By GARRY RAYNO, InDepthNH.org
CONCORD — Legislative immunity is the critical question for a federal judge to determine whether to grant a temporary restraining order forcing the House Speaker to allow 28 disabled Democrats to meet remotely during House sessions next week.
Lawyers for the plaintiffs including House Minority Leader Renny Cushing, D-Hampton, argue the state is not immune from meeting the requirements of the federal Americans with Disabilities Act and the related Rehabilitation Act.
They say because the state has taken federal funds, the immunity provision does not apply, noting the federal acts were meant to apply to everyone including the state.
But attorneys for House Speaker Sherman Packard claim federal case law on legislative immunity would prohibit litigation both personally and officially and say it is a significant “barrier” to the Democrats’ request.
After a four-hour hearing before U.S. District Court Chief Judge Landya B. McCafferty, she told the attorneys to file additional briefs on the issue by midnight Saturday so she can make an expedited decision.
“This is an important issue and it’s complicated. It’s a threshold issue, really,” McCafferty said.
The House is set to hold two, day-long sessions Wednesday and Thursday at the NHSportsplex in Bedford to act on 137 bills.
While the seven Democrats seek to force a remote session for about 30 House members, the House leadership says rules require members to meet in person and there is no time to put a plan together to allow for a hybrid session to accommodate the Democrats.
The seven Democrats with disabilities filed the suit earlier this week saying they will have to make a life or death decision whether to attend the two sessions.
Packard claims the area is twice the size of the Whittemore Center at the University of New Hampshire where the House met last year to allow for social distancing and other safety measures during the coronavirus pandemic.
But the suit claims they would risk serious illness or death because of COVID-19 and “reckless behavior” on the part of the Republican members if they attend the sessions in person.
If they decide they cannot attend and there is no accommodation to attend remotely through Zoom, they will be disenfranchised as will the people they represent, said the plaintiff’s attorney Paul Twomey.
He said the harm is real and the COVID-19 pandemic has shown that the longer the exposure to the virus the more likely it is to be spread, noting the last House session in a parking lot at UNH lasted 10 hours.
“The harm here is multiple, real and immediate. The plaintiffs all have qualifying ADA disabilities and have to decide whether to attend or not to attend,” Twomey told the court. “If they do not attend, they cannot engage in their duties to represent the people (they serve).”
He noted at the drive-in session, 44 representatives did not attend, 10 Republicans and 34 Democrats.
“They represent 144,000 people who did not have their voices heard. With these 28 representatives, that is close to 100,000 who will not have their voices heard,” Twomey said.
With the closely divided House, he said, the 28 representatives could decide the state’s future on some very controversial bills.
Cushing raised the issue of remote access to House sessions before the Jan. 6 drive-in meeting, saying it has worked well for committee meetings and for the Senate, but the House Republican leadership has said a House rule is needed to allow for remote access, and they argue the logistics are nearly impossible to have remote sessions for 400 members.
Assistant Attorney General Anthony J. Galdieri, representing Packard, told the judge the burden is on the plaintiffs to propose a reasonable accommodation and they have failed to do that and now with time running out they have filed suit.
“Our position is the accommodation being requested is not reasonable,” he said, and the Speaker has said he will do his best to accommodate members when they are at the facility to ensure their safety.
“The House rules require this has to be in person and until that rule is suspended or lifted,” Galdieri said, “we have to move forward with the business of the House in a timely way.”
Twomey noted Cushing sent a letter to Packard at the beginning of the session asking that remote sessions be considered and warning the House could be a violation of the ADA and was told by Packard any discussions would end if litigation is filed. So nothing was filed until it was clear there would be no accommodation for the disabled members, he said.
When Democrats controlled the House last term, they sought and received a state Supreme Court opinion that the House could hold sessions remotely and the leadership began to develop plans, but House Minority Leader Pro Tem Karen Ebel, D-New London, who worked on the plans, told the court a wall came down when the Republicans took the majority in the last election.
She testified she worked on several suggestions to allow for Zoom remote access noting as the former Speaker Pro Tem she developed the system used at the end of the 2020 session for remote committee meetings.
Ebel said she contacted the Vermont legislature, which is meeting remotely, as well as the National Council of State Legislatures for information, which she sent to the Speaker’s office, but did not receive a response.
She said using Zoom and a voting software package would be simple and easy.
But House Clerk Paul Smith was concerned about trying to integrate the current voting system with the commercial software and noted a number of issues he foresees with having a hybrid session of both in person and remote.
Judge McCafferty urged the attorneys for both parties to focus on the issue of legislative immunity.
She listed several cases involving similar arguments and noted, “This is a high bar. Tell me why this immunity does not apply.”
Plaintiffs’ attorney Israel F. Piedra said it is a high bar, but the cases the judge cited were before 1983 and after that the question is different.
He said the cases the judge cited were against legislators in their official capacity and their suit is against the state, which has taken federal CARES Act money and spent some of it for legislative purposes which abrogates legislative immunity.
But Galdieri argued in order to abrogate legislative immunity it would have to be a stated exception in the two federal laws, and it is not.
He said the problem for the plaintiffs is there have been at least two votes to change the rules to allow for the remote session and both have failed and that is part of the legislature’s core function.
“(The Speaker) is being sued because the vote failed,” he said, “and that is the entire point of legislative immunity, not to intrude into that area.”
The complaint said the Democrats lost confidence in the Republican members’ willingness to comply with COVID-19 guidelines due to several incidents since the pandemic began.
“The most serious incident occurred when the majority caucus met on November 20, 2020, largely unmasked, even though several members present had active cases of COVID-19,” the complaint said.
The Republican caucus failed to inform its Democratic colleagues of the danger “by this mass exposure when the full House held session on December 2, 2020.”
Besides Cushing, the state Representatives named in the lawsuit include David Cote, Kenneth Snow, Katherine Rogers, Paul Berch, Diane Langley, and Charlotte DiLorenzo.
Garry Rayno may be reached at firstname.lastname@example.org.