In re Equalization Appeal of Target Corp. ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 119,228
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Matter of the Equalization Appeal of
TARGET CORPORATION, DAYTON HUDSON CORPORATION,
and
EIGHTH STREET DEVELOPMENT COMPANY
for the 2016 Tax Year in Johnson County, Kansas.
MEMORANDUM OPINION
Appeal from Board of Tax Appeals. Opinion on remand filed January 14, 2022. Reversed and
remanded with directions.
Kathryn D. Myers and Ryan Carpenter, assistant county counselors, for appellant Board of
Johnson County Commissioners.
Linda Terrill, of Property Tax Law Group, LLC, of Overland Park, and R. Scott Beeler and
Carrie E. Josserand, of Lathrop Gage LLP, of Overland Park, for appellees.
Before ARNOLD-BURGER, C.J., GREEN and BUSER, JJ.
PER CURIAM: This case returns to our court upon remand by the Kansas Supreme
Court. See In re Equalization Appeal of Target Corp., 311 Kan. 772, 466 P.3d 1189(2020). Target Corporation, Dayton Hudson Corporation, and Eighth Street Development
Company (collectively Taxpayers) appealed from Johnson County's (County) 2016 ad
valorem tax valuations on seven commercial properties. The Board of Tax Appeals
(BOTA) issued a summary decision with lower valuations than assessed by the County.
1
Generally, an aggrieved party must request a full and complete opinion from
BOTA within 14 days of the summary decision before BOTA's order becomes final and
subject to review on appeal. The Taxpayers requested a full and complete opinion from
BOTA, but after the time to request a full and complete opinion had expired, the
Taxpayers withdrew their request. The County, which did not separately request a full
and complete opinion, objected to the Taxpayers' withdrawal of their request because it
effectively cut off the County's ability to appeal. When BOTA declined to issue a full and
complete opinion, the County appealed.
Our court dismissed the County's appeal, finding that we did not have jurisdiction
to consider whether BOTA erred in declining to issue a full and complete opinion. The
Kansas Supreme Court reversed that decision and remanded the case for our court to
determine whether BOTA acted properly in failing to issue a full and complete opinion.
On remand, we hold that under the circumstances, BOTA's actions in not issuing a
full and complete opinion were unreasonable and constituted error. We reverse BOTA's
order and remand the case with directions to issue a full and complete opinion.
FACTUAL AND PROCEDURAL BACKGROUND
The Taxpayers own commercial real estate in the County. They appealed the
County's ad valorem tax valuations for the 2016 tax year on seven commercial properties.
BOTA issued a summary decision on February 20, 2018, that lowered the County's
valuations on the Taxpayers' properties.
Within a week, the Taxpayers filed a request for a full and complete opinion. The
County did not file a separate request. On March 27, 2018, after the time to request a full
and complete opinion had expired, counsel for the Taxpayers emailed BOTA and stated:
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"I have confirmed with BOTA counsel that the only Request for a Full & Complete
Opinion in the Johnson County Target cases was from the Taxpayer.
....
"Relying on that confirmation from BOTA, the taxpayer withdraws its request for a Full &
Complete Opinion in each of the above matters, which withdrawal results in the matters
being permanently closed."
The next day, the County filed an objection to the Taxpayers' attempt to withdraw
their request for a full and complete opinion. The County characterized the Taxpayers'
request as a motion to dismiss and asserted that BOTA had no discretion to determine
whether to grant the request. The County asserted that the Taxpayers' request was
designed to prejudice the County because the Taxpayers waited to make their request
until after the time for the County to make its own request had expired. The County
concluded by asking BOTA to issue a full and complete order or, at the very least, to
reconsider its summary decision. In reply, the Taxpayers argued that the County lost its
right to appeal when it failed to file a timely request for a full and complete opinion.
