NH Judge Dismisses Democrat's Coronavirus Oversight Funds Lawsuit

MANCHESTER, NH — A Hillsborough County Superior Court North judge dismissed a lawsuit filed by Democrats in the Legislature seeking to stop New Hampshire's Republican governor from distributing new coronavirus federal emergency relief funds without their oversight.

Judge Dave Anderson promised a quick decision and delivered — less than 48 hours after the hearing Monday, he dismissed the lawsuit filed by state Reps. Mary Jane Wallner, D-Concord, state Sen. Lou D’Allesandro, D-Manchester, Speaker of the House of Representatives Stephen Shurtleff, D-Penacook, and state Senate President Donna Soucy, D-Manchester. The legislators were attempting to stop Gov. Chris Sununu's newly formed Governor's Office for Emergency Relief and Recovery from making decisions about how to spend $1.25 billion of CARES Act funds without having to go through the Joint Legislative Fiscal Committee, which is co-led by D’Allesandro and Wallner.

The Democrats, who all serve on an advisory board to the governor's relief group, filed the lawsuit last week. Sununu requested a delay and filed a motion to dismiss Sunday. Anderson, on Wednesday, sided with Sununu and dismissed the lawsuit.

In correspondence with the Joint Legislative Fiscal Committee in March, Sununu cited emergency powers granted to the governor as a way of sidestepping the committee — but later, named leaders of both houses and the committee to the advisory board. The Democrats said the public deserved the chance to weigh in on decisions and added that the committee could meet as quickly as possible to make any decision necessary. They also stated in documents that in previous emergencies, including the Sept. 11 attacks and the Great Recession, both Gov. Craig Benson, a Republican, and Gov. John Lynch, a Democrat, made requests to spent funds through the committee. Sununu and Solicitor General Dan Will countered that decisions had to be made instantly, due to the pandemic emergency, and that emergency legislation approved in the past allowed for the governor to create the new office.

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In the 16-page decision, Anderson cited both state and national case law showing the plaintiffs appeared to be arguing that the institution was being harmed. An institutional injury, he wrote, was not the type of injury recognized by prior decisions.

"Plaintiffs cannot sidestep the critical issue of standing by claiming the existence of a political question in the abstract," Anderson wrote. "For the foregoing reasons, the court finds that the individual plaintiffs lack standing to bring this suit, even if brought in their professional capacities as members of the Legislature."

Anderson also argued that since the funds were federal, previous cases showed that state taxpayers lacked standing to challenge federal appropriations, like grants, or other line items reimbursed by the federal government, or have oversight of them, even though they, too, were public funds.

"The CARES Act funds here must be used for specific, if broadly stated, purposes, and the federal Inspector General is granted specific oversight over the use of the funds," he wrote. "In the alternative, even assuming plaintiffs did have taxpayer standing, the court finds that plaintiffs as taxpayers are not entitled to the immediate relief they are seeking. At the hearing, Governor Sununu argued that by its plain language, Article 8 is limited and does not provide taxpayers with the ability to obtain preliminary injunctive relief; rather, it only authorizes plaintiffs to seek a declaration from the court that certain conduct by the State is unlawful. The court agrees with this interpretation of the language in Article 8."

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Sununu thanked the judge for the ruling and Will and the New Hampshire Department of Justice for doing "a fantastic job" arguing the case.

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

Democrats disagreed with the ruling — but added it was appropriate for the court to settle the matter.

"We respectfully disagree with the Court's ruling," the four legislators said in a statement. "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. This lawsuit is ultimately about a dispute between two equal branches government and it is appropriate for the third coequal branch of government to settle this disagreement in a timely manner so critical relief to Granite Staters is not delayed. Knowing that time is of the essence it is discouraging that instead of arguing this case on the merits, Governor 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."

Andru Volinsky, an Executive Councilor from District 2 in Concord and a Democrat running for governor in 2020, called the ruling "unfortunate" and it would allow Sununu "his unprecedented power grab" to spend the federal funds money without any oversight.

"We've already seen federal small business funds going to corporate companies like Ruth's Steak House," he said. "We should not repeat those mistakes at the state level, but the Governor's GOFERR power grab makes this more likely to happen."

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