Appendix — LaFavre v. Kansas Department of Revenue
Supreme Court brief2002
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APPENDIX A — ORDER OF THE SUPREME COURT
OF THE STATE OF KANSAS DENYING PETITION
FOR WRIT OF MANDAMUS AND ORDER FOR
REASSESSMENT DATED MARCH 20, 2002
IN THE SUPREME COURT
OF THE STATE OF KANSAS
JAMES S MERRITT JR
1708 COMMERCE TOWER
PO BOX 13222
KANSAS CITY MO 64199-3222
CASE NO. 02-88431-S
CAROLYN A. (“HOWERTER”) LA FAVRE AND JAMES
SCOTT MERRITT, JR., ON BEHALF OF THEMSELVES
AND ALL SINGLE KANSAS INCOME TAX PAYERS,
PETITIONERS,
Vv
KANSAS DEPARTMENT OF REVENUE, A KANSAS
AGENCY C/O CARLA J. STOVALL, OFFICE OF THE
ATTORNEY GENERAL; ET AL.,
RESPONDENTS.
YOU ARE HEREBY NOTIFIED OF THE FOLLOWING
ACTION TAKEN BY THE COURT:
PETITION FOR WRIT OF MANDAMUS AND ORDER
FOR REASSESSMENT BY CAROLYN LA FAVRE AND
JAMES MERRITT.
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Appendix A
DENIED. MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF PETITION FOR WRIT
OF MANDAMUS IS NOTED.
DATE: 03/20/2002.
CAROL G GREEN
CLERK
3a
APPENDIX B — ORDER OF THE SUPREME COURT
OF THE STATE OF KANSAS DENYING MOTION FOR
REHEARING TO VACATE DISMISSAL AND FOR
PRE-HEARING CONFERENCE DATED
APRIL 25, 2002
JAMES S. MERRITT JR
1708 COMMERCE TOWER
PO BOX 13222
KANSAS CITY MO 64199-3222
CASE NO. 02-88431-S
CAROLYN A. (““HOWERTER”) LA FAVRE AND JAMES
SCOTT MERRITT, JR., ON BEHALF OF THEMSELVES
AND ALL SINGLE KANSAS INCOME TAX PAYERS,
PETITIONERS,
Vv
KANSAS DEPARTMENT OF REVENUE, A KANSAS
AGENCY C/O CARLA J. STOVALL, OFFICE OF THE
ATTORNEY GENERAL; ET AL.,
RESPONDENTS.
YOU ARE HEREBY NOTIFIED OF THE FOLLOWING
ACTION TAKEN BY THE COURT:
MOTION FOR REHEARING AND TO VACATE
DISMISSAL AND FOR PRE-HEARING CONFERENCE
BY MERRITT AND LAFAVRE.
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Appendix B
CONSIDERED BY THE COURT AND DENIED.
RESPONSE AND REPLY TO RESPONSE ARE NOTED.
DATE: 04/25/2002.
CAROL G. GREEN
CLERK
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APPENDIX C — CONSTITUTIONAL AND
STATUTORY PROVISIONS INVOLVED
U.S. Const., Amend. XIV, § 1
... No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens
of the United States; nor shall any State deprive any
person of life, liberty, or property, without due
process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.
* * *
Kansas Constitution, Art. 3, § 3
§ 3. Jurisdiction and terms. The supreme
court shall have original jurisdiction in proceedings
in quo warranto, mandamus, and habeas corpus; and
such appellate jurisdiction as may be provided by
law. It shall hold one term each year at the seat of
government and such other terms at such places as
may be provided by law, and its jurisdiction shall be
co-extensive with the state.
* * *
Kansas Bill of Rights; § 3
§ 3. Right of peaceable assembly; petition.
The people have the right to assemble, in a peaceable
manner, to consult for their common good, to instruct
their representatives, and to petition the government,
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Appendix C
or any department thereof, for the redress of
grievances.
Kansas Constitution, Art. 2, § 16
§ 16. Subject and title of bills; amendment
of revival of statutes. No bill shall contain more
than one subject, except appropriation bills and bills
for revision or codification of statutes. The subject
of each bill shall be expressed in its title. No law
shall be revived or amended, unless the new act
contain the entire act revived or the section or sections
amended, and the section or sections so amended
shall be repealed. The provisions of this section shall
be liberally construed to effectuate the acts of the
legislature.
K.S.A. § 60-801
60-801. Nature of mandamus. Mandamus is
a proceeding to compel some inferior court, tribunal,
board, or some corporation or person to perform a
specified duty, which duty results from the office, trust,
or official station of the party to whom the order is
directed, or from operation of law.
* * ae
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Appendix C
K.S.A. § 79-32,105(a)-(c)
Sec. 79-32,105. Same; refunds; distribution
of tax. —
(a) The director shall pay to the treasurer of the
state daily the entire amount collected during the
preceding day, under the provisions of this act and
from the income tax imposed upon individuals,
corporations, estates or trusts pursuant to the “Kansas
income tax act” less amounts withheld as provided in
subsection (b). . . which amounts shall be credited
to the state general fund.
(b) A revolving fund, designated as “income tax
refund fund” not to exceed $4,000,000 shall be set apart
and maintained by the director from income tax
collections, withholding tax collections, and estimated
tax collections and held by the state treasurer for
prompt payment of all income tax refunds and for
the payment of interest as provided in subsection (e).
The fund shall be in such amount, within the limit set
be this section, as the director determines is necessary
to meet current refunding requirements under this act.
(c) Ifthe director discovers from the examination
of the return, or upon claim duly filed by the taxpayer
or upon final judgment of the court that the income
tax, withholding tax, declaration of estimated tax or
any penalty or interest paid by or credited to any
taxpayer is in excess of the amount legally due, the
director shall certify to the director of accounts and
reports the name of the taxpayer, the amount of refund
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Appendix C
and such other information as the director may require.
Upon receipt of such certification the director of
accounts and reports shall issue a warrant on the state
treasurer for the payment to the taxpayer out of the
fund provided in subsection (b), except that no refund
shall be made for a sum less than $5, but such amount
may be claimed by the taxpayer as a credit against
the taxpayer’s tax liability in the taxpayer’s next
succeeding taxable year.
* * *
Civil Rights Act, 42 U.S.C. § 1983
§ 1983. Civil action for deprivation of rights.
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at law, suit
in equity, or other proper proceeding for redress.
K.S.A. § 79-32,110 (L. 1988, ch. 38, § 2)
“79-32,110. Tax imposed; classes of
taxpayers; rates. (a) Resident Individuals.
Except as otherwise provided by subsection (a) of
K.S.A. 79-3220, and amendments thereto, a tax is
hereby imposed upon the Kansas taxable income of
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Appendix C
every resident individual, which tax shall be computed
in accordance with the following tax schedules:
(1) Married individuals filing joint returns.
Ifthe taxable incomeis: The tax is:
Not over $35,000 ....... 4.05% of Kansas taxable
income
Over $35,000 ............. $1,418 plus 5.3% of
excess over $35,000
(2) All other individuals.
Ifthe taxable income is: The tax is:
Not over $27,500 ....... 4.8% of Kansas taxable
income
Over $35,000 ............. $1,320 plus 6.1% of
excess over $27,500
* ok ca
K.S.A. § 79-32,110 (L. 1989)
“79-32,110. Tax imposed; classes of
taxpayers; rates. (a) Resident Individuals. Except
as otherwise provided by subsection (a) of K.S.A.
79-3220, and amendments thereto, a tax is hereby
imposed upon the Kansas taxable income of every
resident individual, which tax shall be computed in
accordance with the following tax schedules:
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(1) Married individuals filing joint returns.
Ifthe taxable incomeis: The tax is:
Not Over $35,000= ...... 3.65%of Kansas taxable
income
Over $35,000= ............. $1,278 plus 5.15% of
excess over $35,000
(2) All other individuals
It the taxable incomeis: The tax is:
Not over $27,500= ....... 4.5% of Kansas taxable
income
Over $27,500= ............. $1,238 plus 5.95% of
excess over $27,500
K.S.A. § 79-32,110 (L. 1992, ch. 280, § 55)
On July 1, 1992, K.S.A. 79-32,110 is hereby amended to
read as follows: 79-32,110. (a) Resident Individuals. Except as
otherwise provided by subsection (a) of K.S.A. 79-3220, and
amendments thereto, a tax is hereby imposed upon the Kansas
taxable income of every resident individual, which tax shall be
computed in accordance with the following tax schedules:
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Appendix C
(1) Married individuals filing joint returns.
Ifthe taxable incomeis: The tax is:
Not over $30,000 ......... 3.5% of Kansas taxable
income
Over $30,000 but not
over $60,000 .............. $1,050 plus 6.25% of
excess over $30,000
Over $60,000 ............. $2,925 plus 6.45% of
excess over $60,000
(2) All other individuals.
Ifthe taxable income is: The tax is:
Not over $20,000 ......... 4.4% of Kansas taxable
income
Over $20,000 but not
over $30,000 .............. $880 plus 7.5% of
excess over $20,000
Over $30,000 .............. $1,630 plus 7.75% of
excess over $30,000
* * *~
K.S.A. § 79-32,110 (1996 Supp.)
“79-32,110. Tax imposed; classes of taxpayers;
rates. (a) Resident Individuals. Except as otherwise provided
by subsection (a) of K.S.A. 79-3220, and amendments thereto,
a tax is hereby imposed upon the Kansas taxable income of every
resident individual, which tax shall be computed in accordance
with the following tax schedules:
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Appendix C
(1) Married individuals filing joint returns.
Ifthe taxable incomeis: The tax is:
Not over $30,000 ....... 3.5% of Kansas taxable
income
Over $30,000 but not
over $60,000 .............. $1,050 plus 6.25% of
excess over $30,000
Over $60,000 ............. $2,925 plus 6.45% of
excess over $60,000
(2) All other individuals.
Ifthe taxable incomeis: The tax is:
Not over $20,000 ....... 4.4% of Kansas taxable
income
Over $20,000 but not
over $30,000 .............. $880 plus 7.5% of
: excess over $20,000
Over $30,000 ............. $1,630 plus 7.75% of
excess over $30,000
K.S.A. § 79-32,110 (L. 1997, ch. 41, § 13)
1997 Session Laws of Kansas, Ch. 41, § 13 (signed
by the Governor on April 4, 1997):
- Sec. 13. On July 1, 1997, K.S.A. 1996 Supp.
79-32,110 shall be and is hereby amended to read
as follows: 79-32,110. (a) Resident Individuals.
Except as otherwise provided by subsection (a) of
K.S.A. 79-3220, and amendments thereto, a tax is
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hereby imposed upon the Kansas taxable income of
every resident individual, which tax shall be computed
in accordance with the following tax schedules:
(1) Married individuals filing joint returns.
Ifthe taxable income is: The tax is:
Not over $30,000 ....... 3.5% of Kansas taxable
income
Over $30,000 but not
over $60,000 .............. $1,050 plus 6.25% of
excess over $30,000
Over $60,000 ............. $2,925 plus 6.45% of
excess over $60,000
(2) All other individuals.
(A) For tax year 1997:
Ifthe taxable income is: The tax is:
Not over $20,000 ....... 4.1% of Kansas taxable
income
Over $20,000 but not
over $30,000 .............. $820 plus 7.5% of
excess over $20,000
Over $30,000 ............. $1,570 plus 7.75% of
excess over $30,000
* * * *
l4a
APPENDIX D — PETITION FOR WRIT OF
MANDAMUS AND ORDER FOR REASSESSMENT,
FILED IN THE SUPREME COURT OF THE STATE OF
KANSAS ON FEBRUARY 6, 2002
IN THE SUPREME COURT OF
THE STATE OF KANSAS
No.
CAROLYN A. (“HOWERTER”) La FAVRE, and JAMES
SCOTT MERRITT, JR., on behalf of themselves and all
single Kansas income tax payers,
Petitioners,
v.
