Alderman Fred S. Teeboom

To recap, our complaint to stop the city from eviscerating the Nashua spending cap was dismissed in Superior Court. Not on the merits of our complaint, but on a finding that the cap could not be enforced because its override provision failed to conform with NH state law enacted in year 2011. This finding by judge Temple had not been argued in court.

I was dumbfounded. How could the judge possibly ignore the fact that NH state law of 2011 clearly and unambiguously “grandfathered” tax and spending caps? The precise text reads as follows:

RSA 49-B:13 II-a. All town or city charters which have been adopted, revised, or amended to include a tax or spending cap of any kind ….. and all actions properly taken related to the tax or spending cap in such charters are hereby endorsed, ratified, validated, and legalized and are fully enforceable, without regard to whether such entities or actions were authorized by law at the time they were established or taken.

An appeal to the NH Supreme Court, if represented by counsel, costs around $20,000. As I was considering bringing this appeal on my own without counsel (even as I was totally exhausted on this case, and against common wisdom not to represent oneself), attorney Chuck Douglas, a former NH Supreme Court judge and former NH Congressman, contacted me. He was particularly concerned the case was dismissed and agreed to litigate the NH Supreme Court for a highly discounted fee.

The case was heard about a year after it was filed, with each side allowed 15 minutes to present its arguments (interrupted by questions from the justices). The city took the unsubstantiated position that the “grandfather” clause above-cited applies only to the period before its 2011 enactment. Chief Justice Robert Lynch (now retired and running for the NH House in Windham as a “fiscally conservative” Republican) was particularly aggressive in questioning the scope of the “grandfather” clause.

The 3:2 decision ruled that the override provision in Nashua’s spending cap is inconsistent with the 2011 state law, thereby invalidating the cap. This decision sets legal principal on its head, for longstanding court practice has consistently held that if language in a law is unambiguously written in plain English, it is to be accepted on face value. The “grandfather” language written in plain language applies to Nashua’s spending cap without any requirement or interpretation that it must contain an override provision identical to the 2011 law. Two of the five justices wrote a dissenting opinion, affirming Nashua’s spending cap is fully enforceable, regardless of when it was enacted

I am told a 3:2 split decision is rare in the NH Supreme Court. So what happened? How could such unambiguous language, supported with the history of endorsing lawmakers stating their intent to validate precedent tax and spending caps, be ignored?

A clue is the incomprehensible twisted logic by which both the Superior and Supreme Court decisions are written, to argue around the plain language of the “grandfather” clause. Judge Temple wrote 11 lengthy footnotes to explain himself, and the three affirming Supreme Court justices added hypothetical language to the “grandfather clause” to justify their decision, which was summarily dismissed by the two dissenting justices. In presence of such disagreement, the court could have remanded the case back to Superior Court for a hearing on what had not been prior litigated in that court, namely the scope of the “grandfather” clause.

I suspect judicial misconduct, and collusion with city government officials. When the interests of private citizens compete with government interests before state courts, particularly on municipal budgetary issues, private citizens invariably lose.

So the citizens in Nashua lost in having their taxes protected against excessive budgetary demands by special interests such as government unions. Today, the nation as a whole is into ever more government spending, seemingly unconcerned about the financial burden placed on future taxpayers. Sadly Nashua, after 26 years, has lost its legal check on excessive spending demands.

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

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