Michael Gaynor
Ticking time bomb: Kelly Ayotte's huge Ayotte v. Planned Parenthood problem
By Michael Gaynor
September 13, 2010

Ironically, the Republican establishment hoping to wrest control of the United States Senate from the Democrats backed the wrong candidate and it may cost them control of the Senate if she holds on to win the primary on September 14.

Will the whole truth about Ayotte v. Planned Parenthood, the case about the now repealed New Hampshire parental notification law, become generally known and scuttle former New Hampshire Attorney General Kelly Ayotte's campaign to become a United States Senator before or after the September 14 primary? (If AFTER, it may scuttle the Republican opportunity to wrest control of the United States Senate from the Democrats.)

Ayotte's $300,000 payout to Planned Parenthood involves Ayotte's professional judgment and integrity as well as abortion. First, as a public official, Ayotte had a duty to protect the state treasury and he law is clear: Planned Parenthood, under United States Supreme Court precedent, was not entitled to recover attorney fees and thus Ayotte provided a windfall to a controversial private organization for whom her boss, Governor Lynch, had filed an amicus brief in the case. Second, the timeline is troubling: Ayotte's appointment was set to expire in March; a new Democrat Governor and majority-Democrat appointments apparatus could have replaced her and instead she was reappointed, the $300,000 deal with Planned Parenthood was done, and Ayotte resigned a couple of months later to run for the Senate (probably not a spontaneous decision). Obvious questions of concern to voters include (1) whether that unnecessary settlement of legal fees consideration for reappointment and (2) whether Ayotte should have burdened have the state with a controversial legal fees payout or let her successor make the decision.

Ayotte inherited that case from her predecessor after he had appealed a loss in the federal district court to the United States Court of Appeals for the First Circuit. She pursued the appeal, lost, petitioned the United States Supreme Court for a writ of certiorari, received it, argued the case in the United States Supreme Court, won a remand on remedy in 2006, stood mute as the New Hampshire legislature repealed the law, mooting her case, rightly argued that under United States Supreme Court precedent (Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598 (2001)that Planned Parenthood was not entitled to attorney fees as "prevailing party, lost in the district court and chose not to appeal and instead negotiated a settlement under which the State of New Hampshire quietly paid $300,000 to Planned Parenthood that was not reported in the New Hampshire press until this month.

Pro-lifers, including Sarah Palin, backed Ayotte's candidacy, accepting Ayotte's claim to have "won" the case, and Palin even proclaimed Ayotte a "Mama Grizzly" and a "pro-life warrior."

A telltale sign suggested something was very wrong with this story: Dr. Douglas Black, who performs abortions at the Feminist Health Center in New Hampshire, displayed a large Kelly Ayotte for U.S. Senate in his yard.

Would a prominent abortionist do that for a true "pro-life warrior"?

A New Hampshire newspaper soon reported that $300,000 payment: www.nashuatelegraph.com/news/statenewengland/842363-227/in-09-ayotte-okd-settling-abortion-case.html.

Staff writer Kevin Landrigan provided this timeline:

"Jan. 8, 2006: U.S. Supreme Court rules states have the authority to adopt parental notification laws but an exception in N.H.'s law regarding the health of the mother is constitutionally flawed. The justices order the case back to the lower court for further review.

"July 5, 2007: Gov. John Lynch signs bill repealing parental notification law.

"July 12, 2007: U.S. District Court judge rules case is now moot in light of the law's repeal.

"Aug. 12, 2008: Judge Joseph DiClerico approves Planned Parenthood motion that as prevailing party it is entitled to have the state pay legal fees and orders both sides to negotiate.

"Sept. 19, 2008: Deputy Attorney General Orville 'Bud' Fitch e-mails Ayotte a note with an attachment titled, 'Planned Parenthood Legal Bill.' Ayotte asked current Attorney General Michael Delaney to release more than 14,000 e-mails from her years in the office, recovering many that were routinely deleted. DiClerico approves five extensions to give the parties time to come to an agreement.

"March 3, 2009: Gov. John Lynch nominates Ayotte to another term as attorney general that would run through March 31, 2013.

"March 16, 2009: Both sides submit to DiClerico that they have settled on costs the state will pay Planned Parenthood, terms not disclosed in the filing. He signs it a day later.

"April 1, 2009: Ayotte's office makes first request to Administrative Services Commissioner Linda Hodgdon for payment of the settlement, $300,000 in two equal amounts on April 1 and Aug. 1 of this year.

"July 7, 2009: Ayotte announces she will resign as attorney general to explore a run for the U.S. Senate."

