TAXPAYERS OF MICHIGAN V STATE OF MICHIGANAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
September 22, 2005
TAXPAYERS OF MICHIGAN AGAINST
CASINOS and LAURA BAIRD, State
Representative in her official capacity,
Ingham Circuit Court
LC No. 99-090195-CZ
THE STATE OF MICHIGAN,
GAMING ENTERTAINMENT, LLC, and LITTLE
TRAVERSE BAY BANDS OF ODAWA
Official Reported Version
NORTH AMERICAN SPORTS MANAGEMENT
Before: Owens, P.J., and Schuette and Borrello, JJ.
The issue presented to this Court on remand from our Supreme Court's decision in
Taxpayers of Michigan Against Casinos v Michigan, 471 Mich 306, 333; 685 NW2d 221 (2004)
(Taxpayers), is whether the amendatory provision in the tribal-state gambling compacts
purporting to empower the Governor to amend the compacts without legislative approval violates
the separation of powers doctrine found in the Separation of Powers Clause in Const 1963, art 3,
§ 2. As will be thoroughly discussed, we hold that the Separation of Powers Clause in Const
1963, art 3, § 2 was violated in this instance. We affirm the decision of the circuit court on this
I. PROCEDURAL HISTORY
A. Legislative Action
The legal issues confronting this Court and the Supreme Court stem from the expansion
of casino gambling in the state of Michigan.
In January 1997, Governor John Engler, on behalf of the state of Michigan, signed
gambling compacts with four Indian tribes1 permitting class III gambling activities pursuant to
the Indian Gaming Regulatory Act (IGRA), 25 USC 2701 et seq. These compacts were modified
and reexecuted in December 1998. The Michigan Legislature approved these gambling
compacts by passage of House Concurrent Resolution (HCR) 115.
The House of
Representatives approved HCR 115 by a resolution vote of 48 to 47, while the Michigan Senate
passed HCR 115 by a resolution vote of 21 to 17. The passage of these compacts by resolution,
instead of by bill, ironically had significance in 1998 and, as will be discussed, retains
significance now. As acknowledged by our Supreme Court in Taxpayers, 471 Mich at 316 n 4, a
bill must be passed by a majority of the representatives elected to and serving in each house of
the Legislature.2 However, passage of a resolution merely requires a simple majority of the
members present and voting as long as a quorum is present.3
B. Circuit Court Action
The validity of the approval of these gambling compacts, by resolution rather than
statute, spawned several lawsuits: two in federal court and this action originally brought in the
Ingham Circuit Court. The Sault Ste. Marie Tribe of Lake Superior sued in federal court to
enjoin the operation of the new casinos, but the United States Court of Appeals for the Sixth
Circuit dismissed that suit on the grounds of lack of standing. Sault Ste Marie Tribe of
Chippewa Indians v United States, 288 F3d 910 (CA 6, 2002). Two state legislators also
challenged the approval by the Secretary of Interior of Michigan's 1998 compacts, but that suit
also was dismissed on the grounds of lack of standing by the Sixth Circuit. Baird v Norton, 266
F3d 408 (CA 6, 2001).
These tribes are the Little Traverse Bay Bands of Odawa Indians, the Pokagon Band of Ottawa
Indians, the Little River Band of Ottawa Indians, and the Nottawaseppi Huron Potawatomi.
The Michigan Legislature is composed of 110 members of the House of Representatives; 56
votes are required at a minimum for passage of a statute. The Michigan Senate is composed of
38 members; 20 votes are required at a minimum for passage of a statute.
Under the rules of the Michigan House of Representatives, a majority of the members of the
House of Representatives must be present to constitute a quorum.
Plaintiffs sought a declaratory judgment that the method of approval of the gambling
compacts violated various provisions of the Michigan Constitution. Plaintiffs argued that
legislative approval of the compacts by resolution violated Const 1963, art 4, § 22, which
requires adoption of legislation by bill rather than mere resolution. Additionally, plaintiffs
complained that the compacts violated Const 1963, art 4, § 29, the Local Acts Clause. Finally,
plaintiffs alleged that the provision within the gambling compacts that permitted the Governor to
amend a compact without legislative approval violated Const 1963, art 3, § 2, the Separation of
Powers Clause, which is the very matter before this Court.
