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.
`
`
`- 3 -
`
`
`
`

`

`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.
`
`
`- 4 -
`
`
`
`

`

`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
`
`
`- 5 -
`
`
`
`

`

`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,
`
`
`- 6 -
`
`
`
`

`

`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
`
`
`
`1 Part 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."
`
`
`- 7 -
`
`
`
`

`

`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
`
`
`- 8 -
`
`
`
`

`

`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,
`
`
`- 9 -
`
`
`
`

`

`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."
`
`
`- 10 -
`
`
`
`

`

`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
`
`
`- 11 -
`
`
`
`

`

`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
`
`
`
`3 The Clerk's Note on the January 6, 2021 legislative session
`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.
`
`
`4 We note that the New Hampshire Senate held its proceedings
`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).
`
`
`- 12 -
`
`
`
`

`

`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
`
`
`- 13 -
`
`
`
`

`

`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.
`
`
`- 14 -
`
`
`
`

`

`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
`
`
`
`7 Throughout the opinion, we refer to the plaintiffs' request
`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).
`
`
`- 15 -
`
`
`
`

`

`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
`
`
`- 16 -
`
`
`
`

`

`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
`
`
`
`8 In addition to granting Speaker Packard's petition to rehear
`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.
`
`
`- 17 -
`
`
`
`

`

`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.
`
`
`- 18 -
`
`
`
`

`

`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
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`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
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`of defending against a suit and not merely from being held liable
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`in one, see Tenney, 341 U.S. at 377. In addition, the immunity is
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`absolute rather than qualified, insofar as it applies. See id. at
`
`372.
`
`IV.
`
`We start with the plaintiffs' threshold contention,
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`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
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`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
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`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
`
`
`
`9 We note that neither the plaintiffs nor the United States
`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
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`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,
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`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
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`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 o