When voters approve a special tax levy specifically to fund a named non-profit, and the county later cancels its contract with that non-profit, what happens to the leftover money: does it go to the non-profit, the county, or back to taxpayers?

Plain-English summary

Hancock County had a contract with a private non-profit, the Hancock County Animal Shelter Foundation, to run the county's animal shelter. The county put two special excess levies on the ballot, one in 2008 and a renewal in 2012, asking voters to approve $100,000 per year in additional property tax "for the purpose of providing" "for the financial support of the Hancock County Animal Shelter Foundation." Voters approved both. The 2012 renewal added a further restriction: 80% of the money for operating costs, 20% for renovations.

Both levies expired by their terms (2012 and 2016). In March 2016, before the 2012 levy fully ended, the County Commission terminated its contract with the Foundation and took shelter operations back in-house. About $300,000 of levy money was sitting unspent in a county bank account. The Foundation said: that's our money, we want to use it to start a private animal shelter. The County said: no, we control the funds and we can keep applying them to the county shelter. The prosecutor asked the AG to sort it out.

Question 1: Can the Foundation use or claim the remaining levy funds? No.

The constitutional/statutory rule is that taxes cannot be levied for purely private purposes. Green v. Frazier (U.S.) and Adkins v. Sims (W. Va.) both stand for that. Lingamfelter v. Brown says "public purpose" is "synonymous" with "government purpose." Municipalities derive their taxing power from the Legislature and cannot exceed what the Legislature itself can do (Booten v. Pinson).

There is a permissible carve-out for routing tax money to private entities under contract to perform a government function. W. Va. Code § 19-20-6a expressly lets a county commission "contract with or reimburse any private incorporated society or association . . . for the care, maintenance, control or destruction of dogs and cats." That was the legal hook for paying the Foundation while it operated the shelter under contract.

But the contract is now over. The Foundation wants the leftover money to start a private shelter. That is not a public purpose. The 19-20-6a carve-out does not apply. Doing this would be using tax money for a private purpose, which the Constitution forbids. The Foundation's claim fails as a matter of state and federal constitutional law.

Question 2: Can the County Commission keep using the levy money for its own animal shelter operations? Probably not.

W. Va. Code § 11-8-25 requires that levy funds "be expend[ed] only for the purposes for which they were raised." The case law (Thomas I, Thomas II, Haws, Lawson, Harner, Brown) says the purpose is fixed by what the voters approved on the ballot. Hansbarger says special-fund money "may be applied only to the purpose for which it was created or set aside, and not diverted to any other purpose." Hairston v. Lipscomb is to the same effect.

Both Hancock County levies stated their purpose explicitly: "for the financial support of the Hancock County Animal Shelter Foundation." Not "for the support of an animal shelter." Not "for the care of stray animals." For the Foundation, by name.

That purpose can no longer be executed; the Foundation is no longer running the shelter. So the question is whether the void purpose can be severed from the rest of the levy, leaving a different purpose intact. Under Robertson v. Hatcher and Louk v. Cormier, severability turns on legislative intent: "[w]here the valid and the invalid provisions of a statute are so connected and interdependent in subject matter, meaning, or purpose as to preclude the belief, presumption or conclusion that the Legislature would have passed the one without the other, the whole statute will be declared invalid."

Apply that here. The voters approved $100,000/year specifically for the Foundation's operation of the shelter. There is no contemporaneous indication they would have approved the same money for "any animal shelter the county happens to be running." The Foundation reportedly had a "low-kill" mission (referenced in Cline I) that voters might have specifically wanted to support. The 80%/20% breakdown in the renewal levy was a sub-allocation of how the Foundation should spend it, not a different purpose.

The AG concludes a court would not sever, and would therefore order that the remaining levy-supported funds, roughly $300,000, be returned to taxpayers. Under McKesson Corp. v. Division of Alcoholic Beverages, when a tax cannot be applied for its stated purpose, due process requires "meaningful backward-looking relief" to taxpayers. The AG does not work out the procedural mechanics, leaving that to whoever has to actually issue the refunds.

