William L. O'Brien v. New Hampshire Democratic Party & a.

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough - northern judicial district
No. 2013-043

WILLIAM L. O'BRIEN

v.

NEW HAMPSHIRE DEMOCRATIC PARTY & a.

Submitted: September 19, 2013
Opinion Issued: March 7, 2014

Mosca Law Office, of Manchester (Edward C. Mosca on the brief), for the
plaintiff.

Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the
brief), for the defendants.

BASSETT, J. The plaintiff, William L. O’Brien, appeals an order of the
Superior Court (Garfunkel, J.) granting the motion for summary judgment filed
by the defendants, the New Hampshire Democratic Party and Raymond C.
Buckley, Chairman of the New Hampshire Democratic Party, and denying the
plaintiff’s motion for summary judgment. The trial court ruled that the
plaintiff, a candidate for re-election to the New Hampshire House of
Representatives, and the subject of a prerecorded political message, did not
have standing to file an action for damages under RSA 664:14-a (2008), the so-
called “Robocall Statute.” Consequently, the trial court dismissed the action.
We affirm the trial court’s ruling.

The following facts are supported by the record or otherwise undisputed.
In 2010, the plaintiff, a member of the Republican Party, ran for re-election in
District 4 of Hillsborough County. District 4 had four seats in the New
Hampshire House of Representatives. The Democratic and Republican parties
held primaries in September 2010, which would result in the four candidates
from each party who received the most votes being placed on the general
election ballot. Five candidates were running for the Republican nominations,
and three candidates were running for the Democratic nominations. In light of
the fact that the Democratic party had fewer candidates than it had spaces on
the November ballot, the plaintiff sought “Democratic write-in votes in the
September 14, 2010, primary so that he could appear on the ballot in the
November cycle for elections as both (R)epublican and (D)emocrat.”

The day before the primary, the defendants delivered by telephone a
prerecorded political message to 394 households. The message stated:

This is State Democratic Chair Ray Buckley calling with the
important news that current Republican Bill O’Brien has asked to
join the Democratic Party’s ticket for the November elections.

If he succeeds tomorrow, we expect Bill O’Brien will embrace the
Democratic Party’s platform, support President Obama, national
health care reform and stand up for gay marriage, and protect a
woman’s right to choose and our agenda to move New Hampshire
and America forward.

Once again, we wanted you to know before you vote tomorrow that
Bill O’Brien has asked to join the Democratic ticket and our
progressive agenda. Thank you so much.

The plaintiff received the highest number of votes in the Republican
primary, winning a place on the general election ballot as a Republican. He did
not secure enough votes in the Democratic Primary to also appear on the
November ballot as a Democrat. In the general election, the plaintiff won a seat
in the House of Representatives.

On September 15, 2010, the plaintiff filed a complaint with the office of
the Attorney General, alleging that the defendants violated the Robocall
Statute, because they were “responsible for calls containing a prerecorded
political message that lacked the statutorily required disclosures.” In August
2011, the Democratic Party entered into a consent agreement with the attorney
general “to resolve the State’s claims for an alleged violation of the . . . statute,

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RSA 664:14-a.” The Party paid a $5,000 fine, but did not admit to a violation
of the statute.

In September 2011, the plaintiff filed this action alleging that the
defendants delivered “false prerecorded political messages” in violation of the
Robocall Statute because the “audio message failed to contain” the required
disclosures. RSA 664:14-a, II. Specifically, the plaintiff alleged that the
message failed to contain either the name of the person or organization paying
for the delivery of the message, or the name of the fiscal agent. The plaintiff
did not allege that he had sustained an injury as a result of the putative
statutory violation. Nor did he allege any quantifiable damages. The plaintiff
sought liquidated damages in the amount of $1,182,000, which he calculated
by multiplying $1,000 for each of the 394 phone calls, and then trebling it
because he alleged that the defendants “willfully or knowingly” violated the
statute.

