Cushing v. Packard ( 2022 )

United States Court of Appeals
For the First Circuit
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
Howard, Chief Judge,
Lynch, Thompson, Kayatta, and Barron, Circuit Judges.
Israel Piedra, with whom Welts, White & Fontaine, PC, William
E. Christie, S. Amy Spencer, and Shaheen & Gordon, P.A. were on
brief, for appellants.
Anthony J. Galdieri, Senior Assistant Attorney General for
the State of New Hampshire, with whom Samuel R. V. Garland,
Assistant Attorney General for the State of New Hampshire, and
Jennifer S. Ramsey, Assistant Attorney General for the State of
New Hampshire, were on brief, for appellee.
Katherine E. Lamm, Attorney, Civil Rights Division, United
States Department of Justice, with whom Kristen Clarke, Assistant
Attorney General, and Thomas E. Chandler, Attorney, Civil Rights
Division, United States Department of Justice, were on brief, for
the United States, amicus curiae.
Joshua L. Gordon was on brief for ABLE - New Hampshire and
National Disability Rights Network, amici curiae.
Opinion En Banc
March 25, 2022
BARRON, Circuit Judge, with whom Howard, Chief Judge,
and Lynch, Circuit Judge, join. Does either Title II of the
Americans with Disabilities Act ("ADA") or § 504 of the
Rehabilitation Act ("RHA") authorize a federal court to resolve a
dispute among members of a state legislative body about whether
votes on bills may be cast remotely rather than in person? That
question and others closely related to it arise here from a dispute
among members of the New Hampshire House of Representatives
("House") over the proper way for that legislative body to conduct
its official proceedings in the face of the threat to health that
the COVID-19 virus poses.
Procedurally speaking, the questions come to us in
connection with an interlocutory appeal by members of the House,
each of whom is alleged to be especially vulnerable to the virus
due to a medical condition, and the New Hampshire Democratic Party.
The appeal challenges the denial by the United States District
Court for the District of New Hampshire of a motion for a
preliminary injunction against Sherman Packard, the Speaker of the
House. The motion seeks to require the Speaker to institute
procedures that would permit the representatives to participate
remotely in House proceedings -- including with respect to the
casting of votes on bills -- to reduce their risk of being infected
with the virus.
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The underlying suit names the Speaker, in his official
capacity, as the defendant and alleges his violation of both Title
II of the ADA and § 504 of the RHA, among other provisions of
federal and state law, based on his refusal to grant the
representatives' request for that same accommodation. The motion
for a preliminary injunction was based on the plaintiffs' ADA- and
RHA-related claims.
The District Court denied the motion based on the
Speaker's assertion of legislative immunity. See Cushing v.
Packard, No. 21-cv-147, 2021 WL 681638 (D.N.H. Feb. 22, 2021). On
interlocutory appeal, a panel of our Court unanimously vacated and
remanded the District Court's ruling on the ground that Title II
of the ADA abrogated, and § 504 of the RHA in this case effected
a waiver of, legislative immunity, such that the plaintiffs' claims
based on those statutes could be considered on their merits.
Cushing v. Packard, 994 F.3d 51 (1st Cir. 2021).
The Speaker at that point petitioned our Court for
rehearing en banc, which we granted in an order that vacated the
panel's decision. Cushing v. Packard, No. 21-1177, 2021 WL 2216970(1st Cir. June 1, 2021); see 1st Cir. I.O.P. X(D). Thus, we now
must review anew the District Court's denial of the motion for the
preliminary injunction.
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We are mindful of the seriousness of the threat to public
health that the COVID-19 virus poses. Indeed, we have held our
proceedings in this case remotely in accord with our own protocols
for dealing with that threat. But, our task in this appeal is not
to determine the most advisable means of conducting governmental
operations during the pandemic. Nor is it to decide how the ADA's
and the RHA's requirements to provide reasonable accommodations to
those with medical vulnerabilities apply in the face of the
peculiar risk that this specific virus presents. It is solely to
determine whether the District Court erred in holding that the
Speaker's assertion of legislative immunity prevents the
plaintiffs from obtaining the preliminary injunctive relief that
they seek. Because we conclude that the District Court did not
err in so holding, we affirm the denial of the motion for the
preliminary injunction and remand the case for further proceedings
consistent with this ruling.
I.
A.
On March 13, 2020, New Hampshire Governor Christopher T.
Sununu issued an executive order that declared a state of emergency
due to the COVID-19 virus's spread. N.H. Exec. Order 2020-04 (Mar.
13, 2020) ("Order"). The Order, among other things, encouraged
State government bodies to "conduct meetings through electronic
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means while preserving, to the extent feasible, the public's right
to notice of such meetings and ability to observe and listen
contemporaneously." Id. at 4, ¶ 8.
The Order did not direct the House to take any specific
action. Indeed, the New Hampshire Constitution commits to the
members of the House the power to "choose their own speaker,
appoint their own officers, and settle the rules of proceedings in
their own house." N.H. Const. pt. II, art. 22.
But, in the immediate wake of the Order, the House, which
with 400 members is the largest single state legislative body in
the country, chose of its own accord to suspend all its proceedings
before then resuming them in June. The House did not hold the
resumed proceedings in the House chamber. Instead, the House held
proceedings twice in June and once in September at the Whittemore
Center, the University of New Hampshire's ice hockey arena, to
facilitate social distancing and thereby reduce the risk that those
participating in the proceedings would be infected with the virus.
The House also began to consider conducting its future
proceedings remotely. As part of that consideration, it sought an
advisory opinion on September 16, 2020 from the New Hampshire
Supreme Court as to whether "holding a session of the New Hampshire
House of Representatives remotely, either wholly or in part,
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whereby a quorum could be determined electronically, violates Part
II, Article 20 of the New Hampshire Constitution."1
The House did not thereafter hold any proceedings during
the remainder of the legislative session. But, before the
legislative session ended, the New Hampshire Supreme Court, on
November 17, 2020, issued an opinion in response to the House's
request.
The opinion advised the House that holding legislative
proceedings remotely would not prevent the House from discerning
a quorum. See Opinion of the Justices, 247 A.3d 831, 840 (N.H.
2020) (discussing N.H. Const. pt. II, art. 20). The opinion
further explained that, as a result, the New Hampshire Constitution
did not prohibit remote participation by representatives in House
proceedings. See id.B.
The New Hampshire Supreme Court issued its advisory
opinion soon after elections had been held in the state for seats
to the House for the upcoming legislative session. Those elections
1Part II, Article 20 of the New Hampshire Constitution
provides that "[a] majority of the members of the House of
Representatives shall be a quorum for doing business: But when
less than two thirds of the Representatives elected shall be
present, the assent of two thirds of those members shall be
necessary to render their acts and proceedings valid."
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ushered in the next phase of the House's debate over how to conduct
its proceedings during the pandemic.
Under Part II, Article 3 of the New Hampshire
Constitution, the House for the preceding legislative session is
dissolved at 12:01 A.M. on the first Wednesday of December in even-
numbered years. That portion of the New Hampshire Constitution
further provides that the House for the subsequent legislative
session is constituted on that same day.
That day is recognized by the House as "Organization
Day," and on it the Governor swears in all members of the House.
The House on that day also establishes rules for its upcoming
legislative session.
Organization Day in 2020 fell on December 2, and the
proceedings of the House on that date took place outdoors, next to
the Whittemore Center. Because the November elections had resulted
in a shift of party control in the House from the Democrats to the
Republicans, the House elected a new Speaker, Representative
Richard "Dick" Hinch, during the Organization Day proceedings.
The House also adopted, during those same proceedings, rules to
govern the upcoming legislative session.
As part of the debate over those rules, newly elected
Representative Andrew Bouldin proposed to require the Speaker to
accommodate members who wished to participate remotely in
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proceedings of the House and to cast votes on legislation by that
same means. Representative Sherman Packard spoke against the
proposal as being premature. The House rejected Rep. Bouldin's
proposed rule to require such an accommodation by a vote of 182 to
56. See N.H. House Journal, Vol. 43, No. 1, at 7.
Then, on December 9, 2020, Speaker Hinch died of
complications related to COVID-19. Representative Packard, who
was named Deputy Speaker of the House shortly after Speaker Hinch's
election on December 2, became the Acting Speaker of the House.
The Acting Speaker announced that, in accord with Part II, Article
3 of the New Hampshire Constitution, the next proceedings of the
House would take place on January 6, 2021. He also announced that
the proceedings would be held in a parking lot on the University
of New Hampshire's campus.
In response to the announcement, a number of House
members, including plaintiffs in this case, sent emails to the
Acting Speaker in which they requested that he provide them with
an accommodation, on account of their medical conditions and other
limitations, to participate in the January 6 proceedings remotely.
The Acting Speaker rejected the requests. He indicated, however,
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that he would make unspecified accommodations based on medical
needs for members who did attend the proceedings in person.2
At the proceedings held on January 6, 2021, the House
elected Acting Speaker Packard as Speaker. In addition, Majority
Leader Jason Osborne and Minority Leader Robert R. Cushing
2 For example, one plaintiff, Representative David Cote,
emailed the following message to Acting Speaker Packard on December
24, 2020: "I appreciate yesterday's conversation with you, but
given the fact that you indicated there would be no remote option
for the 6th, and given my prior coronary artery disease, diagnosed
following a heart attack and the implementation of four stents in
2018, as well as the fact that my attending would require me to
carpool with at least one other person with no social distancing
being possible, I cannot see how in the absence of a remote option
I can safely participate in the session of January 6." He added:
"I am utterly mystified as to why we can't proceed under a hybrid
option thus allowing each representative to make individual
choices based on their individual health and family situation."
On December 27, 2020, Aaron Goulette, an aide for Speaker Packard,
responded as follows: "Acting Speaker Packard asked me to let you
know that if you chose to attend the proposed drive-in session in
Durham on January 6th, we will make sure you are accommodated. If
you do plan to attend, let us know, and we can create a plan for
your attendance." Representative Cote then responded to Goulette
by email the next day: "Thank you to both yourself and the Acting
Speaker for the courtesy of a reply. As I hoped I had made clear
previously, my attendance on January 6 is not a question of my
choice, but rather a question of the availability of a remote
attendance option, which would enable me to attend without risk of
exposure to COVID 19, given my age, existing health challenges,
and lack of driving capability, to which I have referred
previously. I continue to be mystified as to why a remote option
accommodation is not made available. The Acting Speaker explicitly
stated to me that there would be no remote option on January 6."
He added: "I have the greatest respect for my constituents, but
I cannot imagine that they would expect me to risk my life to
represent them. To give me or any member similarly situated such
a Hobson's choice is to my mind utterly unsatisfactory."
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introduced a proposed amendment to the House Rule governing the
House's procedures for conducting legislative business.
That rule establishes an order of precedence in the event
that the House's adopted rules are silent on a given procedural
matter, such that the authorities in the designated order of
precedence are treated as the House Rules. The order of precedence
under the House rule prior to its amendment was "Constitutional
provisions"; the House Rules; "[c]ustom, usage, and precedent";
the House's adopted parliamentary manual, which was the 2010
edition of Mason's Manual of Legislative Procedure; and relevant
statutory provisions. The amendment, approved by the House in a
316 to 4 vote, reflects just one change: the House's adoption of
the 2020 edition of Mason's Manual as its parliamentary manual,
substituting it for the 2010 edition. See N.H. House Journal,
Vol. 43, No. 2, at 4-5.
The 2020 edition of Mason's Manual is the only one of
the authorities in the order of precedence that speaks to whether
remote participation in legislative proceedings can take place.
The 2020 edition of the manual provides, in relevant part: "Absent
specific authorization by the constitution or adopted rules of the
body, remote participation in floor sessions by members of the
legislative body is prohibited." Mason's Manual of Legislative
Procedure, § 786 (2020). The 2010 edition, according to the
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parties, was silent on whether remote participation in floor
proceedings was allowed.
A proposal was introduced at the House proceedings to
amend the House rules to permit virtual proceedings of the full
House.3 The House rejected the proposed rule by a vote of 187 to
149. N.H. House Journal Vol. 43, No. 2, at 8 (Jan. 6, 2021); see
Holly Ramer, American Idle: New Hampshire House Holds Drive-In
Session, Associated Press (Jan. 6, 2021).4
The Clerk's Note on the January 6, 2021 legislative session
3
reads in part:
On the session day of January 6, the House
utilized a voting device system whereby
members entered their votes via keypad and
were recorded utilizing a radio-frequency-
based receiver. Unfortunately, through
circumstances beyond the control of staff and
the system, some votes were not captured for
a variety of reasons, including interference
from other electronic devices, vehicles acting
as Faraday shields, and the like. Following
the session, members notified the Clerk of
missed votes and their preferences are entered
in this Journal at the conclusion of recorded
votes.
N.H. House Journal Vol. 43, No. 2, at 4.
We note that the New Hampshire Senate held its proceedings
4
on January 6, 2021 remotely. In doing so, the Senate had relied
on the authority of Governor Sununu's Executive Order encouraging
the State's government bodies to "conduct meetings through
electronic means." N.H. Exec. Order 2020-04, at 4, ¶ 8; see N.H.
Senate Journal No. 2, at 25 (Jan. 6, 2021).
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C.
On January 29, 2021, Cushing, in his role as Minority
Leader of the House, sent a letter to the Speaker in which he
requested reasonable accommodations that would allow House members
with a medical condition that made them especially vulnerable to
the virus to attend House proceedings remotely. The Speaker held
a meeting with Cushing days later to discuss concerns related to
the next legislative session, scheduled to take place on February
24, 2021.
On February 8, 2021, Cushing sent another letter to the
Speaker in which Cushing again requested reasonable accommodations
for himself and other legislators that would permit their remote
participation in House proceedings. The Speaker replied on
February 12, 2021, thanking Cushing for his "continued dialogue on
remote session participation," and asserting that his office
"continue[s] to research if a reasonable remote solution exists
that will meet the unique logistical and security requirements of
our 400 member House of Representatives," as "[a] solution that
would meet our unique needs has not yet been identified."
