Court rules against House Democrats in remote participation lawsuit

This story was updated March 29, 2022 to include a comment from House Speaker Sherman Packard that was sent after deadline.

A federal court has again ruled against House Democrats’ demands for remote participation on behalf of health-compromised members in a 3-2 decision. The court said Speaker Sherman Packard is protected against the lawsuit by legislative immunity.

In a strongly worded dissent, two judges said Packard’s decision forces immunocompromised members to choose between “public duty and death.” The majority opinion upholding Packard’s arguments for in-person participation sets a dangerous precedent, they said.  

“It could ban service animals because they supposedly distract from the legislative process,” the judges wrote. “It could ban all non-legislators, including sign-language interpreters, from the floor. … It could ban headwear or facial hair out of some belief that it is necessary for decorum or security (e.g., hidden weapons).”

The 93-page ruling, issued Friday, leaves the Democrats few options: They can appeal to the U.S. Supreme Court, attempt to amend their lawsuit to avoid the immunity issue, or cease their legal fight. 

“No decisions have been made,” said attorney Israel Piedra, a lawyer on the case and a Democratic House member from Manchester. “We’re going to be reviewing the decision with our clients and reviewing our options.”

Packard released a statement late Monday: “This opinion reaffirms the importance of the integrity of the legislature and the legislative process,” he said. “Both the First Circuit and District Court evaluated the plaintiffs’ arguments and ruled against them. My next step is to continue working on legislation that will benefit the state of New Hampshire and keep pushing us forward.”

The suit was filed in February 2021 by a group of House Democrats who are immunocompromised, after Packard, a Londonderry Republican, declined to continue the remote access allowed during the height of the pandemic. 

Packard had held House sessions off-site in venues large enough to allow for social distancing until reconvening in Representatives Hall earlier this month. 

District Court Judge Landya McCafferty rejected Democrats’ claims shortly after they filed the lawsuit. They appealed to the Circuit Court, which overturned McCafferty’s decision. Friday’s ruling from the First Circuit Court of Appeals reverses that win.

The majority acknowledged COVID-19’s threat to public health and noted that it had held its own remote proceedings during the pandemic. 

“But, our task in this appeal is not to determine the most advisable means of conducting governmental operations during the pandemic,” the judges wrote. “Nor is it to decide how (federal) requirements to provide reasonable accommodations to those with medical vulnerabilities apply in the face of the peculiar risk that this specific virus presents.”

Rather, they said their role was to decide whether McCafferty’s decision in favor of Packard’s immunity claims was correct. 

The two dissenting judges found the potential of grave health risks for some members is significant enough to prevail over Packard’s immunity protection. And they dismissed Packard’s argument that remote participation posed significant technological challenges.

“The speaker apparently still claims (nearly 18 months into the pandemic) that he has yet to figure out the technical logistics of remote participation,” they wrote. “But he has not detailed any efforts made toward doing so. And, in February 2021… the clerk of the House testified that he hadn’t seen any communications detailing attempts to work with a vendor to get remote participation up and running. What is clear is that the speaker’s IT woes could be cured with an appropriate contract.”