new hampshire state house

In an ongoing case, six New Hampshire House members sued the speaker after he refused their petition for health-related accommodations during the pandemic. The speaker claims immunity protects him from being sued.

New Hampshire Case Testing Legislative Immunity

By Josalyn Williams | May 26, 2022 | State Legislatures News | Print

A lawsuit involving the New Hampshire House of Representatives is testing the power and scope of legislative immunity.

Legislative immunity is a legal doctrine, or set of principles or rules, granted to legislators that protects them from being sued and having to testify or produce documents in court proceedings for actions taken in the “sphere of legitimate legislative activity.”

In late 2020, the New Hampshire House began its new legislative session in person after voting against rule changes that would have allowed remote participation. With the ongoing COVID-19 pandemic as a backdrop, six House members petitioned the speaker for remote accommodations because of their health. No subsequent changes were made to remote participation rules, and no remote participation accommodations were granted.

Legislative immunity protects legislators from being sued and having to testify or produce documents in court proceedings for actions taken in the ‘sphere of legitimate legislative activity.’

The same lawmakers then sued the speaker for violating the Americans with Disabilities Act and other relevant federal laws and requested a preliminary injunction requiring him to institute procedures for remote participation. In response to the suit, the speaker filed a motion in opposition, claiming that legislative immunity protects him from lawsuits related to actions made in his official capacity.

The U.S. District Court for New Hampshire agreed with the speaker’s legislative immunity argument and denied the motion for a preliminary injunction. The plaintiffs then appealed the denial of the preliminary injunction to the 1st U.S. Circuit Court of Appeals. A three-judge panel vacated the lower court’s decision and sent the case back to the trial court to consider the plaintiffs’ substantive claims, ruling that the Title II of the Americans with Disabilities Act abrogated and section 504 of the Rehabilitation Act waived legislative immunity.

Following the speaker’s petition, the appeals court then granted the case a rehearing with the full panel of judges, withdrawing and vacating its first opinion. In a divided en banc (full panel) opinion, the majority ruled that the district court did not err in deciding that the speaker’s assertion of legislative immunity prevented the House members from obtaining injunctive relief. Furthermore, the majority noted while there are situations in which legislative immunity should be constrained, this case was not one of them. Meanwhile, the dissent offered a compelling argument for constraints to legislative immunity. Ultimately, the appellate court remanded the case back to the lower court for further proceedings. Because the en banc opinion did not rule on the original underlying issues of the case, there may be more court action ahead.

Court decisions often help define the scope of legislative immunity, and legislatures might find decisions in other states instructive. (Congress and the Vermont House both have offered synopses of this case for their members.) This ongoing case has proven to be an important study of the role of legislative immunity in institutional proceedings. We’ll continue to track its path.

Josalyn Williams is a policy associate in NCSL’s Center for Legislative Strengthening.

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