MICHIGAN EDUCATION ASSOCIATION V SECRETARY OF STATE
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STATE OF MICHIGAN
COURT OF APPEALS
MICHIGAN EDUCATION ASSOCIATION,
FOR PUBLICATION
August 28, 2008
Petitioner-Appellee,
v
No. 280792
Ingham Circuit Court
LC No. 06-001537-AA
SECRETARY OF STATE,
Respondent-Appellant,
Advance Sheets Version
and
MICHIGAN CHAMBER OF COMMERCE,
MICHIGAN STATE AFL-CIO, CHANGE TO
WIN, MACKINAC CENTER FOR PUBLIC
POLICY, SENATE MAJORITY LEADER,
SENATE MAJORITY FLOOR LEADER, and
SENATE CAMPAIGN AND OVERSIGHT
COMMITTEE CHAIR,
Amici Curiae.
Before: Wilder, P.J., and O’Connell and Whitbeck, JJ.
Whitbeck, J. (dissenting).
I respectfully dissent. The majority posits the issue before us as whether under the
Michigan Campaign Finance Act (MCFA) “advance reimbursement for the costs of a payroll
deduction system prevents what is otherwise an illegal expenditure from ever becoming an
‘expenditure.’”1 The majority concludes it does not. I disagree. Under the particular, and
peculiar, definitions contained in the self-contained looking-glass2 world of the MCFA, the costs
of such payroll deduction systems are not “expenditures” at all. Thus, the trial court reached the
right result, although for wrong reason. I would affirm the trial court on the basis that the
allocated costs of administration by the Gull Lake Public Schools, for example, for collecting
and delivering payroll deductions for “contributions” by members of the Michigan Education
1
Emphasis added.
2
“‘When I use a word,’ Humpty Dumpty said in a rather scornful tone, ‘it means just what I
choose it to mean—neither more nor less.’” Lewis Carroll, Through the Looking Glass (1872).
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Association (MEA) affiliate to the MEA-PAC do not constitute an “expenditure” as the MCFA
defines that word.
In my view, however, that should not end the inquiry; it should only begin it. As a
separate and distinct matter, I would ask the parties to brief the questions (1) whether, using the
situation at the Gull Lake Public Schools as an example, the allocated costs of collecting and
delivering payroll deductions by members of the MEA affiliate to the MEA-PAC are a
contribution to the MEA-PAC by the Gull Lake Public Schools as the MCFA defines
contributions and, if so, whether such costs are a prohibited contribution under § 57 of the
MCFA; and (2) whether public bodies such as school boards, like the Gull Lake Public Schools,
have the authority to collect and deliver payroll deductions for contributions by members of a
union to that union’s PAC. I would then decide these issues in a timely and comprehensive
opinion.
I. Introduction
This case involves the application of certain provisions of the MCFA.3 The MCFA is a
comprehensive, wide-ranging statute and has been the subject of a number of interpretations,
declarations, and opinions by the Secretary of State, the Attorney General, and various state and
federal courts. It contains a multitude of prohibitions, authorizations, delineations, limitations,
and other provisions applicable only to a self-contained looking-glass world, that of campaign
finance. To extend the metaphor, behind the looking glass lies a bewildering and Byzantine hall
of mirrors. It is therefore of considerable importance to understand the general “architecture” of
the MCFA as it relates to the issues in this case, to identify the provisions of the MCFA that are
relevant here, and then to apply these provisions to the facts as the parties have presented them to
this Court.
II. The Architecture of the MCFA
A. Section 54 Prohibition on Corporate Contributions and Expenditures
As a starting point, I emphasize that § 54 of the MCFA,4 with certain important
exceptions, broadly prohibits corporations, joint stock companies, domestic dependent
sovereigns,5 and labor organizations, as well as those acting for such entities, from making “a
contribution or expenditure or provid[ing] volunteer personal services that are excluded from the
definition of a contribution pursuant to [MCL 169.204(3)(a)].”
3
MCL 169.201 et seq.
4
MCL 169.254.
5
Defined as Indian tribes that have been acknowledged, recognized, restored, or reaffirmed as an
Indian tribe by the Secretary of the Interior under the Indian Reorganization Act or have
otherwise been acknowledged by the United States government as an Indian tribe. See MCL
169.205(1).
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First, as a housekeeping matter, I observe that this matter does not involve “volunteer
personal services.” Rather, this Court is concerned here with “contributions” and “expenditures”
as the MCFA defines those words.
