Michigan Education Association v. Secretary of State ( 2011 )

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Robert P. Young, Jr. Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
Mary Beth Kelly
Brian K. Zahra
FILED JUNE 30, 2011
STATE OF MICHIGAN
SUPREME COURT
MICHIGAN EDUCATION ASSOCIATION,
Petitioner-Appellant,
v No. 137451
SECRETARY OF STATE,
Respondent-Appellee.
ON REHEARING
BEFORE THE ENTIRE BENCH
MARKMAN, J.
This case returns to this Court on a motion for rehearing. The Michigan
Campaign Finance Act (MCFA) prohibits a “public body” from using public resources to
make a “contribution or expenditure” for political purposes. MCL 169.257(1). At issue
in this case is whether a public school district’s administration of a payroll deduction plan
that collects and remits political contributions from its employees to the Michigan
Education Association’s political action committee (MEA-PAC) runs afoul of § 57 of
MCFA, MCL 169.257(1). We hold that it does. Through administration of a payroll
deduction plan that remits funds to a partisan political action committee, a school district
makes both a “contribution,” because public resources are being used to advance the
political objectives of the committee, and an “expenditure,” because public “services”
and “facilities in assistance of” these same political objectives are being provided. Thus,
the school district’s payroll deduction plan is prohibited by MCL 169.257. This
interpretation is consistent not only with the language of the statute, but also with the
evident purpose of § 57, which is to mandate the separation of the government from
politics in order to maintain governmental neutrality in elections, preserve fair democratic
processes, and prevent taxpayer funds from being used to subsidize partisan political
activities. Accordingly, we grant the motion for rehearing, vacate the December 29,
2010, decision of this Court, and affirm the judgment of the Court of Appeals.1
I. FACTS AND HISTORY
Petitioner, the Michigan Education Association (MEA), is a voluntary,
incorporated labor organization that represents approximately 136,000 members
1
Concerning Justice HATHAWAY’s reference to now Chief Justice YOUNG’s dissent in
United States Fidelity & Guaranty Co v Mich Catastrophic Claims Ass’n (On
Rehearing), 484 Mich 1, 27; 795 NW2d 101 (2009) (USF&G), see the Chief Justice’s
response in his concurring opinion in Anglers of the AuSable v Dep’t of Environmental
Quality, 489 Mich 884, 885 (2011), the thrust of which was that the majority opinion in
USF&G prevailed over his dissent, as is the fate of most dissents. The Chief Justice casts
his vote in this case as justices have traditionally done, in accordance with their original
vote in the underlying case, and our new justices, Justices MARY BETH KELLY and
ZAHRA, also cast their vote as new justices have traditionally done, in accordance with
their best understanding of the law. See, e.g., USF&G, in which Justice HATHAWAY
herself cast a vote in this manner, and Duncan v Michigan, 488 Mich 957 (2010) (DAVIS,
J., concurring), in which the fourth justice in support of the former majority opinion in
this case also cast his vote in this manner. Justice HATHAWAY would apparently require
the majority justices in this case to abide by an entirely different set of legal rules.
2
employed by public schools, colleges, and universities throughout Michigan. The MEA-
PAC is a separate segregated political fund established by the MEA in accordance with
§ 55 of MCFA, MCL 169.255. The MEA-PAC is significantly funded by payroll
deductions of MEA members who have authorized the deductions. The purpose of the
MEA-PAC is to facilitate and coordinate the involvement of the MEA in politics by
electing candidates favored by the MEA and by furthering the enactment of MEA
legislative and executive policy initiatives.
As a public-employee labor organization, the MEA has entered into collective
bargaining agreements with various public school districts across the state. Some number
of these agreements, including that between the MEA’s locally affiliated Kalamazoo
County/Gull Lake Education Associations and the Gull Lake Community Schools (the
school district), require that a school district administer a payroll deduction plan for the
contributions of MEA members to the MEA-PAC. Administration of the payroll
deduction plan requires the school district to distribute payroll deduction forms; collect,
enter, and monitor the data of participating MEA members; and record, track, and
transmit payroll deductions to the MEA-PAC. In return for these services, the MEA has
proposed to pay all costs that the school district incurs in administering the plan.
In this case, the school district conditioned acceptance of the collective bargaining
agreement on the MEA obtaining a declaratory ruling concerning the validity of the
payroll deduction plan. Accordingly, on August 22, 2006, the MEA filed a request for a
declaratory ruling with respondent, the Secretary of State, to determine whether the
3
school district could make and transmit payroll deductions to the MEA-PAC.2
Respondent ruled that, absent express statutory authority, the school district is prohibited
from expending public resources for a payroll deduction plan on behalf of the MEA-
PAC. The MEA appealed to the circuit court, which held that respondent’s ruling was
“arbitrary, capricious and an abuse of discretion,” reasoning that, although the school
district’s administration of the plan constitutes an “expenditure” under MCFA, when the
costs of administering the plan have been reimbursed, “no transfer of money to the MEA-
PAC has occurred, and therefore an ‘expenditure’ has not been made within the meaning
of the MCFA.”
In a split decision, the Court of Appeals reversed, holding that § 57 of MCFA
prohibits a “public body,” such as a school district, from using public resources “to make
a contribution or expenditure.” According to the Court, the costs associated with the plan
constitute an “expenditure,” and the reimbursement of such costs does not alter that
conclusion. Mich Ed Ass’n v Secretary of State, 280 Mich App 477, 486; 761 NW2d 234
(2008). Judge WHITBECK dissented and would have affirmed the trial court, but on
different grounds. He reasoned that the costs incurred by the school district in its
administration of the payroll deduction plan do not constitute an “expenditure” as MCFA
defines it. Id. at 490. The MEA then sought leave to appeal in this Court. On
November 5, 2009, we heard oral arguments on the application,3 and nearly seven months
2
The Secretary of State is authorized to issue declaratory rulings to implement MCFA,
MCL 169.201 et seq., in accordance with the Administrative Procedures Act, MCL
24.201 to 24.328.
3
The Court directed the parties to brief
4
later we granted the MEA’s application for leave to appeal.4 Finally, on December 29,
2010, a majority of this Court reversed the judgment of the Court of Appeals and held
that a school district’s administration of a payroll deduction plan that remits funds to the
MEA-PAC “is not precluded by any prohibition in MCL 169.257(1) and is therefore
permitted.” Mich Ed Ass’n v Secretary of State, 488 Mich 18, 21; 793 NW2d 568 (2010).
Respondent moved for rehearing of the Court’s December 29, 2010, decision, arguing
that the Court committed error by holding that a public school’s administration of a
payroll deduction plan that remits funds to a partisan political action committee was not
prohibited by MCL 169.257(1). We now grant respondent’s motion for rehearing, and
we vacate the December 29, 2010, decision of this Court, and affirm the judgment of the
Court of Appeals.
(1) whether a school district’s use of government resources for a payroll
deduction plan for contributions made by members of [the MEA] to MEA’s
political action committee is either an “expenditure” or a “contribution”
under § 6 of the [MCFA], MCL 169.206; (2) whether § 57(1) of the
MCFA, MCL 169.257(1), prohibits a school district from expending
governmental resources for such a payroll deduction plan if the costs of the
plan are prepaid by the MEA; and (3) whether a school district has the
authority to collect and deliver payroll deductions for such contributions.
[Mich Ed Ass’n v Secretary of State, 483 Mich 1001 (2009).]
4
The order granting leave to appeal directed the parties to address the effect, if any, of
Citizens United v Fed Election Comm, 558 US __; 130 S Ct 876; 175 L Ed 2d 753(2010). Mich Ed Ass’n v Secretary of State, 486 Mich 952 (2010). It was clear from the
outset that Citizens United had no discernible effect on this case and that the grant of
leave to appeal, following the argument on the application, imposed unnecessary
expenses on the parties and considerably delayed resolution of an important dispute of
statewide importance. See id. at 953 (MARKMAN, J., dissenting).
5
II. STANDARD OF REVIEW
The interpretation of statutes constitutes a question of law that this Court reviews
de novo on appeal. Eggleston v Bio-Med Applications of Detroit, Inc, 468 Mich 29, 32;
658 NW2d 139 (2003).
III. PURPOSE OF MCL 169.257
“It is well settled that the Legislature of this state is empowered to enact laws to
promote and regulate political campaigns and candidacies.” Council No 11, AFSCME v
Civil Serv Comm, 408 Mich 385, 395; 292 NW2d 442 (1980) (citations omitted). The
people of Michigan have granted the Legislature broad powers to regulate elections.
Among other things, our Constitution empowers the Legislature to set forth the
qualifications of electors; the time, place, and manner of elections; and limitations on
terms of office. Const 1963, art 2, §§ 1 through 10. Furthermore, Const 1963, art 2, § 4
requires the Legislature to preserve the integrity of elections, providing in pertinent part:
The legislature shall enact laws to preserve the purity of elections, to
preserve the secrecy of the ballot, to guard against abuses of the elective
franchise, and to provide for a system of voter registration and absentee
voting.
Charged to preserve the “purity of elections” and to “guard against abuses of the elective
franchise,” the Legislature enacted MCL 169.257, commonly referred to as § 57 of
MCFA. Section 57 prohibits a “public body” from using public resources “to make a
contribution or expenditure” for the purpose of influencing the nomination or election of
a candidate, or for the qualification, passage, or defeat of a ballot question. The clear
purpose of § 57, as reflected in its language, is to mandate the separation of the
government from politics in order to maintain governmental neutrality in elections,
6
preserve fair democratic processes, and prevent taxpayer funds from being used to
subsidize partisan political activities.5
IV. ANALYSIS
MCL 169.257(1) provides, in pertinent part:
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 or provide
volunteer personal services that are excluded from the definition of
contribution under [MCL 169.204(3)(a)].
There is no question that a school district constitutes a “public body” within the
meaning of § 57.6 Accordingly, the issue in this case is whether by administering a
payroll deduction plan that remits funds to a political action committee, a school district
makes a “contribution or expenditure” within the meaning of the same provision. If the
plan does, it is expressly prohibited.
A. “CONTRIBUTION”
MCL 169.204(1) defines a “contribution” as follows:
5
See also, e.g., the political activities by public employees act, MCL 15.401 et seq.
(providing that an employee of the state or local unit of government may not engage in
political affairs during working hours); the Michigan Gaming Control and Revenue Act,
MCL 432.201 et seq. (providing that members, employees, or agents of the Michigan
Gaming Control Board may not engage in political activity for the duration of their
employment); and Civil Service Rule 1-12.6 (prohibiting state employees from
participating in political activities during working hours).
6
MCFA defines a “public body” to include “[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 an
agency of a board, department, commissioner, or council.” MCL 169.211(6)(c).
7
“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.[7]
An “in-kind contribution” is defined as a “contribution . . . other than money.” MCL
169.209(3).
The school district’s administration of the payroll deduction plan that facilitates
payments to the MEA-PAC is prohibited by MCL 169.257(1) because the school district
uses its public resources “to make a contribution” in a variety of ways. First, the school
district employs public resources to administer the plan that allows MEA members “to
make a contribution.” For example, the school district must use its paper, pens, and
copiers to develop and execute payroll deduction authorization forms; school personnel
must collect, enter, and monitor the data of participating MEA members into computers
and accounting software, all of which must be specifically configured to record, track,
and transmit payroll deductions to the MEA-PAC; school personnel must then be
prepared to respond to individual teachers who find it necessary from time to time to
adjust or correct or withdraw their own deduction authorizations; and this process must
necessarily involve the use of public office space, equipment, and employee time. Use of
the school district’s resources to facilitate MEA members’ “contributions” constitutes a
straightforward violation of MCL 169.257(1). More specifically, § 57(1) prohibits the
school district from using its resources “to make a contribution.” To “make” pertinently
7
The MEA-PAC is a “person” because, as a separate segregated fund, it functions as the
result of an organization or group of persons acting jointly. See MCL 169.211(1).
8
means “to cause to exist or happen[.]” Random House Webster’s College Dictionary
(2000), def 2. The school district “makes” a “contribution” to the MEA-PAC because it
“causes to exist or happen” “contributions” from MEA members that otherwise would
not be made but for the school district’s administration of the payroll deduction plan.8
Second, the school district itself makes a prohibited “contribution” to the MEA-
PAC because its administration of the payroll deduction plan constitutes something of
“ascertainable monetary value.” There is inherent value to the MEA-PAC in having
payroll deductions automatically taken from members’ wages as opposed to requiring
individual solicitations by the MEA-PAC. That there is such “ascertainable monetary
value” is self-evident from the very fact that the MEA-PAC has affirmatively sought out
the assistance of the school district and has litigated to the highest court of this state an
appeal asserting its right to enter into the instant agreement with the school district.