The "overage" exception. Both levies had a separate, severable provision: any tax collected above the $100,000/year cap (caused by rising property values) "shall be transferred to the general fund of [Hancock] County for expenditure by said County for recreational purposes only." The voters expressly approved that separate use. The end of the Foundation contract does not affect that purpose. The County can keep any overage funds and spend them on recreational uses.

Why this matters generally. Counties using special excess levies to support a single named entity should write the levy ballot question with severable purposes from the start, e.g., "for the financial support of [Entity], or such other entity providing animal-shelter services as the Commission designates." That kind of fall-back language gives the levy room to survive a contract termination. Without it, the county may end up sitting on money it cannot spend, eventually returning it to taxpayers.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: We are a non-profit holding leftover money from a county levy that named us specifically. Can we keep it?
A: Per this opinion, no. The money cannot be used for your private purposes after the underlying public-service contract ends. The constitutional ban on private-purpose taxation overrides any expectation, even an arguable contractual expectation, that the funds belong to you.

Q: We are a county commission with leftover special-levy money for a specific named recipient that no longer operates. Can we use it for the same general subject?
A: Probably not, unless the levy ballot question included a fallback purpose. Per this opinion, courts will read the purpose strictly to what the voters approved. Talk to your prosecutor about how to handle a refund process.

Q: How would taxpayer refunds actually work?
A: This opinion explicitly leaves the procedure for another day. McKesson requires "meaningful backward-looking relief" but does not specify the form. Practical possibilities include pro-rata refunds to current property owners by parcel, a credit applied to future tax bills, or a court-supervised refund process. Whichever path is chosen will need legal scoping.

Q: Does this analysis apply to ordinary annual budget appropriations, or only to special excess levies?
A: Special excess levies are the harder case because they impose tax beyond the regular maximum levies and require voter approval for a stated purpose. The "stay within the voter-approved purpose" rule is strongest there. For ordinary budget money, the County has more flexibility to redirect, subject to general fiduciary and statutory constraints.

Q: What about the part of the levy that exceeded the $100,000 cap?
A: That overage was, by the levy's own terms, transferred to the county general fund "for recreational purposes only." That separate authorization survives the end of the Foundation contract. The County can spend that money on recreational uses.

Q: Could the County Commission re-bid animal-shelter operations to a new private non-profit and pay them out of remaining levy funds?
A: Per the AG's reading, no. Even a different non-profit running an animal shelter is not "the Hancock County Animal Shelter Foundation." The voters approved support for a specific named entity. The fix is to put a new levy on the ballot.

Q: Did the levies have to identify the Foundation by name, or could they have been written more broadly?
A: Counties have flexibility in drafting the ballot question. The choice to name the Foundation specifically locked the levy purpose tightly. A broader ballot question, e.g., "for the support of animal-control services in Hancock County," would have left far more room to redirect the funds when the contract ended.

Background and statutory framework

No taxation for private purposes. Green v. Frazier, 253 U.S. 233 (1920); State ex rel. Adkins v. Sims, 130 W. Va. 645 (1947); Lingamfelter v. Brown, 132 W. Va. 566 (1949). Tax money may go to a private entity only when the use serves a public purpose, e.g., performing a government function under contract.

Municipal taxing power derives from Legislature. Booten v. Pinson, 77 W. Va. 412 (1915). Counties cannot exceed legislative limits.

Statutory authorization for animal-shelter contracts. W. Va. Code § 19-20-6 imposes a county duty to control stray animals. § 19-20-6a expressly authorizes contracting with a private "incorporated society or association" for that work. 58 W. Va. Op. Att'y Gen. 207 (Mar. 18, 1980) ("Code 19-20-6a leaves no doubt that the Marion County Commission may contract with the Humane Society to run an animal shelter.").

