Breaking – NH Senate Passes Bill to Protect Civil Liberties during a State of Emergency [Update]

HB440 is an effort to reign in irresponsible abuses of Executive power during a State of Emergency. The House version got gutted in the NH Senate, and a campaign to fix that damage has been underway leading up to today. We have good news.

The definitions section (If I recall) had been gutted from the House version making the rest of it useless. But an amendment was offered to repair that damage. The amendment passed, followed by HB440, by a party-line vote of 14-10.

Here’s the Senate Amendment to repair the damage done by the Senate.

 

2021-2311s Amend the bill by replacing all after the enacting clause with the following:

1 Definitions. In this act:

I. “Civil liberties” encompass any guarantee or protection against state action by a governmental entity or agent enumerated in the New Hampshire Constitution or the United States Constitution.

II. “Suspension” refers to a time period or condition in which courts of law do not or are not required to subject government action to standard tiers of judicial review.

2 Civil Liberties Protected. No power delegated or otherwise granted by any statute or act of this general court to the Governor or any of the Governor’s subordinates, whether before or after the date of this act, shall be construed to suspend or permit the suspension of civil liberties by the Governor or other executive branch official.

3 New Paragraph; State of Emergency; Powers of the Governor. Amend RSA 4:45 by inserting after paragraph III the following new paragraph:

IV. Notwithstanding the foregoing enumerated powers, civil liberties shall on no account be suspended, nor shall the United States Constitution or the New Hampshire Constitution be suspended.

4 Emergency Management Powers. Amend RSA 4:47, III to read as follows:

III. The power to make, amend, suspend and rescind necessary orders, rules and regulations to carry out the provisions of this subdivision in the event of a disaster beyond local control; provided that civil liberties shall on no account be suspended, nor shall the United States Constitution or the New Hampshire Constitution be suspended.

5 Effective Date. This act shall take effect upon its passage.

 

Docket details are here, as is the amended House version. HB440 is “AN ACT prohibiting the suspension of civil liberties during a state of emergency.” It became necessary after a judge effectively stated that the Governor had the right to ignore the constitution.

Her is that portion of HB440.

 

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’ civil liberties.

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. See Binford, et. al. v. Sununu, Merrimack Cty. Super. Ct., 217-2020-CV-00152 at 10 (March 25, 2020) (Kissinger, J.) (“…the State contends [that] during a state of emergency, executives are granted broad latitude to suspend civil liberties”).

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.

VI.  In subsequent emergency orders, the Governor has cited the superior court’s opinion letter in Binford as a legal authority. See e.g. Emergency Order No. 74 at 1 (November 19, 2020) (citing Binford, et. al. v. Sununu, Merrimack Cty. Super. Ct., 217-2020-CV-00152).  

You can see why we needed this. I am not aware of the Governor’s thoughts but I expect he will sign it. This is a special bill and it should get some national attention. It seems unlikely the Sununu-homers in the State Senate (of which there are several) would send him a bill like this if he intended a veto.

Congrats to everyone who worked to get the damage in the Senate undone and the bill passed.

I have reached out to the bill’s primary sponsor, Jim Kofalt, for comment. I will add that if and when I have one.

[Update] – Rep Kofalt called me back to comment.

“I’m very happy that House Bill 440 has made it past this milestone and would like to thank everyone who called and emailed their senators. You really came through.

“I’d also like to thank the Republican Senators who listened and made sure HB440 passed in a substantive form that would protect the rights of Granite Staters.”

 

Author

  • Steve MacDonald

    Steve is a long-time New Hampshire resident, award-winning blogger, and a member of the Board of Directors of The 603 Alliance. He is the owner of Grok Media LLC and the Managing Editor, Executive Editor, assistant editor, Editor, content curator, complaint department, Op-ed editor, gatekeeper (most likely to miss typos because he has no editor), and contributor at GraniteGrok.com. Steve is also a former board member of the Republican Liberty Caucus of New Hampshire, The Republican Volunteer Coalition, has worked for or with many state and local campaigns and grassroots groups, and is a past contributor to the Franklin Center for Public Policy.

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