Judge Dismisses Suit Challenging Sununu’s Power To Spend COVID-19 Funds

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Screen shot of WMUR's video of the proceeding

Superior Court Judge David Anderson presided last month in the lawsuit Democratic legislative leaders filed against Gov. Chris Sununu over spending of federal COVID-19 funds. It was held remotely with court officials present at Hillsborough County Superior Court North in Manchester.


CONCORD — Saying the four Democratic legislative leaders lack standing to seek an injunction to block Gov. Chris Sununu from spending $1.25 billion in federal COVID-19 money, a Hillsborough County Superior Court judge dismissed their lawsuit.

Sununu asked the court to dismiss the suit filed last week and Judge David Anderson agreed with the governor’s attorney’s argument that a 2014 state Supreme Court decision requires actual, not hypothetical harm to exist before the four lawmakers could proceed with the suit.

“Although the Court recognizes the gravity of plaintiffs’ allegations and the need for them to be addressed swiftly, it cannot abdicate its responsibility to ensure that it has jurisdiction over the subject matter of proceedings before it,” Anderson concluded in his order Wednesday.

“‘In light of the overriding and time-honored concern about keeping the Judiciary’s power within its proper constitutional sphere, [the Court] must put aside the natural urge to proceed directly to the merits of an important dispute and to ‘settle’ it for the sake of convenience and efficiency.’ Duncan, 166 N.H. at 648. Therefore, in light of the foregoing, plaintiffs lack standing to pursue the present action. In the alternative, even assuming plaintiffs had taxpayer standing, they are not entitled to preliminary injunctive relief.”

The lawmakers claim under the constitution and state law that Sununu needs legislative approval through the Joint Legislative Fiscal Committee to spend unappropriated federal or state money to combat the spread of the coronavirus and to provide relief to businesses, organizations, people and governments impacted by the COVID-19 epidemic.

Sununu claims a 2002 law passed after the September 11 terrorist attacks gives governors expansive authority during emergencies including the flexibility to spend money where he or she sees fit to protect the public health and safety.

After the ruling Sununu thanked Anderson for his quick decision.

“In this unprecedented public health emergency, it is paramount that we get relief out to New Hampshire families fast,” Sununu said in a statement, “and that is what I am determined to do.”

But legislative leaders expressed frustration saying they disagree with the ruling noting the legislative branch constitutionally holds the “power of the purse.”

“This lawsuit is ultimately about a dispute between two equal branches of government and it is appropriate for the third co-equal branch of government to settle this disagreement in a timely manner so critical relief to Granite Staters is not delayed,” said Senate President Donna Soucy, House Speaker Stephen Shurtleff, Senate Finance Committee Chair Lou D’Allesandro, and House Finance Committee Chair Mary Jane Wallner in a joint statement. “Knowing that time is of the essence it is discouraging that instead of arguing this case on the merits, Gov. Sununu continues to put up technical roadblocks on this issue and continues to allow a cloud of constitutional uncertainty to persist over how more than a billion dollars in federal aid is properly provided to our communities.” 

The four plaintiffs are reviewing the decision and will explore all their options, their spokesperson said.

The state is receiving more than $1.25 billion in CARES Act funds to help offset costs associated with the pandemic, and Sununu has established the Governor’s Office for Emergency Relief and Recovery to determine how the funds will be distributed.

In a hearing Monday before Hillsborough County Superior Court North, state Solicitor General Dan Will argued the lawmakers did not have standing, saying they had other remedies to address their concerns.

“The Court finds plaintiffs’ status as members or leaders of the General Court does not inherently impart them with standing,” Anderson writes in his decision. “Rather, they must allege a concrete, personal injury.”

Anderson cited both state and federal court decisions with similar circumstances.

“…plaintiffs here do not allege an injury to themselves individually, either as private citizens or as members of the New Hampshire legislature,” Anderson writes. “Instead, they allege an injury to the institution of which they are members, namely, the usurpation of the joint legislative fiscal committee’s authority to approve the governor’s spending, and by extension the legislature’s power of the purse.”
He ruled that is an institutional injury and noted the four lawmakers lack the approval of their respective bodies to pursue a legal action on their behalf.

The legislature passed a law after the state Supreme Court’s 2014 ruling, to give taxpayers their traditional right to sue over the potentially unlawful spending, but that law only applies to state funds, Anderson notes.

“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,” Anderson writes, “would be contrary to the public interest.”

A legislative advisory committee to the GOFERR including the four plaintiffs is hearing from state and local government officials, businesses, health care providers and others to determine the greatest need for the federal help.

Earlier Wednesday, representatives from the hospitality industry said they would need upwards of $700 million over several years to cover losses due to the economic shutdown and to reopen the businesses that survive.

Cities and towns are anticipating losses in the hundreds of millions of dollars due to lost revenue, late property tax payments, additional emergency costs and abatement requests.

Sununu has said he will announce shortly whether he will continue the stay-at-home order that closed eat-in restaurants except for take-out, and all non-essential businesses.

Schools will operate through remote learning for the remainder of the academic year.

Garry Rayno may be reached at garry.rayno@yahoo.com

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