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8/31/2016

Judge sides with library
Fincham orders tax increase placed on ballot

by Ivan Foley
Landmark editor

Put it on the ballot.

That was the ruling August 30 from Platte County Circuit Court Judge Thomas Fincham to the Platte County Commission in regard to the proposed 25% tax levy increase for the Mid-Continent Public Library.

The library district is asking voters to approve an increase in its tax levy from 32 cents to 40 cents per $100 of assessed valuation. The ballot question says the increase will be “for the purpose of renovating and replacing aging library facilities, enhancing spaces and programming for children and adults, expanding services and collections to serve public demand, and the for the general operations of public libraries.”

The county commission and its legal team had contended--and still do contend--that the tax levy ballot issue violates state statute and had asked the judge to issue a restraining order to prevent the question from getting on the ballot in Platte County in advance of the Tuesday at 5 p.m. deadline for doing so. The county contends a tax to erect buildings must contain a 10-year sunset provision. The proposed tax increase would be a “forever tax” that is estimated to bring in an additional $10 million per year to the library district, with around $2 million per year of that coming from Platte County taxpayers.

Meanwhile, the library had asked the court for a writ of mandamus--a court order from the judge--instructing the county to place it on the ballot, maintaining that the obligation for the county to do so is “mandatory, not discretionary.”

The Mid-Continent Public Library covers three counties, Platte, Clay and Jackson. Voters in all three counties are now scheduled to decide on the matter at the Nov. 8 general election. The outcome of the tax issue is based on the cumulative vote totals in all three counties. This means that if the measure carries cumulatively district-wide, Platte County taxpayers would still have to pay the tax increase even if a majority within the county voted no.

Fincham’s ruling was announced Tuesday morning, not in the courtroom but through a posting in online court records. The judge had heard two hours of courtroom testimony and arguments on the issue from attorneys for Platte County and the library district Monday morning. The announcement included no reasoning behind the judge’s ruling.

“Platte County remains confident that Proposition L seeks to impose a tax that is not authorized by Missouri law. Taxpayer dollars levied for building purposes are required by the legislature to be subject to a 10-year sunset provision. Platte County does not believe that taxpayers should be asked to vote on a Proposition that, even if passed, could not lawfully be collected,” Courtney Koger, attorney from the law firm Kutac Rock, special counsel hired to represent the county, told The Landmark after the judge’s ruling had been announced.

“While the ruling is disappointing, it is not the last word on the subject. The Platte County Commissioners are assessing the available options,” Koger said.

Later in the day Tuesday, Koger commented further at a meeting of the commissioners.

“We do not have the court’s reasoning. We’re hoping he will explain his reasoning,” Koger said in that meeting.

The county has the right to appeal the ruling. No decision has yet been made, but that option appears to be under strong consideration.

“As far as I’m concerned, we are not done fighting,” said Ron Schieber, presiding commissioner, Tuesday afternoon.

Library officials were thrilled with the decision. Officials in Clay and Jackson counties had already moved to place the issue on the ballot in those counties.

“It was the library board's desire in this matter to ensure that all voters of the library district had the opportunity to exercise their right to vote and voice their opinion on the future of their library. This ruling ensures that the voters of Platte County will have the same opportunity as the other voters in the library district,” said Steven Potter, library director and CEO.

The legal position of the county commission is that the library’s ballot question dealing with a general tax increase is not legal per statute, as the tax is being sought for the purpose of, among other things, to “renovate and replace aging library facilities.”

The county maintains that per state statute, a tax to erect and furnish buildings must be a tax that is subject to a mandatory 10-year sunset provision. The library’s proposal includes no sunset. The portion of the tax levy for erecting buildings must be separate from a levy for operations, the county maintains.

“MCL specifically has declined to submit separate proposals for the different tax increases, or to advise how much of the proposed increase is for erecting and furnishing library buildings and how much of the proposed increase is for operating expenses, so that Platte County can put the required separate proposals on the ballot,” the county said in its court filing.

