Myers v. Alaska Housing Finance Corp.

68 P.3d 386, 2003 Alas. LEXIS 31, 2003 WL 1901129

• Court: Alaska Supreme Court
• Decided: April 18, 2003
• Docket: S-9941
• Status: Published

Opinions

OPINION

CARPENETI, Justice.

I. INTRODUCTION

Alaska Constitution article IX, section 7 prohibits the legislature from dedicating future revenues directly to any special purpose. But can the legislature sell the state's right to a future revenue stream that is based on a settlement of a lawsuit and then immediately appropriate the proceeds? We conclude that selling the right to receive future revenue from the tobaceo lawsuit settlement involved in the present case is constitutional for three reasons: (1) the legislative appropriation power includes the power to sell state assets, (2) lawsuit settlements are not traditional sources of public revenue, and (3) the legislature has the responsibility to manage the state's risk.

II. FACTS AND PROCEEDINGS

In 1998 Alaska, along with numerous other states and territories, settled its past and present smoking-related claims, and provided a continuing release of future smoking-related claims, against the four largest tobacco manufacturers. The Master Settlement Agreement provided that the tobacco manufacturers would make annual payments to a fund from which the state would receive a portion in perpetuity. The state is projected to receive between $16 million and $36 million annually through 2081.

Eric Myers, a director of the Alaska Division of the American Cancer Society and proponent of tobacco-control programs, lobbied the legislature to spend a significant portion of the tobacco settlement on anti-tobacco initiatives. The legislature appropriated only $1.4 million from the state's general fund to such initiatives, substantially less than the $8.2 million requested. Funding for rural school upgrades and construction was a competing priority, in part because a superi- or court had recently concluded that the then-existing education funding scheme violated the state constitution and the federal Civil Rights Act of 1964.¹

To fund the extensive school improvements, the legislature could have appropriated funds from the state's general fund or could have proposed a bond measure that would have required voter approval. Instead, the legislature, viewing the state's right to future payments from the tobacco settlement as an asset, sought to sell it for a lump sum representing the present value of the future revenue stream from the settlement. The proceeds from the sale could then immediately be appropriated to finance the rural school improvements.

The legislature devised chapter 130, SLA 2000 to accomplish this objective without offending constitutional principles. Chapter 180, SLA 2000 authorized the commissioner of revenue to sell the right to receive forty percent of the annual revenue from the settlement to the Alaska Housing Finance Corporation (AHFC), "anticipated to be at least $93,000,000."² The legislature also authorized AHFC to create a subsidiary corporation and issue revenue bonds secured by the right to receive forty percent of the tobacco settlement.³ The legislature then appropriated $164,876,000 from the anticipated proceeds of the bonds for school, university, port, and harbor construction, renovation, and improvement.⁴

AHFC created a subsidiary corporation, the Northern Tobacco Securitization Corporation (NTSC). The NTSC held public hearings to discuss the proposed sale of the to-baceo settlement revenue stream. In early October 2000 the NTSC board of directors authorized the issuance of the bonds. At nearly the same time, Myers filed this suit seeking a declaratory judgment that chapter 180, SLA 2000 violated the prohibition on the dedication of funds found in article IX, seetion 7 of the Alaska Constitution. Myers later amended his complaint to request that the superior court enjoin the NTSC bond sale.

Following oral argument on Myersg's request for declaratory judgment, Superior Court Judge Dan A. Hensley ruled that chapter 180, SLA 2000 was constitutional. Although he noted that the anti-dedication clause applied to all state revenue, which included money from lawsuit settlements, Judge Hensley concluded that reducing the settlement to present value and selling it for a lump sum did not violate the anti-dedication clause. He reasoned that the settlement was an asset unlike traditional types of revenue used for annual state government funding; that the form of the settlement as periodic payments instead of a lump sum was a mere fortuity; that settlements providing for periodic payments were fungible with lump sum settlements; and that because the continued payment of the settlement was not guaranteed, the legislature must be able to manage the state's assets to avoid risk. Because of the slippery slope argument that the legislature could reduce any asset consisting of a future revenue stream to present value, sell it, and appropriate the proceeds immediately, Judge Hensley emphasized that his ruling was limited to lawsuit settlements as a particular type of revenue. Myers appeals this decision.

