‘Elections have consequences’: Why Kansas conservatives may lose this JoCo tax fight
Could Kansas conservatives win the argument and lose the debate?
In a word, yes.
In another word, Kobach. We’ll get to that in just a minute.
A prime example of Kansas conservatives potentially winning the argument and losing the debate is the battle royale over how property is valued for tax purposes in the state, and in particular Johnson County.
The county essentially looks at the relative financial success of a big-box store in setting its fair market value. The retailers say state law dictates that the property itself be assessed, not the activity inside it. As their attorney Linda Terrill has explained, “If you win the lottery on Monday, your house isn’t suddenly worth more on Tuesday. And if you file bankruptcy on Wednesday, your house is still worth exactly the same thing.”
To this point, the state Board of Tax Appeals and courts have agreed with the retailers in multiple cases. Just last June, the Kansas Board of Tax Appeals ruled Johnson County had overvalued Walmart and Sam’s Club properties by $60 million.
Yet, Johnson County Commission Chairman Ed Eilert warned the liberal Johnson County Move On group Tuesday night, in fairly hyperbolic terms, of a coming property tax armageddon if the state doesn’t bend to the county’s way of assessing big-box commercial stores.
He said that could happen in three different ways: The Legislature could pass a law; members of the Board of Tax Appeals could change; or the courts could change their rulings.
There may not be an appetite for capitulation in the Legislature. And the Kansas Chamber of Commerce is so on top of this issue that its representative at the Move On event Tuesday stood and rebutted Eilert’s arguments.
Moreover, Eilert’s remarks reverberated in the Capitol rotunda in recent days, with legislators agog that a sitting county official would imply that, in the absence of changing the law, Kansas should simply change the people who interpret it.
That’s like saying if a basketball team doesn’t like the fouls being called on it in a game, it should hope for new referees.
But — and here’s the cautionary flag for conservatives — new referees are exactly what we may get.
Eilert told the crowd that Democratic Gov. Laura Kelly has it within her power to reshape the three-member Board of Tax Appeals with two appointments now and another next year.
And consider this: Although court precedent is with the retailers — in 1980 the Kansas Supreme Court wrote that, “The occupation in which such property has been used by the seller is immaterial in determining the fair market value of such property” — the tax appeals that are bubbling up through the courts will ultimately land on a Kansas Supreme Court that suddenly found the right to abortion in the thicket of the state constitution. And Kelly selects Supreme Court justices when there’s a vacancy.
The Kansas Chamber is stoic about it all. “While the makeup of the Kansas Board of Tax Appeals and Kansas Supreme Court may change,” chamber Vice President of Communications Sherriene Jones-Sontag told The Star, “the Kansas business community remains confident the courts will continue to uphold the state’s law … . Kansas law is clear that only the property should be considered and not the economics of the owner/user of the property.”
Still, as they gather for their state convention in Olathe Jan. 31-Feb. 1, Kansas Republicans should look at this titanic tax tug-of-war to remind themselves just how much power they ceded in GOP gubernatorial candidate Kris Kobach’s dreadful campaign and eventual loss to Democrat Kelly in 2018.
It’s also a reminder, says Kansas Policy Institute Chief Executive Officer Dave Trabert, that without a provision for Senate confirmation of state Supreme Court justices, the Kansas governor has enormous power.
“As the saying goes,” Trabert said, “elections have consequences.”