William J. Danhof(P24169) | Jeffrey S. Aronoff (P67538) | Miller, Canfield, Paddock and Stone, P.L.C. | 150 West Jefferson Suite 2500 | Detroit MI 48226 | 313-963-6420

This honorable Court’s guidance to the Legislature and lower courts on the issues presented in the case at bar will serve to settle important matters of constitutional construction and legislative prerogative. This case meets several of the standards set forth in MCR 7.302(B), and therefore merits this Court’s review. It involves a challenge to the longstanding principle of local control – a challenge embodied in an act of the
Legislature, 2005 PA 103, MCL 247.183(2), which conflicts with and undermines the Consent Clause of Const 1963, art 7, § 29, a provision expressing the framers’ intent that municipalities should retain control over the use of their public rights of way. As such, this case clearly involves a substantial question as to the validity of a legislative act, as described in MCR 7.302(B)(1). Moreover, this case meets the standard described in MCR 7.302(B)(2); the State of Michigan is a named co-defendant-appellee and the constitutional issue of a city’s right to grant or withhold consent to the use of its rights of way has significant public interest. Finally, as set forth in more detail in this brief, this
case meets the standard described in MCR 7.302(B)(5); the Court of Appeals decision is clearly erroneous and will cause material injustice, as it approves an act of the Legislature
which, on its face and in practice, diminishes local governments’ ability to protect their communities from harmful outside interests. The relationship between Const 1963, art 7, §§ 22 and 29 is not only a constitutional question of great import, but a novel one, as well. Amicus curiae is not aware of any instance in which Michigan appellate courts have addressed this question outside of the litigation at hand. Prior to the enactment of 2005 PA 103, this Court was presented with litigation of these matters between these parties, and it is the position of amicus curiae that this Court properly decided that case on statutory grounds. Since this Court’s decision in Lansing v Wolverine I, Defendant-Appellee Wolverine Pipe Line
Company was able to secure legislative relief in the form of
2005 PA 103. The Legislature’s action now begs the constitutional question.

Michigan Supreme Court:
On order of the Court, the motion for leave to file brief amicus curiae is GRANTED. The application for leave to appeal the May 8, 2007 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

This case is a continuation of the battle by the city of Lansing to exercise control of its rights of way with respect to Wolverine Pipeline’s proposed installation of a liquid petroleum pipeline underneath five city streets. In that case, the city refused to
consent to Wolverine’s proposed pipeline. Ultimately, the Michigan Supreme Court held that the city’s consent was required pursuant to state statute before construction of the
pipeline could be begun. As a result of that ruling, Wolverine and its oil industry companions lobbied for—and got—legislative modification of the statute eliminating the
obligation to obtain local consent. Following the Legislature’s amendment of the Act, this action was filed by the city in circuit
court on the basis that the Michigan Constitution required Wolverine to obtain consent from the city. The circuit judge ruled that the city’s ability to withhold its consent under Const 1963, art 7, sec 29 was weakened by the Michigan Supreme Court’s decision in City of Taylor v Detroit Edison. Lansing appealed, arguing that the Taylor decision addressed the
reasonable control clause of art 7, sec 29 of the Michigan Constitution and did not address the municipal consent clause of the same section. The consent clause basically provides that no public utility shall have the right to use a right of way located within a municipality without its consent.