KANSAS DEPARTMENT OF REVENUE, a Kansas Agency
(c/o Carla J. Stovall, office of the Attorney General of Kansas
301 S.W. 10th Street Topeka, Kansas 66612),
TIM SHALLENBURGER, as State Treasurer of Kansas (900
S.W. Jackson Suite 201 North Topeka, Kansas 66612),
STEPHEN S. RICHARDS, Secretary of Revenue of the
Kansas Department of Revenue (Kansas Dept. of Revenue
915 Harrison Street, 2nd Floor Docking State Office Building
Topeka, Kansas 66612-1588),
JEFFREY LOCHOW, Director of Division of Taxation of
the Kansas Department of Revenue (Kansas Dept. of Revenue
915 Harrison Street, 2nd Floor Docking State Office Building
Topeka, Kansas 66612-1588),
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Appendix D
DAVID J. HEINEMANN, as agent and designee of Secretary
of Revenue and of Director and Division of Taxation of
Kansas Department of Revenue (Kansas Dept. of Revenue
915 Harrison Street, 2nd Floor Docking State Office Building
Topeka, Kansas 66612-1588),
Respondents.
PETITION FOR WRIT OF MANDAMUS AND ORDER
FOR REASSESSMENT
1.A. Petitioners prosecuting this suit were single during
some or all the taxable years at issue (1988-1997), and are
citizens of Kansas and the United States under the XIVth
Amendment to the United States Constitution. They bring
this suit in equity on behalf of themselves and all single
(natural) persons who were assessed Kansas income taxes
for any of the taxable years 1988-1997. During the taxable
years 1988-1997, such single persons derived Kansas taxable
income, from the same sources as married persons, by various
means, through the direct or indirect employment of their
labor or their capital, or otherwise, and paid purported Kansas
income taxes thereon to respondents. Petitioners assert that
they exist as single persons and earn income by virtue of no
special act, grace, license, sufferance, or abstract power of
classification or prerogative of the Kansas Legislature or the
respondents.
1.B. To save this court’s time, petitioners aver, concede,
and stipulate that the religious and civil institution of
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Appendix D
voluntary marriage between man and woman is a good thing.
This court has already held that. Petitioners do not complain
that marriage is bad. Petitioners have a constitutionally
protected fundamental right to be and remain single, however,
which was surtaxed, with mathematical precision, under
K.S.A. § 79-32,110 (1988-1997). A state may not impose an
explicit surtax, or penalty, or levy or charge, for the enjoyment
of a fundamental right granted by the federal constitution.
Kansas sought to do just that via those statutes, for such years.
Respondents have already collected the money.
1.C. The goodness or distinctness of the marriage
relation (as a simple basis of “classification”) does not resolve
petitioners’ federal and Kansas constitutional claims, based
on their own liberty interest, recognized under substantive
due process principles, which are raised herein. Petitioners’
claims involve the invalidation of separate, mathematically
and systematically excessive, discriminatory, constitutionally
burdensome, and therefore facially void levies and penalties
and exactions (cast in the form of statutory “income
taxation”) against all single persons, by Kansas, pursuant to
K.S.A. § 79-32,110 (1988-1997).
1.D. Failing this court’s exercise of original jurisdiction
to hear petitioners’ equitable claims on the merits, single
taxpayers are disremediated, contrary to procedural due
process principles (involving citizen access to court and.
effective redress) found in the XIVth Amendment. Statutory
and administrative procedures to secure credits or refunds to
the masses of afflicted single taxpayers are inadequate, since
refund relief is limited, individual case by individual case,
under current Kansas judicial doctrine. Kansas levies income
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Appendix D
taxes wholesale from all the single citizens; but a retail
individualized system of administrative claims remedies
(requiring claim by claim “hearings” and review) simply
doesn t work where the levying statute is void on its face.
The challenged “tax” laws have already been administered.
The real question is practical state wide remedies.
1.E. In addition, the statutory special fund for individual
income tax refunds maintained by respondents under K.S.A.
§ 79-32,105(b) has been limited to $4,000,000 at all relevant
times herein, year by year. All single taxpayers, regardless
of any notional “administrative procedure” they might have
followed, could never have secured redress from the fund,
since the annual overassessments representing the “penalty”
element imposed by the levying statutes have annually
exceeded such $4,000,000. Cf., Kansas Legislature,
1997 Summary of Legislation, Legislative Research Dept.
(June, 1997), pp. 104, 138-139; Kansas Legislature, 1998
Summary of Legislation, Legislative Research Dept.
(June, 1998), pp. 152, 156.
1.F. The legislative reduction and repeal of the surtax
levies (in 1997 and 1998 respectively) finally resulted in a
constitutional regime in 1998, and restored mathematics that
worked the same as the original Kansas regime (1933-1987).
The foregoing official information on resulting Kansas
revenue decrements was published by the legislature itself
(when it abandoned the “surtaxes”’) and establishes this much:
(i) as of 1997, a full restoration of parity in rates was projected
(through 2000) to entail annual restoration of $34.7 million
to single taxpayers; and (2) as of 1998, the legislature’s
establishment of immediate rate parity, ahead of the 4 year
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Appendix D
phase-down schedule originally enacted in 1997, resulted in
a total of $30.9 million in projected annual tax restoration to
single taxpayers. The projected Kansas revenue decrements
were the unconstitutional penalty numbers. Against such
numbers, $4,000,000 in the statutory refund fund would never
have been adequate; there was never any remedy which would
restitute the taxes of all single taxpayers, simply by looking
to “administrative procedure” and K.S.A. § 79-32,105(b),
dollar for penalty dollar. Then and now, only equitable redress
will work. Jn this case, if every single taxpayer had followed
straight administrative procedure all the way to appellate
review, and won, they would have found an exhausted
statutory refund fund.
1.G. Lastly, arestitutional remedy in federal district court
does not exist. See section 43 hereof. This court is the Kansas
tribunal of last resort, and the prerogative equitable writ of
mandamus leading to reassessment (on the basis of valid
“saved” rates) is the appropriate state wide remedy.
2.A. The named and class petitioners herein have been
at all relevant times, and as of filing this Petition are now,
residents and domiciliaries of Kansas. During some or all of
the years at issue, petitioners filed annual Kansas income
tax returns (form K-40), as single persons, and paid amounts
computed and designated thereby as “income taxes” to the
respondent Department of Revenue. The original putative
income taxes were assessed by the Department from
information in the returns, by simply checking the numbers.
Under the present system of return-based administration of
its income tax laws, therefore, Kansas has already levied,
assessed and collected such amounts (including the “penalty”
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Appendix D
element) via the offices and agencies of the named
respondents (and Departments and Divisions). Such amounts
were computed pursuant to the separate statutory “single”
graduated income tax rates, and in many cases under tables
reflecting such rates, all of which were published and
distributed to taxpayers (and represented as valid law) in
pamphlet form by the respondent Kansas Department of
Revenue.
2.B. At all levels of Kansas single individuals’ taxable
income (compared to commensurate levels of married
persons’ taxable income, per capita), there is a cumulative
targeted burden (or “penalty”) on ail single persons’ income,
explicitly imposed by such statutory rates themselves. Such
statutory burden functions as a “surtax,” or “penalty,”
is systematic, and is mathematically inexorable in all cases.
It is not comparable to the “disparities” in dollar amounts of
actual tax levied by I.R.C. § 1, 26 U.S.C. § 1, which
“disparities” result from differential graduated bracketing of
taxable income of married and single taxpayers. Petitioners’
case is about a systematic statutory surtax or penalty on all
single persons exacted and levied by Kansas. The systematic
mathematics are depicted at section 19 hereof. This case is
not about disparate income bracketing based on
Congressional judgments as to “ability to pay” of married
citizens in higher graduated brackets of income.
-
JURISDICTION
3.A. Original jurisdiction over petitioners’ substantive
claims and the judicial power to order the requested
mass relief against the respondents herein is founded on
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Appendix D
Kansas Constitution Article 3, § 3; K.S.A. § 60-801; K.S.A.
§ 79-3230(d); K.S.A. § 79-32,105(a)-(c), and the concurrent
federal question jurisdiction inherent in this court over claims
asserting citizens’ own fundamental rights arising under the
United States Constitution (including a right of practical
access to court). Under the facts and circumstances of this
case, this court’s exercise of plenary jurisdiction over claims
brought herein for a remedial Order for reassessment, leading
to income tax credits or monetary relief for all single
taxpayers, pursuant to this Petition, is necessary for effective
relief, after a full and fair resolution of petitioners’
constitutional claims, under the due process clause of the
XIVth Amendment.
3.B. Ordinary doctrine of “administrative law and
procedure” is inapplicable to this case. The fundamental right
to pursue relief in this court (on behalf of all Kansas single
taxpayers) is founded upon the right to sue for effective
redress in an impartial judicial tribunal under the due process
clause of the XIVth Amendment, and upon the Kansas Bill
of Rights, § 3; ibid., § 18. The public questions requiring
address by this court are (1) whether Kansas actually
recognizes a fundamental inherent right of citizens of the
United States to be and remain single, and (2) whether under
procedural due process principles, in the case of a void
statewide levy explicitly imposed on all single taxpayers,
where the relevant citizens’ assessment information is already
filed with the Department of Revenue, several hundred
thousand single people are exclusively relegated to Kansas
bureaucracy to even initiate any proceeding for equitable
redress. The questions are public and unusual because before
the 1988 Kansas Legislature managed it, no state has ever
contrived to adopt a general income tax law affecting
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Appendix D
hundreds of thousands of its citizens all in the same way,
which is unconstitutional on its face.
4. Petitioners herein seek equitable relief in the form of
an Order against defendants for a reassessment of valid
Kansas income taxes, on all single persons, leading to a
money refund from Kansas of the unconstitutionally and
illegaily levied and retained excessive amounts which were
collected, assessed, used and retained by respondents herein,
from single income tax payers of Kansas, for all the years
1988-1997, or forward credits therefor. This would be
based on taxpayer information already in respondents’ files.
Then, “agency action” could begin.
5.A. Petitioner Merritt initially pursued state
administrative remedies seeking Kansas refunds
(for 1988-1995). Petitioner LaFavre followed no such path
(as was the case with most others). Such remedies are simply
not affordable, citizen by citizen. Cf., Boddie v. Connecticut,
401 U.S. 371 (1971). Because of the expense, length, and
the ultimate substartive inadequacy of Kansas administrative
remedies, as literally prescribed by Kansas administrative
law and doctrine (where the relevant purported state
legislative acts are asserted to be void as a matter of Kansas
law or where the statute is challenged as facially
unconstitutional), such remedies are meaningless, and would
not lead to group-wide or class refund relief, absent an
act of the Kansas Legislature. Merritt now has a further 1996
refund claim pending before respondent Heinemann.
“Agency action” thus far is limited to collection of taxpayers’
money, which respondents have well and truly
done. There is no point in reviewing that; it is complete.
When this court issues the requested Writ, and Order, then
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Appendix D
respondents will actually perform their ministerial duties,
and restitute the penalty element built into the challenged
statutes, which is still the single citizens’ money.
5.B. Neither the Kansas Department of Revenue nor the
Board of Tax Appeals has judicial jurisdiction or competency
to declare the “tax” unconstitutional on its face. There is no
further administrative action they can take, and they have no
constitutional power to void a statute. Yet respondents have
purported to direct and control an “administrative” refund
remedy, via the acts of various respondents acting under color
of Kansas law, which leads only to more “review” of
administration. Any prospect of a plain, efficient or speedy
“administrative” or judicially sanctioned reassessment
remedy, or equitable group or statewide class refund relief,
will founder under current Kansas judicial practice, which
in fact demands a multiplicity of separate little claims and
administrative review proceedings. Access to Kansas trial
courts (or the Kansas Court of Appeals) is currently blocked
by rigid application of this doctrine. Cf., Zarda v. Kansas,
250 Kan. 364, 826 P.2d 1365 (Kan. 1992); Dean v. Kansas,
250 Kan. 417, 826 P. 2d 1373 (Kan. 1992); Farmers
Banshares of Abilene v. Graves, 250 Kan. 520, 826 P.2d 1363
(Kan. 1992).
6. The “administration” to be done by the Kansas
Department of Revenue in this matter, in fact, should only
be to effectuate the reassessment order and the refunds or
credits sought herein, after the “singles surtax” is judicially
held to be unconstitutional. Current Kansas practice would
require more bureaucratic “administration,” but such would
not be simple, plain, speedy or effective. It would be
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Appendix D
pointless. As to members of the petitioner single taxpayer
class who have not filed administrative refund claims to date,
based on petitioner Merritt’s actual experience, and that of
others, pursuit of such claims would be prohibitively
expensive, futile, pointless, and detrimental to their interests.
