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THE STATE OF NEW HAMPSHIRE
HILLSBOROUGH, SS. SUPERIOR COURT
NORTHERN DISTRICT
Case No. 216-2020-CV-00342
Representative Mary Jane Wallner,
Senator Lou D’Allesandro,
Speaker of the House of Representatives Stephen Shurtleff,
and
Senate President Donna Soucy
v.
Christopher Sununu,
Governor of the State of New Hampshire
DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS
OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT
The defendant, Christopher Sununu, Governor of the State of New Hampshire, by and
through counsel, the New Hampshire Attorney General’s Office, submits this memorandum of
law in support of the motion to dismiss or, in the alternative, motion for summary judgment filed
herewith.
PRELIMINARY STATEMENT
In the wake of the novel coronavirus (“COVID-19”) pandemic, the Governor declared a
state of emergency in accordance with RSA 4:45 and invoked the emergency powers the
legislature granted to him under RSA 4:45, III, RSA 4:47, and RSA 21-P:43. These
legislatively-granted emergency powers permit the Governor to accept and/or expend federal
funds subject to federal conditions, RSA 21-P:43, and to spend unappropriated state funds as
necessary to protect the civilian population, RSA 4:45, III(e). The legislature has not
FiledFile Date: 7/13/2020 10:53 AM
Hillsborough Superior Court Northern DistrictE-Filed Document
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conditioned the exercise of these emergency powers on Fiscal Committee approval.
Nonetheless, the plaintiffs contend that a series of non-emergency statutes—RSA 14:30-a, VI,
RSA 9:13-d, RSA 9:16-a, and RSA Chapter 124—operate to constrain the Governor’s
emergency powers during a declared state of emergency by requiring Fiscal Committee approval
for nearly every expenditure he needs to make. This argument is not credible.
A careful statutory construction analysis reveals that the statutes upon which the plaintiffs
rely— RSA 14:30-a, VI, RSA 9:13-d, RSA 9:16-a, and RSA Chapter 124—do not apply in
emergency situations and/or do not apply to funds at issue in this case by their plain language.
Rather, RSA 4:45, RSA 4:47, and RSA 21-P:43, which are the more specific emergency-related
statutes, apply and vest the Governor with the authority to spend federal CARES Act money and
unappropriated state funds to protect the civilian population from COVID-19 and the damage
inflicted by it. Counts I, II, and III of the second amended complaint therefore fail to state
claims upon which relief can be granted and should be dismissed. Also, because the legislature
has properly vested the Governor with emergency management authority under RSA 4:45, III,
RSA 4:47, and RSA 21-P:43 to accept and expend federal CAREs Act funds and to expend
unappropriated state funds to protect the civilian population from COVID-19, his actions to
make those expenditures do not violate the separation of powers doctrine. N.H. Const. Pt. I, Art.
37. Accordingly, for the reasons stated above, and for the reasons explained in further detail
below, the Governor’s motion to dismiss or, in the alternative, motion for summary judgment
should be granted.
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STANDARD OF REVIEW
A. Motion To Dismiss
In ruling on a motion to dismiss, this court determines “whether the plaintiff’s allegations
are reasonably susceptible of a construction that would permit recovery.” Harrington v. Brooks
Drugs, 148 N.H. 101, 104 (2002). The court assumes the truth of the plaintiff’s well-pleaded
allegations of fact and construe all reasonable inferences in the light most favorable to the
plaintiff. See, e.g., Hacking v. Town of Belmont, 143 N.H. 546, 549 (1999). However, the court
need not accept allegations in the complaint that are merely conclusions of law. See, e.g.,
Konefal v. Hollis/Brookline Coop. Sch. Dist., 143 N.H. 256, 258 (1998). The court “must
rigorously scrutinize the pleading to determine whether, on its face, it asserts a cause of action.”
Jay Edwards, Inc. v. Baker, 130 N.H. 41, 44 (1987).
B. Motion for Summary Judgment
On a motion for summary judgment, the court considers “‘the affidavits and other
evidence, and all inferences properly drawn from them, in the light most favorable to the non-
moving party.’” Skinny Pancake-Hanover, LLC v. Crotix, 172 N.H. 372, 376 (2019) (quoting
Pike v. Deutsche Bank Nat’l Trust Co., 168 N.H. 40. 42 (2015)). If the court’s review of that
evidence “discloses no genuine issue of material fact, and if the moving party is entitled to
judgment as a matter of law,” the court will grant summary judgment. See id.