BOTA responded with an order titled "Order Denying Reconsideration." BOTA
found "that the County has not provided a legal or statutory basis to show that the
Taxpayers have no right to voluntarily withdraw their request for a full and complete
opinion." Further, BOTA held that the County's motion for reconsideration was untimely.
The County appealed to our court. Its petition for judicial review specified that it
was appealing from (1) BOTA's failure to issue a full and complete opinion, (2) the Order
Denying Reconsideration, and (3) the summary decision. The Taxpayers moved for
involuntary dismissal of the petition, arguing that this court lacked jurisdiction to
consider the appeal because the County failed to timely request a full and complete
opinion. The County objected to the motion for involuntary dismissal. We granted the
Taxpayers' motion for involuntary dismissal and denied the County's later motion for
rehearing or modification.
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The Kansas Supreme Court granted the County's petition for review. In its
opinion, the court affirmed in part and reversed in part our court's decision. The Supreme
Court affirmed the dismissal of the appeal as it pertained to the County's effort to obtain
judicial review of the summary decision. 311 Kan. at 781. But, it found the Court of
Appeals "erred when it concluded it lacked jurisdiction over the County's petition for
judicial review to the extent the petition alleges BOTA illegally failed to timely issue a
full and complete opinion." 311 Kan. at 780. The Supreme Court explained that under the
Kansas Judicial Review Act, judicial review of nonfinal actions is appropriate where a
person is aggrieved by the failure of an agency to act in a timely manner or as otherwise
required by law. 311 Kan. at 776-77; see K.S.A. 77-631. The Supreme Court remanded
the case to our court with directions "to consider whether the Board acted properly in
failing to issue a full and complete opinion." 311 Kan. at 780.
JURISDICTION
The Kansas Supreme Court relied on K.S.A. 77-631 in concluding that our court
has jurisdiction to review the County's allegation that BOTA acted improperly in failing
to issue a full and complete opinion. This statute provides: "A person aggrieved by the
failure of an agency to act in a timely manner as required by K.S.A. 77-526 or 77-549,
and amendments thereto, or as otherwise required by law, is entitled to interlocutory
review of the agency's failure to act." K.S.A. 77-631.
The Taxpayers dedicate several pages of their brief to arguing that the County is
not "aggrieved" within the meaning of K.S.A. 77-631. They assert that our Supreme
Court found "the County may have been aggrieved by BOTA's finding that it did not
meet its burden of proving the valuations it sought for Taxpayer's property," but the
County "certainly cannot claim it was aggrieved by BOTA's failure [to] fulfill the
Taxpayer's request for a Full and Complete Opinion, which the Taxpayer later withdrew,
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when the County did not make any such request." The Taxpayers fault the County for
failing to address this point in its appellant's brief.
The problem with the Taxpayers' argument is that it misreads our Supreme Court's
opinion. The County was not required on remand to address why it was "aggrieved"
within the meaning of K.S.A. 77-631 because the Kansas Supreme Court already decided
that issue. While considering whether jurisdiction existed to review BOTA's refusal to
issue a full and complete opinion, the court held that "BOTA's inaction, i.e., a failure to
act, can only be considered an interlocutory (nonfinal) decision." 311 Kan. at 777.
Accordingly, the court looked to the rules governing review of nonfinal actions, primarily
K.S.A. 77-631. 311 Kan. at 776.
In considering whether K.S.A. 77-631 established jurisdiction for review of the
County's claims, the Kansas Supreme Court specifically considered "whether the County
is 'aggrieved' by BOTA's failure to act, as K.S.A. 77-631(a) requires." 311 Kan. at 778. It
acknowledged but rejected the Taxpayers' argument that the County could not be
aggrieved by BOTA's failure to issue a full and complete opinion because the County did
not make its own request for a full and complete opinion. The Supreme Court stated that
"this argument lacks a basis in K.S.A. 74-2426(c) because nothing in the statute restricts
the right to judicial review in the Court of Appeals to only those parties who request a
full and complete opinion." 311 Kan. at 778. The Supreme Court concluded that the
County was "aggrieved by BOTA's failure to issue a full and complete opinion because
that inaction cuts off the County's right to seek judicial review of BOTA's lower
valuation determinations." 311 Kan. at 779. In remanding the case to our court, the
Supreme Court "emphasize[d] the limited scope of the Court of Appeals' inquiry on
remand," noting that "K.S.A. 77-631(a) provides only for 'review of the agency's failure
to act'" and not the summary decision. 311 Kan. at 780.