The trial court ruled in favor of plaintiffs in two instances, determining that the gambling
compacts should have been approved by bill instead of by resolution and that the amendatory
provision in the compacts ran afoul of the doctrine of separation of powers. The trial court
determined that the approval of the gambling compacts did not violate the Local Acts Clause of
Const 1963, art 4, § 29.
C. Court of Appeals Decision
A panel of this Court in Taxpayers of Michigan Against Casinos v Michigan, 254 Mich
App 23, 43-49; 657 NW2d 503 (2002), reversed the trial court's determination that passage of the
compacts by resolution did not conform to the Michigan Constitution, affirmed the trial court's
reasoning with respect to the Local Acts Clause, and declared that the issue of the amendatory
provision within each of the four compacts, which at that time had not been exercised by the
Governor, was not ripe for judicial review.
D. Supreme Court Decision
Upon review, five justices of our Supreme Court held that legislative approval of the
gambling compacts by mere resolution did not violate the Michigan Constitution, likening the
tribal-state gambling compacts to a contract as distinguished from more traditional legislative or
statutory actions of the Michigan Legislature. Taxpayers, 471 Mich at 327-328, 352. All seven
justices of our Supreme Court also determined that there was no violation of the Local Acts
Clause, Const 1963, art 4, § 29.4
In July 2003, and before the Supreme Court's ruling, Governor Jennifer Granholm
exercised the amendatory provision contained within an individual compact negotiated between
the state of Michigan and the Little Traverse Bay Bands of Odawa Indians. Chief Justice
Justices Taylor and Young concurred in Chief Justice Corrigan's analysis concerning Const
1963, art 4, § 22 (constitutionality of approval by resolution, not by bill) and in her determination
that Const 1963, art 4, § 29, the Local Acts Clause, was not violated by passage of HCR 115.
Justice Cavanagh, while concurring only in part IV of Chief Justice Corrigan's lead opinion,
joined Justice Kelly's concurring opinion concluding that no violation of Const 1963, art 4, § 22
or 29 occurred. Justice Markman concurred with part VI of Chief Justice Corrigan's lead opinion
concerning Const 1963, art 4, § 29, and Justice Weaver also concurred with the holding of no
violation of Const 1963, art 4 § 29.
Corrigan, in her lead opinion, acknowledged this fact and stated that "the amendment provision
in the compact may now be ripe for review . . . ." Taxpayers, 471 Mich at 313. Again, five
justices of our Supreme Court concluded that the separation of powers issue alleged by plaintiffs
was now ripe for review, but in the absence of an appellate court ruling on this precise issue, a
remand to this Court was appropriate.
Justices Taylor and Young joined Chief Justice Corrigan in her lead opinion, in which
she stated that "we remand this issue to the Court of Appeals to consider whether the provision in
the compacts purporting to empower the Governor to amend the compacts without legislative
approval violates the separation of powers doctrine found in Const 1963, art 3, § 2." Id. at 333.
Justice Markman, in his dissent, determined that that the amendment by the Governor
made the issue "ripe." Id. at 362. Justice Markman further stated that "the amendatory provision
contained in each compact violates the separation of powers doctrine and is, thus, void insofar as
it may be regarded as granting sole amendatory power over legislation to the Governor." Id. at
407. Justice Weaver did not address the ripeness issue or the separation of powers issue now
before this Court, declining on the basis of her determination that the gambling compacts were
violative of Const 1963, art 4, § 22. Taxpayers, 471 Mich at 354.
