Would Michigan Prop 6 prevent the DRIC bridge? - a discussion with DRIC supporters

October 13, 2012
By Peter Samuel

TOLLROADSnews has had an extended back & forth with proponents of the new Detroit-Windsor bridge championed by state governor Rick Snyder and the Canadian Government, and opposed by the Michigan legislature, the Ambassador Bridge company and a group it supports called The People Should Decide.

We engaged Tom Shields first. He is president of Market Resource Group in Lansing which does advocacy and lobbying on behalf of the new bridge and is working to stop Proposition 6. Shields is the spokesman for Build the DRIC Now group.

SAMUEL: Mr Shields, a question for you as a leading campaigner against Proposition 6: You say the Snyder-Harper agreement means that Canadian taxpayers will carry all the costs of a new international toll bridge, and that no Michigan state funds are needed.

Why, if no state funds are needed, do you so strongly oppose Proposition 6 which would bar the use of state funds without a popular vote?

SHIELDS: If proposal 6 simply stated that no state tax dollars could be spent on an international bridge, we wouldn't care because that is exactly what the agreement says.  But Proposal 6 says that a new bridge cannot be constructed without a vote even if there are no costs to Michigan Taxpayers.

The state could not accept a free bridge without a vote.

If the Moroun family was only concerned about the taxpayer, then they would have limited their proposal to spending state funds. And if they were really concerned about the taxpayer, they would have insisted on a statewide and local vote before Michigan taxpayers spent $230 million for the Gateway project to connect their private bridge to the public expressway system.

However, the proposal is so sloppily worded, it could force a vote on every single bridge built in Michigan. Michigan cannot take the chance on jeopardizing hundreds of bridge and infrastructure projects for years.

SAMUEL: response and followup question:

I just don't see anything like a blanket prohibition on bridge construction in the text of either the ballot measure shortened for voters by the Michigan secretary of state's board of canvassers or in the full text of the proposed constitutional amendment.

As an aside, although it obviously isn't your intention, I think you are actually playing into the Morouns' hand by the expansive interpretation of Prop 6.

I don't see how a strict reading of the texts bars Canada from building the DRIC or for that matter other investors, or the City (if it had any money). Prop 6 just says the state can't build the new international bridge itself or provide funds. It bars the state of Michigan, sure, but not other governments or private entities on my reading.

Can you refer to anything in the texts below which supports your expansive interpretation?

http://www.michigan.gov/documents/Statewide_Bal_Prop_Status_145801_7.pdf

PROPOSAL 12-6
A PROPOSAL TO AMEND THE STATE CONSTITUTION REGARDING CONSTRUCTION OF INTERNATIONAL BRIDGES AND TUNNELS
This proposal would:
- Require the approval of a majority of voters at a statewide election and in each municipality where "new international bridges or tunnels for motor vehicles" are to be located before the State of Michigan may expend state funds or resources for acquiring land, designing, soliciting bids for, constructing, financing, or promoting new international bridges or tunnels.
- Create a definition of "new international bridges or tunnels for motor vehicles" that means, "any bridge or tunnel which is not open to the public and serving traffic as of January 1, 2012."
Should this proposal be approved?

YES NO __

http://www.michigan.gov/documents/sos/Full_Text_-_The_People_Should_Decide_399444_7.pdf

Full Text of Proposed Constitutional Amendment Petition Sponsor: The People Should Decide Proposal 12-6 Page 1

A proposal to amend the State Constitution regarding construction of international bridges and tunnels. (Proposal provided under an initiative petition filed with the Secretary of State on July 9, 2012.)
This proposal would add a new Section 6a to Article 3 of the State Constitution to read as follows:
Section 6a.

(1) The people should decide whether state government may construct or finance new international bridges or tunnels for motor vehicles. Consistent with this policy, and to shield the people from unnecessary burdens, the state shall not undertake ownership and development of or use state funds or resources for new international bridges or tunnels for motor vehicles unless first determined to be necessary and appropriate by majority vote of the people.

