Absolute Legislative Immunity Bars Federal Action Against N.H. State Legislature to Institute Procedures for Remote Voting During COVID Pandemic

In Cushing v. Packard, No. 21-1177 (1st Cir. Mar. 25, 2022), the en banc First Circuit – dividing 3-2 – holds that federal common-law legislative immunity bars an Americans with Disability Act (ADA) and Rehabilitation Act action to order the New Hampshire House of Representatives (House) to institute remote voting for medically vulnerable state representatives during the COVID pandemic.

In 2020, during the early stages of the pandemic, the House first suspended operations, then reconvened in an ice hockey arena that allowed social distancing. The House also obtained an advisory opinion from the state supreme court endorsing the constitutionality of remote participation by House members. But by the end of the year, an election swung the legislative majority from Democrats to Republicans and the House leadership refused to implement a remote-voting plan.

This action was brought by “members of the House, each of whom is alleged to be especially vulnerable to the virus due to a medical condition, and the New Hampshire Democratic Party. The appeal challenges the denial by the United States District Court for the District of New Hampshire of a motion for a preliminary injunction against Sherman Packard, the Speaker of the House. The motion seeks to require the Speaker to institute procedures that would permit the representatives to participate remotely in House proceedings — including with respect to the casting of votes on bills — to reduce their risk of being infected with the virus.”

“The District Court determined that the plaintiffs were not likely to succeed on the merits of their claims concerning the ADA and the RHA due to the Speaker’s assertion of legislative immunity.” In an interlocutory appeal to the First Circuit, the initial panel reversed the denial of an injunction. The case was then reheard by the full court.

The en banc First Circuit affirms the denial of the injunction. Citing the interest in safeguarding legislators from legal process while exercising their constitutional duties, the majoritynotes the robustness of the legislative privilege.  “[U]nlike some other common law immunities, legislative immunity may be asserted even against claims that seek only declaratory or prospective injunctive relief, . . . and exists to protect those engaged in legislative activities from the burdens of defending against a suit and not merely from being held liable in one . . . . In addition, the immunity is absolute rather than qualified, insofar as it applies.”

The plaintiffs argued that the suit was functionally one against the state itself, rather than Speaker, and thus not within legislative immunity. This is because under the ADA and Rehabilitation Act, claims are brought against the public entity rather than the state officer (42 U.S.C. § 12132; 29 U.S.C. § 794).

Yet the Supreme Court held in Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001), that ADA Title I actions had to be against the state officer to avoid the Eleventh Amendment bar to suits against states in federal court. “Against this backdrop, we fail to see why we must treat the plaintiffs’ claims to enforce Title II of the ADA as if they are not what they purport to be, such that we must treat them as if they are claims against the State of New Hampshire rather than a state officer (albeit in his official capacity only).”

Likewise, under the Rehabilitation Act, “neither the plaintiffs nor the United States points to any precedent that holds that suits against state officers — even when sued in their official capacity — to enforce the provisions of § 504 of the [the Act] through relief of the kind at issue here may not be brought.”

The majority also holds that Congress did not abrogate legislative immunity by passage of the ADA. Appling the clear-statement rule, the majority concludes that the ADA makes no specific mention of legislative immunity in 42 U.S.C. § 12202, which by its terms lifts only Eleventh Amendment immunity. ”[I]n addition to the fact that the statute here makes no express reference to legislative immunity, it also makes no express reference to legislatures or legislators[.]”

The plaintiffs also argued, specific to this case, “that their claims target only the Speaker’s failure to permit them to engage remotely in official legislative proceedings — including his failure to permit them to vote on bills in that manner” rather than any “legislative act.” But the majority holds that the House voting procedures are themselves a “legislative act” and any “injunctive relief that the plaintiffs seek is, on their own account, relief that must run against a legislator directly to be effective.”

In sum, “[t]he immunity serves an important democratic end notwithstanding that it insulates elected representatives from legal challenges for certain of their official actions. For that reason, we must be cognizant — as the [Supreme] Court has instructed us to be — of the risks associated with – failing to respect the traditional scope of legislative immunity, bounded though it is, out of respect for legislative freedom and thus democratic self-government.”

The dissenting judges would hold, though, that the effect of denying relief in this case has an equally detrimental effect on democratic values. The Speaker “says he is entitled to absolute legislative immunity, which shields judicial review of a House rule effectively ousting disabled members from that august assembly and (here’s the kicker) leaving their constituents unrepresented. My colleagues agree with the Speaker’s sweeping claim of absolute legislative immunity. I cannot abide by the Court’s decision to turn a blind eye to the effective disenfranchisement of thousands of New Hampshire residents simply because their representatives are disabled.”

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