STATE OF NEW HAMPSHIRE

ROCKINGHAM COUNTY SUPERIOR COURT

Docket No. 218-2020-CV-00602

SHAWN DEVINE, individually, and on behalf of

R.W.D., his child

Plaintiffs

v.

GOVERNOR CHRISTOPHER T. SUNUNU, In his Official Capacity,

NEW HAMPSHIRE DEPARTMENT OF EDUCATION, SALEM SCHOOL DISTRICT,

SCHOOL ADMINISTRATIVE UNIT #57

Defendants

VERIFIED AMENDED COMPLAINT FOR DECLARATORY JUDGMENT, INJUNCTIVE RELIEF, AND DAMAGES1

Plaintiffs Shawn Devine, individually, and on behalf of R.W.D., his child, bring this

Verified Amended Complaint for Declaratory Judgment, Injunctive Relief, and Damages against

Defendant Governor Christopher T. Sununu, in his official capacity, Defendant New Hampshire

Department of Education, and Defendant Salem School District, School Administrative Unit

#57, to challenge: (1) RSA 4:45 and 4:47, as they are unconstitutional delegations of legislative

power by the New Hampshire legislature in violation of the New Hampshire Constitution; (2)

three of Governor Sununu’s recent executive orders (Executive Orders 2020-08, 2020-09, and

2020-10), which renewed his declaration of a “state of emergency” through June 26, 2020; and

(3) Governor Sununu’s Emergency Orders #1, #19, and #32, the Department’s “emergency”

amendment to ED 306.18(a)(7), and Salem’s adoption of same, which collectively canceled the

1 Plaintiffs are filing contemporaneously with this Amended Complaint an Emergency Motion for Preliminary Injunction regarding the new Count they are including.

FiledFile Date: 6/16/2020 3:02 PMRockingham Superior Court

E-Filed Document

2

rest of the 2019-2020 school year for all New Hampshire public schools, and substituted in its

place an inadequate procedure for remote instruction that is failing to meet the needs of students

across the state. Plaintiffs also seek relief, including damages, for violation of their

Constitutional rights.

INTRODUCTION

1. “For over two hundred years New Hampshire has recognized its duty to provide

for the proper education of the children in this State. Since 1647, education has been compulsory

in New Hampshire, and our constitution expressly recognizes education as a cornerstone of our

democratic system.” Claremont School Dist. v. Governor, 138 N.H. 183, 192 (1993)

(“Claremont I”). “[I]n New Hampshire a free public education is at the very least an important,

substantive right.” Id. Indeed, “a constitutionally adequate public education is a fundamental

right.” Claremont School Dist. v. Governor, 142 N.H. 462, 473 (1997) (“Claremont II”)

(emphasis added).

2. The New Hampshire state government, however, has ignored these requirements

since the outbreak of the Coronavirus. Invoking a feigned “public health” crisis under an

unconstitutional delegation of legislative power, Governor Sununu exceeded his statutory

emergency powers, swept aside the Plaintiffs’ Constitutional rights, and cancelled the rest of the

2019-2020 school year. Since March 2020, the Governor issued several executive and

emergency orders that forced the shutdown of the school year, under the guise of “social

distancing” requirements and other mitigation measures in response to the Coronavirus and in

the name of preserving the public health of the population in the state.

3. Soon after enacting these measures, Governor Sununu posted the following on his

Twitter account:

3

4. On the morning of May 30, 2020, an estimated several hundred to over a thousand

people marched in downtown Manchester, shoulder-to-shoulder, to protest the death of George

Floyd, disregarding the Governor’s social distancing guidelines, limit on public gatherings, and

stay-at-home restrictions entirely.2

5. On June 1, 2020, Governor Sununu appeared to endorse another gathering

supporting Mr. Floyd that also violated the restrictions above he has imposed on the state:

2 https://www.wmur.com/article/thousands-march-in-manchester-to-protest-death-of-george-floyd/32719310

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6. These social media posts demonstrate the Governor’s abject arbitrariness and

absence of any viable rationale for the numerous, often contradictory, restrictions he has placed

on New Hampshire businesses, schools, churches, and everyday activities in response to the

Coronavirus.

7. “There is no pandemic exception” to the Plaintiffs’ Constitutional rights. Berean

Baptist Church v. Governor Roy A. Cooper, III, No. 4:20-CV-81-D, at *2 (E.D.N.C. May 16,

2020). “The Constitution is not suspended when the government declares a state of disaster.”

In re Salon a la Mode, et al., No. 20-0340, at *3 (Tex. May 5, 2020) (Blacklock, J., concurring)

(quoting In re Abbott, No. 20-0291, 2020 WL 1943226, at *1 (Tex. Apr. 23, 2020)) (emphasis

added). “Government power cannot be exercised in conflict with the[] constitution[], even in a

pandemic.’” In re Salon a la Mode, et al., No. 20-0340, at *3 (emphasis added). “[A]ll of us –

the judiciary, the other branches of government, and our fellow citizens – must insist that

every action our governments take complies with the Constitution, especially now. If we

tolerate unconstitutional government orders during an emergency, whether out of expediency or

fear, we abandon the Constitution at the moment we need it most.” Id. (emphasis added)

8. “Any government that has made the grave decision to suspend the liberties of a

free people during a health emergency should welcome the opportunity to demonstrate – both to

its citizens and to the courts – that its chosen measures are absolutely necessary to combat a

threat of overwhelming severity. The government should also be expected to demonstrate that

less restrictive measures cannot adequately address the threat. . . . When the present crisis

began, perhaps not enough was known about the virus to second-guess the worst-case

projections motivating the lockdowns. As more becomes known about the threat and about the

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less restrictive, more targeted ways to respond to it, continued burdens on constitutional

liberties may not survive judicial scrutiny.” Id. (emphasis added)

9. New Hampshire, like many states, is confronting this question. While Governor

Sununu’s orders in March 2020 responded to an emerging pandemic about which we had limited

information, New Hampshire no longer has an “emergency,” or even a threat of one, that justifies

the continued shutdown of its schools and economy. “Emergency” measures that appeared to be

Constitutionally appropriate in March are less appropriate now, given the wealth of information

available that demonstrates New Hampshire’s healthcare system never came close to reaching

capacity, and the Coronavirus is not as deadly as previously feared. These measures may also be

increasing transmission rates and prolonging the epidemic.

10. In addition to these general concerns, the Defendants’ actions in this case

concerning education challenge the very fabric of New Hampshire’s constitutional republic: One

of the Department of Education’s own rules (ED 306.18(a)(7)) limits remote instruction to five

days per school year: On March 12, 2020, the day before the Governor first declared a state of

emergency (March 13, 2020), the Department claims it “adopted” an “emergency” amendment to

that rule that removed that five-day limit. This “emergency” amendment paved the way, two

days later on March 15, 2020, for the Governor to issue Emergency Order #1, the first of three

Emergency Orders ultimately directing school districts to implement remote instruction for the

remainder of the school year. In “amending” ED 306.18(a)(7), however, the Department did not

follow rulemaking procedures required by RSA 541-A and its own rules (ED 214.01-06): the

Department failed to provide notice to the public of the “emergency” amendment or address it at

a public hearing. Instead, the Department first communicated this “emergency” amendment to

the public on March 18, 2020, six days after it claims it was adopted, when it published it on its

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website. Making matters worse, Governor Sununu was obviously aware of the Department’s

secret “adoption” of this “emergency” amendment to ED 306.18(a)(7) because he specifically

referenced it in Emergency Order #1 on March 15, three days before the public learned of it.

This uncomfortable fact also suggests Governor Sununu knew of its purported “adoption” much

earlier because, without this amendment, Emergency Order #1 and its directive to implement

remote instruction for more than five days would not have been possible. This sudden change to

remote instruction in schools also violates citizens’ fundamental right to an education under the

New Hampshire Constitution.

11. The fact that two high-level departments in our state government (the Governor’s

office and the Department of Education) fundamentally altered the way in which school districts

educate our children – literally overnight without a hint of explanation or notice to the public –

poses serious questions about transparency and whether the rule of law still exists during this

feigned and prolonged “public health emergency.”

12. Plaintiffs, among other remedies, principally seek a declaratory judgment and

injunctive relief stating that RSA 4:45 and 4:47 (the statutes providing Governor Sununu with his

emergency powers) violate the New Hampshire Constitution, and Governor Sununu’s Executive

Orders 2020-08, 2020-09, and 2020-10 and Emergency Orders #1, #19, and #32 are null and

void because they exceed his statutory emergency powers, violate other applicable statutes

governing education, and violate Plaintiffs’ Constitutional rights. Plaintiffs also seek a

declaratory judgment and injunctive relief stating that the Department’s “emergency”

amendment to ED 306.18(a)(7) is null and void (as well as any further attempts to modify that

purported amendment), and that Salem should be enjoined from implementing any further

remote instruction.

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PARTIES

13. Plaintiff Shawn Devine is an individual who resides at 1 Surrey Lane, Salem,

New Hampshire 03079.

14. Plaintiff R.W.D. is an individual who resides at 1 Surrey Lane, Salem, New

Hampshire 03079.

15. Defendant Christopher T. Sununu is the Governor of New Hampshire and is being

sued in his official capacity. The address of the Governor’s address is 107 North Main Street,

Concord, New Hampshire 03301.

16. Defendant New Hampshire Department of Education is a state agency with a

principal place of business at 101 Pleasant Street, Concord, New Hampshire 03301.

17. Defendant Salem School District, School Administrative Unit #57, is a New

Hampshire School District with a principal place of administrative located at 38 Geremonty

Drive, Salem, New Hampshire 03079.

JURISDICTION AND VENUE

18. This Court has subject matter jurisdiction over this Complaint pursuant to RSA

141-C, RSA 491:7, RSA 491:22, RSA 498:1, and RSA 541-A:23, III.

19. The Court has personal jurisdiction over Defendants because Defendants are

located in New Hampshire, and Defendants’ conduct occurred in New Hampshire. In Claremont

I, the New Hampshire Supreme Court stated, “[t]he right to an adequate education mandated by

the constitution is not based on the exclusive needs of a particular individual, but rather is a right

held by the public to enforce the State's duty. Any citizen has standing to enforce this right.”

138 N.H. at 192.

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20. Venue is appropriate in Rockingham County pursuant to RSA 507:9 because

Plaintiffs reside in this county.

FACTUAL ALLEGATIONS

A. The Plaintiffs

21. Mr. Devine resides with his family in Salem, New Hampshire. His child, R.W.D.,

is currently a sophomore at Salem High School, an excellent student, and plays soccer at a very

high level. R.W.D. is anticipating attracting attention from college athletic recruiters next school

year (2020-2021), which would be R.W.D.’s junior year at Salem High. R.W.D. was

anticipating leveraging R.W.D.’s skills and success on the soccer field to obtain an athletic

scholarship for college.

