TAXPAYERS OF MICHIGAN AGAINST CASINOS v STATE OF MICHIGAN (ON REMAND)
Docket No. 225017
Michigan Court of Appeals
September 27, 2005
268 Mich. App. 226
Submitted August 26, 2004, at Lansing. Decided September 27, 2005, at 9:00 a.m. Leave to appeal sought.
On remand, the Court of Appeals held:
Trial court decision relative to the separation of powers issue reinstated.
BORRELLO, J., dissenting, would conclude that the provision granting the Governor authority to amend the compacts without legislative approval does not violate the Separation of Powers Clause and would reverse the trial court‘s ruling on that issue. The Legislature‘s approval of the compacts by concurrent resolution included approval of the amendment provision and the amendment process it contained, effectively granting the Governor approval in advance of amendments or permitting the Governor to amend the compacts without legislative approval. The Legislature could validly confer this power on the Governor through resolution. The Legislature approved the compacts with full knowledge of the existence of the amendment provision. As long as any amendment of a compact was constitutional, it was proper. The Court should not interfere with the legitimate exercise of legislative discretion, and must be mindful of the limits on the judiciary‘s role in matters involving separation of powers.
INDIANS — TRIBAL-STATE CASINO COMPACTS — AMENDMENTS WITHOUT LEGISLATIVE APPROVAL — CONSTITUTIONAL LAW — SEPARATION OF POWERS.
A provision in a compact between the state and an Indian tribe pertaining to tribal casinos that allows amendment of the compact by the Governor without legislative approval violates the Separation of Powers Clause of the Michigan Constitution (
Warner Norcross & Judd LLP (by Robert J. Jonker, William C. Fulkerson, Daniel K. DeWitt, and John J. Bursch) for Taxpayers of Michigan Against Casinos.
Kanji & Katzen, P.L.L.C. (by Riyaz A. Kanji and Jennifer B. Salvatore), Drummond, Woodsum & MacMahon (by Kaighn Smith), and James Bransky, for the Little Traverse Bay Bands of Odawa Indians.
Dykema Gossett PLLC (by Richard D. McLellan, R. Lance Boldrey, and Kristine N. Tuma) for Gaming Entertainment, LLC.
ON REMAND
Before: OWENS, P.J., and SCHUETTE and BORRELLO, JJ.
SCHUETTE, J. The issue presented to this Court on remand from our Supreme Court‘s decision in Taxpayers of Michigan Against Casinos v Michigan, 471 Mich 306, 333; 685 NW2d 221 (2004) (Taxpayers), is whether the amendatory provision in the tribal-state gambling compacts purporting to empower the Governor to amend the compacts without legislative approval violates the separation of powers doctrine found in the Separation of Powers Clause in
I. PROCEDURAL HISTORY
A. LEGISLATIVE ACTION
The legal issues confronting this Court and the Supreme Court stem from the expansion of casino gambling in the state of Michigan.
