In re Westboro Baptist Church, 98,443.

CourtCourt of Appeals of Kansas
Writing for the CourtGreen
Citation189 P.3d 535
PartiesIn the Matter of the Application of WESTBORO BAPTIST CHURCH for Exemption from Ad Valorem Taxation in Shawnee County, Kansas.
Docket NumberNo. 98,443.,98,443.
Decision Date25 July 2008
189 P.3d 535
In the Matter of the Application of WESTBORO BAPTIST CHURCH for Exemption from Ad Valorem Taxation in Shawnee County, Kansas.
No. 98,443.
Court of Appeals of Kansas.
July 25, 2008.

[189 P.3d 539]

Margie J. Phelps, of Topeka, and Rebekah A. Phelps-Davis, of Phelps-Chartered, of Topeka, for appellant Westboro Baptist Church.

Shawn S. Leisinger, assistant of county counselor, and Richard V. Eckert, county counselor, for appellee Board of Shawnee County Commissioners.



Westboro Baptist Church (WBC) appeals from an order of the State Board of Tax Appeals (BOTA) denying its application for exemption from ad valorem taxes for its 2002 Ford F-150 truck. WBC argues that BOTA erroneously interpreted and applied the law pertaining to its application when it determined that WBC was not entitled to a personal property exemption under K.S.A. 79-201 Second. In particular, WBC maintains that because it used the truck in its religious activities, BOTA's decision was erroneous. Moreover, WBC maintains that BOTA improperly labeled as nonreligious many of its signs in violation of the Establishment Clause of the First Amendment to the United States Constitution. We agree. Nevertheless, we determine that BOTA's decision, even though improper, may be upheld for another reason. We further determine that

189 P.3d 540

WBC's political activities and secular philosophy, which constitute a significant part of its picketing activities, preclude a tax exemption for its truck. Accordingly, we affirm.

WBC is an independent church based in Topeka, Kansas. Nearly all of the approximately 70 WBC members participate in an activity alternatively referred to by WBC members as "picketing" and "street ministry." This activity consists of transporting handmade signs to various locations around the country, including churches, military funerals, government offices, political conventions, and other locations. The signs generally express in acrimonious language the WBC's religious message regarding "whether and who God loves or hates." WBC members believe that they are God's messengers on earth, and it is their duty to publish the message that God has punished and will continue to punish the United States because of the country's willingness to condone homosexuality.

WBC filed an application for a tax exemption before BOTA in 2002 for a 2002 Ford F-150 truck purchased August 31, 2002. According to the application, the truck was to be used exclusively for WBC's street ministry and qualified for exemption under the religious use exemption set forth in the Kansas Constitution and K.S.A. 79-201 Second.

Prior Appeals

WBC has had two previous appeals before this court relating to religious use personal property exemptions for the 1995 Ford F-150 pickup truck it formerly used to transport signs. In WBC's first application, WBC requested a religious use exemption for a 1995 Ford F-150 pickup truck used to transport signs for its street ministry picketing activities. In denying the exemption, BOTA determined that the truck had not been used exclusively for religious purposes because it had regularly carried signs containing nonreligious messages. WBC appealed BOTA's ruling, arguing that BOTA had erred in determining that the nonreligious use of the vehicle had not been minimal in scope and insubstantial in nature. WBC also challenged the constitutionality of BOTA's decision. This court determined that WBC had failed to meet its burden to show how the signs transported in the truck clearly fell within the religious use exemption. Because WBC failed to meet its burden of proof, this court declined to address its constitutional arguments. Westboro Baptist Church, Inc. v. Hixon, case No. 81,993, unpublished opinion, filed February 18, 2000, slip op. 4-5, 996 P.2d 850.

