Laura Baird v. Gale A. Norton, in Her Official Capacity as Secretary of the Interior, and United States Department of the Interior

266 F.3d 408, 32 Envtl. L. Rep. (Envtl. Law Inst.) 20099, 2001 U.S. App. LEXIS 20408, 2001 WL 1078867

• Court: Court of Appeals for the Sixth Circuit
• Decided: September 14, 2001
• Docket: 99-1822
• Status: Published

Opinions

MOORE, J., delivered the opinion of the court, in which CLAY, J., joined. RICE, District Judge, (pp. 413-17), delivered a separate opinion concurring in the judgment.

OPINION

MOORE, Circuit Judge.

Michigan state legislators Laura Baird and Gary Peters challenge former Interior Secretary Bruce Babbitt’s approval of gaming compacts between the State of Michigan and four Indian tribes. Baird, a member of the Michigan House of Representatives, and Peters, a Michigan state senator, brought suit seeking a declaration that the gaming compacts are invalid and an order directing the secretary to disapprove them.¹ Baird and Peters argue that the compacts approved by Babbitt were never properly entered into by the State of Michigan because the state legislature followed unconstitutional procedures in considering them. Thus, they argue, Secretary Babbitt could not properly approve the compacts under the Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C. et seq. On May 21, 1999, the district court granted the secretary’s motion to dismiss, pursuant to Fed.R.Civ.P. 12(b)(1) and (6). In granting the secretary’s motion to dismiss, the district court concluded that Peters did not have Article III standing, as a state legislator, but that Baird did. With respect to Baird, the district court concluded that IGRA did not include an implied right of action, that Baird was not in the zone of interests protected by IGRA, and thus that Baird did not have standing to challenge the secretary’s action under the Administrative Procedure Act, 5 U.S.C. § 702. Because we conclude that neither Baird nor Peters has Article III standing, we AFFIRM the district court’s granting of the secretary’s motion to dismiss.

I. BACKGROUND

Baird and Peters contend that the Michigan state legislature did not follow procedures required by the state constitution for approval of the gaming compacts at issue. Rather than approve the compacts by legislation, which requires that a majority of the members of both the state house of representatives and state senate vote in favor of the measure, see Mich. Const, art. IV, § 26, the state legislature approved the compacts by concurrent resolution — in this case, by Concurrent Resolution (“CR”) 115. Passage of a concurrent resolution, however, requires only a majority of votes cast rather than a majority of all members’ votes. Thus, the Michigan House of Representatives, comprised of 110 members, approved the gaming compacts by a vote of forty-eight to forty-seven, with Baird voting in the minority. Although this vote margin would have been insufficient to enact legislation, it was sufficient to pass CR 115. In the Michigan Senate, which has thirty-eight members, CR 115 passed by a vote of twenty-one to seventeen, with Peters in the minority. The Senate vote on the concurrent resolution, then, would have been sufficient to pass legislation approving the compacts.

After passage of CR 115, the gaming compacts were subsequently considered approved when Secretary Babbitt failed to approve or reject them within 45 days. See 25 U.S.C. § 2710(d)(8)(C). The compacts were then published in the Federal Register and became effective under 25 U.S.C. § 2710(d)(3)(B).

II. ANALYSIS

The threshold issue in this case is whether Baird and Peters have standing to sue based on their status as state legislators aggrieved by the state legislature’s use of allegedly unconstitutional procedures. The district court found that Baird has standing but that Peters does not. Peters argues in this appeal that the district court erred in reaching this conclusion, but, for the reasons given below, the district court’s conclusion regarding Peters was correct. In this appeal, Baird asserts that the district court properly found that she has standing because of her status as a state legislator, and the appellees have not disputed Baird’s Article III standing. This court, however, is “under an independent obligation to examine” its own jurisdiction, and “standing ‘is perhaps the most important of [the jurisdictional] doctrines.’” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (quoting Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)) (alteration in FW/ PBS). Because we conclude that Baird, too, lacks Article III standing to sue, we do not have jurisdiction to consider the other issues raised in this appeal.

