Planned v . Ayotte 03-CV-491-JD 08/12/08 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Planned Parenthood of Northern New England, Concord Feminist Health Center, Feminist Health Center of Portsmouth, and Wayne Goldner, M.D. v. Civil N o . 03-cv-491-JD Opinion N o .

Kelly Ayotte, Attorney General

O R D E R

The plaintiffs brought a class action under

, 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repealed and the suit was dismissed as moot, the plaintiffs moved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

. 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.

1 Because Peter Heed, who was replaced by Kelly Ayotte, was sued in his official capacity as Attorney General of the State of New Hampshire, the state is treated as the defendant. See Negron-Almeda v . Santiago,

5 , 21 n.2 (1st Cir. 2008). 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.

Standard of Review

Section 1988 provides an exception to the rule that

litigants generally pay their own attorneys’ fees. Sole v .

Wyner, 127 S . Ct 2188, 2191 (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,

, 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 . C t . at 2196. On the other

2 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,

(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.”

.

Background

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 3 1 , 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,

2 0 , 323 (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 1 7 ,

2003, challenging the constitutionality of the Act and seeking

3 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,

(1981), 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

4 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 1 8 , 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,

9 , 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.

The court concluded that the Act was

unconstitutional because it lacked a health exception and because

5 the death exception and confidentiality provision were

inadequate.

. 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.

at 6 7 .

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.”

at 6 8 . 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.

Judgment was entered on December 2 9 , 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

6 exception was “drawn too narrowly,” and that the confidentiality

provision was inadequate. Planned Parenthood of N . New England

v . Heed,

3 , 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 2 3 , 2005, 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

7 allow a narrow restriction of the Act in particular applications.

In its decision, the Supreme Court did not address either of

the issues raised by the State in its petition for a writ of

certiorari. Instead, the Court stated that it would “not revisit

our abortion precedents today, but rather address a question of

remedy: If enforcing a statute that regulates access to abortion

would be unconstitutional in medical emergencies, what is the

appropriate judicial response?” Ayotte,

. The

court found that three propositions pertinent to the case were

established: (1)“States unquestionably have the right to require

parental involvement when a minor considers terminating her

pregnancy . . . .” id. at 326; (2) “a State may not restrict

access to abortions that are necessary in appropriate medical

judgment for the preservation of the life or health of the

mother,” id. at 327 (internal quotation marks omitted); and (3)

“[i]n some very small percentage of cases, pregnant minors, like

adult women, need immediate abortions to avert serious and often

irreversible damage to their health,” id. at 328.

The Court agreed with the lower courts that the Act would be

unconstitutional in certain circumstances but disagreed that the

Act necessarily should be invalidated in total. Id. at 330-31.

Instead, the Court directed, “[s]o long as they are faithful to

8 legislative intent, then, in this case the lower courts can issue

a declaratory judgment and an injunction prohibiting the

statute’s unconstitutional application.” Id. at 331. The court

further held: “Either an injunction prohibiting unconstitutional

applications or a holding that consistency with legislative

intent requires invalidating the statute in toto should obviate any concern about the Act’s life exception. . . . Finally, if

the Act does survive in part on remand, the Court of Appeals [the

First Circuit] should address respondents’ separate objection to

the judicial bypass’ [sic] confidentiality provision.” Id. at

332.

The Court did not review the lower courts’ alternative

holdings that the Act was unconstitutional because it lacked an

adequate death exception and failed to adequately protect the

confidentiality of the judicial bypass procedure. The decision indicates, however, that the death exception also would be

subject to either a revised injunction, barring unconstitutional

applications, or the existing injunction. Without considering

the effect of the alternative bases for the declaratory judgment

and the injunction, the Court vacated the judgment of the First

Circuit and remanded the case for further proceedings.

On March 2 2 , 2006, the First Circuit remanded the case to

this court for further proceedings. The parties agreed that the

9 permanent injunction entered by this court on December 2 9 , 2003,

would remain in place for the remainder of the litigation, and

the First Circuit ordered that the injunction remain in effect.

Planned Parenthood, N o . 04-1161 (March 2 2 , 2006) (dkt. n o . 2 7 ) .

On remand, the Plaintiffs were granted leave to file an

amended complaint to address certain matters pertaining to the Act’s judicial bypass provision. The State filed a partial

motion for summary judgment on legislative intent, and the

Plaintiffs filed a cross motion for summary judgment. The State

responded to the Plaintiffs’ motion with its own cross motion for

summary judgment.

