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Court Orders Hearing Scheduled in Lawsuit Against Governor Sununu Over Shutdown

This morning, the Merrimack County Superior Court directed the clerk to schedule a hearing on hair salon owner Mary Rivard’s emergency motion for a temporary restraining order enjoining Governor Christopher T. Sununu’s Executive Order 2020-08 and Emergency Order #40, which extended New Hampshire’s state of emergency for a second 21-day period and extended the shutdown of “non-essential” businesses through May 31, 2020.  Interestingly, the Honorable Richard B. McNamara neither granted nor denied the request for a temporary restraining order but requested a hearing be scheduled “at the Court’s early convenience.”

In the first lawsuit filed in mid-March challenging the shutdown, the same Court denied a similar emergency request within 24 hours and then dismissed the case.

This past Monday, we filed a lawsuit on Ms. Rivard’s behalf challenging Governor Sununu’s orders.  Like other lawsuits elsewhere in the country, we filed an emergency motion for a temporary restraining order requesting that the Court conclude Governor Sununu’s orders are void because he lacked the authority under the applicable statute 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, 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).  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.  Earlier this week, the New Hampshire Department of Health and Human Services reported that not a single person under the age of 60 in New Hampshire has died from COVID-19.  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.  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,” Executive Order 2020-08 renewed the “state of emergency” a second time, for another 21 days.  Then Emergency Order #40 extended the shutdown of “non-essential” businesses through May 31, 2020, and allowed certain businesses, such as Ms. Rivard’s hair salon, to re-open but only if they followed strict, arbitrary guidelines that make it virtually impossible to operate realistically or at a profit.

New Hampshire is now two months into this lockdown, and many “non-essential” businesses have been closed for a month and a half, 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.  She is seeking an emergency order restraining Governor Sununu from enforcing the above orders, as well as other Constitutional claims related to those orders and the shutdown.  The Court has not yet scheduled a hearing but should do so very soon.  At the hearing, the Court will determine whether to enjoin Governor Sununu’s orders.