Attorney General v. Powerpick Player's Club of Michigan, LLC

Attorney Club General v PowerPick ATTORNEY GENERAL v MICHIGAN, POWERPICK PLAYER’S CLUB OF LLC 9, 2009, Rapids. Docket No. 283858. Submitted June at Grand Decided January 2010, at 9:05 a.m. Attorney Court, brought The General an action in the Kent Circuit Buth, J., George against Player’s Michigan, S. Club of LLC, enjoin seeking alleged public resulting an nuisance from operation professional defendant’s of what it characterizes as a lotteiy Attorney alleged opera- club. The General that defendant’s antigambling tions violated several statutes and therefore consti- enjoinable public operations tuted an nuisance and that the violated (MCPA), the seq. Consumer Protection Act MCL 445.901 et Attorney summary disposition, alleging General moved for dispute regard only there was no with to the facts and that the matter legal to be decided was what conclusions could be drawn from the summary disposition, facts. asserting PowerPick also moved for Attorney several affirmative defenses. The court denied the General’s motion, concluding yet that there were a number of factual issues Attorney appealed by granted. decided. The leave Appeals

The Court of held: ruling 1. At the time of the circuit court’s there remained no genuine precluded grant issue of material fact that would have summary disposition respect Attorney with to the General’s nuisance present disputed claim. The only evidence did not issues of fact. The question presented opera- for resolution was whether PowerPick’s tions, as described in the uncontroverted materials and documents presented court, scope to the circuit fell within the of the statutes Attorney purely legal cited question General. This was court, question jury. anot factual for the judgment 2. The General was entitled to as a matter respect of law with to the nuisance claim because PowerPick’s operations enjoinable denying constituted an nuisance. The order summary disposition General’s motion for with respect to the nuisance claim must be reversed. contemplates placement 3. PowerPick’s PowerPool scheme registers of bets under MCL 750.301. PowerPick those bets in 750.304, possesses and PowerPick memoranda of violation of MCL bets in violation of MCL 750.306. assignment of the individual 4. PowerPick’s random customers to uncertainty injects into a an additional element PowerPools sharing winning the chance of in a ticket and customers customer’s computerized assignments. This

bet on the outcome of these random encompassed betting. scheme is within the definition of against lottery by general prohibition 5. The the sale of tickets 432.27(1) persons encompasses contained in unlicensed MCL for-profit, third-party lottery transfers. PowerPick sells tickets or price greater at a than that fixed rule of the shares 432.27(1). Lottery commissioner in violation of MCL periodic drawings Michigan Lottery random for 6. PowerPick’s lottery illegal meaning scratch-off tickets constitute an within the 750.372, MegaPools illegal gift and an of MCL the constitute enterprise meaning within the of MCL 750.372. Although lottery generally 7. an unscratched instant ticket has worth, monetary great little or no actual it can have deal of potential may “prize” purposes value and thus constitute a for of considering lottery consisting the traditional elements of a consideration, prize, and chance. provisions by setting 8. PowerPick violates the of MCL 750.372 up managing periodic drawings and the for scratch-off and MegaPools. the gaming 9. PowerPick’s various schemes violate the terms of 432.27(1), 750.301, 750.304, 750.306, MCL MCL MCL MCL and gambling validly MCL 750.372. The and statutes were morals, preserve public safety, enacted to and welfare. Harm to public presumed operations to flow from PowerPick’s operations, violate these statutes. PowerPick’s business taken as a whole, public constitute a nuisance. furniture, in 10. PowerPick’s office Comstock Park and the fixtures, and contents of the office constitute a nuisance as a matter of law. engages gambling meaning 11. PowerPick within the

MCL 600.3801. periodic drawings 12. PowerPick’s for tickets con- scratch-off gambling stitute under MCL 600.3801. owns, leases, conducts, 13. PowerPick or maintains the build- ing purpose gambling Park and it for the Comstock uses meaning 600.3801, within the of MCL even if it does not hold the periodic drawings building. actual for the scratch-off tickets at the Attorney v PowerPick Club furniture, fixtures, The office Comstock Park as well as the and enjoinable contents of the office constitute an nuisance under MCL 600.3801. by denying Attorney 14. The trial court erred General’s summary disposition regard

motion for with to PowerPick’s affir- 2.116(C)(9). mative defenses under MCR 15. The General did state a claim on which relief granted properly pleaded supported allega- could be his gambling. tions of nuisance and unlawful support being 16. PowerPick failed to its claim that it was differently similarly treated equal than situated entities. No protection violation was shown. equitable 17. The defense of laches was unavailable to Power- Pick it violating because acted with unclean hands MCL 432.27(1), 750.301, 750.304, 750.306, MCL MCL and MCL reason, 750.372. For the same PowerPick was not entitled to assert equitable defense of unclean hands. 18. PowerPick’s affirmative defenses fail as a matter of law. granted The trial court should have General’s motion summary disposition regard with to those affirmative defenses. court, remand, 19. The trial on must address the claim that operations violate the MCPA. 20. The order of the trial court must be reversed and the entry matter must be remanded to the trial court for the of a judgment respect in favor of the General with to the nuisance claim and for consideration of the MCPA claim.

Reversed and remanded. J., concurring part dissenting part, agreed in and in Hoekstra, majority 432.27(1), by with the that PowerPick violates MCL resell- ing lottery price greater tickets at a than that fixed the Lottery commissioner, 750.372, that it violates MCL because its drawings illegal lottery, random for scratch-off tickets constitute an MegaPools illegal gift enterprise, its constitute an that Power- law, Pick’s affirmative fail defenses as a matter of and that it is appropriate to remand the case for consideration of the MCPAclaims. Judge would, however, holding affirm the trial court’s Hoekstra respect factual issues remain charged with to whether the amount purchased lottery addition to the cost of the tickets is a reasonable pay amount expenses profit for PowerPick’s business and or is in buys fact a assigned second bet that the customer a chance to be ato winning pool. exist, premature Because these factual issues it is operations determine whether PowerPick’s business and its office furnishings constitute a nuisance. The case should he remanded 432.27(1) constitutes a a violation of MCL to also consider whether extent, and, so, whether, public if and to what violation nuisance Although majority subject 600.3801. to the sanctions of MCL is gambling drawings correctly scratch-off tickets are holds that the 600.3801, under the case that PowerPick can be sanctioned MCL assets, any, regarding if a what should be remanded for determination subject are to the sanction. — Summary Disposition. 1. Motions and Orders may Summary disposition part a claim of all or or defense when, except damages, granted there is no as to the amount of fact; any genuine genuine issue of material issue as to material record, giving the of reasonable doubt fact exists when the benefit party, open upon opposing an reasonable to the leaves issue which differ; general, dispute might a factual exists when there minds where, when, conflicting concerning happened, what or is evidence involved, something happened, or other or how or who was some [C][10]). (MCR inquiry similar factual 2.116 — — Jury. July 2. Trial Trials Role of jury proper what the facts are and not what The role of is to decide the facts mean. Betting. — 3. Words and Phrases putting “betting” speech

The term in common means the of a certain money thing happening or other valuable at stake on the sum of happening event. not of some uncertain Gaming Betting. — 4. goal legislative

The behind the enactment of MCL 750.301 was the private betting suppression betting; prohibits the statute be- only consenting parties combating tween and is not limited to organized gambling. effects of and commercialized — — 5. Lotteries Third-Party For-Profit, Licenses Transfers. 432.27(1), Legislature, enacting prohi- intended that the lottery against by persons sales of who are not licensed bition agents broadly; general prohibition against read unli- to be selling price greater that fixed censed sales or a ticket at a than encompasses for-profit, third-party commissioner transfers. — 6. Lotteries Traditional Elements. consideration, elements of a are traditional common-law chance; prize, and cannot be used to frustrate the these essentials v PowerPick Club Opinion op the Court

plain ordinary meaning lottery; “lottery” and of the word is commonly gambling game raising money defined as a or method of large drawing which a number of tickets are sold and a is held prizes, lots, drawing any happening process or a or or that is appears or to be determined chance. — 7. Lotteries Enterprises. Gift gift is, enterprise among

A things, other a merchant’s scheme to by giving buyers carry induce sales tickets that chance win a (MCL750.372). prize Gambling — — 8. Lotteries Harm. Public Michigan’s lottery gambling validly and statutes were enacted to preserve morals, public safety, welfare; public and harm to the presumed to flow from violation of a valid statute enacted to preserve health, public safety, and welfare. Gambling — 9. Common-Law Elements. “gaming” “gambling” price

The common-law elements of or are consideration, chance, prize or award. Cox, Michael A. Restuccia, B. Eric General, General, Solicitor and Donald S. McGehee and Melinda Leonard, A. Assistant Attorneys General, for plaintiff. &

Morganroth Morganroth, PLLC Mayer Mor- (by ganroth Hirsch), and Jason R. for defendant.

