TAXPAYERS AGAINST CASINOS v. STATE 487

487Mich.TAXPAYERS AGAINST CASINOS v. STATECite as 732 N.W.2d 487 (Mich. 2007)

settlement was indicative of Dr. Shah’sfault, and (3) that, because Dr. Shah wasat fault, defendants were not responsible.The list of possibilities for prejudice islengthy. As a result, because the potentialprejudice is so great, the inference thatDr. Shah was dismissed from the lawsuitcannot be harmless.

Accordingly, just as the Court of Ap-peals in Clery determined that the errone-ous instruction warranted reversal, I con-clude that the unredacted affidavits ofmerit in the instant case warrant reversal.

,

478 Mich. 99

TAXPAYERS OF MICHIGANAGAINST CASINOS and Laura Baird,State Representative in her officialcapacity, Plaintiffs–Appellants,

v.The STATE of Michigan,

Defendant–Appellee,and

Gaming Entertainment, L.L.C. and Lit-tle Traverse Bay Bands of Odawa Indi-ans, Intervening Defendants–Appellees,

and

North American Sports ManagementCompany, Intervening

Defendant.

Taxpayers Of Michigan Against Casinosand Laura Baird, State Representa-tive in her official capacity, Plain-tiffs–Appellees,

v.The State of Michigan, Defendant–

Appellant,and

Gaming Entertainment, L.L.C. and Lit-tle Traverse Bay Bands of Odawa Indi-ans, Intervening Defendants–Appellees,

and


Defendant.

Taxpayers Of Michigan Against Casinosand Laura Baird, State Representa-tive in her official capacity, Plain-tiffs–Appellees,

v.The State of Michigan, Defendant–

Appellee,and

Gaming Entertainment, L.L.C.,Intervening–Defendant–

Appellee,

488 Mich. 732 NORTH WESTERN REPORTER, 2d SERIES

and

Little Traverse Bay Bands Of OdawaIndians, Intervening Defendant–

Appellant,

and


Defendant.

Docket Nos. 129816, 129818, 129822.Calendar No. 15.

Supreme Court of Michigan.

May 30, 2007.

Background: Taxpayers filed petitionagainst state to challenge constitutionalityof gaming compacts with Indian tribes.The Circuit Court, Ingham County, PeterD. Houk, J., determined that legislativeapproval, by resolution, of the compactsviolated certain provisions of the MichiganConstitution. State appealed. The Court ofAppeals, 254 Mich.App. 23, 657 N.W.2d503, affirmed in part and reversed in part.Taxpayers sought leave to appeal. The Su-preme Court 471 Mich. 306, 685 N.W.2d221, affirmed in part and remanded. Onremand, the Court of Appeals, Schuette,J., 268 Mich.App. 226, 708 N.W.2d 115,held that provision allowing Governor toamend compacts without legislative ap-proval violated separation of powersclause. Applications for leave to appealwere granted.

Holdings: The Supreme Court, MichaelF. Cavanagh, J., held that:

(1) amendatory provision which allowedGovernor to act for state in reviewingand approving amendments submittedby Indian tribes and in proposingamendments did not violate the separa-tion of powers clause, and

(2) claim of alleged violation of appropria-tions clause was not properly beforeSupreme Court.

Affirmed in part, reversed in part, andremanded.

Weaver, J., dissented and filed opinion.

Markman, J., dissented and filed opinion.

1. Appeal and Error O843(2)Legislator’s inactivity on appeal ren-

dered moot the issue of standing as itrelated to legislators.

2. Appeal and Error O893(1)Supreme Court reviews de novo a de-

cision regarding a motion for summarydisposition.

3. Appeal and Error O893(1)The Supreme Court reviews constitu-

tional issues de novo.

4. Appeal and Error O960(1)Decisions involving the meaning and

scope of pleadings are reviewed for anabuse of discretion.

5. Constitutional Law O2330, 2332The separation of powers doctrine

does not require so strict a separation asto provide no overlap of responsibilitiesand powers; an overlap or sharing of pow-er may be permissible if the grant of au-thority to one branch is limited and specif-ic and does not create encroachment oraggrandizement of one branch at the ex-pense of the other. M.C.L.A. Const. Art.3, § 2.

6. Constitutional Law O2621 Indians O337(3)

Gaming compacts’ amendatory provi-sion which allowed Governor to act forstate in reviewing and approving amend-ments submitted by Indian tribes and inproposing amendments did not violate theseparation of powers clause on its face oras exercised by Governor; the legislaturehad approved the provision by resolution,and all amendments negotiated by the


Governor are permissible since they didnot impose new obligations on citizens, butsimply reflected bilateral contractualterms agreed to by sovereign entities.M.C.L.A. Const. Art. 3, § 2.

7. Indians O331 Statutes O22

State constitution does not prohibitthe legislature from approving gamingcompacts with Indian tribes by concurrentresolution; thus, it is entirely permissiblefor the legislature to provide, by resolu-tion, that the Governor may negotiate sub-sequent amendments to the compacts.

8. Indians O342Claim that gaming compacts with In-

dian tribes violated appropriations clauseof state constitution was outside scope ofSupreme Court’s remand to Court of Ap-peals to determine whether amendatoryprovision permitting Governor to amendthe compacts without legislative approvalviolated the separation of powers doctrine;thus, the issue was not properly beforeSupreme Court on subsequent appeal.M.C.L.A. Const. Art. 3, § 2; Art. 9, § 17.

Warner Norcross & Judd L.L.P. (byRobert J. Jonker, William C. Fulkerson,Daniel K. DeWitt, and John J. Bursch),Grand Rapids, for Taxpayers of MichiganAgainst Casinos.

Michael A. Cox, Attorney General,Thomas L. Casey, Solicitor General, andBarris, Sott, Denn & Driker, P.L.L.C. (byEugene Driker and Thomas F. Cavalier),Special Assistant Attorneys General, De-troit, for the state of Michigan.

Dykema Gossett P.L.L.C. (by RichardD. McLellan, R. Lance Boldrey, and Kris-

tine N. Tuma), Lansing, for Little Tra-verse Bay Bands of Odawa Indians andGaming Entertainment, L.L.C.

Kanji & Katzen, P.L.L.C. (by Riyaz A.Kanji and Laura Sagolla), and JamesBransky, General Counsel, Little TraverseBay Bands of Odawa Indians, Ann Arbor;Harbor Springs for Little Traverse BayBands of Odawa Indians.

Jo Anne House, Office of Legal Counsel,Little River Band of Ottawa Indians(Drummond Woodsum & MacMahon, byKaighn Smith, Jr., and Jeffrey Piampiano,of counsel), Manistee; Portland, Maine, forLittle River Band of Ottawa Indians.

Wheeler Upman, P.C. (by Geoffrey L.Gillis) (Sonosky, Chambers, Sachse, En-dreson & Perry, L.L.P., by Reid PeytonChambers and Vanessa L. Ray–Hodge, ofcounsel), Grand Rapids; Washington, D.C.,for Nottawaseppi Huron Band of Potawa-tomi

Michael G. Phelan, Tribal Attorney,Pokagon Band of Potawatomi Indians(Drummond Woodsum & MacMahon, byKaighn Smith, Jr., and Jeffrey Piampiano,of counsel), Dowagiac; Portland, Maine, forPokagon Band of Potawatomi Indians.

Alfred H. Hall, Senate Majority Coun-sel, and Michael G. O’Brien, Deputy Ma-jority Caucas Counsel, Lansing, for KenSikkema, Senate Majority Leader, andShirley Johnson, Chair of the Senate Ap-propriations Committee.

MICHAEL F. CAVANAGH, J.

[1] S 102We granted leave to appeal todetermine whether the amendatory provi-sion in the compacts at issue and the exer-cise of that provision by the Governorviolate the Separation of Powers Clause ofthe Michigan S 103Constitution. 474 Mich.1097, 711 N.W.2d 76 (2006).1 We hold

1. We note that while Laura Baird is a named plaintiff in this case, she has been inactive


that the amendatory provision and the ex-ercise of that provision do not violate theSeparation of Powers Clause because theamendatory provision was properly ap-proved by legislative resolution and theGovernor’s exercise of the amendatoryprovision was within the limits of the con-stitution. Further, we hold that the issuewhether the compacts violate the Appro-priations Clause of the Michigan Constitu-tion is not properly before this Court be-cause the issue is beyond the parametersof this Court’s prior order remanding thismatter to the Court of Appeals. Thus, wereverse in part the judgment of the Courtof Appeals and hold that the amendatoryprovision and the current exercise of thatprovision do not violate the Separation ofPowers Clause. We further affirm in partthe judgment of the Court of Appeals thatstruck the portion of plaintiff’s brief thatsought to address the AppropriationsClause issue. Accordingly, we remandthis case to the circuit court for the entryof a judgment of summary disposition infavor of defendants.

I. STATEMENT OF FACTSAND PROCEEDINGS

In January 1997, Governor John Englerand four Indian tribes signed tribal gam-ing compacts. The four tribes were theLittle Traverse Bay Bands of Odawa Indi-ans, the Pokagon Band of Potawatomi In-dians, the Little River Band of OttawaIndians, and the Nottawaseppi Huron Po-tawatomi. In Taxpayers of MichiganS 104Against Casinos v. Michigan, 471 Mich.306, 685 N.W.2d 221 (2004) (TOMAC I),this Court considered three aspects of thealleged unconstitutionality of these tribalgaming compacts between the state and

the tribes. This Court affirmed the Courtof Appeals judgment, 254 Mich.App. 23,657 N.W.2d 503 (2002), that held that thecompacts were properly approved by theLegislature through a resolution, ratherthan a bill; that this did not violate art. 4,§ 22 of the Michigan Constitution; andthat the resolution was not a ‘‘local act’’ inviolation of art. 4, § 29 of the MichiganConstitution. However, this Court alsoheld that the question whether the amen-datory provision in the compacts was con-stitutional under the Separation of PowersClause, Const. 1963, art. 3, § 2, was notripe for review because the Court of Ap-peals had not considered the issue. Gov-ernor Jennifer Granholm’s exercise of theamendatory authority had not occurreduntil after the Court of Appeals decision.Thus, this Court remanded the matter tothe Court of Appeals to determine whetherthe amendatory provision violates the sep-aration of powers doctrine.

On remand, the Court of Appeals heldthat the compacts’ amendatory provision,which allows the Governor to amend thecompacts without legislative approval, vio-lates the Separation of Powers Clause.Taxpayers of Michigan Against Casinos v.Michigan (On Remand), 268 Mich.App.226, 228, 708 N.W.2d 115 (2005). JudgeBorrello dissented and stated that the Sep-aration of Powers Clause was not violatedbecause the Legislature’s approval of thecompacts included approval of the amenda-tory provision.

II. STANDARD OF REVIEW

[2–4] This Court reviews de novo adecision regarding a motion for summarydisposition. Herald Co. v. Bay City,

during the appellate process. In fact, Bairdfiled a motion with the Court of Appeals ask-ing that she be dismissed as a party. Whilethis motion was denied, her inactivity hasrendered the issue of standing as it relates to

legislators moot. Accordingly, the term‘‘plaintiff’’ when used in this opinion onlyrefers to plaintiff Taxpayers of MichiganAgainst Casinos.


