Def Resp Brief 091809

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September 18, 2009

VIA HAND-DELIVERY Clerk of the Court Hon. Michael F. Sapala Two Woodward Ave., Rm. 1707 Coleman A Young Municipal Building Detroit, MI 48226 RE: Parise v. Detroit Entertainment, LLC Case No. 09-007370-CZ Dear Mr. Cusumano: Enclosed please find the following documents regarding the above mentioned maiter that was filed with the court today:

1. Defendant's Response BriefIn Opposition To Plaintiff's Motion For Summary Disposition; and 2. Proof of Service.

Very Truly Yours,

~~ Deborah Brouwer DB/sh Enclosures cc:

Frank A. Cusumano, Esq. (via hand-delivery)

Working with Employers to Prewllt, Resolve, and Litigate Empl~)!ment Di~putes

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE

IT ALO M. PARISE,

Plaintiff,

Case No. 09-007370-CZ Hon. Michae! F. Sapala

-vs-

DETROIT ENTERTAINMENT, L.L.c.,

Defendant.

Frank A. Cusumano (P42781) Attorney for Plaintiff 4000 Crooks Rd., Ste. 100A Royal Oak, MI 48073 (248) 822-8760

Patricia Nemeth (P3 7004)

Deborah Brouwer (P34872)

Louis B. Eble (P59368)

Nemeth Burwell P.C.

Attorney for Defendant

200 Talon Centre Dr., Ste. 200

Detroit, MI 48207

(313) 567-5921

DEFENDANT'S RESPONSE BRIEF IN OPPOSITION TO

PLAINTIFF'S MOTION FOR SUMMARY DISPOSITION

I. INTRODUCTION

Plaintiff, after lawfully gambling at MotorCity Casino (a fully licensed casino) for nine years, now wants his money back. In this suit, he claims that MotorCity Casino owes him the $673,854.00 he allegedly wagered and lost. Plaintiff's claim is premised on MCL § 600.2939 (the "Prior Act"), a statute first enacted 150 years before the legalization of nontribal gaming at the three Detroit casinos, which permits recovery by those who have lost money from illegal gaming activities.

Plaintiff's argument, if adopted by the Michigan courts, would create a

gaping loophole under which all risk would be removed for bettors gambling in the Detroit casinos, thereby ensuring that all such casino gaming would grind to a screeching halt. A casino not allowed to keep its winnings obviously cannot survive. A ruling in Plaintiff's favor would completely thwart the will of the people of Michigan, who specifically voted in 1996 to allow casino gaming in the City of Detroit pursuant to an initiated law known as Proposal

Such a ruling would also thwart the will of

the Legislature, which foresaw the obvious potential for conflict between, on the one hand, the authorization of legalized gambling in Detroit, and, on the other hand, the existence of a scheme of pre-existing laws, which were enacted when gambling was uniformly illegal throughout the State. In Proposal E as amended, the Legislature expressly provided that "[a]ny other law that is inconsistent with this act does not apply to casino gaming as provided for by this act." See MeL § 432.203(3). The law upon which Plaintiff relies allows bettors to sue

to recover any losses incurred in illegal gaming and clearly is inconsistent with the legal casino gaming in Detroit authorized by Proposal E, as amended.

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Because the law upon which Plaintiff relies does not apply to the casino gaming offered by Defendant and pursuant to which Plaintiff admittedly wagered and lost, Plaintiff has failed to state a claim upon which relief can be granted and is not entitled to summary disposition. Accordingly, Defendant requests that the Court deny Plaintiffs motion for summary disposition, grant Defendant's motion for summary disposition, and award Defendant its costs and fees incurred as a result of Plaintiff s frivolous lawsuit.

