Order Michigan Supreme Court
Lansing, Michigan
April 2, 2021 Bridget M. McCormack,
Chief Justice
161760-78 & (133)(138) Brian K. Zahra
David F. Viviano
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
DEPARTMENT OF TRANSPORTATION, Elizabeth M. Welch,
Plaintiff-Appellee, Justices
v SC: 161760
COA: 345708
Wayne CC: 17-000536-CC
RIVERVIEW-TRENTON RAILROAD
COMPANY and CENTRAL TRANSPORT,
LLC,
Defendants-Appellants,
and
CITY OF DETROIT, DOME PIPELINE
CORPORATION, DTE ELECTRIC COMPANY,
EES COKE BATTERY, LLC, ECONOMIC
DEVELOPMENT CORPORATION OF
THE CITY OF DETROIT, EDW C. LEVY CO.,
HONEYWELL INTERNATIONAL, INC.,
INTERNATIONAL TRANSMISSION COMPANY,
J.P. MORGAN CHASE BANK, NA, S&L
DEVELOPMENT CO., and UNITED STATES
STEEL CORP.,
Defendants.
__________________________________________/
DEPARTMENT OF TRANSPORTATION,
Plaintiff-Appellee,
v SC: 161761
COA: 346105
Wayne CC: 17-000530-CC
CROWN ENTERPRISES, INC.,
Defendant-Appellant,
and
CITY OF DETROIT and DEPARTMENT OF
NATURAL RESOURCES,
Defendants.
__________________________________________/
DEPARTMENT OF TRANSPORTATION,
Plaintiff-Appellee,
2
v SC: 161762
COA: 346106
Wayne CC: 17-000531-CC
CROWN ENTERPRISES, INC.,
Defendant-Appellant,
and
CITY OF DETROIT,
Defendant.
__________________________________________/
DEPARTMENT OF TRANSPORTATION,
Plaintiff-Appellee,
v SC: 161763
COA: 346107
Wayne CC: 17-000533-CC
DIBDETROIT, LLC,
Defendant-Appellant,
and
CITY OF DETROIT,
Defendant.
__________________________________________/
DEPARTMENT OF TRANSPORTATION,
Plaintiff-Appellee,
v SC: 161764
COA: 346108
Wayne CC: 17-000534-CC
DIBDETROIT, LLC,
Defendant-Appellant,
and
DEPARTMENT OF NATURAL RESOURCES,
Defendant.
__________________________________________/
DEPARTMENT OF TRANSPORTATION,
Plaintiff-Appellee,
v SC: 161765
COA: 346109
Wayne CC: 17-000537-CC
DETROIT INTERNATIONAL BRIDGE
COMPANY,
Defendant-Appellant,
and
CITY OF DETROIT and DEPARTMENT OF
3
NATURAL RESOURCES,
Defendants.
__________________________________________/
DEPARTMENT OF TRANSPORTATION,
Plaintiff-Appellee,
v SC: 161766
COA: 346110
Wayne CC: 17-000538-CC
CROWN ENTERPRISES, INC.,
Defendant-Appellant,
and
WAYNE SCRAP IRON & METAL COMPANY
and CITY OF DETROIT,
Defendants.
__________________________________________/
DEPARTMENT OF TRANSPORTATION,
Plaintiff-Appellee,
v SC: 161767
COA: 346111
Wayne CC: 17-000539-CC
DIBDETROIT, LLC,
Defendant-Appellant,
and
CITY OF DETROIT, BENJAMIN ZUCKER or
His Unknown Heirs, Devisees, Legatees and
Assigns, and ROSE ZUCKER or Her Unknown
Heirs, Devisees, Legatees and Assigns,
Defendants.
__________________________________________/
DEPARTMENT OF TRANSPORTATION,
Plaintiff-Appellee,
v SC: 161768
COA: 346112
Wayne CC: 17-000540-CC
CROWN ENTERPRISES, INC.,
Defendant-Appellant,
and
ARCOLA CLARK or Her Unknown Heirs,
Devisees, Legatees and Assigns, GWENDOLYN
MARIE SMITH or Her Unknown Heirs, Devisees,
Legatees and Assigns, and CITY OF DETROIT,
Defendants.
