Fourth Amendment Rights Regarding Home Inspections
A NH state law (RSA) is being used to intimidate homeowners into allowing interior inspections of their homes by tax assessors, even though the right to refuse a warrantless search without penalty is guaranteed by the Fourth Amendment. Update
"The tax assessor. I'm here to inspect the inside of your house. Of course, the fourth amendment says you don't have to let me in, but if you don't, you'll lose your right to appeal an inaccurate assessment, and oh, by the way, I can get a warrant and come back and then you can't say no. So, what's it gonna be--let me in now or let me in later?"
Sound far-fetched? Sadly, this scene is playing out now in New Hampshire, the "live free or die" state.
Open a US history book, and chances are you'll find some directly relevant history regarding the search of private homes for tax purposes. Before the American Revolution, King George issued Writs of Assistance that allowed his tax collectors to search the ships, warehouses and homes of the colonists, looking for contraband. This so terrorized and infuriated the colonists that, when the Bill of Rights was later added to the US Constitution, two amendments (the 4th and 5th) were specifically created to restrict the power of the new government to perform these acts.
A statewide property revaluation was underway in New Hampshire in 2002, precipitated by court decisions regarding state funding for education. As part of this process, many municipalities elected to perform full revaluations, including inspections of all properties. The town of Hollis contracted with Vision Appraisal to perform these inspections.
Objections to the manner in which these inspections were being carried out were first voiced in a Letter to the Editor printed in the Hollis Brookline Journal in March 2002. Hollis residents observed disturbing behavior by some inspectors in the course of the inspection process. As noted, in one case the inspector started to look into the windows when the owner would not let them inside. In another, the inspector told the homeowner that he would lose his right to appeal his assessment if he refused entry. And in yet another instance, the inspector told the owner that the town had the authority to obtain a warrant to enter his home if he refused to consent to an interior inspection. (Note that in the case of a policeman asking for consent to enter, threatening to obtain a search warrant would render the search nonconsensual, since consent must be given freely, without coercion).
A few weeks later, a short article appeared in the Journal, quoting the Chairman of the Selectmen as saying that homeowners did indeed have the right to refuse entry to the assessors, but anyone so doing would "forfeit their right to appeal the assessor's decision on what the home is worth" (a flawed concept--that exercising one's Fourth Amendment rights should result in the loss of other rights). At the time, a similar statement could be found at the Hollis Town web site under a Q&A document regarding revaluation (the document was later revised in August 2002).
The town's position was based, no doubt, on a NH state law (RSA 74:17) in effect since 1994 that states that any person refusing to let an assessor into their home "shall lose their right to appeal any matter pertaining to the property tax" and that assessing officials refused admittance "may obtain an administrative inspection warrant."
Many NH towns have used the law to "persuade" homeowners to allow interior inspections. See, for example, Common Revaluation Questions on the Claremont, NH web site. (EDITOR'S NOTE: Since the filing of the lawsuit challenging the inspection law, many NH towns have become more cautious about the material they post on their web sites, obviously fearing litigation).
This law appears to be in violation of the Fourth Amendment, and therefore unconstitutional, in two regards. First, the courts have held that residents (homeowners and renters) have the right to refuse a warrantless search without penalty. Two cases are particularly relevant:
Camara vs. Municipal Court of San Francisco--This landmark 1967 US Supreme Court decision laid the groundwork for many court decisions regarding property rights that have followed. The court held that a San Francisco ordinance allowing warrantless inspections in nonemergency situations was unconstitutional, that the renter therein did indeed have the right to refuse warrantless inspections of his apartment by a city inspector, and could not be prosecuted under the ordinance for doing so. The right to refuse a warrantless search of one's home in nonemergency situations has been reaffirmed many times--see, for example, this 1999 Philadelphia case.
In Park Forest, Illinois, renters of single family homes were being subjected to warrantless inspections, ostensibly to "ensure the quality of the housing stock." Read a summary of the case, a litigation background and a 1995 press release. In 1998, a federal district court judge struck down major portions of the law that allowed warrantless searches of Park Forest homes. The judge also held that the $60 fee the Village charged when an individual demanded a search warrant was an unconstitutional condition on the exercise of Fourth Amendment rights, but left open some issues. Finally, in 1999 a settlement was reached that resulted in the Village amending its housing code to prohibit unathorized, warrantless inspections, as well as paying $58,000 in attorney's fees for the plaintiffs.
These two cases support the notion that it is unconstitutional to penalize someone who chooses to exercise their fourth amendment right to refuse a warrantless search or inspection, and losing one's right to appeal an inaccurate or unfair assessment could hardly be viewed as anything but punishment. When not allowed access, the assessor can use other means to arrive at a reasonable estimate of the value of a property. Furthermore, if an interior inspection is denied and the resulting assessor's estimate is inaccurate, the burden of proof falls on the homeowner to correct the assessment, but this proof could take many forms (photographs, an assessment from an independent third party, a witness, etc.) that would not require town assessing officials to enter a home. See, for example, this 2006 New York decision in which the judge held that a homeowner could challenge his property assessment even though he refused to submit to an interior inspection.