S 105463 Mich. 111, 117, 614 N.W.2d 873(2000). This Court also reviews constitu-tional issues de novo. Harvey v. Michi-gan, 469 Mich. 1, 6, 664 N.W.2d 767 (2003).Decisions involving the meaning and scopeof pleadings are reviewed for an abuse ofdiscretion. Dacon v. Transue, 441 Mich.315, 328, 490 N.W.2d 369 (1992).

III. ANALYSIS

Under the Indian Gaming RegulatoryAct (IGRA), 25 U.S.C. 2701 et seq., anIndian tribe may conduct gaming withinthe borders of a state if the activity con-forms to a compact between the state andthe tribe. The compacts at issue weresigned by Governor Engler, and the Legis-lature approved the compacts by resolu-tion. In 2003, Governor Granholm con-sented to an amendment of the compactwith the Little Traverse Bay Bands ofOdawa Indians.

A. SEPARATION OF POWERSCLAUSE

[5] Michigan’s Separation of PowersClause states: ‘‘The powers of governmentare divided into three branches: legisla-tive, executive and judicial. No personexercising powers of one branch shall ex-ercise powers properly belonging to anoth-er branch except as expressly provided inthis constitution.’’ Const. 1963, art. 3, § 2.‘‘This Court has established that the sepa-ration of powers doctrine does not requireso strict a separation as to provide nooverlap of responsibilities and powers.’’Judicial Attorneys Ass’n v. Michigan, 459Mich. 291, 296, 586 N.W.2d 894 (1998). Anoverlap or sharing of power may be per-missible if ‘‘the grant of authority to onebranch is limited and specific and does notcreate encroachment or aggrandizement ofone branch at the expense of the otherTTTT’’ Id. at 297, 586 N.W.2d 894. TheSeparation of Powers Clause ‘‘has not been

interpreted to mean that S 106the branchesmust be kept wholly separate.’’ Soap &Detergent Ass’n v. Natural ResourcesComm., 415 Mich. 728, 752, 330 N.W.2d346 (1982).

[6] The amendatory provision at issueprovides:

Section 16. AmendmentThis Compact may be amended by

mutual agreement between the Tribeand the State as follows:

(A) The Tribe or the State may pro-pose amendments to the Compact byproviding the other party with writtennotice of the proposed amendment asfollows:

(i) The Tribe shall propose amend-ments pursuant to the notice provisionsof this Compact by submitting the pro-posed amendments to the Governor whoshall act for the State.

(ii) The State, acting through the Gov-ernor, shall propose amendments bysubmitting the proposed amendments tothe Tribe pursuant to the notice provi-sions of this Compact.

(iii) Neither the tribe nor the Statemay amend the definition of ‘‘eligibleIndian lands’’ to include counties otherthan those set forth in Section 2(B)(1) ofthis CompactTTTT

* * *

(B) The party receiving the proposedamendment shall advise the requestingparty within thirty (30) days as follows:

(i) That the receiving party agrees tothe proposed amendment; or

(ii) That the receiving party rejectsthe proposed amendment as submittedand agrees to meet concerning the sub-ject of the proposed amendment.

(C) Any amendment agreed to be-tween the parties shall be submitted tothe Secretary of the Interior for approv-


al pursuant to the provisions of theIGRA.

S 107(D) Upon the effective date of theamendment, a certified copy shall befiled by the Governor with the MichiganSecretary of State and a copy shall betransmitted to each house of the Michi-gan Legislature and the Michigan Attor-ney General. [Emphasis added.]

Governor Granholm and the Little Tra-verse Bay Band of Odawa Indians agreedto amend the compact in a number ofways. Among other items, the amend-ment permitted a second casino to be con-structed on eligible Indian lands of theLittle Traverse Bay Bands of Odawa Indi-ans, contingent on the approval of the localunit of government; changed the age oflegal gambling from 18 to 21 at this casino;mandated that tribal payments must nowbe sent to the state, as directed by theGovernor or a designee of the Governor, asopposed to sending the payments to theMichigan Strategic Fund or its successor;and mandated that the compact was bind-ing for 25 years from the effective date ofthe amendments, instead of being bindingfor 20 years from the effective date of thecompact.

The amendatory provision allows theGovernor to act for the state in reviewingand approving amendments submitted bythe tribes and in proposing amendments tothe tribes. This amendatory provision ex-presses the bilateral agreement betweenthe parties that the Governor will repre-sent the state in matters involving amend-ments. The Legislature reviewed the lan-guage of this amendatory provision and

approved the amendment procedure, whichgives the Governor broad discretion—with-in the limits of the constitution—to amendthe compacts.

The compacts were properly approvedby legislative resolution.2 As stated inTOMAC I, ‘‘our Constitution S 108does notrequire that our Legislature express itsapproval of these compacts through billrather than resolution.’’ TOMAC I, supraat 313, 685 N.W.2d 221. The compacts—when approved by the Legislature—in-cluded the amendatory provision. As thisCourt held in TOMAC I, supra at 313, 685N.W.2d 221 a resolution was sufficient forlegislative approval of the compacts. Simi-larly, the resolution also amounted to suffi-cient approval for the amendatory provi-sion within the compacts.

The Legislature’s approval of the amen-datory provision gave consent to amend-ments that conform to the approved proce-dure. The Legislature chose to approvean amendment procedure that gives theGovernor broad power to amend the com-pacts, and the Legislature was well withinits authority to make such a decision. Seeid. at 329, 685 N.W.2d 221. This Courthas long recognized the ability of the Leg-islature to confer authority on the Gover-nor. See, e.g., People ex rel Sutherland v.Governor, 29 Mich. 320, 329 (1874). ThisCourt has further recognized that discre-tionary decisions made by the Governorare not within this Court’s purview to mod-ify. See, e.g., People ex Rel Ayres v. Bd.of State Auditors, 42 Mich. 422, 426, 4

2. While Justice Markman again revisits hisarguments that the compacts were legislationunder Blank v. Dep’t of Corrections, 462 Mich.103, 611 N.W.2d 530 (2000), this Court al-ready explained its position and addressed theflaws in Justice Markman’s rationale in TO-MAC I, supra at 318–333, 685 N.W.2d 221;thus, there is no reason to reiterate this rea-

soning. Further, Justice Markman’s discus-sion that MCL 432.203(5) suggests that casinogaming must be authorized by legislation inthe absence of a compact is irrelevant herebecause there is a compact in this case inaccord with IGRA and the compact properlyallows for amendments.


N.W. 274 (1880).3

[7] S 109As this Court stated in TOMACI, supra at 328, 685 N.W.2d 221 ‘‘We haveheld that our Legislature has the generalpower to contract unless there is a consti-tutional limitation.’’ There is no limitationin Michigan’s Constitution on the Legisla-ture’s power to bind the state to a compactwith a tribe. ‘‘State legislatures have noregulatory role under IGRA aside fromthat negotiated between the tribes and thestates.’’ Id. at 320, 685 N.W.2d 221. TheLegislature’s approval of the compactsonly follows the assent of the parties to thecompacts. This does not establish, ‘‘in therealm of Indian casinos, ‘government bycontract’ ’’ that avoids the restrictions andprovisions of the constitution, as argued byJustice Markman. Post at 506. Theamendments—just as the compacts them-selves—‘‘only set forth the parameterswithin which the tribes, as sovereign na-tions, have agreed to operate their gamingfacilities.’’ TOMAC I, supra at 324, 685N.W.2d 221. Our constitution does notprohibit the Legislature from approvingcompacts by concurrent resolution. Id. at327–328, 685 N.W.2d 221. Thus, it is en-tirely permissible for the Legislature toprovide, by resolution, that the Governormay negotiate subsequent amendments tothe compacts. Because the agreed-to

amendments are permissible, plaintiff hasfailed to establish that the amendatoryprovision and the exercise of that provisionare unconstitutional. The amendatoryprovision survives both a facial and an as-applied challenge under the Separation ofPowers Clause because all the amend-ments negotiated by the Governor are per-missible. See Judicial Attorneys Ass’n,supra at 303, 586 N.W.2d 894; Woll v.Attorney General, 409 Mich. 500, 535 n. 50,297 N.W.2d 578 (1980). Specifically, theamendments ‘‘do not impose new obli-gations on the citizens of the state subjectto the Legislature’s power; they simplyreflect the contractual terms agreed to bytwo sovereign entities.’’ TOMAC I, supraS 110at 327, 685 N.W.2d 221; 4 see also TO-MAC I, supra at 344, 685 N.W.2d 221(Kelly, J., concurring) (The compacts‘‘place no restrictions or duties on the peo-ple of the state of Michigan. They createno duty to enforce state laws on triballands.’’).

Finally, today’s decision is not in conflictwith this Court’s past decision in Roxbor-ough v. Unemployment CompensationComm., 309 Mich. 505, 15 N.W.2d 724(1944). In Roxborough, supra at 510, 15N.W.2d 724, this Court stated that theGovernor could ‘‘exercise only such author-ity as was delegated to him by legislativeenactment.’’ This Court held that the

3. Contrary to Justice Markman’s claims, wenote that the Governor’s authority to negoti-ate amendments is not without limits. Somelimits are in the compacts themselves, and theGovernor cannot negotiate amendments thatextend beyond these limits. And, of course,the Governor cannot agree to an amendmentthat would violate the constitution or invadethe Legislature’s lawmaking function.

4. Justice Markman is simply incorrect whenhe states that the fact that the amendmentsreflect the contractual terms agreed to by twosovereign nations is ‘‘irrelevant to the neces-sary constitutional analysis.’’ Post at 512. Asthoroughly explained in TOMAC I, supra at

324, 685 N.W.2d 221 ‘‘the hallmark of legisla-tion is unilateral imposition of legislative will.Such a unilateral imposition of legislative willis completely absent in the Legislature’s ap-proval of tribal-state gaming compacts underIGRA.’’ Thus, the Legislature’s role in approv-ing the compacts and amendatory provision‘‘requires mutual assent by the parties—acharacteristic that is not only the hallmark ofa contractual agreement but is also absolutelyforeign to the concept of legislating.’’ Id.Justice Markman’s dissent is largely premisedon the notion that the compacts and theamendments constitute legislation; thus, it isperplexing why a statement showing the con-trary is irrelevant to the analysis.


Governor could not increase compensationfor an employee of the appeal board of theUnemployment Compensation Commissionbecause the Legislature had passed legis-lation to limit the compensation of thisemployee to the maximum amount permit-ted by the Social Security Board. TheGovernor could not ignore this limitation.Roxborough is inapplicable because thatcase dealt with a unilateral act of theLegislature. The compacts, however, arebilateral agreements. Further, the Legis-lature’s approval by resolution of the com-pacts—which included the amendatoryprovision—provides the Governor with au-thority to negotiate and agree to amend-ments on behalf of the S 111state. Thus, theamendatory provision—on its face and asit was exercised by the Governor—doesnot violate the Separation of PowersClause of the Michigan Constitution.

B. APPROPRIATIONS CLAUSE

[8] Michigan’s Appropriations Clausestates, ‘‘No money shall be paid out of thestate treasury except in pursuance of ap-propriations made by law.’’ Const. 1963,art. 9, § 17. On remand in the Court ofAppeals, plaintiff argued that the compactsviolate Michigan’s Appropriations Clausebecause this Court determined that thecompacts are contracts. Plaintiff arguedthat consideration must have been ex-changed by the parties to each compact.Therefore, the tribal payments under thecompacts are state funds that the Legisla-ture must appropriate by legislation.Plaintiff raised this issue for the first timein the Court of Appeals when this case wasremanded, and plaintiff argued that theissue was within the scope of this Court’sremand order and could not have beenraised earlier because it was based on thisCourt’s ruling in TOMAC I. Interveningdefendant Gaming Entertainment, LLC,moved to strike the portion of plaintiff’sbrief dealing with the Appropriations

Clause because the issue went beyond thisCourt’s remand order. The Court of Ap-peals granted the motion to strike and,thus, did not address this issue.