B. The Novel Coronavirus

22. In late 2019 or early 2020, a novel viral infection known as the Novel

Coronavirus (COVID-19) began circulating in the United States, first on the west coast and then

on the east coast. Dozens of residents in two nursing homes in Washington state became ill and

died; they were confirmed to have been infected with COVID-19, the aforementioned novel

virus that originated in Hubei province, China. Other cases soon began to appear throughout the

country.

23. The various models earlier this year suggested this virus would wreck disaster on

the United States, spreading rapidly and causing millions of deaths. On March 16, 2020, a 20-

page report from Neil Ferguson’s team at Imperial College London “warned that an uncontrolled

spread of the disease could cause as many as 510,000 deaths in Britain” and “up to 2.2 million

deaths in the United States.”3 This report “triggered a sudden shift in the government’s

3 https://www.nytimes.com/2020/03/17/world/europe/coronavirus-imperial-college-johnson.html

9

comparatively relaxed response to the virus” and “influenced the White House to strengthen its

measures to isolate members of the public.”4

C. New Hampshire Recognizes the People are the Original Sovereigns

24. New Hampshire recognizes that the rights of its citizens come not from

government, but from the mere act of being born, and that, because of that revolutionary

principle, the people govern themselves. This idea is enshrined in several provisions in the New

Hampshire Constitution:

• “All men are born equally free and independent; Therefore all government of

right originates from the people is founded in consent, and instituted for the

general good.” N.H. Const., Part 1, Art. 1.

• “All men have certain natural, essential, and inherent rights among which are, the

enjoying and defending life and liberty; acquiring, possessing, and protecting,

property; and, in a word, of seeking and obtaining happiness.” N.H. Const., Part

1, Art. 2.

• “All power residing originally in, and being derived from, the people, all the

magistrates and officers of government are their substitutes and agents, and at all

times accountable to them.” N.H. Const., Part 1, Art. 8.

25. Nearly 140 years ago, the New Hampshire Supreme Court acknowledged this

idea: “All authority is inherent in the people, and they are the original sovereigns.” State v.

Hayes, 61 N.H. 264, 268 (1881) (emphasis added).

26. It is no secret that the New Hampshire Constitution was written for a moral

people: it describes the rights above as “natural” and “unalienable,” N.H. Const., Part 1, Art. 3,

4 Id.

10

4, and it premises its own existence on a social contract between people and a government whose

purpose is to protect those rights: “When men enter into a state of society, they surrender up

some of their natural rights to that society, in order to ensure the protection of others; and,

without such an equivalent, the surrender is void.” Id., Part 1, Art. 3.

27. This social contract represented an invaluable means, not to bestow rights on

people, but to protect the rights they already possessed.

D. The New Hampshire Legislature’s Limited Authority to Delegate Powers to the Governor

28. One area of such protection were the constraints the New Hampshire Constitution

placed on the state legislature. New Hampshire, like many states, has a republican form of

government modeled after the government of the United States, with three branches: the

executive (consisting of the Governor and other elected officers), the legislative (known as the

“General Court,” which includes the Senate and House of Representatives), and the judiciary

(consisting of the New Hampshire Supreme Court and lower courts).

29. These branches are separate and independent: “the Legislative, Executive, and

Judicial, ought to be kept as separate from, and independent of, each other, as the nature of a free

government will admit, or as is consistent with that chain of connection that binds the whole

fabric of the Constitution in one indissoluble bond of union and amity.” N.H. Const., Part I, Art.

37.

30. Under this form of government, the power to enact laws is “vested only in the

legislature by force of the constitution.” Ferretti v. Jackson, 8 N.H. 296, 297 (1936); see also

Hayes, 61 N.H. at 264 (“[T]he power of general state legislation cannot be delegated by the

senate and house of representatives, in whom it is vested by the constitution.”).

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31. The New Hampshire Constitution states “[t]he Supreme Legislative Power, within

this State, shall be vested in the Senate and House of Representatives, each of which shall have a

negative on the other.” N.H. Const., Part 2, Art. 2.

32. The Constitution provides the “General Court” (the Senate and House of

Representatives) the “full power and authority . . . , from time to time, to make, ordain, and

establish, all manner of wholesome and reasonable orders, laws, statutes, ordinances, directions,

and instructions, either with penalties, or without, so as the same be not repugnant or contrary to

this constitution, as they may judge for the benefit and welfare of this state, and for the

governing and ordering thereof . . . .” N.H. Const., Part 2, Art. 5.

33. Further, only the state legislature can suspend these laws: “The power of

suspending the laws, or the execution of them, ought never to be exercised but by the

Legislature, or by authority derived therefrom, to be exercised in such particular cases only as

the Legislature shall expressly provide for.” N.H. Const., Part 1, Art. 29.

34. The “supreme” power of the legislature to make laws is significant: “By the

constitution, legislative power is vested . . . in the senate and house of representatives. And

without a well established ground of exception, the senate and house are as incapable of

delegating their legislative power, as the governor and council are of delegating the power of

pardon, or the court of delegating the power of deciding the constitutional question raised in

these cases.” Gould v. Raymond, 59 N.H. 260, 276 (N.H. 1879). This is because – a call back to

the foundational idea above – “[a]ll power is derived from the people, and all magistrates and

officers of government are their agents, and at all times accountable to them.” Id. (citing N.H.

Const., Part I, Art. 8) (emphases added).

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35. The same concern exists at the federal level: “Since the federal government is

purely a creature of the powers delegated by the people to it under the Constitution, the vesting

of broad, quasi-legislative authority in the executive branch represents a troubling departure from

the system of separated powers that the Founding Fathers considered a necessary condition for

the preservation of liberty.” Ron DeSantis,5 Dreams From Our Founding Fathers: First

Principles in the Age of Obama, Loc. 3451 (2011). Accordingly, “legislation th[at] goes beyond

the power of Congress is void because elected officials cannot exercise authority not delegated to

them by the people via the Constitution.” Id.

36. The New Hampshire Supreme Court holds the same view: In elaborating on the

power of the legislature to delegate legislature authority to a municipality, for example, the Court

has explained, “these agents have not a general authority to avoid their official responsibility by

relegating their duties to their assignees. If the legislative seats were filled with substitutes, it

would not be claimed that a bill passed by them was a law. . . . Government by an irresponsible

master would be no more illegal than government by sub-agents not selected by the people or by

their authority. Neither would be government by the people. The power of the legislature to

delegate legislative power to towns in local affairs is exceptional.” Gould, 59 N.H. at 276.

37. When the people “invest a given body or person with any portion of this supreme

authority, as, for instance, with the authority to make laws, . . . they divest themselves of such

power, and they cannot resume it unless the power of resumption be expressly reserved in the

constatory instrument. . . . Could the legislature delegate this authority, it would avoid all

responsibility for its acts, and it would be able to invest a person or body with the entire

legislative power; and the object of the people in creating a legislature would be entirely

5 Mr. DeSantis is now the Governor of Florida.

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frustrated, as it would cease to be a representative body, and would become a mere proposer of

laws for the consideration and final action of some third person or body.” Hayes, 61 N.H. at

268.

38. “[A] sweeping and general delegation of power with uncontrolled discretion even

in a narrow field exceeds constitutional limits.” Smith Ins., Inc. v. Grievance Cmte., 120 N.H.

856, 861 (N.H. 1980). This delegation would rob the public of its ability to hold the legislature

accountable for a law it has enacted: “[A]s an act can be repealed only by the power creating it,

one legislature would be able to encroach upon the privileges and limit the authority of all

succeeding legislatures. But an act is unconstitutional which limits the authority of any

subsequent legislature.” Hayes, 61 N.H. at 268 (emphasis added).

39. Although the New Hampshire Supreme Court has acknowledged that the

legislature’s “supreme” legislative power does not mean it has the “sole and exclusive power” to

legislate, there remains a “distinction between the valid delegation of subsidiary legislative

power and the invalid transfer of primary legislative power.” Ferretti, 88 N.H. at 301.

40. “The constitution permits the legislature to empower the executive department to

enact legislation of a subordinate nature to a general law to meet the necessities of government.”

Opinion of the Justices, 96 N.H. 517, 525 (1950). “[A] law is invalid,” however, “when its

commands are in such broad terms as to leave the enforcement agency with unguided and

unrestricted discretion in the assigned field of its activity.” Ferretti, 88 N.H. at 302. If it is

“devoid of either a declared policy or a prescribed standard laid down by the legislature, it

represents an unconstitutional delegation of legislative power by the General Court in violation

of N.H. CONST. pt. 1, art. 37.” Smith Ins., 120 N.H. at 861; see also Velishka v. Nashua, 99

N.H. 161, 167 (1954) (“[I]n order to avoid the charge of unlawfully delegated legislative power,

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the statute must lay down basic standards and reasonably definite policy for the administration of

the law.”).

41. Thus, under these principles, the New Hampshire legislature may enact a law that

delegates some subsidiary legislative power to the executive branch, but that law must articulate

a specific policy and prescribed standard by which the authority it delegates may be measured,

and it cannot provide broad commands that provide the executive with unfettered discretion in

the area that the law covers. See id

E. The Constitutional and Statutory Rights to a Public Education in New Hampshire

42. The New Hampshire Constitution states, “Knowledge and learning, generally

diffused through a community, being essential to the preservation of a free government; and

spreading the opportunities and advantages of education through the various parts of the country,

being highly conducive to promote this end; it shall be the duty of the legislators and magistrates,

in all future periods of this government, to cherish the interest of literature and the sciences, and

all seminaries and public schools, to encourage private and public institutions, rewards, and

immunities for the promotion of agriculture, arts, sciences, commerce, trades, manufactures, and

natural history of the country; to countenance and inculcate the principles of humanity and

general benevolence, public and private charity, industry and economy, honesty and punctuality,

sincerity, sobriety, and all social affections, and generous sentiments, among the people.” Part 2,

Art. 83, N.H. Const.

43. Based on this language, the New Hampshire Supreme Court has held “a

constitutionally adequate public education is a fundamental right.” Claremont II, 142 N.H. at

473.

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44. Chapter 189 governs school boards, superintendents, and teachers and the

requirements that apply to them. RSA 189:1 and 189:24 dictate the general standards for

education in New Hampshire. RSA 189:1 states “[t]he school board of every district shall

provide standard schools for at least 180 days in each year, or the equivalent number of hours

as required in the rules of the department of education, at such places in the district as will

best serve the interests of education and give to all the pupils within the district as nearly equal

advantages as are practicable.” (Emphasis added.) RSA 189:24 states “[a] standard school is

one approved by the state board of education, and maintained for at least 180 days in each year,

or the equivalent number of hours as required in the rules of the department of education, in a

suitable and sanitary building, equipped with approved furniture, books, maps and other

necessary appliances, taught by teachers, directed and supervised by a principal and a

superintendent, each of whom shall hold valid educational credentials issued by the state

board of education, with suitable provision for the care of the health and physical welfare of

all pupils. A standard school shall provide instruction in all subjects prescribed by statute or by

the state board of education for the grade level of pupils in attendance.” (Emphasis added.)

