130HT3

PRIOR HISTORY: [***1]

Kalamazoo Circuit Court. LC No. 93-000860-AZ.

DISPOSITION:

Reversed and remanded.

COUNSEL: Robert H. Cinabro, City Attorney, for the plaintiff. Kalamazoo.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Allan J. Soros, Assistant Attorney General, for the defendant.

Amicus Curiae:

Laurie S. Longo, for Michigan Municipal League. Ann Arbor.

JUDGES: Before: White, P.J., and Cavanagh and Reilly, JJ.

OPINION: [**477] [*133]

AFTER REMAND

PER CURIAM.

After a bench trial, the trial court issued a judgment dismissing plaintiff's action on its merits. Plaintiff appeals as of right. We reverse and remand.

This case, which is before us for a second time, arises out of plaintiff's opposition to defendant's placement of a community corrections center within the city of Kalamazoo. In March of 1993, plaintiff filed a complaint for injunctive and declaratory relief seeking to prevent defendant from following through on its announced plans to locate a new community corrections center on the grounds of the Kalamazoo Regional Psychiatric Hospital. Plaintiff relied, in part, n1 [*134] on § 1005 of 1992 PA 163, the general appropriations bill for the Department of Corrections for 1993, which provided: [***2]

The department shall not locate a new community corrections center in a residential neighborhood unless the location of the proposed community corrections center has the support of the local unit of government in whose jurisdiction the community corrections center is proposed to be located. If the local unit of government does not give its support for that location, the local unit of government shall provide an alternative site within the local governmental unit's jurisdiction for the proposed community corrections center.

Plaintiff's complaint alleged that the proposed site was in a residential neighborhood, that plaintiff had expressed its opposition to the proposed site, and that plaintiff had suggested an alternate site within the city of Kalamazoo. After a hearing regarding plaintiff's motion for a preliminary injunction, the trial court dismissed the portion of plaintiff's complaint that relied on § 1005. The trial court reasoned that § 1005 was unconstitutional under the Title-Object Clause of the state constitution, Const 1963, art 4, § 24. After the trial court entered a final order, and defendant transferred inmates into the proposed community corrections [***3] center, plaintiff appealed as of right, and this Court reversed. See Kalamazoo v Dep't of Corrections, 212 Mich. App. 570; 538 N.W.2d 85 (1995). On remand, after a bench trial, the trial court again dismissed plaintiff's cause of action, and this appeal followed.

n1 Plaintiff also claimed that the proposed community corrections center would be a nuisance. This claim was dismissed without prejudice pursuant to a stipulation by the parties before plaintiff's first appeal as of right.

On appeal, plaintiff argues that the trial court erred in failing to follow this Court's prior ruling regarding the issue of the scope of defendant's authority regarding [*135] the placement of the challenged community corrections center. We agree. This Court reviews questions of law de novo. Shurlow v Bonthuis, 218 Mich. App. 142, 148; 553 N.W.2d 366 (1996).

The law of the case doctrine provides that "if an appellate court has passed on a legal question and remanded the case for further proceedings, the legal questions thus [***4] determined by the appellate court will not be differently determined on a subsequent appeal in the same case where the facts remain materially the same." CAF Investment Co v Saginaw Twp, 410 Mich. 428, 454; 302 N.W.2d 164 (1981). Likewise, a trial court may not take any action on remand that is inconsistent with the judgment of the appellate court. Sokel v Nickoli, 356 Mich. 460, 464; 97 N.W.2d 1 (1959); VanderWall v Midkiff, 186 Mich. App. 191, 196; 463 N.W.2d 219 (1990). Thus, as a general rule, a ruling on a legal question in the first appeal is binding on all lower tribunals and in subsequent appeals. See Driver v Hanley (After Remand), 226 Mich. App. 558, 565; 575 [**478] N.W.2d 31 (1997); Poirier v Grand Blanc Twp (After Remand), 192 Mich. App. 539, 546; 481 N.W.2d 762 (1992). The law of the case doctrine applies only to questions actually decided in the prior decision and to those questions necessary to the court's prior determination. Poirier, supra at 546. The rule applies without regard to the correctness of the prior determination. Driver; supra at 565; Bennett v Bennett, 197 Mich. App. 497, 504; 496 N.W.2d 353 (1992). The primary purpose of the rule [***5] is to maintain consistency and avoid reconsideration of matters once decided during the course of a single lawsuit. Bennett, supra at 499-500. Finally, the law of the case doctrine does not operate as a limitation on the power of appellate [*136] courts, but rather as a discretionary rule of practice. See Locricchio v Evening News Ass'n, 438 Mich. 84, 109; 476 N.W.2d 112 (1991).

