Full opinion text
FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING PLAINTIFF’S MOTION FOR IN-JUNCTIVE RELIEF AND DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT ROSEN, District’Judge. I. INTRODUCTION On May 25, 1999, Plaintiff, Barden Detroit Casino, L.L.C. (“BDC”) initiated the instant lawsuit against the above-captioned State and Detroit Defendants challenging, inter alia, the constitutionality of the Casino Development Competitive Selection Process, Detroit City Code § 18-13-1, et seq. (the “Ordinance”), and the Michigan Gaming Control and Revenue Act, M.C.L.A. § 432.201, et seq. (the “Act”), which govern the selection and licensing of casino developers in the City of Detroit, respectively. In particular, BDC — which lost out in its bid to become one of three casino operators in Detroit to Detroit Entertainment, L.L.C. (“Atwater”), Greek-town Casino, L.L.C. (“Greektown”), and MGM Grand Detroit, L.L.C. (“MGM”)— asserts that both the Ordinance and the Act award unconstitutional preferences to developers, particularly Atwater and Greektown, who lead the drive to bring casino gaming to Detroit. The case is presently before the Court on BDC’s May 25,1999 Motion for Preliminary Injunction, predicated on First Amendment, equal protection, and substantive due process challenges to the Act and the Ordinance enumerated in counts I - VI of its Verified Complaint for Damages and for Injunctive Relief. In light of the Sixth Circuit’s recent holding in Lac Vieux Desert Band of Lake Superior Chippewa Indians v. Michigan Gaming Control Board, 172 F.3d 397 (6th Cir.1999), finding that the Ordinance implicates core First Amendment rights and is, therefore, subject to strict scrutiny, BDC argues it can establish the requisite likelihood of success on the merits of its constitutional claims against the Detroit Defendants. As explained in greater detail, infra, BDC also asserts that the Apt violates the Constitution both on its face and as applied. In response, the Detroit Defendants concede the unconstitutionality of the Ordinance for the purposes of the instant motion only, opting instead to rely on the following three threshold, and potentially dispositive, defenses: (1) a Consent and Release executed by Don Barden on behalf of BDC; (2) the equitable doctrine of lach-es; and (3) BDC’s alleged inability to establish injury-in-fact. The Detroit Defendants further assert that even if the Court reaches the substance of BDC’s constitutional challenges to the Ordinance, the balance of equities and the public interest militate strongly against any injunctive relief. With respect to the Act, the State Defendants assert that no “case or controversy” exists because the 1997 amendments to the statute render the state preference inoperative. The Court met with the parties in chambers on June 17, 1999 and held a hearing at which it heard oral argument and took evidence with respect to the issues raised by BDC’s Motion for Preliminary Injunction on June 28, 1999. Without objection from the parties, and with the sole caveat that the Detroit Defendants expressly reserved the right, if necessary, to defend the constitutionality of the Ordinance at a later stage of the proceedings, the Court ordered the trial of this case, with respect to the final merits of BDC’s request for injunctive relief, advanced and consolidated with the hearing on Plaintiffs Motion for Preliminary Injunction pursuant to Fed.R.Civ.P. 65(a)(2). Having heard the oral arguments of counsel and the testimony of witnesses at the June 28, 1999 hearing, and having reviewed the briefs, deposition transcripts, and other supporting documents submitted by the parties, the Court makes the following findings of fact and conclusions of law. To the extent that any findings of fact constitute conclusions of law, they are adopted as such. To the extent that any conclusions of law constitute findings of fact, they are so adopted. II. FINDINGS OF FACT Preliminarily, the Court observes that this litigation presents very close and finely-nuanced legal and factual questions of great complexity, novelty, and controversy that are of the highest import to the residents of the greater Detroit Metropolitan Region and the State of Michigan. The Court recognizes that because of the need for an expeditious resolution of this matter, all parties — and particularly their counsel — have worked with commendable diligence to prepare and present these issues to the Court for timely resolution. For this prodigious effort, the Court expresses its appreciation and endeavors in this decision to set forth its findings of fact and conclusions of law, and the analysis underlying each, as comprehensively as possible. A. The Parties 1. Barden Detroit Casino, L.L.C. Plaintiff, BDC, is a Detroit-based Michigan limited liability company, formed to engage in the development and operation of a casino gaming establishment in the City of Detroit. Don H. Barden resides in the City of Detroit and serves as the Chairman and President of BDC. Throughout the casino selection process, the law firm of Dykema Gossett, P.L.L.C., represented BDC. 2. The Detroit Defendants For the purposes of this decision, the “Detroit Defendants” consist of the City of Detroit, Detroit Mayor Dennis W. Archer (the “Mayor”), the Detroit City Council, and the currently elected members of the Detroit City Council: Gilbert Hill, Maryann Mahaffey, Clyde Cleveland, Kenneth Cockrel, Jr., Sheila Cockrel, Kay Everett, Nicholas Hood III, Brenda Scott, and Alberta Tinsley-Talabi. 3. The State Defendants Defendant Michigan Gaming Control Board (the “Board”) is an agency of Michigan Government, M.C.L.A. § 432.204(1), established and organized pursuant to the Michigan Gaming Control and Revenue Act. The Board possesses the authority and duties enumerated in the Act, and all other powers necessary and proper to fully and effectively administer the Act for the purposes of licensing, regulating, and enforcing the system of casino gaming established under the Act. M.C.L.A. § 432.204(1). Defendants Thomas De-nomine, Paula Blanchard, Rich Davis, Geraldine Ford, and Michael Stacey constitute the currently serving members of the Board. For the purposes of this decision, the Court collectively refers to the Board and its individual members as the “State Defendants.” B. The Michigan Gaming Control and Revenue Act (“the Act”) 1. The Original Act On November 5, 1996, the state electorate approved Proposal E, a state ballot initiative legalizing casino gaming in the State of Michigan. In order to codify this successful referendum, the State Legislature passed, and the Governor signed into law, the Michigan Gaming Control and Revenue Act, M.C.L.A. § 432.201, et seq. The Act established the Michigan Gaming Control Board as the body authorized to issue licenses to operate casinos in Michigan, and effectively limited casino development to the City of Detroit by restricting gaming to cities: (1) with a population of at least 800,000 at the time a license is issued; (2) located within 100 miles of any other state or country in which gaming was permitted on December 5, 1996; and (3) where a majority of voters have expressed approval of casino gaming in the city. M.C.L.A. § 432.202(i ). Although Proposal E, as it appeared on the November 5, 1996 ballot, made no mention of preferences for any class of license applicants, the Act’s licensing procedures, in their