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. 

Although the bill passed the House, it was retained by the Senate Judiciary Committee, where it is still awaiting a recommendation. The Committee will soon take up and review the bill again. 

Are there any arguments against the CLDA?

The CLDA is a non-partisan bill and has won support from some Democrats, including former House Speaker Steve Shurtleff. However, many Democrats oppose the bill

The most common argument used by Democrats is that the CLDA is overly broad. They quote the definition of “civil liberties” in the bill, which refers to “any guarantee against… an imposition, intrusion, fine, punishment, or penalty.” But these Democrats are taking these words out of context. As the rest of the definition makes clear, “civil liberties” only includes guarantees provided by “the New Hampshire bill of rights [or] the United States Constitution” under binding law.

If Democrats think protecting all constitutional rights is excessively broad, they must believe there are some constitutional rights that a governor should be able to suspend. But which rights are these? Democrats have not said.

This brings us to a more important question. If our emergency powers laws are not reformed to protect fundamental rights, who will inherit Governor Sununu’s vast legal powers – and how might these powers be abused in the future? We should not wait to find out. Contact the Senate Judiciary Committee and encourage them to give HB 440 an “Ought to Pass” recommendation and allow the bill to proceed.

Here’s how you can help pass the CLDA:

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

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