New Hampshire
In wake of Supreme Court homelessness decision, NH advocates say fight not over • New Hampshire Bulletin
The U.S. Supreme Court’s ruling last month to allow an Oregon city’s efforts to clear out homeless encampments is already rippling through New Hampshire.
On July 2, the Manchester Board of Mayor and Aldermen voted to strengthen a ban on camping on city property, subjecting people to fines. And the board removed an exception that had allowed camping during evening hours if there were not enough shelter beds available.
The vote, which will make it easier for city officials to remove encampments on public sidewalks and parks, was a priority for Mayor Jay Ruais, a Republican who was elected in November. And it heralds a potential shift in the way New Hampshire cities and towns approach homelessness after the Supreme Court ruling, critics say.
In the case, City of Grants Pass, Oregon v. Johnson, the court ruled along ideological lines, 6-3, that the Eighth Amendment of the U.S. Constitution does not prevent a municipality from evicting homeless people from public spaces – and that there is no requirement that those municipalities secure adequate shelter housing for them before carrying out such an eviction.
But even as cities like Manchester move toward enforcement actions, the ACLU and other New Hampshire civil rights groups say there are still avenues to stop those actions in state law. And they have urged cities and towns to move cautiously and humanely.
“We continue to warn New Hampshire officials and law enforcement that efforts to criminalize the unhoused may still violate the New Hampshire Constitution – and we’ll be watching,” Henry Klementowicz, deputy legal director of the American Civil Liberties Union of New Hampshire, said in a statement.
A dramatic shift
The Supreme Court’s ruling is a major swing in policy for cities like Manchester. Before last month, many municipalities and states followed the lead of a U.S. Circuit Court of Appeals decision: Martin v. Boise.
In that decision, the Ninth Circuit Court of Appeals in San Francisco held that it would constitute “cruel and unusual punishment” under the Eighth Amendment for a government body to force out a homeless person from a public property if there were no reasonable alternatives for that person to find shelter.
Evictions could happen only if beds or shelter were available to those who were being evicted, the Ninth Circuit held.
The decision did not have direct legal power over New Hampshire, which is under the jurisdiction of the First Circuit Court of Appeals. But it still influenced homelessness policy, noted Gilles Bissonnette, legal director of the ACLU, in an interview.
After Martin v. Boise, cities and towns were more cautious when it came to eviction attempts, Bissonnette said. And city councilors in Manchester passed the ordinance that allowed camping in public spaces when there is no shelter space available.
“Many cities and towns – though that’s not binding in New Hampshire – were basically applying that principle, and I think to their credit,” Bissonnette said. “Saying ‘we’re not going to cite people or evict people from public places unless there is some shelter space available.’”
Manchester’s ordinance did not prevent all evictions. In January, the city removed a homeless encampment on a sidewalk, in a move that was later upheld by the Hillsborough County Superior Court after the judge found there was adequate shelter elsewhere. But the ordinance did require more deliberation and care, advocates say.
The Grants Pass decision struck a fatal blow to the Martin v. Boise precedent. In it, conservative justices directly rejected plaintiffs’ arguments that evicting someone without offering an alternative housing option is unconstitutional.
After the board of aldermen vote, Ruais hailed the change, arguing in a statement that it would allow the city to “make our streets safe, clean, and passable.” But he vowed to address homelessness in other areas.
“We must address this challenge in a comprehensive way, and we have already undertaken 11 initiatives to address the underlying drivers of homelessness and the need for more affordable housing in our city,” he said.
Continuing the fight
As some housing advocates privately worry about large-scale clearouts, Bissonnette says he believes such actions could still be challenged. Even though the U.S. Supreme Court has ruled on the U.S. Constitution, the state constitution could still prevent similar evictions, he says.
New Hampshire has its own version of the Eighth Amendment. Article 33 of Part I of the state constitution states that: “No Magistrate, or Court of Law, shall demand excessive bail or sureties, impose excessive fines, or inflict cruel or unusual punishments.”
Unlike the U.S. Constitution, which prohibits “cruel and unusual punishments,” the state constitution uses the word “or,” Bissonnette said, which could make it easier to apply.
“We have always taken the position that our state constitution provides more protections than the Eighth Amendment,” Bissonnette said.
And he noted that at least one superior court judge appears to agree. When Manchester attempted to clear out homeless people on Pine and Manchester streets in January, the ACLU and New Hampshire Legal Assistance sued the city in an attempt to get an injunction to stop the action.
Judge John C. Kissinger ultimately rejected that attempt, but in his order he also stated: “If there were no safe alternatives available, the Court would agree that forced removal of the encampment would likely violate the State and federal constitutional rights of the people residing in the encampment.”