Parties do not typically enter into contracts absent a belief that the rights or benefits
accorded them under the contract have some “ascertainable monetary value,” and the
instant contract seems no different. Such value can almost certainly be identified as the
sum of (a) the additional contributions resulting from the ease of the payroll deduction
8
All agree that the MEA members’ “payment” or “donation of money” to the MEA-PAC
constitutes a “contribution” under MCL 169.204(1) and that the school district facilitates
that “contribution” to the MEA-PAC. However, Justice CAVANAGH asserts that the
school district does not employ public resources to “make” the MEA members’
contribution because it “merely transfers money from one place to another.” Post at
6 n 4. This characterization significantly trivializes the nature of the school district’s
participation in the MEA-PAC’s fundraising. As already discussed, to “make” relevantly
means to “cause to exist or happen.” Simply put, if the public resources of the school
district had not been employed to facilitate the MEA members’ contributions, those
“contributions” would not have “happened.”
9
process compared to a political contribution process in which individual solicitations
must be undertaken and (b) the reduced administrative and transactional costs of the
former process compared to the latter process. The MEA obviously prefers the payroll
deduction process because it is a more efficient, and a more productive, process by which
to secure funding for its political activities. The school district is not incidental to this
process, but constitutes an indispensable element. Without the school district’s
contracted-for services, some lesser amount of contributions would presumably be raised
on behalf of the MEA-PAC, and at a greater cost.9
Third, the administration of the payroll deduction plan also constitutes an “in-kind
contribution,” defined by MCL 169.209(3) as a “contribution . . . other than money.”
9
Relying on the dictionary definition of “ascertain,” Justice HATHAWAY asserts that the
school district’s administration of the payroll deduction plan does not have “ascertainable
monetary value” because the monetary benefits conveyed to the MEA-PAC have not
been “determined definitely, with certainty and assurance.” Post at 11. Unfortunately,
Justice HATHAWAY has defined the wrong word. “Ascertainable” does not mean “to find
out definitely” or “learn with certainty or assurance,” as Justice HATHAWAY opines,
because that is the definition of “ascertain,” not “ascertainable.” Random House
Webster’s College Dictionary (2000). Rather, “ascertainable” means “able to be
ascertained.” New Shorter Oxford English Dictionary (3d ed) (emphasis added).
While the MEA has not provided this Court with numbers regarding the specific
benefits yielded from the district’s administration of the deduction plan, it is safe to say
that the additional contributions garnered, and the reduction in administrative and
transactional costs, are “able to be ascertained.” In short, if the school district no longer
automatically deducted contributions from the paychecks of its employees, the MEA
would have to bear the added cost of individually contacting each of its members and
individually soliciting contributions from them. Everyone understands that this
procedure would be a far more costly, and less effective, way of collecting political
contributions than the current procedure. Such a cost is easily “ascertainable,” even if the
MEA and Justice HATHAWAY are uninterested in calculating it, and thus the cost of direct
solicitation that the MEA avoids by the current procedure constitutes a “contribution” as
MCFA defines it.
10
Although it is clearly possible to quantify the time spent by employees and the resources
expended by the school district in administering the deduction plan, and thereby to
ascertain the cost of such a “contribution” to the school district, it is more difficult to
quantify the intangible benefits that the MEA receives from the deduction plan.
However, it is quite certain that these benefits substantially outweigh the costs to the
school district, and therefore cannot be calculated simply by reference to the school
district’s costs. The most significant of these is simply the extent of access to a district’s
MEA membership that is afforded the MEA-PAC by the deduction plan. Such access
avoids any need on the part of the MEA-PAC to establish its own administrative
apparatus for political fundraising, vitiates its need to engage in mailings and alternative
forms of communications with its members, and dispenses with its burden of having to
process checks, money orders, or credit cards from contributors, as would be necessary
for any other solicitor of political contributions. As MEA’s counsel at oral argument
acknowledged, this procedure has proven to be an “effective” means to raise money.
Almost certainly, the marginal administrative costs of the payroll deduction plan to the
school district, which already may have in place a mechanism by which taxes and
charitable contributions can be deducted from employees’ paychecks, will be less than
the administrative costs of an equivalent plan to the MEA, which does not already have a
similar mechanism in place. The difference between these respective costs can fairly be
described as an “in-kind contribution” by the school district to the MEA-PAC, however
difficult it may be specifically to quantify in dollars. It is a “contribution . . . other than
11
money” that is made for the “purpose of influencing the nomination or election of a
candidate, or for the qualification, passage, or defeat of a ballot question.”10
The services undertaken on behalf of the MEA-PAC are “made for the purpose of
influencing the nomination or election of a candidate, or for the qualification, passage, or
defeat of a ballot question,” MCL 169.204(1), because, as discussed earlier, the purpose
of the MEA-PAC is to facilitate and coordinate the involvement of the MEA in partisan
politics.11 Thus, the school district’s administration of the deduction plan constitutes a
10
Justice HATHAWAY asserts that “this argument ignores that an in-kind contribution
must still be a ‘contribution’ as defined by the statute.” Post at 12 (emphasis added).
This point is hardly “ignored,” for it constitutes the principal focal point of the instant
section. That the administration of the deduction plan not only constitutes a
“contribution” but also an “in-kind contribution” merely establishes an additional way in
which the school district’s administration of the plan is prohibited by MCFA.
11
The previous majority opinion stated that “[w]hen a public body administers a payroll
deduction plan, it does not do so in an attempt to influence a political race or a ballot
question.” Mich Ed Ass’n, 488 Mich at 37. However, that opinion failed to recognize
that MCL 169.204(1) defines “contribution” as “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.” (Emphasis added.) As discussed, the school district uses its
public resources “to make” the MEA members’ payments. Therefore, the pertinent
question is not whether the “public body” itself is attempting to influence a political race
or ballot question, but whether payments that result from its administration of the payroll
deduction plan are intended for that purpose. It is obvious here that the “payment[s] [are]
made for the purpose of influencing the nomination or election of a candidate, or for the
qualification, passage, or defeat of a ballot question.” Id. This is the purpose that
individual MEA members have in mind when they authorize payments, and it is the
purpose that the MEA-PAC has in mind when it receives payments from the school
district. It is equally obvious that the school district itself must be fully cognizant of this
purpose both when it receives payments from individual MEA members and when it
delivers payments to the MEA-PAC. That the school district itself might not care
whether such payments will influence a political race or ballot question does not alter the
fact that the purpose of these payments is to do precisely that.
12
“contribution” as that term is defined by MCL 169.204(1).12 Because the school district
employs public resources to make this “contribution,” its administration of the deduction
plan is a straightforward violation of § 57 of MCFA.
B. “EXPENDITURE”
Section 57 of MCFA also prohibits a “public body” from using public resources to
make an “expenditure.” MCL 169.257(1). An “expenditure” is defined as
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. [MCL
169.206(1).]
The school district’s administration of the payroll deduction plan on behalf of the MEA-
PAC constitutes a prohibited “expenditure” because the school district directly provides
“services” and “facilities in assistance of” the MEA-PAC. The school district provides
“services” to the MEA-PAC in its administration of the deduction plan by developing and
executing payroll deduction authorization forms; by collecting, entering, and monitoring
the data of MEA members into computers and accounting software, all of which must be
configured to record, track, and transmit payroll deductions to the MEA-PAC; and by
accommodating individual teachers who find it necessary from time to time to adjust or
12
The previous majority opinion erred when it concluded that administration of the plan
“merely allows someone else to make a contribution for the purpose of influencing a
political issue,” Mich Ed Ass’n, 488 Mich at 37, i.e., the MEA member who has
authorized the payroll deduction. Instead, the school district itself makes both a
“contribution” and an “in-kind contribution” by providing valuable services to the MEA-
PAC in aid and furtherance of its political activities. That is, quite independently of the
contributions of individual MEA members, the school district contributes something of
further “ascertainable monetary value” to the MEA-PAC.
13
correct or withdraw their deduction authorizations. Further, the school district provides
“facilities in assistance of” the MEA-PAC through the use of public office space and
equipment. These “services” and “facilities in assistance of” the MEA-PAC are, once
again, made for the purpose of “the nomination or election of a candidate, or the
qualification, passage, or defeat of a ballot question,” MCL 169.206(1), because, as
discussed previously, the purpose of the MEA-PAC is to facilitate and coordinate the
involvement of the MEA in politics, by electing candidates favored by the MEA and by
enacting MEA legislative and policy initiatives. Thus, the school district’s administration
of the payroll deduction plan constitutes an “expenditure” as that term is defined by MCL
169.206(1) and is specifically prohibited.
Justice HATHAWAY concedes that the school district’s administration of the
deduction plan “falls within the general definition of ‘expenditure’ under MCL
169.206(1) . . . .” Post at 6. However, she would hold, as would Justice CAVANAGH, that
the plan also falls within a specific statutory exclusion from the definition of an
“expenditure.” This exception provides that an “expenditure” does not include “[a]n
expenditure for the establishment, administration, or solicitation of contributions to a
separate segregated fund or independent committee.” MCL 169.206(2)(c). According to
Justice HATHAWAY, a school district’s administration of a payroll deduction plan that
remits payments to a political action committee constitutes an “‘expenditure for the
establishment, administration, or solicitation of contributions to a separate segregated
fund or independent committee’” and is, therefore, allowed under § 57. Post at 7,
quoting MCL 169.206(2)(c). However, her analysis overlooks the fact that a “public
14
body,” such as a school district, is not authorized to establish a separate segregated fund
under MCFA and, therefore, may not rely on the § 6(2)(c) exclusion.
Instead, this exclusion is clearly designed to apply only to corporations and labor
organizations that possess the authority to create, establish, administer, or fund separate
segregated funds in the first place. This interpretation, limiting the § 6(2)(c) exclusion to
corporations and labor organizations, is a necessary implication from the structure of
MCFA for three reasons. First, § 54 of MCFA, MCL 169.254, imposes the same rule,
prohibiting the making of a “contribution or expenditure,” on corporations and labor
organizations that § 57 imposes on public bodies. In pertinent part, § 54 provides:
Except with respect to the exceptions and conditions in . . . section
55 [MCL 169.255]. . . a corporation, joint stock company, domestic
dependent sovereign, or labor organization shall not make a contribution or
expenditure . . . . [MCL 169.254(1) (emphasis added).]
Second, unlike § 57, § 54 does not constitute an absolute prohibition against
making a “contribution or expenditure”; rather, pursuant to § 55,
[a] corporation organized on a for-profit or non-profit basis, a joint stock
company, a domestic dependent sovereign, or a labor organization formed
under the laws of this or another state or foreign country may make an
expenditure for the establishment and administration and solicitation of
contributions to a separate segregated fund to be used for political purposes.
A separate segregated fund established under this section shall be limited to
making contributions to, and expenditures on behalf of, candidate
committees, ballot question committees, political party committees,
political committees, and independent committees. [MCL 169.255(1).]
Third, there is no similar counterpart in § 57 that allows a “public body” to make
“an expenditure for the establishment and administration and solicitation of contributions
to a separate segregated fund . . . .” Thus, under § 55, the only entities allowed to
establish a separate segregated fund are corporations, joint stock companies, domestic
15
dependent sovereigns, or labor organizations, such as the MEA. Considered together,
§ 55 and the § 6(2)(c) exclusion that permits an “expenditure for the establishment,
administration, or solicitation of contributions to a separate segregated fund” provide a
limited mechanism allowing entities such as the MEA to create, establish, administer, or
fund a separate segregated fund for purposes that would otherwise be disallowed by § 54.
In contrast, a “public body,” such as a school district, is not entitled to create, establish,
administer, or fund a separate segregated fund, under § 55 or any other provision, and
thus may not rely on the § 6(2)(c) exclusion from the definition of an “expenditure.”13
13
Justice CAVANAGH asserts that there is “simply no basis in the statutory language to
support the majority’s position.” Post at 12. As discussed, our position, limiting the
§ 6(2)(c) exclusion to § 55 entities, such as corporations and labor organizations, is a
necessary and logical implication derived from MCFA. In discerning legislative intent,
“[t]he whole act provides [the] proper ‘frame of reference,’” and each section must be
considered together with other sections. Metro Council No 23, AFSCME v Oakland Co
Prosecutor, 409 Mich 299, 318; 294 NW2d 578 (1980) (citation omitted). The exclusion
of certain expenditures from the definition of “expenditure” in § 6(2)(c) invokes exactly
the same operative language as § 55 and is plainly directed toward elaborating on § 55 by
making clear that no expenditures authorized by § 55 for the establishment of a separate
segregated fund will be treated as a prohibited expenditure by § 54. This does not render
§ 6(2)(c) “superfluous” or “completely unnecessary,” as Justice CAVANAGH claims. Post
at 12. Rather, as already explained, § (6)(2)(c) serves to underscore, and to make
explicit, what is otherwise only implicit in § 55-- that “expenditures” permitted by § 55
are not otherwise prohibited by § 54.
