Cushing v. Packard

691 F.Supp.3d 379

2023 DNH 113

Robert R. CUSHING, et al. v. Sherman PACKARD, in his official capacity as Speaker of the House for

the N.H. House of Representatives, et al.

Civil No. 21-cv-147-LM

United States District Court, D. New Hampshire

Signed September 11, 2023

Paul J. Twomey, Twomey Law Office, Chichester, NH, Suzanne Amy Spencer, Nixon Peabody LLP, Manchester, NH, Israel Francisco Piedra, Welts White & Fontaine PC, Nashua, NH, William E. Christie, Shaheen & Gordon, Concord, NH, for Robert R. Cushing, David Cote, Katherine Rogers, Kendall Snow, Paul Berch, Diane Langley, Charlotte DiLorenzo.

William E. Christie, Shaheen & Gordon, Concord, NH, Suzanne Amy Spencer, Nixon Peabody LLP, Manchester, NH, for NH Democratic Party.

Anthony Galdieri, Jennifer Ramsey, Samuel R. V. Garland, Office of the Attorney General, Concord, NH, James S. Cianci, NH House of Representatives, Concord, NH, for NH House of Representatives, Speaker of the House.

Samuel R. V. Garland, NH Attorney General's Office (Civil), Concord, NH, for NH House of Representatives, Clerk, NH House of Representatives, State of New Hampshire.

ORDER

Landya McCafferty, United States District Judge

The plaintiffs, several members of the New Hampshire House of Representatives¹ and the New Hampshire Democratic Party, have sued New Hampshire House Speaker Sherman Packard, the House Clerk, the House itself and the State of New Hampshire. Plaintiffs allege that the defendants violated Section 504 of the Rehabilitation Act (codified at 29 U.S.C. § 794), Title II of the Americans With Disabilities Act (codified at 42 U.S.C. §§ 12131-12134), and the State and Federal Constitutions when they refused to allow remote attendance and voting in response to the COVID-19 pandemic, despite the plaintiffs' health and predisposition to serious illness. Presently before the court is the defendants' motion to dismiss (doc. no. 51) the plaintiffs' Amended Complaint (doc. no. 44). See Fed. R. Civ. P. 12(b)(6). The court is not writing on a clean slate, having previously denied the plaintiffs' motion for a preliminary injunction. Cushing v. Packard, 560 F. Supp 3d. 541 (D.N.H. 2021) ("Cushing I"). In an en banc decision, the First Circuit Court of Appeals affirmed the denial of injunctive relief. Cushing v. Packard, 30 F.4th 27 (1st Cir. 2022) cert. denied, — U.S. —, 143 S. Ct. 308, 214 L.Ed.2d 136 (2022) ("Cushing II"). In its en banc affirmance, the Court of Appeals provided a roadmap that this court is duty-bound to follow. As set forth more fully below, that map leads the court to grant defendants' motion.

PROCEDURAL HISTORY

Concurrent with their filing of a complaint against Speaker Packard seeking a permanent injunction (doc. no. 1), the plaintiffs moved for a preliminary injunction. Doc. no. 2. In his objection, the Speaker, then the only defendant, argued, among other things, that plaintiffs' claims were barred by the doctrine of absolute legislative immunity. Doc. no. 17-1. Following an expedited hearing, this court denied plaintiffs' request for immediate relief. See Cushing I. The court concluded that the Speaker "is immune from plaintiffs' suit challenging his enforcement of a House rule that is closely related to core legislative functions." Id. at 548.

The plaintiffs appealed that decision to the First Circuit. An appellate panel vacated this court's decision, holding that Title II and Section 504 abrogate legislative immunity. See Cushing v. Packard, 994 F.3d 51 (1st Cir. 2021). The court then granted the Speaker's motion for rehearing en banc. See Cushing II, 30 F.4th at 30. The full court accepted additional briefing, including an amicus brief filed by the United States — upon the First Circuit's invitation — in support of the plaintiffs' position. Following oral argument, the First Circuit issued a divided en banc decision affirming the denial of the preliminary injunction. See id. at 30 (majority opinion); id. at 53 (Thompson, J., dissenting).

Rejecting each argument plaintiffs put forth for why legislative immunity did not bar their claims against the Speaker, the Court of Appeals ultimately held that this court did not err in denying the plaintiffs' motion for a preliminary injunction based on that immunity. Id. at 53. The gist of the majority's conclusion was that plaintiffs challenged a "quintessentially legislative act" to which "protection of the immunity . . . has been historically afforded." Id. (citation and quotation marks omitted).

