Lead Opinion
The issue is whether Detroit Ordinance 35-98 is exempt from the power of referendum found in the Detroit Charter. On its own motion, this Court voted to grant leave to appeal
(1) The power of referendum in the Detroit Charter does “not extend to the budget or any ordinance for the appropriation of money . . . .” Detroit City Charter, art 12, § 12-101.
(2) Detroit Ordinance 35-98 provides in pertinent part:
The Three Hundred Thirty-Three Thousand Three Hundred Thirty-Three and 34/100 Dollars ($333,333.34) early advance heretofore paid by the developer to the City pursuant to the development agreement is hereby appropriated to the temporary casino site support and infrastructure improvement ....
(3) An appropriation of $333,333.34 is an “appropriation of money” and ordinance 35-98 is “any ordinance.”
Accordingly, consistent with Michigan United Conservation Clubs v Secretary of State (After Remand),
RESPONSE TO JUSTICE WEAVER’S DISSENT
Justice Weaver dissents, asserting that we improvidently granted leave in the case at bar to be heard with the MUCC case because it has now become apparent the cases are too dissimilar to be considered together. She further asserts that the cases are no longer being considered together, in that the MUCC decision was issued just over three weeks ago. We cannot agree. The fact that the MUCC opinion was issued less than a month ago does not mean the case at bar and the MUCC case were not considered together. The MUCC decision was issued on an expedited basis in order to meet a statutory deadline. No such deadline exists in this case. Hence the Court has taken the prudent course of allowing additional time before issuing its decision in this case before the end of our term on July 31, 2001. Further, the MUCC case and the case at bar are similar.
RESPONSE TO JUSTICE CAVANAGH’S DISSENT
Justice Cavanagh dissents, asserting this appeal should be dismissed on the basis of mootness. He contends the case is moot because mgm renovated the building and that such renovation precludes the Court from being able to grant defendants the relief they request. Justice Cavanagh also posits that mgm would have a legal right to stay in the casino even if the ordinance went to a referendum and lost because the renovated casino would constitute a prior nonconforming use that could remain despite any zoning change.
The claim of mootness does not withstand serious scrutiny. Preliminarily, we note that the burden of demonstrating mootness is a “heavy one.” Los Angeles v Davis,
While it is true that defendants did not seek a stay after the trial court ruled against them (nor did they have to), they did file a timely appeal in the Court of Appeals. They also sought, albeit unsuccessfully, an expedited hearing from the Court of Appeals. It is also the case that the city and mgm were on notice that they proceeded at their peril if they built before the appeal was resolved because defendants sent a letter to the city council and mgm advising them exactly of that. Under such circumstances, one cannot reasonably conclude that defendants’ claim is moot. In fact, the obviousness of this is probably why the city and mgm did not bring such a motion.
It not only is common sense, but also a well-established legal principle, that a party can not obliterate an opponent’s appeal, on the basis of mootness, by so changing the status quo during the appeal (remarkably enough in this case by building the very casino that was at issue in the appeal while the appeal was pending) that they can then argue it is impossible to return to the situation that existed when the appeal was filed. The United States Supreme Court, no less, has said as much. In Jones v Securities & Exchange Comm,
*308 The rale is well settled, both by the courts of England and of this country, that where a suit is brought to enjoin certain acts or activities, for example, the erection of a building or other structure, of which suit defendant has notice, the hands of the defendant are effectively tied pending a hearing and determination, even though no restraining order or preliminary injunction be issued.
The conclusion to be drawn from all the cases is that after a defendant has been notified of the pendency of a suit seeking an injunction against him, even though a temporary injunction be not granted, he acts at his peni and subject to the power of the court to restore the status, wholly irrespective of the merits as they may be ultimately decided. [Emphasis added.]
We concur with the United States Supreme Court, reinforced in this conclusion by the fact that there is no contrary authority in our jurisprudence.
We also note that it is premature for Justice Cavanagh to conclude on the basis of Heath Twp v Sall,
Justice Cavanagh asserts that leave was granted in this case by the Court in order to “demonstrate that the Court would apply the same logic” to this case as we did in the MUCC case. Post at 310.
To the charge that the majority attempts to apply the same logic to all cases coming before it, we plead guilty. Justice Cavanagh’s discontent with our approach merely reflects our differing views on the proper role of the judiciary in our representative democracy.
We, the majority, apply the text of the constitution, a statute, or an ordinance according to its ordinary meaning. We are prepared to live with the result of the plain application of such texts, regardless of whether we personally agree or disagree with the outcome. We subscribe to the notion that judges are not the lawgivers in our society; rather, they are the interpreters of the law.
