judge

Judge Landya McCaffrey ruled against seven Democrats in their suit against the speaker of the N.H. House. (COURTESY PHOTO)

ief Judge Landya B. McCafferty denied a request by seven disabled Democrats who sued Republican House Speaker Sherman Packard, seeking to attend the sessions remotely rather than in person.

The court decision says the Speaker cannot be sued due to “legislative immunity” and the issue governs the “legislative atmosphere.”

“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 concluded. “For that reason, the court must deny plaintiffs’ request for a temporary restraining order or preliminary injunction.”

After the ruling, Packard, of Londonderry, thanked the court for giving the issue a thorough review.

“We were confident in our position that remote participation could not be reasonably accommodated at this time,” Packard said. “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.”

House Minority Leader Renny Cushing (D-Hampton), lead plaintiff, said the ruling will prohibit representatives from carrying out their duties.

“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,” said Cushing. “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.”

He noted the complaint was rejected on the narrow claim of legislative immunity. “All this ruling means is that the Speaker is solely to blame for active and obvious exclusion of members of the House. As we teach our children, just because you can do something does not mean you should.”

In their suit, Democrats claimed barring remote access to the House violated the Americans with Disabilities Act, the Rehabilitation Act, and the Constitution. Their attorneys argued legislative immunity was negated in the two acts and because the state accepted and the legislature used federal CARES Act funds, it waived its claim to sovereign immunity.

A hearing on the suit was held Friday, and at that time McCafferty said to her the key issue was legislative immunity.

The speaker’s attorney, Assistant Attorney General Anthony J. Galdieri, argued that in order to abrogate legislative immunity, it would have to be a stated exception in the two federal laws and it is not.

He said the problem for the plaintiffs is there have been at least two votes to change the rules to allow for the remote session and both have failed and that is part of the legislature’s core function.

“(The Speaker) is being sued because the vote failed,” he said, “and that is the entire point of legislative immunity, not to intrude into that area.”

In her ruling, McCafferty said she was bound by a federal court ruling involving the Rhode Island legislature, which passed a rule barring lobbyists from the House floor when in session.

The Speaker was sued by several organizations, but the federal court found the rule governed a key legislative function and was protected by legislative immunity.

“Harwood stands for the proposition that, “where ... a legislative body adopts a rule, not invidiously discriminatory on its face, that bears upon its conduct of frankly legislative business ... the doctrine of legislative immunity must protect (officials) who do no more than carry out the will of the body by enforcing the rule as part of their official duties.’ This includes rules that regulate ‘the very atmosphere in which lawmaking deliberations occur,’” McCafferty wrote.

She noted that the House adopted rules that include Mason’s Manual, which prohibits remote sessions.

“The plaintiffs have not identified any constitutional provision or House rule specifically authorizing remote participation in floor sessions, and the court is unaware of any such provisions or rules,” the judge wrote. “And although the House has permitted remote participation by its members at committee meetings throughout the pandemic, plaintiffs have not identified a ‘custom’ of remote participation in floor sessions of the House. Indeed, it is undisputed that all House sessions have been in-person since the onset of the COVID-19 pandemic.”

The seven Democrats with disabilities filed the suit last week saying they would have to make a life-or- death decision on whether to attend the two sessions scheduled for Wednesday and Thursday at the NH Sportsplex in Bedford.

Packard claims the area is twice the size of the Whittemore Center at UNH, where the House met last year to allow for social distancing.

But the suit claims they would risk serious illness or death because of COVID-19 and “reckless behavior” on the part of the Republican members if they attend the sessions in person.

If they decide they cannot attend and there is no accommodation to attend remotely through Zoom, they will be disenfranchised as will the people they represent, said the plaintiff’s attorney, Paul Twomey, on Friday.

Besides Cushing, others filing the suit were David Cote, Kenneth Snow, Katherine Rogers, Paul Berch, Diane Langley and Charlotte DiLorenzo.

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