New Hampshire Legislators Lose Bid to Participate Remotely

A federal court ruled the speaker of the New Hampshire House of Representatives is immune from seven legislators’ suit asking the court to compel him to allow them to participate remotely during the pandemic.

The New Hampshire State House in Concord, N.H. (Photo by AlexiusHoratius from Wikipedia Commons via Courthouse News)

(CN) — A federal judge in New Hampshire Monday denied seven state legislators’ request for an injunction that would allow them to reduce their risk of contracting Covid-19 by participating in the upcoming House session remotely. 

Robert “Renny” Cushing, a Democrat, six of his colleagues in the New Hampshire House of Representatives, and the New Hampshire Democratic Party, sued speaker Sherman Packard, a Republican, on Feb. 15, claiming they risked serious injury or death by attending in-person legislative sessions.

The plaintiffs’ claimed that Packard’s refusal to allow them to participate remotely violated the Americans with Disabilities Act, the Rehabilitation Act and the U.S. and state Constitutions.

They sought an injunction on behalf of themselves and 23 other House members with health conditions to allow them to participate in the Feb. 24 and 25 session remotely. 

Since the pandemic began last March, the New Hampshire House has met in person at the University of New Hampshire’s hockey arena or athletic field.

Last month, the legislators met in a university parking lot while seated in their cars.

The House voted in December and January against measures that would have allowed remote participation.

Responding to requests from members for remote participation, Packard stated on Feb. 5 that the “House has not adopted a rule which allows it to meet remotely, either wholly or in part, and until such a time as the members adopt such a rule, we are obligated to meet in person.”

The plaintiffs filed the lawsuit after Packard announced that the February session would take place indoors.

U.S. District Judge Landya McCafferty, a Barack Obama appointee, denied the legislators’ motion for a restraining order.

She ruled that Packard is protected from his colleagues’ lawsuit by legislative immunity.

“In denying Individual Plaintiffs’ requests to participate remotely at House sessions, the Speaker did no more than enforce a ‘rule that colors the very conditions under which legislators engage in formal debate.’ He is therefore immune from plaintiffs’ suit,” McCafferty wrote in her 17-page ruling

The plaintiffs did not convince the judge that immunity did not apply because they sought an injunction rather than damages from Packard.

“Plaintiffs have not provided — nor has the court located — any case holding that legislative immunity is inapplicable to Title II or Rehabilitation Act claims. To the contrary, several courts have applied legislative immunity to bar Title II and Rehabilitation Act claims, some of which sought injunctive relief,” McCafferty wrote.

Packard praised the ruling Monday.

“I thank the Court for giving this issue a thorough review,” he said in a statement. “We were confident in our position that remote participation could not be reasonably accommodated at this time. We will continute 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 health and safety measures in place.”

Cushing, the House minority leader, was joined in the suit by his Democratic colleagues David Cote, Paul Berch, Katherine Rogers, Diane Langley, Charlotte DiLorenzo and Kenneth Snow.

Cushing called the ruling a “setback,” according to the Valley News, while Snow, an 81-year-old with lung and mobility issues, told the newspaper that the ruling means he cannot attend the sessions.

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