On February 1 , 2007, the court entered a procedural order

temporarily staying the case while a bill to repeal the Act was

pending in the New Hampshire legislature. After the legislature

repealed the Act, effective June 2 9 , 2007, the State moved to dismiss the case as moot. The Plaintiffs did not dispute that

the statutory issue was moot but asked that the case remain open

to consider their motion for an award of attorneys’ fees and

costs. The court granted the motion to dismiss to the extent

that the issues in the case, other than whether the Plaintiffs

would be entitled to an award of fees and costs, were moot. The

Plaintiffs filed a motion for an award of fees and costs, and the

State has objected.

10 Discussion

The Plaintiffs seek an award of fees and costs as prevailing

parties on the grounds that they succeeded in having the Act

declared unconstitutional and won a permanent injunction against

its enforcement, which would have continued, at least as to the

Act’s unconstitutional applications, but for repeal of the Act. The State argues that the Plaintiffs are not prevailing parties

because they “did not succeed in their facial challenge to the .

. . Act and the Supreme Court awarded costs to the Defendant.”

Def. Mem. at 1 . The State argues that because the Plaintiffs did

not achieve judicial relief on remand, they did not prevail.

A. Prevailing Party

The Plaintiffs contend that they are the prevailing parties

in this case because they succeeded in obtaining an injunction

that prevented the Act from being enforced. They assert that

although the Supreme Court remanded the case for consideration of

a more narrow declaratory judgment and injunction, that decision

did not undermine the rulings below that the constitution

required the Act to have an exception to protect the health of

pregnant minors and that the constitution requires a death

exception to restrictions on abortions and protects the

confidentiality of minors using the judicial bypass procedure.

11 They argue that they succeeded on significant issues in the case,

including the requirement of a health exception, and that the

continuation of the injunction barred the State from enforcing

the Act.

B. Catalyst Theory

The State contends that this case is analogous to

Buckhannon Bd. & Home Care, Inc. v . W . V a . Dep’t of Health &

Human Resources,

(2001). 2 In Buckhannon, the

plaintiff received orders to close its assisted living homes

because they were operating in violation of a West Virginia

statute that required all residents to be capable of “self

preservation” in the event of fire.

. The plaintiff

brought suit to challenge the statute as a violation of the Fair

Housing Amendments Act of 1988.

. The Department

agreed not to enforce the orders while the case was pending.

Before the court took any action in the case, however, the West

Virginia legislature passed legislation that amended the statute

and removed the challenged provision.

The case was then

2 Although Buckhannon dealt with the fee-shifting provisions under the Fair Housing Amendments Act and the Americans with Disabilities Act, the definition of “prevailing party” in that case is applicable to other fee-shifting statutes. Torres-Negron v . J & N Records, LLC,

5 1 , 165 n.9 (1st Cir. 2007).

12 dismissed as moot.

The plaintiff requested attorneys’ fees as the prevailing

party under the “catalyst theory,” meaning that the suit was the

catalyst that caused a change in the law. The Supreme Court

rejected the “catalyst theory” and held that a “judicially

sanctioned change in the legal relationship of the parties” is necessary to support prevailing party status. Id. at 604.

Here, unlike the circumstances in Buckhannon, this court

granted the Plaintiffs relief on the merits of their claims by

issuing a declaratory judgment and a permanent injunction. The

First Circuit affirmed the decision. The Supreme Court agreed

that the constitution prohibits states from restricting access to

abortions that are necessary to preserve the life or health of

the mother and that some pregnant minors will need immediate

abortions to preserve their lives or health. The Court vacated the lower court judgment and remanded the case to determine

whether the New Hampshire legislature intended to have the court

issue a more narrow injunction and declaratory judgment that

would incorporate provisions into the Act to meet constitutional

requirements or intended that the entire Act be invalidated

because of its constitutional deficiencies. The Court did not

address the lack of a death exception or the inadequacy of

confidentiality. The Court also did not explain the effect of

13 its decision on the existing injunction. The parties agreed that the court-ordered injunction would remain in place for the remainder of the litigation, and the First Circuit ordered that result.