45. The New Hampshire Department of Education promulgated more specific rules to

effectuate these general requirements. For example, ED 306.18 governs the requirements

concerning instructional time a school district must maintain for kindergarten, elementary,

middle, and high school. ED 306.18(a)(1) states “[t]he school district shall maintain in each

elementary school, a school year of at least 945 hours of instructional time and in each

kindergarten at least 450 hours of instructional time.” The next section, ED 306.18(a)(2), states

“[t]he school district shall maintain in each middle and high school, a school year of at least 990

hours of instructional time.”

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46. Remote learning is permitted under the Department’s rules, but previously only

for a limited time: “A school district may submit a plan to the commissioner that will allow

schools to conduct instruction remotely for up to 5 days per year when the school has been

closed due to inclement weather or other emergency. The plan shall include procedures for

participation by all students. Academic work shall be equivalent in effort and rigor to typical

classroom work. There shall be an assessment of all student work for the day. At least 80

percent of students shall participate for the day to count as a school day.” ED 306.18(a)(7)

(emphases added).

47. If the Department wishes to modify any of its rules (including the rules above) or

create new rules, it must follow the statutory procedure for rulemaking in RSA 541-A and ED

214. Chapter 541-A “shall govern all agency rulemaking procedures, hearings, and appeals.”

RSA 541-A:41. ED 214 more specifically governs the Department’s public comment hearings

for rulemaking.

48. RSA 541-A:3 states, “[e]xcept for interim or emergency rules, an agency shall

adopt a rule” by seven-step process:

I. Filing a notice of the proposed rule under RSA 541-A:6, including a fiscal impact statement and a statement that the proposed rule does not violate the New Hampshire constitution, part I, article 28-a; II. Providing notice to occupational licensees or those who have made timely requests for notice as required by RSA 541-A:6, III; III. Filing the text of a proposed rule under RSA 541-A:10; IV. Holding a public hearing and receiving comments under RSA 541-A:11; V. Filing a final proposal under RSA 541-A:12; VI. Responding to the committee when required under RSA 541-A:13; and VII. Adopting and filing a final rule under RSA 541-A:14.

49. The procedure above references Part I, Article 28-a of the New Hampshire

Constitution, which states, “The state shall not mandate or assign any new, expanded or modified

programs or responsibilities to any political subdivision in such a way as to necessitate additional

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local expenditures by the political subdivision unless such programs or responsibilities are fully

funded by the state or unless such programs or responsibilities are approved for funding by a

vote of the local legislative body of the political subdivision.”

50. The rest of RSA 541-A then provides further requirements for the rulemaking

process, including, but not limited to, the specific requirements for how a rule should be

proposed (RSA 541-A:3-a), the requirements for a fiscal impact statement (RSA 541-A:5), 20

days’ notice of the intent to hold a public hearing and receive comments on the proposed rule

(RSA 541-A:6), the procedures for a public hearing (RSA 541-A:11), the filing process and

requirements for the final proposed rule (RSA-A:12), and the rule’s final adoption (RSA-A:14).

51. Then, as noted above, the Department’s own rules provide even more specific

procedures for the public hearings it is required to hold during the rulemaking process. See ED

214.01-06.

52. The Department is permitted to “adopt an emergency rule if it finds . . . that an

imminent peril to the public health or safety requires adoption of a rule with less notice than is

required under RSA 541-A:6.” RSA 541-A:18, I (emphases added). Some, but not all, of the

requirements for rulemaking are eliminated when adopting an emergency rule: “The rule may be

adopted without having been filed in proposed or final proposed form and may be adopted after

whatever notice and hearing the agency finds to be practicable under the circumstances. The

agency shall make reasonable efforts to ensure that emergency rules are made known to persons

who may be affected by them.” Id. Thus, notice (just not 20 days’ notice) and a public hearing

are still required. See id. Moreover, RSA 541-A:18 does not eliminate the requirement of a

fiscal impact statement or a statement that the proposed rule does not violate Part I, Article 28-a

of the New Hampshire Constitution. See id.

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53. Even with the somewhat relaxed rulemaking requirements above, an emergency

rule that is adopted still must include:

(a) The name and address of the agency. (b) The statutory authority for the rule. (c) Whether the intended action is an adoption, amendment, or repeal. (d) The rule number and title. (e) A signed and dated statement by the adopting authority explaining the nature of the basis for the emergency rule, including an explanation of the effect upon the state if the emergency rule were not adopted. (f) A listing of people, enterprises, and government agencies affected by the rule. (g) The name, address, and telephone number of an individual in the agency able to answer questions on the emergency rule.

RSA 541-A:18, III.

54. RSA 541-A:18 states further: “[e]mergency rules adopted under this section shall

not be adopted solely to avoid the time requirements of this chapter. The committee may

petition the adopting agency to repeal the rule if it determines that the statement of emergency

required by RSA 541-A:18, III(e) is inadequate and does not demonstrate that the rule is

necessary to prevent an imminent peril to the public health or safety.” RSA 541-A:18, IV.

F. Governor Sununu’s Emergency Powers

55. In the wake of the terrorist attacks on September 11, 2001, the New Hampshire

General Court enacted legislation giving the Governor broad authority to take certain action

during a “state of emergency.” This authority was codified in RSA 4:45, 4:47, 21-P:35, 21-P:37,

and 21-P:43.

56. RSA 4:45 defines what constitutes a “state of emergency,” and RSA 4:47 defines

and explains the “emergency management powers” the Governor may access after declaring a

“state of emergency” under RSA 4:45.

57. RSA 4:45, I states, “[t]he governor shall have the power to declare a state of

emergency . . . by executive order if the governor finds that a natural, technological, or man-

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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.”

58. A “state of emergency” is defined as 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.

59. “A state of emergency shall terminate automatically 21 days after its declaration

unless it is renewed under the same procedures set forth in paragraph I of this section.” RSA

4:45, II. “The governor may, by executive order, renew a declaration of a state of emergency as

many times as the governor finds is necessary to protect the safety and welfare of the inhabitants

of this state.” Id.

60. “The legislature may terminate a state of emergency by concurrent resolution

adopted by a majority vote of each chamber. The governor’s power to renew a declaration of a

state of emergency shall terminate upon the adoption of a concurrent resolution . . . ; provided,

however, that such resolution shall not preclude the governor from declaring a new emergency

for different circumstances . . . .” RSA 4:45, II(c).

61. This is not a mandate, however, for the legislature to terminate the declaration, or

for the Governor to seek its approval. See id. Unlike other states, New Hampshire’s statute

contains no true “check” on the Governor’s declaration, or renewal of a declaration, of a “state of

emergency.” For example, in Illinois, the Governor may declare a state of emergency, and may

exercise certain emergency powers (as in New Hampshire), but only for 30 days. 20 ILCS

3305/7. Several other states provide similar time limits on a governor’s state of emergency

20

declaration or require he or she seek legislative or other approval for an extension beyond that

time limit. See, e.g., Alaska Stat. Ann. § 26.20.040 (30 day limit); Kan. Stat. Ann. § 48-924 (15

day limit); Minn. Stat. § 12.31 (30 day limit, subject to extension by executive council up to 30

days); Utah Code Ann. § 53-2a-206 (30 days, subject to extension by legislative approval); 23

V.I.C. § 1005 (30 day limit, subject to one 30-day extension by governor, and then approval by

legislature for additional extension); Wash. Rev. Code Ann. § 43.06.220 (30 day limit, subject to

extension by legislative approval); Wis. Stat. Ann. § 323.10 (60 day limit, subject to extension

by legislative approval).

62. Rather, in New Hampshire, if the legislature takes no action, only the Governor

can terminate a “state of emergency” declaration: “If the governor finds that maintaining the

state of emergency is no longer justified, the governor shall issue an executive order terminating

the state of emergency.” RSA 4:45, II(b).

63. RSA 4:45 also contains no provision that restricts the Governor’s power to veto a

concurrent resolution adopted by the legislature terminating a “state of emergency” declaration.

64. “During the existence of a state of emergency, and only for so long as such state

of emergency shall exist, the governor shall have and may exercise the following additional

emergency powers: . . . 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 4:45,

III(e).

65. In addition, “[t]he governor shall have emergency management authority as

defined in RSA 21-P:35, V, and pursuant to such authority may exercise emergency management

powers including: . . . The power to make, amend, suspend and rescind necessary orders, rules

and regulations to carry out the provisions of this subdivision in the event of a disaster beyond

21

local control.” RSA 4:47, III. “Emergency management” is defined as “the preparation for and

the carrying out of all emergency functions, including but not limited to emergency response and

training functions, to prevent, minimize, and repair injury or damage resulting from the

occurrence or threat of widespread or severe damage, injury, or loss of life or property resulting

from any natural or human cause, including but not limited to fire, flood, earthquake, windstorm,

wave actions, technological incidents, oil or chemical spill, or water contamination requiring

emergency action to avert danger or damage, epidemic, air contamination, blight, drought,

infestation, explosion, terrorist act, or riot.” RSA 21-P:35, V.

G. The Government’s Emergency Measures to Address the Coronavirus

66. Pursuant to the powers above, Governor Sununu issued a series of executive

orders and emergency orders in March, April, and May 2020 to address the outbreak of the

Novel Coronavirus (COVID-19).

67. On March 13, 2020, Governor Sununu issued Executive Order 2020-04 (“An

order declaring a state of emergency due to Novel Coronavirus (COVID-19)”), which declared a

state of emergency for the entire state of New Hampshire. N.H. Exec. Order No. 2020-04 (Mar.

13, 2020).6 That Order stated, “Pursuant to RSA 4:45 and RSA 4:47, while this Order is in

effect, additional temporary orders, directive, rules and regulations may be issued either by the

Governor or by designated State officials with written approval of the Governor.” Id. ¶ 18.

68. Two days later, on March 15, 2020, Governor Sununu issued Emergency Order

#1 Pursuant to Executive Order 2020-04. N.H. Emer. Order No. 1 (Mar. 15, 2020).7 That Order

stated “[a]ll public K-12 school districts within the state of New Hampshire shall transition to

temporary remote instruction and support for a three week period beginning Monday, March

6 https://www.governor.nh.gov/news-media/orders-2020/documents/2020-04.pdf 7 https://www.governor.nh.gov/sites/g/files/ehbemt336/files/documents/emergency-order-1.pdf

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16th, 2020 and ending Friday, April 3rd, 2020.” Id. ¶ 1. It directed “[e]ach school district” to

“develop a temporary remote instruction and support plan pursuant to emergency rule ED

306.18(a)(7).” Id. ¶ 2 (emphasis added). “Beginning Monday, March 16, 2020, all public K-12

schools shall be closed to students to allow each school district to develop remote instruction and

remote support capacity and transition to temporary remote instruction and support.” Id. ¶ 3.

