Category Archives: Law

Dan Cox as “Constitutional Attorney”

On January 6th, 2021, Maryland Del. (and now gubernatorial candidate) Dan Cox infamously tweeted “Pence is a traitor.” Brian Griffiths has a few things to say about that in a new Duckpin post this morning, but I wanted to add a further thought of my own.

Dan Cox styles himself a “Constitutional Attorney.” The problem here is not that there’s anything wrong with being a constitutional attorney — quite the contrary! — but that, on the available public evidence, Cox simply isn’t a very good one. His apparent notions of how the U. S. Constitution sets forth the presidential succession process proved embarrassingly wrong, which is why not a single federal judge or state legislative chamber was willing to go along with his side in January 2021, any more than Mike Pence was. His notions of how state and local public health powers fit in with constitutional law, again, are at variance with those of Justices Alito, Thomas and Gorsuch, not just those of the U.S. Court of Appeals for the Fourth Circuit.

If nominated, Cox would continue to run around Maryland making untenable claims about constitutional law, but now as his party’s official standard-bearer. And he would drag the Maryland Republican Party down to ignominious defeat in November.

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Del. Dan Cox responds to my Maryland Reporter piece

Del. Daniel Cox reacts to my recent opinion piece with his usual degree of temperateness and accuracy:

“When you’re wrong on both the law and the facts, pound the table.”

On accuracy, for example, he baldly asserts that his constitutional claims failed “based on one point: mootness.” But as I noted in my piece, the Fourth Circuit explicitly carved out only his religion claims to dismiss as moot, while separately upholding as correct the district judge’s dismissal of all the rest of his claims on grounds unrelated to mootness. Does he even read the decisions he loses? (More here and here.)

As for Cox’s vicious invective against me personally, it hardly deserves to be dignified with a response. Seriously, who can read this sort of thing without concluding that this man is utterly unfit for public office?

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Cox’s Hogan suit bombs out at Fourth Circuit

I’ve written a new piece at Maryland Reporter on last month’s ruling by a federal appeals court confirming the demise of Del. Dan Cox’s suit against Larry Hogan claiming that the governor’s emergency COVID-19 orders had violated the law and the constitution. A few excerpts:

“Then there were the signs of hasty lawsuit drafting… One subhead in the original filing cited ‘Irreparable Injury To Plaintiffs From Governor Northam’s Gathering Orders,’ comically echoing a suit filed earlier in a different state – Virginia — against Gov. Ralph Northam.”…

“The suit was decked out with rhetorical flights and what you might call ambitious theories of constitutional law, such as that [Gov. Hogan’s pandemic] orders had had the effect of depriving Marylanders of a republican form of government. As the appeals court noted last month, Cox’s subsequent briefing did not go on to argue the merits of many of these theories, leaving Judge Blake free to dismiss them without discussion….

“Del. Cox will undoubtedly continue to work the campaign trail making strongly worded claims about the U.S. and Maryland constitutions as he understands them. Just remember that the actual federal courts keep making it clear that his ideas about the Constitution are not theirs.”

I covered the initial dismissal of Cox’s suit two years ago for the Frederick News-Post.

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Marilyn Mosby files FCC complaint against broadcast criticism

Marilyn Mosby, State’s Attorney for Baltimore City, doesn’t like the many critical and investigative stories that WBFF Baltimore has run about her and just sent an astonishing letter to the Federal Communications Commission demanding that its “coverage [be] curtailed and ceased.”  Mosby’s letter really must be seen to be believed: it openly seeks to intimidate and chill speech protected by the First Amendment.

Notes UCLA lawprof and leading free speech law expert Eugene Volokh writes: “I note that none of the letter’s claims of ‘distortion’ are supported by any actual explanation of why the stories are supposedly inconsistent with the facts.” After examining and dismissing as unactionable other charges raised in the Mosby letter, including invasion of her privacy, he adds: “certainly critical news coverage, whether of prosecutors, police officers, or anyone else, can’t be suppressed on the grounds that some tiny fraction of the audience may be so angered by it that they will commit crimes against the people being criticized. I expect the FCC to (rightly) dismiss the complaint.”

It seems to me that Mosby’s letter should be met by a united front of condemnation among free speech advocates, media people (in Maryland especially), and those who track D.A. misconduct. Prosecutors must not be allowed to chill and suppress critical journalism about their doings.

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Ideological commitments and academic freedom at UMD

The University of Maryland’s public policy school “is apparently about to require faculty members to add a statement to their syllabus” avowing a series of deeply ideological commitments on topics ranging from “anti-racism” to Indian land acknowledgments. It will also impose rules about how classroom discussions and materials must treat topics related to diversity. Both policies are inconsistent with principles of academic freedom, notes Eugene Volokh.