Baird and Peters argue that they suffered two different injuries as a result of the secretary’s failure to reject the compacts at issue. First, Baird and Peters argue that they have been injured by being deprived of the procedural safeguards required by the Michigan Constitution for the passage of legislation, such as the reading of proposed legislation three times and the requirement that the legislation be in the possession of both houses at least five days before any vote. See Mich. Const.1963, art. IV, § 26. The district court correctly rejected these claimed injuries as insufficient to give the appellants standing in the present case. These constitutional measures are clearly designed to “preclude last-minute, hasty legislation and to provide notice to the public of legislation under consideration,” Anderson v. Oakland County Clerk, 419 Mich. 313, 353 N.W.2d 448, 455 (Mich.1984), and not to protect individual state legislators. Because of this denial of procedural safeguards, then, Baird and Peters have, at most, a generalized grievance shared by all Michigan residents alike. Such a grievance does not give them standing to sue. See Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 220, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974) (“[Standing to sue may not be predicated upon an interest ... which is held in common by all members of the public, because of the necessarily abstract nature of the injury all citizens share.”).

Second, Baird and Peters argue that their votes were nullified by the state legislature’s use of improper procedures in enacting the gaming compacts. Under certain circumstances, vote nullification may give legislators standing to challenge improper procedures. See Raines v. Byrd, 521 U.S. 811, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997); Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939). But Baird and Peters have not suffered a vote-nullification injury sufficient to give them standing in the present case.

The leading case on legislator standing based on vote nullification is Coleman v. Miller. In Coleman, the Supreme Court held that a group of Kansas state senators had standing to sue when they claimed that their votes had been effectively nullified by the state legislature’s use of an allegedly unconstitutional procedure. In voting on a proposed constitutional amendment, the forty-member Kansas State Senate had divided evenly, with twenty Kansas state senators voting for ratification and twenty against. The Kansas lieutenant governor then cast the tie-breaking vote in favor, and the amendment was treated as ratified as a result. See Coleman, 307 U.S. at 436, 59 S.Ct. 972. The Coleman plaintiffs, including the twenty state senators who had voted against ratifying the amendment, claimed that the lieutenant governor’s vote had been improper and unconstitutional and thus sought a writ of mandamus to compel state officials to recognize that the amendment had not been properly ratified. See id. The Supreme Court concluded that the Coleman plaintiffs had standing to challenge the procedure, based on the effective nullification of their votes, but held against them on the merits of their claim. See id. at 437, 456, 59 S.Ct. 972.

The Supreme Court recently clarified its holding in Coleman in Raines v. Byrd. Raines involved a challenge to the constitutionality of the Line Item Veto Act, Pub.L. No. 104-130, 110 Stat. 1200 (1996). Four senators and two House members brought the suit, claiming that the Act would reduce their voting effectiveness on future appropriations bills. See Raines, 521 U.S. at 814, 117 S.Ct. 2312. The Raines plaintiffs relied heavily on Coleman ’s suggestion that legislators have “a plain, direct, and adequate interest in maintaining the effectiveness of their votes.” Id. at 825, 117 S.Ct. 2312. The Raines Court rejected this broad reading of Coleman, however, holding that the legislators lacked standing because they had alleged no more than “the abstract dilution of institutional legislative power.” Id. at 826, 117 S.Ct. 2312. The Court distinguished the facts in Raines' from those in Coleman, stressing that the six Raines plaintiffs had not alleged “that they voted for a specific bill, that there were sufficient votes to pass the bill, and that the bill was nonetheless deemed defeated.” Id. at 824, 117 S.Ct. 2312. Instead, the Raines plaintiffs had simply voted against a bill, “their votes were given full effect” in that vote, but the bill was passed despite their nay votes. Id. In short, the Raines plaintiffs’ complaint was that they had lost a vote and believed that the resulting legislation was unconstitutional, but this was not a sufficient injury to give them standing to sue based on nullification.

The state legislators in Coleman, in contrast, had alleged a vote-nullification injury sufficient to give them standing to sue because, had these state senators been “correct on the merits,” their votes would have been sufficient to defeat ratification. See Raines, 521 U.S. at 822-23, 117 S.Ct. 2312. In this context, the Raines Court emphasized that the twenty Kansas state senators in Coleman “were suing as a bloc.” Id. at 822, 117 S.Ct. 2312. The Raines Court’s summary of Coleman indicates that the aggregate nature of the state senators’ claim was essential to then’ standing: “[0]ur holding in Coleman stands (at most) for the proposition that legislators whose votes would have been sufficient to defeat ... a specific legislative Act have standing to sue if that legislative action goes into effect ..., on the ground that their votes have been completely nullified.” Id. at 823, 117 S.Ct. 2312 (internal cross reference omitted).

