2013-043, William L. O'Brien v. New Hampshire Democratic Party & a.

have standing to file an action for damages under RSA 664: 14 - a (2008), the so - Representatives, and the subject of a prerecorded political message, did not p laintiff, a candidate for re - election to the New Hampshire House of p laintiff ’s motion for summary judgment. The trial court ruled that the Buckley, Chairman of the New Hampshire Democratic Party, and deny ing the by the defendants, the N ew Hampshire Democratic Party and Raymond C. Superior Court (Garfunkel, J.) granting the motion for summary judgment filed BASSETT, J. The p laintiff, William L. O’Brien, appeals an order of the

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

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

NEW HAMPSHIRE DEMOCR AT IC PARTY & a.

No. 2013 - 043 Hillsborough - northern judicial district

page is: http://www.courts.state.nh.us/supreme. 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 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

g eneral “to resolve the State’s c laims for an alleged violation of the . . . statute, p. 2 2011, the Democratic Party entered into a consent agreement with the a ttorney political message that lacked the statutorily required disclosures.” In August Statute, because they were “responsible for calls containing a prerecorded the Attorney General, alleging that the defendants violated the Robo call On September 15, 2010, the p laintiff filed a complaint with the office of

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

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

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

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

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

November cycle for elections as both (R)epubli can and (D)emocrat.” September 14, p. 2 2010, primary so that he could appear on the ballot in the the November ballot, the p laintiff sought “D emocratic write - in votes in the the fact that the Democratic party had fewer candidates than it had spaces on and three candidates were running for the Democratic nominations. In light of election ballot. Five candidates were running for the Republican nomination s, from each party who received the most votes being placed on the general held primaries in September 2010, w hich would result in the four candidates Hampshire House of Representatives. The Democratic and Republican parties District 4 of Hillsborough County. District 4 h ad four seats in the New In 2010, the p laintiff, a member of the Republican Party, ran for re - election in The following facts are supported by the record or otherwise undisputed.

We affirm the trial court’s ruling. called “Robocall Statute.” Consequently, the trial court dismissed the action. p. 3 3

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

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

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

statute. because he alleged that the defendants “will fully or knowingly” violated the by multiplying $1,000 for each of the p. 3 394 phone calls, and then trebling it sought liquidated damages in the amount of $1,182,000, which he calculated statutory violation. Nor did he allege any quantifiable damages. The p laintiff did not allege that he had sustained an injur y as a result of the putative for the delivery of the message, or the name of the fiscal agent. The p laintiff message failed to con tain either the name of the person or organization paying disclosures. RSA 664:14 - a, II. Specifically, the p laintiff alleged that the Robocall Statute because the “audio message failed to conta in” the required defendants delivered “false prerecorded political messages” in violation of the In September 2011, the p laintiff filed this action alleging that the

of the statute. RSA 66 p. 4 4:14 - a.” T he Party paid a $5,000 fine, but did not admit to a violation 4

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

The Robocall Statute provides that:

entire statutory scheme.” See State v. Lathrop, 16 p. 4 4 N.H. 468, 469 (2012). intent in enacting them and in light of the policy sought to be advanced by the 720, 733 (2011). “Our goal is to apply s tatutes in light of the legislature’s Chase Ho me for Children v. N.H. Div. for Children, Youth & Families, 162 N.H. used. Id. “We interpret statutes to give meaning to every word and phrase.” interpreting statutes, we ascribe the plain and ordinary meanings to the words LaChance v. U.S. Smokeless Tobacco Co., 156 N.H. 88, 93 (2007). When intent as expressed in the words of the statute considered as a whole. matters of statutory interpretation, we are the final arbiter s of the legislature’s law, which we review de novo. Deyeso v. Cavad i, 1 65 N.H. 76, 79 (20 13). In The interpretation and application of a statute present s a ques tion of

Campaign for Ratepayers’ Rights, 1 62 N.H. 2 p. 4 45, 2 50 (2011). sue under the Robocall Statute “is a matter of statutory construction.” In re 196. Accordingly, the determin ation of whether the plaintiff has standing to ordinarily does not include the power to issue advisory opinions.” Id. at 195 challenge rests upon th e constitutional principle that the judicial power omitted). “The requirement that a party demonstrate harm to maintain a legal Libertarian Party of N.H. v. Sec’y of State, 158 N.H. 194, 195 (2008) (quotation the party suffered a legal injury against which the law was designed to protect.” “In evaluating whether a party has standing to sue, we focus on whether

the facts de novo.” Id. summary judgment.” Id. “We review the trial court ’ s application of the law to party is entitled to judgment as a matter of law, we will affirm the grant of that evidence discloses no genuine issue of material fact, and if the moving Reg’l. Sch. Dist., 165 N.H. ____, ____, 82 A.3d 2 25, 227 (2013). “If our review of in the light mo st favorable to the non - moving party.” Dichiara v. Sanborn the affidavits and other evidence, and all inferences properly drawn from them, “In reviewing the trial court ’ s grant of summary judgment, we consider

