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THE STATE OF NEW HAMPSHIRE

HILLSBOROUGH, SS. SUPERIOR COURT

NORTHERN DISTRICT

Case No. 216-2020-CV-00342

Representative Mary Jane Wallner,

Senator Lou D’Allesandro,

Speaker of the House of Representatives Stephen Shurtleff,

and

Senate President Donna Soucy

v.

Christopher Sununu,

Governor of the State of New Hampshire

DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS

OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT

The defendant, Christopher Sununu, Governor of the State of New Hampshire, by and

through counsel, the New Hampshire Attorney General’s Office, submits this memorandum of

law in support of the motion to dismiss or, in the alternative, motion for summary judgment filed

herewith.

PRELIMINARY STATEMENT

In the wake of the novel coronavirus (“COVID-19”) pandemic, the Governor declared a

state of emergency in accordance with RSA 4:45 and invoked the emergency powers the

legislature granted to him under RSA 4:45, III, RSA 4:47, and RSA 21-P:43. These

legislatively-granted emergency powers permit the Governor to accept and/or expend federal

funds subject to federal conditions, RSA 21-P:43, and to spend unappropriated state funds as

necessary to protect the civilian population, RSA 4:45, III(e). The legislature has not

FiledFile Date: 7/13/2020 10:53 AM

Hillsborough Superior Court Northern DistrictE-Filed Document

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conditioned the exercise of these emergency powers on Fiscal Committee approval.

Nonetheless, the plaintiffs contend that a series of non-emergency statutes—RSA 14:30-a, VI,

RSA 9:13-d, RSA 9:16-a, and RSA Chapter 124—operate to constrain the Governor’s

emergency powers during a declared state of emergency by requiring Fiscal Committee approval

for nearly every expenditure he needs to make. This argument is not credible.

A careful statutory construction analysis reveals that the statutes upon which the plaintiffs

rely— RSA 14:30-a, VI, RSA 9:13-d, RSA 9:16-a, and RSA Chapter 124—do not apply in

emergency situations and/or do not apply to funds at issue in this case by their plain language.

Rather, RSA 4:45, RSA 4:47, and RSA 21-P:43, which are the more specific emergency-related

statutes, apply and vest the Governor with the authority to spend federal CARES Act money and

unappropriated state funds to protect the civilian population from COVID-19 and the damage

inflicted by it. Counts I, II, and III of the second amended complaint therefore fail to state

claims upon which relief can be granted and should be dismissed. Also, because the legislature

has properly vested the Governor with emergency management authority under RSA 4:45, III,

RSA 4:47, and RSA 21-P:43 to accept and expend federal CAREs Act funds and to expend

unappropriated state funds to protect the civilian population from COVID-19, his actions to

make those expenditures do not violate the separation of powers doctrine. N.H. Const. Pt. I, Art.

37. Accordingly, for the reasons stated above, and for the reasons explained in further detail

below, the Governor’s motion to dismiss or, in the alternative, motion for summary judgment

should be granted.

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STANDARD OF REVIEW

A. Motion To Dismiss

In ruling on a motion to dismiss, this court determines “whether the plaintiff’s allegations

are reasonably susceptible of a construction that would permit recovery.” Harrington v. Brooks

Drugs, 148 N.H. 101, 104 (2002). The court assumes the truth of the plaintiff’s well-pleaded

allegations of fact and construe all reasonable inferences in the light most favorable to the

plaintiff. See, e.g., Hacking v. Town of Belmont, 143 N.H. 546, 549 (1999). However, the court

need not accept allegations in the complaint that are merely conclusions of law. See, e.g.,

Konefal v. Hollis/Brookline Coop. Sch. Dist., 143 N.H. 256, 258 (1998). The court “must

rigorously scrutinize the pleading to determine whether, on its face, it asserts a cause of action.”

Jay Edwards, Inc. v. Baker, 130 N.H. 41, 44 (1987).

B. Motion for Summary Judgment

On a motion for summary judgment, the court considers “‘the affidavits and other

evidence, and all inferences properly drawn from them, in the light most favorable to the non-

moving party.’” Skinny Pancake-Hanover, LLC v. Crotix, 172 N.H. 372, 376 (2019) (quoting

Pike v. Deutsche Bank Nat’l Trust Co., 168 N.H. 40. 42 (2015)). If the court’s review of that

evidence “discloses no genuine issue of material fact, and if the moving party is entitled to

judgment as a matter of law,” the court will grant summary judgment. See id.

