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______________________________________ Michigan Supreme Court Lansing, Michigan 48909

C hief Justice Justices Maura D. Corrigan Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. Stephen J. Markman 

# Opinion

FILED JULY 30, 2001

MGM GRAND DETROIT, LLC, Plaintiff-Appellee,

v No. 119309 COMMUNITY COALITION FOR EMPOWERMENT INC., and ERNEST JOHNSON, Defendants-Appellants,

v JACKIE L. CURRIE, in her capacity as CITY CLERK FOR THE CITY OF DETROIT and DETROIT CITY COUNCIL, Third-Party Defendants-Appellees.

BEFORE THE ENTIRE BENCH TAYLOR, J. The issue is whether Detroit Ordinance 35-98 is e xempt from the power of referendum found in the Detroit Charter. On its own motion, this Court voted to grant leave to appeal 1 before a decision by the Court of Appeals. Having heard oral argument, we now find as follows: (1) The power of referendum in the Detroit Charter does “not extend to the budget or any ordina nce for the

1 464 Mich 855 (2001).appropriation of money . . . .” Detroit Charter § 12-101. (2) Detroit Ordinance 35-98 provides in pertinent part: The Three Hundred Thirty-Three Thousand Three Hundred Thirty-Three and 34/100 Dollars ($333,333.34) early advance heretofore paid by the developer to the C ity pursuant to the development agreement is hereby appropriated to the temporary casino site support and infrastructure improvement

. . . . (3) Anappropriation of $333,333.34 is an “appropriation of money” and Ordinance 35-98 is “any ordinance.” (4) Therefore, the power of referendum in the Detroit Charter does not extend to ordinance 35-98. Accordingly, consistent with MUCC v Secretary of State , 464 Mich 359; ___ NW2d ___ (2001), the circuit court’s judgment granting MGM’s motion fo r sum mary disposition is affirmed. The case is remanded to t he Co urt of Appeals for resolution of the remaining issues. Response to Justice Weaver’s dissent Justice Weaver dissents, asserting that we improvidently granted leave in the case at bar to be heard with the MUCC

case because it has now become apparent the cases are too dissimilar to be considered together. She further asserts th at the cases are no longer being considered together, in that the MUCC decision was issued just over three weeks ago. We cann ot ag ree. The fact that the MUCC opinion was issued less than a month ago does not mean th e case at bar and the MUCC case were not considered together. The MUCC decision was issued on an expedited basis in order to meet a statutory deadline. No such deadline exists in th is ca se. Hence the Court has taken the prudent course of allowing additional time 2before issuing its decisionin this case before the end of our term onJuly 31, 2001. Further, the MUCC case and the case at bar a re similar. 2 While the language in the Michigan Constitution and the Detroit Charter are not identical, they

a re c losely related and warrant application of the same analysis. 3 That is why we are affirming on the basis of our holding in the MUCC case. Response to Justice Cavanagh’s dissent Justice Cavanagh dissents, asserting this appeal should be dismissed on the basis of mootness. He contends the case is moot because MGM renovated the buil ding a nd that such renovationprecludes the C ourt from being able to grant defendants the relief they request. Justice Cavanagh also posits that MGM would have a legal right to stay in the casino

evenif the ordinance went to a referendum and lost because the renovated casino wo uld constitute a prior nonconforming use that could remain despite any zoning change. The claim of mootness does not withstand serious

2 Inthe MUCC case th e is sue was whether a statute that included a million dollar appropriation was exempt from a referendum because i t w as an “act[] making [an] appropriation[] for [a] state institution[],” whereas the issue inthe case at bar is whether an ordinance that included a one-third of a million dollar appropriation is exempt from a referendum because it constitutes “any ordinance for the appropriation of money.”

