Appeals court hears discrimination case filed by NH state reps against House speaker

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Mark Hayward, The New Hampshire Union Leader, Manchester
·2 min read
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Apr. 5—Two days before the New Hampshire House is scheduled to open a three-day session, lawyers were before the U.S. Court of Appeals in Boston arguing whether the session discriminates against lawmakers at high risk for COVID-19.

Republican House Speaker Sherman Packard has refused to allow state reps with underlying health conditions to participate remotely, which prompted a lawsuit now under appeal.

Justices peppered lawyers with pointed questions about the timing of any decision, federal funding and discrimination under the Americans with Disabilities Act against people with underlying medical conditions.

"If you show up and die, that's going to be discrimination," said Justice O. Rogeriee Thompson.

The case was brought in early March by House Democratic leader Rep. Renny Cushing, six other state reps and the New Hampshire Democratic Party. The three-justice panel hearing the case wondered if any ruling will be moot or unnecessary because state reps will soon be vaccinated.

Not all of the seven have had their second shot two weeks ago or more, said Israel Piedra, a state rep and Democrat from Manchester who argued the case.

And he noted that Packard has scheduled three days of House deliberations at the New Hampshire Sportsplex in Bedford beginning Wednesday.

"You're telling us today to give you meaningful relief we need to get a decision out tomorrow?" asked Justice William J. Kayatta Jr.

Piedra said that would be ideal, but not necessary. Most cases can take months to decide, but in March, District Court Judge Landya McCafferty took a weekend to decide the case.

The justices also queried Assistant Attorney General Samuel Garland, who represented Packard. They asked him to compare Packard's decision to hypothetical rules that would bar Asian-American lawmakers from casting floor votes or requiring wheelchair-bound lawmakers to stand to vote.

Garland said the rule was not discriminatory but was necessary because it would be unwieldy to put all 400 state reps on a Zoom call. But the justices noted that only seven state reps were seeking remote access, not the entire House.

And they noted the New Hampshire House received a federal grant to make its sessions accessible remotely. Terms of the grant prevent the House from discriminating, the justices said.