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In summary, the Kansas Supreme Court clearly held that the County was
"aggrieved" within the meaning of K.S.A. 77-631. If it had not, then it would not have
found that this court had jurisdiction to consider whether BOTA erred in refusing to issue
a full and complete opinion. For these reasons, the Taxpayers' jurisdictional argument is
unpersuasive.
DID BOTA ACT PROPERLY IN FAILING TO ISSUE A FULL AND COMPLETE OPINION?
The sole issue before our court on remand is whether BOTA erred in failing to
timely issue a full and complete opinion. In re Equalization Appeal of Target Corp., 311
Kan. at 780. The County makes three arguments. First, it asserts that BOTA erroneously
applied the law when it failed to issue a full and complete opinion because the clear,
unambiguous language of K.S.A. 74-2426 requires BOTA to issue a full and complete
opinion once it has been requested unless the taxpayer appeals to the district court.
Second, the County claims that BOTA should have considered withdrawal of the
Taxpayers' request for a full and complete opinion as a motion for voluntary dismissal
and applied the attendant standards. Third, the County argues that BOTA's action was
unreasonable, arbitrary, and capricious because it allowed the Taxpayers to control the
County's ability to appeal further. We will individually consider these arguments.
We begin the analysis with our standard of review. Resolving the issues in this
case requires statutory interpretation. Questions of statutory interpretation are questions
of law subject to unlimited review. "Although an appellate court gives deference to the
agency's interpretation of a statute, the final construction of a statute lies with the
appellate court, and the agency's interpretation, while persuasive, is not binding on the
court." In re Appeal of United Teleservices, Inc., 267 Kan. 570, Syl. ¶ 2, 983 P.2d 250(1999). "Because a rebuttable presumption of validity attaches to all administrative
agency actions, the burden of proving arbitrary and capricious conduct lies with the party
6
challenging the agency's actions." In re Equalization Proceeding of Amoco Production
Co., 33 Kan. App. 2d 329, 333, 102 P.3d 1176 (2004); see K.S.A. 77-621(a)(1).
K.S.A. 74-2426 Does Not Govern Withdrawal of a Request for a Full and Complete
Opinion
When the Taxpayers filed their request for a full and complete opinion, they did so
under K.S.A. 74-2426. This statute provides in relevant part:
"Any aggrieved party, within 14 days of receiving the board's [summary] decision, may
request a full and complete opinion be issued by the board in which the board explains its
decision. Except as provided in subsection (c)(4), this full opinion shall be served by the
board within 90 days of being requested." K.S.A. 74-2426(a).
Subsection (c)(4) of the statute provides that taxpayers can appeal from a summary
decision by filing a petition for review in district court. K.S.A. 74-2426(c)(4)(B). If the
taxpayer elects this option, it must notify BOTA and the other parties. K.S.A. 74-
2426(c)(4)(C). Upon receiving this notice, BOTA's "jurisdiction shall terminate,
notwithstanding any prior request for a full and complete opinion under subsection (a),
and the board shall not issue such opinion." K.S.A. 74-2426(c)(4)(C).
The County argues that the plain language of K.S.A. 74-2426 required BOTA to
issue a full and complete opinion. Once a request for a full and complete opinion is made,
the County claims "there is only one way that BOTA is released from its obligation to
issue a full and complete opinion," and this would be if the Taxpayer files a petition for
review in the district court and notifies BOTA and the other parties.