Second, as a point of interest, the MEA asserts that it is “a voluntary incorporated labor
organization.”6 Both as a corporation and a labor organization, therefore, the MEA cannot make
a “contribution” or an “expenditure” as the MCFA defines those words. But a corporation that is
not a labor organization, such as General Motors for example, also cannot make a “contribution”
or an “expenditure” as the MCFA defines those words. Thus, in the MCFA’s self-contained
looking-glass world of campaign finance, § 54 now treats corporations, joint stock companies,
domestic dependent sovereigns, and labor organizations exactly alike with respect to its broad
prohibition against “contributions” and “expenditures.”
Thirdly, however, there are several exceptions to § 54’s broad prohibitions. These
exceptions are contained in the first sentence of § 54(1):
Except with respect to the exceptions and conditions in subsections (2)[7]
and (3) and section 55,[9] and to loans made in the ordinary course of business, a
corporation, joint stock company, domestic dependent sovereign, or labor
organization shall not make a contribution or expenditure . . . .[10]
[8]
Neither the exceptions and conditions in § 54(2)11 nor the exceptions and conditions in §
54(3)12 are directly relevant here. Nor are loans in the ordinary course of business. But the
exception related to § 5513 is directly relevant. I will cover § 55 below; it is sufficient here only
to note that under § 54, the exceptions and conditions in § 55 constitute an exception to the broad
prohibition against “contributions” and “expenditures,” as the MCFA defines those terms, by the
named private entities (that is, corporations, joint stock companies, domestic dependent
sovereigns, and labor organizations).
Finally, I observe that § 54 covers only the named private entities. There is an absolutely
deafening silence in § 54 with respect to public bodies, such as school districts. Generally
6
Emphasis added.
7
MCL 169.254(2).
8
MCL 169.254(3).
9
MCL 169.255.
10
MCL 169.254(1) (emphasis added).
11
MCL 169.254(2).
12
MCL 169.254(3).
13
MCL 169.255.
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speaking, this is understandable. This Court does not expect public bodies to participate in the
political process and certainly not by the way of making “expenditures” and “contributions.”14
B. “Contributions” and “Expenditures”
To find one’s way through the MCFA’s hall of mirrors, one must understand and use its
definitions, particularly the definitions of “contributions”15 and “expenditures.”16 I have
summarized these definitions below:
“Contributions”
“‘Contribution’ means a payment, gift,
subscription,
assessment,
expenditure,
contract, payment for services, dues,
advance, forbearance, loan, or donation of
money or anything of ascertainable monetary
value, or a transfer of anything of
ascertainable monetary value to a person,
made for the purpose of influencing the
nomination or election of a candidate, or for
the qualification, passage, or defeat of a
ballot question.”[17]
But a “contribution” does not include
“volunteer personal services,” “[f]ood and
beverages, . . . which are donated by an
individual,” or “[a]n offer or tender of a
contribution if expressly and unconditionally
rejected, returned, or refunded in whole or in
part within 30 business days after receipt.”[18]
“Expenditures”
“‘Expenditure’ means a payment,
donation, loan, or promise of payment of
money or anything of ascertainable monetary
value for goods, materials, services, or
facilities in assistance of, or in opposition to,
the nomination or election of a candidate, or
the qualification, passage, or defeat of a
ballot question.”[19]
But an expenditure does not, among other
things, include “[a]n expenditure for the
establishment, administration, or solicitation
of contributions to a separate segregated fund
or independent committee.”[20]
14
See, e.g., OAG, 1993-1994, No 6763, p 45 (August 4, 1993) (“School districts may not permit
their offices and phone equipment to be used in a restrictive manner for advocacy of one side of
a ballot issue . . . . School districts may not endorse a particular candidate or ballot proposal.”);
OAG, 1965-1966, No 4291, p 1 (January 4, 1965) (school district not allowed to spend funds to
advocate a favorable vote on a tax and bond ballot proposal).
15
MCL 169.204.
16
MCL 169.206.
17
MCL 169.204(1).
18
MCL 169.204(3).
19
MCL 169.206(1).
20
MCL 169.206(2)(c) (emphasis added).
