City Mask Ordinance Legal Under New Hampshire Law

Cooper v. Sununu; City of Nashua
New Hampshire Superior Court No. 020-CV-00266, 7/13/2020
Monday, July 13, 2020

On May 21, 2020, at the request of the City’s Board of Health, the Nashua Board of Aldermen passed an ordinance requiring members of the public and business employees to use face coverings or masks under certain circumstances. The plaintiff, Andrew Cooper, filed an “emergency” motion for a preliminary injunction to prevent the enforcement of the ordinance.

The plaintiff presented several arguments which can be placed into three broad categories: statutory, preemption, and constitutional. First, statutory claims – i.e. the City lacked the authority to pass the ordinance and it failed to observe statutory notice requirements. Second, a preemption claim – state law preempted any local ordinance. Third, constitutional claims – the ordinance variously violated his right to privacy, right to procedural due process, and right to free speech and assembly.

Statutory Claims

Putting aside the notice argument, which focused on the technicalities of notice, the major argument under the statutory claim regarded the authority of the City to pass such an ordinance. Analyzing the issue, the Court determined that two separate lines of authority existed: RSA 47:17, XV and the implicit “police power” of municipal government.

RSA 47:17, XV pertains to cities. It states, in relevant part, that cities “may make any other bylaws and regulations which may seem for the well-being of the city; but no bylaw or ordinance shall be repugnant to the constitution or laws of the state.” The Court stated that includes a mask ordinance.

The “police power” is the broad and inherent ability of government to regulate “health, welfare, and public safety.” See State v. Lilley, 171 N.H. 766, 783 (2019) (discussing the power). The structure of New Hampshire’s system of government, making municipalities subdivisions of the state, causes them to inherit the ability “to make bylaws for a variety of purposes which generally fall into the category of health, welfare, and public safety.” Id. at 783. Thus, the City could craft and enforce an ordinance pertaining to a public health threat.

Preemption Claims

The plaintiff argued that, by issuing a number of “Emergency Orders” pursuant to the declared State of Emergency pertaining to COVID-19, the Governor created “a comprehensive regulatory scheme” which occupied the entire regulatory space meaning that the subdivisions of the state were impliedly preempted in their attempts to regulate the same issue. The Court disagreed.

First, the Court noted that the “Emergency Orders” were not a statutory scheme – an important legal distinction. Then, the Court further explained that, even if it accepted that the “Emergency Orders” qualified as a “statutory scheme,” the ordinance would have to permit something which a state statute prohibits or vice versa or frustrates a statute’s purpose. Here, the Court noted that the ordinance, requiring masking in all retail establishments, actually is in alignment with the Emergency Orders pertaining to retail establishments. And, in addition, the Governor was a party to the hearing and did not assert that his orders preempted the municipal ordinance, which would be expected if he intended his orders to preempt local regulation.

Constitutional Claims

The plaintiff advanced three constitutional claims. In analyzing those claims, the Court looked to Jacobson v. Massachusetts, 197 U.S. 11 (1905), and subsequent New Hampshire cases adopting and following the reasoning in Jacobson. In short, these cases adopt Cicero’s maxim salus populi suprema lex esto (the health of the people is the supreme law) and explain that the health of the many overrule the rights of the few in the context of preventing or combating the spread of infectious disease where the prescribed treatment is not merely a pretext to rob the individual or his or her rights.

Based on this analysis of the existing case law, the Court determined that the ordinance has a “real or substantial relation” to public health and safety and limited to circumstances where viral transmission may occur. Therefore, it is a valid exercise of governmental authority and the constitutional claims fail for this, as well as for several other enumerated reasons.


Additional Information: 

Practice Pointer:  Municipalities should consider having counsel review proposed ordinances to prevent or combat COVID-19 to ensure that they comply with the complex intersection of statutory authority, preemption, and individual constitutional rights.