Before; JANSEN, P.J., and MARKEY, HOEKSTRA and JJ. JANSEN, P.J. In this enjoin action brought to an alleged public nuisance, plaintiff Attorney General appeals by leave granted the circuit court’s order denying his motion for summary disposition. We reverse remand for further proceedings consistent opinion. with this

i Defendant PowerPick Player’s Club Michigan, LLC, operates what it characterizes as a professional APP 287

Opinion op the Court present filed the General lottery club. violated operations that PowerPick’s alleging action and there- statutes Michigan’s antigambling of several nuisance. The enjoinable public fore constituted an alleged opera- that PowerPick’s Attorney General also Act Consumer Protection Michigan tions violated (MCPA), et seq. MCL 445.901

A court, of the circuit Contrary ruling to the beyond dispute. this case are serious material facts of Indeed, PowerPick, itself, majority of the confirms through this case its own relevant factual details of PowerPick is a documentary exhibits and evidence. America, LLC, was subsidiary of PowerPick which Andrew and started in Arizona the mid-1990s since 2002. Judy operated Amada. It has pooling lottery players. main business website, heading under the “What is PowerPick On its about,” the nature of its busi- all PowerPick describes ness in broad overview: giving people

PowerPick is about HUNDREDS MORE lottery jackpot through pools becoming a winner chances of PowerPick, you yourself. put together by and all need is many everything pools Our include benefits .... We do sharing you, you HUNDREDS of tickets so can start out sharing just of a few tickets! While the best instead pool” groups example pooling is the “office where players combine their dollars to share tickets and share PowerPick, person group winnings, each in the with dramatically becoming big up ends -with more chances of large of tickets that are winner because of the blocks many purchased. you will benefit from so of our other Plus free services.... you. One call can [for]

PowerPick does all the work place your your questions and we can order answer v PowerPick Club Opinion op the Court card, phone or mail. Yon can use a credit debit card or check line, phone. standing over the You forgetting won’t be buy making tickets or minute last dashes to the store. It’s simply powerful, exciting way the most and convenient playing. join

Customers PowerPick by paying a nominal “one- time fee.” Once setup joined, a customer has he she may then select from PowerPick’s various pooling pack- ages. PowerPick uses a computer system to randomly assign each customer to a particular of the pool type that he or she has made, chosen. After the is assignment PowerPick mails the customer a confirmation certifi- cate, listing all the purchased numbers the particu- for lar pool. PowerPick operates several types different of pooling packages that its customers can join. choose to

PowerPick’s primary pooling packages are called “PowerPools,” which consist of Mega Millions pools, Classic Lotto 47 pools, Keno pools, Fantasy 5 pools. According to website, the Mega Millions pools and Classic pools Lotto 47 consist of either 25 or 50 shares each. The Keno pools and Fantasy pools consist of 10 shares each. After the in participants particular pay PowerPool their money, PowerPick uses a portion of it to buy lottery from tickets a licensed Michigan lottery retailer. in participants the particular PowerPool then

share any winnings pro on a Thus, rata basis. example, if a customer buys one share in a 25-share PowerPool, he or she receives any of winnings for V25 that particular pool. Similarly, if a buys customer three in shares a 50-share PowerPool, he or she receives 3/so any winnings for that particular pool.

PowerPick operates other pools as well. For example, customers who have bought into one of PowerPick’s main may PowerPools also in participate one or both of APP 287 MICH

Opinion op the Court (MDCs). offers a Clubs” PowerPick the “Million Dollar de- MDC. PowerPick’s website MDC and $100 $50 as follows: MDCs $100 scribes 1,000 ... on up purchase to 5 blocks We will Mega jackpot is esti- drawing night the Millions EVERY you can more. In addition to be MILLION or $100 mated [pool], which makes purchase up in each block to 3 shares prize greater! your of the 3 times share try pool in each keep the number of shares We will approxi- 1,200 produce 100 to an plus or minus about about shares, being range with 1100 mate of 1100 to 1300 any shares under minimum. PowerPick receives absolute 1,200 So, if there are shares 1100 that are not ordered. 1,200 And, ways. pool, prize be divided then each will course, just jackpot, -willbe distrib- prizes, not all uted. in the participate further describes how to MDCs:

$100 saying you you sign up would like to share All do is 1,000 Mega drawing night extra Millions tickets each higher. Mega jackpot Million or $100 that the Millions this cost? Just a Buck! You will own share What does 1,000 only per drawing. tickets for $1 similarly except MDCs that Power- operate The $50 tickets, 1,000 tickets, rather than purchases Pick than jackpot Millions is more Mega $50 when the but less than million. PowerPick’s website million $100 MDCs: further describes the $50 MDC, identically the as the $100 This club works same 1,000 except pool each is 500 tickets instead of pool is about half as the number of shares in each pool in will be many, the number of shares each so 600-700, being approximately with 600 the absolute mini- any under 600 that are mum. PowerPick receives shares not ordered. v PowerPick Club Opinion the Court PowerPools, participants par-

Unlike the ticipants many in the MDCs do not know how other respective pool will be their at the time participants they buy their tickets. to Andrew Amada’s According testimony, many PowerPick decides how deposition players only considering be in an MDC after pool will 1,300 many bought. how shares have been If more than bought, pool opened. shares are a second MDC participants split evenly number of is then between the MDC pools. two

PowerPick also conducts what it calls “MegaPools.” It the MegaPools describes on its website as follows: MegaPool separate Mega pool

Each is a of 100 Millions purchased every Tuesday Friday night. tickets that are pool This is a FREE bonus and is in addition to each player’s PowerPool. MegaPool 700-1,400 up approximately

Each is made players. Every active member with a PowerPool selection is MegaPool! included in a

Thus, every PowerPick customer is included in one of MegaPools as long an additional “FREE bonus” as as he participating or she is in at least one PowerPool.

It appears also that PowerPick purchase can shares any of its pooling packages just any like of its way, PowerPick, itself, customers can. In this receives a pro rata any money share of won the particular pools in which it participates.

PowerPick conducts additional games of chance that it announces from time to time in its newsletter. For instance, in one newsletter game, readers were asked to count the “Shamrocks hidden” within the newsletter and send in their count. The newsletter announced that 287 MICH APP 13 Opinion of the Court randomly

“[t]he first three drawn with correct will each win 10 of the Take Home Millions $10 answer regularly Michigan scratch tickets.” PowerPick awards Lottery prizes periodic scratch-off tickets as these games. newsletter

PowerPick claims to be similar to a substantially typical lottery office club. But unlike the of a practice lottery club, office PowerPick does not use all typical money buy it collects from its lottery customers to website, According only tickets. to its percent of money that PowerPick collects from its customers is used buy lottery Forty-one percent goes tickets. “[clompany operating costs” and eight percent is taken Further, as profit. previously, as noted supplement PowerPick can its profits purchasing its shares in the that it pools operates. own various Pow- erPick, itself, pro receives a rata share of any winnings when it does so.

B In March the Attorney General sent a letter to PowerPick, demanding that PowerPick using “Michigan Lottery” “Mega-

cease desist any names, Millions” names and versions of those cease selling reselling Michigan Lottery and desist or providing Michigan Lottery shares and tickets or shares as customers, bonuses or awards to its and that PowerPick disconnect, Michigan disable and discontinue its Web site engaging for the reason that in these activities violates [federal law] and the Penal Code. 432.27(1) pointed out that MCL

provides person “[a] shall not sell ticket or share at a price greater than that fixed rule of the commis- sioner. A person other than a licensed sales agent shall not sell lottery tickets or shares.” The Attorney General v PowerPick Club also noted that “MCL 750.301 Attorney pro- General that accepting money understanding hibits with money paid any person contingent upon will be happening Attorney of an uncertain event.” The Gen- eral went on to state: buying selling prohibits