original form, exempted certain preferred developers from the competitive bidding process and granted a tie-breaking preference to applicants that supported a city-wide ballot initiative in favor of casino gaming: (a)The board shall issue a license to operate a casino to an applicant upon a determination by the board that the applicant is eligible for a casino license. The board shall find that an applicant is eligible for a casino license if all of the following criteria are met: (1) prior to the date of application: (i) the applicant or its affiliates or affiliated companies was the initiator of any casino gaming proposal submitted for voter approval in the city in which the casino will be located and the voters approved the proposal; or (ii) the applicant was selected by the city pursuant to a competitive bidding process. (b)No more than three (3) licenses shall be issued by the board in any city. In the event that more than three (3) applicants meet the criteria provided for in Section 6(a) of this Act, licenses shall first be issued to applicants which submitted any casino gaming proposal for voter approval prior to January 1, 1995, in the city in which the casino will be located and the voters approved the proposal. M.C.L.A. § 432.206 (1996) (amended 1997). 2. The Amended Act Effective July 17, 1997, the Act was amended to eliminate the provision previously codified at § 432.206(a) exempting preferred developers from the competitive bidding process. While the Amended Act retained the tie-breaking preference at § 432.206(3), the viability of this preference was called into doubt by the addition of a new subsection, § 432.206(2), which effectively limits a city to submitting no more than 3 certified development agreements to the Board at one time. As amended, § 432.206 now reads, in pertinent part: (1) The board shall issue a casino license to a person who applies for a license ... who the board determines is eligible and suitable to receive a casino license under this act and the rules promulgated by the board. It is the burden of the applicant to establish by clear and convincing evidence its suitability as to character, reputation, integrity, business probity, experience, and ability, financial ability and responsibility, and other criteria as may be considered appropriate by the board. The criteria considered appropriate by the board shall not be arbitrary, capricious, or contradictory to the expressed provisions of this act. A person is eligible to apply for a casino license if all of the following criteria are met: (a) The applicant proposes to locate the casino in a city where the local ■legislative body enacted an ordinance approving casino gaming that may include local ordinances governing casino operations, occupational licensees and suppliers which are consistent with this act and rules promulgated by the board. (b) The applicant entered into a certified development agreement with the city where the local legislative body enacted an ordinance approving casino gaming. (c) The applicant or its affiliates or affiliated companies has a history of, or a bona fide plan for, either investment or community involvement in the city where the casino will be located. (2) A city shall not certify or submit and have pending before the board more than 3 certified development agreements. If an applicant is denied a casino license by the board, the city may then certify a development agreement with another applicant and submit the certified development agreement to the board. Nothing in this act shall be construed to prevent the city from entering into more than 3 development agreements. (3) No more than three (3) licenses shall be issued by the board in any city.... In evaluating the eligibility and suitability of all applicants under the standards provided in this act, the board shall establish and apply the standards to all applicants in a consistent and uniform manner. In the event that more than three (3) applicants meet the standards for eligibility and suitability provided for in subsection (4) and (5), licenses shall first be issued to those eligible and suitable .applicants which submitted any casino gaming proposal for voter approval prior to January 1, 1995, in the city in which the casino will be located and the voters approved the proposal. M.C.L.A. § 432.206 (emphasis added). To the extent the tie-breaking preference is effective, the parties do not dispute that Atwater and Greektown are the only entities that satisfy the requirements of § 432.206(3). C. The Ordinance On June 18, 1997, the Detroit City Council adopted an Ordinance entitled the Casino Development Competitive Selection Process, Detroit City Code § 18-13-1, et seq., which authorizes the Mayor to select three casino developers to enter into certified development agreements with the city pursuant to a competitive request for proposal (“RFP/Q”) process. §§ 18-13-3(a), 18-13-7(a). The Ordinance provides a preference for developers who took the initiative to bring casino gaming to Detroit, and lists “preference qualification” as one of several broad factors the Mayor should consider in reviewing proposals. §§ 18-13-1, 18-13-3. More specifically, the Ordinance Statement of Intent provides: In selecting developers of casinos, it is in the best interest of the city to provide a preference to those developers who took the initiative to facilitate the development of casino gaming in the City of Detroit by proposing a casino gaming proposal approved by the voters of the city (City Ordinance 15-94 and 16-94), and who actively promoted and significantly supported the state initiative authorizing gaming. Detroit City Code § 18 — 13—l(i). Section 18-13-2 defines “preference” as a “more favorable position given to one prospective developer over another in the process established to select a designated developer,” and further elaborates on the parties entitled to a preference as follows: (a) In considering proposals and in selecting a prospective developer with whom the mayor or his designee will negotiate a development agreement, a prospective developer is entitled to a preference if: (1) Its proposal meets the criteria established by this chapter and by the request for proposals; (2) It was the initiator of a casino gaming proposal which was approved by the voters of this city prior to January 1,1995; and (3) It made significant contributions to the development of gaming within the city by actively promoting and significantly supporting a state initiative authorizing gaming. (b) Notwithstanding any other provision of this chapter, no more than one preference shall be awarded to prospective developers who proposed city Ordinance No. 15-94, even if more than one prospective developer claims entitlement to such preference. (c) Notwithstanding any other provision of this chapter, no more than one preference shall be awarded to prospective developers who proposed city Ordinance No. 16-94, even if more than one prospective developer claims entitlement to such preference. Detroit City Code § 18-13-6. It is undisputed that while BDC did not qualify for a preference, Atwater and Greektown satisfied the § 18-13-6 preference requirements. D. The RFPIQ and Selection Process 1. The RFP/Q Process Consistent with the Ordinance, the City formulated a competitive selection process which was divided into two stages, RFP I and RFP II. On June 23, 1997, the City