If a Kansas county cites the wrong sales tax statute in a resolution, does that void voter-approved funding for the county hospital?

Plain-English summary

Morton County asked the Attorney General to sort out a nine-year-old paperwork mess involving its county hospital sales tax. In January 2015, the county commission adopted a resolution to ask voters for a 1% countywide sales tax to fund the Morton County Hospital, but the resolution cited the wrong statutory subsection, the general sales tax provision in K.S.A. 2014 Supp. 12-187(b)(1), rather than the health-care-specific provision in (b)(5), which the county actually meant to use. The published notice, by contrast, correctly cited (b)(5). Voters approved the tax in April 2015. A month later, after the Kansas Department of Revenue signaled it would split the revenue between the county and its cities as required for a (b)(1) tax, the county passed a corrective resolution citing (b)(5) and began collecting the tax. Despite that, the Department of Revenue quietly divided the money between the county and its cities for nine years before the county caught the mistake in 2024.

The Attorney General concluded the original citation to (b)(1) was a clerical error that should not undo what voters actually approved. Kansas's ballot-question statute only requires that voters clearly understand what a "yes" vote means, not that the ballot or notice cite the correct statutory subsection, and every version of the resolution, notice, and the ballot itself consistently and clearly told voters the money would fund the county hospital's operations. Multiple facts confirmed the county's real intent was the health-care-services provision: the original published notice already cited (b)(5), the county corrected the resolution once it learned of the discrepancy, and the final resolution actually imposing the tax cited (b)(5) as well. Because the tax was validly authorized under the health-care-services statute, which sends all revenue to the county rather than splitting it with cities, the Department of Revenue should redirect all future collections, and by clear implication the misdirected past revenue, to the county alone.

What this means for you

County commissioners and counselors who discover a statutory citation error in an old tax resolution: the opinion holds that a wrong subsection citation in a resolution or notice does not undo a voter-approved tax so long as the notices and ballot question clearly and consistently communicated the tax's actual purpose to voters, and the surrounding record shows which provision the county actually intended to use.

County clerks and state revenue officials handling sales tax remittance: the opinion confirms that whether county sales tax revenue is split with municipalities or kept entirely by the county turns on which statutory subsection actually authorizes the tax, based on the substance of what voters approved, not merely on which citation happened to appear on a particular document.

Common questions

Does a wrong statute citation on a tax resolution or ballot make the whole tax invalid?
Not automatically, according to the opinion. Kansas's ballot-question statute (K.S.A. 25-605a) only requires that a "yes" vote clearly indicate approval of the actual proposal; it does not require the correct statutory citation to appear on the ballot or notice.

How can a county show what its voters actually understood they were approving?
The opinion looked at the full paper trail, the original and amended resolutions, the published notices, and the ballot question itself, to confirm that every version consistently described the tax as funding the county hospital's operations.

If a tax was collected under the wrong understanding for years, can that be corrected later?
The opinion concludes that once it is clear the tax was actually authorized under the health-care-services provision, the county is entitled to have all revenue collected under that authority remitted to it, rather than continuing a split that was based on the mistaken citation.

Background and statutory framework

K.S.A. 2014 Supp. 12-187(b)(1) is a general provision letting a county ask voters to approve a countywide retailers' sales tax, with revenue apportioned between the county and its cities under K.S.A. 2014 Supp. 12-192(a). K.S.A. 2014 Supp. 12-187(b)(5) specifically authorizes a countywide sales tax to fund health care services, including county hospitals, and directs that all such revenue be remitted to and retained by the county alone under K.S.A. 2014 Supp. 12-192(d)(2). Under K.S.A. 19-101a, a county's sales tax authority is limited to the methods set out in K.S.A. 12-187 through 12-195, and any conflicting resolution is null and void.

K.S.A. 2014 Supp. 12-187(e) requires published notice of the tax's rate and effective date but does not require the notice or ballot to state which statutory subsection authorizes it, a requirement the Legislature still had not added even in 2021 amendments listing other required ballot disclosures. Kansas's general ballot-question statute, K.S.A. 25-605a, requires only that a "yes" vote clearly indicate approval of the proposed course of action. The opinion walked through Morton County's full history, the January 2015 original resolution and notice, the February 2015 amended resolution (which fixed only the effective date, not the citation), the April 2015 election, the May 2015 corrective resolution, and the July 2015 resolution actually imposing the tax, to conclude the citation to (b)(1) was a clerical error (or "scrivener's error") that did not reflect the county's actual intent or mislead voters about the tax's substance.

