Chamber Headed To Top Court

October 10, 2003
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GRAND RAPIDS — The Grand Rapids Area Chamber of Commerce has joined an anti-casino group in its fight to keep four Indian-owned gaming houses from opening in the state.

The casino proposed by the Gun Lake Band of Potawatomi Indians for Allegan County, and opposed by the chamber and its affiliates, isn't named in the lawsuit. But the chamber contends the Gun Lake Band won its compact in a manner similar to the defendants in the suit and a defeat for the four tribes could lead to a reversal of the Gun Lake compact.

The case, Taxpayers of Michigan Against Casinos (TOMAC) vs. State of Michigan, will be heard by the Michigan Supreme Court.

"We feel we have a perspective that will help the court's decision as they take a look at the TOMAC case because the Wayland case was not too much different from that," said Marc Lemoine, chamber vice president of public policy and government affairs.

"The question at the heart of the case is the process of using a resolution to impact state government at this level."

The chamber has hired local law firm Rhoades McKee to argue its position before the state's highest court. Bruce Neckers, Bruce Courtade, Mary Tobin and Greg Timmer are the attorneys representing the chamber. Courtade wrote the brief. Also, lawyers from Warner Norcross & Judd, another Grand Rapids firm, are representing TOMAC, the plantiff based in Union Pier, Mich.

The lawsuit is in response to four gaming compacts that Lansing lawmakers passed nearly five years ago. TOMAC asserts that the compacts are unconstitutional because the measure passed without the full consent of the legislature, being approved as a concurrent resolution on the last day of the legislative session in 1998 when all lawmakers weren't present. Then-Gov. John Engler refused to sign it.

"This is a significant public policy issue worthy of the court's attention," said Liz Thomas, TOMAC president.

Tom Shields, a spokesman for the Pokagon Band of Potawatomi Indians, one of the four tribes named in the suit, said he didn't believe the Supreme Court would overrule the appeals court. The Pokagon Band plans to open a casino in New Buffalo Township.

The chamber argues that the Gun Lake compact was also approved by resolution, and only by the House, after both bodies ratified the compacts for the other tribes. Resolutions, the chamber claims, shouldn't carry the same weight as bills that go through the normal legislative process and the business group is confident the method used to award the Gun Lake compact violates the state constitution.

"Our argument and our experience of what we saw in Wayland was the process has further been weakened in using just a resolution from one chamber," said Lemoine.

Resolutions usually highlight someone's achievement or urge another level of government to take a certain action, and are normally used to express sentiments held by lawmakers.

"The question that is being posed is it's inconsistent with the state constitution. Article 4, Section 22, specifically states that all legislation shall be by bill and may originate in either house. This has not been the process that has been followed," Lemoine added.

TOMAC and Laura Baird, a former state representative from Okemos, filed suit against the compacts in Ingham County Circuit Court in 1999. The court ruled for the plaintiffs, saying the law was invalid because the compacts were passed by a simple majority of lawmakers present and should have been voted on by all lawmakers.

But the Michigan Court of Appeals overruled the decision. The appellate justices said the state has no authority to regulate Indian tribal lands, reversing the circuit court's ruling that passage of the law violated four articles of the state constitution.

Now the arguments head to the state's Supreme Court.

The chamber jumped into the casino scrap in January when then-President John Brown reacted to a statement made by Engler. The three-term former governor said that a casino in West Michigan was "inevitable" because of federal law. Brown took issue with that remark.

"The law is clear," said Brown. "No state has ever been forced by the federal government to have a casino."

The chamber based its position on Seminole Tribe of Florida vs. Florida. In that case, the U.S. Supreme Court ruled that the 11th Amendment to the Constitution grants states immunity from being sued under the Indian Gaming Regulatory Act when a state refuses to negotiate a gaming compact.

A month later, the chamber challenged the Gun Lake Band's impact study, which claimed a casino would create 4,300 jobs and have $169.7 million in annual revenue. The business group maintained that much of the casino's revenue would come from state residents and would cause financial harm to established area businesses.

Then the chamber released its own study done by the Anderson Economic Group, which showed, in part, that Kent County businesses would lose $605 million to the casino over 10 years. Before releasing the study, the chamber unveiled the Community Partnership for Economic Growth (CPEG), a coalition of business people and legislators that oppose the planned casino near Wayland.

"This being such an important public policy issue and having such an impact to change the landscape of these communities and the businesses that are in the areas, we think it warrants serious consideration by the court," said Lemoine.

A hearing date hasn't been set and is likely several months away. The normal turnaround time for a case like this is roughly a year.

The Gun Lake Band wants to build a casino on the former Ampro Industries site. The Bureau of Indian Affairs needs to determine whether the tribe can place the property in a trust. The Allegan County Chamber of Commerce supports the casino.

In addition to the Pokagon Band, the other compacts in question were awarded to the Little Traverse Bay Band of Odawa Indians, the Huron Band of Potawatomi Indians, and the Little River Band of Ottawa Indians. The Huron Band is located in Battle Creek.

In July, Gov. Jennifer Granholm signed an amendment to the compact that gave the Little Traverse Bay Band a second casino site. That second site would pay the state a 10 percent tax on annual net winnings for the first $50 million and 12 percent for net winnings above $50 million. All other Indian-owned casinos pay an 8 percent tax on net winnings to the state. Local municipalities collect a 2 percent tax.

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