Taxpayers of Michigan v. State of Michigan ( 2007 )

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED MAY 30, 2007
TAXPAYERS OF MICHIGAN AGAINST
CASINOS and LAURA BAIRD, State
Representative in her official capacity,
Plaintiffs-Appellants,
v No. 129816
THE STATE OF MICHIGAN,
Defendant-Appellee,
and
GAMING ENTERTAINMENT, LLC 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 No. 129818
THE STATE OF MICHIGAN,
Defendant-Appellant,
and
GAMING ENTERTAINMENT, LLC 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
2
THE STATE OF MICHIGAN,
Defendant-Appellee,
and No. 129822
GAMING ENTERTAINMENT, LLC,
Intervening-Defendant-
Appellee,
and
LITTLE TRAVERSE BAY BANDS OF
ODAWA INDIANS,
Intervening Defendant-
Appellant,
and
NORTH AMERICAN SPORTS
MANAGEMENT COMPANY,
Intervening Defendant.
_____________________________________
BEFORE THE ENTIRE BENCH
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(2006).1 We hold that the amendatory provision and the exercise of that provision
1
We note that while Laura Baird is a named plaintiff in this case, she has
been inactive during the appellate process. In fact, Baird filed a motion with the
(continued…)
3
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
(continued…)
Court of Appeals asking that she be dismissed as a party. While this motion was
denied, her inactivity has rendered the issue of standing as it relates to legislators
(continued…)
4
Michigan Against Casinos v Michigan, 471 Mich. 306; 685 NW2d 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 NW2d 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 NW2d
(continued…)
moot. Accordingly, the term “plaintiff” when used in this opinion only refers to
(continued…)
5
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 NW2d 873 (2000).
This Court also reviews constitutional issues de novo. Harvey v Michigan, 469
Mich. 1, 6; 664 NW2d 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 NW2d 369 (1992).
III. ANALYSIS
Under the Indian Gaming Regulatory Act (IGRA), 25 USC 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
(continued…)
plaintiff Taxpayers of Michigan Against Casinos.
6
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 NW2d 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. 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 NW2d 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.
7
(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 constructed on eligible Indian lands of
the Little Traverse Bay Bands of Odawa Indians, contingent on the approval of the
local unit of government; changed the age of legal gambling from 18 to 21 at this
casino; mandated that tribal payments must now be sent to the state, as directed by
the Governor or a designee of the Governor, as opposed to sending the payments
to the Michigan Strategic Fund or its successor; and mandated that the compact
8
was binding for 25 years from the effective date of the amendments, instead of
being binding for 20 years from the effective date of the compact.
The amendatory provision allows the Governor to act for the state in
reviewing and approving amendments submitted by the tribes and in proposing
amendments to the tribes. This amendatory provision expresses the bilateral
agreement between the parties that the Governor will represent the state in matters
involving amendments. The Legislature reviewed the language of this amendatory
provision and approved the amendment procedure, which gives the Governor
broad discretion—within the limits of the constitution—to amend the compacts.
The compacts were properly approved by legislative resolution.2 As stated
in TOMAC I, “our Constitution does not require that our Legislature express its
approval of these compacts through bill rather than resolution.” TOMAC I, supra
at 313. The compacts—when approved by the Legislature—included the
amendatory provision. As this Court held in TOMAC I, supra at 313, a resolution
was sufficient for legislative approval of the compacts. Similarly, the resolution
2
While Justice Markman again revisits his arguments that the compacts
were legislation under Blank v Dep’t of Corrections, 462 Mich. 103; 611 NW2d
530 (2000), this Court already explained its position and addressed the flaws in
Justice Markman’s rationale in TOMAC I, supra at 318-333; thus, there is no
reason to reiterate this reasoning. Further, Justice Markman’s discussion that
MCL 432.203(5) suggests that casino gaming must be authorized by legislation in
the absence of a compact is irrelevant here because there is a compact in this case
in accord with IGRA and the compact properly allows for amendments.
9
also amounted to sufficient approval for the amendatory provision within the
compacts.
The Legislature’s approval of the amendatory provision gave consent to
amendments that conform to the approved procedure. The Legislature chose to
approve an amendment procedure that gives the Governor broad power to amend
the compacts, and the Legislature was well within its authority to make such a
decision. See id. at 329. This Court has long recognized the ability of the
Legislature to confer authority on the Governor. See, e.g., People ex rel
Sutherland v Governor, 29 Mich. 320, 329 (1874). This Court has further
recognized that discretionary decisions made by the Governor are not within this
Court’s purview to modify. See, e.g., People ex Rel Ayres v Bd of State Auditors,
42 Mich. 422, 426; 4 N.W. 274 (1880).3
As this Court stated in TOMAC I, supra at 328, “We have held that our
Legislature has the general power to contract unless there is a constitutional
limitation.” There is no limitation in Michigan’s Constitution on the Legislature’s
power to bind the state to a compact with a tribe. “State legislatures have no
regulatory role under IGRA aside from that negotiated between the tribes and the
states.” Id. at 320. The Legislature’s approval of the compacts only follows the
3
Contrary to Justice Markman’s claims, we note that the Governor’s
authority to negotiate amendments is not without limits. Some limits are in the
compacts themselves, and the Governor cannot negotiate amendments that extend
(continued…)
10
assent of the parties to the compacts. This does not establish, “in the realm of
Indian casinos, ‘government by contract’” that avoids the restrictions and
provisions of the constitution, as argued by Justice Markman. Post at 23. The
amendments—just as the compacts themselves—“only set forth the parameters
within which the tribes, as sovereign nations, have agreed to operate their gaming
facilities.” TOMAC I, supra at 324. Our constitution does not prohibit the
Legislature from approving compacts by concurrent resolution. Id. at 327-328.
Thus, it is entirely permissible for the Legislature to provide, by resolution, that
the Governor may negotiate subsequent amendments to the compacts. Because
the agreed-to amendments are permissible, plaintiff has failed to establish that the
amendatory provision and the exercise of that provision are unconstitutional. The
amendatory provision survives both a facial and an as-applied challenge under the
Separation of Powers Clause because all the amendments negotiated by the
Governor are permissible. See Judicial Attorneys Ass’n, supra at 303; Woll v
Attorney General, 409 Mich. 500, 535 n 50; 297 NW2d 578 (1980). Specifically,
the amendments “do not impose new obligations on the citizens of the state
subject to the Legislature’s power; they simply reflect the contractual terms agreed
(continued…)
beyond these limits. And, of course, the Governor cannot agree to an amendment
that would violate the constitution or invade the Legislature’s lawmaking function.
11
to by two sovereign entities.” TOMAC I, supra at 327;4 see also TOMAC I, supra
at 344 (Kelly, J., concurring) (The compacts “place no restrictions or duties on the
people of the state of Michigan. They create no duty to enforce state laws on
tribal lands.”).
Finally, today’s decision is not in conflict with this Court’s past decision in
Roxborough v Unemployment Compensation Comm, 309 Mich. 505; 15 NW2d
724 (1944). In Roxborough, supra at 510, this Court stated that the Governor
could “exercise only such authority as was delegated to him by legislative
enactment.” This Court held that the Governor could not increase compensation
for an employee of the appeal board of the Unemployment Compensation
Commission because the Legislature had passed legislation to limit the
compensation of this employee to the maximum amount permitted by the Social
Security Board. The Governor could not ignore this limitation. Roxborough is
inapplicable because that case dealt with a unilateral act of the Legislature. The
4
Justice Markman is simply incorrect when he states that the fact that the
amendments reflect the contractual terms agreed to by two sovereign nations is
“irrelevant to the necessary constitutional analysis.” Post at 36. As thoroughly
explained in TOMAC I, supra at 324, “the hallmark of legislation is unilateral
imposition of legislative will. Such a unilateral imposition of legislative will is
completely absent in the Legislature’s approval of tribal-state gaming compacts
under IGRA.” Thus, the Legislature’s role in approving the compacts and
amendatory provision “requires mutual assent by the parties—a characteristic that
is not only the hallmark of a contractual agreement but is also absolutely foreign
to the concept of legislating.” Id. Justice Markman’s dissent is largely premised
on the notion that the compacts and the amendments constitute legislation; thus, it
is perplexing why a statement showing the contrary is irrelevant to the analysis.
12
compacts, however, are bilateral agreements. Further, the Legislature’s approval
by resolution of the compacts—which included the amendatory provision—
provides the Governor with authority to negotiate and agree to amendments on
behalf of the state. Thus, the amendatory provision—on its face and as it was
exercised by the Governor—does not violate the Separation of Powers Clause of
the Michigan Constitution.