We agree with the Court of Appeals thatthe appropriations issue was not properlybefore it. This Court remanded this mat-ter to the Court of Appeals to address aspecific issue—‘‘whether the provision inthe compacts purporting to empower theGovernor to amend the compacts withoutlegislative approval violates the separationof powers doctrine found in Const. 1963,art. 3, § 2.’’ TOMAC I, supra at 333, 685N.W.2d 221. The approSpriations112 issue isoutside the scope of this Court’s remandorder; thus, the Court of Appeals correct-ly held that the issue was not properlybefore it. See, e.g., Napier v. Jacobs, 429Mich. 222, 228, 414 N.W.2d 862 (1987);People v. Jones, 394 Mich. 434, 435–436,231 N.W.2d 649 (1975). Plaintiff cannotraise any issue it chooses merely becausethis Court remanded this case to the Courtof Appeals to address another issue. Sim-ply, if this Court had not remanded thematter to the Court of Appeals to addressthe separation of powers issue, plaintiffwould not be able to raise a new issuedirectly in the Court of Appeals. Similar-ly, plaintiff cannot do so now.

IV. CONCLUSION

We hold that the amendatory provisionand the Governor’s exercise of that provi-sion do not violate the Separation of Pow-ers Clause because the amendatory provi-sion was properly approved by legislativeresolution and the Governor’s use of theamendatory provision was exercised withinthe limits of the constitution. Thus, wereverse in part the judgment of the Courtof Appeals and hold that the amendatoryprovision and the current exercise of thatprovision do not violate the Separation ofPowers Clause. We further hold that the


issue whether the tribal payments underthe compacts violate the AppropriationsClause of the Michigan Constitution is notproperly before this Court because it isbeyond the parameters of this Court’s pri-or remand order. Thus, we affirm in partthe judgment of the Court of Appeals thatstruck the portion of plaintiff’s brief thatsought to address the AppropriationsClause issue. Accordingly, we remandthis case to the circuit court for entry of ajudgment of summary disposition in favorof defendants.

S 113CLIFFORD W. TAYLOR,MARILYN J. KELLY, MAURA D.CORRIGAN and ROBERT P. YOUNG,JR., JJ., concur.

WEAVER, J. (dissenting).

I dissent from the majority’s decisionholding that the amendatory provision inthe compacts at issue, and the exercise ofthat provision by Governor Granholm, doesnot violate the Separation of PowersClause, because the compact containingthe amendatory provision was not properlyenacted by a legislative bill and the Gover-nor’s exercise of the amendatory provisionis outside the limits of the constitution. Iwould hold that the compacts are voidbecause they are legislation, required to beenacted by bill. As a result, I would holdthat the amendatory provisions containedwithin the compacts are also void.1

ANALYSIS

Michigan’s Constitution separates thepowers of government: ‘‘The powers ofgovernment are divided into three branch-es: legislative, executive and judicial. No

person exercising powers of one branchshall exercise powers properly belongingto another branch except as expressly pro-vided in this constitution.’’ Const. 1963,art. 3, § 2. The executive power is vestedin the Governor, Const. 1963, art. 5, § 1,and the legislative power is vested in theSenate and the House of Representatives,Const. 1963, art. 4, § 1. The executivepower is, first and foremost, the power toenforce the laws or to put the laws enactedby the Legislature into effect. People exrel Sutherland v. Governor, 29 Mich. 320,325 (1874); People ex rel Attorney Generalv. Holschuh, 235 Mich. 272, 275, S 114209N.W. 158 (1926); 16A Am. Jur. 2d, Consti-tutional Law, § 258, p. 165, and § 275, p.193.

The legislative power is the power todetermine the interests of the public, toformulate legislative policy, and to create,alter, and repeal laws. Id. The Governorhas no power to make laws. People v.Dettenthaler, 118 Mich. 595, 602, 77 N.W.450 (1898). ‘‘[T]he executive branch mayonly apply the policy so fixed and deter-mined [by the legislative branch], and maynot itself determine matters of public poli-cy, change the policy laid down by thelegislature, or substitute its own policy forthat of the legislature.’’ 16 CJS, Constitu-tional Law, § 359, pp. 599–600.

Binding the state to a compact with anIndian tribe involves determinations ofpublic policy and the exercise of powersthat are within the exclusive purview ofthe Legislature. The compacts at issue inthis case contain examples of policy deci-sions made for each of the seven issuesrecognized in 25 U.S.C. 2710(d)(3)(C)(i)through (vii).2

1. See Taxpayers of Michigan Against Casinosv. Michigan, 471 Mich. 306, 353–354, 685N.W.2d 221 (2004) (Weaver, J., concurring inpart and dissenting in part).

2. As allowed under 25 U.S.C. 2710(d)(3)(c)(i),tribal law and regulations, not state law, are

applied to regulate gambling. But the com-pact applies state law, as amended, to the saleand regulation of alcoholic beverages encom-passing certain areas. See § 10(A) of thecompact. Under 25 U.S.C. 2710(d)(3)(c)(ii),the tribe, not the state, is given responsibilityto administer and enforce the regulatory re-


S 115These compact provisions necessarilyrequire fundamental policy choices thatepitomize ‘‘legislative power.’’ Decisionsinvolving licensing, taxation, criminal andcivil jurisdiction, and standards of opera-tion and maintenance require a balancingof differing interests, a task the multimem-ber, representative Legislature is entrust-ed to perform under the constitutional sep-aration of powers. See Saratoga Co.Chamber of Commerce v. Pataki, 100N.Y.2d 801, 823, 766 N.Y.S.2d 654, 798N.E.2d 1047 (2003).

The approval of a compact with an Indi-an tribe involves numerous policy deci-sions. The executive branch does not havethe power to make those determinations ofpublic interest and policy, but may onlyapply the policy as fixed and determinedby the Legislature. I would hold thatcommitting the state to the myriad policychoices inherent in negotiating a gamingcompact constitutes a legislative function.Thus, the Governor did not have the au-thority to bind the state to a compact withan Indian tribe, as this Court wronglyconcluded in Taxpayers of MichiganAgainst Casinos v. Michigan, 471 Mich.306, 685 N.W.2d 221 (2004), and the Gover-nor does not now have the power to unilat-

erally exercise the amendatory provisionscontained within the compacts.

S 116CONCLUSION

I would hold that the power to bind thestate to a compact with an Indian tribe isan exercise of the legislative power, andthat the Legislature must exercise its pow-er to bind the state by enacting a bill, notby passing a joint resolution. I concludethat the compacts are void and, according-ly, so are the amendatory provisions con-tained within the compacts. I would holdthat the compacts are void and that theprovisions that permit the Governor toamend the compacts are unconstitutional.

MARKMAN, J. (dissenting).

I respectfully dissent. The majorityhere expands the ‘‘casino exception’’ torepresentative government that it effec-tively established in Taxpayers of Michi-gan Against Casinos v. Michigan, 471Mich. 306, 685 N.W.2d 221 (2004) (TOMACI). Pursuant to this exception, in therealm of Indian casinos: (1) the Legisla-ture may approve legislation by somethingother than the regular legislative process;(2) the Governor may enact the equivalent

quirements. See Compact § 4(M)(1). Asprovided in 25 U.S.C. 2710(d)(3)(c)(iii), to al-low state assessments to defray the costs ofregulating gaming, the compact states thatthe tribe shall reimburse the state for thecosts up to $50,000 it incurs in carrying outfunctions that are authorized within the com-pact. See Compact § 4(M)(5). Also, thecompact states that the tribe must pay twopercent of the ‘‘net win’’ at each casino de-rived from certain games to the county trea-surer. See Compact § 18(A)(i). Under 25U.S.C. 2710(d)(3)(c)(iv), the tribe could taxthe gaming activity, but the compact does notallow such taxation. As allowed by 25 U.S.C.2710(d)(3)(c)(v), the compact provides for dis-pute resolution procedures in the event thereis a breach of contract. See Compact § 7. Asallowed by 25 U.S.C. 2710(d)(3)(c)(vi), thecompact includes standards for whom a tribe

can license and hire in connection with gam-ing, Compact § 4(D), sets accounting stan-dards the gaming operation must follow,Compact § 4(H), and stipulates that gamingequipment purchased by the tribe must meetthe technical standards of the state of Nevadaor the state of New Jersey, Compact § 6(A).Under 25 U.S.C. 2710(d)(3)(c)(vii), the com-pact addresses the ‘‘other subjects that aredirectly related to the operation of gamingactivities’’ throughout the document. For ex-ample, it allows for additional class III gamesto be conducted through the agreement of thetribe and the state. Compact § 3(B). Also,the compact states that the tribe must pur-chase the spirits it sells at the gaming estab-lishments from the Michigan Liquor ControlCommission and that it must purchase beerand wine from distributors licensed by thecommission. Compact § 10(B).


of legislation without the involvement ofthe Legislature; and (3) the Legislaturemay delegate its legislative power by au-thorizing the Governor to exercise thispower without imposing adequate stan-dards on its exercise. As I asserted inTOMAC I, the original ratification of theinstant compact by legislative resolutiondid not conform to the constitutional re-quirements for the passage of legislation.Therefore, because this compact was un-constitutionally established, the 2003amendments of the compact at issue areunconstitutional as well. Moreover, theseamendments themselves constitute legisla-tion, and their unilateral adoption by theGovernor violates provisions of the Michi-gan Constitution that establish the proce-dures for the enactment of legislaStion.117

Const. 1963, art. 4, §§ 25, 26, and 33.Further, even if I accepted the rationale ofthe majority in TOMAC I that the compactdid not constitute legislation, I would stillconclude that the Legislature’s purportedgrant of power to the Governor to amendthe compacts gives her amendatory au-thority without standards, and thereby vio-lates the Separation of Powers Clause ofthe Michigan Constitution. Const. 1963,art. 3, § 2. The ultimate effect of the ma-jority’s decision is, in the realm of Indiancasinos, to establish ‘‘government by con-tract’’ in lieu of ‘‘government by constitu-tion,’’ under which the Governor and theLegislature may circumvent the charter ofthis state through the formation of con-tracts with outside entities. This ‘‘govern-ment by contract’’ deprives the people ofMichigan of the right to exercise self-gov-ernment with regard to Indian casino poli-cy by permitting the Governor to enact theequivalent of legislation, with little or norole for the people’s elected representa-tives in the Legislature. For these rea-sons, I would affirm the judgment of theCourt of Appeals.

I. STATEMENT OF FACTS

In 1998, the state of Michigan and fourIndian tribes entered into Indian gamingcompacts to allow casino gaming on triballand pursuant to the federal Indian Gam-ing Regulatory Act. 25 U.S.C.2710(d)(1)(C). According to the compacts’terms, the compacts would take effectwhen House Concurrent Resolution 115was adopted by the Michigan Legislatureon December 10, 1998. In § 16, the com-pacts provide for their own amendment,stating:

This Compact may be amended bymutual agreement between the Tribeand the State as follows:

S 118(A) The Tribe or the State maypropose amendments to the Compact byproviding the other party with writtennotice of the proposed amendment asfollows:

(i) The Tribe shall propose amend-ments pursuant to the notice provisionsof this Compact by submitting the pro-posed amendments to the Governor whoshall act for the State.