Citations and references

Statutes:
- K.S.A. 2014 Supp. 12-187 (incl. (a), (b)(1), (b)(5), (e)); K.S.A. 2021 Supp. 12-187(g)(2)
- K.S.A. 2014 Supp. 12-192 (incl. (a), (d)(2))
- K.S.A. 19-101a (incl. (a)(7), (c))
- K.S.A. 25-605a

Cases:
- Bruce v. Kelly, 316 Kan. 218, 514 P.3d 1007 (2002)
- Wycoff v. Bd. of Cnty. Com'rs of Logan Cnty., 189 Kan. 557, 370 P.2d 138 (1962)
- Heller v. Rounkles, 171 Kan. 323, 232 P.2d 225 (1951)

Source

• Landing page: https://www.ag.ks.gov/reports-resources/ag-opinions
• Original PDF: https://www.ag.ks.gov/home/showpublisheddocument/23122/638833320182100000

Original opinion text

May 19, 2025

ATTORNEY GENERAL OPINION NO. 2025-9

David A. Thompson
Morton County Counselor
737 Vilymaca Street
P.O. Box 1131
Elkhart, Kansas 67950

Re: Cities and Municipalities—General Provisions—Countywide and City
Retailers' Sales Taxes

        Cities and Municipalities—General Provisions—Apportionment of
        Revenue from Countywide Retailers' Sales Tax Between County and
        Cities Located Therein

        Counties and County Officers—General Provisions—Home Rule
        Powers

        Elections—Official Ballots—Ballot Language, Phrasing

Synopsis: The Morton County Board of Commissioners adopted a resolution
placing a ballot measure before the electors regarding a countywide 1%
retailers' sales tax to fund the county hospital. The resolution cited
K.S.A. 2014 Supp. 12-187(b)(1), a general tax provision, rather than
K.S.A. 2014 Supp. 12-187(b)(5), which specifically addresses funding
health care services. The voters approved the measure. After the voters
approved the measure, but before adopting the tax, the Board passed
and published an amended resolution correcting the authorizing
provision to be K.S.A. 2014 Supp. 12-187(b)(5). But the Kansas
Department of Revenue (KDOR) informed the Board that it would
divide the revenue between the County and the county municipalities,
per the requirements of K.S.A. 2014 Supp. 12-187(b)(1) and K.S.A.
2014 Supp. 12-192(a).

        It is apparent the Board intended to implement this tax under K.S.A.
        2014 Supp. 12-187(b)(5), and any citation to K.S.A. 2014 Supp. 12-
        187(b)(1) was a clerical error that should not defeat this intent. K.S.A.
        2014 Supp. 12-187 does not require the authorizing statutory
        subsection to be listed. K.S.A. 2014 Supp. 12-187(g) lists the required
        information to be placed on the ballot measure. The statutory
        subsection is not included. K.S.A. 25-605a requires all ballot questions
        to be written in such a way that electors understand a "yes" vote
        indicates approval of the matter. Here, the ballot question was phrased
        in such a way that the electors understood a "yes" vote was a vote to
        approve a countywide 1% retailers' sales tax to fund the county
        hospital. Under K.S.A. 2014 Supp. 12-192(d)(2), revenue raised from a
        retailers' sales tax for health care services is remitted to the county,
        rather than divided between the county and the county municipalities.

        The sales tax approved by the electors was to fund the county hospital.
        KDOR should remit all revenue collected from the tax to the County to
        fund the county hospital. Cited herein: K.S.A. 12-187; K.S.A. 12-192;
        K.S.A. 19-101a; K.S.A. 25-605a.

                           *              *              *

Dear Mr. Thompson:

On behalf of the Morton County Board of Commissioners, you ask whether the
Board properly cured an erroneous statutory citation on a written resolution
creating a county sales tax to fund the county hospital.

Given its lengthy and complex nature, a brief history of the matter will help in
analyzing your question. On January 26, 2015, the Board adopted Resolution 2015-
3 to levy a county sales tax to fund the Morton County Hospital. Resolution 2015-3
cited K.S.A. 2014 Supp. 12-187(b)(1), a general tax provision, as the authority for
the tax, but the published notice cited K.S.A. 2014 Supp. 12-187(b)(5), which
specifically addresses funding health care services.1 On February 23, 2015, the
Board adopted Amended Resolution 2015-3 to correct the tax's effective date from
August 1, 2015, to July 1, 2015.2 It did not correct the authorizing statutory

1 Morton County Resolution No. 2015-3; Elkhart Tri-State News January 29, 2015, Notice of Special

Question (on file with Attorney General's Office).
2 Morton County Amended Resolution No. 2015-3, §1.

