By GARRY RAYNO, InDepthNH.org
CONCORD — The First Circuit Court of Appeals has overturned a U.S. District Court judge’s decision denying a request for remote access to House sessions.
Seven disabled Democratic House members sought an injunction prior to last month’s two House sessions that would have required House Speaker Sherman Packard to allow remote access to the meetings to avoid contracting COVID-19 in light of earlier Republican behavior.
However, U.S. District Court Chief Judge Landya B. McCafferty denied their request saying legislative immunity prevents her from issuing an injunction.
The appeals court on Thursday said the Speaker and NH House are not immune from the Americans with Disabilities Act and the Rehabilitation Act.
In U.S. District Court, Packard’s attorney cited a First Circuit ruling in National Association of Social Workers v. Harwood, which banned lobbyists from the Rhode Island House floor, as being similar to their case.
“Harwood would be more analogous to the case now before us if the legislature in Harwood had barred lobbyists in wheelchairs from having access to the House,” the appeals court justices write. “Such a case would present an issue not addressed at all in Harwood: Whether either Title II of the ADA or Section 504 of the Rehabilitation Act abrogates the immunity relied upon in Harwood.”
The appeals court cites several sections of Title II of the ADA that say explicitly activities of a “public entity” are under the act’s jurisdiction.
“The ADA further provides that Congress’s imposition of obligations on state governments under Title II may trump even Eleventh Amendment immunity,” the justices write.
The 11th Amendment immunity prevents a citizen from another state or another country from suing a state without its consent.
The court cites similar provisions in the Rehabilitation Act and also notes the Legislature waived its immunity when it accepted at least $190,000 in CARES Act funds for COVID-19 related expenses.
“The type of abrogation that occurs under the Rehabilitation Act arises from the state’s own action in deciding to accept federal program funds, thereby waiving its immunity. Such a waiver may be particularly apt in this case, given the receipt by New Hampshire’s legislature of at least $190,000 in federal funds from the Coronavirus Aid, Relief, and Economic Security (CARES) Act,” the justices write. “These funds were provided to the legislature in order to pay for COVID-19-related expenses, such as ‘off-site’ sessions, subscriptions for videoconferencing technology, IT equipment for remote work, and sanitation.”
The court notes whether the seven plaintiffs would qualify as disabled under the two acts has not been determined, nor has what a reasonable accommodation might be and remanded the case back to the U.S. District Court to make those determinations.
See full order here: http://media.ca1.uscourts.gov/pdf.opinions/21-1177P-01A.pdf
House Minority Leader Rep. Renny Cushing, D-Hampton, is among the seven Democrats who filed the suit in U.S. District Court.
The Democrats claimed 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 of 2020.
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.
Garry Rayno may be reached at garry.rayno@yahoo.com