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A. The Public Purpose Doctrine evolved as a mechanism to ensure that public interests would be protected

B. A Public Purpose exists only where the public interest can be enforced


Statements of Interest of Amici Curiae

THE CORPORATION FOR ENTERPRISE DEVELOPMENT (CFED) is an independent, nonpartisan, national nonprofit organization which provides policy, research, consulting and technical assistance services to promote quality and effectiveness in the policy and practice of economic development. In 1994, CFED published a widely acclaimed report, Bidding for Business: Are Cities And States Selling Themselves Short? - an assessment of the uses and abuses of development incentives for recruiting relocating companies.

CFED's position is that if state and local governments must use development incentives, there should be greater accountability and openness, with clear and measurable public benefits, legally enforceable contracts, and full disclosure of contract terms. Ideally, taxpayer money should be used not on corporate subsidies and tax breaks but on improving the essential infrastructure and services which create a climate conducive to business success.

THE CALUMET PROJECT FOR INDUSTRIAL JOBS is a labor-community coalition dedicated to preserving industrial, well paying jobs in northwest Indiana by bringing to the table labor, community and church voices when economic decisions are made for the region. The Calumet Project for Industrial Jobs was involved in the efforts to get Indiana state law changed and an ordinance passed in Gary, Indiana, which curbs abuses of tax abatements. One of its board members, Associate Professor Bruce Nissen, Indiana University Northwest, has co-authored an article on the issue of incentives, For the Public Good: Calumet Project Organizes for Labor and Community Based Economic Development, Labor Research No. 19 (Fall 1992).

SHARE THE WEALTH is a national organization, based in Boston, concerned about the growth in wage, income and wealth inequality and its dangerous consequences for our economy, democracy and culture. Share the Wealth has over 800 individual and organizational members active in addressing these inequities through education, legislation and direct action.

Share the Wealth is concerned about the growing amount of unproductive subsidies flowing from state, local and federal governments to private corporations and its negative effects on the economy. We are especially concerned with the growing amount of public funds which are being used to subsidize private corporations without discernible benefit to the public interest. We believe this case had national implications for many of the citizen organizations we work with who are concerned about greater accountability in the use of public funds.

THE GRASSROOTS POLICY PROJECT (GPP) provides public policy research related to jobs creation and retention for grassroots- based organizations. GPP contends that public investment in the private sector can be useful tools for creating good quality, living-waged jobs. However, rather than providing more and better job opportunities, current no-strings-attached subsidy practices often exacerbate the loss of quality jobs and public services, as powerful corporations bargain for lower taxes, relaxed environmental standards and lower wages. In most cases, recipients are not compelled to create significant numbers of new jobs in return, and failure to provide those promised goes without remedy. Last year, along with the Federation for Industrial Retention and Renewal, GPP released a report detailing recent accountability measures that have been passed by several cities and states. By placing strict conditions upon public subsidies, these initiatives help to bring the interest of the public back into public investment policies.

GPP strenuously objects to the ways in which no-stings- attached subsidies allow corporations to use public investments for purposes that do not advance the interest of the public. Therefore, GPP's interest in this case is to ensure that said investments result in direct and measurable benefits for the public in terms of jobs creation, enhanced revenues, community revitalization and that they contain appropriate accountability mechanisms.

THE MAURICE AND JANE SUGAR LAW CENTER FOR ECONOMIC AND SOCIAL JUSTICE (Guild/Sugar Law Center) is a national public interest litigation and policy center that has concentrated its resources in the areas of corporate accountability and community revitalization, plant closings and mass layoffs (particularly under the Workers Adjustment and Retraining Notification Act) and environmental justice. Beginning in 1995 the Guild/Sugar Law Center began its Corporate Accountability and Community Revitalization Project aimed at assisting governmental bodies and community groups involved with subsidy negotiations with companies. Also, as the national clearinghouse and experts on WARN Act litigation, the Sugar Law Center represents hundreds of workers directly and thousands more indirectly who have suffered employment losses, often due to relocation.

