In the Binford decision, an NH Superior Court Judge accepted that if a Governor of NH declared a State of Emergency (for any reason), nothing in heaven or on earth could stop their exercise of power, including the State Constitution.
That judge should have been impeached immediately by the legislature – they have that power. Still, Republican majorities are not as bold as their Democrat counterparts when it comes to delivering messages, so we need HB440 instead.
Originally designed to claw back religious liberty, it has become a general provision to prevent courts from allowing elected officials trampling on that constitution thing by placing a specific restriction in state statute.
HB 440, the “Civil Liberties Defense Act,” prohibits the suspension of civil liberties during a state of emergency.
Here is some context directly from the bill, emphasis mine (some citations removed).
III. On Tuesday, March 17, 2020, Binford, et. al. v. Sununu became the first legal challenge
to these emergency orders. The lawsuit claimed that aspects of the orders violated the plaintiffs’
IV. In response to this lawsuit, the state, rather than arguing simply that the orders in
question were constitutional, disturbingly asked the New Hampshire superior court to hold that civil
liberties are suspended due to the state of emergency.
V. The superior court agreed with the state and concluded that civil liberties in New
Hampshire are suspended during the Covid-19 emergency. Id. at 11 (affirming that “[i]n an
emergency situation, fundamental rights such as the right of travel and free speech may be…
suspended”) (quoting Smith v. Avino, 91 F. 3d 105, 109 (11th Cir. 1996); id. at 16 (“the Court finds
that the Governor may suspend… constitutional rights during a state of emergency…”). Although
the superior court then proceeded to find that the governor’s orders were constitutional, it noted that
it was doing so only “for the purpose of establishing a complete record.” Id.
If a constitution cannot function in its sole capacity to restrain abuses of state power during an emergency, then there is no reason to believe people drawn to power (and most likely to abuse it) won’t come up with emergencies to violate our natural rights.
The past year is a fine example of why we need this. Governors deciding what businesses can be open and what sorts of assembly is acceptable (essential or not) undermine the foundation of our republic.
This legislations prime sponsor, Rep. Jim Kofalt, spoke with State Senator Kevin Avard about both the problem and the solution. We’ve shared that here for those seeking more detail and sent along a call to action:
CALL TO ACTION
The Senate hearing for HB440 will be taking place on TUESDAY AFTERNOON at 2 PM. Here’s the link to information about the hearing. If you would like to sign in or testify in support of HB440, visit the following page and click on “Remote Sign-In” AND/OR email members of the Senate Judiciary Committee and politely urge them to support a recommendation of “Ought to Pass” on HB440.
Here’s Rep Kofalt’s conversation with Sen. Avard on HB440.
Disclosure: Jim Kofalt is both an Author at GraniteGrok.com and serves with me on the Board of Directors of the 603 Alliance as its managing director.