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Department of Ecology v. State Finance Committee

January 17, 1991

THE DEPARTMENT OF ECOLOGY, PETITIONER,
v.
THE STATE FINANCE COMMITTEE, RESPONDENT



En Banc. Utter, J. Dolliver and Smith, JJ., concur. Guy, Utter, and Andersen, JJ., concur by separate opinion; Dore, C.j., Brachtenbach and Durham, JJ., and Callow, J. Pro Tem., dissent by separate opinion; Johnson, J., did not participate in the disposition of this case.

Author: Utter

The Department of Ecology (hereinafter DOE) directly petitions this court for a writ of mandamus. The writ would direct the State Finance Committee (hereinafter Committee) to approve the form of the master lease and trust agreement proposed by DOE for construction and lease of its new headquarters. The specific question raised by this petition is whether the lease-purchase agreement developed by DOE and authorized by the Legislature in RCW 39.94 violates the debt limitation provision of article 8, section 1 of the Washington Constitution. The lease expressly provides that DOE's obligation is subject to termination without penalty if sufficient funds are not

appropriated by the Legislature or if the executive orders DOE to cut its budget. For this reason we hold that DOE's financing scheme does not constitute debt within the meaning of the constitution. We therefore grant DOE's requested relief.

DOE currently houses its headquarters staff in 18 separate locations throughout Thurston County. In the 1989 capital budget, the Legislature authorized DOE to pursue a project to develop a consolidated headquarters building. Laws of 1989, 1st Ex. Sess., ch. 12, § 903(3). In 1990, the Legislature further authorized DOE to enter into a financing contract for the acquisition, design, and construction of the headquarters building. Laws of 1990, ch. 299, § 501(1). The financing contract must meet the requirements of RCW 39.94, which provides, in relevant part:

The state may enter into financing contracts for the use and acquisition for public purposes of real and personal property. Payments under financing contracts shall be made by the state from currently appropriated funds or funds not constituting "general state revenues" as defined in Article VIII, section 1 of the state Constitution. The term of any financing contract shall not exceed thirty years or the remaining useful life of the property, whichever is shorter.

RCW 39.94.030(1). Pursuant to the enabling legislation, DOE developed a comprehensive plan for the headquarters project.*fn1

Pursuant to the plan, the State, through the Department of General Administration, entered into a purchase option agreement with the owners of a 45-acre parcel located on the campus of St. Martin's College. The option must be exercised, if at all, on or before January 31, 1991. A bank, acting as trustee, will finance the site purchase and construction costs by issuing and selling Certificates of Participation (hereinafter COP's). The trustee will hold the site in trust for the State.

The trustee will sublease the site to the contractor. Construction costs will be paid from the proceeds of the sale of the COP's. The COP's will give investors the right to receive a proportionate share of whatever payments DOE makes under the master lease. Under the master lease, the contractor will lease the site and the headquarters building to DOE for a term of 20 years. The contractor will then assign its interests in the ground lease and the master lease to the trustee. DOE will make its lease payments to the trustee. The trustee will make interest payments to the COP holders. If DOE makes all the required lease payments, it will receive full title to the headquarters building in 20 years.

Under the terms of the master lease, DOE can terminate its payment obligations at any time if the Legislature fails to appropriate funding for the lease payments, or if an executive order imposes budget cutbacks on DOE. If DOE terminates its lease, then it must vacate the headquarters building. The trustee then may take possession of the building and relet it for the benefit of the COP holders. Any payments received by the trustee on reletting of the building will be used to pay the COP holders. This is the COP holders' only remedy against the State.*fn2 The actual COP's will include a paragraph warning the holders of the limited nature of the State's obligation.*fn3 The offering prospectus prepared by the underwriter of the COP's will

also highlight the fact that DOE's payments will end if the Legislature fails to appropriate sufficient funds, or the executive orders a cutback. Regardless of whether DOE makes all of its lease payments, at the end of the ground lease (30 years) title to the building and other improvements on the site will pass to the State.

As required by RCW 39.94.040(1), DOE submitted its financing agreement to the Committee*fn4 for its approval. That statute requires the Committee to approve the form of all financing contracts. The Committee has refused to approve the master lease and trust agreements. DOE petitions for a writ of mandamus to require the Committee to approve the form of the agreements.