In response, the Taxpayers assert that the County's argument is unreasonable, and
that reading K.S.A. 74-2426 to prohibit withdrawal of a request for a full and complete
opinion "would be undesirable and unworkable precedent, as it would necessitate that
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BOTA . . . expend significant resources issuing decisions or making opinions that are no
longer wanted or requested."
The most fundamental rule of statutory construction is that the intent of the
Legislature governs if that intent can be ascertained. Harsay v. University of Kansas, 308
Kan. 1371, 1381, 430 P.3d 30 (2018). An appellate court must first attempt to ascertain
legislative intent through the statutory language enacted, giving common words their
ordinary meanings. Nauheim v. City of Topeka, 309 Kan. 145, 149, 432 P.3d 647 (2019).
When a statute is plain and unambiguous, an appellate court should not speculate
regarding the legislative intent behind that clear language, and it should refrain from
reading something into the statute that is not readily found in its words. See Harsay, 308
Kan. at 1381.
The County's argument based on the plain language of K.S.A. 74-2426 is not
persuasive. While the statute certainly controls BOTA's actions when a party requests a
full and complete opinion, it is silent as to BOTA's duty when that request is withdrawn.
The statute does not obligate BOTA to issue a full and complete opinion if it is not
requested by the aggrieved party. Whether BOTA should allow a party to withdraw a
request for a full and complete opinion is simply not addressed by the provisions of
K.S.A. 74-2426. Under these circumstances, we decline to read something into the statute
that is not readily found in its words. See Harsay, 308 Kan. at 1381. We are persuaded
that the plain language of the statute does not require reversal of BOTA's decision.
K.S.A. 2020 Supp. 60-241(a)(2) Does Not Govern Withdrawal of a Request for a Full and
Complete Opinion
K.S.A. 74-2426 is not the only statute governing BOTA's procedures. Both the
Kansas Administrative Procedure Act (KAPA), K.S.A. 77-501 et seq., and BOTA's
regulations provide additional guidance. In particular, the regulations provide that, "[t]o
8
the extent that the Kansas administrative procedure act or procedures prescribed by other
statutes do not specifically apply, the Kansas code of civil procedure, and amendments
thereto, shall apply in all proceedings before the regular division of the court." K.A.R.
94-5-1(a) (2016 Supp.).
The BOTA regulation adopting the Kansas Code of Civil Procedure (KCCP)
provides the foundation for the County's next argument. The County contends the
Taxpayers' withdrawal of their request for a full and complete opinion should have been
treated as a motion for voluntary dismissal governed by K.S.A. 2020 Supp. 60-241. This
statute allows a plaintiff to voluntarily dismiss an action without a court order in two
circumstances: (1) by filing a notice of dismissal before the opposing party serves either
an answer or a motion for summary judgment, and (2) by filing a stipulation of dismissal
signed by all parties who have appeared. K.S.A. 2020 Supp. 60-241(a)(1). Otherwise, "an
action may be dismissed at the plaintiff's request only by court order, on terms that the
court considers proper." K.S.A. 2020 Supp. 60-241(a)(2). These dismissals are without
prejudice, unless the notice, stipulation, or court order states differently. K.S.A. 2020
Supp. 60-241.
The County asserts that K.S.A. 2020 Supp. 60-241(a)(2), requiring a court order
for dismissal, should have governed the present case and that BOTA should have
considered how the voluntary dismissal impacted the County's rights. The County argues
that after litigating the case for over three years, "both the Taxpayer and County had
become fully vested in the litigation and both held significant interest in BOTA's issuance
of a full and complete opinion." By allowing the Taxpayers to withdraw their request for
a full and complete opinion, the County argues, BOTA effectively barred the County
from exercising its appeal rights. The County cites several voluntary dismissal cases in
support, although none of them relate to the circumstances presented in this appeal.
