which i think distinguishes it from the cases relied on by the district court this is a case about a state discriminating against a protected class disabled people and the district court's holding that a state legislature can legislative privilege and focusing really under how to it is the eighty eight rehabilitation act case count i'm not sure i follow your question your honor you could say and you not your clients are protected class that's it here isn't well i think that's i would say we've abandoned if i am understanding you correctly your honor there's kind of two prongs or two major problems to our argument one is that legislative immunity does not apply it apply in this context all because we're suing effectively the state which doesn't carry such a personal immunity i don't care if that's what it's mean it's meaningless unless there's some sort of protected mean this is not a trick question it's really to try to apply ockham's razor to a proliferating number of theories that i've presented in this case yeah i apologize your honor i am really i'm not following your court again this is a statute that explicitly binds state entities including state legislatures it was passed pursuant to the enforcement clause of the th amendment which specifically contemplates federal intrusion into state sovereignty including the state legislat process the entire purpose of the th amendment is to provide federal protections in areas which might otherwise be outside of the scope of congress's power if that they act further provides that state  entities should be treated the same as any other private defendant it authorizes the department of justice to enforce the act it simply invokes the full power of congress to address the wide ranging and systemic issue of unequal access disabled persons so we think that those factors put this case in a very different context than the harwood case and consumers union which were relied upon  context an order would generally be issued st of all to the state itself and the state legislature so that's the st piece of that questionnaire saying you know you've got to order now how does it get in force doesn't it necessarily have to be enforced against the speaker of the assembly well actually the defendant argued in the district court kind of implicitly found that the speaker of the house does not have the power to waive bork change the rules him or herself obviously i don't think it would come just out white puts it it's difficult because it goes right to the heart of the st claim that this is an action against the state and not against and i'm having trouble following out when i think how we would go about enforcing it we would it would do you  no good just to sure your honor and i think that's that same dilemma is occurs whenever a federal court orders estate to do something desegregating schools for example you know if the state is asked to carry that out for its agents i think once the court issues an order to the state the carrying out that order becomes in effect almost minna stereo and that the court by initiating contempt proceedings or whatever and that regard the who is going to be the address he yeah and i think that your honour's are right that it eventually would be the legislators themselves though and i think in that context once a state has issued a general order to the state that contempt carry out that command if if the alternative is using x party young you're who reach representative of the state presumably it's the person who records the votes maybe i don't know  but it has to be somebody who's an address see for this to be in effect it would or as opposed to a general adjuration i guess sure and i think your honour's is right that it it potentially a state as been enjoined to do a certain thing i don't think that under the precedent of you know this court that the court with than it need to name the individual officers as parties in order to you know enforce its order against the state that might be some due process problems with that well i i disagree because the court the clerk of court is you know part of the house as a body he is a representative of the house he's on notice of the suit he participated as a witness in the suit at the trial court so that you know there are certainly notice here that would in my mind obviate any due process concerns general court which is the legislature of the state actually has a title two hundred and eighty eight dollars coordinator that's an appointed position within the state legislature who receives eighty eight dollars requests and makes decisions about them and that's part of the ironic thing about this case is that there is such a position it's an employee within the state legislature there's a title to eighty eight dollars compliance notice on the state houses website so there are structures in place and they're not legislators who carry requests were made to this individual or either directly or indirectly and in most cases no responses were received and why don't the letter that's actually nations moved this case well  i think in the practical effect is that the number of legislators who are requesting who are still eligible for accommodation are very low people who either have not received both those is have not had the appropriate two week waiting period after the nd dose of course that's an issue up in my mind or the trial court and remain and as part of the reasonable accommodation inquiry that it did not reach but i guess i can represent to the court that there are some circumstances we have three days of session later this week where individual still are not completely vaccinated think it sounds like if unless we get an opinion out in two weeks it case is mo won't agree to that your honor respectfully i think that there are still circumstances here where a condition is severe enough and the particular circumstances at the trial at the days are such where unfortunately there's dozens of individual not wearing masks or complying with other types of safety precautions work or could find it's still reasonable balance and now you're saying it's an e t a violation to require i can't represent to the core exactly