Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan
Opinion
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED JULY 30, 2001
MGM GRAND DETROIT, LLC,
Plaintiff-Appellee,
v No. 119309
COMMUNITY COALITION FOR EMPOWERMENT
INC., and ERNEST JOHNSON,
Defendants-Appellants,
v
JACKIE L. CURRIE, in her capacity as
CITY CLERK FOR THE CITY OF DETROIT and
DETROIT CITY COUNCIL,
Third-Party Defendants-Appellees.
______________________________________
BEFORE THE ENTIRE BENCH
TAYLOR, J.
The issue is whether Detroit Ordinance 35-98 is exempt
from the power of referendum found in the Detroit Charter.
On its own motion, this Court voted to grant leave to appeal1
before a decision by the Court of Appeals. Having heard oral
argument, we now find as follows:
(1) The power of referendum in the Detroit Charter does
“not extend to the budget or any ordinance for the
1
464 Mich 855 (2001).
appropriation of money . . . .” Detroit Charter § 12-101.
(2) Detroit Ordinance 35-98 provides in pertinent part:
The Three Hundred Thirty-Three Thousand Three
Hundred Thirty-Three and 34/100 Dollars
($333,333.34) early advance heretofore paid by the
developer to the City pursuant to the development
agreement is hereby appropriated to the temporary
casino site support and infrastructure improvement
. . . .
(3) An appropriation of $333,333.34 is an “appropriation
of money” and Ordinance 35-98 is “any ordinance.”
(4) Therefore, the power of referendum in the Detroit
Charter does not extend to ordinance 35-98.
Accordingly, consistent with MUCC v Secretary of State,
464 Mich 359; ___ NW2d ___ (2001), the circuit court’s
judgment granting MGM’s motion for summary disposition is
affirmed. The case is remanded to the Court of Appeals for
resolution of the remaining issues.
Response to Justice Weaver’s dissent
Justice Weaver dissents, asserting that we improvidently
granted leave in the case at bar to be heard with the MUCC
case because it has now become apparent the cases are too
dissimilar to be considered together. She further asserts
that the cases are no longer being considered together, in
that the MUCC decision was issued just over three weeks ago.
We cannot agree. The fact that the MUCC opinion was issued
less than a month ago does not mean the case at bar and the
MUCC case were not considered together. The MUCC decision was
issued on an expedited basis in order to meet a statutory
deadline. No such deadline exists in this case. Hence the
Court has taken the prudent course of allowing additional time
2
before issuing its decision in this case before the end of our
term on July 31, 2001. Further, the MUCC case and the case at
bar are similar.2 While the language in the Michigan
Constitution and the Detroit Charter are not identical, they
are closely related and warrant application of the same
analysis.3 That is why we are affirming on the basis of our
holding in the MUCC case.
Response to Justice Cavanagh’s dissent
Justice Cavanagh dissents, asserting this appeal should
be dismissed on the basis of mootness. He contends the case
is moot because MGM renovated the building and that such
renovation precludes the Court from being able to grant
defendants the relief they request. Justice Cavanagh also
posits that MGM would have a legal right to stay in the casino
even if the ordinance went to a referendum and lost because
the renovated casino would constitute a prior nonconforming
use that could remain despite any zoning change.
The claim of mootness does not withstand serious
2
In the MUCC case the issue was whether a statute that
included a million dollar appropriation was exempt from a
referendum because it was an “act[] making [an]
appropriation[] for [a] state institution[],” whereas the
issue in the case at bar is whether an ordinance that included
a one-third of a million dollar appropriation is exempt from
a referendum because it constitutes “any ordinance for the
appropriation of money.”
33
Although the issues in each case warrant application of
the same analysis, when we granted leave we were faced with a
split of authority between the Court of Appeals decision in
MUCC, supra (which applied the amorphous “core function” test)
and Judge Sapala’s decision in this case (which relied on the
plain and unambiguous language of the Detroit City Charter).
By considering this case along with the MUCC case we have
provided an efficient resolution to a single problem.
3
scrutiny. Preliminarily, we note that the burden of
demonstrating mootness is a “heavy one.” Los Angeles v Davis,
440 US 625, 631; 99 S Ct 1379; 59 L Ed 2d 642 (1979). This
means to get an appeal dismissed as moot, thus depriving a
party seeking redress of a day in court, the party urging
mootness on the court must make a very convincing showing that
the opportunity for an appellate court to review the matter
should be denied. Not surprisingly, it is rare for a court to
grant such a motion. Furthermore, neither MGM nor the city
filed a motion to dismiss the appeal on the basis of mootness.
