By Chris Villani

Law360 (March 26, 2021, 2:35 PM EDT) -- The speaker of the New Hampshire House of Representatives told the First Circuit Thursday that one of the members cannot force the chamber to conduct voting virtually during the COVID-19 pandemic since legislative immunity bars challenges to how the chamber functions.

Sherman Packard, the Republican Granite State speaker who ascended to the position after his predecessor died of COVID-19 a week after being sworn in, asked the appellate panel to uphold a federal court ruling denying a bid by a group of Democratic representatives to force full house business to be conducted virtually.

Packard argued the lower court got it right in finding that the claims are barred under U.S. Supreme Court precedent. He said it makes no difference whether the representatives sue the state or the speaker in his official capacity.

"The Supreme Court has made clear that absolute legislative immunity 'attaches to all actions taken in the sphere of legitimate legislative activity,'" the brief stated. "The plaintiffs' remaining arguments are nothing more than different shades of the well-worn contention that legislative immunity should not apply to claims involving important federal rights. Courts have consistently rejected this assertion."

Packard noted that the house has overwhelmingly rejected remote participation in floor sessions. But in their opening salvo to the First Circuit earlier this month, the Democratic lawmakers argued they have qualified disabilities under the Americans with Disabilities Act and their lives could be jeopardized by exposure to the virus.

They told the panel the house conducted virtual committee meetings, including executive sessions, in 2020 and received an advisory opinion from the state's top court that said "holding a House session remotely, either wholly or in part, whereby a quorum could be determined electronically," would not violate the state's constitution.

But Republicans gained control of the chamber, which has 400 members working essentially as volunteers. The Democrats say their colleagues have largely eschewed mask-wearing and other mitigating measures and argue the legislative immunity pitch is misplaced.

Renny Cushing, the minority leader and a named plaintiff in the case, told Law360 Friday that the case has grown beyond the issue of reasonable accommodation into a question of whether the speaker and the Legislature are above the law.

"For the Legislature to take the position that legislative immunity prohibits any kind of scrutiny or oversight is untenable," Cushing said in an interview. "Under that argument, the speaker could decide people of color should sit in the back of the hall or that women would not be allowed to serve on committees and somehow that would be above review. It doesn't make any sense to me."

In the brief filed by Cushing and his colleagues, they argued that "legislative immunity is a personal common-law immunity which cannot be held by government entities."

"This case is different because it involves affirmative obligations placed on the state itself by a federal law [namely, Title II of Americans with Disabilities Act] which abrogates sovereign immunity and specifically applies to the activities of state legislatures," the brief stated.

But Packard argued in his filing that the state constitution vests the power to determine its rules with the house and the house alone, and that has been backed up by the state's Supreme Court in past holdings.

Republicans hold 212 of the 400 seats in the legislative body, which is the largest house of representatives in the nation. Members are paid an annual salary of $100.

When Democrats had control of the chamber in 2020, before the advisory opinion blessing remote sessions, the then-speaker made alternate arrangements to allow the body to meet with social distancing measures in place.

In June 2020, the house convened twice at the Whittemore Center in Durham, which is the home of the University of New Hampshire ice hockey team.

Although masks and social distancing were required, about 50 to 60 members, most or all of whom were Republicans, refused to wear masks, according to the Democratic lawmakers' brief. Cushing noted that the suit falls completely along party lines, giving Republicans a political incentive to force in-person sessions that Democrats may be unable to attend.

But more bothersome, he argued, is the notion that the house is not subject to the ADA, especially during a state of emergency in which lawmakers are asking citizens to adhere to public health restrictions and protocols.

"In this instance, the Legislature should set the example, not flout the guidelines," Cushing said.

Packard did not immediately respond to a message left Friday seeking comment.

The Democratic legislators are represented by Israel F. Piedra of Welts White & Fontaine PC and Paul J. Twomey of the Paul Twomey Law Office.

The speaker is represented by James S. Cianci of the New Hampshire House of Representatives and Anthony J. Galdieri, Samuel R.V. Garland, Jennifer Ramsey and Daniel E. Will of the New Hampshire Attorney General's Office.

The case is Cushing et al. v. Packard, case number 21-1177, in the U.S. Court of Appeals for the First Circuit.

--Editing by Janice Carter Brown.

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