2014 Columns on Branson TCED “Dicta” Fiasco and failure to take effective action to eliminate loss of Millions in Tourism Marketing Funds

1st Column – Published in Branson Daily Independent on Mar. 30, 2014

Is TCED Tourism Tax Board inaction costing Branson $1 Billion in marketing and economic benefits?

For what it matters, in his opinion, the TCED Tourism Tax Board’s proclivity of blithely taking millions of taxpayer dollars intended for Branson marketing and using them to pay the Branson Landing and Branson Hills TIFs has cost Branson area retail businesses, theatres, attractions, lodging establishments and restaurants about $88 million per year in lost marketing and economic benefits.* Over the last five years that’s about $440 million which will grow to over $1 Billion after voters approve the tax extension if no corrective action is taken.

Before going any farther, let an Ole Seagull ask you a question. What does the statement, “When two statutes [laws] are repugnant [in conflict] in any of their provisions, the later act, even without a specific repealing clause, operates to the extent of the repugnancy to repeal the first” mean to you?” Most people with average reading comprehension skills would answer with something like, “If a provision of Law 2, enacted after Law 1, conflicts with a provision in Law 1 the provision in Law 2 governs.”

Now let’s apply it to the failure of the TCED Board to act regarding the Branson TIF. If a provision of the State TCED Tourism Statute (Law 2), enacted after the State TIF Statute (Law 1), conflicts with a provision of the State TIF Statute (Law 1) the provisions of the State TCED Tourism Statute (Law 2) governs. Does it take a legal Solomon or is it just a matter of reading even if you have to read it more than once?

From an Ole Seagull’s perspective, at the very least, Section 67.1962 of the State TCED Tourism Statute conflicts with provisions of the State TIF Statue. “But hold on Seagull wasn’t the TCED Board Chairman quoted in a newspaper recently as saying, ‘We asked a couple of attorneys and their responses have been very consistent: ‘You have to pay it.'” “Believe that’s the case.”

This week the Ole Seagull made a presentation to the TCED Tax Board during which he quoted a major rational that the Missouri State Supreme Court referred to in the very case that the board’s attorney cited as the basis for the reason they had “to pay it.” That rational, from the 1995 case, COUNTY OF JEFFERSON v. QUIKTRIP CORP, said that “When two statutes are repugnant in any of their provisions, the later act, even without a specific repealing clause, operates to the extent of the repugnancy to repeal the first.”

An Ole Seagull felt the futility of it all when the board’s attorney called the rationale “dicta,” said he had discussed the issue with two other attorneys, was not interested in debating the issue and that he was standing by his opinion. “But Seagull that’s just one attorney’s opinion, it’s not futile to keep on trying to make the point.”

The futility isn’t based on what the attorney said, it’s based on the fact that the TCED Tax Board simply endorsed what he said without either knowing or caring about the difference between “dicta” and BS or making any other indication that they are even interested in doing anything to try to stem the hemorrhagic loss of marketing funds and the exponential economic and marketing benefit they provide to our community.

As he was leaving the room one of the board members asked, “Would you risk $50,000 fighting this issue?” Although he basically replied in the affirmative he wanted to shout out to the Tourism Tax Board, “This is crazy, what’s $50,000 PAID ONCE WHEN YOU ARE ACTUALLY GIVING AWAY over a million dollars and about $89 million in economic and marketing benefits EACH YEAR.”

* Figure uses the ROI (Return on Investment) of $75.00 to every $1.00 spent on tourism marketing furnished by the Branson Lakes Area Chamber of Commerce and CVB.

2nd Column – Published in Branson Daily Independent on Jun. 26, 2014

Million dollar question… “Is it ‘Dicta’ or something that has “obvious precedential value?”

An April 1st post to the web site of the Branson Tri-Lakes News, contained a front page story entitled, “Tourism board firm on legal opinion of payment” by Kris Collins based on a presentation the Ole Seagull made to the Tourism Community Enhancement District (TCED) at its March 27th meeting. In the Ole Seagull’s opinion the piece was more closely related to an advertorial for the TCED than a news piece, but, after all, it was April Fool’s Day.

