Oklahoma City Urban Renewal Authority v. Medical Technology & Research Authority

SUMMERS, C.J.,

Dissenting, and joined by Justice BOUDREAU,

{ 1 I respectfully dissent from the way the Court has interpreted two provisions of our Constitution, Okla. Const. Art. 10 §§ 6C and 26. The Court states that § 6C was not intended to affect other constitutional provisions, and does not impact or alter the debt limitations of Art. 10 § 26. I disagree. In making such a statement the Court negates the voice of the People that passed § 6C within the last decade. I do not address those issues left unresolved by the Court.

12 Article 10 § 6C has four paragraphs designated "A" through "D".1 Paragraph "A" *692states that the Legislature may give specified political subdivisions the authority to provide relief from taxation as to certain geographical areas. Paragraph "A" also states that the Legislature may determine the time period for the tax relief and set limitations on the relief. Paragraph "B" states that the Legislature may authorize local taxes and fees to be used for "assistance in development financing" to accomplish the purpose of § 6C. Paragraph "C" states that the Legislature may authorize these same political subdivisions to "finance and carry out the development or redevelopment" of the relevant geographical area. Further, the Legislature is given the power to provide for procedures and limitations when political subdivisions exercise this power. Finally, paragraph "D" states that these provisions operate separately or in combination with other powers granted to the political subdivisions.

T3 ° Pursuant to the constitutional authorization of § 6C the Local Development Act became law, 62 O.8.Supp.1992 §§ 850-869. The express purpose of the Act was to implement Art. 10 § 6C: "The Local Development Act shall serve to implement and execute Section 6C of Article X of the Oklahoma Constitution as approved by the voters of the State of Oklahoma on November 6, 1990...." This Act provides for issuing instruments of indebtedness:

"Bonds" means evidences of indebtedness, tax apportionment bonds or other obligations issued by a public entity pursuant to the provisions of Section 863 of this title to finance project costs, pursuant to a project plan, which are to be repaid in whole or part with apportioned increments.

62 0.8.Supp.1992 § 8538).

T4 Project costs pay for the project or the improvement to the geographical area and are defined by statute. 62 O.S.Supp. 1992 § 853(13). Project costs include "financing costs, including interest paid to holders of indebtedness or other obligations issued to pay for project costs and premium paid over the principal amount of the obligations because of the redemption of the maturity...." 62 Project costs obligations _ before 0.$.8upp.1992 § 853(13)(b). also includes fees for bond guarantees, letters of credit, and bond insurance. Id. at § 853(18)(h). Apportioned "increments" refers to a portion of ad valorem taxes. Id. at § 853(13)(h). And of course, tax increment financing may be used to finance project costs. Id. at § 861. Thus, tax revenue is used to pay the bonds, those obligations that are created to obtain the necessary funds to pay for the development or project.

15 The Legislature has stated that a city, town, or county "may exercise any powers necessary to carry out the purpose of this act, including the power to: ... Cause bonds to be issued by public entities as provided by Section 14 of this Act;...." 62 O.S.Supp. 1992 § 854(8), citing, 62 O.S.Supp.1992 § 863. Section 8638 begins by stating that with the approval of the governing body, "a public entity may issue tax apportionment bonds or notes, the proceeds of which may be used to pay project costs pursuant to the plan." Id. at § 868(A). The Court's interpretation of § 6C has placed any bonds issued pursuant to § 6C and the Local Development Act under the limitations of § 26.

T6 The Court examines the language of § 6C and concludes that nothing therein shows an intent to affect another constitutional provision. One problem with this conclusion is that § 6C gives to the Legislature powers in excess of the express limitations of § 26. For example, Art. 10 § 6C states that with regard to the constitutionally allowed exemptions: "The Legislature may set limitations on the cumulative incentives and relief provided pursuant to the provisions of this section, the time period for the exemptions, the geographical area of the jurisdiction covered, the percentage of the tax base of the jurisdiction eligible for the relief programs, and threshold limits of investment credit and jobs created." Okla. Const. Art. 10 § 6C(A). (emphasis added) Section 6C clearly states that the Legislature may determine the limitations on the amount of relief provided and the time the relief is provided. But § 26 states that all indebtedness of a public entity may not exceed five percent (5%) of the valuation of the taxable property *693of the entity indebted.2 The Court has used the general language in § 26 to negate the Legislature's specific power granted by the Constitution in Art. 10 § 6C.

