Pursuant to Sixth Circuit Rule 206
MOORE, J., delivered the opinion of the court, in which CLAY, J., joined. RICE, District Judge, (pp. 413-17), delivered a separate opinion concurring in the judgment.
KAREN NELSON MOORE, Circuit Judge.
Michigan state legislators Laura Baird and Gary Peters challenge former Interior Secretary Bruce Babbitt's approval of gaming compacts between the State of Michigan and four Indian tribes. Baird, a member of the Michigan House of Representatives, and Peters, a Michigan state senator, brought suit seeking a declaration that the gaming compacts are invalid and an order directing the secretary to disapprove them.
Baird and Peters contend that the Michigan state legislature did not follow procedures required by the state constitution for approval of the gaming compacts at issue. Rather than approve the compacts by legislation, which requires that a majority of the members of both the state house of representatives and state senate vote in favor of the measure, see Mich. Const. art. IV, § 26, the state legislature approved the compacts by concurrent resolution — in this case, by Concurrent Resolution ("CR") 115. Passage of a concurrent resolution, however, requires only a majority of votes cast rather than a majority of all members' votes. Thus, the Michigan House of Representatives, comprised of 110 members, approved the gaming compacts by a vote of forty-eight to forty-seven, with Baird voting in the minority. Although this vote margin would have been insufficient to enact legislation, it was sufficient to pass CR 115. In the Michigan Senate, which has thirty-eight members, CR 115 passed by a vote of twenty-one to seventeen, with Peters in the minority. The Senate vote on the concurrent resolution, then, would have been sufficient to pass legislation approving the compacts.
After passage of CR 115, the gaming compacts were subsequently considered approved when Secretary Babbitt failed to approve or reject them within 45 days. See 25 U.S.C. § 2710(d)(8)(C). The compacts were then published in the Federal Register and became effective under 25 U.S.C. § 2710(d)(3)(B).
The threshold issue in this case is whether Baird and Peters have standing to sue based on their status as state legislators aggrieved by the state legislature's use of allegedly unconstitutional procedures. The district court found that Baird has standing but that Peters does not. Peters argues in this appeal that the district court erred in reaching this conclusion, but, for the reasons given below, the district court's conclusion regarding Peters was correct. In this appeal, Baird asserts that the district court properly found that she has standing because of her status as a state legislator, and the appellees have not disputed Baird's Article III standing. This court, however, is "under an independent obligation to examine" its own jurisdiction, and "standing `is perhaps the most important of [the jurisdictional] doctrines.'" FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (quoting Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)) (alteration in FW/PBS). Because we conclude that Baird, too, lacks Article III standing to sue, we do not have jurisdiction to consider the other issues raised in this appeal.
Baird and Peters argue that they suffered two different injuries as a result of the secretary's failure to reject the compacts
Second, Baird and Peters argue that their votes were nullified by the state legislature's use of improper procedures in enacting the gaming compacts. Under certain circumstances, vote nullification may give legislators standing to challenge improper procedures. See Raines v. Byrd, 521 U.S. 811, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997); Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939). But Baird and Peters have not suffered a vote-nullification injury sufficient to give them standing in the present case.
The leading case on legislator standing based on vote nullification is Coleman v. Miller. In Coleman, the Supreme Court held that a group of Kansas state senators had standing to sue when they claimed that their votes had been effectively nullified by the state legislature's use of an allegedly unconstitutional procedure. In voting on a proposed constitutional amendment, the forty-member Kansas State Senate had divided evenly, with twenty Kansas state senators voting for ratification and twenty against. The Kansas lieutenant governor then cast the tie-breaking vote in favor, and the amendment was treated as ratified as a result. See Coleman, 307 U.S. at 436, 59 S.Ct. 972. The Coleman plaintiffs, including the twenty state senators who had voted against ratifying the amendment, claimed that the lieutenant governor's vote had been improper and unconstitutional and thus sought a writ of mandamus to compel state officials to recognize that the amendment had not been properly ratified. See id. The Supreme Court concluded that the Coleman plaintiffs had standing to challenge the procedure, based on the effective nullification of their votes, but held against them on the merits of their claim. See id. at 437, 456, 59 S.Ct. 972.
