The cost of the buffer zone law, so far

A postscript to yesterday’s New Hampshire House committee vote on buffer zone repeal, HB 589: Rep. Gary Hopper (R-Weare) read aloud to his fellow committee members a communication he had received from Deputy Attorney General Ann Rice in response to a query from him about what the state has spent so far defending the buffer zone law.

He read the letter aloud in a meeting that was open to the public; he posted it today on Facebook; his correspondent is a state employee; the topic was state business. Sounds like quotable stuff to me. So here is Deputy AG Rice to Rep. Hopper, as posted by Rep. Hopper this morning:

…So far, the Department has devoted 313.75 hours of attorney time in defending the buffer zone law, which equates to $43,611.25 (313.75 hours x $139.00/hr). We do not track the time that support staff devotes to any particular case so I cannot provide a cost for that. As far as future costs, that will depend on what the plaintiffs chose to do. If they appeal the decision to the US Supreme Court, we would file an objection, which I would estimate would involve approximately 40 hours of attorney time at $139/hr, or $5560 in cost. If the US Supreme Court accepted the appeal, the Department would likely devote several hundred hours on the appeal. I am unable to better estimate the amount of time required.

The plaintiffs could opt to refrain from further litigation unless and until a buffer zone is actually being considered. At this point, I cannot estimate if or when that would occur, or the amount of time that this office would spend on the litigation.

Recall that in the Supreme Court’s McCullen v. Coakley decision overturning a Massachusetts buffer zone law, taxpayers not only covered the cost for the state to defend an ultimately unconstitutional law but were later on the hook for $1.2 million in plaintiffs’ attorneys’ fees.

I’m sure Massachusetts’ costs started small. Look where they ended up.


This Sunday, 9/20: Eleanor McCullen speaking in Dover NH

Eleanor McCullen (Alliance Defending Freedom photo)
Eleanor McCullen (Alliance Defending Freedom photo)

This is short notice, but worth sharing: Eleanor McCullen, the plaintiff in the lawsuit that invalidated Massachusetts’ buffer zone law last year, is coming to New Hampshire. She’ll speak at St. Joseph Church in Dover, New Hampshire tomorrow, Sunday, September 20 at 5 p.m. Light refreshments will be offered.

The church is on Central Avenue in Dover. If you attend, I’d love to see your photos and hear your comments. You can contact me via Facebook.

Whether or not you can go to hear Eleanor, take a look at her web site: hopehelplove.com. My thanks to Nancy Sirois for bringing this event and web site to my attention.

 

Two years ago: the first hint of a NH buffer zone

Peaceful prayer witnesses outside Concord's Feminist Health Center
Still free to be on the sidewalk, for now: peaceful witness outside a Concord abortion facility.

As a House-passed buffer zone repeal bill makes its way through the New Hampshire Senate (where its prospects are uncertain), I recall a post on this blog two years ago when buffer zones first made their way into public discussion in the Granite State.

From April 2013: PPNNE is having “conversations” about no-protest zones outside NH facilities 

The appellate court decision referred to by the PPNNE rep I quoted was of course McCullen v. Coakley, which when later appealed to the U.S. Supreme Court left the Massachusetts buffer zone law in ruins. The Burlington zone she mentioned? Gone. Ditto for one in Portland, Maine.

So much for using appellate decisions to impose censorship zones.

Today, two years later, buffer zone supporters are fighting repeal while backing away from their own handiwork – a neat trick, really. In my thirty years of keeping an eye on the State House, I have never seen anything like this.

The Sunday afternoon team at the halfway point of the Fall 2014 campaign.
A 40DFL team outside Greenland, NH’s abortion facility.

A PPNNE lobbyist at a recent Senate hearing used a Pennsylvania decision from last month to bolster her opposition to repeal. (Yes, another appellate ruling. Some lessons aren’t easily absorbed.) That case is Bruni v. Bader. The federal district court ruled that plaintiffs were unlikely to prevail on the merits and therefore their request for an injunction against a Pittsburgh buffer zone was denied.

I’m not an attorney, I haven’t yet read the text of that decision, and none of the news coverage answers this question: is there a record in Pittsburgh of police action enforcing existing pre-buffer laws relating to trespassing, loitering, harassment, or even parking violations? If there isn’t, then Bruni is a mighty slim reed for New Hampshire buffer supporters to lean on.

Looking back on the April 2013 blog post, it’s interesting to consider just how fast the New Hampshire buffer zone law moved from “conversation” to done deal. The conversations had obviously been going on long before they became public. The same is no doubt true for the current legislative “conversations” about revisiting the existing law.  Let’s hope the people who want straight repeal are equally committed to such private conversations with policymakers.


