Cushing v. Packard

30 F.4th 27

Robert R. CUSHING, individually and in his capacity as the Minority Leader of the N.H. House of Representatives; David Cote; Katherine D. Rogers; Kendall Snow ; Paul Berch ; Diane Langley; Charlotte DiLorenzo; N.H. Democratic Party, Plaintiffs, Appellants,

v.Sherman PACKARD, in his official capacity as Speaker of the House for the N.H. House of Representatives, Defendant, Appellee.

No. 21-1177

United States Court of Appeals, First Circuit.

March 25, 2022

Israel Piedra, with whom Welts, White & Fontaine, PC, William E. Christie, S. Amy Spencer, and Shaheen & Gordon, P.A. were on brief, for appellants.

Anthony J. Galdieri, Senior Assistant Attorney General for the State of New Hampshire, with whom Samuel R. V. Garland, Assistant Attorney General for the State of New Hampshire, and Jennifer S. Ramsey, Assistant Attorney General for the State of New Hampshire, were on brief, for appellee.

Katherine E. Lamm, Attorney, Civil Rights Division, United States Department of Justice, with whom Kristen Clarke, Assistant Attorney General, and Thomas E. Chandler, Attorney, Civil Rights Division, United States Department of Justice, were on brief, for the United States, amicus curiae.

Joshua L. Gordon was on brief for ABLE - New Hampshire and National Disability Rights Network, amici curiae.

Before Howard, Chief Judge, Lynch, Thompson, Kayatta, and Barron, Circuit Judges.

Opinion En Banc

BARRON, Circuit Judge, with whom Howard, Chief Judge, and Lynch, Circuit Judge, join.

Does either Title II of the Americans with Disabilities Act ("ADA") or § 504 of the Rehabilitation Act ("RHA") authorize a federal court to resolve a dispute among members of a state legislative body about whether votes on bills may be cast remotely rather than in person? That question and others closely related to it arise here from a dispute among members of the New Hampshire House of Representatives ("House") over the proper way for that legislative body to conduct its official proceedings in the face of the threat to health that the COVID-19 virus poses.

Procedurally speaking, the questions come to us in connection with an interlocutory appeal 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 underlying suit names the Speaker, in his official capacity, as the defendant and alleges his violation of both Title II of the ADA and § 504 of the RHA, among other provisions of federal and state law, based on his refusal to grant the representatives' request for that same accommodation. The motion for a preliminary injunction was based on the plaintiffs' ADA- and RHA-related claims.

The District Court denied the motion based on the Speaker's assertion of legislative immunity. See Cushing v. Packard, No. 21-cv-147, ––– F.Supp.3d ––––, 2021 WL 681638 (D.N.H. Feb. 22, 2021). On interlocutory appeal, a panel of our Court unanimously vacated and remanded the District Court's ruling on the ground that Title II of the ADA abrogated, and § 504 of the RHA in this case effected a waiver of, legislative immunity, such that the plaintiffs' claims based on those statutes could be considered on their merits. Cushing v. Packard, 994 F.3d 51 (1st Cir. 2021).

The Speaker at that point petitioned our Court for rehearing en banc, which we granted in an order that vacated the panel's decision. Cushing v. Packard, No. 21-1177, 2021 WL 2216970 (1st Cir. June 1, 2021) ; see 1st Cir. I.O.P. X(D). Thus, we now must review anew the District Court's denial of the motion for the preliminary injunction.

We are mindful of the seriousness of the threat to public health that the COVID-19 virus poses. Indeed, we have held our proceedings in this case remotely in accord with our own protocols for dealing with that threat. But, our task in this appeal is not to determine the most advisable means of conducting governmental operations during the pandemic. Nor is it to decide how the ADA's and the RHA's requirements to provide reasonable accommodations to those with medical vulnerabilities apply in the face of the peculiar risk that this specific virus presents. It is solely to determine whether the District Court erred in holding that the Speaker's assertion of legislative immunity prevents the plaintiffs from obtaining the preliminary injunctive relief that they seek. Because we conclude that the District Court did not err in so holding, we affirm the denial of the motion for the preliminary injunction and remand the case for further proceedings consistent with this ruling.