3 3 Althoughthe issues in each case warrant application of the same analysis, when we granted leave we were faced with a split of authority between the Cour t of A ppeals decision in MUCC, supra (which applied the amorphous “core function” test) and Judge Sapala’s decision in this case (which relied on the plain and unambiguous language of the Detroit City Charter). By considering this case along with the MUCC case we have provided an efficient resolution to a single problem. 3scrutiny. Preliminarily, we note that the burden of demonstrating mootness is a “heavy one.” Los Angeles v Davis , 440 US 625, 631; 99 S Ct 1379; 59 L Ed 2d 642 (1979). This

means to get an appeal dismissed as moot, thus depriving a party seeking redress of a day in court, the party urging mootness on the court must make a very convincing showing that the opportunity for an appellate court to review the matte r should be denied. Not surprisingly, it is rare for a court to grant such a motion. Furthermore, neither MGM nor the city filed a motion to dismiss the appeal on the basis of mootness. Indeed, the mootness argum ent is only presented in a manner that conveys its infirmity. 4 While it is true that defendants did not seek a stay after the trial court ruled against them (nor did they have to), they did file a timely appeal in the Court of Appeals. They also sought, albeit unsuccessfully, an expedited hearing from the Court of Appeals. It is also the case that the city and MGM were on notice that they proceeded at their peril if they built before the appeal was resolved because defendants sent a letter to the city council and MGM advising them exactly of that. Under such circumstances, one cannot reasonably conclude that defendants’ claim is moot. In fact, the obviousness of this is probably why the city and MGM did not bring such a motion. It not only is common sense, but also a well-established

4 The supplemental brief filed onbehalf of the city clerk and the city council m erely mentions mootness in a footnote found on page 19 of its twenty-page brief. 4legal principle, that a party can not obliterate an opponent’s appeal, on the basis of mootness, by so changing the status quo du ring t he appeal (remarkably enough in this case by building the very casino that was at issue in the appeal while the appeal was pending) that they can then argue it is impossible to return to the s ituati on that existed when the appeal was filed. The United States Supreme Court, no less, has said as much . In Jones v Securities and Exchange Comm , 298 US 1, 15-18; 56 S Ct 654; 80 L Ed 1015 (1936), our nation’s highest Court said: The rule is well settled, both by the cour ts of E ngland and of this country, that where a s ui t is brought to enjoin certain acts or activities, for example, the erection of a building or other structure, of which suit defendant has notice, the hands of the defendant are effectively tied pending a hearing and determination, even though no restraining order or preliminary injunction be issued. * * * The conclusion to be drawn fr om all the cases is that after a defendant has been notified of th e pendency of a suit seeking an injunction against him, even though a temporary i nj unction be not granted, he acts at his peril and subject to the power of the court to restore the status, wholly irrespective of the merits as they may be ultimately decided. We concur with the United Stat es Supreme Court, reinforced in this conclusion by the fact that there is no contrary authority in our jurisprudence. 5

5 Also instructive is West v Secretary of the Dep’t of Transportation , 206 F3d 920 (CA 9, 2000). Inthis case, there was a dispute regarding the building of a highway. A builder argued the case was moot because the construction for stage 1 of the highway was already complete. The Court rejected this argument, noting that if c ompletion of construction was the (continued...) 5We also note that it is premature for Justice Cavanagh to conclude on the basis of Heath Twp v Sall, 442 Mich 434; 502 NW2d 627 (1993), that MGM would have a legal right to stay in the building if the ordinance went to a referendum and lost. If this were to occur, MGM could then make whatever arguments it had at that time. Justice Cavanagh asserts that leave was granted in this

case by the Court in order to “demonstrate that the Court would apply the same logic” to this case as we did inthe MUCC

case. To the charge tha t t he majority attempts to apply the

same logic to all cases coming before it, we plead guilt y. Justice Cavanagh’s discontent with our approach merely reflects our differing views on the proper role of the judiciary in our representative democracy. We, the majority, apply the text of the constitution, a statute, or an ordinance according to its ordina ry m eaning. We are prepared to live with the result of the plain applicationof such texts, regardless of whether we personally agree or disagree with the outcome. We subscribe to the notionthat judges are n ot the lawgivers in our society;

5 (...continued) test, parties could merely ignore the requirements of the law, build its structures before a case gets to court, and then hide behind the mootness doctrine. The Court concluded that “[s]ucha result is not acceptable.” See also Gamlen Chemical v Gamlen , 79 F Supp 622 (WD Pa, 1948): Equity will not permit a wrongdoer to shelter himself behind a suddenly or secretly changed status though he succe eded in making the change before the chancellor's hand actually reached him. 6rather, they are the interpreters of the law. Justice Cavanagh’s judicial philosophy is perhaps more “complex” than ours insofar as he is willing to depart from giving texts a plain reading for a more “compl icat ed” construction, one less respectful of the words themselves used by the lawgiver, in this case the pe opl e of the city of Detroit in enacting their charter. See, for example, his MUCC dissent, where he introduces a “core function” test as a means of avoiding the conclusion that a one million dollar appropriationis, in fact, an appropriation under art 2, § 9. We decline to read in such complexities where none are apparent in the language of the law. C ORRIGAN , C.J., and Y OUNG , and M ARKMAN , JJ., concurred with T AYLOR , J.