E. Procedures of the Court of Appeals on Remand
In October 2004, Judges Borrello and Schuette were randomly selected to replace retired
Judges Hood and Holbrook, who were panelists on this Court's earlier decision in this case. In
November 2004, this Court issued an order in this case, which, among other things, allowed the
parties to file briefs addressing
(1) whether the provision in the tribal-state gaming compact of the Little Traverse
Bay Band [sic] of Odawa Indians, purporting to allow the governor to amend the
compact without legislative approval, violates the separation of powers clause,
Const 1963, art 3, § 2, (2) assuming that the amendment provision in the compact
is constitutional, whether any aspect of the exercise of the power to amend
violated the separation of powers clause, Const 1963, art 3, § 2, and (3) what
effect will there be on the amendment as a whole if an aspect of the amendment
violates the separation of powers clause.
Judge Schuette acknowledges that, for clarity's sake, the order should have included a fourth
item that would have requested the parties to discuss what effect will there be on the compact as
a whole if an aspect of the amendment violates the separation of powers clause. However, given
the thoroughness of the analyses submitted by all parties and amici curiae, and that the
constitutional questions presented and determined have been fully and completely examined, the
omission is not significant.
A second order, dismissing a motion to disqualify Judge Schuette, was entered on
November 24, 2004. No appeal was filed challenging Judge Schuette's order dismissing the
motion to disqualify.
II. THE 1998 COMPACTS
The gambling compacts negotiated in 1998 between Governor Engler on behalf of the
state of Michigan and the four Indian tribes contained identical provisions, except that the
geographic scope of gambling activity permitted within the state of Michigan varied among the
Of significance to the case at bar are the following sections contained in each of the four
gambling compacts. Section 12(E) provides:
In the event that any section or provision of this Compact is disapproved
by the Secretary of the Interior of the United States or is held invalid by any court
of competent jurisdiction, it is the intent of the parties that the remaining sections
or provisions of this Compact, and any amendments thereto, shall continue in full
force and effect. This severability provision does not apply to Sections 17 and 18
of this Compact.
Section 16 of the gambling compacts outlines the methodology for amending a compact.
This section provides in part:
This Compact may be amended by mutual agreement between the Tribe
and the State as follows:
(A) The Tribe or the State may propose amendments to the Compact by
providing the other party with written notice of the proposed amendment as
(i) The Tribe shall propose amendments pursuant to the notice provisions
of this Compact by submitting the proposed amendments to the Governor who
shall act for the State.
(ii) The State, acting through the Governor, shall propose amendments by
submitting the proposed amendments to the Tribe pursuant to the notice
provisions of this Compact.
* * *
(C) Any amendment agreed to between the parties shall be submitted to
the Secretary of the Interior for approval pursuant to the provisions of the IGRA.
(D) Upon the effective date of the amendment, a certified copy shall be
filed by the Governor with the Michigan Secretary of State and a copy shall be
transmitted to each house of the Michigan Legislature and the Michigan Attorney
Sections 17 and 18 of each gambling compact detail the financial transactions between
the state of Michigan and a tribe, describe how payments are made from a tribe to the Michigan
Strategic Fund, describe how funds flow to local units of government, describe how such
payments are calculated, and indicate that such payments will be made only if nontribal
gambling is restricted to the three licenses in the city of Detroit pursuant to MCL 432.201 et seq.
III. 2003 AMENDMENTS
On July 14, 2003, Governor Granholm, on behalf of the state of Michigan, exercised the
amendatory provision in §16 of the 1998 gambling compact between the state of Michigan and
the Little Traverse Bay Bands of Odawa Indians. Several changes were made to the original
agreement. The preamble clause to these amendments indicated that any changes were in
accordance with §16 of the 1998 gambling compact. Also noteworthy in the preamble was the
specific inclusion of a statement that "[a]ll provisions of the Compact not explicitly added or
amended herein shall remain in full force and effect." The 2003 amendments of greatest
significance are summarized as follows:
(1) The amendment to § 2(8)(1) grants the Little Traverse Bay Bands of Odawa Indians
the right to operate a second casino.
(2) For purposes of this second casino, the amendment to § 4(I) changes the age of legal
gambling from 18 to 21.
(3) Added § 4(O) requires the tribe to send reports of customer winnings to the state;
previously such reports were sent only to the federal government as a requirement of federal law.