THE FEDERATION FOR INDUSTRIAL RETENTION AND RENEWAL (FIRR) is a national association of 33 community based and technical assistance organizations located in 29 cities. FIRR joins this brief because it is a part of our organizational mission to promote socially responsible economic development in communities throughout the country, and because we are especially concerned about the role subsidy practices promoted by N.C. Gen. Stat. §158-7.1 play in degrading community social standards nationwide. These practices stimulate subsidy gift competition between communities that have eroded public investment in valuable economic resources, such as education, public services, and infrastructure while offering little in the way of economic or community development.


I. Introduction

Amici hereby refer the Court to the statement of facts set forth in Plaintiff-Appellee's main brief which thoroughly sets forth the circumstances which gave rise to this lawsuit. Significantly, this case involves the constitutionality of a statute, N. C. Gen. Stat. § 158-7.1, which has acted as the means by which the Winston-Salem Business, Inc. ("WSBI"), a private corporation established by private individuals in Forsyth County, has been able to use taxpayer money, primarily obtained in the form of property taxes levied by the City and County on property owners in Winston-Salem and Forsyth County, for the profit of private corporations with no guarantees or requirements that such giveaways benefit the public in any appreciable way. This statute violates Article VI, Section 2(1) of the North Carolina Constitution which provides:

The power of taxation shall be exercised in a just and equitable manner, for public purposes only, and shall never be surrendered, suspended or contracted away.

See Mitchell v. Housing Authority, 273 N.C. 127, 159 S.E.d2d 745 (1968).


II. Incentives Do Not Serve a Public Purpose Unless There is a Substantial Certainty that the Intended Benefits Will Be Obtained by the Public

A. Public Purpose Doctrine evolved as a mechanism to ensure that public interests would be protected.

Restrictions and concerns over the allocation of public funds to aid solely or primarily private interests predate the development of the public purpose doctrine and emphasize the important role which this concept, as exemplified in this doctrine, has played in defining the scope and purposes of our political institutions. An historical recount of the public purpose doctrine and its significance in our democratic form of government is instructive in resolution of the dispute before this Court.

Although the concept of 'public purpose' was not fashioned during colonial times, conceptual antecedents of the doctrine were evident even then. Constraints on public spending during this era were considered to be best effectuated through the establishment of a representative legislature which was intended, inter alia, to serve as a check on what was commonly conceded as the unmitigated taxing power of the legislature. [See Dale F. Rubin, The Public Pays, The Corporation Profits: The Emasculation of the Public Purpose Doctrine and a Not-For-Profit Solution, 28 U. Rich L.Rev. 1311, 1321 (1994) (hereinafter "The Public Pays").]

It was believed that the vigilance of the constituency and self- interest of elected officials would protect private property interests from legislative abuse of the taxing power for private endeavors. Id. Also, prior to articulation and application of the 'public purpose' doctrine as we know it, courts had begun to address issues involving government taxation for seemingly non- public purposes. Thus, for example, the Massachusetts Supreme Judicial Court in Bangs v. Snow, 1 Mass. 181 (1804), denied the levy of local parish taxes for purposes of incorporation of the parish as a town. And in Spaulding v. City of Lowell, 40 Mass. (23 Pick) 71 (1839), the court declined to uphold the authority of a town to levy taxes for the construction of a public market place on the grounds that such a expenditure was not a "necessary charge," within the "prudential concern" of the town. Id. at 76- 78. As one scholar has noted:
Substituting the term "public purpose" for either "prudential concerns" or "necessary charges" would not have altered the context in which the limitation of the power of government to tax was discussed. These conceptual precedents to the Public Purpose Doctrine also support the proposition that current government expenditures should be carefully scrutinized to insure they fulfill public purposes.

See The Public Pays, 28 U. Rich L.Rev. at 1324 (1994).

The public purpose doctrine was first announced in the nineteenth century during an era of massive public financing of infrastructure, usually through private entities. See Pinsky, State Constitutional Limitations on Public Industrial Financing: An Historical and Economic Approach, 111 U. Pa. L. Rev. 265, 277- 81 (1963). Mark Taylor, A Proposal to Prohibit Industrial Relocation Subsidies, 72 Texas L. Rev. 669, 671-675 (1994). Expenditures by state and local governments for the construction of railroads, turnpikes, bridges, canals, ports and related facilities were generally upheld by courts as obvious public purposes. Id.