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BACKGROUND
The following background is drawn from the allegations contained in the second
amended complaint and public laws, including executive orders, that the court may consider in
resolving this motion. For purposes of this motion, the allegations contained in the second
amended complaint are assumed to be true.
The global pandemic caused by COVID-19 led the Governor to declare a state of
emergency on March 13, 2020.1 See Pls.’ Second Amended Compl. ¶ 13. On March 27, 2020,
the United States Congress enacted the Coronavirus Aid, Recovery, and Economic Security
(CARES Act). 2 Title V of the CARES Act creates the Coronavirus Relief Fund within the
Social Security Act (42 U.S.C. 301 at seq.). H.R. 748, the CARES Act,
https://www.congress.gov/116/bills/hr748/BILLS-116hr748enr.pdf, at 221. Section 601(a)
appropriates $150,000,000,000 from the Treasury of the United States for making payments to
States, Tribal governments, and units of local government. Id. Under Section 601(b)-(c), the
Secretary of Health and Human Services is authorized to make direct payments from that fund to
the States of not less than $1,250,000,000 for fiscal year 2020. H.R. 748, the CARES Act,
https://www.congress.gov/116/bills/hr748/BILLS-116hr748enr.pdf, at 222. Section 601(d)
specifies that a state “shall use the funds provided . . . to cover only those costs of the State . . .
that—(1) are necessary expenditures incurred due to the public health emergency with respect to
the Coronovirus Disease 2019 (COVID-19); (2) were not accounted for in the budget most
recently approved as of the date of enactment of this for the State . . .; and (3) were incurred
1 The state of emergency has been renewed several times. See Executive Orders 2020-05, 2020-08, 2020-09, 2020-
10, and 2020-14, available at https://www.governor.nh.gov/news-and-media/covid-19-emergency-orders-2020.
While certain emergency-related restrictions have been lifted, a state of emergency remains in effect. All 58
emergency orders related to the declared state of emergency are also available at
https://www.governor.nh.gov/news-and-media/covid-19-emergency-orders-2020.
2 The entire Act is available at https://www.congress.gov/116/bills/hr748/BILLS-116hr748enr.pdf.
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during the period that begins on March 1, 2020, and ends on December 30, 2020. H.R. 748, the
CARES Act, https://www.congress.gov/116/bills/hr748/BILLS-116hr748enr.pdf, at 223.
Section 601(f) mandates Inspector General Oversight with regard to these funds. H.R. 748, the
CARES Act, https://www.congress.gov/116/bills/hr748/BILLS-116hr748enr.pdf, at 223-24.
New Hampshire will receive a total of $1.25 billion from the Coronavirus Relief Fund.
Pls.’ Second Amended Compl. ¶ 16. Because these federal CARES Act funds relate to the
emergency management function of the state, the Governor may accept these federal funds,
without fiscal committee participation, subject to the federal conditions attached to them. RSA
21-P:43.
On March 31, 2020, the Governor sent a letter to plaintiff Mary Jane Wallner, Chair of
the Fiscal Committee, requesting the Fiscal Committee’s authorization for the Office of the
governor to accept and expend the $1.25 billion from the Coronavirus Relief Fund. Pls.’ Second
Amended Compl. ¶ 16 & Exh. C referenced therein. Despite this request, Governor Sununu
stated that “[p]ursuant to RSA 4:45 and RSA 21-P:43, Fiscal Committee approval is not
technically required for the acceptance and expenditure of these funds.” Id. On April 7, 2020,
the Governor sent a letter to the Speakers of the House and the Senate President, in which he
announced the creation of the Governor’s Office for Emergency Relief and Recovery
(“GOFERR”), which would “be charged with the investment and oversight of COVID-19 relief
and stimulus funds provided to New Hampshire by the Federal Government.” Pls.’ Second
Amended Compl. ¶ 18 & Exh. D referenced therein. Shortly thereafter, at a press conference,
the Governor confirmed that he would not involve the Fiscal Committee with respect to spending
decisions made in accordance with the emergency powers statutes. Pls.’ Second Amended
Compl. ¶ 19.