In that case, Kissinger held that there had been safe alternatives, pointing to the city’s contention that month that 31 beds were available at the Cashin Senior Activity Center and three beds at a facility run by Families in Transition, and that a warming shelter was available at the 1269 Café.
But legal rights groups say Kissinger’s order could open the door to applying Article 33 against homeless evictions in cases where there weren’t enough shelter beds. The Grants Pass decision does not apply to the state constitution.
It is unclear how the state Supreme Court might rule on the Article 33 argument. In the meantime, legal groups are increasing their political appeals.
In a letter sent shortly before the July 2 board of aldermen vote, the ACLU and NHLA urged Manchester to show restraint, and wrote that incarcerating homeless people “only fuels mass incarceration, keeping people in an endless cycle of poverty, and institutionalization.”
“Whatever the United States Supreme Court may say about the Eighth Amendment, elected officials have always had a choice,” the letter states. “They can decide to invest in solutions – like safe, long-term housing and low-barrier shelters, as well as wraparound services and voluntary mental health and substance use treatment – which will increase people’s chances of obtaining employment and housing.”
Ruais and others say they are moving forward intentionally and humanely.
“If an individual wants and needs help, it is available,” he said in a statement. “However, anyone choosing to ignore our ordinances or break the law, will be subject to the applicable legal consequences.”
The federal government has activated the New Hampshire National Guard’s 157th Air Refueling Wing in connection with the war with Iran.
“I’ve had a briefing myself, a classified briefing, but it’s really important on the messaging on this that we really coordinate with the Pentagon,” Gov. Kelly Ayotte told reporters during a press briefing following Wednesday’s Executive Council meeting.
Ayotte said she was unable to share additional details about the nature of the New Hampshire National Guard’s activity related to the conflict, including how many guard members have been activated or what role they are playing.
“We’re going to respect what messaging comes out of the Pentagon just to make sure that our men and women in uniform are fully protected and that we aren’t providing any information that could be used in a way that would be harmful to them,” Ayotte said.
In a statement Thursday, Ayotte said the unit had been deployed in late February to the U.S. Central Command area of responsibility in support of the operation.
Earlier this week, Pentagon officials confirmed that members of the Vermont National Guard were involved in attacks against Iran over the weekend, though our news partners at Vermont Public were not able to confirm additional details on the nature of the operation.
During the briefing with local reporters, Ayotte also stressed her support for servicemembers and those close to them.
“I have such respect for our men and women in uniform,” Ayotte said. “As you know, I come from a military family, and they have our full support, and we appreciate them and their families, and obviously anyone who is serving right now, and my thoughts and prayers go out to those who have lost someone that they love.”
By PAULA TRACY, InDepthNH.org
CONCORD – While Republican Gov. Kelly Ayotte has said she opposes increasing highway toll rates across the state, the Senate voted Thursday to increase rates for out-of-state license plate holders.
It now goes to the House for consideration.
This would be a $1 increase for those who have out of state plates going through the tolls at Hooksett, Hampton and Bedford for out-of-state plates, a 75 cent hike for those taking Hampton’s Exit 2 and on the Spaulding turnpike at Rochester, and a 50 cent hike for those taking the exit off I-93 to Hooksett.
An analysis in the bill shows that this would increase toll revenue by $53.3 million in fiscal year 2027 and go up each year to generate $81.4 million a year in 2036.
Senate Bill 627 passed on a voice vote with two Republicans, Senators Regina Birdsell of Hampstead and William Gannon of Sandown opposing.
Senator Mark E. McConkey, R-Freedom, moved to take the bill off the table and offered an amendment.
He said the last time there was a systemwide increase to the turnpike toll was 19 years ago.
“I am sure we could all agree the cost of operations…has continued to escalate when revenue is not rising with it,” and he noted that with an enterprise fund, the state can only spend what it takes in.
The state has just completed a 10-year highway plan and there was a $400 million shortfall in projects that could not be paid for under the current income.
McConkey said the measure would not increase tolls for New Hampshire drivers with a state license plate.
“Why don’t we ask our neighbors,” to pay a toll increase. “We are getting the best of all worlds,” by passing the bill, he said, including “protecting our residents” and having resources for improvements to the turnpike system.
Sen. Gannon, R-Sandown, asked McConkey if there are any studies on impacts near the border on businesses.
If implemented, McConkey said the state will be the 27th lowest in per mile cost still. McConkey said the bill would also increase from seven to 14 days the amount of time for those with NH license plates to pay for a toll adding there are other states that also have different rates for out-of-state users.
The Hampton toll cost would go from $2 to $3, while Hooksett and Bedford would rise from $1 to $2 for out-of-state plates.
New Hampshire currently has the lowest rate per mile among states with tolls roads.
The governor said she does not support a toll increase.
“We are not going to put a burden on drivers for a toll increase,” Ayotte said. “Families are struggling.”
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