Indeed, the mootness argument is only presented in a manner
that conveys its infirmity.4
While it is true that defendants did not seek a stay
after the trial court ruled against them (nor did they have
to), they did file a timely appeal in the Court of Appeals.
They also sought, albeit unsuccessfully, an expedited hearing
from the Court of Appeals. It is also the case that the city
and MGM were on notice that they proceeded at their peril if
they built before the appeal was resolved because defendants
sent a letter to the city council and MGM advising them
exactly of that. Under such circumstances, one cannot
reasonably conclude that defendants’ claim is moot. In fact,
the obviousness of this is probably why the city and MGM did
not bring such a motion.
It not only is common sense, but also a well-established
4
The supplemental brief filed on behalf of the city clerk
and the city council merely mentions mootness in a footnote
found on page 19 of its twenty-page brief.
4
legal principle, that a party can not obliterate an opponent’s
appeal, on the basis of mootness, by so changing the status
quo during the appeal (remarkably enough in this case by
building the very casino that was at issue in the appeal while
the appeal was pending) that they can then argue it is
impossible to return to the situation that existed when the
appeal was filed. The United States Supreme Court, no less,
has said as much. In Jones v Securities and Exchange Comm,
298 US 1, 15-18; 56 S Ct 654; 80 L Ed 1015 (1936), our
nation’s highest Court said:
The rule is well settled, both by the courts
of England and of this country, that where a suit
is brought to enjoin certain acts or activities,
for example, the erection of a building or other
structure, of which suit defendant has notice, the
hands of the defendant are effectively tied pending
a hearing and determination, even though no
restraining order or preliminary injunction be
issued.
* * *
The conclusion to be drawn from all the cases is
that after a defendant has been notified of the
pendency of a suit seeking an injunction against
him, even though a temporary injunction be not
granted, he acts at his peril and subject to the
power of the court to restore the status, wholly
irrespective of the merits as they may be
ultimately decided.
We concur with the United States Supreme Court,
reinforced in this conclusion by the fact that there is no
contrary authority in our jurisprudence.5
5
Also instructive is West v Secretary of the Dep’t of
Transportation, 206 F3d 920 (CA 9, 2000). In this case, there
was a dispute regarding the building of a highway. A builder
argued the case was moot because the construction for stage 1
of the highway was already complete. The Court rejected this
argument, noting that if completion of construction was the
(continued...)
5
We also note that it is premature for Justice Cavanagh to
conclude on the basis of Heath Twp v Sall, 442 Mich 434; 502
NW2d 627 (1993), that MGM would have a legal right to stay in
the building if the ordinance went to a referendum and lost.
If this were to occur, MGM could then make whatever arguments
it had at that time.
Justice Cavanagh asserts that leave was granted in this
case by the Court in order to “demonstrate that the Court
would apply the same logic” to this case as we did in the MUCC
case.
To the charge that the majority attempts to apply the
same logic to all cases coming before it, we plead guilty.
Justice Cavanagh’s discontent with our approach merely
reflects our differing views on the proper role of the
judiciary in our representative democracy.
We, the majority, apply the text of the constitution, a
statute, or an ordinance according to its ordinary meaning.
We are prepared to live with the result of the plain
application of such texts, regardless of whether we personally
agree or disagree with the outcome. We subscribe to the
notion that judges are not the lawgivers in our society;
5
(...continued)
test, parties could merely ignore the requirements of the law,
build its structures before a case gets to court, and then
hide behind the mootness doctrine. The Court concluded that
“[s]uch a result is not acceptable.” See also Gamlen Chemical
v Gamlen, 79 F Supp 622 (WD Pa, 1948):
Equity will not permit a wrongdoer to shelter
himself behind a suddenly or secretly changed
status though he succeeded in making the change
before the chancellor's hand actually reached him.
6
rather, they are the interpreters of the law.
Justice Cavanagh’s judicial philosophy is perhaps more
“complex” than ours insofar as he is willing to depart from
giving texts a plain reading for a more “complicated”
construction, one less respectful of the words themselves used
by the lawgiver, in this case the people of the city of
Detroit in enacting their charter. See, for example, his MUCC
dissent, where he introduces a “core function” test as a means
of avoiding the conclusion that a one million dollar
appropriation is, in fact, an appropriation under art 2, § 9.
