GEOFFREY N FIEGER V MICHAEL A COX
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STATE OF MICHIGAN
COURT OF APPEALS
GEOFFREY N. FIEGER, FIEGER, FIEGER,
KENNY & JOHNSON, P.C., JOHN L. BARLOW,
JOHN L. BARLOW & ASSOCIATES
ADVERTISING, INC., and NANCY FISHER,
FOR PUBLICATION
February 27, 2007
9:40 a.m.
Plaintiffs-Appellees,
v
No. 266264
Ingham Circuit Court
LC No. 05-001216-AW
MICHAEL A. COX, Individually and in his
Official Capacity as ATTORNEY GENERAL,
DOUG BAKER, TERRI LYNN LAND,
Individually and in her Official Capacity as
SECRETARY OF STATE, and THOMAS
CAMERON,
Defendants-Appellants.
In re GEOFFREY N. FIEGER, FIEGER, FIEGER,
KENNY & JOHNSON, P.C., JOHN L. BARLOW,
JOHN L. BARLOW & ASSOCIATES
ADVERTISING, INC., and NANCY FISHER,
No. 267309
Ingham Circuit Court
LC No. 05-001217-AS
Plaintiffs-Appellees.
Official Reported Version
Before: Borrello, P.J., and Saad and Wilder, JJ.
SAAD, J.
These consolidated appeals arise from an investigation conducted by defendants into
plaintiffs' alleged criminal violations of the Michigan Campaign Finance Act (MCFA), MCL
169.201 et seq. We hold that plaintiffs improperly sought to challenge district court orders by
initiating original civil actions for superintending control, mandamus, and injunctions and that
the circuit court erred by failing to dismiss the cases.
I. Nature of the Case
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The Attorney General investigated attorney Geoffrey Fieger for illegal interference with
the election of a justice to our Supreme Court, as well as attempts to circumvent the campaign
finance and reporting laws promulgated by our Legislature. These consolidated appeals involve
equally serious questions regarding an attempt by Fieger and others to thwart the Attorney
General's investigation through the manipulation of our court system. The chief law
enforcement officer of Michigan, the Attorney General, pursuant to law, was asked by the chief
election officer of our state, the Secretary of State, to investigate possible felony violations of the
MCFA by plaintiffs, including attorney Geoffrey Fieger. Specifically, the Attorney General was
asked to investigate Fieger and his associates for improperly attempting to influence the outcome
of the 2004 Michigan Supreme Court election.
The MCFA is designed to ensure openness and honesty in our elections by mandating
certain reporting requirements and by prohibiting corporations (including law firms operating as
limited liability companies) or their lawyers or agents from making monetary contributions to
influence elections. It was alleged that Fieger violated these laws by financing almost half a
million dollars' worth of campaign advertisements to defeat a Supreme Court justice in the 2004
election while concealing his involvement.
By properly following statutorily mandated procedures, the Attorney General conducted
the felony investigation by seeking warrants and subpoenas in the district court.1 Those
investigative tools uncovered the suspected Fieger funding of the campaign ads to defeat a
justice of the Supreme Court. After the investigation and subpoenas disclosed Fieger's
involvement, instead of filing an appeal to challenge the district judge's issuance of the warrants
and subpoenas, as the law requires, plaintiffs instead engaged in forum-shopping by filing two
separate civil actions to obtain a judge more to plaintiffs' liking who would undo the district
judge's work and stop the Attorney General's investigation. Plaintiffs violated Michigan statutes
and court rules by circumventing well-established, standard litigation rules that required
plaintiffs to appeal if they disagreed with the ruling of the district court. Indeed, by improperly
filing separate actions in the circuit court, plaintiffs got a judge to improperly reverse the district
judge's rulings and thwart the Attorney General's investigation. Clearly, the circuit judge should
have refused to hear a matter that should have been appealed if plaintiffs were dissatisfied with
the district court's orders. Instead, the circuit judge exceeded his authority and then improperly
rewarded plaintiffs' forum-shopping, first, by wrongfully taking the case and, second, by
improperly interfering with a legitimate and proper investigation by the Attorney General.
