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March 07. 2014 1:11PM

NH Supreme Court upholds dismissal of O'Brien suit vs NHDP over 'robocalls'

CONCORD - The state Supreme Court has upheld a lower court's dismissal of former House Speaker William O'Brien's lawsuit against the state Democratic Party over its "robo-calls" jabbing O'Brien in a 2010 primary election campaign.

In a decision issued Friday, the court ruled 4-0 that a Superior Court judge was correct when he decided just more than a year ago that although the Republican lawmaker was the subject of calls to his constituents by Democratic Party chairman Raymond Buckley, he was not an "injured party" under the state law that governs prerecorded political messages.

The court agreed that the "injured party" under the statute applies to the person receiving the call, not the subject of the call. But the court did say that the statute is unclear and suggested the Legislature clarify it.

The case stems from O'Brien's effort in 2010 to have his name written in on the Democratic side of the ballot in the House primary race in the Mont Vernon-New Boston area. O'Brien is a resident of Mont Vernon.

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; O'Brien said he sent the mailers in the spirit of bipartisanship.

Buckley responded by having automated calls, known as "robo-calls," placed to 394 Republican homes in O'Brien's district the night before the primary election. In the calls, clearly 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 did not contain a legally-required specific disclaimer in the first 30 seconds that the call had been "paid for by the New Hampshire Democratic Party."

The Attorney General agreed that the missing disclaimer was a violation 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 at the time it was clear from the script of the calls who paid for them, but rather than continue to fight the matter, 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 law to sue for actual damages or for $1,000, whichever is more, over prerecorded campaign calls that violate the law.

In a case of a "willful or knowing violation," the law allows for triple 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 Superior Court Judge David Garfunkel granted Buckley's motion to dismiss the case, finding that O'Brien lacked standing to bring the suit because he was not an "injured party."

O'Brien appealed, leading to Friday's ruling. The Supreme Court noted that O'Brien won the election despite the calls and even acknowledged that because he won, he did not sustain "injury."

The court pointed out that O'Brien argued "that he has standing to sue merely because is the subject of a prerecorded political message that did not include the required disclosures."

The court rejected that argument but suggested the Legislature "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."

Ruling on the case were Chief Justice Linda Dalianis and Associate Justices James Bassett, Gary Hicks and Carol Ann Conboy.

According to a court spokesman, Associate Justice Robert Lynn disqualified himself and "in keeping with tradition," did not specify a reason.UnionLeader.com is seeking comment from O'Brien and the Democratic Party on the ruling.
O'Brien Friday afternoon said in a statement:
"While I am satisfied that this lawsuit has illustrated the fraud and deceit that is the basis of much of the New Hampshire Democrat Party message under its current leadership, it is disappointing and a disservice to New Hampshire that the Court has ruled, in essence, that false and unattributed robo-calls have to be shown to cost a candidate his or race before they can be the basis of a lawsuit. While the NH Democrat Party may think they dodged a bullet in this case by only paying a $5000 fine, once again it is fair and honest elections in New Hampshire that have been harmed."
"I will not give up on my efforts to hold Ray Buckley and his gang financed by out of state liberals accountable for the harm they are doing to politics and governance in my state."
Former state Democratic Party Chair Kathy Sullivan said, "We are pleased that the Supreme Court upheld the lower court's dismissal of former Speaker O'Brien's lawsuit. The court found that Representative O'Brien failed to allege any injury whatsoever, and also did not find that the New Hampshire Democratic Party or Chairman Buckley violated the statute. It was a well reasoned decision by the Court."


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