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I make four observations based on these definitions. First, I observe that the definitions
are all encompassing within the self-contained looking-glass world of campaign finance. To
some extent the definitions are also parallel, and perhaps even somewhat overlapping. In the
case of a “contribution,” the definition covers any type of payment21 to influence the
“nomination or election of a candidate, or for the qualification, passage, or defeat of a ballot
question.” In the case of an “expenditure,” the definition covers not only payments but also
donations, loans, and promises of the payment of money or anything of ascertainable monetary
value for “goods, materials, services, or facilities” “in assistance of, or in opposition to, the
nomination or election of a candidate, or the qualification, passage, or defeat of a ballot
question.”
Second, I observe that the definition of a “contribution” is subject to several exceptions,
none of which is relevant here.22
Third, I observe that the definition of an “expenditure” is also subject to a number of
exceptions, one of which is directly relevant here. Under that exception, an “expenditure” for the
“establishment, administration, or solicitation of contributions to a separate segregated fund or
independent committee” is not an “expenditure” for the purposes of the MCFA.23
Fourth, I observe that there is no indication in the definitions of “expenditure” and
“contribution” that either definition is limited to the named private entities in § 55.
C. Section 55 and Authorized Activities for Private Entities
Section 55 of the MCFA24 authorizes the named private entities (that is, corporations,
either for profit or nonprofit, joint stock companies, domestic dependent sovereigns, and labor
organizations) to make “expenditures” for the establishment and administration and solicitation
of “contributions” for separate segregated funds to be used for political purposes. Again, then, §
55 is an important exception to § 54’s broad prohibition against such named private entities
making either “contributions” or “expenditures” as defined in the MCFA. With respect to
separate segregated funds, therefore, the named private entities can make “expenditures” for the
establishment, administration, and solicitation of “contributions” to such separate segregated
funds. But § 55, in turn, expressly limits such separate segregated funds to making
21
Including “the full purchase price of tickets or payment of an attendance fee for events such as
dinners, luncheons, rallies, testimonials, and other fund-raising events; an individual’s own
money or property other than the individual’s homestead used on behalf of that individual’s
candidacy; the granting of discounts or rebates not available to the general public; or the granting
of discounts or rebates by broadcast media and newspapers not extended on an equal basis to all
candidates for the same office; and the endorsing or guaranteeing of a loan for the amount the
endorser or guarantor is liable.” MCL 169.204(2).
22
See MCL 169.255(3).
23
MCL 169.206(2)(c).
24
MCL 169.255.
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“contributions” to and “expenditures” on behalf of another set of named entities: “candidate
committees, ballot question committees, political party committees, political committees, and
independent committees.”25
I observe that the term “political action committee” (PAC) is not defined in the MCFA.
It comes from federal election law26 and, according to the Secretary, is a term of art that has
gained common acceptance and usage to describe independent committees or political
committees, apparently including separate segregated funds, established under the MCFA to
support or oppose candidates. According to the MEA, the MEA-PAC is a separate segregated
fund and has regularly filed with the Secretary of State the campaign finance reports required by
the MCFA.27
Section 55 also delineates those who can be solicited for “contributions” to a separate
segregated fund to the following persons or their spouses:
For Profit/
Joint Stock Company
Stockholders
of
the
corporation or company;
officers and directors of the
corporation or company; and
employees of the corporation
or company who have “policy
making
managerial,
professional, supervisory, or
administrative
nonclerical
[28]
responsibilities.”
Nonprofit
Labor Organization
Members of the corporation
who
are
individuals;
stockholders of members of
the corporation; officers or
directors of members of the
corporation; employees of the
members of the corporation
who have “policy making,
managerial,
“professional,
supervisory, or administrative
nonclerical responsibilities”;
and employees of the
corporation who have “policy
making,
managerial,
professional, supervisory, or
administrative
nonclerical
responsibilities” [29]
Members of the labor
organization
who
are
individuals;
officers
or
directors of the
labor
organization; and employees
of the labor organization who
have
“policy
making,
managerial,
professional,
supervisory, or administrative
nonclerical
responsibilities.”[30]
25
MCL 160.255(1).
26
See, generally, 2 USC 431(4).
27
See MCL 169.224.
28
MCL 169.255(2).
29
MCL 169.255(3).
30
MCL 169.255(4). See also MCL 169.255(5) relating to domestic dependent sovereigns.
