as always what i'd like most like to do this morning is focus on an answer any questions the court may have about any of the issues that are before i had left of my own devices what i would focus on  really the most important and probably difficult issue that's before us this morning and that's when it is properly used exclusively for charitable purposes within the meaning of article one section six of the constitution i don't mean to seem presumptuous in skipping over either of the two reasons why section fifty eighty six of the property tax code is facially constitutional but our public court's ruling with all due respect was frankly two that decision let me stop you there the question then is whether count two raises a claim correct is unrelated to in separate from the claims raised on three thirty four well not completely unrelated to the because of course in the marriage a best case declaratory judgment claim that was decided he had to do with the enforceability in validity of the mere criminal grammont involved in that case which of course had a relationship to the other claims in the case which were for the dissolution of the marriage they responsibility for attorney's fees allocation of property and cost and the court well aware of go in the past is right unlike us in which  declaration as to the lady and the construction of the parties where marital agreement could be sought independent and even absent the dissolution proceeding at determination to as to what law governs entitle me to exemptions for the properties and tax years in question with such a ruling we would have the ability if we chose to avail ourselves of it to go either of two ways we could apply them to the department of revenue administratively for exemptions or do what we've done in this case that is a deal ourselves of our rights under section twenty three days twenty five e of the property tax code to seek it to establish a retirement to exemption so in fact section two does state a separate claim that could have been brought completely by itself which is further reason for concluding that it is a proper rule three o four a appeal well let me ask you this is this even a proper jacket absolutely because it's  marital suttle an agreement didn't determine who gets custody house the property only catered who's responsible for attorney's fees so he doesn't have to decide everything in a case it simply has to decide a claim and it does decide a claim you know you don't believe at this point but i'm sure frankly i'm not sure what is going through yeah what makes a property well certainly if it will help i had both the foundation as well as the ultimate decision maker  authority and i'm hoping that in part of your presentation will be hearing whether or not that this should be upright light retroactively in this particular case since it was twenty well ri and when we have a substantive change the legislature has to indicate whether or not it should be applied retroactively and in this case it gave us three examples i believe when it should be applied retroactively so if i gets one it into one of those examples you know ok all right thank you i do want to try to focus in my remaining five minutes and twenty one seconds the constitutional test let me just always subject to the constitution more than ninety years every case has said that it would also to affirm court's decision would also require ignoring the express echoes the eating case which acknowledges that ultimately it's for the courts to decide the question of constitutional use so the general assembly was well aware of this court's precedent it carefully crafted fifteen eighty six to fit within it and there's not a i don't mean to suggest that it would ever come before this court or easy the frankly the the szell constitutionality of fifteen eighty six is about as easy as they come and that's a question you i  how that would work so for example the statute talks about how in the world i'm out of hospitals their work is beyond the walls things and so therefore take into consideration whether or not their chair was just is the work you in the community outreach education like and yet the other part of the test is that constitutional test is whether or not the property the property to be the argument is should be  is exclusively used for a charitable purpose from one hand you have carol purposes beyond the walls of the hospital and then the constitutional test is very much place oriented as property t ideas work together well is a prank letter is really no problem at all because for the first part we're we we will introduce evidence that basically follows the statutory criteria for what our church will use is which includes charity care you know at the hospital measure the cost in the case of carl foundation this is really easy because the charity care if my if my memory is right it's like fifteen point seven million dollars in two thousand and twelve more than three times the amount of the estimated property tax so it's really a very simple matter to show the activities on the property that satisfy the the constitutional criteria that's three criteria and it's for the constitution the key factor the arrows on showing exclusive use of property chair the basic property within the meaning of the constitution is that the facility is made available to all who need it were girl is of ability to pay and that there were no obstacles were placed in the way of their ability to get that so all that evidence goes in it certainly doesn't conflict with one another it builds on itself and by doing that you say i wish entitle meant under both the statute and the constitution so the statutory criteria are fairly straightforward and they were intended to be straightforward and in almost mechanical or mathematical and then the constitutional criteria we submit are equally straightforward i've now used it more than twelve of justice thomas that court did not have jurisdiction under rule three of four a when i ask this court to exercise its supervisory authority this case dates back to two thousand and four there's a great deal of need for clarity here and so if the court is willing i'd ask the court to address the facial validity of the statute and to give us an indication as to how