Kansas’ clear financial interest lies in obfuscation, denial
and delay.
7.A. Respondents have sought to mislead and mis-direct
all single taxpayers of Kansas into the belief that their extant
claims for refunds were being or have been fully and fairly
litigated in the courts of Kansas (which they in fact and in
law have not been). Whether as choses in action or as formal
claims, respondents have sought to extinguish citizens’
remedial rights by administrative dissemination of
administrative dis-information. Respondents have sought
thereby to deter such Kansas single taxpayers from thinking
through and asserting their own personal fundamental
constitutional rights and interests and their own monetary
claims based on the organic and facial invalidity of the tax
bills complained of.
7.B. Respondents, holding public offices of trust, have
published to their own taxpayers the representation that they
can render “judgments” on denied administrative refund
claims. They have published the representations (directly to
administrative hearing refund claimants) that their “orders”
were “binding” until there is a “. . . final resolution by the
Kansas appellate court system . . . .” They falsely represented
that Peden, which did not involve an assertion or adjudication
of Kansas single taxpayers’ fundamental rights (to be and
remain single) was dispositive. Such representations also
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Appendix D
implied that respondent Department (which is not part of
any judiciary) solely controls the claims route and the remedy,
via “administration.” Yet the claims here are not factual,
or “as applied.”
7.C. Coming from public officials in positions of trust,
these representations are in violation of respondents’ duties
of candor and fairness to their own citizens, besides being
totally wrong as to respondents’ authority and as to federal
due process standards governing the doctrine of res judicata.
The two Peden taxpayers had their day in court. All Kansas
single taxpayers have most decidedly not, on the issues raised
here. The result, inter alia, is a denial of procedural due
process to Kansas single taxpayers under the XIVth
Amendment to the United States Constitution, if this
court will not hear this separate case. Petitioners’ claims are
further cognizable here under 42 U.S.C. § 1981(a) and
(c) and 42 U.S.C. § 1983 (which prescribes a “suit in equity”
without particulars as to the court, or the identity of the
defendant; as does K.S.A. § 79-3230(d)).
7.D. Respondents have no license to play procedural
games with their own citizens; the issue is effective citizen
access to court. The claims and the situation will indicate
the right defendants, clearly enough. K.S.A. § 79-3230(d)
was enacted in 1933 as a remedial matter for citizens, in the
real world, without detail as to the defendants or the court.
It is not a useless artifact.
8. The results to date are that (i) an entire class of Kansas
single taxpayers who were not in the “top brackets” of taxable
income reached by the purported laws at issue, for any or all
25a
Appendix D
of the relevant years (1988 to 1997), remain unaware of their
extant reassessment and monetary claims (and thus such class
has been unrepresented and its fundamental rights and liberty
interests are unheard), (ii) a purported class of Kansas single
taxpayers who raised the low-scrutiny “equal protection”
claims decided in Peden (had they received any published
notice whatsoever) were mis-led into believing that their
monetary claims were limited by “top bracket” tax rate
discrimination only, and that (iii) all Kansas single taxpayers
were lulled, misinformed and deterred into doing nothing,
or into merely filing meaningless administrative refund
claims (which led only to an allegedly “binding”
Departmental halt). Kansas has seemed to achieve a “taking”
of their property via collection and retention of invalid levies
on single persons. Respondents act as though it’s all spilt
milk; petitioners maintain that the levy was and is still invalid
under the due process clause of the XIVth Amendment
and under the “just compensation” clause of the
Vth Amendment. Redress lies in this court, or there is a
coordinated state taking.
9.A. As to the actual possibility of refunds, the
administrative system itself was never adequately funded.
The separate fund (for income tax refunds) maintained under
K.S.A. § 79-32,105(b) is limited to $4,000,000, which
literally means that refunds could not be paid by respondent
Department, even if each and every single person had
followed strict administrative procedure. See section 1
hereof. The Legislature will have to act, or this court can
order credits. Such was the practical situation which led to
the enactment of K.S.A. § 79-32,193 in 1995, as to the
26a
Appendix D
military retirees. It calls for equitable relief here,
the “penalties” still belong to the single citizens. Limitation
doctrine can’t apply where a prescribed remedy at law was
fictive.
9.B. The obvious financial windfall to the Kansas fisc
has been that, as new income taxes (including the “singles’
surtax”) were collected from single persons for each fresh
year, through 1997, notional administrative procedure
arguments would exonerate Kansas from responsibility for
reassessment and refunds or credits to all Kansas single
taxpayers. The results have been (i) that Kansas is unjustly
enriched, and (ii) the creation of a constructive or resulting
state pool of financial liquidity, equitably still belonging to
the citizens who paid it in, now administered by respondent
State Treasurer. The financial benefit of such pool
(or constructive fund) has been sequestered to Kansas, as
long as respondents can deter and forfend the bringing of
reassessment and monetary refund claims by single taxpayers
in a proper judiciai forum. The circumstances here call for
equitable intervention, and the impressment of a constructive
or resulting trust over the wrongfully collected penalties.
Otherwise the unjust enrichment present here amounts to a
colossal “taking,” both of the citizens’ money and any viable
remedy, under the Vth Amendment. Cary v. Curtis, 44 U.S.
(3 How.) 236, 11 L.Ed. 576 (1845).
9.C. Respondent State Treasurer is a party because he
is in control of citizens’ own funds, against whom relief can
be granted, under this court’s own doctrine. See Kittredge v.
Boyd, 136 Kan. 691, 18 P. 2d 563 (Kan. 1933). The Kansas
Department of Revenue is a semi-autonomous agency of
27a
Appendix D
Kansas which collects, and pays over revenue to respondent
State Treasurer, for general revenue purposes for Kansas. It
has had numerous Secretaries, Directors of Taxation and other
employees during the years at issue. The named respondents
are in office now. Mandamus lies against these and the other
official respondents, to do a reassessment and implement a
refund or credit mechanism. Revenue administration is not
always a one-way street. Respondents’ official ministerial
duties sometimes involve giving citizens their money back.
K.S.A. § 79-32,105. Reich v. Collins, 513 U.S. 106 (1994);
Kittredge v. Boyd, supra.
10.A. Petitioners assert in Count I hereof that such
purported Kansas single persons’ income taxes were collected
and retained under 1988 (and later) legislative bills which
were partially invalid under the Kansas Constitution.
As legislative enactments, they were void for improperly
combining (a completely fictitious) police power with
revenue raising power, and thus multiplicitous, and lacking
a single subject. The singles “surtax” buried therein was
consequently null and void, under Kansas law (and federal
due process principles). The amounts at issue, levied against
each Kansas single taxpayer, were not legal imposts or
collections or taxes of the State of Kansas, but have been
wrongfully levied, received, retained and used by respondents
(without credits, refunds or just compensation). Petitioners
further assert via Count II that (i) the collection of such
pretended “taxes”, (ii) the denial of refunds to date by
respondents State Treasurer, Kansas Department of Revenue
and Director of Division of Taxation (and by individual
Secretaries, Directors, agents, officials, “designees” and
others), and (iii) a pattern of public conduct of respondents
and others designed to misdirect, obfuscate, and chill the
28a
Appendix D
practical pursuit of refund remedies by single taxpayers, all
taken together, deny effective meaningful redress, en masse,
and thus legislative and administrative due process, to single
taxpayers under the Kansas Constitution and XIVth
Amendment to the United States Constitution.
10.B. The retention of the amounts at issue, absent
practical redress, further amounts to disremediation and an
organized “taking” of citizens’ remedies and money under
the “just compensation” clause of the Vth Amendment to
the United States Constitution, as incorporated against the
States under the XIVth Amendment. The penalty amounts at
issue are citizens’ money and they want it (or credits) back.
11.A. Petitioners assert in Counts II and III that the
purported Kansas income tax statute of 1988 (and three
successors), assuming it was a properly enacted law, under
which Kansas commenced (and continued through 1997)
to collect separate and higher rates on taxable income of all
single persons, on its face, monetarily burdened and deprived
Kansas single taxpayers in their free exercise of their several
fundamental civil rights under the Preamble and the First
and Fourteenth Amendments to the United States
Constitution and under the Kansas Bill of Rights. The basic
substantive fundamental right herein asserted is the personal
right to be and remain single during any given period of
years, without penalty or surtax. That is a public question,
affecting all citizens of Kansas, which should be clarified by
this court. The due process-protected procedural right claimed
in this Petition for Writ of Mandamus is for effective judicial
redress to single taxpayers en masse, and that claim itself
presents a larger public question than can be answered by a
lecture on administrative procedure.
29a
Appendix D
11.B. On the merits, the statutes purportedly enacted by
the legislature contained and directly imposed a new,
unnoticed, separate, systematic, discriminatory, and
mathematically precise excess rate levy and targeted financial
burden, having the effect of a “singles surtax,” on petitioners’
fundamental right to be and remain single, and thus deprived
them of their own property.
11.C. The top rate of the separate singles’ “tax” statute
was first held unconstitutional on simple “rational basis”
equal protection grounds in 1994, by the District Court of
Shawnee County, Kansas (Dowd, J.). On interlocutory appeal,
solely on the merits, this court reversed, in effect speculating
that since marriage is good and should be encouraged, the
extra levy on single persons was somehow valid. Peden v.
Kansas, 261 Kan. 239, 930 P. 2d 1 (Kan. 1996), cert. den.,
520 U.S. 1229 (1997) (“Peden”).
11.D. During all that separate litigation, it did not occur
to anyone that there is a fundamental personal right to choose
to be single,’ inherent in the liberty interest protected by the
XIVth Amendment. In such prior case, this court did not
venture beyond the goodness of marriage and low scrutiny
“equal protection” doctrine, to scrutinize exactly where or
how Kansas could have found any power to surtax petitioners’
own fundamental right to be and remain single, via the
mathematically explicit surtax rates complained of herein,
1. If it did occur to anyone, they did an excellent job of keeping
the problem off the table, to the detriment of all Kansas single
taxpayers and (actually) to Kansas.
30a
Appendix D
under due process principles. Petitioners assert simply that
the State of Kansas has no sovereign authority (whether found
in concepts of police power, or “classification” doctrine, or
revenue raising power, or otherwise) to tax all single people
(each and every one of them) into marriage. Count IV hereof,
et seq., contains allegations as to misrepresentations of the
remedies, “action” (which means “no action”) by
respondents, the need for state wide equitable jurisdiction in
view of multiplicity otherwise, and explains why Peden is
not res judicata.
COUNT I
12.A. Kansas since 1933 has imposed a graduated
income tax on individuals, pursuant to the authority of Article
11 § 2 of its Constitution (which permits a tax on individual
income, not marital status, and grants no state regulatory
power over the absolute individual choice not to marry).
Upon the first enactment of a statute (in 1933) imposing such
income tax, there was one graduated individual rate schedule,
imposing higher rates of tax on progressively higher
bracketed amounts of taxable income, until 1988. Kansas
has permitted joint returns and income splitting by married
couples, after 1948, under a statutory provision that the joint
tax on a married couple filing a joint return would be
determined by halving the combined (joint) taxable income
of the married couple, by then applying the statutory
graduated individual rate schedule to such (halved) amount
of taxable income, and by doubling the resulting amount.
See the pre-1988 versions of K.S.A. § 79-32,110.
The pre-1988 joint tax method ameliorated the effect of
progressively higher percentage rates of tax on higher
3la
Appendix D
graduated brackets of taxable income, where a married couple
was involved, and thus allowed for the fact that two people
lived on the joint income. Kansas has never, before 1988,
targeted a class of individuals for a separate surtax or excise
or levy based on marital status.
12.B. In 1988, the draftsmen created a new statutory
separate rate regime; the relevant bill simply gave all married
taxpayers lower separate income tax rates. Single taxpayers
got mathematically explicit higher rates producing
cumulative higher taxes on their income at all levels of
taxable income. A completely new system was thereby
installed (if the bill were to become a validly enacted law).
Congress never did this; neither did any other state.
13. Historically, in the Preambles of bills imposing or
changing the individual income tax rate schedule, the prior
Kansas draftsmen had stated, and thus had placed the voting
legislators and the public on notice, that the relevant bill was
“ concerning ... rates of liability of an individual. . . .”
Until 1988 this was of course candid and true, since there
was historically but one statutory individual rate schedule
imposed on graduated brackets of Kansas taxable income.