9
The obvious flaw in the County's argument is that the Taxpayers' withdrawal of
their request for a full and complete opinion was not a voluntary dismissal. While the
Taxpayers' decision not to pursue an appeal did effectively conclude the case, the case
did not end because it was dismissed. Rather, the Taxpayers' withdrawal of their request
concluded the case insofar as it precluded both themselves and the County—which had
not made its own request for a full and complete opinion—from appealing BOTA's
decision on the merits to our court. Accordingly, we conclude the provisions of K.S.A.
2020 Supp. 60-241(a)(2) relating to a voluntary dismissal of a case are not applicable to
the Taxpayers' withdrawal of their request for a full and complete opinion.
BOTA Acted Unreasonably When It Failed to Issue a Full and Complete Opinion
There is nothing in K.S.A. 74-2426, the KAPA, BOTA's regulations, or the KCCP
that directly govern whether a party may withdraw a request for a full and complete
BOTA opinion or whether BOTA has a legal obligation to issue a full and complete
opinion after a party makes such a withdrawal. There is, however, K.S.A. 2020 Supp. 60-
267(b), a "gap filling" statute found in the KCCP. This statute provides: "Procedure
when there is no controlling law. In all cases not provided for by this article, the district
courts may regulate practice in any manner consistent with this article and rules
prescribed by the supreme court." K.S.A. 2020 Supp. 60-267(b). Importantly, this statute
is made applicable to BOTA proceedings by K.A.R. 94-5-1.
District court or administrative agency actions taken pursuant to K.S.A. 2020
Supp. 60-267(b) have not been frequently analyzed by Kansas courts, and caselaw
provides minimal guidance. However, since the statute grants broad discretion, the abuse
of discretion standard of review should apply. "[A]n abuse of discretion occurs when the
action taken is arbitrary, fanciful, unreasonable, or not supported by the facts." Denning
v. Johnson County Sheriff's Civil Service Board, 46 Kan. App. 2d 688, 701, 266 P.3d 557(2011); see also K.S.A. 77-621(c)(8) (permitting appellate courts to grant relief from an
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agency decision when the agency action is unreasonable, arbitrary, or capricious). An
agency action is "'unreasonable'" if it is "taken without regard to the benefit or harm of all
interested parties which is so wide of the mark that its unreasonableness lies outside the
realm of fair debate." In re Tax Application of Emporia Motors, Inc., 30 Kan. App. 2d
621, 624, 44 P.3d 1280 (2002).
On appeal, the County argues that BOTA's refusal to issue a full and complete
opinion was unreasonable, arbitrary, and capricious. Its primary argument is that
"BOTA's action essentially provided the Taxpayer an opportunity to eliminate the
County's right to appeal this matter." By acting in this manner, the County claims that
BOTA improperly granted control of the proceedings to the Taxpayers. The County also
argues that BOTA deprived it of an opportunity to be heard on the matter and failed to
consider how the action would affect the County's rights. The County asserts that the only
remedy for this unreasonable, arbitrary, and capricious action is to remand this case to
BOTA with directions to issue a full and complete opinion.
In response, the Taxpayers dispute that they or BOTA deprived the County of its
appellate rights. They point out that the County failed to take the steps proscribed by
statute in requesting a full and complete opinion. The Taxpayers state that the County
"cannot complain that it lost its ability to appeal when its own decisions and inactions are
the very reason it finds itself here."
We are persuaded that the County has the better argument. We find that, under the
circumstances, BOTA acted unreasonably in failing to issue a full and complete opinion,
and thus abused its discretion. Several reasons, considered collectively, support our
decision.
First, BOTA's order denying the County's objection to the Taxpayers' notice of
withdrawal consisted of only one sentence: "The Board finds that the County has not
11
provided a legal or statutory basis to show that the Taxpayers have no right to voluntarily
withdraw their request for a full and complete opinion." Our Supreme Court
characterized this order as "at best cryptic about any statutory obligation [BOTA] might
have to issue a full and complete opinion," and observed that BOTA's "sidestepping" of
the issue was nevertheless a rejection of the County's argument and a declaration that a
full and complete opinion would not be issued. In re Equalization Appeal of Target
Corp., 311 Kan. at 777.
