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Judge: N.H. Democratic Lawmakers Can't Sue Speaker For Banning Remote Attendance During COVID

New Hampshire State House photo
Allegra Boverman for NHPR

A federal judge has rejected a legal challenge by Democrats to force New Hampshire House Speaker Sherman Packard to allow lawmakers with disabilities to attend House sessions remotely during the COVID-19 pandemic.

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The Judge ruled Monday that Packard can’t be sued for enforcing House rules that don’t contemplate remote sessions. (Read the ruling here.)

In her seventeen-page order, Judge Landya McCafferty noted that Part II, Article 22 of the State Constitution gives the House complete “control and discretion” over its rules, and that the House has never adopted a rule to allow remote participation in floor sessions, even during the pandemic.

Judge McCafferty added that Speaker Packard’s denial of requests by Democrats to participate remotely amounted to enforcing a rule related to a core legislative function.

“He is therefore immune from plaintiffs’ suit,” McCafferty wrote.

In a statement, Packard thanked the court.

“We were confident in our position that remote participation could not be reasonably accommodated at this time,” said Packard, who won election as speaker after former Speaker Dick Hinch died from COVID-19.

“We will continue to work with all House members to ensure that if they choose to attend any legislative meeting in person that they can be confident that we are taking a high degree of precaution and have extensive heath and safety measures in place,” Packard said.

Democrats had argued that lawmakers with serious health conditions - including cancer and compromised immune systems - deserved accommodation under the Americans with Disabilities Act and the state and federal Constitutions.

“I think that the role of the Speaker should be to protect the rights of every single member to freely represent their constituents," said House Democratic Leader Renny Cushing, who has Stage IV cancer and rarely leaves his house but has participated when lawmakers have met in-person since the pandemic began.

“All this ruling means is that the Speaker is solely to blame for active and obvious exclusion of members of the House,” Cushing said.

One such lawmaker is Deputy Democratic Leader David Cote. He’s represented Nashua for 20 terms, and considers Packard’s insistence on in-person sessions “a blot on the institution of the House.”

Cote’s coronary artery disease has kept him at home for months, and he says he won’t risk his life to attend this week’s House session in Bedford at the NH Sportsplex, a 50,000 square-foot indoor sports facility.

Packard says the facility has the space and ventilation to ensure safety, but Cote says he and other lawmakers with serious health conditions shouldn’t be forced to put that proposition to the test.

“If you make a mistake, if you make one slip, there is not a do over.’” Cote said.

Josh has worked at NHPR since 2000.

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