4
__________________________________________/
DEPARTMENT OF TRANSPORTATION,
Plaintiff-Appellee,
v SC: 161769
COA: 346113
Wayne CC: 17-000541-CC
CROWN ENTERPRISES, INC.,
Defendant-Appellant,
and
CITY OF DETROIT,
Defendant.
__________________________________________/
DEPARTMENT OF TRANSPORTATION,
Plaintiff-Appellee,
v SC: 161770
COA: 346114
Wayne CC: 17-000542-CC
CROWN ENTERPRISES, INC.,
Defendant-Appellant,
and
CITY OF DETROIT, DTE ELECTRIC COMPANY
EXPRESS SERVICE ENTERPRISES, INC.,
FLAGSTAR BANCORP, INC., THOMAS
McALLEN or His Unknown Heirs, Devisees,
Legatees and Assigns, AILEEN McALLEN or Her
Unknown Heirs, Devisees, Legatees and Assigns,
BUSINESS LOAN CENTER, LLC, UNITED
STATES OF AMERICA DEPARTMENT OF
TREASURY/INTERNAL REVENUE SERVICE,
and AFT INVESTMENTS, LLC,
Defendants.
__________________________________________/
DEPARTMENT OF TRANSPORTATION,
Plaintiff-Appellee,
v SC: 161771
COA: 346115
Wayne CC: 17-000544-CC
DIBDETROIT, LLC,
Defendant-Appellant,
and
MORTON INDUSTRIAL GROUP, INC., as
Successor in Interest to McLOUTH STEEL
CORPORATION, DEPARTMENT OF NATURAL
5
RESOURCES, and CITY OF DETROIT,
Defendants.
__________________________________________/
DEPARTMENT OF TRANSPORTATION,
Plaintiff-Appellee,
v SC: 161772
COA: 346116
Wayne CC: 17-000545-CC
DIBDETROIT, LLC,
Defendant-Appellant,
and
IRENE GARZA and CITY OF DETROIT,
Defendants.
__________________________________________/
DEPARTMENT OF TRANSPORTATION,
Plaintiff-Appellee,
v SC: 161773
COA: 346117
Wayne CC: 17-000546-CC
CROWN ENTERPRISES, INC.,
Defendant-Appellant,
and
DEPARTMENT OF NATURAL RESOURCES
and CITY OF DETROIT,
Defendants.
__________________________________________/
DEPARTMENT OF TRANSPORTATION,
Plaintiff-Appellee,
v SC: 161774
COA: 346118
Wayne CC: 17-000547-CC
CROWN ENTERPRISES, INC.,
Defendant-Appellant,
and
CURTIS PENICK and CITY OF DETROIT,
Defendants.
__________________________________________/
DEPARTMENT OF TRANSPORTATION,
Plaintiff-Appellee,
v SC: 161775
COA: 346119
6
Wayne CC: 17-000548-CC
CROWN ENTERPRISES, INC.,
Defendant-Appellant,
and
RYE GENTRY TRUCKING, INC., CAROL A.
GENTRY TRUST DATED 11/8/2000 As it May
be Amended, and CAROL A. GENTRY,
Individually and as Trustee,
Defendants.
__________________________________________/
DEPARTMENT OF TRANSPORTATION,
Plaintiff-Appellee,
v SC: 161776
COA: 346120
Wayne CC: 17-006977-CC
DIBDETROIT, LLC,
Defendant-Appellant,
and
CITY OF DETROIT,
Defendant.
__________________________________________/
DEPARTMENT OF TRANSPORTATION,
Plaintiff-Appellee,
v SC: 161777
COA: 346121
Wayne CC: 17-006979-CC
DIBDETROIT, LLC,
Defendant-Appellant,
and
CITY OF DETROIT, DEPARTMENT OF
NATURAL RESOURCES, SAMIR
HABIBSHAMKH AL-FATLAWI, MARIA
ANTONIETA PARDO-DE-GARCIA, MARJORIE
ZAIZAR, and RAMIRO ZAIZAR,
Defendants.