After Judge Hensley's decision, the NTSC issued $116 million of revenue bonds secured by the right to receive forty percent of the future revenues from the tobacco settlement. The NTSC received $93 million and the remainder was used to pay the costs of issuance. The $98 million is now apparently being used for school and harbor construction projects as appropriated by chapter 131, SLA 2000.

III. STANDARD OF REVIEW

This case requires us to decide if the enactment of chapter 180, SLA 2000 violates article IX, section 7 of the Alaska Constitution. We use our independent judgment to decide constitutional issues.⁵

IV. DISCUSSION

The sole issue presented in this appeal is whether the sale of the future revenue stream from the tobacco settlement violates the constitutional prohibition against dedicating a source of state revenue to any special purpose. We first discuss the anti-dedication clause and its interpretation, then determine that directly dedicating the tobacco settlement revenues would be unconstitutional, and finally conclude that the sale of the tobacco settlement revenue stream reduced to present value is constitutional.

A. The Anti-Dedication Clause and Its Interpretation

Section 7 of article IX provides in relevant part that "[the proceeds of any state tax or license shall not be dedicated to any special purpose."⁶ The drafters of the anti-dedication clause adopted it to preserve control of and responsibility for state spending in the legislature and the governor. " '[Tlhe more special funds [that] are set up the more difficult it becomes to deny other requests until the point is reached where neither the governor nor the legislature has any real control over the finances of the state."⁷ The anti-dedication clause helps preserve the state's annual appropriation model and ensures that governmental departments will not be restricted in requesting funds from all sources.⁸

We have twice considered whether an appropriation violated the anti-dedication clause, but neither case presented a question similar to the one presented here. In State v. Alex, we decided that an act purporting to dedicate a "special assessment," rather than a tax or license, violated the anti-dedication clause because the clause applied to any source of public revenue.⁹ In Sonneman v. Hickel, we held that an act violated the anti-dedication clause because it limited the ability of one state agency to request funding from revenues produced by the Marine Highway System.¹⁰ In both cases, the unconstitutional acts dealt clearly with future allocation of future revenues; neither case involved a reduction to present value and outright sale of a future revenue stream. Accordingly, neither Alex nor Sonneman directly resolves the more complex question in the present case.

The Alaska anti-dedication clause is almost unique among state constitutions. Only Georgia has a similar provision, which indirectly was the source of the Alaska provision.¹¹ The relevant portion of the Georgia anti-dedication clause provides: "[Nlo appropriation shall allocate to any object the proceeds of any particular tax or fund or a part or percentage thereof." ¹²

The Georgia Supreme Court has interpreted its anti-dedication provision only once. In State Ports Authority v. Arnall, the Georgia legislature passed a bill appropriating all of the rentals received from a lease of the Western & Atlantic Railroad to the State Ports Authority for the purpose of paying bond debt.¹³ The Georgia Supreme Court held that the appropriation was unconstitutional for two independent reasons: because it violated the provision concerning the creation of state debt and because it violated the provision prohibiting the dedication of funds.¹⁴

Arnall, however, is of limited use in resolving the present case. Like our earlier cases, Arnall dealt with the appropriation of future revenues and did not decide whether the sale of a future income stream reduced to present value violated the anti-dedication clause.

The state argues that Arnall "favorably" cited Wright v. Hardwick¹⁵ and that this supports the constitutionality of the sale of a stream of revenue. In Wright, the Georgia legislature made an "outright sale of rentals to be received from the lease of the Western & Atlantic Railroad."¹⁶ The Georgia Supreme Court approved of the sale because the " legislative act [did] not seek to authorize the creation of debt."¹⁷

