The Kansas Justice Institute has filed an amicus curiae (friend of the court) brief on behalf of Topeka resident Earl McIntosh, who is suing his city for refusing to place a voter-led initiative on the ballot that would require an election before the city could raise property taxes above the revenue-neutral rate. Currently, the Truth in Taxation law requires local governing bodies planning to increase property taxes from the previous year to hold a public meeting and vote on the budget increase.
The McIntosh Initiative goes a step further, requiring the holding of an election and letting voters, not elected bodies, decide the fate of the budget plan.
The City of Topeka argued the proposed spending increase was administrative in nature, not legislative, requiring specialized municipal knowledge not available to the public, and ignored the voter-led initiative.
Basically, the City of Topeka appeared to paternalistically maintain voters don’t possess the technical expertise to understand the nuances of municipal budgeting.
McIntosh sued but lost the first round as a district court sided with the city’s argument. Kansas Justice Institute, like The Sentinel, a subsidiary of the Kansas Policy Institute, is a nonprofit that offers its services free of charge to those bringing cases against governments on constitutional grounds. It then filed the appeal brief in support of the taxpayer. KJI argues taxation is a legislative prerogative; for instance, presidents and governors can’t raise or reduce taxes by executive order; that power rests with legislative bodies.
In their brief to the Court of Appeals seated in Shawnee County, Kansas Justice Institute Attorneys Sam MacRoberts and Jeffrey Shaw offered a history lesson spanning the Magna Carta in 1215 to the 1861 Kansas Constitution to show taxation is a legislative, not administrative, function:
Taxation is the quintessential legislative power, whereby the people freely consent to grant the government the revenue deemed necessary by the people. Executive and administrative officials throughout history have chafed at this limitation of revenue, and perhaps they have been correct at times. Yet the wisdom and propriety of a tax must always be left to the judgment of the people, either through representatives in the legislature or through their direct vote in a ballot initiative or referendum. The proposed taxing ordinance is purely legislative in nature and must be submitted to the vote of the people.