Landrigan reported: "For months, Senate Republican candidate Kelly Ayotte's campaign has promoted that she 'won' a U.S. Supreme Court decision, defending a 2003 New Hampshire law requiring that a minor girl notify a parent before getting an abortion.

BUT...having conceded (quietly and wrongly) that Planned Parenthood was the "prevailing party," how can Ayotte claim she "won"?

Ayotte simply cannot have it both ways: either she "won" and Planned Parenthood was not a "prevailing party" or Planned Parenthood was a "prevailing party" and she lost.

The federal district court judge rejected the argument that Planned Parenthood was not the "prevailing party" under a United States Supreme Court case and Ayotte neglected to appeal.

"There wasn't any basis to defend a law that didn't exist anymore," Ayotte told Landrigan during a telephone interview. "The judge had ruled after the law was repealed. I had to follow the judge's ruling because there was no longer a basis on which to defend it."

That's ridiculous.

That federal district judge had not following Buckhannon, on which "liberal" Justices Ginsburg, Stevens, Souter and Breyer dissented, and instead ruled as though their broad interpretation of "prevailing party" had prevailed.

Instead of taking an appeal, Ayotte abandoned Buckhannon in favor of that deal.

This excerpt from the Scalia-Thomas concurrence in Buckhannon explains that Ayotte could not have "won" if Planned Parenthood" was the "prevailing party" and that a party that prevails in the non-legal sense does not necessarily qualify as a "prevailing party" in the legal sense:

"It is undoubtedly true, as the dissent points out by quoting a nonlegal dictionary...that the word 'prevailing' can have other meanings in other contexts: 'prevailing winds' are the winds that predominate, and the 'prevailing party' in an election is the party that wins the election. But when 'prevailing party' is used by courts or legislatures in the context of a lawsuit, it is a term of art. It has traditionally — and to my knowledge, prior to enactment of the first of the statutes at issue here, invariably — meant the party that wins the suit or obtains a finding (or an admission) of liability. Not the party that ultimately gets his way because his adversary dies before the suit comes to judgment; not the party that gets his way because circumstances so change that a victory on the legal point for the other side turns out to be a practical victory for him; and not the party that gets his way because the other side ceases (for whatever reason) its offensive conduct. If a nuisance suit is mooted because the defendant asphalt plant has gone bankrupt and ceased operations, one would not normally call the plaintiff the prevailing party. And it would make no difference, as far as the propriety of that characterization is concerned, if the plant did not go bankrupt but moved to a new location to avoid the expense of litigation. In one sense the plaintiff would have 'prevailed'; but he would not be the prevailing party in the lawsuit. Words that have acquired a specialized meaning in the legal context must be accorded their legal meaning."

Those four dissenters, in a Ginsburg opinion, conceded that "a court entry memorializing...victory" is necessary got a "prevailing party":

"The Court today holds that a plaintiff whose suit prompts the precise relief she seeks does not 'prevail,' and hence cannot obtain an award of attorney's fees, unless she also secures a court entry memorializing her victory. The entry need not be a judgment on the merits. Nor need there be any finding of wrongdoing. A court-approved settlement will do."

Planned Parenthood got $300,000 even though it did not have a court entry memorializing its "victory."

On April 25, 2009, then Attorney General Ayotte emailed a friend on her official email account about a potential Senate run.

On July 7, 2009, Ayotte resigned to consider running for the Senate seat to be vacated by Judd Gregg...as the winner of Ayotte v. Planned Parenthood, never mentioning her quiet settlement with Planned Parenthood.

Landrigan reported:

"Ayotte denied her decision to settle and pay legal costs had anything to do with seeking [Governor] Lynch's approval for another four-year term.

"'This was all about the judge's ruling, nothing more,' Ayotte said."


Ayotte refused to accept a federal appellate court ruling and went to the United States Supreme Court earlier in the case, but she was bound to accept an erroneous ruling of a federal district court judge?

Landrigan noted that Governor Lynch had publicly opposed Ayotte's decision to appeal and filed a court brief in support of Planned Parenthood's position. A settlement satisfactory to Planned Parenthood was wholly unrelated to his decision to reappoint her?

New Hampshire voters deserve better!

Abraham Lincoln was right: "You can fool some of the people all of the time, and all of the people some of the time, but you can not fool all of the people all of the time."

Ironically, the Republican establishment hoping to wrest control of the United States Senate from the Democrats backed the wrong candidate and it may cost them control of the Senate if she holds on to win the primary on September 14.

© Michael Gaynor


The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
(See RenewAmerica's publishing standards.)

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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)


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