Taxpayers of Mich. against Casinos v. State
| Decision Date | 27 December 2005 |
| Docket Number | Docket No. 225017. |
| Citation | 708 N.W.2d 115,268 Mich. App. 226 |
| Parties | TAXPAYERS OF MICHIGAN AGAINST CASINOS and Laura Baird, State Representative in her official capacity, Plaintiffs-Appellees/Cross-Appellants, v. The STATE of Michigan, Defendant-Cross-Appellee (On Remand), and Gaming Entertainment, LLC, and Little Traverse Bay Bands of Odawa Indians, Intervening Defendants-Appellants/Cross-Appellees, and North American Sports Management Co., Intervening Defendant. |
| Court | Michigan 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, for the state of Michigan.
Kanji & Katzen, P.L.L.C. (by Riyaz A. Kanji and Jennifer B. Salvatore), Ann Arbor, Drummond, Woodsum & MacMahon (by Kaighn Smith), Portland, ME and James Bransky, Harbor Springs, for the Little Traverse Bay Bands of Odawa Indians.
Dykema Gossett, P.L.L.C. (by Richard D. McLellan, R. Lance Boldrey, and Kristine N. Tuma), Lansing, for Gaming Entertainment, LLC.
Before: OWENS, P.J., and SCHUETTE and BORRELLO, JJ.
ON REMAND
The issue presented to this Court on remand from our Supreme Court's decision in Taxpayers of Michigan Against Casinos v. Michigan, 471 Mich. 306, 333, 685 N.W.2d 221 (2004) (Taxpayers), is whether the amendatory provision in the tribal-state gambling compacts purporting to empower the Governor to amend the compacts without legislative approval violates the separation of powers doctrine found in the Separation of Powers Clause in Const 1963, art 3, § 2. As will be thoroughly discussed, we hold that the Separation of Powers Clause in Const 1963, art 3, § 2 was violated in this instance. We affirm the decision of the circuit court on this issue.
The legal issues confronting this Court and the Supreme Court stem from the expansion of casino gambling in the state of Michigan.
In January 1997, Governor John Engler, on behalf of the state of Michigan, signed gambling compacts with four Indian tribes1 permitting class III gambling activities pursuant to the Indian Gaming Regulatory Act (IGRA), 25 USC 2701 et seq. These compacts were modified and reexecuted in December 1998. The Michigan Legislature approved these gambling compacts by passage of House Concurrent Resolution (HCR) 115. The House of Representatives approved HCR 115 by a resolution vote of 48 to 47, while the Michigan Senate passed HCR 115 by a resolution vote of 21 to 17. The passage of these compacts by resolution, instead of by bill, ironically had significance in 1998 and, as will be discussed, retains significance now. As acknowledged by our Supreme Court in Taxpayers, 471 Mich. at 316 n. 4, 685 N.W.2d 221, a bill must be passed by a majority of the representatives elected to and serving in each house of the Legislature.2 However, passage of a resolution merely requires a simple majority of the members present and voting as long as a quorum is present.3
The validity of the approval of these gambling compacts, by resolution rather than statute, spawned several lawsuits: two in federal court and this action originally brought in the Ingham Circuit Court. The Sault Ste. Marie Tribe of Lake Superior sued in federal court to enjoin the operation of the new casinos, but the United States Court of Appeals for the Sixth Circuit dismissed that suit on the grounds of lack of standing. Sault Ste Marie Tribe of Chippewa Indians v. United States, 288 F.3d 910 (C.A.6, 2002). Two state legislators also challenged the approval by the Secretary of Interior of Michigan's 1998 compacts, but that suit also was dismissed on the grounds of lack of standing by the Sixth Circuit. Baird v. Norton, 266 F.3d 408 (C.A.6, 2001).
Plaintiffs sought a declaratory judgment that the method of approval of the gambling compacts violated various provisions of the Michigan Constitution. Plaintiffs argued that legislative approval of the compacts by resolution violated Const. 1963, art. 4, § 22, which requires adoption of legislation by bill rather than mere resolution. Additionally, plaintiffs complained that the compacts violated Const. 1963, art. 4, § 29, the Local Acts Clause. Finally plaintiffs alleged that the provision within the gambling compacts that permitted the Governor to amend a compact without legislative approval violated Const. 1963, art. 3, § 2, the Separation of Powers Clause, which is the very matter before this Court.