Furthermore, if § (6)(2)(c) is interpreted to apply to public bodies, which are not
authorized to establish separate segregated funds in the first place, the operative language
of § 57, which prohibits the use of public resources to subsidize partisan political
activities, would be rendered null and void. When a political action committee
commandeers the resources of the government to raise political contributions for its own
benefit, as occurred here, that conduct could always be categorized under Justice
CAVANAGH’s interpretation as falling within the § 6(2)(c) exception and rendered
permissible. Thus, the § 6(2)(c) exception would entirely consume the rule prohibiting
public bodies from making “expenditures” for political purposes, and the Legislature
would effectively have taken with the right hand what it had just given with the left.
16
Even if, as Justice HATHAWAY claims, the § 6(2)(c) exclusion is not limited to
§ 55 entities, her application of the exclusion remains illogical. Justice HATHAWAY
concludes that although a school district’s administration of the payroll deduction plan
constitutes an “expenditure,” it is nevertheless
explicitly excluded from the statutory definition under MCL 169.206(2)(c),
which provides that an “expenditure for the establishment, administration,
or solicitation of contributions to a separate segregated fund or independent
committee” is not an “expenditure.” A public school’s administration of a
payroll deduction system falls squarely within the statutory exception. The
system is set up to facilitate MEA member contributions to their separate
segregated fund, the MEA-PAC. Therefore, the administration of the
system is not an “expenditure” under the MCFA. [Post at 6.]
Justice HATHAWAY thus concludes that the administration of a payroll deduction plan
falls “squarely within the statutory exception.” Under MCL 169.206(2)(c), an
“expenditure” does not encompass what would otherwise be an “expenditure” for (a)
establishment of a separate segregated fund or independent committee, (b) administration
of a separate segregated fund or independent committee, or (c) solicitation of
contributions to a separate segregated fund or independent committee. Thus, in order to
Under such an interpretation, § 6(2)(c) would allow the Secretary of State’s office, for
example, to solicit contributions to a partisan or special interest political action
committee with each driver’s license renewal communication; it would allow Secretary
of State employees to administer the political contributions received through this process;
it would allow Secretary of State facilities and computers to be deployed to make and
print relevant informational pamphlets and political action committee materials; and it
would allow the Secretary of State’s office to attach the postage for these solicitations.
This interpretation cannot conceivably be what the Legislature intended when it enacted
MCFA. Reading MCFA in its entirety, and in context, it is clear that the Legislature
intended the § 6(2)(c) exception to apply only to those entities that possess the authority
to create, establish, administer, or fund separate segregated funds in the first place.
17
fall within the purview of this exception, a “public body” must be engaged in one of these
enumerated activities. In this case, however, the school district is engaged in none.14
First, the school district is not making an “expenditure” for the establishment of a
separate segregated fund or independent committee because the separate segregated fund,
the MEA-PAC, has already been established by the MEA. In any event, the school
district could not establish a separate segregated fund in the first place, because that
14
Justice CAVANAGH concludes that MCFA excepts from the definition of “expenditure”
an “expenditure” for the (a) establishment of contributions to a separate segregated fund,
(b) administration of contributions to a separate segregated fund, and (c) solicitation of
contributions to a separate segregated fund. Reading § 6(2)(c) in isolation could support
his interpretation; however, reading MCFA in its entirety, in particular after due
consideration of MCL 169.255(1), makes clear that the only reasonable interpretation of
§ 6(2)(c) is that it pertains to the “establishment” or “administration” of a “separate
segregated fund” and not the “establishment” or “administration” of “contributions.” See
Sun Valley Foods Co v Ward, 460 Mich 230, 237; 596 NW2d 119 (1999) (“The statutory
language must be read and understood in its grammatical context, unless it is clear that
something different was intended.”). His interpretation disregards the fact that this Court
must consider § 6(2)(c) and § 55 together, “so as to produce, if possible, an harmonious
and consistent enactment” of MCFA. State Treasurer v Wilson, 423 Mich 138, 145; 377
NW2d 703 (1985). Unmistakably, the objective of § 55 is to provide authority for certain
(private) entities to establish and operate a separate segregated fund, and, in pursuit of
this objective, § 55 provides that such entities “may make an expenditure for the
establishment and administration and solicitation of contributions to a separate segregated
fund.” As the only legislative authority allowing for the creation of a separate segregated
fund, the use of the terms “establishment” and “administration” must pertain to the
“establishment” or “administration” of a “separate segregated fund,” and not to the
“establishment” or “administration” of “contributions”; otherwise, the ability to establish
and administer a separate segregated fund could not exist in the first place. And
§ 6(2)(c), which uses nearly identical language, must be interpreted the same way, “so as
to produce . . . an harmonious and consistent enactment” of MCFA. Wilson, 423 Mich at
145.
18
authority is limited to the entities enumerated in § 55 (corporations, joint stock
companies, domestic dependent sovereigns, and labor organizations).
Second, the school district is not making an “expenditure” for the administration
of a separate segregated fund or independent committee because the school district is not
“administering” the MEA-PAC; rather, the school district is simply administering the
payroll deduction plan that remits funds to the MEA-PAC. That is, the school district
makes no determinations at all concerning amounts of funds to be raised from MEA
members or other funding sources; the nature and substance of communications to MEA
members and other funding sources about the need and urgency of such contributions; the
identification of political candidates and causes as beneficiaries of the MEA-PAC, and in
what amounts; or strategies for optimizing the impact of MEA-PAC participation in
political campaigns and causes. Justice HATHAWAY, however, would hold that the plain
language of the statute dictates that the administration costs at issue are excluded from
the statutory term “expenditure.” See post at 6. In so asserting, Justice HATHAWAY
misinterprets the statute, because the only administrative costs that are excluded under
this exclusion are those associated with administering a “separate segregated fund or
independent committee.” MCL 169.206(2)(c). That the school district is administering a
process by which payments are remitted to such a fund is hardly the equivalent of
administering the fund itself, such that the § 6(2)(c) exclusion would apply. Justice
HATHAWAY is confused in this regard.15
15
Justice HATHAWAY asserts:
This argument is unfounded and contrary to the plain language of the
statute. The plain language of the statute applies to the administration of
19
Third, the school district is not making an “expenditure” for the solicitation of
contributions to a separate segregated fund or independent committee; rather, the school
district is using public resources for processing payments to the MEA-PAC. As
discussed earlier, the school district’s “expenditure” consists of the use of personnel,
office space, computers, software, and other public resources to remit payments to the
MEA-PAC. The school district is not, for example, maintaining an advertising campaign
on behalf of the MEA-PAC, cold-calling MEA members, or preparing mailers or
brochures to enlist contributors. As such, the school district’s use of public resources for
processing payments to the MEA-PAC cannot be viewed as soliciting contributions, but
only as facilitating such contributions, an entirely distinct concept. It follows that
because the school district’s administration of the payroll deduction plan does not fall
within any of the three enumerated exclusions set forth in MCL 169.206(2)(c), it is not
excluded from the definition of an “expenditure.”16
contributions to a separate segregated fund; the statute does not specify
who has to make the contributions. The MEA members’ contributions to
the MEA-PAC are administered through the payroll deduction system.
Thus, the district, by administering the payroll deduction system, is
administering contributions to the MEA-PAC, an action that is explicitly
allowed according to the plain language of the statute. [Post at 6-7.]
This does not make sense. Even if MCL 169.206(2)(c) were not limited to § 55 entities,
this provision does not exclude from the definition of “expenditure” an “expenditure” for
the “administration of contributions”; rather it excludes an “expenditure” for the
administration of a “separate segregated fund or independent committee,” which is
inapplicable here for the simple reason that the school district is not making an
“expenditure” for the administration of a separate segregated fund or independent
committee.
16
Even assuming arguendo that the school district’s administration of the payroll
deduction plan constitutes “an expenditure for the establishment, administration, or
20
C. RELEVANCE OF ADVANCE PAYMENTS
Having determined that the school district’s administration of the payroll
deduction plan that remits payments to the MEA-PAC constitutes both a “contribution”
and an “expenditure,” the question remains whether the MEA’s preparedness to pay in
advance the school district’s costs associated with the plan remedies what would
otherwise constitute a violation of § 57. For the reasons that follow, it does not.
The Court of Appeals correctly held that there is “nothing in the plain language of
the MCFA that indicates reimbursement negates something that otherwise constitutes an
expenditure.” Mich Ed Ass’n, 280 Mich App at 486. A court’s primary purpose in
interpreting a statute is to ascertain and effectuate legislative intent. Frankenmuth Mut
Ins Co v Marlette Homes, Inc, 456 Mich 511, 515; 573 NW2d 611 (1998). “Courts may
not speculate regarding legislative intent beyond the words expressed in a statute. Hence,
nothing may be read into a statute that is not within the manifest intent of the Legislature
as derived from the act itself.” Omne Fin, Inc v Shacks, Inc, 460 Mich 305, 311; 596
NW2d 591 (1999) (citations omitted). The Legislature declined to provide that advance
payments remedy what would otherwise constitute a violation of § 57.
The suggestion that advance payments remedy a violation of § 57 is belied by the
terms of the statute. Section 57 provides that “[a] public body . . . shall not use or
authorize the use” of public resources to make a “contribution or expenditure . . . .”
MCL 169.257(1) (emphasis added). The use of “shall” in a statute generally “indicates a
solicitation of contributions to a separate segregated fund or independent committee,”
which we believe it plainly does not, by its terms, the exclusion only applies to an
“expenditure” and not to a “contribution.”
21
mandatory and imperative directive.” Burton v Reed City Hosp Corp, 471 Mich 745,
752; 691 NW2d 424 (2005) (citations omitted). As such, the statute mandates that the
school district not “use or authorize the use of” its public resources to make a
“contribution” or an “expenditure.” Nothing in MCFA leads to the conclusion that the
Legislature intended § 57 to be interpreted any differently. Irrespective of whether the
school district is reimbursed for its administration of the payroll deduction plan, the
school district nonetheless has employed public resources to make a “contribution or
expenditure” for political purposes.17 The advance payment of expenses simply does not
negate what § 57 is intended to prohibit. That is, the gravamen of § 57 is not that a
“public body” whose resources have been employed for private political purposes be
compensated on a dollar-for-dollar basis, but that public resources not be used for such
purposes in the first place. That the costs of dismantling the wall separating government
and partisan political campaigning are to be paid by those who desire to use taxpayer
resources for partisan political campaigning is not the point of § 57; rather, it is that the
wall not be dismantled.18
17
Moreover, the advance payment of the school district’s expenses in administering the
deduction plan does not avoid the question of the extent to which an exchange of
something of “ascertainable monetary value” has taken place. If the school district has
provided a service “at cost” to the MEA-PAC, even though the “ascertainable monetary
value” of that service to the MEA-PAC exceeds that cost, as it almost always will in an
economy in which service providers typically seek to profit from their services, further
inquiry would be necessary concerning the specific terms of the school district-political
action committee transaction, even if such a transaction were permissible in the first place
under § 57.
18
If the MEA-PAC is allowed to commandeer the resources of a “public body” simply by
reimbursing its costs, there is nothing that would prevent the political action committee of
any corporation from demanding or receiving the same treatment.
22
Furthermore, the unquantifiable cost to the school district, as well as to taxpayers,
parents, and students, of having time and resources diverted from the school district’s
primary responsibilities of administering schools and educating students in order to
administer a process of raising political contributions for the MEA-PAC cannot simply be
paid in advance or reimbursed. Time is a zero-sum resource, and it is irretrievably lost to
taxpayers, parents, and students when it is taken away from the former responsibilities
and redirected to the latter responsibilities. If some lesser portion of each day is devoted
to the interests of the school district and a greater portion of each day is devoted to the
partisan political interests of a labor organization, taxpayers, parents, and students suffer.
Although advance payment may recompense the school district its employees’ salaries
for the time spent on administration of the plan and for the use of supplies and other
public resources, monetary reimbursement, paid in advance or otherwise, is simply
insufficient to recover the time that is diverted from the primary obligations of the school
district.
