2008-371, STATE OF NH v. DANIEL P. HYNES

The defendant, Daniel P. Hynes, appeals his conviction after a

brief and orally, for the defendant. Christopher M. Johnson, chief appellate defender, of Concord, on the

general, on the brief and orally), for the State. Kelly A. Ayotte, attorney general (Elizabeth J. Baker, assistant attorney to press. Errors may be reported by E-mail at the following address:

page is: http://www.courts.state.nh.us/supreme. THE STATE OF NEW HAMPSHIRE

No. 2008-371 editorial errors in order that corrections may be made before the opinion goes Hillsborough-northern judicial district Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as consideration of five hundred dollars received, the defendant would discharge you may have your attorney contact me.

p. 2 Nardi’s real estate business office. The documents indicated that, in costs. If you object or otherwise wish to discuss the above matter prepared settlement documents reflecting the agreement, which he faxed to and the defendant accepted, $500 to settle the matter. The defendant then

is a fair amount as it is the minimum that would be awarded for

trade practice, ill-gotten gains, punitive damages, attorney fees and

salon and had found it, along with its prices, on the Internet. Nardi offered,

amount of $1000 in order to avoid litigation . . . . I believe $1000

injunction, damages for discrimination, damages for the unfair will seek all remedies available including but not limited to an the ensuing conversation, the defendant indicated he was not a client of the potential removal to Superior Court. If such action is necessary I Nardi, called the defendant to see if they could “work out a settlement.” During At some point after receiving the letter, Lambert’s husband, Bernard

The letter was signed “Daniel P. Hynes Esq.”

and file in Superior Court. In addition, I demand payment in the Commission for Human Rights while reserving all rights to remove comply I will be forced to file a complaint with the State and $12 for a children [ your business charges $25 for haircuts but $18 for a Men’s cut

including filing with the State Commission for Human Rights and . . . . Should you fail to comply additional steps will be taken

the length of their hair or the amount of time it would take. and charge customers in a more appropriate manner, such as by

charging for haircuts based upon age and gender. Should you not I demand that you immediately cease your unlawful practice of different types of haircuts. It has been brought to my attention that violation of RSA chapter 358-A (2009). The letter went on to state: in violation of RSA 354-A:17 (2009), and constituted an unfair trade practice in admission to the New Hampshire Bar, stated: The letter claimed that the salon’s practice was both unlawfully discriminatory

Accordingly, I demand you immediately cease this unfair pricing based on gender and age is discrimination in violation of the law.

I am writing in regards to your company’s policy of pricing for

salon). The letter, written on “Daniel P. Hynes Esq.” letterhead and noting his to Claudia Lambert, the owner of Claudia’s Signature Salon in Concord (the p. 3 II(i).

career, financial condition, reputation, or personal relationships.” RSA 637:5,

bring suit against the salon under RSA chapter 354-A (2009).

other person with respect to that person’s health, safety, business, calling, arrested and charged with theft by extortion. not in itself substantially benefit him but which would harm substantially any $500 to the defendant. After taking possession of the $500, the defendant was extortion occurs when a person threatens to “[d]o any other act which would alleged discrimination, and that this provision was satisfied by his standing to kind of non-pecuniary satisfaction he would receive by ending the salon’s In addition, he asserts that the term “substantially benefit” encompasses the

address each argument in turn.

had sent out. The investigator executed the settlement agreement, providing charged the defendant. RSA 637:5, II(a)-(i). The catch-all provision states that

because none of its eight specific provisions includes a threat to file a lawsuit.

Finally, he argues that the trial court improperly instructed the jury. We

currently in negotiations with other attorneys in response to similar letters he which extortion occurs, as well as a catch-all provision, under which the State he, personally, would keep the $500 he received from Nardi, and that he was defendant again stated that he did not have a client. He further indicated that The defendant argues that RSA 637:5, II does not prohibit his conduct

he asserts that RSA 637:5, II(i) is unconstitutionally vague and overbroad. stood to substantially benefit from the threatened conduct. In the alternative, his conduct, either because it does not include a threat to sue, or because he to deprive him thereof.” The statute provides eight specific circumstances in exercises control over the property of another by extortion and with a purpose meeting posing as Lambert’s business partner. At the settlement meeting, the RSA 637:5, I (2007) provides: “A person is guilty of theft as he obtains or