II. FACTUAL BACKGROUND Historically, gaming was illegal in Michigan, as codified by the Prior Act and certain penal provisions rendering gaming a crime subject to prosecution. Over the years, numerous forms of regulated gaming have been authorized, including the State lottery, l charitable gaming such as bingo games and millionaires' parties,2 pari·mutuel race track betting3 and tribal gaming, which is conducted throughout the State and has been for more than 20 years. On November 5, 1996, more than 1.8 million individuals voted to further expand gaming in Michigan by authorizing gambling at three licensed casinos in Detroit pursuant to Proposal E, known as the Michigan Gaming Control and Revenue Act. Proposal E became effective on December 5, 1996. In 1997, the Legislature amended that initiated law by enacting Public Act 69, which became effective on July 17, 1997. The Michigan Gaming Control and Revenue Act as amended is codified as MCL §§ 432.201 et seq. (the "Gaming Act") [Ex. A]. The Gaming Act is a comprehensive statute governing all aspects of casino gaming at the three licensed Detroit casinos (including Defendant MotorCity Casino) and setting forth in detail the rights and obligations of everyone

MCL 432.1 et. seq. 2 MCL 432.101 et. seq. 3 MCL 432.301 et. seq. I

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who participates in gambling at these facilities. Indeed, the Gaming Act specifically provides that gaming is authorized only "to the extent that it is conducted in accordance with this act." MCL § 432.203(1). To legalize nontribal casino gambling in Michigan, the Gaming Act obviously had to render inapplicable all pre-existing laws inconsistent with its provisions. Otherwise, for example, Michigan's penal laws would have continued to criminalize what the Gaming Act expressly legalized. To avoid any confusion in this regard, the Legislature expressly stated that all inconsistent laws simply do not apply to casino gaming as authorized by the Gaming Act. Specifically, the Gaming Act provides: Any other law that is inconsistent with this act does not apply to casino gaming as provided for by this act.

MCL § 432.203(3). That statutory section is key to the resolution of the legal issues raised in the cross motions for summary disposition pending before this Court. For purposes of those motions, the essential facts of this matter are not in dispute. On March 30, 2009, PlaintiffItalo Parise filed suit against MotorCity Casino, seeking return of the $673,854.00 that Plaintiff claims to have 4

lost legally gambling at MotorCity Casino during the nine years between 2000 and 2009. The Complaint cited no legal authority in support of his claim and alleged that he was a "patron, customer and business invitee" of MotorCity Casino, and as such "engaged in gaIning activities, including placing wagers on games of chance." [Ex. A - Complaint, ~ 8]. Plaintiff further alleged that he lost money to MotorCity Casino by gaming. [Ex. A - Complaint, ~ 9] Attached to the Complaint was a sworn Affidavit from Plaintiff, stating that:

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The Complaint was not served on Defendant until June 10,2009.

4

3. Between February 25, 2000 and March 22, 2009, I lost money by gaming to MotorCity .... through the loss of wagers and bets placed on games of chance commonly known as slot machines, table games, including "Black Jack" and other occasional table games, gaming devices or games of skill and chance. 5. The total money loss transferred from me to MotorCity by losses and now in the hands of MotorCity from gaming during the above mentioned period was Six Hundred Seventy Three Thousand Eight Hundred Fifty Four and 00/100 ($673,854.00) after set-offs for any winnings ... [Ex. B - Affidavit attached to Plaintiff's Complaint]. In lieu of an answer, on July 14, 2009, Defendant timely filed a Motion for Summary Disposition pursuant to MCR 2.116(C)(8), based upon the absence of any valid legal theory supporting Plaintiff s claim for relief. Defendant also cited statutory and regulatory authority establishing that this Court lacks jurisdiction over Plaintiffs claim. 5 PlaintitT responded to Defendant's Motion on July 17, 2009, submitting two pleadings to the Court, one labeled "Plaintiffs Motion for Summary Disposition" and the other labeled "Plaintiffs Response to Defendant's Motion for Summary Disposition," which were supported by identical briefs. In those briefs, Plaintiff claims to be entitled to judgment against MotorCity Casino in the amount of $673,854.00 pursuant to the Prior Act. Then, on August 5, 2009, without leave of the Court and before Defendant had the opportunity to respond to Plaintiffs Motion, Plaintiff filed what he titled "Supplemental Brief in Support of Plaintiff s Motion for Summary Disposition," which is essentially a reiteration of his initial position. Despite these multiple attempts to formulate a legally justiciable position that even arguably supports his claim for reimbursement