(4) The amendments to § 12(A) and (B) make the compact binding on the state and the
tribe for 25 years from the effective date of the amendments, instead of it being binding for 20
years from the effective date of the compact, and make a corresponding change to a notice
(5) The original compact required the tribe to pay the state a percentage of the "net win"
as long as there was no change in state law permitting the operation of electronic games of
chance or commercial casino games and no other person (except another tribe or a person
operating in the city of Detroit under MCL 432.201 et seq.) lawfully operated such games. The
amendments to § 17(B) provide:
(a) that this includes the expansion of lottery games,
(b) that payments from the first casino (the Petoskey Site) will continue after the second
casino has operated for 24 months despite changes in state law that expand permitted gaming as
long as the change does not occur in ten specified northern Michigan counties, and
(c) that payments from the second casino will be made despite such a change in the law
as long as the expansion does not operate in the designated counties.
(6) Instead of paying eight percent of the "net win" from all class III electronic games of
chance at the Petoskey Site to the Michigan Strategic Fund or its successor as determined by
state law, the tribe must pay this eight percent to "the State, as directed by the Governor or
designee." For the second casino, the tribe must pay ten percent of all such earnings up to $50
million and 12 percent of all such earnings over $50 million to "the State, as directed by the
Governor or designee" See amendment to § 17(C). However, the payments could cease or
diminish if another tribe opens a casino in the designated counties without the compacting tribe's
consent. See added § 17(E).
IV. STANDARD OF REVIEW
This Court reviews de novo constitutional issues. Armstrong v Ypsilanti Charter Twp,
248 Mich App 573, 582; 640 NW2d 321 (2001). The party asserting a constitutional challenge
has the burden of proof. McDonald v Grand Traverse Co Election Comm, 255 Mich App 674,
680; 662 NW2d 804 (2003).
The closely related core issues presented to this Court on remand are (1) whether the
provision in the gambling compact between the state of Michigan and the Little Traverse Bay
Bands of Odawa Indians, which provides for amendment by the Governor without legislative
approval, violates Const 1963, art 3, § 2 and (2) whether the exercise of the amendatory
provision in the gambling compact between the state of Michigan and the Little Traverse Bay
Bands of Odawa Indians, by the Governor without legislative approval, violated Const 1963, art
3, § 2.
We hold that the provision in the gambling compact between the state of Michigan and
the Little Traverse Bay Bands of Odawa Indians that provides for amendment by the Governor
without legislative approval violates Const 1963, art 3, § 2. Further, we hold that the exercise by
the Governor without legislative approval of the amendatory provision in the gambling compact
between the state of Michigan and the Little Traverse Bay Bands of Odawa Indians violated
Const 1963, art 3, § 2.6 The provision contained in the compact (and in the additional three
compacts described in footnote 6 of this opinion) is void insofar as it grants amendatory power
solely to the Governor without legislative approval.
Although the lines separating the three branches of state government may converge from
time to time, they are distinct boundaries, not mirages. The Michigan Constitution outlines the
landscape of powers that separate the executive, legislative, and judicial branches of government.
"By separating the powers of government, the framers of the Michigan Constitution sought to
disperse governmental power and thereby to limit its exercise." Nat'l Wildlife Federation v
Cleveland Cliffs Iron Co, 471 Mich 608, 613; 684 NW2d 800 (2004).
As a corollary to our decision in this case, we also hold that the same provision in the three
other gambling compacts between the state of Michigan and the Pokagon Band of Ottawa
Indians, the Little River Band of Ottawa Indians, and the Nottawaseppi Huron Potawatomi
violates Const 1963, art 3, § 2.
The Governor's responsibility is to exercise the executive power, Const 1963, art 5, § 1,
including the power to suggest legislation, Const 1963, art 5, § 17. The responsibilities entrusted
to the executive branch of government are set forth in Const 1963, art 5, § 8:
Each principal department shall be under the supervision of the governor
unless otherwise provided by this constitution. The governor shall take care that
the laws be faithfully executed. He shall transact all necessary business with the
officers of government and may require information in writing from all executive
and administrative state officers, elective and appointive, upon any subject
relating to the duties of their respective offices.
