By GARRY RAYNO, InDepthNH.org
CONCORD — Lawmakers who sued Gov. Chris Sununu seeking to block him from spending unappropriated federal and state money without legislative approval have asked a superior court judge to reconsider his order.
Hillsborough County Superior Court Judge David Anderson dismissed the suit seeking an emergency injunction to prevent Sununu from expending money on the coronavirus epidemic without Joint Legislative Fiscal Committee approval, saying the Democratic legislative leaders lacked standing because no harm had been done.
He relied on a 2014 state Supreme Court decision that said actual, not hypothetical, harm has to exist before the four lawmakers could proceed with the suit.
Late Friday afternoon, Senate President Donna Soucy, House Speaker Stephen Shurtleff, Senate Finance Committee Chair Lou D’Allesandro and House Finance Committee Chair Mary Jane Wallner filed the motion to reconsider claiming Fiscal Committee members have been denied their constitutional and legal right to vote on accepting the federal money and on unappropriated expenditures.
“The governor’s actions have deprived Fiscal Committee members their statutory right to vote on appropriations and nullified their votes, causing personalized injuries,” wrote the group’s attorneys Gregory Silverman and Paul Twomey. “Plaintiffs Soucy and Shurtleff, as the lone constitutional officers of the legislative branch, may represent its institutional interests during this pandemic.”
Along with the motion for reconsideration, the four Democratic lawmakers filed an amended complaint further explaining their contentions and adding four new members of the Fiscal Committee to the suit, Sens. Cindy Rosenwald and Jay Kahn, and Reps. Peter Leishman and Susan Ford, all Democrats.
The reconsideration motion also contends the eight lawmakers are state and federal taxpayers and under state law would be able to challenge what they consider illegal spending by the governor.
The lawmakers claim under the constitution and state law 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.
The state has received 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 help him determine how the funds will be distributed.
In a hearing before the court last month, Solicitor General Dan Will, representing Sununu, 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 wrote in his decision. “Rather, they must allege a concrete, personal injury.”
Anderson cited both state and federal court decisions with similar circumstances.
In their request for a rehearing, the Democratic leaders write: “Our state’s seasoned budget writers and members of the Fiscal Committee have been deprived of their statutory right to vote on how monies in the state treasury should be appropriated for the executive branch to spend.”
They argue that Sununu’s administration has gone through the usual process of seeking fiscal committee approval for transferring and expending other federal funds in items on the committee’s May 8 agenda, but refuses to use the same process for the coronavirus funds.
“Not only have they each suffered a personal injury, the institutional power of their committee has been harmed. So has the entire legislative branch, for which the Senate President and Speaker, duly elected by their respective bodies, are uniquely positioned to represent,” the legislators’ attorneys argue. “In any event, each Plaintiff has standing as taxpayers to enforce their constitutional right to an accountable and lawful government and enjoin the illegal expenditure of public funds.”
The legislative leaders seek an expedited hearing on their latest motion and amended complaint.
Garry Rayno may be reached at firstname.lastname@example.org