STATE OF MICHIGAN IN THE COURT CAROL DRAKE and CLELLEN BURY, Plaintiffs-Appellants, CITY OF BENTON HARBOR and HARBOR CORPORATION Defendants-Appellees Supreme Court No. 140685 Court of Appeals No. 287502 Berrien Circuit Court No. 2008-000247-CE provision of the Constitution a statute, rule or regulation, or other State governmental action is invalid. SHORES COMMUNITY REDEVELOPMENT The appeal involves a ruling that a BRIEF OF AMICUS CURIAE ATTORNEY GENERAL BILL SCHUETTE IN OPPOSITION TO THE APPLICATION FOR LEAVE TO APPEAL SUPPORT OF THE CITY OF BENTON HARBOR AND HARBOR SHORES COMMUNITY REDEVELOPMENT CORPORATION) Dated: January 20, 20ll Bill Schuette Attorney General B. Eric Restuccia (P49550) Solicitor General Counsel of Record Tracy A. Sonneborn (P4l4l6) Assistant Attorney General Attorneys for Amicus Curiae Consumer Protection Division Charitable Trust Section 525 W. Ottawa Street, Floor Lansing, Michigan 48933 (517) 335-0855 TABLE OF CONTENTS Index of Authorities Statement of Question Introduction Counter-Statement of Proceedings and Facts Argument I. The City of Benton Harbor did not violate the restrictions in the l9l7 Deed EQ 3 conveying the property comprising Jean Klock Park to Benton Harbor When it leased a portion of Park property to Harbor Shores Community Redevelopment Corporation to develop 3 holes of a proposed public golf course. 3 A. Standard for Granting Leave to Appeal 3 B. Analysis 3 Relief Sought i INDEX OF AUTHORITIES Page Statutes Charitable Gifts Act, MCL 554.351 et seq Charitable Organizations and Solicitations Act, MCL 400.271 et seq Supervision of Trustees for Charitable Purposes Act, MCL 14,251 et seq Uniform Prudent Management of Institutional Funds Act, MCL 45 .921 et seq ii STATEMENT OF QUESTION1 May the City of Benton Harbor lease a portion of Jean Klock Park to Harbor Shores Community Redevelopment Corporation to develop 3 holes of a proposed l8-hole championship Jack Nicklaus golf course, Without violating the restrictions set forth in the l9l7 deed? Appellants' answer: "No" Appellees' answer: "Yes" Attorney General's answer; "Yes" 1 The Attorney General was not a party to this litigation or the January 27, 2004, Consent Judgment and, therefore, addresses only the first issue identified by the Court in its Order of September l5, INTRODUCTION The Attorney General submits this Amicus Curiae Brief in support of Defendants- Appellees. The Attorney General is the state official responsible for oversight of charitable gifts and trusts and carries out this role through his Charitable Trust Section? In particular, the Charitable Gifts Act authorizes the Attorney General to initiate legal proceedings to enforce the terms of charitable gifts, devises, and trusts "so that the intentions of the creator thereof shall be carried out whenever possib1e_"3 In addition, the Supervision of Trustees for Charitable Purposes Act authorizes the Attorney General to conduct investigations of transactions involving charitable assets4 and to enforce charitable trusts by appropriate proceedings.5 The Attorney General, in his capacity as Michigan's charity official, was not a party to the litigation below regarding the compatibility of the proposed uses of Jean Klock Park (Park) with restrictions contained in the 1917 Deed of Gift (Deed) to Benton Harbor and its assigns from donors IN. and Carrie Klock (Donors). The Attorney General's Charitable Trust Section had extensive non-judicial involvement, including discussions with many parties and close review of Park use proposals submitted by Defendants-Appellees City of Benton Harbor (Benton Harbor) and Harbor Shores Community Redevelopment, Inc. (Harbor Shores). Thus, the Attorney General is familiar with the issues before this Court. 2 The Attorney General's Charitable Trust Section administers or enforces several acts designed to protect charitable assets and the intentions of charitable donors. These include the Supervision of Trustees for Charitable Purposes Act, MCL 14.251 et seq, the Charitable Organizations and Solicitations Act, MCL 400.271 et Seq, the Charitable Gifts Act, MCL 554.351 et seq, the Charitable Trustees Powers Act, MCL 14.271 ef seq, and the Uniform Prudent Management of Institutional Funds Act, MCL 451.921 ez* seq. 3 MCL 554352. 4 MCL 14.258, 14.259, 14.261 5 MCL 14261. 