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BACKGROUND

The following background is drawn from the allegations contained in the second

amended complaint and public laws, including executive orders, that the court may consider in

resolving this motion. For purposes of this motion, the allegations contained in the second

amended complaint are assumed to be true.

The global pandemic caused by COVID-19 led the Governor to declare a state of

emergency on March 13, 2020.1 See Pls.’ Second Amended Compl. ¶ 13. On March 27, 2020,

the United States Congress enacted the Coronavirus Aid, Recovery, and Economic Security

(CARES Act). 2 Title V of the CARES Act creates the Coronavirus Relief Fund within the

Social Security Act (42 U.S.C. 301 at seq.). H.R. 748, the CARES Act,

https://www.congress.gov/116/bills/hr748/BILLS-116hr748enr.pdf, at 221. Section 601(a)

appropriates $150,000,000,000 from the Treasury of the United States for making payments to

States, Tribal governments, and units of local government. Id. Under Section 601(b)-(c), the

Secretary of Health and Human Services is authorized to make direct payments from that fund to

the States of not less than $1,250,000,000 for fiscal year 2020. H.R. 748, the CARES Act,

https://www.congress.gov/116/bills/hr748/BILLS-116hr748enr.pdf, at 222. Section 601(d)

specifies that a state “shall use the funds provided . . . to cover only those costs of the State . . .

that—(1) are necessary expenditures incurred due to the public health emergency with respect to

the Coronovirus Disease 2019 (COVID-19); (2) were not accounted for in the budget most

recently approved as of the date of enactment of this for the State . . .; and (3) were incurred

1 The state of emergency has been renewed several times. See Executive Orders 2020-05, 2020-08, 2020-09, 2020-

10, and 2020-14, available at https://www.governor.nh.gov/news-and-media/covid-19-emergency-orders-2020.

While certain emergency-related restrictions have been lifted, a state of emergency remains in effect. All 58

emergency orders related to the declared state of emergency are also available at

https://www.governor.nh.gov/news-and-media/covid-19-emergency-orders-2020.

2 The entire Act is available at https://www.congress.gov/116/bills/hr748/BILLS-116hr748enr.pdf.

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during the period that begins on March 1, 2020, and ends on December 30, 2020. H.R. 748, the

CARES Act, https://www.congress.gov/116/bills/hr748/BILLS-116hr748enr.pdf, at 223.

Section 601(f) mandates Inspector General Oversight with regard to these funds. H.R. 748, the

CARES Act, https://www.congress.gov/116/bills/hr748/BILLS-116hr748enr.pdf, at 223-24.

New Hampshire will receive a total of $1.25 billion from the Coronavirus Relief Fund.

Pls.’ Second Amended Compl. ¶ 16. Because these federal CARES Act funds relate to the

emergency management function of the state, the Governor may accept these federal funds,

without fiscal committee participation, subject to the federal conditions attached to them. RSA

21-P:43.

On March 31, 2020, the Governor sent a letter to plaintiff Mary Jane Wallner, Chair of

the Fiscal Committee, requesting the Fiscal Committee’s authorization for the Office of the

governor to accept and expend the $1.25 billion from the Coronavirus Relief Fund. Pls.’ Second

Amended Compl. ¶ 16 & Exh. C referenced therein. Despite this request, Governor Sununu

stated that “[p]ursuant to RSA 4:45 and RSA 21-P:43, Fiscal Committee approval is not

technically required for the acceptance and expenditure of these funds.” Id. On April 7, 2020,

the Governor sent a letter to the Speakers of the House and the Senate President, in which he

announced the creation of the Governor’s Office for Emergency Relief and Recovery

(“GOFERR”), which would “be charged with the investment and oversight of COVID-19 relief

and stimulus funds provided to New Hampshire by the Federal Government.” Pls.’ Second

Amended Compl. ¶ 18 & Exh. D referenced therein. Shortly thereafter, at a press conference,

the Governor confirmed that he would not involve the Fiscal Committee with respect to spending

decisions made in accordance with the emergency powers statutes. Pls.’ Second Amended

Compl. ¶ 19.