published RFP I, which required prospective developers to submit detailed casino proposals and a $50,000 application fee by August 1, 1997. [Exhibit 34]. Eleven developers, including BDC, responded to RFP I. 2. The Consent and Release All developers that responded to RFP I were required to execute a Consent and Release, which in its entirety provides: CONSENT AND RELEASE WHEREAS, the City of Detroit is soliciting requests for the City of Detroit/Casino Project pursuant to Phase One and Phase Two documents issued by the City of Detroit, together with all alterations, supplements or amendments thereto (collectively, the “RFP/Q”). WHEREAS, to evaluate the personal, business and financial qualifications and professional capabilities and standing of each Proposer, the Proposer’s Substantial Owners, Managers, the Substantial Owners of its Managers, their respective Affiliates and their respective Key Persons (each, a “Releasor” and collectively, the “Releasors”), the City of Detroit requires certain information about each Releasor which could be considered confidential and/or proprietary (“Information”). WHEREAS, the collection of Information by the City of Detroit is essential to select the highest quality Proposal for the City of Detroit. WHEREAS, some of the Information may be collected directly or indirectly from the Releasor and/or other Relea-sors. WHEREAS, other Information may be collected directly or indirectly from others such as law enforcement agencies, courts, gaming and other regulatory bodies, former employees, and financial sources. NOW, THEREFORE, the Releasor, in consideration of the City of Detroit’s accepting for review a Proposal in which Releasor has an economic interest and other valuable consideration the sufficiency of which is hereby acknowledged, agrees as follows: 1. The definitions contained in the RFP/Q are incorporated herein by reference. 2. The Releasor hereby consents and agrees to abide by all of the City of Detroit’s terms, conditions, rules and policies concerning the RFP/Q. 3. The Releasor agrees that the City of Detroit does not acknowledge or agree that any of the Information is confidential and/or proprietary. 4. Information collected will be used in at least the following ways: a. To evaluate Releasor’s personal, financial and business history; b. To evaluate Releasor’s personal, financial and business integrity, and criminal history, if any; and c. To evaluate Releasor’s professional qualifications and capabilities and demonstrated past performance. 5. The City of Detroit may use the Information in any regulatory decision with respect to involvement in gaming in the City of Detroit and may provide this Information to any existing or new licensing or regulatory body with respect to involvement in gaming in Michigan. 6. Information may be shared with other government agency officials or advisers who may work with the City of Detroit in the RFP/Q evaluation process. 7. The City of Detroit may provide the Information to the Board or any successor or replacement thereto. 8. The City of Detroit and/or the Board may share the Information with other jurisdictions with which it has formal agreements. 9. The City of Detroit may provide such Information to law enforcement agencies for gaming related investigations or clearances. 10. The City of Detroit is controlled by certain statutes of the United States and State of Michigan and divisions thereof. The Releasor acknowledges that those statutes may provide access by third parties to the Information obtained regarding the Releasor. 11. The Releasor, and his, her or its heirs, executors, administrators, successors and assigns, hereby release the City of Detroit including all departments, agencies and commissions thereof, and their respective principals, agents, consultants, attorneys, advisors, employees, officers and directors (the “Releasees”), and hold each of them harmless from any damages, claims, rights, liabilities, or causes of action, which the Releasor ever had, now has, may have or claim to have, in law or in equity, against any or all of the Releas-ees, arising out of or directly or indirectly related to the (i) RFP/Q process and the selection and evaluation of Proposals submitted in connection therewith; (ii) release or disclosure of any Information whether intentional or unintentional; and (iii) use, investigation of, or processing of the Information. 12.The undersigned Releasor has read and understands this Consent and Release and hereby authorizes the direct and indirect collection of, and consents to the use and disclosure of, the Information as described herein. [Joint Exhibit 36]. As part of his RFP I proposal, Don Barden executed the Consent and Release on behalf of BDC and various other Bar-den controlled entities first on July 25, 1997 and again on August 1,1997. [Joint Exhibit 36]. 3. The Selection Process On August 23, 1997, the Mayor invited seven of the eleven prospective developers, including BDC, to proceed to RFP II. All seven of these developers submitted proposals along with the $250,000 RFP II fee. On November 7, 1997, the Mayor eliminated BDC’s proposal by narrowing the field to Atwater, Greektown, MGM, and Mirage. A final decision was then reached on November 20, 1997, when the Mayor announced the City’s intent to negotiate certified development agreements with At-water, Greektown, and MGM. The State and the Detroit Defendants have raised important issues as to why BDC did not bring suit challenging the selection process at this time. At his June 24, 1999 deposition, Mayor Archer testified extensively with respect to the application of preferences in the selection process. While indicating that Atwa-ter and Greektown were eligible for preferences throughout the RFP/Q process, the Mayor unequivocally testified that no preference was applied until after the applicant field was reduced from seven to four. [Archer Dep., pp. 33, 63, 65]. Among the final four, the Mayor further testified that while the preference played no role in the final selection of Atwater, the preference did enable Greektown to prevail over Mirage. [Archer Dep., p. 57]. With respect to Atwater, the Mayor denied knowledge that Circus Circus agreed to pay Atwater $13 million for an assignment of preference rights, a fact which is not now contested. However, he acknowledged that the addition of Circus Circus substantially strengthened the Atwater group’s bid: Q. [By Mr. Carson] Am I correct in my understanding that in the past you’ve stated that Atwater received no preference? A. [By Mayor Archer] That’s correct. Q. Are you aware that to satisfy the local Atwater group’s capital contribution to that casino entity, that it assigned its preference rights? A. No. ‡ ‡ ‡ ‡ Q. And that was the full extent of its capital contribution? A. No, I can’t say that I knew that at all. Q. And that in addition to that, in consideration for that assignment, that the local people got — or Circus Circus agreed to pay additionally $13 million, five million cash and eight million when the casino license is issued? A. I don’t know if — I don’t recall sitting here whether or not that has been disclosed to me, but let me just indicate the following. Atwater is entirely different than the Atwa-ter that proposed the, excuse me, ballot initiative for August 2nd, 1994. There have been, in my view, additions and deletions to what was commonly referred to as Atwater, but