Lekas' lawsuit dismissed

[Kat Kanning]

http://hosted.ap.org/dynamic/stories/N/NH_INSPECTION_LAWSUIT_NHOL-?SITE=NHCON&SECTION=HOME&TEMPLATE=DEFAULT

Judge dismisses lawsuit over property tax assessment inspections

CONCORD, N.H. (AP) -- A federal judge has dismissed a lawsuit by
several homeowners who challenged the state property tax inspection
law on grounds that it amounts to unreasonable search and seizure.

The group sued the state, the towns of Hollis and Hudson, and the
state Board of Tax and Land Appeals last August over the 1994 law that
allows cities and towns to inspect all homes for property-tax
assessment purposes.

Those who refuse to allow inspectors into their homes lose their right
to appeal their assessments.

The plaintiffs said that provision violates the Fourth Amendment,
which protects against unreasonable government searches and seizures.
   
U.S. District Judge Joseph DiClerico dismissed the case Thursday on
jurisdictional grounds, saying taxation disputes belong in state
courts. But he also set out a number of reasons why overturning the
law was a bad idea.

Among his criticisms was that it would make it difficult for
communities to collect taxes.

"Allowing a taxpayer to prevent an inspection of his or her home
absent a warrant during the appraisal process and then to challenge
the result of that process through abatement proceedings would
adversely impact property tax receipts," DiClerico wrote.

He said officials handling an appeal of a tax appraisal need access to
the property in question in order to determine whether it was fairly
assessed. To allow residents to refuse access but still appeal makes
the system almost unworkable.

"This decision is simply incorrect, and the Court should have allowed
our clients an opportunity to vindicate their Fourth Amendment
rights," said Bert Gall, a lawyer with the Washington-based Institute
for Justice, which filed the suit on behalf of the homeowners.

"We will continue to fight to make sure they have their day in court
so that government officials in New Hampshire cannot persist in
trampling upon their citizens' right to stop an unconstitutional
search of their home," he said.

The lawsuit was filed on behalf of three couples, Tony and Alicia
Lekas of Hudson, Phillip and Gina Smith of Hollis, and Anthony and
Christine Stanizzi, also of Hollis.

Anthony Stanizzi said Friday that they plan to appeal the ruling,
filing cases in both federal and state courts. He said DiClerico was
right that tax cases belong in lower courts, but wrong that this was a
lawsuit about taxes.

"If it was about payment of taxes, that's correct," Stanizzi said.
"But it's about Fourth Amendment rights and due process that happens
to be around an assessment and tax issue."

Both the Smiths the Stanizzis allowed exterior inspections of their
homes in 2002, but refused to allow inspectors inside. Both later
tried to appeal their assessments based on perceived mistakes in the
valuation of their land, but were denied.

The suit argued that the law puts people in the intolerable position
of consenting to an unconstitutional search, being punished for
refusing or living in fear that police will show up at their doors
with search warrants.

The Hudson couple, Tony and Alicia Lekas, are due to have their
property assessed next year. They have called the law a creeping
erosion of civil rights.

"We're not giving up," Phillip Smith said. "This is too important. And
we certainly don't want to be stopped on a technicality."

[Dave Ridley]

Well so I guess the feds are useless after all.

So any ideas what we could do about this on a grassroots level?    I grilled the Keene mayor about it when he was a guest on talk radio once but that's all I've done so far.

[Dave Ridley]

Also http://nashuatelegraph.com/apps/pbcs.dll/article?AID=/20050219/NEWS01/102190018

[shualp]

"Allowing a taxpayer to prevent an inspection of his or her home absent a warrant during the appraisal process and then to challenge the result of that process through abatement proceedings would adversely impact property tax receipts," DiClerico wrote.

Wrong.? What if the taxpayer was challenging the valuation of his land (as was the case for Smith and Stanizzi)?? Why does the interior of his house have to be inspected by a government-hired inpector? Whatever happened to due process--that is, being allowed to produce only the relevant evidence needed to convince the board that an assessment error has been made while still retaining fourth amendment rights?? This could be an independent appraisal, photographs, etc. The town's rep does not need to get into your house--baloney.? Punishing someone for exercising their 4th amendment rights is unconstitutional.? And how would this "adversely impact property tax receipts"?? The taxpayer still has to prove their case for a reduction in assessed value, all they are asking for is a chance to do so without being subject to an unconstitutional search.

