May 30, 2024
Annapolis, US 58 F

OPINION: Shall = May

On January 7th, 2022 the Anne Arundel County Council rejected the extension of Bill 6-22 and Bill 7-22. Due to the high volume of constituents (100+) testifying that day, this council meeting took over six hours to come to its conclusion. •Bill 6-22 Mask Mandates…Rejected •Bill 7-22 Civil Emergency…Rejected 

Less than two hours after this decision was made by the Anne Arundel County Council, the County Health Officer, Dr. Kalyanaraman, led by the direction of County Executive Steuart Pittman, introduced a “Public Safety Order” for face masks. The Maryland Health Code being referenced for this Public Safety Order is Maryland Health Code 18-208. However, Maryland Health Code 3-306(a) specifies that a County Health Officer needs the approval of the Secretary of Health to implement any mandates under any non-enumerated power. The state law contains no delegations to a health officer to create a mandate without the Secretary’s approval. The Maryland State Health Department has declined to respond for clarification on this matter. 

This decision by the County Health Officer sent mass confusion across Anne Arundel County for businesses and residents alike. More importantly, this decision calls into question the integrity and legal authority of the individuals who made it. Since 2020, every County/State Executive Order that’s been issued in regards to masks mandates have all used the word “REQUIRED” as the legal language when referencing mask requirements. The Public Safety Order issued by the County Health Officer and County Executive Pittman’s most recent 1 Week Mask Mandate both use the word “SHALL” as the legal language when referencing mask requirements. In the 1995 Supreme Court case, Gutierrez De Martinez vs Lamagno 515 U.S. 417, the court ruled on the legal use of the word “shall”. According to the Federal Aviation Administration’s website and legal reference books such as the Federal Rules of Civil Procedure no longer use the word “shall”. The Supreme Court ruled that when the word “shall” appears in statutes, it means “may”. SHALL = MAY 

Lastly, I wanted to make it abundantly clear that this lawsuit is purely about the legality of the Public Safety Order. The lawsuit filed against the Anne Arundel County Health Department, County Executive Steuart Pittman, and the County Health Officer Dr. Kalyamaraman is a two-step process. It was fully anticipated that the judge would not rule in favor of the TRO (temporary restraining order) on January 19th. However, many legal experts believe that the trial on January 25th will clearly show that the unilateral, unlawful, and undemocratic decision made by County officials will be cause for a court injunction. 

As a U.S. Marine veteran, and like so many others before me, we damn sure didn’t sacrifice all that we did just to come home and watch individuals toss it aside like it doesn’t matter. The famous Marine General Alexander Vandergrift was once quoted saying “the bended knee is not a tradition of our Corps”. That’s why I started an online petition to see how other Anne Arundel County constituents felt in regards to the Public Safety Order. In the short amount of time that the petition has been live, more than 1,400 constituents have signed to show their support. ( https://www.change.org/SHALLmeansMAY ) 

–James Zimmerer

NOTE: Zimmerer is an owner of Foundation Fitness and one of the plaintiffs who filed a lawsuit to prevent the Anne Arundel County Health Officer from enacting his mandate to wear masks in public indoor spaces. 

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