Ayotte okayed settling parent notification case

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.

Yet, as attorney general in April 2009, Ayotte approved spending $300,000 in taxpayer money to settle the case and pay the legal costs of the opposing party, after a U.S. Circuit Court of Appeals judge decided Planned Parenthood of Northern New England was the winner.

The state paid Planned Parenthood with two payments of $150,000 in April and August 2009. These payments quietly passed through the state's budget office and did not require the approval of the Legislature or Gov. John Lynch.

"After reviewing the court's order, this office determined that it was in the state's best interest to settle the attorneys' fees litigation in full through the payment of two installments over two fiscal years," wrote Deputy Attorney General Orville "Bud" Fitch.

The case has played a prominent role in Ayotte's campaign. Former Alaska governor Sarah Palin highlighted it when endorsing Ayotte last July.

"It's my honor to endorse a Granite State 'mama grizzly' who has broken barriers, fought off and locked up criminals, and battled all the way to the U.S. Supreme Court to protect the rights of New Hampshire parents - and won!" Palin wrote.

House Finance Committee Chairman Marjorie Smith, a Durham Democrat, said she knew the judge had ordered the state to negotiate a settlement but was unaware of the specifics.

"I didn't know the details," she said. "I didn't know them in this case or any other cases where this kind of settlement happened."

State law gives the attorney general exclusive authority to settle lawsuits without legislative approval.

Some in the anti-abortion rights community were angered to learn that taxpayer money was spent to pick up expenses for the opposition.

"Most people still don't know about this," said Kevin Smith, executive director of Cornerstone New Hampshire, a socially conservative interest group.

"The few I have talked to in the right-to-life community are furious. They think it's atrocious the state would settle with Planned Parenthood after the state had not lost in the Supreme Court."

Ayotte said the settlement was the state's only course because the Democratically led Legislature had repealed the parental notification law and Lynch signed it off the books in 2007.

On Aug. 12, 2008, U.S. District Court Judge Joseph DiClerico ruled Planned Parenthood had prevailed and ordered the two sides to negotiate terms.

"There wasn't any basis to defend a law that didn't exist anymore," Ayotte said 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."

State Rep. Bill O'Brien, a Mont Vernon Republican, said he was disappointed Ayotte didn't continue pressing the matter.

"I find that to be an unfortunate position she took," said O'Brien, a lawyer supporting GOP primary rival Ovide Lamontagne. "No one prevailed. Certainly the state didn't lose, the attorneys should not have been paid and $300,000 is a lot of money."

O'Brien said Ayotte was an excellent attorney general and should not be judged on the basis of one case.

"Looking back, it's understandable why this wasn't publicly known," O'Brien said. "If it had been, there would have been a whole bunch of us in staunch opposition to it."

Marjorie Smith, who supports abortion rights, raised a flag about the taxpayer cost of the lawsuit back in 2008.

"I was concerned about the incredible costs already involved in this matter," she said. "It's a legitimate expense. The state lost the case; they were obligated to pay." (next page »)