On that same day, Representative Charlotte DiLorenzo
sent a letter to Jennifer Becker, the ADA Representative for the
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New Hampshire General Court.5 In that letter, she sought a
reasonable accommodation in the form of being "allowed to attend
House Session and House Committee Hearings virtually via Zoom or
a similar platform." DiLorenzo stated that her medical condition
made her "vulnerable to contracting the [COVID-19] virus and
jeopardize[d her] ability to fulfill [her] duty as a State
Representative, to the best of [her] ability and according to the
New Hampshire Constitution."
D.
On February 15, 2021, Cushing, DiLorenzo, five other
members of the House, and the New Hampshire Democratic Party filed
this suit in the District of New Hampshire, against Speaker Packard
"in his official capacity only."6 No other defendant was named.
The complaint alleges, among other things, that the
Speaker is in violation of Title II of the ADA and § 504 of the
RHA by failing to grant a reasonable accommodation that would
permit the House members bringing the suit to participate remotely
5 The New Hampshire General Court is the formal name of the
state's bicameral legislative branch, of which the House of
Representatives is one part.
6 The Court understands that Robert R. Cushing passed away
during the pendency of this appeal. No party has submitted any
filings concerning the effect, if any, of his untimely death.
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in the proceedings of the House.7 In support of those claims, the
complaint alleges that the representatives bringing the suit are
eligible to participate fully in the activities of the House by
virtue of their election to it and that they are qualified
individuals with a disability. They further allege that the
Speaker's failure to provide their requested accommodation "denies
[the plaintiffs] basic health and safety protection . . . and has
a disparate impact on [the plaintiffs], whose disabilit[ies] place
them at greater risk than the general public for serious
complications or death from COVID-19." The suit seeks, in addition
to declaratory relief, an order that would enjoin the Speaker to
allow the House members bringing the suit to participate remotely
in legislative proceedings, including with respect to the casting
of votes on bills.
The plaintiffs then filed an emergency motion for a
preliminary injunction "and/or" temporary restraining order to
secure the same relief based on the ADA- and RHA-related claims.
The Speaker filed a motion in opposition -- without also moving to
Throughout the opinion, we refer to the plaintiffs' request
7
as a request for a reasonable accommodation, but we note that we
adopt the language of the RHA in doing so. See 29 U.S.C. § 701.
The ADA refers to such requests as a request for a "reasonable
modification." See 42 U.S.C. § 12131(2). "[T]here is no material
difference between the terms." Nunes v. Mass. Dep't of Corr., 766
F.3d 136, 145 n.6 (1st Cir. 2014).
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dismiss -- on the ground that the plaintiffs could not show a
likelihood of success on the merits, in part due to the legislative
immunity enjoyed by the Speaker.
The District Court held a four-hour hearing on the
motion, at which it considered declarations and affidavits
submitted by the defendants. The District Court then issued an
opinion denying the motion on the ground that due to legislative
immunity the plaintiffs had failed to show a substantial likelihood
of success on the merits as to the claims at issue, notwithstanding
the plaintiffs' contention that the Speaker was not entitled to
legislative immunity with respect to their ADA and RHA claims even
if that immunity would bar other of their claims. See Cushing,
2021 WL 681638, at *6-7.
The plaintiffs then sought expedited appellate review of
the District Court's denial of its motion for a preliminary
injunction. A panel of this Court issued a judgment vacating the
District Court's order denying the motion and remanding the case
for further proceedings consistent with its ruling, on the ground
that the ADA abrogated and the RHA effected a waiver of legislative
immunity. Cushing, 994 F.3d at 55-56. The Speaker petitioned
this Court for en banc review of the panel's judgment. We granted
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the petition, withdrew the panel opinion, and vacated its judgment.
Cushing, 2021 WL 2216970, at *1; see 1st Cir. I.O.P. X(D).8
II.
A request for a preliminary injunction is a request for
extraordinary relief. It may be granted only if "the district
court [finds] that all four of the relevant factors (that is, '(1)
the movant's likelihood of success on the merits; (2) the
likelihood of the movant suffering irreparable harm; (3) the
balance of equities; and (4) whether granting the injunction is in
the public interest') weigh[] in favor of granting the request."
Comcast of Me./N.H., Inc. v. Mills, 988 F.3d 607, 611 (1st Cir.
2021) (quoting Shurtleff v. City of Bos., 928 F.3d 166, 171 (1st
Cir. 2019)).
The District Court determined that the plaintiffs were
not likely to succeed on the merits of their claims concerning the
ADA and the RHA due to the Speaker's assertion of legislative
immunity. See New Comm Wireless Services, Inc. v. SprintCom, Inc.,
287 F.3d 1, 9 (1st Cir. 2002) ("The sine qua non of this four-part
inquiry is likelihood of success on the merits: if the moving party
In addition to granting Speaker Packard's petition to rehear
8
the case en banc on June 1, 2021, we requested supplemental
briefing from the parties, and invited such briefing from amici,
on the contours of legislative immunity and whether legislative
immunity applies in a civil action seeking injunctive relief under
the ADA and RHA. Cushing, 2021 WL 2216970, at *1-2.
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cannot demonstrate that he is likely to succeed in his quest, the
remaining factors become matters of idle curiosity."); see also
Am. Freedom Def. Initiative v. Mass. Bay Transp. Auth., 781 F.3d
571, 578 (1st Cir. 2015) (establishing that a plaintiff seeking a
preliminary injunction must show a "strong likelihood that they
will ultimately prevail on the merits of their" claims (quoting
Sindicato Puertorriqueño de Trabajadores, SEIU Local 1996 v.
Fortunato, 699 F.3d 1, 10 (1st Cir. 2012)) (emphasis added)
(internal quotation marks omitted)). The parties in their briefing
have asked us to address only that ruling in this appeal, and we
follow suit. Our review of the legal issues that the District
Court's ruling presents is de novo. See Nieves-Marquez v. Puerto
Rico, 353 F.3d 108, 120 (1st Cir. 2003) (citing Langlois v.
Abington Hous. Auth., 207 F.3d 43, 47 (1st Cir. 2000)).
As we will explain, the plaintiffs advance several
grounds for concluding that the District Court erred in finding
that legislative immunity stands in the way of their obtaining the
extraordinary relief that they seek. We begin by describing the
nature of the immunity itself. We will then address each of the
plaintiffs' arguments in turn, though we conclude that none of
them warrants our overturning the District Court's denial of the
plaintiffs' motion for preliminary injunctive relief.
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III.
The Supreme Court of the United States has repeatedly
affirmed that legislative immunity is an analogue to the Speech
and Debate Clause of the federal Constitution that reflects the
importance that Anglo-American law traditionally has placed on
protecting "legislators acting within their traditional sphere"
from being subject to suit. Tenney v. Brandhove, 341 U.S. 367,
376 (1951). The Court has explained in that regard that the
"privilege of legislators to be free from . . . civil process for
what they do or say in legislative proceedings has taproots in the
Parliamentary struggles of the Sixteenth and Seventeenth
Centuries" and "was deemed so essential for representatives of the
people that it was written into the Articles of Confederation and
later into the Constitution['s]" Speech and Debate Clause. Id. at
372; see also id. at 373 ("The provision in the United States
Constitution was a reflection of political principles already
firmly established in the States. Three State Constitutions
adopted before the Federal Constitution specifically protected the
privilege." (quoting 2 Works of James Wilson 38 (James DeWitt
Andrews ed., 1896))).
The Court has further explained that this "privilege"
from suit is "indispensabl[e]" to "enable and encourage a
representative of the public to discharge his public trust with
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firmness and success." Id. at 373. In other words, according to
the Court, the reason to keep government officials "immune from
deterrents to the uninhibited discharge of their legislative
dut[ies is] not for their private indulgence but for the public
good." Lake Country Ests., Inc. v. Tahoe Reg'l Plan. Agency, 440
U.S. 391, 405 (1979) (quoting Tenney, 341 U.S. at 377)).
For that reason, the Court has made clear that, unlike
some other common law immunities, legislative immunity may be
asserted even against claims that seek only declaratory or
prospective injunctive relief, see Sup. Ct. of Va. v. Consumers
Union of the U.S., Inc., 446 U.S. 719, 732 (1980), and exists to
protect those engaged in legislative activities from the burdens
of defending against a suit and not merely from being held liable
in one, see Tenney, 341 U.S. at 377. In addition, the immunity is
absolute rather than qualified, insofar as it applies. See id. at
372.
IV.
We start with the plaintiffs' threshold contention,
supported by the United States as amicus, that legislative immunity
does not apply to the claims concerning the ADA and the RHA that
are at issue, because those claims are brought against the State
itself and not against the state officer named in the complaint as
the sole defendant. The argument depends on two related
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assertions: that (1) the plaintiffs' official capacity state
officer claims -- even though the claims seek only declaratory and
injunctive relief -- must be treated as claims against the State
and not the officer named despite the fact that the State itself
is not named; and (2) legislative immunity is a "personal
immunity," which, unlike an "official" immunity like the sovereign
immunity that a State may assert under the Eleventh Amendment to
the United States Constitution, may only be asserted by an
individual officer and not by the State itself. As we will
explain, even if we may assume for present purposes that the second
of these assertions is sound,9 we cannot accept the first, at least
on this record, given that the plaintiffs are the masters of their
own complaint. Cf. Holmes Grp., Inc. v. Vornado Air Circulation
Sys., Inc., 535 U.S. 826, 831 (2002).
A.
The plaintiffs and the United States base the contention
that the claims regarding the ADA and the RHA that they bring
We note that neither the plaintiffs nor the United States
9
addresses any of the seeming complexities that would appear to
arise from naming the State alone as the defendant, given that the
injunctive relief sought is directed solely against the Speaker.
Nor do they cite any authority to support the contention that a
suit that merely names the State but then seeks such equitable
relief against a state legislative officer and no other actor or
entity is not a suit to which legislative immunity applies. We
will return to these points below.
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against the Speaker in his official capacity must be treated as
claims against the State itself in part on Will v. Michigan Dep't
of State Police, 491 U.S. 58 (1989), and Kentucky v. Graham, 473
U.S. 159 (1985). But, neither case supports our doing so here.
Those two cases do make clear that suits against state
officers in their official capacity often must be treated as suits
against the State, notwithstanding that such suits do not
specifically name the State as the defendant. See Will, 491 U.S.
at 71; Graham, 473 U.S. at 166-67. But, the Court expressly
recognized in Graham and Will that, at least when such an official
capacity state officer suit is brought under § 1983 for the kind
of relief that is at issue here, it must not be treated as a suit
against the State itself. See Will, 491 U.S. at 71 n.10 (holding
that official capacity state officer suits for prospective
injunctive relief are suits against a "person" under § 1983 even
though a "State" is not a "person" under that statute); Graham,
473 U.S. at 167 n.14 ("[I]mplementation of state policy or custom
may be reached in federal court only because official-capacity
suits for prospective relief are not treated as actions against
the state.").
The plaintiffs and the United States go on to assert,
however, that even if an official capacity state officer suit for
prospective injunctive relief need not be treated as a suit against
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the State under § 1983, it must be so treated when it is brought
to enforce Title II of the ADA and § 504 of the RHA. Thus, the
plaintiffs argue, the claims concerning the ADA and the RHA at
issue here must be so treated, despite the fact that the plaintiffs
did not name the State as the defendant as to those claims and
instead named only a state legislative officer.
To flesh out this contention, the plaintiffs and the
United States explain that each of those underlying statutes,
unlike § 1983, purports to make a "State" suable. They further
explain that each of those statutes, also unlike § 1983, expressly
imposes liability on, respectively, only a "public entity" and a
"program or activity," neither of which is defined to include a
state officer (or, for that matter any officer at all). See 42
U.S.C. § 12132; 29 U.S.C. § 794.
But, insofar as the plaintiffs and the United States
mean to suggest that those features of the two statutes in and of
themselves require us to treat the plaintiffs' claims as claims
against the State, and not a state officer (despite the fact that
the claims name the officer and not the State as the sole
defendant), we cannot agree. To see why, though, it is necessary
to consider the claims before us pertaining to each statute
separately.
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1.
With respect to the plaintiffs' claims to enforce Title
II of the ADA, we note at the outset that the Supreme Court has
made clear that an official-capacity suit against a state officer
for injunctive relief may be brought to enforce the duties imposed
by Title I of the ADA. See Bd. of Trs. of Univ. of Ala. v. Garrett,
531 U.S. 356, 374 n.9 (2001). It has further made clear that,
when such a suit is brought, it is properly treated as a suit
against the officer and not the State itself, because such a suit
would otherwise implicate the jurisdictional bar imposed by the
Eleventh Amendment and thereby raise issues concerning Congress's
constitutional power to effect an abrogation of sovereign
immunity. See id. Moreover, the Court has so held notwithstanding
both that a provision of the ADA purports to abrogate Eleventh
Amendment immunity and that, unlike § 1983, Title I of the ADA
imposes liability on States. See 42 U.S.C. § 12202.10 That is
significant for present purposes because a uniform body of lower
court precedent holds for essentially the same reasons that such
10 Graham does not itself support the notion that Congress's
expressed intention to abrogate Eleventh Amendment immunity in
enacting a statute in and of itself requires that we treat an
official-capacity, state-officer claim brought under that statute
for prospective injunctive relief as if it were against the State
itself. See 473 U.S. at 167 n. 14 (noting the relevance of whether
"Congress has overridden" Eleventh Amendment immunity) (emphasis
added).