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Section 55 also has one further authorizing provision. This provision states:
A corporation organized on a for profit or nonprofit basis, a joint stock
company, a domestic dependent sovereign, or a labor organization may solicit or
obtain contributions for a separate segregated fund established under this section
from an individual described in subsection (2), (3), (4), or (5) on an automatic
basis, including but not limited to a payroll deduction plan, only if the individual
who is contributing to the fund affirmatively consents to the contribution at least
once in every calendar year.[31]
Thus, in the § 55 private arena, automatic payroll deduction plans for obtaining
“contributions” to a separate segregated fund are permissible only if the delineated individuals in
§ 55(2) (for corporations and joint stock companies),32 § 55(3) (for nonprofit corporations),33 and
§ 55(4) (for labor organizations)34 who make “contributions” affirmatively consent to the payroll
deduction of such “contributions” at least once in every calendar year.
But the § 55 private arena encompasses only the named private entities under that section:
for-profit and nonprofit corporations, joint stock companies, domestic dependent sovereigns, and
labor organizations. Thus, § 55 deals only with private entities. It is silent with respect to public
bodies, such as school districts. However, § 57 of the MCFA35 deals directly with such public
bodies.
D. Section 57 and Prohibited Activities for Public Bodies
In contrast to § 55, § 57 of the MCFA is a prohibitive provision; it does not authorize a
public body to do anything. Rather, § 57 provides, with certain exceptions not relevant here,36
that a public body, or an individual acting for a public body, shall not “use or authorize the use of
funds, personnel, office space, computer hardware or software, property, stationery, postage,
vehicles, equipment, supplies, or other public resources to make a contribution or expenditure . .
. .”37
Second, § 57 uses the term “public body.” This is also a defined term under the MCFA.
It includes state agencies,38 the Legislature or an agency of the legislative branch of state
31
MCL 169.255(6).
32
MCL 169.255(2).
33
MCL 169.255(3).
34
MCL 169.255(4).
35
MCL 169.257.
36
See MCL 169.257(1)(a)-(f).
37
MCL 169.257(1).
38
MCL 169.211(6)(a).
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government,39 and “[a] county, city, township, village, intercounty, intercity, or regional
governing body; a council, school district, special district, or municipal corporation; or a board,
department, commission, or council or any agency of a board, department, commission, or
council.”40
The term “public body” also includes “[a]ny other body that is created by state or local authority
or is primarily funded by or through state or local authority, which body exercises governmental
or proprietary authority or performs a governmental or propriety function.”41
Third, there is no counterpart in § 57 to the provision in § 55 that authorizes the named
private entities (that is, for-profit or nonprofit corporations, joint stock companies, and labor
organizations) to make “expenditures” for the establishment and administration and solicitation
of “contributions” to separate segregated funds. Thus, a public body, such as a state agency or a
school district, is not authorized under § 57 to make “expenditures” to establish, administer, or
solicit “contributions” for a management PAC. Labor organizations may arguably utilize their
authority under § 55 to establish and administer union PACs (such as the MEA-PAC). But in
situations where the members of the labor organization are employees of a public body, there can
be, and are, no side-by-side management PACs because there is no authorization in the MCFA or
elsewhere for a public body to establish or administer a management PAC. It would be
incongruous, and indeed illegal, for a public body, such as a school district, to use public
resources to establish, administer, and solicit “contributions” for its own management PAC to be
used for political purposes. Indeed, the Michigan State AFL-CIO and Change to Win state that it
is “well-established” that public bodes may not establish, administer, or solicit contributions to
their own separate segregated funds.
Fourth, and as an extension of the above, there is no counterpart in § 57 to the
authorization in § 5542 for automatic payroll deduction plans to obtain “contributions” to a
separate segregated fund when the delineated individuals who make such “contributions”
affirmatively consent to the payroll deduction of such “contributions” at least once in every
calendar year.
E. Conclusions
I conclude that § 54 of the MCFA prohibits the named private entities (that is,
corporations, joint stock companies, domestic dependent sovereigns, and labor organizations)
from making “expenditures” and “contributions” as the MCFA defines these terms. But there
are important qualifications to this conclusion. First, there are several exceptions to § 54’s
overall prohibitions, including § 55’s authorized “expenditures” for the establishment,
administration, and solicitation of “contributions” to separate segregated funds. Second, § 54’s
39
MCL 169.211(6)(b).
40
MCL 169.211(6)(c) (emphasis added).
41
MCL 169.211(d).
42
MCL 169.255(6).