The governor may initiate court proceedings in the name of the state to
enforce compliance with any constitutional or legislative mandate, or to restrain
violations of any constitutional or legislative power, duty or right by any officer,
department or agency of the state or any of its political subdivisions. This
authority shall not be construed to authorize court proceedings against the
Of significance in this constitutional provision is the specific, stated responsibility of the
Governor to faithfully execute laws. Conspicuously absent is any reference whatsoever granting
the executive branch any authority to assume any legislative role. While the Constitution
provides the Governor the right to suggest legislation, it neither confers nor implies any power
on the part of the Governor to invade, supersede, or assume powers conferred on the Legislature.
The powers of the legislative branch of government are set forth in Const 1963, art 4, § 1:
"The legislative power of the State of Michigan is vested in a senate and a house of
Const 1963, art 6, § 1 outlines the breadth of responsibility of the judicial branch of state
government. It states:
The judicial power of the state is vested exclusively in one court of justice
which shall be divided into one supreme court, one court of appeals, one trial
court of general jurisdiction known as the circuit court, one probate court, and
courts of limited jurisdiction that the legislature may establish by a two-thirds
vote of the members elected to and serving in each house.
These constitutional provisions establish the framework for our analysis. Further, Const
1963, art 3, § 2 provides the boundary lines of the branches of government and contains the
admonition that one branch of government shall not assume the responsibilities of another unless
the Constitution expressly so provides.
The powers of government are divided into three branches: legislative,
executive and judicial. No person exercising powers of one branch shall exercise
powers properly belonging to another branch except as expressly provided in this
constitution. [Const 1963, art 3, § 2.]
The embodiment of the boundaries of the branches of government, known as the separation of
powers, was summarized by Justice Cooley in People ex rel Sutherland v Governor, 29 Mich
320, 324-325 (1874):
And that there is such a broad general principle seems to us very plain.
Our government is one whose powers have been carefully apportioned between
three distinct departments, which emanate alike from the people, have their
powers alike limited and defined by the constitution, are of equal dignity, and
within their respective spheres of action equally independent. . . . This division is
accepted as a necessity in all free governments, and the very apportionment of
power to one department is understood to be a prohibition of its exercise by either
of the others. [Emphasis added.]
The Little Traverse Bay Bands of Odawa Indians and the dissent argue that in approving
the compacts by resolution in 1998, the Legislature also approved any subsequent amendments,
albeit in advance. We reject this argument. The tribe also notes that the Legislature has
authorized other bodies in advance to make binding contracts, pointing specifically to the Social
Welfare Act, which authorizes the director of the Family Independence Agency, now the
Department of Human Services, to enter into agreements with federal, state or local units of
government or private agencies to participate in any plan that the director deems desirable for the
welfare of the people of the state. MCL 400.10(3).
However, unlike the authority for amendments to the compacts, the advance authority to
contract under the Social Welfare Act is provided by statute. Directly applicable to this case is
our Supreme Court's decision in Roxborough v Michigan Unemployment Compensation Comm,
309 Mich 505; 15 NW2d 724 (1944). In Roxborough, the issue presented was whether the
Governor had the ability to appoint members of the Unemployment Compensation Commission
Appeal Board and to fix their salaries as provided by an act of the Legislature. Our Supreme
In fixing plaintiff 's salary, the governor could exercise only such authority
as was delegated to him by legislative enactment. The rule is stated in 59 C.J. pp.
172, 173, § 286, as follows:
"Public officers have and can exercise only such powers as are conferred
on them by law, and a State is not bound by contracts made in its behalf by its
officers or agents without previous authority conferred by statute or the
Constitution." [Id. at 510.]
