Order Michigan Supreme Court
Lansing, Michigan
December 21, 2007 Clifford W. Taylor,
Chief Justice
133992 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
CITY OF DETROIT DOWNTOWN Robert P. Young, Jr.
DEVELOPMENT AUTHORITY, Stephen J. Markman,
Justices
Petitioner-Appellant,
v SC: 133992
COA: 262311
Wayne CC: 04-439264-AV
US OUTDOOR ADVERTISING, INC.,
and CITY OF DETROIT BOARD OF
ZONING APPEALS,
Respondents-Appellees,
_________________________________________/
On order of the Court, the application for leave to appeal the April 12, 2007
judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(G)(1), in
lieu of granting leave to appeal, we REVERSE the Court of Appeals judgment that held
that the plaintiff lacked standing to challenge the Detroit Board of Zoning Appeals
decision regarding the variance for the property located at 124 Cadillac Square. This
Court has adopted a three-part test for standing that requires (1) an injury in fact that is
concrete, particularized, and actual or imminent; (2) a causal connection between that
injury and the complained of conduct; and (3) that the injury will be redressed by a
favorable decision. Michigan Citizens v Nestlé Waters, 479 Mich 280, 294-295 (2007).
In this case, plaintiff has shown that it has made substantial investments in the area
surrounding the variance, that it owns nearby buildings, and that it has a supervisory
authority over the development district that encompasses the variance. Further, plaintiff
has shown that the variance will potentially cause economic injury to its interests.
Because a judgment in favor of plaintiff will eliminate these injuries, plaintiff has
established standing to challenge the variance. We REMAND this case to the Court of
Appeals for consideration of defendant’s remaining issues.
CAVANAGH, J., concurs in the reversal.
WEAVER, J., concurs and states as follows:
I concur in the order reversing the Court of Appeals judgment and remanding this
case to the Court of Appeals for consideration of defendant’s remaining issues, because I
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agree that the plaintiff has standing to challenge the Detroit Board of Zoning Appeals
decision regarding the variance for the property located at 124 Cadillac Square.
I write separately because I disagree with the application of the majority of four’s
(Chief Justice Taylor and Justices Corrigan, Young, and Markman) erroneously created
standing test in Lee v Macomb Co Bd of Comm’rs,1 Nat’l Wildlife Federation v Cleveland
Cliffs Iron Co,2 Rohde v Ann Arbor Pub Schools,3 and Michigan Citizens for Water
Conservation v Nestlé Waters North America Inc.4 In those cases, the majority of four
systematically dismantled Michigan’s standing law and replaced years of precedent with
its own test that denies Michigan citizens access to the courts.5
I would hold that the plaintiff has standing under the pre-Lee prudential test for
standing because the plaintiff has demonstrated “that the plaintiff’s substantial interest
will be detrimentally affected in a manner different from the citizenry at large.” House
Speaker v State Administrative Bd, 441 Mich 547, 554 (1993).
KELLY, J., concurs in the result only.
MARKMAN, J., concurs and states as follows:
It is by now a customary part of Justice Weaver’s separate statements to condemn
some purported judicial “assault” by the “majority of four.” Here, the object of the
Court’s assault is denying “citizens access to the courts” and stems from the Court
reaffirming, over Justice Weaver’s dissent, that the “judicial power” in Michigan requires
that the parties have standing. While I am content to rely on this Court’s previous
opinions, see e.g., Nat’l Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich 608
(2004), as well as those of the United States Supreme Court, see, e.g., Lujan v Defenders
of Wildlife, 504 US 555 (1992), in support of the necessity of standing, Justice Weaver's
statement prompts me to remind the bench and bar of the constitutional and other values
served by the standing doctrine. This is the doctrine that parties to a lawsuit must have a
concrete and particularized interest in that lawsuit distinct from the interest of the people
as a whole.
1
Lee v Macomb Co Bd of Comm’rs, 464 Mich 726 (2001).
2
Nat’l Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich 608 (2004).
3
Rohde v Ann Arbor Pub Schools, 479 Mich 336 (2007).
4
Michigan Citizens for Water Conservation v Nestlé Waters North America Inc, 479
Mich 280 (2007).
5
See my opinions chronicling the majority of four’s assault on standing in Lee, 464 Mich
at 742; Nat’l Wildlife, 471 Mich at 651; Rohde, 479 Mich at 366; and Michigan Citizens,
479 Mich at 310.
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(1) The requirement of standing ensures that the judiciary will exercise only the
“judicial power” by resolving actual “cases and controversies,” rather than also
exercising the powers of the Governor and the executive branch by addressing matters of
policy and law enforcement that are appropriately part of the “executive power.”
(2) The requirement of standing ensures that the judiciary will exercise only the
“judicial power” by resolving actual “cases and controversies,” rather than deciding
matters in which there are no coherent legal standards or rules but simply policy
judgments to be exercised.
(3) The requirement of standing ensures that citizens will have genuine “access” to
government by preserving decision-making authority in the most representative and
accountable branches of government and thereby allowing citizens to effectively exercise
their constitutional right to “petition the Government for a redress of grievances.” US
Const, Am I; see also Const 1963, art 1, § 3.
(4) The requirement of standing ensures that the constitution ratified by “we the
people” of Michigan will be accorded respect by restricting institutions of government to
the exercise of their proper powers and by upholding the principle of the separation of
powers.
(5) The requirement of standing ensures that the Legislature will not diminish the
powers of the executive branch by transferring its powers to the judiciary. “To permit
[the Legislature] to convert the undifferentiated public interest in executive officers’
compliance with the law into an ‘individual right’ vindicable in the courts is to permit
Congress to transfer from the President to the courts the Chief Executive’s most
important constitutional duty, to ‘take Care that the Laws be faithfully executed.’” Lujan,
supra at 577 (citation omitted).
(6) The requirement of standing ensures that ours will not become a government
of lawyers by lawyers and that the power of judges will be restricted to matters
traditionally within the authority of the courts and not extended to matters traditionally
within the authority of the executive.
(7) The requirement of standing ensures that citizens will continue to have
meaningful control over their own government by reposing policy decisions in the
branches of government that are the most directly representative and accountable to the
people. To dilute standing is not to enhance the access of ordinary citizens to their own
government, but only to enhance the role of judges, lawyers, and litigating organizations
in the formulation of public policy.
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(8) The requirement of standing ensures that policy will be established on the basis
of information, derived in the course of legislative and executive hearings and
investigations from the testimony of individuals and organizations of a broad range of
interests and perspectives, rather than only from the plaintiff and the defendant in a
lawsuit.
(9) The requirement of standing ensures that historical constitutional restraints and
limitations on the judiciary will be maintained to balance the judiciary’s authority with
that of the other branches of government within our system of separated powers.
By seeking to erode the standing doctrine in Michigan, Justice Weaver does not
facilitate “access” by citizens, but only the establishment of a more powerful judiciary.
In the end, such an establishment would inevitably undermine access by the people to the
most representative and accountable institutions of their own government.
I, Corbin R. Davis, 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.
December 21, 2007 _________________________________________
p1218 Clerk