Let’s say you run a business. Odds are, you wouldn’t be surprised that comes with an obligation to follow certain requirements that, if not met, might result in a penalty or other legal consequence. For example, you would expect that continuing to discharge raw sewage or dangerous chemicals into the public waterways after being alerted to it by officials would draw a penalty. To cite another, it also shouldn’t be shocking if, after repeated warning from fire or health officials, your business were to be fined for violating fire or food safety requirements meant to protect employees and customers in your workplace.
And having received a fine or other penalty, what would your expectation then be? One that you definitely should not have is that the state Legislature would then pass a law absolving you of any responsibility for the violations you committed knowingly. Yet that is exactly what 10 state lawmakers have proposed in a bill pending in the House to forgive past fines or other enforcement action for violations of coronavirus restrictions, as well as to prevent any future enforcement of them.
At the root of the issue is the concern of some legislators — in this case the sponsors are Republicans — that Gov. Chris Sununu has overstepped his constitutional authority in imposing the social-distancing, mask-wearing and other requirements under the state of emergency he declared to address the pandemic. The issue has come up before. Last year, the Democratic leadership of the Legislature unsuccessfully challenged in court the governor’s claim of authority under the state-of-emergency declaration to spend federal CARES Act funds without legislative input.
Whether the Legislature ceded too much authority to the executive branch when it adopted the legislation that Sununu has acted under in addressing the pandemic is a legitimate subject of legislative consideration. The law was adopted in 2002 in the wake of the 9/11 attacks, and its drafting suggests legislators weren’t fully contemplating how to address a long-running public-health crisis such as the COVID-19 pandemic, now in its second year.
Indeed, Rep. Andrew Prout of Hudson, a lead sponsor of the bill now in the House, has also introduced or signed onto a number of bills that seek to curtail the authority of the governor and the executive branch to act in the current or any state of emergency. Prout has also joined in co-sponsoring a concurrent resolution to terminate, under the 2002 law, Sununu’s current state-of-emergency declaration, an unsurprising development since Prout called last fall for an impeachment investigation of Sununu for implementing the mask mandate.
Clearly, there is room for a public policy debate over the extent of executive branch authority and the role of the Legislature during a prolonged state of emergency. But the bill to forgive past violations of law under the current one is breathtakingly ill-advised for a society rooted in the rule of law.
The Sununu administration has been remarkably restrained — perhaps even timid — in its implementation and enforcement of the mask, social-distancing and other pandemic-related requirements. To date, the Department of Justice has levied fines on but eight businesses. In each case, it did so only after the businesses were given ample and repeated written notice of the requirements and in some cases thumbed their noses at local or state authorities. One, a general store in Loudon, received more than 10 warnings and continued to post a defiant sign refusing to comply. Another, a restaurant and bar in Hudson, held an indoor karaoke event after having received guidance the event needed be held outside, with 20 attendees later testing positive for COVID-19. A third held a flag football tournament, including teams from outside New England, after having been advised several times that was not permitted and having assured the Attorney General’s Office no such teams would participate. These are not unknowing victims.
Having been fined, all of these businesses were free to challenge in a hearing the constitutionality or other validity of the governor’s emergency orders they violated. But there’s no basis for the Legislature to step in and excuse violations by those who decide to pick and choose which laws they wish to follow and which they don’t, particularly when the requirements have been implemented to protect the public health and safety.