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Full 1st Circ. To Decide If NH Speaker Can Bar Virtual Votes

By Chris Villani · June 2, 2021, 11:56 AM EDT

The full First Circuit will reexamine a panel ruling that said the speaker of the New Hampshire House could be sued for refusing to allow virtual votes during the COVID-19 pandemic.

The court set a Sept. 21 hearing to consider whether revived claims by Democratic lawmakers should proceed. The Democrats, all of whom have underlying health conditions, sued the Republican speaker when he declined to allow members of the nation's largest state legislature to vote remotely during the crisis.

"A majority of the active judges who are not disqualified have voted to hear this case en banc," the First Circuit's order said. "Accordingly, the petition for rehearing en banc is granted. In accordance with customary practice, the panel opinion released on April 8, 2021 is withdrawn, and the judgment entered the same date is vacated."

That April ruling found that the speaker, Sherman Packard, could be sued but also noted that the widespread availability of vaccines may render the issue moot. The lawmakers have said the issue has grown beyond reasonable accommodation for people with disabilities into a question of whether the speaker and the legislature are above the law.

The speaker, who ascended to his role when his predecessor died from COVID-19 a week after being sworn in, argued that legislative immunity bars any court from wading into how the New Hampshire House of Representatives chooses to conduct its business.

Renny Cushing, the minority leader and a named plaintiff in the case, told Law360 in March that the speaker's stance doesn't make any sense.

"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," Cushing said.

Packard 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 didn't waive legislative immunity.

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

"A statute may express a congressional intent sufficient to overbear a common-law doctrine without expressly mentioning the doctrine," U.S. Circuit Judge William J. 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 New Hampshire 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 suing lawmakers are all over 60 with various health conditions and disabilities and said their lives could be jeopardized by exposure to the virus. The group of seven Democratic lawmakers enjoyed virtual access to meetings in 2020 before Republicans took control of the House of Representatives, and 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 speaker has argued that the challenge is a logistical one, given that there are 400 essentially volunteer members of the legislative body.

A lower court denied the lawmakers' requested injunction, finding the common-law doctrine of legislative immunity protected the speaker from facing the federal claims.

Israel F. Piedra of Welts White & Fontaine PC, who represents the plaintiff lawmakers, told Law360 they were disappointed with the move.

"The court's decision to further delay a final decision in this matter means that disabled representatives, including ones with late-stage cancer and compromised immune systems, will either be unable to participate in upcoming sessions of the legislature or will be putting themselves at risk of death by attending," Piedra said in a statement. "This is especially concerning because large numbers of Republican representatives continue to oppose vaccination and refuse to wear masks."

Packard did not respond to a request for comments Wednesday morning.

The en banc order was entered by the five active judges on the nation's smallest federal appeals court. U.S. District Judge Gustavo A. Gelpí Jr. of Puerto Rico has been nominated by President Joe Biden to fill the court's lone vacancy.

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 Brian Dowling. Editing by Brian Baresch.

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