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prohibitions extend only to a specific set of named private entities. That set does not include
public bodies, such as school districts.
I also conclude that the MCFA contains a number of definitions that are applicable in the
self-contained looking-glass world of campaign finance, including the definitions of the word
“contribution” and the word “expenditure.” Most importantly, the MCFA states that the
definition of “expenditure” does not include the “establishment, administration, or solicitation of
contributions” to a separate segregated fund. Therefore, to the extent that there are costs
involved in the establishment, administration, or solicitation of “contributions” to a separate
segregated fund, those costs are not “expenditures” as the MCFA defines that word. This is true
whether the entity involved is private or public.
I further conclude that § 55 does four things. It authorizes the named private entities to
undertake certain activities, including the making “of expenditures” for the establishment,
administration, and solicitation of “contributions” to separate segregated funds. Thus, § 55
creates—and § 54 recognizes—an exception to the broad prohibition against those named private
entities making either a “contribution” or an “expenditure.”
But § 55 also limits such separate segregated funds to certain activities: the making of
“contributions” to and “expenditures” on behalf of candidate committees, ballot question
committees, political party committees, political committees, and independent committees.
Section 55 also delineates those individuals who can be solicited for “contributions” to separate
segregated funds.
Finally, § 55 contains a further provision specifically authorizing the named private
entities to solicit or obtain “contributions” for a separate segregated fund on an automatic basis,
including but not limited to payroll deduction plans, only if the individual who is solicited
affirmatively consents to the “contributions” at least once each calendar year. As with the § 54
prohibitions, the § 55 authorizations, limitations, and delineations extend only to a set of named
private entities. That set does not include public bodies, such as school districts.
I also conclude that § 57 flatly prohibits a public body from using its resources to make a
“contribution” or an “expenditure” as the MCFA defines those words. And there is no
counterpart in § 57 to the authorizations, limitations, and delineations in § 55 that pertain to
private entities. Specifically, there is no authorization in § 57 for a public body to administer a
payroll deduction plan for “contributions” to a separate segregated fund.
III. “Expenditures” by Public Bodies
The trial court’s decision starts with the proposition that the administration of payroll
deductions to a union PAC constitutes an “expenditure” under the MCFA. I disagree with this
threshold conclusion. It is well to be clear here about the factual circumstances. The
“administration” to which the trial court referred is the allocated costs of, for example, the Gull
Lake Public Schools when that entity uses its resources, of whatever type or kind, to collect and
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deliver the payroll deductions of “contributions” of, for example, members of the Kalamazoo
County Education Association/Gull Lake Education Association to the MEA-PAC. The Gull
Lake Public Schools system is a “school district” and is therefore a “public body” under the
MCFA.43 As I noted earlier, the MEA-PAC is a separate segregated fund under the MCFA.44
The threshold question, then, is whether the allocated costs of administration by the Gull Lake
Public Schools for collecting and delivering payroll deductions for “contributions” by members
of the MEA affiliate to the MEA-PAC constitute an “expenditure” as the MCFA defines that
word.
In my opinion, such costs do not constitute such an “expenditure.” I base this conclusion
on the plain and simple language of the MCFA. As I noted before, the definition of
“expenditure” does not include expenditures for the “establishment, administration, or
solicitation of contributions to a separate segregated fund . . . .”45 The costs of administration,
including the allocated costs of administration by the Gull Lake Public Schools of collecting and
delivering payroll deductions for “contributions” by members of the MEA affiliate to the MEAPAC, are therefore not expenditures as the MCFA defines that word. While these allocated costs
of administration are most certainly costs, they are most certainly not “expenditures” in the selfcontained looking-glass world of the MCFA. Simply, in that world, such allocated costs of
administration do not constitute “expenditures” as the MCFA defines that word. To the extent
that the majority accepts the trial court’s threshold conclusion that these allocated costs of
administration are “expenditures” as the MCFA defines that word, the majority errs.
In a footnote, of all places, the Secretary proffers, without authority, the argument that the
exclusion of such costs from the definition of “expenditure” relates only to § 55 private entities
and not to § 57 public bodies, stating: “This exclusion pre-existed the enactment of § 57 and
relates to § 55’s provision of separate segregated funds for corporations, labor organizations,
joint stock companies and domestic dependent sovereigns.”