subsection, and the published notice cited K.S.A. 2014 Supp. 12-187(b)(1).3 The
question was presented to the voters on April 7, 2015, without any mention on the
ballot of the statutory authority.4 The voters approved the measure. On April 20,
2015, in correspondence with the county clerk, a Kansas Department of Revenue
(KDOR) agent stated KDOR would likely distribute the tax revenue to the county
municipalities and the County. On May 18, 2015, the Board adopted Resolution
2015-4 to provide the correct statutory subsection.5 The resolution was published in
the County's official newspaper on May 21, 2015.6 On July 27, 2015, the Board
adopted Resolution 2015-5 to collect a countywide 1% retailers sales tax in the
County to support the hospital under K.S.A. 2014 Supp. 12-187(b)(5). In 2024, in
correspondence with KDOR, the Board learned that, over the previous nine years,
KDOR had divided the tax revenue between the County and the county
municipalities.

In your opinion request, you assert the citation to K.S.A. 2014 Supp. 12-187(b)(1)
was a mistake, and the intended authorizing subsection was K.S.A. 2014 Supp. 12-
187(b)(5). You ask whether the Board's subsequent remedial measures rectified this
error, so that KDOR should remit all revenue collected from the tax to the County
rather than split it between the County and the three county municipalities.

Resolving your question requires statutory interpretation. Statutory interpretation
begins with the statutory text, giving words their ordinary and everyday meanings.7
Only when the statutory language is ambiguous do Kansas courts turn to canons of
construction or legislative history.8

At issue here are two provisions of K.S.A. 2014 Supp. 12-187(b). K.S.A. 2014 Supp.
12-187(b)(1) authorizes a board of county commissioners to put a general question of
a countywide retailers' sales tax to the electors. K.S.A. 2014 Supp. 12-187(b)(5)
authorizes a board of county commissioners to submit a question to the electors of
imposing a countywide retailers' sales tax to finance health care services, including
county hospitals.

Subsection (b)(1) is a general provision, while (b)(5) pertains only to health care
services. The other difference between the two subsections is how they direct the
collected tax revenue to be distributed. Revenue collected from sales taxes
established under (b)(1) "shall be apportioned among the county and each city
located in such county" in the prescribed manner.9 For taxes under (b)(5), all

3 Id.; Elkhart Tri-State News February 26, 2015, Published Notice (on file with Attorney General's
Office).
4 Sample Official Ballot (on file with Attorney General's Office).
5 Morton County Resolution 2015-4 (Amending Resolution No. 2015-3).
6 Elkhart Tri-State News May 21, 2015, Published Notice (on file with Attorney General's Office).
7 Bruce v. Kelly, 316 Kan. 218, 224, 514 P.3d 1007 (2002).
8 State v. Smith, 311 Kan. 109, 113, 456 P.3d 1004 (2020).
9 K.S.A. 2014 Supp. 12-192(a).

revenue "shall be remitted to and shall be retained by the county and expended only
for the purpose for which the revenue received from the tax was pledged."10

Another statute plays a role in answering this question. K.S.A. 19-101a(a)(7) limits
how a county may adopt, amend, or appeal countywide retailers' sales taxes to those
methods prescribed in K.S.A. 12-187 through 12-195 and amendments thereto.11 If
a county adopts a resolution which conflicts with those statutes, it is "null and
void."12

K.S.A. 2014 Supp. 12-187(e) requires a board proposing a retailers' sales tax to give
notice of its intent to submit the proposed tax for approval by the electors. "The
notice shall state the time of the election and the rate and effective date of the
proposed tax. . . ."13 The governing body proposing to levy a retailers' sales tax must
"specify the purpose or purposes for which the revenue would be used, and a
statement generally describing such purpose or purposes shall be included as a part
of the ballot proposition."14 The text of K.S.A. 12-187 does not require the published
notice or the ballot proposition to include the statutory authority for the retailers'
sales tax.15

If K.S.A. 2014 Supp. 12-187 did not require the Board to list K.S.A. 2014 Supp. 12-
187(b)(5) as the authority for the proposed retailers' sales tax, neither does our
State's general "ballot question" law. Every question a county places on the ballot
for the voters must be "cast and phrased in such language that a 'yes' vote shall
indicate approval of the matter or course of action proposed."16 Further, ballot
questions promoting a new course of action must be "cast and phrased in such
language that a 'yes' vote will approve the new course of action."17 Ballot questions
must clearly state the substance of a question submitted to the voters, and if the
question is stated in such a way that it may mislead the electors, that election is
void.18 Both the election notices and the ballots themselves must "clearly inform the

