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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Hillsborough-northern judicial district No. 2008-371 THE STATE OF NEW HAMPSHIRE v. DANIEL P. HYNES Argued: March 12, 2009 Opinion Issued: August 5, 2009 Kelly A. Ayotte, attorney general (Elizabeth J. Baker, assistant attorney general, on the brief and orally), for the State. Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant. HICKS, J. The defendant, Daniel P. Hynes, appeals his conviction after a jury trial in Superior Court (Barry, J.) of one count of theft by extortion. See RSA 637:5, II(i) (2007). We affirm. I. Background The jury could have found the following facts. The defendant is an attorney who was admitted to the New Hampshire and Massachusetts Bars in 2006. In December of that year, he sent a "Cease and Desist/Demand Letter"

to Claudia Lambert, the owner of Claudia's Signature Salon in Concord (the salon). The letter, written on "Daniel P. Hynes Esq." letterhead and noting his admission to the New Hampshire Bar, stated: I am writing in regards to your company's policy of pricing for different types of haircuts. It has been brought to my attention that your business charges $25 for haircuts but $18 for a Men's cut and $12 for a children [sic] haircut. Such a distinction in price based on gender and age is discrimination in violation of the law. Accordingly, I demand you immediately cease this unfair pricing and charge customers in a more appropriate manner, such as by the length of their hair or the amount of time it would take. The letter claimed that the salon's practice was both unlawfully discriminatory in violation of RSA 354-A:17 (2009), and constituted an unfair trade practice in violation of RSA chapter 358-A (2009). The letter went on to state: I demand that you immediately cease your unlawful practice of charging for haircuts based upon age and gender. Should you not comply I will be forced to file a complaint with the State Commission for Human Rights while reserving all rights to remove and file in Superior Court. In addition, I demand payment in the amount of $1000 in order to avoid litigation . . . . I believe $1000 is a fair amount as it is the minimum that would be awarded for an unfair trade practice alone. You have ten (10) days to comply . . . . Should you fail to comply additional steps will be taken including filing with the State Commission for Human Rights and potential removal to Superior Court. If such action is necessary I will seek all remedies available including but not limited to an injunction, damages for discrimination, damages for the unfair trade practice, ill-gotten gains, punitive damages, attorney fees and costs. If you object or otherwise wish to discuss the above matter you may have your attorney contact me. The letter was signed "Daniel P. Hynes Esq." At some point after receiving the letter, Lambert's husband, Bernard Nardi, called the defendant to see if they could "work out a settlement." During the ensuing conversation, the defendant indicated he was not a client of the salon and had found it, along with its prices, on the Internet. Nardi offered, and the defendant accepted, $500 to settle the matter. The defendant then prepared settlement documents reflecting the agreement, which he faxed to Nardi's real estate business office. The documents indicated that, in consideration of five hundred dollars received, the defendant would discharge

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the salon from any claims and demands regarding its alleged discriminatory practice. A meeting was scheduled to execute the documents. Nardi subsequently contacted the New Hampshire Attorney General's Office, and it was determined that an investigator would attend the settlement meeting posing as Lambert's business partner. At the settlement meeting, the defendant again stated that he did not have a client. He further indicated that he, personally, would keep the $500 he received from Nardi, and that he was currently in negotiations with other attorneys in response to similar letters he had sent out. The investigator executed the settlement agreement, providing $500 to the defendant. After taking possession of the $500, the defendant was arrested and charged with theft by extortion. See RSA 637:5, II(i). Prior to trial, the defendant moved to dismiss, arguing that his conduct is not prohibited by RSA 637:5, II(i), and, even if it is, the statute is unconstitutional. The trial court denied the motion, and the defendant was subsequently convicted. This appeal followed. On appeal, the defendant argues that RSA 637:5, II(i) does not prohibit his conduct, either because it does not include a threat to sue, or because he stood to substantially benefit from the threatened conduct. In the alternative, he asserts that RSA 637:5, II(i) is unconstitutionally vague and overbroad. Finally, he argues that the trial court improperly instructed the jury. We address each argument in turn. II. Scope of RSA 637:5, II(i) RSA 637:5, I (2007) provides: "A person is guilty of theft as he obtains or exercises control over the property of another by extortion and with a purpose to deprive him thereof." The statute provides eight specific circumstances in which extortion occurs, as well as a catch-all provision, under which the State charged the defendant. RSA 637:5, II(a)-(i). The catch-all provision states that extortion occurs when a person threatens to "[d]o any other act which would not in itself substantially benefit him but which would harm substantially any other person with respect to that person's health, safety, business, calling, career, financial condition, reputation, or personal relationships." RSA 637:5, II(i). The defendant argues that RSA 637:5, II does not prohibit his conduct because none of its eight specific provisions includes a threat to file a lawsuit. In addition, he asserts that the term "substantially benefit" encompasses the kind of non-pecuniary satisfaction he would receive by ending the salon's alleged discrimination, and that this provision was satisfied by his standing to bring suit against the salon under RSA chapter 354-A (2009).

