Washington Economic Development Finance Authority v. Grimm

837 P.2d 606, 119 Wash. 2d 738, 1992 Wash. LEXIS 227

• Court: Washington Supreme Court
• Decided: October 1, 1992
• Docket: 58459-1
• Status: Published

Opinions

Utter, J.

The Washington Economic Development Finance Authority (hereafter the Authority or WEDFA) brought this original action in this court to obtain a writ of mandamus directed to State Treasurer Daniel K. Grimm, in his capacity as the Authority's secretary. It now seeks to compel Treasurer Grimm to sign a resolution allowing the issuance of bonds. The fundamental issue in this case is whether article 32 of the Washington State Constitution prohibits the issuance of these bonds. We hold that article 32 does not apply to these bonds. Therefore, a writ of mandamus is issued requiring State Treasurer, Daniel K. Grimm, to sign Resolution 91-1 so the Authority may issue these bonds.

I

Background

In 1989 the Legislature passed the Washington economic development finance authority act, which has been codified as RCW 43.163. The Legislature, recognizing the important link between the availability of financing and economic development, created the Authority so it could develop new ways to improve access to capital for small and medium sized businesses. RCW 43.163.005.

The legislation authorizes the Authority to issue non-recourse revenue bonds. RCW 43.163.130. A nonrecourse bond is a bond, the repayment of which is made solely from revenue derived from the project being funded or other private sources. They are not repaid from any public funds. The legislation creating the Authority expressly provides that bonds issued by the Authority do not create an obligation for the State or its subdivisions. RCW 43.163.140(1). Proceeds of the bonds issued by the Authority are not public moneys. RCW 43.163.140(2). They are trust funds which are kept segregated from public funds. RCW 43.163.140(2); .160. The bonds at issue here conform to these statutory requirements.

The Legislature authorized the Authority to create a loan pooling program as one method of improving small businesses' access to capital. RCW 43.163.050. Under such a program, the Authority may pool loans made or guaranteed through programs administered by the federal small business or farmers home administrations. RCW 43.163.050. Pursuant to this provision, the Authority adopted Resolution 91-1, approving the issuance of bonds and for using the proceeds to pinchase Small Business Administration 504 first deed of trust loans (hereafter SBA 504 loans). The Authority's loan pooling program would create a secondary market for SBA 504 loans. Resolution 91-1 authorizes $5 million in taxable revenue bonds.

Treasurer Grimm, acting as secretary of the Authority, refused to sign the resolution. RCW 43.163.020 sets forth the composition of the Authority and provides that the State Treasurer shall be a member. Pursuant to RCW 43.163.100, the Authority adopted rules on an emergency basis on August 16, 1991. Under those rules, Treasurer Grimm was designated as secretary of the Authority. Grimm refused to sign the resolution based upon advice of counsel that the Authority's issuance of taxable bonds would violate Const. art. 32, § 1(c). The Authority's rules provide that resolutions must be signed by its secretary. See Agreed Statement of Facts, exhibit B; Hie Authority's Rules. Therefore, Treasurer Grimm's refusal to sign has prevented the issuance of these bonds. The Authority has sought, and we now grant, a writ of mandamus compelling Treasurer Grimm to sign Resolution 91-1.

II

Mandamus

Treasurer Grimm correctly notes that writs of mandamus are often only granted where a petitioner's right to relief is "a right clearly founded in or granted by law." See State ex rel. Todd v. Yelle, 7 Wn.2d 443, 449, 110 P.2d 162 (1941); R/L Assocs., Inc. v. Seattle, 61 Wn. App. 670, 811 P.2d 971, review denied, 117 Wn.2d 1024, 820 P.2d 510 (1991). Recently, however, in Higher Educ. Facilities Auth. v. Gardner, 103 Wn.2d 838, 843, 699 P.2d 1240 (1985), we did not place such a burden on a petitioner seeking a writ of mandamus to obtain signatures for resolutions authorizing the issuance of bonds.¹ Instead, we entertained a presumption of constitutionality, stating that "[A] party challenging the constitutionality of a statute must demonstrate beyond a reasonable doubt that the statute is invalid and must rebut the presumption that all legally necessary facts exist." 103 Wn.2d at 843; see also Spitzer, An Analytical View of Recent "Lending of Credit" Decisions in Washington State, 8 U. Puget Sound L. Rev. 195, 197 (1984-1985) (advocating a presumption that proposed actions by legislative bodies are constitutional and placing the burden on those challenging the constitutionality of a proposed governmental action). We need not, however, decide which party should bear the burden in this case. Under either test, we conclude that the issuance of these bonds does not violate Const. art. 32.