All disputes between patrons and the Detroit casinos concerning the conduct of gaming are within the exclusive jurisdiction of the Michigan Gaming Control Board. MCL § 432.204a Given that, in this case, Plaintiff does not allege any VvTongful, much less illegal, conduct by Defendant, or any violation of the Gaming Act but simply seeks relief under the Prior Act, 5

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of monies he lost while legally gambling, Plaintiff has failed to espouse any viable theory. Plaintiffs reliance on the Prior Act is simply misplaced, because the premise of and remedy under the Prior Act are entirely inconsistent with the la\\-ful casino gaming in which Plaintiff admittedly engaged, thereby making the Prior Act inapplicable pursuant to the express language of MCL § 432.203(3). Because Plaintiffs frivolous claim lacks any legitimate basis, his Complaint should be dismissed in its entirety and Defendant should be awarded sanctions.

III. ARGUMENT A.

Tile casino gaming offered by Defendant and engaged in by Plaintiff is governed exclusively by tile Gaming Act, wllicll provides 110 vellicle for recovery ofgambling losses.

The Gaming Act legalized casino gaming at three licensed Detroit casinos and created an extensive and comprehensive regulatory scheme governing the conduct of casino gaming at those casinos. The Gaming Act created a Michigan Gaming Control Board (the "board"), which has exclusive and expansive regulatory authority over the conduct of casino gaming at the three licensed casinos. See, e.g. MCL § 432.204a, which provides that "(1) The board shall have jurisdiction over and shall supervise all gambling operations governed by this act." The Gaming Act explicitly delineates the persons and activities covered by that statute. It specifies that a "casino" is a "building in which gaming is conducted" (see MCL §

432.202(g) and defines "gaming" to mean "to deal, operate, carryon, conduct, maintain or expose or offer for play any gambling game or gambling operation.,,6 It defines "gambling

which has no applicability whatsoever to the facts asserted by Plaintiff, this Court has jurisdiction to dismiss Plaintiff s claim for lack of any viable theory entitling Plaintiff to relief. 6 MCL § 432.202(x) 6

operation" as "the conduct of authorized gambling games in a casino"? and defines "gambling game" as: any game played with cards, dice, equipment or a machine ... including but not limited to faro, monte, roulette, keno, bingo, fan tan, twenty one, blackjack, seven and a half, klondike, craps, poker, chuck a luck, Chinese chuck a luck (dai shu),wheel of fortune, chemin de fer, baccarat, pai gow, beat the banker, panguingui, slot machine, any banking or percentage game, or any other game or device approved by the board ... 8

Further, a "wagerer" is defined by the Gaming Act as "a person who plays a gambling game authorized under this act.,,9 By his own admissions, Plaintiff's gambling at MotorCity Casino falls within the purview of the Gaming Act, not outside of it. MotorCity Casino, which Plaintiff concedes he visited in order to legally gamble over a nine-year period, falls within the Gaming Act's definition of a casino. [Ex. B - Plaintiff's Complaint, ~~ 6, 7]. Further, Plaintiff, by his own description of his activities at MotorCity Casino, was a wagerer as defined by the Gaming Act. Plaintiff admits that, while at MotorCity Casino, he placed: wagers and bets on games of chance commonly known as slot machines, table games including "Black Jack" and other occasional table games, gaming devices or games of skill and chance. [Ex. C - Plaintiff's Affidavit, ~ 3]. Plaintiff's Complaint also admits that he was a patron of MotorCity Casino and that he placed "wagers on games of chance, to wit: slot machines, and table games, including but not limited to a card game known as "blackjack." [Ex. B - Plaintiff's Complaint, ~ 8]. Plaintiff thus acknowledges, repeatedly and under oath, that he engaged in

MCL § 432.202(w) 8 MCL § 432.202(v) ?