Levy-purpose statutes. W. Va. Code § 11-8-25 (boards/officers expending levy funds "shall expend the funds only for the purposes for which they were raised"). § 11-8-26 (action available when funds spent in unauthorized manner).

Levy-purpose case law. Thomas I, 164 W. Va. 84 (1979); Thomas II, 167 W. Va. 911 (1981); Haws, 86 W. Va. 650 (1920); Lawson, 80 W. Va. 612 (1917); Harner, 80 W. Va. 626 (1917); Brown, 78 W. Va. 644 (1916). All hold that the levy's purpose, as approved by voters, controls.

Special-fund cases. McGraw v. Hansbarger, 171 W. Va. 758 (1983); Hairston v. Lipscomb, 178 W. Va. 343 (1987). Money in a special fund may be "applied only to the purpose for which it was created or set aside, and not diverted to any other purpose."

Severability. State v. Flinn, 158 W. Va. 111 (1974); Louk v. Cormier, 218 W. Va. 81 (2005); Robertson v. Hatcher, 148 W. Va. 239 (1964). Courts examine legislative intent and "the degree of dependency."

Refund/due process. McKesson Corp. v. Division of Alcoholic Beverages & Tobacco, 496 U.S. 18 (1990). When a tax cannot be applied as approved, "meaningful backward-looking relief" is constitutionally required.

Background litigation history. The 2008 and 2012 Hancock County levies generated prior litigation in Cline I, 2013 WL 3388232 (mooted challenge to a similar 2011 levy that failed at the polls; the 2012 renewal levy did not save the controversy from being moot at that procedural point) and Cline II, 2013 WL 5525740 (writ of supersedeas dismissed; Supreme Court of Appeals affirmed). Neither Cline decision reached the merits of whether the levy's structure was valid, so the AG opinion does not have binding state-court guidance on that exact question.

Citations and references

Statutes:
- W. Va. Code § 5-3-2 (AG advisory authority for prosecutors)
- W. Va. Code § 11-8-25 (levy funds restricted to approved purpose)
- W. Va. Code § 11-8-26 (action for unauthorized expenditure)
- W. Va. Code § 19-20-6 (county duty re: stray animals)
- W. Va. Code § 19-20-6a (authority to contract for animal-shelter operations)

Cases:
- Green v. Frazier, 253 U.S. 233 (1920)
- McKesson Corp. v. Division of Alcoholic Beverages & Tobacco, 496 U.S. 18 (1990)
- State ex rel. Adkins v. Sims, 130 W. Va. 645 (1947)
- Lingamfelter v. Brown, 132 W. Va. 566 (1949)
- Booten v. Pinson, 77 W. Va. 412 (1915)
- Thomas v. Bd. of Educ., McDowell Cnty. (Thomas I), 164 W. Va. 84 (1979)
- Thomas v. Bd. of Educ., McDowell Cnty. (Thomas II), 167 W. Va. 911 (1981)
- Haws v. Cnty. Court of Wayne Cnty., 86 W. Va. 650 (1920)
- Lawson v. Kanawha Cnty. Court, 80 W. Va. 612 (1917)
- Harner v. Monongalia Cnty. Court, 80 W. Va. 626 (1917)
- Brown v. Preston Cnty. Court, 78 W. Va. 644 (1916)
- State v. Flinn, 158 W. Va. 111 (1974)
- Louk v. Cormier, 218 W. Va. 81 (2005)
- Robertson v. Hatcher, 148 W. Va. 239 (1964)
- McGraw v. Hansbarger, 171 W. Va. 758 (1983)
- Hairston v. Lipscomb, 178 W. Va. 343 (1987)
- Cline I, 2013 WL 3388232 (W. Va. July 8, 2013)
- Cline II, 2013 WL 5525740 (W. Va. Oct. 4, 2013)

Earlier AG opinion:
- 58 W. Va. Op. Att'y Gen. 207 (Mar. 18, 1980)