the group guts or the core group, I should say would be more appropriate, at least in my view, the proponents, namely Herb Strather, Nellie Varner and others, are the ones who were the principal outspoken advocates that began the August 2nd, 1994 initiative. Q. Who are the others that you can recall? $ ‡ ‡ ‡ ‡ ‡ A. I don’t know all of the them, let’s put it that way.... I was aware it seems to me that one time there was either a verbal or written agreement between Atwater and Mirage, and that didn’t last, and it was clear that Atwater by and of themselves, whoever they were, did not have an entity that was in the casino gaming business, so I was not at all surprised to see them partner up with or look for somebody who had casino gaming experience. Q. The so-called Atwater group was at least nominally one that was entitled to a preference under the Detroit ordinance; is that correct? A. They would have been, but it was not needed. Q. I’m saying they were entitled, is my question? A. Well, I don’t know to quibble with you. I think in contemplation, if you were to ask the authors of their intent of the ordinance, I’m sure Atwater was contemplated, but in reality Atwater, now known I think as Detroit Entertainment, did not need a preference. They were strong enough that they didn’t need it. Q. And indeed you made that judgment? A. Yeah. I was the one who made the recommendation to City Council, yes. Q. So at the time you made the judgment, you knew that Atwater nominally was entitled to a preference, but you made the judgments they did not need it or it did not need it? A. It clearly didn’t need it. •I» 'I* H4 «i* Q. Would it be safe to say, Mr. Mayor, that if the Atwater group, Detroit Entertainment, but the Atwater group was composed of all its constituents, other than Circus Circus, that you would not have viewed it in the same way and would not have selected it? A. That calls for conjecture because they didn’t present it that way, and so since they didn’t present it that way I couldn’t evaluate it as I evaluated everybody else. What I had to evaluate was that which was written and given to me to take a look at so I can’t divorce it out, sorry. Q. You’re saying that the question as framed is so speculative that you could not make a judgment sitting here today that that group, absent Circus Circus, would have failed? A. I don’t know that because I hadn’t seen or, you know, nothing has come before me that would suggest otherwise. Now, one could speculate taking your hypothetical and saying if people who had no casino experience and came in and said, gee, we’d like to do this casino, we have put something on the ballot in August of 1994, we were successful there, we helped to put this on a statewide ballot and collectively we have no experience of running a casino, we’ve had no experience running a complex that the City has in mind, if that was it standing alone, nothing else, and no financial ability to build out a casino and none of the other criteria that’s listed in all the criteria, they would not have been chosen. [Archer Dep., pp. 39-41, 43-45]. 4. City Council Ratification Following the Mayor’s announcement of the selected developers, the City proceeded to negotiate development agreements with Atwater, Greektown, and MGM, which agreements were executed on March 12, 1998 and submitted to the City Council for approval pursuant to Detroit City Code § 18-13-8. As part of the negotiation process, each of the selected developers agreed to effectively cross-condition — or “tie-bar” — the development agreements by making the effective date of each agreement dependent on the City Council’s approval of the other two agreements. More specifically, Art. I, § l.l(a)(62) of each of the three development agreements provides: “Effective Date” means the date on which all of the following have been accomplished: the agreement has been executed by all parties hereto and the City Council has duly approved and certified the last of the following: (i) this Agreement; and (ii) the development agreements of each of the Other Land-Based Casino Developers. [Joint Exhibits 13-15, emphasis added]. On April 9, 1998, the City Council approved each of the three development agreements. Thereafter, the City forwarded the agreements to the Board on April 17, 1998, enabling the Board to accept and begin processing the selected developers’ license applications. E. Subsequent Developments 1. Proposal 1 Following the City Council’s approval of the development agreements, Community Coalition, a Detroit-based organization advocating for increased local ownership of the casino projects, succeeded in placing a ballot initiative on the August 1998 citywide ballot. The ballot initiative, known as Proposal 1, sought to amend the Ordinance to assure that a “Qualified Detroit-Based Developer” received one of the development agreements. BDC satisfied the requirements of a “Qualified Detroib-Based Developer,” which Proposal 1 defined as follows: QUALIFIED DETROIT-BASED DEVELOPER means a proposed developer, fifty (50%) percent or more of which is owned, directly or indirectly, by one or more individuals who meet each of the following criteria: (a) are (or were) residents of the City of Detroit at the time the submission of the proposed developer’s proposal was (or is) submitted and for at least one year preceding such time, (b) have, prior to the date of the submission of the proposed developer’s proposal, owned and operated a Detroit-Based Business, and (c) for a period of one (1) year or more, have been licensed by a state other than the State of Michigan to conduct casino operations (including riverboat gaming operations). For purpose of subclause (c), an individual shall be deemed to be licensed if it owns directly or indirectly, more than (50%) percent of a company that has been licensed to conduct casino operations (including riverboat gaming operations) by a state other than the State of Michigan. [Hearing Exhibit 6]. At the June 28, 1999 hearing, Mr. Bar-den testified that while he played no direct role in Community Coalition, he supported Proposal 1 and financed the Coalition’s efforts to amend the Ordinance. [Hearing Transcript, pp. 203-204]. Despite these efforts, Detroit voters overwhelmingly rejected Proposal 1 on August 4, 1998, choosing instead to approve another ballot initiative, Proposal 2, that effectively affirmed the selection criteria set forth in the Ordinance. 