Judge: Proposed Concord tax cap unconstitutional

By JOHN DISTASO
Senior Political Reporter

from

http://www.unionleader.com

 

CONCORD – A limited-government advocacy group’s efforts to have Concord voters decide in November whether to adopt a cap on tax rate and spending hikes suffered a setback today when a judge found the proposed charter amendment in violation of state law and unconstitutional.
Merrimack County Superior Court Judge Diane Nicolosi upheld the city council’s challenge to the New Hampshire Advantage Coalition’s proposal to let voters choose whether the city should limit spending and tax increases to no more than the previous year’s national consumer price index. If passed by the voters, the constraint could have been be overridden only by a two-thirds vote of the city council.
The coalition’s attorney and executive director said the ruling will be appealed to the state Supreme Court. Although the decision is specific to Concord, it provide a blueprint for legal challenges to caps in other communities. The judge noted that six other New Hampshire municipalities have adopted similar charter amendments, although none have been challenged in court.
Nicolosi ruled the proposed charter amendment violates a state law that spells out how cities must conduct their budget approval process. The judge pointed out that the proposed charter amendment “would interfere with the city manager’s duty,” as directed in the statute, to “present to the city council an original budget that is based upon the financial needs of city departments.
“Although the proposed amendment does not preclude the city manager from submitting a budget based on the responsibilities of the city, it essentially makes this step futile because the proposed amendment would place restraints upon any budget that could be approved by the city council without a two-thirds override vote,” the judge ruled.
Voters can have a say in the local budget after it is proposed by the city manager and before it is voted on by the city council, but under state law and a prior Supreme Court ruling, “the court finds that the voters are not entitled to the type of input into the creation of the original budget that proposed amendment would provide,” the judge wrote.
She also wrote in the 16-page decision that the law relied on by the coalition only allows charter communities to change their form of government, something the proposed Concord amendment does not do.
The state constitution only allows municipalities “to adopt or amend their charters or forms of government in any way which is not in conflict with general law,” she wrote. And since the amendment conflicts with the law, she ruled, it is not only illegal, but also unconstitutional.
The coalition tried to have Manchester residents vote on a similar cap last November, but the city’s aldermen successfully challenged it and were able to delay a vote until November of this year.
Deputy City Solicitor Thomas Arnold said he was analyzing the decision, but said, “It may well have an impact on the City of Manchester.”
He said portions of the decision “seem to have wider applicability” beyond Concord and that he will eventually report his analysis to the Board of Mayor and Aldermen.
Concord City Solicitor Paul Cavanaugh said the judge ruled that the amendment “was basically interfering with legislative action in that it was setting parameters for control of the budget, and that is something the Legislature has passed legislation on, detailing how the budget will be initiated by the manager and submitted to the council.”
Concord City Manger Thomas Aspell, Jr., said the ruling was not a surprise.
He said the city council already provides him with a non-binding “tax rate target” each year.
“This year it was zero percent,” he said. “Every budget that’s been put together in the 10 years since I’ve been here has met that tax rate target.
“This was not an issue of taxes. It was an issue of constitutionality for us,” Aspell said.Franklin, Derry and Nashua have long-standing caps, and the coalition spearheaded efforts to have caps passed in Rochester, Dover and Laconia in recent years.
“We’re disappointed with the decision,” said coalition attorney Richard Lehman. “We think there are some additional issues that the court might have missed that will make for a good appeal.”
“It’s legislating from the bench,” said coalition president Michael Biundo. “While we’re disappointed, we’re going to fight this to the highest level. We feel that the voters and municipalities that have charters have the right to limit spending through the initiative process.”
Biundo said there will also be an effort in the Legislature next year to address the law cited by the judge.
“Even before this decision, we felt that there are holes in the law that need to be cleared up and that there should be a way to allow every community across the state to vote on caps,” he said.
Biundo said towns without charters have so far been able to vote only on non-binding caps.
Manchester Mayor Frank Guinta, who backs the tax cap initiative, said that until the Supreme Court rules on an appeal, “this had no bearing” on his city.
“I am confident that a favorable Supreme Court ruling will re-affirm what thousands of Manchester residents of all parts of the political spectrum already know, that a spending cap is an effective and legal means to be a check on elected officials and their ability to spend taxpayer dollars,” Guinta said