The Supreme Court recently clarified its holding in Coleman in Raines v. Byrd. Raines involved a challenge to the constitutionality of the Line Item Veto Act, Pub.L. No. 104-130, 110 Stat. 1200 (1996). Four senators and two House members brought the suit, claiming that the Act would reduce their voting effectiveness on future appropriations bills. See Raines, 521 U.S. at 814, 117 S.Ct. 2312. The Raines plaintiffs relied heavily on Coleman's suggestion that legislators have "a plain, direct, and adequate interest in maintaining the effectiveness of their votes." Id. at 825, 117 S.Ct. 2312. The
The state legislators in Coleman, in contrast, had alleged a vote-nullification injury sufficient to give them standing to sue because, had these state senators been "correct on the merits," their votes would have been sufficient to defeat ratification. See Raines, 521 U.S. at 822-23, 117 S.Ct. 2312. In this context, the Raines Court emphasized that the twenty Kansas state senators in Coleman "were suing as a bloc." Id. at 822, 117 S.Ct. 2312. The Raines Court's summary of Coleman indicates that the aggregate nature of the state senators' claim was essential to their standing: "[O]ur holding in Coleman stands (at most) for the proposition that legislators whose votes would have been sufficient to defeat ... a specific legislative Act have standing to sue if that legislative action goes into effect ..., on the ground that their votes have been completely nullified." Id. at 823, 117 S.Ct. 2312 (internal cross reference omitted).
For legislators to have standing as legislators, then, they must possess votes sufficient to have either defeated or approved the measure at issue. The present case is thus distinguishable from Coleman. In Coleman, the twenty state senators who voted against the proposed constitutional amendment would have been "sufficient" to defeat the measure had the lieutenant governor not voted. Thus, through the use of this allegedly improper procedure, the votes of the twenty state senators seeking relief were completely nullified, i.e., "overridden and virtually held for naught." Coleman, 307 U.S. at 438, 59 S.Ct. 972. In the present case, in contrast, the only member of the Michigan House of Representatives seeking relief is Baird. Baird claims vote nullification, but her vote alone would not have been sufficient to defeat either the concurrent resolution, which passed despite her "nay" vote, or legislation to similar effect. The Michigan Constitution may require a majority of all members' votes for legislation to be approved, but it does not require unanimity. Cf. Raines, 521 U.S. at 823 n. 6, 117 S.Ct. 2312 (citing Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 544-45 n. 7, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986)). Thus, although Baird's institutional power was diluted through the use of the continuing resolution procedure, she has not suffered an injury that satisfies the stringent requirements for legislator standing set out in Raines. Similarly, State Senator Peters's vote was not nullified by the concurrent resolution procedure because the vote in the state senate satisfied the constitutional requirement of a majority of all members for the passage of legislation. Thus, Peters cannot argue that his vote was sufficient to defeat the passage of legislation having the same effect as CR 115.
Under Raines, however, if Baird's lawsuit had been joined by other members of
In sum, Baird's complaint is not that the compacts themselves are unconstitutional. Instead, her complaint is that the compacts would have been defeated, had the constitutionally required procedures been followed, and thus her vote against the compacts was effectively nullified. Under Raines and Coleman, the issue is whether Baird can demonstrate that her vote was sufficient to defeat the compacts had the constitutionally required procedure been followed. Because Baird cannot do so, she lacks standing. Similarly, State Senator Peters lacks standing because he cannot show that his vote was sufficient to defeat the gaming compacts, had the proper procedure been followed.
Because we conclude that neither Baird nor Peters has Article III standing in the present case, we lack jurisdiction to address the other issues raised in this appeal. For the reasons given above, the district court's dismissal of the present case is
RICE, Chief District Judge, concurring.
I concur in the judgment of the majority, but I write separately because I believe that Baird would lack standing even if this lawsuit had been joined by other members of the Michigan legislature. Unlike the majority, I do not believe that Baird's lack of standing stems from her failure to sue as part of a bloc. Rather, her lack of standing is attributable to the fact that her vote on CR 115 was given full effect. Although she was on the losing side, her vote was not in any sense "nullified." Baird's complaint is simply that a concurrent resolution was an improper way for the Michigan House of Representatives to approve the gaming compacts at issue. She contends that she should have received the opportunity to vote on legislation proposing the compacts. According to Baird, the Secretary of the Interior unlawfully endorsed the compacts, without obtaining the necessary approval of the state legislature,
The foregoing conclusion is consistent with, and mandated by, Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939), and Raines v. Byrd, 521 U.S. 811, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997). In Coleman, 20 of 40 Kansas state Senators voted against ratification of a constitutional amendment. The Lieutenant Governor then cast a tie-breaking vote in favor of the amendment, which was ratified as a result of his vote. Thereafter, the 20 members of the Kansas Senate who had voted against the amendment sought a writ of mandamus from the Kansas Supreme Court to compel state officials to recognize that the legislature had not ratified the amendment because the Lieutenant Governor should not have been permitted to vote. Upon review, the Kansas Supreme Court held that the legislators had standing to bring their mandamus action, but it ruled against them on the merits. The United States Supreme Court subsequently agreed, holding that the members of the legislature had standing. In reaching this conclusion, the Coleman Court noted that, if the legislators were correct on the merits, then their votes against ratification were nullified. In relevant part, the Court reasoned:
Coleman, 307 U.S. at 438, 441, 446, 59 S.Ct. 972.