I.

A.

On March 13, 2020, New Hampshire Governor Christopher T. Sununu issued an executive order that declared a state of emergency due to the COVID-19 virus's spread. N.H. Exec. Order 2020-04 (Mar. 13, 2020) ("Order"). The Order, among other things, encouraged State government bodies to "conduct meetings through electronic means while preserving, to the extent feasible, the public's right to notice of such meetings and ability to observe and listen contemporaneously." Id. at 4, ¶ 8.

The Order did not direct the House to take any specific action. Indeed, the New Hampshire Constitution commits to the members of the House the power to "choose their own speaker, appoint their own officers, and settle the rules of proceedings in their own house." N.H. Const. pt. II, art. 22.

But, in the immediate wake of the Order, the House, which with 400 members is the largest single state legislative body in the country, chose of its own accord to suspend all its proceedings before then resuming them in June. The House did not hold the resumed proceedings in the House chamber. Instead, the House held proceedings twice in June and once in September at the Whittemore Center, the University of New Hampshire's ice hockey arena, to facilitate social distancing and thereby reduce the risk that those participating in the proceedings would be infected with the virus.

The House also began to consider conducting its future proceedings remotely. As part of that consideration, it sought an advisory opinion on September 16, 2020 from the New Hampshire Supreme Court as to whether "holding a session of the New Hampshire House of Representatives remotely, either wholly or in part, whereby a quorum could be determined electronically, violates Part II, Article 20 of the New Hampshire Constitution."¹

The House did not thereafter hold any proceedings during the remainder of the legislative session. But, before the legislative session ended, the New Hampshire Supreme Court, on November 17, 2020, issued an opinion in response to the House's request.

The opinion advised the House that holding legislative proceedings remotely would not prevent the House from discerning a quorum. See Opinion of the Justices, 173 N.H. 689, 247 A.3d 831, 840 (2020) (discussing N.H. Const. pt. II, art. 20 ). The opinion further explained that, as a result, the New Hampshire Constitution did not prohibit remote participation by representatives in House proceedings. See id.

B.

The New Hampshire Supreme Court issued its advisory opinion soon after elections had been held in the state for seats to the House for the upcoming legislative session. Those elections ushered in the next phase of the House's debate over how to conduct its proceedings during the pandemic.

Under Part II, Article 3 of the New Hampshire Constitution, the House for the preceding legislative session is dissolved at 12:01 A.M. on the first Wednesday of December in even-numbered years. That portion of the New Hampshire Constitution further provides that the House for the subsequent legislative session is constituted on that same day.

That day is recognized by the House as "Organization Day," and on it the Governor swears in all members of the House. The House on that day also establishes rules for its upcoming legislative session.

Organization Day in 2020 fell on December 2, and the proceedings of the House on that date took place outdoors, next to the Whittemore Center. Because the November elections had resulted in a shift of party control in the House from the Democrats to the Republicans, the House elected a new Speaker, Representative Richard "Dick" Hinch, during the Organization Day proceedings. The House also adopted, during those same proceedings, rules to govern the upcoming legislative session.

As part of the debate over those rules, newly elected Representative Andrew Bouldin proposed to require the Speaker to accommodate members who wished to participate remotely in proceedings of the House and to cast votes on legislation by that same means. Representative Sherman Packard spoke against the proposal as being premature. The House rejected Rep. Bouldin's proposed rule to require such an accommodation by a vote of 182 to 56. See N.H. House Journal, Vol. 43, No. 1, at 7.

Then, on December 9, 2020, Speaker Hinch died of complications related to COVID-19. Representative Packard, who was named Deputy Speaker of the House shortly after Speaker Hinch's election on December 2, became the Acting Speaker of the House. The Acting Speaker announced that, in accord with Part II, Article 3 of the New Hampshire Constitution, the next proceedings of the House would take place on January 6, 2021. He also announced that the proceedings would be held in a parking lot on the University of New Hampshire's campus.

In response to the announcement, a number of House members, including plaintiffs in this case, sent emails to the Acting Speaker in which they requested that he provide them...