Opinion
SC: 161760 COA: 345708 SC: 161761 COA: 346105 SC: 161762 COA: 346106 SC: 161763 COA: 346107 SC: 161764 COA: 346108 SC: 161765 COA: 346109 SC: 161766 COA: 346110 SC: 161767 COA: 346111 SC: 161768 COA: 346112 SC: 161769 COA: 346113 SC: 161770 COA: 346114 SC: 161771 COA: 346115 SC: 161772 COA: 346116 SC: 161773 COA: 346117 SC: 161774 COA: 346118 SC: 161775 COA: 346119 SC: 161776 COA: 346120 SC: 161777 COA: 346121 SC: 161778 COA: 346122
04-02-2021
DEPARTMENT OF TRANSPORTATION, Plaintiff-Appellee, v. 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. Crown Enterprises, Inc., Defendant-Appellant, and City of Detroit and Department of Natural Resources, Defendants. Department of Transportation, Plaintiff-Appellee, v. Crown Enterprises, Inc., Defendant-Appellant, and City of Detroit, Defendant. Department of Transportation, Plaintiff-Appellee, v. Dibdetroit, LLC, Defendant-Appellant, and City of Detroit, Defendant. Department of Transportation, Plaintiff-Appellee, v. Dibdetroit, LLC, Defendant-Appellant, and Department of Natural Resources, Defendant. Department of Transportation, Plaintiff-Appellee, v. Detroit International Bridge Company, Defendant-Appellant, and City of Detroit and Department of Natural Resources, Defendants. Department of Transportation, Plaintiff-Appellee, v. Crown Enterprises, Inc., Defendant-Appellant, and Wayne Scrap Iron & Metal Company and City of Detroit, Defendants. Department of Transportation, Plaintiff-Appellee, v. 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. 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. Department of Transportation, Plaintiff-Appellee, v. Crown Enterprises, Inc., Defendant-Appellant, and City of Detroit, Defendant. Department of Transportation, Plaintiff-Appellee, v. 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. Dibdetroit, LLC, Defendant-Appellant, and Morton Industrial Group, Inc., as Successor in Interest to McLouth Steel Corporation, Department of Natural Resources, and City of Detroit, Defendants. Department of Transportation, Plaintiff-Appellee, v. Dibdetroit, LLC, Defendant-Appellant, and Irene Garza and City of Detroit, Defendants. Department of Transportation, Plaintiff-Appellee, v. Crown Enterprises, Inc., Defendant-Appellant, and Department of Natural Resources and City of Detroit, Defendants. Department of Transportation, Plaintiff-Appellee, v. Crown Enterprises, Inc., Defendant-Appellant, and Curtis Penick and City of Detroit, Defendants. Department of Transportation, Plaintiff-Appellee, v. 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. Dibdetroit, LLC, Defendant-Appellant, and City of Detroit, Defendant. Department of Transportation, Plaintiff-Appellee, v. 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. Dibdetroit, LLC, Defendant-Appellant, and Department of Natural Resources, Defendant.
Order
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.
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 , 506 Mich. 1040, 951 N.W.2d 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 , 506 Mich. 1022, 951 N.W.2d 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 seventeenth-century 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 , 506 Mich. at 1040, 951 N.W.2d at 911, quoting Mich. Ed. Ass'n v. Secretary of State (On Rehearing) , 489 Mich. 194, 225-226, 801 N.W.2d 35 (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 far-reaching issues.
Clement, J., did not participate due to her prior involvement as chief legal counsel for former Governor Rick Snyder.