He (Judge DiClerico) said officials handling an appeal of a tax appraisal need access to the property in question in order to determine whether it was fairly assessed. To allow residents to refuse access but still appeal makes the system almost unworkable.

Also wrong.? Again, why do officials need access if the taxpayer isn't appealing anything having to do with the interior of their house or can produce other compelling evidence to make their case?? As for making "the system almost unworkable", how do 48 other states manage to get by without such an onerous statute and in fact how did NH get by before 1994, when the law went into effect?

Trust me, life as we know it will not end if NH assessing officials don't have to rely on the threats and intimidation of the unconstitutional inspection statute to do their jobs. They'll just go back to doing what they did before 1994, but more importantly, we will still have the 4th amendment rights that our country is based on. Don't trash the Constitution for a little convenience.

http://www.ij.org/private_property/new_hampshire/2_17_05pr.html

http://www.hb-rights.org/1local/issue5

[Michael Fisher]

Trust me, life as we know it will not end if NH assessing officials don't have to rely on the threats and intimidation of the unconstitutional inspection statute to do their jobs. They'll just go back to doing what they did before 1994, but more importantly, we will still have the 4th amendment rights that our country is based on.

I'm very upset to hear about the outcome of this lawsuit, although it is not surprising given the history of governments.  Governments naturally destroy liberty, and do not return it for any reason unless there is a revolt.

If they end the inspections, we will have one of our rights back under the 4th amendment of the US constitution and the 19th article of the New Hampshire constitution.  However, liberty is receding in this area very quickly, and I believe it is becoming hopeless to work through the current system.

I believe that we no longer have ANY right to privacy, and I fear that much more drastic actions are necessary or we will never have the right to privacy again.

[Dave Ridley]

Welcome shualp!  Great to have you here; I hope you will stick around!  I was just getting started on an LTE about this but wasn't sure what to write, I think I will pass some of your ideas on in the LTE.

I don't even accept the idea that the current way of doing things is more convenient than 1994.   I say it seems more inconvenient...having govt. inspectors in your home...than *not* having them in your home.

[Dave Ridley]

LR wrote

>>I believe that we no longer have ANY right to privacy, and I fear that much more drastic actions are necessary or we will never have the right to privacy again.>>

Well probably whatever resistance there is needs to be drastic enough to generate decent media coverage.  That may mean that a modest  protest with signs and Gadsen flags is sufficiently drastic for now.  At some point that will not be news any more however and we'll have to be more creative.

[AlanM]

I agree with you Dada. What worked for two hundred years, didn't become magically unworkable.

[shualp]

Dada: Thanks for welcoming me.? It's great to be with "like-minded" folks.

The "convenience" I was referring to was the convenience of the assessors.? It's just more convenient for them if people let them in--they don't have to "estimate" the value or actually go to town hall to look at the public records of house plans, building permits issued, etc.

Most of these inspections are being contracted out to large companies from out of state.? I have it on good authority that the companies don't even perform background checks on these people when they hire them, although some towns do (ask your town whether they do or not before you let the inspector into your house).? Do you want a stranger walking through every room of your house? The law says you have to let them in or suffer the consequences.?

The inspections don't need to stop (although about half the states in the US don't do them at all precisely because they are an invasion of privacy and aren't necessary).? But they should be voluntary like they were before 1994, and homeowners not wanting to submit to a search/inspection should not be faced with loss of all right to appeal or the possibility of a warrant being issued.? Even the police need probable cause to obtain a warrant--not so with the tax assessor in NH. This flies in the face of the Constitution and all legal precedent (as will be found if the case is ever considered on its merits).

It is monumentally ironic that this is happening in the "Live Free or Die" state. So much for rugged New England individualism.

The Institute for Justice will continue to pursue this.? They just had an eminent domain case heard at the Supreme Court on Tuesday (Kelo v.New London) so they have their hands full at the moment.

[John]

Another sadly ironic thing is that Tuesday was the 25th Anniversary of the Lake Placid victory of the USA Olympic Hockey Team over the Big, Bad, Commies of the USSR, so I sent an email to some loved ones remembering how we ALL felt (at the time) about things "they did over there."

Our country would NEVER have stould for this back then!  (Nothing even close to this.)
What a difference 25 years has made.

Some people admit wanting to take "under god" out of the pledge.
But, it seems to me that some want to end the pledge there - leaving out "with Liberty and Justice for all" as well.

Who's winning now?