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On April 10, 2020, the Fiscal Committee held a remote meeting during which it

authorized the Department of Health and Human Services (“DHHS”) to accept and expend $1.2

million from the Families First Coronavirus Response Act. Id. ¶¶ 20-21. DHHS also informed

the Fiscal Committee that it had reallocated $18 million within certain accounting units without

seeking the consent of the Fiscal Committee pursuant to the Governor’s emergency powers. Id.

¶ 22. These funds were transferred to different accounting units for “cash flow” purposes related

to COVID-19 expenditures. Id. ¶ 23. The Fiscal Committee voted to adopt a motion purportedly

restoring these reallocations during its April 20, 2020 meeting. Id. ¶ 24.

On April 13, 2020, the plaintiffs filed this suit and, shortly thereafter, moved to amend

the complaint. This Court initially dismissed the case for lack of standing based on the initial

complaint and the proposed amended complaint. Waller v. Sununu, Docket No. 216-2020-CV-

00342, Hillsborough County, Northern District (N.H. Super. Ct. April 22, 2020). The plaintiffs

moved for reconsideration and moved to amend the complaint a second time. This Court granted

the motion to amend, entered the second complaint, and reconsidered its initial order dismissing

the case for lack of standing. Waller v. Sununu, Docket No. 216-2020-CV-00342, Hillsborough

County, Northern District (N.H. Super. Ct. June 5, 2020). This Court found that the fiscal

committee members now had standing to pursue their lawsuit, but denied the plaintiffs a

preliminary injunction on the merits, finding the statutory authority they relied upon to be

inapplicable during a declared state of emergency under RSA 4:45. Id. The court subsequently

entered a schedule for the filing and resolution of dispositive motions.

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ARGUMENT

The plaintiffs assert that the Governor lacks the authority to expend the $1.25 billion in

federal CARES Act funds and vaguely reference the expenditure and/or transfer of other funds

without the approval of the legislative Fiscal Committee. Those vague, undeveloped references

to other expenditures of unappropriated state funds fail to state claims upon which relief can be

granted, as they fail to give the Governor fair notice of the claim against him and make it

impossible for the court to test those undeveloped allegations against the law. See, e.g., In re

Omega Entertainment, LLC, 156 N.H. 282, 287 (2007) (“Judicial review is not warranted for

complaints . . . without developed legal argument . . . .”); Tessier v. Rockefeller, 162 N.H. 324,

330 (2011) (explaining that on a motion to dismiss the court’s role is to “‘test[] the facts in the

petition against the applicable law’” to determine whether the allegations “‘constitute a basis for

legal relief’”) (quoting Gen. Insulation Co. v. Eckman Constr., 159 N.H. 601, 611 (2010)).

Those vague, undeveloped claims should therefore be dismissed.

The only developed challenge to the Governor’s acceptance and/or expenditure of funds

involves the $1.25 billion in federal CARES Act funds. In challenging the acceptance and

expenditure of these federal funds, the plaintiffs contend that a series of statutes—RSA 14:30-a,

RSA 9:13-d, RSA 9:16-a, and RSA 124—require the Governor to receive Fiscal Committee

approval before he may expend those federal funds. The plaintiffs seek a writ of mandamus

(Count I), a writ of prohibition (Count II), and declaratory and injunctive relief (Counts III)

premised on a violation of those statutes. The plaintiffs also seek declaratory and injunctive

relief on theory that the Governor’s expenditure of federal CARES Act funds violates several

provisions of the New Hampshire: Part I, Article 37 [Separation of Powers], Part II, Article 41

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[Governor, supreme executive magistrate], and Part II, Article 56 [Disbursements from treasury]

(Count IV).3

The Governor contends that he possesses the authority to expend the $1.25 billion in

federal CARES Act money without the involvement of the legislative Fiscal Committee,

pursuant to certain emergency power statutes—RSA 4:45, RSA 4:47, and RSA 21-P:43—in

accordance with the federal conditions attached to those federal funds. The Governor asserts that

the statutes on which the plaintiffs rely either do not address declared states of emergency or, by

their plain terms, do not apply. As a result, the more specific emergency power statutes—RSA

4:45, RSA 4:47, and RSA 21-P:43—control and authorize the expenditures challenged in this

action. Accordingly, the entirety of the plaintiffs’ second amended complaint must be dismissed

with prejudice or, alternatively, summary judgment must enter in the Governor’s favor.