(ii) The State, acting through theGovernor, shall propose amendments bysubmitting the proposed amendments tothe Tribe pursuant to the notice provi-sions of this Compact.

* * *

(B) The party receiving the proposedamendment shall advise the requestingparty within thirty (30) days as follows:

(i) That the receiving party agrees tothe proposed amendment; or

(ii) That the receiving party rejectsthe proposed amendment as submittedand agrees to meet concerning the sub-ject of the proposed amendment.

This amendment process thus allows theGovernor, acting on behalf of the state, topropose an amendment to the tribes, which


the tribes may or may not accept. Thetribes may also propose amendments tothe Governor, who may accept or not ac-cept the proposed amendments on behalfof the state. Although the Legislatureinitially ratified the compacts by resolu-tion, the compacts exclude the Legislaturefrom the amendment process.

In July 2003, the Governor consented toamendments that had been proposed bythe Little Traverse Bay Bands of OdawaIndians (LTBB). These amendments alterseveral features of the original compact.First, the amendments allow the LTBB tocreate a second casino, subject to the ap-proval of the local S 119government. Second,the amendments provide that the gamblingage in the second casino would be 21,instead of 18 as in the tribe’s first casino.Third, the duration of the compact islengthened from 20 to 25 years from thedate of the amendments. Fourth, thetribe would now make payments as direct-ed by the Governor, and not directly to theMichigan Strategic Fund. Fifth, the per-centage of the ‘‘net win’’ accorded to thestate would be modified for the secondcasino. Sixth, if another tribe was permit-ted more than two casinos, the LTBBwould be allowed to operate an equal num-ber. Finally, the LTBB agreed to makepayments to the state as long as the statedid not permit the erection of new casinoswithin a specified ten-county area.

II. TOMAC I

In TOMAC I, I dissented from the ma-jority’s decision to acquiesce to the approv-

al of the compacts by resolution. I contin-ue to believe that TOMAC I was wronglydecided. The compacts, in my judgment,constitute legislation under the testadopted by this Court in Blank v. Dep’t ofCorrections, 462 Mich. 103, 611 N.W.2d530 (2000). Because they are legislation,the Legislature and the Governor wererequired to approve the compacts by thelegislative process set forth in the constitu-tion. This method was not followed. Ac-cordingly, the first reason that the presentamendments of the LTBB compact areunconstitutional is simply because the com-pact itself was never constitutionally enact-ed. Moreover, as I sought to explain inTOMAC I, the amendment procedure inthe compacts violates the Separation ofPowers Clause, because this procedure al-lows the Governor to amend legislation.

In TOMAC I, the critical issue waswhether the compacts themselves are leg-islation, and are thus subSject120 to constitu-tional requirements for the enactment oflegislation. In Blank, this Court adopteda four-factor test developed by the UnitedStates Supreme Court in Immigration &Naturalization Service v. Chadha, 462U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317(1983), to determine whether governmentalaction constitutes legislation. I appliedthese factors in evaluating the compacts inTOMAC I and concluded that the com-pacts were legislation.1 The four factorsare

(1) whether the compacts at issue ‘‘ ‘hadthe purpose and effect of altering TTT

legal rights, duties and relations of per-

1. The majority rejects the application of theBlank framework, stating that ‘‘this Court al-ready explained its position and addressed theflaws in Justice Markman’s rationale in TO-MAC I, supra at 318–333, 685 N.W.2d 221.’’Ante at 492 n. 2. Indeed, the majority con-cluded in TOMAC I that the Blank frameworkwas ‘‘not relevant because the compacts [did]not constitute legislation.’’ TOMAC I, supra

at 378 n. 9, 685 N.W.2d 221 (opinion byMarkman, J.). However, as I responded atthe time, ‘‘the very point of utilizing the[Blank ] framework is to determine whetherthe compacts constitute legislation.’’ Id. (em-phasis in original). The majority does noteven purport to apply the Blank framework tothe amendments to the compact.


sons TTT outside the legislativebranch,’ ’’ Blank, supra at 114, 611N.W.2d 530; (2) whether the Governor’saction in negotiating the compacts andthe Legislature’s resolution vote on thecompacts supplanted legislative action;(3) whether the compacts involved deter-minations of policy; and (4) whetherMichigan’s Constitution explicitly au-thorizes the Legislature to approvethese compacts by a resolution vote evenif they otherwise constitute ‘‘legislation.’’[TOMAC I, supra at 378, 685 N.W.2d221 (opinion by Markman, J.).]

For the reasons elaborated upon in TO-MAC I, the compacts between the stateand the tribes constitute legislation. Con-cerning the first Blank factor, the com-pacts alter the legal rights of persons out-side the legislative branch, because Indiancasino gaming was illegal in Michigan un-der state and federal law before S 121theenactment of the compacts. Under 18U.S.C. 1166(a), in the absence of a com-pact, ‘‘all State laws pertaining to the li-censing, regulation, or prohibition of gam-bling, including but not limited to criminalsanctions applicable thereto, shall apply inIndian country in the same manner and tothe same extent as such laws apply else-where in the State.’’ See TOMAC I, su-pra at 379–381, 685 N.W.2d 221. Becausecasino gaming would be illegal on Indianlands under this provision if state law pro-hibits such gaming, it was necessary inTOMAC I to determine whether Michiganlaw prohibits Indian casino gaming in theabsence of a compact. In fact, Michigan

law generally prohibits casino gaming.MCL 750.301. Casino gaming in Michiganis only allowed pursuant to the MichiganGaming Control and Revenue Act, MCL432.201 et seq., which does not apply to‘‘[g]ambling on Native American land,’’MCL 432.203(2)(d). Further, under theIndian Gaming Regulatory Act, class IIIgaming,2 like that allowed in this case, islawful on Indian lands only if the gamingis ‘‘conducted in conformance with a Trib-al–State compact entered into by the Indi-an tribe and the State TTTT’’ 25 U.S.C.2710(d)(1)(C). Therefore, under both fed-eral and state law, casino gaming by thesetribes would have been illegal in the ab-sence of the compacts. Moreover, thecompacts require local units of governmenteither to S 122create a local revenue sharingboard to receive a percentage of tribalgaming profits or to pay for the additionalmunicipal burdens created by the casinos,such as increased costs for public services.TOMAC I, supra at 382, 685 N.W.2d 221.Regardless of which option is chosen bylocal units, the compacts impose newduties on government. The compactstherefore alter the legal rights and dutiesof persons outside the legislative branchby permitting the tribes to operate casinos,and by requiring local units of governmentto undertake certain actions.

Concerning the second Blank factor,passage of the compacts by resolution sup-planted legislative action. Because federallaw dictates that state laws apply withinIndian reservations in the absence of acompact, 18 U.S.C. 1166, the sole alterna-

2. ‘‘[C]lass III gaming’’ is defined as ‘‘all formsof gaming that are not class I gaming or classII gaming.’’ 25 U.S.C. 2703(8). ‘‘[C]lass Igaming’’ is defined as ‘‘social games solely forprizes of minimal value or traditional formsof Indian gaming engaged in by individuals asa part of, or in connection with, tribal cere-monies or celebrations.’’ 25 U.S.C. 2703(6).‘‘[C]lass II gaming’’ is defined as ‘‘bingo’’ and

‘‘card games’’ that are either ‘‘explicitly au-thorized by the laws of the State’’ or ‘‘notexplicitly prohibited by the laws of the StateTTTT’’ 25 U.S.C. 2703(7)(A). However, classII gaming does not include ‘‘any banking cardgames, including baccarat, chemin de fer, orblackjack,’’ or slot machines. 25 U.S.C.2703(7)(B).


tive method for allowing Indian gaming inthis state would have been through analteration of state law. As I earlier ex-plained:

[I]n the absence of a compact, if theLegislature wanted to make gamblingon Indian land lawful, the only way itcould do that would be by either chang-ing the gambling laws that are generallyapplicable within the state or by chang-ing the reach of the [Michigan GamingControl and Revenue Act]. Changingthose laws would, it cannot seriously bedisputed, require ‘‘legislation.’’ [TO-MAC I, supra at 384, 685 N.W.2d 221.]

With regard to the third Blank factor,enactment of the compacts involved nu-merous policy determinations, of which‘‘the most significant TTT was the initialdecision to make lawful what was other-wise unlawful—casino gambling on thesubject Indian lands.’’ Id. at 385, 685N.W.2d 221. Other considerations, includ-ing how many casinos to allow, what thegambling age should be, what percentageof ‘‘net win’’ the tribes should be requiredto pay to the state, whether to extend thestate employSment123 security act and work-ers’ compensation benefits to casino work-ers, and who should enforce the rules andregulations of the compacts, are all signifi-cant policy decisions. Id.

Concerning the final Blank factor, theMichigan Constitution does not allow thepassage of legislation by resolution, exceptin specified instances that were not rele-vant in TOMAC I.3

Because each of the Blank factors sug-gests that the Indian gaming compacts arelegislation, I concluded in TOMAC I thatthe compacts must be approved by theregular constitutional process of enactinglegislation.

Under the Michigan Constitution, ‘‘[a]lllegislation shall be by bill TTTT’’ Const.1963, art. 4, § 22. The constitution re-quires that ‘‘[n]o bill shall become a lawwithout the concurrence of a majority ofthe members elected to and serving ineach house.’’ Const. 1963, art. 4, § 26.Once the Legislature approves a bill, it isthen presented to the Governor. If theGovernor signs the bill, the bill is enactedinto law. Const. 1963, art. 4, § 33. If theGovernor does not sign the bill, the Gover-nor may return the bill to the Legislaturewith her objections. Id. The Legislaturemay enact the bill despite the Governor’sobjections if two-thirds of the members ofeach house vote for the bill. Id. If theGovernor does not return the bill, and theLegislature continues in session, the bill‘‘shall become law as if [the Governor] hadsigned it.’’ Id. After a bill becomes law,the constitution specifies how a law may beamended: ‘‘The section or sections of theact altered or amended shall be re-enactedand published at length.’’ Const. 1963, art.4, § 25. Under these constitutional provi-sions, in order to enact legislation, a billmust be passed by both houses of S 124theLegislature and then either approved bythe Governor or, if vetoed, by two-thirds ofeach house of the Legislature. To amenda law once created, those sections amend-ed must be reenacted by the same process.

Because the Legislature approved thecompacts by resolution, and such compactsare legislation, the compacts were not val-idly approved under the constitution. Byapproving the compacts, the majority inTOMAC I established the first provision ofthe ‘‘casino exception’’ to representativegovernment: the Legislature may approvean Indian gaming compact by resolution,and is not required to abide by the regularlegislative process established in the stateconstitution.

