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Fojo Law Files Appeal in New Hampshire Supreme Court in Rivard Lawsuit Against Sununu Over Shutdown

Yesterday, our law firm filed a notice of appeal with the New Hampshire Supreme Court in Mary Rivard’s lawsuit against Governor Christopher T. Sununu over his executive orders extending his “state of emergency” declaration he issued earlier this year in response to the Coronavirus.  Ms. Rivard had requested an emergency motion for a temporary restraining order enjoining Governor Sununu’s emergency measures.  Ms. Rivard also amended her complaint to allege an additional claim: that the emergency powers statutes (RSA 4:45 and 4:47) under which Governor Sununu issued and renewed the “state of emergency” declaration are an unconstitutional delegation of legislative power in violation of The New Hampshire Constitution.

After a hearing on June 9, 2020, the Merrimack County Superior Court denied Ms. Rivard’s request for an injunction and dismissed the case.  We filed a motion to reconsider that order in early August 2020, highlighting many of the errors in the Court’s decision.  The Court denied that motion last month (one word: “Denied.”).

In light of recent decisions from Pennsylvania and Michigan within the last two weeks that invalided shutdown orders in those states, we appealed the Court’s decision.  In New Hampshire, an appeal of a trial court decision on the merits goes directly to the New Hampshire Supreme Court.

In Ms. Rivard’s lawsuit, we primarily requested that the Court conclude Governor Sununu’s orders are void because he lacked the authority under the applicable statutes to continue renewing New Hampshire’s “state of emergency.”

Governor Sununu’s original shutdown orders in March 2020 were designed to “slow the spread” of the Coronavirus so New Hampshire’s healthcare system would not be overwhelmed.  Over a month later (and particularly now), there was no question New Hampshire’s hospitals had never reached capacity: in a press conference on April 29, 2020, Governor Sununu explained just 10% of the COVID-dedicated beds in New Hampshire’s hospitals were occupied (approximately 100 of 1,000 beds).  That number has since dropped precipitously.  Indeed, we explained in Ms. Rivard’s Complaint that data from the New Hampshire Department of Health and Human Services supported Governor Sununu’s statement and showed New Hampshire’s hospitalization rate was dropping.  Hospitals have also furloughed numerous employees.  In other words, New Hampshire’s curve had “flattened” and had never really spiked at all.

Despite these facts, Governor Sununu issued Executive Order 2020-08 on April 24, and then Executive Order 2020-09 on May 15, and additional orders after that, renewing the “state of emergency” declaration.  A “state of emergency” automatically terminates after 21 days.  A Governor may “renew” is if he or she finds it “necessary to protect the safety and welfare” of New Hampshire citizens.  Although New Hampshire’s curve was “flat,” these orders renewed the “state of emergency” several times, each for another 21 days.  Emergency orders issued by the Governor also continue to place restrictions on “non-essential” businesses, making it virtually impossible to operate realistically or at a profit.

New Hampshire is now nearly seven months into this lockdown, and many “non-essential” businesses have been closed or teetering on closure, and no end is in sight despite there being no “emergency” in New Hampshire.  Ms. Rivard is facing the real possibility of closing her business permanently as well.  Her appeal challenges the Court’s dismissal of her claims and denial of her request for an injunction.