The defendants moved for summary judgment, arguing that the plaintiff
lacked standing to bring a private right of action because the Robocall Statute
was intended to protect the privacy of voters, rather than the persons
mentioned in the message, and because the plaintiff failed to allege a legally
cognizable injury. The defendants also maintained that they fully complied
with the statutory disclosure requirements. The plaintiff filed a cross-motion
for summary judgment, contending that there was no genuine issue of material
fact as to whether the statute had been violated, and that, therefore, he, as the
subject of the message, was entitled to an award of damages.

The trial court found that the language in the Robocall Statute relating to
standing was ambiguous. After examining the legislative history, it concluded
that the legislature had enacted the Robocall Statute to “protect the privacy of
persons receiving these automated phone calls, not persons mentioned in the
phone message.” Accordingly, the court dismissed the action, ruling that the
plaintiff, as the subject of the message, lacked standing.

On appeal, the plaintiff argues that the trial court erred in dismissing the
lawsuit and denying his motion for summary judgment. He contends that the
plain language of the statute, which grants standing to “any person injured,” is
broad and intended to include candidates who are the subject of a prerecorded
political message. Alternatively, he claims that, even if the statute is deemed to
be ambiguous, the legislative history does not support the trial court’s
interpretation. He argues that, because the subjects of the prerecorded
political messages “typically would have far greater motivation and capacity to
bring lawsuits when the statute is violated,” the subjects of those messages —
as well as the recipients — have standing. Finally, he contends that, because
he was the subject of a prerecorded message that violated the statute, he

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necessarily has standing, and that he is not required by the statute to allege
that he sustained an injury caused by the violation.

The defendants counter that they did not violate the statute. They also
argue that the trial court correctly interpreted the statute since its purpose is
to inform recipients of the origin of the calls, and not to protect against
electioneering. Further, they contend that the plaintiff “was injured by neither
the robocalls nor their allegedly unattributed nature, and therefore can prove
neither standing nor liability.”

“In reviewing the trial court’s grant of summary judgment, we consider
the affidavits and other evidence, and all inferences properly drawn from them,
in the light most favorable to the non-moving party.” Dichiara v. Sanborn
Reg’l. Sch. Dist., 165 N.H. ____, ____, 82 A.3d 225, 227 (2013). “If our review of
that evidence discloses no genuine issue of material fact, and if the moving
party is entitled to judgment as a matter of law, we will affirm the grant of
summary judgment.” Id. “We review the trial court’s application of the law to
the facts de novo.” Id.

“In evaluating whether a party has standing to sue, we focus on whether
the party suffered a legal injury against which the law was designed to protect.”
Libertarian Party of N.H. v. Sec’y of State, 158 N.H. 194, 195 (2008) (quotation
omitted). “The requirement that a party demonstrate harm to maintain a legal
challenge rests upon the constitutional principle that the judicial power
ordinarily does not include the power to issue advisory opinions.” Id. at 195-
196. Accordingly, the determination of whether the plaintiff has standing to
sue under the Robocall Statute “is a matter of statutory construction.” In re
Campaign for Ratepayers’ Rights, 162 N.H. 245, 250 (2011).

The interpretation and application of a statute presents a question of
law, which we review de novo. Deyeso v. Cavadi, 165 N.H. 76, 79 (2013). In
matters of statutory interpretation, we are the final arbiters of the legislature’s
intent as expressed in the words of the statute considered as a whole.
LaChance v. U.S. Smokeless Tobacco Co., 156 N.H. 88, 93 (2007). When
interpreting statutes, we ascribe the plain and ordinary meanings to the words
used. Id. “We interpret statutes to give meaning to every word and phrase.”
Chase Home for Children v. N.H. Div. for Children, Youth & Families, 162 N.H.
720, 733 (2011). “Our goal is to apply statutes in light of the legislature’s
intent in enacting them and in light of the policy sought to be advanced by the
entire statutory scheme.” See State v. Lathrop, 164 N.H. 468, 469 (2012).

The Robocall Statute provides that:

No person shall deliver or knowingly cause to be delivered a
prerecorded political message unless the message contains, or a

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 live operator provides, within the first 30 seconds of the message,
the following information:

(a) The name of the candidate or of any organization or
organizations the person is calling on behalf of.

(b) The name of the person or organization paying for the
delivery of the message and the name of the fiscal agent, if
applicable.