Then, “[e]ach school district shall begin providing temporary remote instruction and support to

all students no later than Monday, March 23rd, 2020, with such temporary remote instruction

and support to continue through Friday, April 3rd, 2020.” Id. ¶ 4.

69. Emergency Order #1 cites and relies on ED 306.18(a)(7) in directing school

districts to implement remote instruction for 10 days, five more than the five-day-limit provided

in the rule. Notably, although Governor Sununu’s emergency powers include “[t]he power to

make, amend, suspend and rescind necessary orders, rules and regulations to carry out the

provisions of this subdivision in the event of a disaster beyond local control,” see RSA 4:47, III,

Emergency Order #1 did not suspend ED 306.18(a)(7), or the requirements of RSA 189:1 or

RSA 189:24 (both of which require 180 school days).

70. Rather, Emergency Order #1 referenced “emergency rule ED 306.18(a)(7)” not

the original version of the rule. See N.H. Emer. Order No. 1, ¶ 2 (Mar. 15, 2020) (emphasis

added). As fate would have it, three days before Emergency Order #1 was issued and the day

before Governor Sununu’s initial declaration of a “state of emergency” in Executive Order

2020-04, the Department of Education, on March 12, 2020, passed an emergency amendment to

ED 306.18(a)(7) that removed the five-day limit on remote instruction. This “emergency”

23

amendment to, or new version of, ED 306.18(a)(7) was posted and linked to on the Department’s

website, as follows:8

71. When the link on the web page above is clicked, the following PDF document

appears:9

8 https://www.education.nh.gov/who-we-are/division-of-educator-and-analytic-resources/bureau-of-educational-opportunities/public-school-approval-office/remote-instruction 9 https://www.education.nh.gov/sites/g/files/ehbemt326/files/inline-documents/2020/er-ed306-18a7-amend.pdf

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This “emergency rule” does not appear in the Department’s online compendium of

administrative rules and regulations.10 It also does not resemble, in the slightest, a “final rule.”

Rather, it looks like a draft or “proposed rule” (complete with strikethrough and italicized and

bolded insertions) that should have been scheduled for a public hearing.

72. Indeed, upon information and belief, the Department of Education did not follow

any of the procedures for rulemaking in RSA 541-A:3, or even the somewhat relaxed rulemaking

requirements for emergency rules under RSA 541-A:18, when it adopted this “emergency”

amendment to ED 306.18(a)(7), including, but not limited to: failing to provide notice of its

intent to propose this emergency rule, failing to hold a hearing or receive comments on it, failing

to file a fiscal impact statement, and failing to include a statement that the proposed rule does not

violate Part I, Article 28-a of the New Hampshire Constitution. Indeed, the Department’s own

press releases posted on its website11 leading up to the rule’s supposed March 12 adoption do not

mention the proposed rule. Its Agenda and Meeting Materials for its hearings on January 9,

10 https://gencourt.state.nh.us/rules/state_agencies/ed.html 11 https://www.education.nh.gov/who-we-are/commissioners-office/communications/press-releases

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2020, February 13, 2020, March 12, 2020 (the day the emergency rule was adopted), or April 9,

2020, do not mention the proposed rule. The Minutes for the January 9 and February 13

meetings also do not mention it.12 (Curiously, there are no Minutes posted on the Department’s

website for the March 12 or April 9 meetings.) Further, the emergency rule above fails to

comply with all but two of the requirements in RSA 541-A:18, III: it contains only a reference

that it is an amendment, and the rule number and title, but none of the other requirements,

including (most importantly) the statement of emergency in RSA 541-A:18, III(e), and

referenced and emphasized in RSA 541-A:18, IV.

73. Even more alarming: upon information and belief, the Department first published

the web page above containing information about remote instruction, including the link to the

“emergency” amendment to ED 306.18(a)(7),13 on March 18, 2020:

12 https://www.education.nh.gov/who-we-are/state-board-of-education/2020-state-board-meetings 13 https://www.education.nh.gov/who-we-are/division-of-educator-and-analytic-resources/bureau-of-educational-opportunities/public-school-approval-office/remote-instruction

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The date of March 18, 2020, above, to the left of the Google result is the date of publication of

the web page.

74. This means that, given the Department failed to follow rulemaking procedures in

“adopting” the “emergency” amendment to ED 306.18(a)(7), including providing notice to the

public and addressing it at a public hearing, the first time the Department communicated to the

public that it adopted this “emergency” amendment was March 18, six days after the date it

claims it adopted it (March 12).

75. Even worse: Governor Sununu was obviously aware of the “emergency”

amendment to ED 306.18(a)(7) at least three days earlier, on March 15, 2020, because he

referenced it in Emergency Order #1. See N.H. Emer. Order No. 1, ¶ 2 (Mar. 15, 2020).

Governor Sununu’s knowledge of the existence of the “emergency” amendment to ED

306.18(a)(7) several days before the Department communicated it to the public, particularly so

he could include it in Emergency Order #1, suggests he or his office may have coordinated with

the Department in pushing for the “adoption” of the “emergency” amendment without regard for

the rulemaking process. Indeed, without this “emergency” amendment, it would have been

impossible (illegal, actually) to direct school districts to implement remote instruction for more

27

than five days.14 Instead, someone in the Governor’s office and/or the Department determined

an “emergency” amendment to ED 306.18(a)(7) needed to be pushed through as soon as

possible, without notice, so Emergency Order #1 could be issued immediately.

76. Perhaps believing it could escape culpability for this blatant circumvention of the

rulemaking process, the Department then attempted to propose a change to the “emergency”

version of ED 306.18(a)(7), as if it had been validly adopted. The Department recently posted its

Agenda and Meeting Materials for its May 14, 2020, meeting. The Agenda listed an “initial

proposal” for ED 306.18(a)(7):15

14 Alternatively, Governor Sununu could have attempted to suspend ED 306.18(a)(7) pursuant to the emergency powers he acquired under RSA 4:47, III, by declaring a “state of emergency,” but he chose not to do so. 15 https://www.education.nh.gov/sites/g/files/ehbemt326/files/inline-documents/2020-05/state-board-agenda-20200514.pdf

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77. The proposed change to ED 306.18(a)(7) then appeared in the Meeting Materials

for the May 14 meeting:16

78. It is important to note four issues with the above proposal: First, as noted above, it

purports to modify the emergency version of ED 306.18(a)(7) that was purportedly “adopted” on

March 12 in contravention of rulemaking procedures, not the original version of the rule.

Second, it appears very similar in format (i.e., a draft proposal with strikethrough and italicized

and bolded insertions) to the “emergency” amendment the Department claims it adopted on

March 12. Third, if adopted as written above, this new version of ED 306.18(a)(7) would allow

remote instruction year-round and, thus, pave the way for the Governor to cancel school in the

fall of 2020 and direct school districts to continue with remote instruction indefinitely.

(Emergency rules are effective for only 180 days. See RSA 541-A:18, II.) Fourth, since it

appears to be a proposal for a normal rule, not an emergency rule, the Department had to comply

with the rulemaking requirements in RSA 541-A:3, such as, for example, providing 20 days’

notice of the proposed change. See RSA 541-A:6. Once again, it failed to do so: upon

information and belief, the Department did not provide any notice for the proposed change above

to the “emergency” version of ED 306.18(a)(7).

16 https://www.education.nh.gov/sites/g/files/ehbemt326/files/inline-documents/2020-05/state-board-materials-20200514.pdf

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79. Despite the Department’s egregious rulemaking failures and Governor Sununu’s

knowledge of the “adoption” of this “emergency” amendment to ED 306.18(a)(7) before the

public was aware, Governor Sununu and the Department proceeded with this brand new

requirement – passed under cover of night – for remote instruction in New Hampshire public

schools.

80. On March 27, 2020, Governor Sununu then issued Emergency Order #19

Pursuant to Executive Order 2020-04. N.H. Emer. Order No. 19 (Mar. 27, 2020).17 That Order

extended the aforementioned period of remote instruction another month: “All public K-12

school districts within the state of New Hampshire shall maintain their provision of temporary

remote instruction and support, which began pursuant to Emergency Order #1, through Monday,

May 4, 2020.” Id. ¶ 1. Despite the invalidity of the emergency rule shown above, it did not

suspend, let alone mention, ED 306.18(a)(7), or the requirements of RSA 189:1 or RSA 189:24.

81. On April 3, 2020, Governor Sununu then issued Executive Order 2020-05

(“Extension of State of Emergency Declared in Executive Order 2020-04”), which “renew[ed]

the Declaration of a State of Emergency due to Novel Coronavirus (COVID-19) and extend[ed]

the State of Emergency declared in Executive Order 2020-04 for a period of 21 days,” or through

April 24, 2020. N.H. Exec. Order No. 2020-05 (Apr. 3, 2020).18 That Order extended “[a]ll

provisions of Executive Order 2020-04, and all Emergency Orders issued pursuant thereto . . . .”

Id. ¶ 1.

82. Almost two weeks later, on April 16, 2020, Governor Sununu issued Emergency

Order #32 Pursuant to Executive Order 2020-04, as Extended by Executive Order 2020-05. N.H.

17 https://www.governor.nh.gov/sites/g/files/ehbemt336/files/documents/emergency-order-19.pdf 18 https://www.governor.nh.gov/news-media/orders-2020/documents/2020-05.pdf

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Emer. Order No. 32 (Apr. 16, 2020).19 That Order extended the period of remote instruction for

the rest of the school year, effectively canceling the school year: “All public K-12 school

districts within the state of New Hampshire shall maintain their provision of temporary remote

instruction and support, which began pursuant to Emergency Order #1 and was extended

pursuant to Emergency Order #19, through the end of each school district’s school year.” Id. ¶ 1.

Again, despite the invalidity of the emergency rule shown above, it also did not suspend, let

alone mention, ED 306.18(a)(7), or the requirements of RSA 189:1 or RSA 189:24.

83. Governor Sununu did not expressly suspend any law or rule in any of the above

Emergency Orders.

84. On April 24, 2020, Governor Sununu issued Executive Order 2020-08 (“Second

Extension of State of Emergency Declared in Executive Order 2020-04”), which again

“renew[ed] the Declaration of a State of Emergency due to Novel Coronavirus (COVID-19) and

extend[ed] the State of Emergency declared in Executive Order 2020-04 for a period of 21 days,”

or until May 15, 2020. N.H. Exec. Order 2020-08 (Apr. 24, 2020).20 That Order extended “[a]ll

provisions of Executive Order 2020-04 as extended by Executive Order 2020-05, and all

Emergency Orders issued pursuant thereto . . . .” Id. ¶ 1.

