The legislative session that began in January all came to a crash in March with Governor Sununu’s emergency orders. Eventually, only 39 bills were enacted into law out of 891 originally introduced.
According to John MacIntosh, the New Hampshire Bar Association’s legislative representative at the Statehouse, “It’s been a bizarre year. We’ve never seen anything like this.”
“It feels like the session that never was. We’ve never seen a year where only 39 bills are signed into law,” he said, attributing the low number of bills passed this session to a confluence of events beginning with the Governor’s state of emergency orders in March and fueled by partisan politics in an election year.
“The legislature, as an institution, is ill equipped to respond to a pandemic,” MacIntosh said, pointing out that New Hampshire’s 400 House members made physical distancing impossible in their chambers’.
After the stay at home orders went into effect, the Senate moved into the house chambers and the House began meeting at The Whittemore Center at UNH.
Of the 43 pieces of legislation that the Bar Association’s Board of Governors took a position on this year, the Board recommended support for only one bill, SB 0525, relative to probate administration and powers of attorney. Like the majority of bills this session, SB 0525 was laid on the table only to die when the legislature concluded its session in May.
Part of the problem contributing to the low number of bills making it through the house has to do with what is called crossover.
Each legislative session includes a crossover date when bills must be moved from one chamber into the other chamber. March 26 was the crossover date for the House and according to MacIntosh it was assumed the House would come together to extend this date as the Senate did. This would have required a two-thirds vote for an extension but the date came and went without a vote.
“The Senate is, historically, more collegial than the House,” MacIntosh said, adding that it extended its crossover to the middle of May. “It’s turned into a partisan issue. The House couldn’t come together for reasons I don’t fully understand. I’m wondering if part of this is that if they changed the rules, they would have to be there for three additional months or more.”
Because the crossover dates weren’t extended, any bill that was laid on the table in the House had no chance of getting off the table without a super majority. All but one of the bills the Bar tracked were killed early on, according to MacIntosh.
HB 1249, which included an allowance for remote notarization of wills during the COVID-19 state of emergency was one of the seven bills that made it out of the House this session. It was signed into law by the Governor in July.
As a unified bar, the NH Bar Association maintains a legislative program that is more likely to provide background information to broaden legislators’ understanding of law than up-or-down advocacy.
Each year, when appointing members to the NHBA Legislation Committee, the Bar president strives to include members representing all major practice areas. When the legislative session opens, the Legislation Committee must, in a very short time, sift through a large number of introduced bills to determine their relevance to the legal community and recommend to the NHBA Board of Governors whether to take an informational or advocacy role.
In a large legislature with many members unfamiliar with the complexities of particular areas of law, the Bar Association’s legislative representative often is consulted by committee leaders and members to determine a bill’s potential impact if it were to become law.
According to MacIntosh, this year there were three House bills opposed by the Bar Association: HB 1193, relative to attorney fees in child support cases; HB 1353, relative to the writ of quo warranto and, HB 1360, relative to confidentiality under the Child Protection Act. All of these bills were killed, MacIntosh said, adding that any bills laid on the table at the end of the session are now dead.
In budget years, Macintosh explained, this practice is more common. “However,” he noted, speaking about the vast majority of bills this year, “these are policy bills, education, workers’ compensation, criminal justice and they were all killed by the House early on in the session.”
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