Further, the dissent's attempt to distinguish Roxborough is unpersuasive. The rule from
Roxborough is essentially that "[g]enerally, only persons authorized by the state constitution or a
statute can make a contract binding on a state . . . ." 72 Am Jur 2d, States, Territories, and
Dependencies, § 71, p 457. Here the delegation of authority to amend a gambling compact was
conferred by a resolution, a nonstatutory means. The nonstatutory nature of a resolution fails
the Roxborough requirement that a valid delegation of legislative authority to the executive
branch of government must be expressed in the Michigan Constitution or by means of a statute.
Moreover, in McCartney v Attorney General, 231 Mich App 722, 726-728; 587 NW2d
824 (1998), citing Tiger Stadium Fan Club, Inc v Governor, 217 Mich App 439; 553 NW2d 7
(1996), this Court expressed careful recognition that although the Governor had the authority to
negotiate and execute gambling compacts, the actions were subject to legislative approval. The
Court concluded that the Governor did not act ultra vires in negotiating the compacts, but clearly
stated that such gubernatorial authority was limited in nature:
We emphasize that the Governor has executive power, Const 1963, art 5, §
1, and the power to suggest legislation, Const 1963, art 5, § 17. We also
emphasize that there is no constitutional impediment to the Governor's
negotiating with an Indian tribe where the product of his negotiations has no
effect without legislative approval. [McCartney, supra at 729 (emphasis added).]
The expansion of tribal and nontribal gambling in Michigan and throughout the United
States engenders a wide range of opinions. Nevertheless, the rule of law in Michigan has been
enunciated in Taxpayers, in which our Supreme Court (as discussed in part I[D] of this opinion)
held that the Governor may contract with a tribe to establish the ground rules pertaining to casino
gambling. These ground rules, set forth in the contract, must be presented to the Legislature for
approval, at the very least by legislative resolution. Here, no party has identified any statutory or
constitutional authorization for the Governor to enter into compacts or amendments to compacts
that are not subject to legislative approval. Thus, while the Supreme Court in Taxpayers held
that the Governor could negotiate the gambling compacts subject to legislative approval by
resolution, we conclude that the Governor does not have unbridled authority to amend a
Absent a statutory delegation of authority by the Legislature to the Governor to amend a
gambling compact, and being mindful of the constitutional prohibition that forbids the executive
branch from assuming duties of the legislative branch unless expressly provided for in the
Michigan Constitution, any amendment to a gambling compact must be presented to the
Legislature for approval, at the very least by legislative resolution.7
The cases cited by Judge Borrello in his eloquent and well-reasoned dissent and referred
to by the state and the tribe in their briefs are not applicable and are not dispositive of the issues
before this Court. All the cases referenced by the parties have the embedded premise of a
statutory or constitutional delegation of authority to the Governor. There was no valid
We decline to decide the specific question whether, if in 1998 the Legislature had approved the
four gambling compacts by bill, in the form of a statute and not by a mere resolution, the
Legislature would have properly delegated to the Governor the power to amend a compact
without subsequent legislative approval. See also Justice Markman's view in his dissenting
opinion in Taxpayers, stating, "The legislature may not, either by resolution or by bill, delegate
to the executive branch a broad and undefined power to amend legislation." Taxpayers, supra at
471 Mich 407.
delegation of authority to amend gambling compacts in this case. Here, there was no statute or
constitutional provision that gave the Governor the authority to unilaterally amend the compacts.
This factor makes the cases on which the parties and the dissent rely readily distinguishable. In
Sutherland, the Governor was to issue a certificate when satisfied that a canal and harbor had
been constructed in a proper manner, a task that was assigned to the Governor by statute. The
plaintiff sought a writ of mandamus to compel the Governor to issue the certificate. The
Governor had refused, believing that the spirit of the law was undermined by the placement of
the canal and harbor on private property. In refusing to grant mandamus to compel the Governor
to issue the certificate, the Court stated:
The apportionment of power, authority and duty to the governor, is either
made by the people in the constitution, or by the Legislature in making laws under
it; and the courts, when the apportionment has been made, would be
presumptuous if they should assume to declare that a particular duty assigned to
the governor is not essentially executive, but is of such inferior grade and
importance as properly to pertain to some inferior office, and consequently, for
the purposes of their jurisdiction, the courts may treat it precisely as if an inferior
officer had been required to perform it. To do this would be not only to question
the wisdom of the constitution or the law, but also to assert a right to make the
governor the passive instrument of the judiciary in executing its mandates within
the sphere of his own duties. Were the courts to go so far, they would break away
from those checks and balances of government which were meant to be checks of
co-operation, and not of antagonism or mastery, and would concentrate in their
own hands something at least of the power which the people, either directly or by
the action of their representatives, decided to entrust to the other departments of
the government. [Sutherland, supra at 328-329.]
