Before getting started on the blog entry of the day, I do want to give a shout out to CODA, which won a best supporting actor, a best adapted screenplay, and best picture at the Academy Awards. As a small d deaf proud person in a deaf and hoh proud (daughter also wears hearing aids), household, I am beyond thrilled. I hope it means more persons with disabilities actually get a chance to be a part of the industry both in front of the camera and behind it and that more persons with disabilities get a chance to play roles portraying persons with disabilities.


The case of the day is one we have blogged on twice already. The case is Cushing v. Packard, which we discussed here and here. If you recall from that discussion, the district court decided that legislative immunity trumps everything. A panel of the First Circuit decided that was not the case. It was then heard en banc and decided, here, by the First Circuit (just five judges), and the majority opinion says that legislative immunity does trump everything. Since we have blogged on this case already twice before, I felt compelled to blog on this decision as well. As usual, the blog entry is divided into categories and they are: Judge Barron’s majority opinion; Judge Thompson’s dissenting opinion; and thoughts/takeaways. The decision was 3-2 with Judges Barron, Howard, and Lynch in the majority and Judges Thompson and Kayatta dissenting. The question before the court was whether title II of the ADA or §504 Rehabilitation Act authorizes a federal court to resolve the dispute among members of the state legislative body about whether voting on bills may be done remotely rather than in person.



Judge Barron’s Majority Opinion Holding That Legislative Immunity Trumps Just about Everything


  1. The privilege of legislators to be prevented from being sued is to enable and encourage a representative of the public to discharge a public trust with firmness and success. That is, the reason to keep government officials immune from deterrence to the uninhibited discharge of their legislative duties if not for their private indulgences but for the public good.
  2. Legislative immunity can be asserted against claims seeking only declaratory or prospective relief as well as damages because it exists to protect those engaged in legislative activities from the burdens of defending against the suit and not merely being held liable in one.
  3. Plaintiffs complaint clearly sought redress from the Speaker of the House and not the state. Also, for a variety of reasons, the Speaker of the House cannot be equated with the state. These reasons include: 1) a suit brought against a state officer in their official capacity is not the same thing as a suit against the state; 2) the complaint itself did not go after the state but only the Speaker of the House; 3) suits against officers in their official capacity are not the same as suits against the state because a suit against the state implicates 11th amendment sovereign immunity while official capacity suits do not; and 4) just because title II of the ADA covers public entities that does not transform this case into a suit against the state.
  4. The Supreme Court has held that legislative immunity can be asserted as a defense in an official capacity suit.
  5. While the Supreme Court has talked about municipal corporations not having available to it immunity available to local officials under §1983, they have never reached a similar conclusion with respect to suits against states or against state agents in their official capacities.
  6. That the legislature is covered by §504 of the Rehabilitation Act does not transform the case into a suit against the state either.
  7. While a legislative body appears to be a title II entity, it still gets the ability to assert legislative immunity.
  8. If Congress wanted to abrogate legislative immunity it could have explicitly done so. Just because it explicitly abrogated sovereign immunity in the ADA does not mean that it intended to abrogate legislative immunity. You need explicit abrogation wording for either or both. That is, common law principles of legislative immunity are incorporated into the judicial system and they should not be abrogated absent clear legislative intent to do so. Any general language that might be found in the statute suggesting that legislative immunity is abrogated is simply not good enough; it has to be explicit.
  9. The ADA makes no express reference to legislatures or legislators.
  10. Title II of the ADA does not indicate any intent by Congress to deal with these subtle considerations of the mixture of legislative or executive duties with the political facts of life.
  11. While plaintiffs claim no legislative act is involved, voting is a legislative act.
  12. While legislative immunity does not attach to the activities that are merely casually or tangentially related to legislative affairs, determinations about the procedure governing the means by which House members may cast votes are not so easily characterized that way. Further, the injunctive relief plaintiffs seek is relief that must run against a state legislator directly to be effective.
  13. The scope of legislative immunity is not dependent upon immunity that a particular state itself recognizes under its own law.
  14. Just because a statutory violation is involved, that does not mean it rises to the extraordinary circumstances necessary for the exception to legislative immunity to apply.
  15. The challenged conduct does not on its face target any class of legislators because it involves adhering to existing rules rather than making new ones.
  16. The extraordinary circumstances test for getting around legislative immunity has to be set at a high level because otherwise you may get federal judges improperly intruding into internal state legislative affairs. You also will get partisan battles whereby partisan state legislators improperly enlist federal judges to participate in them.
  17. Congress is better suited to explicitly waive legislative immunity than are the courts to do it on a piece by piece basis.