B. APPROPRIATIONS CLAUSE
Michigan’s Appropriations Clause states, “No money shall be paid out of
the state treasury except in pursuance of appropriations made by law.” Const
1963, art 9, § 17. On remand in the Court of Appeals, plaintiff argued that the
compacts violate Michigan’s Appropriations Clause because this Court
determined that the compacts are contracts. Plaintiff argued that consideration
must have been exchanged by the parties to each compact. Therefore, the tribal
payments under the compacts are state funds that the Legislature must appropriate
by legislation. Plaintiff raised this issue for the first time in the Court of Appeals
when this case was remanded, and plaintiff argued that the issue was within the
scope of this Court’s remand order and could not have been raised earlier because
it was based on this Court’s ruling in TOMAC I. Intervening defendant Gaming
Entertainment, LLC, moved to strike the portion of plaintiff’s brief dealing with
the Appropriations Clause because the issue went beyond this Court’s remand
13
order. The Court of Appeals granted the motion to strike and, thus, did not
address this issue.
We agree with the Court of Appeals that the appropriations issue was not
properly before it. This Court remanded this matter to the Court of Appeals to
address a specific issue—“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.”
TOMAC I, supra at 333. The appropriations issue is outside the scope of this
Court’s remand order; thus, the Court of Appeals correctly held that the issue was
not properly before it. See, e.g., Napier v Jacobs, 429 Mich. 222, 228; 414 NW2d
862 (1987); People v Jones, 394 Mich. 434, 435-436; 231 NW2d 649 (1975).
Plaintiff cannot raise any issue it chooses merely because this Court remanded this
case to the Court of Appeals to address another issue. Simply, if this Court had
not remanded the matter to the Court of Appeals to address the separation of
powers issue, plaintiff would not be able to raise a new issue directly in the Court
of Appeals. Similarly, plaintiff cannot do so now.
IV. CONCLUSION
We hold that the amendatory provision and the Governor’s 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 use
of the amendatory provision was exercised within the limits of the constitution.
14
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 hold that the issue whether the tribal
payments under the compacts violate the Appropriations Clause of the Michigan
Constitution is not properly before this Court because it is beyond the parameters
of this Court’s prior remand order. Thus, we affirm in part the judgment of the
Court of Appeals that struck the portion of plaintiff’s brief that sought to address
15
the Appropriations Clause issue. Accordingly, we remand this case to the circuit
court for entry of a judgment of summary disposition in favor of defendants.
Michael F. Cavanagh
Clifford W. Taylor
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
16
STATE OF MICHIGAN
SUPREME COURT
TAXPAYERS OF MICHIGAN AGAINST
CASINOS and LAURA BAIRD, State
Representative in her official capacity,
Plaintiffs-Appellants,
v No. 129816
THE STATE OF MICHIGAN,
Defendant-Appellee,
and
GAMING ENTERTAINMENT, LLC 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 No. 129818
THE STATE OF MICHIGAN,
Defendant-Appellant,
and
GAMING ENTERTAINMENT, LLC 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 No. 129822
THE STATE OF MICHIGAN,
Defendant-Appellee,
and
GAMING ENTERTAINMENT, LLC,
2
Intervening Defendant-
Appellee,
and
LITTLE TRAVERSE BAY BANDS OF
ODAWA INDIANS,
Intervening Defendant-
Appellant,
and
NORTH AMERICAN SPORTS
MANAGEMENT COMPANY,
Intervening Defendant.
____________________________________
WEAVER, J. (dissenting).
I dissent from the majority’s decision holding that the amendatory
provision in the compacts at issue, and the exercise of that provision by Governor
Granholm, does not violate the Separation of Powers Clause, because the compact
containing the amendatory provision was not properly enacted by a legislative bill
and the Governor’s exercise of the amendatory provision is outside the limits of
the constitution. I would hold that the compacts are void because they are
legislation, required to be enacted by bill. As a result, I would hold that the
amendatory provisions contained within the compacts are also void.1
1
See Taxpayers of Michigan Against Casinos v Michigan, 471 Mich. 306,
353-354; 685 NW2d 221 (2004) (Weaver, J., concurring in part and dissenting in
part).
3
ANALYSIS
Michigan's Constitution separates the powers of government: “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. The executive power is vested in the Governor, Const
1963, art 5, § 1, and the legislative power is vested in the Senate and the House of
Representatives, Const 1963, art 4, § 1. The executive power is, first and
foremost, the power to enforce the laws or to put the laws enacted by the
Legislature into effect. People ex rel Sutherland v Governor, 29 Mich. 320, 325
(1874); People ex rel Attorney General v Holschuh, 235 Mich. 272, 275; 209 N.W.
158 (1926); 16A Am Jur 2d, Constitutional Law, § 258, p 165, and § 275, p 193.
The legislative power is the power to determine the interests of the public,
to formulate legislative policy, and to create, alter, and repeal laws. Id. The
Governor has no power to make laws. People v Dettenthaler, 118 Mich. 595, 602;
77 N.W. 450 (1898). “[T]he executive branch may only apply the policy so fixed
and determined [by the legislative branch], and may not itself determine matters of
public policy, change the policy laid down by the legislature, or substitute its own
policy for that of the legislature.” 16 CJS, Constitutional Law, § 359, pp 599-600.
Binding the state to a compact with an Indian tribe involves determinations
of public policy and the exercise of powers that are within the exclusive purview
4
of the Legislature. The compacts at issue in this case contain examples of policy
decisions made for each of the seven issues recognized in 25 USC
2710(d)(3)(C)(i) through (vii). 2
These compact provisions necessarily require fundamental policy choices
that epitomize “legislative power.” Decisions involving licensing, taxation,
criminal and civil jurisdiction, and standards of operation and maintenance require
a balancing of differing interests, a task the multimember, representative
2
As allowed under 25 USC 2710(d)(3)(c)(i), tribal law and regulations,
not state law, are applied to regulate gambling. But the compact applies state law,
as amended, to the sale and regulation of alcoholic beverages encompassing
certain areas. See § 10(A) of the compact. Under 25 USC 2710(d)(3)(c)(ii), the
tribe, not the state, is given responsibility to administer and enforce the regulatory
requirements. See Compact § 4(M)(1). As provided in 25 USC 2710(d)(3)(c) (iii),
to allow state assessments to defray the costs of regulating gaming, the compact
states that the tribe shall reimburse the state for the costs up to $50,000 it incurs in
carrying out functions that are authorized within the compact. See Compact §
4(M)(5). Also, the compact states that the tribe must pay two percent of the “net
win” at each casino derived from certain games to the county treasurer. See
Compact § 18(A)(i). Under 25 USC 2710(d)(3)(c)(iv), the tribe could tax the
gaming activity, but the compact does not allow such taxation. As allowed by 25
USC 2710(d)(3)(c)(v), the compact provides for dispute resolution procedures in
the event there is a breach of contract. See Compact § 7. As allowed by 25 USC
2710(d)(3)(c)(vi), the compact includes standards for whom a tribe can license and
hire in connection with gaming, Compact § 4(D), sets accounting standards the
gaming operation must follow, Compact § 4(H), and stipulates that gaming
equipment purchased by the tribe must meet the technical standards of the state of
Nevada or the state of New Jersey, Compact § 6(A). Under 25 USC
2710(d)(3)(c)(vii), the compact addresses the “other subjects that are directly
related to the operation of gaming activities” throughout the document. For
example, it allows for additional class III games to be conducted through the
agreement of the tribe and the state. Compact § 3(B). Also, the compact states that
the tribe must purchase the spirits it sells at the gaming establishments from the
(continued…)
5
Legislature is entrusted to perform under the constitutional separation of powers.
See Saratoga Co Chamber of Commerce v Pataki, 100 NY2d 801, 823; 766
NYS2d 654; 798 NE2d 1047 (2003).
The approval of a compact with an Indian tribe involves numerous policy
decisions. The executive branch does not have the power to make those
determinations of public interest and policy, but may only apply the policy as
fixed and determined by the Legislature. I would hold that committing the state to
the myriad policy choices inherent in negotiating a gaming compact constitutes a
legislative function. Thus, the Governor did not have the authority to bind the
state to a compact with an Indian tribe, as this Court wrongly concluded in
Taxpayers of Michigan Against Casinos v Michigan, 471 Mich. 306; 685 NW2d
221 (2004), and the Governor does not now have the power to unilaterally
exercise the amendatory provisions contained within the compacts.
CONCLUSION
I would hold that the power to bind the state to a compact with an Indian
tribe is an exercise of the legislative power, and that the Legislature must exercise
its power to bind the state by enacting a bill, not by passing a joint resolution. I
conclude that the compacts are void and, accordingly, so are the amendatory
(continued…)
Michigan Liquor Control Commission and that it must purchase beer and wine
(continued…)
6
provisions contained within the compacts. I would hold that the compacts are
void and that the provisions that permit the Governor to amend the compacts are
unconstitutional.
Elizabeth A. Weaver
(continued…)
from distributors licensed by the commission. Compact § 10(B).