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activities that bring him squarely within the definition of a \vagerer under the Gaming Act -- "a person who plays a gambling game authorized under this act."IO Plaintiff disingenuously argues, however, that his wagering activities at MotorCity Casino were somehow not governed by the Gaming Act, claiming (evidently on the basis of a reading of the Gaming Act definitions of "casino" and "gaming" in isolation and without reference to any other provisions of the statute) that the Gaming Act applies only and exclusively to the entities that operate casinos and not to patrons engaged in wagering at the casinos [Plaintiff s Brief in Support of Motion for Summary Disposition at 14-15; Supplemental Brief at 4] Plaintiffs contention in this regard ignores multiple provisions of the Gaming Act and is simply "'Tong. The Gaming Act under its terms governs all aspects of casino gaming which, by necessity, involves everyone participating in casino gaming, including not only the casino owners/operators but also casino employees and wagerers such as Plaintiff. Indeed, Section 3 of the Gaming Act explicitly states that "this act and rules promulgated by the board shall apply to all persons who are licensed or otherwise participate in gaming under the act." See MCL § 432.203( 4).

Section 4 of the Gaming Act confirms the application of the statute to all

participants in casino gaming; it specifically empowers the board to have "jurisdiction over and supervise casino gambling operations authorized by this act and all persons in casinos where gambling operations are conducted under this act (emphasis added)." See MCL § 432.204a(1 )(b). II

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MCL § 432.202(ii)

MCL § 432.202(ii)

The Court of Appeals in McEntee v Incredible Technologies, 2006 WL 659347 (2006), has

already held that the Gaming Act applies to all persons who "participate in gaming" as set forth

in the Gaming Act McEntee is more fully discussed in Section B, infra.

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The Gaming Act is also replete with other proVIsIOns governing patrons, including provisions designed to assist compulsive gamblers. 12 Under the Gaming Act, for example, wagerers are not permitted to place wagers on behalf of persons not present in the casino, and they are not permitted to place wagers using money or other negotiable cUlTency.13 Wagerers can only purchase chips or tokens from the licensed casino, inside the casino, and may only use such chips or tokens in the casino, for the purpose of placing a wager. 14 Persons under the age of 21 who are not employees cannot enter areas of a casino where gaming is being conducted nor can they place a wager. 15 Patrons are subject to criminal prosecution and permanent exclusion from the Detroit casinos in a variety of circumstances. 16

Patrons cannot carry

weapons in the casino. 17 Patrons who are placed on the disassociated persons list are prohibited from entering any of the Detroit casinos. 18 Given the breadth of these provisions relating to patrons, there is no merit to Plaintiffs argument that the scope of the Gaming Act does not extend to the patrons who engage in

12 The Legislature recognized that some persons may develop gambling problems, and thus included in the Gaming Act specific provisions addressing this important issue. The Detroit casinos are not permitted to place electronic funds transfer terminals within fifty feet of any game in the casino and are also prohibited from operating games played with devices allowing players to use a credit or debit card. The Detroit casinos are also required to pay money for deposit into the compulsive gambling prevention fund, and they are required to post the compulsive gambling helpline number in the casino and on certain advertising and promotional materials. The Legislature also created a process under which persons may request to be placed on a list of permanently disassociated persons. Persons on the list are balTed from gambling at the Detroit casinos for life; if a person on the list does gamble at one of the casinos, his/her winnings are subject to confiscation by the board. See, e.g. MeL § 432.209a; MeL § 432.212a; MeL § 432.209c; and MeL § 432.225. It does not appear that Plaintiff has sought the protection of the disassociated persons list. 3 MeL § 432.209(6) and (7) 14 MeL § 432.209 (8) 15 MeL § 432.209 (9) 16 MeL § 432.218(2) and (3) 17 R432.1212 18 MeL § 432.225(13)

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gaming at the Detroit casinos and thus does not apply to him. These provisions, coupled with the many Gaming Act provisions regulating the conduct of casino gaming by the casino ovvners/operators, make it clear that the casino gaming conducted at MotorCity Casino is governed exclusively by the Gaming Act. Nothing in that all-encompassing statute, however, permits the wagerer to recover losses arising from his/her participation in casino gaming authorized by and conducted pursuant to that statute. By his own admission, the losses Plaintiff seeks to recover arose precisely from such gaming activity at MotorCity Casino, not from gaming conducted outside of the scope of the Gaming Act. Accordingly, the remedy Plaintiff seeks is not available to him.

B.

The Gaming Act rendered the Prior Act inapplicable to the wagering activities in which Plaintiff engaged at MotorCity Casillo.