the lower courts and how the department of revenue should be applying section fifty six in history let's say i think there may be in the nation to do that because of the history there is a case that has been recently decided i believe in the first district that is a straight out deck action but more important to this case  i would think there has to be some discussion as to why there would be retro activity it's a substantive statutory change it was twenty twelve the legislature when it substituted it would basically unless the legislature tells us if it is it does but it gives us a couple of examples of when it would be retroactive and this isn't want to so could we say hey we're you know we're going and i took the position i believe the county is going to perhaps talk about this question as well that the statute was not properly applied retroactively to retroactively it didn't seem like grounds for finally appeal and so we didn't rely on that and i haven't briefed it but the department did take the position early on that the statute could not be retroactively and i guess i don't have much more to say than that the department's in a strange position here there's no money at stake for the department our our our role is to apply this statu and i'm here just ask for clarity if if the court can see its way to to grant us that and if it can't we'll have to wait for the next one and that's frustrating because this is an old case but so turning to the question of the facial validity of section fifteen eighty six i agree with co counsel that karl hospital's counsel on this question the statute needs to be read as a only a single part of a two part analysis in all the cases that this court has issued going back i think one nine hundred ten to a case called sisters of the third order make that clear there has to be a constitutional analysis in addition to the statutory analysis so if carl hospital can meet the statutory test they would then have to go and reach the constitutional question and this court's decision in math this old people's home from the late one nine hundred sixty s sets out with that test is and this court's more recent decision even confirms that the test is the course and test it's a multi factor it is not a test that has a checklist that you go through it's a test that is designed to look at all the facts and in the course of analysis it's my contention that the most or the most important and the ultimate question is whether this property in the tax year has been used for the purpose of making gifts that's the that's the direction that the course and factors are trying as the result of the course factors are trying to get to has this property been used for the exclusive primary purpose of making gifts if the property has been used for making gifts is a primary use and there are no other primary uses than the then the exemption should be granted if not the exemption should not be ownership characteristics of the applicant as opposed to what the applicant does and it's my contention that we want to have all the facts before we look at whether the property is being used exclusively for channel purposes and one of the things that's relevant a home for sick children in their families and nothing happens on that property but hospitality to those families and that's a charitable use and even though the mcdonald's corporation is a for profit corporation they should probably get the exemption and i agree the argument is well they would fail one of the course in fact is because one of the things the course in asks is what's the capital structure of the applicant and mcdonald's corporation is a for profit corporation and then my response to that would be they would fail one of the elements of the course and factors that would mean they couldn't have the exemption it would just mean that one of the things one of the facts that's analyzed in that applicant application would be something that would go against their application mcdonald's corporation is not like sisters of the third or script ration is it made of up of people who have taken vows of poverty and who devoted their lives to the care of the sick ok the sisters of the third order if they were to make the same application they would have a stronger application but i would suggest the both applications probably should be granted and the reason is because in the hypothetical that's postulated we've got an institution that is doing nothing on the property but making gifts in this court's decision  hospital applicant that wasn't exclusively making gifts on the property they were doing all sorts of other things as well many of them related to business interests and revenue generation in the managers of the hospital improving it were not like the nons in sisters of the third order that's all something that ought to be considered in making the analysis we think the circuit court when it has an application like the one presented by carl should look at all the factors when the department gets an application like the one presented in coral all the factors should be looked  no facts developed we really don't know what carl hospital's been doing with the property in two thousand and four through two thousand and eleven we think there needs to be a really and that question needs to get resolved by the by the circuit court we believe the circuit court should apply court's decision would be they could and would go back to circuit court and we'd start again and i'm sorry about that but that's where that goes thank you very much thank  fifteen dish eighty six subsection a is a preamble it's what the legislature asserts the purpose of the statute is that is where it says the purpose of the history a new category of ownership the preamble is not a part of the operative part of this day it can't create an ambiguity it could be considered if there were an ambiguity but there is not the statute itself doesn't talk about creating a new category of ownership it goes into all the details for creating a new kind of exemption and then exemption it calls the hospital hope we're not talking about just a new kind of ownership and i don't know how they could create a new kind of ownership in any event i want to comment because for a moment on the first district