NH House Democrats ask federal court to order GOP Speaker to provide remote access to sessions
State Democratic Party joins Cushing, six other vulnerable legislators in filing motion seeking injunction, restraining order
State Democratic Party joins Cushing, six other vulnerable legislators in filing motion seeking injunction, restraining order
State Democratic Party joins Cushing, six other vulnerable legislators in filing motion seeking injunction, restraining order
New Hampshire House Democrats are asking a federal judge to require that Republican House Speaker Sherman Packard allow legislators who are especially vulnerable to serious illness or death from COVID-19 to attend next week’s two-day House session remotely.
WMUR obtained the court documents, which were made public widely later Tuesday morning at the U.S. District Court in Concord. The Democrats are seeking expedited, emergency action ahead of the in-person session scheduled for Feb. 24 and 25.
Rep. Renny Cushing of Hampton, the House Democratic Leader, is joined by six other plaintiff legislators in charging that Packard would be violating the federal Americans with Disability Act, the Rehabilitation Act of 1973 and provisions of the U.S. and state constitutions if he continues to require that all House members attend the session meetings in person and not make “reasonable accommodations” for the vulnerable members.
Packard has promised that the meetings will be safely held at the NH Sportsplex in Bedford, a 50,000-square-foot facility that is more than twice the size of the University of New Hampshire’s Whittemore Center, where the House met last June.
Packard has said the venue will allow members to “spread out and socially distance,” and he has said that he and his team are working with state health officials and first responders to ensure the meetings are conducted safety.
“It’s unfortunate that we have to take this step to defend our democracy and public health during midst of a pandemic,” Cushing said in a statement shared with WMUR.
“Democrats have tried for months now in good faith to persuade the Republican majority to put public health before politics and provide for remote participation in House sessions for those lawmakers vulnerable to COVID- 19. The Americans with Disabilities Act requires all state legislatures to make reasonable accommodations -- such as remote access -- to allow people to participate in the legislative process.”
Cushing and his fellow Democrats have been pushing for a hybrid arrangement, in which people with special vulnerability to COVID as defined by the ADA and Rehabilitation Act can participate remotely, while others would appear in person.
As WMUR reported on Friday, Cushing suggested in a letter to the Speaker that legal action would be a possibility if Packard did not accommodate his requests.
On Tuesday, after the motion was filed, Cushing spoke about the legal action with WMUR political director Adam Sexton. View the interview here.
>> READ the court filings by the House Democrats and state Democratic Party HERE and HERE.
Chief Judge Landya McCafferty immediately ordered a public hearing on the emergency motion to be held Friday at 10:30 a.m.
Packard later issued a statement on the suit, saying he and his team are reviewing the complaint and will file a response.
Packard noted that "no one contracted COVID-19 at the Whittemore Center events in 2020" despite "high attendance levels by legislators, numerous legislative and UNH employees, police, paramedics, contract employees, fire fighters and others."
He reiterated that the NH Sportsplex "will have more than double the the usable area of the Whittemore Center ..."
"We are working with the Department of Health and Human Services, state and local police, fire and ems services to ensure an accessible, risk-mitigated and secure environment for all members and staff in attendance,” Packard said.
Packard has previously said he and his team were working on alternatives, but he said that if a remote option is offered, he believes it must be offered for all 400 members of the House. He said finding such a setup would not be possible in time for next week's meetings.
Cushing has said he is not asking for a remote option to be made available to all House members, only to those who qualify for special accommodations under ADA or Rehabilitation Act.
He and the other six lawmakers – joined by the state Democratic Party -- are now asking a federal judge to move on an expedited basis to issue an injunction and/or a temporary restraining order effectively blocking the fully in-person meetings and requiring remote access for some members.
The seven plaintiff lawmakers “all suffer from extremely serious medical conditions and disabilities -- including, among other things, stage 4 cancer, compromised immune systems, and kidney disease requiring a transplant — which render them especially vulnerable to complications from COVID-19,” according to a legal memorandum accompanying the motion.
“Without the option of remote attendance, the plaintiffs must choose between putting themselves at risk of serious injury/death or leaving their constituents unrepresented in the legislature,” the motion says.
The memorandum says House Democrats have repeatedly tried to convince the Speaker “to allow reasonable accommodation as required by federal law.”
“Those attempts include multiple formal letters from the Democratic leader and counsel, written ADA accommodation requests from the individual members, e-mails and many verbal conversations," the filing says.
“The plaintiffs have made every effort to avoid litigation and have allowed the defendant a multitude of opportunities to reconsider his position and permit the reasonable and limited accommodation requested.”
They wrote that 28 representatives have made accommodation requests.
“This small number of representatives, all of whom have serious medical disabilities, could easily be accommodated in a Zoom meeting, just as the defendant has utilized for committee meetings.” Committee meetings have been held remotely for several months.
The filing explains that during the session at the Whittemore Center, “approximately three dozen Republican members refused to wear masks” and says that this conduct, as well as beer drinking by a group of Republican members, was criticized by UNH president Jim Dean.
Several Republican House members tested positive for COVID after an indoor Republican caucus, the filing says. It cited a report that during an outdoor Organization Day session on Dec. 2 at UNH, 61 Republicans refused to wear masks despite UNH policy, a Durham town ordinance and Gov. Chris Sununu’s executive order mandating face coverings.
The filing also notes the death of House Speaker Dick Hinch from COVID-19 in early December.
Packard, “over the course now of several months, has claimed that he is ‘looking into’ the possibility of remote participation. However, there is no evidence that the defendant has made any concrete steps towards allowing such an option, nor that he is even seriously considering it,” the filing says.
“Now that the defendant has officially scheduled in-person sessions for February 24 and 25, and specifically stated that there will be no remote attendance option, the plaintiffs’ only recourse is this lawsuit.”