I. The Governor Has The Power Under RSA 4:45, RSA 4:47, And RSA 21-P:43

To Accept And Expend The Federal CARES Act Funds At Issue; Neither

RSA 14:30-a, RSA 9:13-d, RSA 9:16-a, Nor RSA 124 Applies In This Case.

Whether RSA 4:45, RSA 4:47, and RSA 21-P:43 govern and permit the Governor to

accept and expend the $1.25 billion in federal CARES Act funds without Fiscal Committee

approval is a question of statutory interpretation. In interpreting statutes, this Court “first look[s]

to the language of the statute itself, and, if possible, construe[s] that language according to its

plain and ordinary meaning.” Petition of Carrier, 165 N.H. 719, 721 (2013). It “interpret[s]

legislative intent from the statute as written and will not consider what the legislature might have

said or add language that the legislature did not see fit to include.” Id. “The legislature is not

presumed to waste words or enact redundant provisions and whenever possible, every word of a

statute should be given effect.” Garand v. Town of Exeter, 159 N.H. 136, 141 (2009) (quotation

3 Count V of the Second Amended Complaint seeks expedited preliminary injunctive relief. The Court already

denied the plaintiffs’ request for this relief.

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omitted). The New Hampshire Supreme Court “construe[s] all parts of a statute together to

effectuate its overall purpose and avoid an absurd or unjust result.” Petition of Carrier, 165 N.H.

at 721. Only if the statutory language used is ambiguous will the Court examine the legislative

history. Forster v. Town of Henniker, 167 N.H. 745, 750 (2015).

“Where reasonably possible, statutes should be construed as consistent with each other.”

EnergyNorth Natural Gas, Inc. v. City of Concord, 164 N.H. 14, 16 (2012) (internal quotations

omitted). “When interpreting two statutes which deal with similar subject matter, [the court] will

construe them so that they do not contradict each other, and so that they will lead to reasonable

results and effectuate the legislative purpose of the statute.” Id. (internal quotations omitted).

“To the extent two statutes conflict, the more specific statute controls over the general statute.”

Id.

A. No Provision Of The Emergency Power Statutes At Issue—RSA 4:45,

RSA 4:47, Or RSA 21-P:43—Requires The Governor To Obtain Fiscal

Committee Approval Prior To Accepting And Expending Funds

Pursuant To Those Statutory Authorities.

RSA 4:45, I gives the Governor the power to declare a “state of emergency, as defined in

RSA 21-P:35, VIII4, by executive order if the governor finds that a natural, technological, or

man-made disaster of major proportions is imminent or has occurred within this state, and that

the safety and welfare of the inhabitants of this state require an invocation of the provisions of

this section.” The executive order must specify the nature of the emergency, the areas subject to

the declaration, the conditions that have brought about the emergency, and the duration of the

state of emergency, if it is less than 21 days. RSA 4:45, I. A state of emergency automatically

terminates after 21 days and must be subsequently renewed if it persists through a subsequent

4 RSA 21-P:35, VIII defines “State of Emergency” as “that condition, situation, or set of circumstances deemed to

be so extremely hazardous or dangerous to life or property that it is necessary and essential to invoke, require, or

utilize extraordinary measures, actions and procedures to lessen or mitigate possible harm.”

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declaration that meets the requirements of RSA 4:45, I. RSA 4:45, II(a). The legislature may

terminate a state of emergency by concurrent resolution adopted by a majority vote of each

chamber.

During the existence of a declared state of emergency, the Governor may exercise the

powers provided in RSA 4:45, III, RSA 4:47, and RSA 21-P:43. RSA 4:45, III(e) specifically

reserves to the Governor the power to “perform and exercise such other functions, powers, and

duties as are necessary to promote and secure the safety and protection of the civilian

population.” RSA 4:47 specifically grants the Governor “emergency management authority” as

defined in RSA 21-P:35, V. “Emergency management” is defined as “the preparation for and the

carrying out of all emergency functions, including but not limited to . . . to prevent, minimize and

repair injury or damage resulting from any natural or human cause . . . .” RSA 21-P:35, V. The

Governor may exercise that emergency management authority to accept money provided by the

federal government “for the purposes of emergency management” for the state and “subject to

the terms of the offer and the rules and regulations, if any, of the agency making the offer.” RSA

21-P:43. As this Court has already found, these emergency power statutes work together to allow

the Governor to accept and expend emergency federal funds during a declared state of

emergency to protect the civilian population consistent with any attached federal conditions.