7
STATE OF MICHIGAN
SUPREME COURT
TAXPAYERS OF MICHIGAN AGAINST
CASINOS and LAURA BAIRD, State
Representative in her official capacity,
Plaintiffs-Appellants,
v No. 129816
THE STATE OF MICHIGAN,
Defendant-Appellee,
and
GAMING ENTERTAINMENT, LLC, 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 No. 129818
THE STATE OF MICHIGAN,
Defendant-Appellant,
and
GAMING ENTERTAINMENT, LLC 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 No. 129822
THE STATE OF MICHIGAN,
Defendant-Appellee,
and
GAMING ENTERTAINMENT, LLC,
Intervening Defendant-Appellee,
and
LITTLE TRAVERSE BAY BANDS OF
ODAWA INDIANS,
Intervening Defendant-Appellant,
and
2
NORTH AMERICAN SPORTS MANAGEMENT
COMPANY,
Intervening Defendant.
_______________________________
MARKMAN, J. (dissenting).
I respectfully dissent. The majority here expands the “casino exception” to
representative government that it effectively established in Taxpayers of Michigan
Against Casinos v Michigan, 471 Mich. 306; 685 NW2d 221 (2004) (TOMAC I).
Pursuant to this exception, in the realm of Indian casinos: (1) the Legislature may
approve legislation by something other than the regular legislative process; (2) the
Governor may enact the equivalent of legislation without the involvement of the
Legislature; and (3) the Legislature may delegate its legislative power by
authorizing the Governor to exercise this power without imposing adequate
standards on its exercise. As I asserted in TOMAC I, the original ratification of the
instant compact by legislative resolution did not conform to the constitutional
requirements for the passage of legislation. Therefore, because this compact was
unconstitutionally established, the 2003 amendments of the compact at issue are
unconstitutional as well. Moreover, these amendments themselves constitute
legislation, and their unilateral adoption by the Governor violates provisions of the
Michigan Constitution that establish the procedures for the enactment of
legislation. Const 1963, art 4, §§ 25, 26, and 33. Further, even if I accepted the
rationale of the majority in TOMAC I that the compact did not constitute
3
legislation, I would still conclude that the Legislature’s purported grant of power
to the Governor to amend the compacts gives her amendatory authority without
standards, and thereby violates the Separation of Powers Clause of the Michigan
Constitution. Const 1963, art 3, § 2. The ultimate effect of the majority’s decision
is, in the realm of Indian casinos, to establish “government by contract” in lieu of
“government by constitution,” under which the Governor and the Legislature may
circumvent the charter of this state through the formation of contracts with outside
entities. This “government by contract” deprives the people of Michigan of the
right to exercise self-government with regard to Indian casino policy by permitting
the Governor to enact the equivalent of legislation, with little or no role for the
people’s elected representatives in the Legislature. For these reasons, I would
affirm the judgment of the Court of Appeals.
I. STATEMENT OF FACTS
In 1998, the state of Michigan and four Indian tribes entered into Indian
gaming compacts to allow casino gaming on tribal land pursuant to the federal
Indian Gaming Regulatory Act. 25 USC 2710(d)(1)(C). According to the
compacts’ terms, the compacts would take effect when House Concurrent
Resolution 115 was adopted by the Michigan Legislature on December 10, 1998.
In § 16, the compacts provide for their own amendment, stating:
This Compact may be amended by mutual agreement
between the Tribe and the State as follows:
4
(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.
* * *
(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.
This amendment process thus allows the Governor, acting on behalf of the state, to
propose an amendment to the tribes, which the tribes may or may not accept. The
tribes may also propose amendments to the Governor, who may accept or not
accept the proposed amendments on behalf of the state. Although the Legislature
initially ratified the compacts by resolution, the compacts exclude the Legislature
from the amendment process.
In July 2003, the Governor consented to amendments that had been
proposed by the Little Traverse Bay Bands of Odawa Indians (LTBB). These
amendments alter several features of the original compact. First, the amendments
allow the LTBB to create a second casino, subject to the approval of the local
5
government. Second, the amendments provide that the gambling age in the
second casino would be 21, instead of 18 as in the tribe’s first casino. Third, the
duration of the compact is lengthened from 20 to 25 years from the date of the
amendments. Fourth, the tribe would now make payments as directed by the
Governor, and not directly to the Michigan Strategic Fund. Fifth, the percentage
of the “net win” accorded to the state would be modified for the second casino.
Sixth, if another tribe was permitted more than two casinos, the LTBB would be
allowed to operate an equal number. Finally, the LTBB agreed to make payments
to the state as long as the state did not permit the erection of new casinos within a
specified ten-county area.
II. TOMAC I
In TOMAC I, I dissented from the majority’s decision to acquiesce to the
approval of the compacts by resolution. I continue to believe that TOMAC I was
wrongly decided. The compacts, in my judgment, constitute legislation under the
test adopted by this Court in Blank v Dep’t of Corrections, 462 Mich. 103; 611
NW2d 530 (2000). Because they are legislation, the Legislature and the Governor
were required to approve the compacts by the legislative process set forth in the
constitution. This method was not followed. Accordingly, the first reason that the
present amendments of the LTBB compact are unconstitutional is simply because
the compact itself was never constitutionally enacted. Moreover, as I sought to
explain in TOMAC I, the amendment procedure in the compacts violates the
6
Separation of Powers Clause, because this procedure allows the Governor to
amend legislation.
In TOMAC I, the critical issue was whether the compacts themselves are
legislation, and are thus subject to constitutional requirements for the enactment of
legislation. In Blank, this Court adopted a four-factor test developed by the United
States Supreme Court in Immigration & Naturalization Service v Chadha, 462 U.S.
919; 103 S. Ct. 2764; 77 L. Ed. 2d 317 (1983), to determine whether governmental
action constitutes legislation. I applied these factors in evaluating the compacts in
TOMAC I and concluded that the compacts were legislation.1 The four factors are
(1) whether the compacts at issue “‘had the purpose and effect of
altering . . . legal rights, duties and relations of persons . . . outside
the legislative branch,’” Blank, supra at 114; (2) whether the
Governor’s action in negotiating the compacts and the Legislature’s
resolution vote on the compacts supplanted legislative action; (3)
whether the compacts involved determinations of policy; and (4)
whether Michigan’s Constitution explicitly authorizes the
Legislature to approve these compacts by a resolution vote even if
they otherwise constitute “legislation.” [TOMAC I, supra at 378
(opinion by Markman, J.).]
1
The majority rejects the application of the Blank framework, stating that
“this Court already explained its position and addressed the flaws in Justice
Markman’s rationale in TOMAC I, supra at 318-333.” Ante at 9 n 2. Indeed, the
majority concluded in TOMAC I that the Blank framework was “not relevant
because the compacts [did] not constitute legislation.” TOMAC I, supra at 378 n 9
(opinion by Markman, J.). However, as I responded at the time, “the very point of
utilizing the [Blank] framework is to determine whether the compacts constitute
legislation.” Id. (emphasis in original). The majority does not even purport to
apply the Blank framework to the amendments to the compact.
7
For the reasons elaborated upon in TOMAC I, the compacts between the
state and the tribes constitute legislation. Concerning the first Blank factor, the
compacts alter the legal rights of persons outside the legislative branch, because
Indian casino gaming was illegal in Michigan under state and federal law before
the enactment of the compacts. Under 18 USC 1166(a), in the absence of a
compact, “all State laws pertaining to the licensing, regulation, or prohibition of
gambling, including but not limited to criminal sanctions applicable thereto, shall
apply in Indian country in the same manner and to the same extent as such laws
apply elsewhere in the State.” See TOMAC I, supra at 379-381. Because casino
gaming would be illegal on Indian lands under this provision if state law prohibits
such gaming, it was necessary in TOMAC I to determine whether Michigan law
prohibits Indian casino gaming in the absence of a compact. In fact, Michigan law
generally prohibits casino gaming. MCL 750.301. Casino gaming in Michigan is
only allowed pursuant to the Michigan Gaming Control and Revenue Act, MCL
432.201 et seq., which does not apply to “[g]ambling on Native American land,”
MCL 432.203(2)(d). Further, under the Indian Gaming Regulatory Act, class III
gaming,2 like that allowed in this case, is lawful on Indian lands only if the gaming
2
“[C]lass III gaming” is defined as “all forms of gaming that are not class I
gaming or class II gaming.” 25 USC 2703(8). “[C]lass I gaming” is defined as
“social games solely for prizes of minimal value or traditional forms of Indian
gaming engaged in by individuals as a part of, or in connection with, tribal
ceremonies or celebrations.” 25 USC 2703(6). “[C]lass II gaming” is defined as
“bingo” and “card games” that are either “explicitly authorized by the laws of the
(continued…)
8
is “conducted in conformance with a Tribal-State compact entered into by the
Indian tribe and the State . . . .” 25 USC 2710(d)(1)(C). Therefore, under both
federal and state law, casino gaming by these tribes would have been illegal in the
absence of the compacts. Moreover, the compacts require local units of
government either to create a local revenue sharing board to receive a percentage
of tribal gaming profits or to pay for the additional municipal burdens created by
the casinos, such as increased costs for public services. TOMAC I, supra at 382.
