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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough

- northern judicial district

No. 2013

- 043

WILLIAM L. O'BRIEN

v.

NEW HAMPSHIRE DEMOCR AT IC PARTY & a

.

Submitted : September 19, 2013 Opinion Issued: March 7, 2014

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 defendant s

.

BASSETT , J. The p laintiff , William L. O’Brien, appeals an order of the Superior Court ( Garfunkel

, J .) granting the motion for summary judgment filed by the defendants

, the N ew Hampshire Democratic Party and Raymond C. Buckley, Chairman of the New Hampshire Democratic Party, and deny ing the

p laintiff ’s motion for summary judgment . The trial court ruled that the

p laintiff , 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

-2

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 p laintiff , a member of the Republican Party, ran for re

- election in District 4 of Hillsborough County. District 4 h ad four seats in the New Hampshire House of Representatives

. The Democratic and Republican parties

held primaries in September 2010, w hich 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 nomination s , 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 p laintiff sought “ D emocratic 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)epubli can and (D)emocrat.”

Th e day before th e 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 Re publican 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 progressive a genda. Thank you so much.

The p laintiff received the highest number of votes in the Republican primary , winning a place on the general election ballot as a Republican

. He did

not secure enough votes in the Democratic Primary to also appear on the

Novem ber ballot as a Democrat

. In the general election, t he p laintiff won a seat in the House of Representatives

.

On September 15, 2010, the p laintiff filed a complaint with the office of

the Attorney General, alleging that the defendants violated the Robo call

Statute , because they were “responsible for calls containing a prerecorded political message that lacked the statutorily required disclosures.” In August 2011, the Democratic Party entered into a consent agreement with the a ttorney

g eneral “to resolve the State’s c laims for an alleged violation of the . . . statute

,3

RSA 664:14

- a .” T he Party paid a $5,000 fine, but did not admit to a violation

of the statute

.

In September 2011, the p laintiff filed this action alleging that the

defendants delivered “false prerecorded political messages” in violation of the

Robocall Statute because the “audio message failed to conta in ” the required

disclosures. RSA 664:14

- a, II

. Specifically, the p laintiff alleged that the message failed to con tain either the name of the person or organization paying for the delivery of the message

, or the name of the fiscal agent. The p laintiff did not allege that he had sustained an injur y as a result of the putative
statutory violation

. Nor did he allege any quantifiable damages. The p laintiff sought liquidated damages in the amount of $1,182,000 , which he calculated by multiplying $1,000 for each of the 394 phone calls

, and then trebling it

because he alleged that the defendants “will fully or knowingly” violated the

statute

.

The defendants moved for summary judgment , arguing that the p laintiff

lacked standing to bring a private right of action because the Robocall Statute was intended to protect the privacy of voters , rather than the persons mentioned in the message, and because the p laintiff failed to allege a legally cognizable injury

. The defendants also maintained that they fully complied with the statutory disclosure requirements

. The p laintiff filed a cross

- mo tion for summary judgment, contending that there was no genuine issue of material fact as to whether the statute had been violated, and that, therefore, he, as the subject of the message

, was entitled to an award of damages

.

The trial court found that the language in the Robocall Statute relating to standing was ambiguous

. A fter examining the legislative history, it concluded

that the legislature had enacted the Robocall Statute to “protect the privacy of persons receiving the se automated phone calls, not persons mentioned in the phone message .” Accordingly, the court dismissed the action, ruling that the

p laintiff , as the subject of the message, lacked standing.

On appeal, the p laintiff argues that the trial cour t erred in dismissing the

lawsuit and denying his motion for summary judgment. He contends that the plain language of the statute, which grants standing to “any person injured ,” is

broad and intended to include candidates who are the subject of a prerecorded politic al message

. Alternatively, he claims that

, even if the statute is deemed to

be ambiguous, the legislative history does not support the trial court’s interpretation

. He argues that , because the subject s of the prerecorded political messages “typically would have far greater motivation and capacity to bring lawsuits when the statute is violated,” the subjects of th ose messages

— as well as the recipients

— have standing

. Finally, he contends that

, because

he was the subject of a prerecorded message that violated the statute

, he4

necessarily has standing , and that he is not required by the statute to allege

that he sustained an injury caused by the violation

.

The defendants co unter that they did not violate the statute . They also

argue that the trial court correctly interpreted the statute since its purpose is to inform recipients of the origin of the calls

, and not to protect against electioneering . Further, they contend that the p laintiff “was injured by neither

the robocalls nor their al legedly unattributed nature, and therefore can prove neither standing nor liability.”

“ In reviewing the trial court ’ s grant of summary judgment, we consider the affidavits and other evidence, and all inferences properly drawn from them, in the light mo st favorable to the non

- moving party.” Dichiara v. Sanborn Reg’l. Sch. Dist. , 165 N.H. ____,

____, 82 A.3d 2 25 , 227 (2013 )

. “ If our review of that evidence discloses no genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law, we will affirm the grant of summary judgment .” Id

. “ We review the trial court ’ s application of the law to

the facts de novo .” Id

.