Platte County, in short, had maintained the commission was not obligated to put the tax on the ballot since the proposal, in the county’s view, is illegal.

Without the sunset, the tax increase if approved by voters becomes a “forever tax,” that will continue to be collected even after buildings are erected and furnished, the county points out.

MCL operates 31 branches across the three counties and offers services through 36 service outlets.

In the court hearing Monday, the library’s attorney, Philip Grubaugh, argued that the library’s 10-year plan is only “aspirational” in nature, saying no specific vote to build new buildings had been conducted and no contracts to do so had been approved.

But on Tuesday afternoon, Potter indicated the district’s10-year plan has the intent to “build new buildings” or have some other party construct the buildings, which then would be leased by the library district, he said.

Juliet Cox, another attorney for Kutac Rock, remarked in court that it appears the library district “has been violating statutes” for years by constructing buildings from the operating levy.

“That doesn’t mean they should be allowed to continue to violate the law,” she said.

Near the end of the court hearing, Judge Fincham asked Cox that if he ruled in favor of the temporary restraining order keeping the measure off the ballot in Platte, since Jackson and Clay had already put the measure on the ballot and if it passes without Platte County voting on it, “wouldn’t that be taxation without representation?”

Cox and Koger agreed a decision to keep the tax off the ballot in Platte County could have far-reaching effects, including perhaps influencing Jackson and Clay to rethink the matter. Grubaugh, the library attorney, at one point said a ruling could create “a constitutional mess.”

In response to his question, Cox answered to the judge:

“I don’t believe the remedy would be to allow an illegal tax to be voted on. The principle should be ‘what does the law say?’”

Grubaugh argued to the judge that there is “no need for an extraordinary remedy.” He said previously the library district “has built buildings all across Platte County” with a general tax levy and previous commissioners not only knew this but also helped “turn shovels and cut ribbons” at those new buildings.

Grubaugh argued to the judge that “there is no irrepairable harm” in allowing the matter to be voted upon in Platte County and then “allowing the legal system to play itself out” with court challenges.

THE AFTERMATH
Platte County Commissioners, after the judge’s ruling came down, held a special, previously posted meeting to discuss the library tax proposal and to act upon a motion to put the proposal on the November ballot. The special meeting turned into a long discussion with commentary on the legal battle and what is or isn’t “good public policy.”

Schieber did not hide his disappointment at the court’s decision.

“Government bureaucracy always seems to have the upper hand when it comes to money, to the law and in the courts over taxpayers,” the presiding commissioner said.

Schieber said though he appreciated the input from those members of the public who do not share his opinion, and shares passion for libraries that MCL officials do, he will continue to fight for transparency and for good government and good public policy.

“We will get better government out of this, somehow, some way,” Schieber said.

Duane Soper and Beverlee Roper, associate commissioners, chimed in with similar comments to Schieber’s. All three commissioners were united on the issue and in agreement that the library’s proposal violates state statutes, it was said.

When it came time to vote on the official motion to place the issue on the ballot, Roper, an attorney, said the only reason she is voting yes is “because of my law license, I have to follow the order of the court.”

Soper added a similar comment. “By the order of the court, I am required to vote yes.”

Schieber voted no on the motion to place the matter on the ballot.

In comments from the public, John Elliott of rural Platte County, who is the Republican candidate for second district commissioner in November, thanked the commissioners for standing up for taxpayers on this matter.

“The bigger government, higher taxes, progressive mentality has permeated every part and every level of government. Taxpayers and their money are under assault from every direction and it seems very few people in the positions to do anything about it give a darn. You chose to stand with the taxpayers. You chose to make a hard decision, you chose not to make an easy go-along, get-along decision that too many others do,” Elliott said.

“I appeal to the voters in the three-county library district to vote no on the 25% library tax increase that is being forced upon us by an out-of-control, unelected and accountable bureaucracy. In fact I not only call on them to vote no, I call on them to actively campaign against this tax,” Elliott added.