BOTA's one-sentence order did not address several legal arguments raised by the
County in its objection to the Taxpayers' action. Moreover, Taxpayers filed a four-page
response to the County's arguments which included raising a jurisdictional bar to the
County's objection, yet these arguments were not mentioned, let alone discussed, in the
order. BOTA's cursory order does not reflect a carefully considered, reasoned decision by
an administrative Board about an important tax assessment matter.
The perfunctory handling of this matter is especially concerning given the
directives in K.S.A. 74-2433(g):
"It is the intent of the legislature that proceedings in front of the board of tax
appeals be conducted in a fair and impartial manner and that all taxpayers are entitled to a
neutral interpretation of the tax laws of the state of Kansas. The provisions of the tax laws
of this state shall be applied impartially to both taxpayers and taxing districts in cases
before the Board."
BOTA's one-sentence order provides the appellate courts and the parties with no
assurance that its order reflected a neutral interpretation of the tax laws impartially
applied to both parties.
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Second, the timing of the Taxpayers' notice of the withdrawal of their request for a
full and complete opinion raises serious questions. As our Supreme Court summarized
the County's argument, the County
"asked BOTA to issue the full and complete opinion, anyway, arguing no statutory
authority permitted a request to be withdrawn once it is made. It also asserted the
Taxpayers' maneuver was designed to prejudice the County. It noted [the Taxpayers]
waited until it was too late for the County to make its own request in an obvious attempt
to prevent it from appealing the lower valuations." 311 Kan. at 773.
The Taxpayers requested a full and complete opinion six days after BOTA issued
its summary decision. This request was timely, given the requirement of K.S.A. 74-
2426(a) that any aggrieved party within 14 days of receiving the board's decision may
request a full and complete opinion. The Taxpayers' request was consequential. It put
BOTA and the County on notice that BOTA's "full opinion shall be served by the board
within 90 days of being requested." K.S.A. 74-2426(a). Upon the filing of the full and
complete opinion—a final order—any aggrieved party may file a petition for review in
the Court of Appeals. K.S.A. 74-2426(c)(4)(A). But the Taxpayers' notice of withdrawal
of its request, on March 27, 2018, was made one month after its request, well beyond the
14-day deadline for the County to ask for a full and complete opinion. By employing this
procedure in this way, the Taxpayers effectively precluded the County's statutory right to
timely file a petition for review upon the issuance of a full and complete opinion.
Third, Taxpayers argue that "[t]he County cannot suggest that it was tricked into
complacency." They contend:
"The County had no reasonable expectation that BOTA would issue a Full and
Complete Opinion because the County never made such a request[.] Here, the County
could have no reasonable expectation that BOTA would issue a Full and Complete
Opinion because the County failed to make a timely request that an opinion be issued."
13
As noted earlier, in the prior appellate proceeding, our Supreme Court addressed
the Taxpayers' argument and rejected it:
"In [the Taxpayers'] view, the County lost the right to seek review of the full and
complete opinion by failing to ask for it on its own accord. But this argument lacks a
basis in K.S.A. 74-2426(c) because nothing in the statute restricts the right to judicial
review in the Court of Appeals to only those parties who request a full and complete
opinion." 311 Kan. at 778.
Given that the Taxpayers requested a full and complete opinion, that K.S.A. 74-
2426(a) provided that a full and complete opinion shall be issued as a result, and K.S.A.
74-2426(c) permitted the County, as an aggrieved party, to petition for review after the
full and complete opinion was filed—without any requirement that the party have
requested such an opinion—we are persuaded that the County had a reasonable
expectation that BOTA would issue the opinion that the Taxpayers' requested, and as a
result, the County would have the opportunity to file a petition for review. Under these
circumstances, BOTA's decision not to issue a full and complete opinion was "taken
without regard to the benefit or harm of all interested parties." In re Tax Application of
Emporia Motors, Inc., 30 Kan. App. 2d at 624.
