Case Info & Legal TeamTopeka, KS – Kansas Justice Institute (KJI) filed a brief in the Kansas Court of Appeals arguing that a proposed ordinance requiring voter approval before the City of Topeka collects property-tax revenue above the revenue-neutral rate must be presented to voters.
KJI argued that taxation is an inherently legislative act, and city officials cannot keep a proposed tax ordinance off the ballot by claiming it is administrative or executive in nature.
“[T]he 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.”
“[C]enturies of Anglo-American law clearly establish that taxation is an exclusively legislative power and that taxes may only be levied with the free consent of the people.
“Perhaps the property tax initiative at issue is unwise. Any act of legislation might be unwise. But the entire point of [the citizen initiative statute] is to allow the people to make their own determinations about the wisdom of an ordinance.”
— Kansas Justice Institute Brief
In 2024, Topeka resident Earl McIntosh circulated a petition for an ordinance requiring voter approval before the city could collect property-tax revenue above the revenue-neutral rate. The petition received more than enough verified signatures to qualify under Kansas law.
Kansas law requires a city to either adopt a proposed legislative ordinance or submit it to the voters. The Topeka City Council did neither and ignored the petition. Mr. McIntosh sued, but the district court dismissed the case, accepting the City’s argument that the proposed ordinance was administrative or executive in nature, rather than legislative, because property-tax decisions require specialized municipal knowledge. The Kansas ballot initiative law prohibits “administrative” ordinances while allowing “legislative” ordinances. Mr. McIntosh appealed the district court’s decision.
For centuries, Anglo-American law has treated taxation as a power held exclusively by the legislature, which requires the consent of the people. The proposed ordinance does not manage a city department or direct the City’s day-to-day operations. It establishes a general rule about when the City may collect additional property-tax revenue and how voters must give their consent.
KJI’s brief argues that taxation is the quintessential legislative power, and that government officials can’t reclassify it as an administrative power just because they believe that municipal budgeting is too complex for citizens to make wise decisions. The initiative process exists so Kansans can make such legislative decisions for themselves.
Voters have a say when it comes to taxes
In ruling against the proposed ballot question, the district court relied on caselaw that asked whether a decision requires specialized training and experience in municipal government. KJI’s brief urged the Court of Appeals to reject that guideline—or give it little weight—because it invites judges and city officials to decide that some issues are too complicated for voters.
That approach is both outdated and paternalistic. The guideline traces back to a Utah decision that the Utah Supreme Court later overturned. More fundamentally, Kansas law recognizes that political power rests with the people. The initiative process is designed to let voters make legislative policy choices for themselves, including choices that government officials or judges may consider unwise.
Whether the proposed ordinance is good tax policy is not the question before the Court. The question is who gets to decide. Whether the proposed ordinance is wise is for Topeka voters—not city administrators or judges—to decide.
The brief was filed in the lawsuit McIntosh v. City of Topeka.