We decline to read in such complexities where none are
apparent in the language of the law.
CORRIGAN , C.J., and YOUNG , and MARKMAN , JJ., concurred with
TAYLOR, J.
7
S T A T E O F M I C H I G A N
SUPREME COURT
MGM GRAND DETROIT, L.L.C.,
Plaintiff-Appellee,
v No. 119309
COMMUNITY COALITION FOR EMPOWERMENT,
INC., and ERNEST JOHNSON,
Defendants-Appellants,
v
JACKIE L. CURRIE, in her capacity as
CITY CLERK FOR THE CITY OF DETROIT and
DETROIT CITY COUNTIL,
Third-Party Defendants-Appellees.
________________________________
CAVANAGH, J. (dissenting).
This case arrived here at this Court’s request. Another
vehicle was desired, along with Michigan United Conservation
Clubs v Secretary of State, 464 Mich 359; ___ NW2d ____
(2001), to demonstrate that the Court would apply the same
logic to deny residents of the city of Detroit the right to a
referendum vote on a rezoning ordinance for casino gambling
that was applied in MUCC to deny this state’s residents the
right to a referendum on new gun legislation. The majority,
having decided in MUCC that the insertion of a dollar amount,
however ill-intended, renders a new law referendum-proof, now
is determined to opine on the merits of this issue again
rather than following the normal course, or option, of
remanding this case to the Court of Appeals for consideration
in light of this Court’s decision in MUCC. For the reasons
that follow, I would do neither.
Rather than affirm the trial court’s decision in this
case, I would dismiss because this case has become moot. When
intervening changes in a case’s factual circumstances make it
impossible for a court to fashion a remedy, the case has
become moot and should be dismissed. See UAW v Governor, 388
Mich 578, 582; 202 NW2d 290 (1972); see also Crawford Co v
Secretary of State, 160 Mich App 88, 93; 408 NW2d 112 (1987).
The changes in the factual circumstances of this case prevent
this Court from being able to grant defendants Community
Coalition for Empowerment and Ernest Johnson the relief they
seek, so this case should be dismissed. Therefore, I
respectfully dissent from the majority’s decision to affirm
the trial court.
I
This case arises from the implementation of casino
gambling in the city of Detroit. A detailed understanding of
the facts illustrates that this case has become moot.
By adopting Proposal E in 1996, voters decided to allow
licensed casino gambling in Detroit. Plaintiff MGM Grand was
subsequently chosen as one of the developers to conduct casino
gambling, and plaintiff then selected a site in an existing
building to establish a temporary casino facility. Next, the
Detroit City Council adopted ordinance 24-98, which changed
2
the zoning at the site from commercial to planned development,
which would allow plaintiff to use the site for its temporary
casino.
Defendants sought to refer ordinance 24-98. In accord
with the referendum power reserved in the Detroit City
Charter, art 12, § 101, defendants conducted a petition drive
and submitted a sufficient number of valid signatures to the
third-party defendant Detroit City Clerk, who certified the
referendum petition in September 1998. Instead of subjecting
ordinance 24-98 to popular adoption or rejection through a
referendum election, however, the Detroit City Council
repealed the ordinance, a power provided to the council by
Detroit City Charter, art 12, § 107.
At the same session when the Council repealed ordinance
24-98, it adopted ordinance 35-98. Like ordinance 24-98, the
new ordinance rezoned plaintiff’s site to allow plaintiff to
use the site for a temporary casino, but the new ordinance
additionally “appropriated [$333,333.34] to the temporary
casino site support and infrastructure improvement
appropriation . . . .”
Defendants conducted another petition drive, seeking to
refer ordinance 35-98. They again submitted a sufficient
number of valid signatures to the Detroit City Clerk, but she
informed them that the petition did not meet the legal
requirements for certification because ordinance 35-98 was an
appropriations measure, exempt from referendum. The city
3
clerk, therefore, did not certify the referendum petition.1
On the same day that the city clerk denied certification,
this litigation began. Plaintiff MGM Grand filed a complaint
seeking a declaration that defendants’ petition was without
legal effect. Several days later, defendants filed a third
party complaint against the Detroit City Clerk and the Detroit
City Council, as well as a counterclaim against plaintiff.
