Judge says House members can't attend sessions remotely

A federal judge tossed out a lawsuit House Democrats brought to try and let their members with disabilities to attend sessions remotely. The House is set to meet at the NH Sportsplex in Bedford Wednesday and Thursday, Here, House Speaker Sherm Packard, R-Londonderry, spoke with a fellow lawmaker at the last House session Jan. 6 in a parking lot on the campus of UNH in Durham.

CONCORD — A federal judge on Monday dismissed House Democrats’ lawsuit seeking to allow legislators with health issues to attend House sessions remotely.

In a 17-page decision, U.S. District Court Chief Justice Landya McCafferty said House Speaker Sherman Packard cannot be sued over rulings he made about the operation of the New Hampshire House of Representatives.

“The court concludes that the speaker is immune from plaintiffs’ suit, challenging his enforcement of a House rule that is closely related to core legislative functions,” McCafferty wrote.

The lawsuit, brought by House Democratic leader Renny Cushing of Hampton and colleagues, maintained that rejecting online access to members with serious medical conditions who could die from contact with COVID-19 violates the federal Americans with Disabilities Act and the federal and state constitutions.

The ruling means House members must show up in person if they wish to take part in the next House sessions, which are set for the NH Sportsplex in Bedford on Wednesday and Thursday.

“I thank the court for giving this issue a thorough review,” Packard said in a statement Monday. “We were confident in our position that remote participation could not be reasonably accommodated at this time.

“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 health and safety measures in place.”

Cushing said House Democrats will continue to advocate for safety of legislators and staffers.

“While today’s ruling is a setback, history will judge New Hampshire House Democrats favorably for standing for public health and democracy during this pandemic,” Cushing said in a statement. “Unfortunately, this case has exposed the callous indifference of House Republican leadership toward our most vulnerable members during the COVID-19 crisis that has taken the lives of a half a million Americans.”

The decision relied heavily on a 1995 federal appeals court finding that barred a lawsuit brought against then-Rhode Island House Speaker John Harwood, who issued a rule banning lobbyists from being on the House floor while it was in session.

McCafferty said federal courts have limited jurisdiction when it comes to state legislative disputes.

“Legislative immunity shelter(s) individual legislators from the distractions and hindrance of civil litigation so that they can perform their legislative duties without undue interference from federal lawsuits,” McCafferty wrote.

ADA over immunity?

Paul Twomey and Israel Pietra, lawyers who brought the Cushing suit, had argued the Americans with Disabilities Act trumped the speaker’s immunity claim.

The suit asked the judge to order Packard give an accommodation to 28 legislators who cited their own health risks in asking that they be allowed to attend sessions remotely.

Packard said he has no authority to grant that request, as there’s no House rule that allows members to participate in sessions online.

Democrats tried in December and January to convince the House to adopt those rule changes, but the Republican-led body turned aside both attempts.

Packard announced last week that the House would meet at the Bedford sports complex starting at 9 a.m. each day. With 55,000 square feet of space, it’s a venue that will ensure all 400 members can stay safe by sitting far apart from one another, Packard said.

Since the start of the 2021 session, House committees have used a hybrid model for hearings, with legislators either attending in person or remotely.

So far in 2021, the 24-member state Senate has conducted all of its business remotely.

Cushing suffers from Stage 4 prostate cancer and said he was hospitalized in Boston four times since his August 2020 diagnosis.

Six other House Democrats with serious medical problems joined Cushing in bringing the suit: 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.

Monday, March 08, 2021