For legislators to have standing as legislators, then, they must possess votes sufficient to have either defeated or approved the measure at issue. The present case is thus distinguishable from Coleman. In Coleman, the twenty state senators who voted against the proposed constitutional amendment would have been “sufficient” to defeat the measure had the lieutenant governor not voted. Thus, through the use of this allegedly improper procedure, the votes of the twenty state senators seeking relief were completely nullified, i.e., “overridden and virtually held for naught.” Coleman, 307 U.S. at 438, 59 S.Ct. 972. In the present case, in contrast, the only member of the Michigan House of Representatives seeking relief is Baird. Baird claims vote nullification, but her vote alone would not have been sufficient to defeat either the concurrent resolution, which passed despite her “nay” vote, or legislation to similar effect. The Michigan Constitution may require a majority of all members’ votes for legislation to be approved, but it does not require unanimity. Cf. Raines, 521 U.S. at 823 n. 6, 117 S.Ct. 2312 (citing Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 544-45 n. 7, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986)). Thus, although Baird’s institutional power was diluted through the use of the continuing resolution procedure, she has not suffered an injury that satisfies the stringent requirements for legislator standing set out in Raines. Similarly, State Senator Peters’s vote was not nullified by the concurrent resolution procedure because the vote in the state senate satisfied the constitutional requirement of a majority of all members for the passage of legislation. Thus, Peters cannot argue that his vote was sufficient to defeat the passage of legislation having the same effect as CR 115.

Under Raines, however, if Baird’s lawsuit had been joined by other members of the Michigan House of Representatives whose total votes (and non-votes) would have been sufficient to defeat the necessary legislation, then this group of lawmakers, like the twenty state senators in Coleman, would have had standing as legislators based on vote nullification. If, for example, Baird had been joined by eight of the fifteen members of the Michigan House who did not vote when CR 115 was passed, then their non-votes, coupled with the forty-seven votes actually cast against CR 115, would have been sufficient to defeat the legislation that Baird claims is constitutionally required-i.e., eight of the non-votes, plus forty-seven “nay” votes, effectively equals fifty-five votes against the measure under the Michigan Constitution’s requirement that a majority of all votes is necessary to enact legislation.²

In sum, Baird’s complaint is not that the compacts themselves are unconstitutional. Instead, her complaint is that the compacts would have been defeated, had the constitutionally required procedures been followed, and thus her vote against the compacts was effectively nullified. Under Raines and Coleman, the issue is whether Baird can demonstrate that her vote was sufficient to defeat the compacts had the constitutionally required procedure been followed. Because Baird cannot do so, she lacks standing. Similarly, State Senator Peters lacks standing because he cannot show that his vote was sufficient to defeat the gaming compacts, had the proper procedure been followed.

III. CONCLUSION

Because we conclude that neither Baird nor Peters has Article III standing in the present case, we lack jurisdiction to address the other issues raised in this appeal. For the reasons given above, the district court’s dismissal of the present case is AFFIRMED.

1 . Janet Rochefort, Treasurer of Jackson County, Michigan, was also a plaintiff in this litigation. The district court dismissed her claims for lack of standing. Although Roche-fori was listed in the notice of appeal, the dismissal of her claims has not been argued by the appellants. Moreover, Rochefort lacks standing for the reasons given by the district court; she cannot establish an injury in fact because the gaming compacts in issue do not provide for casinos in Jackson County.

2 . This approach may appear counter-intuitive in its suggestion that non-votes can be effectively nullified through the use of improper procedures. In requiring a majority of all votes for the passage of legislation, however, the Michigan Constitution gives this effect to non-votes. Consider the following hypothetical. Counting noses, the proponents of a measure know that it is opposed by fifty-five of the 110 members of the Michigan House. Thus, they do not bring the measure to the floor as legislation but instead wait until the measure’s supporters make up a majority of those present. When that happens, the measure’s proponents bring it up as a concurrent resolution, even though the state constitution requires its passage by legislation, and it passes by a majority of votes cast. In this scenario, the non-votes have been effectively nullified, i.e., deprived of the effect that the Michigan Constitution grants them.