what each individual plant us back seems situation is i think that the court is certainly correct that it has widowed of the number of plaintiffs who would still be eligible for this accommodation as reasonable i can't say exactly what the timeline would be or for it would apply for every situation religiously just given priority they in the st round no your honor we've been subject to the they've been subject to the same schedules as everyone else choose to be vaccinated i'm not aware of that your honor and that's but that's part of the reason why i'm trying to be a little bit undefended of here is that i'm not sure if there are particular medical or religious or whatever circumstances which mean that some of my clients are not receiving the vaccine at all frankly i had not investigated that fully because again i consider that issue for  it well i don't think it would fall under the a d f it would be a reason why potentially their competition requested here would continue to be reasonable because they still do not have in from our ability to the sounding it sounding like an issue that was right in very significant and important a couple of months ago and i'm having trouble understanding now what the dispute is about if everybody's been subject to the caviar that you need not know someone that so you're not conceding it totally but it seems like everyone's had a chance to get  the so it's hard to understand then what the problem is and i appreciate that your honor i would say a couple things one is we do have these sections coming up later this week and there were be potentially representatives and their constituents that are completely disenfranchised by not attending votes that will go one way or another on important pieces of legislation because of them not attending so i think that there is certainly still a clear and present dispute i would also again just say without a factual determination by the trial court i'm not sure it's one hundred percent this communications have mostly been through the house office itself the house speaker's office it's all saying because we don't have a rule allowing this we can allow this regardless of what the a d a s says and that we think is just an untrue considering the purpose of this act which is to abrogate state sovereignty interfere or put inject itself into the legislative process even and especially with regard to the rehabilitation act claim where this entity has the house accepted federal funds for the purpose of running sessions during the pandemic as the court knows the rehab act says that once you accept federal funds you're bound by the anti discrimination provisions of that statute it's undisputed here that they've received those federal funds and it would completely turn the purpose of that act on its head by allowing the house as an entity to avoid the protections of the act in the structures of the act when they accepted federal funds that triggered their obligations under the act eight below it was your honor and respectfully to the district court  thought that there was insufficient question of its opinion addressed to this question perhaps that's in part my fault i'm sure it is by not focusing on it and off but it certainly was raised below is decided by the district court was briefed before this court and i think it best illustrates what the defendant here is trying to do which is avoid the specific mandates of congress to avoid the friday of this week your honor so you're telling us today that to give you needing full relief we need to get a decision out tomorrow respectfully i won't concede that completely but i think that for the vast majority of plaintiffs perhaps not all that your honor is right the more time that passes the less likely that this accommodation would be considered reasonable by a you talked about sessions this week are there any more scheduled in the future there have not been any definitive dates announced yet your honor there will be sessions in the  future but these are the only three that are currently on the calendar would you be anticipating any more for april or may specifically i believe that there will be some certainly in plaintiff's interests here it is that their votes are not getting recorded they don't get to participate in their votes are not getting recorded now if the general court were to take votes and those votes would be there would be sufficient without their participation one way or the other that it least would say then it's their interests have been addressed or at least don't need to be addressed and then we can deal with it if we have to later on that question and larger questions under a more reasonable schedule isn't that that you don't you don't have anything else other than your clients who want to participate and been elected to participate it can't participate and that means their vote can't be heard or can't be received but if it's not going to make any difference then that's a no harm no foul kind of problem for purposes  be able to work and that's what you're really talking about here it's an important federal interest all of that but it's a no it's a nearly defined one at least for purposes of repertoire well that's that's a part of it i mean the  implicates is working commandment considerations under the equal protection clause and the ability of the you know they legislator to exercise their and fundamental right to vote and to participate in democracy so i don't think that those things can be separated the fundamental rights are vindicated through this statute which congress has said applies to states abrogate sovereign immunity applies to state legislators state legislatures so i think those are all one in the same karl and if you would introduce yourself on the record thank you thank you your honor sir my name is sam girl and i represent definitely in this matter i'm happy to get to the moon this question at any point because it's obviously something we haven't  think that several judges admit very good points about it but more generally with respect to the legislative immunity question i think a lot of what you heard today and frankly a lot of what's been in the briefing