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An Interview with Dr. Phillip Smith

by webmaster last modified 2008-01-01 03:47 PM

Q&A with Dr. Phillip Smith, lead plaintiff in Smith v. Ayotte, the federal lawsuit to stop New Hampshire's unconstitutional home inspections

Why are you doing this? Are you trying to reduce your property tax bill? This has nothing to do with paying lower taxes--it's about principle, about restoring a constitutional right that was in place for more than two hundred years when the New Hampshire legislature carelessly swept it away in 1994.  Our state government should treat New Hampshire's citizens respectfully, not pass laws that allow them to be manipulated with fear and intimidation.  All New Hampshirites should be outraged that this legislative blunder has resulted in the loss of some of their most precious rights.

Why was this law passed?  The inside story from Concord is that the unconstitutional RSA was promoted by the New Hampshire Municipal Association (the same folks who told you in November 2006 not to vote for strengthening eminent domain protection, which passed with an overwhelming 86% voter support) and the RSA was passed by the NH legislature in the early 1990's strictly for "convenience"--in other words, to make it easier for tax assessors to gain entry to the homes of NH residents to perform interior inspections. Now it's one thing to have your rights taken away by the Patriot Act to aid in the "war on terror", but it's indefensible to give away important constitutional rights simply to make it more convenient for the tax assessor to do his job.

Won't eliminating the law result in lower tax revenues for the cities and towns? How will they pay their bills? This is one of those ridiculous misconceptions put forth by those that support the law (i.e., tax assessors and town officials).  If you don't let an inspector into your house, they can still estimate the value accurately using other sources of information--an interview at the door, a questionnaire sent in the mail, plans and building permits on file at town hall, exterior construction quality, sales in the neighborhood, etc.  The town sets the tax rate each year based on the total assessed value of all property in the town, regardless of how that assessed value has been derived.  Don't worry, the town will always collect the money it needs simply by adjusting the tax rate accordingly.

Some have said that because NH doesn't have income or sales tax, we rely heavily on property taxes and the entire system of revenue collection will break down if this inspection law is repealed. Is that true?  Hardly.  The law only went into effect in 1994.  What happened before then? Were towns unable to assess and collect property taxes? Of course not.  Repealing the inspection law simply puts things back the way they were prior to 1994.  All we're asking is that New Hampshire's government treat its citizens with the respect they deserve, not using fear or punishment to coerce them into "consenting" to interior inspections.   

Won't it result in huge inequity if some people don't let the assessor in? No, of course not. In most towns that perform interior inspections during a revaluation, typically only 60-80% of homes are entered, so 20-40% of home interiors go uninspected. The NH Department of Revenue Administration (DRA) reviewed the accuracy of NH revaluation assessment data in 2003 and 2004 with field visits and concluded that in all towns they looked at, the data was "reasonably accurate".  The town of Kennebunk, Maine, had its revaluation results audited in 2004, and, although interior inspections were conducted in just 63% of homes, the results were well within IAAO standards and Maine legal requirements. I'm sure some people don't mind having an official-looking stranger with a clipboard walk through every room of their house, and will allow an interior inspection, but those of us who value our privacy should not be forced to submit to an inspection. Whether or not you allow the inspection, it should trouble you that the state has effectively taken away your right to make that decision. Assessors really don't have to enter every single home to come up with accurate assessments--that's a myth. Nationwide, roughly half of all states don't even perform any interior inspections at all.  Are all those assessments inaccurate? Of course not.

Isn't an interior inspection for tax assessment different from a "search" for criminal purposes? No, the law doesn't make a distinction between the two when it comes to your rights, as several court cases have shown. The US Constitution and Supreme Court precedent say that any entry into the home can be refused without penalty unless a warrant has been issued. An interior inspection for assessment purposes can be quite intrusive, as it typically involves the assessor or inspector walking through every single room of your house.

Were you uncooperative? Are you a troublemaker? My wife and I have been very cooperative, but our cooperation ends at the front door.  When the Vision Appraisal inspector arrived at our house in 2002, my wife politely refused to let him in, then answered all of his questions at the door (15 minutes worth) and allowed him to make measurements around the foundation on the outside.  We built our home in 1997, and the town's own building inspector went through the home when construction was completed, prior to issuing a certificate of occupancy (CO). Shortly thereafter, an assessor came by and asked to inspect the inside of our house.  We let him into the basement to measure a finished rec room, but did not allow him to go through the entire house because our detailed plans were on file at town hall--all he had to do was look at them.