1
Our exhaustive review of the record reveals that the Secretary of State and the Attorney
General clearly complied with Michigan law in the referral and investigation of this matter and
in their applications for warrants and subpoenas. Again, if plaintiffs had wished to assert some
error in the district judge's issuance of those warrants and subpoenas, they should have raised
their legal arguments before the district judge and then followed the proper procedures to appeal
his decisions.
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Beyond the interests of the parties directly involved in this appeal, these cases present an
institutional conflict of considerable public significance.2 We cannot countenance the
circumvention of the rule of law by any litigant (especially one who is an attorney) who seeks,
with the participation of a circuit judge, to thwart a legitimate felony investigation through
technical gamesmanship involving our judicial system. Indeed, to do so would encourage other
litigants to do the same.
II. Facts
2
We note that plaintiffs filed, and this Court denied, a motion to dismiss these appeals as moot,
and that the parties raised this issue in their appellate briefs. The parties do not dispute that the
Attorney General's office concluded its criminal investigation or that the Attorney General's
office determined not to issue or recommend any criminal charges. However, our caselaw states
that when an appeal no longer presents an opportunity for an appellate court to fashion relief in
the dispute of particular parties, issues of public significance may nonetheless warrant this
Court's consideration of the questions raised in the appeal. "'The courts of this state have long
recognized that an appeal does not become moot, despite the change in position of the parties
through the passage of time, when the issue is of public significance and is likely to recur.'" Gen
Tel Co of Michigan v Pub Service Comm, 78 Mich App 528, 533; 260 NW2d 874 (1977),
quoting Regents of the Univ of Michigan v Michigan, 47 Mich App 23, 27; 208 NW2d 871
(1973).
Because these appeals involve issues of significant public interest, we find it necessary to
address this appeal, whether technically moot or not. It is also reasonable to anticipate that these
important institutional questions will arise again in a context that would not afford the Attorney
General adequate judicial review. The Attorney General possesses a wide range of common-law
and statutory powers authorizing him, among other things, to pursue legal actions. Michigan
State Chiropractic Ass'n v Kelley, 79 Mich App 789, 791-792; 262 NW2d 676 (1977). The
Attorney General's broad authority includes "all the powers of a prosecuting attorney unless . . .
specifically withdrawn by the Legislature." People v Karalla, 35 Mich App 541, 544; 192
NW2d 676 (1971). Certainly, some future instance of illegal activity in Michigan will prompt
investigation by the Attorney General. We review this case so that there is clear procedural
guidance for the bench and bar in the event a person or entity under future investigation by the
Attorney General seeks to resort to the courts to challenge, impede, or overturn the Attorney
General's efforts to obtain or execute a search warrant or subpoena. Absent review, the person or
entity under investigation may find it advantageous to again resort to such attempts. If, as here, a
circuit court either restrains the Attorney General from further investigation or facilitates the
return of documents seized by the Attorney General, a substantial possibility exists that the
Attorney General's investigation would suffer irreparable damage pending further appeal of the
circuit court's ruling. Thus, regardless of whether the Attorney General has concluded its
criminal investigation, we must address the fundamental questions concerning the scope of
authority of the Attorney General, a constitutional officer of the executive branch, to conduct
investigations without unwarranted judicial interference.
-3-
During the 2004 general election, various media outlets broadcast advertisements urging
voters to vote "No" on the reelection of Michigan Supreme Court Justice Stephen Markman.
The advertisements were identified as being sponsored by Citizens for Judicial Reform (CJR).
CJR first came to the attention of the Department of State (DOS) in October 2004, when a
complaint was filed with the DOS pursuant to MCL 169.215(5) that alleged that CJR had
violated several provisions of the MCFA, including MCL 169.247, by failing to include
mandatory disclaimer language in the television commercials, and MCL 169.224, by failing to
file a statement of organization with the Secretary of State. After CJR filed its statement of
organization, the Secretary of State investigated the complaint, as mandated by MCL 169.215(9),
and resolved it informally, MCL 169.215(10), by notifying CJR of its obligations under MCL
169.247.
