____________________________________________________________________________________________ 

____________________________________________________________________________________________________________________________ 

______________________________________ 

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. Opinion Stephen J. Markman 

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 exempt
 

from the power of referendum found in the Detroit Charter. 


On its own motion, this Court voted to grant leave to appeal1
 

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 ordinance for the
 

1464 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 City pursuant to the development


agreement is hereby appropriated to the temporary


casino site support and infrastructure improvement


. . . .
 

(3) An appropriation 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 for summary disposition is
 

affirmed. The case is remanded to the Court 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
 

that the cases are no longer being considered together, in
 

that the MUCC decision was issued just over three weeks ago.
 

We cannot agree. The fact that the MUCC opinion was issued
 

less than a month ago does not mean the 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 this case. Hence the
 

Court has taken the prudent course of allowing additional time
 

2
 
before issuing its decision in this case before the end of our
 

term on July 31, 2001. Further, the MUCC case and the case at
 

bar are similar.2 While the language in the Michigan
 

Constitution and the Detroit Charter are not identical, they
 

are closely 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 building and that such
 

renovation precludes the Court 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
 

even if the ordinance went to a referendum and lost because
 

the renovated casino would constitute a prior nonconforming
 

use that could remain despite any zoning change.
 

The claim of mootness does not withstand serious
 

2In the MUCC case the issue was whether a statute that
 

included a million dollar appropriation was exempt from a


referendum because it was an “act[] making [an]


appropriation[] for [a] state institution[],” whereas the


issue in the 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.”
 

33

Although the issues in each case warrant application of


the same analysis, when we granted leave we were faced with a


split of authority between the Court of Appeals 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.
 

3
 
 

scrutiny. 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 matter
 

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 argument 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
 

4The supplemental brief filed on behalf of the city clerk


and the city council merely mentions mootness in a footnote


found on page 19 of its twenty-page brief.
 

4
 
legal principle, that a party can not obliterate an opponent’s
 

appeal, on the basis of mootness, by so changing the status
 

quo during the 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 situation 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 courts


of England and of this country, that where a suit


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 from all the cases is
 

that after a defendant has been notified of the
 

pendency of a suit seeking an injunction against


him, even though a temporary injunction 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 States Supreme Court,
 

reinforced in this conclusion by the fact that there is no
 

contrary authority in our jurisprudence.5
 

5Also instructive is West v Secretary of the Dep’t of


Transportation, 206 F3d 920 (CA 9, 2000). In this 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 completion of construction was the


(continued...)
 

5
 
We 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 in the MUCC
 

case. 


To the charge that the majority attempts to apply the
 

same logic to all cases coming before it, we plead guilty. 


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 ordinary meaning.
 

We are prepared to live with the result of the plain
 

application of such texts, regardless of whether we personally
 

agree or disagree with the outcome. We subscribe to the
 

notion that judges are not 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]uch a 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 succeeded in making the change


before the chancellor's hand actually reached him.
 

6 
rather, 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 “complicated”
 

construction, one less respectful of the words themselves used
 

by the lawgiver, in this case the people 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
 

appropriation is, 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.
 

CORRIGAN, C.J., and YOUNG, and MARKMAN, JJ., concurred with
 

TAYLOR, 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 the Court would apply the same
 

logic to deny residents of the city of Detroit the right to a
 

referendum vote on a rezoning ordinance for casino 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, now
 
is 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
 

in light 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 in a 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
 

Mich 578, 582; 202 NW2d 290 (1972); see also Crawford Co v
 

Secretary of State, 160 Mich App 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 decision 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 plaintiff then selected a site in an existing
 

building to establish a temporary casino facility. Next, the
 

Detroit City Council adopted ordinance 24-98, which changed
 

2
 
the zoning at the site from commercial to planned development,
 

which would allow plaintiff to use the site for its temporary
 

casino.
 

Defendants sought to refer ordinance 24-98. In accord
 

with the 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 defendant Detroit City Clerk, who certified the
 

referendum petition in September 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 council by
 

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 ordinance 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
 

appropriations measure, exempt from referendum. The city
 

3
 
clerk, therefore, did not certify the referendum petition.1
 

On the same day that the city clerk denied certification,
 

this litigation began. Plaintiff MGM Grand filed a complaint
 

seeking a declaration that defendants’ petition was without
 

legal 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
 

relief 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
 

in January 1999, “finding that ordinance 35-98 is not subject
 

to referendum under the City Charter of Detroit” 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 Appeals. 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
 

1
 The city clerk cited a problem with the petition’s


description of ordinance 35-98, required by Detroit 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.
 