Source

• Landing page: https://ago.wv.gov/media/17806/download?inline
• Original PDF: https://ago.wv.gov/media/17806/download?inline

Original opinion text

State of West Virginia
Office of the Attorney General
Patrick Morrisey
Attorney General

March 31, 2017

(304) 558-2021
Fax (304) 558-0140

The Honorable James W. Davis, Jr.
Prosecuting Attorney
Office of the Hancock County Prosecuting Attorney
1114 Ridge Ave.
P.O. Box 924
New Cumberland, West Virginia 26047

Dear Prosecutor Davis:

You have asked for an Opinion of the Attorney General regarding Hancock County's use of funds left over from "special excess lev[ies]" approved by the voters of Hancock County in May 2008 and May 2012. This Opinion is being issued pursuant to West Virginia Code § 5-3-2, which provides that the Attorney General "may consult with and advise the several prosecuting attorneys in matters relating to the official duties of their office." To the extent this Opinion relies on facts, it is based solely upon the factual assertions set forth in your correspondence with the Office of the Attorney General.

Your correspondence raises the following legal questions, which are addressed in turn below:

(1) Does the Hancock County Animal Shelter Foundation have the right to use or claim any of the remaining funds from the 2008 and 2012 special excess levies?

(2) Does the County Commission have the authority to use the funds remaining from the special excess levies for its county animal shelter?

Background

Your correspondence concerns two special excess levies related to the Hancock County Animal Shelter ("Shelter"), which is owned by the Hancock County Commission ("County Commission") but was until recently run by the Hancock County Animal Shelter Foundation ("Foundation") under a contract with the County Commission. Through the Shelter, the County Commission complies with its duties under West Virginia Code § 19-20-6 regarding the control, registration, and care and impoundment of stray or unwanted animals. Beginning on or around August 7, 1997, the County Commission entered into a contract with the Foundation, a private, non-profit corporation, to run and manage the Shelter. Authorized specifically by West Virginia Code § 19-20-6a, the contract appropriated $80,000 annually to the Foundation to operate the Shelter. You report that in practice, the Commission annually appropriated far more to the Foundation from its own funds, approximately $220,000 in 2008-09; $175,000 in 2009-10; $175,000 in 2010-11; $175,000 in 2011-12; $175,000 in 2012-13; $175,000 in 2013-14; $175,000 in 2014-15; and $144,000 in 2015-16.

In March 2008, the County Commission determined that its annual appropriations would not sufficiently cover the costs associated with running the Shelter and proposed a "special excess levy" to provide additional funds. The County submitted to vote at Hancock County's regular primary election in May 2008 a special excess levy of $100,000 annually, beginning in fiscal year 2009, for "the purpose of providing" "for the financial support of the Hancock County Animal Shelter Foundation." In an order giving notice to the voters, the County Commission explained that the levy was necessary because "the maximum levies for current expenses . . . will not provide sufficient funds for the payment of current expenses of the County Commission of Hancock County, including expenditures for the purpose hereinafter set forth." The levy capped the projected tax collection at $100,000 per year for the fiscal years 2009, 2010, and 2011. Any monies collected beyond $100,000 each year (due to increases in assessed value of the taxed properties) would "be transferred to the general fund of [Hancock] County for expenditure by said County for recreational purposes only." The voters approved the levy, which ran for three years and concluded on June 30, 2012 (the end of fiscal year 2011).