T7 Does § 6C amend § 267 To answer the question we would examine the language actually used in § 6C to determine if it af-feets other constitutional provisions, although they may not be expressly named in the amendment.3 - As we said in In re Initiative Petition No. 259, etc., 1957 OK 167, 316 P.2d 139: "Since the Constitution and statutes make no requirement that a proposed amendment refer to the Constitution or the section to be amended, and since the proposed amendment would, if adopted, amend any section of the Constitution in conflict therewith, we conclude that it is not necessary for the text of the proposed amendment to refer to the Constitution or any section thereof." Id. 1957 OK 167, at ¶ 25, 316 P.2d at 145.

18 Section 6C could be argued to operate as a modification or amendment to Art. 10 § 26. It has long been the rule in this State that where there is inconsistency there is also repeal, or amendment, or modification. Although a repeal or amendment by implication is not favored, an amendment on the same subject matter will suspend inconsistent provisions in a former provision. Adams v. City of Hobart, 1933 OK 646, 166 Okla. 267, 27 P.2d 595, 599; In re Initiative Petition No. 259, etc., 1957 OK 167, ¶ 23, 316 P.2d 139, 144.

19 But we need not answer the question. There is no true inconsistency, and that is because Art. 10 $ 26 starts with the phrase: "[elxcept as herein otherwise provided,. ..." Almost seven decades ago the argument was made to this Court that similar language found in Art. 10 § 9 referred to solely those provisions in that section, and not to Article 10 §§ 26 and 27. Adams v. City of Hobart, 1933 OK 646, 166 Okla. 267, 27 P.2d 595, 597-598. We rejected that interpretation, quoting from an earlier case stating that "except as herein provided" referred to other provisions of the same subject matter in Article 10, namely §§ 26, 27, and 28. Id. 27 P.2d at 598, quoting, Kirk v. School Dist. No. 24, Greer County, 1925 OK 195, 108 Okla. 81, 234 P. 596. I therefore conclude that when the People enact a provision allowing for public financing of construction projects via tax revenues, and amend Article 10 of the Constitution, that amendment should be construed as one of those cireumstances "except as herein provided" specified by Article 10 § 26.

€ 10 We look to the plain language of our Constitution to discern its meaning. Oklhoma Electric Cooperative, Inc. v. Oklahoma Gas & Electric Co., 1999 OK 35, ¶ 7, 982 P.2d 512, 514. Section 6C refers to "development financing", and that "[the Legislature, by law, may authorize any city, town, or county to plan, finance and carry out the development or redevelopment of areas...." This public financing for development of "unproductive, undeveloped, underdeveloped or blighted" areas is in accordance to a plan that is funded from tax revenues and as calculated from a tax base determined by the Legislature via § 6C. And the constitutional amendment expressly states the Legislature may grant our cities "exemptions and other forms of relief from taxation" and may set "the time period for the exemptions [and] the *694percentage of the tax base ... eligible for the relief programs...." § 6C(A).

§11 When rules of construction are used to give meaning to constitutional provisions, those provisions are construed using the usual rules of statutory construction, and a specific provision prevails over one of a general nature. Cowart v. Piper Aircraft Corp., 1983 OK 66, 665 P.2d 315, 317; (rules of construction applied to statutes are applied to constitutional provisions); Tulsa County Deputy Sheriff's F.O.P. v. Board of Cnty. Comer's of Tulsa Cnty., 1988 OK 44, ¶ 13, 959 P.2d 979, 981, (specific statute controls general). Thus, the specific § 6C would control the more general § 26. Further, construction of constitutional provisions in pari materia with each other should be construed together with other statutes on the same subject as part of a coherent system. Cowart v. Piper Aircroft Corp., 1983 OK 66, ¶ 4, 665 P.2d 315, 317. Recognizing § 6C as an exception to § 26 accomplishes this result. If § 6C is not an exception to § 26 then the § 26 limitation of indebtedness to 5% of the valuation of taxable property would control, and the § 6C relief for blighted areas is virtually meaningless.