 

NH buffer zone repeal bill has zone backers looking for cover

The yet-unenforced New Hampshire buffer zone law rammed through the legislature by abortion advocates last year has become politically and legally toxic – so much so that its biggest boosters are asking legislators to fix the mess they made last year. Senator Donna Soucy and Planned Parenthood lobbyist Jennifer Frizzell testified before the House Judiciary Committee last week, arguing that any flaws in the law can be fixed.

The fifteen co-sponsors of House Bill 403 have a better idea: repeal the law altogether.

Supporters of the repeal bill filled the Judiciary Committee’s hearing room a few days ago, and so many of them wanted to testify that the morning’s hearing was carried over to the afternoon. Chief sponsor Kathy Souza of Manchester called the buffer law law “an affront to our state and our state’s motto and our Constitution,”  and she reminded the committee that with the Reddy v. Foster lawsuit pending, “it could cost the state a lot of money quite unnecessarily.”


 

Still no police logs to back up claims that a buffer is needed

Souza (not to be confused with Sen. Soucy) of Manchester arrived at the hearing with an email she had received within the hour from the Manchester police department, reporting the most recent logs available on police calls to the Manchester Planned Parenthood facility. As was the case with earlier logs submitted into testimony when the buffer zone was moving towards passage, these logs showed no evidence of violence or even disruptive behavior resulting in an arrest at that location.

Souza read aloud from the logs she had just received about calls to 24 Pennacook Street: “alarm activation, forgery, sex assault, parking complaints, and an accident. Nothing to do with protesters.”

Frizzell explained the lack of police reports by saying “Moving forward with a complaint requires giving up one’s own privacy … Clearly, we had many patients that wanted to be part of contributing to a solution who weren’t ready to press charges with law enforcement.”

The Supreme Court & the Massachusetts case

As for the Supreme Court’s unanimous decision throwing out the Massachusetts buffer zone law on which the New Hampshire law is based, neither Soucy nor Frizzell find it persuasive. Soucy, chief sponsor of the buffer zone bill, said that when she introduced what became the law, she was “very mindful of the fact that there was a U.S. Supreme Court appeal [McCullen v. Coakley] pending regarding the Massachusetts law.”

She denies that the New Hampshire law is similar enough to the unconstitutional Massachusetts law, specifying two differences: the New Hampshire law has an “up to 25-foot” zone, where Massachusetts had a 35-foot buffer; and New Hampshire’s law has a “posting” requirement whereby the law isn’t enforced in the absence of buffer-zone signs around abortion facilities.

Soucy, an attorney, omitted from her testimony the principal reason the Court gave for striking down the Massachusetts law. It had nothing to do with signs or the size of the zone. The Massachusetts law could not survive because it impermissibly infringed on First Amendment rights. From Justice Roberts’s decision in McCullen: “…here the Commonwealth has pursued those interests [of balancing the rights of patients and demonstrators] by the extreme step of closing a substantial portion of a tradi­tional public forum to all speakers. It has done so without seriously addressing the problem through alternatives that leave the forum open for its time-honored purposes. The Commonwealth may not do that consistent with the First Amendment.”

Which brings us back to the police logs in Manchester and all the other communities hosting New Hampshire abortion providers: within the past few years, there is no police evidence of a pattern of threats or intimidation at any New Hampshire facility. In order for the New Hampshire buffer zone law to be constitutional in accordance with Justice Roberts’s decision, there must first be a documented problem with demonstrators at an abortion facility. Then, before the draconian step of nullifying the First Amendment in the vicinity of an abortion facility, existing less-drastic laws must be used first: laws against disorderly conduct, for example.

“Flies in the face of the First Amendment”

“This [law] not only flies in the face of the First Amendment; it also violates our [New Hampshire] constitution,” Souza testified. “Our constitution takes very seriously our First Amendment rights. We’re the Live Free or Die state. I think it’s a blight on our legislative landscape to have a bill that was in essence ruled a violation of our First Amendment rights. If we think we’re Live Free or Die, we should make it a priority to get this law off our books.”

Rep. Al Baldasaro of Londonderry agreed, calling repeal “a no-brainer. When somebody is out there at a rally, not assaulting anyone, not causing damage, not being out in the street so they’re breaking the laws, I think we owe it to [them] not [to] shut down anyone’s right to protest in those areas, whether you support abortions or not.”