In 1988, the use of such bland words in the Preamble to
Ch. 381, 1988 Session Laws (Vol. 2) (with nothing else),
to describe the imposition of a completely new dual rate
structure for Kansas, which directly imposed a systematically
burdensome “singles surtax,” was false and misleading,
both to the voting members of the Kansas legislature and
the public.
32a
Appendix D
14. Historically, where a new or separate tax was
involved, the draftsmen would notice such measure in the
Preamble of the relevant bill. Thus, even in 1988, draftsmen
inserted notice in the Preamble to Ch. 381, 1988 Session
Laws (Vol. 2), to the effect that a new corporate alternative
minimum tax was imposed by the proposed new statutes
contained in the bill. But the new and separate “singles
surtax” was buried. It is utterly unnoticed in the Preamble;
it is evident only in the statutory mathematics buried in the
bill. But the mathematics are explicit.
15. The first relevant bill (described above) came to the
Kansas legislature and the public and later the Supreme Court
of Kansas with no candid notice or Preamble, no legislative
history, no committee reports, and it contained no legislative
declarations or findings or imperative directions as to the
state of married life (or single persons’ lives) in Kansas.
It was in form a tax bill. Likewise, there was no other bill in
pari materia or any separate committee report indicating a
need for police or regulatory action as to the lesser cultural
or societal worth, or any relatively greater iniquity or ability
to pay, of single persons. There was not any clear indication
of the subject, object or purposes of such bill besides revenue
raising. Nothing in the Preamble would have indicated a
social marital welfare program, or a separate levy or penalty
on the iniquities of single persons. The legislature seems to
have bought the bill, as was, as a tax law. It could only have
been voted for or enacted as a tax law. Kansas Constitution,
Art. 11, §§4-5. Such is true of all the subsequent bills
touching K.S.A. § 79-32,110, down to repeal of the surtax
regime in 1998.
33a
Appendix D
16. The Preamble to the foregoing bill (and its
successors) as a matter of form (versus substance) appeared
to announce and impose income taxes for the general
purposes of Kansas government. In fact, as an exercise of
taxing power the bill and its successors were surreptitious,
misleading, multiplicitious, and thus null and void, under
the Kansas Constitution, to the extent that they contained a
separate, buried, systematic, new, and unnoticed monetary
levy on all Kansas single taxpayers, at any and all levels of
Kansas taxable income, under Kansas due process doctrine,
and in violation of the “single subject rule” of Art. 2, § 16 of
the Kansas Constitution.
17. In the form and style presented, and with no notice,
history or findings as to its punitory content, the 1988 bill
(and its successors) was not a valid exercise-of the police
power, the social welfare or benefits power, or any household
budget or lifestyle regulatory power of the State of Kansas,
and was not a valid statutory enactment under Article 2, § 16
and Article 11, § 2 and § 5 of the Kansas Constitution.
The collection (to 1998) and continued retention of the
“singles’ surtax” amounts by Kansas has further violated both
federal and Kansas due process. If some cabal of legislators
sought to penalize single taxpayers under state police power,
they were log-rolling, and did not even validly enact a bill
into law. They improperly combined the subjects. Panhandle
Eastern Pipeline Co. v. Fadely, 183 Kan. 803, 332 P.2d 568
(Kan. 1958); cf., United States v. Butler et al., 297 U.S. 1
(1936). To say nothing of the facial constitutionality of any
such law.
18. The statute contained in the foregoing bill sought to
impose, for the first time, a separate graduated rate structure
34a
Appendix D
and arithmetic regime on single persons, by further dividing
the existing K.S.A. § 79-32,110(a) into subclauses,
or schedules: “(1)” as to “married” individuals, and “(2)” as
to all other individuals. Via this surreptitious draftsmanship,
single individuals were (for the first time) separately dealt
with, and subjected to uniformly higher rates and cumulative
amounts of Kansas “income tax,” compared to the rates
imposed on the commensurate respective deemed income of
married persons. Far from a mere relief device of marital
income splitting (as Congress and Kansas had traditionally
granted to married couples), Kansas targeted, layed and levied
higher rates on all single persons. It was thus “taxing” single
persons, not Kansas taxable income of all individuals, with
mathematical precision and systematic excess. The separate
rates were adjusted by the legislature in 1989, 1992 and 1997,
but no general relief from the systematic levy was granted to
single persons until 1998.
19-A. The following table discloses the additional
surtax, or burden, or penalty which is imbedded into K.S.A.
§ 79-32,110 for all the years at issue (since 1988), on single
people. It assumes three individuals: A and B are married;
S is single. The table demonstrates that the surtax, or
additional burden on S, is systematic, up and down the
income brackets. It is assumed that A, B and S all have equal
Kansas taxable incomes (though A and B could be splitting
and combining differing amounits of their separate incomes).
It is assumed that A and B file a joint Kansas income tax
return, using the “statutory” joint rates. The burden of the
rate excess, or “surtax,” on single persons, is depicted in the
far right column:
Solera Sen eee i ee a, Se a ae
. bs b 3 » one ss
Maximum Surtax
Taxable Income Kansas Joint Kansas Burden
Years of each (A, B, S) Rate on A+B Rate on S on§S
1988: to $13750 each 4.05% 4.80% 18.52%
to 17500 each 4.05% 4.80% 18.52%
over 17500 each 5.30% (to 27500) 4.80% --- *
over 27500 each 5.30% 6.10% 15.09%
1989-91: to 13750 each 3.65% 4.50% 23.29% s
to 17500 each 3.65% 4.50% 23.29% Ss ww
over 17500 each 5.15% (to 27500) 4.50% --- * aX os
over 27500 each 5.15% 5.95% 15.53% “i
1992-96:to 15000 each 3.50% 4.40% 25.70%
to 20000 each 6.25%
(from 15000) 4.40% —*
over 20000 each 6.25% 7.50% 20.00%
over 30000 each 6.45% 7.75% 20.16%
* In each of the statutory periods, there is one intermediate internal bracket area in which the levels of
taxable income graduation, set in the separte rate schedules, produce a lesser maximum percentage rate on
singles, but this area is confined to $10,000 as to singles (from $17,500 to $27,500) for 1988-1991, and for
. (Cont’d)
36a
Appendix D
19.A. In all the statutory periods, there is a clear system-
atic rate discrimination and cumulative burden imposed on
single people. The burden is achieved, with mathematical
precision, by levying higher rates on the initial levels of
Kansas taxable income, and by levying higher rates on
the top (or infinite) amounts of Kansas taxable income. The
substance of this regime Is a prescriptive “surtax,” or separate
excise, which is directed at single persons. In 1997, the lowest
bracket of single persons was taxed at a rate of 4.1% of the
first $20,000 (compared to 3.5% on low bracket married
persons up to $30,000 of joint taxable income), a surtax of
17.14%. The surtax for 1997 on top bracket single people
was achieved by blandly setting their top rate at 7.75%,
compared to 6.45% on top bracket married persons,
amounting to a deft penalty, ad infinitum, of 20.16% (7.75%
+ 6.45% = 20.16%).
20. Under the Constitution of Kansas and savings clauses
of K.S.A. § 79-3239 and § 79-32,108, the entire “singles
surtax” (not just one selected bracket and rate) is invalid and
must be held void. Since the legislature of course did intend
to impose an income tax on individuals in 1988, and later, as
clearly indicated in the relevant Preambles, the valid
subclause of the bills which survives (viz., the “joint” rate
schedule) should be judicially construed to impose a valid
(Cont'd)
1992-1996, it is confined to $5,000 (from $15,000 to $20,000). However,
in each of these intermediate areas, the systematic burden, imposed by
the prior singles’ surtax rates on the initial or lower bracketed income,
always results in more cumulative Kansas income tax on S than on A or B.
Then, the surtax resumes as graduated taxable income moves up and out of
such intermediate area.
37a
Appendix D
income tax on single individuals. As to single persons, the
effective and valid graduated income tax rate schedule would
be found by simply halving the graduated bracketed amounts
of taxable income (found in the surviving “joint” subclause
of the relevant statute) and applying the same percentage rates
to such (halved) amounts as are set in the statute for a married
couple. The Kansas legislature finally did this (in time for
the elections) in 1998; it partially reduced the “burden”
in 1997.
21. Single taxpayers of Kansas (and each and every one
of them), for all taxable years since 1988, are entitled to
reassessment of valid income taxes, and credits or refunds
of excess penalty amounts they have paid to Kansas, to the
extent such amounts exceed the respective correct graduated
income tax, surviving under K.S.A. § 79-32,110, as alleged
and explicated in section 20 of this Petition, under federal
and Kansas due process. Such credits or refunds are
hereinafter sometimes referred to as “excess amounts.”
Kansas due process mandates this remedy, which is for an
ongoing exaction and retention of illegal levies (and failing
such refunds or credits results in an unconstitutional
“taking”), continuously since 1988, under color of Kansas
law. The proper administrative role for the Kansas
Department of Revenue is to reassess the relevant income
taxes of all such taxpayers for the relevant years and to refund
or credit the “excess amounts,” which may be done simply
by recomputing the correct taxes from information already
filed by the single taxpayers with the original returns. Absent
equitable restitution, Kansas single taxpayers are
disremediated and their property is simply “taken” under a
void law. That is why this court should take jurisdiction.
38a
Appendix D
COUNT II
22. Petitioners hereby re-allege the foregoing sections
of this Petition.
23. The continued collection, retention and use of
all the “excess amounts” alleged in Count I hereof, through
the agency and coordinated action of all the respondents,
amounts to a collective deprivation of citizens’ money and a
deprivation of legislative and administrative due process to
Kansas single taxpayers under the Kansas Bill of Rights, and
under the due process clause of the Fourteenth Amendment
to the United States Constitution. Such “excess amounts”
are not imposed under validly enacted Kansas law, and such
amounts belong to the single taxpayers (and each and every
one of them) who were induced to pay them in. The continued
collection and retention of such “excess amounts” under color
of Kansas administrative law (and inapplicable “equal
protection” constitutional doctrine), by the various officials
named herein, therefore violates the federal civil rights
of single Kansas taxpayers under 42 U.S.C. § 1981 et seq.,
both as to viable remedies and actual monetary restitution.
They are being denied access to court, and Kansas has
wrongfully kept their money.
24. Kansas law does not provide an administrative
agency (or executive branch official) which has judicial
competence to adjudicate the validity of the enactment of a
bill (or a part thereof) by the Kansas legislature, or the facial
constitutionality thereof. But the respondent Department, in
violation of its due process duties of candor, truthfulness and
fairness, in violation of its duties of public trust, has
39a
Appendix D
countenanced the filing of admin/strative claims with no
special grounds or amounts, v uile representing that it
controls an administrative remec_ which in fact does not exist
under Kansas law. The respon‘ ents have encouraged single
Kansas taxpayers to look to them, and to sleep on their
fundamental rights and in so doing have violated federal and
Kansas procedural due process to Kansas single taxpayers.
25.A. The administrative function of the Department of
Revenue, Secretary of Revenue, and the other respondents
could only be the simple ministerial processing and payment
of refund amounts (or allowance of credits), after it is
judicially determined that the “excess amounts” have been
unconstitutionally levied and retained by Kansas. K.S.A.
§ 79-32,105(c). Their duties in this case are only ministerial.
The relevant information is contained in the income tax
returns (form K-40) already on file with the Department.
25.B. There is no difference between a taxpayer who
filed claims (viz., petitioner Merritt) and one who did not
(viz., petitioner LaFavre). Discrete taxpayer information
concerning the actual tax base (“Kansas taxable income”),
already on file, has not changed. Indeed it is federal doctrine
(binding on Kansas) that an income tax return which shows
an overpayment is a refund claim. Assuming that ministerial
officials are told what the right tax rate is, they are supposed
to send the overpayment back to the taxpayers, or credit it.
This is not like a case in which administrators may
legitimately insist on a claim because they have no
information to act upon, otherwise. Cf., Javor v. State Bd.
Equalization, 12 Cal. 3d 790, 117 Cal. Rptr. 305, 527 P.2d
1153 (Cal. 1974).