II. Scope of RSA 637:5, II(i)

On appeal, the defendant argues that RSA 637:5, II(i) does not prohibit

subsequently convicted. This appeal followed. Office, and it was determined that an investigator would attend the settlement unconstitutional. The trial court denied the motion, and the defendant was is not prohibited by RSA 637:5, II(i), and, even if it is, the statute is Prior to trial, the defendant moved to dismiss, arguing that his conduct

Nardi subsequently contacted the New Hampshire Attorney General’s

practice. A meeting was scheduled to execute the documents. the salon from any claims and demands regarding its alleged discriminatory potential harm to the person threatened as well as its potential benefit to the

p. 4 the substance of the threat. Rather, it requires us to consider both the threat’s

637:5, II(i) does not simply evaluate the type of threat that was made; that is, Unlike the other provisions within RSA 637:5, II, the plain language of RSA the inherent hallmarks of an extortionate act, our inquiry does not end there.

coercion.”

that simply threatening to institute a lawsuit does not, standing alone, carry

obtaining something or compelling some action by illegal means, as by force or

give rise to the kind of intimidation that constitutes extortion.” While we agree not fall within the ambit of the narrow crime of common law extortion.” purpose of the statute in part because the “threat of civil litigation . . . does not

is due, or the fee is not yet due.”

disagree. individuals and public officials, and made criminal “the act or practice of

falls outside the core purpose of the extortion statute, by the statute. In support of this assertion, he argues that this type of threat threatened suit, because it does not constitute the type of harm contemplated enacted extortion statutes to criminalize conduct that was extortionate but did Here, the defendant suggests that a threat to sue is inconsistent with the

(2007). public officer, under color of his office, where no fee is due, or not so large a fee of property by means of threats,” O’Flynn, 126 N.H. at 709; see RSA 637:5, II legislature has enlarged the scope of extortion to include “unlawful acquisitions

Id. (quotations and brackets omitted). In New Hampshire, the

defendant also argues that the rule of lenity supports his interpretation. We A.2d 546 (Md. 2008). This statutory form of extortion applied to both private Rendelman v. State, 927 A.2d 468, 474 (Md. Ct. Spec. App. 2007), aff’d, 947

excluding any threat to sue, regardless of whether there is a basis for the (quotation and brackets omitted). “Beginning in the 19th century, many states

isolation. At common law, “extortion consisted of the corrupt taking of a fee by a

not see fit to include.

threat to sue in the statute would chill the right of access to the courts. The

The defendant first asserts that we should interpret RSA 637:5, II(i) as

Id.

interpret a statute in the context of the overall statutory scheme and not in

will not consider what the legislature might have said or add language it did Id. at 422-23. We interpret legislative intent from the statute as written and where possible, we apply the plain and ordinary meaning to the words used. as a whole. Id. at 422. We first examine the language of the statute, and, of the intent of the legislature as expressed in the words of a statute considered 421, 423 (2008). In matters of statutory interpretation, we are the final arbiter presents a question of law that we review de novo. State v. Gallagher, 157 N.H. Resolution of this issue requires that we interpret RSA 637:5, II(i), which these terms are interchangeable. p. 5 threat, but, rather, only that there be substantial harm. We do not believe that

Furthermore, RSA 637:5, II(i) does not require there to be fear as a result of the

threat, both to the person making it and to its intended recipient. Rather, as discussed above, it more broadly considers the consequences of the a determinative factor. RSA 637:5, II(i) does not make such a distinction.

there is no basis for the threatened suit. wrongful objective – the taking of property. As such, the type of threat made is

the threat to file a civil action.

769, 774 (1st Cir. 1989) (“It would be unjust to convict A of extortion unless

federal law, an extortion charge may be based upon the threat of litigation if analyses considered the wrongful means – the threat – independent from the United States Court of Appeals for the First Circuit has indicated that, under extortion conviction may be supported by the threat to bring a civil suit. The Further supporting our interpretation, other courts have held that an

construction of the word ‘fear’ in the extortion statute could make it apply to”

decide disputes will decide that very dispute, is not such a means.