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On April 10, 2020, the Fiscal Committee held a remote meeting during which it
authorized the Department of Health and Human Services (“DHHS”) to accept and expend $1.2
million from the Families First Coronavirus Response Act. Id. ¶¶ 20-21. DHHS also informed
the Fiscal Committee that it had reallocated $18 million within certain accounting units without
seeking the consent of the Fiscal Committee pursuant to the Governor’s emergency powers. Id.
¶ 22. These funds were transferred to different accounting units for “cash flow” purposes related
to COVID-19 expenditures. Id. ¶ 23. The Fiscal Committee voted to adopt a motion purportedly
restoring these reallocations during its April 20, 2020 meeting. Id. ¶ 24.
On April 13, 2020, the plaintiffs filed this suit and, shortly thereafter, moved to amend
the complaint. This Court initially dismissed the case for lack of standing based on the initial
complaint and the proposed amended complaint. Waller v. Sununu, Docket No. 216-2020-CV-
00342, Hillsborough County, Northern District (N.H. Super. Ct. April 22, 2020). The plaintiffs
moved for reconsideration and moved to amend the complaint a second time. This Court granted
the motion to amend, entered the second complaint, and reconsidered its initial order dismissing
the case for lack of standing. Waller v. Sununu, Docket No. 216-2020-CV-00342, Hillsborough
County, Northern District (N.H. Super. Ct. June 5, 2020). This Court found that the fiscal
committee members now had standing to pursue their lawsuit, but denied the plaintiffs a
preliminary injunction on the merits, finding the statutory authority they relied upon to be
inapplicable during a declared state of emergency under RSA 4:45. Id. The court subsequently
entered a schedule for the filing and resolution of dispositive motions.
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ARGUMENT
The plaintiffs assert that the Governor lacks the authority to expend the $1.25 billion in
federal CARES Act funds and vaguely reference the expenditure and/or transfer of other funds
without the approval of the legislative Fiscal Committee. Those vague, undeveloped references
to other expenditures of unappropriated state funds fail to state claims upon which relief can be
granted, as they fail to give the Governor fair notice of the claim against him and make it
impossible for the court to test those undeveloped allegations against the law. See, e.g., In re
Omega Entertainment, LLC, 156 N.H. 282, 287 (2007) (“Judicial review is not warranted for
complaints . . . without developed legal argument . . . .”); Tessier v. Rockefeller, 162 N.H. 324,
330 (2011) (explaining that on a motion to dismiss the court’s role is to “‘test[] the facts in the
petition against the applicable law’” to determine whether the allegations “‘constitute a basis for
legal relief’”) (quoting Gen. Insulation Co. v. Eckman Constr., 159 N.H. 601, 611 (2010)).
Those vague, undeveloped claims should therefore be dismissed.
The only developed challenge to the Governor’s acceptance and/or expenditure of funds
involves the $1.25 billion in federal CARES Act funds. In challenging the acceptance and
expenditure of these federal funds, the plaintiffs contend that a series of statutes—RSA 14:30-a,
RSA 9:13-d, RSA 9:16-a, and RSA 124—require the Governor to receive Fiscal Committee
approval before he may expend those federal funds. The plaintiffs seek a writ of mandamus
(Count I), a writ of prohibition (Count II), and declaratory and injunctive relief (Counts III)
premised on a violation of those statutes. The plaintiffs also seek declaratory and injunctive
relief on theory that the Governor’s expenditure of federal CARES Act funds violates several
provisions of the New Hampshire: Part I, Article 37 [Separation of Powers], Part II, Article 41
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[Governor, supreme executive magistrate], and Part II, Article 56 [Disbursements from treasury]
(Count IV).3
The Governor contends that he possesses the authority to expend the $1.25 billion in
federal CARES Act money without the involvement of the legislative Fiscal Committee,
pursuant to certain emergency power statutes—RSA 4:45, RSA 4:47, and RSA 21-P:43—in
accordance with the federal conditions attached to those federal funds. The Governor asserts that
the statutes on which the plaintiffs rely either do not address declared states of emergency or, by
their plain terms, do not apply. As a result, the more specific emergency power statutes—RSA
4:45, RSA 4:47, and RSA 21-P:43—control and authorize the expenditures challenged in this
action. Accordingly, the entirety of the plaintiffs’ second amended complaint must be dismissed
with prejudice or, alternatively, summary judgment must enter in the Governor’s favor.