In the first appeal of this case, a panel of this Court held that § 1005 of 1992 PA 163 was constitutional under the Title-Object Clause, that § 1005 placed a condition on defendant's use of appropriations for community corrections facilities, and that the trial court erred in dismissing plaintiff's complaint. Kalamazoo, supra at 571-573. Addressing an alternative ground argued by defendant in support of the trial court's dismissal, this Court also held:

There is no question in this case that the Legislature expressly intended, through the inclusion of § 1005 in the appropriations act, to require that the Department of Corrections receive the support of a local unit of government before placing a community corrections center. [Id. at 573-574 (emphasis added).]

In support of [***6] this holding, the Kalamazoo Court distinguished Dearden v Detroit, 403 Mich. 257; 269 N.W.2d 139 (1978), a case in which the Michigan Supreme Court held that the authority of the Department of Corrections was not subject to municipal zoning ordinances passed pursuant to the zoning enabling act. Kalamazoo, supra at 573-574. The Kalamazoo Court reasoned that, unlike the zoning enabling act at issue in Dearden, supra at 266-267, the language of the appropriations act at issue in this case contained an expression of legislative intent to restrict the exclusive jurisdiction of the Department of Corrections. See Kalamazoo, supra at 573-574.

On remand, however, the trial court ruled that the Legislature's clear intent was to give the Department [*137] of Corrections complete control over the placement of its facilities. In so ruling, the trial court relied on Dearden, supra, and on appropriations bills passed in 1993 and 1994, which contained language somewhat different than that contained in § 1005 of 1992 PA 163. The trial court explained its decision as follows:

Like the case of Dearden v City of Detroit, 403 Mich. [257; 269 N.W.2d 139] (1978), the ultimate question is [***7] one of legislative intent. Our Legislature has demonstrated clearly, through revisions in appropriations bills subsequent to that on which plaintiff relies, and subsequent to Dearden, that the Department of Corrections has the power to control siting of its facilities. But for this clear expression of legislative intent, plaintiff may have prevailed; but in the face of it, it cannot.

Plaintiff relies on the above quoted language of the 1992 appropriations bill. Defendant, however, correctly points out that this language has undergone repeated, and significant revision. In 1993 this section was changed to read: "It is the legislature's intent that the department avoid locating a new community corrections center in a residential neighborhood unless the location . . . has the support of the local unit of government . . . . If (it) does not give its [**479] support for that location, (it) shall provide an alternative site . . . ."

Again in 1994 this language was modified further enhancing the discretion of the department. It reads: "It is the legislature's intent that the department avoid locating a new community corrections center in a residential neighborhood unless the [***8] location . . . has the support of the local unity [sic] of government . . . . If the local unit of government does not give its support for that location (it) shall provide an alternative site that is acceptable to the department."

This interpretation of the extent of the power to site which the Legislature has evidenced it intends to extend to the department through its appropriation process is consistent with the extent of the jurisdiction granted to the department as interpreted by Dearden. The court read that [*138] statute ( MCL 791.204 [MSA 28.2274]) as "a clear expression of the Legislature's intent to vest the department with complete jurisdiction over the state's penal institutions, subject only to the constitutional powers of the executive and judiciary, and not subject in any way to any other legislative act . . . . This language evidences a legislative intent to nullify the effect of any other statute which is inconsistent with the department's exclusive jurisdiction over the state's penal institutions as granted in this act." (Page 265-266).