As a public institution, UMD comes under First Amendment constraints that a private educational institution would not face, and it is likely that some of the new rules overstep those First Amendment prohibitions as well. You can read more about the proposals here.

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Repeal LEOBR, the police-unaccountability law

I’m in this weekend’s Frederick News-Post with an opinion piece urging the General Assembly to repeal a law that has been central to obstructing police accountability in Maryland, the 1974 Law Enforcement Officers’ Bill of Rights (LEOBR).

Since Maryland adopted its first-in-the-nation law in 1974, it has spread to 15 other states, causing problems along the way. Among states with their own versions of the law are Minnesota, where a video recorded George Floyd’s asphyxiation while in police custody, and Kentucky, where officers’ fatal shooting of Breonna Taylor in her Louisville apartment has sparked widespread outrage….

Don’t let the focus slip this time. LEOBR is designed to result in impunity, and it should go.

An annotated copy of the law as revised in 2015 is here (see also here). The U.S. Department of Justice investigatory report on the Baltimore City Police Department includes discussion of some problems caused by the law. In 2015, before the modest legislative revisions, the ACLU commissioned a report on the law (and the Baltimore police union contract, with which it interacts) from Samuel Walker of the University of Nebraska at Omaha.

Note that police unions in places like Baltimore have negotiated contract provisions that institute some of the same barriers to discipline, or go even further, to the public’s detriment. Because of these provisions, repealing LEOBR would fix only part of the problem. For example, one contract says the city cannot even begin disciplinary hearings while criminal proceedings are pending against an officer. Other contract provisions have provided for disciplinary proceedings to be kept secret from the public, promote expungement of public complaints, or forbid job consequences when an officer is placed on the “do-not-call” list of those whose testimony would be highly vulnerable to impeachment by defense lawyers — although the ability to testify credibly should be one of the prerequisites of a police job. Legislation could help here by restricting bargaining to economic issues, such as wages, rather than discipline and investigation.

The New York Times, together with many other publications, has covered the contentions of Del. Gabriel Acevero (D-Montgomery Village, Germantown) that he was fired by his employer, the MC-GEO union that represents many Montgomery County employees, because he refused to back down from his work on legislation to advance police accountability. More background on the shifting politics in Annapolis from Maryland Matters (citing Sen. William C. Smith, Jr.). More coverage from January on death of handcuffed William Green in Prince George’s police custody (“They deserve justice just like citizens do. They should give prompt statements just like citizens do. They should not be given time to cover up their crimes, which the police officer’s bill of rights was designed to let them do,” says family’s attorney); Washington Post letter to the editor last October on Silver Spring case.

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In the FNP: “Why the ‘Reopen Maryland’ lawsuit failed”

A federal judge on Wednesday rejected the lawsuit filed by Del. Dan Cox challenging Gov. Larry Hogan’s public health orders seeking to limit the COVID-19 outbreak. I’m in today’s Frederick News-Post with an opinion piece on that. Excerpts:

In some other states, challengers have won rulings striking down at least some portions of state stay-home orders. But this suit’s claims failed all down the line, and here’s why….

In what you might call a long-shot move, Cox’s suit [sought] to minimize the seriousness of what it called the “alleged on-going catastrophic health pandemic” — which has killed more than 2,000 Marylanders so far — and drew sharp rebuke from the judge, who wrote: “even if these assertions were true, the plaintiffs ignore the likelihood that the restrictions that were put in place reduced the number of deaths and serious disability the State has experienced.”

In his statements outside the court, Del. Cox has told a radio audience that “ninety-nine percent of the population is not in danger with this virus,’ and has said on Twitter that ‘Studies show up to 70-86% of the public already have or had coronavirus.” Many medical authorities would sharply disagree with both contentions….

An unusual aspect of the suit was Del. Cox’s claim to have been personally threatened by an aide to Gov. Hogan. Shortly before filing the lawsuit Cox repeatedly asked the aide if he, Cox, could be arrested for speaking at a Reopen rally, and the aide answered that the delegate should read the text of the relevant order if he wanted to know what it said. Cox characterized this exchange as a threat. (No one was arrested for speaking at the rally.)

Judge Blake ruled that the restriction on large gatherings is what the law calls a ‘time, place, and manner’ restriction not based on the content of speech, noted that “there is no evidence that the order is being applied selectively to discourage speech that the Governor disagrees with,’ and summed things up: ‘the Governor has not silenced Cox or any other legislator.”…

The text of this lawsuit was full of rhetorical flights and digressions into points not germane to law. It appeared to be written with some audience in mind other than federal judges.