Therefore, in this case, before the legislature repealed the Act, the court granted the Plaintiffs relief on the merits of their case, and the State was permanently enjoined from enforcing the Act. The court-ordered injunction altered the relationship between the parties by preventing enforcement of the Act. Although the First Circuit’s judgment affirming the declaratory judgment and permanent injunction was vacated by the Supreme Court, on remand, the First Circuit continued the injunction in effect. As a result, the Plaintiffs’ request for fees and costs is not based on the catalyst theory that was rejected in Buckhannon, but rather is based on the Plaintiffs’ success in achieving court recognition that the Act did not meet constitutional requirements and a permanent injunction barring enforcement of the Act.3

3 The Supreme Court agreed that the constitution required health and death exceptions in abortion regulation.

14 C. Supreme Court’s Award of Costs

The State argues that because the Supreme Court awarded it

costs under Supreme Court Rule 43.2 after vacating the First

Circuit’s judgment, the Plaintiffs are not prevailing parties.

Rule 43.2 provides that the respondent or appellee shall pay

costs if the Supreme Court reverses or vacates a judgment.

Buckhannon,

n.8. The Court’s decision to award

costs was a ministerial application of its rule and not a

considered analysis of prevailing party status. Therefore, the

Court’s decision, based on Rule 43.2, does not resolve the

question of whether the Plaintiffs are prevailing parties for

purposes of § 1988.

D. Final Judgment on the Merits

The State further argues that the “Plaintiffs did not obtain

any of the relief they requested because they did not succeed in

having the Act invalidated in the Supreme Court. . . . The

Supreme Court agreed with [the State] that the Act was not

unconstitutional, vacated the Court of Appeals’ judgment and

remanded for further judicial proceedings, which never occurred.”

Def. Mem. at 2 . Based on that interpretation of the proceedings

in this case, the State contends that the Plaintiffs are not

prevailing parties because they did not achieve a final judgment

15 on the merits after remand.

A plaintiff is not a prevailing party based on achieving

preliminary relief that is later reversed by a judgment on the

merits. Sole, 127 S . C t . at 2196. In Sole, Wyner, the

plaintiff, organized an event to be held at a state park in

Florida to form antiwar artwork by arranging nude individuals in a peace symbol. Id. at 2192. The state notified Wyner that

participants in the peace symbol would have to comply with

Florida’s “Bathing Suit Rule,” which precluded nudity. Id.

Wyner filed suit in federal court, alleging that her planned

artwork was protected by the First Amendment and seeking

immediate and permanent injunctive relief. Id. The district

court granted a preliminary injunction based upon Wyner’s

proposal that the peace symbol would be shielded from the public

by a fabric screen. Id. at 2193. When the display took place the next day, however, the participants formed the peace symbol

outside of the barrier that had been put in place by the state

and then, after the display, went into the water. Id.

Wyner continued her action in federal court, seeking a

permanent injunction against the “Bathing Suit Rule.” Id. The

district court, however, granted the state’s motion for summary

judgment, concluding that the conduct of the participants in the

peace symbol display demonstrated that the Rule was no broader

16 than necessary to protect the public. Id. The court

nevertheless awarded Wyner attorneys’ fees, as the prevailing

party, for the first part of the litigation in which she won the

preliminary injunction. Id.

The Supreme Court concluded that Wyner was not a prevailing

party because “her initial victory was ephemeral.” Id. at 2196. Although she first was allowed to proceed with the peace symbol

display, “[a]t the end of the fray, Florida’s Bathing Suit Rule

remained intact, and Wyner had gained no enduring change in the

legal relationship between herself and the state officials she

sued.” Id. (internal quotation marks omitted). The Court

expressly did not decide “whether, in the absence of a final

decision on the merits of a claim for permanent injunctive

relief, success in gaining a preliminary injunction may sometimes

warrant an award of counsel fees.” Id. In this case, the Plaintiffs achieved a permanent injunction

and declaratory judgment. Contrary to the State’s interpretation

of the Supreme Court’s opinion, the Court agreed that

constitutional requirements preclude a state from restricting

access to abortions that are necessary to preserve the health of

the mother. Ayotte,

. The Court also agreed that

in a small percentage of cases pregnant minors would need

abortions to protect their health. Id. at 328. The Court then

17 stated: “After finding an application or portion of a statute

unconstitutional, we must next ask: Would the legislature have

preferred what is left of its statute to no statute at all?” Id.

at 330.