40a
Appendix D
25.C. To the extent that defendants have arrogated to
themselves the role of determining, defending,
“adjudicating,” and publicizing inaccurate and misleading
information about taxpayers’ remedies under the
circumstances of this case, they have acted ultra vires their
authority, in violation of separation of powers doctrine of
the Kansas Constitution, Kansas due process, and federal
constitutional due process and equal protection doctrine, and
in coordinated violation of 42 U.S.C. § 1981 et seq.
Cf., Western Union Tel. Co. v. Myatt, 98 F. 335 (D. Kan.
1899) (a remedy before the Kansas Court of Visitation, which
had imposed the penalties, was not due process).
The intended result in substance seems to be a perfected and
unilateral “taking” by Kansas. A lecture on administrative
law, to several hundred thousand single citizens, is not “just
compensation.”
26. Respondents have denied personal remedial rights
to Kansas single taxpayers, collectively, all in the name of
“administration,” under an administrative system which will
not work in this case. Under equal protection doctrine,
there is no rational difference between a single taxpayer who
stands on the original information contained in his return
(viz., petitioner LaFavre) and one who files a meaningless
“claim” which can only regurgitate the identical numerical
information already filed in his return, with an administrative
official who is incompetent to rule on the statutes themselves
(viz., petitioner Merritt). Cf., Logan v. Zimmerman Brush
Co., 455 U.S. 422 (1982). The problem is Kansas law, not
taxpayer numbers or information, and it is not a lack of
citizens’ initiative. Taxpayers seek the equitable reassessment
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4la
Appendix D
Order in Mandamus prayed for in paragraph 31, infra,
because it is the only effective remedy in this case, on
procedural due process grounds.
COUNT Ill
27. Petitioners hereby reallege the foregoing sections
of this Petition.
28. Petitioners hereby assert and allege that they have a
fundamental right under the United States and Kansas
Constitutions (and a retained right under the Kansas Bili of
Rights, § 20) to be and exist and choose to remain single,
during the relevant years, without penalty. That fundamental
right is the core of the inherent individual freewill recognized
in the “liberty interest” protected under the due process clause
of the XIVth Amendment, substantively. They have a
fundamental right to marry, or not to marry. Cf., Loving v.
Virginia, 388 U.S. 1, 12 (1967) (Part Il, Warren, oe BF
It is absolute, and a matter of their own inherent freewill, as
single individuals. Blackstone's Commentaries on the Laws
of England (1765), Legal Classics Library (Birmingham,
1983), Book One, Ch. I, “The Rights of Persons,” 119-122.
29. The Kansas statutes themselves, and the actions of
the relevant Kansas agencies and departments, and the official
respondents herein, to collect, retain, justify, publicly
minimize the burden of, and to deny a meaningful remedy
for, and to legitimate the systematic singles surtax described
herein, amount to the imposition of an unconstitutional,
discriminatory and excessive burden, charge, and penalty on
single taxpayers, in violation of single taxpayers’ fundamental
42a
Appendix D
right to be and remain single under the due process clause of
the Fourteenth Amendment to the United States Constitution,
and taxpayers’ rights of conscience and free exercise under
the First Amendment and their “liberty interest” in being and
choosing to be single under the foregoing. They may be taxed,
but not merely for being single. Cf., Murdock v.
Pennsylvania, 319 U.S. 105, 112 (1943) (preachers may be
taxed, but not for preaching). Any such tax is “punitory.”
State v. Gowdy, 62 Mont. 119, 203 Pac. 1115 (Mont. 1922)
(invalid head tax on bachelors; case undiscovered or
suppressed in Peden).
30. The burden of the purported tax heretofore alleged,
which amounts to a surtax on the income of single persons
at all levels and in all instances, is systematic and targeted,
as depicted in paragraph 19 hereof. Such surtax is not merely
incidental to random cases; it is structured so that it can only
impose higher tax, up and down the income scale, on all
single persons. It is not a sometime effect of legislative
income bracket graduation (which classifies income), and is
thus unlike any income tax imposed by Congress, which has
never targeted all married or all single people. That is why
ILR.C. § 1, 26 U.S.C. § 1, is constitutional, and these
purported Kansas “laws” are not. Cf., Mapes v. United States,
576 F.2d 896, 901 (Ct. Cl. 1978), cert. den., 439 U.S. 1046
(1978) (so-called “marriage penalty” is not imposed on all
marriage, and is not “for marrying”).
31. Petitioners request that the singles surtax, under
which Kansas has collected the “excess amounts” alleged in
paragraphs 20 and 21 hereof, since 1988, be declared
unconstitutional on its face, and that this court enter its Order
43a
Appendix D
for a reassessment of the correct Kansas income tax, by
respondents, for 1988-1997, under the supervision of
a Master or Referee to be appointed by this court within
a period to be set by the court. Petitioners also seek attorneys
fees and costs for the prosecution of this action,
under equitable doctrine of quantum meruit, common fund
doctrine of unjust enrichment, K.S.A. § 79-3268 (which
should apply where respondents have always known full well
that there is no viable administrative remedy for the masses),
and 42 U.S.C. § 1988.
COUNT IV
32. In the prior Kansas state court action, styled Peden
v. Kansas, 930 P.2d 1, 261 Kan. 239 (1996)(“Peden”), K.S.A.
§ 79-32,110 was challenged solely on “rational basis” equal
protection grounds. Those plaintiffs did not raise any
fundamental right or liberty interest (under due process .
principles) involved in being and remaining single in this
court (see Count III hereof). Neither did those plaintiffs raise
the Kansas constitutional or federal due process or “takings”
issue surrounding the invalid “enactment” of the relevant
legislation and the retention of the illegal amounts (Count I
hereof). The related disremediation and disinformation
matters alleged in Count II hereof under the Civil Rights Acts
arose during the pendency of that action, and have continued
to the present.
33. The Supreme Court of the United States denied a
petition for certiorari in Peden, and respondents thereupon
publicly represented that Peden is therefore dispositive of
all the rights of all Kansas single taxpayers. That notion is
44a
Appendix D
false. South Central Bell Tel. Co. v. Alabama, 526 U.S. 160
(1999); Richards v. Jefferson County, 517 U.S. 793 (1996).
The Governor of Kansas represented in the press that such
case should be accorded authority, as justified by “state
power,” and thereby further induced a belief that Kansas
single taxpayers constitutional claims on the merits
and reassessment rights were finally determined thereby.
Such impression is false. There is no state power to license
or tax or penalize single people into marriage. They have a
fundamental night to be and remain single.
34. Respondents have wrongly, falsely, deliberately and
separately represented to administrative refund claimants that
their substantive fundamental rights claim and procedural
rights to redress were exclusively bound up in the result of
Peden, and were thereby extinguished.
35.A. No publication or notice as to the correct tax rates
(which the plaintiffs and the District Court in Peden didn’t
bother with), refund amounts, the income brackets of the
asserted “class,” or due process-mandated opt out rights was
ever published by the court system of Kansas, or at its
direction, or by the plaintiffs, during the foregoing case.
The District Court of Shawnee County failed to address the
key question of what the right rates actually were, and held
that only the top bracket “disparity”. was irrational.”
35.B. The surface rational basis “equal protection” issue
therein decided is not probative much less controlling over
the fundamental rights and due process penalty matters raised
2. So what good could a “claim” do? What was the “rational”
refund? ;
SMC R RH! aie
-
'
&
i
i
45a
_Appendix D
herein. Kansas cannot tax the fundamental right to be single,
just because it can “classify” single people for income
graduation purposes, nor can it impose an annual license or
levy, for the right to remain single, on its unmarried citizens.
36. It would violate federal due process for this court to
accord any judicially preclusive or precedential significance
to Peden as to the parties, fundamental rights claims, issues,
and penalties and burdens raised herein, which are completely
different. Peden, as a mere matter of “rational basis”
speculation, is further infirm in that those plaintiffs and this
court ignored census data as to men and women in Kansas.
There are too many Kansas single women to speculate on
taxing or licensing them into marriage, or for any
sane legislature to even contemplate such an attempt, even
if it had police power in the premises. According to the
U.S. Census for 1990, there were 3.28 Kansas single women
at ages 55 and up for each such single man.
37. Petitioner Merritt (in an excess of caution) filed an
opt-out with the District Court of Shawnee County, Kansas,
where the prior case originated, on March 7, 1997, exercising
his federal due process right to pursue his own claims.
In this opt-out, he raised notice and opt-out issues, inter alia,
which would apply to all single taxpayers. There was no
action by that court, which finally simply dismissed
Mr. Peden and Ms. Smith after the reversal on the merits in
this court. There is not any globally preclusive decree, much
less any of the due process-mandated judicial steps or
conditions which could support any such purported decree,
presented by Peden.
46a
Appendix D
38. All single Kansas taxpayers, who have been induced
to sleep on their rights, have not been given notice, or the
opportunity to opt out of such prior state court action, in any
clear or explicit manner, at the instance of any participant.
It would deny federal due process to deny them a hearing in
this suit. There is no group-wide, or state-wide remedy at
present, much less one which is clear, certain, speedy or
viable, but in this court on mandamus.
39. Petitioner Merritt requested of respondents waivers
of any applicable period of limitation for filing suit (having
found nothing in Chapter 79), and supplemented his original
refund claims, on March 19, 1997, having first filed such
original administrative refund claims for 1988-1995 in April,
of 1996. There has been no response. Respondents never took
cognizance of, or action on, petitioner Merritt’s original
refund claims other than to (i) deny them, (ii) represent that
their “judgment” would “stand,” and, (iii) send him
superfluous information and misleading representations
about Peden, and to (iv) hold any hearing “in abeyance”
and purport to “bind” him against any other action. As though
they had judicial competence or in personam judicial power.
None of the foregoing amounts to responsible “action” within
the meaning of K.S.A. § 79-3230(d). 7
40. Any purported “action” by respondents would be
(and heretofore has been) utterly meaningless, since
respondents have no constitutional adjudicatory or remedial
authority in a case where the facial validity of a Kansas tax
statute is challenged. As to 1996, taxpayer Merritt presented
arguments in an intra-Departmental hearing, against
assessment of the “surtax” for that year, and heard from the
47a
Appendix D
Department of Revenue that “there is no fundamental right
to be single...” in a letter dated November 6, 1998. At that
point an accountant or Joe Blow pro se taxpayer would just
quit. But that’s the point; Kansas keeps the money.
41. Kansas has provided a “suit” under K.S.A.
§ 79-3230(d), as indeed it must, since it enforces and collects
anticipatory withholding and estimated income tax amounts
regularly during each year and has due process and
Vth Amendment obligations as to refunds and as to viable,
simple and effective remedies for taxpayers who might
overpay as a result of constitutional violations by Kansas.
That statute does not specify one defendant or any one court.
Nor would it have to. Burrill v. Locomobile Co., 258 U.S.
34 (1922); The City of Chicago v. Dows, 78 U.S. (11 Wall.)
108, 20 L. Ed. 65 (1871). The statute bespeaks a simple “pay
now, litigate later” rule, and recognizes that circumstances
differ. The judicial remedy is for citizens, not for bureaucrats.
41.B. A “suit” does not mean “no suit.” If that is Kansas
judicial doctrine, then in fact it works an abrogation of
§ 79-3230(d), and deprives petitioners and all single
taxpayers of any meaningful remedy, contrary to federal due
process principles. Reich v. Collins, 513 U.S. 106 (1994);
Kittredge v. Boyd, 136 Kan. 691, 18 P. 2d 563 (Kan. 1933).
Cf., Ogden City v. Armstrong, 168 U.S. 224 (1897),
237-241, which discusses multiplicity, and is also instructive
as to the instant problem (at 240-241):
Where the tax was wholly void and illegal, as in
this case, the statute and its remedies for error and
irregularities have no application.
48a
Appendix D
41.C. As to single persons employed by Kansas
employers, there is no pre-deprivation remedy as to the
“excess amounts” collected and retained by employers and
defendants, because of an automatic anticipatory wage
withholding tax system maintained by Kansas. As to
self-employed persons, the result is the same via required
estimated payments.
42. Peden is not res judicata as to the Kansas enactment
and due process claim (Count I), civil rights claims,
fundamental rights claims, remedial due process and
Vth Amendment claims and remedies prayed for in this case.
It ignored the paramount public citizens’ claim that Kansas
single taxpayers have a fundamental right to be and remain
single which was constitutionally burdened by the “tax”
complained of herein. The court in Peden never acquired
binding preclusive in personam jurisdiction over all Kansas
single taxpayers.
