COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, ss.

SUPERIOR COURT
C.A. #

MARK FISHER,
Plaintiff
vs.
THE MASSACHUSETTS REPUBLICAN
PARTY, KIRSTEN HUGHES, CHAIRMAN
OF THE MASSACHUSETTS REPUBLICAN
PARTY, AND ROBERT CUNNINGHAM,
EXECUTIVE DIRECTOR OF THE
MASSACHUSETTS REPUBLICAN PARTY,
Defendants
COMPLAINT
Parties:
1.

The Plaintiff, Mark Fisher (Fisher), is a resident of Shrewsbury, Worcester

County, Massachusetts, and at all times relevant to this action, is a candidate for
nomination by the Massachusetts Republican Party as its candidate for the office
of Governor.

2.

The Defendant, the Massachusetts Republican Party (the MASSGOP), is a

political party and a legal entity, duly existing under G.L. c. 52, 1, with a
principal place of business in Boston, Suffolk County, Massachusetts.

3.

The Defendant, Kirsten Hughes (Hughes), is the elected Chairman of the

Massachusetts Republican Party and, as such, has a principal place of business in
Boston, Suffolk County, Massachusetts.

4.

The Defendant, Robert Cunningham (Cunningham), is the executive director of

the Massachusetts Republican Party and, as such, has a principal place of business
in Boston, Suffolk County, Massachusetts.
Factual Allegations:
5.

On or about November 22, 2013, Fisher filed with the Office of Campaign and
Political Finance to create the Committee to Elect Fisher for Governor, which
officially allowed him to begin his candidacy for Governor. Thereafter, Fisher
began campaigning by attending events, contacting potential supporters and
loaning personal funds to his campaign committee. As of March 30, 2014, Fisher
had loaned/donated approximately $187,000 to his campaign committee.

6.

Charles Baker (Baker) was and is the only other Republican candidate for
Governor in Massachusetts in 2014.

7.

G.L. c. 53, 44 states, in part, that: The nomination of candidates for nomination
at state primaries shall be by nomination papers. Additionally, the MASSGOP
Rules require that a candidate for Governor obtain a vote of 15% in relation to the
other candidates at the Republican State Convention in order to have his or her
name placed on the ballot in a primary election.

8.

On or about January 11, 2014, caucuses began around the Commonwealth of

Massachusetts for the selection of delegates to the Republican State Convention.

9.

The Convention Rules allowed Republican Town/City Committees to elect

delegates based on the proportion of votes cast in the 2002 Gubernatorial election
for Governor Mitt Romney. The rules also provide for ex officio delegates. These
are Republicans who had been elected to positions in local, state or federal
government.

10.

Hughes and other members of the Republican State Committee were also
allowed to appoint an additional 350 delegates.

11.

On or about January 19, 2014, Hughes announced that there would be a $25,000
fee charged by the MASSGOP for candidates running for Governor who
wished to speak at the Republican State Convention to be held in Boston on
March 22, 2014.

12.

On or about January 23, 2014, Fisher met with Hughes at her office and clarified
whether the $25,000 was an entrance fee. Hughes said that if the $25,000 were
not paid, Fisher and his representatives would not be allowed access to parts of
the convention center, would not be provided any lists of delegates over which
the MASSGOP had control, and would not be able to speak from the
microphone during the convention.

13.

On or about January 31, 2014, all caucuses were completed and the local
delegates were selected. They were grouped into forty (40) districts based upon
the Massachusetts State Senate districts.

14.

On or about February 7, 2014, Fisher paid the Convention candidates fee of

$25,000. On or about March 21, 2014, in accordance with Convention Rule
Article 4, Section C, Fisher submitted a certificate of his willingness to accept the
endorsement of the convention.

15.

On March 22, 2014, the morning of the convention, Defendant, MASSGOP

executive director, Robert Cunningham, told Debra McCarthy, Fishers campaign
manager, and Spencer Kimball, attorney for Fisher, that blank votes would not be
counted in reference to determining whether a candidate had received a vote of

15%. That statement was in accordance with Convention Rule 17.

16.

On the afternoon of March 22, 2014, approximately 15 minutes prior to the

speeches by the Gubernatorial candidates, Defendant Cunningham, provided to the Fisher

Campaign an updated list of newly appointed delegates, with the removal of various
other delegates. The Fisher Campaign had no opportunity to verify any of the names of
the individuals that the Defendants were attempting to add as voting delegates pursuant to
this list.
17.

The procedure established for voting at the convention was that State Committee

Members, representing each of the forty districts (referenced in paragraph 13 above),

would obtain votes orally from each of the delegates within their districts who were
present at the convention as of the time of the voting. Rules 4.2 and 11 of the Convention
prohibit proxy voting on behalf of delegates. Consequently, in order for a delegate to
participate in the voting, he or she must be physically present at the time of the voting.
18.

