Heatherly v. State

WYNN, Judge.

To pass constitutional muster, revenue bills must, inter alia, be “read three several times in each house of the General Assembly and passed three several readings, which readings shall have been on three different days.”1 Here, Plaintiffs argue that the trial court erred in holding that the North Carolina Education Lottery Act is not a revenue bill and thus was not required to be enacted under the mandated constitutional procedural requirements. Because we conclude that the Lottery Act was not a bill “enacted to raise money on the credit of the State, or to pledge the faith of the State directly or indirectly for the payment of any debt, or to impose any tax upon the people of the State,”2 we agree with the trial court that the Lottery Act does not constitute a revenue bill.

In December 2005, Plaintiffs Charles Heatherly, Thomas Spampinato, W. Edward Goodall, Jr., Paul Stam, the Wake County Taxpayers Association, and the North Carolina Family Policy Council, brought an action under the Uniform Declaratory Judgment Act challenging the constitutionality of the Lottery Act. Plaintiffs allege that the Lottery Act violates Article II, Section 23 of the North Carolina Constitution, which requires that all revenue bills meet certain constitutional mandates in their enactment into law. Indeed, all parties to the lawsuit agree that the Lottery Act was not passed in *215compliance with those requirements, outlined in Article II, Section 23 of the North Carolina Constitution, as the Lottery Act did not receive the requisite three readings on three separate days, nor were the yeas and nays properly entered. As such, the lawsuit filed by Plaintiffs turns on the question of whether the Lottery Act is, indeed, a revenue bill, such that its passage must comply with the provisions of Article II, Section 23 of the North Carolina Constitution. Plaintiffs further contend that the Lottery Act violates Article V, Section 7 of the North Carolina Constitution, which prohibits the drawing of money from the State treasury except in consequence of appropriations made by law.

On 30 August 2005, the General Assembly passed the Lottery Act providing for the creation of the North Carolina State Lottery Commission (“the Lottery Commission”):

There is created the North Carolina State Lottery Commission to establish and oversee the operation of a Lottery. The Commission shall be located in the Department of Commerce for budgetary purposes only; otherwise, the Commission shall be an independent, self-supporting, and revenue-raising agency of the State. The Commission shall reimburse other governmental entities that provide services to the Commission.

N.C. Gen. Stat. § 18C-110 (2005). Governor Michael Easley signed the Lottery Act into law the following day. Under the Lottery Act, the State provided ten million dollars to the Lottery Commission for start-up costs, and the agency began moving forward with hiring employees, entering into contracts, and engaging in other activities necessary for the establishment of a lottery.

In addition to the creation of the Lottery Commission, the Lottery Act established the North Carolina State Lottery Fund as an enterprise fund within the state treasury, “appropriated to the Commission and may be expended without further action of the General Assembly for the purposes of operating the Commission and the lottery games.” Id. § 18C-160. Moreover, the Lottery Act specified the types of revenue income to be deposited into the North Carolina State Lottery' Fund: “(1) [a] 11 proceeds from the sale of lottery tickets or shares [;] (2) [t]he funds for initial start-up costs provided by the State[;] (3) [a]ll other funds credited or appropriated to the Commission from any source[; and] (4) [i]nterest earned by the North Carolina State Lottery Fund.” Id. § 18C-161.

*216The Lottery Act earmarked the proceeds of the lottery to fund education-related projects. Specifically, the Lottery Act provides for total annual revenues from the lottery to be allocated in the following manner, “[t]o the extent practicable”: at least fifty percent for prizes to the general public; at least thirty-five percent for the Education Lottery Fund; no more than eight percent for lottery expenses; and no more than seven percent for compensation paid to lottery game retailers. Id. § 18C-162(a). The net revenues from the North Carolina State Lottery Fund “shall be transferred periodically to the- Education Lottery Fund, which shall be created in the State treasury.” Id. § 18C-164(a). In turn, the remaining net revenue of the Education Lottery Fund is designated to support reduction of class size in early grades, to the Public School Building Capital Fund, and to the State Educational Assistance Authority to fund college and university scholarships. Id. § 18C-164(c). Additionally, the Lottery Act states that, from the Education Lottery Fund, “the Commission shall transfer a sum equal to five percent (5%) of the net revenue of the prior year to the Education Lottery Reserve Fund[,]” which will be used to make up for any shortfall between actual net revenues and the amount of funds appropriated by the General Assembly for projects in a given year. Id. § 18C-164(b), (d), (e).