The state's argument is unconvincing because it misconstrues Arnall and overstates the scope of Wright. First, Arnall did not favorably cite Wright. Arnall distinguished Wright in its creation-of-debt analysis and made no mention of Wright in its anti-dedication analysis.¹⁸ Second, Wright did not support the contention that the sale of rentals from the railroad lease was constitutional under Georgia's anti-dedication provision, for Wright was decided before Georgia adopted its anti-dedication provision.¹⁹ Wright was decided in 1921, well before the anti-dedication provision first appeared in the Georgia Constitution of 1945.²⁰ In fact, the appellant in Wright argued that the sale of the right to future rents violated the annual appropriation model of the Georgia constitution, but the court stated, "No scheme or fiscal policy for the state appears in any direct or express language of the Constitution limiting all expenditures for the state in any one year to the revenues of the state derived from all sources during that year, and declaring that the revenues shall not be anticipated.²¹ Thus, Wright did not, and could not, support the validity of a sale of future lease revenues with respect to Georgia's anti-dedication provision.

In sum, neither the text of our anti-dedication clause nor the relevant case law provides a direct answer to the question before us.

B. The Tobacco Settlement Revenue Is Subject to the Anti-Dedication Clause.

The superior court ruled that the anti-dedication clause generally applied to the tobacco settlement revenue: "[Allthough the Constitution speaks in terms of tax or license, the Alaska Supreme Court, in State v. Alex, interpreted that phrase to include all state revenues, which would include money from lawsuit settlements." This conclusion is consistent with existing case law.

In State v. Alex, we held in the context of a tax-like assessment on the sale of fish on behalf of a regional aquaculture association, that "the constitution prohibits the dedication of any source of revenue.²² We expressly agreed with an Alaska Attorney General's opinion that states:

Section 7 of Article IX of the state Constitution can be given its intended effect and serve its repeatedly expressed purpose only if the words "proceeds of any tax or license" are interpreted to mean what their framers clearly intended, i.e., the sources of any public revenues.

Accordingly, it is our conclusion that the dedication of any source of public revenue: tax, license, rental, sale, bonus-royalty, royalty, or whatever is limited by the state Constitution to those existing when the Constitution was ratified or required for participation in federal programs.[²³]

A more recent informal opinion of the attorney general specifically stated that the constitution prohibited dedication of money from civil settlements: "[T)he constitutional prohibition against dedicated funds applies to money received from fines, penalties and civil settlements...." ²⁴

The conclusion that the anti-dedication clause applies to the tobacco settlement means only that a current legislature is prohibited from dedicating future settlement revenues to a particular purpose. Thus, the anti-dedication clause would prohibit the legislature from appropriating the tobaceo settlement revenue stream for more than the immediately forthcoming fiscal year directly to secure a bond issue. But the legislature did not do this. Instead, the legislature sold the settlement reduced to present value. The question then becomes whether the sale of the tobacco settlement is unconstitutional because its effect is the same as a dedication of the future tobacco settlement revenue to repay the bond issue.

C. The Sale of the Right to the Future Annual Payments from the Tobacco Settlement Is Not an Impermissible Dedication.

Determining the outcome of this case requires us to choose between competing constitutional values: the prohibition on dedicated funds and the legislative power to manage and appropriate the state's assets. Myers argues that allowing the state to sell the future revenues from the settlement defeats the purpose of the anti-dedication clause. The state argues that the tobacco settlement is a state asset, which the legislature is free to sell; upon the sale, the legislature may appropriate the proceeds. The superior court distinguished between the sale of the tobacco settlement and other "traditional kinds of revenues" and concluded that the transaction was constitutional. We agree with the superior court.

Myers interprets the prohibition of the anti-dedication clause broadly and concludes that chapter 180, SLA 2000 is unconstitutional because its effect is inconsistent with the purposes of the anti-dedication clause. Myers argues that the sale of the tobacco settlement conflicts with the annual appropriation model and effectively reduces the legislature's control of state assets because those anticipated future revenues become unavailable. He also argues that we should not allow the legislature to accomplish indirectly what it cannot do directly. Because the state admits that the legislature cannot dedicate forty percent of the tobacco settlement to secure bonds directly, Myers argues that the legislature should not be able to accomplish the same effect by the simple expedient of selling the right to future revenues from the tobacco settlement.