The counterclaim sought a temporary injunction against
plaintiff,2 and the third-party complaint sought declaratory
relief and mandamus ordering the city clerk to certify the
petition. After briefing and argument on cross-motions for
summary disposition, the trial court issued a written opinion
in January 1999, “finding that ordinance 35-98 is not subject
to referendum under the City Charter of Detroit” because it
was an ordinance for the appropriation of money, exempt from
referendum under Detroit City Charter, art 12, § 101. The
trial court granted plaintiff’s motion, granted the third
party defendants’ motion against defendant, and denied
defendant’s motion. Later that month, defendants claimed an
appeal with the Court of Appeals. They did not assert any
claim for a temporary injunction and did not move to stay the
trial court’s decision. Before the Court of Appeals reached
1
The city clerk cited a problem with the petition’s
description of ordinance 35-98, required by Detroit City
Charter, art 12, § 102, as an additional reason for denying
certification. The validity of the description, and the city
clerk’s decision, however, are not before this Court.
2
Plaintiff points out that the defendant mentioned the
temporary injunction in the counterclaim, but did not pursue
it before the trial court.
4
a decision, this Court took jurisdiction over the case. 464
Mich 855 (2001).
With its trial court victory, plaintiff pressed on with
its plans for a temporary casino. Plaintiff renovated its
chosen building and opened the temporary casino in July 1999.
The temporary casino is approximately 75,000 square feet,
contains various games including approximately 2,500 slot
machines, and takes in over $1 million a day. Also, plaintiff
constructed a nine-deck parking structure, which opened in
December 1999, adjacent to the temporary casino.
II
Defendants request this Court to reverse the trial
court’s decision and compel the city of Detroit to schedule a
referendum election on ordinance 35-98 so the voters of
Detroit can reject the ordinance. However, such a remedy
would be impossible. With plaintiff having completed its
temporary casino, even if there were a referendum on ordinance
35-98, and even if the voters of Detroit were to reject the
ordinance, plaintiff’s temporary casino would be a prior
nonconforming use that could remain despite any zoning change.
Because a referendum could not change the zoning at
plaintiff’s temporary casino, the remedy defendants request is
moot, and this case should be dismissed.
In Heath Twp v Sall, 442 Mich 434; 502 NW2d 627 (1993),
this Court discussed prior nonconforming uses when zoning
changes were effected by referendum. There, the defendants
purchased land intending to build a mobile home park. The
township rezoned the land to accommodate the defendants’
5
intent, but township residents brought a referendum and voted
to return the land to its original zoning, under which the
mobile home park was not allowed. Before the referendum
returned the land to its original zoning classification,
though, the defendants had taken steps toward constructing the
mobile home park. This Court had to decide whether the steps
the defendants had taken were sufficient to establish a prior
nonconforming use, which requires that the property owner must
have, at the least, engaged in work of a substantial character
done in preparation for an actual use of the premises. See
id. at 436-439. Elaborating, we quoted from our decision in
Gackler Land Co, Inc v Yankee Springs Twp, 427 Mich 562, 574
575; 398 NW2d 393 (1986):
The actual use which is nonconforming must be
apparent and manifested by a tangible change in the
land, as opposed to intended or contemplated by the
property owner. In this regard, preliminary
operation such as ordering plans, surveying the
land, and the removal of old buildings are
insufficient to establish a nonconforming use. The
test in each case is not whether a little or a lot
has been spent in reliance upon the past zoning
classifications, but, rather, whether there has
been any tangible change in the land itself by
excavation and construction. [Heath Twp, supra at
440 (citations and internal quotations omitted).]
If plaintiff MGM Grand’s activities at the temporary casino
site pass this test, even if there were a referendum and
zoning change, the zoning at plaintiff’s temporary casino
could not be changed.
Plaintiff’s temporary casino would be a prior
nonconforming use because its operations go well beyond the
preliminary requirements identified in our case law. Here,
plaintiff has completely refurbished its building to serve as
6
a casino, and has constructed a large new parking deck next to
the refurbished building. This certainly amounts to a
tangible change in the land. In addition, though, the
analysis from Heath Twp was directed at an incomplete
development that was alleged to be sufficient to comprise a
nonconforming use, and considered only construction toward the
development that occurred before the zoning was restricted.
In this case, we have a completed business that has been
operating for nearly two years. Thus, plaintiff’s temporary
casino would certainly be a lawful and existing use, see MCL
125.216(1), insulated from any subsequent zoning changes.
