US Justice Division information transient supporting NH Home Democrats’ go well with for distant entry to classes

The U.S. Justice Department says the New Hampshire House of Representatives cannot claim immunity from federal disabilities laws to argue that it is not required to provide equal access to its sessions to physically challenged members.The department on Friday filed an amicus brief with the U.S. Court of Appeals for the First Circuit in support of a group of House Democrats with conditions that make them especially vulnerable to complications from COVID-19 who sued Republican House Speaker Sherman Packard in February to require the House to provide them with remote access to full House sessions.The appellate court has granted the state a rehearing of the court’s finding in April that the doctrine of “legislative immunity” is superseded by federal laws requiring reasonable accommodations — the American with Disabilities Act and the Rehabilitation Act. Oral arguments are scheduled before the full six-member appellate bench for early September.In granting the rehearing, the court invited U.S. Attorney General Merrick Garland, President Joe Biden’s appointee, to file a brief, citing the “complexity” and potentially precedent-setting nature of the case.The Justice Department filed its brief Friday, arguing that legislative immunity applies only to individual lawmakers, and that the Democrats, by suing the Speaker in his official capacity, were suing the state.The department said legislative immunity “does not apply to government entities” in asking the court to remand the case to the trial court for further proceedings to determine if the plaintiffs in the case suffer from qualifying disabilities within the definition of the ADA and Rehabilitation Act.“The doctrine of legislative immunity has no application in this action because the State, which is the real party in interest, cannot claim it,” wrote Assistant Attorney General Kristen Clarke, pushing back on the state’s claims. “Title II of the ADA prohibits disability discrimination by public entities,” Clarke wrote. “It 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.’”The justice department also filed a motion seeking to participate in the oral arguments.The New Hampshire Attorney General’s Office, representing Packard and the House — and in effect, the state — has argued that a House rule requiring in-person participation in sessions, which was upheld in several votes by the House GOP majority, takes precedence over federal disabilities laws because the speaker and the House in fact have legislative immunity from such lawsuits.The legislative session ended more than a month ago but the potentially precedent-setting case continues.Over the six months since the lawsuit was filed in February, the issue has expanded into a broad question of whether a legislative body has immunity from requirements to comply with federal laws mandating “reasonable accommodation” for people with disabilities.House Democratic Leader Renny Cushing, the lead plaintiff in the case, praised the federal Justice Department’s position. He said it will help the Democratic lawmakers’ case to have the Justice Department on their side.“It’s really encouraging when you sue the Speaker of the New Hampshire House of Representatives in federal court for refusing to comply with the Americans with Disabilities Act to have the United States of America, represented by the Attorney General of the United States, on your side,” Cushing said.“It makes me optimistic about our chances before the First Circuit Court of Appeals.”Later, Cushing and Deputy Democratic Leader David Cote issued statements on the filing.WMUR is seeking comment from Speaker Packard’s office. The seven plaintiff Democratic lawmakers say that they were put in a position of either jeopardizing their lives and health by attending the sessions or failing to represent their constituents by choosing not to attend the sessions.The state argued – and a U.S. District Court judge agreed – that the speaker in his official capacity was not required to follow the ADA or Rehabilitation Act under the doctrine of legislative immunity. The state argued that legislative immunity prevented the House Democrats from suing Packard for following the House rule. The district court judge tossed out the suit in late February. But the plaintiffs won a reversal in a decision issued in early April by a unanimous three-judge panel of the appellate court. The judges rejected the finding of the lower court, saying that the ADA and Rehabilitation Act supersede legislative immunity. It remanded the case to the U.S. District Court for fact-finding on whether the plaintiffs qualified for accommodations outlined in the federal laws.But before those hearings could take place, the state served notice that it would seek a rehearing of the appeals court decision – this time “en banc” before the full six-member bench – a status reserved for matters of “exceptional public importance,” according to Federal Rules of Appellate Procedure.The state also notified the appeals court that if the rehearing was denied, it would ask the U.S. Supreme Court to hear the case.The appeals court granted the rehearing in an early June decision. The justice department noted in its brief Friday that the appellate panel concluded that by accepting federal funds — including CARES Act funding to support the legislative operations during the COVID-19 pandemic — “New Hampshire had waived immunity under Section 504 (of the Rehabilitation Act) as to its legislature.””The New Hampshire House of Representatives is subject to Title II (of the ADA) because it is a public entity and to Section 504 (of the Rehabilitation Act) because it has accepted federal financial assistance, including through the CARES Act,” Assistant Attorney General Clarke wrote.”And both statutes contain antidiscrimination mandates that require covered entities to provide reasonable accommodations to qualified individuals with disabilities so that they may access the entity’s programs, services or activities as effectively as individuals without disabilities.”Remote participation may be a reasonable accommodation given their susceptibility to COVID-19.”The department further wrote, “In this case, legislative immunity presents no bar to relief because the action was brought against the State (via the Speaker in his official capacity), not against the Speaker in his individual capacity as a legislator.”Plaintiffs filed this action against ‘Rep Sherman Packard, Speaker of the NH House of Representatives (in his official capacity only).'”A suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official’s office, and, thus, it is no different from a suit against the State itself.”Explaining the significance of the case to the federal government’s interests, the justice department noted that the U.S. Attorney general has responsibility to enforce the ADA and Rehabilitation Act.“Congress also directed the Department of Justice to issue regulations implementing Title II, and federal agencies to issue regulations implementing Section 504 with respect to programs or activities that receive federal financial assistance,” the brief says. “Further, the Department is charged with coordinating executive agencies’ implementation and enforcement of Section 504.“Thus, the United States has a strong interest in ensuring the statutes are applied properly.”

