Planned Parenthood of N. New England v. Ayotte, Civil No. 03-cv-491-JD.
| Citation | 2008 DNH 155,571 F.Supp.2d 265 |
| Decision Date | 12 August 2008 |
| Docket Number | Civil No. 03-cv-491-JD. |
| Parties | PLANNED PARENTHOOD OF NORTHERN NEW ENGLAND, Concord Feminist Health Center, Feminist Health Center of Portsmouth, and Wayne Goldner, M.D. v. Kelly AYOTTE, Attorney General. |
| Court | U.S. District Court — District of New Hampshire |
Corinne L. Schiff, Jennifer Dalven, American Civil Liberties Union Foundation, Dara Klassel, Planned Parenthood Federation of America, Inc., Public Policy Litigation and Law Dept., New York, NY, Martin P. Honigberg, Sulloway & Hollis, Concord, NH, Lawrence A. Vogelman, Nixon Raiche Vogelman Barry & Slawsky PA, Manchester, NH, for Planned Parenthood of Northern New England, Concord Feminist Health Center, Feminist Health Center of Portsmouth, and Wayne Goldner, M.D.
Laura E.B. Lombardi, NH Attorney General'S Office, Civil Bureau, Maureen D. Smith, Attorney General's Office, Environmental Protection Bureau, Concord, NH, for Kelly Ayotte, Attorney General.
The plaintiffs brought a class action under 42 U.S.C. § 1983, seeking a declaration that New Hampshire's Parental Notification Prior to Abortion Act was unconstitutional and an injunction to bar enforcement of the Act. After the Act was repealed and the suit was dismissed as moot, the plaintiffs moved for an award of attorneys' fees and costs pursuant to 42 U.S.C. § 1988. The State of New Hampshire objects to the motion, contending that the plaintiffs are not prevailing parties and, therefore, are not entitled to fees and costs.1
The parties filed an assented-to motion for a briefing schedule to address the question of an award of attorneys' fees. The court granted the motion, which limited the parties' initial filings to the issue of whether the plaintiffs are entitled to fees. If the court concludes that the plaintiffs are entitled to fees, the parties then will address the amount of fees.
Section 1988 provides an exception to the rule that litigants generally pay their own attorneys' fees. Sole v. Wyner, ___ U.S. ___, 127 S.Ct. 2188, 2191, 167 L.Ed.2d 1069 (2007). Under that exception, "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." "The touchstone of the prevailing party inquiry ... is the material alteration of the legal relationship of the parties in a manner in which Congress sought to promote in the fee statute." Id. at 2194 (internal quotation marks omitted).
"A party is a prevailing party when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." Rossello-Gonzalez v. Acevedo-Vila, 483 F.3d 1, 5 (1st Cir. 2007). Therefore, a party who initially achieves a preliminary injunction but later loses on the merits of the challenge is not a prevailing party for purposes of § 1988(b). Sole, 127 S.Ct. at 2196. On the other hand, parties who receive only nominal damages or partial success are prevailing parties if they succeeded on any significant issue and achieved at least some of the benefit that they sought in the litigation. Farrar v. Hobby, 506 U.S. 103, 109, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992). Nevertheless, "to qualify as a prevailing party, a civil rights plaintiff must obtain at least some relief on the merits of his claim [and] . . . must obtain an enforceable judgment against the defendant from whom fees are sought . . . or comparable relief through a consent decree or settlement." Id. at 111, 113 S.Ct. 566.
The New Hampshire legislature enacted the Parental Notification Prior to Abortion Act, RSA 132:24-132:28, in 2003, with an effective date of December 31, 2003. "The Act prohibit[ed] physicians from performing an abortion on a pregnant minor (or a woman for whom a guardian or conservator has been appointed) until 48 hours after written notice of the pending abortion is delivered to her parent or guardian." Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 323, 126 S.Ct. 961,163 L.Ed.2d 812 (2006). Planned Parenthood of Northern New England, Concord Feminist Health Center, Feminist Health Center of Portsmouth, and Wayne Goldner, M.D. ("the Plaintiffs"), filed suit on November 17, 2003, challenging the constitutionality of the Act and seeking injunctive and declaratory relief under § 1983.
The Plaintiffs alleged that the Act was unconstitutional because it lacked an "exception to its notice and delay requirements for circumstances in which delay will threaten the health of the young woman." Compl. ¶ 2. The Plaintiffs also alleged that the death exception, RSA 132:26, I(a), was too narrow and that the confidentiality provision for the judicial bypass procedure, RSA 132:26, II(b), was inadequate to meet constitutional requirements. The Plaintiffs sought expedited review and a preliminary injunction against enforcement of the Act, beginning on its effective date.