Moreover, because neither advance payments nor reimbursements prevent the
prohibited “use” of public resources from occurring in the first place, the act is
punishable as a misdemeanor and subject to a fine that may be “equal to the amount of
the improper contribution or expenditure.” MCL 169.257(2)(b). The fact that one of the
penalties for making an improper “contribution or expenditure” requires the violator to
pay an amount that is “equal to the amount of the improper contribution or expenditure”
indicates strongly that such a payment, whether in the form of a “penalty” or a
“reimbursement,” does not transform an improper “contribution or expenditure” into a
proper one. Had the Legislature intended otherwise, the misdemeanor statute would
23
more likely have read that the criminal sanction to be paid is “equal to the amount of the
improper contribution or expenditure, less any reimbursement of such contribution or
expenditure.”19
V. RESPONSE TO DISSENTS
As discussed previously, Justice HATHAWAY’s position that the school district’s
administration of a payroll deduction plan is not an “expenditure” because the cost of
administration is an “expenditure for the establishment, administration, or solicitation of
contributions to a separate segregated fund or independent committee,” MCL
19
The MEA also argues with regard to reimbursements that because the school district is
reimbursed all costs and expenses, its administration of the deduction plan does not
amount to a “contribution or expenditure” given that a “contribution” does not encompass
“[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,” MCL
169.204(3)(c), and an “expenditure” does not include “[a]n offer or tender of an
expenditure if expressly and unconditionally rejected or returned,” MCL 169.206(2)(e).
However, this argument clearly lacks merit because the MEA-PAC’s offer to reimburse
expenses can hardly be said to constitute a “rejection, return, or refund” of a
“contribution” or an “expenditure.” When the school district collects and remits
payments from MEA members to the MEA-PAC, it makes an “offer or tender” of a
“contribution or expenditure.” To qualify for the “offer or tender” exception, the MEA-
PAC would have to unconditionally “reject or return” the services of the school district,
something that it neither does nor has any intention of doing. Because the school
district’s services are unconditionally accepted by the MEA-PAC, the school district’s
administration of the payroll deduction plan is not excluded from the definition of a
“contribution” or an “expenditure” under either section of MCFA. Finally, the obvious
should be observed, to wit, although the Legislature excluded from the definitions of
“contribution” and “expenditure” “an offer or tender” of a “contribution or expenditure”
that has been rejected, returned, or refunded, there is no similar exclusion for
“reimbursements,” an exclusion that should be thought to have been obvious, if genuinely
intended. Justice HATHAWAY nonetheless intuits from the “reject or return” exception
that “contribution” in MCL 169.204(1) “clearly requires . . . a net transfer of value . . . .”
Post at 10-11.
24
169.206(2)(c)-- an enumerated exception to the statutory definition of “expenditure”--
lacks merit for two reasons. First, a school district’s administration of a payroll
deduction plan is not excluded from the definition of an “expenditure” under that section
because a “public body,” such as a school district, is not authorized to create a separate
segregated fund under MCFA and, therefore, may not rely on the § 6(2)(c) exclusion
from the definition of an “expenditure.” Second, even if a “public body” is entitled to
rely on this exclusion, the school district’s administration of the payroll deduction plan
does not fall within the statutory exception because the school district’s “expenditure”
cannot be characterized as “[a]n expenditure for the establishment, administration, or
solicitation of contributions to a separate segregated fund or independent committee.” As
also previously discussed, the school district’s administration of the payroll deduction
system is a prohibited “contribution.” However, Justice HATHAWAY reasons that the
school district’s administration of the payroll deduction plan does not constitute a
“contribution.” This latter aspect of her opinion warrants further discussion.
(a) In circular fashion, Justice HATHAWAY would hold that the definition of
“contribution” encompasses the term “expenditure” and, thus, because the school
district’s administration of the payroll deduction plan does not constitute an
“expenditure,” it also cannot be a “contribution.” Justice HATHAWAY then states that
“[t]he only other way that the administration of the system could be a ‘contribution’
under the MCFA would be if administering the system resulted in a ‘transfer of anything
of ascertainable monetary value . . . .’” Post at 8. This assertion is erroneous. As
discussed earlier, an “in-kind contribution,” which is a “contribution . . . other than
money,” also constitutes a “contribution.” MCL 169.209(3). Similarly, MCFA defines
25
as a “contribution” a “payment.” MCL 169.204(1). The school district arguably makes a
“payment” to the MEA-PAC when it transfers money from participating MEA members
to the MEA-PAC. Although in these circumstances the school district only acts as a
conduit, a “contribution” made at the direction of another person “shall be regarded as an
expenditure or contribution attributable to both persons for purposes of expenditure or
contribution limits.” MCL 169.270.20
(b) Justice HATHAWAY further errs, in our judgment, as did the former majority
opinion, by concluding that her interpretation is necessary to avoid absurd results. In
discussing whether the administration of the payroll deduction plan constitutes a “transfer
of anything of ascertainable monetary value” and thus a “contribution,” Justice
HATHAWAY states:
There are two possible interpretations of the word “transfer” in the
statute. The first interpretation would require that any conveyance of value
for services provided to a campaign, regardless of whether the services are
paid for, would constitute a contribution. The second would require a net
conveyance of value in order to be a “transfer of anything of ascertainable
monetary value.” I believe that the latter is the only logical interpretation.
20
Justice CAVANAGH asserts that MCL 169.270 does not apply in this case “because an
MEA member is not seeking to circumvent the MCFA’s contribution limits,” post at 8.
However, MCL 169.270 contains no subjective component. That is, regardless of
whether any MEA member has a desire to “circumvent” MCFA’s contribution limits, a
“contribution or expenditure which is controlled by, or made at the direction of, another
person . . . shall be regarded as an expenditure or contribution attributable to both persons
for purposes of expenditure or contribution limits.” MCL 169.270. Because the statute is
applicable, and because a public body is absolutely prohibited from making a
“contribution” for political purposes under MCL 169.257(1), the only logical inference is
that the “contribution limit” for a public body is zero. Therefore, when the school district
facilitates an MEA member’s “contribution” and that “contribution” is attributable to the
school district pursuant to MCL 169.270, the school district as a public body has
surpassed its “contribution limit.”
26
Any other interpretation of “contribution” would lead to an absurd result,
and statutes must be construed to prevent absurd results. For example,
under the majority’s interpretation, a print shop that sells signage to a
campaign in the normal course of business would be making a contribution
to the campaign because it has transferred something of monetary value to
the campaign, even though the shop has been compensated for the cost of
providing the signage. Such an interpretation of “contribution” defies
common sense, and I do not read the statute in this manner. [Post at 9-10
(citations omitted).]
By emphasizing that her interpretation is necessary to avoid “absurd results,” Justice
HATHAWAY appears to concede that the more natural interpretation of the law is that
asserted by this majority opinion. Resort to an “absurd results” analysis is generally
necessary only to avoid an interpretation that would otherwise flow from a statute by the
application of traditional principles of interpretation.
In essence, Justice HATHAWAY believes that it is necessary to read MCL
169.204(1) as if it referred to a “net transfer of anything of ascertainable monetary
value,” which it does not, in order to avoid the allegedly “absurd result” to which our
interpretation of MCL 169.204(1) would lead. What is this allegedly “absurd result”?
What is this result that is “quite impossible that [the Legislature] could have intended”?
Pub Citizen v United States Dep’t of Justice, 491 US 440, 471; 109 S Ct 2558; 105 L Ed
2d 377 (1989) (Kennedy, J., concurring). What is this result that is “unthinkable” or
“bizarre”? Green v Bock Laundry Machine Co, 490 US 504, 527; 109 S Ct 1981; 104 L
Ed 2d 557 (1989) (Scalia, J., concurring). What is this result that “cannot rationally . . .
mean” what it seems to mean? Id. at 528.21 That there be no exchanges of value between
21
Although I continue to abide by an “absurd results” rule-- albeit a vastly different
“absurd results” rule than that of the dissenting justices-- Chief Justice YOUNG, who joins
this opinion, does not. See People v McIntire, 461 Mich 147, 152-160; 599 NW2d 102
27
a “public body” and a partisan political action committee? That the government not
further the partisan interests of a political action committee? That taxpayer resources not
be employed to collect, and facilitate, partisan political contributions? While these
results may be “absurd” to the dissenting justices, we do not find them to be “absurd” at
all. Once again, the dissenting justices seem to equate an absurd result with a
disagreeable result. Cameron v Auto Club Ins Ass’n, 476 Mich 55, 84-86; 718 NW2d
784 (2006) (MARKMAN, J., concurring); Petersen v Magna Corp, 484 Mich 300, 370;
773 NW2d 564 (2009) (MARKMAN, J., dissenting). Furthermore, the specific “absurd
result” alleged here by Justice HATHAWAY, that a print shop could not sell signs to a
campaign because this would constitute a “contribution,” is itself absurd. A print shop is
not a “public body” and therefore, unlike a school district, is not regulated by § 57 of
MCFA.
(c) The former majority opinion also erred when it concluded that MCL 408.477
of the wages and fringe benefits act provides authority for the school district to
administer the payroll deduction plan.22 Mich Ed Ass’n, 488 Mich at 38 n 29. “[S]chool
(1999); cf. Cameron v Auto Club Ins Ass’n, 476 Mich 55, 78-80, 84-86; 718 NW2d 784
(2006) (MARKMAN, J., concurring).
22
We recognize that this argument is now absent from Justice HATHAWAY’s dissenting
opinion. Nonetheless, it is a part of the former majority opinion under reconsideration
today. Apparently, § 7 of the wages and fringe benefits act, MCL 408.477, provided
authority for the school district to administer the payroll deduction plan on December 29,
2010, but not any longer. Given that Justice HATHAWAY now seems to agree with the
majority that the wages and fringe benefits act does not provide authority for the district
to administer the deduction plan, does she now have an alternative analysis concerning
from where this authority derives?
28
districts and school officers have only such powers as the statutes expressly or impliedly
grant to them.” Jacox v Van Buren Consol Sch Dist Bd of Ed, 293 Mich 126, 128; 291
NW 247 (1940). “‘The 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.’” Sittler v Mich College of Mining & Technology Bd of Control,
333 Mich 681, 687; 53 NW2d 681 (1952) (citation omitted). Contrary to the former
majority opinion, the authority to administer a payroll deduction plan for a political
action committee is not expressly or impliedly granted to schools by any statute.
While MCL 408.477 of the wages and fringe benefits act refers to payroll
deductions, it does not authorize school districts to administer payroll deductions for
political action committees. MCL 408.477(1) provides in full:
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
On this note, Justice CAVANAGH asserts that when MCL 408.477(1) and MCL
423.209, which grants authority for public employees to engage in collective bargaining,
are “considered in tandem,” they “‘expressly or impliedly grant’ school districts the
authority to enter collective-bargaining agreements that require a school district to
administer a payroll deduction plan.” Post at 10. But this analysis is flawed. We have
no doubt that school districts have the authority to engage in collective bargaining, and
also the authority to administer certain types of payroll deduction plans. However, that
authority is limited to “engag[ing] in lawful concerted activities . . . .” MCL 423.209
(emphasis added). The collective-bargaining agreement in this case required the district
to engage in an activity in violation of MCL 169.257 and thus cannot serve as the source
of authority to make a “contribution or expenditure.” By contrast, we have no doubt that
a school district has the authority under the law to administer 401(k) contributions, social
security and Medicare deductions, and payroll deductions for the payment of union dues
and service fees.
29
campaign finance act, Act No. 388 of the Public Acts of 1976, being
section 169.255 of the Michigan Compiled Laws, without the full, free, and
written consent of the employee, obtained without intimidation or fear of
discharge for refusal to permit the deduction.[23]
From this provision, the former majority opinion summarily concluded that, “under the
plain language of MCL 408.477, public bodies have the authority to administer a payroll
deduction plan that contributes money to the MEA-PAC if the MEA enters into a
collective bargaining agreement that expressly permits the deductions.” Mich Ed Ass’n,
488 Mich at 38 n 29. This is another example of the former majority opinion’s
misinterpretation of a statute. MCL 408.477 has absolutely nothing to do with whether a
“public body” may administer a payroll deduction plan for the benefit of the MEA-PAC.
Rather, the statute describes the approval required for an employer to deduct a portion of
an employee’s wages and states that in order to deduct wages from an employee, the
employer must obtain the employee’s voluntary consent. The statute also provides that
such consent is not required when the wage deduction is expressly permitted by law or by
a collective-bargaining agreement. The most that can be discerned from this statute as it
pertains to the instant case is that, if the school district is to deduct wages from its
employees, it must obtain the employees’ voluntary consent unless the deduction is
expressly permitted by law or a collective-bargaining agreement. However, neither MCL
408.477 nor any other statute provides authority for a “public body” to administer a
payroll deduction plan that contributes money to a political action committee. Therefore,
even if the school district’s administration of a payroll deduction plan did not constitute a
23
See also MCL 169.255(6) (regulating the manner in which contributions for a separate
segregated fund may be obtained).