I. The Governor Has The Power Under RSA 4:45, RSA 4:47, And RSA 21-P:43
To Accept And Expend The Federal CARES Act Funds At Issue; Neither
RSA 14:30-a, RSA 9:13-d, RSA 9:16-a, Nor RSA 124 Applies In This Case.
Whether RSA 4:45, RSA 4:47, and RSA 21-P:43 govern and permit the Governor to
accept and expend the $1.25 billion in federal CARES Act funds without Fiscal Committee
approval is a question of statutory interpretation. In interpreting statutes, this Court “first look[s]
to the language of the statute itself, and, if possible, construe[s] that language according to its
plain and ordinary meaning.” Petition of Carrier, 165 N.H. 719, 721 (2013). It “interpret[s]
legislative intent from the statute as written and will not consider what the legislature might have
said or add language that the legislature did not see fit to include.” Id. “The legislature is not
presumed to waste words or enact redundant provisions and whenever possible, every word of a
statute should be given effect.” Garand v. Town of Exeter, 159 N.H. 136, 141 (2009) (quotation
3 Count V of the Second Amended Complaint seeks expedited preliminary injunctive relief. The Court already
denied the plaintiffs’ request for this relief.
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omitted). The New Hampshire Supreme Court “construe[s] all parts of a statute together to
effectuate its overall purpose and avoid an absurd or unjust result.” Petition of Carrier, 165 N.H.
at 721. Only if the statutory language used is ambiguous will the Court examine the legislative
history. Forster v. Town of Henniker, 167 N.H. 745, 750 (2015).
“Where reasonably possible, statutes should be construed as consistent with each other.”
EnergyNorth Natural Gas, Inc. v. City of Concord, 164 N.H. 14, 16 (2012) (internal quotations
omitted). “When interpreting two statutes which deal with similar subject matter, [the court] will
construe them so that they do not contradict each other, and so that they will lead to reasonable
results and effectuate the legislative purpose of the statute.” Id. (internal quotations omitted).
“To the extent two statutes conflict, the more specific statute controls over the general statute.”
Id.
A. No Provision Of The Emergency Power Statutes At Issue—RSA 4:45,
RSA 4:47, Or RSA 21-P:43—Requires The Governor To Obtain Fiscal
Committee Approval Prior To Accepting And Expending Funds
Pursuant To Those Statutory Authorities.
RSA 4:45, I gives the Governor the power to declare a “state of emergency, as defined in
RSA 21-P:35, VIII4, by executive order if the governor finds that a natural, technological, or
man-made disaster of major proportions is imminent or has occurred within this state, and that
the safety and welfare of the inhabitants of this state require an invocation of the provisions of
this section.” The executive order must specify the nature of the emergency, the areas subject to
the declaration, the conditions that have brought about the emergency, and the duration of the
state of emergency, if it is less than 21 days. RSA 4:45, I. A state of emergency automatically
terminates after 21 days and must be subsequently renewed if it persists through a subsequent
4 RSA 21-P:35, VIII defines “State of Emergency” as “that condition, situation, or set of circumstances deemed to
be so extremely hazardous or dangerous to life or property that it is necessary and essential to invoke, require, or
utilize extraordinary measures, actions and procedures to lessen or mitigate possible harm.”
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declaration that meets the requirements of RSA 4:45, I. RSA 4:45, II(a). The legislature may
terminate a state of emergency by concurrent resolution adopted by a majority vote of each
chamber.
During the existence of a declared state of emergency, the Governor may exercise the
powers provided in RSA 4:45, III, RSA 4:47, and RSA 21-P:43. RSA 4:45, III(e) specifically
reserves to the Governor the power to “perform and exercise such other functions, powers, and
duties as are necessary to promote and secure the safety and protection of the civilian
population.” RSA 4:47 specifically grants the Governor “emergency management authority” as
defined in RSA 21-P:35, V. “Emergency management” is defined as “the preparation for and the
carrying out of all emergency functions, including but not limited to . . . to prevent, minimize and
repair injury or damage resulting from any natural or human cause . . . .” RSA 21-P:35, V. The
Governor may exercise that emergency management authority to accept money provided by the
federal government “for the purposes of emergency management” for the state and “subject to
the terms of the offer and the rules and regulations, if any, of the agency making the offer.” RSA
21-P:43. As this Court has already found, these emergency power statutes work together to allow
the Governor to accept and expend emergency federal funds during a declared state of
emergency to protect the civilian population consistent with any attached federal conditions.