Regardless of which option is chosen by local units, the compacts impose new
duties on government. The compacts therefore alter the legal rights and duties of
persons outside the legislative branch by permitting the tribes to operate casinos,
and by requiring local units of government to undertake certain actions.
Concerning the second Blank factor, passage of the compacts by resolution
supplanted legislative action. Because federal law dictates that state laws apply
within Indian reservations in the absence of a compact, 18 USC 1166, the sole
alternative method for allowing Indian gaming in this state would have been
through an alteration of state law. As I earlier explained:
[I]n the absence of a compact, if the Legislature wanted to
make gambling on Indian land lawful, the only way it could do that
would be by either changing the gambling laws that are generally
(continued…)
State” or “not explicitly prohibited by the laws of the State . . . . ” 25 USC
2703(7)(A). However, class II gaming does not include “any banking card games,
including baccarat, chemin de fer, or blackjack,” or slot machines. 25 USC
2703(7)(B).
9
applicable within the state or by changing the reach of the [Michigan
Gaming Control and Revenue Act]. Changing those laws would, it
cannot seriously be disputed, require “legislation.” [TOMAC I,
supra at 384.]
With regard to the third Blank factor, enactment of the compacts involved
numerous policy determinations, of which “the most significant . . . was the initial
decision to make lawful what was otherwise unlawful-- casino gambling on the
subject Indian lands.” Id. at 385. Other considerations, including how many
casinos to allow, what the gambling age should be, what percentage of “net win”
the tribes should be required to pay to the state, whether to extend the state
employment security act and workers’ compensation benefits to casino workers,
and who should enforce the rules and regulations of the compacts, are all
significant policy decisions. Id.
Concerning the final Blank factor, the Michigan Constitution does not
allow the passage of legislation by resolution, except in specified instances that
were not relevant in TOMAC I.3
Because each of the Blank factors suggests that the Indian gaming
compacts are legislation, I concluded in TOMAC I that the compacts must be
approved by the regular constitutional process of enacting legislation.
Under the Michigan Constitution, “[a]ll legislation shall be by bill . . . .”
Const 1963, art 4, § 22. The constitution requires that “[n]o bill shall become a
3
See Const 1963, art 4, §§ 12, 13, and 37; art 5, § 2; art 6, § 25.
10
law without the concurrence of a majority of the members elected to and serving
in each house.” Const 1963, art 4, § 26. Once the Legislature approves a bill, it is
then presented to the Governor. If the Governor signs the bill, the bill is enacted
into law. Const 1963, art 4, § 33. If the Governor does not sign the bill, the
Governor may return the bill to the Legislature with her objections. Id. The
Legislature may enact the bill despite the Governor’s objections if two-thirds of
the members of each house vote for the bill. Id. If the Governor does not return
the bill, and the Legislature continues in session, the bill “shall become law as if
[the Governor] had signed it.” Id. After a bill becomes law, the constitution
specifies how a law may be amended: “The section or sections of the act altered or
amended shall be re-enacted and published at length.” Const 1963, art 4, § 25.
Under these constitutional provisions, in order to enact legislation, a bill must be
passed by both houses of the Legislature and then either approved by the
Governor or, if vetoed, by two-thirds of each house of the Legislature. To amend
a law once created, those sections amended must be reenacted by the same
process.
Because the Legislature approved the compacts by resolution, and such
compacts are legislation, the compacts were not validly approved under the
constitution. By approving the compacts, the majority in TOMAC I established
the first provision of the “casino exception” to representative government: the
Legislature may approve an Indian gaming compact by resolution, and is not
11
required to abide by the regular legislative process established in the state
constitution.
A second issue presented in TOMAC I concerned the constitutionality of
the amendment provisions in the compacts. Although the Court in TOMAC I
remanded this issue to the Court of Appeals, I addressed it because I believed that
it was ripe for our consideration. Under the compacts, the Governor possesses
amendatory authority; such authority allows the Governor, on behalf of the state,
to unilaterally modify the compacts. However, as already noted, the Michigan
Constitution requires that an amendment of legislation-- including an Indian
gaming compact-- be effected through the reenactment of the pertinent sections of
the statute. Const 1963, art 4, § 25. This reenactment must occur by the
constitutional method for the passage of legislation. The exercise of the legislative
power of amendment by the executive violates the provisions of the Michigan
Constitution that establish the procedure for enacting and amending legislation, as
well as the Separation of Powers Clause, which 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. Therefore, in TOMAC I, I would have held the amendatory
provision of the compacts unconstitutional and would not have remanded to the
Court of Appeals.
12
III. 2003 AMENDMENTS AND BLANK FACTORS
At issue in this case are the 2003 amendments of the LTBB compact.
Because the compact itself is unconstitutional, the amendments of the compact are
unconstitutional. Moreover, under the Blank factors, the 2003 amendments
themselves constitute legislation. The amendments alter the legal rights and duties
of persons outside the legislative branch, they supplant legislative action, they
involve determinations of public policy, and they are not authorized by the
Michigan Constitution. Because these legislative acts were undertaken
unilaterally by the Governor acting on behalf of the state, the enactment of these
amendments violated multiple provisions of the Michigan Constitution.
A. LEGAL RIGHTS AND DUTIES
The first Blank factor examines the effect of the amendments on the legal
rights, duties, and relations of persons outside the legislative branch. The 2003
amendments alter the rights and relations of persons outside the legislative branch.
The amendments allow a new casino to be built, which would not have been legal
under state and federal law before the 2003 amendments.4 As explained above,
under 18 USC 1166, state law applies to casino gaming on Indian lands. Under
4
Because the building of the second casino is “contingent on the approval
of the affected local unit of State government (either city, village, or township),”
§ 2(F) of the amended LTBB compact, one might assert that the legal rights of the
tribe have not been altered; that is, the LTBB has no “right” to build a second
casino until the local unit of government approves the location of the casino.
(continued…)
13
MCL 750.301, such gaming is generally prohibited in Michigan. Although MCL
432.203(1) allows for gaming “conducted in accordance with this act,” MCL
432.203(2)(d) states that the act does not apply to “[g]ambling on Native
American land and land held in trust by the United States for a federally
recognized Indian tribe on which gaming may be conducted under the Indian
gaming regulatory act, Public Law 100-497, 102 Stat. 2467.” Under MCL
432.203(2)(d), Indian casino gaming is not allowed on Indian land subject to the
Indian Gaming Regulatory Act. Thus, by allowing another casino to be built by
the LTBB, the amendments alter the legal rights of the LTBB, which now
possesses a legal right to build a second casino without violating state law.
Moreover, the amendments extend the duration of the compact from 20
years to 25 years from the date of the amendments. Because the compact was
effective in 1998, and the amendments became effective in 2003, the amendments
will enable the LTBB to operate casinos for ten years longer than the original
compact. From 2018 through 2028, the LTBB will be able to operate casinos,
something it could not have done lawfully in the absence of the amendments.
Further, under the original compact, if certain criteria were met, the LTBB
would no longer be required to make tribal gaming payments to the state. For
example, if the state were to allow a person to operate commercial casino games,
(continued…)
However, the 2003 amendments of the compact ensure that the LTBB will face no
(continued…)
14
and that person was neither a federally recognized Indian tribe operating a casino
pursuant to a compact nor a person operating a casino in Detroit pursuant to MCL
432.201 et seq., then the tribe could cease making payments to the state. The 2003
amendments add additional criteria: under the amended compact, if the prior
criteria apply, or if the state permits casinos to be built within ten specified
counties, the tribe will no longer be bound to make payments to the state.
Therefore, this amendment alters the legal duty of the tribe in terms of its gaming
payment obligations.5
Because the 2003 amendments alter the legal rights and duties of persons
outside the legislative branch in at least several ways, the first Blank factor
indicates that the 2003 amendments constitute legislation.
B. SUPPLANTING LEGISLATIVE ACTION
The second Blank factor considers whether the Governor’s 2003
amendments of the compact supplant legislative action. Federal law requires a
tribe to abide by state law in the absence of an Indian gaming compact. 18 USC
1166. As described above, Michigan law generally forbids the creation of new
casinos unless allowed by statute. MCL 750.301; MCL 432.203. Thus, in the
(continued…)
opposition from the state of Michigan when it builds its second casino.
5
The 2003 amendments also effect changes in the minimum gambling age
and in the percentages of “net win” that must be paid to the state. These changes,
however, only pertain to the second casino.
15
absence of an amendment of the Indian gaming compact, the LTBB could build a
second casino only if Michigan law was changed through legislation.
