What is the Civil Liberties Defense Act / HB 440?

During the COVID-19 state of emergency, Governor Sununu wielded some of the broadest emergency powers of any governor in the country. In legal decisions upholding Sununu’s orders, New Hampshire courts interpreted our state’s emergency powers laws to mean that “the Governor may suspend… constitutional rights during a state of emergency.”

To the Governor’s credit, Sununu was obviously much more restrained in the actual use of his powers than the governors of New York or California. Under state law, however, Sununu could have done essentially anything he wanted.

For example, Sununu could have used 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 have been dismissed out-of-hand. 

In an important Superior Court decision, Binford v. Sununu, the court did not shy away from this fact. The court’s opinion adopted an out-of-state legal decision which said that even “fundamental rights such as the right of travel and free speech” may be “suspended” by a governor in a declared emergency.

As Rep. Michael Sylvia accurately said during a House floor debate, “We are all enjoying our fundamental rights, including free speech and trial by jury, at the mercy of the current governor.”

What is the CLDA?

Although there were some reforms to the governor’s emergency powers in the last legislative session, the power to “suspend constitutional rights” has never been formally repudiated by any New Hampshire statute or court decision. 

Last session, Rep. Jim Kofalt sought to address this problem by introducing HB 440, the Civil Liberties Defense Act. This simple bill would clarify that the legislature never intended the state’s emergency powers laws to authorize the suspension of any civil liberties. “Civil liberties” refers to any of the liberties guaranteed under the federal or state constitutions.

Update, December 16, 2021: On December 14, the Senate Judiciary Committee took up HB 440 and unfortunately gutted the core substance of the bill in an executive session. Contact your state senator now and call on them to fight to save the bill on the Senate floor. Ask them to restore the bill as passed by the House or, at a bare minimum, to restore sections 4-7 of the House bill, which are necessary for the bill to function. 

Update, January 5, 2021: The New Hampshire Senate today restored the substance of Sections 4-7 of the House bill, then passed the bill. As passed by the Senate, HB 440 effectively prohibits the suspension of civil liberties during states of emergency. Every Republican senator voted in favor of the bill, while every Democrat present voted against it. Please contact your Republican state senator as soon as possible and thank him or her for supporting and voting for this critical bill. 

The Senate correctly emphasized today that this bill is not a repudiation of Governor Sununu: it is about whether whoever happens to occupy the governor’s office should have unlimited emergency powers under state law. When Governor Sununu signs this bill, it will be important that he receive resounding thanks for acting to protect our rights from potential future abuses. In the meantime, please thank those who have led the charge on this bill for their diligent defense of our rights, including especially prime sponsor Rep. Jim Kofalt.

Here’s how you can help:

  • Contact your state senator. If your state senator is a Republican, thank them for voting to protect our civil liberties. If they are a Democrat, ask them why they believe civil liberties should be subject to “suspension” in an emergency. 
  • Contact Rep. Jim Kofalt and thank him for his work fighting to defend our constitutional rights.  

Here’s how you can learn more about the CLDA:

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