Taxpayers against Casinos v. State

Decision Date30 May 2007
Docket NumberDocket No. 129818.,Docket No. 129816.,Docket No. 129822. Calendar No. 15.
Citation732 N.W.2d 487,478 Mich. 99
PartiesTAXPAYERS OF MICHIGAN AGAINST CASINOS and Laura Baird, State Representative in her official capacity, Plaintiffs-Appellants, v. The STATE of Michigan, Defendant-Appellee, and Gaming Entertainment, L.L.C. and Little Traverse Bay Bands of Odawa Indians, Intervening Defendants-Appellees, and North American Sports Management Company, Intervening Defendant. Taxpayers Of Michigan Against Casinos and Laura Baird, State Representative in her official capacity, Plaintiffs-Appellees, v. The State of Michigan, Defendant-Appellant, and Gaming Entertainment, L.L.C. and Little Traverse Bay Bands of Odawa Indians, Intervening Defendants-Appellees, and North American Sports Management Company, Intervening Defendant. Taxpayers Of Michigan Against Casinos and Laura Baird, State Representative in her official capacity, Plaintiffs-Appellees, v. The State of Michigan, Defendant-Appellee, and Gaming Entertainment, L.L.C., Intervening-Defendant-Appellee, and Little Traverse Bay Bands Of Odawa Indians, Intervening Defendant-Appellant, and North American Sports Management Company, Intervening Defendant.
CourtMichigan Supreme Court

Warner Norcross & Judd L.L.P. (by Robert J. Jonker, William C. Fulkerson, Daniel K. DeWitt, and John J. Bursch), Grand Rapids, for Taxpayers of Michigan Against Casinos.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and Barris, Sott, Denn & Driker, P.L.L.C. (by Eugene Driker and Thomas F. Cavalier), Special Assistant Attorneys General, Detroit, for the state of Michigan.

Dykema Gossett P.L.L.C. (by Richard D. McLellan, R. Lance Boldrey, and Kristine N. Tuma), Lansing, for Little Traverse Bay Bands of Odawa Indians and Gaming Entertainment, L.L.C.

Kanji & Katzen, P.L.L.C. (by Riyaz A. Kanji and Laura Sagolla), and James Bransky, General Counsel, Little Traverse Bay Bands of Odawa Indians, Ann Arbor; Harbor Springs for Little Traverse Bay Bands of Odawa Indians.

Jo Anne House, Office of Legal Counsel, Little River Band of Ottawa Indians (Drummond Woodsum & MacMahon, by Kaighn Smith, Jr., and Jeffrey Piampiano, of counsel), Manistee; Portland, Maine, for Little River Band of Ottawa Indians.

Wheeler Upman, P.C. (by Geoffrey L. Gillis) (Sonosky, Chambers, Sachse, Endreson & Perry, L.L.P., by Reid Peyton Chambers and Vanessa L. Ray-Hodge, of counsel), Grand Rapids; Washington, D.C., for Nottawaseppi Huron Band of Potawatomi.

Michael G. Phelan, Tribal Attorney, Pokagon Band of Potawatomi Indians (Drummond Woodsum & MacMahon, by Kaighn Smith, Jr., and Jeffrey Piampiano, of counsel), Dowagiac; Portland, Maine, for Pokagon Band of Potawatomi Indians.

Alfred H. Hall, Senate Majority Counsel, and Michael G. O'Brien, Deputy Majority Caucas Counsel, Lansing, for Ken Sikkema, Senate Majority Leader, and Shirley Johnson, Chair of the Senate Appropriations Committee.

MICHAEL F. CAVANAGH, J.

We granted leave to appeal to determine whether the amendatory provision in the compacts at issue and the exercise of that provision by the Governor violate the Separation of Powers Clause of the Michigan Constitution. 474 Mich. 1097, 711 N.W.2d 76 (2006).1 We hold that the amendatory provision and the exercise of that provision do not violate the Separation of Powers Clause because the amendatory provision was properly approved by legislative resolution and the Governor's exercise of the amendatory provision was within the limits of the constitution. Further, we hold that the issue whether the compacts violate the Appropriations Clause of the Michigan Constitution is not properly before this Court because the issue is beyond the parameters of this Court's prior order remanding this matter to the Court of Appeals. Thus, we reverse in part the judgment of the Court of Appeals and hold that the amendatory provision and the current exercise of that provision do not violate the Separation of Powers Clause. We further affirm in part the judgment of the Court of Appeals that struck the portion of plaintiff's brief that sought to address the Appropriations Clause issue. Accordingly, we remand this case to the circuit court for the entry of a judgment of summary disposition in favor of defendants.