However, we find these cases distinguishable, because the courts’

law, that there are I.S. Joseph Co., 751 F.2d at 267. Hobbs Act, 18 U.S.C. § 1951 (2000). constitutes a wrongful means to achieve a wrongful objective, as defined by the Court of Appeals for the Eighth Circuit noted that “only the most liberal Rendelman, 927 A.2d at 482. Similarly, in I.S. Joseph Co., the United States

a lawful means in which a third party assigned by government to finding that a threat to sue, even if baseless, does not constitute extortion. be of a sort that will instill fear . . . . The threat of litigation, being threatened to accomplish it wrongful. The means threatened must A wrongful purpose does not necessarily make the means

06. For example, in Rendelman, the court stated: threat on a case-by-case basis. We, therefore, cannot conclude, as a matter of See, e.g., Pendergraft, 297 F.3d at 1205additional factors, we must consider all of the circumstances surrounding that A.2d at 483. The focus in the majority of these cases is whether the threat under which it was made. In order to make a proper determination as to these Inc. v. J. Lauritzen A/S, 751 F.2d 265, 267 (8th Cir. 1984); Rendelman, 927 Pacific Bancorp, Inc. v. Bro, 847 F.2d 542, 547 (9th Cir. 1988); I.S. Joseph Co., United States v. Pendergraft, 297 F.3d 1198, 1207-08 (11th Cir. 2002); First

We recognize that several courts have drawn a contrary conclusion,

constitute extortion.

cannot simply evaluate the threat on its face and disregard the circumstances person making the threat. Thus, contrary to the defendant’s interpretation, we injustice.” Indeed, as p. 6 altruistic sense of accomplishment for ridding the world of a perceived

that the phrase “substantially benefit” is not so broad as to encompass “an

“substantially benefit[ting]” him. The dissent agrees in part, concluding that

not believe the legislature intended such a result. We agree with the trial court

We disagree.

RSA chapter 354-A removed him from the ambit of RSA 637:5, II(i) by

any perceived bias would be sufficient to evade a charge of extortion. We do whether he had sustained some actual injury to support the claim. In essence, regardless of how attenuated the connection between it and the defendant or the statute.” where statutory ambiguity has been found.” advantage to fulfill the substantial benefit requirement would simply eviscerate

“satisfaction in eliminating an instance of gender-based price discrimination.” contention that a threat to sue may

The defendant next argues that his standing to pursue a lawsuit under

insufficient to satisfy the “substantially benefit” element. the defendant’s asserted general interest in ending discrimination is could be circumvented by any social injustice or generalized concern, Roth, 673 A.2d at 288-89. We agree and similarly conclude that

the statutory penalty” when legislative intent is unclear and “is applicable only bespeaks of a societal goal, not personal gain. Allowing such a tenuous far too abstract to constitute a substantial benefit under this statute; it

argues that the term “benefit” is not limited to tangible interests, but constitutes extortion. Rather, we are simply denying the defendant’s conduct because he stood to “substantially benefit” from his actions. He

statutory penalty, and we have not found it ambiguous.

Under the defendant’s interpretation of “benefit,” the extortion statute

The rule of lenity “forbids interpretation of a federal statute so as to increase

holding imply that every demand for money, buttressed by a threat to sue, The defendant next argues that RSA 637:5, II(i) does not cover his chills an individual’s right of access to the courts. By no means does our

(2007) (quotation omitted). The statute at issue does not seek to increase a demand for money coupled with a threat to sue. State v. Ravell, 155 N.H. 280, 284 II(i), a New Jersey court upheld a conviction for theft by extortion based upon a

decline to apply the rule of lenity in support of the defendant’s interpretation.

We also disagree with the defendant’s contention that this interpretation

285, 290-91 (N.J. Super. Ct. App. Div.), cert. denied, 679 A.2d 655 (N.J. 1996).

extort.”). Additionally, in construing a statute almost identical to RSA 637:5, she knew she had no claim to the property that she allegedly sought to interest in ending sex discrimination and its distressing effect upon him. p. 7 could not reasonably conclude that he was “aggrieved” by virtue of his general defendant, who lacked a client and did not personally patronize the salon,

upon only those “

$1000 demand to the salon upon the threatened RSA chapter 354-A action. omitted)); to that of a mere voter or member of the public” (quotation and brackets

but no reasonable attorney would construe the term in a vacuum. The

in the outcome of the proceedings,” and, further, that we will not extend

CPA claim fits within the statutory language conferring private-party standing

presume that, because this is his sole argument, the defendant premises his board of recount has “an interest [in the election] which is special or superior

word “aggrieved” may leave room for advocacy regarding its intended meaning, to confer standing in the absence of a direct and particularized interest. A:21-a, I (2009), to complain of discriminatory practices. In the abstract, the and permits only persons “aggrieved,” RSA 354-A:21, I(a) (2009); RSA 354-