The seminal case upholding internal improvement expenditures to private corporations and first pronouncing the doctrine of public purpose was Sharpless v. City of Philadelphia, 21 Pa. 147 (1853). Sharpless involved the spending of public funds to purchase railroad stock subscriptions, thus aiding the development of the railroad in Philadelphia. Prompted by economic concerns, the court denied an injunction to prohibit the purchase as violative of the Pennsylvania Constitution, since the constitution did not expressly prohibit such an expenditure. However, the court tempered its decision with language which has come to be known as the public purpose doctrine:
Neither has the legislature any constitutional right to create a public debt, or to lay a tax, or to authorize any municipal corporation to do it, in order to raise funds for a mere private purpose. No such authority passed to the Assembly by the general grant of legislative power. This would not be legislation. Taxation is a mode of raising revenue for public purposes. When it is prostituted to objects no way connected with the public interest or welfare, it ceases to be taxation, and becomes plunder. Id. at 168-169.

The Sharpless court set the parameters of reasoning for later decisions applying the doctrine to infrastructure financing using public funds. More significantly, Justice Black, in Sharpless, expounded on the boundaries of the public purpose doctrine, expanding it beyond the limits of infrastructure improvements. He was content to define a public purpose in terms of the "ultimate use, purpose and object for which the fund is raised" and embrace the stimulation and aid of commerce as a proper function of the government. Id. at 169-170. Black was clear that the means employed, public or private, was irrelevant for public purpose considerations. Id. at 170.

Those courts which disagreed with Sharpless' recognized an incongruity between the hoped for "material prosperity" for a subject community, and the business itself which was organized "solely to make money for . . . stockholders." Hanson v. Vernon, 27 Iowa 28, 53 (1869). See The Public Pays, 28 U. Rich L.Rev. at 1329. In Hanson, for example, the court held that legislation allowing local governments to levy and collect taxes for aid to railroads was unconstitutional. Chief Justice Dillon recognized that any incidental benefits which would accrue to the community as a result of the railroad could not transform an otherwise private expenditure into an expense for a public purpose. He reasoned that if taxing and spending for incidental benefits to the community were constitutional, "who indeed, could define the logical boundaries to this doctrine?...[A]griculture, commerce, the mechanic arts,....every department of labor and every industrial pursuit" would be worthy of public money as they too advance the "public prosperity." Id. at 58-59.

Outside of the internal improvement realm, the United States Supreme Court had an opportunity, in Citizen Savings and Loan Association v. Topeka, 87 U.S. 655 (1874), to examine the issue. Martin E. Gold, Economic Development Projects: A Perspective, 19 Urb. Law 193, 220-205 (1987) (hereinafter "Economic Development Projects"). The Court held that bonds issued to provide financial assistance to an ironworks factory did not serve a public purpose, based upon the common law, despite the favorable impact that the court conceded would flow to the local economy from employment and revenues. 87 U.S. at 665. Like opposition to the railroad subsidies, the Court, and others, opposed narrowly designed subsidies designed to benefit one beneficiary. See Opinion of the Justices, 58 Me. 590, 603 (1871) (its "direct purpose (is) private in its character; it is to increase the means and improve the property of some, and furnish employment to some, while the benefit, if any, to the public is only reflective, incidental or secondary"); Weismer v. Village of Douglas, 64 N.Y. 91 (1876) (not allowing town to borrow money to purchase stock in mill).

Despite its repeated use as a safeguard against abuses of the public purse, the public purpose doctrine would soon lose this distinction as economic times worsened. In cases of public aid to private companies for internal improvements, which was prevalent during the nineteenth century, courts readily perceived the general public benefits to be received from development of a state's or municipality's infrastructure, irrespective of the private means of improvement employed. See Albritton v. City of Winona, 181 Miss. 75, 178 So. 799, dismissed on appeal, 303 U.S. 627 (1938) (allowing municipalities to issue general obligation bonds to finance industrial facilities which could be leased or sold to private corporations).