2. Temporary Casinos Despite the fact that each of the certified development agreements provides, inter alia, that “[N]o right shall be conferred or obligation imposed under this Agreement unless and until ... the Board has issued its Certificate of Suitability pursuant to the Act,” MGM began construction of a temporary casino on November 20, 1998. Greektown and Atwater commenced construction of them temporary casino facilities on February 1, 1999 and February 8, 1999, respectively. [Stipulated Fact 47]. At the June 28, 1999 hearing, Nelson Westrin, Executive Director of the Board, explained the current status of the selected developers’ license applications as follows: MR. DRIKER: All right. Could you tell his Honor what status the licensing of the three casino applicants is right as of today where things stand in a nutshell? MR. WESTRIN: The Gaming Control Board has completed the background investigated [sic] of the MGM Grand, L.L.C. application. We commenced the required public investigator hearing on June 21st. Evidence was closed, and the Board is reconvening the hearing on July 20th for a final argument. And to take a[v]ote on suitability; and, if appropriate, on whether or not a license should issue. THE COURT: As to MGM.? MR. WESTRIN: As to MGM Grand. THE COURT: Where are you with respect to the other two selectees? MR. WESTRIN: The background investigations which are required are still ongoing as to both of the other applicants. The Detroit Entertainment L.L.C. investigation is projected to be completed sometime in late July, early August. The Greektown Casino L.L.C. application investigation is projected to [be] complete[d] sometime [in] late October, early November. [Hearing Transcript, pp. 228-229], F. Other Relevant Litigation 1. Lac Vieux BDC models its constitutional challenges in the instant case on a similar suit originally filed in the United States District Court for the Western District of Michigan by the Lac Vieux Desert Band of Lake Superior Chippewa Indians (“Lac Vieux”) against the Board, the City of Detroit, the Mayor, and the City Council on February 25, 1997. As amended, Lac Vieux’s Complaint alleged, inter alia, that the preferences in the Act and the Ordinance violated Lac Vieux’s constitutional rights to free expression and equal protection. On October 31, 1997, Judge Robert Holmes Bell granted summary judgment in favor of the Defendants, finding that Lac Vieux did not have standing to bring its equal protection challenges and that neither the Act nor the Ordinance implicated the First Amendment. The district court further held that even if Lac Vieux had standing, its equal protection claims could not survive rational basis review. Lac Vieux, 172 F.3d at 403. However, in a unanimous decision issued on April 12, 1999, Lac Vieux Desert Band of Lake Superior Chippewa Indians v. Michigan Gaming Control Board, 172 F.3d 397 (6th Cir.1999), the Sixth Circuit reversed the District Court’s summary disposition of Lac Vieux’s First Amendment and equal protection challenges to the Ordinance, and remanded these claims to the District Court for further proceedings. In particular, the Sixth Circuit found that Lac Vieux did have standing to bring both First Amendment and equal protection challenges to the Ordinance, and that the Ordinance does implicate important First Amendment concerns and is, therefore, subject to the very high constitutional standard of strict scrutiny by the Court: Although the city ordinance in this case does not directly prohibit or limit speech, it does implicate the First Amendment. The ordinance grants benefits and imposes burdens according to whether an individual or entity sufficiently supported a particular political issue. Specifically, it grants a preference to developers who initiated a prior local casino gaming proposal and actively promoted and significantly supported a state- initiative authorizing gaming. The ordinance thereby denies a preference in the bidding process to certain developers on the basis of the content of their political speech, a category of speech which has been specifically recognized by the Supreme Court as particularly valuable and thereby carefully protected. It does not matter that the ordinance involves prior speech rather than prospective speech or a preference rather than a guarantee, because it imposes a burden based on the content of political speech and, therefore, implicates the First Amendment. $ ‡ ‡ ‡ H* ‡ [W]e conclude that the ordinance is content-based and is therefore subject to strict scrutiny. Id. at 409^110 (internal quotations and citations omitted). In addition, the Sixth Circuit found that the District Court erred by subjecting Lac Vieux’s equal protection challenge to the Ordinance to rational basis review: A statute challenged on equal protection grounds will be subject to strict scrutiny when the statute involves a suspect classification or has an impact on a fundamental right. If the statute does not involve a suspect classification or affect a fundamental right, then it will be subject to rational basis review. The district court found that the ordinance did not implicate the First Amendment, or any other fundamental right for that matter, and therefore applied rational basis review. However, in view of our holding that the ordinance does affect rights under the First Amendment, it follows that it is subject to strict scrutiny review — because it implicates a constitutionally protected fundamental right, the right to freedom of speech. Id. at 410 (internal citations omitted). With respect to the State Act, however, the Sixth Circuit found that Lac Vieux lacked standing to bring either First Amendment or equal protection challenges. In reaching this decision, the panel reasoned: [T]he amended act appears to render the [Act’s] preference ineffective. If the preference is ineffective, there can be no injury and no ‘case or controversy.’ Although Lac Vieux attempts to rebut the defendants’ and the intervenors’ contention that the preference is ineffective, we find its argument neither fully developed nor convincing. We therefore hold that because the preference in the amended act is ineffective, Lac Vieux does not have standing to bring an equal protection challenge to the amended act. Id. at 406. 2. NewCentury On October 7, 1997, NewCentury Detroit, L.L.C. (“NewCentury”), one of the four original bidders that the Mayor did not invite to respond to RFP II, tiled suit in the United States District Court for the Eastern District of Michigan challenging, inter alia, the preferences in the Act and the Ordinance on First Amendment and equal protection grounds. NewCentury Detroit L.L.C. v. City of Detroit, Case No. 97-75154. Following a November 3, 1997 hearing, Judge Nancy G. Edmunds issued an Order Denying Plaintiffs Motion for Preliminary Injunction on November 6, 1997. In reaching this decision, Judge Edmunds concluded that the Ordinance did not implicate NewCentury’s First Amendment rights, and that the Consent and Release executed by all of the developers who responded to RFP I, including BDC, undermined NewCentury’s likelihood of success on the merits. [Order Denying Motion for Preliminary Injunction, pp. 7,10]. Thereafter, the Court permitted counsel for NewCentury to withdraw, and no responses were filed to the Defendants’ January 15, 1998 motions for summary judgment. On June 3, 1998, Judge Edmunds issued an Order Granting Defendants’ Motions for Summary Judgment. With respect to NewCentury’s claims directed at the State, the Court found that the 1997 amendments to the Act rendered the state preference inoperative. [Order Granting Summary Judgment, pp. 12-13]. In addition, the Court found that the Consent and Release barred all claims against the City: A release is valid if it is fairly and voluntarily made. See Newton v. Rumery, 480 U.S. 386, 417, 107 S.Ct. 1187, 94 L.Ed.2d 405 (1987); Salmeron v. United States, 724 F.2d 1357, 1361 (9th Cir.1983) (“release of claims for violations of civil and constitutional rights must be voluntary, deliberate and informed”). The Court finds no indication that the RFP/Q releases fail to meet this standard. The document language is clear and unambiguous; the releases specifically informed Plaintiffs that they were waiving any and all claims regarding the RFP/Q process. Plaintiffs’ complaint presents no allegation of fraud, coercion, or