By GARRY RAYNO, InDepthNH.org

CONCORD — Members of the Joint Legislative Fiscal Committee have standing to sue Gov. Chris Sununu to block spending federal funds without their approval.

A Superior Court judge agreed Friday to allow members of the committee to go forward with an amended suit, after earlier dismissing one Democratic legislative leaders filed because they lacked standing.

Hillsborough County Superior Court North Judge David Anderson also wants to hear additional legal arguments on the merits of the case, although he dismissed requests for a preliminary injunction and deferred a decision on a request for a quick decision. He also allowed the plaintiffs to amend their original motion.

Democratic leaders filed suit in April saying Sununu needed Fiscal Committee approval before accepting and spending $1.25 billion in federal CARES Act money to help mitigate the impact of the coronavirus pandemic on the state, its citizens and businesses, and state and local government.

Sununu claimed a 2002 law gives governors expansive authority in an emergency to accept and spend money as he or she sees fits in order to protect the health and safety of state residents.

He has claimed that governors could accept the federal funds and determine where to spend the money without Fiscal Committee approval or Executive Council action on individual contracts.

Lawmakers argued the governor’s contention was both illegal and unconstitutional.

Democratic leaders, Senate President Donna Soucy, House Speaker Stephen Shurtleff, Senate Finance Committee Chair Lou D’Allesandro and House Finance Committee Chair Mary Jane Wallner, said in a joint statement after Friday’s ruling that they are pleased with the court’s decision.

“Today’s ruling affirms that the members of the Joint Fiscal Committee have legal standing to challenge the governor’s unprecedented action of spending of federal funds without legislative oversight and transparency that the citizens of New Hampshire expect, and that our Constitution demands,” they said. “Over $850 million dollars of federal funds through the CARES Act has already been allocated with no oversight from anyone outside of the Governor’s office. This is a significant concern for taxpayers who lack clarity regarding how money is being spent and prioritized.”
The lawmaker said they will continue to work with the court to fulfill their constitutional duty to guarantee transparency so Granite Staters can see how their hard-earned money is spent.

The governor’s office said it is pleased Anderson’s decision sided with the governor’s contention to accept and spend the funds.

“I would like to thank Judge Anderson for his careful consideration of this case thus far,” Sununu said. “In this unprecedented public health emergency, we will continue our work to get relief to New Hampshire families fast.”

In the original hearing before the court, the governor’s attorney argued Soucy, Shurtleff, D’Allesandro and Wallner, could not bring the suit citing a 2014 state Supreme Court decision saying there has to be actual harm, not the possibility which aligns state and federal laws.

Democrats asked Anderson to reconsider his April 22 ruling and added the Democratic members of the Fiscal Committee to the suit, claiming they had been denied their legal authority to vote on accepting and spending federal money as state law requires.

“The Governor’s actions have deprived Fiscal Committee members of their statutory right to vote on appropriations and nullified their votes, causing personalized injuries,” wrote the group’s attorneys Gregory Silverman and Paul Twomey in asking Anderson to reconsider his decision. “Plaintiffs Soucy and Shurtleff, as the lone constitutional officers of the legislative branch, may represent its institutional interests during this pandemic.”

Anderson’s ruling omits Shurtleff from the plaintiffs because he is not a Fiscal Committee member.

The ruling cites federal law and several rulings that specific committee members have certain authorities other members of a legislative body do not have.

“As was the case in Pierce, the Governor’s actions are alleged to deprive plaintiffs of a specific right that is unique to them as members of a specific committee,” Anderson writes. “This injury is not shared by other members of the legislature or the public at large.”

He notes the Shurtleff does not have standing as the House Speaker because the entire legislature has not asked to bring the suit, nor as a taxpayer, noting the constitutional amendment passed to address the state Supreme Court 2014 decision is not as expansive as the plaintiffs believe.

However, he says “the Court is persuaded by the reasoning in Pierce that the members of the Fiscal Committee have standing to address the alleged injury to their specific statutory right to approve expenditures by the Governor.”

The ruling granting standing restores the suit, and Anderson agreed to allow the amendment Democrats filed last month. The amendment includes the argument the committee has been harmed by not voting on the federal funds and their expenditure.

However, Anderson said he does not believe they are more than likely to win the case, which is a requirement for a preliminary injunction blocking the governor’s actions.

Instead he says the statutes cited by the plaintiffs and defendant conflict and in several cases do not apply to the situation with the CARES Act money. 

“Comparing the statutes reveals that the statutes relied upon by plaintiffs and defendant either irreconcilably conflict or simply apply to different situations,” Anderson writes.

He notes the law Democrats cite was passed before the statutes the governor cites passed in 2002 after the September 11 terrorist attacks.

“While the Court finds that the identified statutes do not provide a clear picture of the process for expending the CARES Act funds at issue, the Court concludes that the 2002 legislation is the most specific statement by the legislature on the power of the Governor to expend funds during an emergency,” Anderson writes. “It is also the legislature’s most current comprehensive statement on the Governor’s authority during an emergency.”

He notes there have been more recent legislation governing the Fiscal Committee, but none addresses the committee’s powers in an emergency.

“As a result, plaintiffs have failed to meet their burden of showing a likelihood of success on the merits of their claim,” Anderson writes in denying the preliminary injunction. 

He said lawmakers have the opportunity to change the law now and in the future to address the issue, and notes that Mississippi and Minnesota legislature have done that.

But Anderson writes he believes the merits of the case are “ripe for consideration” without expanding the record presented to the court.

However, Anderson notes that earlier filings were done under considerable time constraints, and the most recent filings center on the issue of standing to bring suit.

“The Court believes it and the parties would benefit from a final round of briefing centered on the merits of plaintiffs’ claims,” Anderson said and asks the two sides to agree to a time schedule for filing the final briefs.

Since the suit was filed, Sununu has allocated all but about $400 million of the $1.25 billion in CARES Act money.

While it has been allocated to various programs to help businesses, health care providers, and non-profit organizations, much of the money has yet to be distributed.

Sununu established the Governor’s Office for Emergency Relief and Recovery to oversee the distribution.

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