B. CIRCUIT COURT ACTION
The validity of the approval of these gambling compacts, by resolution rather than statute, spawned several lawsuits: two in federal court and this action originally brought in the Ingham Circuit Court. The
Plaintiffs sought a declaratory judgment that the method of approval of the gambling compacts violated various provisions of the Michigan Constitution. Plaintiffs argued that legislative approval of the compacts by resolution violated
The trial court ruled in favor of plaintiffs in two instances, determining that the gambling compacts should have been approved by bill instead of by resolution and that the amendatory provision in the compacts ran afoul of the doctrine of separation of powers. The trial court determined that the approval of the gambling compacts did not violate the Local Acts Clause of
C. COURT OF APPEALS DECISION
A panel of this Court in Taxpayers of Michigan Against Casinos v Michigan, 254 Mich App 23, 43-49;
D. SUPREME COURT DECISION
Upon review, five justices of our Supreme Court held that legislative approval of the gambling compacts by mere resolution did not violate the Michigan Constitution, likening the tribal-state gambling compacts to a contract as distinguished from more traditional legislative or statutory actions of the Michigan Legislature. Taxpayers, 471 Mich at 327-328, 352. All seven justices of our Supreme Court also determined that there was no violation of the Local Acts Clause,
In July 2003, and before the Supreme Court‘s ruling, Governor Jennifer Granholm exercised the amendatory provision contained within an individual compact negotiated between the state of Michigan and the Little Traverse Bay Bands of Odawa Indians. Chief Justice CORRIGAN, in her lead opinion, acknowledged this fact
Justices TAYLOR and YOUNG joined Chief Justice CORRIGAN in her lead opinion, in which she stated that “we remand this issue to the Court of Appeals to consider whether the provision in the compacts purporting to empower the Governor to amend the compacts without legislative approval violates the separation of powers doctrine found in
Justice MARKMAN, in his dissent, determined that the amendment by the Governor made the issue “ripe.” Id. at 362. Justice MARKMAN further stated that “the amendatory provision contained in each compact violates the separation of powers doctrine and is, thus, void insofar as it may be regarded as granting sole amendatory power over legislation to the Governor.” Id. at 407. Justice WEAVER did not address the ripeness issue or the separation of powers issue now before this Court, declining on the basis of her determination that the gambling compacts were violative of
E. PROCEDURES OF THE COURT OF APPEALS ON REMAND
In October 2004, Judges BORRELLO and SCHUETTE were randomly selected to replace retired Judges HOOD and HOLBROOK, who were panelists on this Court‘s earlier decision in this case. In November 2004, this Court issued an order in this case, which, among other things, allowed the parties to file briefs addressing
A second order, dismissing a motion to disqualify Judge SCHUETTE, was entered on November 24, 2004. No appeal was filed challenging Judge SCHUETTE‘S order dismissing the motion to disqualify.
II. THE 1998 COMPACTS
The gambling compacts negotiated in 1998 between Governor Engler on behalf of the state of Michigan and the four Indian tribes contained identical provisions, except that the geographic scope of gambling activity permitted within the state of Michigan varied among the four tribes.
Of significance to the case at bar are the following sections contained in each of the four gambling compacts. Section 12(E) provides:
In the event that any section or provision of this Compact is disapproved by the Secretary of the Interior of the United States or is held invalid by any court of
competent jurisdiction, it is the intent of the parties that the remaining sections or provisions of this Compact, and any amendments thereto, shall continue in full force and effect. This severability provision does not apply to Sections 17 and 18 of this Compact.
Section 16 of the gambling compacts outlines the methodology for amending a compact. This section provides in part:
This Compact may be amended by mutual agreement between the Tribe and the State as follows:
(A) The Tribe or the State may propose amendments to the Compact by providing the other party with written notice of the proposed amendment as follows:
(i) The Tribe shall propose amendments pursuant to the notice provisions of this Compact by submitting the proposed amendments to the Governor who shall act for the State.
(ii) The State, acting through the Governor, shall propose amendments by submitting the proposed amendments to the Tribe pursuant to the notice provisions of this Compact.
* * *
(C) Any amendment agreed to between the parties shall be submitted to the Secretary of the Interior for approval pursuant to the provisions of the IGRA.
(D) Upon the effective date of the amendment, a certified copy shall be filed by the Governor with the Michigan Secretary of State and a copy shall be transmitted to each house of the Michigan Legislature and the Michigan Attorney General.
Sections 17 and 18 of each gambling compact detail the financial transactions between the state of Michigan and a tribe, describe how payments are made from a tribe to the Michigan Strategic Fund, describe how
III. 2003 AMENDMENTS
On July 14, 2003, Governor Granholm, on behalf of the state of Michigan, exercised the amendatory provision in §16 of the 1998 gambling compact between the state of Michigan and the Little Traverse Bay Bands of Odawa Indians. Several changes were made to the original agreement. The preamble clause to these amendments indicated that any changes were in accordance with §16 of the 1998 gambling compact. Also noteworthy in the preamble was the specific inclusion of a statement that “[a]ll provisions of the Compact not explicitly added or amended herein shall remain in full force and effect.” The 2003 amendments of greatest significance are summarized as follows:
- The amendment to § 2(8)(1) grants the Little Traverse Bay Bands of Odawa Indians the right to operate a second casino.