RSA 664:14-a, II. A “prerecorded political message” is a “prerecorded audio
message delivered by telephone by: (a) A candidate or political committee; or
(b) Any person when the content of the message expressly or implicitly
advocates the success or defeat of any party, measure, or person at any
election, or contains information about any candidate or party.” RSA 664:14-a,
I. If a court finds for a plaintiff, the Robocall Statute allows the plaintiff to
recover “in the amount of actual damages or $1,000, whichever is greater. If
the court finds that the act or practice was a willful or knowing violation . . . it
shall award as much as 3 times, but not less than 2 times, such amount.”
RSA 664:14, IV(b).

The Robocall Statute confers standing to file a private action upon a
specific cohort of persons: “[a]ny person injured by another’s violation of this
section may bring an action for damages and for such equitable relief,
including an injunction, as the court deems necessary and proper.” RSA
664:14-a, IV(b) (emphasis added). By its very terms, this provision requires a
plaintiff to allege each of the following three elements in order to have standing:
(1) a violation of the statute; (2) an injury; and (3) that the violation of the
statute caused the injury.

The plaintiff contends that, because the Robocall Statute provides for a
minimum of recovery in the amount of $1,000 per violation, a violation of the
statute is, in and of itself, sufficient to allow the plaintiff to recover. However,
in so arguing, the plaintiff mistakenly conflates damages with injury. The
provision establishing statutory damages does not absolve the plaintiff from
satisfying the requirement that he allege injury and causation; rather, it
relieves him only of the requirement to plead the amount of his damages. The
plain language of the statute requires that, in order to have standing, a plaintiff
allege both an injury and causation, i.e. that the statutory violation caused him
actual injury.

Moreover, a review of the entire statutory scheme relating to elections
and political advertising supports this conclusion. “[W]here the legislature
uses different language in related statutes, we assume that the legislature
intended something different.” In re Guardianship of Williams, 159 N.H. 318,

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323 (2009) (emphasis omitted). “[T]he legislature’s choice of language is
deemed to be meaningful.” State v. Lukas, 164 N.H. 693, 695 (2013)
(quotation omitted). Notably, under paragraph IV(a) of the Robocall Statute,
the attorney general is authorized to levy a civil penalty of $5,000 for each
violation of the statute, without having to demonstrate either injury or
causation. See RSA 664:14-a, IV(a) (“A violation of this section shall result in a
civil penalty of $5,000 per violation.”). Further, RSA 664:18 (2008) provides
that “[a]ny candidate or voter may make complaint in writing to the attorney
general of any violation of any of the provisions of this chapter.” Therefore,
given that the legislature established a different scheme for administrative
remedies, we assume that the legislature intended that there be an actual
difference: that plaintiffs seeking civil relief are required to allege both an
injury and causation.

We are not free to ignore the relevant standing distinctions that the
legislature has crafted. The doctrine of standing “serves to prevent the judicial
process from being used to usurp the powers of the political branches.”
Hollingsworth v. Perry, 133 S. Ct. 2652, 2661 (2013) (quotation omitted). “In
light of this overriding and time-honored concern about keeping the Judiciary’s
power within its proper constitutional sphere, we must put aside the natural
urge to proceed directly to the merits of an important dispute and to ‘settle’ it
for the sake of convenience and efficiency.” Id. (quotation and brackets
omitted). Accordingly, in order to vest the judicial branch with jurisdiction, the
plaintiff must allege all three of the elements that the legislature chose to
include in paragraph IV(b).

Indeed, we have previously denied a plaintiff standing when the statutory
language required a plaintiff to allege an injury and causation, but the plaintiff
failed to do so. See generally State v. Hynes, 159 N.H. 187, 196 (2009) (finding
that defendant failed “to explain exactly how his threatened [Consumer
Protection Act] claim fits within the statutory language conferring private-party
standing upon only those ‘injured by another’s use of any method, act or
practice declared unlawful.’”); Appeal of Richards, 134 N.H. 148, 155 (1991)
(finding no standing under RSA chapter 541 because “[t]he appealing
stockholders have not alleged a direct injury as a result of the PUC’s decision
approving the rate plan.”).