(2) The provisions in this subsection (2) shall apply in the interpretation of this section.

a) "Ownership and development" shall include all activities involving and
relating to all or part of commencing, constructing, or financing new international bridges or tunnels for motor vehicles, or related facilities, including but not limited to any one or more of the following: optioning or acquiring interests in property; promoting, designing, bidding, contracting for, or constructing; or in any manner directly or indirectly financing or assisting in financing property acquisition, design, or construction of such improvements.

b) "State" shall include the state of Michigan, and any one or more, or a combination of state agencies, authorities, commissions, districts, or other subdivisions or instrumentalities of state government.

c) The procedure for seeking a determination by majority vote of the people under this section shall be that procedure provided by law for the submission and approval of petitions to propose, enact, and reject laws by initiative under article 2, 9 of this constitution, with the exceptions that: 1) a proposal under this section may not be approved by the legislature in lieu of a vote of the people; and 2) an approval by the people shall require an affirmative vote of a majority of electors in both (A) the state and (B) each municipality in which improvements are situated, considering the impact on local services and facilities and that public ownership and operation would impact local property taxation.

d) "New international bridges or tunnels for motor vehicles" shall mean any bridge or tunnel which is not open to the public and serving traffic as of January 1, 2012. No vested rights are attributed to any state international bridge or tunnel initiative that is not serving traffic as of that date.

e) Any ambiguity in the interpretation of this section shall be resolved in favor of shielding the people from practical or financial burdens associated with state
government ownership and development of international bridges and tunnels for motor vehicles. (Full Text of Proposed Constitutional Amendment Petition Sponsor: The People Should Decide Proposal 12-6 Page 2)

SAMUEL: first page of the Snyder-Harper Crossing Agreement reads:

EXECUTION COPY
CROSSING AGREEMENT
Initial Execution Date: June 15, 2012
Parties:
Her Majesty the Queen in Right of Canada, as represented by the Minister of Transport
("Canada").
-and-
Crossing Authority ("Crossing Authority"), an entity to be established by Canada
pursuant to and subject to the Laws of Canada after the Initial Execution Date.
-and-
State of Michigan ("Michigan"), in its own right, as represented by its Governor, and by
and through, the Michigan Department of Transportation ("MDOT"), a department of
Michigan and the Michigan Strategic Fund ("MSF"), a public body corporate and politic
and public agency of Michigan (individually referred to as a "Michigan Party" and
collectively referred to as the "Michigan Parties").

Synopsis:

The Crossing Agreement provides a framework for a Crossing Authority established by Canada to design, construct, finance, operate and maintain a new International Crossing between Canada and Michigan, under the oversight of a jointly established International
Authority with three members appointed by Canada and the Crossing Authority and three members appointed by the Michigan Parties, and with funding approved by Canada, but with no funding by the Michigan Parties. The Michigan Parties are not obligated to pay any of the costs of the new International Crossing. (end quotes)


SHIELDS: The heading of the proposal says: A proposal to amend the State Constitution regarding construction of international bridges and tunnels.

Then the first line says:"The people should decide whether state government may construct or finance new international bridges or tunnels for motor vehicles. Consistent with this policy, and to shield the people from unnecessary burdens, the state shall not undertake ownership and development of or use state funds or resources for new international bridges or tunnels for motor vehicles unless first determined to be necessary and appropriate by majority vote of the people."

So we (state of Michigan - editor) cannot take ownership of a free bridge.

The definition of international bridge is: "shall mean any bridge or tunnel which is not open to the public and serving traffic as of January 1, 2012"

The definition is very clear. It means "any bridge." There are 180 state and local bridges being built this year or planned for 2013 and 2014. It would be insane to jeopardize those projects to protect the monopoly of one man.

SAMUEL: I begin to understand if not agree with your interpretation, so thanks.

It didn't occur to me that Michigan would expect to "take ownership" of the DRIC when the Canadians are bearing all the costs and the P3 partner is working to a contract with a Canadian government entity. It seems to me the Snyder-Harper agreement is that it is effectively a Canadian owned bridge, so there is no justification for the state of Michigan to have any ownership. There is no reason for the state to claim any ownership I can see.

The clarification you quote "shall mean any bridge or tunnel which is not open to the public and serving traffic as of January 1, 2012." is a clarification of "new." I can't see how you can suggest an added clarifying cause to "new" suddenly expands the scope of the whole measure from international to intra-state or local bridges.

That's a ridiculous stretch when everywhere else the adjective 'international' precedes bridge and tunnel.

I do agree with you the wording is sloppy in places.

SHIELDS: Peter, the bridge will be jointly owned by the state of Michigan and Canada.

There will be a joint authority established to oversee the selection of the vendors and the development, operation and maintenance of the bridge. Once the bridge is paid off and the Canadians are paid back from the tolls, Michigan and Canada will equally share all revenues. Michigan will share in every aspect except paying the costs.

On the language, the definition is for "international bridge" not the word "new." They were trying to make it retroactive and got careless with the language. That language will appear on the 100 word description on the ballot.

