William L. O'Brien
New Hampshire Democratic Party & a
Submitted: September 19, 2013.
Hillsborough-northern judicial district.
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. DALIANIS, C.J., and HICKS and CONBOY, JJ., concurred.
[166 N.H. 139] 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 [166 N.H. 140] 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 ...