Moreover, the amendments extend the period that the tribe may operate its
casinos from 20 years to 25 years from the date of the amendments. As described
earlier, casino gaming by the LTBB is only legal pursuant to its compact under the
Indian Gaming Regulatory Act. In the absence of these amendments, it would
have been illegal in Michigan for the tribe to operate casinos from 2018 to 2028,
and the only way the tribe could operate casinos during that period would be
through a change in Michigan law through legislation.
Indeed, MCL 432.203(5) suggests that casino gaming must be authorized
by legislation, in the absence of a compact:
If a federal court or agency rules or federal legislation is
enacted that allows a state to regulate gambling on Native American
land or land held in trust by the United States for a federally
recognized Indian tribe, the legislature shall enact legislation
creating a new act consistent with this act to regulate casinos that are
operated on Native American land or land held in trust by the United
States for a federally recognized Indian tribe. The legislation shall be
passed by a simple majority of members elected to and serving in
each house. [Emphasis added.]
Under current federal law, a state does not possess the right to regulate gambling
on Native American land. California v Cabazon Band of Mission Indians, 480 U.S.
202, 207; 107 S. Ct. 1083; 94 L. Ed. 2d 244 (1987); 25 USC 2710(d). However, in
the event that federal law changes, MCL 432.203(5) requires the Legislature to
16
regulate Indian gaming through legislation.6 Thus, MCL 432.203(5) strongly
suggests that the enactment of legislation is the authorized method for regulating
Indian gaming in Michigan, if the state is accorded the power by federal law to
regulate such gaming.
In the absence of the instant amendments, the building of a new casino and
the ten-year extension of the period the LTBB may operate its casinos would only
be permitted through legislation. Thus, the amendments can fairly be said to
supplant legislative action, indicating that the amendments also constitute
legislation under the second Blank factor.
C. POLICY DETERMINATIONS
The third Blank factor considers whether a governmental action involves
“determinations of policy.” Blank, supra at 114 (opinion by Kelly, J.).
Indisputably, the enactment of these amendments involved policy determinations
of considerable and far-reaching consequence. The clearest example of such a
determination is obviously that the LTBB has been allowed to build a second
6
The majority opines that MCL 432.203(5) is “irrelevant [to this case]
because there is a compact . . . and the compact properly allows for amendments.”
Ante at 9 n 2 (emphasis in original). The majority misapprehends my argument.
Although I agree that MCL 432.203(5) is not directly applicable because federal
law does not currently entrust regulation of Indian gaming to Michigan, the statute
is nonetheless relevant. The second Blank factor considers whether the action
taken by the government would normally entail legislation. Because MCL
432.203(5) indicates that regulation of Indian gaming would normally entail
legislation, it contributes to the conclusion that the instant amendments supplant
legislative action.
17
casino, and will be allowed to operate its existing casino for ten years longer than
the original compact allowed. Presumably, the enlargement of casino operations
must have been premised at least in part on a determination that casinos generally,
and the LTBB casino in particular, have benefited the people of Michigan.
Such a determination is a policy determination of the sort routinely
undertaken by the elected representatives of the people in the Legislature. Absent
the “casino exception” to representative government, these legislators would be
required to confront a wide range of questions implicated by the expansion of
casino gaming in Michigan: whether the growth of casinos has adversely affected
the social environment of the state and, if so, whether there are ways by which this
can be ameliorated; whether any such adverse effect would be exacerbated by an
increase in the number of casinos; whether casinos have benefited or harmed non-
casino businesses in their communities; whether casinos have affected rates of
personal and business bankruptcies; whether casinos have affected crime rates;
whether casinos have resulted in the congestion of particular roads or otherwise
affected state and local infrastructure; whether casinos have had an adverse effect
on the quality of life in rural communities near casinos; whether casinos have
harmed aspects of the environment; and whether casinos have adversely affected
other tourist-related businesses within the state.
To confront these and other similar questions, legislators would normally
seek out the views of their constituents and interested organizations, both through
18
committee hearings and through less formal means, and debate these matters with
their colleagues. However, the result of the present amendment process for
matters pertaining to Indian casinos is that such traditional decision-making,
characteristic of a republican form of government, see US Const, art IV, § 4, has
been replaced by unilateral decision-making on the part of a single person not part
of the legislative branch. The third Blank factor thus also counsels in favor of
finding that these amendments constitute legislation.
D. MICHIGAN CONSTITUTION
The fourth Blank factor essentially examines whether the constitution
authorizes an exception to the normal legislative processes, in this case permitting
the Governor to undertake amendments of the law. Of course, the constitution
neither states nor implies such an exception. Rather, it defines the Governor’s
power by simply stating, “The executive power is vested in the governor.” Const
1963, art 5, § 1. With several very specific exceptions,7 the constitution does not
identify any traditionally legislative actions that the Governor may undertake, and
I am aware of no inherent executive power within Michigan that allows the
Governor to undertake such actions.
7
See Const 1963, art 5, § 19, pertaining to the Governor’s line-item veto
authority, and Const 1963, art 5, § 2, enabling the Governor to reorganize the
executive branch after the Legislature has organized the executive branch “by
law.”
19
Indeed, the constitution expressly sets forth the procedures for the
amendment of legislation: “The section or sections of the act altered or amended
shall be re-enacted and published at length.” Const 1963, art 4, § 25 (emphasis
added). Because the original LTBB compact constitutes legislation, the
amendment of the LTBB compact could only occur through “reenactment,” i.e.,
through legislation. As described above, the elaborate process for the enactment
of legislation established in article 4 nowhere allows the Governor to reenact
legislation on her own volition. Consequently, the Michigan Constitution does not
grant the Governor the executive authority to amend Indian gaming compacts.
Nor does any other provision of the constitution grant the Governor the
power to amend the compact absent involvement by the Legislature. The only
arguably appropriate provision, as I discussed in TOMAC I, supra at 400-402, is
Const 1963, art 3, § 5, which states:
Subject to provisions of general law, this state or any political
subdivision thereof, any governmental authority or any combination
thereof may enter into agreements for the performance, financing or
execution of their respective functions, with any one or more of the
other states, the United States, the Dominion of Canada, or any
political subdivision thereof unless otherwise provided in this
constitution.
By its terms, this provision applies only to agreements with other states, the
federal government, Canada, or any political subdivision of these. This provision
does not refer to Indian tribes, and therefore the Governor does not appear to
possess the authority under this provision to unilaterally enter into agreements
20
with Indian tribes, even with legislative authorization. See TOMAC I, supra at
400-402 (opinion by Markman, J.). Even supposing that this provision does allow
the Governor to amend a compact with Indian tribes, such agreements are limited
to “agreements for the performance, financing or execution of their respective
functions,” the latter presumably referring to the Governor’s exercise of her
authority as the chief executive of this state. Const 1963, art 3, § 5. As I stated in
TOMAC I, supra at 402, “[T]he duty and power to set the parameters for casino
gambling on land within Michigan’s borders is not in any comprehensible sense a
‘function’ of the executive branch.” The amendments at issue here-- extending the
duration of the compacts, enabling a new casino, adjusting the gambling age for
that casino, altering tribal gaming payments-- are not related in any coherent sense
to the Governor’s executive role. Because there is no constitutional warrant for
the authority exercised here by the Governor, the fourth Blank factor also suggests
that the amendments of the compact constitute legislation.
The Blank factors thus demonstrate, I believe, that the 2003 amendments
constitute legislation. This conclusion accords with the decisions of other courts
that have held that Indian gaming compacts constitute legislation. State ex rel
Clark v Johnson, 120 NM 562, 573; 904 P2d 11 (1995) (holding that the
governor’s unilateral approval of an Indian gaming compact was “an attempt to
create new law,” in violation of New Mexico’s separation of powers clause);
Saratoga Co Chamber of Commerce, Inc v Pataki, 100 NY2d 801; 766 NYS2d
21
654; 798 NE2d 1047 (2003) (holding that approval of Indian gaming compact by
the governor usurped the power of the legislature and violated the state
constitution and the separation of powers doctrine); Narragansett Indian Tribe of
Rhode Island v State, 667 A2d 280 (RI, 1995) (holding that the legislature, not the
governor, has power to approve compacts under the state constitution); Panzer v
Doyle, 271 Wis 2d 295, 338; 680 NW2d 666 (2004) (holding that “committing the
state to policy choices negotiated in [Indian] gaming compacts constitutes a
legislative function”), overruled in part on other grounds by Dairyland Greyhound
Park, Inc v Doyle, 295 Wis 2d 1; 719 NW2d 408 (2006); American Greyhound
Racing, Inc v Hull, 146 F Supp 2d 1012 (D Ariz, 2001) (holding that power to
enter into Indian gaming compacts is “legislative”), vacated on other grounds 305
F3d 1015 (CA 9, 2002); State ex rel Stephan v Finney, 251 Kan 559; 836 P2d
1169 (1992) (holding that the power to bind the state to an Indian gaming compact
is “legislative”).
