HB 1640-FN - AS INTRODUCED
2024 SESSION
24-2782
09/10
HOUSE BILL 1640-FN
AN ACT relative to qualified immunity standards.
SPONSORS: Rep. Hoell, Merr. 27; Rep. Popovici-Muller, Rock. 17; Rep. T. Lekas, Hills. 38
COMMITTEE: Judiciary
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ANALYSIS
This bill establishes standards and procedures for claims against the state for alleged violations of constitutional rights by government employees.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
24-2782
09/10
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twenty Four
AN ACT relative to qualified immunity standards.
Be it Enacted by the Senate and House of Representatives in General Court convened:
I. Government’s most important responsibility is to protect rights under the laws and constitutions of this state and the United States.
II. Government’s violation of rights diminishes the lives, liberty, property, and pursuits of individuals.
III. Government’s failure to remedy a violation of rights imposes an unjust cost on an injured individual.
IV. Government’s legitimacy is threatened by the absence of a meaningful civil process for an injured individual to seek redress of a violation of rights.
V. Government is responsible for hiring, training, supervising, and retaining employees, and for ensuring they perform their duties consistent with rights under the laws and constitutions of
this state and the United States.
VI. The United States Supreme Court has interpreted the United States Constitution to protect police officers and other government employees against claims of excessive force in an arrest, investigatory stop, or other seizure under a standard of objective reasonableness. An objectively reasonable action does not violate the United States Constitution. The Supreme Court’s interpretation of the fourth amendment protects against second-guessing reasonable split-second decisions made by police officers. The legislature recognizes and agrees with the Supreme Court’s precedent.
VII. Courts can address frivolous lawsuits. Rules of civil procedure authorize judges to:
(a) Grant a motion to dismiss, and
(b) Sanction an attorney who files a case to harass a defendant.
VIII. Courts must be free to engage in fact finding to determine whether a government employee’s action violates a constitutional right. By making the government a defendant and the financially responsible party, the legislature wants to free courts to determine if an employee’s action violated the constitution:
(a) Unencumbered by doctrines that impede fact finding, like the federal doctrine of qualified immunity, and
(b) Without the employee being exposed to personal financial liability.
2 New Paragraph; Claims Against the State; Jurisdiction. Amend RSA 541-B:9 by inserting after paragraph VI the following new paragraph:
VII. Notwithstanding paragraphs II-IV, any claim based on an alleged violation of a constitutional right shall be governed by 541-B:25.
3 Claims Against the State; Claims Filed Against the State and Its Agent. Amend RSA 541-B:9-a to read as follows:
541-B:9-a Claims Filed Against the State and Its Agent. Except as provided in RSA 541-B:25, when a claim filed pursuant to this chapter is against both the state and an agent, official or employee of the state, the court shall determine whether the state is responsible for the actions of the agent, employee or official. If the court determines that the state is responsible for the actions of the agent, employee or official; the agent, employee or official shall be dismissed as a defendant and the plaintiff shall proceed solely against the state.
4 Claims Against the State; Limitation on Action and Claims. Amend RSA 541-B:14, IV to read as follows:
IV. Any claim submitted under this chapter, except for claims under RSA 541-B:25, shall be brought within 3 years of the date of the alleged bodily injury, personal injury or property damage or the wrongful death resulting from bodily injury. As a condition precedent to commencement of the action, the agency shall be provided written notice within 180 days after the time of the injury or damage as to the date, time, and location the injury or damage occurred. The lack of written notice shall not bar a claim unless the agency can show by a preponderance of the evidence that its ability to defend against the action was substantially prejudiced thereby. Such notification may be made either by the claimant or an appropriate representative of the claimant.
5 Claims Against the State; Exceptions. Amend the introductory paragraph of RSA 541-B:19, I to read as follows:
I. Without otherwise limiting or defining the sovereign immunity of the state and its agencies, and except as provided in RSA 541-B:25, the provisions of this chapter shall not apply to:
6 New Subdivision; Claims Against the State for Employee Violation of Constitutional Rights. Amend RSA 541-B by inserting after section 23 the following new subdivision:
Claims Against the State for Employee Violation of Constitutional Rights
541-B:24 Definitions.
I. “Government” means a state, county, municipal, or other political subdivision in this state.
II. “Government employee” means an individual employed or contracted by a government employer.
III. “Government employer” means an executive, legislative, or judicial agency, department, board, commission, authority, institution, or instrumentality of the state or of a county, municipality, or other political subdivision in this state.