i the first district ignore that this statute is missing something in the words it doesn't say that there is a requirement they comply with the constitution the course and factors are as say this is a legislative oversight it wasn't an oversight they talk about everybody talks about how careful and how the work was to develop this statute what the first supposes but let's just add a whole new section to the statute and say that while they stood to comply with fifteen sixty five or if they have to comply with fifteen sixty five fifteen eighty six serves no purpose what it does  the department developed this is the family hospital that form the hospital fills out very short form they have to put down how much they're spending the value of their charity care and this charity care is defined by this statute includes such things as education for doctors and nurses and research i don't know how this charity care but nonetheless that's with his six and they are entitled to an exemption  not requiring them to comply with if he's sixty five with respect to the idea of a no set of circumstances test what they're asking is that we disprove a negative and  case they don't tell us what the case is it would spryte the case they can't even show us that it actually exists just that they can conceive of a well as i think this may clear from the beginning  waving in the trial court is a matter of law there is no set of circumstances where this can apply because this is beyond if already a legislature it can create a new kind of exemption it can create some special kind of exemption for hospitals and in the statute it says it's doing this in lieu of any other method it says a hospital could seek exemption under this section all our it can go back and seek an exemption are made in an exemption under fifteen sixty five the charitable exemption arthur has an exemption under something else  be religious exemption such as an order of  it can seek an exemption under then there is no more than what you say to suggest that they have to meet any requirements other than showing that they have spent as much or rather than the value of what is counted as shared here is at least equal to the amount of their tax for the year that's all i have unless or here's the other questions  questions thank you please the court i'm joel fletcher i'm here on behalf of the county defendants i want to start by dealing with issues of jurisdiction course the court has to address those issues first i agree i'm going to echo the comments of justice thomas if this is a final judgment general i am asking this court to exercise its supervisory authority and i'm asking it to do so in a limited way i'm asking the court to address the retroactivity of section fifteen dash eighty six and if section section fifteen just eighty at least give us guidance in this case we're in we're in a position where the trial court is has concluded that section fifteen dash eighty six is a play a couple and concluded that it defines all the criteria for exemption were not even being given discovery on the course and factors of this point and so we're not able to move forward in presenting a record on the up like ability of the courts and factors as we would have to if we want to fully litigate our claims does that answer the court's question well decision that they didn't not address in detail whether all of the course in fact is defined constitutional criteria and absent guidance from this court we're not going to be able to get discovery we need to move for the case right that this court may have the opportunity or after the effect of a the trial court ruled that the term application was broad enough to include a complaint brought in the first instance in the circuit court there are several textual problems with that argument the first of which is that argument as i understand it is that that comparable ground here established before the department coupled with the complaint in the circuit court together make this a complaint brought pursuant to section fifteen dash five and the section that argument is directly contradicted this construction of fifteen to actually eighty six again if this court does reach the issue of of the constitutionality of section fifteen dash eighty six i agree with the department the county defendants agree with the department that the constitution is an overlay over the standard and severs to constitutional malice of some of them that are critical in this case whether or not the institution is supported by donations donations are important constitutionally because the signal public support for the constitution was adopted this court emphasized the private benefit is it is central to whether an exemption is valid essential statutorily essential under the constitutional standard and it's particularly important when dealing here with a modern nonprofit hospital with its complicated web of for profit nonprofit relationships that that core isn't factor is being severed from the analysis by plaintiff and it's being severed on a blank record we're not tax rates that are charged to their their constituents tacked on tax exemptions are only revenue neutral if the tax rate is allowed to increase to every other taxpayer in the district when an exemption is granted first tax and districts care about with the tax rates are fair to their constituents and second high tax rates are economically burdensome to taxing districts the city of champagne is next door to the city of urbana when tax rates go up in city and city of  your honor i'd like to be very brief i want to make sure mr flamm has an opportunity to get back here and so i like to make just i think two quick points the first mr gross or some of the departments form doesn't take into consideration the course and factors is right we need guidance on what our form should say that form doesn't do that and one of the reasons we're asking the court for guidance is because we need to figure that out there's a moratorium now on property tax exemptions for hospitals the part of the sort of waiting we can which was that the hospital was not own by the entity or the hospital was owned by another entity section fifty six does away with that and that's that's something we think the general assembly's