This argument is plainly wrong. The MCFA definition of “expenditure” could not be
clearer. It specifically excludes an “expenditure” for the “administration” of a separate
segregated fund. “[W]hen a statute specifically defines a given term, that definition alone
controls.”46 Indeed, as the Secretary notes, when the Legislature has defined a term in a statute,
that definition must be applied and is binding on the courts.47 There is no language in the
definition of “expenditure” that even remotely suggests that the exclusion in that definition for
the costs of administration of a separate segregated fund is limited in the manner that the
Secretary claims. “[N]othing may be read into the statute that is not within the manifest intent of
43
See MCL 169.211(6).
44
See MCL 169.255(1).
45
MCL 169.206(2)(c).
46
Tryc v Michigan Veteran’s Facility, 451 Mich 129, 136: 545 NW2d 642 (1996) (emphasis
added).
47
Id.
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the Legislature as derived from the act itself.”48 There is no hint in the MCFA that the definition
of “expenditure” applies to private entities but does not apply to public bodies. There is no hint
of ambiguity in the definition of “expenditure” and, as the Michigan Supreme Court has said,
“[w]hen the language of a statute is unambiguous, the Legislature’s intent is clear and judicial
construction is neither necessary nor permitted.”49 “In discerning legislative intent, a court must
give effect to every word, phrase, and clause in a statute . . . .”50 “A statute must be read in its
entirety and the meaning given to one section arrived at after due consideration of other sections
so as to produce, if possible, an harmonious and consistent enactment as a whole.” 51
Further, I note that the Legislature amended the definition of “expenditure” as recently as
200352 without limiting the exclusion in that definition for the costs of administration of a
separate segregated fund. And the Legislature is also presumed to be aware of all existing
statutes when it enacts another.53 Here, when the Legislature enacted § 57 relating to public
bodies, it specifically selected the word “expenditure,” a pre-existing defined term under the
MCFA with a pre-existing exclusion. Again, there is simply no support for the proposition that
the definition of “expenditure,” and the exclusion in that definition for the costs of administration
of a separate segregated fund, does not apply to § 57 public bodies. Nor does a public body
trigger the application of § 57’s prohibitions when it collects and delivers payroll deductions for
“contributions” by members of a labor organization to a union PAC because the cost of the
administration of such collection and delivery is not an “expenditure” as the MCFA defines that
term.
Thus, at the threshold, the allocated costs of administration by the Gull Lake Public
Schools, for example, of collecting and delivering payroll deductions for “contributions” by
members of the MEA affiliate to the MEA-PAC are not an “illegal expenditure” under the
MCFA. Rather, as the MCFA defines that word, these allocated costs are not an “expenditure”
at all. To the extent that the majority now accepts the Secretary’s proposition that such costs are
an “illegal expenditure” under the MCFA,54 I believe the majority to be wrong.
48
Omne Financial, Inc v Shacks, Inc, 460 Mich 305, 311; 596 NW2d 591 (1999) (emphasis
added).
49
Lash v Traverse City, 479 Mich 180, 187; 735 NW2d 628 (2007).
50
Shinholster v Annapolis Hosp, 471 Mich 540, 549; 685 NW2d 275 (2004) (internal quotations
and citation omitted).
51
State Treasurer v Wilson, 423 Mich 138, 145; 377 NW2d 703 (1985). See also People v Hill,
192 Mich App 102, 114-115; 480 NW2d 913 (1991).
52
See 2003 PA 69.
53
Walen v Dep’t of Corrections, 443 Mich 240, 248; 505 NW2d 519 (1993). See also Malcom v
City of East Detroit, 437 Mich 132, 138; 468 NW2d 479 (1991), superseded by statute as stated
in Vine v Ingham Co, 884 F Supp 1153 (WD Mich, 1995).
54
Ante at 6.
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Further, to the extent that the majority concludes that the reimbursement of such an
“illegal expenditure” fails to negate something that otherwise constitutes an “expenditure,”55 I
believe the majority overreaches in the sense that it comes to a conclusion that it need not make.
The legality of the “rental,” as the Mackinac Center colorfully puts it, of the apparatus of a
public body to collect and deliver contributions to public employee union PACs through the
device of an advance reimbursement for the costs of such collection and delivery should not be
decided here if this Court recognizes that such costs are not “expenditures” at all.