other misconduct regarding the City’s solicitation of signatures for the release. Thus, the record before this Court is bereft of any evidence of unfairness. Moreover, Plaintiffs are sophisticated parties with legal counsel. As such, the Court would find it difficult to countenance a claim of involuntariness, overreaching, or unconscionability. Rather, the Court finds that the release is not impugned by any unfairness or involuntariness and that it therefore remains valid and binding on the Plaintiffs. [Order Granting Summary Judgment, pp. 7-8, internal footnote and citation omitted]. NewCentury did not pursue an appeal of Judge Edmund’s decision to the Sixth Circuit. G. Procedural Summary On May 25, 1999, approximately six weeks after the Sixth Circuit issued its opinion in Lac Vieux, BDC initiated the present lawsuit by filing a fifteen-count Verified Complaint for Damages and for Injunctive and Declaratory Relief. Counts I-VI, the predicate for BDC’s instant request for injunctive relief, set forth First Amendment, equal protection, and substantive due process challenges to the Act and the Ordinance. In Count VII, BDC asserts that both the Act and the Ordinance violate the Michigan Constitution’s prohibition against special legislation. Count VIII presents a § 1988 action against all Defendants based on the aforementioned federal constitutional challenges. Finally, Counts IX - XV present a variety of state law contract and tort claims against the Detroit Defendants. That same day, BDC filed the instant Motion for Preliminary Injunction requesting that the Court declare the Act and the Ordinance unconstitutional and enjoin the opening of the temporary casinos. Pursuant to the Court’s May 25, 1999 Show Cause Order, the Detroit and the State Defendants filed Responses to Plaintiffs Motion for Preliminary Injunction on June 15,1999, and BDC filed its Reply Briefs on June 22, 1999. In addition, the Detroit and the State Defendants filed separate Motions for Summary Judgment on June 15, 1999 and June 22, 1999, respectively. The parties also filed a Stipulated Order of Facts and Exhibits on June 30,1999. Under the supervision of the Court, the parties have also engaged in limited mutual discovery, exchanging numerous documents relevant to the issues in this case. At the direction of the Court, the parties have produced to the Court voluminous documents under seal upon which claims of privilege have been asserted. These documents were accompanied by annotated privilege logs describing the documents and the claimed privilege. Copies of the logs were served on opposing counsel. The Court has carefully reviewed each and every document upon which a privilege has been asserted. With the exception of those documents expressly indicated by the Court in its in camera hearing with the parties on July 14, 1999, the Court hereby finds that all privileges claimed by both parties have been properly asserted. Thus, the Court has not relied on any of these documents in reaching its decision, and these documents shall remain under seal. III. CONCLUSIONS OF LAW A. Standards Applicable to Motions for Preliminary Injunction In considering a request for a preliminary injunction, the Court must consider and balance the following four factors: (1) the movant’s likelihood of success on the merits; (2) whether the movant will suffer irreparable injury in the absence of an injunction; (3) whether an injunction will cause substantial harm to others; and (4) whether an injunction would serve the public interest. G & V Lounge, Inc. v. Michigan Liquor Control Commission, 23 F.3d 1071, 1076 (6th Cir.1994); In re De-Lorean Motor Co., 755 F.2d 1223, 1228 (6th Cir.1985). Fed.R.Civ.P. 52 requires the Court to make specific findings as to each factor “unless fewer are dispositive of the issue.” Id. B. BDC’s Claims Against the Detroit Defendants 1. The Equities Because both sides have asserted that the equities of this case militate in their favor, as an initial matter, the Court wishes to make several comments regarding the parties to this lawsuit and the general equities of the case. Having thoroughly and carefully reviewed the record, it is clear to the Court that the equities in this case favor neither BDC nor the Detroit Defendants. On the one hand, the Court is/aced with a Plaintiff who sat on its rights for almost two years before filing the instant lawsuit, while the City and the successful bidders went forward with the casino project, investing millions of dollars and dedicating important government resources. Despite its protestations to the contrary, BDC clearly had the option in 1997, or even in 1998, to follow the lead of Lac Vieux and NewCentury and immediately challenge the constitutionality of the preferences in both the Act and the Ordinance. Having signed a Consent and Release, “rolled-the-dice,” and then lost in its bid to gain one of the coveted development agreements, BDC now asks the Court to shut down and restart the selection process on the eve of the opening of the temporary casinos. Furthermore, the Court is not blind to the irony of BDC now claiming First Amendment and equal protection violations, when BDC, in fact, supports casino gaming and promoted what was, in effect, a preference for itself through its support of city ballot Proposal 1. On the other hand, the Detroit Defendants are similarly in no position to claim either the moral or legal high ground. Although the Court expresses no opinion as to whether casino gaming will be the economic boon and panacea for the City that its supporters suggest, the Court finds it deeply troubling, and indeed somewhat reckless, that the City would risk the casino developments — a project showcased as one of the centerpieces of Detroit’s rebirth — on an arguably unconstitutional Ordinance and selection process. The record clearly establishes that as early as 1997, the Detroit Defendants were placed on notice of potentially fatal constitutional defects in the selection process by the filing of the Lac Vieux and NewCentury cases. Rather than taking prudent steps to immediately cure these potential constitutional deficiencies, the City made a conscious decision to plow ahead, first codifying the questionable preferences in law and subsequently proceeding with the selection and development process. In essence, the City also “rolled-the-dice,” wagering that it would win in the courts. Having now suffered a serious setback with the Sixth Circuit’s decision in Lac Vieux, the Court finds it somewhat disingenuous for the City to rely on the doctrine of laches when it had reason to know all along that a grave day of reckoning could well arrive. In sum, there are no “good guys in white hats” in this high-stakes gamble by both sides involving a flawed process and participants who made conscious decisions to pay their money and take their chances. Thus, the Court is left to choose between two rather unappealing and unsatisfactory outcomes: (1) granting relief to a party that the Detroit Defendants somewhat aptly describe as a “disgruntled sore loser” who knew the rules of the game going in; or (2) impliedly sanctioning what may well amount to an unconstitutional selection process. With this background in mind, the Court turns its attention to BDC’s likelihood of success on the merits of its constitutional claims. 