Alderman Fred S. Teeboom

I have always been astounded by the wisdom of America’s founders to create the 3-branch system of government; each branch exercising checks and balances on the other. Recently, however, my faith in the integrity of the judicial branch has been shaken to extreme.

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EDITOR’S NOTE: This is the first in a two-part commentary. Part 2 will publish in next week’s edition of The Sunday Telegraph.

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Twenty-six years ago the voters in Nashua, following a citizen-initiated referendum to place this question on the ballot, voted a spending cap into local charter law. The cap limited annual city budget increases to the rate of inflation, with a vote of 10 aldermen able to override the cap. The spending cap was authorized by the NH Attorney General, the NH Secretary of State and the NH Department of Revenue without objection. The spending cap survived a repeal initiative led by the city’s teachers unions, and in year 2011 survived a court challenge brought by government labor unions to the NH Supreme Court that claimed local caps on taxing and spending violate state law.This led to the NH state legislature enacting in 2011 a law that authorized local tax and spending caps, subject to a prescribed process.

During these years, the Nashua aldermen overrode the cap eight times, but otherwise adhered to the cap. This changed shortly after Mayor Jim Donchess took office in 2016. Donchess claimed that all mandated spending in the budget, such as education costs, were exempted from the cap. Alarmed, I met with the city attorney who agreed that mandates were covered under the cap.

A year later Mayor Donchess sponsored and the aldermen enacted an ordinance exempting all sewer expenses from the cap. I argued unsuccessfully with the city that this exemption also violated the cap. Exasperated, I filed a Writ of Mandamus in NH Superior Court, an expedited procedure to stop government from acting illegally, anticipating a brief two-hour hearing placed on a priority court schedule.

Regardless, Judge Charles Temple scheduled a full hearing to argue my complaint. Alderman Dan Moriarty joined the lawsuit. The case dragged on for months with pre-hearings beyond passage of the city’s annual budget, hence the judge dismissed our complaint as “moot, but without prejudice,” meaning we could resubmit.

We should have accepted our loss. But expecting continued evisceration of the cap by Mayor Donchess’ administration, we renewed our complaint

We ultimately had a full-day hearing in Superior Court. Several months following this hearing, we responded to Judge Temple’s order to argue our standing to bring this case after it had already been heard.

The decision came in 22 pages including 11 lengthy footnotes. The court agreed with the merits of our complaint, but decided Nashua’s spending cap did not contain an override provision consistent with NH state law enacted in 2011 (17 years after Nashua’s cap was enacted), was therefore “unenforceable” and again dismissed our complaint.

Judge Temple recognized the court had not litigated “enforceability” since he had conducted no hearing nor ordered a brief on this issue before reaching his decision to dismiss. In his decision, Judge Temple “did not definitively declare the Nashua Spending Cap invalid.” But our several motions for reconsideration were rejected.

Regardless, Mayor Donchess immediately declared Nashua’s spending cap unenforceable. I was dumbfounded; how could the spending cap possibly be found unenforceable without legal argument by opposed parties? I suspected foul play; collusion between the court and city government. But short of an appeal to the NH Supreme Court, Nashua’s spending cap had died.

Fred Teeboom is a former alderman-at-large for the city of Nashua and the author of the spending cap.

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