Here, unlike the executive power at issue in Sutherland, the power to amend the compacts was
not granted by the Constitution or by law. It was contained in a gambling compact that was
approved by the Legislature by means of a resolution, but not by means of a bill. While the
Court was loath to interfere with an executive power held by the Governor in Sutherland, an
essential element of this restraint was that the power had been properly given to the Governor.
Thus, Sutherland is only applicable if the amendment power was delegated properly by the
legislative branch to the executive branch. Sutherland does not say that every delegation of
authority is constitutional or even discuss the parameters of a lawful delegation of authority, but
merely addresses whether mandamus is appropriate to compel the Governor to act where
statutory authority to act was conferred.
Straus v Governor, 459 Mich 526; 592 NW2d 53 (1999), is similarly unhelpful to the
state and the tribe. Straus dealt with an executive order transferring duties from the State Board
of Education to the Superintendent of Public Instruction. The authority to take this action was
granted by Const 1963, art 5, § 2, which authorizes the Governor to "make changes in the
organization of the executive branch or in the assignment of functions among its units," subject
to legislative disapproval of an executive order by resolution. Thus, Straus addresses deference
to the Governor in the exercise of authority conferred by statute or by the Constitution.
The dissent cites Flint City Council v Michigan, 253 Mich App 378; 655 NW2d 604
(2002), in support of the contention that it is not the function of this Court to invalidate a
decision made by the Legislature after the Legislature elected to grant the Governor broad
amendment powers and validly did so. In Flint City Council, this Court held that because the
Legislature did not impose procedural requirements for the conduct of a hearing to be conducted
by the Governor or the Governor's designee under MCL 141.1215(2), it "inten[ded] to leave the
scope of review to the Governor's discretion." Flint City Council, supra at 391. However, Flint
City Council involved power conferred by statute, whereas here the Legislature never validly
conferred the power at issue to the Governor.
The state cites Judicial Attorneys Ass'n v Michigan, 459 Mich 291; 586 NW2d 894
(1998), for the proposition that there can be an overlapping of powers between the separate
branches of government. However, this presumes that the overlapping powers have been
properly delegated. In Judicial Attorneys, the Legislature, through statute, provided a new
employer for certain employees of the Wayne Circuit Court and the Recorder's Court. The
question was whether this action impinged on the power of the judiciary. It was recognized that
the judiciary's authority to manage the courts was constitutionally based:
That the management of the employees of the judicial branch falls within
the constitutional authority and responsibility of the judicial branch is well
established. The power of each branch of government within its separate sphere
necessarily includes managerial administrative authority to carry out its
operations. [Id. at 297.]
The Court noted that "the separation of powers doctrine does not require so strict a separation as
to provide no overlap of responsibilities and powers" and that "[i]f the grant of authority to one
branch is limited and specific and does not create encroachment or aggrandizement of one
branch at the expense of the other, a sharing of power may be constitutionally permissible." Id.
at 296-297. However, it held that the Legislature had overstepped the line and that the statute it
enacted had violated the separation of powers doctrine. Significantly, the judicial power being
discussed was a power that was conferred by the Constitution. Judicial Attorneys in no way
suggests that there can be an overlapping of powers where, as here, the power at issue was never
conferred by the Constitution or by statute.
We conclude that under the facts of this case, Const 1963, art 3, § 2 was violated. We
reinstate the decision of the circuit court relative to this issue. We decline to address plaintiffs'
Owens, P.J., concurred.
/s/ Bill Schuette
/s/ Donald S. Owens