Protect MI Constitution v. Secretary of State

824 N.W.2d 299, 297 Mich. App. 553
Michigan Court of Appeals·Decided August 14, 2012·No. Docket No. 311504·Published·Cited by 4 cases

Opinions

O’connell, J.

In this original action, plaintiff, Protect MI Constitution (PMC), seeks a writ of mandamus against defendant Secretary of State (the Secretary). PMC asks this Court to direct the Secretary to reject a ballot question petition for a constitutional amendment filed by intervening defendant Citizens for More Michigan Jobs (CFMMJ). We grant the requested relief.

I. INTRODUCTION

CFMMJ is a ballot question committee that collected more than 500,000 petition signatures for a constitutional amendment proposal to be placed on the November 2012 general election ballot. The CFMMJ proposal would amend art 4, § 41 of the Michigan Constitution and expand casino gaming throughout the state. The proposal would allow a fourth casino in Detroit and seven other casinos at specific locations. Additionally, the CFMMJ proposal addresses subjects related to casino gaming that are presently governed by the Michigan Gaming Control and Revenue Act (the Gaming Act), MCL 432.201 et seq., which was enacted by voter initiative in 1996. In some respects, the CFMMJ proposal directly contradicts provisions of the Gaming Act, and CFMMJ admits that its proposal would limit, suspend, or invalidate portions of the Gaming Act.

[557]*557PMC is a ballot question committee, representing existing casinos, that was formed to oppose the CFMMJ proposal and challenge its eligibility for the ballot. PMC claims that the proposal would amend the Gaming Act without following the constitutional procedures in Const 1963, art 2, § 9 for amending a voter-initiated law, or the constitutional procedures in Const 1963, art 4, §§ 24 and 25, requiring a title and republication of the statute to alter, revise, or amend an existing law. PMC also asserts that the CFMMJ petition impermissibly advances more than one purpose, and that its purpose is incapable of expression in 100 or fewer words.

PMC seeks a writ of mandamus from this Court directing the Secretary to stop the canvass and to refrain from taking any action to place the CFMMJ proposal on the ballot. The Attorney General has filed an amicus brief supporting PMC’s position.1

This case presents an issue of first impression. We are asked to examine the process that the constitution requires for placing before the voters a proposed constitutional amendment that would alter specific provisions of a voter-initiated law. Our constitution sets forth separate and distinct procedures for amending the constitution, amending a voter-initiated law, and revising or altering a law. Michigan case law has not addressed whether the constitutional requirements for altering or amending a voter-initiated law must be satisfied when a petition for a constitutional amendment proposes a change in that law. We hold that Const 1963, art 4, § 25, which provides that a law may not be [558]*558altered, revised, or amended without a republishing of the affected statutory language, applies to the CFMMJ petition presently before us. We further hold that the CFMMJ petition fails to comply with the prerequisites of article 4, § 25. Accordingly, the Secretary has a clear legal duty to reject the petition.

II. BACKGROUND AND PROCEDURAL HISTORY

A. THE GAMING ACT AND CONST 1963, ART 4, § 41

In the November 1996 general election, Michigan voters approved ballot initiative “Proposal E,” which allowed the establishment of three casinos in Detroit. Proposal E created the Michigan Gaming Control Board to regulate casino operations and imposed an 18% state wagering tax on gaming revenues. Of this tax revenue, 55% was allocated to Detroit for public safety and economic development, and 45% was allocated to the state for public education. The law became effective December 5, 1996.2 The Legislature codified Proposal E in the Gaming Act and subsequently amended the law in 1997 by a three-fourths vote of both houses of the state legislature, as provided by Const 1963, art 2, § 9 to amend a voter-initiated law.3

[559]*559In 2004, Michigan voters adopted a constitutional amendment to restrict the expansion of legalized gaming by requiring voter approval for certain expansions. Article 4, § 41 of the Constitution presently provides:

The legislature may authorize lotteries and permit the sale of lottery tickets in the manner provided by law. No law enacted after January 1, 2004, that authorizes any form of gambling shall be effective, nor after January 1, 2004, shall any new state lottery games utilizing table games or player operated mechanical or electronic devices be established, without the approval of a majority of electors voting in a statewide general election and a majority of electors voting in the township or city where gambling will take place. This section shall not apply to gambling in up to three casinos in the City of Detroit or to Indian tribal gaming. [Const 1963, art 4, § 41.]

B. THE CFMMJ BALLOT PROPOSAL

The CFMMJ proposal would amend Const 1963, art 4, § 41. The proposed constitutional amendment would strike all of the existing language of § 41 except the first sentence, “The Legislature may authorize lotteries and permit the sale of lottery tickets in any manner provided by law.” The CFMMJ proposal4 would add language to § 41 to allow casino gaming in eight locations in the state, providing in part:

The Legislature may authorize lotteries and permit the sale of lottery tickets in any manner provided by law. In addition, for the purpose of Michigan employment opportunities and economic development, as well as funding for K-12 schools, police and fire services, and road construction and repair, casino gaming shall be permitted in the following locations throughout the State of Michigan: [560]*560In the City of Detroit, in addition to the three existing Casinos in that city, on [certain designated properties].

The proposed amendment provides the legal descriptions of parcels for the potential location of a new Detroit casino. It also authorizes seven new casinos outside Detroit and provides the legal descriptions of sites in Clam Lake Township in Wexford County, DeWitt Township in Clinton County, Pontiac in Oakland County, Clinton Township in Macomb County, Birch Run Township in Saginaw County, Grand Rapids in Kent County, and Romulus in Wayne County.

The Gaming Act allows only three casinos in Detroit. MCL 432.206(3). In addition to authorizing new casinos, the CFMMJ proposal contains several provisions that are different from, and in some places directly contrary to, various provisions in the Gaming Act. For example:

(1) The Gaming Act defines “casino” as “a building in which gaming is conducted.” It defines “gaming” as “to deal, operate, carry on, conduct, maintain or expose or offer for play any gambling game or gambling operation.” MCL 432.202(g) and (x).

The CFMMJ proposal uses the term “casino gaming,” which it defines as “gambling in each and all forms now and hereafter authorized within the state of Michigan and by federal law. The term ‘casino’ means the facility in which actual gaming activities are conducted.”

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Protect MI Constitution v. Secretary of State, 824 N.W.2d 299, 297 Mich. App. 553 (Mich. Ct. App. 2012).

824 N.W.2d 299 (Protect MI Constitution v. Secretary of State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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