Today’s blog entry explores an issue that we have not discussed before. It is hard to believe that after 400+ blog entries over eight years that we could find a topic we haven’t discussed. However, that is the beauty of how comprehensive and all-encompassing the ADA is. Today’s case takes on the question of whether acting in a legislative capacity results in complete immunity from any claims of disability discrimination. The United States District Court for the District of New Hampshire holds that it does. As usual, the blog entry is divided into categories and they are: facts of Cushing v. Packard; legislative immunity trumps everything; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.



Facts of Cushing v. Packard184189204207


Seven members of the New Hampshire House of Representatives and the New Hampshire Democratic Party sued the Speaker of the New Hampshire House of Representatives to allow them to participate in legislative proceedings remotely. Each of the plaintiffs has one or more serious health conditions placing him or her at high risk for severe illness or death should he or she contract Covid-19.

The New Hampshire Constitution states that the House has the power to set its rules of proceedings. House Rule 65 states that 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 the 2020 edition of Mason’s Manual provides that absent specific authorization by the Constitution or adopted rules of the body, remote participation for session by members of the legislative body is prohibited.

In the fall of 2020, members of the House twice attempted to amend the House rules to permit remote participation of how sessions. At the December 2020 House session, one of the representatives proposed an amendment to the House rules that would require the Speaker to permit members upon request to participate remotely in committee meetings and legislative sessions. The House voted on and rejected that proposal. At the January 21, 2021, House session, another amendment to the House rules was proposed that would have explicitly permitted virtual meetings of the full House. The House voted on and rejected that proposal as well.

Despite numerous efforts by the plaintiffs to get the Speaker to change his mind, the Speaker did not grant any members requests for remote participation. He stated that the House has not adopted a rule allowing it to meet remotely, either wholly or in part, and until such a time of the members adopt such a rule, the House was obligated to meet in person.

On February 15, plaintiffs filed this action against the Speaker arguing that his action violated title II of the ADA, Rehabilitation Act, and federal and state constitutions. They also filed simultaneously a Temporary Restraining Order or preliminary injunction focusing solely (emphasis mine), on title II of the ADA and the Rehabilitation Act.



Legislative Immunity Trumps Everything


  1. State legislators have absolute immunity from suit for legislative acts.
  2. Legislative immunity shelters individual legislators from the distractions and hindrance of civil litigation so they can perform the legislative duties without undue interference from federal lawsuits.
  3. The time and energy required to defend against the lawsuit are of particular concern when considering the part-time citizen legislator, which is the case in New Hampshire.
  4. Legislative immunity operates to prevent courts from intruding into areas constitutionally reserved to the legislative branch.
  5. Whether legislative immunity applies in a particular case does not depend on the official’s identity or even on the official’s motive or intent, rather it depends upon the nature of the act in question.
  6. Legislative immunity applies to acts forming an integral part of the deliberative and communicative process by which legislators participate in its proceedings and consider legislation.
  7. Legislative immunity also applies to matters the Constitution places within the jurisdiction of either House.
  8. Legislative immunity only covers actions that are not casually or incidentally related to legislative affairs.
  9. A rule dealing with the very conditions under which legislators engage in formal debate is part and parcel of the legislative process, and the acts of House officials in enforcing it are therefore fully protected against judicial interference by the doctrine of legislative immunity.
  10. A legislative body adopting a rule that is not invidiously discriminatory on its face and that bears upon its conduct of legislative business necessitates the doctrine of legislative immunity applying to officials who do no more than carry out the will of the body by enforcing the rule as part of their official duties. That includes rules regulating the very atmosphere in which lawmaking deliberations occur.
  11. Plaintiffs did not identify any constitutional provision or House rule specifically authorizing remote participation in its sessions, and the court was unaware of any such provisions or rules.
  12. Even though the House has permitted remote participation by members at committee meetings throughout the pandemic, plaintiffs did not identify a custom of remote participation in floor sessions of the House. In fact, House sessions have been in person since the onset of the Covid-19 pandemic.
  13. The rule prohibiting remote participation in House sessions regulate the very atmosphere in which lawmaking deliberations occur.
  14. Rule 786 is not invidiously discriminatory on its face as it applies equally to all members of the House.
  15. In denying individual plaintiffs request to participate remotely in House sessions, the Speaker did no more than enforce a rule that goes to the very conditions under which legislators engage in formal debate.
  16. In the First Circuit, legislative immunity applies regardless of whether the plaintiff seeks prospective relief or damages.
  17. Legislative immunity applies to acts and not actors.
  18. Absolute legislative immunity is justified and defined by the function to protect and serve not by the person to whom it attaches.
  19. Many cases hold that legislative immunity applies to suit for prospective relief because that furthers a key goal of the doctrine, which is protecting those who exercise a legislative function from distractions and costs of litigation.
  20. Since legislative immunity is a creature of federal common law, there is no reason to conclude that it would apply in §1983 actions but not to others absent abrogation of legislative immunity by Congress.
  21. The court isn’t persuaded that an intent to abrogate legislative immunity can be inferred from an intent to abrogate sovereign immunity.
  22. The plaintiff did not provide and the court could not find any case holding that legislative immunity does not apply to title II or Rehabilitation Act claims. In fact, several courts have applied legislative immunity to bar title II and Rehabilitation Act claims, including some seeking injunctive relief.