- 24 -
an official capacity state officer suit also may be brought to
enforce Title II of the ADA and that, when it is brought, it also
is properly treated as a suit against the officer named and not
the State itself. See, e.g., Henrietta D. v. Bloomberg, 331 F.3d
261, 288-89 (2d Cir. 2003); Miranda B. v. Kitzhaber, 328 F.3d 1181,
1187-88 (9th Cir. 2003) (per curiam); Carten v. Kent State Univ.,
282 F.3d 391, 397 (6th Cir. 2002); Randolph v. Rodgers, 253 F.3d
342, 348 (8th Cir. 2001).
Against this backdrop, we fail to see why we must treat
the plaintiffs' claims to enforce Title II of the ADA as if they
are not what they purport to be, such that we must treat them as
if they are claims against the State of New Hampshire rather than
a state officer (albeit in his official capacity only). After
all, the plaintiffs do not suggest that we must treat their
Fourteenth Amendment claims against the Speaker in his official
capacity as if they are claims against the State itself, yet the
plaintiffs name the Speaker, in his official capacity, as the sole
defendant in those claims. And, as we have just explained, their
claims to enforce the ADA are no less permissibly brought -- and
treated -- as claims against the officer named (even though he is
named only in his official capacity) and not the State than are
their claims under the Fourteenth Amendment, despite the
- 25 -
distinctive features of Title II of the ADA that the plaintiffs
and the United States highlight.
The plaintiffs and the United States, in arguing
otherwise, do assert that a state officer sued in his official
capacity may not assert legislative immunity precisely because
that officer is not being sued in his individual capacity. Here,
they rely on the statement in Graham that "the only immunities
that can be claimed in an official capacity action are forms of
sovereign immunity that the entity, qua entity, may possess, such
as the Eleventh Amendment." 473 U.S. at 167.
But, that dictum cannot control our analysis here, given
the Court's express holding in Consumers Union that legislative
immunity may be asserted as a defense against an official capacity
suit against a state officer for the kind of relief that is at
issue here. See 446 U.S. at 737 n.16, 738-39; id. at 732 ("Although
Tenney involved an action for damages under § 1983, its holding is
equally applicable to § 1983 actions seeking declaratory or
injunctive relief."); Colon Berrios v. Hernandez Agosto, 716 F.2d
85, 88 (1st Cir. 1983) (relying on Consumers Union in holding that
"the Supreme Court has clearly held that state legislators acting
in a legislative capacity are absolutely immune from the imposition
of equitable remedies in a suit brought under 42 U.S.C. § 1983").
Indeed, Graham itself seems to have recognized Consumers Union's
- 26 -
holding on this very point. 473 U.S. at 167 n.14. Thus, if we
must take the plaintiffs' claims at their word and understand them
to be claims against the Speaker in his official capacity and not
claims against the State itself, there is no inherent bar to the
defendant -- owing to the nature of that defendant -- asserting
the immunity at issue here.
The plaintiffs and the United States do respond by
pointing to Board of Commissioners, Wabaunsee County v. Umbehr,
518 U.S. 668 (1996), which was decided after Consumers Union. They
contend that precedent shows that the Speaker, insofar as he is
being sued in his official capacity, cannot assert legislative
immunity, notwithstanding what Consumers Union says on that score.
They note that Umbehr states that legislative immunity "extends to
public servants only in their individual capacities," 518 U.S. at677 n.*, and holds on that basis in that case that "the legislative
immunity claim is moot," because "only claims against the Board
members in their official capacities" were before the Court. Id.But, here, too, we disagree. Umbehr does not purport to
overrule Consumers Union, as Umbehr does not even mention Consumers
Union, and we do not see how we may read Umbehr to overrule
Consumers Union by implication. Umbehr involved an official
capacity claim against municipal rather than state officers under
§ 1983. The Court has long treated § 1983 claims against municipal
- 27 -
defendants differently from § 1983 claims against state ones. See,
e.g., Graham, 473 U.S. at 167 n.14. Neither the plaintiffs nor
the United States identifies any authority that supports a contrary
conclusion, despite the substantial body of authority that rejects
the notion that Umbehr overrides Consumers Union with respect to
official capacity suits against an officer of the State. See,
e.g., State Empls. Bargaining Agent Coal. v. Rowland, 494 F.3d 71,
86 (2d Cir. 2007) ("While legislative immunity is available to
local officials who are sued in their individual capacities, the
Supreme Court has made clear that, due to the historical
unavailability of various immunity defenses to local governments,
those governments (or, 'municipal corporations') are not entitled
to the benefit of any immunities that might be available to local
officials sued under § 1983. The Supreme Court has never reached
a similar conclusion with respect to suits against states, or
against state agents in their official capacities." (internal
citations omitted)); Scott v. Taylor, 405 F.3d 1251, 1255 n.6 (11th
Cir. 2005) ("Umbehr involved a § 1983 official capacity claim
against local governmental officials. Accordingly, the general
rule of Graham applied whereby the official capacity claim was to
be treated as a claim against the entity and personal immunities
- 28 -
would not be available. Umbehr, like Graham, is entirely
consistent with the holding of Consumers Union.").11
Thus, the plaintiffs fail to persuade us that their
claims in which they seek to enforce Title II of the ADA are
properly understood to be claims against the State, despite how
they were pleaded.12 Accordingly, we proceed on the understanding
that the named defendant is the Speaker in his official capacity
rather than the State and that, as such, he is entitled to assert
11 We note that Umbehr was decided prior to Bogan v. Scott
Harris, 523 U.S. 44 (1998). There, the Court resolved that
municipal officials were entitled to assert legislative immunity
when sued in their individual capacity, see id. at 53-54, which
was an open question at the time that the Court handed down its
decision in Umbehr. Moreover, Umbehr cited as support for its
treatment of the official capacity claims at issue, Leatherman v.
Tarrant County Narcotics Intelligence and Coordination Unit, 507
U.S. 163 (1993), which concerned the proper treatment of official
capacity claims only against municipal officers. See Umbehr, 518
U.S. at 677 n.*.
12Notably, the ADA's operative provisions refer to a "public
entity," see 42 U.S.C. § 12132, and the parties do not dispute
that the House would qualify as one no less than the State itself
would. Yet, the plaintiffs at no point explain why their claims
to enforce Title II of the ADA, insofar as they must be treated as
claims against a "public entity" and not an officer, must be
treated as claims against the State rather than the House, even
though the plaintiffs named an officer of that legislative body as
the defendant for those claims. That failure on the plaintiffs'
part is problematic in its own right, because Consumers Union
expressly states that legislative bodies may themselves assert
legislative immunity. See 446 U.S. at 733-34.
- 29 -
the immunity at issue per Consumers Union, absent there being some
bar to his doing so.13
2.
The problems with treating the plaintiffs' claims to
enforce the RHA as being against the State rather than the officer
named in the complaint are somewhat different, though related.
Like Title II of the ADA, and unlike § 1983, § 504 of the RHA does
expressly provide that "State[s]" are liable for violating its
terms. See 29 U.S.C. § 794(b)(1)(A)-(B). And, § 504 of the RHA,
13The plaintiffs, in arguing that their claims to enforce the
ADA are claims against the State, even though their Fourteenth
Amendment claims are not, do not develop an argument that those
claims pertaining to Title II of the ADA simultaneously also are
not claims against the State for purposes of determining whether
they implicate Eleventh Amendment immunity. See United States v.
Zannino, 895 F.2d 1, 16 (1st Cir. 1990) (discussing waiver). Thus,
if we were to treat the plaintiffs' ADA-related claims as if they
were claims against the State and no other defendant, then those
claims would be subject to an assertion of Eleventh Amendment
immunity that they otherwise would not implicate. See Garrett,
531 U.S. at 374 n.9 (establishing that, with respect to Title I of
the ADA, an official capacity suit for injunctive relief may
proceed under the fiction of Ex parte Young, 209 U.S. 123 (1908)).
In consequence, the plaintiffs' claims would then raise questions
regarding Congress's constitutional authority to abrogate Eleventh
Amendment immunity that otherwise would not arise. See
Tennessee v. Lane, 541 U.S. 509, 520 (2004) (detailing a
"congruence and proportionality" test for determining whether a
suit under Title II of the ADA against the State may proceed
(quoting City of Boerne v. Flores, 521 U.S. 507, 520 (1997))); see
also Scott v. Taylor, 405 F.3d at 1255 n.5 (11th Cir. 2005) ("If
official capacity actions against state legislators were treated
as actions against the State, they would be barred by states'
Eleventh Amendment sovereign immunity.").
- 30 -
like Title II of the ADA, does not expressly provide that any
officer of a state is subject to suit. Section 504 of the RHA
imposes liability on "program[s] or activit[ies] receiving Federal
financial assistance," which the provision then defines to include
governmental entities. See 29 U.S.C. § 794(a)-(b).
But, as with Title II of the ADA, neither the plaintiffs
nor the United States points to any precedent that holds that suits
against state officers -- even when sued in their official capacity
-- to enforce the provisions of § 504 of the RHA through relief of
the kind at issue here may not be brought. Nor do they suggest
that there is a reason to conclude that such suits, insofar as
those suits may be brought to enforce the RHA, must be treated as
suits against the State, even if those suits need not be so treated
when brought to enforce Title II of the ADA. Moreover, as with
Title II of the ADA, there is authority that holds that such suits
may be brought to enforce § 504 of the RHA and that, when they are
so brought, they are properly treated as suits against the officer
and not the State. See Henrietta D., 331 F.3d at 289. And, as we
have already explained, given Consumers Union, the dictum in Graham
regarding the distinction between official and personal immunities
provides no basis for our concluding that we must treat such suits
as suits against the State for purposes of assessing assertions of
legislative immunity. Accordingly, the plaintiffs fail to explain
- 31 -
why we cannot take their RHA-predicated claims, as pleaded, to be,
like their claims regarding the ADA, just what they purport to be.
That being so, we understand the plaintiffs' RHA-related claims to
be, like their ADA-related claims, against a kind of defendant who
is not -- inherently -- incapable of asserting the immunity that
is at issue.
The United States argues that the Eleventh Amendment
concerns that might arise from treating the plaintiffs' claims to
enforce Title II of the ADA as claims against the State itself
would not arise from so treating their RHA-related claims. The
plaintiffs and the United States emphasize that the State itself
is a "recipient of Federal financial assistance" within the meaning
of § 504 of the RHA. 29 U.S.C. § 794(a). The United States thus
contends that, given the State of New Hampshire's acceptance of
"Federal financial assistance" to support legislative operations
during the pandemic, there was a clear waiver of Eleventh Amendment
immunity here, and so no Eleventh Amendment concern that the
plaintiffs would have needed to avoid by suing only a state officer
and not the State itself. See 42 U.S.C. § 2000d-7(a)(1) ("A State
shall not be immune under the Eleventh Amendment . . . for a
violation of section 504 of the Rehabilitation Act of 1973 . . . or
. . . any other Federal statute prohibiting discrimination by
recipients of Federal financial assistance.").
- 32 -
But, there could be a question of whether the State had
waived its Eleventh Amendment immunity by that receipt of funds,
given that the relief that the plaintiffs seek would run against
a state legislative, rather than a state executive, officer. Cf.
Koslow v. Commonwealth of Pennsylvania, 302 F.3d 161, 171 (3d Cir.
2002) ("Under the statutory definition in the Rehabilitation Act,
the state, as a whole, cannot be a 'program or activity.' As other
courts have noted, if the entire state government were subject to
§ 504 whenever one of its components received federal funds,
section (b)(1)(B) would be redundant."). By contrast, no such
question arises if the plaintiffs' claims to enforce the RHA are
taken at their word and treated as claims against the named state
officer in his official capacity rather than the State. For, in
that event, Eleventh Amendment immunity is not in play.
In addition, the plaintiffs do not explain why if their
claims regarding the RHA must be understood to be against an entity
rather than an officer, they must be understood to be against the
State rather than the House, given that the officer named in the
complaint as the sole defendant is a member of the House, which
the parties do not dispute is a covered entity under § 504 of the
RHA. See 29 U.S.C. § 794. And, as we have explained, Consumers
Union expressly states that a legislative body may itself assert
legislative immunity. So, had the plaintiffs named the State in
- 33 -
their complaint, a question would then have arisen in relation to
the relief sought as to whether the right entity had been named,
given that if the House were the proper entity (insofar as an
officer suit was not being brought) legislative immunity would
have remained as a viable defense. See Consumers Union, 446 U.S.
at 732.14
3.
In sum, neither the plaintiffs nor the United States
persuasively explains why the official capacity state officer
claims regarding the ADA and the RHA that are before us must be
treated as if they are claims against the State itself and thus
against a defendant that the plaintiffs assert to be, by its
nature, incapable of asserting legislative immunity. Accordingly,
we take the complaint at its word. We thus understand it to be
14 We note that the plaintiffs disclaimed any intention to
have sued any defendant other than the State only after having
been confronted with a defense of legislative immunity based on
Consumers Union in response to their motion for preliminary
injunctive relief. But, that otherwise previously unarticulated
position does not effectively amend the complaint. Nor is this a
case in which the entity of which the officer sued is a part "had
no greater separate identity from the" State -- which is a suable
entity under the ADA and the RHA -- than many executive departments
do. Brandon v. Holt, 469 U.S. 464, 472 (1985). Rather, it is a
case in which the officer named in the complaint serves in one of
the two houses of a coordinate branch of state government and thus
is not, for purposes of enforcing either statute, obviously "the
State" -- insofar as the officer named is a stand-in for any
entity -- rather than either the House or the state legislature as
a whole.
- 34 -
alleging claims that seek to enforce Title II of the ADA and § 504
of the RHA against the state officer (in his official capacity)
who is named, which, as Consumers Union holds, is an officer who
is entitled even in that capacity to assert the defense of
legislative immunity, at least insofar as that officer is not
otherwise barred from doing so.
V.
The plaintiffs do also assert -- this time, without the
support of the United States -- that their ADA-predicated claims
may go forward, despite the Speaker's assertion of legislative
immunity, even if they are understood to be claims against a state
officer rather than the State itself, despite the Speaker's
assertion of legislative immunity. That is in part because the
plaintiffs contend that, in enacting Title II of the ADA, Congress
abrogated any legislative immunity that such a defendant otherwise
could assert. But here, too, we disagree.