- For purposes of this second casino, the amendment to § 4(I) changes the age of legal gambling from 18 to 21.
- Added § 4(O) requires the tribe to send reports of customer winnings to the state; previously such reports were sent only to the federal government as a requirement of federal law.
- The amendments to § 12(A) and (B) make the compact binding on the state and the tribe for 25 years from the effective date of the amendments, instead of it
- The original compact required the tribe to pay the state a percentage of the “net win” as long as there was no change in state law permitting the operation of electronic games of chance or commercial casino games and no other person (except another tribe or a person operating in the city of Detroit under
MCL 432.201 et seq. ) lawfully operated such games. The amendments to § 17(B) provide:- that this includes the expansion of lottery games,
- that payments from the first casino (the Petoskey Site) will continue after the second casino has operated for 24 months despite changes in state law that expand permitted gaming as long as the change does not occur in ten specified northern Michigan counties, and
- that payments from the second casino will be made despite such a change in the law as long as the expansion does not operate in the designated counties.
- Instead of paying eight percent of the “net win” from all class III electronic games of chance at the Petoskey Site to the Michigan Strategic Fund or its successor as determined by state law, the tribe must pay this eight percent to “the State, as directed by the Governor or designee.” For the second casino, the tribe must pay ten percent of all such earnings up to $50 million and 12 percent of all such earnings over $50 million to “the State, as directed by the Governor or designee” See amendment to § 17(C). However, the payments could cease or diminish if another tribe opens a casino in the designated counties without the compacting tribe‘s consent. See added § 17(E).
This Court reviews de novo constitutional issues. Armstrong v Ypsilanti Charter Twp, 248 Mich App 573, 582; 640 NW2d 321 (2001). The party asserting a constitutional challenge has the burden of proof. McDonald v Grand Traverse Co Election Comm, 255 Mich App 674, 680; 662 NW2d 804 (2003).
V. ANALYSIS
The closely related core issues presented to this Court on remand are (1) whether the provision in the gambling compact between the state of Michigan and the Little Traverse Bay Bands of Odawa Indians, which provides for amendment by the Governor without legislative approval, violates
We hold that the provision in the gambling compact between the state of Michigan and the Little Traverse Bay Bands of Odawa Indians that provides for amendment by the Governor without legislative approval violates
Although the lines separating the three branches of state government may converge from time to time, they are distinct boundaries, not mirages. The Michigan Constitution outlines the landscape of powers that separate the executive, legislative, and judicial branches of government. “By separating the powers of government, the framers of the Michigan Constitution sought to disperse governmental power and thereby to limit its exercise.” Nat‘l Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich 608, 613; 684 NW2d 800 (2004).
The Governor‘s responsibility is to exercise the executive power,
Each principal department shall be under the supervision of the governor unless otherwise provided by this constitution. The governor shall take care that the laws be faithfully executed. He shall transact all necessary business with the officers of government and may require information in writing from all executive and administrative state officers, elective and appointive, upon any subject relating to the duties of their respective offices.
The governor may initiate court proceedings in the name of the state to enforce compliance with any constitutional or legislative mandate, or to restrain violations of any constitutional or legislative power, duty or right by any officer, department or agency of the state or any of its political subdivisions. This authority shall not be construed to authorize court proceedings against the legislature.
The powers of the legislative branch of government are set forth in
The judicial power of the state is vested exclusively in one court of justice which shall be divided into one supreme court, one court of appeals, one trial court of general jurisdiction known as the circuit court, one probate court, and courts of limited jurisdiction that the legislature may establish by a two-thirds vote of the members elected to and serving in each house.
These constitutional provisions establish the framework for our analysis. Further,
The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution. [
Const 1963, art 3, § 2 .]