I'm not a judge and I don't know how one would rule, but it doesn't make any sense to take a chance that all other bridges and tunnels would be affected. They do not define international bridge anywhere else in the petition. This is not a piece of legislation that can be easily amended. This is our Constitution. Sloppy, special interest carve out amendments do not belong in our state's Constitution.

SAMUEL:  I can see part IV Interpretations (nn)  p8"Michigan Crossing" defined without any reference to ownership followed by (oo) "Michigan Crossing Facilities" and "Michigan Crossing Lands" defined as owned by Michigan. But I don't see any other references at all to Michigan ownership.

I agree the agreement allows for Michigan state ownership.

But I don't see anything in the Crossing Agreement that requires the state of Michigan to "take ownership" of any part of the new bridge.

The agreement Part V Section 2 p14 explicitly gives the Canadians' Crossing Authority "the capacity, rights, and powers of a natural person...(and to) conduct its affairs and exercise its powers in Michigan..." Those powers and rights surely include the ownership of land and bridge facilities and the bridge itself in Michigan.

Therefore by having the Crossing Authority own everything it is paying for in Michigan you would allow the DRIC to be built despite Prop 6 being made part of the state constitution and without a need for the popular vote.

Where do you see an obstacle or objection to full Crossing Authority ownership of the new bridge?

Is there any need for any Michigan state ownership?

SHIELDS: Peter, I'm not an attorney or an expert in the Crossing Agreement. However, Michigan is an equal partner in the authority. They are an equal partner in the bridge, except for the funding liability.

We do not believe you can undo an agreement that is already in place and active with an election. However, we believe the Morouns will use this proposal, if it passes, to go to court to delay the project even further. If this was really about protecting taxpayers, why didn't just stop at prohibiting funding?

SAMUEL: No no no Tom, the Harper-Snyder agreement clearly describes the Crossing Authority as a 100% Canadian entity. Michigan is an equal partner only in the International Authority but that outfit exercises only loose oversight.... the agreement provides for two distinct authorities, the main and substantial one being 100% Canadian.

I can see your point that passage of Prop 6 would lay the grounds for the Morouns to try to delay the DRIC by legal challenges etc.

But I think those challenges would fail.

Where we still differ I'm sure is that you think the DRIC is needed and urgently needed, whereas I think along the lines of O'Keefe's report that there is no urgency. Delay is prudent.

SHIELDS: It's a free bridge. The cost is right. The timing is good. Michigan needs the jobs, now. It sends the right message to the business community that Michigan is open for business. Different Canadian administrations may not be so generous in the future.

You should survey every trucker who has to use that bridge to see if they support a new one.

SAMUEL: thanks, you have the last word... on this occasion anyway.

Richard McLellan

We also asked Richard D McLellan a lawyer in Lansing MI his opinion on the strength of Prop 6.

SAMUEL: Mr McLellan, The Harper-Snyder Crossing Agreement of 2012-06-15 doesn't spell out who has legal title to the bridge and approaches and facilities in Michigan. And as I read it the Agreement gives the Crossing Authority the power to own those assets. I raise the issue because Proposal 6 has a phrase in it barring the state of Michigan it from "undertaking ownership" of new international crossings without majority votes etc.

http://www.michigan.gov/documents/sos/Full_Text_-_The_People_Should_Decide_399444_7.pdf

My question is: Do you see any legal problem in the Crossing Authority owning the 'Michigan Crossing' - the bridge, approaches and plaza on the US side?

McLELLAN: First, I hope the Moroun proposal does not pass. Although the possible deal between Moroun and the UAW is troubling.

Second, as I understand it, neither the state of Michigan nor any of its instrumentalities will "own," i.e., have title to the bridge. The bridge will be financed by Canada and the Crossing Authority will essentially be a Canadian entity, not "a combination of state agencies, authorities, commissions, districts, or other subdivisions or instrumentalities of [Michigan] state government"

Michigan will have membership on the International Authority which has a limited role, but not ownership.  I haven't gone back over the Crossing Agreement to double check, but you are right that the phrase ownership could be critical in the event the proposal passes.

The focus of the Moroun proposal is "the state shall not undertake ownership and development...." One challenge is that the proposal defines ownership and development in a way that is much broader that the common understanding of the term ownership.

It is also possible that the term "and" could be significant.

No matter what, if the proposal passes, it will be a lawyer bonanza (too bad I am retired).

SAMUEL: Thank you, yes trying to build bridges there certainly provides employment for lawyers, if not for bridge builders.

Proponents website:
 
http://buildthedricnow.com

Prop 6 supports:

http://thepeopleshoulddecide.com

TOLLROADSnews 2012-10-12

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