I. STATEMENT OF FACTS AND PROCEEDINGS

In January 1997, Governor John Engler and four Indian tribes signed tribal gaming compacts. The four tribes were the Little Traverse Bay Bands of Odawa Indians, the Pokagon Band of Potawatomi Indians, the Little River Band of Ottawa Indians, and the Nottawaseppi Huron Potawatomi. In Taxpayers of Michigan Against Casinos v. Michigan, 471 Mich. 306, 685 N.W.2d 221 (2004) (TOMAC I), this Court considered three aspects of the alleged unconstitutionality of these tribal gaming compacts between the state and the tribes. This Court affirmed the Court of Appeals judgment, 254 Mich.App. 23, 657 N.W.2d 503 (2002), that held that the compacts were properly approved by the Legislature through a resolution, rather than a bill; that this did not violate art. 4, § 22 of the Michigan Constitution; and that the resolution was not a "local act" in violation of art. 4, § 29 of the Michigan Constitution. However, this Court also held that the question whether the amendatory provision in the compacts was constitutional under the Separation of Powers Clause, Const. 1963, art. 3, § 2, was not ripe for review because the Court of Appeals had not considered the issue. Governor Jennifer Granholm's exercise of the amendatory authority had not occurred until after the Court of Appeals decision. Thus, this Court remanded the matter to the Court of Appeals to determine whether the amendatory provision violates the separation of powers doctrine.

On remand, the Court of Appeals held that the compacts' amendatory provision, which allows the Governor to amend the compacts without legislative approval, violates the Separation of Powers Clause. Taxpayers of Michigan Against Casinos v. Michigan (On Remand), 268 Mich.App. 226, 228, 708 N.W.2d 115 (2005). Judge Borrello dissented and stated that the Separation of Powers Clause was not violated because the Legislature's approval of the compacts included approval of the amendatory provision.

II. STANDARD OF REVIEW

This Court reviews de novo a decision regarding a motion for summary disposition. Herald Co. v. Bay City, 463 Mich. 111, 117, 614 N.W.2d 873 (2000). This Court also reviews constitutional issues de novo. Harvey v. Michigan, 469 Mich. 1, 6, 664 N.W.2d 767 (2003). Decisions involving the meaning and scope of pleadings are reviewed for an abuse of discretion. Dacon v. Transue, 441 Mich. 315, 328, 490 N.W.2d 369 (1992).

III. ANALYSIS

Under the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. 2701 et seq., an Indian tribe may conduct gaming within the borders of a state if the activity conforms to a compact between the state and the tribe. The compacts at issue were signed by Governor Engler, and the Legislature approved the compacts by resolution. In 2003, Governor Granholm consented to an amendment of the compact with the Little Traverse Bay Bands of Odawa Indians.

A. SEPARATION OF POWERS CLAUSE

Michigan's Separation of Powers Clause states: "The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution." Const. 1963, art. 3, § 2. "This Court has established that the separation of powers doctrine does not require so strict a separation as to provide no overlap of responsibilities and powers." Judicial Attorneys Ass'n v. Michigan, 459 Mich. 291, 296, 586 N.W.2d 894 (1998). An overlap or sharing of power may be permissible if "the grant of authority to one branch is limited and specific and does not create encroachment or aggrandizement of one branch at the expense of the other . . . ." Id. at 297, 586 N.W.2d 894. The Separation of Powers Clause "has not been interpreted to mean that the branches must be kept wholly separate." Soap & Detergent Ass'n v. Natural Resources Comm., 415 Mich. 728, 752, 330 N.W.2d 346 (1982).

The amendatory provision at issue provides:

Section 16. Amendment

This Compact may be amended by mutual agreement between the Tribe and the State as follows:

(A) The Tribe or the State may propose amendments to the Compact by providing the other party with written notice of the proposed amendment as follows:

(i) The Tribe shall propose amendments pursuant to the notice provisions of this Compact by submitting the proposed amendments to the Governor who shall act for the State.

(ii) The State, acting through the Governor, shall propose amendments by submitting the proposed amendments to the Tribe pursuant to the notice provisions of this Compact.

(iii) Neither the tribe nor the State may amend the definition of "eligible Indian lands" to include counties other than those set forth in Section 2(B)(1) of this Compact. . . .

* * *

(B) The party receiving the proposed amendment shall advise the requesting party within thirty (30) days as follows:

(i) That the receiving party agrees to the proposed amendment; or

(ii) That the receiving party rejects the proposed amendment as submitted and agrees to meet concerning the subject of the proposed amendment.

(C) Any amendment agreed to between the parties shall be submitted to the Secretary of the Interior for approval pursuant to the provisions of the IGRA.

(D) Upon the effective date of the amendment, a certified copy shall be filed by the Governor with the Michigan Secretary of State and a copy shall be transmitted to each house of the Michigan Legislature and the Michigan Attorney General. [Emphasis added.]

Governor Granholm and the Little Traverse Bay Band of Odawa Indians agreed to amend the compact in a number of ways. Among other items, the amendment permitted a second casino to be...

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