What are you trying to hide? All searches of a person's home, for whatever reason, are by definition intrusive--and our constitutional right to privacy in our homes clearly outweighs the tax assessor's need to enter. The US Supreme Court has said that "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed."  So we don't have to explain our reasons for not wanting government officials coming through our homes--they have the burden of convincing a court why their need to enter is so compelling that it outweighs our fourth amendment rights.

I heard you lost your lawsuit. Does that mean you were wrong? We didn't "lose" the lawsuit at all. Rather, the judge dismissed the case on the grounds that the federal court did not have jurisdiction. The merits of the case were never considered or ruled on. Any constitutional expert would tell you that the NH inspection statute is unconstitutional. Interviewed by NHPR, Prof. Scherr of Franklin Pierce Law Center said "...the statute is written in a way that...punishes a person, effectively, for not letting the government in the house in order to assess." 

Do all NH towns follow this law, automatically denying abatement requests if an interior inspection is not permitted? I don't believe so.  I believe that town officials (Selectmen, etc.) may exercise discretion, and are free to apply common sense in considering all of the facts. In my case, the assessor recommended denying my abatement request and the Hollis Selectmen just went along with it, not questioning why an interior inspection was required when I had contested my land valuation. Since Selectmen are elected officials, they have an obligation to listen to the public, and generally do not act in a heavy-handed or unreasonable manner. Click here for an account of a town meeting in Wisconsin on exactly the same issue. 

Doesn't the town assessor have to enter your home to decide whether your abatement request should be granted? No, of course not. There should be a "reasonable standard" of proof that can be met without necessarily having to let a town official into your home. In my case, I contested the value assigned to my land, and I was willing to let the assessor onto my property to consider my arguments, just not into my house. In other cases, an appraisal by a third party company, a sworn affidavit from an "expert" witness, or photographs should be considered if they can prove that a homeowner's arguments are valid.  The idea that only the town assessor can provide evidence to approve or deny an abatement request is flawed.

I'm a NH resident. What can I do? Two things. First, contact your legislators and tell them that you find this law offensive, and would like it eliminated.  Second, if your town is undergoing a revaluation while the law remains in effect, contact your Selectmen and ask that they not use the statute to threaten homeowners with loss of appeal rights or, worse yet, issuance of a warrant, for refusing an interior inspection. What it comes down to is this--do you want to live in a police state where the government accomplishes its objectives through fear, or do you want to be treated with respect and dignity?  The choice is yours.

Who are you? Are you some kind of Libertarian nut? Did you just move here? No, I have never voted as a Libertarian and I have nothing to do with the Libertarian party, but I suppose I do agree with some of their principles.  I work for a large defense contractor, NH's second largest employer. I have been a resident of NH since 1996, and a resident of the United States since my birth in 1955.  I don't think it's too much to ask that the constitutional rights granted me at birth as a US citizen not be taken away so carelessly by the NH legislature.

Were you surprised to find this law on the books in NH, of all places?  Not just surprised...astounded.  New Hampshirites have a long history of standing up for their rights. In 1775, New Hampshire was the first colony to declare its independence from Britain.  The state motto "Live Free or Die" appears on every single license plate, and will soon be put on highway signs. This is the state where no gun license is required, the only state that does not have a compulsory seat belt law.  We residents of NH voted overwhelmingly in November 2006 to strengthen statutory and constitutional protections against the use of eminent domain to take private property for private use, so it's clear we value our property rights. In a state that places so much emphasis on individual freedoms, you don't expect the fourth amendment rights of homeowners to be trashed.  This law goes against everything New Hampshire stands for.

Is publicity a problem? Do enough people know about this issue?   Yes, publicity has been a problem, since most NH residents have their property assessed only once every 5 years or more. Having the story on the HB-Rights website has been a help--I understand the website has had close to a million hits over the past four years. I'm also hoping this interview will help to light a fire under NH legislators so they take action before more lawsuits are filed. This is not a Republican or Democratic or even Libertarian issue--it's an American issue.

Back to Fourth Amendment Rights Regarding Home Inspections


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