2
 Plaintiff points out that the defendant mentioned the


temporary injunction in the counterclaim, but did not pursue


it before the trial court.
 

4
 
a 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 temporary casino. Plaintiff renovated its
 

chosen building and opened the temporary casino in July 1999.
 

The temporary casino is approximately 75,000 square feet,
 

contains various games including approximately 2,500 slot
 

machines, and takes in over $1 million a day. Also, plaintiff
 

constructed a nine-deck parking structure, which opened in
 

December 1999, adjacent to the temporary casino.
 

II
 

Defendants request this 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 impossible. With plaintiff having completed its
 

temporary casino, even if there were a referendum on ordinance
 

35-98, and even if the voters of Detroit were to reject the
 

ordinance, plaintiff’s temporary casino would be a prior
 

nonconforming use that could remain despite any zoning change.
 

Because a referendum 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 nonconforming uses when zoning
 

changes were effected by referendum. There, the defendants
 

purchased land intending to build a mobile home park. The
 

township rezoned the land to accommodate the defendants’
 

5
 
intent, 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 zoning classification,
 

though, the defendants had taken steps toward constructing the
 

mobile home park. This Court had to decide whether the steps
 

the defendants had taken were 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
 

done 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 Mich 562, 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


operation such as ordering plans, surveying the


land, and the removal of old buildings are
 

insufficient to establish a nonconforming use. The
 

test in each case is not whether a little or a lot
 

has been spent in reliance upon the past zoning


classifications, but, rather, whether there has


been any tangible change in the land itself by


excavation and construction. [Heath Twp, supra at
 

440 (citations and internal quotations omitted).]
 

If plaintiff MGM Grand’s activities at the temporary casino
 

site pass this test, even if there were a referendum and
 

zoning change, the zoning at plaintiff’s temporary casino
 

could not be changed.
 

Plaintiff’s temporary casino would be a prior
 

nonconforming use because its operations go well beyond the
 

preliminary requirements identified in our case law. Here,
 

plaintiff has completely refurbished its building to serve as
 

6
 
a 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 Twp was directed at an incomplete
 

development that was alleged to be sufficient to comprise a
 

nonconforming use, and considered only construction toward the
 

development that occurred before the zoning was restricted.
 

In this 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 in the facts of this case that make
 

defendant’s requested relief moot. As mentioned above, even
 

if there were a referendum election on ordinance 35-98, and
 

even if the voters of Detroit 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 nonconforming use that
 

cannot be altered by a subsequent zoning change. 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
 

resolution is dismissal. I, therefore, disagree with the
 

majority decision to affirm the trial court’s judgment in
 

7
 
favor of plaintiff. Additionally, I point out that, in
 

addressing mootness, the majority relies on federal decisions,
 

which, with a justiciability 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. 


KELLY, J., concurred with CAVANAGH, 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 granted in this matter. I would dismiss our
 

jurisdiction over this case and remand to the Court of Appeals
 

for continuation of the proceedings there. 


On May 24, 2001 this Court, on its own motion, took
 

jurisdiction as on leave granted before decision by the Court
 

of Appeals.3 It did so saying “[i]t appears that the issues
 

raised regarding whether an ordinance is subject to referendum
 

3The Court of Appeals had already had oral argument 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
 

opinion in Michigan United Conservation Clubs 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 cases
 

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 issues in this 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
 

in state 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 ordinances, 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 ordinance.


[Emphasis added.]
 

Additionally, in this case there is also the underlying issue
 

whether the ordinance in fact contains an appropriation.
 

Appellants assert that the ordinance does not incur any
 

obligation as required by the definition of appropriation
 

under the Uniform Budgeting and Accounting Act, that the funds
 

2
 
paid to the city by MGM are not “public funds,” and that the
 

ordinance merely authorizes an appropriation, 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 in Michigan United Conservation Clubs, rather
 

than issue an opinion on certain issues4 and remand the
 

remainder of the case.
 

4In the grant order, this Court limited 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.” 


3