in RSA chapter 354-A proceedings have direct interests. “person aggrieved” a petitioner must demonstrate “some direct definite interest the context of a zoning board appeal pursuant to RSA 676:5, I, that to be a was engaging in a prohibited act, he fails to explain exactly how his threatened Goldstein v. Town of Bedford, 154 N.H. 393, 395 (2006) (holding, in assuming that the defendant marshaled a good faith argument that the salon minimum that would be awarded for an unfair trade practice alone.” Even defendant argues only that he had standing under RSA chapter 354-A. We RSA 669:35 (2008) (amended 2008), that a “person aggrieved” by a ruling of the Babiarz v. Town of Grafton, 155 N.H. 757, 760 (2007) (holding, in construing

hearing” (emphasis added)). Furthermore, we have never construed “aggrieved” than a party, having a direct interest in the outcome of the public adjudicative discriminatory practices in a place of public accommodation, RSA 354-A:17, Rules, Hum 311.01(a) (permitting intervention only by “person or entity, other

The State Commission for Human Rights presumes that all participants

“$1000 in order to avoid litigation” because “$1000 is a fair amount as it is the standing under the CPA, he no longer presses this argument on appeal. The defendant’s demand of $1000, and although he maintained at trial that he had privity with investigator). Although the CPA formed the basis for the

Among other things, RSA chapter 354-A prohibits unlawful

under the Consumer Protection Act (CPA), RSA chapter 358-A, demanding

investigator proper party to bring suit under CPA, notwithstanding lack of Docusearch, 149 N.H. 148, 160 (2003) (holding that person deceived by declared unlawful.” RSA 358-A:10, I (emphasis added); see, e.g., Remsburg v.

injured by another’s use of any method, act or practice

We begin by noting that the defendant threatened the salon with a claim

merit. We disagree with both contentions. the defendant had a good faith basis to believe that the threatened action had a “failure to fairly consider her because of her sex.”

p. 8 opportunity to reject her because she could demonstrate a violation by showing

lieu of an administrative fine, enhanced

version at RSA 354-A:7, I (2009)), a plaintiff need not give the defendant the

and relief which could have been awarded by the commission, except that in looked to the Supreme Court’s decision in in an action removed to superior court, the statute authorizes only “damages and that fine is payable only to “the general fund.” RSA 354-A:21, II(d). Even

710. We said that, in order to prove a violation of RSA 354-A:8, I (current of the commission, only “compensatory damages.” RSA 354-A:21, II(d) (2009); (quotation omitted)). A review of prima facie showing of employment discrimination. Scarborough, 120 N.H. at brought before the commission, the claimant may receive, within the discretion 324, 358 (1977), and rejected the contention that a plaintiff failed to establish a

had a good faith basis to argue for standing under RSA chapter 354-A. employer’s challenged misconduct was directly applied to the plaintiff. We Scarborough centered upon an employment dispute and the defendant- RSA chapter 354-A authorizes only the assessment of an “administrative fine” that such claimants will have suffered direct harm. having suffered the slightest direct harm. an RSA chapter 354-A public accommodation action for damages without (2000), that a tribunal would accept the contention that a claimant may bring nature. Restatement (Third) of the Law Governing Lawyers § 110 comment d at 172 N.H. 707 (1980), shows that it does not establish a “substantial possibility,” damages are, as their name indicates, compensatory and not punitive in

reasonable claim in the law as it is, or as it might arguably be held to be.” “unlawful discriminatory practice” is found in a public accommodation action Kukene v. Genualdo, 145 N.H. 1, 3 (2000) (“A frivolous claim lacks . . . any

We respectfully disagree with the dissent’s conclusion that the defendant

absent statutory authorization, RSA 507:16 (1997), is entirely baseless because the public accommodation claimant, the legislature quite clearly contemplated incorporating the idea of compensation into each monetary remedy payable to

See Vratsenes v. N. H. Auto, Inc., 112 N.H. 71, 73 (1972). Thus, by

awarded.” RSA 354-A:21-a, I (emphasis added). Enhanced compensatory

after reviewing the monetary remedies available to an “aggrieved” person. If an

defendant’s threat to seek punitive damages, a remedy unavailable in this state suffered”); see, e.g., Smith v. Cote, 128 N.H. 231, 243 (1986). Furthermore, the as “[d]amages sufficient in amount to indemnify the injured person for the loss see Black’s Law Dictionary 416 (8th ed. 2004) (defining compensatory damages

