By GARRY RAYNO, InDepthNH.org
CONCORD — About 30 disabled House Democrats at high-risk if they contract COVID-19 will have to decide if they will attend two House sessions this week.
U.S. District Court Chief Judge Landya B. McCafferty, denied a request by seven disabled Democrats who sued Republican House Speaker Sherman Packard of Londonderry seeking to attend the sessions remotely rather than in person.
The court decision says the Speaker cannot not be sued due to “legislative immunity” and the issue governs the “legislative atmosphere.”
“The court concludes that the Speaker is immune from plaintiffs’ suit challenging his enforcement of a House rule that is closely related to core legislative functions,” McCafferty concluded. “For that reason, the court must deny plaintiffs’ request for a temporary restraining order or preliminary injunction.”
After the ruling, Packard thanked the court for giving the issue a thorough review.
“We were confident in our position that remote participation could not be reasonably accommodated at this time,” Packard said. “We will continue to work with all House members to ensure that if they choose to attend any legislative meeting in person, that they can be confident that we are taking a high degree of precaution and have extensive health and safety measures in place.”
House Minority Leader Renny Cushing, D-Hampton, who was the lead plaintiff in the suit, said the ruling will prohibit some representatives from carrying out their duties.
“While today’s ruling is a setback, history will judge New Hampshire House Democrats favorably for standing for public health and democracy during this pandemic,” said Cushing. “Unfortunately, this case has exposed the callous indifference of House Republican leadership toward our most vulnerable members during the COVID-19 crisis that has taken the lives of a half a million Americans.”
He noted the complaint was rejected on the narrow claim of legislative immunity and said the Democrats never intended to disrupt the function of the House.
“After months of being stonewalled by the Speaker’s Office and House Republicans, we filed this suit to make sure that every single duly elected member of the House, Democrat or Republican, has the ability to represent their constituents without reasonable fear of the health and safety of themselves and their communities,” Cushing said. “All this ruling means is that the Speaker is solely to blame for active and obvious exclusion of members of the House. As we teach our children, just because you can do something does not mean you should.”
Under the ruling, he said, the Speaker and the Republican majority, could pass absurd rules to prohibit specific members from participating.
“I think that the role of the Speaker should be to protect the rights of every single member to freely represent their constituents,” Cushing said.
In their suit, Democrats claimed barring remote access to the House violated the Americans with Disabilities Act, the Rehabilitation Act, and the Constitution.
Their attorneys argued legislative immunity was negated in the two acts and because the state accepted and the legislature used federal CARES Act funds, it waived its claim to sovereign immunity.
A hearing on the suit was held Friday and at that time McCafferty said to her the key issue was legislative immunity.
The Speaker’s attorney, Assistant Attorney General Anthony J. Galdieri, argued legislative immunity was a barrier to the Democrats’ request for injunctive relief.
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.”
In her ruling, McCafferty said she is bound by an earlier federal court ruling involving the Rhode Island legislature which passed a rule barring lobbyists from the House floor when in session.
The Speaker was sued by several organizations, but the federal court found the rule governed a key legislative function and was protected by legislative immunity.
“Harwood stands for the proposition that, ‘[w]here . . . a legislative body adopts a rule, not invidiously discriminatory on its face, that bears upon its conduct of frankly legislative business . . . the doctrine of legislative immunity must protect [officials] who do no more than carry out the will of the body by enforcing the rule as part of their official duties.’ This includes rules that regulate ‘the very atmosphere in which lawmaking deliberations occur,’” McCafferty writes.
She notes that the House adopted rules that include Mason’s Manual which prohibits remote sessions.
“The plaintiffs have not identified any constitutional provision or House rule specifically authorizing remote participation in floor sessions, and the court is unaware of any such provisions or rules,” the judge writes. “And although the House has permitted remote participation by its members at committee meetings throughout the pandemic, plaintiffs have not identified a ‘custom’ of remote participation in floor sessions of the House. Indeed, it is undisputed that all House sessions have been in-person since the onset of the COVID-19 pandemic.”
Like the rule governing the Rhode Island legislature, the rule prohibiting remote participation in House sessions regulates the “the very atmosphere in which lawmaking deliberations occur,” she notes, saying the Speaker is therefore immune from plaintiffs’ suit.
The judge dismisses the plaintiff’s arguments the ADA and Rehabilitation Act abrogates legislative immunity and cites several federal cases that found otherwise.
And she rejected the argument the Speaker does not have legislative immunity because he is being sued in his official capacity, also citing cases that found contrary to that argument.
“The court is not persuaded by plaintiffs’ argument for several reasons. First, a basic premise of legislative immunity is that it applies to acts, not actors,” McCafferty writes. “Absolute legislative immunity ‘is justified and defined by the functions it protects and serves, not by the person to whom it attaches.’”
The complaint against the Speaker 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.”
The seven Democrats with disabilities filed the suit last week saying they will have to make a life or death decision whether to attend the two sessions scheduled for Wednesday and Thursday at the NH Sportsplex in Bedford.
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 Friday.
“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.
Besides Cushing, the state Representatives named in the lawsuit include David Cote, Kenneth Snow, Katherine Rogers, Paul Berch, Diane Langley, and Charlotte DiLorenzo.
The House has 137 bills to decide at the two-day business session to meet its deadline for acting on bills that need review by a second committee before final action.
Garry Rayno may be reached at email@example.com.