Still many state courts, concerned that the public interest be protected, identified specific criteria essential to making a determination that a particular subsidy would benefit the people. See Mae Nan Ellingson, Jerry C.D. Mahoney, Public Purpose and Economic Development: The Montana Perspective, 51 Montana L. Rev. 356, 374 (1990) (identifying four factors common to those programs appropriately considered to have a public purpose: the program has traditionally been conducted by government; it cannot be conducted as effectively by the private sector or without government sponsorship; it benefits primarily or directly all citizens or general class of citizens; and the program is reasonably related to the intended benefit). See Nichols v. South Carolina Research Authority, 351 S.E.2d 155, 163 (1986); City of Cleburne v. Gulf, 66 Tex. 457, 1 S.W. 342 (Tex. 1886) (invalidating agreement between local government and corporation whereby local government sought to induce corporation to locate in area).

Despite this historical legacy, recent judicial deference to legislative determinations of "public purpose" has unfortunately had the effect of watering down the effectiveness of this significant constitutional limitation upon governmental power in many courts outside this state. See Common Cause v. State, 455 A.2d 1 (Me. 1983); Wilson v. Conn. Product Dev. Corp., 355 A.2d 72, 75 (Conn. 1974); Pipestone v. Madsen, 178 N.W. 2d 594, 596 (Minn. 1970); Arthur L. Coleman, A Reexamination of the Public Purpose Doctrine: Nichols v. South Carolina Research Authority, 39 S.C.L. Rev. 565, 570-71 (1988).

The documented abuses, and well known general inability of current tax abatement programs to accomplish their job creation goals, as has been amply illustrated in this case by Plaintiff, and inability to protect popular democratic control over the decision-making process, coupled with the scarcity of public funds for genuine infrastructure improvements, see Opinion of the Justices, 598 So.2d 1362 (Sup. Ala. 1992), requires, at the very least, that this court find that such legislative determinations are rational only when there is substantial certainty that such tax deals will inure to the public's benefit. This can be accomplished only where there exist sufficient guarantees that the intended purposes will in fact be accomplished.

B. A Public Purpose exists only where the public interest can be enforced.

Significantly, nowhere in either Defendant's or Amici's Brief do they articulate how the people of Winston-Salem and Forsyth County have benefitted from the thirteen or so tax deals which have occurred pursuant to this statute.

It is obvious that where tax incentives fail to accomplish their intended goal no public purpose has been served. Keeping in mind the historical and present concerns inherent in tax giveaways, it is necessary that the public purpose requirement contain mechanisms of accountability to guard against the abuses and typical inadequacies of incentives systems. Yet, in practice accountability mechanism are rarely attached to the tax incentives. Furthermore, few states have methods for assessing the actual costs and benefits associated with incentive. Also, because the resources put at the disposal of businesses by state and local governments are scarce, it is imperative that such accountability measures be incorporated into the fluid public purpose doctrine.

A prevalent and persistent problem with most incentive legislation, which is shared by the one at issue here, is the inability to adequately involve the public in determining whether a specific proposal is sufficiently "public" and to provide legally enforceable mechanisms which will protect the public interest. See N.C. Gen. Stat. § 158-7.1 et seq. In the instant case, this problem is manifested in several significant ways:

1. The county and city did not themselves enter into any agreement with the private corporations but instead entered into an agreement with an "intermediate" body, here the WSBI, which is essentially unaccountable to the public, who then contracted with the private sector. No agreement existed between the city and county and Pepsi Cola, for example, and so there exists no way to enforce Pepsi Cola's promise to create 1,000 permanent jobs in exchange for the $1 million subsidy. In fact, Pepsi Cola created only 140 jobs, received $700,000, and there is no agreement that exists now that can be used to hold Pepsi-Cola to its promises.

Any tax incentive deal should be in the form of an express, written contract between the government offeror and the corporate offeree. Written contracts are the best mechanism to ensure enforceability because they create legally enforceable promises and remedies. Tax incentive contracts should specify the benefits which corporations are intended to supply to the government and public in exchange for tax incentives, the conditions which constitute a breach and the types of enforcement mechanisms used to ensure compliance. A statute which fails to require such contracts should be found sufficiently vague to be unconstitutional.

