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Hearing Scheduled for June 9, 2020 in Lawsuit Against Governor Sununu Over Shutdown

Today, the Merrimack County Superior Court scheduled a hearing for June 9, 2020, at 11 a.m., 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.  (This past Friday, May 15, 2020, Governor Sununu issued Executive Order 2020-09, which extended New Hampshire’s state of emergency a third time for another 21-day period, through June 5, 2020.  That Executive Order, and any future orders extending the state of emergency declaration will be made part of the June 9 hearing.)  The Honorable Richard B. McNamara neither granted nor denied Ms. Rivard’s request for a temporary restraining order but had requested a hearing be scheduled “at the Court’s early convenience.”  That hearing is now scheduled for June 9.

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.

Last week, 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.  Also last 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, and now Executive Order 2020-09 on May 15.  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 Orders 2020-08 and 2020-09 renewed the “state of emergency” a second and third time, respectively, each for another 21 days.  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.  There has been no indication these guidelines will be lifted before the June 9 hearing.

New Hampshire is now two months into this lockdown, and many “non-essential” businesses have been closed for two months, 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.  At the hearing, the Court will determine whether to enjoin Governor Sununu’s orders.