The Supreme Court subsequently read Coleman narrowly in Raines, holding that members of Congress lacked standing to challenge the constitutionality of the Line Item Veto Act because they had not alleged a sufficiently concrete injury.
After restricting Coleman to the proposition set forth above, the Raines Court reasoned:
Id. at 824, 117 S.Ct. 2312 (footnote omitted).
Likewise, in the present case, it is evident that Baird's claim does not fall within the scope of Coleman, as interpreted by Raines. Baird does not contend that she voted against CR 115, that there were sufficient votes to defeat CR 115, and that CR 115 nevertheless went into effect. To the contrary, Baird was plainly on the losing side with respect to the vote on the concurrent resolution. As in Raines, then, her vote was given full effect. She simply lost that vote.
Baird's true complaint is that she was deprived of the opportunity to vote on the compacts in the manner prescribed by the Michigan Constitution (i.e., she was deprived of the opportunity to vote on legislation proposing the compacts). In particular, she reasons that
(Appellants' Brief at 12).
Upon review, I cannot agree with Baird's assertion that the present case is analogous to Coleman, particularly as it has been narrowly construed by Raines. As noted above, Coleman stands "at most" for "the proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific legislative Act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified." Raines, 521 U.S. at 823, 117 S.Ct. 2312 (footnote omitted). Under this test, Baird lacks standing. The only "specific legislative Act" or "legislative action" at issue in the present case is CR 115. Unlike the legislators in Coleman, Baird and the other opponents of the compacts lacked sufficient votes to defeat CR 115. Consequently, applying the language of Raines, it cannot be said that there were "sufficient votes" to defeat CR 115, but that it went into effect anyway, thereby nullifying the vote of Baird or the other opponents of the concurrent resolution. Consequently, even if Baird and her colleagues had sued as a bloc, they still would lack Article III standing. Contrary to Baird's assertion, the Secretary of the Interior's approval of the gaming compacts did not nullify anyone's vote.
Insofar as Baird suggests that the Secretary of the Interior unlawfully endorsed the gaming compacts without obtaining proper approval from the Michigan legislature (i.e., approval in the form of legislation as opposed to the allegedly "null and void" concurrent resolution), her "injury" is insufficient to confer Article III standing. Baird complains that the Secretary's endorsement of the gaming compacts, subsequent to the passage of the concurrent
In Chenoweth, the court held that members of Congress lacked standing to challenge the constitutionality of an Executive Order for the protection of rivers. The legislators in Chenoweth claimed that former President Clinton's creation of a river preservation program by Executive Order deprived them of "`their constitutionally guaranteed responsibility of open debate and vote on issues and legislation' involving interstate commerce, federal lands, the expenditure of federal monies, and implementation of the [National Environmental Policy Act]." Id. at 113. The district court dismissed the lawsuit for lack of standing, reasoning that the legislators' injury — the loss of their right to vote on the preservation program — was "too abstract and not sufficiently specific to support a finding of standing." Id. Upon review, the District of Columbia Circuit Court of Appeals affirmed. Relying upon Raines, the appellate court reasoned:
Id. at 115.
In short, the Chenoweth court concluded that the legislators' alleged "injury in fact" — their loss of the right to vote on the river preservation program due to "the President's successful effort `to usurp Congressional authority by implementing a program, for which [he] has no constitutional authority, in a manner contrary to the Constitution'" — was insufficient to confer Article III standing.
Likewise, in the present case, Baird contends that the Secretary of the Interior's endorsement of the gaming compacts, which occurred in the absence of legislation authorizing them, deprived her of the right to vote on the compacts in the manner prescribed by the Michigan Constitution. As in Chenoweth, however, her loss of the right to vote, as the result of allegedly unlawful executive action,
In conclusion, I note that the foregoing reasoning is consistent with Saratoga County Chamber of Commerce, Inc. v. Pataki, 275 A.D.2d 145, 712 N.Y.S.2d 687 (N.Y.App.Div.2000), which was decided approximately three weeks after oral argument in the present case. In Saratoga County, New York state legislators and others sued Governor Pataki, alleging that he improperly entered into an Indian gaming compact, pursuant to the IGRA, without obtaining approval from the state legislature. The plaintiff legislators in Saratoga County were deprived of any opportunity to vote for or against the gaming compact, as Governor Pataki never presented the compact to the legislature at all. Upon review, the appellate court held that the legislators' alleged "injury" — denial of their right to vote on approval of the compact — was insufficient to confer "legislator standing" upon them.
Likewise, Baird argues that the Secretary of the Interior acted unlawfully by endorsing the gaming compacts without obtaining valid approval from the Michigan legislature, as required by state law. As in Saratoga County, Baird complains that she was deprived of the opportunity to vote on legislation.
Based on the reasoning and citation of authority set forth above, I agree that Baird lacks Article III standing to challenge the actions of the Secretary of the Interior, but for reasons other than her failure to sue as part of a bloc.