House Dems seek Court of Appeal ruling on remote access to sessions

By GARRY RAYNO, InDepthNH.org

CONCORD — Disabled Democrats who sued for remote access to House sessions are seeking an expedited ruling from the First Circuit Court of Appeals in a motion filed Monday.

The plaintiffs, six Democratic House members with health issues and the state Democratic Party, seek an order affirming the court’s decision and refer the case to the U.S. District Court, grant Democrats remote access to risk while the lower court determines whether they are covered by the American with Disabilities Act and awards any other necessary relief.

The dozen lawmakers who face death if they contract COVID-19 are at risk of returning to the 400-seat Hall of Representatives for a session on March 10, and the motion says it is a grave danger to representatives without masking obligation and without social distance capacity. And most Republicans refuse to wear masks and many oppose COVID-19 vaccinations, the plaintiffs claim.

“Each member…must be within 6 feet of 19 to 26 other members and within 3 feet of 8 to 13 others. Sessions typically last for entire days,” lead attorney Paul Twomey wrote in the motion.

Reps haven’t sat side by side in the historic room for two years and House Democratic leader Rep. Renny Cushing, D-Hampton, said last week it was a decision to short-sightedness that put the limbs in danger.

“Packing people into the Hall of Representatives like sardines without a mask or requirement for vaccinations or other prevention strategies is a disaster in the making,” Cushing said.

At-risk Democrats, including Cushing, sued House Speaker Sherman Packard in federal court about a year ago under the Americans with Disabilities Act to gain remote access to House sessions, claiming that without that access, it was effectively a functional ousting of lawmakers stretching the slim Republican majority.

The case was argued in U.S. District Court where U.S. District Court Chief Judge Landya B. McCafferty sided with the president, who claimed statutory immunity.

The Democrats appealed, and the First Circuit reversed that ruling in April 2021 and sent the case back to the district court to determine whether Democrats with disabilities actually met the law’s definition.

Packard requested a rehearing, which the appeals court granted and which took place last year, but no decision was issued.

All hearings and decisions at this stage have been issued on an expedited basis, according to the motion.

“Since this matter was argued before the Court on September 10, 2021, the Defendant has taken steps that have significantly reduced and/or eliminated the plaintiff-appellants’ limited ability to safely fulfill the constitutional obligations of their office and have resulted in the deprivation of their rights. of themselves and their constituents,” writes Twomey.

Since then, the conditions of four of the plaintiffs have changed, making the need for a decision more critical, he said, noting that one had undergone an organ transplant and was undergoing immunosuppressive chemical therapy, another diagnosed with stage 4 cancer and undergoing chemotherapy treatments, another contracted COVID-19, and another is in palliative care.

While the House met offsite in larger facilities to allow for social distancing and masked and unmasked sections, some members who followed Centers for Disease Control guidelines and stayed away, might have make a difference in some important decisions, according to the motion.

“The House has had many votes in recent sessions decided by very narrow margins,” Twomey writes. “Three votes initially resulted in ties which were then broken by the President’s vote.”

The tie vote involved a redistricting of the House, an attempt to repeal a 24-week abortion ban and mandatory ultrasound for all abortions, and allowing workers in medical facilities to be exempt from vaccination mandates against COVID-19, according to the motion.

“These votes had enormous consequences for the people of New Hampshire,” writes Twomey. “Other single-digit issues include votes on redistricting Congress, legalizing cannabis, funding education and funding the pension system.”

Future sessions will also address many issues of critical importance to plaintiffs, their constituents, and all citizens of New Hampshire, he notes.

“The people of the state have the right to have these decisions made with the participation of all duly elected representatives,” the motion reads.

The President opposes the motion requesting the expedited decision.

Packard maintained that he enjoyed legislative immunity and could not be prosecuted for the routine operations of the House.

He also maintains that a change to House rules is needed to allow members to remotely access sessions, but Democrats’ proposed rule changes have been voted down at least four times by Republicans.

The Biden administration filed an appeal in favor of the Democrats.

Attorney Katherine Lamm, representing the United States, said at the second appeals court hearing: “The issue in this appeal is simple. Whether plaintiffs can sue the State of New Hampshire for reasonable accommodation under Title 2 of the ADA and Section 504 of the Rehabilitation Act.

“The answer is also simple, yes they can,” Lamm told the court.

She said both sections require public entities that receive federal funding to provide reasonable accommodations to qualified persons with disabilities.

The rest of the House sessions for this year are expected to take place in the Representative Hall. Members of the Senate gathered in the Representative Hall to allow for social distancing, but will also return to Senate chambers in March.

Garry Rayno can be reached at garry.rayno@yahoo.com.

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