85. On May 15, 2020, Governor Sununu issued Executive Order 2020-09 (“Third

Extension of State of Emergency Declared in Executive Order 2020-04”), which again

“renew[ed] the Declaration of a State of Emergency due to Novel Coronavirus (COVID-19) and

extend[ed] the State of Emergency declared in Executive Order 2020-04 for a period of 21 days,”

or until June 5, 2020. N.H. Exec. Order 2020-09 (May 15, 2020).21 That Order extended “[a]ll

19 https://www.governor.nh.gov/sites/g/files/ehbemt336/files/documents/emergency-order-32.pdf 20 https://www.governor.nh.gov/news-media/orders-2020/documents/2020-08.pdf 21 https://www.governor.nh.gov/sites/g/files/ehbemt336/files/documents/2020-09.pdf

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provisions of Executive Order 2020-04 as extended by Executive Orders 2020-05 and 2020-08,

and all Emergency Orders issued pursuant thereto . . . .” Id. ¶ 1.

86. On June 5, 2020, Governor Sununu issued Executive Order 2020-10 (“Fourth

Extension of State of Emergency Declared in Executive Order 2020-04”), which again

“renew[ed] the Declaration of a State of Emergency due to Novel Coronavirus (COVID-19) and

extend[ed] the State of Emergency declared in Executive Order 2020-04 for a period of 21 days,”

or until June 26, 2020. N.H. Exec. Order 2020-10 (June 5, 2020).22 That Order extended “[a]ll

provisions of Executive Order 2020-04 as extended by Executive Orders 2020-05, 2020-08, and

2020-09, and all Emergency Orders issued pursuant thereto . . . .” Id. ¶ 1.

87. In total, as of the date of this filing, Governor Sununu has issued 49 Emergency

Orders addressing a wide range of topics and areas to combat the Coronavirus.

88. At a press conference two weeks ago, Governor Sununu stated he would continue

to renew his “state of emergency” declaration “indefinitely.”

H. The Purpose of the Shutdown and the Current State of the Coronavirus in New Hampshire

89. The purpose and rationale for Governor Sununu’s orders shutting down the New

Hampshire economy were to “slow the spread of COVID-19.”23 Slowing the spread of the

Coronavirus would avoid overwhelming New Hampshire’s healthcare system and allowing

COVID-19-infected Granite Staters to die, untreated and uncared for, at home or in some

hospital hallway. Indeed, a group of New Hampshire academics wrote to Governor Sununu on

March 23, 2020, that “New Hampshire currently has just over 3,000 hospital beds,” and “[b]ased

on our projections and those prepared by Harvard, our hospital system will be overwhelmed

22 https://www.governor.nh.gov/sites/g/files/ehbemt336/files/documents/2020-10.pdf 23 https://www.wmur.com/article/live-at-3-sununu-gives-update-on-covid-19/31941704

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within three weeks.”24 Two New Hampshire mayors publicly demanded Governor Sununu issue

a stay-at-home order because, “the sooner everyone stays home, avoids unnecessary travel and

non-essential activities, the better chance we have to flatten the curve and save lives.”25

90. Thus, this strategy’s purpose was not to prevent people from contracting the

Coronavirus. After all, there is no vaccine. Rather, it was to delay their contracting it so New

Hampshire’s healthcare system would not receive a large influx of Coronavirus cases they were

not equipped to address.

91. After over a month of applying this strategy, Governor Sununu acknowledged on

April 29, 2020, that it was wildly successful. In a news conference that day, he noted New

Hampshire has “flattened the curve.”26 He cited the number of hospitalizations as “one of the

definitive markers of how close you are to hitting capacity on your health care system,” and then

reported, “[t]oday’s census [of the number of hospitalized Coronavirus patients] is about 100,

and we have a little over 1000 beds of capacity.” He continued: “We have multiple times

available [hospital bed] capacity. You know, we could literally have 10 times – God forbid – 10

times the number of hospitalizations, and we could still very easily be able to handle that

capacity.”

92. Governor Sununu was correct. The New Hampshire Department of Health and

Human Services reported a total of 1,019 COVID-19 beds. As of April 30, 2020, there were 112

current hospitalizations. (All statistics were obtained from the New Hampshire Department of

Health and Human Services website27 and the New Hampshire Public Radio website.28 Three of

24 https://www.concordmonitor.com/Shelter-in-place-33500097 25 https://manchesterinklink.com/craig-and-donchess-urge-sununu-for-stronger-measures-against-covid-19/ 26 https://www.insidesources.com/opinion-if-weve-flattened-the-curve-why-is-new-hampshire-still-closed/ 27 https://www.nh.gov/covid19/news/updates.htm 28 https://www.nhpr.org/post/explore-data-tracking-covid-19-new-hampshire#stream/0

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those hospitalizations were new. At the time, there were also 84 ICU beds for the seriously-ill

Coronavirus patients, and New Hampshire was using fewer than 30.29

93. New Hampshire never got close to breaking the curve. Its curve remained flat,

and the goal of the Governor’s initial shutdown orders was successfully achieved. There is no

longer an “emergency” in New Hampshire, or even a threat of one.

94. Despite the success of that goal, several days beforehand, Governor Sununu

issued Executive Order 2020-08, extending the declaration of a “state of emergency,” as well as

all Emergency Orders, another 21 days, April 24 to May 15. See N.H. Exec. Order 2020-08

(Apr. 24, 2020).30 Further, a week before that, Governor Sununu issued Emergency Order #32,

which canceled the school year and directed all school districts to continue with remote

instruction.

95. As of May 1, 2020, the number of current hospitalizations dropped from 112 to

103, despite eight new hospitalizations, and the current hospitalization rate had steadily dropped

to 8% (from 10%-11% the week before). Also, at the time, there were just 1,249 current cases of

Coronavirus in New Hampshire (with 980 recovered), and just 81 total deaths.

96. As of May 19, 2020 (immediately before this action was filed), the number of

current hospitalizations was 105 against 2,264 current cases, producing a current hospitalization

rate of just 4.6%. Also, at the time, there were just 69 new cases (and dropping steadily over the

last two weeks); and 182 total deaths.

97. As of June 8, 2020, nearly three weeks later, the number of current

hospitalizations is 78 against 1,401 current cases (which continues to drop), producing a current

hospitalization rate of just 5.5% (which also continues to remain low). Also, at the time, there

29 https://covid19.healthdata.org/united-states-of-america/new-hampshire 30 https://www.governor.nh.gov/news-media/orders-2020/documents/2020-08.pdf

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were 37 new cases (the number of new cases had hovered around and under 100 for the prior two

weeks); and 286 total deaths.

98. New Hampshire’s hospitals are so underwhelmed that they furloughed and laid

off employees. For example, on April 15, 2020, Solution Health, which owns and operates Elliot

Hospital System and Southern New Hampshire Health, furloughed 650 employees and cut the

pay or hours of another 750 employees, affecting nearly 20% of its workforce.31 The company is

losing more than $24 million per month in revenue after canceling elective surgeries and services

to prepare for an anticipated surge in Coronavirus patients that never arrived. On April 3, 2020,

the ownership group that owns Lakes Region General Hospital and Franklin Regional Hospital

announced it was furloughing more than 600 employees, also in part due to the cancellation of

elective and non-urgent surgeries, procedures, and outpatient visits, which resulted in more than

a 50% loss of revenue.32

99. Apart from the fact New Hampshire’s healthcare system is not even close to

capacity, the mortality rate for Coronavirus is far lower than initially projected. The mortality

rate (number of total deaths divided by the total population) in New Hampshire is 0.021% and

approximately 0.024% in the United States, far below the 0.1% mortality rate for the seasonal

flu. The case fatality rate (number of total deaths divided by the total confirmed cases) in New

Hampshire is 5.6% and approximately 5.9% in the United States.

100. Regarding children, as of June 6, 2020, there were only 262 known cases of the

Coronavirus in persons under 20 years old and zero deaths. Indeed, just last month, NH

DHHS confirmed that not a single, healthy New Hampshire resident under the age of 60 had

31 https://www.unionleader.com/news/health/coronavirus/elliot-sister-hospitals-announce-furloughs-pay-cuts-for-20-of-workforce/article_d754b0e9-4581-5037-856a-a8ad86b51907.html 32 https://www.unionleader.com/news/health/coronavirus/lakes-region-hospitals-to-furlough-more-than-600-employees/article_d9d43187-b2c0-5250-b056-25e9f1474d03.html

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died from COVID-19.33 Moreover, on April 29, 2020, the UK Daily Mail reported that experts

could not find a single child under the age of 10 who had transmitted the Coronavirus to an

adult.34

101. On June 8, 2020, the World Health Organization stated the asymptomatic spread

of the Coronavirus is “very rare,” which contradicts the preliminary evidence obtained from the

earliest outbreaks indicating the virus could spread from person-to-person contact, even a carrier

was asymptomatic.35

102. Rather, COVID-19 appears to be highly selective in those among the population

to whom it poses the most risk: as of June 6, 2020, of 256 deaths (of the 286 total deaths for

which demographics are known), 95.3% of those deaths occurred in individuals above the age of

60, and 61.3% of those deaths occurred in individuals above the age of 80. Indeed,

approximately 80% of deaths attributed to COVID-19 in New Hampshire were in nursing homes

or long-term care facilities.36 These statistics are buttressed by data from the Centers for Disease

Control and Prevention: “as of May 13, those older than 85 are 314 times more likely to die of

COVID-19 than those aged 25–34; those under 15, by contrast, are 43 times less likely to die of

the disease than those aged 25–34.”37 In contrast, the flu is 17 times more deadly than COVID-

19 for people under the age of 25 (even with pre-existing conditions).38 Yet our schools

remained closed, and children and their parents are being forced to navigate this brand new

system of remote instruction.

33 https://www.insidesources.com/dhhs-confirms-not-a-single-healthy-granite-stater-under-60-has-died-from-covid-19/ 34 https://www.dailymail.co.uk/news/article-8271703/Experts-single-child-10-passed-coronavirus-adult.html 35 https://www.cnbc.com/2020/06/08/asymptomatic-coronavirus-patients-arent-spreading-new-infections-who-says.html 36 https://www.nhpr.org/post/coronavirus-update-state-reports-37-new-cases-new-testing-site-manchester#stream/0 37 https://freopp.org/estimating-the-risk-of-death-from-covid-19-vs-influenza-or-pneumonia-by-age-630aea3ae5a9 38 See id.

