State House Democrats sue Sununu over coronavirus spending

  • The State House dome is seen on Nov. 18, 2016, as the restoration project nears completion. (ELIZABETH FRANTZ / Monitor staff) ELIZABETH FRANTZ

Monitor staff
Published: 4/13/2020 9:51:09 AM

New Hampshire’s State House Democrats are suing Gov. Chris Sununu to compel him to include the Legislature in his federal stimulus spending process, they announced Monday. 

In a motion filed in Hillsborough Superior Court Monday, representatives of the House and Senate leadership are seeking an emergency injunction to stop the governor from spending the $1.25 billion in federal coronavirus stimulus funds without involving formal Legislative oversight.

“No one’s first choice - or even second choice - was to go to court,” said Senate President Donna Soucy in a statement. “We reached out to the Governor on multiple occasions to settle this amicably. But Governor Sununu refused, and he left us no other choice.”

Last week, Sununu, a Republican, announced the creation of an executive office to spend the money – the most in federal funding New Hampshire has ever received at once – when it arrives in the next few months. That office, the Governor's Office for Emergency Relief and Recovery, would allow him to quickly disburse the funds to health care facilities, municipalities, key businesses, and anyone else deemed eligible. 

The office would include an advisory panel of legislators comprised equally of Democrats and Republicans, Sununu said. But the panel would not have no formal veto power over the spending.

For two weeks, State House Democrats have been working to convince Sununu to allow the Fiscal Committee to hold votes over the state spending, as it does in normal times. That committee, which comprises state representatives and senators, is dominated by Democrats.

But Sununu has rejected that request, arguing that he has statutory authority to spend the money without lawmakers because of the emergency declaration he signed in March. 

Sununu has also said involving the Fiscal Committee would slow down the spending process and that the advisory legislative committee would allow lawmakers to voice input over spending.

In a statement Monday morning, a spokesman for the governor, Ben Vihstadt, said that the governor would stay the course in his plans, pointing to a 2002 statute about emergency spending.

“Our office will continue to follow the law as was passed in 2002 granting the Governor authority to take immediate action during this statewide crisis,” Vihstadt said. “It is the legislature’s prerogative to check in with the courts and we will always maintain a collaborative relationship with them. Ensuring New Hampshire families receive immediate emergency relief is paramount and the governor remains committed to that goal.”

Slow-building disagreement 

The dispute began with a series of letters sent near the end of March between Sununu and legislative leaders that were kept out of the public eye. But as the state has come closer to actually receiving the money, expected later this month, both sides have become more vocal.

Each side has cited opposing areas of statute to make their claims. Sununu points to the 2002 law, RSA 4:45, passed at the time in order to expedite the spending of emergency funds. 

That law allows the governor to “transfer, receive, or deliver materials … for emergency management purposes” without legislative input and “without regard to the limitations of any existing law.” 

But in their motion Monday, State House Democratic leaders cited different statute that they say requires Fiscal Committee oversight over all major state spending, even in times of emergency. In non-emergency times, the Fiscal Committee must approve all state spending and internal departmental transfers of over $100,000. 

RSA 9:13-d allows the governor to spend any money necessary in a state of emergency “with the advice and consent of the Fiscal committee” State House Democrats say. 

“During an emergency, the legislature specifically recognized that the full legislative process for budgeting might be unwieldy, and therefore vested the legislative branch’s budgeting power during a crisis with the Fiscal Committee,” the court motion reads.

Democrats also say that Sununu’s approach would violate the separation of powers clause in the state constitution – part I, article 37.

“The legislative branch’s core function of appropriating funds is vernaculared as the ‘power of the purse,’” Monday’s court motion says. “This constitutional power is nondelegable.”

It was not immediately clear how quickly the Hillsborough Superior Court would be able schedule a hearing on the injunction motion. 

(Ethan DeWitt can be reached at, at (603) 369-3307, or on Twitter at @edewittNH.)

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