I

Article 4, section 4 of the state constitution gives this court original jurisdiction in mandamus as to all state officers. That jurisdiction is, however, nonexclusive and discretionary. Holt v. Morris, 84 Wash. 2d 841, 845-46, 529 P.2d 1081 (1974). Therefore, the first question we must address is whether it is appropriate for us to exercise our jurisdiction.

[1] Whether this court will exercise its jurisdiction depends on the nature of the interests involved. Tacoma v. O'Brien, 85 Wash. 2d 266, 268, 534 P.2d 114 (1975). Where, as here, the issues involve the constitutionality of a statute and matters relating to the expenditure of public funds, it is appropriate for us to exercise our original jurisdiction. O'Brien, 85 Wash. 2d at 268.

[2, 3] The next question we address is whether a writ of mandamus is the appropriate remedy in this case. A writ of mandamus will not issue where the act to be performed is a discretionary act. Peterson v. Department of Ecology, 92 Wash. 2d 306, 314,

596 P.2d 285 (1979). The writ is only appropriate where a state officer fails to perform "an act which the law especially enjoins as a duty resulting from an office". RCW 7.16.160. DOE contends that the Committee, in failing to approve the form of the lease agreement, failed to perform an act required by RCW 39.94.040(1). That statute, in pertinent part, provides:

Except as provided in RCW 28B.10.022, the state finance committee shall approve the form of all financing contracts . . . .

(Italics ours.)*fn5 The use of the word "shall" in a statute generally imposes a mandatory duty. Spokane Cy. ex rel. Sullivan v. Glover, 2 Wash. 2d 162, 169, 97 P.2d 628 (1940). While there are circumstances where "shall" is interpreted as not imposing a mandatory duty,*fn6 counsel for the Committee admits that the duty to approve the form of the agreement is mandatory. Therefore all the parties agree that a writ of mandamus is the appropriate remedy. We turn then to the question of whether a writ will issue in this case.

II

The Committee's sole reason for refusing to approve the form of DOE's financing contract is that the Committee believes the scheme violates the debt limitation provision of article 8, section 1 of the state constitution. Article 8, section 1(b) provides:

The aggregate debt contracted by the state shall not exceed that amount for which payments of principal and interest in any fiscal year would require the state to expend more than nine percent of the arithmetic mean of its general state revenues for the three immediately preceding fiscal years as certified by the treasurer.

Whether the legislatively authorized DOE financing plan violates that debt limitation*fn7 provision depends upon whether the plan constitutes "debt" within the meaning of article 8.

[4] As a preliminary matter, we note that the Legislature's clear intent is that this financing plan does not amount to debt within the meaning of article 8. RCW 39.94.030(4) states:

Financing contracts . . . entered into under the limitations set forth in this chapter shall not constitute a debt or the contracting of indebtedness under . . . any . . . law limiting debt of the state. It is the intent of the legislature that such contracts also shall not constitute a debt or the contracting of indebtedness under Article VIII, section 1 of the state Constitution. . . . It is the intent of the legislature that [certificates of participation] also shall not constitute a debt or the contracting of indebtedness under Article VIII, section 1 of the state Constitution if payment of the certificates is conditioned upon payment by the state under the financing contract . . . .

In questioning the validity of the DOE financing plan, the Committee is really challenging the constitutionality of RCW 39.94's declaration that the plan is not debt. That statute was duly enacted by the Legislature pursuant to its constitutional authority to enact any law not expressly or inferentially prohibited by the state or federal constitutions. See Union High Sch. Dist. 1 v. Taxpayers of Union High Sch. Dist. 1, 26 Wash. 2d 1, 7, 172 P.2d 591 (1946). As such, the statute is presumed to be constitutional, and the challenging party has the burden of establishing beyond a reasonable doubt that the statute is unconstitutional. Sator v. Department of Rev., 89 Wash. 2d 338, 346, 572 P.2d 1094 (1977). The Committee, in essence, argues that the debt limitation provision of article 8 prohibits the Legislature from enacting RCW 39.94. In so doing the Committee asks us to ignore the clear legislative intent and the specific

determination by the Legislature that such financing contracts do not constitute debt. The Committee asks us to declare RCW 39.94 unconstitutional. This we cannot do unless RCW 39.94 clearly conflicts with the constitution. State ex rel. Wittler v. Yelle, 65 Wash. 2d 660, 665, 399 P.2d 319 (1965).