The legislature crafted RSA 4:45, RSA 4:47, and RSA 21-P in the shadow of the

September 11 tragedy. N.H. Laws 2002, Chapter 258, Section 258:1 at 442-43 (Statement of

Purpose). In doing so, the legislature contemplated exactly what has occurred in the COVID-19

pandemic: a situation in which a rapidly moving state-wide emergency has prevented the

legislature itself from meeting, and which requires an executive, equipped with broad emergency

powers, to act, albeit for no more than 21 days at a time, but in the moment as the executive

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alone sees as necessary to protect the civilian population. The COVID-19 emergency illustrates

how any other construction of the emergency powers statutes would frustrate that legislative

intent, embodied in the plain language of the emergency powers statutes themselves, to grant the

Governor the flexibility needed to take swift, decisive action to protect the civilian population.

Notably, neither RSA 4:45, RSA 4:47, nor RSA 21-P:43 mentions, references, or is

limited by the participation of the Fiscal Committee and for good reason. Large-scale

emergencies “inherently preclude prior prescription of specific, detailed guidelines.” U.S. v.

Yoshida Intern., Inc., 526 F.2d 560, 581 (U.S. Ct. Custom & Patent Appeals 1975). One of the

hallmarks of emergency power legislation is the lack of regular administrative procedures that

attend similar processes during non-emergent times. See id. at 581-82 (“The need for prompt

action, another essential feature of a national emergency, precludes the otherwise oft-provided

requirement for prior hearings, extensive fact finding, Tariff Commission reports to the

President, and the like.”). That is because “[e]mergencies, by definition, require a quick,

decisive response.” Id. at 582. “Of the three branches of government, only the Executive has a

continuing, spontaneous capability for mounting such a response.” Id. Indeed, “if every law

applicable to tranquil times were required to be followed in emergencies, there would be no point

in delegating emergency powers and no adequate, prompt means for dealing with emergencies.”

Id. at 583.

It is apparent from their plain language that RSA 4:45, RSA 4:47, and RSA 21-P:43 were

designed to unmoor the Governor from the regular administrative processes that exist during

non-emergent times so that he may act quickly, decisively, and spontaneously in response to an

emergency. Accordingly, the plain, unambiguous language of RSA 4:45, RSA 4:47, and RSA

21-P:43, which do not mention the Fiscal Committee, controls, and the Governor’s acceptance

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and expenditure of federal CARES Act funds pursuant to those statutes does not require Fiscal

Committee approval.

B. RSA 14:30-a, VI Is Not An Emergency Power Statute And, By Its Plain

Terms, Is Not Applicable.

The plaintiffs contend that RSA 14:30-a, VI requires the Governor to obtain Fiscal

Committee approval prior to accepting or expending the $1.25 billion in federal CARES Act

funds at issue. The argument lacks merit. By its plain terms, RSA 14:30-a does not apply in

emergencies. It therefore addresses situations distinct from RSA 4:45, RSA 4:47, and RSA 21-

P:43, and those more specific emergency power statutes control. Moreover, by its plain terms,

RSA 14:30-a, VI does not apply because state law does not “require the approval of governor

and council for acceptance and expenditure” of the $1.25 billion in federal CARES Act funds,

RSA 14:30-a, VI; rather, state law unambiguously permits the Governor unilaterally to accept

those funds and spend them in accordance with the federal conditions attached to them pursuant

to RSA 21-P:43. Accordingly, RSA 14:30-a, VI does not apply in this case.

C. RSA 9:13-d Does Not Apply Because The Governor Has Not Invoked It

And It Does Not Restrict The Authority Granted Under RSA 4:45, RSA

4:47, Or RSA 21-P:43.

The plaintiffs also contend that RSA 9:13-d precludes the Governor from spending any

federal CARES Act funds and vaguely suggest in the second amended complaint that RSA 9:13-

d also precludes the Governor from spending unappropriated general state funds. This argument

is incorrect.