If any doubt remained about the meaning of “aggrieved,” it is resolved

a local administrator’s decision” (quotations omitted)). standing to “all persons in the community who might feel that they are hurt by the defendant’s motion to dismiss. p. 9 criminal.” We, therefore, conclude that the trial court did not err in denying

which he was not legally entitled, that makes the defendant’s conduct

knew he could not pursue, coupled with his demand for a cash payment to

it was the defendant’s “threat to bring an action which . . . as an attorney [he] would have substantially benefited the defendant. As the State aptly explains, reasons set forth more fully above, we fail to see how the threatened action

demanded, and eventually received, was for his own personal gain. For the

and as applied. argues that RSA 637:5, II(i) is unconstitutionally overbroad, both on its face United States and New Hampshire Constitutions. In addition, the defendant

nor had he been a client of the salon himself. In fact, the money the defendant 9 client who had suffered from the alleged discriminatory pricing at the salon, threatening to file a lawsuit if it did not pay him. The defendant did not have a

unconstitutionally vague on its face and as applied to him under both the

acting as an attorney, sent a letter to the salon demanding money and

conduct, we must vacate his conviction because the statute is The defendant next argues that, even if RSA 637:5, II(i) prohibits his

III. Constitutionality of RSA 637:5, II(i) damages.

II(i) applies to the defendant’s conduct. It is apparent that the defendant,

law, its monetary remedies, unlike RSA chapter 354-A, include punitive defendant pointed at trial to Massachusetts’ “identical” public accommodation compensatory monetary remedies within RSA chapter 354-A. While the Turning to the circumstances of this case, we conclude that RSA 637:5,

Gen. Laws Ann. ch. 151B, § 5 (West 2004)). 1978) (construing public accommodation administrative remedy within Mass. Mass. Elec. v. Mass. Com’n Against Discrim., 375 N.E.2d 1192, 1204 (Mass. allege substantial injury as the direct result of the action complained of.” it is well established that “[t]o qualify as a ‘person aggrieved,’ a person must complete before that time.” See Mass. Gen. Laws Ann. ch. 151B, § 9 (West 2004). Furthermore,

or other persuasive authority supporting such a remarkable extension of the compensable harm. Neither is there here, as there was in Scarborough, federal before threatening litigation and, furthermore, he suffered no direct, 805 (1977), the defendant here had no preexisting relationship with the salon employer and attended a job interview, Scarborough v. Arnold, 117 N.H. 803, Unlike the plaintiff in Scarborough who actually contacted the defendant

the applicant to wait until she is formally rejected because the offense is employer failed to give equal consideration to an applicant would never require face. p. 10 of all of these saving characteristics” that makes RSA 637:5, II(i) vague on its

facial challenge, and then consider his as-applied challenge. with greater precision.”

type that needs to be expressed in general terms. He argues it is the “absence

encourages arbitrary and discriminatory enforcement. opportunity to understand the conduct it prohibits; or (2) it authorizes or even constitutionality. intelligence a reasonable opportunity to understand the conduct it prohibits. It burden of proof in view of the strong presumption favoring a statute’s We conclude that RSA 637:5, II(i) provides a person of ordinary

a fundamental or First Amendment challenge. We will therefore first review his penal statute, nor is a law invalid merely because it could have been drafted

measure in defining that phrase. He further notes that the phrase is not of the understand and comply with.” the statute does not specify a required mental state or attach an objective phrase “substantially benefit” is vague. Specifically, the defendant notes that The defendant argues that RSA 637:5, II(i) is void on its face because the

reasons: (1) it fails to provide people of ordinary intelligence a reasonable Id.

omitted). A party challenging a statute as void for vagueness bears a heavy

Constitution. We assume, without deciding, that the defendant has articulated (quotation omitted). “In addition, mathematical exactness is not required in a

the ordinary person exercising ordinary common sense can sufficiently unconstitutionally vague as long as its prohibitions are set out in terms that

A statute can be impermissibly vague for either of two independent

unconstitutional unless a clear and substantial conflict exists between it and Hampshire Constitution and the First Amendment to the United States speech and access to the courts under Part I, Articles 14 and 22 of the New declare it invalid except upon inescapable grounds. involves fundamental rights because the statute implicates his rights to free MacElman, 154 N.H. at 307. Here, the defendant argues that his claim right, a facial attack on the challenged statutory scheme is unwarranted.” “Where a defendant’s vagueness claim does not involve a fundamental

A. Vagueness

Id.