__________________________________________/
DEPARTMENT OF TRANSPORTATION,
Plaintiff-Appellee,
v SC: 161778
COA: 346122
Wayne CC: 17-006980-CC
DIBDETROIT, LLC,
Defendant-Appellant,
7
and
DEPARTMENT OF NATURAL RESOURCES,
Defendant.
__________________________________________/
On order of the Court, the motion to strike response in opposition to amicus curiae
brief and the motion for leave to file a reply brief in support of motion to strike are
GRANTED. The application for leave to appeal the June 18, 2020 judgment of the Court
of Appeals is considered, and it is DENIED, because we are not persuaded that the
questions presented should be reviewed by this Court.
VIVIANO, J. (dissenting).
This case raises serious questions about the activities of the Michigan Department
of Transportation (MDOT) in relation to the Gordie Howe International Bridge. The
Legislature has never authorized the bridge and, in fact, has since 2011 placed limitations
on MDOT’s authority to approve the bridge or use state funds for it. The meaning and
effect of those limitations, and the constitutionality of MDOT’s actions, are at the heart of
this case. The Court of Appeals concluded that MDOT’s actions complied with all the
statutory restrictions and were otherwise constitutional.
Defendants raise strong arguments that the Court of Appeals erred. For example,
when the state of Michigan, “by and through” MDOT, among other entities, entered into
an agreement with Canada to construct a new bridge crossing between Detroit and
Windsor, Ontario (the Crossing Agreement), there was an appropriations statute in effect
that prohibited MDOT from “expend[ing] any state transportation revenue for the
construction of the” bridge and from “commit[ting] the state to any new contract related
to the construction planning or construction of the” bridge. 2011 PA 63, Art XVII, Part
2, § 384(1). Since the Crossing Agreement was entered, the Legislature has continued to
prohibit MDOT from expending state funds except for “staff resources used in
connection with project activities . . . .” 2013 PA 59, § 384(1). Under the Crossing
Agreement, although Canada is required to reimburse MDOT for various expenditures
including the land condemnations at issue here, MDOT must expend funds on the front
end. It is at least a close question whether a prohibition on spending funds still allows
hundreds of millions of dollars to be spent as long as the expenditures are later
reimbursed. In addition to this interpretive issue, it is also questionable whether MDOT’s
actions pass muster under constitutional and statutory requirements that limit state
agencies like MDOT to spending funds that are specifically appropriated by the
Legislature. Const 1963, art 9, § 17; MCL 18.1366. It appears that no appropriations
have been made for the funds spent by MDOT that are subject to reimbursement by
Canada. These are difficult legal issues that merit this Court’s attention.
8
This is yet another missed opportunity to address a contention that executive
agencies and officials have acted outside the bounds of their prescribed authority. See
Davis v Secretary of State, ___ Mich ___; 951 NW2d 911 (2020) (VIVIANO, J.,
dissenting) (dissenting from denial of leave to appeal in a challenge to the Secretary of
State’s mass mailing of absentee ballot applications); Davis v Secretary of State, ___
Mich ___; 951 NW2d 329 (2020) (dismissing appeal by stipulation of the parties in a
case challenging the Secretary of State’s last-minute directive banning the open carrying
of firearms at polling places on Election Day). This is no small matter. See Hamburger,
Is Administrative Law Unlawful? (Chicago: University of Chicago Press, 2014), p 29 (“It
was precisely to bar prerogative or administrative evasions of law that seventeenth-
century Englishmen developed ideas of constitutional law.”). As I explained when this
issue arose recently, “In general, ‘[t]he extent of the authority of the people’s public
agents is measured by the statute from which they derive their authority, not by their own
acts and assumption of authority.’ ” Davis, ___ Mich at ___; 951 NW2d at 911, quoting
Mich Ed Ass’n v Secretary of State (On Rehearing), 489 Mich 194, 225-226 (2011)
(quotation marks and citation omitted). The present case puts this issue in even starker
relief, as the question is not simply whether MDOT was authorized to undertake its
actions in regard to the bridge, but whether MDOT was affirmatively prohibited by the
Legislature from taking these actions.
I would grant leave to appeal so that we could examine these important and far-
reaching issues.
CLEMENT, J., did not participate due to her prior involvement as chief legal
counsel for former Governor Rick Snyder.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
April 2, 2021
p0330
Clerk