The Penal Code further and pools, 750.304; publishing concerning MCL information making selling pools, 750.305; keeping bets or MCL or 750.302; occupying building gaming, possessing a for MCL tickets, 750.[3]06(1); pool promoting lottery MCL for money, 750.372(1); setting up aiding MCL and or in the setting up, managing, drawing lottery gift of a or enterprise, pool The id. Penal Code also declares tickets a 750.306(1). nuisance, common operations, leading PowerPick continued its the At- torney of intended in General issue a notice action September allegations 2006. The notice contained the set Attorney out the cease and desist letter. The General then filed a complaint containing the same allegations. complaint PowerPick answered the defenses, asserted including several affirmative failure to state a claim on granted, equal which relief could be laches, protection guarantees, and unclean hands. The parties summary filed cross-motions for disposi- hearing January Attorney tion. At General asserted that there was no as to the facts and that dispute the only legal matter to be decided was what conclusions could be drawn from the facts. The General Attorney asked the circuit court to construe the statutes applicable undisputed and to consider the evidence from Power- handbook, Pick’s website and as well as the relevant deposition testimony. Attorney The argued that illegally wagers PowerPick collected into and then pools Attorney sold interests in the General further pools. that random for argued drawings scratch-off lottery tickets constituted an illegal that PowerPick illegally promoted lottery both its own and the Lottery money in contravention of MCL 750.372. The argued illegally General also PowerPick was selling shares in tickets and possessed pool in violation of MCL 750.306. argued it was to summary entitled

disposition, but also asserted that even if the court was summary favor, grant disposition not inclined to its deny the court should at least General’s motion because there was “a clash of evidence.” How- ever, assertion, despite specifi- this PowerPick never cally identified which evidence in dispute. was Power- attorney argued Pick’s that PowerPick had not a promoted lottery money, for but had simply promoted its own business. PowerPick to a in pointed federal case operation which its Arizona had been accused of violat- ing laws, federal in lottery but which the federal court had ruled against the on the government ground that being PowerPick was simply compensated for services it provided to its customers. PowerPick asserted that it services, provided valuable such as eliminating the need for its customers to wait in line buy lottery tickets, to holding lottery customers, the tickets in trust for its making and sure that lottery none of the tickets was argued lost.1 PowerPick further that it reselling was not tickets, lottery merely but was acting represen- as the agent tative or of its customers in the buying tickets. The Attorney argued federal case cited by PowerPick was not comparable present to the situation because Michigan lottery law is different from lottery federal law. allegedly PowerPick provides has also described other services that it customers, including organizing pools, sending

its out confirmation certificates, checking winnings, mailing winnings statements, tickets for out overseeing winnings. the collection and distribution of all Attorney General v PowerPick Club argued Attorney then that the General’s PowerPick be dismissed on the basis of the complaint should argument premised of laches. This was on doctrine PowerPick, among its attor- correspondence extensive commissioner, State lottery the Bureau of ney, That corre- Lottery, and the General’s office. begun had when Power- spondence November starting Michigan Pick first its contemplating was time, At that a consultant for PowerPick operations. Michigan’s acting lottery had sent commissioner a regarding proposed of materials PowerPick’s package ensuing correspondence, In the operations. business explained why oper- PowerPick it should be allowed to commissioner, acting lottery ate in and the Michigan, and the Lottery, Bureau of State General’s PowerPick, asking for various office wrote back to information, concerns, and expressing giving explana- tions. PowerPick to certain statements within pointed that, argued, some of the letters it showed that had led it not operation officials to believe that its would instance, illegal Michigan. pointed For PowerPick letter, acting lottery out that in one commissioner had seemed compare proposed opera- legal lottery tions to those of a club. PowerPick also pointed to letter which one of the officials stated that PowerPick’s “innovative ticket pool- ing agency relationship very interesting.” Finally, pointed report news discussed proposed operations and announced that lawyers anything wrong “state haven’t found with Attorney argued PowerPick.” The General that Power- Pick prevail could not on its laches defense because it had shown no prejudice. Attorney that the

Lastly, argued Attorney had acted with unclean hands and that the guarantee equal pro- General’s actions violated the 287 Mich op Opinion the Court similarly lottery tection because other situated clubs operating Michigan targeted were and had not been Attorney the rep- General. General’s responded resentative that these other clubs were operating legally.

Following parties’ the arguments, circuit court ruled from the bench: right.... agree

All [T]he [the Court does with General] [federal] Arizona case does not necessar- ily brought by postal service, control this case and was law, legal meaning it’s Arizona and also that it’s the of the facts.

However, opinion Court’s of there are a number of factual issues here which will have to be decided at trial and properly pled that defendant here has its affirmative defenses.

II The Attorney General argues that the circuit court erred by denying summary his motion for disposition 2.116(C)(10). brought to MCR pursuant agree We with the Attorney argument General’s insofar as it relates to his nuisance claim.

A We review de novo the circuit court’s decision on a motion summary disposition. Ameribank, Dressel v 557, 561; 664 NW2d 151 Summary disposition of all part or of a claim or may defense granted when, “[e]xcept as to the damages, amount of genuine there is no any fact, issue as to material and the moving party is entitled to judgment partial judg- 2.116(0(10). ment as a matter of law.” MCR “Agenuine issue of material record, fact exists when the giving the benefit of reasonable doubt to the opposing party, leaves Club PowerPick op Opinion the Court might minds reasonable upon issue which open an 177, 183; 665 Corp, 469 Westv Gen Motors differ.” NW2d

B circuit court’s that, the time of the at We conclude of no issue case, genuine there remained ruling in this grant have precluded material fact would 2.116(C)(10) with under MCR summary disposition Pow- nuisance claim. to the General’s respect simply were incorrect erPick and the circuit court disputed issues presented that the evidence their belief Indeed, ruling internally was the circuit court’s fact. hand, the On the one very inconsistent on this issue. at PowerPick that what was agreed circuit court with But on the legal meaning “the of the facts.” issue was hand, “there are a number of other the court stated that circuit court importance, Of critical factual issues.” what these “factual issues” exactly never identified any actual factual identify were. Nor did PowerPick disputes. “[determin- continues to maintain that quintessential the facts at issue is a

ing meaning clearly confused about But PowerPick jury question.” about the dispute proper a factual what constitutes exists when general, dispute a In a factual jury. role of concerning happened, what conflicting evidence there is something happened, where something happened, when involved, or some who was something happened, how case, jury ques- In factual this inquiry. other similar instance, if there have been presented, tion would defen- concerning how conflicting evidence had been But no such conflict- actually operated. dant’s business ing presented. evidence was Opinion op the Court proper jury role of is to decide what the facts

are—not what the facts aptly mean. As noted Appeals United States Court of for the Fourth Circuit in Purchasers, Sales, Inc, Atlantic Inc v 705 F2d Aircraft (CA 1983): 4, jury... directly A litigant does not determine whether a Rather, jury’s has contravened the statutes. function is to facts, juiy’s findings find the and based on the the court must then determine as a matter of law whether the defendant’s [Quotation conduct [the statutes]. violated marks and cita- omitted.] tions correctly General argues that what is at

issue here is the legal meaning the undisputed facts. The critical facts in this case consist of PowerPick’s own description of its operations business in player its hand- book, website, on newsletters, its in its in the deposition testimony of its owners and employees, and in the various other documents presented to the circuit court. The operations in described these materials and documents are somewhat complicated, but dispute there is no con- cerning what these materials and documents actually say only or mean. The question presented for resolution was whether PowerPick’s operations described in the un- —as controverted materials and presented documents to the circuit court—fell within the scope of the statutes cited the Attorney General. This purely was a legal question, not a factual one. See v People Rutledge, 250 Mich App 1, (2002) 4; “[wjhether 645 NW2d 333 (observing that con- duct falls within statutory scope of a criminal statute is a question of law that is reviewed de appeal”). novo on

c We also conclude that because PowerPick’s operations enjoinable nuisance, constituted an the Attorney General was entitled to judgment as a matter of law with respect his nuisance claim. Club PowerPick Opinion op the Court

We first conclude that PowerPick’s scheme PowerPool contemplates placement 750.301, of bets under MCL that PowerPick “registers” these bets violation of MCL 750.304, and that possesses “memoranda of ... In typical bet[s]” violation of MCL 750.306. office lottery club, all the money contributed the participants is used to purchase commonly lottery held tickets. In words, other each member of a office club is typical lottery simply playing Lottery legal lottery au- —a by Michigan law, 4, § thorized see 41; Const art 432.1 et seq. concert with the other members of —albeit such, the club. As each in a participant typical office lottery club one places only legal bet—a bet that underlying lottery contrast, ticket or tickets will win. In each PowerPick customer who in a participates PowerPool actually places two bets each time purchases he or she through the PowerPick As scheme. will be explained fully hereinafter, more the places customer bet on the legal underlying lottery tickets that PowerPick for that purchases particular customer’s But the pool. bet, customer also a second places wagering that Power- randomly Pick will him assign or her to a It winning pool. is this second bet that renders PowerPick’s PowerPool scheme an illegal betting operation.