In order to effectuate the legalization of casino gaming at three licensed Detroit casinos, the Gaming Act expressly and unambiguously rendered inapplicable all pre-existing laws inconsistent with its provisions; it provided as follows: Any other law that is inconsistent with this act does not apply to casino gaming as provided for by this act. MCL § 432.203(3). When interpreting this statutory provision, the Court must give effect to the intent of the Legislature. In re !vICI Telecom Complaint, 460 Mich 396, 411; 596 NW2d 164 (1999). To detennine the intent of the Legislature, one must first look at the language of the statute itself House Speaker v State Admin Board, 441 Mich 547,567; 495 NW2d 539 (1993). If the statute is unambiguous on its face, the Legislature is presumed to have intended the meaning plainly expressed and further judicial interpretation is not permitted. Lorencz v Ford !viotor Co, 439 Mich 370,376; 483 NW2d 844 (1992). "Only where the statutory language is ambiguous may

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a court properly go beyond the words of the statute to ascertain legislative intent." Sun Valley

Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999). The Michigan Court of Appeals has already reviewed this specific Gaming Act provision and concluded that the Legislature intended its scope to be broad. In Kraft v Detroit

Entertainment, LLC, 261 Mich App 534; 683 NW2d 200 (2004), the Court concluded that the "Legislature's use of the phrase '[a]ny other law' [in MCL § 432.203(3)] implies that the preemption clause is all-inclusive when referring to the laws it was meant to encompass. That the phrase '[a]ny other law' sweeps broadly suggests that the Legislature meant to include common law in addition to legislative enactments." Id. at 546 (Emphasis added).

After

reaching this conclusion, the Kraft court analyzed whether the common law claims for fraudulent inducement to play slot machines asserted by the plaintiffs were inconsistent with the Gaming Act and concluded that they were. Id. at 547. A similar result should be reached in the instant case. Plaintiff relies on the Prior Act, which provides: In any suit brought by the person losing any money or goods, against the person receiving the same, when it appears from the complaint that the money or goods came to the hands of the defendant by gaming, if the plaintiff makes oath before the court in which such suit is pending, that the money or goods were lost by gaming with the defendant as alleged in the complaint, judgment shall be rendered that the plaintiff recover damages to the amount of said money or goods, unless the defendant makes oath that he did not obtain the same, or any part thereof by gammg ...

MCL § 600.2939(1). The Prior Act thus contemplates that anyone who is a "loser" of money or goods in gaming may recoup those losses. The Prior Act thereby sanctions the very conduct that the

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Gaming Act authorizes and seeks to facilitate. As applied to the licensed Detroit casinos, the premise of the Prior Act, that all losing bettors may recover their losses, is directly inconsistent with the fundamental concept underlying the Gaming Act, that betting on games of chance (with corresponding wins and losses) should occur in licensed Detroit casinos, thus generating revenues for the casinos' owners/operators, the City of Detroit and the State.

The legal

removal of any right to retain a bettor's losses would remove any incentive for legal non-tribal casinos to operate in Detroit, thereby eviscerating the central goal of the Gaming Act and thwarting the intent of the Legislature. 19 Additionally, because the Prior Act applies to both parties to an illegal game, if the Prior Act were somehow deemed to provide Plaintiff a remedy for monies lost at the Detroit casinos, it would also provide a remedy to each Detroit casino for monies won by a patron and, in tum, lost by the casino. The absurdity of such a result is selfevident. No patron would gamble at a Detroit casino if he could be immediately sued by the casino and forced to return his winnings (and "comps"). "1]t is a recognized rule of statutory interpretation that the courts will 110t construe a statute so as to achieve an absurd or unreasonable result." Luttrell v Dept a/Corrections, 421 Mich 93, 106; 365 NW2d 74 (1985). It would be absurd for the Legislature to authorize gaming, credit extension, and causes of action to recover anlOunts due for credit extended under the Ganling Act and then permit patrons and the casinos to recover their losses and/or render credit contracts unenforceable at will under the Prior Act. Accordingly, as applied to the legal non-tribal casinos in Detroit, the Prior Act is directly inconsistent with the Gaming Act and,