3. See Const. 1963, art. 4, §§ 12, 13, and 37; art. 5, § 2; art. 6, § 25.


A second issue presented in TOMAC Iconcerned the constitutionality of theamendment provisions in the compacts.Although the Court in TOMAC I remand-ed this issue to the Court of Appeals, Iaddressed it because I believed that it wasripe for our consideration. Under thecompacts, the Governor possesses amenda-tory authority; such authority allows theGovernor, on behalf of the state, to unilat-erally modify the compacts. However, asalready noted, the Michigan Constitutionrequires that an amendment of legisla-tion—including an Indian gaming com-pact—be effected through the reenactmentof the pertinent sections of the statute.Const. 1963, art. 4, § 25. This reenact-ment must occur by the constitutionalmethod for the passage of legislation. Theexercise of the legislative power of amend-ment by the executive violates the provi-sions of the Michigan Constitution thatestablish the procedure for enacting andamending legislation, as well as the Sepa-ration of Powers Clause, which states:‘‘The powers of government are dividedinto three branches: legislative, executiveand judicial. No person exercising powersof one branch shall exercise powers prop-erly belonging to S 125another branch exceptas expressly provided in this constitution.’’Const. 1963, art. 3, § 2. Therefore, in TO-MAC I, I would have held the amendatoryprovision of the compacts unconstitutionaland would not have remanded to the Courtof Appeals.

III. 2003 AMENDMENTS ANDBLANK FACTORS

At issue in this case are the 2003 amend-ments of the LTBB compact. Because the

compact itself is unconstitutional, theamendments of the compact are unconsti-tutional. Moreover, under the Blank fac-tors, the 2003 amendments themselvesconstitute legislation. The amendmentsalter the legal rights and duties of personsoutside the legislative branch, they sup-plant legislative action, they involve deter-minations of public policy, and they are notauthorized by the Michigan Constitution.Because these legislative acts were under-taken unilaterally by the Governor actingon behalf of the state, the enactment ofthese amendments violated multiple provi-sions of the Michigan Constitution.

A. LEGAL RIGHTS AND DUTIES

The first Blank factor examines the ef-fect of the amendments on the legal rights,duties, and relations of persons outside thelegislative branch. The 2003 amendmentsalter the rights and relations of personsoutside the legislative branch. Theamendments allow a new casino to be built,which would not have been legal understate and federal law before the 2003amendments.4 As explained above, under18 U.S.C. 1166, state S 126law applies tocasino gaming on Indian lands. UnderMCL 750.301, such gaming is generallyprohibited in Michigan. Although MCL432.203(1) allows for gaming ‘‘conducted inaccordance with this act,’’ MCL432.203(2)(d) states that the act does notapply to ‘‘[g]ambling on Native Americanland and land held in trust by the UnitedStates for a federally recognized Indiantribe on which gaming may be conductedunder the Indian gaming regulatory act,

4. Because the building of the second casino is‘‘contingent on the approval of the affectedlocal unit of State government (either city,village, or township),’’ § 2(F) of the amendedLTBB compact, one might assert that thelegal rights of the tribe have not been altered;that is, the LTBB has no ‘‘right’’ to build a

second casino until the local unit of govern-ment approves the location of the casino.However, the 2003 amendments of the com-pact ensure that the LTBB will face no oppo-sition from the state of Michigan when itbuilds its second casino.


Public Law 100–497, 102 Stat. 2467.’’ Un-der MCL 432.203(2)(d), Indian casino gam-ing is not allowed on Indian land subject tothe Indian Gaming Regulatory Act. Thus,by allowing another casino to be built bythe LTBB, the amendments alter the legalrights of the LTBB, which now possesses alegal right to build a second casino withoutviolating state law.

Moreover, the amendments extend theduration of the compact from 20 years to25 years from the date of the amendments.Because the compact was effective in 1998,and the amendments became effective in2003, the amendments will enable theLTBB to operate casinos for ten yearslonger than the original compact. From2018 through 2028, the LTBB will be ableto operate casinos, something it could nothave done lawfully in the absence of theamendments.

Further, under the original compact, ifcertain criteria were met, the LTBB wouldno longer be required to make tribal gam-ing payments to the state. For example, ifthe state were to allow a person to operatecommercial casino games, and that personwas neither a federally recognized Indiantribe operating a casino pursuant to a com-pact nor a person operating a casino inDetroit S 127pursuant to MCL 432.201 etseq., then the tribe could cease makingpayments to the state. The 2003 amend-ments add additional criteria: under theamended compact, if the prior criteria ap-ply, or if the state permits casinos to bebuilt within ten specified counties, thetribe will no longer be bound to makepayments to the state. Therefore, thisamendment alters the legal duty of thetribe in terms of its gaming payment obli-gations.5

Because the 2003 amendments alter thelegal rights and duties of persons outside

the legislative branch in at least severalways, the first Blank factor indicates thatthe 2003 amendments constitute legisla-tion.

B. SUPPLANTING LEGISLATIVEACTION

The second Blank factor considerswhether the Governor’s 2003 amendmentsof the compact supplant legislative action.Federal law requires a tribe to abide bystate law in the absence of an Indian gam-ing compact. 18 U.S.C. 1166. As de-scribed above, Michigan law generally for-bids the creation of new casinos unlessallowed by statute. MCL 750.301; MCL432.203. Thus, in the absence of anamendment of the Indian gaming compact,the LTBB could build a second casino onlyif Michigan law was changed through leg-islation.

Moreover, the amendments extend theperiod that the tribe may operate its casi-nos from 20 years to 25 years from thedate of the amendments. As describedearlier, casino gaming by the LTBB is onlylegal pursuant to its compact under theIndian Gaming Regulatory Act. In the ab-sence of these amendments, it would haveS 128been illegal in Michigan for the tribe tooperate casinos from 2018 to 2028, and theonly way the tribe could operate casinosduring that period would be through achange in Michigan law through legisla-tion.

Indeed, MCL 432.203(5) suggests thatcasino gaming must be authorized by legis-lation, in the absence of a compact:

If a federal court or agency rules orfederal legislation is enacted that allowsa state to regulate gambling on NativeAmerican land or land held in trust by

5. The 2003 amendments also effect changesin the minimum gambling age and in thepercentages of ‘‘net win’’ that must be paid to

the state. These changes, however, only per-tain to the second casino.


the United States for a federally recog-nized Indian tribe, the legislature shallenact legislation creating a new act con-sistent with this act to regulate casinosthat are operated on Native Americanland or land held in trust by the UnitedStates for a federally recognized Indiantribe. The legislation shall be passed bya simple majority of members elected toand serving in each house. [Emphasisadded.]

Under current federal law, a state does notpossess the right to regulate gambling onNative American land. California v. Ca-bazon Band of Mission Indians, 480 U.S.202, 207, 107 S.Ct. 1083, 94 L.Ed.2d 244(1987); 25 U.S.C. 2710(d). However, inthe event that federal law changes, MCL432.203(5) requires the Legislature to reg-ulate Indian gaming through legislation.6

Thus, MCL 432.203(5) strongly suggeststhat the enactment of legislation is theauthorized method for regulating S 129Indiangaming in Michigan, if the state is accord-ed the power by federal law to regulatesuch gaming.

In the absence of the instant amend-ments, the building of a new casino andthe ten-year extension of the period theLTBB may operate its casinos would onlybe permitted through legislation. Thus,the amendments can fairly be said to sup-plant legislative action, indicating that theamendments also constitute legislation un-der the second Blank factor.

C. POLICY DETERMINATIONS

The third Blank factor considers wheth-er a governmental action involves ‘‘deter-

minations of policy.’’ Blank, supra at 114,611 N.W.2d 530 (opinion by Kelly, J.).Indisputably, the enactment of theseamendments involved policy determina-tions of considerable and far-reaching con-sequence. The clearest example of such adetermination is obviously that the LTBBhas been allowed to build a second casino,and will be allowed to operate its existingcasino for ten years longer than the origi-nal compact allowed. Presumably, the en-largement of casino operations must havebeen premised at least in part on a deter-mination that casinos generally, and theLTBB casino in particular, have benefitedthe people of Michigan.

Such a determination is a policy deter-mination of the sort routinely undertakenby the elected representatives of the peo-ple in the Legislature. Absent the ‘‘casinoexception’’ to representative government,these legislators would be required to con-front a wide range of questions implicatedby the expansion of casino gaming in Mich-igan: whether the growth of casinos hasadversely affected the social environmentof the state and, if so, whether there areways by which this can be ameliorated;whether any such adverse effect would beS 130exacerbated by an increase in the num-ber of casinos; whether casinos have bene-fited or harmed non-casino businesses intheir communities; whether casinos haveaffected rates of personal and businessbankruptcies; whether casinos have affect-ed crime rates; whether casinos have re-sulted in the congestion of particular roads

6. The majority opines that MCL 432.203(5) is‘‘irrelevant [to this case] because there is acompact TTT and the compact properly allowsfor amendments.’’ Ante at 492 n. 2 (emphasisin original). The majority misapprehends myargument. Although I agree that MCL432.203(5) is not directly applicable becausefederal law does not currently entrust regula-tion of Indian gaming to Michigan, the statute

is nonetheless relevant. The second Blankfactor considers whether the action taken bythe government would normally entail legisla-tion. Because MCL 432.203(5) indicates thatregulation of Indian gaming would normallyentail legislation, it contributes to the conclu-sion that the instant amendments supplantlegislative action.


or otherwise affected state and local infra-structure; whether casinos have had anadverse effect on the quality of life in ruralcommunities near casinos; whether casi-nos have harmed aspects of the environ-ment; and whether casinos have adverselyaffected other tourist-related businesseswithin the state.

To confront these and other similarquestions, legislators would normally seekout the views of their constituents andinterested organizations, both throughcommittee hearings and through less for-mal means, and debate these matters withtheir colleagues. However, the result ofthe present amendment process for mat-ters pertaining to Indian casinos is thatsuch traditional decision-making, charac-teristic of a republican form of govern-ment, see U.S. Const, art IV, § 4, has beenreplaced by unilateral decision-making onthe part of a single person not part of thelegislative branch. The third Blank factorthus also counsels in favor of finding thatthese amendments constitute legislation.

D. MICHIGAN CONSTITUTION

The fourth Blank factor essentially ex-amines whether the constitution authorizesan exception to the normal legislative pro-cesses, in this case permitting the Gover-nor to undertake amendments of the law.Of course, the constitution neither statesnor implies such an exception. Rather, itdefines the Governor’s power by simplystating, ‘‘The executive power is vested inthe governor.’’ Const. 1963, art. 5, § 1.With several very S 131specific exceptions,7

the constitution does not identify any tra-ditionally legislative actions that the Gov-ernor may undertake, and I am aware ofno inherent executive power within Michi-

gan that allows the Governor to undertakesuch actions.

Indeed, the constitution expressly setsforth the procedures for the amendment oflegislation: ‘‘The section or sections of theact altered or amended shall be re-enactedand published at length.’’ Const. 1963, art.4, § 25 (emphasis added). Because theoriginal LTBB compact constitutes legisla-tion, the amendment of the LTBB compactcould only occur through ‘‘reenactment,’’i.e., through legislation. As describedabove, the elaborate process for the enact-ment of legislation established in article 4nowhere allows the Governor to reenactlegislation on her own volition. Conse-quently, the Michigan Constitution doesnot grant the Governor the executive au-thority to amend Indian gaming compacts.