CJR next came to the attention of the DOS after CJR failed to file a report of its fall 2004
campaign activity by January 31, 2005, as required by MCL 169.233(3). According to MCL
169.216(6), a DOS "filing official shall determine whether a statement or report that is required
to be filed under this act is in fact filed." As explained in the October 26, 2005, affidavit of
Anne Corgan, director of the Legal and Regulatory Services Administration of the DOS, the
DOS mailed to CJR in February 2005 a notice of its tardy report, and in early March 2005 sent
CJR notice of the late filing fee it owed. Corgan averred that on March 16, 2005, after the late
filing fee notice "was returned as undeliverable," she "requested the assistance of the Attorney
General's Office in bringing CJR into compliance with the MCFA" because CJR had failed to
file its report under MCL 169.233(3) and had not responded to the DOS notices. Corgan's
notification of the Attorney General clearly complied with MCL 169.216(8), which provides that
"[a]fter 9 business days and before 12 business days have expired after the deadline for filing the
statement or report, the filing official shall report errors or omissions that were not corrected
and failures to file to the attorney general." (Emphasis added.)
In late April 2005, CJR filed with the DOS an amended statement of organization that
altered the identity of its treasurer, but continued to identify its "official depository" as "Peoples
State Bank" in Hamtramck. After receiving Corgan's report concerning CJR's delinquent filing
of its campaign statements required under MCL 169.233(3), a special agent of the Attorney
General on April 25, 2005, obtained the first in a series of search warrants; the Attorney General
had apparently gleaned the identity of CJR's official depository from its October 2004 statement
of organization, and the 54-B District Court approved a warrant that authorized the Attorney
General to search the "Keeper of the Records, People's State Bank," for CJR records. The
district judge later authorized a second warrant to search People's State Bank for records relating
to CJR's agent, J.L. Barlow & Associates, Inc., doing business as Client Media Buying.
On May 31, 2005, the DOS received CJR's overdue report of its campaign statement
covering October 22, 2004, through December 31, 2004. The summary pages of CJR's
campaign-related activities reflects that it received $457,163.65 in "Anonymous Contributions,"3
3
The summary listed the address of the "anonymous donor" as 12350 Grand River in Detroit,
which CJR also listed as its own mailing address.
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which comprised its entire receipts, and that it had made this same amount of expenditures.
(Emphasis added.) The five-page itemized schedule portion of CJR's triannual report detailed
that on October 24, 2004, it spent all of the "anonymous contributions" it had received to
purchase 14 television commercials opposing the reelection of Justice Markman.
Thereafter, the district judge authorized a third warrant to search the Barlow firm's office
for documents related to CJR; its treasurer; a Client Media Buying account; and Fieger, Fieger,
Kenney & Johnson, P.C. During the search, several documents were seized, including CJR's
triannual report and numerous documents with references to Geoffrey Fieger. Only after the
Attorney General's investigation and the district court's discovery orders uncovered Fieger's
involvement did Fieger opportunely file with the Oakland County Clerk a late independent
expenditure report required by MCL 169.251, and that same day the clerk faxed the report to the
DOS. The report listed that with regard to the campaign of Justice Markman, Fieger made seven
payments to the Barlow firm and Client Media Buy to purchase political television advertising;
the five payments to the Barlow firm listed totaled $153,126, and the two payments to Client
Media Buy amounted to $300,560.35, for a total of $453,686.35.
In light of the conflicting information in CJR's triannual report and Fieger's late filing of
his independent campaign expenditure report, the Attorney General sought from the district court
a fourth search warrant directed to Comerica Bank regarding an account believed to belong to
Fieger, Fieger, Kenney & Johnson, P.C. The fourth warrant reflects that on July 1, 2005, the
Attorney General seized bank statements and 11 canceled checks, all of which were drawn on
the account of Fieger, Fieger, Kenney & Johnson, P.C., and were signed by attorney Fieger and
Nancy Fisher, who were both employed by the law firm; the corporate checks (nine payable to
the Barlow firm and two to Client Media Buy) totaled $587,415.60.