The State Committee members recorded the oral votes on tally sheets containing

the names of the delegates within their respective districts who were present and voting.
The chairman of the convention, Matt Sisk, then asked the state committee members to
come to the tally desk in front of the convention stage and hand in the sheets. Each state
committee member was required to attest to the oral vote by signing his or her name on
each tally sheet. The tally sheets contained columns for Baker, Fisher, and Blank.

19. After the state committee members attested to the vote at the tally desk, they
were called by the convention chair to their respective microphones to announce the
votes for their district. One district representative at a time conveyed the vote by the
official roll call to the convention chair, Matt Sisk, who was standing at the podium.
This official roll call vote was broadcast throughout the convention hall and was
recorded and memorialized by means of video and audio recording devices.
20. On the afternoon of March 22, 2014, the official roll call vote documented that
Fisher had received 376 votes (15.16%), that Baker had received 2095 votes
(84.44%), and that 10 votes were recorded as blank (.04%).

21. After the official roll call vote was announced, Fisher and his agent went to the
tally desk in the convention hall to challenge rule violations by the MASSGOP. They
challenged the allowance of two State Committee Members, who were Baker
supporters/representatives, of taking several tally sheets into a closed room during the
roll call, without any Fisher representatives present, rather than having an impartial
representative of the MASSGOP convey those tally sheets directly to a back room,
where representatives for both candidates were allowed to be present to observe the
review of the tally sheets. After the two Baker supporters/representatives had
reviewed the tally sheets behind closed doors in a private room, those sheets were
eventually brought into the back room.
22. During the review of the tally sheets in the back room, Bernard Green, an authorized
representative of the Fisher Campaign, was allowed to be present but was unable to
monitor the full scope of 40 tally sheets being reviewed by eight individuals

appointed to conduct the review. Attorney Spencer Kimball joined Mr. Green as a
second authorized representative of the Fisher Campaign. Mr. Green later left the
back room and was replaced by Debra McCarthy, the Campaign Manager for the
Committee to Elect Fisher for Governor.
23.

Attorney Vincent Devito, who is a paid attorney for the MASSGOP, also came into
the back room. After removing his radio headset and his GOP Staff badge, which
had designated him as an official convention representative for the MASSGOP
throughout the day, he announced himself to be an official Baker representative for
purposes of observing the review of the tally sheets.

24.

After some of the tally sheets had been reviewed, a representative of the
MASSGOP informed Attorney Kimball of the Fisher Campaign that the number of
blanks had been increased to 64, which was 54 more than the 10 blanks
announced during the official roll call.

25.

Kimball then asked to see the tally sheets and was denied by a MASSGOP
representative. Being denied, Kimball asked Defendant Cunningham for a tally of
the sheets. Cunningham walked over to the table where the sheets were and, upon
viewing them, wrote down the tally on a piece of paper. Cunningham then
proceeded to put that piece of paper in a paper shredder that was a few feet away.

26.

Shortly thereafter, a representative of the MASSGOP stated that Baker had received
2,095 votes, Fisher had received 374 votes, (2 votes less than had been confirmed
by the official roll call vote), and that 64 blanks had been recorded. By including
these 64 blanks as part of the total, which is prohibited by Rule 17 of the
Convention Rules, Baker had received 82.64%, Fisher had received 14.77% of the

vote, and blank votes amounted to 2.52%.

27.

On or about March 22, 2014, Defendant Hughes stated to the news media that
blanks had not been counted in the final vote tally. Hughes was quoted as saying,
You cant count blanks toward a bottom line. Thats not how it goes. Later,
Hughes stated that she had misspoken and that the blanks had, in fact, been
counted.

28.

Subsequent to the convention, State Committee Member, Steven Zykofsky, the

Chairman of the Rules Committee, who developed the Convention Rules, also
stated unequivocally to the news media that blanks should not have been
counted in the final tally of votes in determining whether a candidate received
15% of the votes.

29.

Convention Rule 17 states: Disqualified Votes. A vote cast for any ineligible
candidate or for any candidate who was not nominated and seconded in accordance
with these Rules, or for any candidate who is removed from further consideration
in accordance with these Rules, shall not be considered as a vote cast by a delegate
present and voting, and shall not be included in determining the whole number of
votes cast for any purpose of these Rules.

30.

In a two-candidate race such as this, including blanks as part of the voting

percentages would effectively cause all such blanks to be counted as Baker votes.

31.

During the entire process of reviewing the tally sheets in the back room,
representatives of the Fisher Campaign were denied all requests to view the tally
sheets. Upon numerous objections by Spencer Kimball, Fishers attorney,
Republican National Committeeman Ronald Kaufman assured Attorney Kimball, in

front of several witnesses, that he would secure the tally sheets and keep them
secure pending further notice.
Causes of Action:
COUNT I
32.

The Plaintiff, Fisher, repeats and realleges paragraphs 1 through 31 above, as if

set forth fully herein.

33.

