Local residents request the City Council to postpone voting on Dover's tax cap until the Constitutionality of the existing tax cap provision can be determined.
Dover, NH - A group of Dover residents and voters today sued the City of Dover in Strafford County Superior Court. They are requesting injunctive relief to compel the City Attorney to restore language in the City Charter that was improperly taken out as well as a declaratory judgment saying that the City Attorney cannot amend language in the City Charter without a Court order or referendum vote.
The suit alleges that the City Attorney removed language from the City Charter that the voters previously adopted concerning a tax cap, and that this was illegal under Part I, Article 39 of the New Hampshire Constitution, because "only upon the approval of the voters' on a referendum" may the Charter be amended. Within the last week, the missing language was brought to the attention of the petitioners, Ed Bleiler, David Scott and Don Medbery. They, like other residents of Dover, received no notice that the language was amended, but had to find it for themselves on the City's website.
"Dover is ground zero for the tax cap fight," said Chris Buck, attorney for the Petitioners. "All New Hampshire taxpayers should be concerned about what happens here, because we're fighting to make sure that the taxpayers are allowed to implement a tax cap if they choose. The reality is that right now, it is still an open question as to whether the Supreme Court's decision in Cashin v. City of Manchester even applies to Dover or any other city."
The Cashin case involved a tax cap within the context of Manchester's Board of Aldermen form of government. Dover has a different form of government, namely a City Council. The Supreme Court also declined to address several questions presented at the lower court level and did not clearly rule that all tax caps in the State are preempted by the Legislature. The contention is that Cashin only invalidated the Manchester tax cap. This leaves open the possibility for the Petitioners that Dover's tax cap, as ratified in the City Charter by the voters in 2007, may be perfectly constitutional.
As for the method with which the provision of the City Charter was removed, Buck offered sharp criticism. "It's ridiculous that a City Attorney would remove language from a City Charter without giving any notice to the citizens. We don't allow secret government processes to change the most basic documents concerning our form of government. It is blatantly unconstitutional to do so, and it is always possible that one attorney's interpretation of a particular Supreme Court decision could be wrong. This is exactly why we have checks and balances in New Hampshire. In this case, the City Attorney was wrong in his interpretation, and he should have waited for a court order or a vote of the City Council to start tinkering with the Charter. He did neither."
As of Monday June 20, neither the New Hampshire Attorney General's office nor the New Hampshire Secretary of State had heard of any amendment proposed by the City of Dover. Secretary of State Bill Gardner was surprised that any language had been removed, altered or amended by the City without having heard about it first.
"If I were the City Attorney," said Buck, "I'd be pretty embarrassed."
The matter is pending in Strafford County Superior Court, and the City of Dover must provide an answer to the complaint or risk a default judgment in the Petitioner's favor. In light of the pending court case, Mr. Buck is asking the City Council to postpone voting on any new amendments to the Charter, because "It just doesn't make sense to vote on any amendments until we know for sure what the existing language of the Charter is."