“ In evaluating whether a party has standing to sue, we focus on whether

the party suffered a legal injury against which the law was designed to protect

. ” Libertarian Party of N.H. v. Sec’y of State

, 158 N.H. 194, 195 (2008 ) (quotation omitted)

. “The requirement that a party demonstrate harm to maintain a legal challenge rests upon th e constitutional principle that the judicial power ordinarily does not include the power to issue advisory opinions .” Id

. at 195

- 196. Accordingly

, the determin ation of whether the plaintiff has standing to

sue under the Robocall Statute “is a matter of statutory construction.” In re Campaign for Ratepayers’ Rights

, 1 62 N.H. 2 45 , 2 50 ( 2011 ).

The interpretation and application of a statute present s a ques tion of law, which we review de novo

. Deyeso v. Cavad i

, 1 65 N.H. 76, 79 (20 13 ). In matters of statutory interpretation, we are the final arbiter s of the legislature’s intent as expressed in the words of the statute considered as a whole.

LaChance v. U.S. Smokeless Tobacco Co

. , 156 N.H. 88, 93 (2007). When interpreting statutes , we ascribe the plain and ordinary meanings to the words

used. Id

. “We interpret statutes to give meaning to every word and phrase.”

Chase Ho me for Children v. N.H. Div. for Children, Youth & Families

, 162 N.H. 720, 733 (2011). “Our goal is to apply s tatutes in light of the legislature’s intent in enacting them and in light of the policy sought to be advanced by the entire statutory scheme.” See State v. Lathrop , 164 N.H. 468, 469 (2012).

The Robocall Statute provides that:

No person shall deli ver or knowingly cause to be delivered a prerecorded political message unless the message contains, or a5

live operator provides, within the first 30 seconds of the message

, the following information:

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

.

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

RSA 664:14

- a, II. A “prerecorded political message” is a “prerecorded audio message delivered by telephone by : (a) A c andidate or political committee; or (b) A ny person when the content of the message expressly or implicitly advocates the success or defeat of any party, measure, or person at any election, or contains information about any candidate or party. ” RSA 664:14

- a,
I

. If a court finds for a plaintiff , the Robocall S tatute allows the plaintiff to recover “in the amount of actual damages or $1,000, whichever is greater. If

the court finds that the act or practice was a willful or knowing violation . . . it shall award as much as 3 times, but not less than 2 times, such amount.” RSA 664:14, IV(b).

The Robocall Statute confers standing to file a private action upon a specific cohort of persons: “ [ a ] ny person injured by another’s violation of this

section may bring an action for damages and for such equitable relief, including an injunction, as the court deems necessary and proper.” RSA

664:14

- a, IV (b) ( e mphasis added). By its very terms, t his provision requires a plaintiff to allege each of the following th ree elements in order to have standing : ( 1) a violation of the statute; ( 2) an injury; and ( 3) that the violation of the

statute caused the injury.

The p laintiff contends that

, because the Robocall Statute provides for a

minimum of recovery in the amount of $1,000 per violation

, a violation of the statute is, in and of itself

, sufficient to allow the plaintiff to recover. However, in so arguing, t he p laintiff mistakenly conflat es damages with injury. The provision establishing statutory damages does not absolve the p laintiff from satisfying the requirement t hat he allege injury and causation ; rather

, it

relieves him only of the requirement to plead the amount of his damages. T he plain language of the statute requires that , in order to have standing, a plaintiff allege both an injury and causation

, i.e. that the statutory vi olation cause d him actual injury

.

Moreover, a review of the entire statutory scheme relating to elections and political advertising supports this conclusion

. “ [ W ] here the legislature uses different language in related statutes, we assume that the legislature intended something different. ” In re Guardianship of Williams , 159 N.H. 318,6

3 23 (2009) (emphasis omitted)

. “[T]he legislature ’ s choice of language is deemed to be meaningful .” State v. Lukas , 164 N.H. 693, 695 (2013) (quotation omitted)

. Notably , under paragraph IV(a) of the Robocall Statute

, the attorney g eneral is authorized to levy a civil penalty of $5,000 for each

violation of the statute , without having to demonstrate either injury or

causation. See RSA 664:14

- a, IV(a) (“A violation of this section shall result in a civil penalty of $5,000 per violation.”)

. Further

, RSA 664:18 (2008) provides

that “ [a] ny candidate or voter may make complaint in writing to the attorney general of any violation of any of the provisions of this chapter.” T herefore

, given that the legislature established a different scheme for administrative remedies, we assume that the legislature intended that there be an actual

difference: that plaintiff s seeking civil relief are required to allege both an injury and causation

.

We are not free to ignore the relevant standing distinctions that the legislature has crafted. The doctrine of standing “serves to prevent the judicial process from being used to usurp the powers of the political branches.” Hollingsworth v. Perry

, 133 S. Ct. 2652, 2661 (2 013) (quotation omitted). “In light of this overriding and time

- honored concern about keeping the Judiciary’s power within its proper constitutional sphere, we must put aside the natural urge to proceed directly to the merits of an important dispute and t o ‘ settle ’ it for the sake of convenience and efficiency.” Id

. (quotation and brackets omitted). Accordingly, in order to vest the judicial branch with jurisdiction, the

p laintiff must allege all thre e of the elements that the legislature chose to

include in paragraph IV(b )

.