Justice Cavanagh’s judicial philosophy is perhaps more “complex” than ours insofar as he is willing to depart from giving texts a plain reading for a more “complicated” construction, one less respectful of the words themselves used by the lawgiver, in this case the people of the city of Detroit in enacting their charter. See, for example, his MUCC dissent, where he introduces a “core function” test as a means of avoiding the conclusion that a one million dollar appropriation is, in fact, an appropriation under Const 1963, art 2, § 9. We decline to read in such complexities where none are apparent in the language of the law.
Notes
In the MUCC case the issue was whether a statute that included a million dollar appropriation was exempt from a referendum because it was an “act[] making [an] appropriation!] for [a] state institution!],” whereas the issue in the case at bar is whether an ordinance that included a one-third of a million dollar appropriation is exempt from a referendum because it constitutes “any ordinance for the appropriation of money.”
Although the issues in each case warrant application of the same analysis, when we granted leave we were faced with a split of authority between the Court of Appeals decision in MUCC, swpra (which applied the amorphous “core function” test) and Judge Sapala’s decision in this case (which relied on the plain and unambiguous language of the Detroit City Charter). By considering this case along with the MUCC case we have provided an efficient resolution to a single problem.
The supplemental brief filed on behalf of the city clerk and the city council merely mentions mootness in a footnote found on page 19 of its twenty-page brief.
Also instructive is West v Secretary of the Dep’t of Transportation,
Equity will not permit a wrongdoer to shelter himself behind a suddenly or secretly changed status though he succeeded in making the change before the chancellor’s hand actually reached him.
Dissenting Opinion
(dissenting). This case arrived here at this Court’s request. Another vehicle was desired, along with Michigan United Conservation Clubs v Secretary of State (After Remand),
Rather than affirm the trial court’s decision in this case, I would dismiss because this case has become moot. When intervening changes in a case’s factual circumstances make it impossible for a court to fashion a remedy, the case has become moot and should be dismissed. See UAW v Governor,
i
This case arises from the implementation of casino gambling in the city of Detroit. A detailed understanding of the facts illustrates that this case has become moot.
By adopting Proposal E in 1996, voters decided to allow licensed casino gambling in Detroit. Plaintiff MGM Grand was subsequently chosen as one of the developers to conduct casino gambling, and plaintiff then selected a site in an existing building to establish a temporary casino facility. Next, the Detroit City Council adopted ordinance 24-98, which changed the zoning at the site from commercial to planned development, which would allow plaintiff to use the site for its temporary casino.
Defendants sought to refer ordinance 24-98. In accord with the referendum power reserved in the Detroit City Charter, art 12, § 101, defendants conducted a petition drive and submitted a sufficient number of valid signatures to the third-party defendant Detroit City Clerk, who certified the referendum petition in September 1998. Instead of subjecting ordinance 24-98 to popular adoption or rejection through a referendum election, however, the Detroit City Council repealed the ordinance, a power provided to the council by Detroit City Charter, art 12, § 107.
At the same session when the council repealed ordinance 24-98, it adopted ordinance 35-98. Like ordinance 24-98, the new ordinance rezoned plaintiff’s site to allow plaintiff to use the site for a temporary
Defendants conducted another petition drive, seeking to refer ordinance 35-98. They again submitted a sufficient number of valid signatures to the Detroit City Clerk, but she informed them that the petition did not meet the legal requirements for certification because ordinance 35-98 was an appropriations measure, exempt from referendum. The city clerk, therefore, did not certify the referendum petition.
On the same day that the city clerk denied certification, this litigation began. Plaintiff MGM Grand filed a complaint seeking a declaration that defendants’ petition was without legal effect. Several days later, defendants filed a third-party complaint against the Detroit City Clerk and the Detroit City Council, as well as a counterclaim against plaintiff. The counterclaim sought a temporary injunction against plaintiff,
With its trial court victory, plaintiff pressed on with its plans for a temporary casino. Plaintiff renovated its chosen building and opened the temporary casino in July 1999. The temporary casino is approximately 75,000 square feet, contains various games including approximately 2,500 slot machines, and takes in over $1 million a day. Also, plaintiff constructed a nine-deck parking structure, which opened in December 1999, adjacent to the temporary casino.