30
“contribution” or an “expenditure,” which it clearly does, the school district would still
lack the authority to administer such a plan because no statute gives the school district
this authority and the school district only has the authority granted to it by statute.
Indeed, as explained earlier, the Legislature has affirmatively and expressly forbidden a
school district, or any other public body, from making a “contribution or expenditure” to
a political action committee.
VI. JUSTIFICATION FOR REHEARING
The dissenting justices assert, explicitly or implicitly, that this opinion undoes
their opinion of December 29, 2010, upon rehearing without offering any new
justification for doing so other than the views expressed in the dissent from that opinion.
See post at 1 (HATHAWAY, J., dissenting), and post at 1 n 1 (CAVANAGH, J., dissenting).
For the benefit of the dissenting justices, we will attempt to provide this justification.
First, contrary to Justice HATHAWAY’s assertion, we respectfully disagree that the
previous majority opinion “followed the language of the law.” Post at 2. Indeed, we
believe that opinion to have interpreted MCFA in a manner that bore little resemblance to
its actual language. The previous majority opinion (a) effectively inserted words into the
law that are absent from the law, e.g., construing the “transfer of anything of
ascertainable monetary value,” to require that there be a “transfer of anything of net
ascertainable monetary value,” see Mich Ed Ass’n, 488 Mich at 36, (b) effectively altered
words in the law, e.g., substituting for “ascertainable monetary value” “ascertained”
monetary value, id. at 37, (c) applied the facts to the law in an implausible fashion, e.g.,
asserting that the administration of the payroll deduction plan was not done for the
“‘purpose of influencing the nomination or election of a candidate, or for the
31
qualification, passage, or defeat of a ballot question,’” id., quoting MCL 169.204(1), (d)
mischaracterized the facts, e.g., asserting that the administration of the payroll deduction
plan by the school constituted no “transfer of ascertainable monetary value” to the MEA-
PAC but “merely allow[ed] someone else to make a contribution,” Mich Ed Ass’n, 488
Mich at 37, (e) failed to analyze relevant and determinative provisions of the law, e.g.,
the definition of an “in-kind contribution,” (f) paraphrased the law in an imprecise
manner, e.g., summarizing an exception to the law’s broad prohibition that is applicable
to the administration of a separate segregated fund or independent committee as one
applicable to the administration of contributions, id. at 29-30, and (g) overlooked words
of the law, e.g., asserting that because the administration of the payroll deduction plan
does not constitute an “expenditure,” the “only other way” that it could constitute a
“‘contribution’” would be if a “‘transfer of anything of ascertainable monetary value’”
resulted, id. at 34, quoting MCL 169.204(1), despite the fact that MCFA defines a
“contribution” in other ways to include “a payment” or an “in-kind contribution.”
Second, while the dissenting opinions make light of the fact that we supposedly
have little justification for this new opinion other than the views expressed in the dissent
from the original opinion, we believe that such a justification is actually rather
compelling. That is, we believe that the previous dissent was in accordance with the
language and intent of MCFA, while the previous majority opinion was not,24 and as
24
Justice CAVANAGH claims that we fail to “realize that [his] interpretation of the MCFA
is consistent” with the purpose of MCL 169.257. Post at 16. This is a rather remarkable
proposition. If the purpose of MCL 169.257 is, as we believe it to be, to mandate the
separation of the government from politics, then it would seem that Justice CAVANAGH’s
interpretation, which permits the use of public resources in support of partisan political
32
between an analysis of the law that is in accordance with its language and intent and one
that is not, we prefer the former.
Third, we “justify” granting the motion for rehearing, and reconsidering our
previous decision, because we believe that the issue before the Court is one of
considerable importance to the people of this state and to the integrity of the state’s
political and public processes. Through MCFA, the people have sought to maintain a
separation of politics and the government in order to maintain governmental neutrality in
elections, preserve fair democratic processes, and prevent taxpayer funds from being used
to subsidize partisan political activities. The previous majority opinion, and the present
dissenting opinions, would dismantle this separation. They would increasingly involve
the taxpayer in the subsidization of partisan political activities and increasingly erode the
neutrality of public institutions in these same activities. While the dissenting justices
seem very little moved by these concerns, we believe that they are substantial. It should
be a matter of great pride to the people of Michigan that its history, with very few
exceptions, has been a history characterized by electoral fair play and an honest political
process. Both parties, and their supporters, can take credit for this history. We believe
that the people of this state understand well the importance to this history of a legal
system in which parties and political action committees cannot commandeer taxpayer
resources and in which government cannot place a thumb on the scale concerning who
will prevail in the political process. In short, we believe that the people understand well,
activity, is the antithesis of that purpose. That is, MCL 169.257 prohibits the use of
public resources in aid of partisan political activity, and Justice CAVANAGH’s
interpretation permits it.
33
for it is at the root of MCFA, that to breach these principles is incompatible with a
government that is “instituted for . . . [the] equal benefit . . . and protection” of the
people. Const 1963, art 1, § 1.
Finally, we believe that the former majority’s remarkable treatment of this case
itself constitutes grounds for granting rehearing. This case was alternately subject to
unprecedentedly dilatory treatment and unprecedentedly accelerated treatment. See
Mich Ed Ass’n, 488 Mich at 64-68 (MARKMAN, J., dissenting). Before this case was
heard in November of last year, it was subject to the lengthiest delay, by far, of any of the
280 cases considered under the procedures of MCR 7.302(H)(1), which authorize this
Court to order oral argument before deciding whether to grant leave to appeal. See also
n 4 of this opinion. Subsequently, after finally granting leave to appeal and hearing oral
arguments, a majority opinion was prepared in near-record time, the period for dissenting
justices to respond to this opinion was substantially shortened, and, in December, these
opinions issued in what approached, if not exceeded, record time for a major decision of
this Court.
VII. CONCLUSION
MCL 169.257 prohibits a “public body” from using public resources to make a
“contribution or expenditure” for political purposes. Through administration of the
payroll deduction plan in this case, remitting payments to the MEA-PAC, the school
district makes both a “contribution” and an “expenditure” as defined by MCFA. The
MEA-PAC’s offer to reimburse the school district for expenses incurred in its
administration of the plan does not remedy an otherwise clear violation of MCL 169.257.
This interpretation is consistent not only with the language of the statute, but also with
34
the evident purpose of MCL 169.257, which is to mandate the separation of the
government from politics in order to maintain governmental neutrality in elections,
preserve fair democratic processes, and prevent taxpayer funds from being used to
subsidize partisan political activities. The payroll deduction plan in this case is
inconsistent with this legislative purpose and inconsistent with the language of the law.
Accordingly, the judgment of the Court of Appeals is affirmed.
Stephen J. Markman
Robert P. Young, Jr.
Mary Beth Kelly
Brian K. Zahra
35
STATE OF MICHIGAN
SUPREME COURT
MICHIGAN EDUCATION
ASSOCIATION,
Petitioner-Appellant,
v No. 137451
SECRETARY OF STATE,
Respondent-Appellee.
MARY BETH KELLY, J. (concurring).
I concur in Justice MARKMAN’s opinion granting the motion for rehearing,
vacating this Court’s opinion of December 29, 2010, and affirming the Court of Appeals’
judgment of August 28, 2008. I write separately to emphasize, once again, that granting
a rehearing motion is not limited to cases in which new legal arguments were presented
to the Court and to clarify that this is not a case in which it can fairly be said that
“precedent” has been disturbed.
As Justice ZAHRA recently explained in detail in Anglers of the AuSable, Inc v
Dep’t of Environmental Quality,1 MCR 7.313(E) governs motions for rehearing in this
Court. It is a discretionary rule because it does not contain a standard governing when
we should grant a motion for rehearing.2 The rule does not limit our discretion to grant
1
Anglers of the AuSable, Inc v Dep’t of Environmental Quality, 489 Mich 884, 885
(2011) (ZAHRA, J., concurring).
2
Id. at 885-886.
rehearing to only those cases in which a party has presented new legal arguments.3 The
rule’s lack of any language limiting our discretion supports the principle that, in
addressing a motion for rehearing, it is appropriate for each justice to individually
determine whether this Court properly interpreted and applied the law in the case before
the Court for rehearing.4 As Justice ZAHRA observed in Anglers, other members of this
Court have voted to grant rehearing and overturn precedent, applying this principle, albeit
without explicit recognition of the discretion afforded by the rule.5
I also share the view articulated by Justice ZAHRA in Anglers that in addition to
considering whether the matter was previously decided correctly under the governing
legal principles, the jurisprudential significance of the legal issues presented should also
be considered when deciding a motion for rehearing.6 It is only with careful review of
this Court’s prior rulings that I approach a decision on a motion for rehearing.
In this case I agree, first, with the legal analysis of the provisions of the Michigan
Campaign Finance Act (MCFA)7 at issue set forth in Justice MARKMAN’s opinion. The
public school district’s administration of the payroll deduction plan is both a
“contribution” and an “expenditure” for political purposes under the MCFA, which
3
Id. at 887.
4
See id.
5
Id. at 888, citing United States Fidelity & Guaranty Co v Mich Catastrophic Claims
Ass’n (On Rehearing), 484 Mich 1; 795 NW2d 101 (2010); Duncan v Michigan, 488
Mich 957 (2010) (DAVIS, J., concurring); McCready v Hoffius, 459 Mich 1235 (1999).
6
See Anglers, 489 Mich at 889.
7
MCL 169.201 et seq.
2
violates MCL 169.257(1). Justice HATHAWAY’s position that “nothing in the plain
language of MCL 169.257(1) prohibits a school district from administering a payroll
deduction system that allows [MEA] members to automatically send contributions to
the . . . MEA-PAC”8 misconstrues the MCFA.
Second, this case plainly involves issues of substantial jurisprudential importance
to our state. This case concerns “the separation of the government from politics in order
to maintain governmental neutrality in elections, preserve fair democratic processes, and
prevent taxpayer funds from . . . subsidiz[ing] partisan political activities.”9 The legality
of the administration of the payroll deduction plan is of considerable public interest given
that the plan would have essentially allowed taxpayers to help fund a political action
committee. Moreover, the case involved an issue of first impression that is not likely to
reappear before the Court on a regular basis. Through the MCFA, the Legislature
intended to keep public resources out of the political process, and the statute could not
make this plainer.
Notably, the grant of the rehearing motion, which was timely filed, asked the
Court to rehear a case that was decided several days before I was sworn in and after the
case had pended for more than two years in our Court.10 To the extent that this case may
8
Post at 1.
9
Ante at 35.
10
The Court of Appeals issued its opinion in this case on August 28, 2008. The MEA
applied for leave to appeal on October 8, 2008. On May 8, 2009, this Court ordered oral
argument on the application. Nearly six months later, on November 5, 2009, this Court
heard oral argument on the application. Approximately seven months later, on June 4,
2010, this Court granted the MEA’s application for leave to appeal. Then, three days
3
be deemed to be precedent, its precedential value is de minimis, at best. As noted by
Justice MARILYN KELLY in Petersen v Magna Corp, “[s]tare decisis attempts to balance
two competing considerations: the need of the community for stability in legal rules and
decisions and the need of courts to correct past errors.”11 In Robinson v Detroit,12 this
Court set forth four factors to be considered before this Court overrules a previously
decided case. The purpose of enunciating these factors was to ensure that respectful
consideration would be given to the cases decided by our predecessors before such cases
are overruled. “The first question, of course, should be whether the earlier decision was
wrongly decided.”13 Consistently with Justice MARILYN KELLY’s explanation in
Petersen14 of the competing considerations that the doctrine of stare decisis attempts to
reconcile, the remaining three factors balance the need to correct error against the desire
for stability and reliability in the law. Specifically, the Court observed that it should also
review “whether the decision at issue defies ‘practical workability,’ whether reliance
interests would work an undue hardship, and whether changes in the law or facts no
longer justify the questioned decision.”15 When a case is considered on rehearing, none
before the composition of the Court was set to change, the prior majority entered an
opinion on December 29, 2010, more than two years after the MEA applied for leave to
appeal.
11
Petersen v Magna Corp, 484 Mich 300, 314; 773 NW2d 564 (2009).
12
Robinson v Detroit, 462 Mich 439; 613 NW2d 307 (2000).
13
Id. at 464.
14
Petersen, 484 Mich at 314.