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103. Less restrictive measures have always been available to address the risk the

Coronavirus poses to the elderly. NH DHHS has always had the authority (without the need for

executive action from the Governor, let alone shutting down schools and the entire New

Hampshire economy) to address that segment of the population through its own procedures for

combating communicable diseases. Section (r) of He-P 301.05 (titled “Restriction and Control

Measures for Isolation and Quarantine for Specific Diseases”) states “For any communicable

disease that poses a threat to the public’s health and not already described in He-P 301.05 [list

of known communicable diseases], all cases, suspect cases, and close contacts of cases or

suspect cases of a communicable disease who work in sensitive occupations, such as healthcare,

food service, and child care, or who are otherwise located in a congregate setting, shall be

excluded or restricted from certain activities until they are no longer infectious in accordance

with RSA 141-C:4 if necessary to protect the health and safety of the public from a

communicable disease, and based on the best available guidance and recommendations from the

Centers for Disease Control and Prevention or other established sources.” (Emphasis added.)

Given these measures that NH DHHS has had at its disposal for a long time, the Governor’s

orders above and the Department’s actions were never necessary.

104. Children and healthy adults under 60 are not at risk with this virus. COVID-19

presents a statistically insignificant threat to the health of children, young adults, and healthy

adults of middle and even slightly advanced age.

105. There is also growing evidence that shutting down society is increasing

transmission of the Coronavirus. For example, in New York – the worst epicenter for the

Coronavirus in the United States – 66% of new Coronavirus hospitalizations consist of people

who stayed home: they are either retired or unemployed and not commuting to work on a regular

37

basis.39 Meanwhile, the neighboring countries of Sweden and Denmark (which have similar

social structures, demographics, and health care systems) took wildly different approaches to

combatting the spread of the Coronavirus: Denmark locked down its schools, borders,

restaurants, cafes, and shops, while Sweden merely encouraged citizens to use common sense,

work from home if possible, and not gather in crowds over 50, but kept schools, bars, gyms, and

restaurants open.4041 The resulting infection rate between the two countries was approximately

the same; Sweden’s infection rate had stabilized; and Sweden’s mortality rate was lower than

most major European countries (which shut down their economies).42

106. There is no “state of emergency” in New Hampshire, nor is there any threat to our

state’s health care system, let alone to children or healthy adults. The original need for shutting

down the New Hampshire economy no longer exists, and there exists no basis for Governor

Sununu’s recent orders extending that “state of emergency” and the resulting closure of all New

Hampshire school districts. The virus is also nowhere near as deadly as initially projected. The

continuing shutdown is preventing the New Hampshire population from achieving “herd

immunity,” which would ultimately eradicate the virus much more quickly than “slowing the

spread” by forcing the shutdown of businesses, closure of schools, and ordering people to stay

home. It is also destroying the state’s economy.

I. The Impact of Defendants’ Actions on the Education of Mr. Devine’s Child and Other Children in the State

107. As noted above, the Department adopted an “emergency rule” amendment to ED

306.18(a)(7) without following rulemaking procedures, and then Governor Sununu’s Executive

39 https://www.nydailynews.com/coronavirus/ny-coronavirus-cuomo-coronavirus-stats-20200506-eyqui4b5lfdn7g6cqswkf6otly-story.html 40 https://www.telegraph.co.uk/news/2020/05/05/sweden-suppressed-infection-rates-without-lockdown/ 41 https://www.webmd.com/lung/news/20200501/sweden-sticks-with-controversial-covid19-approach 42 https://www.telegraph.co.uk/news/2020/05/05/sweden-suppressed-infection-rates-without-lockdown/

38

Orders and resulting Emergency Orders temporarily directed school districts to implement

remote instruction and then move to that framework permanently for the remainder of the 2019-

2020 school year.

108. The Salem School District followed these directives and implemented remote

instruction, first temporarily and then for the rest of the school year. Indeed, the Salem School

District wholly embraced remote instruction: The home page of its website now promotes

“Distance Learning & Covid-19 Support.”43 The government, including the Department of

Education, has contemplated continuing with remote instruction in the fall of 2020.

109. Although remote learning sounds wonderful in theory, leaving children alone to

engage in self-directed electronic learning is grossly inadequate to meet the educational needs of

New Hampshire children, and the requirements of the New Hampshire Constitution and

applicable statutes and rules.

110. R.W.D. – although a stellar student and athlete – still requires guidance from

teachers and counselors to ensure R.W.D. meets grade-level expectations and can meet the

requirements of colleges and universities to which R.W.D. will ultimately apply.

111. R.W.D.’s father, Mr. Devine, works all day and is unable to supervise R.W.D.

during what should be a full school day. He has neither the training nor the resources to provide

a home-school environment for R.W.D.

112. Although the Salem School District has attempted to provide remote instruction

and online learning substitutes for attendance at school, they are inadequate to meet R.W.D.’s

educational needs, and the similar needs of many other students.

43 https://www.sau57.org/ssd

39

113. The assignments and work provided are inadequate in that they require R.W.D. to

dedicate only two or three hours of time to complete those assignments. When summed up over

the last eight weeks during which remote instruction has been the norm, the hours R.W.D. and

other students will spend “attending school” this year will not meet the 990 hours of instruction

required under Chapter 189 and ED 306.18(a)(2).

114. Also, R.W.D., like most students, needs supervision and encouragement that

results from attendance at an actual school where teachers are present to assist. R.W.D. cannot

succeed in a non-structured environment, and Mr. Devine cannot provide that structure that

R.W.D.’s school is supposed to provide.

115. R.W.D. is not receiving even a basic education during this period of “remote

instruction.”

116. In addition to the lack of a basic education, R.W.D. has been prevented from

participating in any school-sponsored sports or other extracurricular activities, including soccer,

in which R.W.D. has excelled tremendously. If remote instruction is implemented in the fall of

2020, and R.W.D. is again forced to spend time away from school-sponsored sports or other

extracurricular activities, it will jeopardize R.W.D.’s financial prospects for college and

potentially negatively impact the next 10 years of R.W.D.’s college and professional career.

CLAIMS

COUNT I (Declaratory Judgment)

(Plaintiffs v. Governor Sununu) (RSA 4:45 and 4:47 Violate the New Hampshire Constitution)

117. Plaintiffs repeat and incorporate by reference the allegations of the paragraphs

above as if fully stated herein.

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118. There is a genuine and bona fide dispute and an actual controversy and

disagreement between Plaintiffs and Governor Sununu regarding whether RSA 4:45 and 4:47

violate Part 1, Articles 7, 8, 29, and 37, and Part 2, Article 5 of the New Hampshire Constitution.

119. Part 1, Article 7 states, “The people of this State have the sole and exclusive right

of governing themselves as a free, sovereign, and independent State; and do, and forever

hereafter shall, exercise and enjoy every power, jurisdiction, and right, pertaining thereto, which

is not, or may not hereafter be, by them expressly delegated to the United States of America in

Congress assembled.” N.H. Const., Part 1, Art. 7.

120. Part 1, Article 8 states, “All power residing originally in, and being derived from,

the people, all the magistrates and officers of government are their substitutes and agents, and at

all times accountable to them.” N.H. Const., Part 1, Art. 8.

121. Part 1, Article 29 states, “The power of suspending the laws, or the execution of

them, ought never to be exercised but by the Legislature, or by authority derived therefrom, to be

exercised in such particular cases only as the Legislature shall expressly provide for.” N.H.

Const., Part 1, Art. 29.

122. Part 1, Article 37 sets forth the separation of powers, and Part 2, Article 5

identifies the legislature as having the authority to make laws. N.H. Const., Part 1, Art. 37; Part

2, Art. 5.

123. In Ferretti v. Jackson, 8 N.H. 296 (1936), the New Hampshire Supreme Court

held a series of statutes that regulated and controlled the distribution and sale of milk was

unconstitutional because it was a “void attempt to delegate legislative power.” Id. at 297, 304-

05. The act stated its “general purpose” was “to protect and promote the public welfare and to

eliminate unfair and demoralizing trade practices relative to the distribution and sale of milk.”

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Id. at 297. It created an “office of a milk control board” that was “appointed by the governor and

council.” Id. The board would have “power to supervise, regulate and control the distribution

and sale of milk for consumption and/or use within the state . . . . [and] adopt, promulgate and

enforce all rules and regulations necessary to carry out the provisions of this act.” Id. It could

also “hold a hearing and investigation, define the market, fix just and reasonable minimum

wholesale and retail prices to be charged for milk in such market, may fix different minimum

prices for different grades of milk and may fix just and reasonable minimum prices to be paid

producers by distributors.” Id.

124. The Court held “[t]he act here in issue is regarded as defective in its insufficiency

of a declared policy and of a prescribed standard by which the authority delegated may be

measured and effect given to the prohibition against the making of general laws by

administrative boards or agencies.” Id. at 302. The Court explained further: “[t]he act shows no

purpose of being a health measure. The stated purpose to protect and promote the general

welfare is practically without significance. All legislation presupposes such a purpose. The

remaining declaration of its aim to do away with ‘unfair and demoralizing practices relative to

the distribution and sale of milk’ indicates no concern for public health.” Id. The Court also

held the terms “unfair” and “demoralizing” do not specify what types of “practices” the act was

supposed to eliminate, nor what connection there existed between the regulatory control of that

industry and the suppression of those practices. Id. The Court concluded “the legislature, failing

to point out the practices considered unfair and harmful, has by necessary implication left it to

the board to determine them.” Id. at 303. Also, “[t]he need and occasion for action as well as

the action were all placed in the board's discretion.” Id. The Court summarized the act as

follows: “[T]he legislature has said to the board: Due to the emergency and to unfair trade

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practices by those or some of those engaged in the business, the industry of distributing and

selling milk is in a deplorable state. To correct the troubles and to restore its prosperity, we

empower you to regulate and control it, with incidental power to fix minimum prices. You may

act only upon certain applications, but when they are made there is no restriction upon your

extent and scope of action.” Id. “[T]he milk control act grants such a sweeping and general

delegation of power that it clearly exceeds constitutional limits.” Id.

125. “The extent and limits of control must be determined by the legislature. . . . The

delegated authority may not be a substitute for the legislature in formulating the standard or any

part of it. Determination of the need of particular action and of the character and form of action

may be delegated, if the policy and standard for action have been announced with adequate

completeness . . . . Delegation of power to enact laws implemental to enforcement of a general

law does not constitutionally include delegation of power to pass in full freedom of discretion

upon both the expediency and the manner of the invocation of regulatory control.” Id. at 304.