PowerPick admits that it uses only percent of the it money collects from its buy lottery customers to words, tickets. In other PowerPick’s customers pay an amount substantially excess of the face value of the lottery actually tickets that PowerPick purchases. One certainly reason for this is pay customers’ desire to for PowerPick’s alleged services.2 But we conclude that explained previously, provides As PowerPick asserts that it several customers, eliminating valuable services to its such as the need its

Opinion op the Court substantially reason for these payments another lottery buy excess of the face value of the tickets is to being assigned winning pools chance of to one or more by PowerPick. it a computer system

PowerPick admits that uses randomly assign particular pool each customer to a of that he or she has chosen. These random type introduce an additional element of assignments plainly into the By way example, chance PowerPick scheme. assume that there are 200 at any PowerPick customers given op- time who have chosen the Keno PowerPool tion. Further assume that each of these has customers purchased only one share. Because Keno Power- each, Pools consist of 10 shares PowerPick would create each, 20 Keno PowerPools randomly with 10 shares assigning each of the 200 customers to one of these pools. Rather than one purchasing large set of Keno customers, tickets to be shared equally among all 200 purchase tickets, PowerPick will 20 small sets of Keno assign and will one these small sets to each of the 20 Thus, any individual pools. customer who has chosen the Keno PowerPool option will have a chance of sharing winning ticket within the only confines of the small set of Keno tickets held his or her 10-share contrast, pool. In if purchased PowerPick had one large set of Keno tickets to be shared all equally among customers, any individual customer had a would have much chance greater sharing in a Keno winning ticket'. seen,

As can be the random assignment of customers clearly the individual PowerPools an addi- injects line, lottery trust, holding ensuring customers to wait in tickets in lost, sending that none of the tickets is out confirmation certifi- cates, checking winnings, mailing winnings the tickets for out state- ments, overseeing winnings. the collection and all distribution of Club v PowerPick chance into a customer’s uncertainty element of tional ticket. customers winning in a PowerPick’s sharing of comput- the outcome of these random “bet” on plainly “ ‘Betting speech in common assignments. erized money or other of a certain sum of putting means the hap- or not happening at stake on the thing valuable ” ex rel Michigan of some uncertain event.’ pening Game, 122 Mich App v One Helix State Police Comm’r of Clark, 155; (1982), Shaw v 148, quoting 333 NW2d (1882). 388; 49 Mich 13 NW an- to one PowerPool over of a customer assignment money clearly upon other is an “uncertain event” which not bet that only at stake. Customers do put is win; they by PowerPick will purchased winning hold the pool their will specific also bet that a of the portion tickets. We conclude ticket or customer is at stake money put each PowerPick paid randomly assigned in the that the customer will hope ticket. Such a winning to at least one that holds pool within the definition of clearly encompassed scheme is Game, Helix 122 Mich at 155. “betting.” App One 750.301, “[a]ny person or his or her Pursuant takes, who, indirectly, agent employee directly or or receives, any money thing . . . or valuable accepts or understanding allegation or agreement, with the delivered to any money thing paid or valuable will be contingent. upon happening . .. . . of any person certain, not to be any parties event known legislative goal . . .” The un- guilty of misdemeanor . suppression betting. MCL 750.301 was the derlying Money ex rel Comm’r State Police v Nine Games, 414, 419; 130 Mich 343 NW2d 576 App Fall betting The statute between prohibits private combating only and is not limited to consenting parties, organized gambling. and commercialized the effects Judge, v 46th Dist Oakland Co Prosecutor App 287 13 Opinion of the Court (1977). 318, 325-326; applying NW2d 776 After statutory it plain language, is clear to us that Power- Pick’s PowerPools violate MCL 750.301. As discussed previously, money PowerPick accepts from its custom- only express ers not with the understanding that purchased, tickets will be but also with the express understanding that a valuable will be prize paid out to customer any who is randomly assigned to a pool holding a ticket. MCL winning lottery directly 750.301 prohibits the of acceptance money happening on the or happening not of such an uncertain event.3 “registers” PowerPick also these in bets violation of 750.304, MCL 750.304. Pursuant MCL “[a]ny to person or agent his or her or employee registers ... who bets ... is guilty of a misdemeanor ....” We already explained have accepts PowerPick “bets” when its customers put money at stake for being of randomly assigned .chance to at least one pool holds a winning ticket. See One Game, Helix 122 Mich App at 155. We conclude that accepting these bets customers, from its randomly assign- ing its customers to in pools bets, for their exchange sending out written confirmation certificates verifying these assignments, random “registers PowerPick in bets” violation MCL 750.304.

We also conclude that PowerPick possesses “memo- randa of. . . bet[s]” violation of MCL 750.306. Under 750.306, “[a]ll. . . memoranda any bet, . . . manifold, or policy other or pool books or sheets are . . . declared a common nuisance and possession of 1 or more of those items is a misdemeanor . .. .” The underlying Michigan Lottery are, It is irrelevant that the them selves, part legal lottery. People Weithoff, issued as of a See v 51 Mich 212; game legal, betting 16 NW 442 upon Even when is itself “the game... gaming, game gamble [who] constitutes and those ... thus bet." Id. y PowerPick Club certificates sent confirmation written The certificates are, essence, receipts. its customers randomly assigned been that the customers have verify exchange for their bets. Power- pools one or more certificates, memorialize which Pick’s confirmation transactions, “memo- therefore constitute betting these of MCL meaning within the of...bet[s]” randa 238, 242; 280 Taylor, See People 750.306. (1979) that MCL (observing prohib- 750.306 NW2d written memoranda used “possession its the various in gambling operations”). by reselling

PowerPick also violates MCL 432.27 lottery by charging price tickets to its customers and a by Michigan Lottery than that fixed the com- greater 432.27(1) provides: missioner. price greater person

A shall not sell a ticket or share at a by person than that fixed rule of the commissioner. A other lottery lottery agent shall not sell than a licensed sales not be construed to tickets or shares. This section shall lottery prevent person giving a from tickets shares to gift. another as merely “agent” that it is an for its argues

customers, buys Michigan Lottery and that it tickets Indeed, directly on their behalf. PowerPick asserts that in agency relationship, lottery of this title the because of the passes directly from the state time the tickets are pur- individual customers at the by argument are chased. We unconvinced regard, “sell[s] in this and conclude that PowerPick the lottery tickets or shares” to its customers within 432.27(1). persua- find meaning particularly of MCL We OAG, reasoning the of the sive 287 Mich Opinion op the Court (October 1985-1986, 382, 7, 1986), pp No arising which addressed similar under MCL question 432.27(1): 432.27(1)1,exempting gifts [MCL

The of final sentence lottery tickets, particular significance of is of and indicates legislative prohibition against intent a clear that the sales by persons agents are not licensed is to be who read broadly. Legislature expressly that the The fact excluded 27(1) gift prohibition § from the set forth transactions Legislature prohibition demonstrates that viewed this sufficiently being gifts as broad as include so even had they expressly not been excluded that final sentence. If third-party gifts in the form transfers would be barred in express exemption 27(1), § certainly absence of the for-profit third-party be would also barred. transfers supported application

This conclusion is further statutory maxim well-established construction alterius, expressio i.e., known as the uniu[s] est exclusio express thing implies in a mention statute of one See, things. e.g., exclusion of other similar Stowers v Wolodzko, 119, 133; 191 NW2d Legislature expressly exempted fact that third-party gift, transfers of tickets which take the form of a but expressly exempt did for-profit third-party not transfers here, proposed legislative such as that manifests the intent type permitted. that the latter of transaction [Em- not phasis added.] Attorney

“Although opinions General are not bind- ing Court, on they this can be persuasive authority.” Lysogorski v Bridgeport Charter 297, Twp, App see also Williams v Rochester 301; (2003); 662 NW2d 108 Hills, (2000). 539, 557; 243 App Mich 625 NW2d 64 We agree with the General’s observation that the Legislature must have general prohibition viewed the 432.27(1) MCL sufficiently as broad to encompass even gifts. Otherwise, Legislature if the gifts had believed that fell the already scope general outside of the prohibition, 35 PowerPick Club v Opinion op the Court 432.27(1) have been would of MCL final sentence the tenet of statu- It is a basic unnecessary. and superfluous should be in a statute language that no construction tory In Kiogima, re unnecessary surplusage. as interpreted (1991); Apsey see also 6, 13; 472 NW2d 13 Mich App 189 (2007). 120, 127; NW2d 695 Mich Hosp, v Mem and statutory word every Indeed, presume courts effect to each give and must meaning has some phrase Madison Danse vCorp if possible. of the statute provision (2002). “It is 175, 182; 644 NW2d 721 Hts, the rules of is aware of Legislature that the presumed enactments has drafted its statutory construction Security Comm Employment accordingly.” Michigan (1995). 261, 264; 542 NW2d 360 Mich App Westphal, Legisla- it is clear that authority, of this light In of MCL the final sentence not have included ture would 432.27(1) mere sur- had constituted provision if that general that the believed Legislature And if plusage. 432.27(1) broad to sufficiently was prohibition sentence, final it of the in the absence encompass gifts of MCL general prohibition that the necessarily follows 432.27(1) trans- “for-profit third-party encompasses 6392, OAG, 1985-1986, p 384. No fers,” as explained 1985-1986, OAG, No reasoning of agree We with this issue. See find it on 6392, persuasive and therefore Trustees, 279 Mich Bd Twp Charter Risk v Lincoln 389, 398-399; 760 NW2d 384, the 1985-1986, OAG, p No noted in As against sales prohibition intended “that Legislature read agents licensed are not by persons who “a is not that PowerPick broadly.” undisputed It is oper- that PowerPick agent” sales licensed accepts business. When for-profit ates the cost of in excess of substantially payments App 36 287 Mich 13 Opinion op the Court it and lottery purchases, tickets then transfers those customers, lottery paying engaged tickets its it is has “for-profit what the General described as third-party Id. We therefore conclude that transfers[.]” lottery “sell[s] PowerPick tickets shares” violation 432.27(1). of MCL determined