In 2012, the County Commission proposed a "renewal [special excess] levy" to provide additional funds, as the County Commission had done in 2008. The County Commission submitted to vote at Hancock County's regular primary election in May 2012 the renewal levy ballot to assess additional taxes on property in Hancock County for the fiscal years 2012, 2013, 2014, and 2015 "for the purpose of providing" "for the financial support of the Hancock County Animal Shelter Foundation." In an order giving notice to the voters, the County Commission explained that the levy was necessary because "the maximum levies for current expenses . . . will not provide sufficient funds for the payment of current expenses of the County Commission of Hancock County, including expenditures for the purpose hereinafter set forth." The renewal levy once again capped the projected tax collection at $100,000 per year but, unlike the previously raised levy, placed specific restrictions on the purposes for which the raised monies could be used. Specifically the notice to the voters explained that $80,000 per year (80%) would be for "operational costs, including animal care needs and shelter supplies" and $20,000 (20%) would be used for "renovations to the current shelter." Any monies collected beyond $100,000 each year (due to increases in assessed value of the taxed properties) would still "be transferred to the general fund of [Hancock] County for expenditure by said County for recreational purposes only." The taxpayers approved the renewal levy, which ran for four years and concluded on June 30, 2016 (the end of fiscal year 2015).

According to your correspondence, the County Commission has always maintained exclusive control over the funds from both levies. This included collecting the funds, storing them in a County Commission bank account, and meeting monthly to review the Foundation's requests for distributions of monies from the levies and for reimbursement of expenses. "Upon approval" of requisitions and receipts provided by the Foundation, the County Commission would pay the Foundation from either the money collected by the levies or the County Commission's regular monthly stipend to the Foundation. On occasion, the Commission would pay for expenses directly, usually for infrastructure repairs and improvements. The Foundation did not have direct access to any monies.

The focus of your Opinion request is a dispute over remaining funds from both the original levy and the renewal levy that has arisen following the County Commission's recent decision to terminate its agreement with the Foundation. In March 2016, the County Commission gave the Foundation notice and the contract terminated as of midnight on July 1, 2016. Control and operation of the Shelter has returned to the County Commission, and approximately $300,000 from the levies, approximately $187,944 from the original levy and $112,056 from the renewal levy, remains in the County Commission's bank account. According to your estimate, the expenditures from the levies amounted to: $75,415.70 in 2009-10; $22,871.07 in 2010-11; $13,839.46 in 2011-12; $44,492.24 in 2012-13; $62,891.79 in 2013-14; $55,586.00 in 2014-15; and $123,631.90 in 2015-16, sums that were all well below the total collections of the levies. You represent that the Foundation has been fully reimbursed for all services it provided under contract prior to termination.

The County Commission and the Foundation disagree over which entity may now claim these remaining funds from the levies. The Foundation believes that, because the levies instructed that the funds were "to provide financial support for the Hancock County Animal Shelter Foundation," it may take funds from the levies to open its own, private animal shelter facility. In further support, the Foundation claims to have received (but has not produced) an email from either a present or a former County Commissioner, stating the Commissioner's belief that the remaining levy money belongs to the Foundation. In contrast, the County Commission believes that it controls the funds and may continue to apply them to operate the Shelter.

Discussion

Question One: Does The Hancock County Animal Shelter Foundation Have The Right To Use Or Claim Any Of The Remaining Funds From The Special Excess Levies?

It is well-settled that a state may not levy taxes for private purposes. The U.S. Supreme Court has explained that "[t]he due process of law clause [in the U.S. Constitution] contains no specific limitation upon the right of taxation in the states, but it has come to be settled that the authority of the states to tax does not include the right to impose taxes for merely private purposes." Green v. Frazier, 253 U.S. 233, 238 (1920). Similarly, our Supreme Court of Appeals has said that "[t]he Legislature is without power to levy taxes or appropriate public revenues for purely private purposes." Syl. Pt. 1, State ex rel. Adkins v. Sims, 130 W. Va. 645, 46 S.E.2d 81 (1947); see also Adkins, 130 W. Va. at 655, 46 S.E.2d at 86; see also Lingamfelter v. Brown, 132 W. Va. 566, 573, 52 S.E.2d 687, 691 (1949) (principle that "tax may be levied only for a public purpose" is "implicit in our form of government"). Taxes may only be levied for a "public purpose," which the Supreme Court of Appeals has said to be "synonymous" with "government purpose." Lingamfelter, 132 W. Va. at 575, 52 S.E.2d at 692.