10 K.S.A. 2014 Supp. 12-192(d)(2).
11 K.S.A. 19-101a(a)(7); Att'y Gen. Op. No. 2012-17, at 2.
12 K.S.A. 19-101a(c); Att'y Gen. Op. No. 2012-17, at 2.
13 K.S.A. 2014 Supp. 12-187(e).
14 K.S.A. 2014 Supp. 12-187(a).
15 The Legislature amended K.S.A. 12-187 in 2021, six years after the implementation of this tax, to

add requirements that the ballot proposition also include whether "(A) The apportionment formula
provided in K.S.A. 12-192, and amendments thereto, will apply to the revenue; (B) an interlocal
agreement was entered whereby the county will retain either all or part of the revenue; or (C)
pursuant to law, the county retains the revenue in its entirety." K.S.A. 2021 Supp. 12-187(g)(2).
While these requirements did not apply when this tax was approved, it is notable that, when the
Legislature decided to create additional requirements to be included in ballot propositions, it did not
see necessary to require the correct statutory subsection be listed.
16 K.S.A. 25-605a.
17 K.S.A. 25-605a.
18 Wycoff v. Bd. of Cnty. Com'rs of Logan Cnty., 189 Kan. 557, 559-60, 370 P.2d 138 (1962).

voters as to the question submitted" and must "be informative of the whole and not
of a part."19

The question here is whether the electors of Morton County understood what their
vote meant on the ballot proposal. We believe they did. Although the original
resolution proposing this retailers' sales tax cited K.S.A. 2014 Supp. 12-187(b)(1), it
provided the tax would be used to finance the Morton County Hospital's costs.20 The
original published notice correctly cited K.S.A. 2014 Supp. 12-187(b)(5) and stated
the countywide 1% retailers' sales tax was to fund the operations of the Morton
County Hospital.21 The amended resolution and notice of amended resolution both
cited subsection (b)(1) but again informed the electors that the special question was
for a countywide retailers' sales tax to fund the operating costs of Morton County
Hospital.22 Finally, the ballot question itself, which the County's electors approved,
stated: "Shall a retailer's sales tax in the amount of one percent (1%) to be levied in
Morton County, Kansas, for the purpose of funding the operations of the Morton
County Hospital and continue as provided by law?"23

It is apparent from the resolutions, notices, and ballot question, that the County's
electors were aware they were voting on a 1% countywide retailers' sales tax to fund
the Morton County Hospital. The electors were clearly able to understand what a
"yes" vote on that question would mean.

It is equally apparent that the Board intended to implement this tax under K.S.A.
2014 Supp. 12-187(b)(5), and any citation to K.S.A. 2014 Supp. 12-187(b)(1) was a
clerical error.24 First, K.S.A. 2014 Supp. 12-187(b)(5) specifically authorizes a
countywide retailers' sales tax to fund health care such as county hospitals, while
(b)(1) is a general provision. Second, the original published notice cited to K.S.A.
2014 Supp. 12-187(b)(5). Third, once the Board learned of its incorrect statutory
citation, it passed and published an amended resolution, correcting the citation
under which the tax was authorized. Finally, the resolution implementing the sales
tax also cited to K.S.A. 2014 Supp. 12-187(b)(5).

The Board intended to implement a countywide retailers' sales tax to fund the
county hospital under K.S.A. 2014 Supp. 12-187(b)(5). The Board acted to correct its
mistake before implementing the tax. The electors understood the countywide 1%
retailers' sales tax they approved was to fund the county hospital. Any revenue

19 Heller v. Rounkles, 171 Kan. 323, 329, 232 P.2d 225 (1951).
20 Resolution No. 2015-3, §1.
21 Elkhart Tri-State News January 29, 2015, Notice of Special Question.
22 Amended Resolution No. 2015-3, §1; Elkhart Tri-State News February 26, 2015, Published Notice.
23 Sample Official Ballot.
24 A clerical error (also known as a "scrivener's error") is "[a]n error resulting from a minor mistake

or inadvertence and not from judicial reasoning or determination; esp[ecially], a drafter's or typist's
technical error that can be rectified without serious doubt about the correct reading." Black's Law
Dictionary 683 (11th ed. 2019).

raised under this sales tax should be distributed to the County, not divided between
the County and the county municipalities.

                                  Sincerely,


                                  /s/ Kris W. Kobach

                                  Kris W. Kobach
                                  Attorney General

                                  /s/ Ryan J. Ott

                                  Ryan J. Ott
                                  Assistant Solicitor General