Having lottery “sell[s]” that PowerPick customers, its seriously tickets to it cannot be disputed that PowerPick sells them “at a than price greater by fixed rule of the commissioner” the meaning within 432.27(1). Indeed, although MCL de- “lottery club,” scribes itself as a simple it admits that it percent uses only money collected from its to buy lottery customers that its customers pay substantially an amount in excess of the face value lottery tickets that ultimately are purchased. No proof necessary further for us to conclude that lottery PowerPick sells tickets to its customers “at a price greater than that fixed rule of the commis- 432.27(1). sioner.” MCL addition,

In periodic PowerPick’s random drawings for Michigan Lottery scratch-off tickets constitute an illegal meaning 750.372, within the of MCL MegaPools gift constitute an illegal enter- prise within the of MCL meaning 750.372.

As an initial matter, note that we neither term “lottery” nor the “gift term is defined in enterprise” give MCL We 750.372. must words and statutory phrases their commonly meanings. understood 8.3a; Co, LLC, Mgt Lewandowski v Nuclear 272 Mich 120, 126; 724 App NW2d 718 a term When is not statute, defined it is appropriate for this Court to dictionary Stone, look to People definitions. Club v PowerPick (2001); v Tri- Stocker 563; 558, 621 NW2d Co, Inc, Bldg Harbor Mount/Bay (2005). and technical words “[B]ut 199; NW2d 878 706 a and may acquired peculiar have and such as phrases, and law, shall be construed meaning in the appropriate appropriate and according peculiar to such understood Prosecutor v 8.3a; Bay also Co see meaning.” (2007). 678 183, 190; 740 NW2d Mich App 276 Nugent, a word or us to consider how for appropriate It is also caselaw. See previous in the has defined been phrase 26, 30; 731 NW2d Clemens, App Mich Mt 274 Roby v (2007). 494 gam- ‘a “commonly defined as “lottery”

The word money large in which a raising of or method bling game for drawing a is held are sold and number of lots,’ ‘any happening of and drawing ‘a prizes,’ by be determined appears is or process Inc v Consumer Trading, Dep’t ....’” FACE chance 666; 717 NW2d Services, App 270 Mich Industry & College House Webster’s (2006), Random quoting 377 (1997). explained Court has Supreme Our Dictionary ‘consideration, lottery [a]re of a that “the essentials ” Ass’n, 314 Racing Rohan v Detroit and chance.’ prize, v (1946), Glover 326, 344; quoting 22 433 Mich NW2d (1927); 216, 219; 213 107 see Malloska, NW 238 Mich 449, 452; 859 Welch, Mich 257 NW v 269 People also consideration, and prize, However, “[w]hile in a lot- found common factors chance are often broadly.” be construed ‘lottery’ term must tery, . .. the “ Inc, ‘[T]he at 667. word App 270 Mich Trading, FACE sense, with popular in the be construed “lottery” must intended to be the mischief remedying the view of the continu- suppress all evasions prevented, and ” McPhee, v Id., People quoting the mischief.’ ance of (1905). “Thus, while 687, 690; 103 NW 139 Mich the essentials has indicated that Court Supreme App 287 Mich consideration, generally prize, chance, a are and plain essentials cannot be used to these frustrate the ” ordinary meaning FACE ‘lottery’ the word Inc, Trading, at 668.

In Theatre Sproat-Temple Corp Colonial Theatrical Inc, 127; (1936), 267 NW Enterprise, our Supreme Court considered the traditional elements of consideration, prize, chance to determine whether drawing a held at the defendants’ theaters constituted “lottery” under Each patron pur- law. who an chased admission ticket at the defendants’ theaters “given was ticket coupon bearing duplicate num- . bers . . .” Id. at 128. patron When the entered the theater, each “one-half of ticket coupon dropped [was] in a barrel purchaser and other [was] half retained Id. him[.]” “[A]t an advertised time the barrel the containing coupon tickets was upon taken stage the of the theatre and several tickets were with- person drawn therefrom. The holding coupon the stub the corresponding with number to the number on the ticket drawn from the given barrel was a valuable money prize.” Id. at 128-129. plaintiffs argued that drawings the constituted enjoinable

an “lottery” within meaning the of what is now MCL Theatre, 750.372. Sproat-Temple at 129. The defendants countered, that contending be- patron cause each received a coupon ticket at no addi- cost, tional there be “lottery.” could no Id. In particular, the argued defendants patron pays because “the nothing for a to prize, chance receive the no consider- ation runs public, and, therefore, from the the [lottery] statute is not violated.” Id. Supreme Our disagreed defendants, Court with the “

observing that the patrons may ‘while not pay, the receive, may [defendants] not direct any consideration Club v Opinion the Court of consider- an indirect tickets], there coupon the [for to . .. are prizes The fact and received. paid ation who the theatres to persons will attract distributed manner those In this attend. not otherwise would them, and the consideration pay obtaining prizes ” 130- Id. at benefit.’ financial a direct reap theatres Seattle, 118 Wash City Theatre Society quoting of Supreme the Accordingly, P 21 258, 260; 203 enjoining court’s order circuit affirmed the Court illegal lottery. Sproat-Temple as an scheme defendants’ Theatre, Mich at 131. presented was pattern fact a similar year,

The next En- Theatrical v Colonial Corp Theaters United-Detroit (1937). Our 425; 273 NW Inc, 280 Mich terprise, elements to the traditional looked again Court Supreme time for consideration, and chance —this prize, of game “screeno” a determining whether purpose a “lot- theaters constituted the defendants’ at played MCL 750.372. is now meaning of what tery” within A free at 427-429. Theaters, 280 Mich United-Detroit bought who patron to each given card was screeno theaters. the defendants’ admission to one of ticket for issue in tickets at coupon Id. at 427. But unlike in United- Theatre, screeno cards Sproat-Temple purchasers “not confined Detroit Theaters were Theaters, 280 United-Detroit tickets . . . .” admission were also Instead, free screeno cards 427. Mich at foyer in the of the any person “upon request available in front of the sidewalk on the persons theater or to contained series screeno card theater.” Id. Each arranged rows numbers, were which random of the match certain first person columns. The displayed card with those her screeno on his or numbers Id. prize. theater screen won on the plaintiff, competing argued owner, theater that game enjoinable “lottery” the screeno constituted an Although under the statute. Id. at 428. the screeno tickets were distributed for free and were available to patrons nonpatrons Supreme alike, the Court re- Sproat-Temple lied on Theatre to find that the element observing of consideration established, had been unquestionably “the distribution of the tickets at- tracted others to the theater who otherwise would not way have attended and in this the theater owner profited thereby. This is a sufficient consideration.” Id. at 429. Sproat-Temple

Also unlike the facts of Theatre, a apparently necessary play small amount of skill was game the screeno at issue in United-Detroit Theaters. Nevertheless, the United-Detroit Theaters Court found game that the screeno retained the chance, element of stating “[a]n examination of the method used in conducting game any of the must convince one that compared the element of skill as with the element of slight.” chance Id. light authority, compelled

In of this we are to con- periodic drawings clude that PowerPick’s for Lottery “lottery” scratch-off tickets constitute a within meaning through of PowerPick, 750.372. its periodically newsletter, partici- invites its customers to pate drawings Michigan Lottery scratch-off tick- explained previously, ets. As one such contest asked PowerPick’s customers to count the “Shamrocks hid- den” within the newsletter and send in their count. The “[t]he randomly newsletter announced that first three drawn with the correct answer will each win 10 of the Take $10 Home Millions scratch tickets.” In another game, recent newsletter readers were asked to count “pumpkin” the total ap- number of times the word Club v PowerPick Opinion of the Court The their count. to submit the text and within peared toon state: newsletter went pages of this within the Anytime you that word see capital letters or newsletter, singular plural, or it’s whether standing case, word part another lower it. alone ... count drawing, bi-monthly so all a this is Remember 2009, 30, eligible to will be November entries received randomly 1, 2009, be the winners will December

win. On correct answer. who submitted the from those drawn will each win $100 the correct answer first 3 drawn with you’ll be tickets and Casino instant of the Classic worth There is way scratching off some winners. your to well on years win, you be 18 necessary but must purchase to no age. Lot- drawings for periodic

