Petitioner Chris Imming and his attorney, R.E. “Tuck” Duncan II, have filed their brief in the appeal of the Heartland Park petition case and listed four points in which they say the Shawnee County District Court erred.
The 44-page brief from Imming was made available by the Kansas Appeals Court on Friday morning.
The filing starts a 30-day clock by which the city of Topeka and Jayhawk Racing LLC have to file their briefs. The temporary stay prohibiting Topeka’s city government from moving forward with its proposed issuance of sales tax revenue (STAR) bonds is in place until 10 days following their filings.
In the brief filed Thursday, the appellant argues four main points in which the Shawnee County District Court erred in its ruling against the petition, concluding that the appeals panel direct the city to either enact the initiative petition or put it before Topeka voters “so as to preserve the democratic process.”
Shawnee County District Court Judge Larry Hendricks on Nov. 12 found that the petition was substantially compliant with the law, but that the city ordinance to purchase Heartland Park and expand the STAR bond district — Topeka Ordinance No. 19915 — is largely administrative. Initiative petitions — the type of petition Imming filed — can’t be filed against administrative ordinances, according to state law.
In addition, Hendricks ruled, a petition to challenge the issuance of full faith and credit STAR bonds has to be a protest petition, because STAR bonds are legislative.
Duncan, however, argues the district court erred in that decision. The city ordinance, he said, has several legislative aspects, including that it implements permanent actions and has statewide implications. The plan would divert state sales tax dollars toward repaying the STAR bonds.
“The initiative petition is the only appropriate procedure to reverse this bundling of multiple matters,” he states.
Approving administrative ordinances, on the other hand, requires “specialized training and experience or intimate knowledge of the fiscal affairs of government” — something, Duncan argues, the Topeka City Council and mayor lack. He cites LinkedIn and profile pages of council members, highlighting their occupations: “two lawyers, two association executives, an LPN, a labor organizer, two with health care training, an ‘office worker,’ and a database administrator.”
“Not one is an investment banker, a CPA, a licensed real estate professional, or similar profession who possesses some specialized training in STAR bonds,” Duncan states. “How can it be said that a city council merely by their election to office becomes endowed with specialized training and experience in municipal government with intimate knowledge of the fiscal and other affairs of a city?”
Duncan also argues the trial court erred in denying the defendant’s motion to dismiss when it determined the action of the city manager was ratified by the city council.
Hendricks ruled in favor of Duncan’s argument that city manager Jim Colson didn’t have authority to file the lawsuit against the petition.
However, Hendricks determined the council ratified Colson’s decision during the Oct. 21 council meeting, when council members voted not to approve Councilman Chad Manspeaker’s motion that would have ordered the city attorney not to pursue litigation.
Duncan states the law requires a governing body affirm the motion in a ratification, which, he argues, is a higher threshold than merely rejecting a procedural motion.
“All we know from the unapproved minutes is that the city council did not want to vote on the issue (as difficult as it may be to believe that politicians would not want to go on record),” he writes.
“Ratification by implication” is a slippery slope, he states, that suggests governing bodies never would have to affirm unauthorized actions of their employees.
“Only the governing body has the authority to initiate this lawsuit,” he concludes.
Duncan also states the trial court erred in:
■ Granting summary judgment in favor of the plaintiff and intervenor by finding that the proposed ordinance was subject to referendum or election and therefore not subject to the Kansas Initiative Statute.
■ Granting defendant’s counterclaim for Writ of Mandamus.