Indeed, we have previously denied a plaintiff standing when the statutory language required a plaintiff to allege an injury and causation, but the plaintiff

failed to do so. See generally State v. Hynes

, 159 N.H. 187, 196 (2009) ( finding

that defendant failed “ to explain exactly how his threatened [Consumer Protection Act] claim fits within the statutory language conferring private

- party standing upon only those ‘ injured by another’ s use of any method, ac t or practice declared unlawful.’”); Appeal of Richards

, 134 N.H. 148, 155 (1991) (finding no standing under RSA chapter 541 because “[t] he appealing stockholders have not alleged a direct injury as a result of the PUC’ s decision approving the rate plan .”)

.

With this legal framework in mind , we turn to the facts of this case

. The

p laintiff has not alleged that he suffered any injury as a result of the

defendants ’ alleged failure to comply with the disclosure requirements of the

statute. T he p laintiff won both in the primary, and in the general election. In

fact

, in his reply brief , the plaintiff conceded that he has not sustained an injury attributable to the purported violation

. In re sponse to the defendants ’

assertion that he had neither sustained nor alleged an injury caused by the purported violation of the statute , the p laintiff candidly acknowledged , “ [t]hat is7

only true if injury is defined as not including being the subject of a robo

- call that does not provide th e statutorily required disclosures.” In essence , t he

p laintiff argues that he has standing to sue merely be cause he is the subject of

a pr erecorded political message that did not include the required disclosures. We reject this argument. The adoption of the construction advanced by the plaintiff would render meaningless the word “injured

, ” and improperly conflate

a statutory violation with an injury. This interpretation would contravene the principle of statutory construction that meaning was intended by every word

used by the legislature

, and that effect must be given to every word and clause.

See Chase Home for Children , 162 N.H. at 733

.

In support of his motion for summary judgment , t he p laintiff submitted

the affidavit of a voter, Sandra Kent

, w ho stated that she received the prerecorded message

, and was “confused about the legitimacy of the message

. ”

Kent did not recall the substance of the phone call ; however, she was confused

because the prerecorded political message “said that [the p laintiff ] would be running on the Democrat [ic] ticket. ” She stated that, “ The message seemed to make claims about [the p laintiff ] that did not make sense to me based on what

I know about him.” The plaintiff argued that the Kent affidavit alleged a sufficient inj ury to give the plaintiff standing.

However

, Kent ’s confusion flowed from the political content of the

message, rather than from the alleged absence of the required disclosure. Kent

stated that she was confused because she did not understand why the message said that the p laintiff

, a Republican, was requesting to be on the Democratic

ticket. Because t he prerecorded political message stated that it was from

“State Democratic Chair Ray Buckley ,” t he message would have produced the

same confusion even i f the message had included the “missing” information that the p laintiff contends that it should have included

, i.e. the name of the person or entity paying for the delivery of the message, and the fiscal agent

. The additional information would not have clarified whether the p laintiff actually wanted to join the Democratic Party

, n or whether he had asked the

Democrats to deliver the message

. Kent’s confusion would have persisted

. I ndeed, we note that voter confusion attributable to the political content of robocalls or political advertising is not uncommon

. See Lieffring, Note, First Amendment and the Right to Lie: Regulating Knowingly False Campaign Speech After United States v . Alvarez , 97 Minn. L. Rev. 1047, 1064 (2013) (cit ing a recent study where more than nine in ten voters said they frequently encountered some misleading information in campaign speech). Moreover, even if we were to assume that Kent’s confusion is a cognizable injury within the meaning of the Robocall S ta tute, it is an injury sustained by Kent , not by the plaintiff. Therefore , we hold that, having failed to allege that he sustained an injury caused by a statutory violation, the plaintiff does not have standing.8

B ecause we hold that the p laintiff did not allege an injury flowing from

the alleged statutory violation , and therefore

, that he does not have standing,

w e need not decide whether the trial court was correct when it held that a

candidate

, as the subject of a prerecorded message

— not the r ecipient of a

robocall

— cannot be “a person injured” within the meaning of the statute

. W e observe , however, that the differing interpretation s of the statute advanced by the parties

, as well as the ruling of the trial court

, suggest that whether a

candidate has standing to file a private action under the Robocall S tatute is

, arguably , unclear

. Accordingly , we invite the legislature to clarify whether

candidates , or any other person s or entities that are the subject of prerecorded political message s

— in addition to the recipients of the phone calls

— have standing to bring a private right of action under the Robocall Statute

.

Finally, we note that a candidate who is the subject of a robocall that does not comply with statutory disclosure requirements

— yet who does not allege an injury resulting from the violation

— is not without recourse

. The Robocall Statute specifically provides that a candidate who believes that there

has been a violation of the s tatute may file a complaint in writing with the
attorney g eneral. See RSA 664:14

- a, IV(a )

. Indeed, t hat is exactly what the

p laintiff did in this case.

Affirmed

.

DALIANIS, C.J., and HICKS and CONBOY, JJ., concurred.