By Brian Dowling

Law360 (April 9, 2021, 3:50 PM EDT) -- The speaker of the New Hampshire House of Representatives isn't immune from a suit challenging his ban on virtual votes during the COVID-19 pandemic, the First Circuit said Thursday, reviving federal claims by older Democratic lawmakers in the Granite State.

Still, the three-judge panel acknowledged that immunity of another sort — vaccination against the novel coronavirus — could soon moot the case targeting House Speaker Sherman Packard.

Remanding the dispute, the appeals panel tasked the lower court to consider whether "changing circumstances," including more widely available vaccines, have snuffed out any live controversy between the parties.  

The vaccine question was front-and-center during oral arguments on April 5. The lawmakers, who claim to be especially vulnerable to the effects of the virus, argued some of them still had not received both doses or gone through the appropriate waiting period to be considered fully vaccinated. U.S. Circuit Judge William J. Kayatta Jr. commented during the hearing that if the panel waited two weeks to issue an opinion, the entire case would be moot.

Packard had argued he is protected against federal claims, such as those brought in the case under the Americans with Disabilities Act and the Rehabilitation Act, because Congress failed to waive legislative immunity.

But the First Circuit panel said Thursday it didn't need to.

"A statute may express a congressional intent sufficient to overbear a common-law doctrine without expressly mentioning the doctrine," Judge Kayatta wrote in the opinion. "The key question is whether the statute as a whole makes it 'evident' that Congress understood its mandate to control."

The appeals court noted that both statutes at issue spell out that they apply to state governments.

"The speaker unsurprisingly makes no argument that the New Hampshire House of Representatives is not part of New Hampshire's state government," Judge Kayatta said.

For the Rehabilitation Act, state governments waive immunity when they accept federal funds. The New Hampshire state legislature took $190,000 from the U.S. government through the Coronavirus Aid, Relief and Economic Security, or CARES, Act, specifically for expenses tied to the type of remote participation at issue in the case.

The plaintiffs, a group of seven Democratic lawmakers who enjoyed virtual access to meetings in 2020 before Republicans took control of the House of Representatives, sued Packard in federal court after repeated unsuccessful attempts to change the body's rules to include exemptions to the in-person participation requirement.

The group of lawmakers, all over 60 with various health conditions and disabilities, said their lives could be jeopardized by exposure to the virus.

The lower court denied the lawmakers' requested injunction, finding the common-law doctrine of legislative immunity protected the speaker from facing the federal claims. The decision relied on a First Circuit ruling that recognized such immunity in the context of a Rhode Island legislative rule barring lobbyists from the floor of the state House of Representatives while it was in session.

However, the First Circuit said the Rhode Island case — National Association of Social Workers v. Harwood — wasn't on point.

"Harwood would be more analogous to the case now before us if the legislature in Harwood had barred lobbyists in wheelchairs from having access to the House," the panel said.

The panel acknowledged that its examination of whether immunity applied in the face of the federal statutes raised in the Granite State case is "a matter of first impression."   

The lawmakers' attorney, Israel F. Piedra of Welts White & Fontaine PC, said in a statement the decision remanding the case was "a vindication of the disabled representatives and their constituents."

"The court's decision confirms that the rights of disabled persons are not diminished just because a particular political party controls the legislature," Piedra said.

Representatives for Packard and the New Hampshire Attorney General's Office, which defended the speaker, were not immediately available for comment on Friday.  

U.S. Circuit Judges William J. Kayatta Jr. and O. Rogeriee Thompson, as well as U.S. District Judge Douglas P. Woodlock, by designation, sat on the First Circuit panel.

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.

--Additional reporting by Chris Villani. Editing by Philip Shea.

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