John Thompson’s Dissenting Opinion


  1. The majority opinion effectively disenfranchises thousands of New Hampshire residents simply because the representatives are persons with disabilities.
  2. The majority opinion immunizes any legislative role that does not on its face target any class of legislators, which is a standard so broad as to immunize race and religious-based discrimination as well.
  3. The majority opinion opens the floodgates to potential abuse and spells a recipe for disaster in the future.
  4. The speech or debate clause in the Constitution was intended to be for the benefit of the people and not their representatives.
  5. While legislative immunity was necessary for the separation of powers, the true driving goal was representation of the public.
  6. Early courts acknowledged that the people were careful in providing privileges to their legislators that would not unreasonably prejudice the rights of private citizens.
  7. Modern courts have also recognized that legislative immunity is not a personal privilege, i.e. not directed to the benefit of the legislators themselves.
  8. The purpose of legislative immunity is not to prevent judicial review of legislative actions but to ensure that legislators are not distracted from or hindered in the performance of their legislative task by being called into court to defend their actions.
  9. The Supreme Court has never addressed a case where it held that the extraordinary character exception to legislative immunity applies. It has said that the clause should not be extended so as to privilege illegal or unconstitutional conduct beyond that essential to foreclosing executive control of legislative speech or debate and associated matters, such as voting and committee reports and proceedings.
  10. It is contradictory to think that legislative immunity can protect some legislators decisions to effectively preclude other legislators from discharging their duties. The majority opinion leaves some people without their voice in representative government.
  11. What benefit do the people gain in immunizing their own disenfranchisement?
  12. The removal of a representative from his or her official duties in the face of an arrest, process, or subpoena, and the resulting loss of the voice for those he or she represents is an evil admitting of no comparison.
  13. The Supreme Court has never addressed any case in which a legislature has sought to exclude legislators based upon federal statutory really protected characteristics.
  14. In a footnote, the dissenting judge says that the legislative acts involved here has only one cause behind them, namely discrimination against a person’s statutorily protected disability. That is a far cry from removing a legislator because of nefarious activities jeopardizing the public trust in the office.
  15. At oral argument, the State admitted that if the state legislature excluded a legislator on racial or other clearly unconstitutional grounds, the federal or state judiciary would be justified in testing the exclusion by federal constitutional standards. That was a correct position taken at oral argument because the consequences of not conceding at least some level judicial review to the exclusion of a duly elected representative are staggering. Such a situation would permit legislative immunity, which is designed to safeguard representative democracy, to be weaponized against the representation it is meant to support.
  16. While the majority opinion essentially says that discrimination on the basis of disability is inconsequential, Congress certainly disagrees: 1) Congress enacted the ADA to provide a clear and comprehensive national mandate for the elimination of discrimination against persons with disabilities; 2) the ADA came in response to Congress’s finding that many people with physical or mental disabilities have been precluded from participating in all aspects of society because of discrimination on the basis of their disability; 3) persons with disabilities as a group occupy inferior status in society; 4) Congress found that individuals with disability continually encounter various forms of discrimination, including the discriminatory effects of overprotective rules and policies, failure to make modification to existing facilities and practices, exclusionary qualification standards and criteria, segregation, and relegation to lesser services, program, activity, benefits, jobs, or other opportunities.
  17. The majority opinion says that legislative rules subverting the ADA and discriminating against the disabled are simply not extraordinary enough even though: 1) Congress explicitly found that people with disabilities were systematically discriminated against and enacted a law meant to put those individuals on equal footing; 2) Congress thinks that discrimination is a serious and pervasive social problem; and 3) Congress passed the ADA with a seeming intent to reject the Supreme Court’s refusal to consider disability as a suspect classification akin to race (the dissent notes in a footnote that the discrete and insular language that originally appeared in the ADA was taken out of the amendments. However, the dissent correctly points out that the reason the insular and discrete finding was taken out was because the courts were using it to narrow the scope of the ADA rather than expand it).
  18. The Supreme Court has repeatedly expressed a skeptical eye towards applying legislative immunity to legislative actions that effectively remove certain constituents representative power in the government.
  19. The logistical issues claimed by the Speaker of the House have been a moving target and don’t make any sense. So, there is no grave legislative concern in pushing the scale in favor of legislators with disabilities being able to fulfill their duties and allowing them to serve the people who elected them.
  20. It is extraordinary to remove a legislator from representing the people who elected them.
  21. Plaintiffs never waived the extraordinary character/circumstances argument.
  22. The First Circuit has previously said that a legislature that votes to allow access to a chambers to members of only one race or two followers of one religion might veer into the orbit of the extraordinary character exception and disability should be treated no differently.
  23. The court opened the floodgates to a host of rules designed to oust various subsets of legislators based on a host of protected characteristics just so long as other legislators are clever enough to craft them in an ostensibly neutral way. Such rules include possibly:


