Bill Text: NH HB440 | 2021 | Regular Session | Amended
Bill Title: Prohibiting the suspension of civil liberties during a state of emergency.
Spectrum: Partisan Bill (Republican 5-0)
Status: (Engrossed - Dead) 2021-05-27 - Rereferred to Committee, Motion Adopted, Voice Vote; 05/27/2021; Senate Journal 17 [HB440 Detail]
Download: New_Hampshire-2021-HB440-Amended.html
HB 440 - AS AMENDED BY THE HOUSE
9Apr2021... 0486h
2021 SESSION
21-0658
05/04
HOUSE BILL 440
AN ACT prohibiting the suspension of civil liberties during a state of emergency.
SPONSORS: Rep. Kofalt, Hills. 4; Rep. Ammon, Hills. 40; Rep. Nunez, Hills. 37; Sen. Avard, Dist 12; Rep. Homola, Hills. 27
COMMITTEE: Judiciary
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AMENDED ANALYSIS
This bill prohibits the suspension of civil liberties during a state of emergency.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
9Apr2021... 0486h9Apr2021... 21-0658
05/04
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twenty One
AN ACT prohibiting the suspension of civil liberties during a state of emergency.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Title. This act may be known and cited as the “Civil Liberties Defense Act.”
I. RSA 4:45 and 4:47, together known as the emergency powers statutes, allow the governor of New Hampshire to declare a state of emergency and thereby activate emergency powers. The emergency powers statutes were passed by the general court in order to give the governor flexible, enumerated powers in a time of public disaster.
II. On Friday, March 13, 2020, the governor issued Executive Order 2020-04, declaring a state of emergency due to the novel coronavirus, or Covid-19. This order formed the basis for several emergency orders.
III. On Tuesday, March 17, 2020, Binford, et. al. v. Sununu became the first legal challenge to these emergency orders. The lawsuit claimed that aspects of the orders violated the plaintiffs’ civil liberties.
IV. In response to this lawsuit, the state, rather than arguing simply that the orders in question were constitutional, disturbingly asked the New Hampshire superior court to hold that civil liberties are suspended due to the state of emergency. See Binford, et. al. v. Sununu, Merrimack Cty. Super. Ct., 217-2020-CV-00152 at 10 (March 25, 2020) (Kissinger, J.) (“…the State contends [that] during a state of emergency, executives are granted broad latitude to suspend civil liberties”).
V. The superior court agreed with the state and concluded that civil liberties in New Hampshire are suspended during the Covid-19 emergency. Id. at 11 (affirming that “[i]n an emergency situation, fundamental rights such as the right of travel and free speech may be… suspended”) (quoting Smith v. Avino, 91 F. 3d 105, 109 (11th Cir. 1996); id. at 16 (“the Court finds that the Governor may suspend… constitutional rights during a state of emergency…”). Although the superior court then proceeded to find that the governor’s orders were constitutional, it noted that it was doing so only “for the purpose of establishing a complete record.” Id.
VI. In subsequent emergency orders, the governor has cited the superior court’s opinion letter in Binford as a legal authority. See e.g. Emergency Order No. 74 at 1 (Nov. 19, 2020) (citing Binford, et. al. v. Sununu, Merrimack Cty. Super. Ct., 217-2020-CV-00152).
VII. In enacting RSA 4:45 and 4:47, the general court intended to give the governor flexible enumerated powers during a time of disaster. It did not intend to allow the governor to suspend or otherwise infringe upon the New Hampshire bill of rights or the United States Constitution.
VIII. The general court makes no comment on the specific outcome of the Binford decision, recognizing that case-by-case applications of legal rights are within the province of the judicial branch. Yet the superior court exceeded its authority to the extent that it purported to authorize the governor to suspend or infringe upon the New Hampshire bill of rights or the United States Constitution.
IX. Civil liberties are a codification of the inherent and binding duties of governments to their citizens. The rule of law in a free society must therefore be permanent and inviolable. The New Hampshire bill of rights and the United States Constitution may never be suspended, set aside, or otherwise nullified by the governor, the judiciary, this general court, or any other official authority. “Government is not free to disregard the First Amendment in times of crisis.” Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U. S. ____ (2020) (Gorsuch, J., concurring in the judgment).
X. Since the Binford decision was issued, the United States Supreme Court has correctly reaffirmed that “even in a pandemic, the Constitution cannot be put away and forgotten.” Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U. S. ____ (2020).