The MCFA prohibits a corporation, or any "attorney, agent, or any other person acting
for a . . . corporation," from "mak[ing] a contribution," MCL 169.254(1) and (2), which MCL
169.204(1) defines in relevant part as "a payment, gift, . . . expenditure, . . . advance, . . . loan, or
donation of money . . . made for the purpose of influencing the nomination or election of a
candidate . . . ." (Emphasis added.) According to MCL 169.254(4), "[a] person who knowingly
violates this section is guilty of a felony . . . ."
On June 13, 2005, CJR filed an amended report of its campaign activity for the last
quarter of 2004, which deleted all references to anonymous contributions or CJR's campaign
expenditures. On July 8, 2005, the DOS mailed CJR a letter advising it of "one or more apparent
error(s) or omission(s)" in the amended report, specifically the report's unexplained deletion of
the previously reported contributions and expenditures approximating $457,000. The DOS
notice informed CJR that its failure to respond would warrant referral of "the matter to the
Attorney General" pursuant to MCL 169.216(8), which is part of the specific MCFA provision
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concerning filing procedures and review of "statement[s] or report[s] required to be filed under
[the MCFA]," MCL 169.216(1).4
On July 12, 2005, the district judge authorized a fifth search warrant directed to "Grace &
Wild, Inc.," which the parties agree produced the anti-Markman commercials. The fifth warrant
permitted the Attorney General to search for and seize information "regarding the business
relationship between Grace & Wild, Inc.," the Barlow firm, and Client Media Buying, including
any documentation concerning the production of three specific advertisements purchased by
CJR. Thereafter, the Attorney General issued investigative subpoenas to Robert Miller, who was
the most recent treasurer identified on CJR filings with the DOS, and Nancy Fisher, directing
them to appear at the Attorney General's office on September 26, 2005. The investigative
subpoena to Fisher, as reissued on October 7, 2005, instructed her to produce numerous
documents, though the district judge later limited the scope of the documents that defendants
requested Fisher to produce.
II. Analysis
A. The Law Requires a Dissatisfied Litigant to Either Ask the District Judge to Reconsider His
or Her Ruling or to Appeal the Judge's Ruling: he Litigant May Not File Another Suit to Get a
T
More Favorable Ruling
As with any investigation or litigation, if a litigant wishes to challenge a ruling by a
court, the appropriate remedy is to seek a rehearing of the decision or file an appeal. Plaintiffs
made no effort to mount a legitimate challenge to the Attorney General's investigation by
moving to quash the search warrants, the evidence seized pursuant to the search warrants, or the
investigative subpoenas. See In re Investigation of March 1999 Riots in East Lansing, 463 Mich
4
In addition to MCL 169.216(8), DOS and Attorney General review of CJR's campaign
statements is authorized by MCL 169.215, which generally describes the duties and powers of
the Secretary of State in implementing and enforcing the MCFA. According to MCL
169.215(13),
[w]hen a report or statement is filed under this act, the secretary of state shall
review the report or statement and may investigate an apparent violation of this
act under the rules promulgated under this act. If the secretary of state determines
that there may be reason to believe a violation of this act has occurred and the
procedures prescribed in subsection (10) have been complied with, the secretary
of state may refer the matter to the attorney general for the enforcement of a
criminal penalty provided by this act, or commence a hearing under subsection
(11) to determine whether a civil violation of this act has occurred. [Emphasis
added.]
The language of subsection 13 echoes that of subsection 10, which directs the Secretary of State
to use informal conflict resolution procedures for correcting MCFA violations, but, if these fail,
likewise authorizes the Secretary of State to "refer the matter to the attorney general for the
enforcement of a criminal penalty provided by this act . . . ." MCL 169.215(10).