After the filing of the initial complaint, Plaintiff-Intervenors Willis Williams and the North Carolina Common Sense Foundation moved to intervene on 21 December 2005. On 31 December 2005, Plaintiffs moved for a preliminary injunction to enjoin Defendants from proceeding with implementation of the Lottery Act. Defendants thereafter filed a motion to dismiss on 18 January 2006. On 13 February 2006, the trial court allowed the motion to intervene and heard Plaintiffs and Defendants on the other two motions. On 15 February 2006, the trial court denied the motion for preliminary injunction and granted Defendants’ motion to dismiss for failure to state a claim upon which relief may be granted as to Plaintiffs’ two counts alleging that the Lottery Act unconstitutionally created an express tax on residents and non-residents, respectively.

Following a final hearing, the trial court entered an order on 23 March 2006, dismissing Plaintiffs’ claims alleging-.that the Lottery Act unconstitutionally raises money on the credit of the State for the payment of lottery winnings, pledges the faith of the State for the payment of a debt, and creates an implicit tax, for failure to state claims upon which relief could be granted. The trial court also dismissed all of the claims asserted by the corporate Plaintiffs, namely, Wake *217County Taxpayers Association, the North Carolina Family Policy Council, and the North Carolina Common Sense Foundation, for lack of standing, and assessed the costs of litigation to Plaintiffs.

Plaintiffs appeal, arguing that the trial court erred by (I) holding that the Lottery Act was not a revenue bill and thus, did not constitute legislation within the purview and mandates of Article II, Section 23 of the North Carolina Constitution; (II) holding that the corporate plaintiffs Wake County Taxpayers Association, the North Carolina Family Policy Council, and the North Carolina Common Sense Foundation lácked standing to prosecute their claims; and (III) ordering Plaintiffs and Plaintiff-Intervenors to pay the costs of this litigation.

I.

Plaintiffs argue that the trial court erred by holding that the Lottery Act was not a revenue bill, such that it was not required to comply with the requirements of Article II, Section 23 of the North Carolina Constitution. Plaintiffs contend that the Lottery Act’s provisions meet all three fiscal conditions to be considered a revenue bill under the state Constitution. We disagree.

The North Carolina Constitution defines revenue bills as those “enacted to raise money on the credit of the State, or to pledge the faith of the State directly or indirectly for the payment of any debt, or to impose any tax upon the people of the State, or to allow the counties, cities, or towns to do so[.]” N.C. Const, art. II, § 23. To pass constitutional muster, such bills must meet certain procedural requirements, namely:

[Revenue bills] shall have been read three several times in each house of the General Assembly and passed three several readings, which readings shall have been on three different days, and shall have been agreed to by each house respectively, and unless the yeas and nays on the second and third readings of the bill shall have been entered on the journal.

Id. Again, all parties to this lawsuit agree that the Lottery Act did not meet these procedural requirements. We therefore turn to the question of whether the provisions of the Lottery Act satisfy the fiscal conditions to define the legislation as a revenue bill.

*218 Raises money on the credit of the State and Pledges the faith of the State for the payment of a debt

Plaintiffs contend that the Lottery Act raises money on the credit of the State and pledges the faith of the State for the payment of a debt because lottery winners are entitled to payment of their respective winnings from the State. We disagree.

First, we note that the Lottery Act explicitly states that “[a]t least fifty percent (50%) of the total annual revenues [of the North Carolina State Lottery Fund] . . . shall be returned to the public in the form of prizes.” N.C. Gen. Stat. § 18C-162(a). The Lottery Act also established the North Carolina State Lottery Fund as an enterprise fund “appropriated to the [Lottery] Commission and may be expended without further action of the General Assembly[,]” and defined the Lottery Commission as an “independent, self-supporting, and revenue-raising agencyf.]” Id. §§ 18C-110, 160. As such, the Lottery Act by its terms establishes that the Lottery Commission, not the State, is responsible for payment of prizes and debts incurred in the course of the administration of the lottery.

Nevertheless, Plaintiffs assert that the General Assembly should have limited the liability to pay lottery prizes to the Lottery Commission and expressly absolved the State from paying lottery winners. Plaintiffs state in their brief that “[a]dmittedly, the Lottery Act specifies that lottery winners are to be paid from lottery revenues ..., but that legislative directive is irrelevant.” We find this argument to be without merit, as the legislative directive would be determinative of any direct action by a lottery winner to recover from the State rather than the Lottery Commission and would reflect that the General Assembly created a dedicated revenue stream, i.e., the sale of lottery tickets by the Lottery Commission, to pay prize winners, as well as a limitation of liability to those revenues.