7________________________________ S T A T E O F M I C H I G A N SUPREME COURT

MGM GRAND DETROIT, L.L.C., Plaintiff-Appellee,

v No. 119309 COMMUNITY COALITION FOR EMPOWERMENT, INC., and ERNEST JOHNSON, Defendants-Appellants,

v JACKIE L. CURRIE, in her capacity as CITY CLERK FOR THE CITY OF DETROIT and DETROIT CITY COUNTIL, Third-Party Defendants-Appellees. CAVANAGH, J. ( dissenting ). This case arrived here at this Court’s request. Another vehicle was desired, along with Michigan United Conservation Clubs v Secretary of State , 464 Mich 359; ___ NW2d ____ (2001), to demonstrate that th e C ourt would apply the same logic to deny residents of the city of Detroit the right to a referendum vote on a rezoning ordinance for cas ino gambling that was applied in MUCC to deny this state’s residents the right to a referendum on new gun legislation. The majority, having decided in MUCC that the insertion of a dollar amount, however ill-intended, renders a new law referendum-proof, nowis determined to opine on the merits of this issue again rather than following the normal course, or option, of remanding this case to the Court of Appeals for consideration inlight of this Court’s decision in MUCC . For the reasons that follow, I would do neither. Rather than affirm the trial court’s decision in this case, I would dismiss because this case has become moot. When intervening changes ina case’s factual circumstances make it impossible for a court to fashion a remedy, the case has become moot and should be dismissed. See UAW v Governor, 388 Mich578, 582; 202 NW2d 290 (1972); se e also Crawford Co v Secretary of State, 160 MichApp 88, 93; 408 NW2d 112 (1987). The changes in the factual circumstances of this case prevent this Court from being able to grant defendants Community Coalition for Empowerment and Ernest Johnson the relief they seek, so this case should be dismissed. Therefore, I respectfully dissent from the majority’s decis ion to affirm the trial court. I This case arises from the implementation of casino gambling in the city of Detroit. A detailed understanding of the facts illustrates that this case has become moot. By adopting Proposal E in 1996, voters decided to allow licensed casino gambling in Detroit. Plaintiff MGM Grand was subsequently chosen as one of the developers to conduct casino gambling, and pla intiff then selected a site in an existing building to establish a temporary casino facility. Next, the Detr oit City Council adopted ordinance 24-98, which changed 2the zoning at the site from commercial to planned development, whichwould allow plaintiff to use the site for its temporary casino. Defend ants sought to refer ordinance 24-98. In accord withthe referendum power reserved in the Detroit City Charter, art 12, § 101, defendants conducted a petition drive and submitted a sufficient number of valid signatures to the third-party defe ndan t Detroit City Clerk, who certified the referendum petition inSeptember 1998. Instead of subjecting ordinance 24-98 to popular adoption or rejection through a referendum election, however, the Detroit City Council repealed the ordinance, a power provided to the counci l b y Detroit City Charter, art 12, § 107. At the same session when the Council repealed ordinance 24-98, it adopted ordinance 35-98. Like ordinance 24-98, the new ordinance rezoned plaintiff’s site to allow plaintiff to

use the site for a temporary casino, but the new ordinance additionally “appropriated [$333,333.34] to the temporary casino site support and infrastructure improvement appropriation . . . .” Defendants conducted another petition drive, seeking to refer ord inan ce 35-98. They again submitted a sufficient number of valid signatures to the Detroit City Clerk, but she informed them that the petition did not meet the legal requirements for certification because ordinance 35-98 was an appropriati ons m easure, exempt from referendum. The city