720, 727 (2008). In other words, we will not hold a statute to be

reviewing a legislative act, we presume it to be constitutional and will not State Constitution, and cite federal opinions for guidance only. Id. In 154 N.H. 304, 307 (2006). We first address the defendant’s claims under the We review questions of constitutional law de novo. State v. MacElman, discrimination to support his claim. We conclude that a person of ordinary

p. 11 had not sustained even a nominal injury as a result of the salon’s alleged

defendant was not a client of the salon, nor did he represent one. Thus, he require, at the very least, standing to bring the threatened suit. Further, the defendant had a reasonable opportunity to know that the term “benefit” would

we find this argument equally unavailing. Reading the statute as a whole, the

“substantially benefit” requirement. For the reasons set forth more fully above, antipathy towards gender discrimination was insufficient to satisfy the also argues that the statute failed to provide him with adequate notice that his

the statute makes clear that it applies to a threat to “[d]o

was proscribed by the statute.

another person. RSA 637:5, II(i) (emphasis added). Thus, the statute neither

greater precision. law is not invalid, however, merely because it could have been drafted with these circumstances. We find this argument unavailing. The plain language of “benefit,” or at least used a more specific phrase than “substantially benefit.” A value.” scope of extortion, arguing that the “disagreement [among courts] substance or actual existence . . . : something having good substance or actual

statute provided him with a reasonable opportunity to know that his conduct

its face. not in itself substantially benefit him but which would harm substantially”

. . . evidences an ambiguity” in the statute as to whether it would apply under illustrative list to help demonstrate the type of interests encompassed in asserts that it fails to give adequate notice that a threat to sue falls within the easily understandable. The term “substantial” is defined as “something having See Porelle, 149 N.H. at 424. The defendant vagueness concern, Turning to the defendant’s as-applied challenge, we conclude that the

benefit” is sufficiently clear, and it therefore is not unconstitutionally vague on that would not provide him or her with some Id. at 307. We conclude that the phrase “substantially

vague. The defendant argues that the legislature could have provided an requirement does not necessitate invalidating the statute as unconstitutionally accepted usage, the phrase “substantially benefit” is plain, unambiguous, and MacElman, 154 N.H. at 308, the lack of such a Moreover, although “a scienter requirement in a statute ameliorates” a statutes, prior decisions, or generally accepted usage.” definite.

notice to a person of ordinary intelligence that the statute prohibits a threat protected, aided, or advanced.” Id. at 204. Taken together, the terms give clear 2002). Webster’s defines “benefit” as “to be useful or profitable . . . : become Webster’s Third New International Dictionary 2280 (unabridged ed.

N.H. 420, 423 (2003) (quotation omitted). Here, read in the context of generally

“need not be contained in the statute itself, but rather, in the context of related is well established that the necessary specificity required to uphold a statute may not be applied.

p. 12 analysis of the fact situations to which its sanctions, assertedly,

manner restriction. We first address the defendant’s arguments under the

overbreadth may exist should be cured through case-by-case

under RSA 637:5, II(i) is not permissible as a reasonable time, place and

hand, a statute is not substantially overbroad, then whatever speech, statute to constitutionally acceptable applications. If, on the other construction or partial invalidation that narrows the scope of the

overbreadth doctrine is strong medicine to be employed only as a last resort.”

freedom.” I; N.H. CONST. pt. I, arts. 14, 32. He further argues that his prosecution petition the government for redress of his grievances, see U.S. CONST. amend. see U.S. CONST. amend. I; N.H. CONST. pt. I, art. 22, and his right to defendant argues that RSA 637:5, II(i) infringes upon both his freedom of him because his conduct is constitutionally protected. Specifically, the must be invalidated unless the court can supply a limiting The defendant argues that RSA 637:5, II(i) is overbroad as it applies to

Id. at 727 (quotation omitted).

within the First Amendment’s vast and privileged sphere, the application of the

attempts to control conduct by means which invade areas of protected

susceptible of application to protected expression.” from exercising their rights for fear of criminal sanctions by a statute although their speech or conduct is constitutionally protected, may well refrain If a statute is found to be substantially overbroad, the statute