IV. Additional Issues
A. Overview
Despite the majority’s position that they “are not properly before us,” I find that this
Court should consider certain additional issues. Those issues include (1) the meaning of the
exclusion contained in the definition of “expenditure” for the establishment, administration, or
solicitation of contributions to a separate segregated fund or independent committee; (2) whether
the payroll deduction by a public body constitutes a “contribution” as the MCFA defines that
term; and (3) whether public bodies such as school boards, like the Gull Lake Public Schools,
have the authority to collect and deliver payroll deductions for contributions by members of a
union to that union’s PAC.
B. Exclusions to the Definition of Expenditures
I have covered the first issue above. While one might quibble and contend that the
Secretary raised this issue in her brief, albeit in a footnote, it is true that she did not raise it in her
statement of the issues presented. Nonetheless, the issue is clearly before this Court. One cannot
determine that a reimbursement cannot obviate an illegal expenditure without first concluding
that there was an illegal expenditure. And one cannot conclude that there was an illegal
expenditure without first concluding that there was an expenditure. Since the MCFA clearly
excludes the costs for the establishment, administration, or solicitation of contributions to a
separate segregated fund or independent committee from the definition of an expenditure, I
believe that this Court must conclude that while the trial court erred in its analysis, it nonetheless
reached the right result but for the wrong reasons.56 On the basis of the plain meaning of the
words of the statute, I do not believe that this Court can reverse the trial court on this issue and
that the majority’s decision to the contrary is clearly wrong.
In a rather colorful footnote, the majority asserts that my dissent turns the MCFA “upside
down and inside out.”57 Perhaps the majority has missed my logic here. Putting it simply, and
repetitiously, for the cost of collecting and delivering payroll deductions for contributions by
members of the MEA affiliate to the MEA-PAC to be an “illegal expenditure” under the MCFA,
55
Ante at 6.
56
Netter v Bowman, 272 Mich App 289, 308; 725 NW2d 353 (2006).
57
Ante at 7 n 5.
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it must first be an expenditure. But under the definition in § 6(2)(c) of the MCFA,58 an
expenditure does not, among other things, include “[a]n expenditure for the establishment,
administration, or solicitation of contributions to a separate segregated fund or independent
committee.” Thus, the cost of collecting and delivering payroll deductions for contributions by
members of the MEA affiliate to the MEA-PAC cannot be an illegal expenditure because it is not
an expenditure in the first place. The plain words of the statute are the best indicators of
legislative intent. The fact that these plain words lead to a result that I, or the majority, may not
like or may consider inconsistent with the general architecture of the MCFA is irrelevant. To
me, this is relatively straightforward, and I am at a loss to understand how simply following the
explicit language of the definitions contained in the MCFA turns it upside down or inside out,
either concurrently or sequentially.
C. Contributions
It is also correct that no party raised or briefed the question whether the allocated costs of
collecting and delivering payroll deductions by members of the MEA affiliate to the MEA PAC
are a contribution to the MEA-PAC by the Gull Lake Public Schools as the MCFA defines
contributions and, if so, whether such costs are a prohibited contribution under § 57 of the
MCFA. This Court need to be quite precise on this issue. There is no question that a payroll
deduction from an employee’s salary or wages is a “payment . . . made for the purpose of
influencing the nomination or election of a candidate, or for the qualification, passage, or defeat
of a ballot question.”59 The fact that such a “contribution” is funneled through a separate
segregated fund60 does not change this conclusion. Separate segregated funds are, after all, in the
business of making “contributions to, and expenditures on behalf of, candidate committees,
ballot question committees, political party committees, political committees, and independent
committees.”61
However, the “contribution” in question here is not the “contribution” of an employee.
The “contribution” in question, if it is a “contribution” at all, is the allocated costs that a public
body employer, such as a school district, incurs as a result of collecting and delivering payroll
deductions for “contributions” by members of labor organization to a union PAC. One thing,
however, is certain: if such costs are a “contribution,” then § 57 flatly prohibits a public body
from making them62 and there is no exclusion in the definition of “contribution” that would
obviate this prohibition.63
58
MCL 169.206(2)(c).
59
MCL 169.204(1).
60
MCL 169.255(1).
61
Id.
62
See MCL 169.257(1).
63
See MCL 169.204.