The legislature crafted RSA 4:45, RSA 4:47, and RSA 21-P in the shadow of the
September 11 tragedy. N.H. Laws 2002, Chapter 258, Section 258:1 at 442-43 (Statement of
Purpose). In doing so, the legislature contemplated exactly what has occurred in the COVID-19
pandemic: a situation in which a rapidly moving state-wide emergency has prevented the
legislature itself from meeting, and which requires an executive, equipped with broad emergency
powers, to act, albeit for no more than 21 days at a time, but in the moment as the executive
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alone sees as necessary to protect the civilian population. The COVID-19 emergency illustrates
how any other construction of the emergency powers statutes would frustrate that legislative
intent, embodied in the plain language of the emergency powers statutes themselves, to grant the
Governor the flexibility needed to take swift, decisive action to protect the civilian population.
Notably, neither RSA 4:45, RSA 4:47, nor RSA 21-P:43 mentions, references, or is
limited by the participation of the Fiscal Committee and for good reason. Large-scale
emergencies “inherently preclude prior prescription of specific, detailed guidelines.” U.S. v.
Yoshida Intern., Inc., 526 F.2d 560, 581 (U.S. Ct. Custom & Patent Appeals 1975). One of the
hallmarks of emergency power legislation is the lack of regular administrative procedures that
attend similar processes during non-emergent times. See id. at 581-82 (“The need for prompt
action, another essential feature of a national emergency, precludes the otherwise oft-provided
requirement for prior hearings, extensive fact finding, Tariff Commission reports to the
President, and the like.”). That is because “[e]mergencies, by definition, require a quick,
decisive response.” Id. at 582. “Of the three branches of government, only the Executive has a
continuing, spontaneous capability for mounting such a response.” Id. Indeed, “if every law
applicable to tranquil times were required to be followed in emergencies, there would be no point
in delegating emergency powers and no adequate, prompt means for dealing with emergencies.”
Id. at 583.
It is apparent from their plain language that RSA 4:45, RSA 4:47, and RSA 21-P:43 were
designed to unmoor the Governor from the regular administrative processes that exist during
non-emergent times so that he may act quickly, decisively, and spontaneously in response to an
emergency. Accordingly, the plain, unambiguous language of RSA 4:45, RSA 4:47, and RSA
21-P:43, which do not mention the Fiscal Committee, controls, and the Governor’s acceptance
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and expenditure of federal CARES Act funds pursuant to those statutes does not require Fiscal
Committee approval.
B. RSA 14:30-a, VI Is Not An Emergency Power Statute And, By Its Plain
Terms, Is Not Applicable.
The plaintiffs contend that RSA 14:30-a, VI requires the Governor to obtain Fiscal
Committee approval prior to accepting or expending the $1.25 billion in federal CARES Act
funds at issue. The argument lacks merit. By its plain terms, RSA 14:30-a does not apply in
emergencies. It therefore addresses situations distinct from RSA 4:45, RSA 4:47, and RSA 21-
P:43, and those more specific emergency power statutes control. Moreover, by its plain terms,
RSA 14:30-a, VI does not apply because state law does not “require the approval of governor
and council for acceptance and expenditure” of the $1.25 billion in federal CARES Act funds,
RSA 14:30-a, VI; rather, state law unambiguously permits the Governor unilaterally to accept
those funds and spend them in accordance with the federal conditions attached to them pursuant
to RSA 21-P:43. Accordingly, RSA 14:30-a, VI does not apply in this case.
C. RSA 9:13-d Does Not Apply Because The Governor Has Not Invoked It
And It Does Not Restrict The Authority Granted Under RSA 4:45, RSA
4:47, Or RSA 21-P:43.
The plaintiffs also contend that RSA 9:13-d precludes the Governor from spending any
federal CARES Act funds and vaguely suggest in the second amended complaint that RSA 9:13-
d also precludes the Governor from spending unappropriated general state funds. This argument
is incorrect.