15
Robinson, 462 Mich at 464 (citation omitted).
4
of the Robinson factors outweighs the need to issue a legally correct opinion. No
reasonable legal reliance can be placed on an opinion that has not yet ended its
procedural course, however extended, in our Court. The opinion at issue was only days
old when the composition of the Court changed. The rehearing motion, timely filed,
necessarily required adjudication by the newly composed Court. As a justice of the Court
who had not before considered the merits of the underlying claim, it is my constitutional
duty to address the legal merits of the issues presented. Simply put, I would be derelict in
my duty if I were to give deference to legal reasoning with which I find fault. On
rehearing, this case rises or falls on the merits of the legal claim. Blind allegiance to the
notion of stare decisis is not appropriate and is a wholly unpersuasive rationale for
allowing a days-old decision to stand.
In sum, rehearing was warranted in this case because, in my view, the MCFA
plainly requires holding that the public school district’s administration of the payroll
deduction plan is both an “expenditure” and a “contribution” that violates the act and the
issue was both properly before the Court for rehearing and a matter of substantial
jurisprudential significance to our state.
Mary Beth Kelly
Brian K. Zahra
5
STATE OF MICHIGAN
SUPREME COURT
MICHIGAN EDUCATION ASSOCIATION,
Petitioner-Appellant,
v No. 137451
SECRETARY OF STATE,
Respondent-Appellee.
CAVANAGH, J. (dissenting).
I disagree with the current majority’s decision to grant respondent’s motion for
rehearing and vacate this Court’s December 29, 2010, majority opinion. Mich Ed Ass’n v
Secretary of State, 488 Mich 18; 793 NW2d 568 (2010).1 Furthermore, I disagree with
the current majority’s substantive analysis in this case because, in my view, the school
district’s administration of the payroll deduction plan at issue is neither a “contribution”
nor an “expenditure” as defined in the Michigan Campaign Finance Act (MCFA);
therefore, the school district’s administration of the plan is not prohibited by MCL
169.257(1). Accordingly, I respectfully dissent.
1
As I explained in my dissenting statement in Anglers of the AuSable, Inc v Dep’t of
Environmental Quality, 489 Mich 884, 891 n 1 (2011), the court rules and this Court’s
internal operating procedures imply that MCR 2.119(F)(3) should factor into this Court’s
consideration of motions for rehearing. Accordingly, because respondent presents no
new arguments in support of her motion for rehearing and the previous majority opinion
reached the right result for the reasons discussed in this opinion, I would deny
respondent’s motion for rehearing.
I. STANDARD OF REVIEW
The proper interpretation of a statute is a legal question that this Court reviews de
novo. Herman v Berrien Co, 481 Mich 352, 358; 750 NW2d 570 (2008).
II. ANALYSIS
The MCFA’s general rule regarding prohibited “contributions” and “expenditures”
is provided in MCL 169.254(1), which states in relevant part:
Except with respect to the exceptions and conditions in . . . [MCL
169.255], 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 . . . .
Thus, according to the plain language of MCL 169.254(1), MCL 169.255 is an exception
to the general rule in MCL 169.254(1). That exception states, in relevant part:
A corporation organized on a for profit or nonprofit basis, a joint
stock company, a domestic dependent sovereign, or a labor organization
formed under the laws of this or another state or foreign country may make
an expenditure for the establishment and administration and solicitation of
contributions to a separate segregated fund to be used for political purposes.
A separate segregated fund established under this section shall be limited to
making contributions to, and expenditures on behalf of, candidate
committees, ballot question committees, political party committees,
political committees, and independent committees. [MCL 169.255(1).]
Finally, MCL 169.257(1) specifically addresses how the MCFA applies to “public
bodies,” which includes school districts,2 when it states:
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 . . . .
2
MCL 169.211(6)(c).
2
Thus, under MCL 169.254(1) and MCL 169.257(1), private entities and “public bodies”
are barred from making “contributions” and “expenditures” unless an exception applies.
The MCFA provides detailed definitions of “contribution” and “expenditure”; therefore,
in order to properly apply the relevant portions of the MCFA to the facts of this case, it is
necessary to closely consider those statutory definitions to fully understand what
constitutes a prohibited “contribution” and “expenditure” as defined in the MCFA.
A. “CONTRIBUTION”
The MCFA defines “contribution” in MCL 169.204(1), which states:
“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.[3]
This statutory definition can be divided into two portions: (1) a list of actions that could
constitute a “contribution,” i.e., “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,” and (2) the purpose for which the actions must be taken in
order to constitute a “contribution,” i.e., “for the purpose of influencing the nomination or
election of a candidate, or for the qualification, passage, or defeat of a ballot question.”
3
The MCFA also provides a list of exclusions from its definition of “contribution.” See
MCL 169.204(3)(a) through (c). It is not necessary to consider those exclusions in this
case, however, because the plain language of the statutory definition of “contribution”
does not encompass the school district’s administration of the payroll deduction plan at
issue here.
3
Stated another way, the statutory definition requires a court to determine (1) whether a
party’s conduct falls within the list of actions provided and, if so, (2) the purpose for that
action.
As the majority insists, the list of actions provided in the first portion of the
definition of “contribution” arguably could include the school district’s administration of
the payroll deduction plan. But even accepting arguendo the majority’s conclusion that
the administration of the plan represents “a transfer of [something] of ascertainable
monetary value” to the MEA’s political action committee (MEA-PAC), the question
remains whether the school district administers the plan “for the purpose of influencing
the nomination or election of a candidate, or for the qualification, passage, or defeat of a
ballot question.”
As the previous majority opinion in this case explained,
a public school’s administration of a payroll deduction system is not an
impermissible contribution under the MCFA because the system is not
administered “for the purpose of influencing the nomination or election of a
candidate, or for the qualification, passage, or defeat of a ballot question.”
When a public body administers a payroll deduction plan, it does not do so
in an attempt to influence a political race or a ballot question. Rather,
administering the plan is one step removed: it merely allows someone else
to make a contribution for the purpose of influencing a political issue. The
public body administers the plan simply because it is required to do so as
part of a labor contract between the public body and its employees.
Consequently, because a public school’s administration of a payroll
deduction system is not done for the purpose of influencing a political
issue, the administration of the system is not a contribution under the
MCFA. [Mich Ed Ass’n v Secretary of State, 488 Mich at 37-38 (citation
omitted).]
The majority attempts to counter the previous majority’s explanation of the plain
meaning of the MCFA’s definition of “contribution” by first claiming that the school
4
district makes a “contribution” because, by administering the payroll deduction plan, it
“provid[es] valuable services to the MEA-PAC in aid and furtherance of its political
activities.” Ante at 13 n 12. This analysis, however, impermissibly strays from the
statutory language because it focuses on the arguable result of the school district’s
administration of the plan rather than the school district’s purpose in administering the
plan, as the statute requires. The fact that, at some remote time in the future, the school
district’s administration of the payroll deduction plan eventually results in the furtherance
of the MEA’s political activities does not necessarily make the school district’s actions a
“contribution” as defined in MCL 169.204(1). Rather, the administration of the payroll
deduction plan is only a “contribution” if, at the time the school district performs the
service, it does so “for the purpose” of influencing an election.
Second, the majority argues that, in considering the school district’s administration
of the payroll deduction plan under MCL 169.204(1), the focus should not be on whether
the school district is attempting to influence a political race, but whether the payment that
it provides is intended for that purpose. While the majority is correct to focus on the
“payment,” the majority confuses the two payments at issue in this case: the MEA
member’s “payment” in the form of money deducted from his or her paycheck and the
school district’s arguable “payment” in the form of administering the payroll deduction
plan that transfers the employee’s donation to the MEA-PAC.4 While the employee’s
4
The majority further confuses the two payments at issue with its discussion of the
definition of the word “make.” Contrary to the majority’s claims, when the school
district administers the payroll deduction plan, it does not “‘cause[] to exist or happen’
‘contributions’ from MEA members . . . .” Ante at 9. Rather, the MEA member “causes
to exist or happen” the “contribution” when the MEA member voluntarily chooses to
5
donation to the MEA-PAC is likely a “contribution” because it is made “for the purpose”
of influencing a political race, the majority erroneously imputes the employee’s purpose
in making the contribution to the school district. It is not the purpose behind the
employee’s donation that is the focus of the relevant inquiry; rather, it is the purpose
behind the school district’s decision to administer the payroll deduction plan, which
merely transfers donations from the employee to the MEA-PAC, that must be considered.
Similarly, the majority erroneously imputes the MEA’s purpose in collecting
contributions to the school district’s administration of the payroll deduction plan. See
ante at 12 (claiming that the school district’s administration of the payroll deduction plan
is a “contribution” because “the purpose of the MEA-PAC is to facilitate and coordinate
the involvement of the MEA in partisan politics”). What the majority fails to grasp is
that, when properly applied to this case, MCL 169.204(1) is focused solely on the school
district’s purpose in acting in a specific fashion.
In order to determine the school district’s “purpose,” one must first define the
word and then apply that definition to the facts of this case. The MCFA does not define
“purpose”; therefore, it is proper to consult a dictionary to assist the Court in determining
the word’s common meaning. McCormick v Carrier, 487 Mich 180, 195; 795 NW2d 517
(2010); see, also, MCL 8.3a. “Purpose” is defined as “[a] result or effect that is intended
donate to the MEA-PAC. The school district merely transfers money from one place to
another. Just as a bank, acting in response to a check written by a customer, does not
“make” a payment when it transfers money from the customer’s account to the party
identified on the check, the school district does not “make” a contribution when it
transfers money from a MEA member’s paycheck to the MEA-PAC at the MEA
member’s direction.
6
or desired; intention.” The American Heritage Dictionary, Second College Edition
(1982), def 2 (emphasis added). Thus, in order to determine the school district’s purpose
for administering the payroll deduction plan, one must consider the school district’s
intent. “Intent,” in turn, is defined as “[t]he state of mind operative at the time of an
action. . . . [h]aving the mind fastened upon some purpose.” Id., defs 2 and 3. Similarly,
“intention” is defined as “[a] plan of action; design” and “[a]n aim that guides
action . . . .” Id., defs 1 and 2. In light of these definitions, in order to determine the
school district’s purpose as it relates to the statutory definition of “contribution,” one
must determine the school district’s “aim that guides [its] action” and the “state of mind
operative” when the school district administers the payroll deduction plan.
As the majority notes, the school district and the MEA entered into a collective-
bargaining agreement, part of which required the school district to administer the payroll
deduction plan at issue in this case. Because the school district is required by contract to
administer the payroll deduction plan, the school district’s purpose in administering the
plan is to satisfy its bargained-for contractual duties. The school district’s purpose was
not to “influenc[e] the nomination or election of a candidate” or “the qualification,
passage, or defeat of a ballot question.” MCL 169.204(1). Therefore, although the
school district’s administration of the payroll deduction plan may, in some tangential or
remote sense, eventually influence an election, that was not the school district’s purpose.
Consequently, the school district’s administration of the payroll deduction plan is not a
“contribution” as defined by the MCFA.
7
The majority also attempts to support its “contribution” analysis with a quotation
from MCL 169.270.5 Ante at 26. But, in my view, that statute is intended to prevent an
entity from circumventing the contribution limits in MCL 169.252 and MCL 169.252a by
transferring money to other entities and then directing those entities to make
“contributions” or directing another entity to use its own resources to make a
“contribution.” Indeed, the statute expressly states that it applies “for purposes of
expenditure and contribution limits.” MCL 169.270. Thus, contrary to the majority’s
interpretation, the statute is focused on enforcing contribution limits, not determining
whether a particular act is a “contribution” or “expenditure” as defined in MCL 169.204
and MCL 169.206. Notably, because an MEA member is not seeking to circumvent the
MCFA’s contribution limits by making a contribution through the payroll deduction plan,
MCL 169.270 is not applicable to the school district in this case. The MEA member does
not “control” a “contribution” made by the school district or “direct” the school district to
make a contribution from the school district’s own funds. Rather, the MEA member
makes a contribution out of his or her own funds, and the school district merely transfers
those funds. Throughout the entire transaction, the contribution is always attributable to
the MEA member.
5
MCL 169.270 states:
A contribution or expenditure which is controlled by, or made at the
direction of, another person, including a parent organization, subsidiary,
division, committee, department, branch, or local unit of a person, shall be
reported by the person making the expenditure or contribution, and shall be
regarded as an expenditure or contribution attributable to both persons for
purposes of expenditure or contribution limits.
