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Hearing Scheduled for June 2, 2020 in Lawsuit Challenging Governor Sununu’s Orders Closing Schools

This morning, the Rockingham County Superior Court scheduled a hearing for next Tuesday, June 2, 2020, at 1:30 p.m. on our clients’ emergency motion for a temporary restraining order against Governor Christopher T. Sununu’s Executive Orders 2020-08 and 2020-09, which extended New Hampshire’s state of emergency until June 5, 2020 (totaling 84 days); (2) Governor Sununu’s Emergency Orders #1, #19, and #32, and the New Hampshire Department of Education’s “emergency” amendment to one of its internal rules, ED 306.18(a)(7), all of which collectively canceled the rest of the 2019-2020 school year for all New Hampshire public schools, and substituted in its place an inadequate system of remote instruction that is failing to meet the needs of students across the state; and (3) the Salem School District’s implementation of remote instruction pursuant to the directives above.

The Honorable Andrew R. Schulman denied the emergency request, for the time being, because he prefers Governor Sununu, the Department, and the Salem School District be provided with notice and an opportunity to be heard before the Court rules.  (Judge Schulman labeled the request for a ruling without notice (known as an “ex parte” request) “wholly inappropriate.”  The Defendants’ actions, however, in changing a Department rule overnight without notice to the public, and then waiting six days to post it online, is what is truly “inappropriate.”). The June 2 hearing takes place one week earlier than the hearing in the Rivard lawsuit.

Late last week, we filed the firm’s second lawsuit challenging Governor Sununu’s shutdown orders, and this action contains a potentially explosive revelation that calls into question the transparency of our government officials and whether they have any desire to follow the rule of law during this “pandemic.”

The lawsuit, on behalf of a father and his child (of Salem, New Hampshire), challenges the measures above taken by Governor Sununu, the Department, and the Salem School District. Like the first action we filed on behalf of Mary Rivard, this lawsuit also includes an emergency motion for a temporary restraining order enjoining the Governor, the Department of Education, and the Salem School District from enforcing these orders and rules.

More specifically, the lawsuit addresses two main concerns, the second of which is more troubling and was referenced above.

First, this lawsuit includes the same principal argument underlying the Rivard lawsuit: the purpose for, and supposed “emergency” underlying, Governor Sununu’s original shutdown orders in March 2020 was that New Hampshire needed to “slow the spread” of the Coronavirus so the state’s healthcare system would not be overwhelmed.  Over a month later, there was no question New Hampshire’s hospitals had never reached capacity, and New Hampshire’s curve had “flattened” and never spiked at all.  Despite these facts, Governor Sununu issued Executive Order 2020-08 on April 24, 2020 and Executive Order 2020-09 on May 15, 2020.  A “state of emergency” automatically terminates after 21 days.  A Governor may “renew” it if he or she finds it “necessary to protect the safety and welfare” of New Hampshire citizens.  Although New Hampshire’s curve was “flat,” Executive Orders 2020-08 and 2020-09 renewed the “state of emergency” a second and third time, respectively, each for another 21 days.  There was no basis for these extensions of the Governor’s “state of emergency” declaration.

Second, this lawsuit aggressively targets a potentially explosive — and very troubling — issue concerning how the government switched from traditional education to remote instruction while addressing the Coronavirus.  One of the Department of Education’s own rules (the above-referenced ED 306.18(a)(7)) limits remote instruction to five days per school year:  On March 12, 2020, the day before the Governor first declared a state of emergency (March 13, 2020) in Executive Order 2020-04, the Department claims, on its website, that it “adopted” an “emergency” amendment to that rule that removed that five-day limit.  This “emergency” amendment paved the way, two days later on March 15, 2020, for the Governor to issue Emergency Order #1, the first of three Emergency Orders ultimately directing school districts to implement remote instruction for the remainder of the school year.

In “amending” ED 306.18(a)(7), however, the Department does not appear to have followed any of the rulemaking procedures required by RSA 541-A or its own rules (ED 214.01-06): the Department failed to provide notice to the public of the “emergency” amendment or address it at a public hearing, among other failures.  Instead, the Department appears to have first communicated this “emergency” amendment to the public six days after it claims this “emergency” amendment was adopted.  Indeed, the Department first published its web page on “remote instruction” referenced above, which contained a link to the “emergency” amendment to ED 306.18(a)(7), on March 18, 2020:Making matters worse, Governor Sununu was obviously aware of the Department’s “adoption” of this “emergency” amendment to ED 306.18(a)(7) as early as March 15, three days before the public learned of it, because he specifically referenced it in Emergency Order #1 when he directed school districts to “develop a temporary remote instruction and support plan pursuant to emergency rule ED 306.18(a)(7).”

This incredible fact also suggests Governor Sununu knew of the “emergency” rule’s purported “adoption” much earlier because, without this amendment to ED 306.18(a)(7), Emergency Order #1 and its directive to implement remote instruction for more than five days would not have been possible.

Even more alarming: the Department then attempted to propose a formal change to the “emergency” amendment to ED 306.18(a)(7) (which we contend, in the lawsuit, is not valid) at its May 2020 public hearing, again apparently without providing the public with any notice of the proposed change.

The fact that two high-level departments in the New Hampshire state government (the Governor’s office and the Department of Education) fundamentally altered the way in which school districts educate the state’s children – literally overnight without a hint of explanation or notice to the public – poses serious questions about transparency and whether the rule of law still exists during this feigned and prolonged “public health emergency.”  Thus, we are alleging this “emergency” amendment to ED 306.18(a)(7) should be held invalid because the Department failed to comply with statutory rulemaking requirements, and the Governor’s Emergency Orders premised on it should also be declared null and void.

In addition to the above, our clients also allege this sudden change to remote instruction in schools violates their fundamental right to an education under the New Hampshire Constitution because it prevents them from obtaining even a basic education: it provides our client with only two to three hours of instruction and work every day; it prevents our client from having the guidance and instruction from teachers and counselors in a normal school environment; and it prevents our client from participating in any sports or extracurricular activities.

We are seeking an emergency order restraining Governor Sununu from enforcing the executive and emergency orders above; the Department from enforcing its “emergency” amendment to ED 306.18(a)(7); and the Salem School District from continuing to proceed with a system of remote instruction.  Such an order — if obtained — would result in children returning to school immediately.