And that there is such a broad general principle seems to us very plain. Our government is one whose powers have been carefully apportioned between three distinct departments, which emanate alike from the people, have their powers alike limited and defined by the constitution, are of equal dignity, and within their respective spheres of action equally independent. . . . This division is accepted as a necessity in all free governments, and the very apportionment of power to one department is understood to be a prohibition of its exercise by either of the others. [Emphasis added.]
The Little Traverse Bay Bands of Odawa Indians and the dissent argue that in approving the compacts by resolution in 1998, the Legislature also approved any subsequent amendments, albeit in advance. We reject this argument. The tribe also notes that the Legislature has authorized other bodies in advance to make binding contracts, pointing specifically to the Social Welfare Act, which authorizes the director of the Family Independence Agency, now the Department of Human Services, to enter into agreements with federal, state or local units of government or private agencies to participate in any plan that the director deems desirable for the welfare of the people of the state.
However, unlike the authority for amendments to the compacts, the advance authority to contract under the Social Welfare Act is provided by statute. Directly applicable to this case is our Supreme Court‘s decision in Roxborough v Michigan Unemployment Compensation Comm, 309 Mich 505; 15 NW2d 724 (1944). In Roxborough, the issue presented was whether the Governor had the ability to appoint members of the Unemployment Compensation Commission Appeal Board and
In fixing plaintiff‘s salary, the governor could exercise only such authority as was delegated to him by legislative enactment. The rule is stated in 59 C.J. pp. 172, 173, § 286, as follows:
“Public officers have and can exercise only such powers as are conferred on them by law, and a State is not bound by contracts made in its behalf by its officers or agents without previous authority conferred by statute or the Constitution.” [Id. at 510.]
Further, the dissent‘s attempt to distinguish Roxborough is unpersuasive. The rule from Roxborough is essentially that “[g]enerally, only persons authorized by the state constitution or a statute can make a contract binding on a state——” 72 Am Jur 2d, States, Territories, and Dependencies, § 71, p 457. Here the delegation of authority to amend a gambling compact was conferred by a resolution, a nonstatutory means. The nonstatutory nature of a resolution fails the Roxborough requirement that a valid delegation of legislative authority to the executive branch of government must be expressed in the Michigan Constitution or by means of a statute.
Moreover, in McCartney v Attorney General, 231 Mich App 722, 726-728; 587 NW2d 824 (1998), citing Tiger Stadium Fan Club, Inc v Governor, 217 Mich App 439; 553 NW2d 7 (1996), this Court expressed careful recognition that although the Governor had the authority to negotiate and execute gambling compacts, the actions were subject to legislative approval. The Court concluded that the Governor did not act ultra vires in negotiating the compacts, but clearly stated that such gubernatorial authority was limited in nature:
We emphasize that the Governor has executive power,
Const 1963, art 5, § 1 , and the power to suggest legislation,
Const 1963, art 5, § 17 . We also emphasize that there is no constitutional impediment to the Governor‘s negotiating with an Indian tribe where the product of his negotiations has no effect without legislative approval. [McCartney, supra at 729 (emphasis added).]
The expansion of tribal and nontribal gambling in Michigan and throughout the United States engenders a wide range of opinions. Nevertheless, the rule of law in Michigan has been enunciated in Taxpayers, in which our Supreme Court (as discussed in part I[D] of this opinion) held that the Governor may contract with a tribe to establish the ground rules pertaining to casino gambling. These ground rules, set forth in the contract, must be presented to the Legislature for approval, at the very least by legislative resolution. Here, no party has identified any statutory or constitutional authorization for the Governor to enter into compacts or amendments to compacts that are not subject to legislative approval. Thus, while the Supreme Court in Taxpayers held that the Governor could negotiate the gambling compacts subject to legislative approval by resolution, we conclude that the Governor does not have unbridled authority to amend a compact.
