An Analytical View of Recent 'Lending of Credit' Decisions in Washington State
University of Puget Sound Law Review, Vol. 8, No. 2, pp. 195-219 (1985)
25 Pages Posted: 18 Mar 2015
Date Written: 1985
Sections 5 and 7 of article VIII of the Washington State Constitution, concerning gifts or loans by the state and by local governments, have been a source of confusion to the courts and frustration to the sponsors of government programs. Although some have proposed a single formula for applying the provisions, attempts to create a single rule or set of coherent rules for interpreting these problematical provisions are apt to fail. The constitutional language is complex, involving numerous elements, each of which must be present for the prohibition to apply.
Rather than a single formula governing the application of these provisions to every fact pattern, a uniform method of analysis is required. That approach should permit the continued existence of a variety of rules that apply to the different elements of the constitutional clauses in various factual situations. The method proposed in this Article reduces sections 5 and 7 to their component parts, applying appropriate rules to each part while insisting that every part be present before either of the provisions applies.
The key is not to develop new exceptions to avoid the language of article VIII, sections 5 and 7, such as the "risk of loss" theory that has appeared in some cases, but rather to approach the constitutional language strictly and rigorously, presuming from the outset that proposed actions by legislative bodies are constitutional and placing the burden on those who challenge the constitutionality of a proposed government action. The court should then insist that each and every element of the applicable provision be present before a prohibition will apply. This approach, a conservative method relying principally on the text of the constitution itself, ultimately may yield more flexibility in practice than will new formulas that may not be easily applied as new situations arise.
Keywords: state constitutional law, state constitutions, local government law, cities, counties, municipal corporations, public finance, government programs
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