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378, 381-382; 617 NW2d 310 (2000). They also skirted our well-established statutes and court
rules for appealing the district court's issuance of search warrants and subpoenas and instead
improperly mounted a collateral attack on the investigation by filing two original actions in the
circuit court in order to thwart the investigation. On October 18, 2005, plaintiffs filed a
"Verified Petition for Writ of Mandamus, Temporary Restraining Order [TRO], Preliminary
Injunction and Permanent Injunction." Specifically, plaintiffs sought a TRO and a writ of
mandamus directing the Secretary of State's office to withdraw its referral of CJR to the Attorney
General for investigation and directing the Attorney General's office to withdraw all search
warrants and investigative subpoenas and cease its investigation. Plaintiffs argued that they
were entitled to an order of superintending control over the district court to preclude its issuance
of search warrants, investigative subpoenas, and orders to compel production of documents
related to investigative subpoenas and any other participation in the Attorney General's
investigation. In Docket No. 266264, the circuit court did not enter an order phrased in terms of
superintending control over the district court, but in a November 2, 2005, TRO the circuit court
clearly instructed the district court to perform certain actions in a specific manner.
Plaintiffs also filed a separate complaint for an order of superintending control over the
district judge and requested that the suppression of the criminal file be lifted to allow them and
the circuit court to review its contents (Docket No. 267309). The circuit judge improperly
granted the relief and instructed the district court to order the Attorney General to return all
financial documents "seized under color of the search warrant dated November 28, 2005," and
ordered the district judge not to issue any "further search warrants or investigative subpoenas"
directed toward plaintiffs.
Michigan statutes and court rules mandate the procedures for litigants to follow should
they wish to appeal to the circuit court a final judgment or interim order entered by a district
court. MCL 600.8342(2). Plaintiffs, however, disregarded these statutorily prescribed
procedures when they filed original civil actions in a forum in which they anticipated more
favorable review. This apparent forum-shopping undermines the essential integrity of the
judicial system, on which litigants and the public must be able to depend.
MCL 600.8342(1) and (2) provide that interlocutory appeals from the district court shall
be by application to the circuit court for leave to appeal.5 Because MCL 600.8342 entitles a
party to appeal a district court decision to the circuit court, the following provisions of MCR
3.302, the rule that governs writs of superintending control, are relevant:
(D) Jurisdiction.
5
MCL 600.8342 provides, in relevant part:
(1) Appeals from the district court shall be to the circuit court in the
county in which the judgment is rendered.
(2) Except as provided in subsections (4) and (5) [sic], all appeals from
final judgments shall be as of right and all other appeals shall be by application.
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(1) The Supreme Court, the Court of Appeals, and the circuit court have
jurisdiction to issue superintending control orders to lower courts or tribunals. . .
.
(2) When an appeal in the Supreme Court, the Court of Appeals, the
circuit court, or the recorder's court is available, that method of review must be
used. If superintending control is sought and an appeal is available, the
complaint for superintending control must be dismissed. [Emphasis added.]
In Shepherd Montessori Ctr Milan v Ann Arbor Charter Twp, 259 Mich App 315, 346-347; 675
NW2d 271 (2003), this Court explained:
The filing of a complaint for superintending control is not an appeal, but,
rather, is an original civil action designed to order a lower court to perform a legal
duty. Barham v Workers' Compensation Appeal Bd, 184 Mich App 121, 127; 457
NW2d 349 (1990). Superintending control is an extraordinary power that the
court may invoke only when the plaintiff has no legal remedy and demonstrates
that the court has failed to perform a clear legal duty. In re Recorder's Court Bar
Ass'n v Wayne Circuit Court, 443 Mich 110, 134; 503 NW2d 885 (1993);
Czuprynski v Bay Circuit Judge, 166 Mich App 118, 121-122; 420 NW2d 141
(1988). Therefore, if a plaintiff has a legal remedy by way of appeal, the court
may not exercise superintending control and must dismiss the complaint.
Barham, supra at 127; MCR 3.302(D). [Emphasis added.]
