On Thursday, January 26 at 9:00 a.m. in LOB 206-208, the House Judiciary Committee will hear testimony on HB 647, which would repeal all existing statutory and common law immunity protections that apply to local government and allow lawsuits for monetary damages for essentially all governmental functions.  

All local officials are urged to register their opposition to HB 647. This is a top priority bill for NHMA. You can come to the hearing and testify; register your opposition online for the committee; or email written testimony to the committee (select “Email All Committee Members”). 

Please read on to understand just some of the devastating consequences of this bill for local governments. 

HB 647 would authorize an incredible number of private lawsuits against cities and towns. 

HB 647 would delete or nullify the entire body of law on governmental immunity—tossing aside decades of statutory and case law (also known as common law) developed by the New Hampshire Supreme Court. The bill’s opening statement proclaims that “[t]o the extent of any conflict, this chapter supersedes a defense or immunity in RSA 99-D, 507-B, 541-B, or other RSA section enacted prior to the effective date of this chapter.” The bill further states that a claim against a governmental entity shall not be subject to statutory immunities; common law doctrines of immunity; federally-recognized doctrines of qualified immunity; sovereign immunity, governmental immunity, custom or policy; or limitations on liability or damages. (The bill would, however, preserve the legislature’s own immunity, as well as judicial immunity.) 

But what does that really mean? This bill would allow an individual to sue a governmental entity for monetary damages under any state or federal constitutional provision, state statute, or regulation. Your town or city could be sued for monetary damages for: 

• Forgetting to include a roll call vote in public meeting minutes;
• Failure to post notice for a ZBA hearing;
• Failure to approve a welfare request;
• Failure to approve a planning board application with 65 days;
• A slippery road during a snowstorm;
• Late property tax bills;
• Not doing or doing something—no matter how innocuous or how quickly the local officials move to rectify it—under any state or federal law that could be read to require or prohibit something.

Currently, governmental bodies, officials, and employees can be sued for monetary damages and held responsible for legal fees only when the legislature or the courts have specifically created a right to sue either in statute or common law. Legislators and courts have—prudently—not created a private action for money damages and attorney’s fees in most state and federal statutes, regulations, and constitutional provisions because they have recognized that such lawsuits would be crippling to governmental operations. HB 647 would change that entirely, incentivizing lawsuits on a wide variety of issues for which lawsuits are not currently allowed. 

HB 647 would dramatically increase expenses for taxpayers. 

If this bill passes, it would invite a barrage of lawsuits because there would be no limitation on the amount of damages that could be awarded. Combined with the expansion of municipal liability, taxpayers will see a definite increase in costs due to increases in insurance premiums, settlements, and attorney’s fees. 

Insurance premiums are calculated, in large part, based on the risk of suit and the relative costs associated with that risk. By expanding the pool of possible claims and eliminating the cap on the amount of damages, the incentive to sue and the incentive for those who sue to settle decreases. As any civil attorney will admit, settlements occur largely because it’s cheaper for their client to pay a small fee to make the problem go away—rather than to continue to accrue court (and attorney) costs in defense of their actions. The consequence of expanding the pool of possible claims is that more people may sue, increasing the need to offer settlements. Additionally, the possibility of winning large sums of money as a result of a legal judgement for legitimate suits means that there is less incentive for those types of suits to settle. Combined, this one-two punch is certain to increase the risk of insuring municipalities, increasing costs for insurance, which will ultimately be passed on to the taxpayer. 

HB 647 would cripple government operations. 

Aside from these “hard costs” discussed above, lawsuits take time to litigate and take administrative staff away from their regular duties. Having an increased number of ongoing lawsuits would create administrative paralysis and undue interference with governmental operations because government employees would need to spend time responding to the lawsuit rather than performing their functions. 

The government needs certain protections to be able to function. Cities and towns provide a wide variety of services to the general public, which opens them to the constant risk of something going wrong. Governmental immunity recognizes this reality and allows government to operate and serve the public, without the risk of costly lawsuits at every turn. These protections are even more critical for New Hampshire’s local government system, which rests heavily on regular people who volunteer their time to serve the public. 

A fair balance between imposing civil liability on local governments, given the reasonable priority of the competing interests, already exists in the law between managing the needs of the public – as provided by the government – and the need to ensure that the injured are compensated. 

We urge our members to attend the hearing to testify; or, if you would like to submit written testimony, you can do so by emailing the committee (select “Email All Committee Members”) or registering your opposition online. Please be sure to email a copy of your testimony to us at governmentaffairs@nhmunicipal.org as well.

On Thursday, January 26, at 10:00 a.m. in LOB 210-211, the House Finance Committee will hold a public hearing on HB 311, an NHMA policy bill which appropriates $15 million for each of the 2024 and 2025 fiscal years to fund the state share of eligible and completed wastewater projects under the State Aid Grant (SAG) program pursuant to RSA 486. Historically, the legislature has, by law, expressly authorized the SAG program to provide grants to municipalities of 20% to 30% of the principal and interest payments on completed and eligible environmental infrastructure projects.  However, sufficient funding for the grants has not been included in the state budget in recent years—thus the need for a separate funding bill. For more information on the importance of this funding, please see the 2023 SAG Project Priority List  issued by the Department of Environmental Services.

Please click here to find a list of hearings next week on bills that NHMA is tracking. Please note that the linked PDF only covers hearings scheduled for the next week. For the most up-to-date information on when bills are scheduled for a hearing, please use our live bill tracker.