Rep. Dan Itse of Fremont testified in favor of repeal, and he faced questioning from committee member Rep. Paul Berch, who asked “Do you support people being intimidated when they are performing activities that are legal?” “Of course not,” replied Itse. “And I would suspect we have laws against disturbing the public peace. If our laws regarding disturbing the public peace are not adequate, I suggest we make them adequate.”

Rep. JR Hoell of Dunbarton brought up a point not addressed by other speakers: “We violated our [state] constitution on quorum rules” on a tabling motion for the buffer zone bill before it eventually passed. “This bill should never have become law.” Hoell said that the quorum problem, coupled with the lawsuit against the buffer zone, makes repeal “a slam-dunk.”

“I didn’t think that you would even consider not repealing this bill,” said Rep. Jeanine Notter of Merrimack to the committee, “after hearing about the lawsuit and how much it could cost the state – just please do the right thing and just repeal this buffer zone.”

Buffer zone sponsor: “I’d ask you to work with us”

All the speakers at the hearing, pro- and anti-repeal, acknowledged the current stay that is preventing enforcement of New Hampshire’s buffer zone law. Repeal proponents consider this a good reason for getting rid of the law, while those opposing repeal are now suggesting that the delay might allow for tinkering with the law.

Frizzell to the committee: “It does seem to me and to Planned Parenthood that the law on the books as it sits under injunction is not doing any good addressing the concerns that we had where we brought forward. So in your deliberation of whether to let it stand, or whether to repeal it, I would be interested in talking to the committee about some more pragmatic ways that New Hampshire’s law could be enforced.” Anything but repeal, she seemed to be saying.

Soucy concurred. “Repeal of this law in and of itself is a mistake. To the extent there is concern over a particular aspect of the bill, I’d ask you to work with those who continue to face threatening and intimidation. The problem that I brought before this legislature last year is an ongoing problem. It’s one that persists.”

Committee action expected within a week

Committee chairman Robert Rowe expects a committee vote on the bill before the House break the last week of February. Repeal opponents are likely to continue lobbying for adjustments to the existing law. What they didn’t lobby for at the hearing: leaving the law alone. We have the seven plaintiffs in Reddy v. Foster to thank for that.


Massachusetts to pay $1.2 million to buffer zone attorneys

The state of Massachusetts must pay the attorneys for plaintiffs in its buffer zone case $1.24 million, under terms of a settlement agreement. This has implications for New Hampshire’s buffer zone law, modeled on the Massachusetts law struck down in June by the U.S. Supreme Court.

Will New Hampshire officials have to hit up the taxpayers for a similar settlement, or will they do the sensible thing and drop the case? Will the New Hampshire House and Senate make that decision for us by repealing the buffer zone law?


A reliable source has given me the details of the settlement agreement, which was approved by the U.S. District Court for the District of Massachusetts on December 15, 2014.  The State of Massachusetts has 90 days to make the payments totaling $1.24 million.

Eleanor McCullen (Alliance Defending Freedom photo)
Eleanor McCullen (Alliance Defending Freedom photo)

Eleanor McCullen and six other plaintiffs filed suit in 2008 challenging the constitutionality of Massachusetts’ buffer zone law on First Amendment grounds. In June 2014, the U.S. Supreme Court agreed that a law restricting First Amendment rights outside abortion facilities could not be upheld before the state first enforced less drastic remedies. This parallels the New Hampshire law, which was signed by Governor Maggie Hassan after the Supreme Court ruled in the McCullen case. Operators of New Hampshire abortion facilities were unable to produce any recent police records about peaceful pro-life witnesses violating any law by praying outside facilities.

Seven Massachusetts plaintiffs prevailed, and now Massachusetts reportedly owes their attorneys more than a million dollars. New Hampshire’s law is being challenged by seven plaintiffs, too. How much will our state owe their attorneys before giving up on the law?

The New Hampshire case, Reddy v. Foster, has been in a strange place ever since Sister Mary Rose Reddy and her fellow plaintiffs brought suit. A federal district court judge issued a temporary restraining order against enforcement of the law. Attorney General Joseph Foster, who is supposed to defend the law, agreed not to enforce it for now. Abortion providers agreed not to put up “buffer zone” signs at their facilities. The state holds that since the law isn’t being enforced, the plaintiffs have no case. The judge has yet to rule on that issue.

Perhaps the judge is waiting for January, when the legislature will have a buffer zone repeal bill to consider, filed by Rep. Kathy Souza (R-Manchester). Once the law is repealed, the case will go away.

Instead of being strictly a “social” issue, the buffer zone law is now a fiscal concern. Let’s see how many New Hampshire legislators want to pay – or rather, make YOU pay – to keep the law in place.