III

Article 32 Does Not Apply to These Bonds Because They Are Not for Industrial Development

The voters adopted article 32 as an amendment to our state constitution on November 3, 1981. It provides in pertinent part:

The legislature may enact laws authorizing the state, counties, cities, towns, port districts, or public corporations established thereby to issue nonrecourse revenue bonds or other nonrecourse revenue obligations and to apply the proceeds thereof in the manner and for the purposes heretofore or hereafter authorized by law, subject to the following limitations:

(c) Nonrecourse revenue bonds or other nonrecourse revenue obligations issued pursuant to this section may be issued only if the issuer certifies that it reasonably believes that the interest paid on the bonds or obligations will be exempt from income taxation by the federal government.

(d) Nonrecourse revenue bonds or other nonrecourse revenue obligations may only be used to finance industrial development projects as defined in legislation.

. . . This section is supplemental to and shall not be construed as a repeal of or limitation on any other authority lawfully exercisable under the Constitution and laws of this state, including, among others, any existing authority to issue revenue bonds.

Const. art. 32, § 1. Treasurer Grimm argues that because these bonds are industrial development bonds within the meaning of Const. art. 32, § 1(d), they must also comply with the tax exempt requirement of Const. art. 32, § 1(c).

Treasurer Grimm, however, erroneously concludes that the bonds at issue in this case are industrial development bonds. Article 32 does not apply to the bonds in this case for the simple reason that they are not industrial development bonds issued pursuant to RCW 39.84. In fact, the Authority does not have authority to issue industrial development bonds pursuant to RCW 39.84. Instead, it has authority to issue nonrecourse bonds pursuant to RCW 43.163. Because Const. art. 32 does not apply, these bonds need not be tax exempt.

Const. art. 32 was never meant to authorize or limit the creation of a secondary market or a loan pooling program. Tb interpret a constitutional amendment, we "examine the legislative history and materials in the official voters pamphlet." Tacoma v. Taxpayers of Tacoma, 108 Wn.2d 679, 687, 743 P.2d 793 (1987). There is nothing in the voters pamphlet or the legislative history to suggest Const. art. 32 should apply to the Authority’s 504 Loan Pooling Program. Neither the Legislature nor the voters of this state contemplated this kind of program when Const. art. 32 was adopted. Const. art. 32 was meant only to apply to non-recourse industrial development bonds issued pursuant to RCW 39.84. The bonds in this case are altogether different.

Moreover, it would require a stretch of the imagination even to characterize these nonrecourse bonds as being for industrial development. The purpose of these bonds is to improve small businesses' access to capital. The Authority has approved a resolution authorizing the issuance of bonds and the use of the proceeds of the bonds to purchase SBA 504 first deed of trust loans. It wants to create a loan pooling program authorized under RCW 43.163.050, for the purpose of facilitating small businesses' access to capital. The purpose of the WEDFA 504 Loan Pooling Program is described as:

The 504 Loan Pooling Program has been created by the Washington Economic Development Finance Authority (the "Authority" or "WEDFA") to provide for secondary market funding of 504 first mortgages. Secondary market funding would provide non-bank capital sources for improved loan terms to borrowers, a source of liquidity for the first mortgage lenders (banks) inducing more bank participation and increasing accessibility of the program to borrowers, and greater economic development with increased activity in the SBA 504 Loan Program through the direct job creation/retention eligibility requirement of the SBA 504 Loan Program.

Agreed Statement of Facts app. F; WEDFA 504 Loan Pooling Program, at 4. In other words, the purpose is to create a secondary market to improve small businesses' access to capital. The bonds will help free up the capital of banks holding SBA 504 first mortgages. With more capital to lend, these banks can expand their SBA 504 programs and lend more money to small businesses. In addition, the mere presence of a secondary market for SBA 504 loans will encourage more banks to lend under that program. This should create greater competition among lenders, which in turn will improve the accessibility, rates and terms for small businesses seeking capital.

Admittedly, some of the SBA 504 first mortgage loans that will be purchased under the program were originally made for projects which would fall within the definition of "industrial development facilities" provided in RCW 39.84.020(6). Agreed Statement of Facts, at 24. However, this does not magically make these bonds industrial development bonds. Those owing money on the SBA first mortgage loans will not benefit from the loan pooling program. The true benefit of the program is the improvement of our capital markets so that small businesses can more readily obtain financing at reasonable rates and terms.