1 COUNTER-STATEMENT OF PROCEEDINGS AND FACTS The Attorney General adopts the counter-statements of facts contained in the Response Briefs of Defendants-Appellees Benton Harbor and Harbor Shores and supplements those statements with the following additional facts. The Charitable Trust Section reviewed the planned use of municipal parkland to determine whether Benton Harbor's proposal was consistent with the intentions expressed by the Donors in their l9l7 Deed to Benton Harbor. The Charitable Trust Section held extensive discussions with representatives of Harbor Shores and the City, as well as representatives of groups opposing the proposed lease of a portion of Jean Klock Park for use as part of a public golf course. After reviewing the terms of the Deed and two lease agreements -the Lease Agreement and Park Improvements and Maintenance Agreement (Agreements) between Benton Harbor and Harbor Shores -the Charitable Trust Section concluded that the final version of the Agreements were consistent with and protective of, the Donors' intentions, The Charitable Trust Section's reasoning is explained in the Charitable Trust Section's letter of June 4, 2008, to Don Schmidt, counsel for Benton Harbor (Exhbit 1). 2 ARGUMENT I. The City of Benton Harbor did not violate the restrictions in the 1917 Deed conveying the property comprising Jean Klock Park to Benton Harbor when it leased a portion of Park property to Harbor Shores Community Redevelopment Corporation to develop 3 holes of a proposed public golf course. A. Standard for Granting Leave to Appeal The Attorney General adopts the positions contained in the Response Briefs of Benton Harbor and Harbor Shores. B. Analysis The narrow concern of the Charitable Trust Section in this matter was to determine whether the planned use of municipal parkland was consistent with the expressed intentions of the Donors, Upon review, the Charitable Trust Section concluded that the tinal proposal was consistent with the Donors' intentions as expressed in the Deed. The Charitable Trust Section's observations and conclusions are set forth in two letters (Exhibit l)_6 In the Charitable Trust Section's letter of June 4, 2008, to counsel for Benton Harbor, the Charitable Trust Section emphasized certain aspects of the final proposal and concluded that the proposed use was consistent with the Donors' restrictions, in its prior letter of September 14, 2007, to the City Manager of Benton Harbor, the Charitable Trust Section concluded that the proposed use would serve a public purpose as a public park. The Attorney General agrees with Benton Harbor and Harbor Shores that the final proposal, including the Agreements, comports with the Donors' directives. The Attorney General places particular emphasis on the following factors: 6 The Charitable Trust Section's letter of June 4, 2008, attached the prior letter of September 14, 2007, as an attachment. The complete correspondence of June 4, 2008, thus contains both letters and is therefore included with this Brief as a single exhibit. 3 0 The City has established reasonable rules and regulations concerning the use of the Park area in question that promote public use both during golf season and in the off-season, 0 The lease provides for revenue from the golf course to be used for public purposes; 0 The City has retained substantial oversight authority, ownership, and ultimate control of the property; and 0 The parties have committed themselves to adhere to the Donors' restrictions. Finally, it is important to note that not only Benton Harbor, but also the Attorney General, may undertake legal action if Harbor Shores fails to observe its commitment to observe the Donors' restrictions on the use ofthe property. 4 RELIEF SOUGHT The Court of Appeals' unpublished opinion was correct in both analysis and result While this case does present a significant issue in litigation against a state subdivision MCR 7 there is no compelling reason for this Court to devote its resources to a liill review of an unpublished Court of Appeals opinion that is manifestly sound. Therefore, this Court should deny the application for leave to appeal. Dated: January 20, 2Oll Respectfully submitted, Bill Schuette Attorney General B. Eric Restuccia (P4955O) Solicitor General Counsel of Record . fl' Tracy A. Sonneborn (P4l4l6) Assistant Attorney General Attorneys for Amicus Curiae Consumer Protection Division Charitable Trust Section 525 W. Ottawa Street, Floor Lansing, Michigan 48933 (517)335-0855 5