is totally entitled to do the general assembly also can set standards for the property tax exemption and to the extent that the hospital meets the it can move on to the second stage the extent of the can't beat them it's out of luck as you go back and not get the exemption apply under fifteen sixty five i said i want to make sure th outset it's important to recognize exactly what we mean when we use the word retroactively in this context we're not talking really about what we're not we're talking about the application of fifteen eighty six tax years before public ninety seven six it was passed in two thousand and twelve so it's retroactive in that sense that it's not retroactive in another sense it is that we're talking about it applying to the claims seeking to establish exemptions that were already pending claims that go back to tax year two thousand and four so we had pending litigation seeking to establish entitle me to exemptions seeking a way to restore in title meant to exemptions going back to two thousand foundation like just about every other not for profit hospital estate has had property tax exemptions for decades were seeking to restore them going back to two thousand and four and those claims were already pending and controversies about entitlement to property tax exemptions claims that were still alive they wanted hope the new law to apply to those as well as to future claims new claims  the effective date of the air and so we had existing causes of action going back to tax year two thousand and four so it's not really retroactive in in the sense of this being a new cause of action it was already and i think it's also worth noting that the county defendants argument concerning the this retroactivity issue which really comes down to is section fifteen eighty six a political  foundations claims for texas two thousand four through two thousand level for these four properties their argument really isn't a retroactive argument because what they're saying is that fifty six never never sixty using of section fifteen eighty six well and that's that's their position retroactivity has been provided for but he says decisions by the department entered after  and twelve that doesn't apply applications for property tax exemption filed after june twelfth twenty eight well that doesn't apply in application for property tax exemption that we're awaiting a final decision from the department as of june twelve thousand and twelve i mean that's what they've provided as far as retroactive application well that is the third category that's a political i think that the actual it is your honor and under the property tax code the general assembly does use the word application to refer to lawsuits and that's of course true in the code a civil procedure and it's common place in the law a lawsuit is a type of six at some point there has to be an application submitted to the department and the current foundation meets their requirements because we did that for tax year twenty twelve so in other words under section twenty three twenty five e you have to establish your entitle to an exemption for a choir or subsequent tax year once you do that you can go into court here the colonel foundation did submit the application under section fifteen eighty six protect your twenty twelve we got that exemption and it gives brings us to rectally within the language of ninety three in that we have a challenge to decisions by the department which are not final so these issues which you know are pretty frankly was won long enough and we appreciate being able to use as many words as we did in our lengthy brief it would have been another forty pages or so to cover these a public ability has used the statutory interpretation issues in detail we did do that in our appellate court brief because that was the focus overview of the reasons why as a matter of statutory interpretation or foundation him seek exemptions under fifty six and this court of course would have to conclude that we satisfy the statutory make bears on the course and factors and why they do not apply in their entirety you really need to focus on the language of the each factor and ask yourself does this relate to the use of the property that's what we're talking about under the constitution is the use of the property as opposed to the nature of the institution because the simple fact of the matter is as mr elites correctly observed one does not have to be a charitable institution in order to him property exclusively for chervil purposes so it's our basic position this court should not indorse factors that barren charitable ownership that don't have anything to do with you don't need to decide they have to look at how the property is actually things used and the department itself really recognizes that not in the score but outside of this court because they use the course in factories in their entirety apply to sales tax exemption charitable sales tax exemptions exemptions that by definition don't have anything to do with the use of property so why would we use factors in their entirety that don't have anything to do with the use of property and apply them in their entirety to the sole question of the exclusive use of property if held court has also recognized that the charitable sales tax exemption issue is decided by the courts in fact now for example one case is the one the community foundation case there was a second district decision authored by justice thomas that applied the course and factors to the charitable sales tax exemption another case was the friends of the israel foundation is this court is held they have so many cases going back decades so the course of the factors that this court relies on in deciding the constitutional question should be focused on is the charity providing provided to all who need it regardless of ability to pay and with that i would ask the court to reverse the appellate court decision find in the statute unconstitutional affirm the circuit court's judgment that the statute that section fifteen eighty six applies to curl foundation and remain with instructions for the circuit court to determine whether the nation is entitle to exemptions under the statutory criteria and by demonstrating that it makes jury available to