By NANCY WEST, InDepthNH.org

BOSTON – The First Circuit Court of Appeals hearing on Friday focused on whether House Speaker Sherman Packard’s not allowing disabled House members to participate remotely was in fact a functional ouster of the lawmakers who could risk death by attending in-person sessions during the pandemic with Republicans, many of whom refuse to wear face coverings.

The full five-member appeals panel heard 90 minutes of arguments Friday in the case brought by House Democratic Leader Renny Cushing against Republican House Speaker Packard in which seven Democrats argued in February that their disabilities under the Americans with Disabilities Act entitled them to participate remotely in House sessions.

The Speaker’s position Friday continued to state that the legislature has immunity and can’t be sued for anything involving legislative activities. But many of the court’s questions revolved around whether that would still hold true if the effect kept lawmakers from participating or could be deadly.

The case has already been argued in the U.S. District Court where U.S. District Court Chief Judge Landya B. McCafferty sided with Speaker. The First Circuit overturned that decision in April and on Friday the case started anew with the current five members of First Circuit hearing the matter. Chief Judge Jeffrey Howard formerly served as New Hampshire’s attorney general and as the state’s U.S. Attorney.

Cushing released a statement after the hearing: “The continued insistence of the Speaker and his legal counsel on absolute legislative immunity illustrates once again the cavalier attitude demonstrated by him and members of his caucus to the threat posed by COVID-19. We are optimistic that the court will give us an opportunity to litigate these matters on remand, and we are confident that the Speaker’s overly broad position, putting members at risk, will be repudiated.”

Attorney Israel Piedra represented Cushing and the Democratic House members who filed the suit.

“This is an extraordinary situation about disabled legislatures – some with stage 4 cancer, compromised immune systems being forced to either (a) put their lives at risk in a room of 400 – many of whom are unmasked and unvaccinated or (b) forfeiting their right to vote leaving thousands of Granite Staters without a voice in the Legislature,” Piedra told the court.

One judge asked if the argument would be different if the state wasn’t facing COVID-19. Would the legislators have a claim to participate remotely?

“I think that’s the beauty of the Americans with Disabilities Act, that it gives a trial judge discretion to determine whether a requested accommodation is reasonable…,” Piedra said.

He told the court the problem is worse now because Speaker Packard won’t allow remote committee meetings and insists on in-person meetings “in a building that is not properly ventilated… Members do not have to wear masks in that building.”

Piedra said when the legislature meets next in late October, there are indications that it won’t be in a socially distanced setting as was previously the case, but the actual State House in Representatives Hall with 400 members sitting side by side.

Senior Assistant Attorney General Anthony Galdieri represented Speaker Packard and has argued that legislative immunity was a barrier to the Democrats’ request for injunctive relief.

“The existing case law – including this court’s opinion is that immunity would attach in this instance,” Galdieri said. There is nothing to indicate that this was a defacto ouster, he told the court.

One judge then asked: “Threatening someone with death is not an ouster?”

Attorney Katherine Lamm, representing the United States said: “The question in this appeal is simple.  Whether plaintiffs may sue the state of New Hampshire for reasonable accommodation under Title 2 of the ADA and 504 of the Rehabilitation Act.”

“The answer is simple as well, yes they can,” Lamm told the court.

She said the two sections obligate public entities that receive federal funding to provide reasonable accommodations to qualified individuals with disabilities.