Powers of government during crisis

  • Gov. Chris Sununu stands with legislative leaders and state officials to announce broad new executive action to combat the COVID-19 virus in New Hampshire, March 17, 2020. Ethan DeWitt

Published: 3/18/2020 1:37:09 PM

On March 13, New Hampshire Gov. Chris Sununu declared a state of emergency due to the novel coronavirus (COVID-19). Since then he has used emergency powers to move public schools to remote instruction, close restaurant dining rooms, ban utilities from discontinuing service, and more. Here’s a summary of the emergency powers a New Hampshire governor can use – and their limits.

Who can declare a state

of emergency in N.H.?

The New Hampshire governor can declare a state of emergency for “a natural, technological, or man-made disaster of major proportions.” The Legislature can similarly declare a state of emergency with a concurrent resolution that passes the House and Senate.

How does a state of

emergency end in N.H.?

A state of emergency automatically ends after 21 days unless the emergency declaration specifies a shorter timeframe. The governor or Legislature can renew the state of emergency as many times as they want.

Either the governor or the Legislature can also end an emergency at any time. The governor can do so through executive order. The Legislature can end a state of emergency if a concurrent resolution passes the House and Senate.

What if the Legislature

is unable to meet?

At the time of this writing, the CDC is advising against any large gatherings of people. The New Hampshire Legislature accordingly suspended all legislative activities starting March 16, since the House of Representatives has 400 members.

At a press conference on Tuesday, House Speaker Steve Shurtleff said he was open to creative solutions for convening the Legislature—such as keeping smaller groups of representatives in separate rooms—if it becomes necessary.

There are also provisions in the state’s Right-to-Know law that allow elected officials to participate remotely in a meeting, through a telephone or video conference, during an emergency. However, the state would face a big technological challenge bringing 400 representatives together digitally.

What special powers come with

a state of emergency in N.H.?

In general, the governor has extra powers during a state of emergency. That includes: 

■Moving and acquiring necessary materials and services for emergency management purposes.

■Taking control of emergency management forces and helpers.

■Entering mutual aid agreements with other states.

■Organizing evacuations.

■Removing an official from public office who is responsible for emergency management (although the official must be charged and have an opportunity to defend himself or herself).

■Setting up a temporary location for government (other than the state house in Concord).

■Suspending rules and regulations.

■Any other “functions, powers, and duties as are necessary to promote and secure the safety and protection of the civilian population.”

These powers are laid out in RSA 4:45-47.

The New Hampshire Department of Health and Human Services (DHHS), which serves under the governor, also has special powers during an outbreak of communicable disease. In particular, DHHS can order isolation, quarantine, and treatment for individuals.

DHHS, with written approval of the governor, may similarly order any public or private building to close and cancel any events if there is an “imminent danger to public health.”

Lastly, the judicial branch has the power to suspend any action during a state of emergency.

Are there limits on

those powers in N.H.?

Limits on taking private property: RSA 4:46 places limits on the power of the governor during an emergency, particularly when it comes to taking private property.

The government cannot take personal property “owned by or intended for use by individuals or families.” That means the government can only confiscate from businesses and other organizations.

That same section of state law prohibits the government from taking firearms or ammunition.

The government must provide compensation for anything it takes. If the state and the owner cannot agree on compensation, the chief justice of the superior court appoints a commission of three people to set compensation. The property owner can appeal that decision on compensation in superior court.

Anyone who takes property without the authority to do so during a state of emergency, whether by false pretenses or otherwise, is guilty of a felony.

Limits on quarantine: If a person refuses to follow a written order to isolate or quarantine, DHHS may issue a complaint, sworn to by a justice of the peace. At that point a law enforcement officer can take the person into custody and transport him or her to the isolation or quarantine location.

However, a person can contest an order from DHHS in superior court. The court has 48 hours to hold the hearing. A person may be held in isolation or quarantine until the outcome of the hearing but cannot be forced to participate in examination or treatment.

A business owner or person affected by a forced closing or cancellation can similarly request a superior court hearing on the decision of DHHS. That hearing must take place within five days.

Consequences for

disobeying an order?

In the event of a disease outbreak, if a person does not abide by the orders of DHHS and does not follow the hearing process through the superior court, he or she may be charged with a misdemeanor.

New Hampshire similarly has a law against “obstructing government administration.” That law makes it a misdemeanor to use intimidation, threats, or violence to interfere with a public servant performing his or her duty. That means New Hampshire residents can’t purposely get in the way of government officials working to address an emergency.

New Hampshire does not have a law against price gouging during a state of emergency.

How does N.H. compare

to other states’ emergency powers?

According to a 2019 article in the journal Health Security, New Hampshire is a little more strict than other states in terms of how much power is given to the governor during an emergency. The New Hampshire governor can change regulations during an emergency, but he or she cannot change laws. (Laws must pass through the legislative process; regulations are set by government bureaucrats who are tasked with enforcing laws.)

New Hampshire is roughly average when it comes to the penalties for violating quarantine or similar public health orders. According to a report from the National Conference of State Legislatures, the penalty in most states is a misdemeanor. Speaking very generally, that translates to a jail sentence under one year and a fine under $1,000. Mississippi and Texas are the only states where violating quarantine is a felony.

 

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