Nor does any other provision of theconstitution grant the Governor the powerto amend the compact absent involvementby the Legislature. The only arguablyappropriate provision, as I discussed inTOMAC I, supra at 400–402, 685 N.W.2d221 is Const. 1963, art. 3, § 5, whichstates:

Subject to provisions of general law,this state or any political subdivisionthereof, any governmental authority orany combination thereof may enter intoagreements for the performance, financ-ing or execution of their respective func-tions, with any one or more of the otherstates, the United States, the Dominionof Canada, or any political subdivisionthereof unless otherwise provided in thisconstitution.

S 132By its terms, this provision applies onlyto agreements with other states, the feder-al government, Canada, or any politicalsubdivision of these. This provision doesnot refer to Indian tribes, and therefore

7. See Const. 1963, art. 5, § 19, pertaining tothe Governor’s line-item veto authority, andConst. 1963, art. 5, § 2, enabling the Gover-

nor to reorganize the executive branch afterthe Legislature has organized the executivebranch ‘‘by law.’’


the Governor does not appear to possessthe authority under this provision to uni-laterally enter into agreements with Indi-an tribes, even with legislative authoriza-tion. See TOMAC I, supra at 400–402,685 N.W.2d 221 (opinion by Markman, J.).Even supposing that this provision doesallow the Governor to amend a compactwith Indian tribes, such agreements arelimited to ‘‘agreements for the perform-ance, financing or execution of their re-spective functions,’’ the latter presumablyreferring to the Governor’s exercise of herauthority as the chief executive of thisstate. Const. 1963, art. 3, § 5. As I statedin TOMAC I, supra at 402, 685 N.W.2d221 ‘‘[T]he duty and power to set the pa-rameters for casino gambling on landwithin Michigan’s borders is not in anycomprehensible sense a ‘function’ of theexecutive branch.’’ The amendments atissue here—extending the duration of thecompacts, enabling a new casino, adjustingthe gambling age for that casino, alteringtribal gaming payments—are not relatedin any coherent sense to the Governor’sexecutive role. Because there is no consti-tutional warrant for the authority exer-cised here by the Governor, the fourthBlank factor also suggests that theamendments of the compact constitute leg-islation.

The Blank factors thus demonstrate, Ibelieve, that the 2003 amendments consti-tute legislation. This conclusion accordswith the decisions of other courts that haveheld that Indian gaming compacts consti-tute legislation. State ex rel Clark v.Johnson, 120 N.M. 562, 573, 904 P.2d 11(1995) (holding that the governor’s unilat-eral approval of an Indian gaming compactwas ‘‘an attempt to create new law,’’ inviolation of New Mexico’s separation ofpowers clause); Saratoga Co. Chamber ofS133Commerce, Inc. v. Pataki, 100 N.Y.2d801, 766 N.Y.S.2d 654, 798 N.E.2d 1047(2003) (holding that approval of Indian

gaming compact by the governor usurpedthe power of the legislature and violatedthe state constitution and the separation ofpowers doctrine); Narragansett IndianTribe of Rhode Island v. State, 667 A.2d280 (R.I., 1995) (holding that the legisla-ture, not the governor, has power to ap-prove compacts under the state constitu-tion); Panzer v. Doyle, 271 Wis.2d 295,338, 680 N.W.2d 666 (2004) (holding that‘‘committing the state to policy choices ne-gotiated in [Indian] gaming compacts con-stitutes a legislative function’’), overruledin part on other grounds by DairylandGreyhound Park, Inc. v. Doyle, 295 Wis.2d1, 719 N.W.2d 408 (2006); American Grey-hound Racing, Inc. v. Hull, 146 F.Supp.2d 1012 (D.Ariz., 2001) (holding that powerto enter into Indian gaming compacts is‘‘legislative’’), vacated on other grounds305 F.3d 1015 (C.A.9, 2002); State ex relStephan v. Finney, 251 Kan. 559, 836 P.2d1169 (1992) (holding that the power to bindthe state to an Indian gaming compact is‘‘legislative’’).

Because the amendments constitute leg-islation, they can only be effected by theprocedures set forth in the constitution.As noted earlier with regard to amendinga legislative act, Const. 1963, art. 4, § 25requires the ‘‘section or sections of the actaltered or amended’’ to be ‘‘re-enacted.’’Amendments to laws are therefore subjectto the same procedural requirements asnewly enacted laws.

The amendment process established inthe LTBB compact violates this procedure.Instead of the Legislature originating abill to amend the compact, the Governoreffected the amendments on her own au-thority. No bill was passed by the Legis-lature, and no bill was presented to theGovernor. The process that was followedviolated a variety of sections of the Michi-gan Constitution concerning how a bill be-comes a law: Const. 1963, art. 4, §§ 25, 26,S134and 33. As a result, the Governor has


exercised—and the Legislature has al-lowed her to exercise—powers grantedsolely to the Legislature.8 Thus, theamendments violate the Separation ofPowers Clause, Const. 1963, art. 3, § 2,which states: ‘‘No person exercising pow-ers of one branch shall exercise powersproperly belonging to another branch ex-cept as expressly provided in this constitu-tion.’’ By approving the Governor’s exer-cise of amendatory power, the majorityestablishes the second provision of the ‘‘ca-sino exception’’ to representative govern-ment: in the realm of Indian casinos, theGovernor may enact the equivalent of leg-islation without the involvement of theLegislature.

The majority opinion, which permits theGovernor to undertake legislative acts bycontracting with the affected Indian tribe,may be aptly described as establishing, inthe realm of Indian casinos, ‘‘governmentby contract’’ in lieu of ‘‘government byconstitution.’’ Pursuant to this, the Gover-nor and the Legislature may avoid restric-tions, i.e., checks and balances, imposedunder our ‘‘government by constitution,’’which provides that the Legislature alonemay exercise ‘‘[t]he legislative power of theState of Michigan,’’ Const. 1963, art. 4,§ 1, and that the Governor may exerciseonly ‘‘[t]he executive power,’’ Const. 1963,art. 5, § 1.

IV. ACCEPTING THE PREMISEOF TOMAC I

Even accepting the premise of the ma-jority in TOMAC I that the instant com-pact does not constitute S135legislation, Iwould still dissent. The amendment pro-cedure in the LTBB compact improperly

delegates the legislative power to contractto the Governor because the Legislaturehas failed to impose adequate standards onthe Governor’s exercise of that power.

As already noted, the Michigan Consti-tution grants the legislative power—theentirety of it—to the Legislature. Const.1963, art. 4, § 1. The Legislature retainsthe general power to contract. See TO-MAC I, supra at 328, 685 N.W.2d 221(‘‘[O]ur Legislature has the general powerto contract unless there is a constitutionallimitation.’’); Advisory Opinion on Consti-tutionality of 1976 Pa. 240, 400 Mich. 311,318, 254 N.W.2d 544 (1977). Here, theLegislature has authorized the Governorto carry out the contracting power throughthe amendment provision in the compact.Even if the compact as a whole had beenvalidly approved by the Legislature underthe rationale of TOMAC I, the Legislaturewas still required to have properly author-ized the exercise of the contracting powerin the amendment provision. If the exer-cise of the contracting power was improp-erly authorized, then the Legislature es-sentially delegated its legislative power tothe Governor and thereby violated theSeparation of Powers Clause.

‘‘Strictly speaking, there is no accept-able delegation of legislative power.’’ Mis-tretta v. United States, 488 U.S. 361, 419,109 S.Ct. 647, 102 L.Ed.2d 714 (1989) (Sca-lia, J., dissenting) (emphasis in original).In determining whether a delegation oflegislative power has occurred, the Courtshould inquire whether the Legislature has‘‘authorize[d] the exercise of executive orjudicial power without adequate stan-dards.’’ Id. Justice Scalia elaborated:‘‘The focus of controversy TTT has been

8. The Legislature’s acquiescence in the en-largement of the Governor’s power is irrele-vant in assessing the propriety of this grant:‘‘the acceptance by one branch of the expan-sion of the powers of another branch is not

dispositive in whether a constitutional powerhas been properly exercised.’’ Nat’l WildlifeFederation v. Cleveland Cliffs Iron Co., 471Mich. 608, 616, 684 N.W.2d 800 (2004).


whether the degree of generality containedin the authorization for exercise of execu-tive or judicial powers in a particuSlar136

field is so unacceptably high as to amountto a delegation of legislative powers.’’ Id.(emphasis in original). A determinationwhether the Legislature has improperlydelegated legislative power to the Gover-nor requires that this Court examinewhether the authorization of amendatorypower provides ‘‘adequate standards’’ forthe Governor’s exercise of amendatorypower, and whether the ‘‘degree of gener-ality TTT is so unacceptably high as toamount to a delegation of legislative pow-ers.’’ Id.

‘‘The true distinction TTT is betweenthe delegation of power to make the law,which necessarily involves a discretionas to what it shall be, and conferringauthority or discretion as to its execu-tion, to be exercised under and in pursu-ance of the law. The first cannot bedone; to the latter no valid objection canbe made.’’ [Id. at 418, 109 S.Ct. 647(emphasis in original), quoting Field v.Clark, 143 U.S. 649, 693–694, 12 S.Ct.495, 36 L.Ed. 294 (1892).]

This Court considered whether an au-thorization of executive power violated theprinciple of separation of powers in Soap& Detergent Ass’n v. Natural ResourcesComm., 415 Mich. 728, 330 N.W.2d 346(1982). Soap & Detergent considered aseparation of powers challenge to the Gov-ernor’s power to reorganize executiveagencies. Id. at 751, 330 N.W.2d 346.Although the Governor possesses the pow-er to reorganize under Const. 1963, art. 5,§ 2, Soap & Detergent nonetheless charac-terized this power as a ‘‘legislative’’ pow-er.9 Id. After noting that the grant of

power to the Governor under the constitu-tion preScluded137 a separation of powersclaim, Soap & Detergent argued that in-herent checks in Michigan’s constitutionalscheme barred the conclusion that theprinciple of separation of powers had beenviolated:

Article 5, § 2, does not by any meansvest ‘‘all’’ or any considerable legislativepower in the executive. While it is truethat broad legislative power has beendelegated to the Governor to effectuateexecutive reorganization, this power isclearly limited. Three limitations mustbe emphasized. First, the area of exec-utive exercise of legislative power isvery limited and specific. Second, theexecutive branch is not the sole posses-sor of this power; the Legislature hasconcurrent power to transfer functionsand powers of the executive agencies.Third, the Legislature is specificallygranted the power to veto executive re-organization orders before they becomelaw.

Therefore, the specific intent of theconstitutional convention in fashioningart. 5, § 2, having been to delegate avery limited and specific legislative pow-er to the executive, and this provisionhaving been adopted into the constitu-tion with sufficient checks to restrain animproper exercise of this power, we findno constitutional infirmity negating theGovernor’s ability to transfer rulemak-ing authority from one agency to thatagency’s department head. [Id. at 752–753, 330 N.W.2d 346.]

Under Soap & Detergent, when one branchauthorizes the use of power by anotherbranch, the authorizing branch must pro-

9. It is axiomatic that when the constitutiongrants a specific power to the executivebranch, that power becomes an ‘‘executive’’power, however it might have been character-ized in the absence of such a grant. Cf., e.g.,

Const. 1963, art. 3, § 8 (advisory opinions aspart of the ‘‘judicial power’’ in Michigan). Icite Soap & Detergent here only because itillustrates the criteria for determining when aviolation of the separation of powers occurs.


vide ‘‘sufficient checks’’ on the exercise ofpower. Whether the Legislature has pro-vided sufficient checks on the exercise ofpower depends on whether the authoriza-tion of power is ‘‘limited and specific,’’whether the branch authorizing the powerretains concurrent power, and whether thebranch authorizing the power may veto thedecisions of the branch exercising the pow-er.

