Judge ignored state law on dining ban
The temporary restraining order issued by Anne Arundel Circuit Judge William Mulford blocking the county emergency ban on indoor dining is not only legally unjustified — it is dangerous.
Mulford had no business second-guessing the decision by County Executive Steuart Pittman that the scientific evidence compelled the county to prohibit the indoor service of food and beverages at restaurants and bars to bring the skyrocketing rate of coronavirus infection under control before hospitals are overwhelmed and more people die.
Mulford’s action is a metaphor for how the pandemic has been mismanaged from the beginning: The pattern has been to push important decisions down to the lowest level of government and then make it as hard as possible for the leaders of those governments to protect the lives and health of citizens. Little wonder so many people have died.
The executive order issued by Gov. Larry Hogan authorizes local jurisdictions to adopt more stringent regulations on restaurants and bars and other retail establishments than required by the state if local leaders decide that doing so is “necessary and reasonable to save lives or prevent exposure to COVID-19.” Under the separation of executive and judicial powers in Maryland, Pittman’s order can be set aside by a judge only if the judge finds that Pitman acted “arbitrarily or capriciously.”
The Maryland Court of Appeals has explained that an executive decision is arbitrary and capricious if not supported by “competent, material, and substantial evidence.” The court has cautioned that a court’s review for substantial evidence is not a “judicial fact-finding mission.”
Pittman based his order on recommendations by his Health Officer, Dr. Nilesh Kalyanaraman. Kalyanaraman relied on guidance from Johns Hopkins University and the CDC and his own analysis of county conditions.
The restaurants’ main argument is that the county applied restrictions inconsistently, closing indoor service at restaurants and bars but allowing facilities such as gyms, bowling alleys, and the Live! Casino to remain open. The argument ignores the critical distinction that people can wear their masks at all times while working out, bowling, or gambling; they cannot do so while eating or drinking.
Precise distinctions between types of businesses based on their relative risks of spreading COVID-19 are not possible, nor are they required by law; it also is worth noting that restaurants and bars do not enjoy any heightened protection under the Constitution.
Mulford issued a temporary restraining or in advance of a full evidentiary hearing on the request for an injunction after concluding that the plaintiffs have “a sufficient and reasonably likelihood of success” of proving at that hearing that the order was arbitrary and capricious. I find that conclusion baffling.
Mulford cannot be faulted for his concern for the owners and employees of restaurants and bars. They, like many others, have been abandoned by the federal government, which has not seen fit to provide emergency relief blunting the economic hardship caused by the pandemic.
Hogan has been similarly unhelpful. The least that he can do if he is going to delegate the toughest decisions to city and county officials is refrain from criticizing them for those decisions.
Pittman has been whipsawed by a feckless federal response to the pandemic, a governor anxious to allow the blame for alleged overregulation to flow downhill, and an improvident judicial decision. The cumulative effect is likely to be more suffering and death in Anne Arundel County.