BOSTON —

The U.S. Justice Department says the New Hampshire House of Representatives cannot claim immunity from federal disabilities laws to argue that it is not required to provide equal access to its sessions to physically challenged members.

The department on Friday filed an amicus brief with the U.S. Court of Appeals for the First Circuit in support of a group of House Democrats with conditions that make them especially vulnerable to complications from COVID-19 who sued Republican House Speaker Sherman Packard in February to require the House to provide them with remote access to full House sessions.

The appellate court has granted the state a rehearing of the court’s finding in April that the doctrine of “legislative immunity” is superseded by federal laws requiring reasonable accommodations — the American with Disabilities Act and the Rehabilitation Act. Oral arguments are scheduled before the full six-member appellate bench for early September.

In granting the rehearing, the court invited U.S. Attorney General Merrick Garland, President Joe Biden’s appointee, to file a brief, citing the “complexity” and potentially precedent-setting nature of the case.

The Justice Department filed its brief Friday, arguing that legislative immunity applies only to individual lawmakers, and that the Democrats, by suing the Speaker in his official capacity, were suing the state.

The department said legislative immunity “does not apply to government entities” in asking the court to remand the case to the trial court for further proceedings to determine if the plaintiffs in the case suffer from qualifying disabilities within the definition of the ADA and Rehabilitation Act.

“The doctrine of legislative immunity has no application in this action because the State, which is the real party in interest, cannot claim it,” wrote Assistant Attorney General Kristen Clarke, pushing back on the state’s claims.

“Title II of the ADA prohibits disability discrimination by public entities,” Clarke wrote. “It 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.’”

The justice department also filed a motion seeking to participate in the oral arguments.

The New Hampshire Attorney General’s Office, representing Packard and the House — and in effect, the state — has argued that a House rule requiring in-person participation in sessions, which was upheld in several votes by the House GOP majority, takes precedence over federal disabilities laws because the speaker and the House in fact have legislative immunity from such lawsuits.

The legislative session ended more than a month ago but the potentially precedent-setting case continues.

Over the six months since the lawsuit was filed in February, the issue has expanded into a broad question of whether a legislative body has immunity from requirements to comply with federal laws mandating “reasonable accommodation” for people with disabilities.

House Democratic Leader Renny Cushing, the lead plaintiff in the case, praised the federal Justice Department’s position. He said it will help the Democratic lawmakers’ case to have the Justice Department on their side.

“It’s really encouraging when you sue the Speaker of the New Hampshire House of Representatives in federal court for refusing to comply with the Americans with Disabilities Act to have the United States of America, represented by the Attorney General of the United States, on your side,” Cushing said.

“It makes me optimistic about our chances before the First Circuit Court of Appeals.”

Later, Cushing and Deputy Democratic Leader David Cote issued statements on the filing.

WMUR is seeking comment from Speaker Packard’s office.

The seven plaintiff Democratic lawmakers say that they were put in a position of either jeopardizing their lives and health by attending the sessions or failing to represent their constituents by choosing not to attend the sessions.

The state argued – and a U.S. District Court judge agreed – that the speaker in his official capacity was not required to follow the ADA or Rehabilitation Act under the doctrine of legislative immunity. The state argued that legislative immunity prevented the House Democrats from suing Packard for following the House rule.

The district court judge tossed out the suit in late February.

But the plaintiffs won a reversal in a decision issued in early April by a unanimous three-judge panel of the appellate court. The judges rejected the finding of the lower court, saying that the ADA and Rehabilitation Act supersede legislative immunity. It remanded the case to the U.S. District Court for fact-finding on whether the plaintiffs qualified for accommodations outlined in the federal laws.

But before those hearings could take place, the state served notice that it would seek a rehearing of the appeals court decision – this time “en banc” before the full six-member bench – a status reserved for matters of “exceptional public importance,” according to Federal Rules of Appellate Procedure.

The state also notified the appeals court that if the rehearing was denied, it would ask the U.S. Supreme Court to hear the case.

The appeals court granted the rehearing in an early June decision.

The justice department noted in its brief Friday that the appellate panel concluded that by accepting federal funds — including CARES Act funding to support the legislative operations during the COVID-19 pandemic — “New Hampshire had waived immunity under Section 504 (of the Rehabilitation Act) as to its legislature.”

“The New Hampshire House of Representatives is subject to Title II (of the ADA) because it is a public entity and to Section 504 (of the Rehabilitation Act) because it has accepted federal financial assistance, including through the CARES Act,” Assistant Attorney General Clarke wrote.

“And both statutes contain antidiscrimination mandates that require covered entities to provide reasonable accommodations to qualified individuals with disabilities so that they may access the entity’s programs, services or activities as effectively as individuals without disabilities.

“Remote participation may be a reasonable accommodation given their susceptibility to COVID-19.”

The department further wrote, “In this case, legislative immunity presents no bar to relief because the action was brought against the State (via the Speaker in his official capacity), not against the Speaker in his individual capacity as a legislator.

“Plaintiffs filed this action against ‘Rep Sherman Packard, Speaker of the NH House of Representatives (in his official capacity only).’

“A suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official’s office, and, thus, it is no different from a suit against the State itself.”

Explaining the significance of the case to the federal government’s interests, the justice department noted that the U.S. Attorney general has responsibility to enforce the ADA and Rehabilitation Act.

“Congress also directed the Department of Justice to issue regulations implementing Title II, and federal agencies to issue regulations implementing Section 504 with respect to programs or activities that receive federal financial assistance,” the brief says. “Further, the Department is charged with coordinating executive agencies’ implementation and enforcement of Section 504.

“Thus, the United States has a strong interest in ensuring the statutes are applied properly.”