Judge dismisses Democrat lawmakers' challenge to NH Governor's authority to spend COVID-19 relief funds
MANCHESTER, N.H. —
Gov. Chris Sununu (R) was given the go-ahead by a judge Wednesday to oversee and authorize the spending of more than $1 billion in federal COVID-19 relief funds without the approval of a key legislative committee.
Superior Court Judge David Anderson, in a 16-page ruling, found that four top Democratic lawmakers who sued to block Sununu from acting unilaterally, and to force him to seek approval of the Legislative Fiscal Committee, lacked standing to seek an injunction to stop him.
Anderson, a 2013 judicial nominee of then-Gov. Maggie Hassan (D), granted the governor's motion to dismiss the suit.
The case has become a focal point of a weighty separation-of-powers dispute between the executive branch and the legislative branch, as well as a political standoff between the Republican chief executive and the leaders of the Democratic majority in the Legislature.
Sununu on April 7 established a unit in his office to collect information on the economic and social effects of the coronavirus outbreak and to decide on how best to use the huge windfall of federal CARES Act dollars to alleviate wide-ranging problems facing businesses, hospitals and families, as well as local and county governments, as a result of the pandemic.
He also created a legislative advisory board in conjunction with the new Governor's Office of Economic Relief and Recovery with eight top lawmakers, four of whom are the same legislators who sued him. But he made it clear that while he intends to include the legislators in an advisory role, he believes that in an emergency of such proportions, he is empowered by state law to have the final word on how to direct the expenditures without approval of the fiscal committee.
The legislators sued in Hillsborough County Superior Court in Manchester as individual taxpayers and in their capacities as members of the Legislature. After a two-hour hearing Monday, the judge ruled Wednesday afternoon that they failed to prove that they would suffer "irreparable harm" as taxpayers if Sununu authorizes how the money is spent without seeking fiscal committee approval.
The judge found that while the legislators might prevail in a full-fledged trial on the overriding dispute, the bar is higher to win an injunction, and the lawmakers failed to reach it.
Sununu, represented by the attorney general's office, argued that a 2002 state law -- passed in the aftermath of the 9/11 attacks -- cleared him to bypass the lawmakers in the interest of quickly delivering the important funds to the key segments of the state devastated by the fallout of the pandemic.
But attorneys for the legislators cited other laws they said take precedence in the expenditure of state funds and require legislative approval. The judge did not recognize their authority as individual taxpayers or legislators.
"The Court finds plaintiffs’ status as members or leaders of the (Legislature) does not inherently impart them with standing," Anderson wrote. "Rather, they must allege a concrete, personal injury.
"The Court finds that the individual plaintiffs (Democrat lawmakers) lack standing to bring this suit, even if brought in their professional capacities as members of the legislature."
In another pivotal passage, Anderson invoked the special circumstances of a global pandemic.
"The Court concludes that the public interest would not favor the issuance of a preliminary injunction. Although plaintiffs are all members of the legislature, for purposes of taxpayer standing, they are no different than any taxpaying resident of New Hampshire.
"Being mindful of the extraordinary nature of preliminary injunctive relief, even in an ordinary case, the court must be cautious in granting a request from any individual or group of individuals to stop the governor from acting, as it presents a scenario rife with complications that directly impacts the orderly operation of the government.
"To go even further and allow an individual state taxpayer to stop or even delay the governor from distributing purely federal funds intended for the benefit of the public in the midst of a global pandemic would be contrary to the public interest."
Anderson found that the legislators would have been in a stronger position to argue that they should have the authority to approve the spending if the funds were all state funds.
But he noted that the funds at issue are entirely federal funds appropriated by Congress through the recently passed CARES Act, and wrote that the lawmakers have not convincingly explained how the expenditure of those funds by Sununu "will cause any harm, direct or indirect, to any individual who pays state taxes."
Sununu praised the ruling and the legal team that represented him.
“I would like to thank Judge Anderson for issuing this order under immense time constraints,” the governor said in a statement.
“Solicitor General Dan Will and the team at the Department of Justice did a fantastic job arguing this case. In this unprecedented public health emergency, it is paramount that we get relief out to New Hampshire families fast, and that is what I am determined to do.”
The four lawmakers who sued are all Democrats -- Senate President Donna Soucy, House Speaker Steve Shurtleff, Legislative Fiscal Committee chair Rep. Mary Jane Wallner and fiscal committee vice chair Sen. Lou D'Allesandro.
The legislators are now expected to consider whether to allow the ruling to stand without a further challenge, or to appeal to the state Supreme Court. Another possible scenario would have the Legislature as a whole file a new suit, possibly in Merrimack County Superior Court in Concord.
The legislators are mindful of the court of public opinion as well. A new University of New Hampshire Survey Center poll Wednesday showed that 89 percent of Granite Staters, including 86 percent of Democrats, approve of Sununu's handling of the crisis.
Top GOP lawmakers supported the ruling and the governor's unilateral spending authority.
"It is critical for Governor Sununu to be able to react quickly during the current pandemic to make the best decisions for New Hampshire,” said Sen. Jeb Bradley. “It is disappointing that my Democratic colleagues put partisanship above the people of New Hampshire by filing this lawsuit. I hope we can now move past this issue and continue to get the people and businesses of New Hampshire the relief they need.”
Just goes to show that DimocRATS are whiny sniveling scum even at the state level.
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