Finally, it should be noted in passing that at the final hearing on this matter, no evidence showed that any of the proffered [***9] sites were acceptable to the department.

For these reasons, plaintiff's complaint must be dismissed. Defendant shall prepare an order consistent with this opinion.

By revisiting the issue of legislative intent, ignoring the fact that a panel of this Court had already distinguished Dearden, supra, and ultimately ruling that defendant's authority to control the placement of the community corrections center was not subject to the express condition contained in § 1005 of 1992 PA 163, the trial court failed to follow the law of the case established in plaintiff's first appeal.

An exception to the law of the case doctrine applies where there has been an intervening change in the law. Freeman v DEC Int'l, Inc, 212 Mich. App. 34, 38; 536 N.W.2d 815 (1995); Bennett, supra at 503. For the exception to apply, the change of law must occur after the initial decision of the appellate court. Freeman, supra at 38. A change of law that occurs after the trial court's decision but before the appellate court's initial decision does not prevent application of the law of the case doctrine, because the proper remedy in that instance is either a petition for rehearing before [***10] the trial court or an appeal to a higher court. Id. In this case, the trial court on remand relied on [*139] portions of the two appropriations acts passed in the years immediately following the passage of 1992 PA 163. However, for two reasons the trial court's reliance on these subsequent appropriations acts does not trigger the "intervening change in law" exception to the law of the case doctrine.

First, there was no change in the relevant law. Plaintiff's complaint was based on § 1005 of 1992 PA 163, which, as this Court explained in plaintiff's first appeal, "places a condition on defendant's use of appropriations for community corrections facilities." Kalamazoo, supra at 572. With certain constitutional limitations, the Legislature may place conditions on the receipt of appropriations. See Lewis v State, 352 Mich. 422, 430; 90 N.W.2d 856 (1958); Bd of Agriculture v Auditor General, 226 Mich. 417, 425; 197 N.W. 160 (1924); Kalamazoo, supra at 572. When an appropriation made subject to a constitutionally valid condition is accepted, the condition becomes binding on the party receiving the appropriation. See Regents of the Univ of Michigan v Michigan, 395 Mich. 52, 65; [***11] 235 N.W.2d 1 (1975); Bd of Regents of the Univ of Michigan v Auditor General, 167 Mich. 444, 451; 132 N.W. 1037 (1911). Accordingly, assuming defendant used funds from the 1993 appropriation (1992 PA 163) for the community corrections facility at issue, defendant was bound by the condition contained in § 1005 of 1992 PA 163, the act at issue, regardless of the language contained in the subsequent appropriations. n2

n2 We do not address the question whether the Legislature could, if it chooses, resolve the matter by enacting other legislative provisions not at issue here.

Second, the "change" in the language of the appropriations acts referred to in the trial court's opinion [*140] occurred before the initial decision of the appellate court. Plaintiff's [**480] first appeal was submitted to this Court on May 10, 1995. Accordingly, the prior panel of this Court either (1) did not consider the appropriations acts passed in 1993 and 1994, or (2) considered them and determined them to be irrelevant. In either [***12] event, the prior panel's determination should not be disturbed. See Bennett, supra at 500-501. Therefore, because the law of the case established in plaintiff's first appeal is that § 1005 of 1992 PA 163 placed a condition on defendant's use of appropriated funds for community corrections facilities, see Kalamazoo, supra at 572-574, we hold that the trial court erred in ruling that defendant's authority to control the placement of the community corrections center at issue was not subject to the condition contained in § 1005 of 1992 PA 163.

Finally, plaintiff contends that it is entitled to the injunctive relief requested in its complaint. However, because the trial court did not make findings of fact with respect to the issue of defendant's compliance with § 1005 of 1992 PA 163, we cannot order the relief requested by plaintiff. Instead, we remand for proceedings consistent with this opinion.

Reversed and remanded. We do not retain jurisdiction.

/s/ Helene N. White

/s/ Mark J. Cavanagh

/s/ Maureen Pulte Reilly