XI. The United States Supreme Court has never held that constitutional rights may be suspended due to a pandemic. Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U. S. ____ (2020) (Gorsuch, J., concurring in the judgment) (“Jacobson didn’t seek to depart from normal legal rules during a pandemic, and it supplies no precedent for doing so… Instead, Jacobson applied what would become the traditional legal test associated with the right at issue—exactly what the Court does today.”) (citing Jacobson v. Massachusetts, 197 U. S. 11 (1905)); Id. (“Nor does any [dissenting Justice in the Cuomo decision] seek to explain why anything other than our usual constitutional standards should apply during the current pandemic.”).
XII. The general court does not seek to obstruct lawful efforts by the governor or the governor's officials to manage public disasters. Yet New Hampshire courts may not depart from the federal or state constitutions during a crisis. Given the alarming nature of the state’s argument in Binford, and the superior court’s resulting findings, the general court concludes that it would be negligent to wait for action by the New Hampshire supreme court before enacting this legislation.
3 Purpose. The purposes of this act are:
I. To clarify that the general court never intended that emergency powers granted to the governor would be used to suspend civil liberties, and to amend the emergency powers statutes to expressly prohibit the suspension of civil liberties.
II. To reject as ultra vires and to preclude any judicial decision purporting to suspend civil liberties in New Hampshire, whether reached under the emergency powers statutes or any other law or legal principle.
III. To ensure that “even in a pandemic, the Constitution cannot be put away and forgotten.” Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U. S. ____ (2020). Legal challenges brought under the state or federal constitution must accordingly be subject to meaningful constitutional analysis.
I. “Civil liberties” encompasses any guarantee against, protection against, or remedy for an imposition, intrusion, fine, punishment, or penalty by a governmental entity or agent enumerated in the New Hampshire bill of rights, in the United States Constitution, or in any binding legal decision construing any part of the same.
II. “Suspension” refers to a time period or condition in which courts of law do not or are not required to subject impositions, intrusions, fines, punishments, or penalties by governmental entities or agents to constitutional analysis, instead subjecting such challenges to a “good faith” requirement or other extraordinary standard.
III. “New Hampshire bill of rights” means part I of the New Hampshire constitution and any legal precedent applying any article therein so as to invalidate, prohibit, punish, or remedy an imposition, intrusion, fine, punishment, or penalty by a governmental entity or agent.
5 Civil Liberties Protected. No power delegated or otherwise granted by any statute or act of this general court to the governor or any of the governor's subordinates, whether before or after the date of this act, shall be construed to suspend or permit the suspension of civil liberties.
6 New Paragraph; State of Emergency; Powers of the Governor. Amend RSA 4:45 by inserting after paragraph III the following new paragraph:
IV. Notwithstanding the foregoing enumerated powers, civil liberties shall on no account be suspended. Nor shall the United States Constitution or the New Hampshire bill of rights be suspended, set aside, or otherwise infringed.
7 Emergency Management Powers. Amend RSA 4:47, III to read as follows:
III. The power to make, amend, suspend and rescind necessary orders, rules and regulations to carry out the provisions of this subdivision in the event of a disaster beyond local control; provided that civil liberties shall on no account be suspended, nor shall the United States Constitution or the New Hampshire bill of rights be suspended, set aside, or otherwise infringed.
I. This act and the amendments affected thereby shall be construed in favor of substantive protections for civil liberties.
II. The protections afforded by this act are in addition to any further protections provided under federal law, state law, and the state and federal constitutions.
III. This act shall not be construed to impede the application of any duly enacted amendment to the New Hampshire constitution.
IV. This act shall not be construed to imply that civil liberties are conferred upon the citizens of New Hampshire by the general court or that the general court has or claims for itself the power to suspend civil liberties.
V. Nothing in this act shall be construed to preempt or repeal any state or local law that is equally or more protective of civil liberties. Nothing in this act shall be construed to narrow the meaning or application of any state or local law protecting civil liberties.
VI. This act applies to, and in cases of conflict supersedes, each statute of the state that impinges upon civil liberties unless a conflicting statute is expressly made exempt from the application of this act. This act also applies to, and in cases of conflict supersedes, any ordinance, rule, regulation, order, opinion, decision, practice, or other exercise of the government’s authority that impinges upon civil liberties.
VII. If any provision of this act or any application of such provision to any particular person or circumstance is held to be invalid under law, the remainder of this act and the application of its provisions to any other person or circumstance shall not be affected.
9 Effective Date. This act shall take effect upon its passage.