Absent a statutory delegation of authority by the Legislature to the Governor to amend a gambling compact, and being mindful of the constitutional prohibition that forbids the executive branch from assuming duties of the legislative branch unless expressly provided for in the Michigan Constitution, any amendment to a gambling compact must be presented to the Legislature for approval, at the very least by legislative resolution.7
The apportionment of power, authority and duty to the governor, is either made by the people in the constitution, or by the Legislature in making laws under it; and the courts, when the apportionment has been made, would be presumptuous if they should assume to declare that a particular duty assigned to the governor is not essentially executive, but is of such inferior grade and importance as properly to pertain to some inferior office, and consequently, for the purposes of their jurisdiction, the courts
may treat it precisely as if an inferior officer had been required to perform it. To do this would be not only to question the wisdom of the constitution or the law, but also to assert a right to make the governor the passive instrument of the judiciary in executing its mandates within the sphere of his own duties. Were the courts to go so far, they would break away from those checks and balances of government which were meant to be checks of cooperation, and not of antagonism or mastery, and would concentrate in their own hands something at least of the power which the people, either directly or by the action of their representatives, decided to entrust to the other departments of the government. [Sutherland, supra at 328-329.]
Here, unlike the executive power at issue in Sutherland, the power to amend the compacts was not granted by the Constitution or by law. It was contained in a gambling compact that was approved by the Legislature by means of a resolution, but not by means of a bill. While the Court was loath to interfere with an executive power held by the Governor in Sutherland, an essential element of this restraint was that the power had been properly given to the Governor. Thus, Sutherland is only applicable if the amendment power was delegated properly by the legislative branch to the executive branch. Sutherland does not say that every delegation of authority is constitutional or even discuss the parameters of a lawful delegation of authority, but merely addresses whether mandamus is appropriate to compel the Governor to act where statutory authority to act was conferred.
Straus v Governor, 459 Mich 526; 592 NW2d 53 (1999), is similarly unhelpful to the state and the tribe. Straus dealt with an executive order transferring duties from the State Board of Education to the Superintendent of Public Instruction. The authority to take this action was granted by
The dissent cites Flint City Council v Michigan, 253 Mich App 378; 655 NW2d 604 (2002), in support of the contention that it is not the function of this Court to invalidate a decision made by the Legislature after the Legislature elected to grant the Governor broad amendment powers and validly did so. In Flint City Council, this Court held that because the Legislature did not impose procedural requirements for the conduct of a hearing to be conducted by the Governor or the Governor‘s designee under
The state cites Judicial Attorneys Ass‘n v Michigan, 459 Mich 291; 586 NW2d 894 (1998), for the proposition that there can be an overlapping of powers between the separate branches of government. However, this presumes that the overlapping powers have been properly delegated. In Judicial Attorneys, the Legislature, through statute, provided a new employer for certain employees of the Wayne Circuit Court and the Recorder‘s Court. The question was whether this action impinged on the power of the judiciary. It was recognized that the judiciary‘s authority to manage the courts was constitutionally based:
That the management of the employees of the judicial branch falls within the constitutional authority and responsibility of the judicial branch is well established. The power of each branch of government within its separate sphere necessarily includes managerial administrative authority to carry out its operations. [Id. at 297.]
The Court noted that “the separation of powers doctrine does not require so strict a separation as to provide no overlap of responsibilities and powers” and that “[i]f the grant of authority to one branch is limited and specific and does not create encroachment or aggrandizement of one branch at the expense of the other, a sharing of power may be constitutionally permissible.” Id. at 296-297. However, it held that the Legislature had overstepped the line and that the statute it enacted had violated the separation of powers doctrine. Significantly, the judicial power being discussed was a power that was conferred by the Constitution. Judicial Attorneys in no way suggests that there can be an overlapping of powers where, as here, the power at issue was never conferred by the Constitution or by statute.
VI. CONCLUSION
We conclude that under the facts of this case,
OWENS, P.J., concurred.
