Michael DOLAN, PVA, Charles Baesler, County Court Clerk, Lones Taulbee, Sheriff and Department of Revenue, Commonwealth of Kentucky, Appellants, v. Walter G. LAND, Annie W. Brakefield, Richard Featherston, David Biddle, Allen Gibson Carr, and Thomas V. Lynch, on Behalf of Themselves and all Others Similarly Situated, Appellees.
Supreme Court of Kentucky.
Feb. 16, 1984.
As Modified on Denial of Petition for Extension of Opinion May 10, 1984.
684 S.W.2d 281
I dissent from the majority opinion at the same time recognizing the seriousness of the question raised by the polygraph evidence.
The questioning of a minister as to a biblical basis for the death penalty was in response to Ice‘s introduction of testimony by a minister that the Bible taught that the death penalty was wrong. This seems eminently reasonable to me, Ice opened the door on this subject.
The opinion here unfairly characterizes the closing argument as prosecutorial misconduct. What is wrong with asking the jury that Ice not be “turned loose to kill again“? This does not violate Payne (which I believe should be overruled) as it does not address the consequence of a verdict. Insofar as the criminal justice system is concerned, a not guilty verdict “turns him loose.”
As to the polygraph evidence, I agree that it was error to admit that testimony. It was irrelevant. It was never an issue, only a smoke screen. Insanity was the defense from the beginning. The testimony of Ice‘s psychiatrist that he had no recollection of events, that he could not bear to remember what he had done etc., clearly shows there was no pretense that anyone other than Ice did the killing.
Had Ice taken the stand and testified he did not do the killing or that Mayberry did, then the polygraph evidence would have been relevant and reversible error. Here it was irrelevant and did not prejudice Ice‘s defense.
I would affirm the conviction and accordingly dissent.
WINTERSHEIMER, J., joins in this dissent.
Charles R. Hembree, Kathleen Harris, Kincaid, Wilson, Schaeffer & Hembree, Lexington, for appellees.
WINTERSHEIMER, Justice.
This appeal is from a judgment entered October 27, 1982, determining that the method of assessment by the Fayette County Property Valuation Administrator for agricultural and horticultural land was unconstitutional. The circuit court also held
The issues presented are whether the circuit court erred when it held the method of assessment to be unconstitutional, whether it erred when it found that the Department of Revenue had failed to equalize the assessments of agricultural and horticultural property, whether the statutes were unconstitutional, and whether it was error to allow the use of the 1980 assessments instead of the 1981 valuations for the tax year of 1981.
The method employed by the Fayette County PVA in assessing agricultural lands did not achieve the result required by
A careful examination of the record indicates that the method used by the Fayette County PVA for 1981 resulted in farm property being assigned a value based on general averages rather than an individual and specific value related to the agricultural purpose for which it was used.
A review of the evidence indicates that the deputy valuators did not physically inspect the land but merely looked at the farm for a comparison with the contour maps in the PVA office. Evidently, the classes of value were assigned on a rotation basis for which there is no supporting document or schedule. The testimony of the PVA indicates that he relied solely on what he considered to be the income producing capacity of the acreage.
The use of mathematical formula to arrive at a result may be proper as long as the procedure adopted does not produce an unfair or unequal valuation. Here the formula was applied mechanically and failed to consider the particular individual characteristics of specific farm property. The appellants’ citation to Borders v. Cain, Ky., 252 S.W.2d 903 (1952), is not persuasive. The method used here, even though it was the same method used for all agricultural land in the county, was improper because it failed to value the property on the basis of uniform standards and did not result in an effective tax which was equally burdensome on all farm taxpayers.
The method used by the PVA could be valid as to individual properties only if it were adjusted to take into account the specific characteristic of each farm. The PVA made no effort to identify the different types of land or soil comprised in each individual farm so as to produce a more accurate assessment of the true value. No such individual adjustments were ever made.
There is evidence of probative value in the record that the soil capabilities and slope of the land are important in determining the income producing capacity of the land and that no one type of soil is limited to any one sector of the county.
As observed in Gess, supra, the process of assessing property is not easy, but difficulty cannot serve as a justification for deviating from constitutional requirements. The method used by the PVA was not constitutionally sound.
Turning now to
The circuit court properly determined that the correct remedy was the use of the 1980 assessments for the subject property for the tax year 1981. The circuit judge determined that the assessment for the year 1981 was unconstitutional and void. There is no authority to support the appellant‘s contention that the PVA is entitled to belatedly assess the subject proper-
The question of whether the property owners failed to properly exhaust their administrative remedies is not before this Court. It was correctly decided by the circuit court in overruling a motion to dismiss. It should be pointed out that International Society for Krishna Consciousness, Inc. v. Commonwealth, Ky.App., 610 S.W.2d 910 (1980), held that when the constitutionality of an assessment is challenged, judicial review may be obtained without first exhausting administrative remedies. We find no reason to disturb that decision in this case.
There is no validity to the holding of the lower court that, before the assessments of agricultural value in Fayette County could be upheld, the Department of Revenue is required to prove that these assessments impose the same tax burden on the farm owners in Fayette County as is imposed on the farm owners in all other counties. We are cited no statute, no constitutional requirement and no case law to support this position, for the simple reason that there are none. The burden on the Department of Revenue is simply to assure that all property in this state is assessed fairly, according to its value. If this is done, the tax burden will be equally shared. As a matter of fact, the issue should probably not have been raised. This was an action to protest the constitutionality and application of certain statutes and the assessment carried out thereunder. There was no exhaustion of administrative remedy and, thus, no opportunity presented for the Department of Revenue to make comparative analysis of any particular property. That part of the judgment of the circuit court is reversed.