3clerk, therefore, did not certify the referendum petition. 1 Onthe same day that the city clerk denied certification, this litigationbegan. Plaintiff MGM Grand filed a complaint seeking a declaration that defendants’ pet itio n was withoutlegal effect. Several days later, defendants filed a thirdparty complaint against the Detroit City Clerk and the Detroit City Council, as well as a counterclaim against plaintiff. The counterclaim sought a temporary injunction against plaintiff, 2 and the third-party complaint sought declaratory

re lie f and mandamus ordering the city clerk to certify the petition. After briefing and argument on cross-motions for summary disposition, the trial court issued a written opinion inJanuary 1999, “finding that ordinance 35-98 is not subject to referendum under the City Charter of De troit” because it was an ordinance for the appropriation of money, exempt from referendum under Detroit City Charter, art 12, § 101. The trial court granted plaintiff’s motion, granted the thirdparty defendants’ motion against defendant, and denied defendant’s motion. Later that month, defendants claimed an appeal with the Court of Appea ls. They did not assert any claim for a temporary injunction and did not move to stay the trial court’s decision. Before the Court of Appeals reached

1The city clerk cited a probl em wit h the petition’s descriptionof ordinance 35-98, required by Detroi t City Charter, art 12, § 102, as an additional reason for denying certification. The validity of the description, and the city clerk’s decision, however, are not before this Court.

2Plaintiff points out that the defendant mentioned the temporary injunction in the counterclaim, but did not pursue it before the trial court. 4a decision, this Court took jurisdiction over the case. 464 Mich 855 (2001). With its trial court victory, plaintiff pressed on with its plans for a temp ora ry casino. Plaintiff renovated its chosenbuilding and opened the temporary casino in July 1999. T he te mporary casino is approximately 75,000 square feet, contains various games including approximately 2,500 slot machines, and takes in over $1 milliona day. Also, plaintiff constructed a nine-deck parking structure, which opened in December 1999, adjacent to the temporary casino. II Defendants reque st thi s Court to reverse the trial court’s decision and compel the city of Detroit to schedule a referendum election on ordinance 35-98 so the voters of Detroit can reject the ordinance. However, such a remedy would be i mpossible. With plaintiff having completed its temporary casino, even if there were a referendum onordinance 35-98, and even if the voters of Detroit were to reject the ordinance, pla in tiff’s temporary casino would be a prior nonconforming use that could remain despite any zoning change. Because a r eferendum could not change the zoning at plaintiff’s temporary casino, the remedy defendants request is moot, and this case should be dismissed. In Heath Twp v Sall, 442 Mich 434; 502 NW2d 627 (1993), this Court discussed prior nonconformin g use s when zoning changes were effe cted by referendum. There, the defendants purchased land intending to build a mobile home park. The township rezoned the l an d to accommodate the defendants’ 5intent, but township residents brought a referendum and voted to return the land to its original zoning, under which the mobile home park was not allowed. Before the referendum returned the land to its original zoni ng classification, though, the defendants had taken steps toward constructing the mobile home park. This Court had to decide whether the steps the defendants had takenwere sufficient to establish a prior nonconforming use, which requires that the property owner must have, at the least, engaged in work of a substantial character don e in preparation for an actual use of the premises. See id. at 436-439. Elaborating, we quoted from our decision in Gackler Land Co, Inc v Yankee Springs Twp, 427 Mich562, 574­ 575; 398 NW2d 393 (1986): The actual use which is nonconforming must be apparent and manifested by a tangible change in the land, as opposed to intended or contemplated by the property owner. In this regard, preliminary operationsuch as ordering plans, surveying the land, and the removal of old buildings are insufficient to establisha nonconforming use. The test in each case is not whether a little or a lot has be en spent in reliance upon the past zoning classifications, but, rather, whether there has beenany tangible change in the land itself by excavation and construction. [ Heath Twp, supra at 440 (citations and internal quotations omitted).] If plaintiff MGM Gra nd’s activities at the temporary casino site pass this test, even if there were a referendum and zoning change, the zoning at plaintiff ’s te mporary casino could not be changed. Plaintiff’s temporary casino would be a prior nonconforming use bec ause its operations go well beyond the preliminary requirements identified in o ur c ase law. Here, plaintiff has completely refurbished its building to serve as 6a casino, and has constructed a large new parking deck next to the refurbished building. This certainly amounts to a tangible change in the land. In addition, though, the analysis from Heath Twpwas directed at an inc ompl ete develo pment that was alleged to be sufficient to comprise a nonconforming use, and considered only constructiontoward the development that occurred before the zoning was rest rict ed. Inthis case, we have a completed business that has been operating for nearly two years. Thus, plaintiff’s temporary casino would certainly be a lawful and existing use, see MCL 125.216(1), insulated from any subsequent zoning changes. Defendant’s failure to move to stay the trial court’s decision, or to pursue a temporary injunction, and the resulting establishment of plaintiff’s temporary casino are intervening changes i n t he facts of this case that make defendant’s requested relief moot. As mentioned above, even if there were a referendum election on ordinan ce 35- 98, and