Plaintiffs argument that application of the Prior Act would not end casino gambling in Detroit because the casinos still retain the right to refuse bets is nonsensical. The right to refuse bets is no consolation if the bets that are allowed to be placed can be placed with no risk of loss. And no one is going to place a bet knowing that if he/she hits a jackpot the casino can sue to recover its losses. 19

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thus, by the express terms of the Gaming Act, does not apply to the lawful gaming conducted at the three licensed Detroit casinos. This conclusion is fully supported by the Court of Appeals decision in McEntee v

Incredible Technologies, Inc., 2006 WL 659347 (2006), unpublished per curiam opinion (Docket No. 263818, issued March 16, 2006)

DJ. In that case, the Court held that the

Gaming Act preempts MCL § 750.315, a statute almost identical to the Prior Act. MCL § 750.315 provides, in relevant part: Losing at Gambling-Any person who shall lose any sum of money, or any goods, article or thing of value, by playing or betting on cards, dice or by any other device in the nature of such playing or betting ... may sue for and recover such money in an action for money ... .

In AfcEntee, players of electronic golf games sued the defendant pursuant to MCL § 750.315 for the money they lost while playing the games. Because the games were played for money, the Court deemed them "gambling games" as defined in and regulated by the Gaming Act. Id. The Court of Appeals upheld the trial court's dismissal of the plaintiffs' cause of action because MCL § 750.315 is inconsistent with the Gaming Act. The Court explained: Any law that is inconsistent with the MGCRA [the Gaming Act] does not apply to casino gaming. MCL 432.203(3). Thus, this Court has held that the MGCRA preempts inconsistent laws, including common law. Kraft v. Detroit Entertainment, LLC, 261 Mieh. App. 534, 551-552 . . . Therefore, we hold that plaintiffs cause of action under MCL 750.315 is preempted by theMGCRA.

Id. at slip op p 3. Plaintiff tries to distinguish McEntee, by arguing that it should not be followed because he thinks it was wrongly decided and that its holding would somehow bar all other regulatory and enforcement agencies from doing their respective jobs. What Plaintiff conveniently ignores 13

is that in l'v/cEntee, as in the case at bar, the issue was limited to whether a wagerer who engages in gaming as authorized by the Gaming Act can sue to recover his or her losses by relying on a preexisting and no longer applicable statutory scheme. The Court of Appeals and the Legislature have unequivocally (and necessarily) determined that the answer to that question is a simple "no." This is precisely the result that should be reached in this case. Plaintiff's claim should be dismissed because the statute upon which he relies is directly inconsistent with the Gaming Act,20 C.

The Prior Act is also inapplicable because it applies ollly to illegal gamillg, not legal gaming cOllductedpursuant to the Gaming Act

The provision relied upon by Plaintiff is only one section of a mUlti-part statute. Reading the statute in its entirety (as courts are required to do when interpreting a statute), it is evident that the Prior Act applies only to illegal gaming. Subsection (2) of the Prior Act refers to gaming as an "offense," while Subsection (3) refers to contracts made based on money to be won by gaming or credit extended for that purpose as "illegal" and "void and of no efIect." MCL § 600.2939(2) and (3). The Legislature'S reference to "offinse" in subsection (2) and "illegality" in subsection (3) would make no sense if the "gaming" conduct described in subsection (1) were legaL Consistent with this conclusion, the Michigan Court of Appeals has recognized that both the Prior Act and its analogous penal statute, MCL § 750.314, apply only to illegal gambling. See

20 Plaintiff seems to be claiming that § 432.203(3) of the Gaming Act does not invalidate the Prior Act because § 432.203(3) only invalidates pre-existing laws afIecting casino owner/operators, not pre-existing laws afIecting casino gamblers. His position is completely undercut by the Court of Appeals decisions in Kraji and l'v/cEntee, supra, both of which concluded that the laws relied upon by the plaintiffs in those cases were inconsistent with the Gaming Act and thus, under § 432.203(3), were inapplicable with respect to the claims asserted by the plaintiffs. In each of those cases, the claims of the plaintiffs, who were casino gamblers, not casino o'Wl1ers/operators, were thus rejected. The same result should occur here. 14

People v Dansby, 48 Mich App 185, 190; 210 NW2d 392 (1973) (explaining that, pursuant to MCL 600.2939 and MCL 750.314, title to monies won gambling do not pass to the winner because they are the result of an illegal act.). It is readily apparent that the wagering activities at MotorCity Casino are legal activities expressly authorized by the Gaming Act and conducted pursuant to MotorCity Casino's license issued by the board. The Prior Act simply does not apply to those activities and thus provides no remedy to Plaintiff for the recovery of the money he allegedly and legally lost. D.

