Department of Transportation v. Dibdetroit LLC

Opinion

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,

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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

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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.

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__________________________________________/ 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

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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

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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,

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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.

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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 seventeenthcentury 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 farreaching 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