Democrats: Lawsuit for remote legislative access still on, despite SCOTUS denial

The U.S. Supreme Court on Tuesday declined to hear an appeal in a lawsuit by New Hampshire House Democrats seeking remote participation in the state Legislature, dealing the effort a major setback. But Democrats say they’re not finished litigating.

In March, the First Circuit Court of Appeals in Boston ruled against the Democrats’ effort; the Supreme Court’s denial of the attempt to appeal means that ruling now stands.

But Democrats say the circuit court ruled only on their request for a preliminary injunction, a common initial step in a lawsuit. With the appeals for that motion now exhausted, the party has returned to federal court in Concord to attempt to enter into a full civil trial.

“The state is taking the position that essentially all the issues have been decided, there’s nothing else, there’s no other grounds for us to move forward,” said Israel Piedra, a Democratic state representative from Manchester and an attorney representing Democrats in the case. “And we obviously disagree.”

The Democratic plaintiffs, who include current House Democratic Leader David Cote, are asking the court to force the New Hampshire House to allow House lawmakers to vote remotely on session days, arguing that the decision to require in-person meetings during the COVID-19 pandemic had prevented immunocompromised members from voting.

The plaintiffs formerly included Reps. Renny Cushing and Katherine Rogers, both of whom had cancer and died in the past year. Cote has cerebral palsy and suffered a heart attack in 2018.

This time around, Democrats are tweaking their strategy. In its final ruling in March, the circuit court held that it could not grant Democrats’ motion against Republican Speaker Sherman Packard because Packard had legislative immunity. Democrats had argued that they were in fact suing the state, not Packard personally, but the “en banc” panel of circuit court judges had disagreed.

Now, in their second attempt before the U.S. District Court in Concord, Democrats are attempting to more explicitly direct their lawsuit against the state. They’re naming the state as one of the defendants and are also including House Clerk Paul Smith as a defendant, arguing that he does not benefit from the same legislative immunity.

“The court determined that no, we hadn’t sued the state, even though I really strongly disagree with that decision,” Piedra said. “So now we are explicitly suing the state.”

The state has filed a motion to dismiss in the renewed lawsuit in district court. The Democratic lawmakers now have until the end of the month to file a response to that motion. The court will then schedule oral arguments on whether to dismiss the case.

For the Democrats, the effort still faces an uphill battle. The district court already ruled against Democrats, holding that legislative immunity applied to Packard. During oral arguments, the district court judge suggested that their case would be hampered by legislative immunity even if they made clear they were attempting to sue the state and not a specific lawmaker, Piedra said.

And while an initial, three-judge panel of the circuit court did rule to allow Democrats’ injunction last year, that holding was ultimately overturned by the full, five-member en banc panel. That reality could make victory difficult if the plaintiffs took the current case to appeal.

But Piedra argued that the change in focus to suing the state and not the House speaker could help produce a different outcome. Because they are no longer seeking a preliminary injunction, plaintiffs have a slightly lower bar this time; they no longer need to prove they will suffer irreparable harm if the court does not act immediately. And Piedra noted that the en banc circuit court decision was not unanimous and that some judges dissented.

Given the continuing efforts, Republicans stopped short of claiming victory after the Supreme Court rejection.

“Speaker Packard is reviewing the latest details of this ongoing litigation case with his legal team,” the speaker’s office said in a statement Wednesday.

This story was produced by the editorially independent New Hampshire Bulletin, which is part of States Newsroom. Contact Editor Dana Wormald for questions: info@newhampshirebulletin.com.