The Legislature did not repeal the Prior Act because it intended that statute to continue to apply to illegal gambling in ~Michigan.

Plaintiff's contention that the Prior Act still applies to the Detroit casinos because it has not been expressly repealed is incorrect. The Legislature did not need to repeal the Prior Act in order to effectuate the legalization of gaming at the Detroit casinos. A full repeal of the Prior Act would have made sense only if the Legislature had legalized gaming in all respects, throughout the state, which was not the case. In the case of the legalization of limited gaming, only those laws inconsistent with the newly authorized gaming needed to be invalidated. When the Legislature enacted the McCauley-Traxler-Law-Bowman-Mcneely Lottery Act and the Traxler-McCauley-Law-Bo~man

Bingo Act, it included in the legislation provisions stating

that other laws penalizing activity made lawful by those acts were inapplicable. See MCL § 432.37 and MCL § 432.119. The Legislature followed the same approach in connection with the legalization of limited gaming at the three Detroit casinos; it enacted a provision of the Gaming Act stating that "any other law that is inconsistent with this act does not apply to casino gaming as provided for by this act."

See MCL § 432.203(3).

By so doing, the

Legislature accomplished precisely the purpose it intended: it invalidated the Prior Act to the

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extent that it would otherwise have applied to the activities authorized by the Gaming Act (thereby eliminating an impediment to the effectuation of the will of the voters of the State of Michigan to establish legalized gaming at three Detroit casinos), and it preserved the applicability of the Prior Act to the situations in which the remedy provided by that statute should still apply, meaning illegal gaming.

E.

Even if the Legislature had not expressly provided that the Prior Act and all other inconsistent acts were inapplicable, the Courts would find that to be the legislative intent by implication.

Even if the Legislature had not unambiguously stated that legislation inconsistent with the Gaming Act is inapplicable, general rules of statutory construction would have so held. Repeal by implication may be found when there is a clear conflict between two statutes or when a subsequent law was clearly intended to occupy the entire field occupied by a prior enactment. Wayne County Prosecutor v Department of Corrections, 451 Mich 569, 577; 548 N. W.2d 900 (1996). Thus, when a statute conflicts with an earlier enacted provision, the Legislature is deemed to have repealed the prior statute to the extent of the conflict. Shirilla v

City ofDetroit, 208 Mich App 434, 439; 528 NW2d 763 (1995). "Where a clear conflict exists, the later enactment controls."

t

Id. at 440; see also Irons v 6F Judicial District Court

Employees, 139 Mich App 313,321; 362 NW2d 262 (1984) ("[W]here two statutes which encompass the same subject matter conflict, the later enacted statute controls."). Furthermore, where two statutes that encompass the same subject matter conflict, the more specific statute will control. Irons, 139 Mich App at 322; see also Nationsbanc A10rtg Corp of Georgia v

Luptak, 243 Mich App 560, 566; 625 NW2d 385 (2000) (same). This can result in a partial repeal of the earlier act, in order to give effect to the newer law. Civil Service Conll'n 'n v.

Wayne County Board ofSupervisors, 384 Mich. 363, 374,184 NW2d 201 (1971).

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In this case, given that the Prior Act on its face provides a sanction for the very conduct authorized by the Gaming Act, there is an inherent conflict between the two. Under the above described principles, the Gaming Act repeals by implication the Prior Act with respect to conduct covered by the Gaming Act. F.

Application of the Prior Act to gaming at JfotorCity Casino is against public policy.