Therefore, the strictures of Const. art. 32 do not apply to these bonds. They are issued under RCW 43.163 rather than RCW 39.84. They serve a purpose not even contemplated when Const. art. 32 was adopted: the creation of a secondary market. Finally, these bonds are not being "used to finance industrial development projects". Const. art. 32, § 1(d). They are being used to create a secondary market to free up capital and encourage banks to make more SBA 504 loans.

IV

Const. art. 32 Applies Only to Bonds Issued Under RCW 39.84

Const. art. 32 was proposed and passed to provide an exception to the lending of credit prohibitions under Const. art. 8. At the time Const. art. 32 and its companion legislation, RCW 39.84, were passed, it was believed that non-recourse revenue bonds issued to finance industrial development projects would be a constitutionally prohibited lending of credit under Port of Longview v. Taxpayers of Port of Longview, 85 Wn.2d 216, 225, 533 P.2d 128 (1974). See Agreed Statement of Facts, exhibit 1; Official Voters Pamphlet 13 (Nov. 3, 1981) (hereafter Voters Pamphlet). Therefore, Const. art. 32 was proposed and adopted to insure that nonrecourse industrial development bonds issued pursuant to RCW 39.84 would be valid. Its purpose was simple — to permit issuances of nonrecourse bonds that were otherwise thought to be unconstitutional.² By its own terms Const. art. 32 was not meant to limit any other types of bonds that could be legally issued.

Both the Voters Pamphlet and legislative history support the notion that Const. art. 32 was proposed and adopted so that its companion legislation, RCW 39.84, would not violate lending of credit prohibitions.

The Voters Pamphlet includes the text of Laws of 1981, ch. 300, later codified as RCW 39.84. Voters Pamphlet, at 19-22. It refers to RCW 39.84 as the "implementing statutes" for the amendment and states that the text of the law was included "to facilitate the voter's understanding of the effect of the adoption of that proposed amendment to the state constitution." Voters Pamphlet, at 19. In essence, Const. art. 32 and its implementing statute were presented to voters as a single package. The Voters Pamphlet also stated that such bonds were currently prohibited under the Washington State Constitution, an oblique reference to the Port of Long-view decision. Voters Pamphlet, at 13.

In addition, the legislative history of both Substitute House Joint Resolution 7, which became Const. art. 32, and its implementing legislation, RCW 39.84, indicate the close tie between them. House Journal, 47th Legislature (1981), at 812; Senate Journal, 47th Legislature (1981), at 1355.

The text of Const. art. 32 demonstrates not only the close tie between it and its implementing legislation, RCW 39.84. It also indicates any limitations were meant to apply only to bonds issued pursuant to RCW 39.84. Const. art. 32, § 1(d) provides that "Nonrecourse revenue bonds or other non-recourse revenue obligations may only be used to finance industrial development projects as defined in legislation." Const. art. 32, § 1(d). That definition is contained, not surprisingly, in RCW 39.84.020(6). In addition, Const. art. 32 requires that the Legislature can only expand that definition if a three-fifths majority approves. This demonstrates Const. art. 32 is closely linked to RCW 39.84. Any analysis of the application of Const. art. 32 should begin by recognizing this relation.

More importantly, the limitations contained in Const. art. 32, § 1(a), (b), (c) and (e) all refer to "[n]onrecourse revenue bonds . . . issued pursuant to this section". (Italics ours.) The phrase "bonds .. . issued pursuant to this section" means bonds issued under the authority of Const. art. 32, i.e., under the implementing statute, RCW 39.84. If the limitations in Const. art. 32 were meant to apply to any nonrecourse bonds issued under any authority, as Treasurer Grimm contends, the phrase "issued pursuant to this section" would be superfluous. We have, however, consistently stated that statutes or constitutional provisions should be construed so that no clause, sentence or word shall be superfluous, void, or insignificant. Washington Water Power Co. v. Graybar Elec. Co., 112 Wn.2d 847, 859, 774 P.2d 1199, 779 P.2d 697 (1989); Group Health Coop. v. King Cy. Med. Soc'y, 39 Wn.2d 586, 637, 237 P.2d 737 (1951).