With this legal framework in mind, we turn to the facts of this case. The
plaintiff has not alleged that he suffered any injury as a result of the
defendants’ alleged failure to comply with the disclosure requirements of the
statute. The plaintiff won both in the primary, and in the general election. In
fact, in his reply brief, the plaintiff conceded that he has not sustained an
injury attributable to the purported violation. In response to the defendants’
assertion that he had neither sustained nor alleged an injury caused by the
purported violation of the statute, the plaintiff candidly acknowledged, “[t]hat is

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only true if injury is defined as not including being the subject of a robo-call
that does not provide the statutorily required disclosures.” In essence, the
plaintiff argues that he has standing to sue merely because he is the subject of
a prerecorded political message that did not include the required disclosures.
We reject this argument. The adoption of the construction advanced by the
plaintiff would render meaningless the word “injured,” and improperly conflate
a statutory violation with an injury. This interpretation would contravene the
principle of statutory construction that meaning was intended by every word
used by the legislature, and that effect must be given to every word and clause.
See Chase Home for Children, 162 N.H. at 733.

In support of his motion for summary judgment, the plaintiff submitted
the affidavit of a voter, Sandra Kent, who stated that she received the
prerecorded message, and was “confused about the legitimacy of the message.”
Kent did not recall the substance of the phone call; however, she was confused
because the prerecorded political message “said that [the plaintiff] would be
running on the Democrat[ic] ticket.” She stated that, “The message seemed to
make claims about [the plaintiff] that did not make sense to me based on what
I know about him.” The plaintiff argued that the Kent affidavit alleged a
sufficient injury to give the plaintiff standing.

However, Kent’s confusion flowed from the political content of the
message, rather than from the alleged absence of the required disclosure. Kent
stated that she was confused because she did not understand why the message
said that the plaintiff, a Republican, was requesting to be on the Democratic
ticket. Because the prerecorded political message stated that it was from
“State Democratic Chair Ray Buckley,” the message would have produced the
same confusion even if the message had included the “missing” information
that the plaintiff contends that it should have included, i.e. the name of the
person or entity paying for the delivery of the message, and the fiscal agent.
The additional information would not have clarified whether the plaintiff
actually wanted to join the Democratic Party, nor whether he had asked the
Democrats to deliver the message. Kent’s confusion would have persisted.
Indeed, we note that voter confusion attributable to the political content of
robocalls or political advertising is not uncommon. See Lieffring, Note, First
Amendment and the Right to Lie: Regulating Knowingly False Campaign
Speech After United States v. Alvarez, 97 Minn. L. Rev. 1047, 1064 (2013)
(citing a recent study where more than nine in ten voters said they frequently
encountered some misleading information in campaign speech). Moreover,
even if we were to assume that Kent’s confusion is a cognizable injury within
the meaning of the Robocall Statute, it is an injury sustained by Kent, not by
the plaintiff. Therefore, we hold that, having failed to allege that he sustained
an injury caused by a statutory violation, the plaintiff does not have standing.

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 Because we hold that the plaintiff did not allege an injury flowing from
the alleged statutory violation, and therefore, that he does not have standing,
we need not decide whether the trial court was correct when it held that a
candidate, as the subject of a prerecorded message — not the recipient of a
robocall — cannot be “a person injured” within the meaning of the statute. We
observe, however, that the differing interpretations of the statute advanced by
the parties, as well as the ruling of the trial court, suggest that whether a
candidate has standing to file a private action under the Robocall Statute is,
arguably, unclear. Accordingly, we invite the legislature to clarify whether
candidates, or any other persons or entities that are the subject of prerecorded
political messages — in addition to the recipients of the phone calls — have
standing to bring a private right of action under the Robocall Statute.

Finally, we note that a candidate who is the subject of a robocall that
does not comply with statutory disclosure requirements — yet who does not
allege an injury resulting from the violation — is not without recourse. The
Robocall Statute specifically provides that a candidate who believes that there
has been a violation of the statute may file a complaint in writing with the
attorney general. See RSA 664:14-a, IV(a). Indeed, that is exactly what the
plaintiff did in this case.

Affirmed.

DALIANIS, C.J., and HICKS and CONBOY, JJ., concurred.

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