The State objected, arguing that because the Plaintiffs brought a facial challenge to the Act's constitutionality the heightened standard of review used in United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), applied to the Plaintiffs' claims, and that the Act was not unconstitutional. Specifically, the State contended that the lack of a health exception was not unconstitutional because other New Hampshire laws permitted physicians to perform emergency medical care, despite a lack of consent, without civil liability in certain circumstances. Alternatively, the State argued that the judicial bypass provision in the Act adequately protected the health of a pregnant minor. The State also argued that the death exception and confidentiality provision were constitutionally adequate. The State further asked that if any parts of the Act were found to be unconstitutional, those parts should be severed, pursuant to the Act's severability clause, from the constitutional portions.
On November 18, 2003, the court held a telephone conference with counsel to set a briefing schedule and to consider other procedural matters. The court asked whether the Plaintiffs would agree to consolidate their motion for a preliminary injunction with the merits of the case. Later, in the absence of a response, the court concluded that the Plaintiffs agreed to consolidation and considered the case on the merits.
To determine whether or not the Act was facially unconstitutional, the court reviewed the different standards used to decide that issue and concluded that the Salerno standard did not apply when, as in this case, the challenged legislation restricted access to an abortion, a constitutionally protected action. Planned Parenthood of N. New England v. Heed, 296 F.Supp.2d 59, 63 (D.N.H.2003). Instead, the appropriate standard was whether the challenged law imposed an "undue burden" or a "substantial obstacle" to a woman's choice to undergo an abortion. Id. The court concluded that the Act was unconstitutional because it lacked a health exception and because the death exception and confidentiality provision were inadequate. Id. at 66-67. The court also ruled that the severability clause did not apply because the lack of a health exception made the Act unconstitutional and no excision of unconstitutional parts would remedy its deficiencies. Id. at 67.
The court granted the Plaintiffs' request for a declaratory judgment, as follows: "For the foregoing reasons, the Act, to be codified at RSA 132:24 through RSA 132:28, is declared to be unconstitutional." Id. at 68. The court also granted a permanent Injunction:
The Attorney General of the State of New Hampshire, and those acting pursuant to and under his direction and authority, are hereby enjoined from enforcing the Parental Notification Prior to Abortion Act, 2003 N.H. Laws ch. 173, to be codified at RSA 132:24-28, on its effective date or at any time thereafter.
Id. Judgment was entered on December 29, 2003. The State appealed.
On appeal, the State argued that the Salerno standard applied, that parental notification laws were not required to have health exceptions, and that the death exception and the confidentiality provision were adequate. The First Circuit disagreed with the State on all Issues, holding that the "undue burden" standard rather than the Salerno standard applied, that a health exception was constitutionally required, that the death exception was "drawn too narrowly," and that the confidentiality provision was inadequate. Planned Parenthood of N. New England v. Heed, 390 F.3d 53, 59-65 (1st Cir.2004). The court affirmed the declaratory judgment and the injunction entered by this court.
The State filed a petition for a writ of certiorari to the United States Supreme Court. In the petition, the State identified two issues for review: (1) whether the First Circuit applied the correct standard for reviewing a facial challenge to the constitutionality of a statute regulating abortion, and (2) whether the Act sufficiently protects the health and life of a pregnant minor. On May 23, 2005, 544 U.S. 1048, 125 S.Ct. 2294, 161 L.Ed.2d 1088, the Supreme Court granted the State's petition for a writ of certiorari.
At oral argument before the Supreme Court, however, the State raised a new theory, asserting that the declaratory judgment and injunction were overly broad. The State argued that the need for a health exception might arise only in rare circumstances and that if that were to occur, the Act would not be enforced against a doctor providing such emergency services based on a "competing harms" defense. The State also argued that a more appropriate challenge to the Act would be a suit by a physician who could present actual rare circumstances when enforcement of the Act would be unconstitutional, which would allow a narrow restriction of the Act in particular applications.
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Ohio A. Philip Randolph Institute v. Householder
...standards under Supreme Court Rule 43.2 and Federal Rule of Appellate Procedure 39(a)(4)); see also Planned Parenthood of N. New Eng. v. Ayotte, 571 F. Supp. 2d 265, 272 (D.N.H. 2008) ("The [Supreme] Court's decision to award costs was a ministerial application of its rule and not a conside......