House Dems Appeal Federal Court Decision On Remote Session Access

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JEFFREY HASTINGS photo

House Minority Leader Rep. Renny Cushing, D-Hampton, is pictured at a House session last month at the NH Sportsplex in Bedford. Cushing is among the seven Democrats who filed the suit in U.S. District Court.

By GARRY RAYNO, InDepthNH.org

CONCORD — House Democrats appealed a U.S. District Court judge’s decision denying their request for remote access to House sessions.

Seven disabled Democratic House members sought an injunction prior to last week’s two House sessions that would have required House Speaker Sherman Packard to allow remote access to the meetings.

However, U.S. District Court Chief Judge Landya B. McCafferty denied their request saying legislative immunity prevents her from issuing an injunction.

The seven Democrats bringing the suit included House Minority Leader Rep. Renny Cushing, D-Hampton and was filed under the Americans with Disabilities Act and the Rehabilitation Act saying they were entitled to accommodations in order to avoid contracting COVID-19 at the sessions, which could be deadly for them.

“We have appealed because we believe the Courts should be available to protect the disabled from discrimination,” said Rep. David Cote, D-Nashua, “especially when discrimination is used to gain an unfair political advantage by robbing 100,000 citizens of representation in what should always be the people’s House.”

“I am pleased that the New Hampshire House Democrats are standing strong for the right of all Representatives to effectively do the job they were elected to do – to fully represent the interests of their constituents and the citizens of this State,” said Rep. Paul Berch, D-Westmoreland, another plaintiff in the case.

The Democrats claimed in their suit they would have to make a life and death decision about attending the sessions, and if they decided the risk was too great to attend, the speaker would be disenfranchising the people they represent.

In their suit, the Democrats claimed they lost faith in the Republican leadership’s ability to ensure proper health and safety measures to prevent infection in November after several COVID infected members attended their caucus infecting at least four other GOP members including former speaker Dick Hinch, who died a week after he was chosen as the new speaker.

The Republican leadership did not alert the Democrats to the infections prior to Organization Day in December.

However, Packard has maintained House rules forbid remote access to sessions, and a rule change would be needed, although the state Supreme Court ruled last summer the House could meet remotely.

Republican members of the House, who have the majority, have voted down a proposed rule to allow remote access three times, most recently during the two House sessions last week.

Packard also maintained the session meeting space, NH Sportsplex in Bedford, 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 claimed the plaintiffs 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.

Most of the 30 Democrats who requested accommodations to attend remotely did not attend the two days of sessions last week, although Cushing did.

In her ruling last week, McCafferty said the Speaker cannot 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.”
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.”

McCafferty dismissed the plaintiffs’ claim that the ADA and Rehabilitation Act do not exempt legislatures and other government entities and said court cases have upheld the immunity provision under the two federal acts.

The next House sessions are not scheduled until later this month, but will have to be held by March 18 when all non-money related or other bills that need review from a second committee must be acted on by the House.

Garry Rayno may be reached at garry.rayno@yahoo.com

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