For RSA 9:13-d to be applicable, the Governor must specifically invoke it. The statute
reads,
Should it be determined by the governor that a civil emergency exists, the governor
may, with the advice and consent of the fiscal committee, authorize such
expenditures, by any department or agency, as may be necessary to effectively deal
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with said civil emergency and may draw his warrants in payment for the same from
any money in the treasury not otherwise appropriated. In determining whether a
civil emergency exists, the governor shall consider whether there is such imminent
peril to the public health, safety and welfare of the inhabitants of this state so as to
require immediate action to remedy the situation. This section shall not be
construed to enlarge any of the powers which the governor may possess under the
constitution or other statutes.
(Emphases added).
The Governor has made no determination that a “civil emergency” exists under RSA
9:13-d. He has made a determination that a “state of emergency” exists under RSA 4:45, I and
RSA 21-P:35, VIII. A “state of emergency” is a “condition, situation, or set of circumstances
deemed to be so extremely hazardous or dangerous to life or property that it is necessary and
essential to invoke, require, or utilize extraordinary measures, actions, and procedures to lessen
or mitigate possible harm.” RSA 21-P:35, VIII. A “state of emergency” under RSA 21-P:35,
VIII means something different than a “civil emergency” under RSA 9:13-d, and the invocation
of a “state of emergency” under RSA 4:45, I brings with it a host of different powers. In other
words, the legislature has chosen to offer the Governor two different avenues when confronted
with an emergency. The Governor has elected to act pursuant to RSA 4:45 and RSA 21-P:35,
and no party disputes that the COVID-19 situation falls within the definitions of emergency and
the parameters of those statutes, nor does any party contend that the Governor has improperly
declared a state of emergency pursuant to those authorities. Consequently, because the Governor
has not invoked RSA 9:13-d, that statute does not constrain his emergency authority to act
pursuant to RSA 4:45-:47 and RSA 21-P:34-:48.
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D. The Plaintiffs Have Not Shown How RSA 9:16-a Is Applicable And, In
Any Event, It Does Not Restrict The Governor’s Authority Under RSA
4:45, III(e).
RSA 9:16-a applies to the transfer of funds and, by its plain terms, does not apply to
emergency situations. During normal times, it permits funds to be transferred under certain
circumstances and restricts those transfers under other circumstances. The only allegations in the
second amended complaint that could implicated RSA 9:16-a deal with DHHS, Pls.’ Second
Amended Compl. ¶¶ 22-23, an entity that is not a party to this case. In any event, RSA 9:16-a
does not apply because RSA 4:45, III(e) is the more specific emergency power statute that
authorizes the Governor “to perform and exercise such other functions, powers, and duties as are
necessary to promote and secure the safety and protection of the civilian population.” The
General Court did not encumber this broad grant of authority with requirements that every
transfer of funds the Governor authorizes over a specific amount that is needed to meet an
emergency-related issue have Fiscal Committee approval. The General Court could have
included that limitation in RSA 4:45, III(e), but did not do so. The court should therefore not
read such a limitation into the statute. See, e.g., Rankin v. South Street Downton Holdings, Inc.,
172 N.H. 500, 502-03 (2019). Accordingly, RSA 9:16-a does not apply or otherwise restrict the
Governor’s legislatively-granted emergency authority under RSA 4:45, III(e) and, in any event,
the second amended complaint identifies no transfer of funds by the Governor that implicates
RSA 9:16-a.
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E. The Plaintiffs Have Not Shown How RSA 124 Applies And, In Any
Event, No Statute Within That Chapter Restricts The Governor’s
Authority Under RSA 4:45, RSA 4:47, Or RSA 21-P:43.
The plaintiffs do not specify in their second amended complaint how RSA Chapter 124
applies to the present dispute or how the Governor is alleged to have violated any provision of it.
That circumstance alone provides grounds for dismissal of any claim premised on that statute, as
the Court cannot test the factual allegations contained in the second amended complaint against
the applicable law, i.e., RSA 124. See, e.g., In re Omega Entertainment, LLC, 156 N.H. at 287
(“Judicial review is not warranted for complaints . . . without developed legal argument . . . .”);
Tessier, 162 N.H. at 330 (explaining that on a motion to dismiss the court’s role is to “‘test[] the
facts in the petition against the applicable law’” to determine whether the allegations “‘constitute
a basis for legal relief’”) (quoting Gen. Insulation Co., 159 N.H. at 611).