541-B:25 State Cause of Action.
I. Under this subdivision, a government employer shall be liable for an injury caused by an act or omission of a government employee who, under color of law, violates a right under the constitution of this state or the United States.
II. An individual may seek legal, equitable, or other relief in a court of this state for a violation of a right under the constitution of this state or the United States.
III. The proper defendant in an action shall be the government employer and shall not be the government employee.
IV. A government employee shall not be found financially liable for a violation of a right under the constitution of this state or the United States.
V. The government employer shall notify the government employee, whose act or omission is the subject of a claim under this subdivision, within 10 days of the government employer being served. The government employee has an unconditional right to intervene in the action, as a third-party defendant, pursuant to this state’s rules of civil procedure and court rules.
VI. The action shall not be subject to:
(a) Common law doctrines of immunity;
(b) Federally-recognized doctrines of qualified immunity;
(c) Sovereign immunity, governmental immunity, custom, or policy; or
(d) Statutory immunities and limitations on liability or damages.
VII. Nothing in this chapter abrogates immunity for judges and legislators at any level of government for actions taken in their judicial or legislative capacities, respectively.
VIII. Notwithstanding this state's rules of civil procedure and court rules, a class action is prohibited under this subdivision.
IX. A claim shall commence no later than 3 years from the date a claim can be brought for the deprivation of a right under the constitution of this State or the United States.
X. The plaintiff bears the burden of proving, by a preponderance of the evidence, that the government employee violated a right under the constitution of this state or the United States.
541-B:26 Jurisdiction.
I. Jurisdiction shall be pursuant to this state’s laws and rules of civil procedure, except that the procedures outlined in RSA 541-B:9 shall not apply to claims brought under this subdivision.
541-B:27 Judicial Standards.
I. When evaluating a government employee’s use of force under the constitution of this state or the United States, the court’s determination of reasonableness shall be objective and made from the perspective of a reasonable government employee on the scene confronted with the immediate facts and circumstances of the claim. The court shall recognize that a government employee often must make split-second decisions in tense, uncertain, and rapidly-evolving situations. A court shall not determine reasonableness using hindsight or based on facts and circumstances that are later discovered.
II. The court’s order shall be supported by findings of facts and conclusions of law. The court shall make the findings of fact in a bench trial and the jury shall make them in a jury trial. The court shall make conclusions of law.
541-B:28 Attorneys' Fees.
I. In any proceeding in which a plaintiff's claim prevails, the government shall be liable for reasonable attorney fees and other litigation costs.
II. Reasonable attorneys' fees include those incurred on an hourly or contingency basis, or by an attorney providing services on a pro bono basis.
III. The court shall recognize that a plaintiff’s claim prevails if the plaintiff obtains any relief the plaintiff seeks in its complaint, whether the relief is obtained via judgment, settlement, or the government’s voluntary change in behavior.
IV. Under this state’s rules of civil procedure, the court may dismiss a frivolous claim and may award reasonable attorneys' fees and costs to the defendant for defending against a frivolous claim.
541-B:29 Termination of Contract, Agreement, or Employment.
I. For any contract or agreement enacted after the effective date of this legislation and notwithstanding any other law, a court’s finding that a government employee violated a right under the constitution of this state or the United States under this subdivision is per se evidence that the government employer has just cause for terminating the employment of the government employee.
II. The government’s termination of a contract, agreement, or employment with the government employee shall not affect the government’s liability under this subdivision.
541-B:30 Public Information.
I. All documents, including complaints, judgments, settlements, and consent decrees, are subject to public disclosure pursuant to the provisions of RSA 91-A.
7 Severability Clause. If a provision of this act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the act that can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.
8 Effective Date. This act shall take effect 60 days after its passage.
24-2782
Revised 12/21/23
HB 1640-FN- FISCAL NOTE
AS INTRODUCED
AN ACT relative to qualified immunity standards.