The second unconstitutional aspect of the NH state law is the provision that allows administrative warrants to be obtained in cases where access has been refused. A legal opinion on this matter from the NY State Office of Real Property Services states that "compared to fire, health or building inspectors, in our opinion, assessors would be far less likely to demonstrate probable cause to obtain an inspection warrant." Another opinion from the California Attorney General's Office concludes that "issuance of administrative inspection warrants to (assessors) is not required for the performance of their statutory responsibilities". Instead, a statutory scheme is in place that penalizes homeowners who prevent an assessor from performing his duties by lying or refusing to respond to requests for information.
If you're a New Hampshire resident and you or someone you know has had their home inspected by assessing officials as a result of the issuing of an administrative warrant, we want to hear from you--please contact us at firstname.lastname@example.org. A Freedom of Information Act (FOIA) request in which every municipality in NH was contacted turned up not a single instance where a warrant had been issued to allow an interior inspection for tax assessment purposes. If true, then the provision of the law allowing a warrant to be issued is being used only to coerce and intimidate, to strike fear in the hearts of those who otherwise might wish to refuse entry to a tax assessor.
It is reassuring to know that town officials normally choose not to take the drastic step of obtaining an administrative warrant to perform an interior inspection. As a Portsmouth, NH official stated in 2005, "we don't follow that process." The fact that not a single municipality in NH has apparently ever used the unconstitutional law to obtain a warrant makes one wonder why a law granting such extreme power to assessors was necessary in the first place.
August 2004 -- A federal lawsuit challenging the constitutionality of New Hampshire's home inspection law was filed in Concord, NH on behalf of four NH residents by the Institute for Justice, a Washington-based public interest law firm dedicated to preserving individual rights. Read their press release and a more detailed summary providing the legal background of the case.
February 2005 -- A federal judge dismissed the lawsuit without considering the merits of the case, arguing that the federal court does not have jurisdiction over this matter due to the Tax Injunction Act. "This decision is simply incorrect, and the court should have allowed our clients an opportunity to vindicate their Fourth Amendment rights", said Institute for Justice attorney Bert Gall, lead counsel for the case. Read the NH Department of Justice's misleading, factually inaccurate summary of the case published in their 2004/2005 biennial report. And here is an interview with Dr. Phillip Smith, lead plaintiff in Smith v. Ayotte, the federal lawsuit that challenged NH's unconstitutional inspection statute.
What can you do? If you're a NH resident and want this law repealed, contact your legislator and make your feelings known (see "who is my legislator?" for contact information). Here's a letter you can send to your legislator. Read what one New Hampshire patriot did after finding out her rights were being trampled.
Are there any other states with similar laws regarding home inspections? Yes, a thorough investigation found that, while most states do respect the privacy rights of their citizens, three other states--Minnesota, Wisconsin and Nevada--also strip away your right to appeal your property tax assessment if you refuse to consent to a warrantless search/inspection of your property by the assessor. However, only New Hampshire and Wisconsin promise the worst of both worlds, both eliminating all rights of appeal and authorizing the issuing of administrative warrants to allow assessing officials into your house. Missouri is to be commended--in 2002, lawmakers there revised the statute regulating property assessment to require that property owners be informed of their rights relative to an on-site inspection:
"If a physical inspection is required..., the assessor shall notify the property owner of that fact in writing and shall provide the owner clear written notice of the owner's rights relating to the physical inspection."
Although the Fourth Amendment clearly prohibits warrantless searches or inspections of private residences in non-emergency situations, abuses by overzealous officials continue. This December 2002 article describes widespread warrantless searches in Belleville, Illinois to enforce the occupancy code and thereby prevent "overcrowding", and this 1998 posting describes another Illinois resident's inability to prevent intrusion by a town safety inspector into his home, ultimately resulting in his being cited for a toilet seat with "some paint rubbed off" (truly a dangerous situation). And in 1999, the ACLU filed a federal lawsuit challenging Marshalltown, Iowa's practice of doubling the assessments of homeowners who refused to allow warrantless inspections of their homes for tax purposes.
"Every man prompted by revenge, ill-humor, or wantonness to inspect the inside of his neighbor's house, may get a Writ of Assistance." -- James Otis, 1761.
"Physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." -- Payton vs. New York (US Supreme Court), 445 U.S. 573, 585 (1980).
"You can legislate all night long and you cannot legislate away the fourth amendment." -- North Little Rock City Attorney Randy Morley regarding entry into rental properties by code enforcement officers.
"Undaunted by the Constitution and Supreme Court precedent, and undeterred by the City's own code, Defendants (City officials) steadfastly maintained their absolute right to proceed unchecked into Plaintiffs' home. Along the way, Defendants complicated the injuries their conduct visited through a general disregard for the law, punctuated by a false verification and repeated misrepresentation to courts. Fortunately for Plaintiffs, they possessed the stamina necessary to vindicate their position that the government, even when serving administrative purposes, is subject to Fourth Amendment constraints." -- Maffucci v. City of Philadelphia, 1999.
"The essence of government is power; and power, lodged as it must be in human hands, will ever be liable to abuse." James Madison
"No one's life, liberty or property are safe while the legislature is in session." -- Mark Twain