That’s one reason, when Cox takes the case to the Fourth Circuit federal appeals court — as he has vowed to do — he will find his work cut out for him.

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Dels. Cox, Parrott, Miller sue Hogan over pandemic measures

Yesterday Delegate Dan Cox (R-4th), together with Dels. Neil Parrott and Warren Miller and plaintiffs that included business owners and clerics, filed a lawsuit challenging Maryland Gov. Larry Hogan’s actions in response to the “alleged on-going Catastrophic Health pandemic” — nice touch, that “alleged.”

Del. Cox might want to be more careful with the cut-paste button next time, to judge by this excerpt from p. 82 of his complaint.

excerpt of lawsuit against Maryland governor mistakenly using name of Virginia governor

The new complaint is here (more papers); I’ll have more to say about it later. Earlier, I posted in this space about some of my disagreements with Del. Cox’s interpretations of Maryland statutes and of the U.S. Constitution. Yesterday, and not specific to Maryland, I published this article on why most of the public health orders issued against COVID-19 are constitutional — in the view of today’s judges, judges of the pre-New Deal era, and framers of law at the time of the adoption of the U.S. Constitution.

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At-home COVID-19 test available in 46 states, but not Maryland. Why?

Following FDA approval, LabCorp has now introduced an at-home test for the COVID-19 virus. It will initially be made available to health care workers and first responders in 46, but not all 50 states — the missing states being New York, New Jersey, Rhode Island, and Maryland. The reason, according to an Associated Press report, is that several states have laws on the books that restrict testing with at-home collection kits. I examine the frustrating situation in a new Cato post.

After I published the piece, I was contacted by Paul Celli, public health administrator for clinical and forensic laboratories at the Maryland Department of Health Office of Health Care Quality, who wrote to say the AP article is incorrect in listing Maryland as a state that bans at-home testing. Whatever may be the situation in the other three states, “Maryland is not banning this Pixel at‐​home collection device (it is not a test) for use at select Labcorp testing locations.” A Maryland legislative source points out that last year, state lawmakers approved and Gov. Hogan signed SB 495, a measure aimed at liberalizing access to medical testing by removing some of the restrictions in effect earlier. Mr. Celli writes that even before that change, rather than bar use of this particular test the state “probably would have exercised enforcement discretion in such cases where the company appears to be providing services pursuant to a physician or other authorized provider order for the test.”

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Delegate Dan Cox is wrong on Gov. Hogan’s coronavirus orders

Delegate Dan Cox (R-Emmitsburg), one of the three delegates representing my own District 4, wrote a letter on Thursday to Gov. Larry Hogan demanding that Hogan stand down from some of the measures he has ordered “allegedly because of an ongoing health catastrophe with coronavirus.” (The “allegedly” gave me pause — is Del. Cox suggesting that the ongoing health catastrophe might not be real, or that Gov. Hogan is somehow using a real catastrophe as a pretext?)

In his letter, Del. Cox suggests that Title 14 of the Maryland Public Safety Code does not confer an emergency power of isolation or control over “healthy persons,” although the wording of § 14-3A-03 contains two passages that would appear to do exactly that. One of them (§ 14-3A-03 (d)(2)) is: “If necessary and reasonable to save lives or prevent exposure to a deadly agent, the Governor may order individuals to remain indoors or refrain from congregating.” A second provision (§ 14-3A-03 (b)(3)(iv)) empowers the governor to require individuals to go into isolation until a designated official determines that they do not “pose a substantial risk of transmitting the disease or condition to the public,” a wording that does not apply only to persons themselves sick.

The letter also suggests that the governor’s emergency powers do not extend to businesses not involved in health care, although a section of the Title on emergency health measures addressed to the public (§14-3A-03 (d)(1)) provides that he “may order the evacuation, closing, or decontamination of any facility.”

Del. Cox further asserts that Gov. Hogan has “unilaterally suspend[ed] the Bill of Rights,” a remarkable and disputable claim.

Del. Cox’s letter invokes the U.S. Constitution. I myself have written and spoken a fair bit about how the U.S. Constitution applies in outbreaks of contagious epidemic (the Framers were very familiar with such outbreaks and with the measures taken in response.) I strongly disagree with Del. Cox’s repeated suggestion that the measures are likely violations of the constitution.

Today, Del. Cox was on social media promoting the Annapolis demonstrations demanding relaxation of social distancing in the state, among whose targets is Gov. Larry Hogan.

I am a registered voter and constituent in District 4, and I can state that in doing all of this Del. Dan Cox does not represent my views.

Update: Steve Bohnel of the Frederick News-Post now covers the story in a front-page article and the paper also has published an editorial, both kind enough to quote me.

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