Nonetheless, a review of RSA Chapter 124 does not reveal any applicable statutory
provision. RSA 124:1 makes no mention of the Fiscal Committee and gives the Governor the
authority to apply for federal aid in certain situation, including “emergency industrial or
unemployment relief, for public works and highway construction, . . . or for any other purpose
intended to relieve distress.” The Governor did not, and needed not, apply for federal CARES
Act funds. Rather, pursuant to the CARES Act itself, “not later than 30 days after March 27,
2020, the Secretary shall pay each States . . . the amount determined for the State . . . for fiscal
year 2020 under subsection (c).” 42 U.S.C. § 801(b)(1). And while RSA 124:4 mentions the
Fiscal Committee, it too concerns applying for federal aid and does not apply in emergency
situations. Accordingly, no provision of RSA Chapter 124 restricts the Governor’s legislatively-
granted emergency authority under RSA 4:45, RSA 4:47, and RSA 21-P:43 to accept and expend
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federal funds given to the state for emergency management purposes in conformance with
federal conditions during a declared state of emergency.
F. The Acceptance And Expenditure Of Funds In Accordance With Part
II, Articles 41 And 56, RSA 21-P:43, And RSA 4:45, III(e) Without
Fiscal Committee Approval Does Not Violate Part I, Article 37.
The plaintiffs also assert that the acceptance and expenditure of the $1.25 billion in
federal CARES Act funds and the expenditure of unappropriated state general funds without
fiscal committee approval violates Part I, Article 37. They seem to assert that the Joint
Legislative Fiscal Committee enjoys a constitutional role in New Hampshire, in particular,
within the doctrine of the separation of powers. The plaintiffs’ assertion is incorrect and ignores
the litany of cases holding that when legislative committees like the fiscal committee purport to
have authority to approve or disapprove executive branch expenditures, that purported authority
violates the separation of powers doctrine. Opinion of the Justices, 129 N.H. 714, 720 (1987);
see, e.g., Advisory Opinion In Re Separation Of Powers, 295 S.E.2d 589 (N.C. 1982) (the statute
which purports to give the joint legislative committee on governmental operations power to
control major line item budget transfers proposed to be made by the Governor as administrator of
the budget exceeds the power given to the legislative branch, constitutes an encroachment upon
the responsibility imposed on the Governor to administer the budget, and violates the principle of
separation of governmental power); Anderson v. Lamm, 579 P.2d 620, 627 (Colo. 1978) (“[T]he
requirement for Joint Budget Committee approval unconstitutionally infringes upon the
executive's power to administer appropriated funds.”); State ex rel Schneider v. Bennett, 547
P.2d 786, 797 (Kan. 1976) (State Finance Council overseeing use of budget appropriations held
to be an unconstitutional encroachment on powers of the executive): In re Opinion of the Justices
to the Governor, 341 N.E.2d 254, 257 (Mass. 1976) (“[T]o entrust the executive power of
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expenditure to legislative officers is to violate [the mandated separation of powers] by
authorizing the legislative department to exercise executive power.”); State ex rel Meyer v. State
Board, 176 N.W.2d 920, 926 (Neb. 1970) (“[The legislature] cannot through the power of
appropriation exercise or invade the constitutional rights and powers of the executive branch of
the government. It cannot administer the appropriation once it has been made.”); People v.
Tremaine, 168 N.E. 817, 827 (N.Y. 1929) (Crane, J., concurring) (holding unconstitutional a
requirement that a legislative committee sit with the governor in decisions regarding spending of
money on state buildings (see separate opinion of Justice Crane)).
Moreover, the Joint Legislative Fiscal Committee is not of constitutional dimension. It is
a creature of statute – RSA 14:30-a – which consists of ten members, five from the each of the
New Hampshire House and Senate. RSA 14:30-a, I. The Fiscal Committee is not the legislature.
It is a joint committee of the legislature. Through statute, the legislature has specifically
delineated the Fiscal Committee’s functions. First, the committee shall “assist, advise, and
supervise the work of the legislative budget assistant,” including “the discretion to investigate
and consider any matter relative to the appropriations, expenditures, finances, revenues or any of
the fiscal matters of the state.” RSA 14:30-a, II. Second, the Fiscal Committee “shall consider
recommendations proposed to it by the legislative performance audit and oversight committee. . .