Further, we see no reason why the sale of lottery tickets should be considered to be the functional equivalent of the issuance of state bonds. With the latter, a consumer chooses to make an investment, essentially loaning money to the State for the financing of certain projects, in exchange for the guarantee that the loan will be repaid with interest, either from the treasury (in the case of general obligation bonds) or from the dedicated revenue stream in question (in the case of revenue bonds). However, with the lottery, a consumer chooses to purchase a ticket that promises only the possibility of winning a cash prize in return. There is no guarantee of payment or any *219investment made; the lottery ticket is a simple purchased good that represents the possibility of payment. As such, the State is not “pledging” its faith or credit for a debt it definitively owes. Accordingly, the two are materially different and should not be treated in the same manner under the law.

Moreover, even assuming arguendo that a lottery ticket is the functional equivalent of a state bond, tickets would certainly be considered revenue bonds, which do not pledge the State’s credit, rather than general obligation bonds, which do. See, e.g., North Carolina State Ports Auth. v. First-Citizens Bank & Trust Co., 242 N.C. 416, 424, 88 S.E.2d 109, 114 (1955) (“[S]uch revenue bonds do not constitute ‘debts’ of the State agency by which they are issued.”) (citing Brockenbrough v. Board of Water Comm’rs, 134 N.C. 1, 46 S.E. 28 (1903) and Williamson v. High Point, 213 N.C. 96, 195 S.E. 90 (1938)). A revenue bond is distinguished from a general obligation bond because it has both an exclusive, dedicated revenue stream and a statutory limitation of liability to that revenue stream. See generally North Carolina Turnpike Auth. v. Pine Island, Inc., 265 N.C. 109, 117, 143 S.E.2d 319, 325 (1965) (holding that a bond issued for the Turnpike Authority was a revenue bond, not a general obligation bond, because the statute specified a dedicated revenue stream and a limitation of liability). As noted above, the Lottery Act likewise meets both those criteria.

Our Supreme Court has further remarked that, when considering if the State’s faith and credit has been pledged, “[w]hat is being pledged as security is the constitutionally significant factor.” Wayne County Citizens Ass’n for Better Tax Control v. Wayne County Bd. of Comm’rs, 328 N.C. 24, 31, 399 S.E.2d 311, 316 (1991). Although that case involved a comparison between general obligation bonds, “wherein the taxing power of the governmental unit is pledged,” and installment purchase contracts, where “only the property improved is pledged[,]” we find instructive the Court’s observation that “[t]he possibility that appropriations which might include income from tax revenues will be used to repay the indebtedness under the contract is not a constitutionally significant factor.” Id. In the instant case, the statute does not even pledge income from tax revenues; rather, it pledges only the revenues raised by the sale of lottery tickets, which is not constitutionally significant.

We observe, too, that the General Assembly established the Education Lottery Reserve Fund to make up for shortfalls. Even more significantly, the number and amount of prizes are determined by *220ticket sales and the amount of revenue generated; as such, and given that prizes are limited to only fifty percent of revenues, it is difficult to envision a scenario in which the prizes claimed by winners would ever outstrip the capacity of the Lottery Commission to pay. Moreover, while the dissent would argue that the phrase “[t]o the extent practicable” in N.C. Gen. Stat. § 18C-162(a)(l) does not limit the State’s liability, we believe the General Assembly’s insertion of this phrase was deliberate and should be taken according to its plain meaning, which is to define and limit the scope of revenue allocation and liability.3

Because the Lottery Act neither pledges the faith of the State for payment of a debt nor attempts to raise money on the credit of the State, these assignments of error are overruled.

Creates an implicit tax

According to Plaintiffs, the Lottery Act is “an attempt... to raise revenue to defray the necessary governmental expenses of providing an adequate educational opportunity for all of North Carolina’s children,” as required by the State Constitution.4 While we agree that the lottery is'unquestionably intended and designed to raise revenue, we find that this purpose does not transform such revenue into a tax.

We have previously defined a tax as “a pecuniary charge or levy enforced by government to raise money for the maintenance and expense of government[.]” North Carolina Assoc. of ABC Bds. v. Hunt, 76 N.C. App. 290, 292, 332 S.E.2d 693, 694 (emphasis added), *221disc. review denied, 314 N.C. 667, 336 S.E.2d 400 (1985).5 More specifically, “a tax [i]s ‘a charge’ levied and collected as a contribution to the maintenance of the general government... [It is] imposed upon the citizens in common at regularly recurring periods for the purpose of providing a continuous revenue.” State ex rel. Utilities Comm’n v. Carolina Util. Customers Ass’n, 336 N.C. 657, 683, 446 S.E.2d 332, 347 (1994) (citations and quotation omitted) (alterations in original) (emphasis added).