BORRELLO, J. (dissenting). I respectfully dissent because I strongly disagree with the majority‘s erroneous conclusion that the provision in the tribal-state gaming compacts that grants the Governor the authority to amend such compacts without legislative approval violates the separation of powers doctrine found in
In Justice KELLY‘s concurring opinion in Taxpayers of Michigan Against Casinos v Michigan, 471 Mich 306, 349; 685 NW2d 221 (2004) (TOMAC), she asserted that, while the issue of the constitutionality of the amendment provision in the compacts was not ripe for review because no amendment to the compacts had been made, “[t]he amendment provision of the compacts survives a facial challenge to the Separation of Powers Clause of the Michigan Constitution.” I agree with Justice KELLY‘s reasoning and would further conclude that, as applied, the provision in the compacts that permits the Governor to amend the compacts without legislative approval does not violate the separation of powers doctrine. The Separation of Powers Clause of the Michigan Constitution provides:
The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution. [
Const 1963, art 3, § 2 .]
Under the Michigan Constitution, “the Legislature is to exercise the ‘legislative power’ of the state,
Section 16 of the compacts provides:
This Compact may be amended by mutual agreement between the Tribe and the State as follows:
(A) The Tribe or the State may propose amendments to the Compact by providing the other party with written notice of the proposed amendment as follows:
(i) The Tribe shall propose amendments pursuant to the notice provisions of this Compact by submitting the proposed amendments to the Governor who shall act for the State.
(ii) The State, acting through the Governor, shall propose amendments by submitting the proposed amendments to the Tribe pursuant to the notice provisions of this Compact. [Compact between the Little Traverse Bay Bands of Odawa Indians and the State of Michigan, § 16.]
Section 16 effectively grants the Governor the power to amend the compacts without the Legislature‘s approval. The Legislature‘s approval of the compacts by resolution included approval of this amendment provision. Therefore, the Legislature, in approving the compacts by resolution, also approved the amendment process, thus permitting the Governor to amend the compacts without legislative approval. It is significant that the Legislature approved the compacts with full knowledge of the existence of the amendment provision. While it may be true that the Legislature did not anticipate or contemplate a particular amendment, it nevertheless knowingly approved the compacts with the
When the Legislature approved the compacts with the amendment provision, the Legislature effectively granted the Governor approval in advance of any amendments of the compacts. This legislative action authorized the Governor, in advance, to bind the state to any amendments. It is not the function of this Court to interfere with the legitimate exercise of legislative discretion, and this Court must be mindful of the limits on the judiciary‘s role regarding matters involving the separation of powers. I believe that by holding that the provision in the compacts permitting the Governor to amend the compacts without legislative approval violates the separation of powers doctrine, the majority effectuates an improper interference by the judicial branch with the legitimate discretion of the Legislature to give advance authorization to the Governor to make amendments to the tribal-state gaming compacts. As the Supreme Court explained in TOMAC:
More importantly, because our Legislature had the discretion to approve the compacts by resolution rather than by bill, the courts cannot interfere with that legitimate exercise of legislative discretion. As this Court recognized long ago in Detroit v Wayne Circuit Judge, 79 Mich 384, 387; 44 NW 622 (1890):
“It is one of the necessary and fundamental rules of law that the judicial power cannot interfere with the legitimate discretion of any other department of government. So long as they do no illegal act, and are doing business in the range of the powers committed to their exercise, no outside authority can intermeddle with them . . . .” [TOMAC, supra at 329.]
Respectful of the judiciary‘s role in such matters, I would decline to interfere with the Legislature‘s legiti-
In my estimation, the majority fails to appreciate that ” ‘an indispensable ingredient of the concept of coequal branches of government is that “each branch must recognize and respect the limits on its own authority and the boundaries of the authority delegated to the other branches.” ’ ” Judicial Attorneys Ass‘n, supra at 305, quoting Employees & Judge of the Second Judicial Dist Court v Hillsdale Co, 423 Mich 705, 717; 378 NW2d 744 (1985), quoting United States v Will, 449 US 200, 228; 101 S Ct 471; 66 L Ed 2d 392 (1980). It is not the function of this Court to invalidate a decision made by the Legislature in its exercise of a constitutionally permitted authority when the Legislature itself elected to grant the Governor the power to amend the compacts and validly did so. In Flint City Council v Michigan, 253 Mich App 378, 391; 655 NW2d 604 (2002), this Court held that, because the Legislature did not impose procedural requirements for the conduct of a hearing to be conducted by the Governor or the Governor‘s designee under
The unique legal status of Indian casino gaming and the facts of this case, as well as the limits that federal law places on the states’ roles in negotiating with the tribes, also support the conclusion that the separation of powers doctrine was not violated in this case. As our Supreme Court accurately observed in TOMAC, “[T]he Legislature could not have unilaterally exerted its will over the tribes involved.” TOMAC, supra at 319. Federal law limits the states’ roles in negotiating with the tribes through the compacting process. Therefore, because of the state of Michigan‘s limited role in negotiating with the tribes under federal law, it was necessary, as the Legislature recognized in approving the compacts containing the amendment provision, to facilitate the Governor‘s involvement in the negotiations process with the tribes. The Supreme Court recognized in TOMAC that by approving the compacts, “the Legislature simply expressed its approval of valid contracts between two independent, sovereign entities.” Id. at 312. In doing so, the Legislature helped to secure an important source of revenue for the state.