Although I would prefer to cast thisinquiry in terms of whether the powerbeing conferred has, by the S138constraintsplaced upon its exercise, been effectivelytransformed from a power properly exer-cised by the grantor branch into a powerproperly exercised by the grantee branch,Soap & Detergent does identify importantaspects of this analysis.

Although this Court has never beforeaddressed an authorization of amendatorypower in the context of Indian gamingcompacts, the Wisconsin Supreme Courtaddressed a similar question in Panzer v.Doyle, supra. In Panzer, the Wisconsinlegislature had statutorily authorized thegovernor to enter into and amend com-pacts with Indian tribes. Id. at 303, 680N.W.2d 666. ‘‘The delegation of power toa sister branch of government must bescrutinized with heightened care to assurethat the legislature retains control over thedelegated power TTTT’’ Id. at 335, 680N.W.2d 666. Panzer held that the Wis-consin legislature had properly authorizedthe governor to enter into Indian gamingcompacts because the legislature retained‘‘procedural safeguards’’ against the abuseof this power. Id. at 340–341, 680 N.W.2d666. First, the legislature could repeal thestatute enabling the governor to enter intoIndian gaming compacts; second, the leg-islature could amend the statute to requirethat modifications be subject to legislativeratification; third, the governor would be

held accountable for his actions at theballot box. Id. at 341, 680 N.W.2d 666.

Panzer next addressed whether the leg-islature had properly authorized the gover-nor to extend the duration of an Indiangaming compact indefinitely by lateramendments of the compact entered intosolely by the governor. Id. at 341–342,680 N.W.2d 666. The governor hadamended the compact to effectively pre-vent the state from rescinding the compactin the future, thereby rendering the dura-tion of the compact indefinite. Panzerstated:

We think it is extremely unlikely that,in the factual and legal atmosphere inwhich [Wis. Stat.] 14.035 was enacted,S139the legislature intended to make a del-egation that could terminate its abilityto make law in an important subjectarea. If such a far-reaching delegationwere in fact intended, the delegationwould be unconstitutional. [Id. at 347–348, 680 N.W.2d 666 (citation omitted).]

Panzer concluded that the Wisconsin legis-lature could not have authorized the gover-nor to extend the duration of the compacts,even if it had intended to do so, becausethe legislature would lose all ability tocontrol the power that it had authorizedthe governor to wield. ‘‘The legislaturewould be powerless to alter the course ofthe state’s position on Indian gaming’’ bychanging state law. Id. at 345, 680N.W.2d 666.

The authorization of the Governor’s useof amendatory power in the LTBB com-pact constitutes a similar delegation oflegislative power and hence violates theSeparation of Powers Clause. Legislativepower has been delegated here becausethe authorization of power does not im-pose ‘‘adequate standards’’ on the exerciseof that power, and the ‘‘degree of generali-ty TTT is so unacceptably high as toamount to a delegation of legislative pow-


ers.’’ Mistretta, supra at 419, 109 S.Ct.647 (Scalia, J., dissenting). The Legisla-ture placed a single restriction on theGovernor’s ability to amend the compact:the Governor merely cannot expand thecounties in which the LTBB may operatecasinos. Beyond this stricture, the Gover-nor possesses plenary authority, subject tono constraint beyond her own discretion,in the exercise of the contracting power.The compact imposes no limit on where orwhen the Governor may authorize new ca-sinos. The compact imposes no limit onwhen or for how long the Governor mayextend its duration. The compact imposesno procedural standards or obligationsupon the Governor. For example, theGovernor is not required to submit pro-posed amendments to the Legislature, tothe affected local unit of government, or toS140any other governmental body, beforeenacting amendments of the compact.The compact contains no overarching stan-dard to guide the Governor in her exerciseof the amendatory power, not even one asgeneral as those that have sustained dele-gations of power by the Congress to fed-eral administrative agencies, e.g., the Fed-eral Communications Commission mustregulate to promote the ‘‘public conven-ience, interest, or necessity TTTT’’ 47U.S.C. 303. The LTBB compact containsno standard, broad or narrow, substantiveor procedural, that would transform thelegislative power being delegated into anexecutive power. Consequently, the au-thorization of the amendatory power con-stitutes an unconstitutional delegation oflegislative power.

Thus, the majority establishes the thirdprovision of the ‘‘casino exception’’: in therealm of Indian casinos, the Legislaturemay authorize the exercise of power with-out imposing any standard on the Gover-nor’s exercise of power, thereby effectively

delegating legislative power to the Gover-nor.

Moreover, Soap & Detergent directs thisCourt to consider whether the authoriza-tion of power is ‘‘limited and specific,’’whether the branch authorizing the powerretains ‘‘concurrent power,’’ and whetherthe branch authorizing the power ‘‘is spe-cifically granted the power to veto’’ theother branch’s exercise of that power.Soap & Detergent, supra at 752, 330N.W.2d 346. None of these considerationsalters the conclusion that the Governorhere is exercising a legislative power.First, the authorization of the amendatorypower is not ‘‘limited’’ or ‘‘specific.’’ Pur-suant to these amendments, the Governorhas already allowed another casino andextended the duration of the compact for25 years; there is nothing that precludesthe Governor and her successors from al-lowing 50 or 100 casinos and extending theS141compact indefinitely. Second, unlike inSoap & Detergent, the Legislature heredoes not retain any power to amend com-pacts with the LTBB. Third, the Legisla-ture cannot thwart actions of the Governorby legislative veto. The Governor’s abilityto expand the scope of the compacts isplenary.

Moreover, under the rationale in Pan-zer, the Legislature should never be al-lowed to completely ‘‘terminate its abilityto make law in an important subject area.’’Panzer, supra at 347, 680 N.W.2d 666. Inthis case, the Legislature has wholly cededits ability to effect future amendments ofthe compact. The Legislature’s acquies-cence to the amendment procedure ‘‘termi-nate[d] its ability to make law in an impor-tant subject area.’’ Id. Such acquiescencetransforms both the legislative and execu-tive powers of our state by precluding theLegislature in the future from reassertingits proper authority over both state con-tracting and Indian casinos. Rather, it


will remain bound indefinitely by the ac-tions of the Legislature in 1998.

The majority argues: (1) because theLegislature properly approved the com-pacts under TOMAC I, any amendmentapproved by the Governor pursuant to theamendment process would be permissible,but only as long as the amendment is‘‘within the limits of the constitution,’’ anteat 490, 492, and 494; (2) the Legislatureacquiesced in the authorization of the Gov-ernor’s exercise of amendatory power byapproving the compacts by resolution; (3)the Legislature may properly confer amen-datory authority on the Governor, citingPeople ex rel Sutherland v. Governor, 29Mich. 320 (1874), and discretionary deci-sions made by the Governor pursuant todelegated authority are not reviewable bythis Court, citing People ex rel Ayres v.Bd. of State Auditors, 42 Mich. 422, 4N.W. 274 (1880); (4) the S142conferral ofamendatory power on the Governor was‘‘limited and specific,’’ Judicial AttorneysAss’n v. Michigan, 459 Mich. 291, 586N.W.2d 894 (1998); and (5) the amend-ments ‘‘ ‘[did] not impose new obligations’ ’’on the people of Michigan because theamendments ‘‘ ‘simply reflect the contrac-tual terms agreed to by two sovereignentities.’ ’’ Ante at 493 quoting TOMAC I,supra at 327, 685 N.W.2d 221. I will brief-ly respond to these arguments.

First, the majority argues that the Leg-islature validly approved the amendmentprocedure in the compact, thereby‘‘giv[ing] the Governor broad discretion—within the limits of the constitution—toamend the compacts.’’ Ante at 492. How-ever, this ignores that our constitution it-self limits the methods by which the LTBBcompact may be amended, by defining andlimiting the powers of the three branchesof government. An amendment procedurein violation of the separation of powers is

made unconstitutional by Const. 1963, art.3, § 2.

Second, the majority also argues thatthe Legislature acquiesced to the delega-tion of power to the Governor. While thismay be true, it is this Court’s obligation touphold the constitution in service to thepeople, not in service to a particularbranch of government. Moreover, it is ourobligation to uphold the permanent inter-ests of the separate branches, not those ofits particular members at a particular mo-ment in time. That one branch agrees tothe exercise by another of an unconstitu-tional power does not mitigate the breachof the constitution. The premise of a gov-ernment of defined and limited constitu-tional powers is that the rights of ‘‘we thepeople ’’ will most securely be maintainedby this method. ‘‘The acceptance by onebranch of the expansion of the powers ofanother branch is not dispositive in wheth-er a constitutional power has been proper-ly exercised.’’ Nat’l Wildlife Federation,supra at 616, 684 N.W.2d 800.

S143Third, the majority contends thatSutherland allows the Legislature ‘‘to con-fer authority on the Governor.’’ Ante at492. It further contends that ‘‘discretion-ary decisions made by the Governor arenot within this Court’s purview to modify.’’Ante at 492, citing Ayres, supra at 426, 4N.W. 274. Who could doubt either ofthese propositions? However, the rela-tionship these propositions bear to the ma-jority’s conclusion that the Legislaturemay ‘‘confer authority’’ upon anotherbranch of government in any way or toany extent the Legislature chooses is hardto comprehend. Sutherland did not assertthat courts should be disinterested in thenature of the authority being conferred,and Ayres did not assert that all decisionsmade by a Governor were ‘‘discretionary.’’Indeed, neither Sutherland nor Ayreseven addressed delegations of ‘‘legislative


power’’ to the executive.10 The majority’scasual assertion of governmental authoritysimply bears no resemblance to any tradi-tional understanding of American constitu-tionalism.

Fourth, the majority invokes the testfrom Judicial Attorneys Ass’n v. Michi-gan in support of its decision, but fails toproperly apply that test. The majoritystates:

An overlap or sharing of power maybe permissible if ‘‘the grant of authorityto one branch is limited and specific anddoes not create encroachment or ag-grandizement of S144one branch at theexpense of the other TTTT’’ [Ante at 493–94, quoting Judicial Attorneys, supra at297, 586 N.W.2d 894.]

Judicial Attorneys concluded that a stat-ute that allowed a local county to becomethe employer of judicial employees was not‘‘limited and specific’’ and constituted an‘‘aggrandizement’’ of the Legislature at theexpense of the judicial branch. Id. at 301–303, 586 N.W.2d 894.11 In the instantcase, the Governor has been given thepower to unilaterally amend the compact,constrained only by her inability to alterthe definition of ‘‘eligible Indian lands.’’This near-plenary power is neither ‘‘limit-

ed’’ nor ‘‘specific,’’ and permits the ‘‘ag-grandizement’’ of the executive branch atthe expense of the legislative, which willplay a sharply limited role in the formula-tion of Indian casino policy.

The majority further contends that theauthorization of power in this case is limit-ed by the ‘‘compacts themselves’’ and bythe Governor’s inability to ‘‘agree to anamendment that would violate the consti-tution or invade the Legislature’s lawmak-ing function.’’ Ante at 493 n. 3. However,as already mentioned, there is only a sin-gle relatively insignificant limitation uponthe Governor in the compact itself, and themajority apparently understands constitu-tional violations only in terms of substan-tive and not procedural terms. That is,while the Governor presumably could notset different miniSmum145 age limits forgambling in new casinos on the basis ofrace or nationality, the fact that she hasexercised legislative power in this realm inthe first place apparently does not impli-cate the constitution, no matter how much‘‘aggrandizement’’ of one branch has oc-curred at the expense of another.