2. The current structure of the local decision-making body, in this case the WSBI, is extremely susceptible to situations in which private corporate officers can wield too much influence in the interest of private profit, as opposed to the public good. In this case, for example, there has been a blatant conflict of interest when the chief or former chief executive officer of several benefitting corporations have been members of, and sometimes even the chair, of WSBI, the entity negotiating deals on behalf of the county and city. See Maready trial brief at 4. Again, where such affiliations are not prohibited by statute then the statute should be held to be unconstitutional.

3. Under the current system, private corporations are able to obtain "reimbursement" for expenses with essentially no mechanisms of accountability. For example, here Wake Forest received $700,000 million for "expenses" after submitting an invoice to WSDI without any substantiation for those expenses, and without fulfilling any of the job creation promises. An enabling statute which could survive constitutional challenge would establish explicit standards to govern the mechanisms by which private corporations seek reimbursement.

4. The current system hides from public scrutiny the decision making process whereby decisions are made as to how public money will be spent in furtherance of economic development. In this case, for example, the Defendant has argued that many of the giveaways were made pursuant to G.S. § 158-7.1 (a) and thus were not subject to the open meeting requirement of (c). This incongruity, whereby there exists a largely undefined area under which the WSBI may exercise its "discretion" as to determining appropriate expenditures, is sufficiently vague to render the statute unconstitutional.

5. Under the current system, the WSBI did not undertake a cost-benefit analysis prior to negotiating the tax deals at issue in this action. In the final analysis what are touted as quid pro quo arrangements are in actuality unrestricted/ unaccountable public giveaways to private companies. Although usually neglected, a cost/benefit analysis is currently seen as an essential component of any effective subsidy program:
Moreover, when using development incentives, states and localities should establish permanent systems to ensure that their use is cost-effective and accountable to the public. This area has received relatively little attention.

Bidding for Business: Are Cities and States Selling Themselves Short?, Schweke, Rist and Dabson 50-51 (Corporation for Enterprise Development, Washington, D.C.) (1994) (Appendix D).

6. Under the current system, the WSBI is not required to adhere to any specific standards by which to evaluate whether a particular subsidy will in fact satisfy the purposes of the statute to "aid and encourage" the location of "manufacturing enterprises". N.C. Gen. Stat. § 158-7.1 (a). As the trial court found: "The guidelines gave the City and County virtually unlimited discretion as to the amount and purposes for which City and County funds could be paid to private corporations for alleged economic incentive purposes." Findings of Fact, Conclusions of Law and Judgment, filed August 28, 1995, at 6 (hereinafter "Findings of Fact").

That the WSBI could authorize the expenditure of public funds to pay the costs of, for example, parking fees for employees of Southern National Bank or a portion of rent for that bank, as sufficient to satisfy this criteria is evidence that the statute is unconstitutional as applied. Again, it is highly significant that nowhere in either Defendant's or Amici's brief do they ever state how the various tax deals stimulated the local economy, promoted business, or resulted in the creation of a substantial number of jobs in the city or county that pay at or above the "median average" wage in the county. See NCDA brief at 36.

7. Under the current system, it is completely unclear what it is that workers, or taxpayers, receive in exchange for their money. The statute requires only that the Governor determine that a "substantial number of jobs" that pay "at or near the average median wage" be created. N.C. Gen. Stat. §158-7.1 (d1)(1). This is misleading and poorly drafted. It is unclear what is meant by "median average" wage since the terms have two entirely different meanings.

8. Under the current system, a corporation is not required to demonstrate financial need and the state is not required to show that a particular tax incentive fits within an economic development plan. Indeed, the trial court here found that: "No evidence was presented of economic distress in the City and County from 1990 to the present time." Findings of Fact at 6. Instead, these tax deals are negotiated on an ad-hoc basis within a vacuum, with each deal subject to the political climate of the moment. There should be proof that a particular deal will in fact meet certain well defined goals that address the particular needs of a community. These goals should include the creation of a specific number of jobs, a commitment to remain in the locality and a requirement to invest in the community, a plan to create jobs of a certain "quality" (i.e. which provide adequate wages, benefits and stability). They should reward businesses who do not violate employment and environmental laws, and provide day care, pensions, comprehensive health benefits, to improve worker safety and environmental protection.