As an initial matter, it is not obvious how Title II of
the ADA could bring about such an abrogation, insofar as the suit
is against a state legislative officer and not any "public entity"
under that statute. Nonetheless, a legislative body, like the
House, appears to be a "public entity" under Title II of the ADA
and to be capable of asserting legislative immunity in certain
circumstances per Consumers Union. See 446 U.S. at 733-34. In
- 35 -
addition, the plaintiffs appear to be of the view that Title II of
the ADA -- through its various provisions -- may be understood to
abrogate legislative immunity even when asserted by a state
legislative officer as a defense to a claim to enforce the statute
that is brought against that officer in his official capacity and
not against any "public entity" with which he is identified. Thus,
we proceed to address the abrogation argument that the plaintiffs
present as they have framed it for us and as the panel addressed
it. But, as we will explain, even when we do so, we find the
plaintiffs' abrogation argument to be without merit, in large part
due to the reasoning of Tenney.
A.
The plaintiff in Tenney, William Brandhove, had sued
members of the California Senate's Fact-Finding Committee on Un-
American Activities under 42 U.S.C. § 1983 and a companion civil
rights measure that provided redress against those who conspire to
deprive individuals of their federal constitutional rights. See
42 U.S.C. § 1985. Brandhove alleged they had used a legislative
subpoena to "intimidate and silence" him, in an attempt to "deter
and prevent him from effectively exercising his constitutional
rights of free speech and to petition the Legislature for redress
of grievances." 341 U.S. at 371. He pointed out that not a word
in either statute recognized legislative immunity and that, in
- 36 -
fact, the text of each statute encompassed both legislators and
their legislative acts by applying to any "person" who was acting
"under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory." 42 U.S.C. § 1983. He thus
contended that legislative immunity posed no bar to his claims.15
In holding otherwise, the Court framed the relevant
interpretive question as follows: Did Congress intend "to overturn
the tradition of legislative freedom achieved in England by Civil
War and carefully preserved in the formation of State and National
Governments here" and thereby to "subject legislators to civil
liability for acts done within the sphere of legislative activity?"
Id. at 376. The Court then reasoned -- perhaps not surprisingly,
given that framing -- that it could not conclude that Congress had
so intended:
Let us assume, merely for the moment, that
Congress has constitutional power to limit the
freedom of State legislators acting within
their traditional sphere. That would be a big
assumption. But we would have to make an
eve[n] rasher assumption to find that Congress
thought it had exercised the power. These are
difficulties we cannot hurdle. . . . We
cannot believe that Congress -- itself a
staunch advocate of legislative freedom -
- would impinge on a tradition so well
grounded in history and reason by covert
inclusion in the general language before us.
15See Brief for Respondent at 17, Tenney v. Brandhove, 341
U.S. 367 (1951) (No. 338).
- 37 -
Id.In the decades since, the Court has shown no inclination
to back away from Tenney's interpretive logic. Rather, in
subsequent cases applying common-law immunities to § 1983 claims,
the Court has explained that Tenney held that § 1983 did not
abrogate such immunities both because "the legislative record
[gave] no clear indication that Congress meant to abolish [them]
wholesale" and because it was fair to "presume that Congress would
have specifically so provided had it wished to abolish the
doctrine[s]." Pierson v. Ray, 386 U.S. 547, 554-55 (1967).
In accord with that same understanding, the Court has,
in the wake of Tenney, appeared to equate the inquiry into
Congress's intent to abrogate legislative immunity with the
famously strict inquiry that is required to determine Congress's
intent to abrogate Eleventh Amendment immunity. See Consumers
Union, 446 U.S. at 738-39. It has also appeared to hold that
evidence of an intent by Congress to abrogate the latter type of
immunity is not evidence of its intent to abrogate the former.
Id. Indeed, the Court has even gone so far as to state, seemingly
as a general matter, that "[o]ur cases have proceeded on the
assumption that common-law principles of legislative . . .
immunity were incorporated into our judicial system and that they
- 38 -
should not be abrogated absent clear legislative intent to do so."
Pulliam v. Allen, 466 U.S. 522, 529 (1984).
The plaintiffs do argue that, even if Tenney sets forth
a clear statement rule for abrogating legislative immunity, it
applies only to § 1983 itself. But, they do not offer any
supporting authority for that contention, and there is sister
circuit precedent directly to the contrary. See Chappell v.
Robbins, 73 F.3d 918, 923-25 (9th Cir. 1996) (applying clear
statement rule to determine whether Congress intended to abrogate
legislative immunity with respect to a civil claim under the
Racketeering Influenced and Corrupt Organizations Act, 18 U.S.C.
§ 1961 et seq.).16
In addition, the cases in the Tenney line repeatedly
affirm the important role that legislative immunity plays in
promoting representative democracy and thus the soundness of
Tenney's presumption that Congress, as a legislative body in its
16 We note that the Supreme Court has required at least as
much clarity as Tenney required in determining whether other
federal statutes have displaced the immunity that members of
Congress enjoy under the Speech and Debate Clause. See United
States v. Helstoski, 442 U.S. 477, 493 (1979) ("Assuming,
arguendo, that the Congress could constitutionally waive the
protection of the Clause for individual Members, such a waiver
could be shown only by an explicit and unequivocal expression.
There is no evidence of such a waiver in the language or the
legislative history of § 201 or any of its predecessors." (second
emphasis added)).
- 39 -
own right, would not likely override such a critical protection
for legislative freedom without evidencing its serious
consideration of the merits of doing so. Indeed, the Court in
Tenney began its analysis by characterizing the notion that
Congress could abrogate the immunity generally as a "big
assumption," 341 U.S. at 376, which is a characterization that
certainly accords with the notion that the concern about finding
abrogation was rooted in a recognition that any such abrogation
would implicate the federal-state balance. Cf. Gregory v.
Ashcroft, 501 U.S. 452, 460 (1991) ("Congressional
interference . . . would upset the usual constitutional balance of
federal and state powers. For this reason, 'it is incumbent upon
the federal courts to be certain of Congress' intent before finding
that federal law overrides' this balance." (quoting Atascadero
State Hosp. v. Scanlon, 473 U.S. 234, 243 (1985))). Thus, if
anything, there would appear to be particular reason to presume
that Congress would not have abrogated such a longstanding
immunity -- which is both discrete in nature and unusually salient
to the legislative branch -- in the statute at issue here without
making its intent to do so clear, given that Congress enacted this
statute when Tenney was already established precedent.
Accordingly, to determine whether Congress intended to
abrogate legislative immunity by enacting Title II of the ADA, we
- 40 -
proceed on the view that such abrogation could not take place
"absent clear legislative intent to do so." Pulliam, 466 U.S. at
529. And, as we will next explain, given that understanding, the
plaintiffs fail to persuade us that the District Court erred in
determining that Title II of the ADA did not abrogate legislative
immunity.
1.
To make the contrary case, the plaintiffs rely on the
text of Title II of the ADA. The operative provision of the
statute provides that "no qualified individual with a disability
shall, by reason of such disability, be excluded from participation
in or be denied the benefits of the services, programs, or
activities of a public entity, or be subjected to discrimination
by any such entity." 42 U.S.C. § 12132. The statute that defines
a "public entity" does so broadly to include "any State or local
government" and "any department, agency, special purpose district,
or other instrumentality of a State or States or local government."
42 U.S.C. § 12131(1)(A)-(B). It also makes clear that Congress
intended the statute to be read broadly to ensure that it would
have an encompassing scope. See generally 42 U.S.C. § 12101(b)("It
is the purpose of this chapter . . . to provide a clear and
comprehensive mandate for the elimination of discrimination
against individuals with disabilities.").
- 41 -
Moreover, as the plaintiffs highlight, a separate
provision of the ADA that applies to the claims at issue here
provides as follows:
A State shall not be immune under the eleventh
amendment to the Constitution of the United
States from an action in [a] Federal or State
court of competent jurisdiction for a
violation of this chapter. In any action
against a State for a violation of the
requirements of this chapter, remedies
(including remedies both at law and in equity)
are available for such a violation to the same
extent as such remedies are available for such
a violation in an action against any public or
private entity other than a State.
42 U.S.C. § 12202.
2.
The plaintiffs' chief contention regarding abrogation
relies on the second sentence of this last provision. They contend
that it must be read to manifest Congress's clear intent to
abrogate the specific immunity at issue here, because it expressly
provides that the "remedies" available under this statute in an
action against a "State" are the same as those that would be
available against a "private entity" and legislative immunity is
not an immunity that any private entity may assert.
But, the provision that contains this sentence is
substantively identical to 42 U.S.C. § 2000d-7(a)(2), which we
know that Congress added to the RHA years earlier in the immediate
wake of the Supreme Court's decision in Atascadero to ensure that
- 42 -
the clear statement requirement for dispensing with Eleventh
Amendment immunity would be met. See H.R. Rep. No. 101-485, pt.
2, at 138 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 421 ("This
provision is included in order to comply with the standards for
covering states set forth in Atascadero."). After all, Atascadero
had held that a prior provision of the RHA that had purported to
provide a means by which a State could effect a waiver of Eleventh
Amendment immunity was unclear as to whether it covered claims
against a State for certain types of remedies. See 473 U.S. at
245-46.
Thus, the second sentence of this same provision in the
ADA would appear -- like the second sentence in its predecessor in
the RHA -- to have been intended merely to make clear that the
Eleventh Amendment immunity referenced in the first sentence
extends to all types of remedies that may be sought against states.
That the sentence in question refers only to "remedies" and not
"immunities" and that the legislative history to this provision
makes no reference to any immunity other than Eleventh Amendment
immunity both accord with that same conclusion. See Lussier v.
Fla., Dep't of Highway Safety & Motor Vehicles, 972 F. Supp. 1412,
1418-19 (M.D. Fla. 1997) (rejecting the argument that the second
sentence of 42 U.S.C. § 12202 "creates an exception to the
jurisdictional bar leveled by the Tax Injunction Act"); see also
- 43 -
28 U.S.C. § 1341 (precluding federal courts from considering
challenges to a State law that facilitates "the assessment, levy
or collection of any tax"). So, too, does the fact that the
provision concerns only actions against "State[s]," given that the
immunity here applies to actors at all levels of government.
See, e.g., Bogan, 523 U.S. 44 (applying legislative immunity to a
suit involving a municipal legislator); Lake Country Ests., 440
U.S. 391 (applying legislative immunity to a suit involving a
regional legislative body). Accordingly, consistent with general
interpretive principles, we decline to treat this sentence as if
it were a means of effecting a sweeping abrogation of such an
important immunity, when it appears as a follow-on to a sentence
that expressly dispenses with a distinct immunity without itself
making reference to any immunity at all. See Conservation Law
Found., Inc. v. Pruitt, 881 F.3d 24, 32 (1st Cir. 2018) ("Congress
does not hide elephants in mouseholes." (citing Whitman v. Am.
Trucking Ass'ns, 531 U.S. 457, 468 (2001))).
To be sure, Congress did manifest its clear intent to
abrogate Eleventh Amendment immunity via 42 U.S.C. § 12132, as the
first sentence of the provision just considered makes perfectly
evident. But, the fact that Congress clearly intended to abrogate
the status-based immunity that the Eleventh Amendment protects
does not in and of itself clearly demonstrate that Congress
- 44 -
intended to abrogate the conduct-based immunity for those engaged
in legislative activities that is at issue here. See Walker v.
Jones, 733 F.2d 923, 931 (D.C. Cir. 1984) ("The 'fundamental
purpose' of [legislative immunity] is to 'free[] the legislator
from executive and judicial oversight that realistically threatens
to control his conduct as a legislator.'" (quoting Gravel v. United
States, 408 U.S. 606, 618 (1972) (second alteration in original)
(emphasis added and omitted))). Indeed, as we have already noted,
the Court has indicated that evidence of an intent to abrogate
Eleventh Amendment immunity is not itself evidence of an intent to
abrogate legislative immunity. Consumers Union, 446 U.S. at 738.
Thus, to the extent that any such abrogation of
legislative immunity was intended, the evidence of that intention
must be located elsewhere in Title II of the ADA. In considering
whether such evidence exists, we do not dispute the plaintiffs'
assertion that the "activities" of the House are encompassed by
the statute's operative provisions, which encompass the
"activities" of the State and "any department, agency, special
purpose district, or other instrumentality of" it. See 42 U.S.C.
§§ 12131, 12132. But, we agree with the Speaker that, even so,
those provisions do not themselves demonstrate that Congress
intended to abrogate legislative immunity by enacting this
statute.
- 45 -
Like the Court in Tenney, "[w]e cannot believe that
Congress -- itself a staunch advocate of legislative freedom --"
would abrogate legislative immunity "by covert inclusion in the
general language" of Title II of the ADA. 341 U.S. at 376. Indeed,
the fact that Congress expressly saw fit to abrogate Eleventh
Amendment immunity as to actions against states brought under it,
but then made no reference to legislative immunity, supports that
conclusion.17 Cf. Smart v. Gillette Co. Long-Term Disability Plan,
70 F.3d 173, 179 (1st Cir. 1995) ("The maxim [expressio unius est
exclusio alterius] instructs that, when [a statute lists specific
items], any item not so listed is typically thought to be excluded.
While this interpretive maxim is not always dispositive, it carries
weight . . . ." (internal citations omitted)).
17 Congress, in enacting Title II, "directed the Department
of Justice . . . to elucidate Title II['s statutory language] with
implementing regulations," Frame v. City of Arlington, 657 F.3d
215, 225 (5th Cir. 2011); see 42 U.S.C. § 12134(a) ("[T]he Attorney
General shall promulgate regulations in an accessible format that
implement [Title II]."). The implementing regulations provide
that Title II of the ADA covers "activities of the legislative and
judicial branches of State and local governments." See
Nondiscrimination on the Basis of Disability in State and Local
Government Services, 56 Fed. Reg. 35,694, 35,696 (July 26, 1991)
(codified at 28 C.F.R. pt. 35).