Because the amendments constitute legislation, they can only be effected
by the procedures set forth in the constitution. As noted earlier with regard to
amending a legislative act, Const 1963, art 4, § 25 requires the “section or sections
of the act altered or amended” to be “re-enacted.” Amendments to laws are
therefore subject to the same procedural requirements as newly enacted laws.
The amendment process established in the LTBB compact violates this
procedure. Instead of the Legislature originating a bill to amend the compact, the
22
Governor effected the amendments on her own authority. No bill was passed by
the Legislature, and no bill was presented to the Governor. The process that was
followed violated a variety of sections of the Michigan Constitution concerning
how a bill becomes a law: Const 1963, art 4, §§ 25, 26, and 33. As a result, the
Governor has exercised-- and the Legislature has allowed her to exercise-- powers
granted solely to the Legislature.8 Thus, the amendments violate the Separation of
Powers Clause, Const 1963, art 3, § 2, which states: “No person exercising powers
of one branch shall exercise powers properly belonging to another branch except
as expressly provided in this constitution.” By approving the Governor’s exercise
of amendatory power, the majority establishes the second provision of the “casino
exception” to representative government: in the realm of Indian casinos, the
Governor may enact the equivalent of legislation without the involvement of the
Legislature.
The majority opinion, which permits the Governor to undertake legislative
acts by contracting with the affected Indian tribe, may be aptly described as
establishing, in the realm of Indian casinos, “government by contract” in lieu of
“government by constitution.” Pursuant to this, the Governor and the Legislature
8
The Legislature’s acquiescence in the enlargement of the Governor’s
power is irrelevant in assessing the propriety of this grant: “the acceptance by one
branch of the expansion of the powers of another branch is not dispositive in
whether a constitutional power has been properly exercised.” Nat’l Wildlife
Federation v Cleveland Cliffs Iron Co, 471 Mich. 608, 616; 684 NW2d 800
(2004).
23
may avoid restrictions, i.e., checks and balances, imposed under our “government
by constitution,” which provides that the Legislature alone may exercise “[t]he
legislative power of the State of Michigan,” Const 1963, art 4, § 1, and that the
Governor may exercise only “[t]he executive power,” Const 1963, art 5, § 1.
IV. ACCEPTING THE PREMISE OF TOMAC I
Even accepting the premise of the majority in TOMAC I that the instant
compact does not constitute legislation, I would still dissent. The amendment
procedure in the LTBB compact improperly delegates the legislative power to
contract to the Governor because the Legislature has failed to impose adequate
standards on the Governor’s exercise of that power.
As already noted, the Michigan Constitution grants the legislative power--
the entirety of it-- to the Legislature. Const 1963, art 4, § 1. The Legislature
retains the general power to contract. See TOMAC I, supra at 328 (“[O]ur
Legislature has the general power to contract unless there is a constitutional
limitation.”); Advisory Opinion on Constitutionality of 1976 PA 240, 400 Mich.
311, 318; 254 NW2d 544 (1977). Here, the Legislature has authorized the
Governor to carry out the contracting power through the amendment provision in
the compact. Even if the compact as a whole had been validly approved by the
Legislature under the rationale of TOMAC I, the Legislature was still required to
have properly authorized the exercise of the contracting power in the amendment
provision. If the exercise of the contracting power was improperly authorized,
24
then the Legislature essentially delegated its legislative power to the Governor and
thereby violated the Separation of Powers Clause.
“Strictly speaking, there is no acceptable delegation of legislative power.”
Mistretta v United States, 488 U.S. 361, 419; 109 S. Ct. 647; 102 L. Ed. 2d 714(1989) (Scalia, J., dissenting) (emphasis in original). In determining whether a
delegation of legislative power has occurred, the Court should inquire whether the
Legislature has “authorize[d] the exercise of executive or judicial power without
adequate standards.” Id. Justice Scalia elaborated: “The focus of controversy . . .
has been whether the degree of generality contained in the authorization for
exercise of executive or judicial powers in a particular field is so unacceptably
high as to amount to a delegation of legislative powers.” Id. (emphasis in
original). A determination whether the Legislature has improperly delegated
legislative power to the Governor requires that this Court examine whether the
authorization of amendatory power provides “adequate standards” for the
Governor’s exercise of amendatory power, and whether the “degree of generality .
. . is so unacceptably high as to amount to a delegation of legislative powers.” Id.
“The true distinction . . . is between the delegation of power
to make the law, which necessarily involves a discretion as to what it
shall be, and conferring authority or discretion as to its execution, to
be exercised under and in pursuance of the law. The first cannot be
done; to the latter no valid objection can be made.” [Id. at 418
(emphasis in original), quoting Field v Clark, 143 U.S. 649, 693-694;
12 S. Ct. 495; 36 L. Ed. 294 (1892).]
25
This Court considered whether an authorization of executive power
violated the principle of separation of powers in Soap & Detergent Ass’n v
Natural Resources Comm, 415 Mich. 728; 330 NW2d 346 (1982). Soap &
Detergent considered a separation of powers challenge to the Governor’s power to
reorganize executive agencies. Id. at 751. Although the Governor possesses the
power to reorganize under Const 1963, art 5, § 2, Soap & Detergent nonetheless
characterized this power as a “legislative” power.9 Id. After noting that the grant
of power to the Governor under the constitution precluded a separation of powers
claim, Soap & Detergent argued that inherent checks in Michigan’s constitutional
scheme barred the conclusion that the principle of separation of powers had been
violated:
Article 5, § 2, does not by any means vest “all” or any
considerable legislative power in the executive. While it is true that
broad legislative power has been delegated to the Governor to
effectuate executive reorganization, this power is clearly limited.
Three limitations must be emphasized. First, the area of executive
exercise of legislative power is very limited and specific. Second,
the executive branch is not the sole possessor of this power; the
Legislature has concurrent power to transfer functions and powers of
the executive agencies. Third, the Legislature is specifically granted
the power to veto executive reorganization orders before they
become law.
9
It is axiomatic that when the constitution grants a specific power to the
executive branch, that power becomes an “executive” power, however it might
have been characterized in the absence of such a grant. Cf., e.g., Const 1963, art
3, § 8 (advisory opinions as part of the “judicial power” in Michigan). I cite Soap
& Detergent here only because it illustrates the criteria for determining when a
violation of the separation of powers occurs.
26
Therefore, the specific intent of the constitutional convention
in fashioning art 5, § 2, having been to delegate a very limited and
specific legislative power to the executive, and this provision having
been adopted into the constitution with sufficient checks to restrain
an improper exercise of this power, we find no constitutional
infirmity negating the Governor’s ability to transfer rulemaking
authority from one agency to that agency’s department head. [Id. at
752-753.]
Under Soap & Detergent, when one branch authorizes the use of power by another
branch, the authorizing branch must provide “sufficient checks” on the exercise of
power. Whether the Legislature has provided sufficient checks on the exercise of
power depends on whether the authorization of power is “limited and specific,”
whether the branch authorizing the power retains concurrent power, and whether
the branch authorizing the power may veto the decisions of the branch exercising
the power.
Although I would prefer to cast this inquiry in terms of whether the power
being conferred has, by the constraints placed upon its exercise, been effectively
transformed from a power properly exercised by the grantor branch into a power
properly exercised by the grantee branch, Soap & Detergent does identify
important aspects of this analysis.
Although this Court has never before addressed an authorization of
amendatory power in the context of Indian gaming compacts, the Wisconsin
Supreme Court addressed a similar question in Panzer v Doyle, supra. In Panzer,
the Wisconsin legislature had statutorily authorized the governor to enter into and
amend compacts with Indian tribes. Id. at 303. “The delegation of power to a
27
sister branch of government must be scrutinized with heightened care to assure
that the legislature retains control over the delegated power . . . .” Id. at 335.
Panzer held that the Wisconsin legislature had properly authorized the governor to
enter into Indian gaming compacts because the legislature retained “procedural
safeguards” against the abuse of this power. Id. at 340-341. First, the legislature
could repeal the statute enabling the governor to enter into Indian gaming
compacts; second, the legislature could amend the statute to require that
modifications be subject to legislative ratification; third, the governor would be
held accountable for his actions at the ballot box. Id. at 341.
Panzer next addressed whether the legislature had properly authorized the
governor to extend the duration of an Indian gaming compact indefinitely by later
amendments of the compact entered into solely by the governor. Id. at 341-342.
The governor had amended the compact to effectively prevent the state from
rescinding the compact in the future, thereby rendering the duration of the
compact indefinite. Panzer stated:
We think it is extremely unlikely that, in the factual and legal
atmosphere in which [Wis Stat] 14.035 was enacted, the legislature
intended to make a delegation that could terminate its ability to
make law in an important subject area. If such a far-reaching
delegation were in fact intended, the delegation would be
unconstitutional. [Id. at 347-348 (citation omitted).]