Treasurer Grimm argues that Const. art. 32 not only provides an exception to the lending of credit prohibition, but also places limits on all industrial nonrecourse revenue bonds.³ He argues that had the Legislature intended simply to provide an exception to the lending of credit prohibition, it could have proposed a brief amendment. For example, Const. art. 8, § 8, which briefly provides that promotional port expenditures are not a lending of credit, was proposed and adopted in response to our holding in State ex rel. O'Connell v. Port of Seattle, 65 Wn.2d 801, 399 P.2d 623 (1965).

Treasurer Grimm's argument is unpersuasive for several reasons. First, it ignores the fact that Const. art. 32 was passed specifically so the legislative program contained in RCW 39.84 would not violate the prohibition against lending of credit. Given that fact, it is not surprising that elements of the statutory framework were adopted as part of the text of the constitutional amendment.

More importantly, unless we view Const. art. 32 as having the very limited function of allowing bonds to be legally issued under RCW 39.84, we would jeopardize existing bonds we have already approved. The text of Const. art. 32 places several limits on nonrecourse bonds, including that they be for industrial development and be tax exempt. Const. art. 32, § 1(c), (d). Treasurer Grimm and the dissent would have us read Const. art. 32 as requiring that all nonrecourse industrial development bonds be tax exempt. If we adopted such an approach, the converse should also be true: Const. art. 32 should require that all nonrecourse tax exempt bonds be industrial development bonds. We have, however, approved the issuance of nonrecourse tax exempt bonds which were not for industrial development. Higher Educ. Facilities Auth. v. Gardner, 103 Wn.2d 838, 699 P.2d 1240 (1985) (holding that tax exempt nonrecourse bonds to enable higher educational institutions to build and improve facilities did not violate lending of. credit prohibitions). Thus, Treasurer Grimm and the dissent urge us to adopt a position that would either draw into question the constitutional validity of existing bonds, or create a logical inconsistency we are not prepared to accept.

Therefore, Const. art. 32 and RCW 39.84 must be viewed as a single package approved by the voters. The limitations contained in Const. art. 32 only apply to nonrecourse industrial development bonds issued pursuant to RCW 39.84. In addition, the final clause of Const. art. 32, which expressly disavows any intent to repeal or limit any other authority, demonstrates the limitations of Const. art. 32 were meant to apply only to bonds issued under RCW 39.84.

V

The Express Disavowal of Repeal or Limitation in Const. art. 32

The final clause of Const. art. 32 reveals both its narrow scope and the fact that its limitations were meant to apply only to bonds issued pursuant to its implementing statute, RCW 39.84:

This section is supplemental to and shall not be construed as a repeal of or limitation on any other authority lawfully exercisable under the Constitution and laws of this state, including, among others, any existing authority to issue revenue bonds.

Const. art. 32, § 1(e). The bonds in this case are being issued pursuant to "other authority". They are being issued pursuant to RCW 43.163. Because they are nonrecourse bonds (i.e., the State is not financially obligated on the bonds) they need not rely on Const. art. 32 for their constitutional validity. Therefore, these bonds, issued pursuant to "other authority" should not be subject to the restrictions in Const. art. 32.

Treasurer Grimm and the dissent fail in their attempt to explain away this language. They focus unduly on the word "existing". As a result, they argue the entire clause only disavows conflict with law existing at the time of ratification. Therefore, they conclude that the restrictions in Const. art. 32 apply to all nonrecourse bonds, because we had not yet recognized their constitutional validity in Higher Educ. Facilities Auth. or State Housing Fin. Comm'n v. O'Brien, 100 Wn.2d 491, 671 P.2d 247 (1983).

This narrow interpretation of the final clause of Const. art. 32 is irreconcilable with its plain language. We will not construe or interpret a constitutional provision that is plain or unambiguous. Anderson v. Chapman, 86 Wn.2d 189, 191, 543 P.2d 229 (1975). The plain language of the amendment disavows a "repeal of or limitation on any other authority... including, among others, any existing authority to issue revenue bonds." (Italics ours.) Const. art. 32. The language of the amendment indicates that "existing authority" is only a subset of "other authority". "[O]ther authority" must be read as authority that existed in the past, present or future. Therefore, by its own language the strictures of Const. art. 32 were not meant to apply to bonds issued under authority other than itself, regardless of when that authority came into being.⁴

Treasurer Grimm also emphasizes that the final clause of Const. art. 32 only disavows interference with "any other authority lawfully exercisable". (Italics ours.) His argument appears to be that the disavowal of repeal or limitation does not apply to these bonds because the constitutionality of certain types of nonrecourse financing was unsettled at the time Const. art. 32 was adopted. This position, however, ignores the fact that cases approving bond issuances subsequent to the adoption of Const. art. 32 did not create new authority. The authority already existed. We simply recognized that properly structured issuances would not violate the lending of credit prohibition in our state constitution. We did not create any new authority.