See also In re People v Burton, 429 Mich 133, 141; 413 NW2d 413 (1987) (citing MCR
3.302[D][2] for the proposition that "[t]he only limit as to whether a complaint for
superintending control can be filed is that an appeal must be unavailable to the party seeking the
order");6 In re Gosnell, 234 Mich App 326, 341; 594 NW2d 90 (1999) (observing that "[w]hen
an appeal is available, the complaint for an order of superintending control must be dismissed").
Because plaintiffs disregarded the available legal remedy of filing an appeal in the circuit
court of the district court's issuance of search warrants and investigative subpoenas, instead
commencing original civil actions seeking writs of mandamus7 and superintending control orders
over the district court, the circuit court was required to dismiss and, thus, should have summarily
dismissed the actions as mandated by the plain language of MCR 3.302(D)(2).8 Instead, the
6
Burton was superseded by statute because, at the time the case was decided, a prosecutor could
not appeal an order granting a new trial. In re Gosnell, 234 Mich App 326, 341 n 9; 594 NW2d
90 (1999), citing Schomaker v Armour, Inc, 217 Mich App 219, 222-225; 550 NW2d 863
(1996).
7
According to MCR 3.302(C), "[a] superintending control order replaces . . . the writ of
mandamus when directed to a lower court or tribunal."
8
We further note that the provisions of the circuit court's grant of injunctive relief in the form of
a TRO violate the clear and unambiguous terms of MCR 3.310(E), which provides: "An
(continued…)
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circuit court effectively halted the Attorney General's investigation and collaterally usurped the
authority of the district court by improperly acquiescing to plaintiffs' requests. Notwithstanding
that the Attorney General is constitutionally and statutorily bound to investigate campaign
finance violations, and that the district court is charged with overseeing the investigatory
process, the circuit court weakened the Attorney General's executive authority to investigate and
pursue potential violations of Michigan law. We cannot permit any litigant to violate statutory
and procedural rules by bypassing the normal appeal process. The rule of law must be observed,
and everyone must play by the same rules. To hold otherwise would not only undermine our
judicial system and encourage forum-shopping, it would also violate the fundamental separation
of powers principle.
B. The Attorney General Conducted the Felony Investigation Regarding Fieger's Alleged
Violations of the MCFA and the Circuit Court Had No Authority to Thwart the Attorney
General's Criminal Investigation
Were we to conclude that plaintiffs' claims were properly brought, and clearly they were
not, we would nonetheless hold that the circuit court's restraint of the Attorney General's
investigation violated the separation of powers principle, Const 1963, art 3, § 2. Though
plaintiffs allege that the scope and manner of the Attorney General's investigation constituted an
abuse of authority, there is simply no support in the record for this contention. On the contrary,
plaintiffs had no basis to thwart the Attorney General's investigation through restraining orders
issued in a collateral circuit court action.
"Whether a violation of the separation of powers doctrine has occurred is a question of
law that this Court reviews de novo." Harbor Tel 2103, LLC v Oakland Co Bd of Comm'rs, 253
Mich App 40, 50; 654 NW2d 633 (2002). To the extent that analysis of this issue also requires
statutory construction, this Court likewise "review[s] de novo the legal questions involved in
statutory interpretation." Id. at 51. The separation of powers principle is embodied in article 3, §
2 of the Michigan Constitution of 1963: "The powers of government are divided into three
branches: legislative, executive and judicial. No person exercising powers of one branch shall
exercise powers properly belonging to another branch except as expressly provided in this
constitution."
"By separating the powers of government, the framers of the Michigan Constitution
sought to disperse governmental power and thereby to limit its exercise." Nat'l Wildlife
Federation v Cleveland Cliffs Iron Co, 471 Mich 608, 613; 684 NW2d 800 (2004). As our
Supreme Court reiterated in Lee v Macomb Co Bd of Comm'rs, 464 Mich 726, 737-738; 629
NW2d 900 (2001), quoting People ex rel Sutherland v Governor, 29 Mich 320, 324-325 (1874):
(…continued)
injunction or temporary restraining order may not be granted in one action to stay proceedings in
another action pending in another court if the relief requested could be sought in the other
pending action."