It is the holding of this court that the method employed by the PVA to assess agricultural and horticultural land in Fayette County is unconstitutional. The circuit court was correct in applying the 1980 assessments for the tax year of 1981.
The judgment of the circuit court is affirmed in part and reversed in part.
STEPHENS, C.J., and LEIBSON, STEPHENSON and WINTERSHEIMER, JJ., concur.
GANT and VANCE, JJ., dissent by separate opinions.
AKER, J., joins GANT, J., dissenting.
GANT, Justice, dissenting.
In order to properly evaluate this case, we must carefully examine two factors. First, we must look at the constitutional provisions relating to the tax assessment and the statutes enacted pursuant thereto. Second, we must scrutinize the method of appraisal utilized herein by the Fayette County Property Evaluation Administrator.
The basic sections of the Constitution of Kentucky relating to property taxes have always been
We next turn to the method of assessment utilized by Michael Dolan, Fayette County PVA, who is acknowledged as an expert in his field of appraisal and who is personally familiar with each farm in Fayette County. Mr. Dolan first obtained the Fayette soil survey maps and books from the U.S. Soil Conservation Service (SCS). These contain a complete analysis of every farm in the county according to soil type and slope. The information, in actuality, relates to which crops can be best planted in each area and the suggested rotation in planting of these crops on each farm, or the rotation between crops and pasture. From the College of Agriculture at the University of Kentucky, Dolan obtained all pertinent data relating to crops grown in Fayette County and the type of soil and slope best suited for each. These records included cost of planting and return, or yield, on each crop.
Armed with this information, with the plats, photographs and data in his own office, Dolan dispatched field appraisers, who personally viewed each tract in the county. They verified the accuracy of the SCS surveys on each farm and measured and appraised each residence separately.
Again utilizing the combined data thus gleaned and relying upon his own expertise, Dolan divided all the farms in the county into four general categories and, utilizing a formula based upon a capitalization of 10% expected return on investment, arrived at a per-acre evaluation on each farm. To that valuation, he added the value of tobacco for each farm to which a tobacco base had been allotted, if any, and the value of any residence and any appurte-
nances thereto, and arrived at an assessed value for each farm in Fayette County.
When the method utilized in Fayette County is thoughtfully compared with that in other counties, it is clear that it is an excellent analysis and far exceeds the windshield type which has been approved in many instances. The only failure encountered in the method utilized herein was the failure to separately appraise such improvements as tobacco barns, stables, horse barns, silos, hay barns, equipment housing, etc. Although the statutes relating to the assessment required that the land occupied by such improvements be included in the acreage, it did not mandate exclusion of the improvements themselves. It is obvious that farm land with improvements is more valuable than farm land without. I would affirm that portion of the lower court, and no other.
The obvious purpose of
The lower court, in declaring
AKER, J., joins in this dissent.
VANCE, Justice, dissenting.
I join in the dissent of Justice Gant and in addition I would reverse the judgment because none of the appellees exhausted the administrative remedies which provide for relief from improper assessments.
This court has decided two cases directly on this point. In Kentucky Board of Tax Appeals v. Gess, Ky., 534 S.W.2d 247 (1976) the matter came before the court after the parties had properly exhausted their administrative remedies by appealing to the County Board of Assessment Appeals. In Parrent v. Fannin, Ky., 616 S.W.2d 501 (1981), it was held that the aggrieved taxpayers could not pursue a challenge to a tax assessment without first exhausting their administrative remedies.
Here, as in Parrent, there is no basis for appellees to complain unless their property
has been assessed too high. They did not so contend through appeal to the County Board of Assessment Appeals and have offered no proof to that effect in this litigation. They simply claim that the method of assessment used by the P.V.A. would necessarily result in some inequitable assessments without showing that any of them have been adversely affected.
Tax assessment is not an exact or perfect science.
The assessment of real property under
The plain fact is that there are fewer and fewer sales of property in which the price is not inflated to some degree by factors other than its value for purely agricultural and horticultural purposes. With good roads and the extension of water, electricity, and other utilities into hitherto-remote rural areas, the actual market value of a very substantial percentage of farm property reflects potential uses other than farming. Cf. discussion in Com., Dept. of Highways v. Siler, Ky., 411 S.W.2d 937, 938-939 (1967). Whenever farm property has a market value, or actually has sold for a price, greater than is justified by its income-producing capacity, then there is at the very least a strong suspicion that the excess reflects factors other than its value for purely agricultural and horticultural purposes. The excess market value reflected by those potential uses is the precise target
While this system may not be perfect, I believe it will come closer to the goal of uniformity than any other which I can envision. Certainly no better method has been suggested by appellees. And if any inequity does result from the method used, it is not too much to ask that those who claim to be aggrieved by the procedure demonstrate that they have been adversely affected by the assessment on their property by use of the administrative procedures provided by law.
While it can be argued with logic that the productivity of any given farm is not necessarily the same as an adjacent farm with the same general slope or contour of land, or of another farm a mile down the road—it can be argued with the same logic that different fields on any farm may not have the same fertility, or for that matter, each acre in a field might be more or less fertile than an adjoining acre. These factors do not render unconstitutional a reliance upon general characteristics of land which are a reliable index of value although not absolutely perfect in every case.
Because it is impossible to attain absolute perfection in assessments, I believe procedures which, when uniformily applied, are likely to reach an equitable result should pass constitutional muster and if any taxpayer is aggrieved thereby, he should exhaust administrative remedies available to him before resort is allowed to the courts.
J. WILLIAM WINTERSHEIMER
JUSTICE, SUPREME COURT OF KENTUCKY