evenif the voters of Detr oit rejected the zoning of plaintiff’s temporary casino site adopted by that ordinance, the zoning at the temporary casino site would remain because plaintiff would have established a no nconf orming use that cannot be altered by a subsequent zoning ch ange. See UAW v Governor at 582; Crawford Co at 93. Hence, there is nothing for us to grant for defendants. Absent a possible remedy, this case has become moot. When a case is moot, rather than affirm the substance of the lower court’s decision, the proper resolutionis dismissal. I, therefore, disa gree with the majority dec isio n to affirm the trial court’s judgment in 7favor of plaintiff. Addit ion ally, I point out that, in addressing mootness, the majority relies on federal decisions, which, with a justi ciab ility question like mootness, do not necessarily apply. See ASARCO, Inc v Kadish, 490 US 605, 617; 109 S Ct 2037; 104 L Ed 2d 696 (1989). III For the reasons stated, this case is moot and should be dismissed. I respectfully dissent from the majority decision to affirm the lower court. K ELLY , J., concurred with C AVANAGH , J.

8____________________________________________________________ S T A T E O F M I C H I G A N SUPREME COURT

MGM GRAND DETROIT, L.L.C., Plaintiff-Appellee,

v No. 119309 COMMUNITY COALITION FOR EMPOWERMENT INC., and ERNEST JOHNSON, Defendant-Appellants,

v JACKIE L. CURRIE, in her capacity as CITY CLERK FOR THE CITY OF DETROIT and DETROIT CITY COUNCIL, Third-Party Defendants-Appellees. WEAVER, J. ( dissenting ). I respectfully dissent from the majority’s decision affirming the circuit court’s judgment granting MGM’s motion for summary disposition because I believe that leave was precipitately gra nted in this matter. I would dismiss our jurisdictionover this case and remand to the Court of Appeals for continuation of the proceedings there. OnMay 24, 2001 this Court, on its own motion, took jurisdictionas onleave granted before decision by the Court of Appeals. 3 It did so saying “[i]t appears t ha t the issues raised regarding whether an ordinance is subject to referendum

3 The Court of Appeals had already had oral arg ume nt on this case, but had not yet issued an opinion.are sufficiently related to the issues raised in Michigan United Conservation Clubs v Secretary of State , Supreme Court Docket No. 119274, that the cases should be considered together.” (Docket No. 119309.) The Court released its opinionin Michigan United ConservationClubs v Secretary of State , 464 Mich 359; ___ NW2d ___ (2001). Obviously they are no longer being considered together. The Court believed that consideration of the two c ase s would afford a better perspective on the issues that they appeared to have in common. However, after oral arguments, it became apparent that leave was improvidently granted in this

case. The iss ues in th is case were too dissimilar to be considered with Michigan United Conservation Clubs . While art 2 , § 9 of the 1963 Michigan Constitution states that “[t]he power of referendum does not extend to acts making appropriations for state institutions or to meet deficiencies instate funds,” § 12-101 of the Detroit City Charter provides in pertinent part: The voters of the city reserve the power to enact city ordinances, called the “initiative,” and the power to nullify ordin ances , enacted by the city, called the “referendum.” However, these powers do not extend to the budget or any ordinance for the appropriation of money ; the referendum power does not extend to any emergency ordi nance. [Emphasis added.] Additionally, in this case there is also the underlying issue whether the ordinance in fact contains an appropri at ion. Appellants assert that the ordi nanc e does not incur any obl igationas required by the definition of appropriat io n under the Uniform Budgeting and Accounting Act, that the funds

2paid to the city by MGM are not “public funds,” and that the ordinance merely authorizes ana ppropriation, but is not itself an appropriation. I believe that we should remand this case to the Court of Appeals for a decision on all the issues in light of our recent opinion inMichigan United ConservationClubs , rather thanissue an opinion on certain issues 4 and remand the remainder of the case.

4 Inthe grant order, this Court lim ited the appeal “to the issues concerning whether City of Detroit ordinance 35-98 is exempt from the referendum provision of the City Charter because it is an ordinance for the appropriation of money.”

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