But Myers apparently does not dispute that the legislature has the power to sell a state asset like a building, and selling an income-producing asset could be viewed as inconsistent with the anti-dedication clause in the same ways as the sale of the tobacco settlement revenue stream. If the state owns a real property asset on which it collects rents, selling the property outright and appropriating the money effectively eliminates the rents as a source of revenue previously available to future legislatures. Likewise, if the state has loaned money, selling the state's interest in the repayment of the loan and appropriating the income eliminates the stream of revenue from future loan payments. The same considerations would apply if the state sold state property on an installment basis. Clearly the legislature has some power to manage the state's assets and to appropriate those proceeds in the year received even though such actions may conflict with the purposes of the anti-dedication clause.

The state interprets the anti-dedication clause narrowly and concludes that the tobacco settlement is simply an asset-a property, thing in action, or chose in action-which the legislature can sell and appropriate without violating the anti-dedication clause. If this proposition is accepted, there is no dedicated funds problem because the legislature has simply sold an asset and appropriated the revenue generated. No future revenues are impacted because the tobacco settlement no longer exists as a state asset that will produce future revenues. The state supports its interpretations with the opinion of the attorney general that the legislature's action was constitutional.²⁵

The superior court expressly limited its ruling to the issue in this case-the sale of the tobacco settlement revenue stream. The superior court reasoned that the sale of the tobacco settlement was constitutional because of four distinctions between the tobacco settlement revenues and traditional kinds of state revenues: (1) lawsuit settlements are discrete and have a non-recurring nature; (2) the form of the lawsuit settlement as periodic payments instead of a lump sum is a matter of fortuity; (8) lawsuit settlements are more closely comparable to state assets than to taxes or other traditional sources of state revenue; and (4) the tobacco settlement entails some risk that the legislature must be able to manage. We agree with the superior court.

First, lawsuits and corresponding settlements have a non-recurring nature unlike other sources of state revenue relied upon in Alaska's annual appropriation process. Lawsuit settlements are not traditional sources of significant state revenue.²⁶

Second, the form of the settlement as periodic payments instead of a lump sum is a matter of fortuity. Clearly, if the settlement had been a lump sum arrangement, the legislature would be free to immediately appropriate the settlement proceeds, and there would be no anti-dedication clause problem. Although Myers argues that the state could have negotiated for a lump sum, there is no reason to conclude it would have been successful. Indeed, the omnibus nature and the significant complexity of the settlement provided incentive to accept the settlement in the form offered. In any event, the form of the settlement should not dictate the constitutionality of the legislature's disposition of it.

Third, lawsuit settlemerits, even those involving periodic payments over time, are commionly considered to be assets or property as distinct from taxes or licenses.²⁷ Settlements involving payments over time are comparable with lump sum settlements by simply reducing them to present value.

Fourth, the legislature must be allowed to manage state assets so as to control risk. Myers does not appear to dispute that the legislature has the authority to manage the state's affairs in accordance with its judgment on risk avoidance, but he argues that there is little risk associated with the tobacco settlement revenue stream as evidenced by the bonds' ratings. To the extent that Myers asks us to decide the financial soundness of the sale (whether the tobacco settlement is sufficiently risky to warrant liquidation), we decline. That is a policy choice for the legislature.²⁸

Myers argues that the state's narrow interpretation of the anti-dedication clause is a slippery slope: If the state can reduce the tobacco settlement revenue stream to a present value, sell it, and immediately appropriate the proceeds, the legislature could perform the same maneuver on almost any revenue stream, provided the existence of an interested buyer. For example, the legislature might sell the state's right to future oil and gas royalties and appropriate the proceeds immediately. Myers argues that no distinction exists between the tobacco settlement and ofl and gas lease royalties as state assets. Myers's argument is beyond the scope of this case. Because the validity of selling future oil and gas royalty revenues reduced to present value is not posed by this case, we express no opinion on the constitutionality of that sort of transaction.²⁹

D. The NTSC's Issuance of Bonds Is Constitutional.

Assuming that the sale of the tobacco settlement was constitutional, the state argues that the NTSC's bond issue was constitutional. Although Myers asserts in one sentence that the legislature's act effectively cireumvented article IX, section 8, which requires voter consent for a general bond issue, he does not develop the point. Accordingly, we consider the issue waived.³⁰