PowerPick’s defini- fall clearly tickets within tery scratch-off are not drawings “lottery.” periodic ” These tion of a “ “ lots,’ ‘process but are also drawing ‘a only FACE Trad- chance ....’” is . . . determined House Random Inc, App quoting 270 Mich at ing, drawings Moreover, periodic these Webster’s, supra. lottery. of a all three traditional elements include consideration, al- the element of to respect With widely are announced drawings though periodic at no addi- and are available newsletter clearly readers, they are the newsletter’s tional cost to customers or to become PowerPick people to induce used words, In customers. other to remain PowerPick Michigan Lottery scratch-off drawings periodic who [PowerPick] attracted others “unquestionably customers] PowerPick [become would not have otherwise This is thereby. profited way [PowerPick] and in this Theaters, 280 United-Detroit consideration.” sufficient 287 Mich 429; Theatre, Mich at also Sproat-Temple see chance, at 130-131. respect With the element of it is true may required that some modicum of skill for an accurately individual to count the “Shamrocks hidden” within the or the of times newsletter number the word “pumpkin” However, within the despite occurs text. fact that an individual must submit an first accurate count to participate, ultimately awards the scratch-off on the a random drawing. tickets basis of Accordingly, drawings retain the essence game of a chance, and “the element of skill as compared with slight.” element of chance is United-Detroit Thea- ters, PowerPick, itself, 280 Mich at 429. admits the third element —that a is prize awarded to the winners of the random Lest drawings. any there be doubt a scratch-off lottery ticket can a prize, constitute we note that although an unscratched instant ticket generally has monetary worth,” “little no actual it certainly great can a deal have .” “potential value .. . 80, 82; v SeeMcDougal McDougal, 545 NW2d (1996) in original). This, (emphasis think, we all that is required to constitute prize. a We conclude that PowerPick’s periodic drawings random for Michigan Lottery “lottery” scratch-off tickets are a within the meaning of MCL 750.372.

The term “gift enterprise” used has been for more years statutes, than 100 Michigan’s see, McPhee, in e.g., 688-689; 139 Mich at Reilly, v People 387-388; (1883), 15 NW 520 and indeed appears to have a acquired particular law, meaning in the see MCL 8.3a. (7th ed) Black’s Dictionary Law “gift defines enter- as, prise” other among things, “[a] merchant’s scheme to induce giving buyers sales ... tickets that a carry prize.” chance to win previously, a As noted Power- MegaPools Pick’s are announced “a FREE as bonus and ... player’s addition each Power Pool.” Each PowerPick Club entered one of automatically customer is PowerPick drawing, long as Mega Millions for each MegaPools of the main one participant or she is a as he packages. PowerPool drawings for like the periodic MegaPools,

These used clearly are previously, described scratch-off or to PowerPick customers induce to become people cus- Each PowerPick customers. remain PowerPick “a FREE MegaPools as is entered into one of tomer Mega pool shares in a bonus,” thereby receiving at no additional cost. Millions tickets scheme to merchant’s “[a] constitute MegaPools plainly carry a buyers tickets by giving induce sales ... ed). (7th Dictionary Black’s Law prize.” chance to win a “gift are a MegaPools that the Therefore, we conclude of MCL 750.372. meaning within the enterprise” draw- periodic that PowerPick’s Having determined tickets constitute Lottery scratch-off ings Michigan constitute MegaPools and that PowerPick’s “lottery” question turn to the whether we “gift enterprise,” of MCL 750.372 provisions violates conclude these schemes. We conducting promoting and that it does. pro- or up “[s]et in this state to

It is unlawful and money” for any lottery gift enterprise . or mote .. writing, any way or “[a]id, by either or printing to a drawing or of managing, setting up, concerned 750.372(l)(a) (c). and MCL gift enterprise.” or lottery through opera- provisions violates these PowerPick Michigan Lottery for drawings periodic tion of its First, both the MegaPools. and its scratch-off tickets Mega- tickets and the drawings for scratch-off periodic 750.372(l)(a). already noted We have MCL Pools violate to people intended to entice are enterprises that these of PowerPick. remain customers paying become or to 287 Mich Therefore, seriously disputed they it cannot be are money” up promote[d] “[s]et or ... for within the 750.372(l)(a). Furthermore, meaning of MCL both the periodic for and drawings Mega- scratch-off tickets by Pools were and are operated devised PowerPick. Accordingly, by “setting up” and “managing” the peri- odic drawings for scratch-off tickets the MegaPools, 750.372(l)(c) violates MCL unquestionably as well.4

As our Supreme years Court ago observed General, ex rel Bd Optometry Examiners (1969): Peterson, 445, 465-466; 164 NW2d 43 law,

At common acts in violation law constitute a public public presumed nuisance. Harm to the is to flow from the preserve violation a valid enacted statute public health, safety attorney general, and welfare. The acting on people, proper party behalf of the bring a an action public to abate a nuisance or restrain unlawful acts public which constitute a nuisance.

PowerPick’s various gaming schemes violate the terms of 432.27(1), 750.301, 750.304, MCL MCL MCL 750.306, MCL MCL 750.372. Michigan’s lottery and fully acknowledge prohibition We gift of lotteries and 750.372(1) enterprises apply lottery contained in MCL not “does to a or gift enterprise person promotional activity a conducted as a that is clearly ancillary primary person.” occasional and to the business of that 750.372(2). However, lottery gift enterprise MCL “promo is not a activity” meaning tional “may within the of the if it statute be entered purchasing product substantially or service more than its fair “substantially market pay value.” Id. Because PowerPick’s customers [the] more than fair market value” of the tickets that PowerPick ultimately purchases, periodic drawings we conclude that the for scratch- MegaPools off “promotional activity.” tickets and the are not a Id. Accordingly, enterprises exempt provisions these are not from of MCL 750.372(1). 750.372(2). Club 45 validly preserve statutes were enacted to gambling morals, v Record- safety, and welfare. See Parkes public 460, 466-467; 210 NW 492 Judge, er’s Court (1926); Prosecutor, Mich App see also Oakland Co at Indeed, Legislature right has the to conclude “[t]he 330. gambling injurious is to the morals and welfare clearly and it within the of the state people scope is in all its forms.” police power suppress gambling Id. at 326. Because PowerPick’s business activities statutes, validly violate these enacted to the “[h]arm from public presumed opera- flow” Peterson, Mich tions. at 465. We conclude that whole, operations, PowerPick’s business taken as public constitute a nuisance. Id.

We also conclude that PowerPick’s office Comstock furniture, fixtures, Park and “the and contents” of that office constitute a nuisance as a matter of law. The Legislature vehicle, has declared that “[a]ny building, boat, aircraft, or used for the . place purpose gam- of. . bling” enjoinable is an nuisance. MCL 600.3801. More- over, furniture, fixtures, “the and contents of the build- vehicle, ing, boat, aircraft, place” or are also declared to an enjoinable nuisance. Id. The Legislature has specifically authorized the General to “main- an equitable tain action for relief in the name of the state of Michigan... to abate said nuisance and to perpetually enjoin any servant, his or person, agent, own, lease, employee, who shall conduct or maintain from, vehicle, boat, building, such aircraft place, or vehicle, permitting suffering building, boat, or such or , vehicle, aircraft or . place. any building, . other boat, or place aircraft conducted or maintained him to be used [gambling].” MCL 600.3805.