The constitution defines debt as follows:

In computing the amount required for payment of principal and interest on outstanding debt under this section, debt shall be construed to mean borrowed money represented by bonds, notes, or other evidences of indebtedness which are secured by the full faith and credit of the state or are required to be repaid, directly or indirectly, from general state revenues . . . but shall not include obligations for the payment of current expenses of state government . . . .

Const. art. 8, § 1(d). Under the plain language of the constitution, debt is borrowed money that is either backed by the full faith and credit of the State or that is required to be repaid from general state revenues.

[5-7] Under a plain reading of the trust agreement and master lease, DOE's financing plan is not debt within the meaning of article 8 for two reasons. First, the COP's are not backed by the full faith and credit of the State.*fn8 Second, because of the nonappropriation clause, the State is not obligated to pay the COP holders. The trust agreement specifically states:

The Lease Payments and the Certificates evidencing rights to receive such Lease Payments are payable solely from payments to be received by the Trustee from DOE pursuant to the Lease. The Lease and the Certificates therein shall not constitute an obligation, moral or otherwise, of the State.

(Italics ours.) Trust Agreement § 3.07, at 10. The nonappropriation clause allows DOE to terminate the lease whenever the Legislature fails to appropriate sufficient funds. Future Legislatures are not obligated to continue funding the lease, and the State's assets are not subject to suit by the COP holders in the event DOE terminates the lease. The ultimate risk of loss is not on the State's future

taxpayers. Instead, the risk of loss is on the COP holders, who will have entered into the transaction with full knowledge that they alone bear that risk. After reading the plain language of the constitution, the statute, and the lease and trust agreements, this financing scheme does not incur debt within the meaning of the constitution.

This holding is consistent with our prior case law dealing with debt limitations. We have consistently held that debt only occurs when the State is obligated to make payments. See Wittler, 65 Wash. 2d at 668 (debt is "obligation" to repay borrowed money); State ex rel. State Fin. Comm. v. Martin, 62 Wash. 2d 645, 661, 384 P.2d 833 (1963) (debt is an "obligation which must in law be paid from any taxes levied generally"); State ex rel. State Bldg. Fin. Auth. v. Yelle, 47 Wash. 2d 705, 289 P.2d 355 (1955); State ex rel. State Capitol Comm'n v. Lister, 91 Wash. 9, 16, 156 P. 858 (1916) (statutory requirement that state levy taxes each year to meet interest payment amounts to debt). Under DOE's plan the nonappropriation clause and the express language of the lease and trust agreements make it clear that there is no obligation on the part of the State to appropriate any funds in connection with the lease agreement. An "obligation" is "something . . . that binds or constrains to a course of action . . . a formal and binding agreement or acknowledgment of a liability to pay a specified sum or do a specified thing". Webster's Third New International Dictionary 1556 (1976). There is nothing in the lease agreement or the financing scheme that binds the State to any future course of action. Therefore, there is no " obligation ", and no " debt ".

The Committee incorrectly argues that DOE's financing plan is similar to the one we disallowed in State ex rel. State Bldg. Fin. Auth. v. Yelle, supra. The facts in that case make it totally inappropriate. There, the Legislature created a building authority to finance the construction of buildings that were to be leased to state agencies. Those agencies would then pay rent directly to the authority. The authority had the power to issue bonds, set and collect

rental rates, and to pledge all of its revenues as security for its obligations. 47 Wash. 2d at 706. The authority, and not the State, was obligated to pay the interest on the bonds. This court declared that the above financing scheme violated the constitutional debt limit. However, that scheme differs from the DOE plan in two significant ways.

First, the authority was a state agency. 47 Wash. 2d at 713. Thus, any obligation of the authority to pay the bondholders was, in reality, an obligation of the State. Under the DOE plan the trustee is not a state agency. Therefore, any obligation the trustee may have to pay the COP holders is not an obligation of the State.

Second, under the building authority plan, the Legislature was required to appropriate sufficient funds to cover the rental payments of the lessor agencies. 47 Wash. 2d at 712-13. Under the nonappropriation clause of the DOE plan, however, the State is not obligated to appropriate funds to cover DOE's lease payments. Therefore, the plan does not create debt within the meaning of the constitution.