This prohibition applies not only to the Legislature, but also to municipalities. "Municipalities derive all their power as well as their existence from the Legislature," and thus their powers of taxation may never exceed those of the Legislature itself. Booten v. Pinson, 77 W. Va. 412, 89 S.E. 985, 989 (1915). And because the Legislature lacks the ability to levy taxes for a private purpose, municipalities must likewise lack that power. See Syl. Pt. 1, Adkins, 130 W. Va. 645, 46 S.E.2d 81.

To be sure, the restriction upon taxation for private purposes does not absolutely prohibit the payment of taxpayer funds to private persons. In certain circumstances, the "appropriation [of taxpayer funds] to a private person" may be for or considered a permissible public purpose. Syl. Pt. 1, Adkins, 130 W. Va. 645, 46 S.E.2d 81. Relevant here, the Legislature has expressly provided that a county commission has the authority to "contract with or reimburse any private incorporated society or association", like the Foundation, "for the care, maintenance, control or destruction of dogs and cats." W. Va. Code § 19-20-6a; see also 58 W. Va. Op. Att'y Gen. 207, at *4 (Mar. 18, 1980) ("Code 19-20-6a leaves no doubt that the Marion County Commission may contract with the Humane Society to run an animal shelter.").

We conclude that the Hancock County Animal Shelter Foundation may not use or claim any of the remaining funds from the levies. Although the County Commission may have been permitted by Section 19-20-6a to support the Foundation's work while the Foundation was under contract and operating the Shelter, the Commission cannot do so now. As you explain, the contract between the Commission and the Foundation terminated on July 1, 2016. The Foundation now seeks to use the remaining levy money to open and operate a private shelter. That is not permissible as a matter of both state and federal law.

We need not answer whether the terms of the levies or the email of a single County Commissioner contemplate that all of the money from the levies belongs exclusively to the Foundation for its use as it sees fit. It does not matter if either or both is true. Regardless, the prohibition on levying taxes for a private purpose plainly bars the distribution of funds from the levies to the Foundation for any work it is doing in a purely private capacity.

Question Two: Does The County Commission Have The Authority To Use The Funds From The Levies For Its County Animal Shelter?

The answer to this question begins with the purposes for which the levies were raised. West Virginia Code § 11-8-25 states: "Except as otherwise provided in this article, boards or officers expending funds derived from the levying of taxes shall expend the funds only for the purposes for which they were raised." W. Va. Code § 11-8-25; see also Syl. Pt. 1, in part, Thomas v. Bd. of Educ., McDowell Cnty., 167 W. Va. 911, 280 S.E.2d 816 (1981) [Thomas II]. "The general rule is that the purpose for which funds were raised at a special election levy is determined by the proposal approved by the voters at the polls." Thomas v. Bd. of Educ., McDowell Cnty., 164 W. Va. 84, 88-89, 261 S.E.2d 66, 69 (1979) [Thomas I] (citing Haws v. Cnty. Court of Wayne Cnty., 86 W. Va. 650, 104 S.E. 119 (1920); Lawson v. Kanawha Cnty. Court, 80 W. Va. 612, 92 S.E. 786 (1917); Harner v. Monongalia Cnty. Court, 80 W. Va. 626, 92 S.E. 781 (1917); Brown v. Preston Cnty. Court, 78 W. Va. 644, 90 S.E. 166 (1916)). Legal action may be brought when tax money is not properly applied to its purposes, see id., or is spent in any "unauthorized manner," W. Va. Code § 11-8-26.