Even if Myers had not waived the argument, the state is correct that the NTSC issued the bonds within the requirements of the constitution. Although article IX, section 8, provides that the state can contract debt only with ratification by a majority of the voters,³¹ article IX, section 11, provides an exception for a state agency to issue revenue bonds secured only by the agency's revenues.³² Because the NTSC bonds were secured solely by the tobacco settlement revenues, the bonds are expressly permitted under article IX, section 11.

v. CONCLUSION

Because the legislature sold the tobaceo settlement and then appropriated the resulting income, it did not directly violate the anti-dedication clause. Although selling the tobacco settlement revenue stream is an indirect method of producing an effect very similar to the prohibited dedication of those future revenues, the anti-dedication clause clashes with the legislature's appropriation power. We conclude that the sale of the tobacco settlement is constitutional because the legislative appropriation power includes the power to sell state assets, lawsuit settlements are not traditional sources of public revenue, and the legislature has the responsibility to manage the state's risk. Accordingly, we AFFIRM the superior court's ruling.

BRYNER, Justice, with whom FABE, Chief Justice, joins, dissenting.

1 . Kasayulie v. State, 3AN-97-3782 Ci. (Alaska Super., September 1, 1999).

2 . Ch. 130, § 9, SLA 2000.

3 . Ch. 130, §§ 7, 10, SLA 2000.

4 . Ch. 131, SLA 2000.

5 . See Halliburton Energy Servs. v. State, Dep't of Labor, 2 P.3d 41, 50 n. 46 (Alaska 2000); Chiropractors for Justice v. State, 895 P.2d 962, 966 (Alaska 1995).

6 . The remainder of section 7 of article IX provides three exceptions to the dedicated funds prohibition-the Permanent Fund, certain federal programs, and programs existing upon the date of ratification of the section-but neither party to this appeal argues that any of these exceptions applies.

7 . Sonneman v. Hickel, 836 P.2d 936, 938 (Alaska 1992) (quoting 6 Proceedings of the Alaska Constitutional Convention (PACC) App. V at 111 (Dec. 16, 1955)).

8 . See id. at 940.

9 . 646 P.2d 203, 210 (Alaska 1982).

10 . 836 P.2d at 940.

11 . The idea for the anti-dedication clause apparently came from the Model State Constitution, whose anti-dedication clause is virtually identical to that of the Georgia Constitution. See Victor Fischer, Alaska's Constitutional Convention 142 (1975); Model State Constitution art. VII, § 7.03 in 1 Constitutions of the United States: National and State (Michael L. Shore & Abigail O'Donnell eds.2001).

12 . Ga. Const. art. III, § IX, para. VI(a); Ga. Const. or 1945 art. VII, § IX, para. IV.

13 . 201 Ga. 713, 41 S.E.2d 246, 247 (1947).

14 . Id.

15 . 109 S.E. 903 (Ga.1921).

16 . Arnall, 41 $.E.2d at 254.

17 . Id. (quoting Wright, 109 S.E. at 909).

18 . Id. at 254.

19 . See id. at 255.

20 . Id. ('This [anti-dedication] provision was not contained in any constitution of this State prior to 1945.").

21 . See Wright, 109 S.E. at 909.

²²

23 . 1975 Formal Op. Att'y Gen. 9 at 24.

24 . 1986 Informal Op. Att'y Gen. vol. 1, at 429.

25 . In general, the attorney general's opinion is entitled to "great weight," because the attorney - general is "the officer charged by law with advising the officers charged with the enforcement of the law as to the meaning of it." Allison v. State, 583 P.2d 813, 816-17 n. 15 (Alaska 1978) (quoting Smith v. Mun. Ct. of Glendale Jud. Dist., 167 Cal. 534, 334 P.2d 931, 935 (Cal.App.1959).