Gubitosi, 157 N.H. at 727 (quotation omitted)

Constitution. Constitution gives significant protection from overbroad laws that chill speech

MacElman, 154 N.H. at 310 (quotation omitted). “While the

27 (quotation omitted). In other words, “[a] statute is void for overbreadth if it does the State Constitution under these circumstances,

“The purpose of the overbreadth doctrine is to protect those persons who,

B. Overbreadth

reach the same result under the Federal Constitution as we do under the State Carhart, 550 U.S. 124, 148-49 (2007), with MacElman, 154 N.H. at 307, we

Further, because the Federal Constitution offers no greater protection than

Because the defendant does not argue that the statute may be subject to

reject his as-applied claim. intelligence would understand that RSA 637:5, II(i) applies to his conduct, and the threat as leverage to obtain a settlement for his personal gain. p. 13 himself as an attorney and threatening baseless litigation; and ultimately used

nature of these circumstances distinguishes the defendant’s threat to institute

by the process itself – regardless of outcome – of litigating.”). The insidious favorable judgment against a competitor but to harass him, and deter others, come within the first amendment right to petition.

property of another by extortion and with a purpose to deprive him thereof,”

purpose.”

and unprotected litigation is crossed when the party’s purpose is not to win a by definition does not involve a bona fide grievance, it does not Procedure § 20.54(e)(ii), at 632-33 (4th ed. 2008) (“The line between protected Rotunda & J. Nowak, Treatise on Constitutional Law: Substance and

concluded that the defendant “obtain[ed] or exercise[d] control over the

BE&K Constr. Co. v. NLRB, 536 U.S. 516, 531 (2002). The jury

threatening such litigation the defendant was motivated by an “unlawful Not only was the threatened litigation objectively baseless, but in pursuit of baseless litigation. It is well established that the First Amendment does not immunize a person’s argument to pursue the threatened claim. on knowingly frivolous claims. Furthermore, since sham litigation merits of the threatened suit where he had neither standing nor a good faith discussed, the defendant could not have realistically expected success on the Inc. v. Columbia Pictures Industries, Inc., 508 U.S. 49, 60 (1993). As realistically expect success on the merits.” Professional Real Estate Investors, Litigation is objectively baseless if “no reasonable litigant could

Bill Johnson’s Restaurants, 461 U.S. at 743 (quotation omitted).

inclined to find the defendant’s action protected under the State Constitution. advanced when the litigation is based on intentional falsehoods or benefits of vindication, public airing of disputed facts – are not compensation for violated rights and interests, the psychological The first amendment interests involved in private litigation –

United States Supreme Court has noted: 340, 345 (Colo. Ct. App.), cert. denied, 2008 WL 1850965 (Colo. 2008). The Cal. 2005), aff’d, 486 F.3d 1120 (9th Cir. 2007); People v. Richardson, 181 P.3d 461 U.S. 731, 743 (1983); Wolfe v. George, 385 F. Supp. 2d 1004, 1010 (N.D.

recognizing that, although we have never addressed this issue, we are not The defendant’s arguments can be collectively disposed of by simply

124 N.H. 226, 231-33 (1983). State Constitution, and cite federal opinions for guidance only. State v. Ball, p. 14 RSA 637:5, II(i). We disagree.

harm could be caused to the person threatened, thus falling within the scope of prospective defendant is not benefited by the threatened act, but substantial defective product. The defendant asserts that, under either scenario, the

but only the same type as the enumerated acts.

which includes an element of wrongfulness.” 14

examples and the language within protection,

to complain to the Better Business Bureau if he does not receive a refund for a

appeared within other statutes relating to acts such as threats to kidnap. 637:5, II(i) does not sweep all conceivable fact-scenarios within its proscription,

(2000), nevertheless proscribed acts within “the traditional concept of extortion,

(Wash.) (adopting limiting construction of certain provisions within extortion claims to property through threats. See State v. Pauling, 69 P.3d 331, 336

particularized examples, as we recognized in constitutes a reasonable time, place and manner restriction upon protected at 67. do not reach the defendant’s argument concerning whether his prosecution who threatens not to testify until his fee is paid, or a consumer who threatens

implicit concept of “wrongfulness” was evident, in part, because extortion Constitution, and cite federal opinions for guidance only. particularized examples of the crime. The lack of particularization in RSA Jackson, 180 F.3d at 70. This

concluded that the term “extort,” although undefined within 18 U.S.C. § 875(d) harmless error), cert. denied, 530 U.S. 1267 (2000), the Second Circuit 1999) (reversing), reh’g granted, 196 F.3d 383 (1999) (affirming on basis of (emphasis added). Similarly, in United States v. Jackson, 180 F.3d 55 (2d Cir. acquisition[] of property by means of threats.” O’Flynn, 126 N.H. at 709