  • A rule prohibiting the use of any electronic devices on the voting floor, but a member needs a hearing aid;
  • A rule that all members must stand to address the legislative body, but one of the members is wheelchair bound;
  • A rule prohibiting service animals from entering the floor during a session, but a member requires one;
  • A rule prohibiting a sign-language interpreter from entering the floor during a session of the body, but a member requires an interpreter.
  • A rule prohibiting a representative from wearing any headwear,27 but certain members adhere to a religion that requires doing so28;
  • A rule prohibiting facial hair, but certain members’ religions prohibit them from shaving;
  • A rule requiring that all sessions be held on Saturday mornings, but some members are Jewish and observe Shabbat.

According to the majority, absolute legislative immunity would apply in all of the situations because none of these rules take aim at any class of legislators.


  1. The distinction between adhering to existing rules rather than making new rules makes absolutely no sense because it fails to explain why the court should turn a blind eye to discrimination simply because it is based upon an established practice within a legislative chamber. Such a rule also fails to explain how the adherence to a pre-existing rule somehow lessens the potential for nefarious intent compared to a choice to enact the new rule.
  2. According to the majority opinion, representatives in the United States House of the Muslim faith would have no recourse when it came to wearing a religious headscarf because the U.S. House had a rule in place to disallow head coverings on the house floor. Similarly, the current New Hampshire House Rules requires a member to rise from their seat in order to speak and debate, make a motion, or deliver any matter to the House. Immunizing these effective ousters of representatives flies in the face of the entire purpose of legislative immunity.
  3. At oral argument, the Speaker said that challenges to hearing aids and service animal hypotheticals would be barred by absolute legislative immunity and the majority agrees.
  4. It doesn’t require, “Walt Disney level imagination” (the term actually used by Judge Thompson), for a legislature to come up with random reasons that would attach any of these rules to the legislative process.
  5. The majority opinion very well dooms the next case where there is some suspicion of a facially neutral rule driven by abuse. It goes so far as to say that legislative immunity trumps everything and bars any suit based upon any facially neutral legislative rule regardless of its impact on a representative democracy.
  6. The majority opinion gives carte blanche to legislatures to strategically silence legislative opponent and effectively disenfranchise their constituents so long that they can conjure up some facially neutral rationale for the rule. Such an opinion is at the expense of legislators with disabilities as well as at the expense of their constituents who elected them to serve.






  1. As a person with a disability and as a person dedicated to helping others understand the rights of people with disabilities, my personal opinion is that this decision goes too far and should be appealed to the United States Supreme Court. Even with the configuration of the United States Supreme Court as it is, I still believe that Representative Cushing has a decent chance of winning at the Supreme Court. Judge Thompson essentially wrote the brief for the plaintiffs.
  2. Look for the majority’s arguments to be made with respect to judicial immunity of state judges as well. It would be strange that judges charged with interpreting the law and getting it right would be free from any liability whatsoever should they themselves violate the rights of a person with a protected characteristic. The majority opinion suggest that is very well the case for both legislators and state judges (it isn’t a reach to see how the majority opinion easily applies to the actions of state judges).
  3. Legislative immunity applies to both suits for damages and for declaratory and injunctive relief, which only raises the stakes involved with this decision.
  4. I do understand how the majority argues that the State is not involved in official immunity suits, but that doesn’t mean that the dissent doesn’t have the better argument anyway.
  5. Some of the arguments made by Judge Thompson implicitly address arguments often seen in standing cases, such as this one decided by the 11th Circuit on March 29, 2022, which I may very well discuss in a subsequent blog entry and strongly suspect that Richard Hunt will discuss in one of his blog entries.
  6. I agree with Judge Thompson that an existing rule v. a new rule distinction makes little sense.
  7. Regardless of legislative immunity, we now see partisan legislators inviting federal judiciary intervention in all kinds of disputes. So, I am not sure that particular argument of the majority opinion withstands deeper analysis.
  8. Is what the Speaker did involve legislative acts, i.e. only tangentially related to legislating? The answer to that question is far from clear in my view.
  9. The ADA clearly applies to disparate impact. It is a far closer question whether the Rehabilitation Act applies to disparate impact.