The piece, written without the reporter even contacting the Ole Seagull, stated that TCED Attorney Matt Trokey had said, “‘The fact that the TCED statute was put in place after the TIF statute and could not have been foreseen and considered by the legislature for exemption doesn’t solidify Groman’s argument,’ Trokey said. ‘That’s what we call dicta in a lawsuit,’ he said. ‘That’s one little fact, that’s not the holding of the case. The holding of the case is if it’s not excluded, it has to be captured.”’

The initial part of Trokey’s statement was not responsive to the major thrust of what I had presented at the meeting, ignored the facts that are the basis for the very “holding of which he spoke” and tries to apply that “holding” to a whole different set of facts. However, it is the “dicta” portion of the statement that the Ole Seagull finds the most amazing and puts the totality of Trokey’s statement in perspective for him.

In terms of the “dicta” portion of Trokey’s statement” the Ole Seagull, and the four different attorneys he consulted, must exist in a different legal universe. All acknowledged what, in an Ole Seagull’s opinion, most first year law students would know, that what was presented by him at that meeting was anything, but “dicta.”

A written legal opinion that the Ole Seagull, received from one of those attorneys, Timothy Davis, Attorney at Law, specifically stated the material cited was not dicta. He said, “Black’s Law Dictionary defines the term dicta as: ‘Expressions in a court’s opinion which go beyond the facts before the court and therefore are individual views of the author and not binding in subsequent cases.’”

The opinion went on to say, “Here, the paragraphs quoted from County of Jefferson v. QuikTrip are not dicta; rather, they are central to the logic of statutory construction used by the Missouri Supreme Court to determine that the TIF statute, when enacted, brought about an ‘implied repeal’ of those parts of an older law that were incompatible with the TIF statute. The paragraphs have obvious precedential value.”

A dicta statement, similar to the one in the paper, was made by Trokey, to the TCED Board, right after the Ole Seagull spoke at the March 27th meeting. The Ole Seagull had just presented a new legal theory that he had discovered while examining the very “Jefferson v. QuikTrip” case that Trokey had sent to him as the basis for why the TCED has been paying the Branson TIF ever since the TCED tax was passed.

What was presented by the Ole Seagull at the meeting, was the rationale the court used in reaching their decision in that case. It was directly applicable to the TCED statute vs the TIF statue and one that, to the best of an Ole Seagull’s knowledge, was not addressed in any prior legal opinions that he had seen and upon which the TCED board has based its action or, more appropriately, lack of action, thus far.

Why the board’s attorney didn’t stop after saying his original legal opinion had not changed and, instead of playing the nonexistent “dicta” card, say he would evaluate the information presented and get back to the board is something only he can answer. In an Ole Seagull’s opinion his response, “That’s what we call dicta in a lawsuit” was totally erroneous, inappropriate and presented to people, most of whom, didn’t know “dicta” from a “garbonzo bean.”

What’s really scary to an Ole Seagull however, isn’t what the attorney said. It’s his belief that the TCED Tax Board simply endorsed what he said without either knowing or caring about the difference between ‘dicta’ and a “garbanzo bean” or fully understanding what had been presented.

It’s beyond his understanding how they could so blithely ignore what he had presented to them without, he believes, fully understanding what had been presented or asking for a written legal opinion on what had been presented. It gives him pause to wonder why they have a seeming propensity to continue feeding the Branson TIFs while not exploring every opportunity to try to stem the hemorrhagic loss of over $1 million in direct marketing funds and its generation of over three quarters of a billion dollars each year in economic and marketing benefit for Branson’s shows, attractions and other businesses.

In the story, Board Chairperson Ann McDowell said “… I think our board tends to put our faith in the attorneys we’ve hired over the years to give us their opinions.” Folks in any legal issue there are attorneys on both sides of the case saying they are right.

That being the case, as regards the diversion of TCED marketing funds to pay Branson’s TIFs, an Ole Seagull would rather put his faith in an attorney that knows the difference between “dicta” and something that had “obvious precedential value” and one who will passionately dedicate themselves to working toward making sure that such diversion ceases.


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