ROBERT R. CUSHING, individuаlly 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 v. SHERMAN PACKARD, in his official capacity as Speaker of the House for the N.H. House of Representatives
No. 21-1177
United States Court of Appeals For the First Circuit
April 8, 2021
Thompson and Kayatta, Circuit Judges, and Woodlock, District Judge.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE [Hon. Landya B. McCafferty, U.S. District Judge]
Israel F. Piedra, with whom Welts, White & Fontaine, PC, William E. Christie, S. Amy Spencеr, and Shaheen & Gordon, P.A., were on brief, for appellants.
Samuel R. V. Garland, Assistant Attorney General, with whom Anthony J. Galdieri, Senior Assistant Attorney General, and Jennifer S. Ramsey, Assistant Attorney General, were on brief, for appellee.
* Of the District of Massachusetts, sitting by designation.
KAYATTA, Circuit Judge. This expedited appeal arises out of a decision by the Speaker of the New Hampshire House of Representatives to enforce a House rule precluding any representative from participating in proceedings involving
I.
Plaintiffs, elected members of the New Hampshire House of Representatives, suffer from serious medical conditions and/or disabilities that they allege render them particularly vulnerable to serious illness or death, should they contract COVID-19.1 The risk of contracting COVID-19 is highest in heavily trafficked public locations, particularly indoors. Plaintiffs brought their suit in February of this year, at which point New Hampshire had experienced 70,505 confirmed cases of COVID-19, resulting in 1,130 deaths.
The House has 400 members. In a typical year, those 400 members would gather in person for approximately twenty full sessions. In September 2020, the House passed a motion requesting that the Supreme Court of New Hampshire declare whether holding a House session remotely, either wholly or in part, would violate the New Hampshire Constitution. The Court answered that question in the negative in November 2020, allowing for the possibility of remote sessions. Opinion of the Justs., No. 2020-0414, 2020 WL 6750797, at *1 (N.H. Nov. 17, 2020).
House leadership has researched various methods to implement remote participation in full sessions since at least the summer of 2020. Since March 2020, the House has met five times in full session, each time in person. Locations for thе full sessions have included the Whittemore Center at the University of New Hampshire, an athletic field at UNH, and a parking lot -- with Representatives in their cars -- at UNH. In contrast, a number of committee meetings and full caucus meetings were conducted remotely via videoconferencing technology in 2020, with up to 200 pеople participating in some meetings.
The House is constitutionally mandated to meet on the first Wednesday in December for Organization Day. House leadership, comprised of Republican party members, decided to hold Organization Day outside on an athletic field on December 2, 2020. The prior day, Republican leadership revealed that an unspecified number of House Republicans had tested positive for COVID-19 after an indoor party caucus. Despite this potential exposure, at least sixty Representatives refused to wear face masks at Organization Day, where Representаtive Richard Hinch was elected Speaker. One week later, Speaker Hinch
In the New Hampshire House, if a given procedure is not governed by a constitutional provision, another House rule, or custom, usage, and precedent, the procedure shall be derived from the 2020 edition of Mason‘s Manual of Legislative Procedure. Rule 786 of that manual provides that “[a]bsent speсific authorization by the constitution or adopted rules of the body, remote participation in floor sessions by members of the legislative body is prohibited.”
Since the COVID-19 pandemic began, House members have twice attempted to amend the House rules to permit remote participation at House sessions. One proposal involved allowing the Speaker, upon a member‘s request, to permit remote participation in committee meetings and legislative sessions; the other proposal involved allowing virtual meetings of the full House. The House narrowly rejected both proposals.
Following the announcement that the January 2021 session would take place in person in a parking lot, each plaintiff submitted a written request to the Speaker that he or she be allowed to participate remotely in House sessions. The Speaker did not grant any member‘s request for remote participation. Nor did the Speaker grant remote participation requests made after he announced that the House would meet inside for the February 2021 session. Further sessions are expected between now and the end of June.
Plaintiffs then filed this action, alleging violations of the ADA and Rehabilitation Act. Plaintiffs’ сomplaint also pled claims under the Fourteenth Amendment to the United States Constitution and under the New Hampshire Constitution. On appeal, however, plaintiffs train their attention on their federal statutory claims, eschewing any argument that either the Fourteenth Amendment itself or a New Hampshire law provide a sufficient basis for setting aside the judgment of the district court.
II.