Our decision is supported by holdings in our sister states. The overwhelming majority of jurisdictions that have considered the issue have concluded that a nonappropriation clause precludes the creation of debt.*fn9 In State ex rel. Kane v. Goldschmidt, 308 Or. 573, 783 P.2d 988 (1989), the Oregon Supreme Court approved a plan similar to DOE's

plan. Oregon, like Washington, has a constitutional debt limitation. The statute at issue in Kane authorized the Legislature to enter into long-term financing agreements similar to the DOE plan. That statute contained a nonappropriation clause that limited the liability of the State. 308 Or. at 584-85. In upholding the financing scheme, the Oregon court first defined debt as:

an unconditional and legal obligation of the state to pay, when at the time the obligations initially are created there are insufficient unappropriated and not otherwise obligated funds in the state treasury to meet those obligations.

308 Or. at 583. The court then held that, because of the nonappropriation clause, the financing scheme did not create debt.

The state's promise of repayment is conditioned on the willingness of future legislative assemblies to appropriate the funds. The state does not promise that future legislatures will appropriate any funds. The lenders take the risk of nonpayment.

308 Or. at 586.

A similar situation exists in the case before us, and we find the Oregon court's reasoning persuasive. DOE's financing plan does not require future Legislatures to appropriate funds. Instead, the plan gives future Legislatures the flexibility to continue the funding or not, depending upon budgetary needs. The plan places the appropriation decision where it belongs, in the hands of the collective wisdom of future legislators. Since the plan does not impose upon future Legislatures a requirement of continued funding, the plan does not create debt.

[8] The purpose of the original article 8, section 1 debt limitation was to protect the integrity of the State's economy. State ex rel. State Bldg. Fin. Auth. v. Yelle, 47 Wash. 2d at 715. Constitutional debt limitations were enacted to protect future taxpayers from the kind of improvidence that led to state and local government bankruptcies in the 19th century. Note, State and Municipal Lease-Purchase Agreements: A Reassessment, 7 Harv. J.L. & Pub. Pol'y

521, 525 (1984). In 1972 the people amended article 8, section 1 to its present form. That amendment changed the method by which the debt ceiling is calculated, but the amendment did not change the purpose of the limitation. DOE's plan fulfills that purpose. The nonappropriation clause protects future taxpayers by giving their representatives the power to terminate the lease.

The Committee argues that approving the DOE plan will render the debt limitation provision meaningless. According to the Committee, the State will simply finance all projects through similar plans, and thereby avoid the debt limitation altogether. We find the Committee's argument unpersuasive for two reasons.

First, the DOE financing plan would not be appropriate for all state projects. In DOE's case, the Legislature and DOE determined that the benefits of the plan outweigh the added costs of the higher interest on the COP's.*fn10 In future cases, however, the Legislature may well determine that other financing plans are more appropriate.

Second, the Committee's argument fails to consider the clear will of the people that these type of financing plans do not constitute debt within the meaning of the constitution. The 1972 constitutional amendment clearly defines debt as borrowed money that is either secured by the full faith and credit of the State, or that is required to be repaid out of the general revenue. As explained above, the DOE plan is not backed by the full faith and credit of the State, and the State is not obligated to repay any funds. Therefore, the DOE plan does not create debt within the meaning expressly approved by the people through the 60th amendment to the constitution.

Additionally, the Legislature expressly declared that this type of financing plan does not constitute debt within the meaning of the constitution. RCW 39.94.030(4). That legislative declaration is presumed to express the will of the

people. Thus, the people have spoken through two vehicles, the constitutional amendment and the Legislature. It is not within this court's prerogative to set aside the will of the people.

Conclusion

The DOE financing plan is not backed by the full faith and credit of the State. The plan does not obligate the State to appropriate any funds for the project or the subsequent lease. The nonappropriation clause allows future Legislatures and future executives the flexibility to terminate or continue the lease as they see fit. Therefore, the plan does not create debt within the meaning of article 8, section 1 of the Washington Constitution. Since the State Finance Committee has not met its burden of proving beyond a reasonable doubt that RCW 39.94 is unconstitutional, the Committee must approve the form of the financing plan. We ...


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