RebuildNH Chairman Andrew Manuse wrote the following message to Associated Press reporter Holly Ramer, who wrote the article, “Only in the ‘Live Free or Die’ State Have Covid Offenders Been Set Free of Fines:
I’m writing to you about your article that ran in the Concord Monitor, “Unlike Elsewhere NH Refunds Covid Business Fines,” which was a great tribute to the work that we accomplished at RebuildNH, which has been also known publicly as ReopenNH.
I’ve been sending you ALL of our press releases. Have you been receiving them? We sent one out right after the budget passed with the fine forgiveness language in it: RebuildNH Celebrates Meaningful Reform in 2021 Session. I’m kind of surprised you didn’t call me for a comment, or JR Hoell or Melissa Blasek, the other leaders of the organization. Our phone numbers have been on every release. That bill was one of our priority pieces of legislation that our organization helped write.
Anyhow, I take great issue with the veracity of one of the statements you present as a fact in the article, when the truth is that it is not a fact at all, but rather propaganda supported by the government. As a BU-trained professional journalist with an MS in journalism who worked in the field for 10 years, I can tell you that we are trained to hold the people in power accountable, and not to be their mouthpiece. I regret to advise you that I believe your article had a heavy and unbalanced pro-government slant.
Here is that statement you wrote in your article that I take issue with:
“But only in the “Live Free or Die” state have the scofflaws been set free of the fines.”
One cannot be a scofflaw when there was no law being broken. If anyone was a scofflaw, it was Gov. Sununu who introduced “emergency orders” that were in fact illegal and unconstitutional or the attorney general’s office that attempted to enforce them, including the order that called for fines against businesses violating other unlawful “emergency orders.”
On March 2, 2021, we sent you the following press release; namely, “Alarming: Emergency Orders Posted in State Law Record,” which I urge you to read in full. In that press release, we spoke specifically about the fines issued to businesses and how the fines were illegal.
In the most startling example of the emergency order references in state statute, view RSA 21-P:47 within the General Court website (you’ll have to scroll down) or view the attached screenshot. This section, duly adopted by the Legislature, creates a misdemeanor penalty for violating an emergency order written by the governor during a State of Emergency. Importantly, a misdemeanor charge can be fought in the Circuit Court, and the accused can confront his accuser and bring his own evidence to support his defense. Directly above this law on the General Court website, the following is now appended: “See Emergency Order #65 … related to the Covid-19 State of Emergency, for potential impact on the terms of this section.” The ellipsis here represents the several updates to emergency orders and executive orders that are also referenced on the state’s online law record.
“The governor has directly violated RSA 21-P:47 by creating his own adjudication process with Emergency Order 65, and now the official state website is implying that the governor’s orders supersede duly passed state law,” Manuse said. “I can’t stress this enough: This should alarm everyone in the state who cares about the rule of law. No governor should ever have this kind of power, regardless of the circumstances. He is claiming the power to write the laws, enforce the laws, and adjudicate the laws without any check on his power.”
Several businesses are currently challenging fines levied by the Attorney General’s office under Emergency Order 52 using the process laid out in Emergency Order 65, which brings them before the N.H. Department of Health and Human Services to appeal their fine. Importantly, the Attorney General is offering hearsay evidence to support the fine and using anonymous accusers, two things not allowed in a misdemeanor trial.
“The people of New Hampshire deserve a fair trial, and they deserve representation in their Legislature,” RebuildNH Chairman Andrew Manuse said. “If anything, this latest move to normalize the governor’s emergency orders should send shock waves throughout the entire system. It is clear that changes to state law are needed to prevent Gov. Sununu’s abuses of power and the State of Emergency needs to end now to strip this governor of the undue power that he now has. Anything less, and the public liberty is manifestly endangered.”
As you can see, by passing the language in the budget forgiving businesses of fines and punishments, the Legislature was in fact upholding its own authority under the law and shutting down the unlawful authority that the executive branch was acting under. These businesses you write about in your article are NOT scofflaws because they didn’t actually violate any laws. This is specifically why the fines were forgiven by the Legislature, which is the body that actually makes laws. By passing this language in the budget, the Legislature has in fact clarified that the governor cannot pass emergency orders under the color of law that violate state law during a State of Emergency.
All of this I send you as the chairman of RebuildNH for public release, but you should know that I am on the board of the Liberty Defense Fund of NH, also. I know that LDFNH Chairman Thomas McLeod sent you another press release about the fines issued by the attorney general’s office on March 2, 2021, titled, “LDFNH SUPPORTS PLAISTOW BUSINESS IN EMERGENCY ORDER FINE CHALLENGE.” You’d have to get the whole release from him if you can’t find it by emailing firstname.lastname@example.org. But in that press release, Thomas included the following key information:
[In issuing fines to businesses during the State of Emergency, the Attorney General’s Office] cited Emergency Order 65 to justify the tribunal it has set up within the Department of Health and Human Services; namely: “The attorney general shall have authority to notify suspected violators of any Emergency Order of the state’s intention to seek a civil penalty or take any other enforcement action, to negotiate, and to settle with such suspected violators without court action.”
The problem with this language is that the governor has no authority to issue such an order. The Legislature has determined the enforcement mechanism for violations of emergency orders by law (RSA 21-P:47), and that mechanism is to bring a misdemeanor complaint against the alleged wrongdoer, which is triable in the Circuit Court. The governor’s order is a violation of Part 1, Article 29 of the state Constitution, which states that only the Legislature may suspend a validly enacted state law. The order also violates emergency order statutes, which do not give the governor authority to suspend state law.
“Importantly, hearsay evidence is not admissible in misdemeanor trials and the accused has the right to confront his accuser and bring his own evidence to support his defense,” LDFNH Chairman Thomas McLeod said. “Besides violating the rights of the accused, the governor’s parallel system of adjudication that he legislated within the executive branch usurps the Legislature’s authority to enact or suspend laws and the Judicial Branch’s power to offer justice, which involves a fair trial and equal treatment under the law.”
So you see, there are two substantial and involved organizations that have made public statements about this matter, and you did not seek a statement from either of us and instead slanted the article in favor of the government, which was breaking the law. I urge you to consider a follow-up article that tells the whole story.
Andrew J. Manuse