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Update: Judge Dismisses Lawmakers' Suit Over Sununu's Power To Spend Federal COVID-19 Money

Dan Tuohy / NHPR

A judge has dismissed a lawsuit filed by top Democratic lawmakers over federal COVID-19 funding. The suit challenged Gov. Chris Sununu's power to spend more than $1.25 billion without legislative review or approval.

(Scroll down for earlier coverage.)

In his 16-page opinion, Superior Court Judge David A. Anderson granted Sununu's motion to dismiss, writing that stopping or delaying the governor from distributing funds in the midst of a global pandemic would be contrary to the public interest.

As such, he concluded the lawmakers' lacked standing. Sununu, in a press release after the order was issued, said it "is paramount that we get relief out to New Hampshire families fast, and that is what I am determined to do."

House Speaker Steve Shurtleff and Senate President Donna Soucy argued the governor was cutting out the legislature, in approving receipt and expenditure of the federal funds.

Sununu is a Republican. Democrats are in majority control of the Legislature.

The Democrats, which included Rep. Mary Jane Wallner of Concord and Sen. Lou D'Allesandro of Manchester, contend the judge got it wrong.

"The legislature constitutionally holds the 'power of the purse,'' and the Joint Fiscal Committee is the body that legally approves proposed spending requests by the executive branch during an emergency," the four said in a statement.

They claim Sununu is allowing "a cloud of constitutional uncertainty to persist" over how the federal money is spent.

Earlier Story (April 13):

Top Democrats in the New Hampshire Legislature want a judge to force Gov. Chris Sununu to get permission from lawmakers before he spends any of the more than $1.25 billion in COVID-19 federal aid earmarked for New Hampshire.

House Speaker Steve Shurtleff, Senate President Donna Soucy, and the leaders of the finance committees in each chamber are asking the Hillsborough County Superior Court to rule on who has the power to appropriate money during a state of emergency.

The suit, filed Monday morning, intensifies a legal and political argument that has been brewing over the past week, as Democrats in the State House claim Sununu is trying to cut them out of a key element of New Hampshire's plan to respond to the financial threat of the coronavirus pandemic. Sununu, however, has said that he has greater leeway during a declared state of emergency to move without the approval of the Legislature.

“Gov. Sununu has chosen to disregard the legislative branch, which represents the voice of the people," House Fiscal Committee Chairwoman Mary Jane Wallner said in a statement Monday. "His refusal to compromise led us to the judicial branch today, where we are seeking an expedited court ruling to resolve this constitutional crisis.” 

Sununu and Attorney General Gordon MacDonald have pointed to state statutes to back the governor's claim that he can sidestep lawmakers in spending federal relief money. Last week, MacDonald cited a 2002 law that gives governors the power to act unilaterally in emergency circumstances.

"The governor is exercising the authority delegated to him, by the Legislature, in RSA 4:45, to take such actions as are necessary to protect the public and the safety of the people of New Hampshire,” MacDonald said.

The Fiscal Committee met by telephone last Friday and accepted $1.2 million in COVID-19 aid to boost at-home meal programs for low-income seniors. Later that same day, Sununu told reporters he had no plans to involve lawmakers in spending decisions, save for an “advisory” capacity.

“We are in very unique times: There is a state of emergency that I’ve declared, and we’ll likely be in a state of emergency for quite some time.” Sununu said.  

Democratic leaders say Sununu’s assertion of power flouts the law, the state constitution, and norms accepted by prior governors of both parties. They argue that other governors who spent federal aid under the state’s current emergency powers law – Republican Craig Benson after flooding in 2003, and Democrat John Lynch in 2008  – did so with consent of the fiscal committee.

“No one’s first choice - or even second choice - was to go to court," Soucy said in a statement after lawmakers filed suit.

"We reached out to the governor on multiple occasions to settle this amicably, but Gov. Sununu refused, and he left us no other choice."

Sununu, meanwhile, said he plans to stay the course. His office has called the first meeting of its bipartisan COVID-19 “legislative advisory board” for this afternoon (Monday, April 13).

“It is the legislature’s prerogative to check in with the courts and we will always maintain a collaborative relationship with them,” said Sununu spokesman Ben Vihstadt.

“Ensuring New Hampshire families receive immediate emergency relief is paramount and the Governor remains committed to that goal.”

Josh has worked at NHPR since 2000.
Dan is a long-time New Hampshire journalist who has written for outlets including Foster's Daily Democrat, The Citizen of Laconia, The Boston Globe, and The Eagle-Tribune. He comes to NHPR from the New Hampshire Union Leader, where he reported on state, local, and national politics.

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