before this court and below is really desire by the plaintiffs that the law operates in a way that it frankly doesn't this court's decision in harwood in the supreme court's decision and consumers union answer all of the big questions as far as we can see it that this appeal presents are what legislative role here that prohibits remote participation in full sessions of the house of representatives i wouldn't consumers union both involved official capacity claims consumers union was explicit on that and i think the heat categor argument that legislative immunity doesn't apply to those claims has been abandoned but we think to the extent that that argument remains before this court that there is no support for it under binding precedent or under you know the several other circuits that have said that it does apply to racial discrimination or ethnic discrimination is of a higher magnitude the end discrimination against the disabled as a matter of constitutional law your honor it is it in terms of fundamental rights and that is entitle to protection as a matter of insistent national policy i agree with your honor but the nd portion of my of my response to the question with respect to asian americans would be that that would be a rule that is that is facial on remote access without any agree that that simply begins the discussion it doesn't end it it can be protection truly neutral stated in a neutral fashion and still be discriminatory and so we ask the deeper question here that's why i was asking my question about are you focusing on your friend are you focusing just on the eighty eight he didn't want to answer that question but that's really what it's about in so now we're basically rational basis your view and in that case of the court found that there were in the factual record and i frankly think there are ample rational basis for supporting the prohibition here as well i'm very flooded in the transcript from the hearing there reflected in the indicate on the other hand people make efforts to do that and the we have big money that you receive your clients received was precisely for that purpose so the challenge excuse me sorry no i'm sorry the challenge is frankly largely a logistical one and i do think that it is identified with some specificity in the record here on the new hampshire house of representatives i believe is the is the largest house of representatives among any of the states the new hampshire general court is i think the rd or th largest english speaking by camera legislature in the world and so when you're talking about four hundred representatives who are all appearing at the same time who use a particular system that is has been used in the in the house sessions for for quite a long period of time and whose votes are recorded in a particular way it is a significant logistical challenge and we presented i think a significant amount of we've never had a clear indication from from the plaintiffs in this case just how many people they think would be entitled to this and i think that does get to i believe judge chaos has line drawn question as to how many people are we talking about what  dissent it's no more than the number of plaintiffs which is i think i can count on one or two hearings in the proceedings blow your honor the plaintiffs indicated that they were looking for a ruling that would not in terms of the number who would purpose participate remotely your honor but we are talking about having to make sure that they are able to participate in a way that's consistent with how other members of the house participate whether it's through the voting system which is a particular remote system that i understand is not compatible with with an application like what we're using here or resume or something like that making sure that they can get the speaker of the house's attention through the normal order and that's reflected in the house rules on ensuring that th they are they are functionally no different than really what we're doing today here with with a you know maybe a couple of dozen people all participating or largely participating remotely but there is no precedent whatsoever for a remote part of a remote house session of the full house of representatives at any point during the pandemic you seem to be addressing the merits of the rehabilitation act claims and what you seem to be answering questions about legislative purpose by saying that well this is a rational basis so we've got to reason with this would be hard to make this accommodation legislative immunity which i think are would acknowledged based on some some speech or debate president there is a potential outer bounds to legislative immunity for for invidiously discriminatory rules or or legislative acts and so i think to the extent there there weren't as applied challenge here that's where the rational basis analysis comes in we did present that in our filings judge mccafferty never specifically addressed it i think frankly she must have rejected that argument by implication because it was th inquiry as applied your honor whether there is any rational reason for it or if it's simply irrational rules you know and i think in that situation we would have some fact finding and the fact finding would probably find it's irrational or not a reasonable accommodation reasonable or the like i would say your honor that there is at least implicitly fact finding it's not in judgment heifers opinion is far as i can recall but it was presented to her both in terms of the evidence presented in the legal arguments but but we're not interested in what was presented were interested in fact finding we have no fact finding that it would be easy for you to accommodate this request particularly with the federal funds that you took in when you took those federal funds you said you would discriminate against handicapped people and then you turn around and you're not using the federal funds in a way that would allow them to participate don't we need some fact finding on that i don't think you do your honor i think you are you can look at the factual record and you can defer to and i believe and i hope i'm not getting state and federal president