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Resolution of this issue requires that we interpret RSA 637:5, II(i), which presents a question of law that we review de novo. State v. Gallagher, 157 N.H. 421, 423 (2008). In matters of statutory interpretation, we are the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole. Id. at 422. We first examine the language of the statute, and, where possible, we apply the plain and ordinary meaning to the words used. Id. at 422-23. We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language it did not see fit to include. State v. Langill, 157 N.H. 77, 84 (2008). Further, we interpret a statute in the context of the overall statutory scheme and not in isolation. Id. The defendant first asserts that we should interpret RSA 637:5, II(i) as excluding any threat to sue, regardless of whether there is a basis for the threatened suit, because it does not constitute the type of harm contemplated by the statute. In support of this assertion, he argues that this type of threat falls outside the core purpose of the extortion statute, and that including a threat to sue in the statute would chill the right of access to the courts. The defendant also argues that the rule of lenity supports his interpretation. We disagree. At common law, "extortion consisted of the corrupt taking of a fee by a public officer, under color of his office, where no fee is due, or not so large a fee is due, or the fee is not yet due." State v. O'Flynn, 126 N.H. 706, 709 (1985) (quotation and brackets omitted). "Beginning in the 19th century, many states enacted extortion statutes to criminalize conduct that was extortionate but did not fall within the ambit of the narrow crime of common law extortion." Rendelman v. State, 927 A.2d 468, 474 (Md. Ct. Spec. App. 2007), aff'd, 947 A.2d 546 (Md. 2008). This statutory form of extortion applied to both private individuals and public officials, and made criminal "the act or practice of obtaining something or compelling some action by illegal means, as by force or coercion." Id. (quotations and brackets omitted). In New Hampshire, the legislature has enlarged the scope of extortion to include "unlawful acquisitions of property by means of threats," O'Flynn, 126 N.H. at 709; see RSA 637:5, II (2007). Here, the defendant suggests that a threat to sue is inconsistent with the purpose of the statute in part because the "threat of civil litigation . . . does not give rise to the kind of intimidation that constitutes extortion." While we agree that simply threatening to institute a lawsuit does not, standing alone, carry the inherent hallmarks of an extortionate act, our inquiry does not end there. Unlike the other provisions within RSA 637:5, II, the plain language of RSA 637:5, II(i) does not simply evaluate the type of threat that was made; that is, the substance of the threat. Rather, it requires us to consider both the threat's potential harm to the person threatened as well as its potential benefit to the

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person making the threat. Thus, contrary to the defendant's interpretation, we cannot simply evaluate the threat on its face and disregard the circumstances under which it was made. In order to make a proper determination as to these additional factors, we must consider all of the circumstances surrounding that threat on a case-by-case basis. We, therefore, cannot conclude, as a matter of law, that there are no circumstances under which a threat to sue would constitute extortion. We recognize that several courts have drawn a contrary conclusion, finding that a threat to sue, even if baseless, does not constitute extortion. See United States v. Pendergraft, 297 F.3d 1198, 1207-08 (11th Cir. 2002); First Pacific Bancorp, Inc. v. Bro, 847 F.2d 542, 547 (9th Cir. 1988); I.S. Joseph Co., Inc. v. J. Lauritzen A/S, 751 F.2d 265, 267 (8th Cir. 1984); Rendelman, 927 A.2d at 483. The focus in the majority of these cases is whether the threat constitutes a wrongful means to achieve a wrongful objective, as defined by the Hobbs Act, 18 U.S.C.

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