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Spending cap decision: Judicial misconduct

By Fred Teeboom - Guest Columnist | Jun 17, 2018

On Feb. 12, 2018, the New Hampshire Superior Court issued a decision in our consolidated spending cap lawsuit (see Case #226-2017-CV-00160 and #226-2017-CV-0022). Summarized, Judge Charles Temple dismissed our complaint because he decided that Nashua’s spending cap “violates state law.”

On page 11 (see footnote No. 5) Judge Temple agrees with our complaint that the city had improperly manipulated the budget to evade the cap.

But on pages 13 through 20, Judge Temple rejects the plain text reading of state law RSA 49-B:13 par. II-a (effective July 2011) that unambiguously “grandfathers” all previously enacted tax and spending caps:

“All town or city charter which have been adopted revised or amended to include a tax or spending cap of any kind…… are hereby endorsed ratified, validated and legalized and are fully enforceable. …”

Judge Temple finds that the spending cap is not valid solely on what he considers the lack of an “override” provision (see pages 18-20).

However, RSA 49-B:13, II-a does not state an “override” requirement for pre-existing tax and spending caps. Furthermore, the enabling Senate Bill SB2 that led to the enactment of RSA 49-B:13, II-a specifically excluded an “override,” in sharp contrast to competing House Bill HB341 that included an “override” but was rejected by the Legislature. To read an “override” requirement into RSA 49-B:13, II-a is not consistent with the legislative history, inconsistent with the law and plainly in error.

The Nashua spending cap provides for a supermajority vote of 10 aldermen to exempt the cap (see Nashua Charter par. 56-d). But Judge Temple declines to read this provision to be an “override” (see page 21), ignoring 24 years of history during which the cap was occasionally exempted, and discarding several municipal elections specifically focused on this “override” provision. Even the city agreed that the Nashua Charter contains an “override” provision under par. 56-d (see page 19).

Judge Temple concedes that the spending cap’s validity was not litigated during the trial and therefore declines to “affirmatively strike down” Nashua’s spending cap. Nevertheless, he finds the cap “violates state law and is therefore unenforceable” and therefore dismissed the case (see pages 21-22 and footnote #10). Mayor Jim Donchess promptly declared the spending cap unenforceable.

I originally filed my complaint in April 2017 as a Writ of Mandamus intending a swift resolution to the city’s illegal budget manipulations. Customarily, a Writ of Mandamus is prioritized on the court’s calendar to review, and possibly reverse, an illegal action by the government with an expedited brief hearing. Regardless, Judge Temple scheduled my complaint for a full evidentiary trial.

My case was later consolidated with alderman-at-large Dan Moriarty’s, who had filed a separate action. Following several pre-hearings, we received a full day’s hearing in October 2017. We argued that the spending cap applies to the annual budget as defined in Nashua Charter par. 56. The city argued that accounts funded from fees (such as the disputed wastewater accounts), differentiated from accounts funded from property taxes, are excluded from the cap. None of the litigants argued whether the Nashua spending cap was invalid for lack of an “override” provision.

In January 2018, we received a court order to submit a memorandum of law on our “legal standing” to bring a lawsuit against the city. But Judge Temple never issued an order to the litigating parties to address in a memorandum of law whether the Nashua spending cap violates state law for not containing an “override” provision.

How could an issue that was never litigated in court by the opposing parties possibly lead to the invalidation of the spending cap? My theory is that someone approached Judge Temple over the year-end holidays. Judges do not live in isolation, as evident from Judge Temple’s recent recusal from the ongoing SB3 voter registration lawsuit. Fearing loss on the merits, someone likely convinced Judge Temple to dismiss the case based on our lack of “legal standing,” thus avoiding a decision on the merits (see page 22 footnote No. 11).

This would explain Judge Temple’s order for a memorandum of law on “legal standing” three months following the full hearing. But why Judge Temple decided to invalidate the spending cap with his tortuously written 22-page decision defies comprehension.

We have only one option left, appeal to the New Hampshire Supreme Court. Fortunately former Supreme Court Justice and attorney Chuck Douglas has agreed to litigate our case.

We expect to restore the validity of the spending cap, following which I may file judicial misconduct charges against Judge Charles Temple with the New Hampshire Judicial Conduct Committee.

Fred Teeboom is a former alderman-at-large and author of Nashua’s spending cap. He has resided in Nashua for over 45 years.


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