Washington Law Review


In Washington Higher Education Facilities Authority (WHEFA) v. Gardner, the Washington Supreme Court held that the issuance of nonrecourse bonds by WHEFA to finance building construction at private higher education institutions was permissible under article 8, section 5 of the Washington Constitution. The opinion rectifies earlier contrary decisions by making clear that the issuance of nonrecourse bonds is not constitutionally prohibited. The court, however, in reaching this conclusion, adopted a new literal interpretation of the constitutional language, which may restrict the court's future analysis of lending of credit issues by unnecessarily precluding policy considerations. Although the court's analysis adequately supported its conclusion in WHEFA, in future cases the court should continue to consider additional extenuating policy factors regarding public purpose and retention of public control utilized in other recent opinions but not specifically included in the express language of the constitution.

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