  1. Interesting use by the court of the phrase “serious health conditions,” because that phrase is an FMLA term and not an ADA term.
  2. We previously discussed a case, here185190205208, from the 11th Circuit holding that sovereign immunity did not apply to legislative streaming on the Internet. One of the things that case said was that it didn’t make sense for Congress to validly abrogate sovereign immunity to protect the rights of students with disabilities to get an education but it could not do the same with respect to student participating in the democratic process. That statement by way of analogy certainly applies to persons with disabilities who want to be legislators and to their constituents that want to see them do a good job.
  3. Congress previously identified in 42 U.S.C. §12101186191206209(a)(3) discrimination in voting and in public services as one of the reasons for the ADA in the first place.
  4. The burden of allowing the legislators to remote in would remove a complete barrier to their participation and could be accomplished with limited cost and efforts.
  5. The legislators are seeking equal footing with the rest of the nondisabled legislators.
  6. Facially neutral policies, as we discussed here187192207210, can violate the ADA when those policies unduly burden persons with disabilities even when those policies are consistently enforced.
  7. What strikes me as an interesting choice by the plaintiffs is that they did not seek a temporary restraining order on the ground that the Speaker’s actions violated the 14th amendment to the U.S. Constitution. Instead, they only sought a temporary restraining order on ADA and Rehabilitation Act grounds. The reasoning for an equal protection claim would go like this: 1) voting is a fundamental right as would be the right of individuals to select people to represent them; 2) a legislator cannot do their job as a person with a disability if the legislature does not engage in the interactive process to figure out how the legislator can do his or her job with or without reasonable modifications; 3) since voting is a fundamental right as is the ability to allow persons with disabilities to run for legislature, the government would need a compelling reason to engage in the facially neutral discriminatory practices; and 4) A compelling reason for the discriminatory action simply can’t be offered, especially since the New Hampshire legislature has already engaged in remote activities
  8. There can be little doubt that sovereign immunity would be waived under the ADA and/or the Rehabilitation Act in this case. There also is little doubt that the plaintiffs would have a strong chance of prevailing on the merits, including proceeding for damages against the Speaker in his official capacity. So, the decision goes too far by giving a get out of jail free card to anyone acting in a legislative capacity even when it is clear that discrimination based upon disability is occurring.
  9. I also believe that the 14th amendment argument is quite a strong one. True, the equal protection class for persons with disability depends upon the circumstances. However, here you have the fundamental right of voters to choose their elected representatives. You also have the right of people to participate in the legislative process. So, at the very least the government would need a good reason if not a compelling reason to deny the remote access.
  10. What is next for the case? Could the denial of the TRO be appealed? The First Circuit directly addressed that question in the case of Calvary Chapel of Bangor v. Mills188193208211 decided on December 22, 2020. In that case, the First Circuit, which includes New Hampshire, said that the denial of a temporary restraining order can be appealed if all of the following are true: 1) the refusal of a temporary restraining order has the practical effect of denying injunctive relief; 2) the refusal of the temporary restraining order would likely cause serious if not irreparable harm; and 3) the denial of the temporary restraining order can only be effectually challenged by means of an immediate appeal. It is up to the plaintiff to carry the burden of persuasion on each of the elements.
  11. The first Calvary factor is clearly satisfied as the denial of the TRO was issued after a full adversarial hearing and no further interlocutory relief is available in the absence of an immediate review. By holding that legislative immunity trumps everything, a preliminary injunction on title II or Rehabilitation Act grounds is not going to happen.
  12. The second Calvary factor is clearly satisfied as well because the lack of immediate appealability would cause serious harm as the legislators with disabilities cannot do their job on behalf of the constituents that elected them.
  13. With respect to the third factor, a strong argument can be made that the third factor is also satisfied because: 1) the court’s denial of the temporary restraining order did result in an irreversible or meaningful shift in the relationship between the parties; and 2) the effect of the denial is not of a modest temporal duration.
  14. Calvary also says that public officials do not have free reign to curtail individual constitutional liberties during a public health emergency.
  15. In checking to see where the status of the case is, I do not see an appeal filed as of yet. The decision came down on February 22, 2021, and so an appeal may yet happen. If I am on the plaintiff’s side, I definitely appeal the denial of the TRO. There would be a good chance that the First Circuit would hear the matter because of the applicability of the Calvary factors coming down on the side of the plaintiffs. If it got to the Supreme Court of the United States, I wouldn’t be afraid to go before them as this is the type of case they may prove very receptive to for a variety of reasons. Keep in mind, persons with disabilities have done very well outside of the employment context and the title II and Rehabilitation Act claims here are very strong. Also, this configuration of the United States Supreme Court enjoys letting other branches of government know when they have gone too far. Finally, fundamental constitutional rights are involved here, and I like the strength of the equal protection arguments as well.