But, we cannot conclude that Congress's general grant of
rulemaking authority reveals that "the legislature has in fact
faced, and intended to bring into issue, the critical matters
involved in the judicial decision." Will v. Michigan Dep't of
State Police, 491 U.S. at 66 (1989) (quoting United States v. Bass,
404 U.S. 336, 349 (1971)).
- 46 -
That is not to say that there is a "magic words" test
any more than there is such a test for abrogating Eleventh
Amendment immunity. United States v. Texas, 507 U.S. 529, 534
(1993); see Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73-74
(2000); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 56-57
(1996). But, in addition to the fact that the statute here makes
no express reference to legislative immunity, it also makes no
express reference to legislatures or legislators, compare 18
U.S.C. § 201(a)(1), with 42 U.S.C. § 12131, let alone to
legislative acts. See also United States v. Brewster, 408 U.S.
501, 524 (1972) ("Congress, of course, is free to exempt its
Members from the ambit of federal bribery laws, but it has
deliberately allowed [18 U.S.C. § 201] to remain on the books for
over a century."). Nor does Title II of the ADA otherwise indicate
an intent by Congress to deal with the "subtle considerations of
the mixture of legislative or executive duties with the political
facts of life," Bostick v. Rappleyea, 629 F. Supp. 1328, 1333
(N.D.N.Y. 1985) (quoting Gerhart v. Oregon, 40 F. Supp. 597, 600
(D. Ore. 1976)), as Title VII of the Civil Rights Act of 1964 and
the Age Discrimination and Employment Act do. See id.Instead, the operative provisions of Title II of the ADA
merely contain a general reference to the "activities" of the
"public entit[ies]" to which Title II of the ADA applies and then
- 47 -
define those "entit[ies]" in terms that are themselves "general"
with respect to the acts that could trigger the immunity at issue.
42 U.S.C. § 12132. In that respect, Title II of the ADA is not
like the statutes in Kimel or Seminole Tribe when it comes to
manifesting a congressional intent to abrogate a well-established
immunity by expressly naming the very kind of defendant that enjoys
the immunity. Instead, it is more like § 1983, which, as we have
seen, the Court determined in Tenney does not suffice to manifest
a clear congressional intent to abrogate legislative immunity,
because the Court could not accept that Congress would abrogate
legislative immunity by "covert inclusion" in the "general
language" of § 1983, notwithstanding that a state legislator
performing legislative duties would appear to be a "person" who is
acting "under color of" law, insofar as those words are given their
ordinary meaning. See 341 U.S. at 376.18
18 The plaintiffs suggest that the Supreme Court's holding
in Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206,
209-10 (1998), indicates that Title II's reference to "State or
local government[s]," 42 U.S.C. § 12131, provides sufficiently
clear language to effect an abrogation of legislative immunity.
In Yeskey, the Court considered whether Title II of the ADA's
standards applied to state correctional facilities, and the Court
concluded that such facilities fall "squarely within the statutory
definition of 'public entity'." Yeskey, 524 U.S. at 210. But,
neither party disputes that Title II of the ADA applies to the
"programs and activities" of the House, as neither party disputes
that it is a "public entity." We are concerned with a question
distinct from the one presented in Yeskey, as the question here
concerns not the meaning of "public entity" but whether Title II
- 48 -
B.
The plaintiffs also make the closely related contention
that their claims under § 504 of the RHA are not subject to the
Speaker's assertion of legislative immunity, because any
legislative immunity that the Speaker might enjoy against their
RHA claims has been waived. That is so, they contend, given that
the New Hampshire General Court "affirmatively sought and accepted
federal funding to pay for legislative session expenses" pursuant
to the Coronavirus Aid, Relief, and Economic Security (CARES) Act,
Pub. L. No. 116-136, 134 Stat. 281 (2020). Here, they rely on
§ 504 of the RHA, which provides that "[n]o otherwise qualified
individual with a disability . . . shall, solely by reason of her
or his disability, . . . be subjected to discrimination under any
program or activity receiving Federal financial
assistance . . . ." 29 U.S.C. § 794(a); see also id.§ 794(b)(1)(A)-(B). For, as they contend, the New Hampshire
General Court's acceptance of federal funding effected a waiver of
the Speaker's legislative immunity in light of 42 U.S.C. § 2000d-
7(a)(1).
of the ADA effected an abrogation of the immunity traditionally
enjoyed by certain acts taken in the course of the activities of
a "public entity." And, as to that question, we conclude that
Tenney provides the controlling interpretive rule.
- 49 -
But, the plaintiffs do not suggest that a statute may be
any less clear in encompassing legislative immunity when it
provides a means for that immunity's waiver than it must be when
it provides for its abrogation. Nor do we see how they could so
contend. See Atascadero, 473 U.S. at 241. Thus, because the terms
of 42 U.S.C. § 2000d-7 are not materially different from the terms
of 42 U.S.C. § 12202 -- in that they, too, do not speak to the
immunity at issue with the requisite degree of clarity, concerned
as they are only with a distinct immunity, Eleventh Amendment
immunity -- the plaintiffs' waiver-based argument for showing that
the District Court erred in denying their motion for preliminary
injunctive relief fails.
VI.
We come, then, finally, to the plaintiffs' case-specific
reasons for concluding that legislative immunity poses no bar to
their request for preliminary injunctive relief. But, once again,
we are not persuaded.
A.
We start with the plaintiffs' contention that
legislative immunity is no obstacle to their obtaining an emergency
injunction because their federal law claims do not seek to hold
the Speaker liable for any "legislative act." The plaintiffs argue
in this regard that their claims target only the Speaker's failure
- 50 -
to permit them to engage remotely in official legislative
proceedings -- including his failure to permit them to vote on
bills in that manner.
But, "voting by Members" itself constitutes a
legislative act, see Gravel, 408 U.S. at 624, and the plaintiffs
request an accommodation with respect to the House rules that
purport to bar the remote participation that they seek. Thus, we
fail to see on this record a material difference between their
requested injunctive relief and a request for relief that would
seek to dictate the setting of the rules themselves. See Consumers
Union, 446 U.S. at 726, 728-29 (explaining that legislative
immunity applied to a suit against the Chief Justice of Virginia
in his official capacity that sought prospective injunctive relief
for his "failure to amend" a state bar rule that was alleged to
violate the First Amendment); see also Larsen v. Senate of
Commonwealth of Pa., 152 F.3d 240, 253 (3d Cir. 1998) (considering
"whether [the] request for prospective relief . . . could be
accorded consistent with the policies underlying legislative
immunity"). That being so, the plaintiffs fail to persuade us
that there is no basis for applying legislative immunity because
there is no legislative "act presented for examination." Walker,
733 F.2d at 929.
- 51 -
We do recognize that legislative immunity does not
attach to the activities that are merely "casually or incidentally
related to legislative affairs." Brewster, 408 U.S. at 528. But,
determinations about the procedures that govern the means by which
House members may cast votes are not easily so characterized, and
the injunctive relief that the plaintiffs seek is, on their own
account, relief that must run against a legislator directly to be
effective. Nor do the plaintiffs identify any authority that would
support a "casual" or "incidental" characterization, id., even
though there is seemingly contrary recent authority from the D.C.
Circuit. See McCarthy v. Pelosi, 5 F.4th 34, 39 (D.C. Cir. 2021).19
Thus, the plaintiffs fail to make the case that, for this reason,
the District Court erred in relying on the Speaker's legislative
immunity to reject their request for emergency relief.
19 The plaintiffs do argue at some length that, to determine
whether the accommodation that they seek is reasonable would not
require any inquiry into legislative motive or even any questioning
of any legislative officer and that, for this reason, the assertion
of legislative immunity is no bar to their claims. But, even if
we were to assume that the plaintiffs accurately predict how the
litigation would unfold, that prediction does not suffice to permit
the plaintiffs to show that the District Court erred in denying
their request for injunctive relief based on legislative immunity,
given that the immunity protects the one who enjoys it from the
suit itself. See Romero-Barcelo v. Hernandez-Agosto, 75 F.3d 23,
28 (1st Cir. 1996).
- 52 -
B.
The plaintiffs separately contend that, because comity
is the basis for legislative immunity, the Speaker may assert that
immunity here only to the extent that New Hampshire law would
permit him to do so. The plaintiffs then point us to decisions of
the New Hampshire Supreme Court that they contend show that the
immunity enjoyed by the Speaker is qualified and applies only if
the legislative acts in question "do not infringe upon the
fundamental rights of the people." See, e.g., Burt v. Speaker of
the House of Representatives, 243 A.3d 609, 610 (N.H. 2020).
But, the scope of the legislative immunity that we must
recognize in construing federal statutes is not dependent on the
immunity that a state itself recognizes under its own law. See
Lake Country Ests., 440 U.S. at 404 ("[T]he absolute immunity for
state legislators recognized in Tenney reflected the Court's
interpretation of federal law; the decision did not depend on the
presence of a speech or debate clause in the constitution of any
State, or on any particular set of state rules or procedures
available to discipline erring legislators."). For this reason,
it is of no relevance here that the Speaker might not be able to
assert such a defense against claims brought under New Hampshire
law.
- 53 -
C.
There remains to address the plaintiffs' final argument
for rejecting the District Court's legislative-immunity-based
denial of their motion for a preliminary injunction, though it is
one that they barely developed in the District Court or before the
panel. This argument rests on the potential limit on the immunity
discussed in Kilbourn v. Thompson, 103 U.S. 168 (1880).
In that case, the Court explained that "there
may . . . be things done, in the one House or of the other, of an
extraordinary character, for which the members who take part in
the act may be held legally responsible." Id. at 204. In line
with Kilbourn, we have recognized that that "there may be some
conduct, even within the legislative sphere, that is so flagrantly
violative of fundamental constitutional protections that
traditional notions of legislative immunity would not deter
judicial intervention." Nat'l Ass'n of Soc. Workers v. Harwood,
69 F.3d 622, 634 (1st Cir. 1995).
Kilbourn made quite clear that standard for an "act" to
be deemed of "extraordinary character" is a most demanding one.
In fact, in sketching out the high bar a legislative act would
need to clear before being deemed an act of "extraordinary
character," such that a legislator could be sued for it, the Court
in Kilbourn considered, as a possibility, that "members of
- 54 -
[Congress could go] so far to forget their high functions and the
noble instrument under which they act as to imitate the Long
Parliament in the execution of the Chief Magistrate of the nation,
or to follow the example of the French Assembly in assuming the
function of a court for capital punishment." 103 U.S. at 204-05.
In the event legislators engaged in conduct so clearly exceeding
the powers delegated to them, the Court -- quite understandably -
- was "not prepared to say that such an utter perversion of their
powers to a criminal purpose would be screened from punishment by
the constitutional provision for freedom of debate." Id.
The fact that the Speaker's conduct implicates as
important a statutory right as the ones protected by Title II of
the ADA and § 504 of the RHA thus does not, in and of itself,
provide us with a sufficient basis under the Kilbourn standard for
concluding that the District Court erred in determining that the
plaintiffs were not entitled to their requested emergency relief.
Indeed, the fact that some of their claims assert a violation of
the Fourteenth Amendment does not in and of itself suffice to do
so. Cf. Bogan, 523 U.S. at 46-47, 55 (finding that legislative
immunity barred a First Amendment retaliation claim, where the
plaintiff alleged that she had been fired as a result of her filing
a complaint against an employee working under her supervision);
Tenney, 341 U.S. at 370-71, 376-79 (determining that legislative
- 55 -
immunity barred the plaintiffs' First Amendment claim, premised on
the state legislature's request that state officials prosecute him
for his failure to testify at a committee hearing). See generally
Eastland v. U.S. Servicemen's Fund, 421 U.S. 491, 509-12 (1975)
(holding that the Speech or Debate Clause barred the plaintiffs'
claims, premised on the plaintiffs' allegations that a Senate
subcommittee subpoena, if complied with, would constitute an
invasion of the plaintiffs' privacy and violate their First
Amendment rights).
Moreover, the plaintiffs take aim at conduct by the
Speaker that involves a decision to follow -- rather than depart
from -- existing House rules that were overwhelmingly passed and
that were predicated on a general handbook for setting such rules
for all legislatures generally. The challenged conduct by the
Speaker also does not, on its face, target any class of legislators
either expressly or through clever artifice, in part because it
involves adhering to existing rules rather than making new ones.
Cf. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508
U.S. 520 (1993). The remedy sought for that decision to stick to
those existing rules, we also note, is an injunction that would
run directly against a legislator and not merely a legislative
employee.
- 56 -
We note as well that this case is distinct from Powell v.
McCormack, 395 U.S. 486 (1969). There, the Court confronted the
refusal of the United States House of Representatives to permit
the plaintiff "to take his seat," see id. at 489, 506-08, despite
his having been duly elected as a member, and the Court permitted
relief that would run against an employee of the House and not a
legislator. See id. at 504-06.20
That said, we recognize, as the Court has recognized in
its decisions preserving legislative immunity, that immunities are
susceptible to abuse. It takes no great imagination to conjure
hypotheticals that might warrant the "extraordinary character"
descriptor if carried out. For that reason, the assessment of
when a given act that, though seemingly legislative in nature, is
nonetheless "of an extraordinary character," Kilbourn, 103 U.S. at
204, that makes it unworthy of the immunity's protection must be
sensitive to context.
20 We note that Bond v. Floyd, 385 U.S. 116 (1966) similarly
involved a challenge to actions of the Georgia House of
Representatives to "exclude" a "duly elected representative" from
"membership" in that legislative body, see id. at 120, and that it
did not address legislative immunity. See also Rash-Aldridge v.