8
Furthermore, by claiming that the school district exceeds its inferential
contribution limit of zero when it administers the payroll deduction plan, the majority
once again improperly imputes to the school district the MEA member’s purpose for
making the contribution. As this opinion explains, an act is not a “contribution” as
defined in MCL 169.204(1) unless the act is performed for the specific purpose of
“influencing the nomination or election of a candidate, or for the qualification, passage,
or defeat of a ballot question.” Because the school district’s administration of the payroll
deduction plan is not performed for that purpose, the school district does not make a
“contribution” and, thus, does not exceed any arguably applicable contribution limit.6
Finally, the majority questions the school district’s authority to administer the
payroll deduction plan at issue in this case. However, this concern is misplaced because
school districts, by statute, have the authority to enter into collective-bargaining
agreements, MCL 423.209,7 and school districts may administer a payroll deduction plan
6
The majority also argues that, under MCL 169.209(3), the school district’s
administration of the payroll deduction plan is an “in-kind contribution” because the
administration of the plan is a “contribution . . . other than money.” But, as the majority
seems to accept, under the plain language of MCL 169.209(3), the school district’s
administration of the payroll deduction plan cannot be an “in-kind contribution” unless it
is a “contribution” as defined in MCL 169.204(1). Thus, because I believe that the
school district’s administration of the payroll deduction plan is not a “contribution” for
the reasons previously provided, it is also not an “in-kind contribution.”
7
MCL 423.209 states:
It shall be lawful for public employees to organize together or to
form, join or assist in labor organizations, to engage in lawful concerted
activities for the purpose of collective negotiation or bargaining or other
mutual aid and protection, or to negotiate or bargain collectively with their
public employers through representatives of their own free choice.
9
as part of a collective-bargaining agreement pursuant to the wages and fringe benefits act,
specifically MCL 408.477(1). Thus, in the abstract, the majority’s argument that the
wages and fringe benefits act does not directly grant school districts the authority to
administer a payroll deduction plan is correct, but the majority errs when it concludes that
the wages and fringe benefits act is irrelevant to this case. Rather, when that act is
considered in tandem with MCL 423.209, the statutes “expressly or impliedly grant”
school districts the authority to enter collective-bargaining agreements that require a
school district to administer a payroll deduction plan. Jacox v Van Buren Consol Sch
Dist Bd of Ed, 293 Mich 126, 128; 291 NW 247 (1940). Because the school district’s
administration of the payroll deduction plan is neither a “contribution” nor an
“expenditure” for the reasons discussed in this dissent, administration of the plan does not
violate MCL 169.257 and, thus, is lawful.
B. “EXPENDITURE”
Although the school district’s administration of the payroll deduction plan is not a
prohibited “contribution,” it could nevertheless be barred under MCL 169.257 if it meets
the statutory definition of “expenditure.” Therefore, that definition must also be
examined in the context of this case. The MCFA defines “expenditure” in MCL
169.206(1), which states, in relevant part:
“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
See, also, MCL 423.217(1) (protecting collective-bargaining agreements of public school
employees).
10
nomination or election of a candidate, or the qualification, passage, or
defeat of a ballot question. Expenditure includes, but is not limited to, any
of the following:
(a) A contribution or a transfer of anything of ascertainable
monetary value for purposes of influencing the nomination or election of a
candidate or the qualification, passage, or defeat of a ballot question.
The MCFA, however, also expressly excludes some conduct that would otherwise meet
its general definition of “expenditure.” Notably, MCL 169.206(2) states, in relevant part:
Expenditure does not include any of the following:
* * *
(c) An expenditure for the establishment, administration, or
solicitation of contributions to a separate segregated fund or independent
committee.
The majority argues that the school district’s administration of the payroll
deduction plan is barred by the MCFA because it is an “expenditure” under the general
definition in MCL 169.206(1) and the exclusion in MCL 169.206(2)(c) does not apply to
public bodies. The majority concludes that the “exclusion is clearly designed to apply
only to corporations and labor organizations that possess the authority to create, establish,
administer, or fund separate segregated funds in the first place.” Ante at 15.
Furthermore, the majority claims that MCL 169.257 and MCL 169.254 apply to public
bodies and private entities respectively the same general rule barring “expenditures,” but,
because MCL 169.257 does not refer to the exception in MCL 169.255 permitting some
types of “expenditures,” MCL 169.257 represents an “absolute prohibition” against
expenditures by public bodies. I disagree with the majority’s analysis.
To begin with, contrary to the majority’s suggestion, neither the general definition
of “expenditure” in MCL 169.206(1) nor the exclusion from the general definition in
11
MCL 169.206(2)(c) indicates that the exclusion only applies to private entities. Thus,
there is simply no basis in the statutory language to support the majority’s position.
Likewise, nothing in MCL 169.257 supports the majority’s conclusion that the
exclusion in MCL 169.206(2)(c) from the definition of “expenditure” does not apply to
public bodies. While the majority is correct that the exceptions in MCL 169.255 do not
apply to public bodies, that fact does not support the majority’s conclusion that the
exclusion in MCL 169.206(2)(c) also does not apply with equal force to public bodies. In
fact, the majority’s claim that this exclusion is “plainly directed toward elaborating on
[MCL 169.255] by making clear that no expenditures authorized by [MCL 169.255] for
the establishment of a separate segregated fund will be treated as a prohibited
expenditure,” ante at 16 n 13, leaves no distinction between the two statutes. Therefore,
if the majority were correct that MCL 169.206(2)(c) does not apply to public bodies,
MCL 169.206(2)(c) is completely unnecessary because, under the majority’s
interpretation, it says the exact same thing as MCL 169.255. The majority’s efforts to
read these two statutes “harmonious[ly]” are strained and renders MCL 169.206(2)(c)
superfluous. I decline to adopt such an interpretation because the result is impermissible
under the rules of statutory interpretation. People v McGraw, 484 Mich 120, 126; 771
NW2d 655 (2009) (“In interpreting a statute, we avoid a construction that would render
part of the statute surplusage or nugatory.”).
Rather, I believe that MCL 169.257 explains that public bodies are not to make
“expenditures” as defined in MCL 169.206(1), but if the school district’s administration
of the payroll deduction plan satisfies the exclusion from the definition of “expenditure”
found in MCL 169.206(2)(c) administration of the plan is not an “expenditure,” and the
12
plan does not violate MCL 169.257. Thus, in a sense, the majority is correct that MCL
169.257 creates an “absolute prohibition” against expenditures by public bodies, but the
majority misses the boat when it concludes that this “absolute prohibition” bars the
school district’s administration of the payroll deduction plan at issue in this case.
Because the school district’s administration of the plan is excluded from the definition of
“expenditure,” there is simply no “expenditure” to prohibit.8
The majority’s erroneous analysis further results from its insistence that the
exclusion in MCL 169.206(2)(c) only applies to expenditures for the establishment or
administration of a separate segregated fund. This interpretation of MCL 169.206(2)(c)
is misguided because the statutory exclusion focuses on expenditures associated with
contributions to a separate segregated fund, not expenditures associated with the creation
or management of a separate segregated fund.
Specifically, MCL 169.206(2)(c) provides that an “expenditure” does not include
“[a]n expenditure for the establishment, administration, or solicitation of contributions to
a separate segregated fund . . . .” The majority errs because it replaces “to” with “of”
and ignores the word “contributions” when considering “establishment” and
8
Contrary to the majority’s claims, my interpretation does not permit political action
committees to “commandeer[]” government resources. Ante at 16 n 13. Obviously, a
public body is always free to decline the MEA’s or any other organization’s request to
engage in a plan like the one at issue in this case. Indeed, the school district in this case
freely agreed to administer the payroll deduction plan as part of the arm’s-length
negotiations with the MEA that culminated in a collective-bargaining agreement. Thus,
the MEA did not “commandeer” anything. Furthermore, my interpretation would not
“always” lead to the same result. Ante at 16 n 13. Rather, a public body would only be
permitted to engage in the limited conduct excluded from the definition of “expenditure”
when the specific requirements of MCL 169.206(2)(c) are met.
13
“administration” as used in MCL 169.206(2)(c). Stated another way, the majority’s
analysis rewrites the statute as follows: “‘[e]xpenditure’ does not include . . . [a]n
expenditure for the establishment or administration of a separate segregated fund or
solicitation of contributions to a separate segregated fund . . . .” Therefore, the majority’s
interpretation impermissibly adds words to the statute. See Hiltz v Phil’s Quality Market,
417 Mich 335, 347; 337 NW2d 237 (1983). Indeed, the majority opinion expressly states
that “the school district is not making an ‘expenditure’ for the administration of a
separate segregated fund . . . because . . . the school district is simply administering the
payroll deduction plan . . . .” Ante at 19 (emphasis altered); see, also, ante at 19
(claiming that MCL 169.206[2][c] supports the majority’s conclusion that “the only
administrative costs that are excluded under this exclusion are those associated with
administering a ‘separate segregated fund or independent committee’”). By its own
words, the majority displays its need to impermissibly change the language of the statute
in order to support its holding.9
Thus, although I agree with the majority that the school district is not making an
“expenditure” for the administration of a separate segregated fund, that point is irrelevant
because that is not what the statutory exclusion requires. Rather, by administering
9
Indeed, the majority expressly states, without explanation and contrary to the plain
language of the statute, that MCL 169.206(2)(c) “does not exclude from the definition of
‘expenditure’ an ‘expenditure’ for the ‘administration of contributions’; rather it excludes
an ‘expenditure’ for the administration of a ‘separate segregated fund or independent
committee’ . . . .” Ante at 20 n 15.
14
contributions to a separate segregated fund, the school district’s conduct falls squarely
within the statutory exclusion from the general definition of “expenditure.”10
C. PURPOSE OF MCL 169.257
Finally, the majority supports its interpretation of the MCFA by claiming that the
purpose of MCL 169.257 “is to mandate the separation of the government from politics
in order to maintain governmental neutrality in elections, preserve fair democratic
processes, and prevent taxpayer funds from being used to subsidize partisan political
activities,” ante at 6-7, and only its analysis is consistent with that purpose. To begin
with, the majority’s soaring rhetoric could easily be classified as nothing more than an
impassioned plea in support of the policy that the majority wishes to impose, see, e.g.,
ante at 33, but more importantly, the majority goes well beyond the statutory language in
a misguided effort to determine this provision’s purpose.
Focusing instead on the statutory language alone, it is clear that the purpose of
MCL 169.257 is simply to prevent a public body from using its resources “to make a
contribution or expenditure” as those words are defined in MCL 169.204 and MCL
10
The school district’s involvement in the payroll deduction plan can properly be
described as “[a]n expenditure for the . . . administration . . . of contributions . . . .” MCL
169.206(2)(c). “Administration” is defined as, among other things, “[t]he management of
affairs” and “[t]he dispensing, applying, or tendering of something . . . .” The American
Heritage Dictionary, Second College Edition (1982), defs 1 and 7. In this case, the
school district’s involvement in the payroll deduction plan involves the management and
dispensing of employees’ contributions to the MEA-PAC. Thus, the common meaning of
the words used in the exclusion from the definition of “expenditure” found in MCL
169.206(2)(c) further support the conclusion that the exclusion applies in this case. The
majority appears to agree when it states that the school district’s administration of the
payroll deduction plan only facilitates contributions to the MEA-PAC. See ante at 20.
15
169.206, respectively. The majority fails to realize that my interpretation of the MCFA is
consistent with the true purpose of MCL 169.257 as determined from the language of that
provision because the school district’s administration of the payroll deduction plan at
issue in this case is neither a “contribution” nor an “expenditure.”
III. CONCLUSION
In my view, the school district’s administration of the payroll deduction plan does
not violate the MCFA because it is neither a “contribution” nor an “expenditure” under
the statutory definitions of those terms. Because the majority’s substantive analysis in
this case is the product of its erroneous interpretation of the statutory provisions at issue, I
respectfully dissent.
Michael F. Cavanagh
Marilyn Kelly
16
STATE OF MICHIGAN
SUPREME COURT
MICHIGAN EDUCATION
ASSOCIATION,
Petitioner-Appellant,
v No. 137451
SECRETARY OF STATE,
Respondent-Appellee.
HATHAWAY, J. (dissenting).
I dissent from the majority’s decision to vacate this Court’s December 29, 2010,
opinion because nothing in the plain language of MCL 169.257(1) prohibits a school
district from administering a payroll deduction system that allows Michigan Education
Association (MEA) members to automatically send contributions to the MEA’s political
action committee (MEA-PAC).1 Instead of preserving precedent, this newly comprised
majority reverses this Court’s previously issued opinion and issues its own opinion for no
reason other than that it disagrees with the outcome of the prior opinion. Moreover,
members of the current majority conspicuously fail to explain how this action differs
from actions that they vehemently criticized just two short years ago.2 I would preserve
1
The MEA-PAC is a segregated fund under MCL 169.255.