For RSA 9:13-d to be applicable, the Governor must specifically invoke it. The statute

reads,

Should it be determined by the governor that a civil emergency exists, the governor

may, with the advice and consent of the fiscal committee, authorize such

expenditures, by any department or agency, as may be necessary to effectively deal

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with said civil emergency and may draw his warrants in payment for the same from

any money in the treasury not otherwise appropriated. In determining whether a

civil emergency exists, the governor shall consider whether there is such imminent

peril to the public health, safety and welfare of the inhabitants of this state so as to

require immediate action to remedy the situation. This section shall not be

construed to enlarge any of the powers which the governor may possess under the

constitution or other statutes.

(Emphases added).

The Governor has made no determination that a “civil emergency” exists under RSA

9:13-d. He has made a determination that a “state of emergency” exists under RSA 4:45, I and

RSA 21-P:35, VIII. A “state of emergency” is a “condition, situation, or set of circumstances

deemed to be so extremely hazardous or dangerous to life or property that it is necessary and

essential to invoke, require, or utilize extraordinary measures, actions, and procedures to lessen

or mitigate possible harm.” RSA 21-P:35, VIII. A “state of emergency” under RSA 21-P:35,

VIII means something different than a “civil emergency” under RSA 9:13-d, and the invocation

of a “state of emergency” under RSA 4:45, I brings with it a host of different powers. In other

words, the legislature has chosen to offer the Governor two different avenues when confronted

with an emergency. The Governor has elected to act pursuant to RSA 4:45 and RSA 21-P:35,

and no party disputes that the COVID-19 situation falls within the definitions of emergency and

the parameters of those statutes, nor does any party contend that the Governor has improperly

declared a state of emergency pursuant to those authorities. Consequently, because the Governor

has not invoked RSA 9:13-d, that statute does not constrain his emergency authority to act

pursuant to RSA 4:45-:47 and RSA 21-P:34-:48.

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D. The Plaintiffs Have Not Shown How RSA 9:16-a Is Applicable And, In

Any Event, It Does Not Restrict The Governor’s Authority Under RSA

4:45, III(e).

RSA 9:16-a applies to the transfer of funds and, by its plain terms, does not apply to

emergency situations. During normal times, it permits funds to be transferred under certain

circumstances and restricts those transfers under other circumstances. The only allegations in the

second amended complaint that could implicated RSA 9:16-a deal with DHHS, Pls.’ Second

Amended Compl. ¶¶ 22-23, an entity that is not a party to this case. In any event, RSA 9:16-a

does not apply because RSA 4:45, III(e) is the more specific emergency power statute that

authorizes the Governor “to perform and exercise such other functions, powers, and duties as are

necessary to promote and secure the safety and protection of the civilian population.” The

General Court did not encumber this broad grant of authority with requirements that every

transfer of funds the Governor authorizes over a specific amount that is needed to meet an

emergency-related issue have Fiscal Committee approval. The General Court could have

included that limitation in RSA 4:45, III(e), but did not do so. The court should therefore not

read such a limitation into the statute. See, e.g., Rankin v. South Street Downton Holdings, Inc.,

172 N.H. 500, 502-03 (2019). Accordingly, RSA 9:16-a does not apply or otherwise restrict the

Governor’s legislatively-granted emergency authority under RSA 4:45, III(e) and, in any event,

the second amended complaint identifies no transfer of funds by the Governor that implicates

RSA 9:16-a.

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E. The Plaintiffs Have Not Shown How RSA 124 Applies And, In Any

Event, No Statute Within That Chapter Restricts The Governor’s

Authority Under RSA 4:45, RSA 4:47, Or RSA 21-P:43.

The plaintiffs do not specify in their second amended complaint how RSA Chapter 124

applies to the present dispute or how the Governor is alleged to have violated any provision of it.

That circumstance alone provides grounds for dismissal of any claim premised on that statute, as

the Court cannot test the factual allegations contained in the second amended complaint against

the applicable law, i.e., RSA 124. See, e.g., In re Omega Entertainment, LLC, 156 N.H. at 287

(“Judicial review is not warranted for complaints . . . without developed legal argument . . . .”);

Tessier, 162 N.H. at 330 (explaining that on a motion to dismiss the court’s role is to “‘test[] the

facts in the petition against the applicable law’” to determine whether the allegations “‘constitute

a basis for legal relief’”) (quoting Gen. Insulation Co., 159 N.H. at 611).

