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Fojo Law Files Lawsuit Challenging Nashua’s Face Mask Ordinance and Governor Sununu’s State of Emergency Declaration, Requests Emergency Order Striking Both Measures

This morning, we filed the firm’s third lawsuit challenging Governor Sununu’s “state of emergency” declaration, and also challenging the City of Nashua’s recent enactment of an ordinance requiring individuals to wear face masks.  Like the school closure lawsuit, this action contains another troubling revelation about government transparency and whether local governments are following the rule of law during this “pandemic.”

The lawsuit, filed on behalf of a Nashua resident, challenges (1) 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); and (2) and the City of Nashua’s enactment of an ordinance (O-20-018) requiring individuals who enter any business, who are present in any outdoor area serviced by a business, or who enter or are present in the communal spaces of any commercial or residential building with two or more units to wear face masks or coverings.  The lawsuit, like the first action we filed on behalf of Mary Rivard, and the lawsuit challenging the Governor’s order closing schools and implementing remote instruction, also includes an emergency motion for a temporary restraining order enjoining the Governor and the City from enforcing the orders and the ordinance, respectively.

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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 and school closure lawsuits: 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 targets a troubling issue concerning the City’s enactment of the ordinance requiring face masks.  The City appears to have ignored or abused certain procedural requirements in doing so.  The City lacked the statutory authority to enact such an ordinance, and it is preempted by Governor Sununu’s numerous emergency orders regulating the state’s response to the Coronavirus.  Despite these limitations, the City adopted this “emergency” ordinance in just a matter of days without providing the public an opportunity to review it and provide its feedback: the Nashua Board of Health unanimously recommended the proposed ordinance in a May 13, 2020 meeting (according to the City’s website, the first meeting the Board held in three months and for which there is no record); the City’s Corporation Counsel, Steve Bolton, approved the proposed ordinance two days later, on May 15, 2020; Lori Wilshire, the President of the Board of Aldermen, on May 19, 2020, hastily called a special meeting for May 21, 2020, but she failed to provide the City Clerk with a copy of the proposed ordinance Attorney Bolton had approved and appears to have falsely stated it was not finalized; the Board of Aldermen then failed to comply with statutory requirements because, upon information and belief, it did not provide a copy of the proposed ordinance to the City Clerk or publish notice of the proposed ordinance in any newspaper.

In addition to these problems, the ordinance itself is overbroad and violates several of our client’s (and other citizens’) constitutional rights.

These facts are highly problematic.  In the school closure lawsuit, 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.  Here, the City of Nashua appears to have engaged in the same conduct: it passed a brand new ordinance imposing massive restrictions on its residents and visitors in just a matter of days without any notice to the public and in violation of statutory requirements.  Thus, we are alleging this ordinance should be held invalid for the many reasons stated above.

We are seeking an emergency order restraining Governor Sununu from enforcing his “state of emergency” declaration in the executive orders above; and the City from enforcing the new ordinance (O-20-018).