The majority, relying on Roxborough v Michigan Unemployment Compensation Comm, 309 Mich 505; 15 NW2d 724 (1944), concludes that the Governor is not authorized to enter into compacts or to make amendments to compacts without legislative approval because there exists no statutory or constitutional authority for the Governor to do so, and mere approval by resolution is insufficient to confer such authority. In Roxborough, our Supreme Court stated that “[p]ublic officers have
I also question the majority‘s reliance on McCartney v Attorney General, 231 Mich App 722; 587 NW2d 824 (1998), in support of its holding. The majority relies on this Court‘s statement in McCartney that “there is no constitutional impediment to the Governor‘s negotiating with an Indian tribe where the product of his [or her] negotiations has no effect without legislative approval” Id. at 729 (emphasis added). According to the majority, in McCartney this Court “expressed careful recognition that, although the Governor had the authority to negotiate and execute gambling compacts, the actions were subject to legislative approval.” Ante at 241. The majority‘s reliance on McCartney is questionable because, in the instant case, the Legislature did approve any amendments of the compacts made by the Governor when it approved the compacts by resolution. Because there was legislative approval in this case, albeit advance approval, I disagree with the majority‘s suggestion that such approval did not exist in the instant case.
Moreover, I disagree with the majority that there was no valid delegation of legislative authority to the Governor in this case. I would conclude that the Legislature, to the extent that it may have delegated to the Governor its authority to enter into contracts on behalf
I am not persuaded that the Legislature‘s approval of the compacts constituted a delegation of legislative power at all, as opposed to the Legislature merely exercising its own authority to bind the state to subsequent contractual amendments negotiated between the Governor and the tribe. However, assuming that the Legislature did delegate to the Governor its authority to enter into contracts on behalf of the state, I would reject the conclusion that the delegation was constitutionally infirm because it was not sufficiently defined or specific or lacked adequate standards. At the outset, I would observe that while the Supreme Court has held that the
First, if the Legislature did delegate its power to contract to the Governor, it did not broadly delegate its entire power to enter into tribal-state gaming compacts with an Indian tribe. Rather, any delegation of the Legislature‘s power to enter into contracts on behalf of the state of Michigan was limited to granting the Governor the authority to amend the existing tribal-state gaming compacts. Moreover, the express terms of the amendment provision in the compacts itself further limit the Governor‘s power. For example, § 16(A)(iii) prohibits the Governor from consenting to an amendment that would expand the definition of “eligible Indian lands.” Furthermore, the Governor‘s power to amend the compacts is also restricted by constitutional considerations. Therefore, even assuming that the Legislature‘s approval of the compacts did constitute a delegation to the executive branch of the Legislature‘s authority to enter into contracts on behalf of the state, I would conclude that there were sufficient standards and limitations on that power. Because there are sufficient safeguards in place to check the exercise of any
For these reasons, I disagree with the majority. Accordingly, I would reverse the trial court‘s decision and hold that the provision in the tribal-state gaming compacts granting the Governor the authority to amend the compacts does not violate the Separation of Powers Clause of the Michigan Constitution.