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January 29. 2013 1:08PM

Former Speaker O'Brien appeals dismissal of 'robo-call' suit against NHDP Chair Buckley


Bill O'Brien, left, is appealing the recent dismissal of his lawsuit against Democratic Party Chairman Raymond Buckley, right. 

CONCORD -- Republican former House speaker Bill O'Brien is appealing the recent dismissal of his lawsuit against Democratic Party Chairman Raymond Buckley over "robo-calls" jabbing O'Brien in a 2010 primary election campaign.
 
O'Brien said he is asking the state Supreme Court to overturn a lower court judge's ruling that he lacked standing to sue Buckley for as much as $1.2 million over the prerecorded calls to O'Brien's constituents.
 
O'Brien said his former attorney in the suit, Chuck Douglas, is no longer representing him. An attorney himself, O'Brien said that since he is no longer Speaker, he has "more time in my life than I did in the past" and will pursue the matter himself.
 
Buckley said, "It's disappointing that Bill is continuing to waste taxpayer dollars on this frivolous lawsuit."
 
Added Democratic National Committeewoman Kathy Sullivan, "This may prove the old lawyers' theory that he who represents himself has a fool for a client."
 
The suit stemmed from O'Brien's attempt in the September 2010 state primary election to have his name appear on the Democratic ballot as well as the GOP ballot in his House race in the Mont Vernon-New Boston area.
 
After he filed to run on the Republican ballot, O'Brien, a staunch fiscal and social conservative, sent mailers to Democratic voters in his district asking them to write in his name on the Democratic ballot.
 
The mailers did not identify him as a Republican, but O'Brien said he sent the mailers in the spirit of bipartisanship.
 
Buckley responded by having automated calls, also known as "robo-calls," placed to 394 Republican homes in O'Brien's district the night before the primary election.
 
In the calls, tinged with a bit of sarcasm, Buckley said:
 
"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 Barack 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," Buckley said in the calls.
 
"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," Buckley said.
 
O'Brien, who appeared only on the Republican ballot in the general election, quickly filed a complaint against Buckley with the Attorney General's office.
 
He charged Buckley and the Democratic Party violated state law because the call script contained no specific legally-required disclaimer that the Democratic Party had paid for the call.
 
The Attorney General agreed, and in August 2011, the Democratic Party signed a consent agreement under which it paid $5,000. Under the agreement, however, neither Buckley nor the Democratic Party admitted to wrongdoing.
 
Buckley said it was clear from the script of the calls who paid for them, but rather than continue to fight the matter, he said, he and the party decided to make the payment and move on.
 
However, the consent agreement led O'Brien to exercise his right under state election laws to sue for actual damages or for $1,000, whichever is more, over pre-recorded campaign calls that violate the law.
 
In a case of a "willful or knowing violation," the law allows for treble damages, meaning O'Brien could have been eligible for as much as $1.18 million had the court found in his favor.
 
But the case never went to trial because several weeks ago, Superior Court Judge David Garfunkel granted Buckley's motion to dismiss the case, finding that O'Brien lacked standing to bring the suit.
 
Garfunkel found that O'Brien, although the subject of the call, was not an "injured party" under the law that governs prerecorded political messages.
 
The judge wrote in a seven-page ruling that the law specifies that the involved parties in such calls are only the person delivering the telephone message and the person receiving the message.
 
"The statue does not mention persons who are the subject matter of the phone call and places conditions only upon the person delivering the message," the judge wrote.
 
"Accordingly," the judge wrote, "because (O'Brien) has not alleged that he received a phone call from the defendants, he lacks standing to assert a cause of action.
 
"Because the court finds that (O'Brien) does not have standing to bring his lawsuit, it grants the (Democratic Party) motion and dismisses the lawsuit."
 
O'Brien said Tuesday he disagreed with the judge's ruling and has filed an appeal with the state Supreme Court.
 
"There hasn't been any case law under the statute," O'Brien said, "and my opinion is that if you set out by violating the statute to injure a political candidate, the political candidate can identify himself as an injured party and claim damages."
 
O'Brien said that while he decided to pursue the appeal himself, if it is remanded to the Superior Court by the Supreme Court, Douglas may try the case on his behalf.


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