n
Defendants request this Court to reverse the trial court’s decision and compel the city of Detroit to schedule a referendum election on ordinance 35-98 so the voters of Detroit can reject the ordinance. However, such a remedy would be impossible. With plaintiff having completed its temporary casino, even if there were a referendum on ordinance 35-98, and even if the voters of Detroit were to reject the ordinance, plaintiff’s temporary casino would be a prior nonconforming use that could remain despite any zoning change. Because a referendum could not change the zoning at plaintiff’s temporary casino, the
In Heath Twp v Sall,
“The actual use which is nonconforming must be apparent and manifested by a tangible change in the land, as opposed to intended or contemplated by the property owner. In this regard, preliminary operation such as ordering plans, surveying the land, and the removal of old buddings are insufficient to establish a nonconforming use. The test in each case is not whether a little or a lot has been spent in reliance upon the past zoning classifications, but, rather, whether there has been any tangible change in the land itself by excavation and construction.” [Heath Twp, supra at 440 (citations and internal quotations omitted).]
Plaintiff’s temporary casino would be a prior nonconforming use because its operations go well beyond the preliminary requirements identified in ornease law. Here, plaintiff has completely refurbished its building to serve as a casino, and has constructed a large new parking deck next to the refurbished building. This certainly amounts to a tangible change in the land. In addition, though, the analysis from Heath Twp was directed at an incomplete development that was alleged to be sufficient to comprise a nonconforming use, and considered only construction toward the development that occurred before the zoning was restricted. In this case, we have a completed business that has been operating for nearly two years. Thus, plaintiff’s temporary casino would certainly be a lawful and existing use, see MCL 125.216(1), insulated from any subsequent zoning changes.
Defendants’ failure to move to stay the trial court’s decision, or to pursue a temporary injunction, and the resulting establishment of plaintiff’s temporary casino are intervening changes in the facts of this case that make defendants’ requested relief moot. As mentioned above, even if there were a referendum election on ordinance 35-98, and even if the voters of Detroit rejected the zoning of plaintiff’s temporary casino site adopted by that ordinance, the zoning at the temporary casino site would remain because plaintiff would have established a nonconforming use that cannot be altered by a subsequent zoning change. See UAW v Governor at 582; Crawford Co at 93.
in
For the reasons stated, this case is moot and should be dismissed. I respectfully dissent from the majority decision to affirm the lower court.
The city clerk cited a problem with the petition’s description of ordinance 35-98, required by Detroit City Charter, art 12, § 102, as an additional reason for denying certification. The validity of the description, and the city clerk’s decision, however, are not before this Court.
Plaintiff points out that the defendants mentioned the temporary injunction in the counterclaim, but did not pursue it before the trial court.
Dissenting Opinion
I respectfully dissent from the majority’s decision affirming the circuit court’s judgment granting MGM’s motion for summary disposition because I believe that leave was precipitately granted in this matter. I would dismiss our jurisdiction over this case and remand to the Court of Appeals for continuation of the proceedings there.
On May 24, 2001, this Court, on its own motion, took jurisdiction as on leave granted before decision by the Court of Appeals.
The Court believed that consideration of the two cases would afford a better perspective on the issues that they appeared to have in common. However, after oral arguments, it became apparent that leave was improvidently granted in this case. The issues in this case were too dissimilar to be considered with Michigan United Conservation Clubs. While art 2, § 9 of the 1963 Michigan Constitution states that “[t]he power of referendum does not extend to acts making appropriations for state institutions or to meet deficiencies in state funds,” § 12-101 of the Detroit City Charter provides in pertinent part:
The voters of the city reserve the power to enact city ordinances, called the “initiative,” and the power to nullify ordinances, enacted by the city, called the “referendum.” However, these powers do not extend to the budget or any ordinance for the appropriation of money, the referendum power does not extend to any emergency ordinance. [Emphasis added.]
Additionally, in this case there is also the underlying issue whether the ordinance in fact contains an appropriation. Appellants assert that the ordinance does not incur any obligation as required by the definition of appropriation under the Uniform Budgeting and Accounting Act, that the funds paid to the city by MGM are not “public funds,” and that the ordinance
I believe that we should remand this case to the Court of Appeals for a decision on all the issues in light of our recent opinion in Michigan United Conservation Clubs, rather than issue an opinion on certain issues
The Court of Appeals had already had oral argument on this case, but had not yet issued an opinion.
In the grant order, this Court limited the appeal “to the issues concerning whether City of Detroit ordinance 35-98 is exempt from the referendum provision of the City Charter because it is an ordinance for the appropriation of money.”