26 . For example, in Alaska's fiscal year 2000, oil revenue, investment revenue, and restricted revée-nue (Le., federal funds, trusts, dedicated funds, and statutorily restricted funds) accounted for approximately 94% of total state revenues. Unrestricted revenues accounted for approximately 6% of total revenues. Of those unrestricted revenues, just over two-thirds were from taxes and licenses. Other miscellaneous unrestricted revenues, the only category under which lawsuits would fall, accounted for only 1.2% of total state revenues. Spring 2001 Araska Der't or Revenuze, Tax Division Revenuz Sources Boox 9.

27 . E.g., Bandow v. Bandow, 794 P.2d 1346, 1349 (Alaska 1990) (holding that a medical malpractice settlement consisting of an annuity paid in monthly installments was "in fact 'property' " in deciding how to divide that property in a divorce action).

28 . See Municipality of Anchorage v. Repasky, 34 P.3d 302, 315 (Alaska 2001) (holding that court's decision appropriately adheres to policy choice the legislature has already made); Elliott v. Settje, 27 P.3d 317, 324 (Alaska 2001) (holding that legislature is charged with general policy decision concerning preference for joint physical custody; court's role is only to apply law). See also Malone v. Meekins, 650 P.2d 351 (Alaska 1982) (political question doctrine).

29 . The dissent proposes a five-factor test to determine whether a future income stream and the mechanics of its proposed disposition comport with the Alaska Constitution's anti-dedication clause. Today's opinion considers the dissent's first factor at length, and there is no question that the second factor is satisfied. The remaining three factors do not assist in answering the question before the court: whether the future income stream is an asset that may be sold consistent with the constitution.

The third factor-whether there is any limitation on the transferability of the interest in question-does not help in determining whether it is a constitutionally saleable asset. But even assuming that the factor is helpful, the dissent incorrectly applies it in this case. Section XVI-Ti(p) of the master settlement agreement (1) limits its benefits ("rights") to the state only and (2) provides that the state may not assign its right to enforce the agreement. It is silent on whether a settling state may assign its right to receive settlement funds. We note also that Myers has not advanced any argument related to Section XVIII(p) of the master settlement agreement, a sufficient reason in itself not to reach the argument. See Stosh's I/M v. Fairbanks N. Star Borough, 12 P.3d 1180, 1183 & n. 12 (Alaska 2000) (When "a point is given only a cursory statement in the argument portion of a brief, the point will not be considered on appeal.") (quoting Adamson v. Univ. of Alaska, 819 P.2d 886, 889 n. 3 (Alaska 1991).

The fourth factor-whether the future value of the income stream can be rationally predicted and whether the state might be required to perform contractual duties that conflict with its governmental duties-does not help in determining whether the revenue stream is an asset. Moreover, it is a truism that assets fluctuate in value, and there is no reason to believe that the statutory regime in this case did anything but give more-not less-certainty to the value of the right to receive the income. Finally, as to the conflict the dissent sees between the state's contractual duties and its governmental duties, it is illusory: Nothing in the master settlement agreement obligates the state to take steps to maximize the income stream. The state is obligated only not to interfere with AHFC's receipt of the income stream.

The fifth factor-whether the sale is what it purports to be, a conveyance of the state's right to the revenue-does not help in determining whether the revenue stream is an asset. Moreover, the dissent's application of the factor rests on its earlier incorrect conclusion that Part XVIII(p) of the master settlement agreement prevents the state from assigning its interest in the settlement proceeds. Because the master settlement agreement does not prohibit the state from assigning its interest in the settlement proceeds, it is irrelevant why the legislature chose the mechanism that it did.

30 . See Stosh's I/M, 12 P.3d at 1183 & n. 12.

31 . Atraska Const art. IX, § 8 provides, in part: "No state debt shall be contracted unless authorized by law for capital improvements or unless authorized by law for housing loans for veterans, and ratified by a majority of the qualified voters of the State who vote on the question."

32 . Alaska Const. art. IX, § 11 provides in relevant part: "The restrictions on contracting debt do not apply to debt incurred through the issuance of revenue bonds by a public enterprise or public corporation of the State or a political subdivision, when the only security is the revenues of the enterprise or corporation."