126. “Here the rules of action for the board are so general that it is left to the board to

complete the generality and formulate its own supplementary policy how far to act as well as

what to do in its exercise of control.” Id. “The legislature has undertaken to do more than create

an administrative board with only authority to make rules tending to produce efficient and

effective means of enforcement. The act is more a grant of authority to deal with the subject-

matter in a discretionary manner than a direction to act with the right to issue orders in the

performance of the directed action. The field of action is but little more limited than that of the

legislature. . . . [T]he board when permitted to act is as unrestricted in what it may do as is the

legislature. It is clothed with legislative power beyond the mere delegation of power to do what

is needed to efficiently administer its office. The power of regulation has been assigned to it

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with no defined standard set for the manner or extent of its exercise. Some law-making power of

a general nature is made a part of its functions.” Id. The Court held the act “is a delegation of

uncontrolled discretion,” and “[n]o such plenitude of power is susceptible of transfer.’” Id. at

305 (quoting Schechter v. United States, 295 U.S. 495, 551, 553 (1935)).

127. In Guillou v. State, 127 N.H. 579 (1986), the Court held a motor vehicle statute

was “an unconstitutional delegation of legislative authority in violation of part I, article 37 of the

State Constitution, because it fails to declare a general policy and prescribe standards for

administrative action.” Id. at 581. The statute stated, “The director may order any license issued

to any person under the provisions of this title to be suspended or revoked, after due hearing, for

any cause which he may deem sufficient.” Id. at 580. The Court explained “the statute grants

authority to an administrative officer without any express or implied qualifications,” “the phrase

‘for any cause which he may deem sufficient’ does not provide any legislative guidance for the

director in making suspension or revocation decisions,” and, “[e]ven if the director stays within

the bounds of the related provisions . . . , the potential for arbitrary and unprincipled decisions is

great.” Id. at 581.

128. In Smith Insurance, Inc. v. Grievance Committee, 120 N.H. 856 (1980), the Court

held a statute that established a grievance committee empowered to review the termination by

insurance companies of agency agreements between the companies and their agents was

unconstitutional as an unlawful delegation of legislative power. Id. at 857-58. The statute at

issue “established a grievance committee” that “shall hold hearings on grievances brought by

insurance agents relating to termination of their contracts with insurance companies, and . . . may

order the insurance company to rescind termination.” Id. at 860. The Court noted several

problems with the statute: First, the committee “has no regulatory function over insurance

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agency contracts and is merely empowered to ‘order . . . [an] insurance company to rescind [its]

termination . . .’ of an insurance agency contract,” and, thus, “neither insurance agents nor

insurance companies are able to conform their conduct to the requirements of the statute.” Id.

Second, it “lacks a statement of public policy, or a purpose to protect any basic societal interest

or any reasonably outlined policy for the administration of the law.” Id. at 861. It “is an

extension of the powers of the executive branch of government with unguided and unrestricted

discretion to determine when important insurance contracts mutually negotiated may be

terminated. It fails to lay down any rules by which the administrative agency may be guided in

the exercise of its discretion.” Id. It “neither declares the legislative policies which underlay the

enactment of the statute nor establishes standards to guide the Grievance Committee in the

exercise of its power.” Id. at 862.

129. In Opinion of the Justices, 99 N.H. 528 (1955), the Court held that proposed

legislation establishing an industrial park authority as an agency of the state for the purpose of

promoting industrial growth through the development of industrial areas and facilities by the use

of public funds would have, if enacted, conflicted with the New Hampshire Constitution because

it contained “no standard or guide to control the action of the authority in exercise of its

delegated powers.” Id. at 528, 531. It “ma[de] no provision for determination that particular

undertakings by the Authority will serve the public purpose,” and contained “[n]o method . . . for

establishing . . . that a proposed undertaking will actually be ‘for the public use and purpose.’”

Id. (citation omitted).

130. RSA 4:45 and 4:47 violate the provisions above of the New Hampshire

Constitution because they do not contain any general purpose and fail to provide any standards

by which to measure their administration.

45

131. RSA 4:45, I permits the Governor to declare a “state of emergency . . . 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.” (Emphasis

added.)

132. A “state of emergency” is defined as 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 (emphasis added).

133. Although “[a] state of emergency shall terminate automatically 21 days after its

declaration,” “[t]he governor may, by executive order, renew a declaration of a state of

emergency as many times as the governor finds is necessary to protect the safety and welfare of

the inhabitants of this state.” RSA 4:45, II (emphasis added). If a “state of emergency is no

longer justified, the governor shall issue an executive order terminating the state of

emergency.” RSA 4:45, II(b) (emphasis added). “The legislature may terminate a state of

emergency by concurrent resolution adopted by a majority vote of each chamber,” but this

activity is not mandatory, nor does it require the Governor seek the legislature’s approval. See

RSA 4:45, II(c). If the legislature takes no action, only the Governor can terminate a “state of

emergency” declaration. RSA 4:45, II(b).

134. “During the existence of a state of emergency . . . the governor shall have and

may exercise the following additional emergency powers (among other broad grants of 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 4:45, III(e).

46

135. In addition, “[t]he governor shall have emergency management authority as

defined in RSA 21-P:35, V, and pursuant to such authority may exercise emergency management

powers including: . . . The power to make, amend, suspend and rescind necessary orders, rules

and regulations to carry out the provisions of this subdivision in the event of a disaster beyond

local control.” RSA 4:47, III. “Emergency management” is defined as “the preparation for and

the carrying out of all emergency functions, including but not limited to emergency response and

training functions, to prevent, minimize, and repair injury or damage resulting from the

occurrence or threat of widespread or severe damage, injury, or loss of life or property resulting

from any natural or human cause, including but not limited to fire, flood, earthquake, windstorm,

wave actions, technological incidents, oil or chemical spill, or water contamination requiring

emergency action to avert danger or damage, epidemic, air contamination, blight, drought,

infestation, explosion, terrorist act, or riot.” RSA 21-P:35, V.

136. Neither RSA 4:45 nor RSA 4:47 contains a declared policy or purpose for either

scheme. RSA 4:45 contains only a recitation of a general policy or purpose in three instances:

RSA 4:45, I states the Governor may declare a “state of emergency” if “the safety and welfare of

the inhabitants of this state require” it. RSA 4:45, II(a) similarly permits the Governor to renew

a “state of emergency” declaration if he finds it “is necessary to protect the safety and welfare of

the inhabitants of this state.” There is also no declared policy or purpose for the “emergency

powers” the Governor may access when making this declaration: RSA 4:45, III(e) states the

Governor “shall have and may 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

contains no declared policy or purpose whatsoever. This is the precise language the Court

rejected in Ferretti. See 88 N.H. at 302 (“The act shows no purpose of being a health measure.

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The stated purpose to protect and promote the general welfare is practically without significance.

All legislation presupposes such a purpose.”).

137. Neither statute contains any standard by which to measure its administration or

implementation: First, neither statute provides a standard for when or under what circumstances

a “state of emergency” declaration may be invoked. Second, RSA 4:45 provides no standard for

measuring whether the Governor may renew a “state of emergency” declaration. Third, RSA

4:45 leaves it up to the Governor’s discretion when to end a “state of emergency” declaration.

Fourth, neither statute provides a standard for what kinds of “emergency powers” may be

exercised or under what circumstances they may be exercised.

138. First, although RSA 4:45, I states the Governor may declare a “state of emergency

. . . 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,” it fails to define by what

measure the Governor may “find” such a situation exists, and it fails to define what constitutes a

“disaster of major proportions,” determine whether or not such a “disaster” is “imminent,” or by

what measure the “safety and welfare” of the population would require such a declaration. See

id.

139. Second, RSA 4:45, II permits the Governor to “renew a declaration of a state of

emergency as many times as the governor finds is necessary to protect the safety and welfare of

the inhabitants of this state.” (Emphasis added.). This provision fails to define when it is

“necessary” to protect the population or what is meant by the repetitive general reference to “the

safety and welfare” of the population. Combined, these phrases delegate to the Governor

unbridled discretion to renew a “state of emergency” indefinitely.

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140. Third, RSA 4:45 places no time limit on these perpetual renewals of a “state of

emergency” declaration. It permits the Governor to renew a declaration as described above “as

many times as [he] finds” is necessary, and it only permits the legislature to terminate it if it can

forge a concurrent resolution adopted by both the Senate and House of Representatives, but it

does not require the Governor to seek any approval, from anyone, for his renewals of a “state of

emergency” declaration. RSA 4:45 also contains no provision that restricts the Governor’s

power to veto a concurrent resolution adopted by the legislature terminating a “state of

emergency” declaration. In other words, the legislature delegated to the Governor the power to

declare a “state of emergency” and continually renew it, without providing any mandatory check

or limit on that power.

141. Fourth, there is no standard concerning the Governor’s exercise of the

“emergency powers” he may access under this framework. As noted above, RSA 4:45, III(e)

states the Governor “shall have and may exercise” “such other functions, powers, and duties as

are necessary to promote and secure the safety and protection of the civilian population,” and

RSA 4:47, III states the Governor “may exercise emergency management powers including

[among other broad powers]: . . . [t]he power to make, amend, suspend and rescind necessary

orders, rules and regulations to carry out the provisions of this subdivision in the event of a

disaster beyond local control.” RSA 21-P:35, V provides no guidance on what these powers

entail or how they are limited: “Emergency management” is defined as “the preparation for and

the carrying out of all emergency functions, including but not limited to emergency response

and training functions, to prevent, minimize, and repair injury or damage resulting from the

occurrence or threat of widespread or severe damage, injury, or loss of life or property resulting

from any natural or human cause, including but not limited to fire, flood, earthquake,

49

windstorm, wave actions, technological incidents, oil or chemical spill, or water contamination

requiring emergency action to avert danger or damage, epidemic, air contamination, blight,

drought, infestation, explosion, terrorist act, or riot.” RSA 21-P:35, V. This language does not

define or explain what is meant by “emergency response and training functions,” “emergency

functions,” or “any natural or human cause.” See id. It also provides no limit on what kinds of

“orders, rules and regulations” the Governor may “make, amend, suspend and rescind,” and the

general proscription to undertake such action “to carry out the provisions of the this subdivision

in the event of a disaster beyond local control” suffers from the same lack of significance

inherent in the prescribed purpose of RSA 4:45.

142. Under these statutes, the Governor may declare a “state of emergency” if he can

cite a “disaster” of some kind, no matter how remote, and renew it indefinitely, which, in turn,

grants him access to a broad array of powers that enable him to make, amend, rescind, or

suspend any law he wants, without limit. These statutes create a monarchy and undermine New

Hampshire’s constitutional republic.

143. As in the cases above, these statutes contain no declared legislative policy or

policies that underlie their enactment or establish any standards to guide the Governor in the

exercise of his power.

144. Pursuant to the RSA 491:22, Plaintiffs request, in good faith, that this Court

declare the following: RSA 4:45 and 4:47 constitute an unconstitutional delegation of legislative

power by the New Hampshire legislature in violation of Part 1, Articles 7, 8, 29, and 37, and Part

2, Article 5 of the New Hampshire Constitution.