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"Our government is one whose powers have been carefully apportioned
between three distinct departments, which emanate alike from the people, have
their powers alike limited and defined by the constitution, are of equal dignity,
and within their respective spheres of action equally independent. One makes the
laws, another applies the laws in contested cases, while the third must see that the
laws are executed. This division is accepted as a necessity in all free
governments, and the very apportionment of power to one department is
understood to be a prohibition of its exercise by either of the others. The
executive is forbidden to exercise judicial power by the same implication which
forbids the courts to take upon themselves his duties."
Provisions relating to the office of the Attorney General appear in article 5 of the
Michigan Constitution, which delineates the executive branch of government in Michigan.
Article 5, § 3 states that "[t]he single executives heading principal departments shall include a
secretary of state, a state treasurer and an attorney general," and article 5, § 9 provides that the
"[s]ingle executives heading principal departments . . . shall . . . perform duties prescribed by
law." (Emphasis added.) "The office of the attorney general enjoys a wide range of powers,
derived from both the common law and, later, statutory enactments." Michigan Beer & Wine
Wholesalers Ass'n v Attorney General, 142 Mich App 294, 300; 370 NW2d 328 (1985). "The
most basic purpose of [the Attorney General's] office is to litigate matters on behalf of the people
of the state. Accordingly, it is widely acknowledged that Michigan's Attorney General has broad
authority to bring actions that are in the interest of the state of Michigan." In re Certified
Question (Wayne Co v Phillip Morris, Inc), 465 Mich 537, 543; 638 NW2d 409 (2002), citing
MCL 14.28.9
As this Court further observed in People v Karalla, 35 Mich App 541, 544; 192 NW2d
676 (1971), "the Attorney General possesses all the powers of a prosecuting attorney unless that
power has been specifically withdrawn by the Legislature." Pursuant to MCL 49.153,
9
Pursuant to MCL 14.28,
[t]he attorney general shall prosecute and defend all actions in the supreme court,
in which the state shall be interested, or a party; he may, in his discretion,
designate one of the assistant attorneys general to be known as the solicitor
general, who, under his direction, shall have charge of such causes in the supreme
court and shall perform such other duties as may be assigned to him; and the
attorney general shall also, when requested by the governor, or either branch of
the legislature, and may, when in his own judgment the interests of the state
require it, intervene in and appear for the people of this state in any other court or
tribunal, in any cause or matter, civil or criminal, in which the people of this state
may be a party or interested.
"In determining what constitutes a state interest for the purpose of deciding whether to initiate
litigation, the Attorney General has broad statutory discretion . . . . [T]he courts should accord
substantial deference to the Attorney General's decision that a matter constitutes a state interest."
In re Certified Question, supra, 465 Mich 547.
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prosecuting attorneys in Michigan possess broad discretion to investigate criminal wrongdoing,
determine which applicable charges a defendant should face, and initiate and conduct criminal
proceedings. People v O'Shea, 149 Mich App 268, 276; 385 NW2d 768 (1986); Bloss v
Williams, 15 Mich App 228, 233-235; 166 NW2d 520 (1968).
Michigan courts recognize that although the judiciary generally may not second-guess
executive-branch decisions, under certain circumstances the judiciary does possess limited
authority to review discretionary actions taken by the executive branch. "A circuit judge does
not enjoy supervisory power over a prosecuting attorney. . . . He may not properly substitute his
judgment for that of the magistrate or prosecuting attorney as if he were reviewing the
magistrate's decision de novo or acting in a supervisory capacity with respect to the prosecuting
attorney." Genesee Prosecutor v Genesee Circuit Judge, 391 Mich 115, 121; 215 NW2d 145
(1974). "For the judiciary to claim power to control the institution and conduct of prosecutions
would be an intrusion on the power of the executive branch of government and a violation of the
constitutional separation of powers. Const 1963, art 3, § 2." Genesee Prosecutor v Genesee
Circuit Judge, 386 Mich 672, 684; 194 NW2d 693 (1972). Accordingly, "unless there is some
reason to conclude that the prosecution's acts were unconstitutional, illegal, or ultra vires, the
prosecutor's decision whether to proceed with a case is exempt from judicial review." People v
Jones, 252 Mich App 1, 7; 650 NW2d 717 (2002). See also People v Williams, 186 Mich App
606, 610-611; 465 NW2d 376 (1990); People v Morrow, 214 Mich App 158, 161; 542 NW2d
324 (1995).