Finally, given the lengthy proceedings, the amount in controversy, and the brevity
of BOTA's summary opinion explaining its reasons for ascribing lower valuations to the
commercial properties in question, we conclude it was unreasonable for BOTA to short-
circuit the process of preparing a full and complete opinion 30 days into the 90-day
statutory period for issuance of the opinion.
This litigation began in May 2016 when the Taxpayers filed an
equalization/protest appeal. The subject properties are seven Target retail stores located
throughout suburban Johnson County. Discovery was extensive. The evidentiary hearing
before BOTA spanned three days and involved lengthy complex testimony and numerous
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exhibits. During the proceedings, the County confessed to judgment that the properties
had an appraised value of $104,868,000. In its summary opinion, BOTA found that the
properties' actual appraised value was $74,484,000—a significant reduction in the
County's confessed judgment.
BOTA's summary opinion was six pages in length with about three pages of the
opinion consisting of graphs simply identifying the various properties and their several
appraised valuations. Only one page of the summary opinion was devoted to explaining
BOTA's analysis in determining the actual assessed valuation of the six properties. The
lengthy litigation process, the obvious economic value of the numerous commercial
properties, the considerable reduction in the County's assessed valuation found by BOTA,
and BOTA's brief explanation of its order in the summary opinion, are additional reasons
why we are persuaded that BOTA's decision to allow the withdrawal of the Taxpayers'
request for a full and complete opinion 30 days after its request was unreasonable.
Moreover, there is no concern in this case that issuing a full and complete opinion
after the Taxpayers' request for one was withdrawn will prejudice the Taxpayers or waste
BOTA's resources by requiring it to perform a needless act. While the Taxpayers
apparently decided not to appeal BOTA's order and, thus, withdrew their request, upon
the issuance of a full and complete opinion they are not precluded from either filing or
not filing an appeal. The Taxpayers will incur no prejudice since they may appeal or
maintain their decision not to appeal. Regarding BOTA, by the County filing its objection
the day after the Taxpayers notified BOTA of the withdrawal of its request, the County
informed BOTA that it sought to preserve its right to appeal BOTA's adverse property
assessment order. As a result, the filing of a full and complete opinion is not a wasteful or
needless act but an important one, given the County's reliance upon the Taxpayers'
original request for a full and complete opinion.
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In conclusion, our Supreme Court remanded this case to us "with directions to
conduct further proceedings to determine whether the Board acted properly in failing to
issue a full and complete opinion." In re Equalization Appeal of Target Corp., 311 Kan.
at 773. For all the reasons discussed in this opinion, we hold that BOTA abused its
discretion and acted unreasonably because its failure to issue a full and complete opinion
under the totality of circumstances was without regard to the harm incurred by the
County and was so wide of the mark that its unreasonableness is outside the realm of fair
debate. See In re Tax Application of Emporia Motors, Inc., 30 Kan. App. 2d at 624.
Reversed and remanded with directions to issue a full and complete opinion.
***
GREEN, J., concurring: I concur with the results reached by the majority except as
to its analysis of the plain meaning of K.S.A. 74-2426. For the reasons stated in my
concurring opinion, I believe the plain language of K.S.A. 74-2426 requires reversal of
the Board of Tax Appeals' (BOTA) decision.
K.S.A. 74-2426 states, in part, the following:
"Any aggrieved party, within 14 days of receiving the board's [summary] decision, may
request a full and complete opinion be issued by the board in which the board explains its
decision. Except as provided in subsection (c)(4), this full opinion shall be served by the
board within 90 days of being requested." K.S.A. 74-2426(a).
