TAXPAYERS OF MICHIGAN AGAINST CASINOS v. STATE OF MICHIGAN (ON REMAND), 268 Mich. App. 226

SCHUETTE, J. 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 NW2d 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. I. PROCEDURAL HISTORY A. LEGISLATIVE ACTION 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 tribes 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, a bill must be passed by a majority of the representatives elected to and serving in each house of the Legislature.

However, passage of a resolution merely requires a simple majority of the members present and voting as long as a quorum is present. B. CIRCUIT COURT ACTION 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 F3d 910 (CA 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 F3d 408 (CA 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. C.

COURT OF APPEALS DECISION A panel of this Court in Taxpayers of Michigan Against Casinos v Michigan, 254 Mich App 23, 43-49; 657 NW2d 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. D.

SUPREME COURT DECISION 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. All seven justices of our Supreme Court also determined that there was no violation of the Local Acts Clause, Const 1963, art 4, § 29.

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.

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. Justices TAYLOR and YOUNG joined Chief Justice CORRIGAN in her lead opinion, in which she stated that “we remand this issue to the Court of Appeals to consider whether the provision in the compacts purporting to empower the Governor to amend the compacts without legislative approval violates the separation of powers doctrine found in Const 1963, art 3, § 2.” Id. at 333.

These tribes are the Little Traverse Bay Bands of Odawa Indians, the Pokagon Band of Ottawa Indians, the Little River Band of Ottawa Indians, and the Nottawaseppi Huron Potawatomi. The Michigan Legislature is composed of 110 members of the House of Representatives; 56 votes are required at a minimum for passage of a statute. The Michigan Senate is composed of 38 members; 20 votes are required at a minimum for passage of a statute. Under the rules of the Michigan House of Representatives, a majority of the members of the House of Representatives must he present to constitute a quorum.

Justices Taylor and Young concurred in Chief Justice Corrigan’s analysis concerning Const 1963, art 4, § 22 (constitutionality of approval by resolution, not by bill) and in her determination that Const 1963, art 4, § 29, the Local Acts Clause, was not violated by passage of HCR 115. Justice CAVANAGH, while concurring only in

part IV of Chief Justice Corrigan’s lead opinion, joined Justice Kelly’s concurring opinion concluding that no violation of Const 1963, art 4, § 22 or 29 occurred. Justice Markman concurred with

part VI of Chief Justice Corrigan’s lead opinion concerning Const 1963, art 4, § 29, and Justice Weaver also concurred with the holding of no violation of Const 1963, art 4 § 29.