43.A. These separate petitioners filed a class action
complaint in federal court on April 15, 1999, asking the
United States District Court for the District of Kansas to take
jurisdiction of their fundamental rights claims-under the Civil
Rights Acts. That court dismissed on pre-answer motion
(by respondents) on February 18, 2000; the sole reason
was that the district court held that it lacked subject
matter jurisdiction on “federalism” grounds, under the
XIth Amendment to the United States Constitution.
The United States Court of Appeals for the 10th Circuit
affirmed on April 3, 2001. A petition for certiorari to
the Supreme Court of the United States was denied on
January 7, 2002. Federal district court jurisdiction to hear
49a
Appendix D
these claims and order restitution or another remedy in equity
(such as credits) therefore does not exist. Nonetheless, this
court has original jurisdiction and federal due process
requires Kansas courts to provide meaningful retrospective
relief to all single taxpayers, which the current Kansas
administrative system, limited by its judiciary to case by case
“review” of individual facts and circumstances, does not
afford.
43.B. Again, the problem in this case is the purported
state law which levies the money, not individual
circumstances or specific action by the citizens. Respondents
already know which taxpayers filed forms K-40 and who said
they were single. Respondents already know how much
money was paid in. The administrative system is not even
adequately funded in an amount sufficient to cover refunds.
$4,000,000 was never adequate. Respondents are however
subject to orders of this court under K.S.A. § 60-801,
and under K.S.A. § 79-32,105. Then they can administer the
reassessment all they want, until they give the money back,
dollar for penalty dollar.
ALLEGATIONS AS
TO MULTIPLICITY
44. All the scores of thousands of single persons who
have paid income taxes to Kansas for the taxable years
1988-1997 suffer alike from the same discriminatory rate
schedules, whether they had $500 or $5,000,000 of Kansas
taxable income in any given year. Mathematical differences
in the amounts of purported “tax” paid are immaterial, as
are numerical differences in the Kansas taxable income
50a
Appendix D
reported in the returns. The statutory rate schedule applied
to all single persons is void for each and every year.
Refund or forward credit amounts can be handled during the
reassessment after this case is resolved on the merits. Joinder
of all single taxpayers is impracticable.
45. Named petitioners herein have claims which are
typical of the class. Merritt pursued purported administrative
remedies as did many other single taxpayers (which was
utterly pointless); petitioner single taxpayers believe that
many other taxpayers knew nothing about the matter and did
nothing. Other practitioners advised their clients to await
action by this court before doing anything themselves, during
the pendency of Peden. The result is the same. The surtax is
invalid as to all single taxpayers, and certainly respondents’
“administration” and practical disremediation operates on the
entire class. All single Kansas taxpayers continue to suffer a
due process deprivation from the “singles’ surtax,” as long
as forward credits or refunds are denied.
46. Petitioners Merritt and LaFavre have claims typical
of the class, are therefore entitled to bring this suit, and will
fairly and adequately represent all Kansas single taxpayers.
Equitable relief in mandamus from this court is the only
extant judicial relief under extant Kansas doctrine.
The “public questions” are simple enough: (1) is there a
fundamental right of United States (and Kansas) citizens to
be and remain.single which may not be systematically
penalized by a state?, and (2) if the law is void on its face,
can Kansas really insist on a rote (and ridiculous)
administrative system here, person by person, before
Sla
Appendix D
citizens may get statewide credits, refunds, restitution or
“just compensation?” There was never enough moriey to fund
the administrative refund system. See sections 1 and 9, supra.
47. All Kansas single taxpayers cannot possibly
(economically or practically) prosecute separate
constitutional jurisprudential claims on the merits, but present
Kansas doctrine seems to require just this, a multiplicity of
administrative claims and review proceedings. All such
citizens who were single have an interest in the fundamental
rights claims and other matters raised herein. There are no
special difficulties with this case in securing the
jurisprudential adjudication sought herein.
48.A. Petitioner Merritt has resided at 8037 Mohawk
Drive, Apartment 201, Prairie Village, Kansas 66208 since
1984. He has filed returns with Kansas as a single taxpayer
and paid the purported taxes shown to be due for 1988-1995,
and filed refund claims with respondents in April of 1996.
After such claims were denied, taxpayer requested a hearing,
and was greeted by a communication from respondent
Department dated September 25, 1996 in which it is
represented that all hearings are “in abeyance” pending
Peden, which would control] the outcome of all claims.
Afterwards, Merritt supplemented his claims (March 19,
1997) and requested waivers of any statute of limitations on
filing suit with respect to his claims (same date), having found
no statute of limitations in the Kansas Income Tax Act on
filing suit. There was no response or other action of any
kind by any respondent as to 1988-1995. Petitioner believes
that the fate of his administrative refund claims, 1988-1995,
52a
Appendix D
is typical of those single taxpayers who even heard of the
matter and filed anything anywhere. The net result could only
be “no action.”
48.B. Petitioner has sought to exercise his
pre-deprivation remedies as to 1996, but under distraint paid
an invalid assessment on March 24, 1999 and filed another
(1996) refund claim thereafter. That administrative claim is
still pending before respondent Lochow, who in fact has no
authority in this constitutional matter. As to 1997, he has
paid the “correct” tax to Kansas. Other single taxpayers will
have pursued various approaches to the problem, all with
the same result. There has been no adjudication on the
question of Kansas’ systematic surtax on the fundamental
right to be and remain single; Kansas keeps the money.
49. Petitioner LaFavre has been a resident of Kansas
and single since 1994. She has filed Kansas income tax
returns as a single person, 1994-1997 (sub nom. “Howerter’).
She has pursued no administrative claims, on the initially
plausible advice during the pendency of Peden that a
group wide, class wide, or state wide refund remedy, based
on a reassessment or other legislative claims procedure,
would be available after the relevant statutes were
invalidated, as happened with the military retirees’ case.
See K.S.A. § 79-32,193. She resides at 6800 Fontana, Prairie
Village, Kansas 66208. Her claims are typical however, of a
larger class, who did not, and could not, have taken
meaningful separate personal action to vindicate their
constitutional rights, because of the individual expense
involved in pursuing a meaningless claim through
meaningless administrative rituals up to judicial review and
53a
Appendix D
refunds. Other tax professionals gave the same advice for
the same practical reasons. The point is that judicial action
is required, and individual cost shuts down individual access
to court. Cf., Boddie v. Connecticut, 401 U.S. 371 (1971).
REASSESSMENT ORDER
50. Petitioners request an Order in the nature of
Mandamus that valid Kansas income taxes be reassessed by
respondents, as to all single persons who paid such taxes,
1988-1997, on the basis of the “saved” and valid Kansas
income tax rates suggested in section 20 hereof, that
respondent State Treasurer cooperate therein, and that
evidence of credits or actual refunds of the excess amounts
now retained by respondent State Treasurer be issued to such
single persons, again under the supervision of the Master or
Referee requested in paragraph 31 hereof, unless a superior
legislative state remedy is enacted.
WHEREFORE, petitioners pray for an order to
respondents to show cause why the Writ should not be issued
and why an Order for Reassessment should not be entered,
and for this court to set a briefing schedule thereon, and
thereafter for the Writ of Mandamus, and for the Order for
Reassessment requested above, or such other equitable relief
as shall appear fair and just.
54a
Appendix D
Respectfully submitted,
James S. Merritt, Jr., Pro Se and
Attorney for Carolyn A. (“Howerter’”) LaFavre
1708 Commerce Tower
Post Office Box 13222
Kansas City, MO 64199-3222
816-472-6611
913-649-6097
Kansas Counsel:
Grant M. Glenn, #09051
WONER, GLENN, REEDER,
GIRARD & RIORDAN, P.A.
P.O. Box 67689
Topeka, KS 66667-0689
(785) 235-5330
(785) 235-1615
55a
APPENDIX E — MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF PETITION FOR
WRIT OF MANDAMUS FILED IN THE SUPREME
COURT OF THE STATE OF KANSAS DATED
FEBRUARY 6, 2002
No.
IN THE SUPREME COURT OF
THE STATE OF KANSAS
CAROLYN A. (“HOWERTER”) La FAVRE, and
JAMES SCOTT MERRITT, JR., et al.
v.
KANSAS DEPARTMENT OF REVENUE, et al.
Memorandum of Points and Authorities in
Support of Petition for Writ of Mandamus
Introduction
This court’s plenary power to issue a writ of mandamus
to the relevant named state officials is well established in
Kansas; petitioners invoke that power here, further invoking
their own constitutional rights to procedural due process and
ultimate meaningful redress. They raise the substantive
questions of whether or not Kansas recognizes a fundamental
right inherent in citizens to be and remain single, and whether
the mathematically explicit surtax imposed on all single
persons during 1988-1997 was unconstitutional on its face,
in that it systematically penalized such fundamental right as
a matter of substantive due process. Low scrutiny equal
protection doctrine does not serve as a source of inherent
government police power or revenue raising power to license
56a
Appendix E
single people, to surtax them into marriage, or to impose a
levy or charge on the exercise (according to their own choice)
of their fundamental inherent right to be or remain single.
That is the matter which was not addressed in Peden v.
Kansas, 261 Kan, 239, 930 P. 2d 1 (Kan. 1996), cert. den.,
520 U.S. 1229 (1997) (“Peden”). Peden decided the wrong
issue.
It is no big deal to classify single persons differently
from married persons, for purposes of distributing welfare
benefits or entitlements or setting income brackets or
allowing deductions. However, Kansas has no power to
impose a monetary surtax or license or levy on all
single persons (just because they are single) until they
marry. Murdock v. Pennsylvania, 319 U.S. 105, 112 (1943);
Bayside Enterprises, Inc., v. Carson, et al., 450 F. Supp. 696,
704 (M.D. Fla. 1978) (“. . . a state may not impose a charge
for the enjoyment of a right granted by the federal
constitution”’).
Procedurally, as a matter of due process, this court can
decide the case, and order the right remedy, which
is to reassess the right income taxes on the basis of
“saved” constitutional rates, for affected citizens. Cf., United
States v. Osage County (Okla.), 251 U.S. 128 (1919)
(“reappraisement”). The issues here are of great public
interest to any single person in Kansas, on the merits and
procedurally. This is not a factual case. This is not a welfare
or backpay or entitlements eligibility or contractual damages
case; Kansas put monetary levies on all the single citizens’
own property, based on void statutory rates.
57a
Appendix E
The question of the basic fundamental right to be and
remain single is common to all natural persons who filed
returns and paid the singles’ surtax complained of herein,
1988-1997. Petitioners assert that the statutory surtax was
unconstitutional on its face, in that it.penalized that right,
inherent in the individual “liberty interest” protected by
Kansas and federal due process. In 1990, there seem to have
been 244,866 males in Kansas (over the age of 15) who had
never married. There appear to have been 104,011 single
males who were separated, widowed, or divorced. As to
females, there seem to have been 189,997 single females in
Kansas (over the age of 15) who had never married.
There appear to have been 230,471 single females who were
separated, widowed, or divorced. The foregoing raw numbers
are from the 1990 U.S. Census.
Significant numbers of these single persons no doubt
were living on something besides parental largess or charity,
and will have filed income tax returns (K-40) and paid income
taxes, as single persons, to Kansas during all the years at
issue. The respondents will know how many returns were
filed by single persons. The public question is whether they
had a fundamental right to be and remain single which was
explicitly surtaxed and penalized by Kansas’ unique regime.
A second public (and constitutional) question is simply
whether existing Kansas administrative doctrine and
procedure is sufficient to actually provide meaningful
retrospective refund relief, or forward looking credit relief,
to the hundreds of thousands of single persons involved.
Actually, neither the respondent Kansas Department of
Revenue, nor the Kansas Board of Tax Appeals, could ever
58a
Appendix E
have physically handled several hundred thousand
constitutional claims as separate adversarial matters, or
“reviewed” such. A computer could reassess the right tax
from the original citizens’ information already filed in their
returns (K-40), once this court tells it (and the respondents)
what the right tax rates were. Thereupon, the right monetary
refunds (or credits) will be plain as day.
Petitioners Lring this petition in this tribunal because,
as yet in fact, there is nothing for the respondents
to administer, where the controversy involves the
constitutionality of a statewide levying statute itself.
Due process (Kansas and federal) mandates that there
be practical access to a judicial tribunal with authority
(i) to declare the law void, and (ii) to order redress.