258, 262 (2008) (construing CPA). The common thread between the eight conclude that such application is not unconstitutionally overbroad. Thus, we because it could cover several otherwise legitimate scenarios, such as an expert See State v. Sideris, 157 N.H.

its face. We first address the defendant’s arguments under the State RSA 637:5, II(i) is a catch-all definition of extortion following eight

not impermissibly infringe upon activity protected by the State Constitution, we 231-33. The defendant argues that RSA 637:5, II(i) is facially overbroad

The defendant next argues RSA 637:5, II(i) is unconstitutionally broad on

result under the Federal Constitution.

see Bill Johnson’s Restaurants, 461 U.S. at 743, we reach the same

Because application of RSA 637:5, II(i) to the defendant’s actions does

protection it otherwise would have enjoyed. suit from the typical, valid demand letter and removes the constitutional this conclusion, and, therefore, respectfully, dissent.

p. 15 merits of the threatened suit where he had no standing to pursue it.” In my

decline to address it.

finds that his threatened lawsuit was “objectively baseless.” I disagree with

because the defendant “could not have realistically expected success on the

Therefore, we conclude this issue has not been preserved for appeal, and we

(2007) is not overbroad as applied to the defendant, Daniel P. Hynes, because it

involves a jury instruction. have made and is particularly appropriate where an alleged error

The majority concludes that the threatened suit is objectively baseless

crime charged does not raise the issue of the defendant’s knowledge. lacked a basis.” This issue, however, was not preserved for appeal. fact, the jury instruction proposed by the defendant on the elements of the

DALIANIS, J., dissenting. The majority concludes that RSA 637:5, II(b)

DUGGAN, J., concurred; DALIANIS, J., dissented.

affords the trial court an opportunity to correct an error it may Affirmed.

jury to make a finding as to whether [he] actually knew the [threatened] suit defendant made no objection to the court’s jury instruction in this regard. In argues that the court’s instruction was flawed in that it “did not require the State v. Eldredge, 135 N.H. 562, 564 (1992) (quotation omitted). Here, the jury as to the mental state elements of theft by extortion. Specifically, he

requirement, grounded in common sense and judicial economy, as we do under the State Constitution. specified or called to the court’s attention at the trial. This As a general rule, we will not consider grounds of objections not

protection under these circumstances,

The defendant asserts that the trial court inadequately instructed the

State Constitution), we reach the same result under the Federal Constitution Brobst, 151 N.H. at 422-25 (applying substantial overbreadth doctrine under U.S. 601, 615 (1973) (setting out substantial overbreadth doctrine), with

Because the Federal Constitution offers the defendant no greater

analysis.” State v. Brobst, 151 N.H. 420, 422 (2004) (quotation omitted). “whatever overbreadth may exist should be cured through case-by-case statute based upon Jackson), cert. denied, 540 U.S. 986 (2003). Thus, p. 16 16

reversal of existing law).

need not actually sustain an injury as a result of a discriminatory practice. context of employment discrimination, that to bring this type of claim, a person Further, there is at least some suggestion in our jurisprudence, albeit in the assert issue when there is good faith argument for extension, modification or under RSA chapter 354-A. See also N.H. R. Prof. Conduct 3.1. (lawyer may baseless for the defendant to believe he possessed standing to pursue a claim person under RSA chapter 354-A (1995 & Supp. 2008). Given these two factors, I would conclude that it was not objectively some definite or special interest in the outcome in order to be an aggrieved have not distinguished them. be distinguished from the instant case, the fact remains that, until today, we While I agree with the majority that our employment discrimination cases can See Scarborough v. R.T.P. Enterprises, Inc., 120 N.H. 707, 710-11 (1980).

before decided issue, trial court’s error could not have been clear or obvious). 157 N.H. 204, 209-10 (2008) (in plain error context, when this court has never

standing. We have never, before today, articulated that a person must have view, however, the defendant could have realistically believed that he had