The New Hampshire House voted on April 9 to pass HB 440, also known as the Civil Liberties Defense Act, or CLDA. This bill is the most modest, apolitical, and fundamentally important of all the emergency powers reforms proposed in the last legislative session. Unfortunately, the bill is now in serious danger.
HB 440 was proposed by Rep. Jim Kofalt in response to the fact that New Hampshire’s emergency powers laws have been interpreted by our state courts as allowing the governor to suspend civil liberties during an emergency.
“Civil liberties” refers to all of the rights provided under the federal and state constitutions. This means that—under New Hampshire state court opinions—a governor could use his emergency powers to suspend free speech, suspend the right to bear arms, or even suspend free elections. As long as the governor’s actions were related to the declared emergency, any legal challenges to these actions could simply be dismissed out-of-hand. Importantly, experience shows that this kind of unlimited power is not actually needed for governors to address serious emergencies.
As Rep. Michael Sylvia accurately pointed out during a House floor debate on the bill, “We are all enjoying our fundamental rights, including free speech and trial by jury, at the mercy of the current governor.” Whether or not Gov. Chris Sununu’s orders have been appropriate, he said, has nothing to do with the entirely separate question of “whether state law should give the governor absolute power.”
Rep. Kofalt’s bill sought to address this problem by clarifying state law to prohibit the suspension of civil liberties. Despite passing the House in April, however, HB 440 was retained by the Senate Judiciary Committee in May, languishing there for months while its opponents hoped that it would drop out of public awareness. Now the bill has hit a potentially fatal snag.
In an executive session on December 14, the Judiciary Committee took up the bill and stripped out its core legal substance with an amendment. The committee then sent the eviscerated remains of the bill to the Senate floor, where the Senate will likely hold a full vote on January 5. It’s important that we act now and call on our senators to restore the original substance of HB 440 through a floor amendment.
As passed by the House, the core machinery of HB 440 consisted of four sections: Sections 4-7. The Senate Judiciary Committee removed everything from the bill except Section 7, which amends only one of New Hampshire’s emergency powers statutes—RSA 4:47—to say that 4:47 does not authorize civil liberties to be suspended.
Removing Sections 4, 5, and 6 creates multiple fatal problems with the Committee version of the bill. For the sake of simplicity, however, I’ll highlight only the most glaring of those problems: the absence of any statutory definitions in the bill.
The House version of the bill contained a list of definitions in Section 4, something that is necessary for any bill on a complex constitutional issue. Critically, Section 4 included a definition of the word “suspension.” By removing Section 4, the Committee has created an open question as to what the bill even means by “suspended.”
As documented in the House’s legislative findings, our state courts have specifically and repeatedly used phrases like “suspend civil liberties” to describe their interpretation of current state law. However, some in the legal community who oppose emergency powers reforms have argued that rendering civil liberties temporarily inapplicable should not be described as a “suspension” of those liberties. Their argument appears to go something like this: because the legislature can override the governor and restore civil liberties, civil liberties have not actually been “suspended” even though courts will not apply them.
Under this interpretation, the Committee’s removal of Section 4 would allow future governors to argue that making civil liberties legally inapplicable is not actually “suspending” those liberties—and hence is permissible even via RSA 4:47. The Committee’s version of the bill provides no guidance to courts that would preclude this interpretation. In other words, unless the Senate restores the original substance of HB 440, the bill is likely to have no effect.
Some may feel that, with a Republican like Sununu as the current governor, protecting civil liberties is not a pressing concern. But the time to protect civil liberties is now—not after a more authoritarian governor has taken office.
As Rep. Matt Simon eloquently said during the House floor debate on HB 440, “we must do all we can do today: we must fulfill our duty to protect one another from any potential infringement of our rights.” Rep. Simon concluded: “I ask that you shore up our constitutional defenses during a state of emergency so that the responsibility for any potential future abuses will not rest upon our shoulders.”
Now is the time to decide whether future New Hampshire governors will be able to claim unlimited power during emergencies. The responsibility for this decision currently rests on our state senators and on each of us individually. Contact your state senator now and ask them to restore HB 440 as passed by the House.
For more on HB 440, see Cornerstone’s page of resources on the bill.