Respondents have no such authority; there was never
enough administratively controlled money to pay all the
potential claims anyway. K.S.A. § 79-32,105(b); Petition,
section 1. Respondents’ ministerial duty in fact is simply to
follow the orders of this court once the statute is struck.
K.S.A. § 79-32,105(c).
I.
As alleged in the petition, and explicated in the
introduction, the existence of the fundamental right to be
and remain single, protected by the liberty interest found in
the due process clause of the XIVth Amendment, is a public
question organic to all the rights of citizenship exercised
every day by single persons in Kansas. That presents a classic
case for mandamus. Stephens v. Van Arsdale, 227 Kan. 676,
608 P.2d 972 (Kan. 1980).
59a
Appendix E
Il.
There are no issues of fact to be resolved here.
The Kansas statutes were either unconstitutional on their face
as to all single taxpayers, or they were not. Resolution
here will be expeditious. Cf., Kansas City Star Co. v. Fossey,
230 Kan. 240, 630 P.2d 1176 (Kan. 1981). As to reassessment,
the numerical facts are already declared, reported, and self-
assessed in the income tax returns; they do not change.
If the filed returns reflect an overassessment of tax, the simple
ministerial duty of respondents is to see to it that the citizens
get their money back. If the tax is in excess of the amount
legally due, the citizen has a due process substantive nght to
get it back. K.S.A. § 79-32,105(c); Reich v. Collins, 513 U.S.
106 (1994). Thus, again, any dumb computer can apply the
correct or “saved” tax rates to the Kansas taxable income
already reported, and can determine the amount paid
“in excess of the amount legally due.” The action required
here is all ministerial. Except that Kansas single taxpayers
require a judicial tribunal to order respondents to do
their duty.
Il.
It is acommon public question as to whether the statutory
surtax regime was constitutional. Such is the elemental case
for a writ of mandamus and a judicial decision on the
elemental question. State ex rel. Stephan v. Martin, 230 Kan.
747, 641 P.2d 1011 (Kan. 1982).
Manhattan Buildings, Inc. v. Hurley, 231 Kan. 20,
643 P.2d 87 (Kan. 1982) was a similar case, in that the
60a
Appendix E
question was constitutional and the court’s answer would
affect various leases with Kansas government all over the
state. The plaintiffs raised the federal contracts clause against
the relevant Kansas statute. Further, this court clearly held
that parties who were burdened by the law in question had a
perfect right to bring their constitutional claims in mandamus.
IV.
This case is also a classic for mandamus under K.S.A.
§ 60-801 because the respondents are officials whose
discretionary powers to void a Kansas statute on
constitutional grounds are zero. Their ministerial Official
duties are simply to make restitution after this court enters
the appropriate order. Again, the named petitioners have
both been penalized by the statutes and have an interest
common to all Kansas single taxpayers. Respondents have
the official duty to execute the remedy when this court orders
it. Mobil Oil Corp. v. McHenry, 200 Kan. 211, 436 P.2d 982
(Kan. 1968).
V.
Elemental federal due process requires a simple and
effective remedy for taxpayers who are burdened by
unconstitutional state levies. If there is a statutory refund
process which will work, then mandamus may be denied.
General Oil Co. v. Crain, 209 U.S. 211 (1908); Tennessee v.
Sneed, 96 U.S. 69 (1877). Otherwise, mandamus may not be
denied. Kittredge v. Boyd, 136 Kan. 691, 18 P. 2d 563
(Kan. 1933). The important due process mandate is that
simple and effective relief must be granted, and that a
6la
Appendix E
systematic state denial of refunds (or other “bait and switch”
tactics) is itself a separate procedural due process violation.
Reich v. Collins, 513 U.S. 106 (1994) (and cases cited);
South Central Bell Tel. Co. v. Alabama, 526 U.S. 160 (1999)
(spurious res judicata); Richards v. Jefferson County,
517 U.S. 793 (1996) (spurious disremediation via spurious
res judicata); McKesson v. Division of Alcoholic Beverages,
496 U.S. 18, 51 (1990), n. 35 (spurious attempt to retain
money when tax was unconstitutional). |
This court in 1933 originally understood due process and
the need for mandamus, as a matter of vindicating the rights
of aggrieved taxpayers. Kittredge v. Boyd, 136 Kan. 691,
18 P. 2d 563 (Kan. 1933). There, those taxpayers had no other
remedy and the court supplied it, by exercising judicial power
to issue its ancient prerogative writ. The court lectured the
official respondents on bureaucratic gamesmanship and stated
that officials had no right to keep an unconstitutional tax.
Further, any legislative attempts to appropriate
constitutionally tainted money would be void.
Constitutionally tainted money disposed of by respondent
Shallenburger is stil] the single taxpayers’ money.
Respondents may not stand on administrative procedure
where the levy itself is void. Ogden City v. Armstrong,
168 U.S. 224 (1897). See also, Atchison, Topeka & S. F: Ry.
Co. v. O’Connor, 223 U.S. 280 (1912) (trust theory as in
Kittredge; constitutional claim of taxpayer was “paramount”
to that of the state); United States v. American Tobacco Co.,
166 U.S. 468 (1897) (“claims” procedure wouldn’t work;
U.S. suffered “no loss”); DeLima v. Bidwell, 182 U.S. 1, 180
(1901) (taxpayer not limited to claims procedure;
constitutional question as to the levy itself, involving U.S.
62a
Appendix E
sovereignty over Puerto Rico); Cyprus Amax Coal Co. v.
United States, Georgetown.edu/Fed-Ct/Circuit/fed/op./99-
5060(Fed. Cir. 1999), cert.den., U.S. (6-4-2001) (remedy
for void coal export tax is self-executing, regardless of
alternative administrative claims route).
Conclusion
This court should enter an order to show cause, establish
a briefing schedule, and ultimately issue the Writ of
Mandamus, all to decide the constitutional questions raised
and to provide an effective remedy for the single citizens of
Kansas. Even assuming that hundreds of thousands of citizens
had filed their little “claims” and fatuously sought
bureaucratic review, there was never enough money under
control of respondents (or statutorily earmarked for refunds)
to satisfy all the claims. See K.S.A. § 79-32,105(b); Petition,
sections 1, 9, 43, 46. Equity provides an answer, and rote
doctrines of administrative law or other posturings about
fictitious and ineffective remedies do not. County of Lincoln
v. Luning, 133 U.S. 529 (1890); Beadles v. Smyser, 209 U.S.
393 (1908); Stewart Dry Goods Co. v. Lewis (I), 287 U.S. 9
(1932).
63a
Appendix E
Respectfully submitted,
J. Scott Merritt, Jr., Pro Se and
Attorney for Carolyn A.
(“Howerter”) LaFavre
1708 Commerce Tower
Post Office Box 13222
Kansas City, MO 64199-3222
816-472-6611
913-649-6097
Kansas Counsel:
Grant M. Glenn, #09051
WONER, GLENN, REEDER,
GIRARD & RIORDAN, P.A.
P.O. Box 67689
Topeka, KS 66667-0689
(785) 235-5330
(785) 235-1615
64a
APPENDIX F — MOTION FOR REHEARING AND TO
VACATE DISMISSAL, AND FOR PRE-HEARING
CONFERENCE FILED IN THE SUPREME COURT OF
THE STATE OF KANSAS DATED APRIL 8, 2002
No. 02-88431-S
IN THE SUPREME COURT OF
THE STATE OF KANSAS
CAROLYN A. (“HOWERTER”) La FAVRE, and JAMES
SCOTT MERRITT, JR., on behalf of themselves and all
single Kansas income tax payers,
Petitioners,
V.
KANSAS DEPARTMENT OF REVENUE,
a Kansas Agency,
TIM SHALLENBURGER, as State
Treasurer of Kansas,
STEPHEN S. RICHARDS, Secretary of Revenue
of the Kansas Department of Revenue, et al.,
Respondents.
MOTION FOR REHEARING AND TO VACATE
DISMISSAL, AND FOR PRE-HEARING CONFERENCE
On February 6, 2002, petitioners filed their Petition for
Writ of Mandamus and Order for Reassessment (“Petition’’)
with a supplemental Memorandum of Points and Authorities
(“Memorandum”). Respondents filed no reply.
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At least until the early 1990’s, this court regularly
exercised its original mandamus jurisdiction in cases raising
public questions, the constitutionality of statutes, matters of
fundamental rights, and in cases of state-wide importance
where there were no significant factual issues. Memorandum,
pp. 2-9. Yet, on March 20, 2002, the Petition was denied,
without opinion (copy attached).
Pursuant to this court’s Rule No. 7.06, Rule No. 9.01(e),
Rule No. 1.04 and Rule No. 5.01, petitioners hereby
move the court (i) to vacate the denial of March 20, 2002,
and (ii) to schedule a pre-hearing conference before Chief
Justice Kay McFarland. Otherwise, a grave injustice,
amounting to procedural and remedial deprivation, will be
done by this court to the mass of single citizens of Kansas.
Cf., Gelpcke v. City of Dubuque, 68 U.S. (1 Wall.) 175, 206-
7,17 L.Ed. 520, 526 (1864). Contrary to federal due process.
Reich v. Collins, 513 U.S. 106 (1994); Carpenter v. Shaw,
280 U.S. 363, 369 (1930). Petitioners entreat this court not
to ignore the due process jurisprudence of the United States
Supreme Court in this area. Cf., Scalia, J., in Kansas v. Crane,
_US._, U.S. S.Ct. Dkt. No. 00-957 (1-22-02). This court
should direct the respondents to show cause, and schedule a
pre-hearing conference with the Chief Justice, because
important public questions are presented which deserve the
court’s plenary review.
Petitioners further entreat the court not to ignore the due
process rights of hundreds of thousands of lower and middle
income single taxpayers of Kansas, single mothers, bachelors,
widows and widowers, who were all invalidly surtaxed
for 10 years, and could not have pursued individual
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administrative remedies. Any more than they all could have
gotten married. They all had a fundamental right to be and
remain single, which was invalidly surtaxed, and this court
has not addressed that matter, much less their remedial plight
under the present Kansas system.
A single person earning an average of $10,000 per year
in Kansas taxable income was surtaxed $840 during
1988-97 (without interest). Such persons, and those surtaxed
much more, could not have carried through with individual,
tedious, administrative proceedings, leading only to
bureaucratic review, and then appealed and litigated separate
constitutional refund claims up to this court, severally.
The Kansas wage withholding system precludes any notion
of a pre-deprivation remedy for wage-earners.
* * *
Petitioners seek to void the assessments of purported
Kansas income tax levied on all single persons, 1988-97,
imposed by K.S.A. § 79-32,110, on the substantive due
process grounds that such statutes systematically penalized
their absolute fundamental right to choose not to marry, or
“to be and remain single.” That claim is public and common
to all the single citizens of Kansas who received income
during the years at issue, and affects the balances of all their
taxpayer accounts with respondent Kansas Department of
Revenue as of today. Petitioners further seek a remedial Order
for respondents to redetermine (or reassess) valid “saved”
Kansas income tax on single persons, which will
mathematically produce credits or refunds of the excess
(void) penalties. Petition, sections 19 and 20. If this court
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voids the penalty element of the rates built into the challenged
statutes, it is the plain statutory duty of respondents to square
up the accounts. K.S.A. § 79-32,105(c). The necessary
taxpayer information ts already filed with petitioners’ returns.
All of it. The question is the validity of the statutory rates.
This court’s inherent plenary jurisdiction over the
respondent Department of Revenue and other state officials
(and petitioners’ federal constitutional claims) is invoked
under Article 3, § 3 of the Kansas Constitution, under K.S.A.
§ 60-801, and under the due process clause of the XIVth
Amendment. Petitioners sought the remedial writ of
mandamus here, because this court has prerogative power to
strike the penalty element of the levies on public
constitutional grounds and to order a ministerial reassessment
by respondents, pursuant to K.S.A. § 79-32,105(c), on behalf
of all afflicted single taxpayers. Cf., Duke v. Turner,
204 U.S. 623, 632 (1907); Kendall v. United States ex rel.
Stokes, 37 U.S. (12 Pet.) 522, 623-24, 9 L.Ed. 1181, 1220
(1838) (mandamus to correct erroneous postal accounts);
Felten Truck Line v. Bd. of Tax Appeals, 183 Kan. 287,
327 P.2d 836 (Kan. 1958) (where the statute itself was
challenged); Kittredge v. Boyd, 136 Kan. 691, 18 P. 2d 563
(Kan. 1933) (mandamus to Treasurer and other officials to
return unconstitutionally levied tax; attempted legislative
appropriation of unconstitutional tax money would be void).