The trial court ruled in favor of plaintiffs in two instances, determining that the gambling compacts should have been approved by bill instead of by resolution and that the amendatory provision in the compacts ran afoul of the doctrine of separation of powers. The trial court determined that the approval of the gambling compacts did not violate the Local Acts Clause of Const. 1963, art. 4, § 29.
A panel of this Court in Taxpayers of Michigan Against Casinos v. Michigan, 254 Mich.App. 23, 43-49, 657 N.W.2d 503 (2002), reversed the trial court's determination that passage of the compacts by resolution did not conform to the Michigan Constitution, affirmed the trial court's reasoning with respect to the Local Acts Clause, and declared that the issue of the amendatory provision within each of the four compacts, which at that time had not been exercised by the Governor, was not ripe for judicial review.
Upon review, five justices of our Supreme Court held that legislative approval of the gambling compacts by mere resolution did not violate the Michigan Constitution, likening the tribal-state gambling compacts to a contract as distinguished from more traditional legislative or statutory actions of the Michigan Legislature. Taxpayers, 471 Mich. at 327-328, 352, 685 N.W.2d 221. All seven justices of our Supreme Court also determined that there was no violation of the Local Acts Clause, Const. 1963, art. 4, § 29.4
In July 2003, and before the Supreme Court's ruling, Governor Jennifer Granholm exercised the amendatory provision contained within an individual compact negotiated between the state of Michigan and the Little Traverse Bay Bands of Odawa Indians. Chief Justice Corrigan, in her lead opinion, acknowledged this fact and stated that "the amendment provision in the compact may now be ripe for review. . . ." Taxpayers, 471 Mich. at 313, 685 N.W.2d 221. Again, five justices of our Supreme Court concluded that the separation of powers issue alleged by plaintiffs was now ripe for review, but in the absence of an appellate court ruling on this precise issue, a remand to this Court was appropriate.
Justice Markman, in his dissent, determined that the amendment by the Governor made the issue "ripe." Id. at 362, 685 N.W.2d 221. Justice Markman further stated that "the amendatory provision contained in each compact violates the separation of powers doctrine and is, thus, void insofar as it may be regarded as granting sole amendatory power over legislation to the Governor." Id. at 407, 685 N.W.2d 221. Justice Weaver did not address the ripeness issue or the separation of powers issue now before this Court, declining on the basis of her determination that the gambling compacts were violative of Const. 1963, art. 4, § 22. Taxpayers, 471 Mich. at 354, 685 N.W.2d 221.
In October 2004, Judges Borrello and Schuette were randomly selected to replace retired Judges Hood and Holbrook, who were panelists on this Court's earlier decision in this case. In November 2004, this Court issued an order in this case, which, among other things, allowed the parties to file briefs addressing
(1) whether the provision in the tribal-state gaming compact of the Little Traverse Bay Band [sic] of Odawa Indians, purporting to allow the governor to amend the compact without legislative approval, violates the separation of powers clause, Const. 1963, art. 3, § 2, (2) assuming that the amendment provision in the compact is constitutional, whether any aspect of the exercise of the power to amend violated the separation of powers clause, Const. 1963, art. 3, § 2, and (3) what effect will there be on the amendment as a whole if an aspect of the amendment violates the separation of powers clause.5
A second order, dismissing a motion to disqualify Judge Schuette, was entered on November 24, 2004. No appeal was filed challenging Judge Schuette's order dismissing the motion to disqualify.
The gambling compacts negotiated in 1998 between Governor Engler on behalf of the state of Michigan and the four Indian tribes contained identical provisions, except that the geographic scope of gambling activity permitted within the state of Michigan varied among the four tribes.
Of significance to the case at bar are the following sections contained in each of the four gambling compacts. Section 12(E) provides:
In the event that any section or provision of this Compact is disapproved by the Secretary of the Interior of the United States or is held invalid by any court of competent jurisdiction, it is the intent of the parties that the remaining sections or provisions of this Compact, and any amendments...
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