By Steve Bittenbender | The Center Square
A New Hampshire judge has ruled that Gov. Chris Sununu acted legally when he issued an order last week banning crowds of 50 or more in the state.
The order came March 16 as part of the Republican’s emergency measures to control the spread of the novel coronavirus pandemic. In addition to prohibiting public gatherings of that size, Sununu also mandated that all bars and restaurants sell food for takeout or delivery only.
On Monday, Sununu, while fielding questions from the public on WMUR-TV, announced that order has now been revised to ban gatherings of 10 or more people.
“We’ve taken these steps, I think, very aggressively, and, whether you’re looking at Vermont or Massachusetts or our regional partners, we’re all pretty much in the same boat with that model right now.”
Sununu’s order last week excluded the Legislature and businesses’ daily operations.
The step on limiting public gatherings, though, was challenged last week in Merrimack County Superior Court by David Binford of Bath, Eric Couture of Manchester and Holly Rae Beene of Manchester. The three residents said they planned on attending gatherings, including religious and political gatherings.
In their complaint, where they sought to overturn the order, the trio said their First Amendment rights were violated.
“These rights are fundamental and subject to the highest form of scrutiny,” the complaint stated. “Especially when they involve core political speech as is the case here.”
They also questioned if COVID-19 truly counted as an emergency, since at the time of filing last Tuesday, only 17 New Hampshire residents tested positive, and none had died.
Since then, however, the number of cases has risen to 101 as of Tuesday morning, with one death.
In challenging the complaint, state Solicitor General Daniel Will said the World Health Organization declared the virus reached the pandemic stage and that President Donald Trump declared a national emergency.
Because of that, Sununu was acting in good faith, he said.
“An executive’s decision to exercise emergency powers in the face of a rapidly evolving public health crisis is entitled to considerable deference,” Will wrote. “A court should only interfere with the exercise of those powers when the executive’s actions were not taken in good faith or if there is no factual basis for the executive to believe that a restriction he imposed was necessary.”
The New Hampshire Union-Leader reported that Superior Court Judge John Kissinger threw out the case Friday after an hourlong hearing, and that a written judgment would be posted this week.
Last week, following Sununu’s initial order, New Hampshire Supreme Court Senior Associate Justice Gary Hicks issued an order suspending all in-person proceedings before circuit, superior and the state Supreme courts with certain exceptions.
Seeking an emergency injunction is an exception.
The Union-Leader reported that the public was not allowed to watch the proceedings, and that reporters received an audio recording of it after it concluded.
A message to Dan Hynes, the plaintiffs’ attorney, was not returned Monday.