.” RSA 14:30-a, III. Third, the Fiscal Committee must approve the expenditure of any non-state
funds in excess of $100,000, including federal aid, “which under state law require the approval
of the governor and council for acceptance and expenditure.” RSA 14:30-a, VI (sections IV and
V have been repealed). The Fiscal Committee cannot appropriate, and its existence is not
established by or referenced in the New Hampshire Constitution. Rather, it serves solely as a
“legislative watchdog,” with the power to review spending, investigate, and audit expenditures.
18
CITE (to an OJ I think, but there is a case that says this). How state money is spent to carry out
legislative directives is an exclusively executive branch function. Neither the General Court nor
its Fiscal Committee may usurp that executive function. N.H. Const. Pt. I, Art. 37.
Thus, the plaintiffs’ arguments that RSA 14:30-a, VI, RSA 9:13-d, RSA 9:16-a, and RSA
Chapter 124 apply in this case in the manner they suggest would impede a clear delegation of the
Governor’s expenditure powers. The Fiscal Committee cannot, consistent with Part I, Article 37,
wield what amounts to a legislative veto over the Governor’s spending decisions. See Opinion of
the Justices, 129 N.H. at 718–19. Consequently, if RSA 14:30-a, VI, RSA 9:13-d, RSA 9:16-a,
and RSA Chapter 124 operate as the plaintiffs contend—and they do not for the reasons stated
previously—they violate the separation-of-powers doctrine and cannot be enforced.
Accordingly, the Governor’s acceptance of the $1.25 billion in federal CARES Act funds
and other federal funds and his proposed expenditure of them and other unappropriated funds
pursuant to the General Court’s grant of authority to him in RSA 4:45, III, RSA 4:47, and RSA
21-P:43, without Fiscal Committee approval does not violate Part I, Article 37.
19
CONCLUSION
Even taking the allegations in the plaintiffs’ second amended complaint as true, the
plaintiffs’ second amended complaint fails to state a claim upon which relief can be granted.
None of the statutes the plaintiffs advance control or otherwise restrict or augment the
emergency powers the legislature conferred upon him through RSA 4:45. RSA 4:47, and RSA
21-P:43. As a result, the plaintiffs’ claims for a writ of mandamus (Count I), writ of prohibition
(Count II), and a declaration (Count III), all of which are premised on violations of RSA 14:30-a,
VI, RSA 9:13-d, RSA 9:16-a, and RSA 124, fail to state claims upon which relief can be granted.
Additionally, because the Governor is exercising statutory authority lawfully granted to him by
the General Court under RSA 4:45, RSA 4:47, and RSA 21-P:43, and is expending funds
consistent with Part II, Articles 41 and 56 consistent with those legislative directives, there is no
violation of Part I, Article 37. Count IV of the second amended complaint should therefore also
be dismissed, leaving no viable claims in the case, as Count V, which seeks only expedited
preliminary injunctive relief, has already been denied.
20
Accordingly, for all of the above reasons, the plaintiffs’ second amended complaint
should be dismissed with prejudice or, alternatively, summary judgment should enter for the
Governor.
Respectfully submitted,
CHRISTOPHER T. SUNUNU,
GOVERNOR OF THE STATE OF NEW
HAMPSHIRE
By his attorneys,
GORDON J. MACDONALD
ATTORNEY GENERAL
July 10, 2020 /s/ Daniel E. Will
Daniel E. Will, Bar #12176
Solicitor General
/s/Anthony J. Galdieri
Anthony J. Galdieri, Bar #18594
Senior Assistant Attorney General
/s/Sean R. Locke
Sean R. Locke, Bar #265290
Assistant Attorney General
New Hampshire Department of Justice
Office of the Attorney General
33 Capitol Street, Concord, NH 03301-6397
(603) 271-3650
21
CERTIFICATE OF SERVICE
I, Daniel E. Will, hereby certify that a copy of the foregoing objection to plaintiffs’
motion for an expedited preliminary injunction and incorporated memorandum of law in support
of same, was sent via the court’s e-filing system to the following counsel of record:
Gregory L. Silverman, Esquire, counsel for Senator Lou D’Allesandro, and
Senate President Donna Soucy
Paul Twomey, Esquire, counsel for Representative Mary Jane Wallner, and
Speaker of the House of Representatives Stephen Shurtleff
Date: July 10, 2020 /s/ Daniel E. Will
Daniel E. Will