ATTORNEY GENERAL V POWERPICK PLAYER'S CLUB OF MICHIGAN LLC
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STATE OF MICHIGAN
COURT OF APPEALS
ATTORNEY GENERAL,
FOR PUBLICATION
January 5, 2010
Plaintiff-Appellant,
v
No. 283858
Kent Circuit Court
LC No. 06-011767-CP
POWERPICK PLAYERS’ CLUB OF
MICHIGAN, LLC, a/k/a POWERPICK,
Defendant-Appellee.
Advance Sheets Version
Before: Jansen, P.J., and Hoekstra and Markey, JJ.
HOEKSTRA, J. (concurring in part and dissenting in part).
I agree and join with the holdings of the majority in part II (C)(2) that PowerPick violates
MCL 432.27(1) by reselling lottery tickets at a price greater than that fixed by the Michigan
Lottery commissioner and part II (C)(3) that PowerPick violates MCL 750.372 because its
random drawings for Michigan scratch-off lottery tickets constitute an illegal lottery and that its
MegaPools constitute an illegal gift enterprise. I also agree and join with the holding of the
majority in part III that PowerPick’s affirmative defenses fail as a matter of law. In addition, I
agree that a remand is appropriate for consideration of the Attorney General’s Michigan
Consumer Protection Act, MCL 445.901 et seq., claims.
However, I respectfully disagree with the majority’s conclusion in part II (C)(1) that
PowerPick’s business practice of randomly assigning its customers to pools constitutes a second
bet because the customer is “buy[ing] the chance of being assigned to one or more winning
pools,” ante at 8 (emphasis in original), and this chance is one of the reasons why its customers
pay an amount that is 51 percent greater than the face value of the tickets purchased. On the
basis of its interpretation of PowerPick’s practice of assigning its customers to pools, the
majority holds that PowerPick receives bets contrary to MCL 750.301, registers bets contrary to
MCL 750.304, and possesses memoranda of bets contrary to MCL 750.306. In contrast,
although not disputing that it charges its customers 51 percent more than what it spends to
purchase lottery tickets, PowerPick maintains that it is merely providing a service to its
customers and that the amount greater than that used to purchase tickets represents its costs and
profits. In my opinion, whether the amount charged in addition to the cost of the purchased
lottery tickets is a reasonable amount to pay for PowerPick’s business expenses and profits, or in
part is a second bet that buys the customer a chance to be assigned to a winning pool, is a
disputed question of fact that cannot be resolved on a motion for summary disposition.
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Consequently, on this specific issue, I would affirm the trial court’s holding that factual issues
remain.
I also respectfully disagree with the holdings of the majority in parts II (C)(4) and (5) that
“PowerPick’s business operations, taken as a whole, constitute a public nuisance,” ante at 16,
and that “PowerPick’s office in Comstock Park and ‘the furniture, fixtures, and contents’ of that
office constitute a nuisance as a matter of law,” ante at 16. Because I believe that factual
questions exist concerning whether PowerPick’s business practice of assigning its customers into
pools violates the at provisions of the Michigan Penal Code at issue, any determination whether
PowerPick’s business operations and its office constitute a nuisance for such violations is
premature. Moreover, whether PowerPick’s violation of MCL 432.27(1) constitutes a public
nuisance and, if it does, whether the violation is subject to the sanctions provided for in MCL
600.3801 are questions of first impression. In Attorney General, ex rel Optometry Bd of
Examiners v Peterson, 381 Mich 445, 465; 164 NW2d 43 (1969), the Supreme Court noted that,
“[a]t common law, acts in violation of law constitute a public nuisance” and the Attorney
General may sue to enjoin such nuisances. Therefore, although no court has addressed the issue,
it is arguable that PowerPick’s violation of MCL 432.27(1) renders its business a public
nuisance. However, the Peterson Court qualified its holding by noting that “[h]arm to the public
is presumed to flow from the violation of a valid statute enacted to preserve public health, safety
and welfare.” Id. at 465. Numerous cases hold that the criminal gambling statutes, such as MCL
750.301, MCL 750.304, and 750.306, were enacted to preserve public health, safety, and
welfare. See, e.g., Parkes v Recorder’s Court Judge, 236 Mich 460, 465-466; 210 NW 492
(1926); Oakland Co Prosecutor v 46th Dist Judge, 76 Mich App 318, 326; 256 NW2d 776
(1977). But whether MCL 432.27(1) was enacted to preserve public health, safety, and welfare
is not a settled question. Because the Attorney General only argued below that a violation of
MCL 432.27(1) provided an additional reason for concluding that PowerPick’s operation was a
public nuisance, the issue whether MCL 432.27(1) was enacted to preserve public health, safety,
and welfare was not raised in the trial court, nor was it briefed on appeal. Under these
circumstances, I would remand to the trial court for initial consideration of whether a violation of
MCL 432.27(1) constitutes a public nuisance and, if so, whether, and to what extent, the
violation is subject to the sanctions of MCL 600.3801.
Finally, I agree with the holding of the majority in part II (C)(5) that PowerPick’s
drawings for scratch-off lottery tickets are “gambling” and, therefore, PowerPick can be
sanctioned under MCL 600.3801. However, unlike the majority, I would also remand to the trial
court for a determination of what, if any, assets are subject to the sanction provided by MCL
600.3801 for this particular violation.
/s/ Joel P. Hoekstra
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