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;

- 3 - 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