By accepting the $25,000 payment from the Fisher Campaign, the Defendants
accepted and undertook contractual obligations of fair dealing relative to
conducting the voting at the Convention and providing a fair, secure and
impartial vote count for purposes of the 15% rule for Fisher to be included in a
Republican primary election in September, 2014.

34.

The Defendants breached their contractual obligations to the Plaintiff and the
Plaintiff has sustained damages as a direct and proximate result of such breaches.
Wherefore, the Plaintiff demands Judgment against the Defendants for the full
and fair amount of his damages, plus costs and interest, for Declaratory Judgment,
as set forth in Count IV, below, and for Injunctive Relief, as set forth in Count V,
below.
COUNT II

35.

The Plaintiff, Fisher, repeats and realleges paragraphs 1 through 34 above, as if

set forth fully herein.

36.

By accepting the $25,000 payment from the Fisher Campaign, and by operation of
law, the Defendants accepted and undertook the legal duty to exercise

reasonable care relative to conducting the voting at the convention and

providing a fair, secure and impartial vote count for purposes of the 15% rule
for Fisher to be included in a Republican primary election in September, 2014.
37.

The Defendants negligently breached their duty of exercising reasonable care to

the Plaintiff and the Plaintiff has sustained damages as a direct and proximate
result of such negligence.
Wherefore, the Plaintiff demands Judgment against the Defendants for the full

and fair amount of his damages, plus costs and interest, for Declaratory Judgment, as set
forth in Count IV, below, and for Injunctive Relief, as set forth in Count V, below.
COUNT III
38.

The Plaintiff, Fisher, repeats and realleges paragraphs 1 through 37 above, as if

set forth fully herein.

39.

The Defendants actions infringed upon the Plaintiffs constitutional right to

political association under the First Amendment to the United States Constitution.

40.

Said infringement by the Defendants was a violation of G. L. c. 12, Section 11 I,

the Massachusetts Civil Rights Act.

41.

As a result thereof, the Plaintiff suffers and continues to suffer damage.

Wherefore, the Plaintiff demands Judgment against the Defendants for the full

and fair amount of his damages, plus costs, interest, and attorneys fees, for Declaratory
Judgment, as set forth in Count IV, below, and for Injunctive Relief, as set forth in Count
V, below.

COUNT IV
42.

The Plaintiff, Fisher, repeats and realleges paragraphs 1 through 41 above, as if

set forth fully herein.

43.

G.L. 231A, 1, provides, in part, that the Superior Court may on appropriate
proceedings make binding declarations of right, duty, status and other legal
relations sought thereby, either before or after a breach or violation thereof has
occurred in any case in which an actual controversy has arisen and is specifically
set forth in the pleadings and whether any consequential judgment or relief is or
could be claimed at law or in equity or not.
Wherefore, the Plaintiff demands Declaratory Judgment stating that:
a. The official roll call vote at the Massachusetts Republican Convention on
March 22, 2014, establishes that the Plaintiff, Fisher, obtained 15% or more of
the vote, and is therefore entitled to have his name placed on statewide ballots
in a Republican primary election for the office of Governor in September,
2014.
b. In determining the percentages of votes received by a candidate at the
Massachusetts Republican Convention on March 22, 2014, blanks may not
be counted or considered in reference to the percentages.
c. Even if the results announced in the back room after review of tally sheets
were considered to constitute an official vote, the Plaintiff, Fisher, obtained
15% or more of the vote, and is therefore entitled to have his name placed on
statewide ballots in a Republican primary election for the office of Governor
in September, 2014.

COUNT V
44.

The Plaintiff, Fisher, repeats and realleges paragraphs 1 through 43 above, as if

set forth fully herein.

45.

Based upon the facts alleged above, facts to be established by affidavit and facts
established at a hearing or at trial in this matter, the Plaintiff, Fisher, is entitled to
the following injunctive relief, pursuant to Mass. R. Civ. P. 65.
a. A temporary restraining order, preliminary injunction and/or final injunction
requiring the Defendants to maintain and secure all tally sheets, video and
audio recordings of the roll call and any and all other documents relating in
any way to the voting and voting process held at the Massachusetts
Republican Convention on March 22, 2014.
b. A temporary restraining order, preliminary injunction and/or final injunction
requiring the Defendants to certify to the appropriate State Authorities that the
Plaintiff, Fisher, obtained 15% or more of the vote at the Republican State
Convention on March 22, 2014, and is therefore entitled to have his name
placed on statewide ballots in a Republican primary election for the office of
Governor in September, 2014.
Wherefore, the Plaintiff demands the above requested injunctive relief and any

other relief that the Court shall determine to be appropriate, in accordance with principles
of equity and justice.

THE PLAINTIFF CLAIMS TRIAL BY JURY.

Respectfully Submitted,
MARK FISHER,
By his attorney
____________________________
Thomas M. Harvey
22 Mill Street
Suite 408
Arlington, MA 02476
(617) 710-3616
Tharveyesq@aol.com
BBO: 225050