By GARRY RAYNO, InDepthNH.org
CONCORD — A lawsuit seeking remote access to the House of Representatives by disabled members was dismissed Monday by the U.S. District Court.
The lawsuit filed by Rep. Renny Cushing, D-Hampton, and disabled Democratic members of the House against Speaker Sherman Packard, R-Londonderry, before the 2021 session began at the peak of the pandemic, was originally rejected by the same court, but overturned by the 1st Circuit Court of Appeals.
Cushing and Rep. Katherine Rogers have both died since the suit was filed.
The appeal was reheard at Packard’s request and upheld sections of the U.S. District Court decision in a 3-2 decision and sent the case back to the court for future review.
Monday Chief Judge Landya McCafferty agreed with the speaker’s motion to dismiss the case after reviewing an amended complaint from the plaintiffs in light of the appeals court ruling.
“The court is not unsympathetic to plaintiffs’ legitimate concerns. But it cannot base its decision on whether it agrees with the procedures voted upon by the New Hampshire House of Representatives,” she wrote in the 16-page decision. “Based on the foregoing, the defendants’ motion to dismiss (doc. no. 51) plaintiffs’ Amended Complaint is granted. The dismissal of plaintiffs’ state constitutional claims is made without prejudice.”
The plaintiffs initially filed the suit against the speaker, but later added House Clerk Paul Smith and the State of New Hampshire, and claimed disabled members of the House had to decide to put their lives at risk due to the COVID-19 coronavirus by attending meetings, or missing House sessions and disenfranchising the voters who elected them as representative. They asked the federal court to order the Speaker to allow remote participation under the Americans with Disabilities Act.
But McCafferty initially ruled the speaker was exempt from the suit due to legislative immunity.
After the court’s decision yesterday, Packard said the ruling speaks for itself.
“It reaffirms our belief there is a democratic process by which the House adopts its rules, and that process is not subject to intervention by the courts,” Sherman said in a prepared statement. “Over the last two terms under my administration, we have worked tirelessly to keep legislative business moving forward. My hope is that we continue to work together and make some positive changes to benefit all NH citizens.”
Dismissing the case without prejudice allows the plaintiffs to pursue their contentions in state court
The case – Renny Cushing v. Speaker Sherman Packard was filed on Feb. 15, 2021. Cushing and six other Democratic House members sued Packard claiming he violated the Americans with Disabilities Act by failing to grant a reasonable accommodation that would permit the disabled House members to participate remotely.
The Republican-controlled House voted on several occasions during the 2021-2022 session not to adopt a rule to allow remote participation.
The majority claimed the vote to allow remote participation was needed due to an amendment added to Mason’s Rules of Order used to guide legislative operations.
“The plaintiffs further allege that Clerk Smith played a nefarious role in having section 786 of Mason’s Manual — which proscribes remote attendance — inserted into the 2020 edition of the Manual, which the House voted to guide its procedures in January 2021. Essentially, they allege that the Clerk used his position on the Mason’s drafting committee to insert section 786 into the manual for the improper motive of depriving plaintiffs of their rights, although plaintiffs provide little elaboration beyond the fact that Smith was on the committee,” according to McCafferty’s ruling.
Democrats claimed the refusal to allow remote participation was a political strategy to reduce the number of Democrats attending sessions, giving Republicans a greater majority than it would have had if disabled Democrats had been able to vote.
The court’s ruling is that legislative immunity applies to “legislative acts” and not individuals.
“The Court of Appeals noted, the reason to keep government officials ‘immune from deterrents to the uninhibited discharge of their legislative dut[ies is] not for their private indulgence but for the public good,’” McCafferty wrote. “The court also recognized that legislative immunity, unlike other forms of immunity, may be asserted even where, as here, plaintiffs seek only declaratory or prospective injunctive relief.”
Citing the appeals court ruling, McCafferty rejected the plaintiffs claims against Sherman, Smith and the state, while saying the claims do not rise to the necessary threshold to void legislative immunity.
The House has been meeting in person since the 2022 session and has continued to live stream most committee meetings, but members have to be present at the meetings to vote on recommendations.
The House Democratic Office was contacted about the court’s ruling but did not respond.
Garry Rayno may be reached at garry.rayno@yahoo.com.