A judge this week struck down a Ketchum lawmaker’s request to require COVID-related accommodations to protect her health at the statehouse during the new legislative session while a lawsuit filed last week is pending.
Rep. Muffy Davis, D-Ketchum, along with Rep. Sue Chew, D-Boise, sued the state Legislature and Speaker of the House Scott Bedke last Thursday, asking that they be allowed to work remotely during the 2021 legislative session and be given access to a self-contained office in the capitol. Both Davis and Chew are at heightened risk of contracting a severe case of COVID-19; Davis is a paraplegic with reduced lung capacity and Chew is diabetic. The lawsuit does not ask that any other members of the Legislature be required to work remotely or follow additional safety measures.
As part of the lawsuit, which remains ongoing, Davis and Chew filed a motion last week for a temporary restraining order and preliminary injunction—essentially asking U.S. District Court Judge David Nye to mandate that the Legislature provide their requested accommodations while the suit is pending. That motion was denied on Tuesday.
A person seeking a preliminary injunction or temporary restraining order must establish that they are “likely to succeed on the merits” of the case, that they are “likely to suffer irreparable harm in the absence of preliminary relief,” that “the balance of equities tip in her favor,” and that the injunction is in the public interest, according to the ruling on the motion.
“While Chew and Davis may ultimately prevail upon a full adjudication of the merits of their claims, they have not shown a likelihood of success on the merits or a likelihood of irreparable harm sufficient for this Court to grant their emergency requested relief,” Nye wrote.
In his ruling, Nye wrote that “protective measures other than remote participation” have been taken by the Legislature, including allowing legislators to wear optional masks and allowing legislators to choose whether they want to place plexiglass around their seats on the House floor. (In the first days of the session this week, the majority of lawmakers did not wear masks in the House chambers.) As lawmakers with physical impairments, Chew and Davis are also allowed to choose their own seats, Nye wrote, noting that the two lawmakers had voted with the rest of the House to approve the current House Rules in an organizational session in early December.
In addition, Nye wrote, there is “no evidence that anyone in the Legislature has COVID-19” and “no evidence that any legislator or other person in attendance will likely expose Chew and Davis to COVID-19.” The judge noted that he does not dispute that such evidence may exist and could be provided by an expert, but that Davis and Chew had not presented such evidence in their complaint.
“In short, the Court surely sees a possibility of irreparable harm from being exposed to COVID-19, particularly given Chew and Davis’s respective health impairments,” the ruling states. “Nevertheless, the Court cannot say that it is likely on this record.”
In his response to the lawsuit last Friday, Bedke wrote that the Speaker of the House does not have the power to decide whether Davis and Chew can debate and vote remotely; that will require two-thirds of the House to vote to change the House Rules that were approved in December.
“I would entertain any motion properly brought to the Floor to allow virtual debate and voting,” Bedke wrote. “Until the session begins, however, these only remain as hypothetical options.”
Regarding the question of a self-contained office, Bedke suggested that Davis and Chew ask the leaders of the Legislature’s Minority Caucus for private office space within their leadership suite.
“It appears that Chew and Davis’s concern will be resolved between the parties,” Nye wrote in his ruling Tuesday, referencing Bedke’s response. “Chew and Davis will receive such space either when they ask the Minority Caucus leadership for the office space or when Defendant Scott Bedke, upon a refusal of that request, designates such an office for Chew and Davis’s use, as he has so represented to the Court.”
Davis previously told the Idaho Mountain Express that she will continue to attend in the session in person unless, or until, the court rules that she is able to participate remotely.