* * *
Ordinarily, the Kansas Supreme Court could transfer this
matter to a district court having jurisdiction, Rule 9.01(a);
but there is no Kansas lower court which can grant
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meaningful and effective reassessment or class relief in this
case, on a group-wide or state-wide basis, which
will remediate all the penalized Kansas single taxpayers.
Zarda v. Kansas, 250 Kan. 364, 826 P.2d 1365 (Kan. 1992);
Dean v. Kansas, 250 Kan. 417, 826 P. 2d 1373 (Kan. 1992);
Farmers Banshares of Abilene v. Graves, 250 Kan. 520,
826 P.2d 1363 (Kan. 1992). It was this court which
denied group-wide relief in the district courts in those cases.
Kansas kept the money. In Peden v. Kansas , 261 Kan. 239,
930 P. 2d 1 (Kan. 1996), cert. den., 520 U.S. 1229 (1997),
the same problem was there, but the court dealt only with
low scrutiny equal protection, and reversed the district court
on the merits. It did not deal with penalties on the
fundamental right to choose to be single, and did not address
the remedial plight of all the single taxpayers.
Thus, petitioners pray for mandamus and stand on
their remedial due process rights here. Brinkerhoff-Faris
Trust and Savings Co. v. Hill, 281 U.S. 673 ( 1930) (early
“bait and switch” case involving defensive state arbitrage
between mandamus and fictive administrative remedies).
See Woolhandler, Ann, The Common Law Origins of
Constitutionally Compelled Remedies, 107 Yale L.J. 77
(1997), 113 et seq. (mandamus was original means of
enforcing citizens’ rights vs. recalcitrant officials). No Kansas
statute can repeal or abrogate this court’s original jurisdiction
under Article 3, § 3 of the Kansas Constitution, or this court’s
duties to its own citizens under the XIVth Amendment.
The present Kansas administrative refund regime simply
does not contemplate the eventuality that a mass taxing
statute would be held unconstitutional on its face, and
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therefore does not provide a simple and effective means
for mass redress, as a matter of procedural due process.
A writ of mandamus is the means of mass redress, here. Other
state courts have provided redress on a mass basis to
aggrieved taxpayers, and thus accorded basic due process,
in cases of systematic official illegality practiced on the
masses. Javor v. State Bd. Equalization, 12 Cal. 3d 790,
117 Cal. Rptr. 305, 527 P.2d 1153 (Cal. 1974); Santa Barbara
Optical Co. v. State Bd. Equalization, 47 Cal. App. 3d 244,
120 Cal. Rptr. 609 (Cal. App. 1975); Ware v. Idaho State Tax
Com., 98 Id. 477, 567 P.2d 423 (Id. 1977). Kansas cannot
collect mass levies on all the single citizens wholesale, and
then insist on retail claims administration, where the statutory
levies themselves are challenged as void, on fundamental
rights grounds.
Petitioners estimate that 300-400,000 Kansas single
persons filed income tax returns (K-40) for 1998-97,
and have a financial interest in the outcome of this matter.
They could never realistically be expected to pursue separate
administrative refund claims on the common fundamental
rights question; they could never each afford it. Cf., Boddie
v. Connecticut, 401 U.S. 371 (1971). But that is precisely
the financial reality upon which respondent officials traffic.
That way, they keep the money, tainted or not. Yet they have
no juridical competency to void a statute which is
unconstitutional on its face. Their clear ministerial duty is
to credit or refund the taxpayers when this court strikes the
penalties. K.S.A. § 79-32,105(c). It is not the filed returns,
or the individual taxpayers (or any questions about their
taxable income), which are the problem; it is the purported
mass levying statutes (1988-97). A filed income tax return
which produces an overpayment is a refund claim.
|
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Appendix F
Administratively, respondents could never have heard
hundreds of thousands of separate (yet identical) single
taxpayers’ refund claims. Petitioner Merritt was told as much
during a telephone conversation with an official of the Kansas
Department of Revenue in 1998. Neither could the Kansas
Board of Tax Appeals. No administrative refund claim could
have any meaningful effect, without a court’s prior holding
as to the validity of the statute, and a judicial holding as to
valid “saved” income tax rates. K.S.A. § 79-3239; Petition,
section 20.
Further, the assets segregated by K.S.A. § 79-32,105(b)
_ (providing only $4 million for refunds) were inadequate to
support refunds to all single taxpayers at all relevant times.
Petition, sections 1, 9, 43, 46. See Burrill v. Locomobile Co.,
258 U.S. 34 (1922) (remedy must be backed by the resources
of the state).
Plaintiff multiplicity, and a public question involving
fundamental rights and the constitutionality of a state law,
are both classic reasons for the court to hear the petition.
Respondents’ duty is to follow this court’s orders, not
obfuscate the citizens’ remedial due process rights.
Memorandum, pp. 2-9; Ogden City v. Armstrong, 168 U.S.
224 (1897), 237-241 (“Where the tax was wholly void and
illegal, as in this case, the statute and its remedies for error
and irregularities have no application.”); Shelton v. Platt,
139 U.S. 591 (1891) (multiplicity); Board of Liquidation v.
McComb, 92 U.S. (2 Otto) 531, 541, 23 L.Ed. 623, 628 (1876)
(“any person” may have mandamus to compel ministerial
action; officials may not rely on unconstitutional law,
which will be treated as null and void); Davis v. Grey,
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83 U.S. (16 Wall.) 203, 232-3, 21 L.Ed. 447, 457 (1873)
(multiplicity); Dows v. City of Chicago, 78 U.S. (11 Wall.)
108, 20 L. Ed. 65 (1871) (multiplicity); Dodge v. Woolsey,
59 U.S. (18 How.) 331,15 L.Ed. 401 (1856) (numerous
shareholder-plaintiffs without other practical remedy).
* x *
The stark fact is that all the single taxpayers of Kansas
(1988-1997) have never had an adjudication on their
substantive claim that the “liberty interest” protected by due
process (including an absolute fundamental right not to marry,
or “to be and remain single”) was systematically penalized
by the statutory rate system built into K.S.A. § 79-32,110
(1988-1997). The mathematical surtax contained therein was
unconstitutional on its face, in that it indeed systematically
penalized all single persons, up and down the income scale.
Petition, section 19, and passim. These petitioners’ claims
are founded on their own “liberty interest” protected by due
process, not equal protection doctrine. Loving v. Virginia,
388 U.S. 1, 12 (1967) (Part II). Neither Congress nor any
other state has ever attempted such a regime. But see, State
v. Gowdy, 62 Mont. 119, 203 Pac. 1115 (Mont. 1922)
(higher head tax on bachelors struck in part as “punitory”).
See also, Vivien Kellems, 58 T.C. 556 (1972), aff’d.
per curiam, 474 F. 2d 1399 (2d Cir. 1973), cert. den.,
414 U.S. 831 (1973), where, before uttering a word about
“classification” or equal protection, Judge Withey correctly
observed that Congress had not intended to regulate, or
restrict, or penalize single persons. 58 T.C. at 558. Here, the
Kansas statutory mathematics are obvious; Kansas wasn’t
bracketing income. It slapped higher rates on all single
persons, poor, middling and rich.
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Equal protection doctrine of “classification” (as to
married vs. single persons) expounded in other cases does
not control the fundamental rights claims brought in this suit.
It denies due process for this court to close its doors (on any
such ground) to these plaintiffs. South Central Bell Tel. Co.
v. Alabama, 526 U.S. 160 (1999); Richards v. Jefferson
County, 517 U.S. 793 (1996). Cf., Lunding v. New York Tax
Appeals Trib., 522 U.S. 287 (1998) (plaintiff brought multiple
arguments, but won on his “privileges and immunities” claim;
N.Y. was “surtaxing” non-residents’ alimony, which
“smacked” of a penalty). The fundamental right to choose to
remain single, or not to marry, is not administrable by
governmental authority; it is inherent in citizens themselves.
Loving v. Virginia, supra. The exercise of fundamental
rights is not surchargeable. Murdock v. Pennsylvania,
319 U.S. 105 (1943); Grosjean v. American Press Co., 297
U.S. 233 (1936). “Classification” has nothing to do with it.
Simon & Schuster v. N.Y.S. Crime Victims Bd., 502 U.S. 105
(1991) (Kennedy, J.). Yet respondents have represented to
petitioners that Peden v. Kansas, 261 Kan. 239, 930 P. 2d 1
(Kan. 1996), cert. den., 520 U.S. 1229 (1997), just solved
every little problem. Falsely. Petition, sections 7, 8, 25, 33,
34, 39, 40, 48 (all hearings “‘abeyed,” pending Peden). Kansas
may not tax anything and everything it can find words to
describe, simply by mouthing low scrutiny equal protection
doctrine.
Petitioners invoke their own procedural due process
rights to an adjudication of their substantive claims brought
herein, under the XIVth Amendment to the United States
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Constitution, and further to a practical effective remedy
issuing from this court, for themselves and all
single taxpayers who were assessed Kansas income taxes
(1998-97), also under said XIVth Amendment, and under the
Kansas Bill of Rights § 3, § 18. There is no other judicial
forum in this state which actually has technical jurisdiction
over single petitioners’ facial claims, which are
constitutional, and not factual or discrete in any case by case
sense. Respondents have never been given judicial authority
to “administer” a facial challenge to a statute on constitutional
grounds.
The Constitution mandates a remedy where the state
imposes a flatly unconstitutional levy or charge, which
remedy must be simple and effective. Reich v. Collins,
513 U.S. 106 (1994) (denial by state court of effective refund
remedy is itself a due process violation); Ogden City v.
Armstrong, 168 U.S. 224 (1897) (statutory remedy not
exclusive where tax is void ab initio); Tennessee v. Sneed,
96 U.S. 69, 24 L. Ed. 610 (1877) (statutory remedy must be
simple and effective); Board of Liquidation v. McComb,
92 U.S. (2 Otto) 531, 541, 23 L.Ed. 623, 628 (1876) (“...
writs of mandamus and injunction are somewhat
correlative. ...”); DeLima v. Bidwell, 182 U.S:4, 189,
45 L.Ed. 1041, 1049 (1901) (“. . . plaintiffs were at liberty
to waive the tort and proceed in assumpsit” regardless of a
remedy [or not] under the relevant U.S. customs
administrative act, where the “tax” question was actually
about United States constitutional sovereignty over Puerto
Rico); Cyprus Amax Coal Co. v. United States,
Georgetown.edu/Fed-Ct/Circuit/fed/op./99-5060 (Fed. Cir.
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2000), cert.den., U.S. _ (6-4-2001) (administrative remedy
not exclusive; constitution provides self-executing refund
remedy for unconstitutional tax).
* * *
The purpose of the pre-hearing conference requested
herein would be:
(i) to consider the simplification of the issues,
(i1) to consider the issuance of an Order to Show Cause
why the requested writ of mandamus for respondents
to reassess Kansas income taxes heretofore levied on
single natural persons (by simply recomputing past
ministerial assessments based on Kansas income tax
returns and Kansas taxable income information already
filed and reported by single persons with respect to the
taxable years 1988-1997, on the basis of correct rates,
Petition, section 20, and thereafter allowing credits or
refunds carrying forward from such prior taxable years)
should not issue, and
(iii) to discuss the entry of an Order fixing
dates for the submission of other background
information and the filing of briefs, and
(iv) to consider such other matters as the
court shall deem necessary, all pursuant to
Rule No. 9.01(e).
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Appendix F
Respectfully submitted,
James S. Merritt, Jr., Pro Se and
Attorney for Carolyn A. (“Howerter’’)
LaFavre
1708 Commerce Tower
Post Office Box 13222
Kansas City, MO 64199-3222
816-472-6611
913-649-6097
Kansas Counsel:
Grant M. Glenn, #09051
WONER, GLENN, REEDER,
GIRARD & RIORDAN, P.A.
P.O. Box 67689
Topeka, KS 66667-0689
(785) 235-5330
(785) 235-1615
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