The circuit court's November 2, 2005, TRO plainly purported to constrain the Attorney
General's authority to investigate or pursue potential violations of Michigan law. See Michigan
State Chiropractic Ass'n v Kelley, 79 Mich App 789, 791; 262 NW2d 676 (1977). While a
circuit court may consider allegations that the Attorney General has abused his authority by
pursuing an illegal and unconstitutional investigation, record evidence establishes that the
Attorney General's investigation here fully comported with the specific statutory provisions
governing the investigation. For these reasons, there was no abuse of authority in the Attorney
General's conducting, by means of search warrants, the investigation of the Fieger firm's
potential violation of MCL 169.254. Michigan statutes specifically authorize the Attorney
General to seek and obtain search warrants to further his investigation into a potential felony
violation of the MCFA. See MCL 780.651 et seq.; Karalla, supra, 35 Mich App 543-544. The
record reflects that, when he requested each warrant in this case, the Attorney General had a
reasonable basis to believe that the search would yield evidence of a violation of the MCFA.
MCL 780.652(d); People v Beuschlein, 245 Mich App 744, 750; 630 NW2d 921 (2001).10
Again, the record here reveals no abuse of authority by the Attorney General, who properly
received the DOS referral regarding CJR's violation of MCL 169.233(3) and who thereafter
properly investigated pursuant to his broad authority whether the Barlow firm or the Fieger firm
committed a felony violation of the MCFA. Accordingly, the circuit court's interference with
10
The search-warrant statutes also require the confidentiality of the affidavits supporting search
warrants for at least 56 days. MCL 780.651(7) and (8).
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and restraint of the Attorney General's investigation constituted a clear violation of the
separation of powers doctrine.11
The import of our holding must be clear to these litigants and to those on the bench and
in the bar. It is, quite simply, impermissible and an abuse of judicial power to thwart the
Attorney General's executive authority to properly investigate and pursue potential criminal
conduct. Moreover, it is equally impermissible for a litigant to engage in forum-shopping to
obstruct warrants and subpoenas duly issued by a district court by filing a separate suit rather
than appealing unfavorable rulings.12 And any court that permits this circumvention of the rule
of law abuses its judicial power.
In sum, we hold that plaintiffs improperly circumvented the appellate process and
engaged in a variant of forum-shopping to thwart the Secretary of State and the Attorney General
from conducting a proper felony investigation. We further hold that the circuit judge was
obligated, and failed in this obligation, to dismiss plaintiffs' civil lawsuits and that, in exercising
improper superintending control over the district court, overstepped his authority, improperly
interfered with the district judge's case, and, by thwarting a proper, statutorily mandated
investigation by the Attorney General, violated the separation of powers doctrine. Accordingly,
we reverse the circuit judge's rulings.
Reversed.
/s/ Henry William Saad
/s/ Stephen L. Borrello
/s/ Kurtis T. Wilder
11
Plaintiffs question the Attorney General's allegedly political motives in pursuing the
investigation, again without record support, but in the absence of some illegality or abuse of
authority by the Attorney General, his alleged motives do not constitute a valid subject for
judicial review. See State Racing Comm'r v Wayne Circuit Judge, 377 Mich 31, 36; 138 NW2d
764 (1966).
12
Fieger has admittedly engaged in other attempts to game the judicial system in order to
improve his odds for a more favorable outcome. See In re Fieger, unpublished opinion of the
United States Court of Appeals for the Sixth Circuit, issued September 10, 1999; 1999 WL
717991, in which he was disciplined after he admitted that he filed 13 identical complaints in the
same federal district court and then dismissed all but one of them in order to ensure assignment
to his preferred judge.
-12-
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