Cushing v. Packard

United States Court of Appeals
For the First Circuit
No. 21-1177
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.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Landya B. McCafferty, U.S. District Judge]
Before
Thompson and Kayatta, Circuit Judges,
and Woodlock,* District Judge.
Israel F. Piedra, with whom Welts, White & Fontaine, PC,
William E. Christie, S. Amy Spencer, 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.
April 8, 2021
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 the
full House -- including voting on House matters -- other than in
person. Plaintiffs include seven members of the House who claim
to suffer from medical conditions that make them especially
vulnerable to the highly contagious novel coronavirus ("COVID-
19"). Plaintiffs contend that Title II of the Americans with
Disabilities Act, 42 U.S.C. § 12132, and Section 504 of the
Rehabilitation Act, 29 U.S.C. § 794, require the Speaker to allow
them to participate remotely. In denying plaintiffs' motion for
a preliminary injunction, the district court ruled that the
doctrine of legislative immunity bars the relief sought. On
plaintiffs' appeal, we now vacate that denial and remand for
further proceedings consistent with this opinion. Our reasoning
follows.
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
Plaintiffs, all of whom are over age sixty, have various
1
conditions and disabilities, including Stage 4 prostate cancer;
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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 the full sessions
have included the Whittemore Center at the University of New
compromised or suppressed immune systems; cardiac problems; Type 2
Diabetes; Guillain-Barré Syndrome; kidney disease; degenerative
joint disease; asthma and other issues affecting lung capacity and
function; and advanced age. At least one plaintiff lives in a
communal facility that restricts residents from participating in
events involving groups larger than ten individuals, even when
outside the community.
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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
people 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 Representative Richard Hinch was elected Speaker. One
week later, Speaker Hinch died of COVID-19. The second-ranking
member in the House, Speaker Pro Tem Kim Rice, also contracted
COVID-19. Defendant Packard became Acting Speaker at that time
and was formally elected as Speaker on January 6, 2021.
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 specific
authorization by the constitution or adopted rules of the body,
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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' complaint 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
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Fourteenth Amendment itself or 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
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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 pertain[ed]" to the challenged
rule. Id. at 632 (quoting Gravel v. United States, 408 U.S. 606,
625 (1972)).
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 either 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 42 U.S.C.
2 Plaintiffs also argue at length that legislative immunity
does not apply at all because this suit is really an action against
the state, not against a legislator. Because we find that
legislative immunity does not apply, we need not reach this issue.
3 The parties have not made arguments regarding whether
plaintiffs are individuals with disabilities as defined under the
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§ 12132. The ADA defines "public entity" to include "any State or
local government" or "any . . . instrumentality of a State or
States or local government." Id. § 12131(1)(A)–(B). The ADA
further provides that Congress's imposition of obligations on
state governments under Title II may trump even Eleventh Amendment
immunity. See id. § 12202 ("A State shall not be immune under the
[E]leventh [A]mendment . . . from an action in [a] Federal or
State court of competent jurisdiction for a violation of this
chapter."); Tennessee v. Lane, 541 U.S. 509, 533-34 (2004) (holding
that in providing prophylactic relief in the context of a
"fundamental right of access to [state] courts," Title II of the
ADA "constitutes a valid exercise of Congress's § 5 authority to
enforce the guarantees of the Fourteenth Amendment" and abrogates
the states' Eleventh Amendment sovereign immunity).
Similarly, Section 504 of the Rehabilitation Act
provides that "[n]o otherwise qualified individual with a
disability . . . shall, solely by reason 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. 29 U.S.C. § 794(a); see also Ruskai
v. Pistole, 775 F.3d 61, 77 (1st Cir. 2014). The term "[p]rogram
or activity" includes "all of the operations of" "[an]
ADA and Rehabilitation Act. We, likewise, do not address that
question.
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instrumentality of a State or of a local government" and of
"each . . . State or local government entity[] to which [federal]
assistance is extended." 29 U.S.C. § 794(b)(1)(A)–(B).
Section 504 "requires that a public entity make 'reasonable
modifications' to existing practices . . . to 'accommodate'
disabled persons." Doucette v. Georgetown Pub. Sch., 936 F.3d 16,
23 (1st Cir. 2019) (quoting Alexander v. Choate, 469 U.S. 287, 300
(1985)). Under the Rehabilitation Act, states waive immunity by
receiving funds from a federal program. See 29 U.S.C. § 794(a)–
(b); 42 U.S.C. § 2000d-7(a)(1) ("A State shall not be immune under
the Eleventh Amendment . . . from suit in Federal court for a
violation of [S]ection 504 of the Rehabilitation Act of 1973 [29
U.S.C. § 794] . . . ."); Lane v. Pena, 518 U.S. 187, 200 (1996)
(describing 42 U.S.C. § 2000d-7 as "an unambiguous waiver of the
States' Eleventh Amendment immunity"); Nieves-Márquez v. Puerto
Rico, 353 F.3d 108, 129 (1st Cir. 2003) ("Congress's intent to
require waiver [under the Rehabilitation Act] is clear . . . .
The Commonwealth, by accepting federal funds, has waived its
immunity.").
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,
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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 42 U.S.C. § 12202; 42 U.S.C. § 2000d-7(a)(1), yet
fail to provide any similar express reference to legislative
immunity.
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." 42 U.S.C. § 12131(1)(A). And the
Speaker unsurprisingly makes no argument that the New Hampshire
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House of Representatives is not part of New Hampshire's state
government.
As to the Rehabilitation Act, the mandates in that
statute, too, apply to a "State . . . government." 29 U.S.C.
§ 794(b)(1)(A)–(B). Moreover, the type of abrogation that occurs
under the Rehabilitation Act arises from the state's own action in
deciding to accept federal program funds, thereby waiving its
immunity. Such a waiver may be particularly apt in this case,
given the receipt by New Hampshire's legislature of at least
$190,000 in federal funds from the Coronavirus Aid, Relief, and
Economic Security (CARES) Act. These funds were provided to the
legislature in order to pay for COVID-19-related expenses, such as
"off-site" sessions, subscriptions for videoconferencing
technology, IT equipment for remote work, and sanitation.
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 42 U.S.C. § 12202. The former is a more obvious
impediment that is expressly enshrined in the Constitution. So
one can easily see why Congress might expressly mention it, while
relying otherwise on the broad statement applying the statute to
state governments to abrogate any other asserted bar, including
legislative immunity. Compare Kimel v. Fla. Bd. of Regents, 528
U.S. 62, 73 (2000) (requiring Congress to "mak[e] its intention
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unmistakably clear in the language of the statute" when abrogating
Eleventh Amendment immunity (quoting Dellmuth v. Muth, 491 U.S.
223, 228 (1989))), with Texas, 507 U.S. at 534 (declining to
require an affirmative proscription for abrogation of common-law
doctrines when Congress's intent is evident).4
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 certain "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
4The Speaker points to no other relevant difference between
the two types of immunity that should affect this analysis.
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"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 Rehabilitation 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.
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