{12 I would find it remarkable if this Court were to conclude that 5% of the value of property in an undeveloped or economically blighted area was the constitutionally mandated limit to the public indebtedness of a § 6C project, when the Local Development Act pursuant to the Constitution authorizes the increment in tax revenues to be used to generate capital for investment. Members of this Court have recognized that our cities, towns, and counties must "compete on a nation-wide level to attract new industry into their locality", and tax increment and bond financing are important tools when engaging in such competition. State ex rel. Brown v. City of Warr Acres, 1997 OK 117, ¶ 9, 946 P.2d 1140, 1148, (Kauger, C.J., joined by Summers, V.C.J., and Watt, J., concurring). I would not deny our cities the opportunities afforded by Oklahoma Constitution Article 10 § 6C. I respectfully dissent from the opinion of the Court.

. Okla. Const. Art. 10 § 6C:

A. The Legislature, by law, may grant incorporated cities, towns, or counties the ability to provide incentives, exemptions and other forms of relief from taxation for historic preservation, reinvestment, or enterprise areas that are exhibiting economic stagnation or decline. Relief from taxes imposed by other local taxing jurisdictions shall only be allowed by contractual arrangement with the municipal or county governing body. The law shall require public hearings before such relief may be granted and shall provide for the local initiative power and referendum of the people. The Legislature may set limitations on the cumulative incentives and relief provided pursuant to the provisions of this section, the time period for the exemptions, the geographical area of the jurisdiction covered, the percentage of the tax base of the jurisdiction eligible for the relief programs, and threshold limits of investment credit and jobs created.
B. The Legislature, by law, may authorize that the cities, towns, or counties may specifically use local taxes and local fees, in whole or in part, for specific public investments, assistance in development financing, or as a specific revenue source for other public entities in the area in which the improvements take place and may direct the apportionment of the taxes and fees specified in this subsection for the purposes specified in this section. The Legislature may establish for this subsection, the same procedures and limitations authorized in subsection A of this section.
C. - The Legislature, by law, may authorize any city, town, or county to plan, finance and carry out the development or redevelopment of areas determined by the governing body of such city, town, or county to be unproductive, undeveloped, underdeveloped or blighted. The authority of the county shall be limited to the unincorporated areas of such county but any city, town or county may by agreement jointly plan, finance or carry out a development plan with any other public or private entity for one or more development projects within their respective boundaries.
D. - Any city, town, or county may exercise the provisions of this section separately or in combination with powers granted by any other laws of this state.

. That section does allow specific entities to create debt up to 10% of the value of the property in some circumstances: " ... if a school district has an absolute need therefor, such district may, . incur indebtedness to an amount, including existing indebtedness, in the aggregate exceeding five percent (5%) but not exceeding ten percent (10%) of the valuation of the taxable property therein,...." Okla. Const. Art. 10 § 26. Similar limits are provided for a "city or town" by § 26.

. One example of this principle is shown by Ethics Commission v. Cullison, 1993 OK 37, 850 P.2d 1069. We said that the provisions of Article 29 of our Constitution show that "[the Legislature cannot control the ethical conduct of state officials by legislative enactments that completely bypass the Commission's rule-making authority." Id. 1993 OK 37 at ¶ 18, 850 P.2d at 1076. It is also true that the Legislature's power shall extend to all rightful subjects of legislation. Okla. Const. Art. 5 § 36. It is also true that Article 29 does not expressly mention Art. 5 § 36. But in Ethics Commission we did not conduct a vain search in Article 29 for express references to other related constitutional provisions, we gave effect to the intent Article 29 by examining and giving effect to its language, although it impacted upon other constitutional provisions.