The Court vacated the First Circuit’s judgment and remanded

the case to have the lower court divine the intent of the New Hampshire legislature and to fashion a remedy accordingly. The

First Circuit ordered the injunction to remain in place and

remanded the case to this court for further proceedings. Before

that process concluded, the New Hampshire legislature repealed

the Act.

Unlike the circumstances in Sole, in this case, the

Plaintiffs won a permanent injunction that remained in place

throughout the litigation. Neither the injunction nor the

declaratory judgment was reversed by a decision on the merits of the Plaintiffs’ case. Instead, the Supreme Court directed that

the lower court consider whether a more limited remedy was

available, based upon the underlying conclusion that the Act was

unconstitutional in at least some applications. A more limited

remedy, however, necessarily would have declared that the Act was

unconstitutional in at least some applications and would have

barred enforcement under those circumstances.

A plaintiff also cannot be a prevailing party based upon a

18 success that is reversed on appeal. Rossello-Gonzalez, 483 F.3d

at 5 . As is discussed above, although the Supreme Court vacated

the First Circuit’s judgment for the purpose of considering a

more limited remedy, the court-ordered injunction remained in

place. In addition, the Supreme Court’s decision, had the

process concluded before the New Hampshire legislature repealed the Act, at most would have limited the injunction and the

declaratory judgment but would not have eliminated either.

Therefore, unlike the circumstances in Rossello-Gonzalez, the

Plaintiffs’ initial victory was not reversed on appeal.

The State further argues that the Plaintiffs’ success was de

minimis at best because the Plaintiffs did not achieve a final

judgment that invalidated the Act. The State asserts that it did

not dispute that the Act could not be enforced in an

unconstitutional situation. Although the State may have conceded that the Act needed a health exception to pass constitutional

muster by the time the case reached the Supreme Court, that issue

was hotly contested in this court and on appeal to the First

Circuit. The Plaintiffs’ victory on that issue was central to

their case.

The injunction ordered by this court, which the First

Circuit continued in place after the Supreme Court’s decision,

prevented the State from enforcing the Act at all. The State’s

19 argument that it agreed not to enforce the Act in

unconstitutional applications does not undermine the broader

effect of the injunction. Therefore, the court-ordered

injunction altered the legal relationship of the parties and made

the Plaintiffs prevailing parties in this case. See, e.g.,

Dearmore v . City of Garland,

1 7 , 525 (5th Cir. 2008).

E. Whether to Award Fees

A prevailing party is entitled to fees under § 1988,

“‘unless special circumstances would render such an award

unjust.’” Torres-Rivera v . O’Neill-Cancel,

3 1 , 336

(1st Cir. 2008) (quoting Hensley v . Eckerhart,

2 4 , 429

(1983)). The court presumes that a prevailing party is entitled

to an award of fees. B . Fernandez & HNOS, Inc. v . Kellogg USA,

Inc.,

8 , 28 (1st Cir. 2008). Therefore, the party

opposing an award bears the burden of persuading the court not to

make an award.

The State argues that any success the Plaintiffs achieved

was too small to warrant an award of fees. For the reasons

discussed above, the court disagrees. The Plaintiffs, as

prevailing parties, are entitled to an award of reasonable

attorneys’ fees and costs.

20 Conclusion

For the foregoing reasons, the Plaintiffs’ motion for a

ruling that they are prevailing parties (document n o . 72) is

granted.

Before the parties address the issue of the amount of a

reasonable award of fees and costs, the court directs counsel to

meet and to use their best efforts to resolve this matter without

further application to the court, which would conserve the

parties’ time and resources and the resources of the court.

If the matter cannot be resolved by agreement, the

Plaintiffs shall file a motion for reasonable attorneys’ fees and

costs, supported by appropriate billing records, affidavits, and

any other necessary materials, on or before October 1, 2008. The

State shall file its response within thirty days of the date of

filing of the Plaintiffs’ motion.

SO ORDERED. / s / Joseph A . DiClerico, J r . Joseph A . DiClerico, J r . United States District Judge

August 1 2 , 2008

cc: Corinne L . Schiff, Esq. Dara Klassel, Esq. Jennifer Dalven, Esq. Martin P. Honigberg, Esq. Lawrence A . Vogelman, Esq. Laura E . B . Lombardi, Esq. Maureen D. Smith, Esq. Cathleen M . Mahoney, Esq. Erica Bodwell, Esq.

21