2. BDC’s Likelihood of Success on the Merits As noted above, BDC relies on the Sixth Circuit’s recent holding in Lac Vieux subjecting the Ordinance to strict scrutiny to establish the requisite likelihood of success on the merits of its First Amendment, equal protection, and substantive due process challenges to the Ordinance. Faced with the daunting obstacle of satisfying the strict scrutiny standard, the Detroit Defendants concede the unconstitutionality of the Ordinance for the purposes of the instant Motion for Preliminary Injunction, arguing that the Court need not reach the substance of BDC’s constitutional challenges in light of a series of threshold defenses: (1) the Consent and Release executed by Don Barden on behalf of BDC prior to entering the selection process; (2) the equitable doctrine of laches; and (3) BDC’s alleged inability to establish injury-in-fact. Although resolution of these issues, both independently and collectively, is an extremely close call, in the final analysis, the Court finds that the Consent and Release bars all of BDC’s claims against the Detroit Defendants. 3. The Consent and Release As indicated above, the Detroit Defendants assert that the plain language of the Consent and Release executed by Don Barden on behalf of BDC and various other Barden controlled entities on July 25, 1997, and then again on August 1, 1997, bars all claims against the City, the Mayor, the City Council, and the individual Council members. In making this argument, the Detroit Defendants cite paragraph 11 of the Consent and Release, which provides: The Releasor, and his, her or its heirs, executors, administrators, successors and assigns, hereby release the City of Detroit including all departments, agencies and commissions thereof, and their respective principals, agents, consultants, attorneys, advisors, employees, officers and directors (the “Releasees”), and hold each of them harmless from any damages, claims, rights, liabilities, or causes of action, which the Releasor ever had, now has, may have or claim to have, in law or in equity, against any or all of the Releasees, arising out of or directly or indirectly related to the (i) RFP/Q process and the selection and evaluation of Proposals submitted in connection therewith; (ii) release or disclosure of any Information whether intentional or unintentional; and (iii) use, investigation of, or processing of the Information. [Joint Exhibit 36, emphasis added]. Specifically, the Detroit Defendants rely on paragraph ll(i), noting that BDC’s constitutional claims against the Detroit Defendants arise out of, and are directly related to, the “RFP/Q process and the selection and evaluation of proposals submitted in connection therewith.” Despite^the seemingly clear language of paragraph ll(i), BDC enumerates five primary arguments as to why the Consent and Release should not preclude the instant lawsuit against the Detroit Defendants: 1. The Consent and Release was meant to apply only to information-related claims; 2. The Ordinance only authorizes a release as to information related claims; 3. The unconstitutional condition doctrine precludes the Detroit Defendants from requiring a waiver of constitutional rights as a precondition to participating in the RFP/Q process; 4. Even if the Detroit Defendants could legally condition participating in the RFP/Q process on the signing of a release of claims, BDC did not voluntarily, knowingly, and intelligently waive its right to bring constitutional challenges; and 5. The Consent and Release is void for lack of consideration. As set forth in detail below, the Court finds each of BDC’s arguments against application of the Consent and Release unavailing. a. The Scope of the Consent and Release As its initial argument against application of the Consent and Release, BDC essentially posits that the Court should interpret the broad release language in paragraph ll(i) in pari materia with the other clauses of the Consent and Release, which deal almost exclusively with concerns emanating from potential liabilities for the disclosure and dissemination of information submitted by applicants in connection with their bid proposals. More specifically, BDC asserts that when read as a whole and in context, the Consent and Release acts only to bar claims relating to the gathering, use, processing, and disclosure of information provided by applicants or third parties as part of the RFP/Q process. In support of this argument, BDC relies on the fact that four of the five whereas clauses and nine of the twelve numbered paragraphs of the Consent and Release address informational concerns, and that the term “information” itself appears seventeen times in the document. In contrast, the language purportedly waiving, all claims arising out of the RFP/Q process and the selection of developers does not appear until paragraph ll(i), where BDC asserts that it is “buried,” without a separate heading, among two other subparagraphs which also deal with the use and dissemination of information. Finally, BDC argues that paragraph 12 underscores the informational nature of the Consent and Release by providing that “[t]he undersigned Releasor has read and understands this Consent and Release and hereby authorizes the direct and indirect collection of and consents to the use and disclosure of, the Information as described herein.” Under well-established law, courts construe releases consistent with general state law contract principles, with the intent of the parties controlling the scope of the release. Taggart v. United States, 880 F.2d 867, 870 (6th Cir.1989) (interpreting Michigan contract law); Wyrembelski v. City of St. Clair Shores, 218 Mich.App. 125, 127, 553 N.W.2d 651, 652 (1996); Gortney v. Norfolk & Western Railway Company, 216 Mich.App. 535, 540, 549 N.W.2d 612, 614 (1996). In determining the intent of the parties, the Court must look to the language of the release itself. “If the language is unambiguous, the meaning of the language is a question of law, and the intent of the parties must be discerned from the words used in the instrument. However, if the scope of a release agreement is ambiguous, the question thus becomes one of determining the intention of the parties.” Taggatt, 880 F.2d at 870 (internal citations omitted). As neatly summarized by the Michigan Court of Appeals: If the text in the release is unambiguous, we must ascertain the parties’ intentions from the plain, ordinary meaning of the language of the release. The fact that the parties dispute the meaning of a release does not, in itself, establish an ambiguity. A contract is ambiguous only if its language is reasonably susceptible to more than one interpretation. If the terms of the release are unambiguous, contradictory inferences become subjective and irrelevant, and the legal effect of the language is a question of law. Gortney, 216 Mich.App. at 540-541, 549 N.W.2d at 614-615 (internal citations and quotations omitted); See also Michigan Chandelier Co. v. Morse, 297 Mich. 41, 49, 297 N.W. 64, 67 (1941) (“The law presumes that the parties understood the import of their contract and that they had the intention which its terms manifest.”). Applying the aforementioned principles to the case at hand, the Court finds that the unambiguous language of the Consent and Release belies BDC’s argument that the parties intended the document to release only information-related claims. While the Consent and Release as a whole is perhaps poorly structured with