Following remand, the Speaker moved to dismiss plaintiffs' original complaint based on the reasoning in the First Circuit's en banc decision. Doc. no. 40. Plaintiffs then moved, with the Speaker's assent, to amend their complaint. Doc. no. 42. The Amended Complaint names three additional defendants — Paul Smith in his official capacity as Clerk of the New Hampshire House, the New Hampshire House of Representatives, and the State of New Hampshire. Doc. no. 44 ¶¶ 1, 17-19. The Amended Complaint is otherwise factually similar to the original. In addition to the new defendants, plaintiffs also assert new legal theories — under the First and Fourteenth Amendments to the United States Constitution and others under Part I, Articles 11 and 22 of the New Hampshire Constitution. See id. ¶¶ 152-159.²

STANDARD OF REVIEW

Under Rule 12(b)(6), the court must accept the factual allegations in the complaint as true, construe reasonable inferences in the plaintiff's favor, and "determine whether the factual allegations in the plaintiff's complaint set forth a plausible claim upon which relief may be granted." Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 71 (1st Cir. 2014) (citation omitted). Generally, the court may consider only the facts alleged in the complaint, exhibits attached to the complaint, and other materials that are fairly incorporated in the complaint or are subject to judicial notice such as matters of public record. Lowe v. Mills, 68 F.4th 706, 713-14 (1st Cir. 2023); see Butler v. Balolia, 736 F.3d 609, 611 (1st Cir. 2013).

DISCUSSION

The court will not rehash the details of its prior order or that of the Court of Appeals. Nor will it restate the facts already set forth in those decisions. See Cushing II, 30 F.4th at 31-35; Cushing I, 560 F. Supp. 3d at 544-46. Instead, guided by the binding en banc decision of the Court of Appeals, the court first outlines the contours of legislative immunity and then addresses the claims against each defendant.

I. Legislative Immunity

The Supreme Court has long held that "legislative immunity is an analogue to the Speech and Debate Clause of the federal Constitution that reflects the importance that Anglo-American law traditionally has placed on protecting 'legislators acting within their traditional sphere' from being subject to suit." Cushing II, 30 F.4th at 36 (quoting Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 95 L.Ed. 1019 (1951)). "This 'privilege' from suit is 'indispensabl[e]' to 'enable and encourage a representative of the public to discharge his public trust with firmness and success.' " Id. (quoting Tenney, 341 U.S. at 373, 71 S.Ct. 783). Ultimately, the Court of Appeals noted, the reason to keep government officials "immune from deterrents to the uninhibited discharge of their legislative dut[ies is] not for their private indulgence but for the public good." Id. (alteration in original) (quoting Lake Country Ests., Inc. v. Tahoe Reg'l Plan. Agency, 440 U.S. 391, 405, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979)). The court also recognized that legislative immunity, unlike other forms of immunity, may be asserted even where, as here, plaintiffs seek only declaratory or prospective injunctive relief. Id. at 37 (citing Sup. Ct. of Va. v. Consumers Union of the U.S., Inc., 446 U.S. 719, 732, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980)).

II. House Speaker Packard

As previously noted, Speaker Packard was the only defendant named in the plaintiffs' original complaint. In affirming this court's denial of plaintiffs' motion for a temporary injunction, the court in Cushing II held that legislative immunity can thwart plaintiffs' claims under the ADA and Rehabilitation Act. Id. at 43. This court is bound by that finding. See Latin Am. Music Co. v. Media Power Grp., Inc., 705 F.3d 34, 40 (1st Cir. 2013) ("[u]nless corrected by an appellate tribunal, a legal decision made at one stage of a civil or criminal case constitutes the law of the case throughout the pendency of the litigation.") (quoting Flibotte v. Pa. Truck Lines, Inc., 131 F.3d 21, 25 (1st Cir. 1997)).

The Court of Appeals next rejected plaintiffs' claim that denying them the opportunity to participate by remote means was not a "legislative act" to which legislative immunity applies. Cushing II, 30 F. 4th at 49. As such, and regardless of the new legal theories added to the amended complaint, all federal claims against Speaker Packard - including the constitutional claims added in the amended complaint³ must be dismissed because the Speaker is immune from suit.

III. House Clerk Smith

Although he is not a legislator, plaintiffs' claims against House Clerk Smith are also barred by legislative immunity. As previously noted, the doctrine protects state legislators from liability for "legislative acts." Consumers Union, 446 U.S. at 732, 100 S.Ct. 1967. As this court found in denying plaintiffs' request for temporary injunctive relief, "even members of the executive or judicial branch may be entitled to legislative immunity for acts taken in legislative capacities." Cushing I, 560 F. Supp. 3d at 547-48. The First Circuit's decision in Nat'l Ass'n of Workers v. Harwood, 69 F.3d 622 (1st Cir. 1995), forecloses the possibility of relief against Clerk Smith. The plaintiffs in Harwood sued the Rhode Island House Speaker and the House Doorkeeper, seeking to prevent them from enforcing a House rule banning lobbyists and lobbying on the House floor while the House was in session. Id. at 624-25. The First Circuit held that both the Speaker and the...