Nonetheless, a review of RSA Chapter 124 does not reveal any applicable statutory

provision. RSA 124:1 makes no mention of the Fiscal Committee and gives the Governor the

authority to apply for federal aid in certain situation, including “emergency industrial or

unemployment relief, for public works and highway construction, . . . or for any other purpose

intended to relieve distress.” The Governor did not, and needed not, apply for federal CARES

Act funds. Rather, pursuant to the CARES Act itself, “not later than 30 days after March 27,

2020, the Secretary shall pay each States . . . the amount determined for the State . . . for fiscal

year 2020 under subsection (c).” 42 U.S.C. § 801(b)(1). And while RSA 124:4 mentions the

Fiscal Committee, it too concerns applying for federal aid and does not apply in emergency

situations. Accordingly, no provision of RSA Chapter 124 restricts the Governor’s legislatively-

granted emergency authority under RSA 4:45, RSA 4:47, and RSA 21-P:43 to accept and expend

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federal funds given to the state for emergency management purposes in conformance with

federal conditions during a declared state of emergency.

F. The Acceptance And Expenditure Of Funds In Accordance With Part

II, Articles 41 And 56, RSA 21-P:43, And RSA 4:45, III(e) Without

Fiscal Committee Approval Does Not Violate Part I, Article 37.

The plaintiffs also assert that the acceptance and expenditure of the $1.25 billion in

federal CARES Act funds and the expenditure of unappropriated state general funds without

fiscal committee approval violates Part I, Article 37. They seem to assert that the Joint

Legislative Fiscal Committee enjoys a constitutional role in New Hampshire, in particular,

within the doctrine of the separation of powers. The plaintiffs’ assertion is incorrect and ignores

the litany of cases holding that when legislative committees like the fiscal committee purport to

have authority to approve or disapprove executive branch expenditures, that purported authority

violates the separation of powers doctrine. Opinion of the Justices, 129 N.H. 714, 720 (1987);

see, e.g., Advisory Opinion In Re Separation Of Powers, 295 S.E.2d 589 (N.C. 1982) (the statute

which purports to give the joint legislative committee on governmental operations power to

control major line item budget transfers proposed to be made by the Governor as administrator of

the budget exceeds the power given to the legislative branch, constitutes an encroachment upon

the responsibility imposed on the Governor to administer the budget, and violates the principle of

separation of governmental power); Anderson v. Lamm, 579 P.2d 620, 627 (Colo. 1978) (“[T]he

requirement for Joint Budget Committee approval unconstitutionally infringes upon the

executive's power to administer appropriated funds.”); State ex rel Schneider v. Bennett, 547

P.2d 786, 797 (Kan. 1976) (State Finance Council overseeing use of budget appropriations held

to be an unconstitutional encroachment on powers of the executive): In re Opinion of the Justices

to the Governor, 341 N.E.2d 254, 257 (Mass. 1976) (“[T]o entrust the executive power of

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expenditure to legislative officers is to violate [the mandated separation of powers] by

authorizing the legislative department to exercise executive power.”); State ex rel Meyer v. State

Board, 176 N.W.2d 920, 926 (Neb. 1970) (“[The legislature] cannot through the power of

appropriation exercise or invade the constitutional rights and powers of the executive branch of

the government. It cannot administer the appropriation once it has been made.”); People v.

Tremaine, 168 N.E. 817, 827 (N.Y. 1929) (Crane, J., concurring) (holding unconstitutional a

requirement that a legislative committee sit with the governor in decisions regarding spending of

money on state buildings (see separate opinion of Justice Crane)).

Moreover, the Joint Legislative Fiscal Committee is not of constitutional dimension. It is

a creature of statute – RSA 14:30-a – which consists of ten members, five from the each of the

New Hampshire House and Senate. RSA 14:30-a, I. The Fiscal Committee is not the legislature.

It is a joint committee of the legislature. Through statute, the legislature has specifically

delineated the Fiscal Committee’s functions. First, the committee shall “assist, advise, and

supervise the work of the legislative budget assistant,” including “the discretion to investigate

and consider any matter relative to the appropriations, expenditures, finances, revenues or any of

the fiscal matters of the state.” RSA 14:30-a, II. Second, the Fiscal Committee “shall consider

recommendations proposed to it by the legislative performance audit and oversight committee. . .