Given that one express purpose of the levies, to provide for the financial support of the Foundation, can no longer be executed, the disposal of the remaining funds from the levies depends upon whether a court would sever the portions of the levies that require funds to be provided for the Foundation. Generally speaking, when one provision of a law is void, a court must examine if the void aspect can be severed from the whole because "a statute may be constitutional in one part and unconstitutional in another." State v. Flinn, 158 W. Va. 111, 130, 208 S.E.2d 538, 549 (1974). Severability depends on an examination of "legislative intent," the "most critical aspect" of which "involves the degree of dependency of statutes." Louk v. Cormier, 218 W. Va. 81, 96-97, 622 S.E.2d 788, 803-04 (2005) (quotations omitted). Thus, "[w]here the valid and the invalid provisions of a statute are so connected and interdependent in subject matter, meaning, or purpose as to preclude the belief, presumption or conclusion that the Legislature would have passed the one without the other, the whole statute will be declared invalid." Syl. Pt. 9, Robertson v. Hatcher, 148 W. Va. 239, 135 S.E.2d 675 (1964).

For special levies, in particular, the Supreme Court of Appeals has placed great weight on the purpose identified in the levy, stressing that collected funds must be used solely for the purpose for which a special levy was created. "Where a special fund is created or set aside by statute for a particular purpose or use, it must be administered and expended in accordance with the statute, and may be applied only to the purpose for which it was created or set aside, and not diverted to any other purpose or transferred from such authorized fund to any other fund." Syl. Pt. 7, McGraw v. Hansbarger, 171 W. Va. 758, 301 S.E.2d 848 (1983); see also Hairston v. Lipscomb, 178 W. Va. 343, 347 n.7, 359 S.E.2d 571, 575 n.7 (1987). More specifically, "[w]hen a levy election is held to raise money for a specific public purpose, the money must be applied toward that purpose." Thomas II, 167 W. Va. at 918, 280 S.E.2d at 820 (emphases added).

We believe that a court applying these principles to this matter would conclude that the requirement in both levies to provide financial support to the Foundation cannot be severed from the levies and, therefore, that the funds collected for that purpose cannot be used for a different purpose. In approving the levies, the voters approved the collection of $100,000 a year for the clear and sole purpose of providing financial support to the "Foundation." The levies made no provision for the County's use of the funds in the event that the Foundation ceased to run the Shelter. Nor can it be known that the voters would have approved either levy if the funds would be for the County's (or any other entity's) operation of the shelter and not the Foundation's. Voters could reasonably perceive a specific range of services offered by the Foundation's operation of the Shelter, such as the "Foundation's goal of being a low-kill' animal shelter," Cline I, 2013 WL 3388232, at *1, that another entity would not provide. With respect to the additional instructions in the renewal levy, we do not believe that a court would read the instructions that 80% of the monies be used for operational costs, and 20% be used for renovations, to alter the levy's stated purpose of providing funding to support the "Foundation." These are simply restrictions designating how the Foundation was to use the funds.

As a result, we further believe that a court properly confronted with the question would likely conclude that funds remaining from both levies, which were collected specifically to support the Foundation should, as a general rule, be returned to the taxpayers. When a levy or tax is unconstitutional, due process requires that the government provide the taxpayers "meaningful backward-looking relief." McKesson Corp. v. Div. of Alcoholic Beverages & Tobacco, Dep't of Bus. Regulation of Florida, 496 U.S. 18, 31 (1990). The particular remedies and procedures that may be applicable here are beyond the scope of this Opinion.

We do not believe, however, that a court would reach this same conclusion regarding any funds collected under the levies in excess of $100,000 per year. The levies expressly gave notice that such funds (resulting from increases in the assessed values of taxed properties) would be collected not for the support of the Foundation, but rather would be transferred to the general fund of Hancock County to be used only for recreational purposes. The voters specifically approved the collection and use of those limited funds for that separate public purpose, and the termination of the relationship between Hancock County and the Foundation does not affect the lawfulness of that part of the levies.

Sincerely,

Patrick Morrisey
Attorney General
Elbert Lin
Solicitor General
Katlyn Miller
Assistant Attorney General