Opinion the Court of necessary determine whether Power- It is first within the “gambling” constitute operations Pick’s that acknowledge MCL 600.3801. We meaning of in MCL 600.3801. is not defined “gambling” word However, law, “require[d] at the definition common (1) consideration, or price of three elements: presence (3) (2) chance, Automatic Music & prize and or reward.” 452, Comm, 426 Mich v Control Vending Corp Liquor (1986).5 no trouble con- 457; 396 NW2d 204 We have in “gambling” that PowerPick within cluding engages MCL 600.3801. We determined earlier meaning of variety PowerPool scheme is a of that PowerPick’s 155, Game, 122 Mich at and “betting,” One Helix 750.301, it under MCL 750.301. MCL prohibited that events, on uncertain MCL prohibits betting which 750.304, among things “register- other prohibits which bets,” 750.306, prohibits among and MCL which ing bet[s],” are “memoranda of.. . things possessing other Code, 44 of the Penal Chapter all contained within “Gambling.” entitled seq., 750.301 et which is of these in the overall particular placement provisions betting, statutory suggests registering scheme bets, all forms of keeping and memoranda of bets are Resources, “gambling.” Dep’t See Tallman v Natural of (1984). 600; Moreover, 585, 421 Mich 365 NW2d 724 our that it be “an Supreme recognized Court has would not use if all bet- inappropriate language inaccurate or of and considered as ting money spoken for were to be v 51 Mich gaming gambling.” People Weithoff, or 210; are that Power- persuaded 16 NW We Vending actually construed the word The Automatic Music & Court Vending, “gaming” “gambling.” than the Automatic Music & rather word However, explained ‘gaming’ that “the terms 426 Mich at 457. the Court interchangeably.” ‘gambling’ synonymous, at [and] are used Id. and are 1; 203, 210-211; People Weithoff, n 16 NW 442 see also (1883) (using “gaming” “gambling” interchangeably). and the terms Attorney General v PowerPick Club Opinion Court Pick’s betting plainly variety scheme constitutes within the of MCL “gambling” meaning 600.3801. similarly persuaded We are periodic PowerPick’s drawings Michigan Lottery for scratch-off tickets con- “gambling” stitute under MCL 600.3801. previously We concluded that periodic drawings scratch-off tickets “lottery.” constitute a The common- law elements of “gaming” or or “gambling” price— consideration, chance, reward, prize Automatic Music & Vending, 426 Mich at 457—are remarkably similar to the common-law elements of a “lottery”— consideration, prize, chance, Rohan, 314 Mich at 344; Glover, 238 Mich Indeed, at 219. our Supreme “ Court lottery has described a species gam- as ‘a (citation bling Rohan, ....’” omitted); 314 Mich at 344 see Inc, also FACE Trading, 270 Mich at 666 App “ (observing ‘[l]ottery’ is commonly defined as ‘a ”). gambling game or method’ We conclude that Power- Pick’s periodic drawings for lottery scratch-off constitute “gambling” within the meaning of MCL 600.3801.

All that remains is to determine whether PowerPick “owns, leases, conducts, or “[a]ny building, maintains” vehicle, boat, aircraft, place or used purpose for the of. . . gambling” within the meaning of MCL 600.3801. We find that it does. It is undisputed that PowerPick leases or otherwise maintains an office in Comstock Park from which its Michigan business are operations carried out. PowerPick payments receives from Power- Pool participants office, at its Comstock Park and State, accordingly accepts bets there. See ex rel Wash- tenaw Co Prosecuting Attorney Co, v Western Union Tel (1953). 84, 89; 336 Mich 57 NW2d 537 This is confirmed website, PowerPick’s own which directs potential PowerPick your customers to “mail in order” to “4673 Park, MI 49321.” NE, Comstock Kiver Drive

West manages pro- Moreover, unquestionably Lottery drawings its periodic motes Thus, Park Comstock office. tickets from its scratch-off drawings at not hold the actual if PowerPick does even its from office, promotes it nonetheless its 268; Elliott, 41 NW 916 People See place. Park that PowerPick’s Comstock We conclude place purpose “used for building is a office Accordingly, MCL 600.3801. gambling” of. . . under office, Park as well as “the Comstock office, consti- furniture, fixtures, and contents” of that nuisance. MCL 600.3801. enjoinable tute an judgment entitled to as a General was only claim. Not respect matter of law with to his nuisance betting, lottery, gift enterprise do PowerPick’s enjoinable an nuisance under public schemes constitute Peterson, 465,6 381 Mich at but Power- reasoning office, furniture, Park as well as “the Pick’s Comstock office, an fixtures, of that constitute and contents” nuisance under MCL 600.3801. enjoinable defenses to the PowerPick raised several affirmative 6 fully acknowledge Power- We that several of the statutes violated 750.301, 750.304, 750.306, Pick, including and MCL MCL MCL MCL Code, 750.372, in the Penal are criminal in nature and are contained equity enjoin seq. general, the commission of a 750.1 et In will not jurisdiction. chancellor has no criminal United-Detroit crime because a Co, Theaters, 429-430; Tel 280 Mich at see also Western Union However, independently level when criminal acts rise to the at 90. arises,” nuisances, jurisdiction equity of a court of United-Detroit “the omitted), Theaters, (quotation Mich at marks and citations 430 Co, enjoined, may Mich at 90. acts Western Union Tel Attorney General v PowerPick Club Attorney General’s complaint. Specifically, that the Attorney contended General had failed to state a claim on which relief could be It granted. further asserted that the complaint should have been dismissed under the doctrines of equal protection, laches, and unclean Attorney hands. The argues that the circuit court erred his motion denying summary disposition of these affirmative pursuant defenses 2.116(C)(9). MCR agree We with the Attorney General.

A The circuit ruling court’s on a motion for summary disposition is Dressel, reviewed de novo. 468 Mich at 2.116(C)(9) “Summary 561. disposition under MCR if proper a defendant fails to plead valid defense to a Grable, claim.” Dimondale v App 553, 564; Mich (2000). 618 NW2d 23 The motion should be granted ‘ “[i]f defenses are “so clearly untenable as a matter of law that no factual development could possibly deny ’ ” (citations plaintiffs right to recovery[.]” Id. omit- ted).

B We reject PowerPick’s assertion that the Attorney General failed to state a claim on which relief could be granted. As noted previously, “[t]he attorney general, acting on behalf of people, is a proper party to bring an action to abate a public nuisance or restrain unlaw- ful acts which constitute public Peterson, nuisance.” 465-466; 381 Mich at see also ex People rel Oakland Co Prosecuting Kevorkian, App 601, 607; 534 NW2d 172 A review of the pleadings reveals that General properly pleaded and App 13 287

Opinion of the Court and unlawful of nuisance allegations his supported regard in this must fail. claim gambling. PowerPick’s c Attorney that General’s argued also PowerPick on the basis of been dismissed complaint should have In equal protection. guarantee constitutional that it has been treated PowerPick asserted particular, entities, were similarly than situated which differently and had not Michigan continue operating allowed to disagree. General. We Pow- Attorney been sued any similarly that other erPick has failed to show As ex- operating Michigan. entities are situated earlier, lottery uses typical office club plained whereas money purchase contributed its members to all tickets, admits that it commonly lottery held PowerPick that it collects from only money of the percent uses has tickets. PowerPick not buy its customers any other en- demonstrated the existence substantially an amount tity charges its customers lottery tickets pur- of the face value of the excess has Accordingly, in this manner. chased than differently failed to that it has been treated show Mouradian, similarly entity. People situated v any other (1981). 815, 822; App 110 Mich “ 314 NW2d 494 treat- require does not the same ‘[Ejqual protection ” given similarly ment be those that are not situated.’ State, 307, 325; v 281 Mich Champion Secretary App (2008), v Alspaugh Comm on quoting 761 NW2d Standards, 547, 555; App 246 Mich Law Enforcement 634 NW2d

D similarly reject PowerPick’s assertion We should have been dis- complaint General’s v PowerPick Club missed on the basis of laches. Laches is an affirmative defense based primarily on circumstances that render it inequitable grant relief to a dilatory plaintiff. Fox, Yankee Springs 604, 611; Twp (2004). 692 NW2d 728 The doctrine of laches is triggered by the plaintiffs failure to something do that should have been done under the circumstances or failure to claim or enforce a at right proper the time. Co, Schmude Oil Co v Omar Operating 184 Mich (1990). 574, 583; App 458 NW2d 659 “The doctrine of laches is upon long founded inaction right, to assert a attended such change intermediate of conditions as renders inequitable it right.” enforce the An- (1931). Smith, 99, geloff v 101; 254 Mich 235 NW 823 But has long “[i]t been held that mere lapse the not, itself, time will constitute laches.” Dep’t of Treasury v Campbell, 561, 570; 107 Mich App 309 (1981). defense, NW2d 668 “The to be raised properly, must be accompanied by finding that the delay caused some prejudice party to the asserting laches and that it would inequitable to ignore preju- dice so created.” Id. The defendant bears burden of proving this prejudice. resultant Springs Yankee 264 Twp, App Mich at 612. As the Attorney out, General correctly points “

early rule government was that the ‘exempt was from the consequences of its laches ....’” Detroit v 19675 Hasse, 438, 258 Mich App 445; 671 (2003), NW2d 150 quoting Guaranty States, Trust Co v 126, United 304 US 132; 785; 58 S Ct 82 L Ed 1224 (1938); see also Chippewa Co Bd Supervisors Bennett, v 185 Mich (1915). 544, 564-565; However, 152 NW 229 this ancient rule has apparently abrogated been in Michigan, at least in part. Royal 7, See Oak v Twp School Dist No (1948). 397, 402-403; 322 Mich 33 NW2d At least panel one of this Court has cited the Oak Royal Twp App 287 Mich