respect to the location of the release language, the clear and unequivocal text of paragraph 11 expressly addresses the type of claims that proposers were releasing by participating in the RFP/Q process. More specifically, in paragraph ll(i), BDC agreed to hold the Detroit Defendants harmless from any claims in law or equity arising out of the “RFP/Q process and the selection and evaluation of Proposals submitted in connection therewith.” The release of potential claims relating to the use and disclosure of information is then addressed in subparagraphs ll(ii) and ll(iii). Thus, paragraph 11 broadly precludes any claims or causes of action, whether in law or in equity, and then further delineates between the release of claims relating to information and the release of claims relating to the RFP/Q process and the selection and evaluation of proposals submitted in connection therewith. Moreover, if the City only intended a release from liability as to information-related matters, subsection 11© would not have been necessary, as subsections ll(ii) and ll(iii) comprehensively release information-related matters. In light of this clear distinction, the Court finds BDC’s argument that the Consent and Release applies only to information-related claims without merit. b. The Scope of the Authority Granted by the Ordinance Having found that the scope of the Consent and Release encompasses more than information-related claims, the Court turns to BDC’s related argument that by requiring a blanket release of any and all claims, the Mayor exceeded the statutory authority granted by Ordinance § 18 — 13—4(b)(2), which provides: (a) The mayor or his designee may require information and assurances from a prospective developer to demonstrate to the mayor’s satisfaction that the prospective developer is eligible to enter into a development agreement with the city. (b) Without limiting the foregoing, a prospective developer is not eligible to enter into a development agreement with the city if: # % Hi ‡ sfc (2) It does not submit to the city a consent in the form required by the mayor or his designee, for itself and each of its officers, directors and owners, to allow the city to evaluate the personal and professional integrity and the professional capabilities of each individual or any other matters deemed relevant by the mayor or his designee. Further, it shall submit to the city a release in the form required by the mayor or his designee which shall absolve the city, its agents, or employees from liability for seeking information about the prospective developer from third parties. Such release shall also absolve the third parties from liability for providing such information. Detroit City Code § 18 — 13—4(b)(2) (emphasis added). Relying on this section, BDC argues that the Ordinance only grants the Mayor authority to require a release as to information-related claims. In analyzing this argument, the Court notes that public officials are presumed to have “ ‘properly discharged their official duties’ ” and, although this is a rebuttable presumption, the burden falls on the party asserting an ultra vires act to show otherwise. Bracy v. Gramley, 520 U.S. 899, 909, 117 S.Ct. 1793, 1799, 138 L.Ed.2d 97 (1997) (quoting United States v. Armstrong, 517 U.S. 456, 464, 116 S.Ct. 1480, 1486, 134 L.Ed.2d 687 (1996)); Jones, Rosen, Wegner, & Jones, Rutter Group Practice Guide: Federal Civil Trials & Evidence, ¶¶ 8:4925-8:4956, 8:4975-8:4980 (The Rutter Group 1999). Applying this standard, BDC has failed to set forth sufficient evidence to rebut the presumption that the Mayor acted properly in requiring a release of all claims. While the Ordinance does require the Mayor to include language in a release pertaining to information-related claims, nothing in § 18-13-4(b)(2) — or anywhere else in the Ordinance for that matter— precludes the Mayor from also including broader language to protect the City from other types of claims. Quite the contrary, § 18-13-4(b)(2) on its face expressly authorizes the Mayor to draft a release in the form he deems proper. Moreover, BDC’s construction of § 18-13-4(b)(2) ignores the fact that § 18-13-4(a) grants the Mayor broad discretion to require “information and assurances from a prospective developer to demonstrate to the Mayor’s satisfaction that the prospective developer is eligible to enter into a development agreement with the city.” Given this broad discretion, the Court finds that the Mayor did not exceed his statutory authority by requiring a release as to any claims, whether in law or in equity. C. The Unconstitutional Condition Doctrine BDC next argues that the unconstitutional condition doctrine precludes application of the Consent and Release to constitutional claims. The unconstitutional condition doctrine grows out of the principle that in certain circumstances, the government may not deny a benefit to an individual on a basis that infringes constitutionally protected interests, particularly the right to free expression. The Supreme Court explained the policy rationale underlying the doctrine as follows: Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972). For at least a quarter-century, this Court has made clear that even though a person has no -‘right’ to a valuable government benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests — especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to ‘produce a result which [it] could not command directly.’ Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460. Such interference with constitutional rights is impermissible. The leading case in the Sixth Circuit applying the unconstitutional condition doctrine is G & V Lounge, Inc. v. Michigan Liquor Control Commission, 23 F.3d 1071, 1077 (6th Cir.1994), where the Court struck down an attempt by the City of Inkster to condition the granting of a liquor license/entertainment permit on G & V’s agreement not to offer adult entertainment at its facility. In reaching this decision, the Sixth Circuit set forth a clear rule that “a state actor cannot constitutionally condition the receipt of a benefit ... on an agreement to refrain from exercising one’s constitutional rights, especially one’s right to free expression.” (citing Perry, 408 U.S. at 597, 92 S.Ct. at 2697-98 and Keyishian v. Board of Regents, 385 U.S. 589, 606, 87 S.Ct. 675, 685, 17 L.Ed.2d 629 (1967)). Arguing by analogy to G & V, BDC asserts that the Detroit Defendants im-permissibly conditioned a benefit — participation in the RFP/Q process — on a developer’s agreement to sign away its constitutional rights through the Consent and Release. In response, the Detroit Defendants argue that the instant case is governed by a separate and distinct line of cases holding that an individual may release the right to bring constitutional challenges so long as such release is entered into voluntarily and is not the product of misconduct on the part of the City. See Town of Newton v. Rumery, 480 U.S. 386, 107 S.Ct. 1187, 94 L.Ed.2d 405 (1987); Burke v. Johnson, 167 F.3d 276 (1999); Cf. Salmeron v. United States, 724 F.2d 1357, 1361(9th Cir.1983) (“A release of claims for violations of civil and constitutional rights must be voluntary, deliberate and informed”). More specifically, the Detroit Defendants contend that as an experienced, sophisticated, and successful businessman, familiar with releases and represented by well-respected and highly comp