Ramirez, 96 F.3d 117, 119 (5th Cir. 1996) (finding legislative
immunity applicable, despite the holding in Bond, because the
relevant legislature "did not try to remove [the plaintiff] from
her seat . . . nor [did it] take away any privileges of that office
because of what she said or did").
- 57 -
Here, the challenge concerns a denial of a request for
extraordinary relief against a legislator that was made below with
no development of how the Speaker's actions are comparable to any
of the hypotheticals concerning never-undertaken legislative acts
that the dissent describes. That only reinforces the reason to
ensure that our focus is on the character of the legislative act
being challenged and not those that have never been made based on
records that do not exist. We do not decide, therefore, more than
that, given the facts and circumstances of this case, there is no
basis for concluding that the District Court erred in making the
only ruling that is before us in this appeal: denying the request
for emergency relief against the Speaker due to the Speaker's
decision not to make the kind of accommodation with respect to
House Rule 65 that the plaintiffs seek.
We do emphasize, though, one final point that takes us
back to the reasons that the Court gave in Tenney for concluding
that legislative immunity had been incorporated into American law
and that federal statutes are appropriately construed with that
understanding in place. The immunity serves an important
democratic end notwithstanding that it insulates elected
representatives from legal challenges for certain of their
official actions. For that reason, we must be cognizant -- as the
Court has instructed us to be -- of the risks associated with
- 58 -
failing to respect the traditional scope of legislative immunity,
bounded though it is, out of respect for legislative freedom and
thus democratic self-government. See Eastland, 421 U.S. at 501-
03.
Too narrow a construction of that immunity -- and one
not sufficiently respectful of the high bar that Kilbourn plainly
intended to set for stripping seemingly protected acts from the
cover the immunity confers -- invites abuses of its own. Those
abuses may involve not only federal judges improperly intruding
into internal state legislative affairs but also warring sides in
partisan state legislators' battles improperly enlisting federal
judges to participate in them. See E.E.O.C. v. Wash. Suburban
Sanitary Comm'n, 631 F.3d 174, 181 (4th Cir. 2011) ("As members of
the most representative branch, legislators bear significant
responsibility for many of our toughest decisions . . . .
[Legislative immunity] shields them from political wars of
attrition in which their opponents try to defeat them through
litigation rather than at the ballot box.").
We do not suggest that any such effort by the plaintiffs
is at play here, and we appreciate the seriousness of the health
threat that this virus poses. We do emphasize, though, that the
immunity exists not merely to protect against the fact of such
enlistment in a given case but also to protect against the
- 59 -
possibility of that enlistment in a future case.21 That Congress
would be better attuned than the judiciary to the possibility that
such abuses might occur in the absence of the immunity seems clear
enough. That recognition provides yet another reason -- and one
that Tenney itself may be understood to have recognized in adopting
the clear statement rule that it deployed -- for us to be wary of
construing Kilbourn in a manner that would deem even such a
"quintessentially legislative act," see Pelosi, 5 F.4th at 39, as
the decision by the Speaker of the House to follow these rules for
the manner of members' participation in floor proceedings
(including with respect to the casting of votes) to be beyond the
protection of the immunity that has been historically afforded to
such an act.
VII.
For the reasons given, the District Court's denial of
the plaintiffs' motion for a preliminary injunction is affirmed.
-DISSENTING OPINION FOLLOWS-
21In that regard, one can also imagine hypothetical suits
challenging internal legislative rules regarding core legislative
acts brought solely to advantage one side in a partisan battle
over a high-stakes legislative procedure (such as one that seeks
to augment the requirements that must be met to carry out a
filibuster) by, if nothing else, adding costs to the legislative
body's adoption of that rule.
- 60 -
THOMPSON, Circuit Judge, with whom KAYATTA, Circuit
Judge, joins, dissenting. As the COVID-19 pandemic raged to new
heights in the winter of 2021, the New Hampshire House of
Representatives conducted its sessions in person. Some members of
the House have significant personal health issues, which put them
at an increased risk of serious illness -- or even death -- if
they were to contract COVID-19. Facing the unenviable choice
between public duty and death, they sued the Speaker of the House,
in his official capacity, for disability discrimination. But the
Speaker told the court it would need to bounce the suit altogether
without further ado: He says he is entitled to absolute
legislative immunity, which shields judicial review of a House
rule effectively ousting disabled members from that august
assembly and (here's the kicker) leaving their constituents
unrepresented.
My colleagues agree with the Speaker's sweeping claim of
absolute legislative immunity. I cannot abide by the Court's
decision to turn a blind eye to the effective disenfranchisement
of thousands of New Hampshire residents simply because their
representatives are disabled. But it's not just that. My
colleagues also today lay the foundation to immunize any
legislative rule that "does not, on its face, target any class of
legislators" -- a standard so broad as to immunize race- and
- 61 -
religion-based discrimination, too (examples to follow shortly).
The Court's rule opens the floodgates to potential abuse and spells
a recipe for disaster in the future.
I respectfully dissent.
I.
A.
In broad strokes, the common-law doctrine of legislative
immunity shields state legislators from liability for their
legislative acts. See Supreme Court of Va. v. Consumers Union of
the U.S., Inc., 446 U.S. 719, 732 (1980). As we've said before,
the aim of legislative immunity is "to shelter individual
legislators from the distractions and hindrance of civil
litigation and [to] 'immunize[] [them] from suits for either
prospective relief or damages.'" Nat'l Ass'n of Social Workers v.
Harwood, 69 F.3d 622, 630 (1st Cir. 1995) (quoting Consumers Union,
446 U.S. at 731). The immunity is "essentially coterminous" with
the Speech or Debate Clause protecting federal legislators. Id.
at 629; see Consumers Union, 446 U.S. at 732 (noting state
legislators' immunity "is similar in origin and rationale to that
accorded Congressmen under the Speech or Debate Clause").
1.
Legislative immunity as well as its federal counterpart
in the Speech or Debate Clause finds its roots in pre-colonial
- 62 -
common-law principles. See Tenney v. Brandhove, 341 U.S. 367, 372
(1951). The privilege of parliament "was principally established,
in order to protect [its] members not only from being molested by
their fellow-subjects, but also more especially from being
oppressed by the power of the crown." 1 William Blackstone,
Commentaries 159 (1765). It arose in Sixteenth and Seventeenth
Century England out of a power struggle between the House of
Commons (the lower house of English Parliament) and the King. Id.;
see Robert J. Reinstein & Harvey A. Silverglate, Legislative
Privilege and the Separation of Powers, 86 Harv. L. Rev. 1113,
1123–35 (1973). During that time, the House of Commons sought an
increasingly significant role in legislation. Reinstein &
Silverglate, supra, at 1124, 1126–27; J.E. Neale, The Commons'
Privilege of Free Speech in Parliament, in Tudor Studies 257, 276
(R. Seton-Watson ed. 1924). Yet Parliamentarians were concerned
with receiving the wrath of the crown for opposing the crown's
measures, see Neale, supra, at 273–74 -- which, to that point, was
not necessarily an unfounded fear, see Reinstein & Silverglate,
supra, at 1126–28. Thus, with the English Bill of Rights of 1689,
it was codified: "That the freedom of speech, and debates or
proceedings in parliament, ought not to be impeached or questioned
in any court or place out of parliament." 1 W. & M., 2d sess., c.
2 (1689).
- 63 -
When our Founders made a pre-computer-age copy and paste
from the English Bill of Rights to our Constitution in 1789, they
had little to say about the Speech or Debate Clause. See Reinstein
& Silverglate, supra, at 1136 & nn. 121–24. As some scholars
suggest, that's probably so because many Founders took it as a
necessary condition of a representative government. Id. For
example, Madison saw "the right of self-protection in the discharge
of the necessary duties as inherent in legislative bodies." Letter
from James Madison to Philip Doddridge (June 6, 1832), in 4 Letters
and Other Writings of James Madison 221 (1865). So too did Justice
Story. See 2 Joseph Story, Commentaries on the Constitution § 856
(1833) ("It seems absolutely indispensable for the just exercise
of the legislative power in every nation, purporting to possess a
free constitution of government; and it cannot be surrendered
without endangering the public liberties, as well as the private
independence of the members.").
From the limited intellections from the founding era, we
learn that the Speech or Debate Clause was intended to be for the
benefit of the people -- not the representatives. As the
Massachusetts Constitution of 1780 noted,22 legislators' privilege
22 None other than Samuel and John Adams took the lead in
drafting the Commonwealth's constitution. See Nikolas Bowie, The
Constitutional Right of Self-Government, 130 Yale L.J. 1652, 1706–
07 (2021).
- 64 -
of speech or debate was "so essential to the rights of the people."
Mass. Const., pt. 1, art. XXI. According to another founder:
In order to enable and encourage a
representative of the publick to discharge his
publick trust with firmness and success, it is
indispensably necessary, that he should enjoy
the fullest liberty of speech, and that he
should be protected from the resentment of
every one, however powerful, to whom the
exercise of that liberty may occasion offence.
James Wilson, Legislative Department, Lectures on Law (1791),
reprinted in 2 The Founders' Constitution 331 (Philip B. Kurland
& Ralph Lerner eds. 2000).
In discussing the related privilege from arrest,23 one
of our earliest Supreme Court justices explained it necessary
because a legislator "has superiour duties to perform in another
place. When a representative is withdrawn from his seat by a
summons, the people, whom he represents, lose their voice in debate
and vote, as they do in his voluntary absence." 2 Story,
Commentaries § 857. As Justice Story put it, "[t]he enormous
disparity of th[at] evil admits of no comparison." Id.
Legislative privilege was also seen as necessary to the
balance of the separation of powers. According to Jefferson and
Article I, section 6 also provides that Representatives and
23
Senators "shall in all Cases, except Treason, Felony and Breach of
the Peace, be privileged from Arrest during their Attendance at
the Session of their respective Houses, and in going to and
returning from the same." U.S. Const. art. I, § 6.
- 65 -
Madison, should the privilege of legislators be too weak, the
result would be to "give to the Judiciary, and through them to the
Executive, a complete preponderance over the legislature rendering
ineffectual that wise and cautious distribution of powers made by
the constitution between the three branches." Thomas Jefferson &
James Madison, Protest to the Virginia House of Delegates (1797),
reprinted in 2 The Founders' Constitution 336. But, even insofar
as it was necessary for the separation of powers, the true driving
goal was the representation of the public: Too much power of the
coordinate branches over legislators could allow the branches "to
interpose in the legislative department between the constituent
and his representative, to control them in the exercise of their
functions or duties towards each other," thus "tak[ing] away the
substance of representation." Id.
Early American judicial interpretations took a similar
tack. The courts thought that legislators "legally and inherently
possessed of all such privileges, as are necessary to enable them,
with freedom and safety, to execute the great trust reposed in
them by the body of the people who elected them." Bolton v.
Martin, 1 U.S. (1 Dall.) 296, 303 (C.P. Phila. 1788). The
Massachusetts Supreme Judicial Court similarly thought the
legislative privileges were "secured, not with the intention of
protecting the members against prosecutions for their own benefit,
- 66 -
but to support the rights of the people, by enabling their
representatives to execute the functions of their office without
fear of prosecutions, civil or criminal." Coffin v. Coffin, 4
Mass. 1, 27 (1808). Thus, the courts thought, legislators "ought
not to be diverted from the public business by law suits . . . .
on account of [their] public business." Bolton, 1 U.S. (1 Dall.)
at 305.
All the same, the Founders were well aware that the
privilege was subject to abuse. Letter from Madison to Doddridge,
supra, at 221. The Founders "well knew how oppressively the power
of undefined privileges had been exercised in Great Britain, and
were determined no such authority should ever be exercised here."
Charles Pinckney, Breach of Privilege, Senate (Mar. 5, 1800),
reprinted in 2 The Founders' Constitution 337. Thus, one Founder
suggested that the Constitution "never was intended to give
Congress, or either branch, any but specified, and those very
limited, privileges indeed." Id. Indeed, early courts
acknowledged that the people were "careful . . . in providing that
the privileges, which they, for their own benefit, had secured to
their representatives, should not unreasonably prejudice the
rights of private citizens." Coffin, 4 Mass. at 29.
- 67 -
2.
Modern courts have placed their own gloss on these
historical interpretations, though they echo the same sentiments.
The Supreme Court has noted that the immunity's "fundamental
purpose [is] freeing the legislator from executive and judicial
oversight that realistically threatens to control his conduct as
a legislator." Gravel v. United States, 408 U.S. 606, 618 (1972).
It "is one manifestation of the 'practical security' for ensuring
the independence of the legislature." United States v. Johnson,
383 U.S. 169, 179 (1965). So, legislative immunity "insures that
legislators are free to represent the interests of their
constituents without fear that they will later be called to task
in the courts for that representation." Powell v. McCormack, 395
U.S. 486, 503 (1969).
Modern courts have also recognized that legislative
immunity is not a personal privilege. That is, it isn't directed
to the benefit of the legislators themselves. See Gravel, 408
U.S. at 617 ("[T]he 'privilege is not a badge or emolument of
exalted office, but an expression of a policy designed to aid in
the effective functioning of government.'"). Rather, it is
understood "to support the rights of the people, by enabling their
representatives to execute the functions of their office without
fear of prosecutions, civil or criminal." Kilbourn v. Thompson,
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103 U.S. 168, 203 (1880) (quoting Coffin, 4 Mass. at 27). Thus,
"[t]he purpose of the protection . . . is not to forestall judicial
review of legislative action but to insure that legislators are
not distracted from or hindered in the performance of their
legislative tasks by being called into court to defend their
actions." Powell, 395 U.S. at 505.
3.
Importantly, though, these general principles aren't
without exception. The Supreme Court has repeatedly footnoted the
possibility that "there may . . . be things done, in the one House
or the other, of an extraordinary character, for which the members
who take part in the act may be held legally responsible."