.” RSA 14:30-a, III. Third, the Fiscal Committee must approve the expenditure of any non-state

funds in excess of $100,000, including federal aid, “which under state law require the approval

of the governor and council for acceptance and expenditure.” RSA 14:30-a, VI (sections IV and

V have been repealed). The Fiscal Committee cannot appropriate, and its existence is not

established by or referenced in the New Hampshire Constitution. Rather, it serves solely as a

“legislative watchdog,” with the power to review spending, investigate, and audit expenditures.

18

CITE (to an OJ I think, but there is a case that says this). How state money is spent to carry out

legislative directives is an exclusively executive branch function. Neither the General Court nor

its Fiscal Committee may usurp that executive function. N.H. Const. Pt. I, Art. 37.

Thus, the plaintiffs’ arguments that RSA 14:30-a, VI, RSA 9:13-d, RSA 9:16-a, and RSA

Chapter 124 apply in this case in the manner they suggest would impede a clear delegation of the

Governor’s expenditure powers. The Fiscal Committee cannot, consistent with Part I, Article 37,

wield what amounts to a legislative veto over the Governor’s spending decisions. See Opinion of

the Justices, 129 N.H. at 718–19. Consequently, if RSA 14:30-a, VI, RSA 9:13-d, RSA 9:16-a,

and RSA Chapter 124 operate as the plaintiffs contend—and they do not for the reasons stated

previously—they violate the separation-of-powers doctrine and cannot be enforced.

Accordingly, the Governor’s acceptance of the $1.25 billion in federal CARES Act funds

and other federal funds and his proposed expenditure of them and other unappropriated funds

pursuant to the General Court’s grant of authority to him in RSA 4:45, III, RSA 4:47, and RSA

21-P:43, without Fiscal Committee approval does not violate Part I, Article 37.

19

CONCLUSION

Even taking the allegations in the plaintiffs’ second amended complaint as true, the

plaintiffs’ second amended complaint fails to state a claim upon which relief can be granted.

None of the statutes the plaintiffs advance control or otherwise restrict or augment the

emergency powers the legislature conferred upon him through RSA 4:45. RSA 4:47, and RSA

21-P:43. As a result, the plaintiffs’ claims for a writ of mandamus (Count I), writ of prohibition

(Count II), and a declaration (Count III), all of which are premised on violations of RSA 14:30-a,

VI, RSA 9:13-d, RSA 9:16-a, and RSA 124, fail to state claims upon which relief can be granted.

Additionally, because the Governor is exercising statutory authority lawfully granted to him by

the General Court under RSA 4:45, RSA 4:47, and RSA 21-P:43, and is expending funds

consistent with Part II, Articles 41 and 56 consistent with those legislative directives, there is no

violation of Part I, Article 37. Count IV of the second amended complaint should therefore also

be dismissed, leaving no viable claims in the case, as Count V, which seeks only expedited

preliminary injunctive relief, has already been denied.

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Accordingly, for all of the above reasons, the plaintiffs’ second amended complaint

should be dismissed with prejudice or, alternatively, summary judgment should enter for the

Governor.

Respectfully submitted,

CHRISTOPHER T. SUNUNU,

GOVERNOR OF THE STATE OF NEW

HAMPSHIRE

By his attorneys,

GORDON J. MACDONALD

ATTORNEY GENERAL

July 10, 2020 /s/ Daniel E. Will

Daniel E. Will, Bar #12176

Solicitor General

/s/Anthony J. Galdieri

Anthony J. Galdieri, Bar #18594

Senior Assistant Attorney General

/s/Sean R. Locke

Sean R. Locke, Bar #265290

Assistant Attorney General

New Hampshire Department of Justice

Office of the Attorney General

33 Capitol Street, Concord, NH 03301-6397

(603) 271-3650

daniel.e.will@doj.nh.gov

anthony.j.galdieri@doj.nh.gov

sean.r.locke@doj.nh.gov

21

CERTIFICATE OF SERVICE

I, Daniel E. Will, hereby certify that a copy of the foregoing objection to plaintiffs’

motion for an expedited preliminary injunction and incorporated memorandum of law in support

of same, was sent via the court’s e-filing system to the following counsel of record:

Gregory L. Silverman, Esquire, counsel for Senator Lou D’Allesandro, and

Senate President Donna Soucy

Paul Twomey, Esquire, counsel for Representative Mary Jane Wallner, and

Speaker of the House of Representatives Stephen Shurtleff

Date: July 10, 2020 /s/ Daniel E. Will

Daniel E. Will