Treasurer Grimm dismisses the interpretation we advance, claiming that the article does not contain a "self-destruct mechanism". Brief of Respondent, at 33. Our interpretation does not make the effect of Const. art. 32 disappear. The limitations contained in Const. art. 32 still apply to industrial development bonds issued pursuant to its implementing statute, RCW 39.84. They do not, however, apply to other types of bonds issued pursuant to other authority, as is the case here.⁵

VI

Conclusion

Const. art. 32 does not apply to the bonds the Authority wants to issue. The text of Const. art. 32, the Voters Pamphlet, and the legislative history indicate the narrow purpose of Const. art. 32. It was simply designed to avoid a perceived lending of credit problem with nonrecourse bonds. It was passed for the sole purpose of providing constitutional authority for the bond program created by its implementing statute, RCW 39.84. By its own language, Const. art. 32 states that it was not intended to limit bonds issued under any other authority.

The bonds at issue in this case are not issued pursuant to Const. art. 32 or its implementing statute, RCW 39.48. In fact, they are not even industrial development bonds. These bonds are designed for a very different purpose: improving small businesses' access to capital through the creation of a secondary market for SBA 504 loans. Bonds such as these were neither contemplated nor foreseen at the time of the adoption of Const. art. 32. The restrictions in Const. art. 32 do not apply to them. Therefore, we grant the Authority's request for a writ of mandamus to compel Treasurer Grimm to sign Resolution 91-1 so that the Authority may issue these bonds.

Brachtenbach, Dolliver, Smith, and Johnson, JJ., concur.

1 The dissent has failed to show how Higher Educ. Facilities Auth. differs from this case. There too, the petitioners sought a writ of mandamus to compel state officials to sign specific bond resolutions. Nonetheless, in that case we did not impose the onerous burden which the dissent now urges.

2 We have subsequently held that properly structured issuances of non-recourse bonds (i.e., those where the State has no financial obligation) do not violate the lending of credit prohibition. Higher Educ. Facilities Auth. v. Gardner, 103 Wn.2d 838, 846-48, 699 P.2d 1240 (1985); Washington State Housing Fin. Comm'n v. O'Brien, 100 Wn.2d 491, 671 P.2d 247 (1983). Therefore, the nonrecourse bonds at issue here do not violate the state constitutional prohibitions against lending of credit.

3 The dissent erroneously concludes that we have adopted the position that article 32 requires that all nonrecourse bonds be both industrial and tax exempt. Dissent, at 758. On the contrary, this is the inevitable, unsettling, result of the dissent's own reasoning.

4 The dissent would require that all bonds, no matter what authority they are issued pursuant to, comply with the provisions of Const. art. 32. Dissent, at 760-61. This would negate the entire effect of the final clause disavowing any repeal or limitation. As noted before, we will not construe a constitutional provision in a way that makes a clause, sentence or word superfluous, void or insignificant. Washington Water Power Co. v. Graybar Elec. Co., 112 Wn.2d 847, 859, 774 P.2d 1199, 779 P.2d 697 (1989).

5 An examination of our decision in Tacoma v. Taxpayers of Tacoma, 108 Wn.2d 679, 743 P.2d 793 (1987) is also instructive. There we upheld a Tacoma ordinance authorizing the issuance of electric revenue bonds and other funds to invest in energy conservation measures. We rejected the argument that article 8, section 10 of the Washington State Constitution and its implementing statute, RCW 35.92.360, were the sole means the State or its subdivisions could employ to promote energy conservation. Instead, we stated that Const. art. 8, § 10 and RCW 35.92.360 applied only to loan financing programs to promote conservation. We stated that Tacoma's effort to reacquire electricity differed significantly and was independently authorized under RCW 35.92.050. 108 Wn.2d at 691. Thus, we recognized municipal authorities have choices for pursuing conservation. 108 Wn.2d at 691.

Similarly, when the State is seeking to improve small businesses' access to capital, it should have a choice between nonrecourse industrial development bonds issued under RCW 39.48 and the creation of a loan pooling program pursuant to RCW 43.163.050. In addition, unlike Const. art. 8, § 10, which was considered in Tacoma, Const. art. 32 contains a clause expressly disavowing any intent to repeal or limit any other authority. Therefore, Const. art. 32 should not apply to the bonds in this case.