Kilbourn, 103 U.S. at 204; see Gravel, 408 U.S. at 619; Tenney,
341 U.S. at 378–79. Although the Court has never addressed a case
in which it has held the extraordinary-character exception to
apply, it has clarified that its case law reflects "a decidedly
jaundiced view towards extending the Clause so as to privilege
illegal or unconstitutional conduct beyond that essential to
foreclose executive control of legislative speech or debate and
associated matters such as voting and committee reports and
proceedings." Gravel, 408 U.S. at 620. That is, the court reads
legislative immunity (and the "essentially coterminous" privilege
of the Speech or Debate Clause applicable to Congress) "broadly to
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effectuate its purposes," Johnson, 383 U.S. at 180, but "not [to]
extend beyond what is necessary to preserve the integrity of the
legislative process," United States v. Brewster, 408 U.S. 501, 517
(1972).
As examples of potentially extraordinary legislative
acts, the Supreme Court has hypothesized a legislature that
"execut[es] . . . the Chief Magistrate of the nation, or . . .
assum[es] the function of a court for capital punishment."
Kilbourn, 103 U.S. at 204–05. We have similarly pondered a
legislature that "votes to allow access to its chambers to members
of only one race or to adherents of only one religion," suggesting
these might veer into the orbit of the extraordinary-character
exception. Harwood, 69 F.3d at 634. These circumstances, we and
the Court have said, could be so far afield from the purpose of
legislative immunity that the otherwise legislative acts might not
engender absolute immunity.
B.
When we think about this case against the backdrop of
the historic origins of legislative immunity, it becomes clear
that applying legislative immunity here fits neatly into that
category of legislative actions of an extraordinary character.
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1.
Foreclosing judicial review based on the facts of this
case conflicts directly with the purpose of legislative immunity.
If legislative immunity is meant to "enable and encourage a
representative of the publick to discharge his publick trust with
firmness and success," Wilson, supra, at 331, then it seems
contradictory that the immunity would protect some legislators'
decision to effectively preclude other legislators from
discharging their duties. Indeed, one of our earliest Supreme
Court justices recognized that the related immunity of legislators
from arrest was undergirded by the worry that "[w]hen a
representative is withdrawn from his seat by a summons, the people,
whom he represents, lose their voice in debate and vote, as they
do in his voluntary absence." 2 Story, Commentaries § 857. Yet
the challenged action here, too, leaves some people without their
voice in the representative government.
If legislative immunity is truly a protection offered by
the people for their own benefit, see Mass. Const., pt. 1, art.
XXI (noting the privilege was "so essential to the rights of the
people"); Coffin, 4 Mass. at 27 (noting the privileges were
"secured, not with the intention of protecting the members against
prosecutions for their own benefit, but to support the rights of
the people"); Jefferson & Madison, supra, at 336 (reasoning that
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the purpose of the privileges is to protect the relationship
"between the constituent and his representative"), then what
benefit would the people gain in immunizing their own
disenfranchisement? Indeed, the Founding generation recognized
that the people were "careful . . . in providing that the
privileges, which they, for their own benefit, had secured to their
representatives, should not unreasonably prejudice the rights of
private citizens." Coffin, 4 Mass. at 29. I cannot imagine why
the effective ouster and disenfranchisement of some should be
immunized in favor of the representative interests of others.
Indeed, as Justice Story long ago recognized, the removal of a
representative from her official duties in the face of an arrest,
process, or subpoena, and the resulting loss of a voice for those
she represents, is an "evil [that] admits of no comparison." 2
Story, Commentaries § 857.
2.
Nor has the Supreme Court suggested that legislative
immunity would attach in circumstances like those in this case.
Indeed, the Court has never addressed any case in which a
legislature has sought to exclude legislators based on federal
statutorily protected characteristics.
The closest the Court has come to the circumstances we
face here is Powell, where the Court faced a challenge to a U.S.
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House of Representatives resolution excluding a duly elected
member from being seated. 395 U.S. at 492–93. The resolution --
which excluded, not expelled the Congressman, see U.S. Const.,
art. I, § 5; Powell, 395 U.S. at 506–07 -- punished the Congressman
for his actions in a civil suit, his wrongful use of House funds
for personal gain, and lies on House expenditure reports, Powell,
395 U.S. at 493.24 It was enacted by a more than two-thirds
majority of the House. Id. at 500. And it was enforced by the
House Clerk, the Sergeant at Arms, and the Doorkeeper, who
respectively refused to perform service for the Congressman, pay
him his salary, and threatened to deny him admission to the House
chamber. Id. at 500–01.
The Court concluded that the Speech or Debate Clause
barred the suit against the legislative defendants, but it did not
bar suit against the Clerk, Sergeant at Arms, or the Doorkeeper.
Id. at 506. The Court reasoned that, by allowing the suit to
proceed against the House employees, it left the House members
"fully protected" by the Speech or Debate Clause, since they were
"relieved of the burden of defending themselves." Id. at 505.
24I also note that Powell involved a resolution that excluded
a member, in essence, for cause. See id. at 492. Here, though,
the legislative act effectively ousting the representatives has
only one cause: their statutorily protected disabilities. Which
is a far cry from exclusion of a member for nefarious activities
that scathed the public trust in the office.
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Yet the Court made clear what it did not decide: "whether under
the Speech or Debate Clause petitioners would be entitled to
maintain this action solely against members of Congress where no
agents participated in the challenged action and no other remedy
was available." Id. at 506 n.26.
That reservation is again revealing of the disconnect
between the application of legislative immunity here and its
purpose. The Powell Court did not explain why absolute legislative
immunity might bend to a suit against legislators where no
employees were involved, see id., but I think the reasoning seems
quite clear. The Court must have identified something truly
peculiar about the facts in Powell. And indeed the allegations
were peculiar. They were not of a private party or the executive
trying to distract legislators from their duties or punish them
for their votes. Rather, it was a suit by a legislator against
his legislative peers who had excluded him from carrying out his
own legislative responsibilities towards his constituents -- just
as it is here.
My colleagues also note that Bond v. Floyd, 385 U.S. 116(1966), addressed a similar challenge to a state legislature's
exclusion of a member, yet the Court (for some unknown reason, my
colleagues suggest) did not address legislative immunity. But the
Court didn't reach any immunity because the State conceded "that
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it should [not] be completely free of judicial review whenever it
disqualifies an elected Representative." Id. at 130. Rather, the
State "admit[ted] that, if a 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." Id. And
rightfully so -- the consequences of not conceding at least some
level of judicial review to the exclusion of a duly elected
representative are staggering, as the Powell Court implicitly
recognized. See 395 U.S. at 506 n.26. It would permit legislative
immunity, designed to safeguard representative democracy, to be
weaponized against the representation it is meant to support.25
3.
Even though the grant of legislative immunity here
hardly squares up with the immunity's purpose, the majority still
25 My colleagues cite to Rash-Aldridge v. Ramirez, 96 F.3d
117, 119 (5th Cir. 1996), to argue that legislative immunity can
apply to an ouster of an elected official notwithstanding Bond.
Yet Rash-Aldridge involved the removal of an elected official from
a seat on a separate planning board to which she was appointed by
the elected city council (of which she was also a member). Id. at
118-19. It did not involve -- as in Bond and here -- an attempt
to oust the official from her elected position. Id. at 119 ("Her
capacity as an elected official was not compromised because the
council did not try to remove her from her seat on the council nor
take away any privileges of that office because of what she said
or did."). The court instead likened it to the choice to fire a
public employee. Id. at 119-20.
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thinks this is not a sufficiently "extraordinary" circumstance for
the immunity to reach its limit. According to my colleagues,
discrimination on the basis of a disability -- in contravention of
a landmark federal statute -- is inconsequential.
Congress, though, would certainly disagree. Congress
enacted the ADA to "provide a clear and comprehensive national
mandate for the elimination of discrimination against individuals
with disabilities." 42 U.S.C. § 12101(b)(1). (Full stop.) It
comes 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," id. § 12101(a)(1), and that those with
disabilities, "as a group, occupy an inferior status in our
society," id. § 12101(a)(6). Specifically, Congress found that
"individuals with disabilities continually encounter various forms
of discrimination, including . . . the discriminatory effects of
. . . overprotective rules and policies, failure to make
modifications to existing facilities and practices, exclusionary
qualification standards and criteria, segregation, and relegation
to lesser services, programs, activities, benefits, jobs, or other
opportunities." Id. § 12101(a)(5). To remedy that wrong, Title
II of the ADA provides that "no qualified individual with a
disability shall, by reason of such disability, be excluded from
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participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to
discrimination by any such entity." Id. § 12132.
That still isn't enough for my colleagues, though. They
say that legislative rules subverting the ADA and discriminating
against the disabled are somehow not "extraordinary" enough. Even
though Congress explicitly found that people with disabilities
were systematically discriminated against and enacted a law meant
to put those individuals on equal footing. Even though Congress
thinks that discrimination is a "serious and pervasive social
problem." Id. § 12101(a)(2). And even though Congress passed the
ADA with a seeming intent to reject the Supreme Court's refusal to
consider disabilities a suspect classification akin to race. See
Anita Silvers & Michael Ashley Stein, Disability, Equal
Protection, and the Supreme Court: Standing at the Crossroads of
Progressive and Retrogressive Logic in Constitutional
Classification, 35 U. Mich. J.L. Reform 81, 111–15 (2002); see
also 42 U.S.C. § 12101(a)(7) (2007) (describing the disabled as a
"discrete and insular minority").26
26Though the 2008 amendments to the ADA removed the "discrete
and insular" finding, the House Report reflects the amendment was
not to discount the prior finding, but to correct misimpressions
that the ADA was meant to have narrow applicability. See H.R.
Rep. No. 110-730, pt. 2, at 8 (2008) (noting that Congress still
believes that "individuals with disabilities 'have been faced with
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Moreover, even taking the majority at its conclusion on
this piece (even though it's flat-out wrong), there's one whopping
interest the majority entirely ignores here: The interests of
representative government. And as I've already detailed, we and
the Supreme Court have repeatedly expressed a skeptical eye toward
applying legislative immunity to legislative actions that
effectively remove certain constituents' representative power in
the government. See Powell, 395 U.S. at 506 n.26; Harwood, 69
F.3d at 634.
4.
Given those weighty interests at stake, one would expect
a significant explanation for the extraordinary decision to
exclude some duly elected representatives from their
representative duties. Unfortunately, disappointment awaits: The
Speaker does not submit particularly compelling countervailing
reasons that representative government is furthered by the rule
here. Rather, even a bare review of the Speaker's proffered
reasons only further reveals the extraordinary nature of the rule's
effect here.
restrictions and limitations, subjected to a history of purposeful
unequal treatment, and relegated to a position of political
powerlessness in our society, based on characteristics that are
beyond the control of such individuals'").
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At first, there were concerns in New Hampshire that a
remotely held session of the legislature could face constitutional
complications. But, in November 2020, the New Hampshire Supreme
Court made clear that no such issues existed. Op. of the Justs.,
247 A.3d 831, 840 (N.H. 2020).
So, since then, the House has claimed logistical issues
in having remote sessions. According to the Clerk of the House,
he lacks enough staff with the technological savvy or bandwidth to
manage "monitor[ing] remote technology" to "record votes during
the session." The Clerk also claims there are "substantial
concerns that recording the votes remotely would be problematic,"
since the clicker used to record votes cannot be used offsite. He
speculated about the potential that votes are not appropriately
counted, or that some technological issue might result in improper
vote counting. Yet, in the in-person sessions the House held back
in 2020, the House had technical issues with voting, including
some that resulted in multiple instances of vote-count errors.
As another reason against permitting remote
participation, the Speaker apparently still claims (nearly
eighteen months into the pandemic) that he has yet to figure out
the technical logistics of remote participation. But he has not
detailed any efforts made toward doing so. And, in February 2021
(nearly three months after constitutional concerns were answered),
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the Clerk of the House testified that he hadn't seen any
communications detailing attempts to work with a vendor to get
remote participation up and running. What is clear is that the
Speaker's IT woes could be cured with an appropriate contract.
The Speaker also claims this rule is integral to ensuring
that the body conducts its business "in the public view, so
citizens may observe the proceedings, including debate, amendment,
and voting, and the environment in which legislators operate."
Remote participation, the Speaker contends, "diminishes the
public's ability to observe these individuals to ensure, for
example, that their votes are not being inappropriately influenced
by persons off-screen." Yet House committee hearings have included
remote participation, even though the same concerns would
seemingly apply there.
These criticisms are not meant to question that there
may be legitimate reasons not to permit elective remote
participation. They merely highlight the fact that there is no
grave legislative concern pushing the opposite scale here for those
representatives who claim to be forced, due to their disabilities,
to choose between fulfilling their duties and a significant risk
of death. And, it goes to show the truly extraordinary character
of the legislative action here: effective ouster of some duly
elected representatives based on selective reasoning.
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II.
Still, the Court's brush-off of disability-based
discrimination and resulting disenfranchisement is not the only
flaw in the analysis. Perhaps even more troubling than my
colleagues' ultimate conclusion is how they get there. I see at
least four infirmities, which I'll explain in turn.
A.
The first three fall into a general bucket of ways in
which the majority tries to discolor the arguments made by the
plaintiffs.
First, the majority hamstrings the extraordinary-
character argument by insinuating it is waived, but just without
saying so. Starting the discussion by noting that this argument
was supposedly "barely developed in the District Court or before
the panel," ante at 54, my colleagues lead off an attempt to make
short shrift of this significant argument. Yet, they avoid saying
that the plaintiffs in fact waived the argument. And rightfully
so given that the plaintiffs took up three pages of their opening
brief to the panel on this issue, and because we've entertained in
the past arguments less developed than the one here.