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D. Authorization Outside the MCFA
I note that there is no authority within the MCFA for public bodies to collect and deliver
payroll deductions for contributions by members of a union to that union’s PAC. With respect to
municipal officers, this Court has held that, as a general rule, “they have only such powers as are
expressly granted by statute or by sovereign authority or those which are necessarily to be
implied from those granted.”64 And the Michigan Supreme Court has stated that “[t]he extent of
the authority of the people’s public agents is measured by the statute from which they derive
their authority, not by their own acts and assumption of authority.”65 As such, “[p]ublic officers
have and can exercise only such powers as are conferred on them by law.”66
The same concepts apply to public bodies. Indeed, one of the central ideas underlying
our democracy is that the powers of government are few and defined.67 “A county is a municipal
corporation and possesses only those powers which have been conferred upon it by the
Constitution and the statutes.”68 Further, “[n]either the Constitution nor legislative enactment
gives authority to a county to expend public funds for the purpose of procuring
reapportionment.”69 The power to expend county resources for political purposes could not exist
because there was no legal authority granting that power.70 Similarly, a city may not transfer
public funds in order to purchase land for parking lots unless the city charter or other law
specifically grants that authority.71 A public body is therefore necessarily limited in power and
must have been granted legal authority to act.
I do note, however, that MCL 408.477 states:
Except for those deductions required or expressly permitted by law or by a
collective bargaining agreement, an employer shall not deduct from the wages of
an employee, directly or indirectly, any amount including an employee
contribution to a separate segregated fund established by a corporation or labor
organization under section 55 of the Michigan campaign finance act, Act No. 388
of the Public Acts of 1976, being section 169.255 of the Michigan Compiled
64
Presnell v Wayne Co Bd of Co Rd Comm’rs, 105 Mich App 362, 368; 306 NW2d 516 (1981),
quoting 56 Am Jur 2d, Municipal Corporations, Counties, and Other Political Subdivisions, §
276, p 327.
65
Sittler v Bd of Control of the Michigan College of Mining & Technology, 333 Mich 681, 687;
53 NW2d 681 (1952) (internal quotations and citation omitted).
66
Id. (internal quotations and citation omitted).
67
See James Madison, Federalist, No. 45.
68
Mosier v Wayne Co Bd of Auditors, 295 Mich 27, 29; 294 NW 85 (1940).
69
Id. at 31.
70
Id.
71
McVeigh v City of Jackson, 335 Mich 391, 398; 56 NW2d 231 (1953).
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Laws, without the full, free and written consent of the employee, obtained without
intimidation or fear of discharge for refusal to permit the deduction.
E. Additional Briefing
The majority does not deal with these issues on the ground that they have not been
properly presented before this Court. I disagree.
First, this matter comes to this Court in as an appeal from a trial court decision on a
declaratory ruling. Accordingly, there are no factual matters in dispute, and, thus, the questions
before this Court are purely legal. Second, this Court’s review of the trial court’s decision is de
novo; thus, this Court is in exactly the same position as the trial court when the matter first came
to it. Third, I raised each of these issues at oral argument, although I must admit that the
responses at that time were less than comprehensive. Fourth, as a matter of judicial economy,
avoiding these issues is, to me, a course of action that will lead to both more complexity and
more delay. Finally, while this Court does not generally consider issues not set forth in the
statement of questions presented, this is not a hard and fast rule, and it is one that this Court
should not observe in this instance. Indeed, although this Court “is obligated only to review
issues that are properly raised and preserved; the court is empowered, however, to go beyond the
issues raised and address any issue that, in the court’s opinion, justice requires be considered and
resolved.”72 “This Court is specifically authorized by MCR 7.216(A)(7) to address issues not
expressly raised by the parties when, in this Court’s discretion, ‘further or different relief’ is
required.”73
Thus, rather than avoiding these issues, I would ask the parties to brief them for this
Court, so that this Court can decide them in a timely and comprehensive opinion that touches all
the bases on these most important questions.
/s/ William C. Whitbeck
72
Paschke v Retool Industries (On Rehearing), 198 Mich App 702, 705; 499 NW2d 453 (1993),
rev’d on other grounds 445 Mich 502 (1994) (emphasis in original) (Paschke I).
73
Id. Although our Supreme Court concluded that this Court clearly erred in determining, sua
sponte, the merits of that appeal, Paschke v Retool Industries, 445 Mich 502, 519; 519 NW2d
441 (1994), the Court did not abrogate this Court’s authority “to go beyond the issues raised and
address any issue that, in the court’s opinion, justice requires be considered and resolved.”
Paschke I, supra at 705.
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