Subsection (c)(4) of K.S.A. 74-2426 provides the only way BOTA can avoid the issuing
of a full and complete opinion once a full and complete opinion has been requested under
K.S.A. 74-2426(a). For example, subsection (c)(4) of the statute says that a taxpayer can
appeal from a summary decision by filing a petition for review in district court. K.S.A.
74-2426(c)(4)(B). If the taxpayer elects this option, it must notify BOTA and the other
16
parties. K.S.A. 74-2426(c)(4)(C). On receiving this notice, BOTA's "jurisdiction shall
terminate, notwithstanding any prior request for a full and complete opinion under
subsection (a), and the board shall not issue such opinion." K.S.A. 74-2426(c)(4)(C).
In its decision, the majority points out Johnson County's (County) plain language
argument. For instance, the County maintains that according to the plain language of
K.S.A. 74-2426, this statute required BOTA to issue a full and complete opinion. The
County further points out that after a request for a full and complete opinion is made,
"there is only one way that BOTA is released from its obligation to issue a full and
complete opinion," and this would require Target Corporation, Dayton Hudson
Corporation, and Eighth Street Development Company (collectively Taxpayers) to have
filed a petition for review in the district court and to have notified BOTA and the other
parties.
On the other hand, the Taxpayers contend that the County's argument is
unreasonable, and that reading K.S.A. 74-2426 to prohibit withdrawal of a request for a
full and complete opinion "would be undesirable and unworkable precedent, as it would
necessitate that BOTA . . . expend significant resources issuing decisions or making
opinions that are no longer wanted or requested." But K.S.A. 74-2426 does not say that.
In essence, the Taxpayers rewrite the plain language of K.S.A. 74-2426 to validate their
unstated statutory withdrawal of their request for a full and complete opinion.
Again, K.S.A. 74-2426 states, in part, as follows:
"Any aggrieved party, within 14 days of receiving the board's [summary] decision, may
request a full and complete opinion be issued by the board in which the board explains its
decision. Except as provided in subsection (c)(4), this full opinion shall be served by the
board within 90 days of being requested." (Emphasis added.) K.S.A. 74-2426(a).
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I have italicized the qualifying language referencing subsection (c)(4) because subsection
(c)(4) is inapplicable to the issue in this appeal. For one thing, no appeal was ever made
under subsection K.S.A. 74-2426(c)(4)(B). When you remove the qualifying language
referencing subsection (c)(4) from subsection K.S.A. 74-2426(a), the subsection reads as
follows:
"Any aggrieved party, within 14 days of receiving the board's [summary] decision, may
request a full and complete opinion be issued by the board in which the board explains its
decision. . . . [T]his full opinion shall be served by the board within 90 days of being
requested." K.S.A. 74-2426(a).
Thus, absent an appeal under subsection K.S.A. 74-2426(c)(4)(B), the plain language
under subsection K.S.A. 74-2426(a) clearly mandates BOTA to issue a full and complete
opinion within 90 days of being requested. The Taxpayers here requested a full and
complete opinion be issued by BOTA under subsection K.S.A. 74-2426(a). Also, K.S.A.
74-2426 does not give BOTA any privilege or discretionary authority on whether to issue
a full and complete opinion. The statutory language of K.S.A. 74-2426 does not allow an
aggrieved party who has requested a full and complete opinion under K.S.A. 74-2426(a)
to later withdraw such request. So, BOTA was required to provide a full and complete
opinion unless an appeal was made under subsection K.S.A. 74-2426(c)(4)(B).
The plain language of K.S.A. 74-2426 reveals that the Legislature itself has made
a policy choice in favor of requiring BOTA to issue a full and complete opinion within 90
days of being requested by any aggrieved party unless an appeal under subsection K.S.A.
74-2426(c)(4)(B) has been brought. And because no appeal was made under subsection
K.S.A. 74-2426(c)(4)(B), BOTA was required to issue a full and complete opinion within
90 days of being requested. For these reasons, I am persuaded that the plain language of
K.S.A. 74-2426 requires reversal of BOTA's decision.
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