Second, the majority also tries to bruise the argument
by emphasizing that this case arises from a request for "emergency
relief." Yet it points to no authority on why the extraordinary
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relief of a preliminary injunction should be relevant to the purely
legal question of whether the plaintiffs are likely to succeed (as
the majority acknowledges, see ante at 17-18). Indeed, the
equitable-balancing parts of the preliminary-injunction analysis
are not at issue here. And, in any event, it was the Speaker who
raised legislative immunity as a full bar not just to the
preliminary injunction, but, effectively in turn, the action as a
whole.
And third, in an effort to throw the reader off the trail
of the extraordinary-character exception, the majority picks and
chooses the relevant examples of extraordinary-character
hypotheticals laid out by courts. It focuses in on the most
egregious examples from Kilbourn: a legislature that "exectu[es]
. . . the Chief Magistrate of the nation, or . . . assum[es] the
function of a court for capital punishment." 103 U.S. at 204–05.
True, those examples of a legislature on a murderous tear pale to
a certain extent in comparison to the issues here. (Though it is
important to note that the plaintiffs here alleged they were forced
to choose between death and fulfilling their duty as an elected
legislator. So it's not that far afield from Kilbourn's examples.)
But the majority noticeably neglects to mention that a panel of
this court suggested that a "legislature that votes to allow access
to its chambers to members of only one race or to adherents of one
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religion" might veer into the orbit of the extraordinary-character
exception. Harwood, 69 F.3d at 634. Curiously so given how that
hypothetical rings awfully close to what the plaintiffs claim here.
B.
The most menacing problem with the analysis is how my
colleagues shrug off the impact of this ruling on later cases.
Rest assured, my colleagues claim, we need not concern ourselves
with the horrifying hypotheticals heralded by the plaintiffs as
the next discriminatory legislative rules because they are not
this case. See ante at 57-58. They say we can cross that bridge
another day because this decision is limited to no more than the
facts of this case.
Poke at those assurances a little, however, and they
dissipate into thin air. Rather, when we line up our so-called
parade of horribles, it becomes clear that the majority's rule --
immunizing conduct that "does not, on its face, target any class
of legislators," ante at 56 -- will give no room for subsequent
panels of this Court to address those hypotheticals. The Court
instead opens the floodgates to a host of rules that are designed
to oust various subsets of legislators based on a host of protected
characteristics, just so long as the other legislators are clever
enough to craft them in an ostensibly neutral way.
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1.
Take, for example, the following legislative rules
governing the voting process:
• A rule that all members must stand to address the
legislative body, but one of the members is
wheelchair bound;
• A rule prohibiting the use of any electronic
devices on the voting floor, but a member needs a
hearing aid;
• 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.
All are facially neutral but would effectively bar select
representatives from fulfilling their representative duties. So,
my colleagues say, absolute legislative immunity would apply.
Tough luck for any representative (or her constituent) who thought,
like Congress, that a wheelchair shouldn't limit the right to serve
as an elected representative.
And those are just some of the hypotheticals related to
disabilities. Take a few more for-examples:
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• 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 shaving29;
27 Rules of legislative procedure requiring particular
clothing are not all that uncommon, even though my colleagues claim
I have lined up a string of "hypotheticals concerning never-
undertaken legislative acts." Ante at 58. Starting in 1837, the
U.S. House of Representatives had a blanket rule banning members
from wearing headwear in the chamber. Cong. Globe, 25th Cong.,
1st Sess. 31 (1837); see Rules of the House of Representatives,
115th Cong., Rule XVII, cl. 5 (2017). It wasn't until 2019 that
an exception was made for religious headwear. H.R. Res. 6, 116th
Cong., § 102(x) (2019).
The New Zealand Parliament also faced controversy when it
booted a member who hailed from one of New Zealand's Indigenous
cultures for failing to wear a European-style necktie and instead
donning a traditional pendant. See Natasha Frost, He Calls the
Tie a 'Colonial Noose.' Now Parliament Says It's No Longer
Mandatory, N.Y. Times (Feb. 10, 2021), https://www.nytimes.com/
2021/02/10/world/asia/new-zealand-rawiri-waititi-tie.html.
28 Again, not an uncommon practice. For example, many
observant Jewish men wear a yarmulke or kippah. See The Pluralism
Project at Harvard University, Kippah (2022), https://
pluralism.org/kippah. As a matter of religious practice, Sikh men
wear turbans, and Sikh women wear long head scarfs called a chunni.
See The Pluralism Project at Harvard University, The Five K's at
1 (2020), https://pluralism.org/files/pluralism/files/the_five_
ks.pdf. Many Muslim women wear a hijab, another type of religious
head covering. See The Pluralism Project at Harvard University,
Women in Islam at 1, 3 (2020), https://pluralism.org/files/
pluralism/files/women_in_islam.pdf.
29 These would include, for example, adherents of Ultra-
Orthodox or Hasidic Judaism, certain denominations of Islam,
Sikhism, or Rastafarianism. See Dawinder S. Sidhu, Religious
Freedom and Inmate Grooming Standards, 66 U. Miami L. Rev. 923,
939 (2012) (collecting sources).
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• A rule requiring that all sessions be held on
Saturday mornings, but some members are Jewish and
observe Shabbat.30
According to the majority, since all of these rules "on [their]
face[] do[] not take aim at any class of legislators," then
absolute legislative immunity would apply. Another bad break for
those who thought that there was no religious litmus test for
serving as a representative. Especially tough considering that,
in Harwood, we specifically noted (and forgive me for repeating
this but it's important) that "a hypothetical legislature that
votes to allow access to its chambers to members of only one race
or to adherents of only one religion" might just rise to the level
of the extraordinary-character exception. 69 F.3d at 634. My
colleagues, of course, provide no explanation of how we square
that up.
Instead, my colleagues caveat that this is a case
addressing "a decision to follow -- rather than depart from --
existing House rules . . . ." Ante at 56. There's no
discrimination to worry about here, they assure us, because this
case "involves adhering to existing rules rather than making new
30In case the reader is unfamiliar, some followers of Judaism
"keep Shabbat" and must refrain from any labor from sunset Friday
to sunset Saturday. See The Pluralism Project at Harvard
University, Keeping Shabbat at 1 (2020), https://pluralism.org/
files/pluralism/files/keeping_shabbat.pdf.
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ones." Id. As with their other consolations, this one, too, rings
hollow. My colleagues fail to explain why we should turn a blind
eye to discrimination simply because it is based on an established
practice within a legislative chamber. They also offer no
principled reason why the House's choice to continue to adhere to
a pre-existing rule -- in the face of claims that this rule
discriminates against the disabled -- somehow lessens the
potential for nefarious intent compared to a choice to enact a new
rule.
Nor does their distinction alleviate the harm identified
by many of these hypotheticals. For one example, as I noted, the
U.S. House of Representatives banned headwear in the chamber from
1837 to 2019. And it didn't lift that rule until the first two
Muslim-American women were elected to that chamber, and one of
them wears a religious headscarf.31 Had a majority of the U.S.
House members in January 2019 chosen to simply adopt the old rules
without change, then, according to the majority, that
representative and her thousands of constituents would be out of
luck and barred from the federal courts. The same goes for any
31 Michelle Boorstein, Rep. Ilhan Omar Prompts New Rule That
Allows, for the First Time in 181 Years, Head Coverings on House
Floor, Wash. Post. (Jan. 4, 2019), https://www.washingtonpost.com/
religion/2019/01/04/rep-ilhan-omar-prompts-new-rule-that-allows-
first-time-years-head-coverings-house-floor/.
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newly elected wheelchair-bound representative to the House in New
Hampshire and her constituents: The current House Rules require
that a member must "rise from his or her seat" to "speak in debate,
make a motion, or deliver any matter to the House." 2021-2022
Rules of N.H. House of Representatives, R. 11. As I've detailed,
immunizing these effective ousters flies in the face of the purpose
of legislative immunity.
Tellingly, the Speaker has no response to these
hypotheticals that are not so far afield. Indeed, at oral
argument, the Speaker clarified that challenges to the hearing-
aid and service-animal hypotheticals would be barred by absolute
legislative immunity. And the majority apparently agrees, as its
telling offers no wiggle room for facially neutral rules governing
legislative procedure that are mere backhanded efforts at
discriminatory ousters.
Recognizing the shocking impact of his rule but of course
trying to deflect, the Speaker contends that these hypothetical
rules may not be integral to the legislative process in that they
affect the way that legislators speak, debate, and vote, and thus
do not gain absolute immunity. Yet it takes no Walt Disney-level
imagination to conjure up random reasons a legislature might
provide that would attach the hypothetical rules to the so-called
integral aspects of the legislative process. A legislature could
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ban all electronic devices for security purposes, or because they
tend to interfere with the vote-counting system. It could ban
service animals because they supposedly distract from the
legislative process. It could ban all non-legislators including
sign-language interpreters from the floor for the same reasons
offered in Harwood. It could ban headwear or facial hair out of
some belief that it is necessary for decorum or security (e.g.,
hidden weapons).32 And, following on from the Speaker's
contentions about public access here, it could hold legislative
sessions only on Saturday mornings because it has concluded that
is the time most accessible to the public.
Again, the majority tell us to fear not. For in its
telling, when these cases come along, we can be "sensitive to
context." Ante at 57. Yet that consolation, too, falls apart
when meshed with other Supreme Court precedent on legislative
immunity. As the Court has said, "[t]he claim of an unworthy
purpose does not destroy the [legislative] privilege." Tenney,
367 U.S. at 377; see also Bogan v. Scott-Harris, 523 U.S. 44, 54–
55 (1998). According to the Supremes "it [is] not consonant with
our scheme of government for a court to inquire into the motives
32 See 10 Reg. Deb. 2163 (1833) (statement of Rep. Patton)
(calling the practice of wearing hats in the House chamber
"indecorous").
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of legislators." Tenney, 367 U.S. at 377; see also Johnson, 383
U.S. at 184–85 (holding a criminal prosecution for bribery could
not inquire into a legislator's motive for legislative action under
the Speech or Debate Clause). So, again, the majority's rule may
appear a simple solution to this case. But it may well doom the
next case where there is some suspicion of a facially neutral rule
driven by "abuse." See ante at 57. When we turn to that case, lo
and behold, we might be forbidden to inquire into the motives of
the particular legislative action. See Bogan, 523 U.S. at 54–55;
Tenney, 367 U.S. at 377. So in practice, the majority's rule here
likely means that legislative immunity is sacrosanct and will bar
any suit based on any facially neutral legislative rule, regardless
of its impact on our representative democracy.
2.
Attempting still to distance this case from its clear
implications, the majority casts blame on the plaintiffs for suing
a legislator directly as opposed to a non-legislator employee
within the House, such as a doorkeeper.33 See ante at 56. My
33My colleagues' suggestion that the extraordinary-character
exception should not apply here because this is a suit against a
legislator (and not an employee) is more smoke and mirrors.
Indeed, the Supreme Court's hypotheticals in Kilbourn, as well as
our hypotheticals in Harwood, would also probably leave someone
else to sue. But the point is that a legislator does not enjoy
legislative immunity when the action at issue is of an
extraordinary character. See Kilbourn, 103 U.S. at 204 (noting
- 90 -
colleagues suggest that the plaintiffs' suit could have proceeded
against a doorkeeper without facing the bar of legislative
immunity. See id. (citing Powell, 395 U.S. at 504–06). But the
Powell Court, as I've already noted, explicitly carved out the
possibility of whether the plaintiffs there "would be entitled to
maintain this action solely against members of Congress where no
agents participated in the challenged action and no other remedy
was available." Id. at 506 n.26. And in Powell, the plaintiff
could sue the Clerk, Sergeant at Arms, and Doorkeeper because they
each took action to enforce the rule directly against the
Congressman. See id. at 504. Here, though, who should the
plaintiffs have sued instead? When asked at oral argument, the
Speaker said there is no one else to sue -- this is "a self-
executing rule." And my colleagues, similarly, have no answer.
Instead, they take Powell for its support but toss away its
limitation.
My colleagues also fail to recognize the bind their rule
puts would-be plaintiffs in when combined with our prior precedent.
Suggesting that the plaintiffs should have sued a House employee
that there may be actions "of an extraordinary character, for which
the members who take part in the act may be held legally
responsible" (emphasis added)). The extraordinary-character
exception applies (as its name suggests) as an exception to the
typical rule that legislative immunity would bar suit.
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instead, they nonetheless ignore the fact that we held in Harwood
that the doorkeeper sued there could also claim legislative
immunity since he "did nothing more or less than to interpret and
enforce" the legislative rule at issue. 69 F.3d at 631; see id.
at 635 (holding that all defendants could assert the immunity);
id. at 641–43 (Lynch, J., dissenting) (critiquing the majority's
conclusion that the doorkeeper could assert legislative immunity).
So, under this Court's precedent, plaintiffs can sue neither the
legislator nor the non-legislator enforcer of a rule.34 Which
further underscores the immense scope of the immunity the
majority's rule sets up here.
* * *
The problem with the majority's telling here is that it
has no limiting principle at all. Instead, it gives carte blanche
to legislatures to strategically silence legislative opponents --
and effectively disenfranchise their constituents -- so long as
they can conjure up some facially neutral rationale for the rule.
I cannot concur in giving such wide latitude at the expense not
only of other legislators (and solely on the basis of their
That is so notwithstanding pre-Harwood Supreme Court
34
precedent seemingly to the contrary. See, e.g., Markham Concepts,
Inc. v. Hasbro, Inc., 1 F.4th 74, 83 (1st Cir. 2021) (noting that
arguments that a panel "misconstrued then-existing Supreme Court
precedent" generally won't fly as an exception to the law-of-the-
circuit rule).
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federally protected disabilities), but also at the expense of their
constituents' voices in the legislative process. I agree with
Justice Story that "[t]he enormous disparity of th[at] evil" -- of
forcing the absence of duly elected representatives from their
solemn duties -- "admits of no comparison." 2 Story, Commentaries
§ 857. But forcing out duly elected New Hampshire representatives
with disabilities is exactly the evil that has befallen here. I
therefore respectfully dissent.
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