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COUNT II (Declaratory Judgment)

(Plaintiffs v. New Hampshire Department of Education) (The Department Failed to Follow Rulemaking Procedures in RSA 541-A)

145. Plaintiffs repeat and incorporate by reference the allegations of the paragraphs

above as if fully stated herein.

146. There is a genuine and bona fide dispute and an actual controversy and

disagreement between Plaintiffs and the Department regarding whether the emergency

amendment to ED 306.18(a)(7) was adopted according to the rulemaking procedures in RSA

541-A, and whether the Department is following the same rulemaking procedures for its current

proposed change to ED 306.18(a)(7).

147. RSA 541-A sets forth an elaborate set of procedures and requirements for

adopting rules, including emergency rules.

148. As described above, the Department failed to follow the large majority of these

procedures and requirements and, instead, adopted an emergency amendment to ED

306.18(a)(7), which lifted the five-day limit for remote instruction, literally overnight, and

appeared not to communicate the existence of that amendment to the public until six days after it

claims it adopted it. This amendment paved the way for Governor Sununu’s Emergency Orders

#1, #19, and #32, which directed all school districts to implement remote instruction for the

remainder of the 2019-2020 school year.

149. The Department is now attempting to propose a change to the “emergency”

amendment it improperly adopted, again without following the rulemaking procedures in RSA

541-A.

150. Pursuant to the RSA 491:22, Plaintiffs request, in good faith, that this Court

declare the following:

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a. The emergency amendment to ED 306.18(a)(7) is null and void because

the Department failed to follow proper rulemaking procedures under RSA

541-A.

b. Any further emergency amendment or rule adopted by the Department in

connection with ED 306.18(a)(7) and in response to the Coronavirus

issued after the date of any order issued in this proceeding that does not

comply with the applicable requirements of RSA 541-A is void ab initio.

COUNT III (Declaratory Judgment)

(Plaintiffs v. Governor Sununu) (“State of Emergency” Declaration Exceeds Statutory Authority, Unconstitutional)

151. Plaintiffs repeat and incorporate by reference the allegations of the paragraphs

above as if fully stated herein.

152. There is a genuine and bona fide dispute and an actual controversy and

disagreement between Plaintiffs and Governor Sununu regarding whether Executive Orders

2020-08, 2020-09, and 2020-10 and Emergency Orders #1, #19, and #32 are valid exercises of

Governor Sununu’s emergency powers under RSA 4:45 (if deemed Constitutional), whether they

violate Plaintiffs’ right to an education under the New Hampshire Constitution, and whether they

violate applicable statutes and rules.

153. RSA 4:45, I permits the Governor to declare a “state of emergency . . . 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.” (Emphasis

added.)

52

154. A “state of emergency” is defined as 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 (emphasis added).

155. Although “[a] state of emergency shall terminate automatically 21 days after its

declaration,” “[t]he governor may, by executive order, renew a declaration of a state of

emergency as many times as the governor finds is necessary to protect the safety and welfare of

the inhabitants of this state.” RSA 4:45, II (emphasis added). If a “state of emergency is no

longer justified, the governor shall issue an executive order terminating the state of

emergency.” RSA 4:45, II(b) (emphasis added).

156. As noted above, the purpose of the Governor’s various executive and emergency

orders was to “slow the spread” of the Coronavirus so that New Hampshire’s healthcare system

would not be overwhelmed. This was the “emergency” necessary to implement these orders.

157. By the Governor’s own admission and various other sources, however, New

Hampshire’s healthcare system has not come close to being overwhelmed. Rather, New

Hampshire’s COVID-dedicated hospital beds have reached just over 10% capacity, remained

there for a significant period of time, and then decreased during the time the Governor’s prior

executive and emergency orders were in place. There is no “emergency” in New Hampshire.

Despite these facts, Governor Sununu issued Executive Orders 2020-08 and 2020-09 and

Emergency Orders #1, #19, and #32.

158. Governor Sununu has exceeded his authority under RSA 4:45 in issuing these

Orders.

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159. In addition, the New Hampshire Constitution provides everyone with a

fundamental right to education. Further, RSA 189:1, RSA 189:24, and ED 306.18(a)(2) require

that students receive 180 days of school, or 990 hours of instruction, and the original version of

ED 306.18(a)(7) allows for only five days of remote instruction. Governor Sununu’s Emergency

Orders #1, #19, and #32 violate these requirements because they forced students to forego a

basic education and saddled them with an inadequate system of remote instruction that neither

provides them with the required amount of instruction or the guidance and supervision necessary

to achieve same.

160. Pursuant to the RSA 491:22, Plaintiffs request, in good faith, that this Court

declare the following:

a. Executive Orders 2020-08, 2020-09, and 2020-10 and Emergency Orders

#1, #19, and #32 are null and void because they were not valid exercises

of Governor Sununu’s authority under RSA 4:45 and 4:47.

b. Emergency Orders #1, #19, and #32 are null and void because they violate

Part 2, Article 83 of the New Hampshire Constitution.

c. Emergency Orders #1, #19, and #32 are null and void because they violate

the requirements of RSA 189:1, RSA 189:24, ED 306.18(a)(2), and the

original version of ED 306.18(a)(7) (because the Department’s emergency

amendment to this rule and proposed change to it should be declared void,

as described above).

d. Any further executive or emergency orders issued in response to the

Coronavirus issued after the date of any order issued in this proceeding

attempting to declare another “state of emergency,” renew a declaration of

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a “state of emergency,” or close New Hampshire schools and/or

implement remote instruction are void ab initio.

COUNT IV (Violation of Right to Education, Part 2, Art. 83, N.H. Const.)

(Plaintiffs v. All Defendants)

161. Plaintiffs repeat and incorporate by reference the allegations of the paragraphs

above as if fully stated herein.

162. The New Hampshire Constitution provides every citizen with a fundamental right

to an education. Part 2, Art. 83, N.H. Const.

163. Emergency Orders #1, #19, and #32, the Department’s “emergency” amendment

to ED 306.18(a)(7) collectively directed all school districts, including the Salem school district,

to implement remote instruction for the rest of the 2019-2020 school year. This environment of

remote instruction, including Salem’s adoption of it, has prevented R.W.D. from obtaining even

a basic education because it provides R.W.D. with only two to three hours of instruction and

work every day; it prevents R.W.D. from having the guidance and instruction from teachers and

counselors in a normal, physical school environment; and it prevents R.W.D. from participating

in any sports or extracurricular activities.

164. As a result of these actions, Plaintiffs have suffered damages.

COUNT V (Injunctive Relief)

(Plaintiffs v. All Defendants)

165. Plaintiffs repeat and incorporate by reference the allegations of the paragraphs

above as if fully stated herein.

166. Plaintiffs will likely succeed on the merits because (a) RSA 4:45 and 4:47 violate

Part 1, Articles 7, 8, 29, and 37, and Part 2, Article 5 of the New Hampshire Constitution; (b) the

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Department’s “emergency” amendment to ED 306.18(a)(7) is null and void because the

Department’s adoption of it failed to follow the rulemaking procedures set forth in RSA 541-A;

(c) the Department’s proposed change to ED 306.18(a)(7) is null and void because the

Department has failed to follow the rulemaking procedures set forth in RSA 541-A; (d)

Executive Orders 2020-08, 2020-09, and 2020-10 and Emergency Orders #1, #19, and #32 are

null and void because they were not valid exercises of Governor Sununu’s authority under RSA

4:45 and 4:47; (e) Emergency Orders #1, #19, and #32 are null and void because they violate

Part 2, Article 83 of the New Hampshire Constitution and the requirements of RSA 189:1, RSA

189:24, ED 306.18(a)(2), and the original version of ED 306.18(a)(7) (because the Department’s

emergency amendment to this rule and proposed change to it should be declared void, as

described above); and (f) Salem’s implementation of remote instruction for the remainder of the

2019-2020 school year, and going forward, violates Part 2, Article 83 of the New Hampshire

Constitution and the requirements of RSA 189:1, RSA 189:24, ED 306.18(a)(2), and the original

version of ED 306.18(a)(7) (because the Department’s emergency amendment to this rule and

proposed change to it should be declared void, as described above).

167. As a result of these orders, which have effectively canceled the rest of the school

year and provided Plaintiffs with just a fraction of the instruction that is required to be provided

under the applicable authorities above, Plaintiffs will continue to suffer irreparable harm to their

right to an education.

168. Plaintiffs have no adequate remedy at law to redress the harm threatened by the

continuation of these orders.

169. The public interest favors the public’s fundamental right to an education.

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170. Plaintiffs are, therefore, entitled to injunctive relief to prevent future harm to their

right to an education.

REQUEST FOR RELIEF

WHEREFORE, Plaintiffs respectfully request that the Court:

A. Declare RSA 4:45 and 4:47 unconstitutional;

B. Declare Executive Orders 2020-08, 2020-09, and 2020-10, Emergency Orders #1,

#19, and #32, and the “emergency” version of and proposed change to ED 306.18(a)(7) null and

void;

C. Enjoin the enforcement of RSA 4:45 and 4:47;

D. Enjoin the enforcement of Executive Orders 2020-08, 2020-09, and 2020-10,

Emergency Orders #1, #19, and #32, the “emergency” version of ED 306.18(a)(7), and the

proposed change to ED 306.18(a)(7) (if adopted);

E. Enter judgment in favor of Plaintiffs on all counts;

F. Award Plaintiffs their damages, which are within the jurisdictional limits of this

Court;

G. Award Plaintiffs their attorney’s fees and costs; and

H. Award such other relief as is just and equitable.

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REQUEST FOR JURY TRIAL

Plaintiffs request a trial by jury on all claims so triable.

Respectfully submitted,

SHAWN DEVINE, individually and on behalf of R.W.D., his child,

By Their Attorneys,

FOJO LAW, P.L.L.C.

Dated: June 8, 2020 /s/Robert M. Fojo

Robert M. Fojo, Esq. (#19792) 264 South River Road, Suite 464 Bedford, NH 03110 (603) 473-4694 rfojo@FojoLaw.com

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VERIFICATION

I, Shawn Devine, certify that the foregoing facts are true and correct to the best of my

knowledge and belief.

Shawn Devine

STATE OF NEW HAMPSHIRE

COUNTY OF ___________

The foregoing instrument was acknowledged before me this _____ day of June, 2020, by

Shawn Devine.

(Seal) Signature of Notary Public

Print, Type/Stamp Name of Notary

Personally known: _________ OR Produced Identification: _________ Type of Identification Produced: _________

Virginia

Fairfax

9th

NH Driver's License

Notarized online using audio-video communication