Defendant’s failure to move to stay the trial court’s
decision, or to pursue a temporary injunction, and the
resulting establishment of plaintiff’s temporary casino are
intervening changes in the facts of this case that make
defendant’s requested relief moot. As mentioned above, even
if there were a referendum election on ordinance 35-98, and
even if the voters of Detroit rejected the zoning of
plaintiff’s temporary casino site adopted by that ordinance,
the zoning at the temporary casino site would remain because
plaintiff would have established a nonconforming use that
cannot be altered by a subsequent zoning change. See UAW v
Governor at 582; Crawford Co at 93. Hence, there is nothing
for us to grant for defendants. Absent a possible remedy,
this case has become moot. When a case is moot, rather than
affirm the substance of the lower court’s decision, the proper
resolution is dismissal. I, therefore, disagree with the
majority decision to affirm the trial court’s judgment in
7
favor of plaintiff. Additionally, I point out that, in
addressing mootness, the majority relies on federal decisions,
which, with a justiciability question like mootness, do not
necessarily apply. See ASARCO, Inc v Kadish, 490 US 605, 617;
109 S Ct 2037; 104 L Ed 2d 696 (1989).
III
For the reasons stated, this case is moot and should be
dismissed. I respectfully dissent from the majority decision
to affirm the lower court.
KELLY , J., concurred with CAVANAGH , J.
8
S T A T E O F M I C H I G A N
SUPREME COURT
MGM GRAND DETROIT, L.L.C.,
Plaintiff-Appellee,
v No. 119309
COMMUNITY COALITION FOR EMPOWERMENT
INC., and ERNEST JOHNSON,
Defendant-Appellants,
v
JACKIE L. CURRIE, in her capacity as
CITY CLERK FOR THE CITY OF DETROIT and
DETROIT CITY COUNCIL,
Third-Party Defendants-Appellees.
____________________________________________________________
WEAVER, J. (dissenting).
I respectfully dissent from the majority’s decision
affirming the circuit court’s judgment granting MGM’s motion
for summary disposition because I believe that leave was
precipitately granted in this matter. I would dismiss our
jurisdiction over this case and remand to the Court of Appeals
for continuation of the proceedings there.
On May 24, 2001 this Court, on its own motion, took
jurisdiction as on leave granted before decision by the Court
of Appeals.3 It did so saying “[i]t appears that the issues
raised regarding whether an ordinance is subject to referendum
3
The Court of Appeals had already had oral argument on
this case, but had not yet issued an opinion.
are sufficiently related to the issues raised in Michigan
United Conservation Clubs v Secretary of State, Supreme Court
Docket No. 119274, that the cases should be considered
together.” (Docket No. 119309.) The Court released its
opinion in Michigan United Conservation Clubs v Secretary of
State, 464 Mich 359; ___ NW2d ___ (2001). Obviously they are
no longer being considered together.
The Court believed that consideration of the two cases
would afford a better perspective on the issues that they
appeared to have in common. However, after oral arguments, it
became apparent that leave was improvidently granted in this
case. The issues in this case were too dissimilar to be
considered with Michigan United Conservation Clubs. While
art 2, § 9 of the 1963 Michigan Constitution states that
“[t]he power of referendum does not extend to acts making
appropriations for state institutions or to meet deficiencies
in state funds,” § 12-101 of the Detroit City Charter provides
in pertinent part:
The voters of the city reserve the power to
enact city ordinances, called the “initiative,” and
the power to nullify ordinances, enacted by the
city, called the “referendum.” However, these
powers do not extend to the budget or any ordinance
for the appropriation of money; the referendum
power does not extend to any emergency ordinance.
[Emphasis added.]
Additionally, in this case there is also the underlying issue
whether the ordinance in fact contains an appropriation.
Appellants assert that the ordinance does not incur any
obligation as required by the definition of appropriation
under the Uniform Budgeting and Accounting Act, that the funds
2
paid to the city by MGM are not “public funds,” and that the
ordinance merely authorizes an appropriation, but is not
itself an appropriation.
I believe that we should remand this case to the Court
of Appeals for a decision on all the issues in light of our
recent opinion in Michigan United Conservation Clubs, rather
than issue an opinion on certain issues4 and remand the
remainder of the case.
4
In the grant order, this Court limited the appeal “to
the issues concerning whether City of Detroit ordinance 35-98
is exempt from the referendum provision of the City Charter
because it is an ordinance for the appropriation of money.”
3
Mgm Grand Detroit, LLC v. Community Coalition for Empowerment, Inc
Court: Michigan Supreme Court
Date filed: 2001-07-30
Citations: 633 N.W.2d 357, 465 Mich. 303
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