9. Finally, under the current system, any private corporation that violates state and federal laws is in no way encumbered from being the recipient of public funds. The statute provides no means, for example, of determining whether a particular applicant (or beneficiary) has violated environmental and worker safety statutes.

Instead of defending these inherent failures, the principle theme that resonates throughout both Defendant's brief, as well as Amici North Carolina Economic Development Association, is that "if we don't do it, someone else will." See NCDA brief at 16 (citing tax incentive programs in other states). Such a philosophy does not make good public policy, especially in light of the overwhelming evidence concerning the ineffectiveness and abuse of tax subsidies.

First, unaccountable tax incentives have the, albeit unintended, effect of causing a "race to the bottom" as communities, workers, and unions, seek to reduce labor, environmental and social costs, forcing wage and benefit concessions when corporations use the threat of flight, or of refusal to locate in a given geographical area.

Second, unaccountable tax incentives essentially surrender the public good to what amounts to gross blackmail by the desirous corporations, by virtue of what amounts to lack of accountability of middle-level officials not subject to the electoral process:

Because industrial relocation incentives often operate in an environment where appointed officials from multiple levels of government engage in secret negotiations, the danger for misuse of governmental power is greater than with other types of economic regulation. Significant influence over the decision to offer incentives is often helped by appointed, rather than elected officials. Because appointed officials have less direct accountability, the potential for abuse will be greater for forms of economic regulation when appointed officials have more influence.

A. Proposal to Prohibit Industrial Relocation Subsidies, at 687.

Those states and cities which have grown weary of having their feet held to the fire have done what this state has not and responded to the tax abuse problem by enacting statutes or ordinances which require corporate accountability. In Gary, Indiana, for example, there now exists an ordinance which requires companies to show clear financial need for an abatement, provide a complete health care package to employees working over a certain number of hours, pay prevailing wages for the industry, and terminate such abatements if the firm fails to live up to the terms of the ordinance.

There also now exist what is commonly termed "right to know laws" which require application and performance information after a subsidy has been granted; "public participation" laws, whereby it is required that the public be included in the decision before a subsidy is granted to a private corporation; "hidden cost" laws, whereby states require governmental units to keep records of and provide annual reports on their expenditures in the form of tax exemptions; "recapture" laws, whereby states may cancel subsidies or recoup them when a private corporation does not fulfill its promises; and "anti-poaching" laws, which attempt to prohibit a corporation from relocating within a state's or city's borders.

In other words, state legislatures can enact legislation which ensures accountability; this state legislature has not done so. The statute in this case merely requires that the governing board "determine" that the conveyance of the property stimulate the local economy, promote business, and result in the creation of a substantial number of jobs in the county or city that pay at or above the median average wage in the county or, for a city, in the county where the city is located. This language, besides being poorly drafted, does not provide any concrete, enforceable, assurance that the incentive will in fact stimulate the local economy, promote business and result in the creation of jobs. The company receiving the incentive is not contractually bound to create any jobs at all.

Specific plans aimed at accomplishing well defined goals produced through a democratic process are essential prerequisites to tax incentive accountability. If these qualities are absent, instead of enhancing the economic and social well-being of local communities, subsidies will continue to be a "candy store" deal for often wealthy multi-national and global corporations whose only real interest is the profit of their shareholders.

III. Conclusion

The parade of horribles offered by Defendant and Amici need not in fact occur. The added requirement is only that they proceed with the use of tax incentives to promote economic development in a fiscally responsible manner. This court should be reluctant to conclude that a public purpose is being satisfied where legislators have failed to ensure accountability through the use of available means. If the public has no reasonable guarantee of gain, expenditures in their name cannot accurately be said to have their "purpose" in mind.

Respectfully submitted,


Kary L. Moss, Esq.,
Executive Director
Lamont Satchel, Esq.
2915 Cadillac Tower
Detroit, MI 48226
(313) 962-6540
F:(313) 963-9185

Lamont David Satchel, Esq.

February 14, 1996


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