Panzer concluded that the Wisconsin legislature could not have authorized the
governor to extend the duration of the compacts, even if it had intended to do so,
because the legislature would lose all ability to control the power that it had
28
authorized the governor to wield. “The legislature would be powerless to alter the
course of the state’s position on Indian gaming” by changing state law. Id. at 345.
The authorization of the Governor’s use of amendatory power in the LTBB
compact constitutes a similar delegation of legislative power and hence violates
the Separation of Powers Clause. Legislative power has been delegated here
because the authorization of power does not impose “adequate standards” on the
exercise of that power, and the “degree of generality . . . is so unacceptably high as
to amount to a delegation of legislative powers.” Mistretta, supra at 419 (Scalia,
J., dissenting). The Legislature placed a single restriction on the Governor’s
ability to amend the compact: the Governor merely cannot expand the counties in
which the LTBB may operate casinos. Beyond this stricture, the Governor
possesses plenary authority, subject to no constraint beyond her own discretion, in
the exercise of the contracting power. The compact imposes no limit on where or
when the Governor may authorize new casinos. The compact imposes no limit on
when or for how long the Governor may extend its duration. The compact
imposes no procedural standards or obligations upon the Governor. For example,
the Governor is not required to submit proposed amendments to the Legislature, to
the affected local unit of government, or to any other governmental body, before
enacting amendments of the compact. The compact contains no overarching
standard to guide the Governor in her exercise of the amendatory power, not even
one as general as those that have sustained delegations of power by the Congress
29
to federal administrative agencies, e.g., the Federal Communications Commission
must regulate to promote the “public convenience, interest, or necessity . . . .” 47
USC 303. The LTBB compact contains no standard, broad or narrow, substantive
or procedural, that would transform the legislative power being delegated into an
executive power. Consequently, the authorization of the amendatory power
constitutes an unconstitutional delegation of legislative power.
Thus, the majority establishes the third provision of the “casino exception”:
in the realm of Indian casinos, the Legislature may authorize the exercise of power
without imposing any standard on the Governor’s exercise of power, thereby
effectively delegating legislative power to the Governor.
Moreover, Soap & Detergent directs this Court to consider whether the
authorization of power is “limited and specific,” whether the branch authorizing
the power retains “concurrent power,” and whether the branch authorizing the
power “is specifically granted the power to veto” the other branch’s exercise of
that power. Soap & Detergent, supra at 752. None of these considerations alters
the conclusion that the Governor here is exercising a legislative power. First, the
authorization of the amendatory power is not “limited” or “specific.” Pursuant to
these amendments, the Governor has already allowed another casino and extended
the duration of the compact for 25 years; there is nothing that precludes the
Governor and her successors from allowing 50 or 100 casinos and extending the
compact indefinitely. Second, unlike in Soap & Detergent, the Legislature here
30
does not retain any power to amend compacts with the LTBB. Third, the
Legislature cannot thwart actions of the Governor by legislative veto. The
Governor’s ability to expand the scope of the compacts is plenary.
Moreover, under the rationale in Panzer, the Legislature should never be
allowed to completely “terminate its ability to make law in an important subject
area.” Panzer, supra at 347. In this case, the Legislature has wholly ceded its
ability to effect future amendments of the compact. The Legislature’s
acquiescence to the amendment procedure “terminate[d] its ability to make law in
an important subject area.” Id. Such acquiescence transforms both the legislative
and executive powers of our state by precluding the Legislature in the future from
reasserting its proper authority over both state contracting and Indian casinos.
Rather, it will remain bound indefinitely by the actions of the Legislature in 1998.
The majority argues: (1) because the Legislature properly approved the
compacts under TOMAC I, any amendment approved by the Governor pursuant to
the amendment process would be permissible, but only as long as the amendment
is “within the limits of the constitution,” ante at 4, 9, and 14; (2) the Legislature
acquiesced in the authorization of the Governor’s exercise of amendatory power
by approving the compacts by resolution; (3) the Legislature may properly confer
amendatory authority on the Governor, citing People ex rel Sutherland v
Governor, 29 Mich. 320 (1874), and discretionary decisions made by the Governor
pursuant to delegated authority are not reviewable by this Court, citing People ex
31
rel Ayres v Bd of State Auditors, 42 Mich. 422; 4 N.W. 274 (1880); (4) the conferral
of amendatory power on the Governor was “limited and specific,” Judicial
Attorneys Ass’n v Michigan, 459 Mich. 291; 586 NW2d 894 (1998); and (5) the
amendments “‘[did] not impose new obligations’” on the people of Michigan
because the amendments “‘simply reflect the contractual terms agreed to by two
sovereign entities.’” Ante at 11, quoting TOMAC I, supra at 327. I will briefly
respond to these arguments.
First, the majority argues that the Legislature validly approved the
amendment procedure in the compact, thereby “giv[ing] the Governor broad
discretion-- within the limits of the constitution-- to amend the compacts.” Ante at
9. However, this ignores that our constitution itself limits the methods by which
the LTBB compact may be amended, by defining and limiting the powers of the
three branches of government. An amendment procedure in violation of the
separation of powers is made unconstitutional by Const 1963, art 3, § 2.
Second, the majority also argues that the Legislature acquiesced to the
delegation of power to the Governor. While this may be true, it is this Court's
obligation to uphold the constitution in service to the people, not in service to a
particular branch of government. Moreover, it is our obligation to uphold the
permanent interests of the separate branches, not those of its particular members at
a particular moment in time. That one branch agrees to the exercise by another of
an unconstitutional power does not mitigate the breach of the constitution. The
32
premise of a government of defined and limited constitutional powers is that the
rights of “we the people” will most securely be maintained by this method. “The
acceptance by one branch of the expansion of the powers of another branch is not
dispositive in whether a constitutional power has been properly exercised.” Nat’l
Wildlife Federation, supra at 616.
Third, the majority contends that Sutherland allows the Legislature “to
confer authority on the Governor.” Ante at 10. It further contends that
“discretionary decisions made by the Governor are not within this Court’s purview
to modify.” Ante at 10, citing Ayres, supra at 426. Who could doubt either of
these propositions? However, the relationship these propositions bear to the
majority’s conclusion that the Legislature may “confer authority” upon another
branch of government in any way or to any extent the Legislature chooses is hard
to comprehend. Sutherland did not assert that courts should be disinterested in the
nature of the authority being conferred, and Ayres did not assert that all decisions
made by a Governor were “discretionary.” Indeed, neither Sutherland nor Ayres
even addressed delegations of “legislative power” to the executive.10 The
10
In Sutherland, the Legislature had granted the Governor the discretion to
issue certificates stating that a canal and harbor had been built in conformity with
federal law. The dispute in Sutherland centered on whether this power was an
“essentially executive” duty or a ministerial duty. Sutherland, supra at 329. In
Ayres, the Legislature had authorized the Board of State Auditors to solicit
contracts for the printing of Supreme Court reports. Ayres noted that “State
officers inferior to the Governor have many duties which courts can compel them
to perform . . .” Ayers, supra at 427. The dispute in Ayres was whether the Board
(continued…)
33
majority’s casual assertion of governmental authority simply bears no resemblance
to any traditional understanding of American constitutionalism.
Fourth, the majority invokes the test from Judicial Attorneys Ass’n v
Michigan in support of its decision, but fails to properly apply that test. The
majority states:
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 . . . .” [Ante at 7, quoting Judicial Attorneys, supra at
297.]
Judicial Attorneys concluded that a statute that allowed a local county to become
the employer of judicial employees was not “limited and specific” and constituted
an “aggrandizement” of the Legislature at the expense of the judicial branch. Id.
at 301-303.11 In the instant case, the Governor has been given the power to
unilaterally amend the compact, constrained only by her inability to alter the
definition of “eligible Indian lands.” This near-plenary power is neither “limited”
(continued…)
of State Auditors could be compelled to perform its duties in a manner similar to
an inferior officer.
11
I dissented in part from the Court of Appeals opinion in the Judicial
Attorneys cases and would have found that the Separation of Powers Clause was
not violated. See Detroit Mayor v Michigan, 228 Mich. App. 386; 579 NW2d 378
(1998). I concluded that “any potential separation of powers concerns are not ripe
for decision,” id. at 427, and that the law in dispute “could be construed or applied
in many ways, in many combinations and permutations, anticipated and
unanticipated, some of which would engender no serious constitutional difficulties
and others of which might be inconsistent with Const 1963, art 3, § 2 in whole or
(continued…)
34
nor “specific,” and permits the “aggrandizement” of the executive branch at the
expense of the legislative, which will play a sharply limited role in the formulation
of Indian casino policy.
