CONCORD — A federal judge soon will rule on whether House members with disabilities should be allowed to remotely attend House sessions set for Wednesday and Thursday in Bedford.
Lawyers for Attorney General Gordon J. MacDonald and House Speaker Sherman Packard, R-Londonderry, said they had federal precedent on their side to toss out this lawsuit House Democratic Leader Renny Cushing and six colleagues brought last week.
The suit maintains that rejecting online access to those with serious medical conditions who could die from contact with COVID-19, violates the federal Americans With Disabilities Act along with the federal and state constitutions.
“This is an important issue and it is complicated. It’s a threshold issue, frankly,” said U.S. District Court Chief Justice Landya McCafferty during nearly three hours of online arguments between the lawyers.
Assistant Attorney General Anthony Galdieri said “legislative immunity” should block any court challenge to Packard’s decision that the House has no rule to permit any members to attend House sessions online.
House Democrats tried to get the full to House adopt such rules for online access, but the Republican majority on two occasions struck them down.
“We are being sued because the vote failed,” Galdieri said.
Judge says immunity defense a ‘high bar’
Judge McCafferty agreed the immunity question is a “high bar” that Cushing and his lawyers must clear to win this suit.
“Ultimately, that is going to be the question I am really focused on this weekend,” McCafferty said.
Israel Pietra of Nashua said the federal ADA trumps immunity, and permits the temporary injunction requested in this case.
“We aren’t changing legislation or how many votes it takes to pass…it’s an administrative thing, not a substantive thing,” Pietra told the judge. “This is like accommodations that legislatures already have made for folks who are in wheelchairs who get seats on the outside aisles in the back of the chamber.”
Paul Twomey, another lawyer for House Democrats, said the request was only for the 28 House members with disabilities who asked Packard for permission to attend sessions online.
Galdieri said Packard and his lawyers read the rules to mean any online access would have to be granted to all members of the House who, for any sound reason, requested it.
“This raises questions about the breath and scope of this access,” Galdieri said.
Last week, Packard announced that the House would meet at the NH Sportsplex in Bedford. With 55,000 square feet of space, it’s a venue that will ensure members can stay safe by sitting far apart from one another, Packard said.
Since the onset of the 2021 session, House committees have used a hybrid model for public hearings, with legislators either attending in person or remotely.
House Clerk Paul Smith testified that if House sessions are conducted with Zoom, he’d need to hire another full-time staffer to monitor the platform.
“If a member drops the Zoom meeting, do we need to stop until that person reconnects?” Smith asked.
The other Democrats joining Cushing in bringing suit who have their own medical conditions are Reps. Paul Berch of Westmoreland, Kendall Snow of Manchester, David Cote of Nashua, Katherine Rogers of Concord, Charlotte DiLorenzo of Newmarket and Diane Langley of Manchester.