Finally, the majority concludes by say-ing, ‘‘[T]he amendments ‘do not imposenew obligations on the citizens of the state

10. In Sutherland, the Legislature had grantedthe Governor the discretion to issue certifi-cates stating that a canal and harbor hadbeen built in conformity with federal law.The dispute in Sutherland centered on wheth-er this power was an ‘‘essentially executive’’duty or a ministerial duty. Sutherland, supraat 329. In Ayres, the Legislature had author-ized the Board of State Auditors to solicitcontracts for the printing of Supreme Courtreports. Ayres noted that ‘‘State officers infe-rior to the Governor have many duties whichcourts can compel them to perform TTT’’ Ay-ers, supra at 427, 4 N.W. 274. The dispute inAyres was whether the Board of State Audi-tors could be compelled to perform its dutiesin a manner similar to an inferior officer.

11. I dissented in part from the Court of Ap-peals opinion in the Judicial Attorneys cases

and would have found that the Separation ofPowers Clause was not violated. See DetroitMayor v. Michigan, 228 Mich.App. 386, 579N.W.2d 378 (1998). I concluded that ‘‘anypotential separation of powers concerns arenot ripe for decision,’’ id. at 427, 579 N.W.2d378, and that the law in dispute ‘‘could beconstrued or applied in many ways, in manycombinations and permutations, anticipatedand unanticipated, some of which would en-gender no serious constitutional difficultiesand others of which might be inconsistentwith Const. 1963, art. 3, § 2 in whole or inpart.’’ Id. at 439, 579 N.W.2d 378. This caseis distinguishable in that the Governor’s exer-cise of power engenders ‘‘serious constitution-al difficulties’’ under all circumstances.


subject to the Legislature’s power; theysimply reflect the contractual termsagreed to by two sovereign entities.’ ’’Ante at 493, quoting TOMAC I, supra at327, 685 N.W.2d 221. The issue in theinstant case is not whether the 2003amendments were agreed to by ‘‘two sov-ereign entities’’; obviously they were.12

Rather, the issue is whether the procedureundertaken to approve the 2003 amend-ments complied with the requirements ofour constitution. Just as the UnitedStates cannot enter into a treaty with Bel-gium, and Michigan cannot enter into acompact with Ohio, by extra-constitutionalprocedures, neither can Michigan negoti-ate an Indian casino compact by extra-constitutional means. The amendmentprocedure utilized here involves an uncon-stitutional delegation of legislative powerto the Governor because it fails to provide‘‘adequate standards’’—indeed it fails toprovide any standards—for the Governor’sexercise of such power. Such standardsare necessary to transform a legislativepower into an executive power. The ma-jority’s conclusion that the amendments‘‘ ‘simply reflect the contractual termsagreed to by two sovereign entities’ ’’ issimply irrelevant to the necessary consti-tutional analysis.13

S146Moreover, the majority’s assertionthat the amendments are not legislationbecause they ‘‘ ‘do not impose new obli-gations on the citizens of the state’ ’’ sim-ply ignores the reality that the citizens of

this state are now obliged to admit a newcasino and an indefinite number of futurecasinos into their communities, repletewith the attendant economic and socialconsequences, without their elected repre-sentatives having had a voice in this deter-mination. It is hard to conceive of a great-er ‘‘obligation’’ being imposed upon a freecitizenry than to be deprived of its abilityto effectively communicate with its electedrepresentatives.

V. CONSEQUENCES OFMAJORITY OPINION

The separation of powers among ourthree branches of government is not anafterthought to our constitutional struc-ture. ‘‘The framers of Michigan’s Consti-tution understood well the importance ofseparating the powers of government.’’46th Circuit Trial Court v. Crawford Co.,476 Mich. 131, 141, 719 N.W.2d 553 (2006).‘‘By separating the powers of government,the framers of the Michigan Constitutionsought to disperse governmental powerand thereby to limit its exercise.’’ Nat’lWildlife Federation, supra at 613, 684N.W.2d 800. With regard to this state’sSeparation of Powers Clause, the officialproposal at the Constitutional Conventionstated:

S147The doctrine of the separation ofpowers prevents the collection of gov-ernmental powers into the hands of 1man, thus protecting the rights of thepeople. It is as old as our American

12. See TOMAC I, supra at 397, 685 N.W.2d221 (‘‘I do not dispute that the compacts areakin to contracts of a unique nature.’’).

13. The majority asserts that the contractualnature of the compact and the amendments isrelevant because ‘‘ ‘mutual assent’ ’’ is ‘‘ ‘acharacteristic that is not only the hallmark ofa contractual agreement but is also absolutelyforeign to the concept of legislating.’ ’’ Anteat 493 n. 4, quoting TOMAC I, supra at 324,685 N.W.2d 221. I do not disagree that the

compact and its amendments are contractual.Where I disagree is in the majority’s assertionthat, when acting pursuant to a contract, theGovernor and the Legislature are no longerbound by the grants and limitations of author-ity set forth in our constitution. The funda-mental flaw in the majority opinion is that itnever explains why the LTBB contract shouldbe permitted to prevail over the contract be-tween the people and their government em-bodied in our constitution.


governmental system, and was devisedby our founding fathers, greatly influ-enced by the French political theorist,Montesquieu. Desirous of protecting afree people, their idea was that if, some-how, the powers of government could bedivided, it could not grow so large as toenslave them. [1 Official Record, Con-stitutional Convention 1961, at 601.]

In equally strong language, former JusticeCooley explained that the separation ofpowers ‘‘operates as a restraint upon suchaction of the [other branches of govern-ment] as might encroach on the rights andliberties of the people, and makes it possi-ble to establish and enforce guarantiesagainst attempts at tyranny.’’ Cooley, TheGeneral Principles of Constitutional Lawin the United States of America (Boston:Little, Brown & Co., 1880), p. 43.

The majority allows the Governor, withthe acquiescence of the Legislature, to cir-cumvent the separation of powers principleembedded in Const. 1963, art. 3, § 2; art.4, § 1; art. 5, § 1; and art. 6, § 1. Thegrant of power from the Legislature inthis case authorizes the Governor to enterinto a contract. By some unexplained al-chemy, such contract—one authorized byconstitutionally-designated officials in thelegislative branch and one negotiated by aconstitutionally-designated official in theexecutive branch—is somehow permittedto trump a precedent contract that is partof the constitution. This precedent con-tract, entered into between ‘‘[w]e, the peo-ple of the State of Michigan’’ and its gov-ernment, ‘‘ordain[ed] and establish[ed] thisconstitution.’’ Cons. 1963, Preamble (em-phasis added). ‘‘[T]his constitution’’ setsforth an architecture and a process of gov-ernment instituted for the S148‘‘equal bene-fit, security and protection’’ of the people.Const. 1963, art. 1, § 1. Governmental offi-cials are to operate within these con-straints. Here, the majority allows theseofficials to act in disregard of constraints

placed upon them by the constitution andthereby to impose new obligations uponthe people.

As a result, a matter of public policysignificance—the nature of Indian gamingwithin this state—is exempted from theregular processes of government.Through an improper delegation and exer-cise of legislative power, the Legislaturehas been deprived of its future authority toact on behalf of the people in this realm,the people have lost the effective opportu-nity to ‘‘instruct their representatives’’ inthis same realm, Const. 1963, art. 1, § 3,and communities across the state have haddiluted their ability to influence their localrepresentatives in the law-making processin this realm. It is fair to describe theeffect of the majority opinion, in conjunc-tion with its opinion in TOMAC I, as thecreation of a ‘‘casino exception’’ to repre-sentative government. Within the realmof the ‘‘casino exception,’’ government isundertaken by contract rather than byregular constitutional processes, and publicpolicy decisions normally within the con-templation of the legislative process aremade by executive branch negotiatorsrather than by elected legislators.

Because of the majority opinion, theLTBB will be allowed to build a secondcasino in a second Michigan community,unburdened by the involvement of the peo-ple’s elected representatives in the Legis-lature. Perhaps this will prove to be awise judgment. Perhaps the effect ofthese casinos—as well as the effect of anunknown number of future casinos to beestablished by this same process over thenext quarter-century—will prove salutary.Perhaps the effect of these and laterS149casinos on traffic, the environment andpollution, nearby schools, rural lifestyles,the character of communities, levels ofnoise, rates of crime, the competitiveness


of state and local businesses, the incidenceof bankruptcies, and the moral and socialfabric of our state will all turn out well.Even if so, however, decisions such asthese should be undertaken by the peoplethrough their elected representatives andnot through the processes of the ‘‘casinoexception’’ to representative government.The result of the majority’s approach willbe that, in the realm of Indian casinos, theauthority of the people will be eroded, localinfluence will be eroded, and self-govern-ment itself will be eroded.

VI. CONCLUSION

In my judgment, the Governor’s approv-al of the 2003 amendments violates theconstitution, and the majority errs in af-firming this action through what I view asthe effective creation of a ‘‘casino excep-tion’’ to representative government. Bythis exception, the majority enables thefollowing:

First, in the realm of Indian casinos, themajority allows the Legislature to approvelegislation through something other thanthe regular legislative process establishedby the constitution, as in this case wherethe Legislature approved the LTBB com-pact by a simple resolution vote. Becausethe compact constitutes legislation, it wasunconstitutionally enacted in deviationfrom the regular legislative process. Con-sequently, the amendments of the compactare themselves unconstitutional.

Second, in the realm of Indian casinos,the Governor may enact the equivalent oflegislation without the involvement of theLegislature, as in this case where the Gov-ernor has unilaterally approved amend-ments of S150the LTBB compact. Becausethe amendments of the compact them-selves constitute legislation under theBlank factors, unilateral enactment ofthese amendments violated the provisionsof our constitution that establish the proce-

dure for the passage of legislation, Const.1963, art. 4, §§ 25, 26, and 33, as well asthe clauses pertaining to the separation ofpowers, Const. 1963, art. 3, § 2; art. 4,§ 1; art. 5, § 1; art. 6, § 1. Consequently,the amendments are unconstitutional.

Third, in the realm of Indian casinos, theLegislature may delegate legislative powerwithout supplying an adequate standardfor its exercise, as in this case where theLegislature delegated to the Governoramendatory power over the compact with-out specifying any standards for its exer-cise. Consequently, the compact unconsti-tutionally delegates legislative power, andthe Governor’s exercise of that power byenacting the 2003 amendments is unconsti-tutional.

The majority allows the Governor andthe Legislature to act outside their author-ity and beyond the limitations of our con-stitution. As a result, in the realm ofIndian casinos, I believe that the authorityof the people to exercise self-governmentwill be diminished. For these reasons, Irespectfully dissent.

,

478 Mich. 203

Arthur Y. LISS and Beverly Liss,Plaintiffs–Appellees,

v.

LEWISTON–RICHARDS, INC., andJason P. Lewiston, Defendants–

Appellants.

No. 130064.

Supreme Court of Michigan.

June 6, 2007.

Background: Homeowners brought actionagainst builder to recover for violation of

TAXPAYERS AGAINST CASINOS v. STATE 487

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