COA affirms denial of petition to implement children’s services sales tax

Summary

• Missouri Court of Appeals affirmed denial of mandamus to force tax implementation
• Platte County voters approved children’s services tax, but it was not mandatory
• Court ruled statute gives county commission discretion using “may” language
• Decision clarifies distinction between voter authorization and legal obligation

A ballot measure approved by Platte County voters authorized the Platte County Commission and the Missouri Department of Revenue to implement a countywide sales tax but did not mandate it, the Western District Court of Appeals ruled on April 14, affirming denial of a petition for writ of mandamus.

In April 2024, a group of citizens requested that the Platte County Commission place a quarter-cent children’s services sales tax on the November 2024 general election ballot. The Commission refused.

In response, a campaign committee called Platte County 4 Kids circulated a petition to have the children’ services tax placed on the ballot. Funds generated by such a sales tax may be used to provide children in need with a variety of services, including temporary shelter, substance abuse and mental health treatment and assistance with pregnancies.

The committee submitted the required signatures, but the Board of Election Commissioners concluded it lacked the power to order the measure placed on the ballot. After the committee filed a writ of mandamus, a court ordered the placement of the children’s services tax on the general election ballot.

At the election, 56.46 percent of voters voted in favor of the levy.

However, the Commission adopted “An Order not Levying a New Sales Tax Pursuant to Section 67.1775, RSMo.” The order acknowledged that the majority of voters had voted in favor of the new sales tax but took the position that the electorate’s vote only authorized, but did not mandate, the tax to be levied.

Warren Plumb, treasurer of the committee, then filed a writ of mandamus seeking the court to order the Commission and Department of Revenue to implement the tax.

The circuit court denied the petition. Plumb appealed.

Writing for the court, Judge Alok Ahuja affirmed, joined by Judge Anthony Rex Gabbert and Senior Judge Patricia Breckenridge, sitting by special assignment.

Plumb argued that once voters approved the children’s services sales tax, the County Commission and the Department of Revenue had to impose and implement the tax.

But the court disagreed.

The first sentence of the section 67.1775 states: “The governing body of a city not within a county, or any county of this state may, after voter approval under this section, levy a sales tax not to exceed one-quarter of a cent in the county or city, … for the purpose of providing services described in section 210.861, including counseling, family support, and temporary residential services to persons nineteen years of age or less.”

“This sentence makes clear that it is the county’s governing body — not the voting public — which actually levies the sales tax,” the court wrote, as the fact that a tax may be levied “after” voter approval indicated that election results did not, on their own, have the effect of levying the sales tax.

Even more critical was the inclusion of the word “may” in the first sentence.

“By stating that the County Commission ‘may’ levy a children’s services sales tax, § 67.1775.1 did not impose a mandatory, ministerial obligation on the Commission which was enforceable by mandamus,” the court explained. “Instead, the General Assembly gave the Commission discretion whether or not to enact the taxing measure which voters had authorized.”

The sample ballot language supported this conclusion, as it asked voters whether they wished to “authorize” the county’s governing body to levy the tax. “Authorization” does not normally require an authorized party to act, but merely permits the authorized party to act if they choose, the court said.

This language was different than other statues enacted or reenacted at the same time, which used language like “impose” or “levy” instead of “authorize.”

The statute also contains a sentence specifying the consequences of a failed vote to authorize a new sales tax, providing that if the question received less than the required majority, “then the governing authority of the city or county … shall have no power to impose the sales tax unless and until” a new election is held.

“The statement that a negative vote will deny the county’s governing body the ‘power to impose the sales tax’ confirms that the purpose of the popular vote is to empower the governing body, not to actually impose the tax,” the court wrote.

Noting that taxing statutes are strictly and narrowly construed, the court affirmed denial of the petition.

“We recognize that the statutes involved in this case may not be models of clarity,” the court said. “Even if there may be some ambiguity in the relevant statutes, however, we are required to adopt the narrowest reasonable interpretation, because these are tax laws. Seen through that lens, we cannot say that the imposition of a children’s services sales tax, based solely on a favorable vote of the electorate, is ‘expressly’ or ‘clearly authorized,’ or that such power is ‘conferred by plain [statutory] language.’ The Platte County Commission, and the Department of Revenue, were not required to levy and implement a children’s services sales tax based solely on the favorable result of the November 2024 election. Because the Commission and Department did not have a mandatory, ministerial duty to implement the tax, the circuit court did not err when it denied mandamus relief.”

Rob A. Redman of Martinez Tobin & Redman in North Kansas City, who represented the Platte County Commission, said the court made the right decision.

“It was pretty obvious from reading the statute that the vote authorized the Commission to levy the tax, but the language of the statute gave the Commission the discretion to do so — or not to do so,” he said. “The main thing here is what the legislature’s intent was: to give discretion to the Commission.”

The Department was represented by Andrew Crane of the Attorney General’s Office, which declined to comment on the case.

Jefferson City attorney Charles W. Hatfield of Stinson, who represented Plumb, did not respond to a request for comment.

The case is Plumb v. Missouri Department of Revenue, No. WD88043.