Finally, Plaintiffs assertion that gaming is contrary to Michigan's public policy is simply not true. In fact, the opposite is true. Michigan has a long history of condoning certain types of gambling. State lotteries, nonprofit bingos, and pari-mutuel horseracing have all been sanctioned under statutory law, beginning as early as 1933.

In a case upholding the

enforcement of a Nevada gambling debt in Michigan, the Court held that "it is clear that the State [of Michigan] sanctions State regulated gambling." National Recovery System v Kasle, 662 F Supp 139, 146 (ED Mich 1987). The Kasle court went on to find that "it is the express policy of Michigan to promote legal gambling." Id. Moreover, it was the Michigan voters who chose to permit gaming in the three Detroit casIllos.

Enacting the legislation necessary to accomplish this mandate, the Michigan

Legislature created a statutory scheme that permits casinos to function. The Detroit casinos simply could not continue to operate if patrons with gambling losses were entitled to recover the monies they lost at the casinos, nor would patrons be willing to gamble at the Detroit casinos if they knew that their winnings could be recouped by the losing casinos at their whim. Further, the clearly expressed goal that casino revenues will generate revenues for the State and the City of Detroit through the wagering tax would be nullified if patrons were permitted to receive all of their gaming losses back from the casinos. For the Court to accept Plaintiffs

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paradoxical argument, it would have to usurp the authority of this State's citizens and the Legislature to be the final arbiter of public policy, which it cannot constitutionally do. G.

Defendant is entitled to recover sanctions because there is 110 legal supportfor Plail1tiff'sfrivolous cause of action.

"Pursuant to MCR 2.114(D), an attorney or party that signs a pleading certifies that 'to the best of his or her knowledge, information, and belief formed after reasonable inquiry, the document is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law. '"

John J Fannon Co v Fannon

Prod, LLC, 269 Mich App 162, 168-69; 712 NW2d 731 (2006). An attorney or a party who signs a pleading in violation of this rule is subject to sanctions: If a document is signed in violation of this rule, the court, on the motion of a party or on its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the document, including reasonable attorney fees.

MCR 2.1 14(E). A party pleading a frivolous claim, as in this case, is also subject to costs as provided for in MCR 2.62S(A)(2). See MCR 2.114(F). Plaintiff, or more aptly Plaintiff's counsel, either failed to conduct a reasonable inquiry into the legal viability of Plaintiff's cause of action or filed the Complaint in disregard of the knowledge that there is no viability to the claim. Under these circumstances, sanctions are warranted. See, e.g., John J Fannon Co, supra at 170 (upholding sanctions because attorney failed to conduct a reasonable inquiry into the factual and legal viability of plaintiff's claims). There is no reasonable possibility that an outdated law allowing recover for illegal gaming could possibly apply to legalized gaming in Detroit in direct contravention of the express terms of the Gaming Act and settled rules of statutory construction. 18

IV. CONCLUSION & RELIEF REQUESTED

Michigan's voters and its Legislature have expressly authorized and legalized casino gaming at MotorCity Casino, as well as the other licensed Detroit casinos. The Legislature has expressly stated that all prior inconsistent laws cannot apply to the lawful casino gaming conducted therein. Further, under well-settled principles of statutory construction, the Gaming Act trumps the Prior Act. Finally, application of the Prior Act to lawful gaming at MotorCity Casino would run counter to the public policy inherent in the Gaming Act and would end casino gaming in Detroit altogether, to the detriment of the casinos, patrons, citizens who voted to authorize gaming in Detroit, and the State and City that collect substantial wagering taxes from these casinos on a daily basis. Plaintiff has failed to state a claim upon which relief can be granted, and his claim must be dismissed as a matter of law. For the reasons stated above, Defendant MotorCity Casino requests that this Court deny Plaintiffs motion for summary disposition, grant Defendant's motion for summary disposition and award Defendant the costs and attorneys' fees it wrongfully incurred as a result of Plaintiffs frivolous claim. Respectfully submitted, NEMETH BURWELL,

P.C.

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Patricia Nemeth (P37004) Deborah Brouwer (P34872) Louis B. Eble (P59368) Attorneys for Defendant MotorCity Casino 200 Talon Centre, Ste. 200 Detroit, Michigan 48207 (313) 567-5921

Dated: September 18, 2009

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