In 2001, WBC's request for tax exempt status for their 1995 Ford pickup truck again came before BOTA. Before BOTA ruled on the application, however, WBC moved to voir dire all BOTA members about whether the members had ever made any statements, signed any written documents, or read any information about WBC's picketing activities. BOTA denied the motion, and WBC moved to reconsider and to stay the tax proceeding until it could pursue an interlocutory appeal. BOTA denied reconsideration but stayed the tax proceeding pending the interlocutory appeal. WBC filed a petition for mandamus or, alternatively, for declaratory or injunctive relief, in the district court against four members of BOTA. In the action, WBC asked for an order requiring the four members to answer the proffered voir dire questions. Moreover, WBC's petition alleged a cause of action under 42 U.S.C. § 1983 (2000). BOTA moved to dismiss for lack of jurisdiction. BOTA argued that WBC had failed to exhaust its administrative remedies, specifically K.S.A.2003 Supp. 77-514, which governs disqualification of a BOTA member. The district court dismissed WBC's claim for lack of subject matter jurisdiction due to WBC's failure to exhaust administrative remedies, and this court affirmed on appeal. Westboro Baptist Church, Inc. v. Patton, 32 Kan. App.2d 941, 93 P.3d 718, rev. denied 278 Kan. 852 (2004).

Present Appeal

In WBC's present application for tax exemption, WBC requested exemption for its newly purchased 2002 truck. Before the hearing on the application, WBC moved to clarify the issue to be argued at the hearing. In response, BOTA issued an order stating that the issue to be argued at the hearing was "`whether the subject properties are

189 P.3d 541

used exclusively for religious purposes'" and that "[w]hat constitutes a `religious purpose' is a legal and factual issue for the Board's determination."

WBC submitted exhibits with all of the slogans they have used over the years in their street ministry and an exhibit enumerating several examples of biblical prophets preaching to government officials. WBC member Katherine Hockenbarger explained she had created the exhibit by organizing all of the signs alphabetically and by subject matter into the following categories: "America," "Churches," "General Doctrinal," "God's Punishment," "Homosexuals," "Institutions," "Other Countries," and "Public Figures." Hockenbarger and fellow WBC member Shirley Phelps-Roper described the process for creating a sign and selecting a picketing target. According to Hockenbarger, any member of WBC could suggest a message to put on a picketing sign. She described it as a collaborative process that did not require any type of centralized approval. According to Phelps-Roper, WBC members communicated either orally or in written e-mails when something would come up in the newspaper. Anyone could suggest a place to picket although the members did not always discuss the targets or act on a recommendation. Hockenbarger said WBC published its message anywhere there were people to hear it, such as political, entertainment, or religious events.

Hockenbarger testified that she had been a member of the church for 8 years, picketed nearly every day, and had participated in the WBC's picketing since WBC began picketing 15 years ago. Hockenbarger stated that she did not believe the signs expressed a political viewpoint and that she did not carry them for a political purpose. Instead, her "goal [was] simply to tell the people how things [were] and how they should be properly living their lives." For an example of where WBC would picket, Hockenbarger stated that WBC had picketed the Democratic and the Republican conventions. She denied that the purpose of the picketing was political. Hockenbarger explained: "The purpose was to publish a message, particularly about the candidates that were to be nominated, to make sure that people understood the ramifications of putting a person into a place of power that doesn't serve the Lord their God." In reference to a sign about a local political figure, Hockenbarger explained why she believed the sign about the political figure was not political in nature:

"[T]he reason that we hold it isn't because we are—we care about the politics of it. We care about the mores of our society. We care about the moral issues of when you select a person to hold a position of power that is an open, out of the closet lesbian and what that teaches our children and that teaches them that that is a perfectly acceptable life-style and God Almighty said it's not."

Hockenbarger denied she expected to have any influence on the political outcome; in fact, she fully expected the person would still be put into office. Hockenbarger stated that she believed 99% of the time, the picketing had no influence on whether a community continued to support the targeted individual or organization.

Elizabeth Phelps, a member of the church, also testified that WBC's picketing activities were not done to influence government officials or change their behavior. Phelps testified that her decision to picket was based on Bible scriptures of prophets, apostles, and Christ. She maintained that the scriptures showed that Christ, apostles, and prophets spoke directly to the leaders of their day. Phelps testified that she sincerely held to her beliefs and that the passages helped form her decisions on whom to picket.

While Phelps testified that she voted and participated in politics, she maintained that those activities were unrelated to the picketing and did not involve use of WBC's truck. Phelps denied engaging in politics on behalf of WBC and stated that when she does engage in political activity she uses her own resources.

Based on the evidence presented at the hearing, BOTA found it was undisputed that WBC had used the truck exclusively, actually, and regularly to facilitate WBC's picketing activities by transporting church members and signs. Nevertheless, BOTA noted it was less clear whether the picketing activities

189 P.3d 542

served an exclusively religious purpose within the meaning...

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