Nevertheless, as noted by our Supreme Court, raising revenue alone is insufficient to meet the definition of a revenue bill: “Revenue bills, as defined by law, are those that levy taxes in the strict sense of the word and are not bills for other purposes which may incidentally create revenue.” Hart v. Board of Comm’rs, 192 N.C. 161, 164, 134 S.E. 403, 404 (1926) (citations omitted) (emphasis added); see also Carolina Util. Customers Ass’n, 336 N.C. at 683, 446 S.E.2d at 347 (noting that the collection of funds is not a tax if it “is not a charge levied upon the general citizenry for the general maintenance of the government” (emphasis added)). As such, our Supreme Court has also held that, “Tolls are not taxes. A person uses a toll road at his option; if he does not use it, he pays no toll. ‘Taxes are levied for the support of government, and their amount is regulated by its necessities.’ Pine Island, 265 N.C. at 116-17, 143 S.E.2d at 325 (quoting Ennis v. State Highway Comm’n, 231 Ind. 311, 323, 108 N.E.2d 687, 693 (1952)) (emphasis added).

For purposes of defining what constitutes a tax, we find the payment of a toll to be analogous to the purchase of a lottery ticket. In both instances, an individual chooses to engage in a purely voluntary activity by paying a fee; in neither situation can the government be said to be “levying” or “enforcing” a charge against citizens. Rather, unlike the compulsory nature of a tax, a toll and participation in the lottery are activities freely undertaken by citizens of their own volition.

*222Moreover, unlike a sales tax, the lottery is not imposed on consumers as part of each transaction they undertake with businesses in the State; instead, the Lottery Commission itself is the business selling the product, a lottery ticket, directly to the consumer citizen, who chooses to pay for that product. That citizen — and any other who purchases a ticket — receives the exclusive benefit of the right to a chance of winning the lottery prizes, a benefit that is not conferred upon the general population of the State through the disbursement of state funds. A sales tax, by contrast, is a cost of conducting business in North Carolina and is imposed on all members of the general population; it can hardly be considered to be “voluntary” under any practical definition of the term.

Although the General Assembly openly declared that “the purpose of [the Lottery Act] is to establish a State-operated lottery to generate funds for the public purposes described in this Chapter],]” N.C. Gen. Stat. § 18C-102, namely, the education-related projects outlined in the Act’s provisions, the revenue-raising purpose of the lottery is not the critical factor in determining if the Lottery Act imposes a tax. Indeed, notwithstanding the dissent’s focus on “the purpose behind the fee,” we note that the purpose behind virtually any fee is to raise revenue. Instead, the constitutional language itself answers the question of whether the Lottery Act meets the definition of a revenue bill: “to impose any tax.” (Emphasis added). Given the voluntary nature of participation in the lottery,- we find that the Lottery Act does not “impose any tax upon the people of the State.”

For the foregoing reasons, we conclude that the Lottery Act is not a revenue bill within the meaning of Article II, Section 23 of the North Carolina Constitution. Accordingly, we affirm the trial court’s grant of Defendants’ motion to dismiss.

II.

Next, Plaintiffs argue that the trial court erred by holding that the corporate plaintiffs Wake County Taxpayers Association, the North Carolina Family Policy Council, and the North Carolina Common Sense Foundation lacked standing to prosecute their claims. Because we hold that the trial court did not err in finding that the Lottery Act was not a revenue bill, the question of the corporate plaintiffs’ standing to prosecute their claims is no longer relevant. We therefore decline to consider this issue.

*223III.

Finally, Plaintiffs argue that the trial court erred by ordering Plaintiffs and Plaintiff-intervenors to pay the costs of this litigation. We disagree.

In any proceeding under the Uniform Declaratory Judgment Act, “the court may make such award of costs as may seem equitable and just.” N.C. Gen. Stat. § 1-263 (2005). Such a decision is within a trial court’s discretion. See City of New Bern v. New Bern-Craven County Bd. of Educ., 338 N.C. 430, 444, 450 S.E.2d 735, 743 (1994) (“It was within the trial court’s discretion under this statute to apportion costs as it deemed equitable.”). A trial court may be reversed for abuse of discretion only upon a showing that its actions are manifestly unsupported by reason. Briley v. Farabow, 348 N.C. 537, 547, 501 S.E.2d 649, 656 (1998). Additionally, under longstanding precedent of the North Carolina courts, if nothing in the record appears to the contrary, we will presume that the trial court exercised discretion in awarding such costs. See, e.g., Wooten v. Walters, 110 N.C. 251, 259, 14 S.E. 734, 737 (1892).

