By GARRY RAYNO, InDepthNH.org
For those of you old enough to remember Joseph Heller’s 1961 novel Catch-22, it is a reminder that most things really are not new.
The ground-breaking dark comedy, although stylistically it was similar to two earlier Samuel Beckett novels, followed anti-hero Capt. John Yossarian, a U.S. Army Air Force B-25 bombardier, as he tried to process in different times and places the horrific death of a fellow officer.
The title of the book has taken on a meaning of its own, a paradoxical situation with no escape because of rules or limitations.
The situation is like the character Klinger in MASH who tries to feign mental illness to escape his military service only to be told he is not insane because he wants to get out of the Army.
Democrats in the New Hampshire House find themselves in a similar situation.
None of this would be happening of course if it were not for the COVID-19 pandemic that continues to ravage the state killing nearly 1,200 state residents.
The pandemic brought the 2020 legislative session to a halt for about three months and when lawmakers returned to work, it was under very different circumstances: the Senate met in Representatives Hall and the House held sessions at the Whittemore Center on the University of New Hampshire’s Durham campus.
Lawmakers are able to do most of their work so far this session, but the House and Senate are not meeting in their State House chambers for sessions and few members are in the Legislative Office Building for committee hearings.
Most of the activity has been either remote — almost all of the Senate’s work — or remote or hybrid for the House.
The House has had two official meetings, Organization Day in December to pick its Speaker Dick Hinch, who died a week later from COVID-19, on an athletic field at UNH, and Convening Day in a parking lot at UNH.
This week the House will hold its first session days Wednesday and Thursday to act on 137 bills at the NH Sportsplex in Bedford and seven disabled Democrats have sued the Speaker seeking to be able to join the session remotely instead of in-person.
The entire saga has played out since Organization Day when many Democrats and some Republicans stayed away from the UNH athletic field for fear of COVID-19 exposure, particularly those who were most at risk of a severe case such as the elderly and those with medical conditions.
The source of the problem was how the Republican leadership handled COVID-19 exposure at its caucus at McIntyre Ski Area in Manchester, where at least four, probably more members contracted COVID, but the leadership kept that a secret until the news broke just before Organization Day.
A fair number of Republicans have refused to wear masks during the three business sessions at the end of the 2020 session and had a separate section in the hockey rink they dubbed “the freedom seats,” and even more refused to wear masks on Organization Day.
The Democrats say in their federal lawsuit they 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.
So, Democrats since that time have pushed for remote sessions of the House, but to date House Speaker Sherman Packard has said that would be impossible.
The first problem he said is House rules say they have to meet in-person so there is no rule allowing for remote sessions, although the state Supreme Court issued an advisory opinion last year that said it was not unconstitutional to meet remotely.
And now for the Catch-22, remember Catch-22, when a rule to allow remote sessions was offered by Democrats, it was voted down twice by Republicans.
The last attempt was at Convening Day when it was killed on a 187-149 vote.
So essentially what the Republican leadership is saying is, “There is no rule because we killed the rule.”
The Senate does not have a rule allowing for remote sessions but has been meeting remotely for sessions and committee meetings and House committees and caucuses have been held remotely or in hybrid fashion.
All of this was discussed at the U.S. District Court hearing Friday on the Democrats’ suit before Chief Judge Landya B. McCafferty, who is expected to make a decision Monday before the two days of sessions begin.
She told the litigants she viewed the key issue as “legislative immunity,” and gave the attorneys until midnight Saturday to file additional briefs on the issue.
“This is an important issue and it’s complicated. It’s a threshold issue, really,” McCafferty said in court Friday.
The Democrats claim their rights under the Americans with Disabilities and Rehabilitation acts trump legislative immunity because they are intended to cover everyone, including governments, but the House Speaker maintains legislative immunity still holds and bars judicial intervention.
“(The Speaker) is being sued because the vote failed,” said Assistant Attorney General Anthony J. Galdieri, representing Packard, “and that is the entire point of legislative immunity, not to intrude into that area.”
However, the Democrats may have been helped by Rep. John Burt, R-Goffstown, who sued last-term’s House Speaker Stephen Shurtleff over a House rule banning firearms from the House Chamber.
The state Supreme Court ruling issued in August overturns a lower court decision dismissing Burt’s suit under the legislative immunity argument.
The Supreme Court ruling in effect pierces the veil of legislative immunity and sends the case back to the Superior Court.
The unanimous decision by Associate Justice James Bassett references an earlier ruling in Baines v. NH Senate President in 2005.
‘“The court system [remains] available for adjudication of issues of constitutional or other fundamental rights.” Id. (quotation omitted). “While it is appropriate to give due deference to a co-equal branch of government as long as it is functioning within constitutional constraints, it would be a serious dereliction on our part to deliberately ignore a clear constitutional violation.”’
The ruling said the veil can be pierced but does not address whether rights under the ADA are constitutional or fundamental rights.
And this case is from the New Hampshire court system and not the federal court.
This feud between Republicans and Democrats involves about 30 representatives who have sought accommodations under the ADA to join the sessions remotely citing the fear of COVID-19 exposure as a life or death decision over carrying out their duties as state representatives.
However, the length the Speaker’s Office has gone to deny the request from 7 percent of its members, after a number of proposals were made by Democrats before the final “No” last week, makes you wonder if something else is going on.
This is one of the slimmest majority margins one party has held in the House in some time, with 13 votes out of 399 needed to swing a decision.
So it would not take many Republicans not to make a session or to jump ship on a bill to disrupt the leadership’s wishes and pass or kill a bill.
The Republican majority is a lot safer if 30 or so Democrats do not participate because of safety concerns despite Packard’s best effort to provide a safe environment for the sessions at the Bedford facility, which is about twice as big as the Whittemore Center.
In their lawsuit, the seven Democrats named as plaintiffs raise the issue of partisan politics.
“Attendance at the most recent session of the House on January 6, 2021 showed that a far greater number of Democrats were unable to attend than members of the majority party. There were 44 Democratic absences and 10 Republican absences during that session. The advantage given to the majority party (a net of 34) thus exceeds the overall advantage of the majority (26 seats). Clearly, Defendant and his leadership team have a powerful political incentive to deny disabled Representatives the ability to attend remotely,” the complaint reads. “Individual Plaintiffs and their constituent voters have been effectively and unnecessarily deprived of their substantive due process rights to representation in the House, as guaranteed by the Fourteenth Amendment of the United States Constitution.”
So in other words the Catch-22 is not just affecting the representatives and their ability to carry out their duties, but also the nearly 100,000 state citizens who they represent.
There is another name for this Catch-22, disenfranchisement, a word heard frequently during the last few months.
This is not a partisan issue as much as a constitutional issue just like Rep. Burt’s suit against the Democratic Speaker is.
Garry Rayno may be reached at firstname.lastname@example.org.
Distant Dome by veteran journalist Garry Rayno explores a broader perspective on the State House and state happenings for InDepthNH.org. Over his three-decade career, Rayno covered the NH State House for the New Hampshire Union Leader and Foster’s Daily Democrat. During his career, his coverage spanned the news spectrum, from local planning, school and select boards, to national issues such as electric industry deregulation and Presidential primaries. Rayno lives with his wife Carolyn in New London.
InDepthNH.org is New Hampshire’s only nonprofit, online news outlet dedicated to reporting ethical, unbiased news and diverse opinions and columns.