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

that he sustained an injury caused by the violation. necessarily has standing, and that he is not required by the statute to allege p. 5 5

intended something different.” In re Guardianship of Williams, 1 p. 5 59 N.H. 318, uses different language in related statutes, we assume that the legislature and political advertising supports this conclusion. “[W] here the legislature Moreover, a review of the entire statutory scheme relating to elections

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

statute caused the injury. (1) a violation of the statute; (2) an injury; and (3) that the violation of the plaintiff to allege each of the following th ree elements in order to have standing: 664:14 - a, IV (b) (e mphasis added). By its very terms, t his provision requires a including an injunction, as the court deems necessary and proper.” RSA section may bring an action for damages and for such equitable relief, specific cohort of persons: “[a] ny person injured by another’s violation of this The Robocall Statute confers standing to file a private action upon a

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

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

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

the following information: live operator provides, within the first 30 seconds of the message, p. 6 6

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

approving the rate plan.”). stockholders have not alleged a direct injury as a result of the PUC’ s decision (finding no standing under RSA chapter 541 because “[t] he appealing practice declared unlawful.’”); Appeal of Richards, 134 N.H. 148, 155 (1991) standing upon only those ‘ injured by another’ s use of any method, ac t or Protection Act] claim fits within the statutory language conferring private - party that defendant failed “to explain exactly how his threatened [Consumer failed to do so. See generally State v. Hynes, 159 N.H. 187, 19 p. 6 6 (2009) (finding language required a plaintiff to allege an injury and causation, but the plaintiff Indeed, we have previously denied a plaintiff standing when the statutory

include in paragraph IV(b). p laintiff must allege all thre e of the elements that the legislature chose to omitted). Accordingly, in order to vest the judicial branch with jurisdiction, the for the sake of convenience and efficiency.” Id. (quotation and brackets urge to proceed directly to the merits of an important dispute and t o ‘ settle ’ it power within its proper constitutional sphere, we must put aside the natural light of this overriding and time - honored concern about keeping the Judiciary’s Hollingsworth v. Perry, 133 S. Ct. 2 p. 6 652, 2661 (2 013) (quotation omitted). “In process from being used to usurp the powers of the political branches.” legislature has crafted. The doctrine of standing “serves to prevent the judicial We are not free to ignore the relevant standing distinctions that the

injury and causation. difference: that plaintiff s seeking civil relief are required to allege both an remedies, we assume that the legislature intended that there be an actual given that the legislature established a different scheme for administrative general of any violation of any of the provisions of this chapter.” T herefore, that “[a] ny candidate or voter may make complaint in writing to the attorney civil penalty of $5,000 per violation.”). Further, RSA p. 6 664:18 (2008) provides causation. See RSA 664:14 - a, IV(a) (“A violation of this section shall result in a violation of the statute, without having to demonstrate either injury or the attorney g eneral is authorized to levy a civil penalty of $5,000 for each (quotation omitted). Notably, under paragraph IV(a) of the Robocall Statute, deemed to be meaningful.” State v. Lukas, 164 N.H. 693, 695 (2013) 3 23 (2009) (emphasis omitted). “[T]he legislature ’ s choice of language is p. 7 7

an injury caused by a statutory violation, the plaintiff does not have standing. the plaintiff. Therefore, we hold that, having failed to allege that he sustained the meaning of the Robocall S ta tute, it is an injury sustained by Kent, not by even if we were to assume that Kent’s confusion is a cognizable injury within encountered some misleading information in campaign speech). Moreover, (cit ing a recent study where more than nine in ten voters said they frequently Speech After United States v. Alvarez, 9 p. 7 7 Minn. L. Rev. 1047, 1064 (2013) Amendment and the Right to Lie: Regulating Knowingly False Campaign robocalls or political advertising is not uncommon. See Lieffring, Note, First I ndeed, we note that voter confusion attributable to the political content of Democrats to deliver the message. Kent’s confusion would have persisted. actually wanted to join the Democratic Party, n or whether he had asked the The additional information would not have clarified whether the p laintiff person or entity paying for the delivery of the message, and the fiscal agent. that the p laintiff contends that it should have included, i.e. the name of the same confusion even i f the message had included the “missing” information “State Democratic Chair Ray Buckley,” t he message would have produced the ticket. Because t he prerecorded political message stated that it was from said that the p laintiff, a Republican, was requesting to be on the Democratic stated that she was confused because she did not understand why the message message, rather than from the alleged absence of the required disclosure. Kent However, Kent ’s confusion flowed from the political content of the

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

See Chase Home for Children, 162 N.H. at p. 7 733. used by the legislature, and that effect must be given to every word and clause. principle of statutory construction that meaning was intended by every word a statutory violation with an injury. This interpretation would contravene the plaintiff would render meaningless the word “injured,” and improperly conflate We reject this argument. The adoption of the construction advanced by the a pr erecorded political message that did not include the required disclosures. p laintiff argues that he has standing to sue merely be cause he is the subject of that does not provide th e statutorily required disclosures.” In essence, t he only true if injury is defined as not including being the subject of a robo - call p. 8 8

DALIANIS, C.J.