By NANCY WEST, InDepthNH.org
A judge has continued a hearing on who has the authority to spend $1.25 billion COVID-19 funds during the state of emergency – Gov. Chris Sununu or the Joint Legislative Fiscal Committee – from Friday to Monday over the objection of the four top lawmakers who filed the emergency challenge earlier this week.
In the suit filed Monday, Rep. Mary Jane Wallner, Chair of the Joint Legislative Fiscal Committee, Sen. Lou D’Allesandro, Vice Chair, Senate President Donna Soucy, and House Speaker Stephen Shurtleff, all Democrats, sought to block new spending by the executive branch without Fiscal Committee approval.
They argued that Sununu expending funds without approval from the Fiscal Committee during the remainder of the state of emergency violates the separation of powers doctrine, with a few exceptions.
“Adopting this view would grant a governor unconditional authority to spend taxpayer dollars simply because he or she declared a state of emergency,” the suit alleges.
The Fiscal Committee and Sununu are at odds over Sununu’s new Governor’s Office for Emergency Relief and Recovery (GOFERR) that plans to help him determine how to spend the federal money the state is slated to receive next week through the federal $2.2 trillion CARES Act approved last month.
Sununu claims a 2002 state law passed after the September 11 terrorist attacks gives governors authority to spend and accept federal funds without Fiscal Committee approval, but legislative leaders say the law requires a governor to seek the “advice and consent” of the Fiscal Committee.
The hearing from Hillsborough County Superior Court North will be live streamed by WMUR at 8 a.m. Monday, April 20.
On Thursday, Superior Court Judge David Anderson said he understands the lawmakers’ desire to have the case heard as soon as possible but said a continuance from Friday to Monday won’t prejudice either side.
Sununu asked for the continuance saying the lawsuit was filed in the midst of a global pandemic and more time is needed to decide complex legal arguments.
Solicitor General Daniel Will, on Sununu’s behalf, said state officials have been working around the clock to protect the health and safety of the people of New Hampshire since he declared a state of emergency on March 13.
“The relief the (lawmakers) request threatens to significantly disrupt those efforts. In light of the gravity of the issues involved in this lawsuit, along with the reality that Executive Branch officials necessary to prepare the defense of this case are addressing the urgent needs of the people of New Hampshire, a brief continuance is required,” Will wrote.
“The claims raise complex issues, and, as the governor’s responsive pleadings will illustrate, the injunctive relief requested could have a significant impact on the ongoing efforts in New Hampshire’s fight against the COVID-19 pandemic,” he wrote.
Attorney Paul Twomey represents House members Wallner and Shurtleff, and Senate legal counsel Gregory Silverman represents Soucy and D’Alessandro.
Their objection to the delay argued: “In a stark departure from governors of the past, Governor Sununu claims that this emergency allows him sole discretion to spend taxpayer dollars without first adhering to the emergency appropriation statue’s (RSA 9:13-d) plain requirement that he first obtain the ‘advice and consent’ of the legislative branch’s bipartisan Fiscal Committee.”
A speedy resolution is in the best interest of the people and Sununu has already set out in detail his alleged legal authority to spend public funds without the advice and consent of the Fiscal Committee, the objection states.
The initial pleadings were served immediately after filing the emergency motion on Monday and the dispute began more than two weeks ago after Sununu first informed the Fiscal Committee that their advice and consent to spend public dollars during the state of emergency was “not technically required,” the lawmakers argued.
And after the lawmakers filed in court, Sununu “responded with a seven-page Executive Order claiming in detail his legal justification for spending over $1 billion dollars in taxpayer money without guaranteed transparency from the legislative branch’s Fiscal Committee.
“Postponing the hearing, as (Sununu) desires, would only defer resolution of a critical question necessary to the processing and oversight of $1.25 billion dollars in taxpayer money set to arrive seven days after the scheduled hearing,” the objection states.