Opinion op the Court proposition “laches should decision for responding an individual to a . . . be . . . available to Treasury, government Dep’t initiated action.” App at 570. may if laches be asserted Nevertheless, even against governmental entity, conclude that the we equitable unavailable to Pow- defense of laches was unclean hands. erPick because PowerPick acted with equitable an doctrine. Baerlin v Laches is Gulf Refin- (1959); ing Co, 532, 535; 96 356 Mich NW2d 806 Harper-Grace Hospitals, Eberhard v 179 Mich (1989). 35; 445 NW2d 469 It is well settled one equitable relief must do clean who seeks so with McCluskey Winisky, 315, 321; v 373 Mich hands. (1964); Enterprises, Harmon, NW2d 400 Berar Inc App 216, 231; A 300 NW2d 519 may party equi- with unclean hands not assert table defense of laches. General v Thomas (1985). App Co, 55, 66; Solvent 146 Mich 380 NW2d 53 Supreme párty Our Court has observed that a who has “acted in violation of the law” is not “before a equity hands,” court clean with is therefore any position remedy “not in in a to ask for court of equity.” Lonsby Co, Farrar v Lumber & Coal 149 Mich (1907). 118, 121; Indeed, NW 726 as stated Society Neighbors Mayor Detroit, Good v (1949), equity 22, 28; a 36 NW2d 308 court of “will not lend its aid ... to assist law violators.” Power- gambling Pick’s various schemes violate the terms of 432.27(1), 750.301, 750.304, MCL MCL MCL 750.306, 750.372, and MCL and PowerPick has thus Farrar, acted with unclean hands. 149 Mich at 121. may consequence, equitable As a it not assert the App Solvent, defense of laches. Thomas 146 Mich at 66. Attorney General v PowerPick Club

e reason, entitled to For same was not defense hands. A defen- equitable assert of unclean dant unclean may ground with hands not defend on the that the has unclean plaintiff permit hands as well. To defendant with unclean hands to on a ground defend such would contravene the ancient rule that who hath “[h]e iniquity committed shall not have ....” equity Society of 28; Good 324 Mich at see v Neighbors, also McCredie (1875). Buxton, 383, 31 Mich

F PowerPick’s affirmative fail defenses as matter of granted law. The circuit court should have summary General’s motion for of the affir- disposition 2.116(C)(9). Dimondale, mative defenses under MCR 240 Mich at 564. App

iv In ruling summary on the motion for disposition, the circuit court did not address the Attorney General’s claim operations violated the MCPA. In gen- eral, we will not address an issue on appeal that was not considered and decided below. Polkton Charter v Twp Pellegrom, 88, 95; (2005); 265 Mich App 693 NW2d 170 Hall, People 199; NW2d 219 any matter, Lest there be confusion on the we wish to make clear that PowerPick’s operations constituted an above, enjoinable nuisance for the reasons stated irrespec- tive of whether PowerPick’s practices business also vio- However, lated MCPA. because the fines, costs, sought specific civil and other relief under the MCPA, 445.905(1); 445.905(4), see MCL we direct App 13

Opinion by J. Hoekstra, Attorney the circuit court to consider and address the MCPA claim on remand. General’s operations We have concluded that PowerPick’s and enjoinable constitute an and office nuisance that Pow- any erPick failed to and assert valid plead affirmative Therefore, by denying defenses. the circuit court erred Attorney summary General’s motion for disposition with nuisance claim. There respect his remained no genuine issue of material fact that would have pre- issue, cluded the grant summary disposition on this Attorney and the judgment General was entitled to as a remand, matter of On law. the circuit court shall enter in judgment favor of the General with respect to his nuisance claim. This shall include the entry of any may necessary order that to abate the nuisance enjoin and to continuing operations. contrast, In the circuit court did not consider or address General’s MCPA claim. The cir- cuit court shall consider this claim on remand. and

Reversed remanded for further proceedings con- sistent with this We do not retain opinion. jurisdiction. 7.219, public No costs under MCR question having been involved.

MARKEY, J., concurred.

HOEKSTRA, J. (concurring part dissenting I part). agree join holdings majority with the of the 11(C)(2) 432.27(1) part PowerPick violates MCL reselling lottery price greater tickets at a than that fixed 11(C)(3) by Michigan Lottery and part commissioner that PowerPick violates MCL 750.372 because its random drawings Michigan scratch-off tickets consti- Club v PowerPick Opinion J. Hoekstra, an MegaPools that its constitute illegal lottery an and tute the agree join I and with enterprise. also illegal gift in III that PowerPick’s majority part the holding of addition, I of law. In defenses fail as a matter affirmative for consideration of the appropriate a remand is agree that Michigan the Consumer claims under Attorney General’s Act, et seq. MCL 445.901 Protection majority’s the However, disagree I with respectfully 11(C)(1) business in that PowerPick’s part conclusion randomly assigning pools its customers of practice is “buy- a second bet because the customer constitutes more being assigned of to one or [ing\ the chance (emphasis original), ante at and winning pools,” why its customers pay this chance is one of the reasons than the face percent greater an amount is 51 the tickets On the basis of its purchased. value of assigning of its interpretation practice pools, majority customers to holds that PowerPick 750.301, contrary registers to MCL bets receives bets contrary 750.304, to MCL and memoranda of possesses contrast, contrary although to MCL 750.306. In not bets charges that it its customers 51 more disputing percent lottery tickets, spends purchase than what it Power- merely providing Pick maintains that it is a service to and greater its customers the amount than that purchase represents profits. used to its costs and In the amount in addition my opinion, charged whether to the tickets is a reason- purchased lottery cost of pay expenses able amount to for PowerPick’s business buys or in is a second bet that profits, part assigned winning pool, to a is a customer chance to fact that cannot be resolved on a disputed question of on this summary disposition. Consequently, motion for issue, I holding would affirm the trial court’s specific that factual issues remain. Opinion by J. Hoekstra, holdings

I with the of the respectfully disagree also 11(C)(4) (5) that “PowerPick’s majority parts whole, operations, business taken as a constitute a nuisance,” ante at and that public “PowerPick’s furniture, fixtures, Park and ‘the office Comstock of that office constitute a as a and contents’ nuisance law,” ante at Because I matter of 45. believe that factual exist busi- questions concerning whether PowerPick’s ness its practice assigning pools customers into provisions violates Penal Code at issue, any determination whether PowerPick’s business operations and its office constitute a nuisance for such premature. Moreover, violations is whether Power- 432.27(1) Pick’s violation of MCL constitutes a public and, does, if nuisance it whether the subject violation is to the sanctions for in provided MCL 600.3801 are General, of first In questions impression. Attorney ex rel Optometry Peterson, Bd Examiners v 465; (1969), 164 NW2d 43 the Supreme Court noted that, law, “[a]t common acts violation of consti- law tute a nuisance” and public Attorney that the General may enjoin Therefore, sue to such although nuisances. no issue, court has addressed the it arguable is 432.27(1) PowerPick’s violation of MCL renders its public However, business a nuisance. the Peterson Court qualified holding by noting its that “[h]arm to the public presumed is to from flow the violation of a valid preserve public health, statute enacted to safety and welfare.” Id. at 465. Numerous cases hold that the crimi- gambling statutes, 750.301, nal such as MCL MCL 750.304, 750.306, were enacted preserve public to health, safety, See, e.g., welfare. Parkes v Recorder’s 460, 465-466; (1926); Court 236 Mich Judge, 210 NW 492 Oakland Co Prosecutor v 46th Dist Judge, 318, 326; 256 NW2d 776 But whether MCL 432.27(1) health, was enacted to preserve public safety, v PowerPick Club General Opinion J. Hoekstra, Because question. and welfare is not a settled below that a violation only argued 432.27(1) for con- an additional reason provided MCL was a nui- operation public that PowerPick’s cluding 432.27(1) sance, MCL was enacted to the issue whether health, welfare was not safety, and preserve public court, appeal. in the trial nor was it briefed on raised circumstances, trial I would remand to the Under these consideration of whether a violation of court for initial 432.27(1) and, so, nuisance if public constitutes whether, extent, subject and to what violation MCL 600.3801. the sanctions of I Finally, agree holding majority with 11(C)(5) drawings that PowerPick’s for scratch-off part and, therefore, “gambling” tickets are Power- However, Pick can be sanctioned under MCL 600.3801. I majority, unlike the would also remand to the trial what, if any, court for a determination of assets are subject provided by sanction MCL 600.3801 for this particular violation.

Case Details

Case Name: Attorney General v. Powerpick Player's Club of Michigan, LLC

Court Name: Michigan Court of Appeals

Date Published: Jan 5, 2010

Citation: 783 N.W.2d 515

Docket Number: Docket 283858

Court Abbreviation: Mich. Ct. App.