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NH Supreme Court sides with GOP candidate who sued state Democratic Party over misleading mailer

N.H. Supreme Court
Dan Tuohy
/
NHPR
N.H. Supreme Court

The state Supreme Court is siding with a former Republican political candidate who was the subject of an inaccurate political mailer sent by the New Hampshire Democratic Party. The Supreme Court’s ruling now allows a defamation lawsuit against the party, previously dismissed by a lower court judge, to move forward.

In 2018, Dan Hynes, an attorney, unsuccessfully ran for a state Senate seat. The Democratic Party sent voters in his district a negative political mailer noting that Hynes had been previously convicted of theft by extortion. The mailer failed to note that Hynes' crime was later annulled.

The mailer also falsely stated that Hynes had been disbarred from practicing law, when in fact he had only been suspended after he was caught attempting to extort $500 from a salon owner over allegations she was discriminating against female customers by charging more for a haircut than male customers.

Hynes, who lost his bid to Democrat Jeanne Dietsch, filed a defamation lawsuit against the New Hampshire Democratic Party and its chairman, Raymond Buckley, over the content of the mailer. A lower court judge dismissed the case before it went to trial, noting that his conviction on charges of theft by extortion was accurate, despite a later annulment. The judge also determined that though Hynes was not disbarred as the mailer alleged, his temporary suspension from practicing law was similar enough that if failed to meet the burden of proving defamation against a public figure.

But in a 3-1 opinion released last week, the New Hampshire Supreme Court overturned the lower court’s ruling, setting up a new defamation trial.

The majority wrote that the Democratic Party’s failure to note on the flier that Hynes’ conviction was annulled wasn’t just incomplete, but essentially false because annulments technically erase the existence of the crime in the first place and afford the convicted a clean slate.

“The fact that the plaintiff was convicted undeniably exists, but as a matter of New Hampshire law, upon annulment, it is false and misleading to fail to state that the conviction was annulled,” Justice Anna Barbara Hantz Marconi wrote.

Hantz Marconi also noted that “the difference between the terms ‘suspended’ and ‘disbarred’ is significant, and whether that inaccuracy rises to the level of actual malice should be left to a jury to decide.”

The original mailer sent to residents in the 9th Senate District included a hyperlink to a Nashua Telegraph article that detailed Hynes’ conviction and suspension, but makes no mention of a disbarment.

In a lengthy dissent, Justice Gary Hicks noted that an annulled crime does not make any description of the original crime “false,” and therefore potential fodder for a defamation case involving a public figure.

An annulment “does not alter the metaphysical truth of the plaintiff’s past, nor does it impose a regime of silence on those who know the truth,” Hicks wrote.

He also criticized the majority’s position on the use of the term disbarment in the political mailer, arguing that the use of the term was “substantially true.”

In 2006, Hynes was arrested as part of a sting operation after he sent a threatening letter to a Concord hair salon that charged $25 for women’s haircuts and $18 for a men’s cut. To avoid litigation he requested a $1,000 payment. The salon owner countered with a $500 settlement offer, but then later notified the New Hampshire Attorney General’s office, which sent an undercover representative to the meeting where the payoff took place.

In 2009, the Supreme Court upheld Hynes’ conviction on the extortion charges after he appealed that the statute was overly vague, and that the jury in the original criminal case was given improper instructions.

Todd started as a news correspondent with NHPR in 2009. He spent nearly a decade in the non-profit world, working with international development agencies and anti-poverty groups. He holds a master’s degree in public administration from Columbia University.
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