confused here but i believe that to the extent that the determination is supportable in the record as a matter of fact or a lot you defer to to what the district here and she was presented with those arguments directly she was presented with evidence on but as i said if i said to you in a presentation that it's rational and i'm having a hard time trying to stand a rational basis for discriminating against people with underlying conditions what is your response to that you know i would dispute that this is discrimination in the st place just as a matter of the framing of the quite question if if you show up and die that's go the february session occurred happened occurred after that this records ruling in this case and so i'm not as familiar with the specifics of that but there were a number of precautions taken including i believe a requirement for masks when people were interacting with one another it was only for folks who wanted to sit in their seats and not have to approach anywhere that didn't want to wear masks that i believe were permitted not to do so so there were significant precautions taken and they were presented to the federal to the district court in this case so i would like to just briefly address i think the big thrust of the plaintiff's argument which is what we heard most of today which is that these claims are really claims against the state by operation of the rehabilitation act and the idea judge chaotic and judge what luck you're really hit i think the nail on the head with respect to that argument which is there is no one other than the speaker named in this lawsuit there are no allegations against anyone other than the speaker and no relief sought from anyone other than the speaker in this lawsuit and against whom an order could be enforced other than the speaker or some some official operating in his official capacity so what the claims in this case case pretty plainly are based on the allegations in the complaint are claims asking eight a public official to conform his conduct sovereign and every other circuit every other numbered circuit that deals with claims against the state regularly other than this one has said that you can bring an ex parte young claim against a state official to conform his or her conduct to federal law if the plaintiffs had raised claims against the state or against the house of representatives we rode it out th amendment arguments to raise it's not a foregone conclusion that the th amendment doesn't apply we didn't do that and we would be prejudiced if this case were you know were sent back down for some reason in light of the fact that the plaintiffs pleaded it one way and then started arguing something else and ultimately though i don't think that any of this really matters because consumers union is an ambiguous that the state entity and that case the virginia supreme court based on reasoning that the virginia legislature had it passed the rule would have been able to invoke community i don't think it matters whether you bring it against an official or against the state or against the new hampshire house of representatives but but for their sessions that i'm not sure your honor i would have to double check that i know that a number of them have done sessions remotely i know that none of them are nearly as big or at least as big as the new hampshire house of representatives for  finish my point or sentence it's based on the same allegations it's the same relief as the rehabilitation act in eighty eight dollars claims and i have a hard time seeing how one would operate only against an official but the others somehow were meant to operat thank you attorney garland at this time a few of your audio and video and attorney putra you have two minutes for puddle please reintroduce yourself on the record thank you your honors attorney israel for appellants again on this matter i think the court has identified the issue here through the hypothetical about the disabled person who can't rise from their will chair to vote in my mind that is completely analogous to the situation here opposing counsel just admitted that the court would have jurisdiction over that situation under the a d a s they're both facially neutral rules that apply in a way that discriminates against disabled persons and prevents them from voting that's precisely what the title two and the rehab act were and to remedy and that's why the congress exercises extraordinary power under the  th amendment to institute these regulations upon states and state legislators state legislatures the court made a statement in the harwood that the doctrines protections must match its purposes  and as we argued in our briefs that's the application of the doctor here simply doesn't fit all the immunities purposes there's no personal liability at stake here there's no chilling effect that's going to happen that's going to occur in  legislators individual actions in fact the doctor in here as applied would contravene its purpose by preventing legislators from participating in government the courts have identified this quote unquote distraction interest as it as a concern distracts the legislators from doing their work over here is preventing certain legislators from doing their work while not even targeting a individual actions by  legislator and as i mentioned previously that highlights the rights that are at stake here the fundamental right to vote and participate in democracy which has been kind of recognized as the most important right that there is  yes i was going to contrast that quickly to the situations in harwood and consumers union when we're talking about the rights of lobbyists to sit on the house floor and the rights of lawyers to be listed in advertising directories respectfully we think that the rights implicated here are much more severe and that this is an extraordinary situation where legislative immunity should not apply thank you thank you that concludes the arguments for today this session of the honorable united states co appeals is now recessed until the next session of the court god save the united states of america and this honorable court counsel you may disconnect from the meeting