FISCAL IMPACT: [ X ] State [ ] County [ X ] Local [ ] None
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• Does this bill provide sufficient funding to cover estimated expenditures? [X] No • Does this bill authorize new positions to implement this bill? [X] No | ||||||||||||||||||||||||||||||||||||||||||||||
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Estimated Political Subdivision Impact - Increase / (Decrease) | ||||||||||||||||||||||||||||||||||||||||||||||
| FY 2024 | FY 2025 | FY 2026 | FY 2027 | ||||||||||||||||||||||||||||||||||||||||||
County Revenue | $0 | $0 | $0 | $0 | ||||||||||||||||||||||||||||||||||||||||||
County Expenditures | $0 | Indeterminable Increase | Indeterminable Increase | Indeterminable Increase | ||||||||||||||||||||||||||||||||||||||||||
Local Revenue | $0 | $0 | $0 | $0 | ||||||||||||||||||||||||||||||||||||||||||
Local Expenditures | $0 | Indeterminable Increase | Indeterminable Increase | Indeterminable Increase | ||||||||||||||||||||||||||||||||||||||||||
METHODOLOGY:
This bill establishes standards and procedures for claims against the State for alleged violations
of constitutional rights by government employees.
The Department of Justice states this bill makes significant changes to the civil claims that may be brought against state agencies. It also makes significant changes to the defenses and immunities available to both state agencies and individual employees in civil litigation. It is anticipated that, as a result of this bill, there will be an indeterminable increase in litigation costs for the Department because it will both expand the types of claims that may be filed against state agencies, and it will hinder early and efficient resolution of many claims. The Department expects this is likely to result in more lengthy discovery for each claim and increase the amount of claims that will need to proceed to trial and/or mediation. This will result in a corresponding increase in litigation and mediation costs. This also allows for the award of attorney’s fees at the conclusion of a matter, again, resulting in higher litigation costs. The Department states the potential for an increase in claims and the reduction of early resolution of many claims, may result in the need for additional personnel and/or outside counsel. The impacts will be significant, albeit indeterminable, at this time. Additional litigation costs may range from $50,000 to $200,000 depending on the number of claims. The Department of Justice does not anticipate it would receive additional revenue as a result of this bill.
The Judicial Branch states it is not possible to estimate how this change in law would impact the frequency and complexity of filings.
The New Hampshire Association of Counties indicated this bill would make the employer financially liable for an employee that violates the state or federal constitution. There would be no cost to the employee and the bill would strip away all relevant immunities and caps. The bill makes any violation of either constitution actionable for unlimited damages, even though most constitutional provisions don’t carry a right to a private damages remedy. In addition, the Association assumes the bill would result in substantial increases in insurance costs and could potentially prevent county governments from being insured at all.
The New Hampshire Municipal Association states, that under this bill, municipalities can expect a significant increase in costs related to claims against them. Traditionally, municipalities, with the assistance of their attorneys, would evaluate the likelihood of prevailing in court and weigh the relative cost of litigation against the likelihood of successfully reaching a settlement and those associated costs. Under this bill, the likelihood of settlement would be almost nonexistent because the employee is entitled to become an intervenor and, if a settlement were reached, would be subject to termination regardless of any collective bargaining protections or processes. As such, a court may find that litigation on the merits of the claim is the appropriate resolution. Additionally, the Association indicates there would no longer be an incentive for municipalities to attempt to settle cases where the claims are dubious because of the additional costs of such settlements under this bill, including relative to employment costs and attorney’s fees. Aside from the above noted increases, the removal of all governmental immunities means that prior claims which would have been precluded by immunity doctrines will not be subject to dismissal by the courts at an early stage in the litigation process, increasing the cost of any filing against the government. Further, the removal of protectionary standards would require additional training of governmental employees to ensure that they understand the changed liability landscape, and additional policies and procedures will need to be reviewed and rewritten. The Association indicates this will significantly increase costs for government of all levels. The Association does not anticipate any additional revenues as a consequence of this legislation.
AGENCIES CONTACTED:
Department of Justice, Judicial Branch, New Hampshire Association of Counties and New Hampshire Municipal Association
| Date | Body | Type |
|---|---|---|
| Feb. 14, 2024 | House | Hearing |
| March 6, 2024 | House | Exec Session |
| March 6, 2024 | House | Floor Vote |
March 21, 2024: Lay HB1640 on Table (Rep. Lynn): MA VV 03/21/2024 HJ 9
March 21, 2024: Removed from Consent (Reps. Hoell, T. Mannion, Sirois, Drago, Phillips, Cushman, Gerhard, Granger, McCarter, Potenza) 03/21/2024 HJ 9
March 12, 2024: Committee Report: Inexpedient to Legislate 03/06/2024 (Vote 20-0; CC)
Feb. 20, 2024: Executive Session: 03/06/2024 10:00 am LOB 206-208
Jan. 17, 2024: Public Hearing: 02/14/2024 01:00 pm LOB 206-208
Dec. 15, 2023: Introduced 01/03/2024 and referred to Judiciary HJ 1