The majority further contends that the authorization of power in this case is
limited by the “compacts themselves” and by the Governor’s inability to “agree to
an amendment that would violate the constitution or invade the Legislature’s
lawmaking function.” Ante at 10 n 3. However, as already mentioned, there is
only a single relatively insignificant limitation upon the Governor in the compact
itself, and the majority apparently understands constitutional violations only in
terms of substantive and not procedural terms. That is, while the Governor
presumably could not set different minimum age limits for gambling in new
casinos on the basis of race or nationality, the fact that she has exercised
legislative power in this realm in the first place apparently does not implicate the
constitution, no matter how much “aggrandizement” of one branch has occurred at
the expense of another.
Finally, the majority concludes by saying, “[T]he amendments ‘do not
impose new obligations on the citizens of the state subject to the Legislature’s
power; they simply reflect the contractual terms agreed to by two sovereign
entities.’” Ante at 11, quoting TOMAC I, supra at 327. The issue in the instant
(continued…)
in part.” Id. at 439. This case is distinguishable in that the Governor’s exercise of
(continued…)
35
case is not whether the 2003 amendments were agreed to by “two sovereign
entities”; obviously they were.12 Rather, the issue is whether the procedure
undertaken to approve the 2003 amendments complied with the requirements of
our constitution. Just as the United States cannot enter into a treaty with Belgium,
and Michigan cannot enter into a compact with Ohio, by extra-constitutional
procedures, neither can Michigan negotiate an Indian casino compact by extra-
constitutional means. The amendment procedure utilized here involves an
unconstitutional delegation of legislative power to the Governor because it fails to
provide “adequate standards”-- indeed it fails to provide any standards-- for the
Governor’s exercise of such power. Such standards are necessary to transform a
legislative power into an executive power. The majority’s conclusion that the
amendments “‘simply reflect the contractual terms agreed to by two sovereign
entities’” is simply irrelevant to the necessary constitutional analysis.13
(continued…)
power engenders “serious constitutional difficulties” under all circumstances.
12
See TOMAC I, supra at 397 (“I do not dispute that the compacts are akin
to contracts of a unique nature.”).
13
The majority asserts that the contractual nature of the compact and the
amendments is relevant because “‘mutual assent’” is “‘a characteristic that is not
only the hallmark of a contractual agreement but is also absolutely foreign to the
concept of legislating.’” Ante at 11 n 4, quoting TOMAC I, supra at 324. I do not
disagree that the compact and its amendments are contractual. Where I disagree is
in the majority’s assertion that, when acting pursuant to a contract, the Governor
and the Legislature are no longer bound by the grants and limitations of authority
set forth in our constitution. The fundamental flaw in the majority opinion is that
(continued…)
36
Moreover, the majority’s assertion that the amendments are not legislation
because they “‘do not impose new obligations on the citizens of the state’” simply
ignores the reality that the citizens of this state are now obliged to admit a new
casino and an indefinite number of future casinos into their communities, replete
with the attendant economic and social consequences, without their elected
representatives having had a voice in this determination. It is hard to conceive of a
greater “obligation” being imposed upon a free citizenry than to be deprived of its
ability to effectively communicate with its elected representatives.
V. CONSEQUENCES OF MAJORITY OPINION
The separation of powers among our three branches of government is not
an afterthought to our constitutional structure. “The framers of Michigan’s
Constitution understood well the importance of separating the powers of
government.” 46th Circuit Trial Court v Crawford Co, 476 Mich. 131, 141; 719
NW2d 553 (2006). “By separating the powers of government, the framers of the
Michigan Constitution sought to disperse governmental power and thereby to limit
its exercise.” Nat’l Wildlife Federation, supra at 613. With regard to this state’s
Separation of Powers Clause, the official proposal at the Constitutional
Convention stated:
(continued…)
it never explains why the LTBB contract should be permitted to prevail over the
contract between the people and their government embodied in our constitution.
37
The doctrine of the separation of powers prevents the
collection of governmental powers into the hands of 1 man, thus
protecting the rights of the people. It is as old as our American
governmental system, and was devised by our founding fathers,
greatly influenced by the French political theorist, Montesquieu.
Desirous of protecting a free people, their idea was that if, somehow,
the powers of government could be divided, it could not grow so
large as to enslave them. [1 Official Record, Constitutional
Convention 1961, at 601.]
In equally strong language, former Justice Cooley explained that the separation of
powers “operates as a restraint upon such action of the [other branches of
government] as might encroach on the rights and liberties of the people, and
makes it possible to establish and enforce guaranties against attempts at tyranny.”
Cooley, The General Principles of Constitutional Law in the United States of
America (Boston: Little, Brown & Co, 1880), p 43.
The majority allows the Governor, with the acquiescence of the Legislature,
to circumvent the separation of powers principle embedded in Const 1963, art 3, §
2; art 4, § 1; art 5, § 1; and art 6, § 1. The grant of power from the Legislature in
this case authorizes the Governor to enter into a contract. By some unexplained
alchemy, such contract-- one authorized by constitutionally-designated officials in
the legislative branch and one negotiated by a constitutionally-designated official
in the executive branch-- is somehow permitted to trump a precedent contract that
is part of the constitution. This precedent contract, entered into between “[w]e, the
people of the State of Michigan” and its government, “ordain[ed] and establish[ed]
this constitution.” Const 1963, Preamble (emphasis added). “[T]his constitution”
38
sets forth an architecture and a process of government instituted for the “equal
benefit, security and protection” of the people. Const 1963, art 1, § 1.
Governmental officials are to operate within these constraints. Here, the majority
allows these officials to act in disregard of constraints placed upon them by the
constitution and thereby to impose new obligations upon the people.
As a result, a matter of public policy significance-- the nature of Indian
gaming within this state-- is exempted from the regular processes of government.
Through an improper delegation and exercise of legislative power, the Legislature
has been deprived of its future authority to act on behalf of the people in this
realm, the people have lost the effective opportunity to “instruct their
representatives” in this same realm, Const 1963, art 1, § 3, and communities
across the state have had diluted their ability to influence their local
representatives in the law-making process in this realm. It is fair to describe the
effect of the majority opinion, in conjunction with its opinion in TOMAC I, as the
creation of a “casino exception” to representative government. Within the realm
of the “casino exception,” government is undertaken by contract rather than by
regular constitutional processes, and public policy decisions normally within the
contemplation of the legislative process are made by executive branch negotiators
rather than by elected legislators.
Because of the majority opinion, the LTBB will be allowed to build a
second casino in a second Michigan community, unburdened by the involvement
39
of the people’s elected representatives in the Legislature. Perhaps this will prove
to be a wise judgment. Perhaps the effect of these casinos-- as well as the effect of
an unknown number of future casinos to be established by this same process over
the next quarter-century-- will prove salutary. Perhaps the effect of these and later
casinos on traffic, the environment and pollution, nearby schools, rural lifestyles,
the character of communities, levels of noise, rates of crime, the competitiveness
of state and local businesses, the incidence of bankruptcies, and the moral and
social fabric of our state will all turn out well. Even if so, however, decisions such
as these should be undertaken by the people through their elected representatives
and not through the processes of the “casino exception” to representative
government. The result of the majority’s approach will be that, in the realm of
Indian casinos, the authority of the people will be eroded, local influence will be
eroded, and self-government itself will be eroded.
VI. CONCLUSION
In my judgment, the Governor’s approval of the 2003 amendments violates
the constitution, and the majority errs in affirming this action through what I view
as the effective creation of a “casino exception” to representative government. By
this exception, the majority enables the following:
First, in the realm of Indian casinos, the majority allows the Legislature to
approve legislation through something other than the regular legislative process
established by the constitution, as in this case where the Legislature approved the
40
LTBB compact by a simple resolution vote. Because the compact constitutes
legislation, it was unconstitutionally enacted in deviation from the regular
legislative process. Consequently, the amendments of the compact are themselves
unconstitutional.
Second, in the realm of Indian casinos, the Governor may enact the
equivalent of legislation without the involvement of the Legislature, as in this case
where the Governor has unilaterally approved amendments of the LTBB compact.
Because the amendments of the compact themselves constitute legislation under
the Blank factors, unilateral enactment of these amendments violated the
provisions of our constitution that establish the procedure for the passage of
legislation, Const 1963, art 4, §§ 25, 26, and 33, as well as the clauses pertaining
to the separation of powers, Const 1963, art 3, § 2; art 4, § 1; art 5, § 1; art 6, § 1.
Consequently, the amendments are unconstitutional.
Third, in the realm of Indian casinos, the Legislature may delegate
legislative power without supplying an adequate standard for its exercise, as in this
case where the Legislature delegated to the Governor amendatory power over the
compact without specifying any standards for its exercise. Consequently, the
compact unconstitutionally delegates legislative power, and the Governor’s
exercise of that power by enacting the 2003 amendments is unconstitutional.
The majority allows the Governor and the Legislature to act outside their
authority and beyond the limitations of our constitution. As a result, in the realm
41
42
of Indian casinos, I believe that the authority of the people to exercise self-
government will be diminished. For these reasons, I respectfully dissent.
Stephen J. Markman
43