A federal court has upheld an earlier court decision to block medically frail lawmakers from participating remotely in sessions of the New Hampshire House of Representatives, while their lawsuit against House Speaker Sherman Packard continues.
This latest ruling, from the U.S. First Circuit Court of Appeals, comes more than a year after six Democrats — including former House Minority Leader Renny Cushing, who died this month from cancer — sued Packard under the Americans with Disabilities Act.
The Democrats argued that Packard’s decision to bar lawmakers from remote access to House sessions during the pandemic violated the ADA. While a federal judge had denied their request for a preliminary order, an appeals court reversed that decision last year. The most recent ruling, issued last week, affirms the original decision.
“There is no basis for concluding that the District Court erred in making the only ruling that is before us in this appeal: denying the request for emergency relief against the Speaker due to the Speaker's decision not to make the kind of accommodation with respect to House Rule 65 that the plaintiffs seek,” Judge David Baron wrote for the majority.
The 59-page decision sends the case back to the U.S. District Court in Concord.
The five-judge panel split, 3-2, on the case. The dissenting opinion, signed by Judges O. Rogeriee Thompson and William Kayatta, was pointed in its critique. It faulted the majority for supporting “the Speaker’s sweeping claim of absolute legislative immunity,” and ignoring “the effective disenfranchisement of thousands of New Hampshire residents simply because their representatives are disabled.”
“My colleagues also today lay the foundation to immunize any legislative rule that ‘does not, on its face, target any class of legislators’ -- a standard so broad as to immunize race- and religion-based discrimination.”
This ruling effectively upholds the lower court’s rejection of Democrats’ claims against Packard on the grounds that, as a House Speaker enforcing a duly adopted rule, he’s protected by legislative immunity.
“This opinion reaffirms the importance of the integrity of the legislature and the legislative process. Both the First Circuit and District Court evaluated the plaintiffs' arguments and ruled against them," Packard said.
Rep. David Cote of Nashua was among the plaintiffs, and now serves as House Democratic leader after Cushing’s death earlier this month. Safety concerns caused by a heart condition have kept Cote, who’s served in the House since 1983, from casting a vote in a single House session – socially distanced or not – in two years. Cote called the ruling disappointing but stressed it isn’t the final word.
“The court’s decision only related to preliminary injunction, not the Speaker’s denial of minimal accommodations for representatives with disabilities,” Cote said.