In the instant case, the trial court included in the findings and conclusions of the order that Plaintiffs’ allegations were “without merit and should be dismissed,” as well as that “no justification has been shown for the delay in initiating this litigation in December 2005[,]” three and a half months after the passage of the Lottery Act. In that time period, the trial court found that the Lottery Commission was established and “hired employees, entered into contracts, collected application fees, expended large sums of money and engaged in other activities necessary for the establishment of a lottery.” Furthermore, the trial court noted that “the money expended by the Lottery Commission cannot be unspent[,]” “the legal position and reliance of those who entered into contracts with the Lottery Commission cannot be dimissed[,]” “a large number of people (notably the employees of the Lottery Commission) altered their economic, legal and planning positions in reliance on the Lottery Act[,]” and “it is doubtful that lottery employees could return to their former employment.” Perhaps most significantly, the trial court found that “the plaintiffs and plaintiff-intervenors had actual and constructive knowledge of their claims and of the efforts being made to implement the Lottery Act prior to the filing of their respective complaints.”

Although Plaintiffs challenge several of these findings of fact on appeal, they do not dispute the truth of the findings related to the *224establishment and activities of the Lottery Commission; rather, they contend only that the findings are irrelevant to the legal issues at hand. Nevertheless, we conclude that the findings bear directly on the question of whether the trial court employed reason when exercising discretion to assess costs in this matter. Plaintiffs have failed to make any showing that the trial court abused its discretion in awarding costs beyond conclusory statements to that effect.6

In light of the trial court’s findings, as well as the presumption we accord the trial court that it exercised discretion, we decline to find an abuse of discretion in ordering Plaintiffs to bear the costs of this litigation. This assignment of error is overruled.

Affirmed.

Judge HUNTER concurs. Judge CALABRIA dissents by separate opinion.

. N.C. Const, art. II, § 23.

. Id.

. Additionally, although the dissent states that “[t]here is no statutory provision prohibiting prize winners from asserting claims against other State funds in the event of a shortfall of lottery revenues],]” neither is there any provision that would allow a prize winner to assert such a claim against other state funds. The lottery is operated by a separate entity, the Lottery Commission, which does have a dedicated revenue stream — ticket sales — from which it pays prizes. It is unclear under what legal theory a prize winner could bring a successful claim against the State for payment out of other state funds.

. Plaintiffs do not challenge the creation of the lottery system itself as unconstitutional; instead, Plaintiffs contend that distributing at least thirty-five percent of the revenues from the lottery to the Education Lottery Fund constitutes an unconstitutional tax. Since the establishment of a lottery system itself is not challenged by Plaintiffs, an ostensible remedy to Plaintiffs’ tax claim would be to strike that part of the bill directing funds to benefit education. See, e.g., Jackson v. Guilford County Bd. of Adjustment, 275 N.C. 155, 168, 166 S.E.2d 78, 87 (1969) (“It is well settled that if valid provisions of a statute, or ordinance, are separable from invalid provisions therein, so that if the invalid provisions be stricken the remainder can stand alone, the valid portions will be given full effect if that was the legislative intent.” (citations omitted)).

. The dissent refers to the San Juan Cellular test, applied by this Court in State Farm Mutual Auto Insurance Company v. Long, 129 N.C. App. 164, 497 S.E.2d 451 (1998), aff’d per curiam, 350 N.C. 84, 511 S.E.2d 303 (1999), to determine “whether a government charge is a fee or tax.” Our opinion in Long indeed applied the San Juan Cellular test to an insurance regulatory charge to determine if it was a regulatory fee or a tax. Id. at 168-71, 497 S.E.2d at 453-55. However, the charge imposed in Long was compulsory, not voluntary, and was imposed by the Commissioner of Insurance, a state agency, as part of the cost of d’oing insurance business in North Carolina. Id. at 164-65, 497 S.E.2d at 451-52. Moreover, we are not considering here whether the lottery is a regulatory fee or a tax; we are determining only whether it is a tax. As such, the San Juan Cellular test is largely irrelevant to the question at hand.

. We emphasize again that we review the trial court’s imposition of attorneys’ fees for an abuse of discretion. As such, our agreement or disagreement with its decision is immaterial; rather, to reverse its ruling, we must conclude that the trial court had no reasonable basis to support its decision. Although we — and the dissent — may define what is “equitable and just” differently than did the trial court here, we cannot conclude after reviewing the extensive and thorough findings of fact and conclusions of law that the trial court employed no reason in imposing attorneys’ fees on Plaintiffs. Accordingly, the proper application of our standard of review compels that we find no abuse of discretion.