Federal Judge Dismisses Lawsuit Challenging New Hampshire’s Unconstitutional Home Inspections

John Kramer
John Kramer · February 17, 2005

Washington, D.C.-Today, in a ruling that did not address the merits of the case, Judge Joseph A. DiClerico, Jr. of the Federal District Court of New Hampshire dismissed the lawsuit brought by New Hampshire residents Phil Smith and others against the state’s “Inspection of Property” law. That law allows government-hired inspectors to enter and search the home of every person in the state. Worse yet, the law punishes anyone who refuses to “consent” to a search of his home by terminating his right to appeal his property assessment. Indeed, under the law, it is easier for local governments to search the homes of law-abiding citizens than it is to search the homes of suspected criminals.

The Court made it clear that its decision did not address the substantive issue brought in the challenge—the law’s infringement of citizens’ basic Fourth Amendment rights to keep unwanted strangers out of their home. Instead, the Court said that it does not have jurisdiction over the case because of a federal law called the Tax Injunction Act. That law prevents federal courts from hearing cases in which taxpayers seek to avoid paying taxes.

But Smith and the other plaintiffs are not trying to avoid paying taxes—their challenge is aimed only at the law’s violation of their Fourth Amendment rights.

“This decision is simply incorrect, and the Court should have allowed our clients an opportunity to vindicate their Fourth Amendment rights,” said Bert Gall, the attorney for the Institute for Justice who is the lead counsel in the case, Smith v. Ayotte. “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.”

“This case is about protecting the Fourth Amendment rights of every New Hampshire homeowner guaranteed by the U.S. Constitution—it’s not about avoiding property taxes,” said Hollis resident Phil Smith. “This is a matter of principle and we look forward to having the merits of our case considered in court.”