The district court found that the doctrine of legislative immunity shielded the Speaker from having to comply with the ADA and/or Section 504. Cushing v. Packard, Civil No. 21-cv-147-LM, 2021 WL 681638, at *6-7 (D.N.H. Feb. 22, 2021). In so doing, the district court relied heavily on our opinion in National Association of Social Workers v. Harwood, 69 F.3d 622 (1st Cir. 1995). There, we considered a state legislative rule barring private lobbyists from the floor of the Rhode Island House of Representatives while that House was in session. Id. at 624-25. In resolving the question presented in Harwood, we held that “[w]here, as here, a legislative body adopts a rule, not invidiously discriminatory on its face, that bears upon its conduct of frankly legislative business, we think that the doctrine of legislative immunity must protect legislators and legislative aides who do no more than carry out the will of the body by enforcing the rule as a part of their official duties.” Id. at 631 (internal citation omitted). We further observed that “[a] rule that colors the very conditions under which legislators engage in formal debate is indubitably part and parcel of the legislative process.” Id. at 632 (citations omitted). Because the “regulation of admission to the House floor comprise[d] ‘an integral part of the deliberative and communicative processes by which Members participate in . . . House proceedings,‘” we concluded that “the doctrine of legislative immunity pertаin[ed]”
Speaker Packard, the defendant in the instant action, says this case is just the same as Harwood. Not quite. Harwood would be more analogous to the case now before us if the legislature in Harwood had barred lobbyists in wheelchairs from having access to the House. Such a case would present an issue not addressed at all in Harwood: Whether еither Title II of the ADA or Section 504 of the Rehabilitation Act abrogates the immunity relied upon in Harwood.2 To that issue -- apparently a matter of first impression -- we now turn our attention.
Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”3
Similarly, Section 504 of the Rehabilitation Act provides that “[n]o otherwise qualified individual with a disability . . . shall, solely by reasоn of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving [f]ederal” funds.
The Speaker contends that nothing in the ADA or the Rehabilitation Act abrogates legislative immunity as applied in Harwood. The Speaker reasons that as a common-law doctrine, see Sup. Ct. of Va. v. Consumers Union of U.S., Inc., 446 U.S. 719, 732 (1980), legislative immunity survives federal legislation, unless Congress “speak[s] directly” to the matter of abrogating the doctrine, citing United States v. Texas, 507 U.S. 529, 534 (1993) (quoting Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 625 (1978)). See also id. (“[S]tatutes which invade the common law . . . are to be read with a presumption favoring the retention of long-established and familiar principles, except when a statutory purpose to the contrary is evident.” (quoting Isbrandtsen Co. v. Johnson, 343 U.S. 779, 783 (1952))). And the Speaker points to the fact that both the ADA and the Rehabilitation Act expressly abrogate or waive Eleventh Amendment sovereign immunity, see
We read the ADA otherwise. A statute may express a congressional intent sufficient to overbear a common-law doctrine without expressly mentioning the doctrine. See Texas, 507 U.S. at 534 (“Congress need not ‘affirmatively proscribe’ the common-law doctrine at issue.” (quoting respondents’ brief)). The key question is whether the statute as a whole makes it “evident” that Congress understood its mandate to control. Id. (quoting Isbrandtsen Co., 343 U.S. at 783). In this particular instance, Congress expressly said that the requirements of the ADA apply to “any State . . . government.”
As to the Rehabilitation Act, the mandates in that statute, too, apply to a “State . . . government.”
We do not find particularly persuasive force in the fact that the ADA expressly abrogates Eleventh Amendment immunity by name, yet fails to include a similar mention of legislative immunity. See
This is not to say that the comity concerns behind legislative immunity are of no relevance here. Under both the ADA and the Rehabilitation Act, the decision whether to require an accommodation must balance the benefits of the accommodation against the legitimate interests of the affected entity. See Clackamas Gastroenterology Assocs., P. C. v. Wells, 538 U.S. 440, 446-47 (2003) (cautioning that courts construing the ADA must weigh its remedial purpose against certаin “countervailing considerations,” including exceptions made by Congress); City of Boerne v. Flores, 521 U.S. 507, 533 (1997) (“Where, however, a congressional enactment pervasively prohibits constitutional state action in an effort to remedy or to prevent unconstitutional state action, limitations [on the enactment] tend to ensure Congress‘s means are proportionate to ends legitimate under § 5.“); Wynne v. Tufts Univ. Sch. of Med., 932 F.2d 19, 24-25 (1st Cir. 1991) (requiring, under the Rehabilitation Act, “reasonable accommodations,” which it distinguished from “substantial” and “fundamental” changes (quoting Choate, 469 U.S. at 300 n.20)); cf. Nev. Dep‘t of Hum. Res. v. Hibbs, 538 U.S. 721, 738, 740 (2003) (finding “significant the many other limitations that Congress placed on the scope of” the statute at issue and finding that statute “congruent and proportional to its remedial object“). We reasonably can expect that a federal court would give considered weight to the views of a state legislature when considering the reasonableness of any proposed accommodation affecting the conduct of that legislature. See, e.g., Harwood, 69 F.3d at 630-32, 634-35.
III.
In ruling on the plaintiffs’ request for preliminary injunctive relief, the district court concluded that legislative immunity precluded enforcement of the ADA and the Rehabilitation Act. Consequently, the record lacks any findings concerning whether the plaintiffs are persons with disabilities within the meaning of the ADA or the Rehabilitаtion Act, whether there has been any violation of either act, and, if so, what remedy or remedies should be provided. We therefore vacate the order of the district court and remand to the district court with instructions to consider plaintiffs’ substantive claims. The district court should also determine whether -- and to what extent -- changing circumstances may moot the plaintiffs’ claims.