that there will be a next pandemic.
As long as Gain-of-Function research continues worldwide in an unregulated and unaccountable vacuum, this legislation should be of a grave public concern. Since the COVID-19 public health emergency, the law has been expanded even further to include specific reference to emergencies related to a broad definition of energy resource problems, 42 cyberattacks,43 environmental degradation related to natural, technological or man-made causes, and social or economic disruption.44 These powers have been granted to the Governor through the state legislature, and it is likely that curtailing these unconstitutional laws will only be successful if we the people demand a change through the electoral and legislative process. That means Maryland citizens need to wake up, get educated, demand transparency of lobbying efforts that push state legislators who refuse to undo this wrong in the next session in Annapolis.
Jennifer Lester, Esq.
The viewpoint expressed in this article is the opinion of the author and based upon references
cited below. The article does not provide legal advice, but legal commentary. If you require legal
advice regarding the legal issues raised in this article, please contact an attorney licensed to
practice law in the State of Maryland. Jennifer Lester holds a Master’s of Community Planning
from the University of Maryland and a Juris Doctorate degree from the University of Baltimore.
Since 2007, she has operated a solo law practice assisting Maryland families and small business.
CITATIONS:
1 See: https://www.who.int/europe/emergencies/situations/covid-19: “The first cases of novel coronavirus (nCoV) were first detected in China in December 2019, with the virus spreading rapidly to other countries across the world. This led WHO to declare a Public Health Emergency of International Concern on 30 January 2020, and to characterize the outbreak as a pandemic on 11 March 2020.” A Public Health Emergency of International Concern (PHEIC) is defined as “an extraordinary event which is determined to constitute a public health risk to other States through the international spread of disease and to potentially require a coordinated response.” Once the WHO declares a PHEIC member states have a legal duty to respond within a short period of time. (See: WHO Guidancefor the Use of Annex 2 of the International Health Regulations (2005).)
2 State of Maryland Proclamation by Lawrence J. Hogan, Jr., Governor, Declaration of State of Emergency and Existence of Catastrophic Health Emergency—COVID-19, March 5, 2020.
3 See The Baltimore Sun, “Maryland to lift most COVID restrictions, including mask requirements, on July 1, as statewide case numbers decline.” Alex Mann and Pamela Wood. June 15, 2021 at 5:15 pm. Maryland’s Emergency Management Act is found at Md. Code Ann. Public Safety, Title XIV.
4 In 2001, the Center for Disease Control awarded Georgetown Public Health Professor Lawrence Gostin a $300,000 grant to rework the CDC’s 1999 public health emergency proposal legislation. On October 23, 2001 Professor Gostin and the Johns Hopkin’s School of Public Health release the initial draft of the Model State Emergency Health Powers Act (“MSEHPA”). According to Wikipedia, the initial draft named the National Governors Association, the National Conference of State Legislatures, the National Association of Attorneys General, the Association of State and Territorial Health Officials, and the National Association of County and City Health Officials as collaborators on the document without being contacted by Prof. Gostin prior to the release of the October 23, 2001 document. On December 21, 2001, a revised draft of the MSEHPA was released with a revised statement indicating that the document was not prepared with the organizations cited as collaborators, but instead for those organizations to assist
with the revision of local emergency management laws. The draft MSEHPA was distributed through these
organization to local politicians. As of 2007, 33 states have adopted some version of the MSEHPA into law. (See: https://en.wikipedia.org/wiki/Model_State_Emergency_Health_Powers_Act#cite_note-MSEHPA2001-5.)
5 See Montgomery County Intergovernmental Relations, HB 303, Position Statement, February 13, 2002.
6 See Department of Legislative Services, Maryland General Assembly, 2002 Session Note, Senate Bill (The
President, et al.) (Administration) “Education, Health, and Environmental Affairs,” Governor’s Emergency Powers, page 1.
7 Id.
8 Id.
9 Id. This language in the proposed legislation was changed to eliminate the felony charge and reduce the possible sentence and fines for both violations and willful violations.
10 See Md. Code, Code Pub. Safety § 14-103. See also Department of Legislative Services, Maryland General Assembly, 2021 Session, SB 658, Fiscal and Policy Note, Third Reader, (Senator Kagan, et al.)“MarylandDepartment of Emergency Management – Establishment and Transfer of Maryland 9-1-1 Board.”
11 Md. Code, Pub. Safety § 14-107 (a)(1).
12 See Md. Code, Pub. Safety § 14-107(a)(1).
13 See Md. Code, Pub. Safety § 14-107(2) through (3).
14 See Md. Code, Pub. Safety § 14-107(4).
15 See Md. Code, Pub. Safety § 14-106(2).
16 See Md. Code, Pub. Safety § 14-3A-01(b).
17 See Md. Code, Pub. Safety § 14-3A-01(c).
18 See Md. Code, Pub. Safety § 14-3A-01(d).
19 See Md. Code, Pub. Safety § 14-3A-03(b)(1).
20 See Md. Code, Pub. Safety § 14-3A-01(b)(2)
21 See Md. Code, Pub. Safety § 14-3A-03(b)(3)(iv).
22 See Md. Code, Pub. Safety § 14-3A-05(a).
23 See Md. Code, Pub. Safety § 14-3A-05(c)(1) to (4).
24 See Md. Code, Pub. Safety § 14-3A-05(c)(4).
25 See Md. Code, Pub. Safety § 14-3A-05(c)(5).
26 Id.
27 See Md. Code, Pub. Safety § 14-3A-05(d)(1) to (3).
28 See Md. Code, Health – General § 18-210(a)(1).
29 See Md. Code, Health – General § 18-210(a)(2).
30 See the Fourth and Fifth Amendments to the United States Constitution. See Maryland Declaration of Rights Article 24.
31 See Md. Code, Pub. Safety § 14-3A-04.
32 See Md. Code, Pub. Safety § 14-3A-05(d)(1) to (2).
33 See Md. Code, Pub. Safety § 14-3A-05(c)(2).
34 See Md. Code, Pub. Safety § 14-3A-05(c)(1) to (4).
35 See Testimony for the Senate Education, Health, and Environmental Affairs Committee, SB 234- Catastrophic Health Emergencies – Powers of the Governor and the Secretary of Health and Mental Hygiene, submitted by the American Civil Liberties Union on February 6, 2002, page 1.
36 Id.
37 Id. page 2.
38 Id. page 1.
39 Id. page 3.
40 Id. page 4.
41 See Md. Code, Pub. Safety § 14-114.
42 See Md. Code, Pub. Safety § 14-304.
43 See Md. Code, Pub. Safety § 14-104.1.
44 See Md. Code, Pub. Safety § 14-101 (c).