2
Recall the words of now Chief Justice YOUNG just two years ago:
this Court’s December 29, 2010, opinion, which followed the language of the law,
because a public school’s administration of a payroll deduction system that remits funds
to a segregated fund is not precluded by MCL 169.257(1) and is therefore permitted.
I. ANALYSIS
At issue is whether § 57 of the Michigan Campaign Finance Act (MCFA), MCL
169.257(1),3 prohibits a public school from administering a payroll deduction system that
remits funds to the MEA-PAC. To interpret the MCFA, we must follow the established
rules of statutory construction. “Assuming that the Legislature has acted within its
constitutional authority, the purpose of statutory construction is to discern and give effect
to the intent of the Legislature.”4 Accordingly, a Court must interpret the language of a
statute in a manner that is consistent with the legislative intent.5 In determining the
legislative intent, the actual language of the statute must first be examined.6 “As far as
The facts have not changed. The text of the statute at issue has not
changed. The parties’ arguments have not changed. And the rationale
advanced in the opinions of this Court has not changed. Yet, within a
matter of months, a decision of this Court, thoughtfully briefed, argued, and
considered by seven justices, is no longer worth the paper it was written on.
Even the casual observer, however, does not really need to ask why. The
reason is obvious: . . . the composition of this Court changed. [United
States Fidelity & Guaranty Co v Mich Catastrophic Claims Ass’n (On
Rehearing), 484 Mich 1, 27; 795 NW2d 101 (2009) (YOUNG, J.,
dissenting).]
3
The MCFA is found at MCL 169.201 et seq.
4
Potter v McLeary, 484 Mich 397, 410; 774 NW2d 1 (2009), citing Sun Valley Foods Co
v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999).
5
Potter, 484 Mich at 411.
2
possible, effect should be given to every phrase, clause, and word in the statute.”7 When
considering the correct interpretation, a statute must be read as a whole.8 Individual
words and phrases, while important, should be read in the context of the entire legislative
scheme.9 In defining particular words within a statute, a court “must ‘consider both the
plain meaning of the critical word or phrase as well as “its placement and purpose in the
statutory scheme.”’”10 When a statute explicitly defines a term, the statutory definition
controls.11
Section 57 of the MCFA provides in pertinent part:
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 or provide
volunteer personal services that are excluded from the definition of
contribution under [MCL 169.204(3)(a)]. [MCL 169.257(1) (emphasis
added).]
The clear language of § 57(1) specifically prohibits a public body from using, or
authorizing the use of, public resources to do three things: (1) make an expenditure, (2)
make a contribution, or (3) provide volunteer services that are excluded from the
6
Id. at 410.
7
Sun Valley, 460 Mich at 237.
8
See id.9
Herman v Berrien Co, 481 Mich 352, 366; 750 NW2d 570 (2008).
10
Id., quoting Sun Valley, 460 Mich at 237, quoting Bailey v United States, 516 US 137,
145; 116 S Ct 501; 133 L Ed 2d 472 (1995).
11
Tryc v Mich Veterans’ Facility, 451 Mich 129, 136; 545 NW2d 642 (1996).
3
definition of “contribution” under MCL 169.204(3)(a). The plain language of the statute
does not prohibit any other activity. Therefore, if the administration of the payroll
deduction system is not tantamount to doing one of these three things, the administration
of the system is permissible under Michigan law.
A. EXPENDITURE
The first issue is whether a public school’s administration of a payroll deduction
system that remits funds to the MEA-PAC is an impermissible “expenditure” under § 57.
“Expenditure” is specifically defined in the MCFA. The definition of “expenditure” is
set forth in MCL 169.206, which provides in pertinent part:
(1) “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. Expenditure includes, but is not limited to, any
of the following:
(a) A contribution or a transfer of anything of ascertainable
monetary value for purposes of influencing the nomination or election of a
candidate or the qualification, passage, or defeat of a ballot question.
* * *
(2) Expenditure does not include any of the following:
(a) An expenditure for communication by a person with the person’s
paid members or shareholders and those individuals who can be solicited
for contributions to a separate segregated fund under [MCL 169.255].
* * *
(c) An expenditure for the establishment, administration, or
solicitation of contributions to a separate segregated fund or independent
committee. [MCL 169.206 (emphasis added).]
4
The definition of “expenditure” is expansive. It includes 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. The definition also includes a contribution or a transfer of anything of
ascertainable monetary value for purposes of influencing the nomination or election of a
candidate or the qualification, passage, or defeat of a ballot question. However, MCL
169.206(2) also expressly excludes items from being classified as expenditures even
though they may qualify under the general definition outlined in MCL 169.206(1).
Notably, any “expenditure for the establishment, administration, or solicitation of
contributions to a separate segregated fund or independent committee” is specifically
excluded from the definition of “expenditure” by MCL 169.206(2)(c).
Turning to the facts of this case, the administration of a payroll deduction system
does arguably provide services to the MEA and the MEA-PAC in facilitating payroll
deductions from members by providing personnel and computer services. The system
allows MEA members to authorize the school to automatically deduct money from their
paychecks and remit the funds to the MEA-PAC. The MEA-PAC is a separate
segregated fund under MCL 169.255 because it has been established by the MEA, a labor
organization, to make contributions to and expenditures on behalf of candidate
committees, ballot question committees, political party committees, political committees,
and independent committees.12 Thus, the payroll deduction system administers member
12
MCL 169.255(1) provides, in pertinent part:
5
contributions to a separate segregated fund. Although this process falls within the
general definition of “expenditure” under MCL 169.206(1), the administration of such a
system is explicitly excluded from the statutory definition under MCL 169.206(2)(c),
which provides that an “expenditure for the establishment, administration, or solicitation
of contributions to a separate segregated fund or independent committee” is not an
“expenditure.”13 A public school’s administration of a payroll deduction system falls
squarely within the statutory exception. The system is set up to facilitate MEA member
contributions to their separate segregated fund, the MEA-PAC. Therefore, the
administration of the system is not an expenditure under the MCFA.
The majority erroneously asserts that the school district’s administration of a
payroll deduction system is not an “administration . . . of contributions to a separate
segregated fund or independent committee”14 because the district is not administering a
fund; rather, the district is only administering the payroll deduction system that remits
funds to the MEA-PAC. This argument is unfounded and contrary to the plain language
of the statute. The plain language of the statute applies to the administration of
A corporation organized on a for profit or nonprofit basis, a joint
stock company, a domestic dependent sovereign, or a labor organization
formed under the laws of this or another state or foreign country may make
an expenditure for the establishment and administration and solicitation of
contributions to a separate segregated fund to be used for political purposes.
A separate segregated fund established under this section shall be limited to
making contributions to, and expenditures on behalf of, candidate
committees, ballot question committees, political party committees,
political committees, and independent committees.
13
MCL 169.206(2)(c).
14
Id.
6
contributions to a separate segregated fund; the statute does not specify who has to make
the contributions. The MEA members’ contributions to the MEA-PAC are administered
through the payroll deduction system. Thus, the district, by administering the payroll
deduction system, is administering contributions to the MEA-PAC, an action that is
explicitly allowed according to the plain language of the statute.
In sum, administration of a payroll deduction system is an “expenditure for the
establishment, administration, or solicitation of contributions to a separate segregated
fund or independent committee” and thus falls within an enumerated exception to the
statutory definition of “expenditure.” Therefore, the administration of the payroll
deduction system is not an “expenditure” as defined by the MCFA and is not prohibited
by § 57 on that ground.
B. CONTRIBUTION
The next issue is whether administration of the payroll deduction system is an
impermissible “contribution” under the MCFA. “Contribution,” like “expenditure,” is
specifically defined by the MCFA. The definition of “contribution” under the MCFA is
set forth in MCL 169.204, which provides:
(1) “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.
(2) Contribution includes 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
7
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.
(3) Contribution does not include any of the following:
(a) Volunteer personal services provided without compensation, or
payments of costs incurred of less than $500.00 in a calendar year by an
individual for personal travel expenses if the costs are voluntarily incurred
without any understanding or agreement that the costs shall be, directly or
indirectly, repaid.
(b) Food and beverages, not to exceed $100.00 in value during a
calendar year, which are donated by an individual and for which
reimbursement is not given.
(c) An 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. [Emphasis added.]
The definition of “contribution” includes the term “expenditure.” Because
“expenditure” is explicitly defined by the MCFA, the statutory definition controls.15 As
explained earlier, the administration of a payroll deduction system is not an
“expenditure” under the MCFA and thus cannot be a contribution on that basis. The only
other way that the administration of the system could be a “contribution” under the
MCFA would be if administering the system resulted in a “transfer of anything of
ascertainable monetary value . . . made for the purpose of influencing the nomination or
election of a candidate, or for the qualification, passage, or defeat of a ballot question.”
The majority argues that the actual and intangible costs associated with the
administration of a payroll deduction system constitute a contribution because there is a
15
Tryc, 451 Mich at 136.
8
transfer of something of ascertainable monetary value from the school district to the
MEA-PAC and the transfer, although made pursuant to a collective bargaining
agreement, is made for the purpose of influencing the nomination or election of a
candidate or for the qualification, passage, or defeat of a ballot question. The majority
asserts that the resources expended to administer the payroll deduction system have an
ascertainable monetary value, and the fact that they are expended for the benefit of the
MEA-PAC conveys value to the MEA-PAC. The majority further argues that
prepayment for the services does not negate the transfer because MEA-PAC still receives
the benefit of the services.
I disagree with this interpretation of the word “transfer” in the statute. Because
“transfer” is a nontechnical word that is not defined within the statute, the proper course
of action is to first look to the plain meaning of the term to ascertain what the Legislature
intended by using “transfer” to define a “contribution.”16 “Transfer” is defined as “to
convey or remove from one place, person, etc., to another.”17 In order for there to be a
contribution, “anything of ascertainable monetary value” must be conveyed from one
entity to another.
There are two possible interpretations of the word “transfer” in the statute. The
first interpretation would require that any conveyance of value for services provided to a
campaign, regardless of whether the services are paid for, would constitute a
16
MCL 8.3a; Oakland Co Bd of Rd Comm’rs v Mich Prop & Cas Guaranty Ass’n, 456
Mich 590, 604; 575 NW2d 751 (1998).
17
Random House Webster’s College Dictionary (1997).
9
contribution. The second would require a net conveyance of value in order to be a
“transfer of anything of ascertainable monetary value.” I believe that the latter is the only
logical interpretation. Any other interpretation of “contribution” would lead to an absurd
result, and statutes must be construed to prevent absurd results.18 For example, under the
majority’s interpretation, a print shop that sells signage to a campaign in the normal
course of business would be making a contribution to the campaign because it has
transferred something of monetary value to the campaign, even though the shop has been
compensated for the cost of providing the signage. Such an interpretation of
“contribution” defies common sense, and I do not read the statute in this manner.
Instead, I conclude that the statute requires a net conveyance of “anything of monetary
value” in order for there to be a campaign contribution. If costs for administering the
payroll deduction system are paid in advance, there is no net conveyance of anything of
monetary value, and there is no contribution.
Furthermore, my conclusion that a “contribution” under MCL 169.204(1) requires
a net transfer of value comports with the remainder of that section, which specifically
excludes from the statutory definition of “contribution” any “contribution if expressly and
unconditionally rejected, returned, or refunded in whole or in part within 30 business
days after receipt.” MCL 169.204(3)(c). In other words, if the contribution is rejected,
returned, or refunded, it is no longer a “contribution” under the MCFA. Moreover, MCL
169.204(2) explains that a “contribution” includes “the granting of discounts or rebates
not available to the general public . . . .” This implies that when an entity provides
18
McAuley v Gen Motors Corp, 457 Mich 513, 518; 578 NW2d 282 (1998).
10
products or services at full price, the entity is not making a contribution. Thus, the statute
clearly requires that there be a net transfer of value in order for there to be a contribution
under the MCFA.
The majority erroneously asserts that the payroll deduction system constitutes
something of “ascertainable monetary value” because there is inherent value to the MEA-
PAC in having payroll deductions automatically taken from members’ wages as opposed
to requiring individual solicitations by the MEA-PAC. This argument ignores the plain
definition of the term “ascertainable.” “Ascertainable” is also a nontechnical word that is
not defined within the statute, so we must look to the ordinary meaning of the word to
discern what the Legislature intended. “Ascertain” is defined as “to find out definitely;
learn with certainty or assurance.”19 Thus, the phrase “ascertainable monetary value” in
the statute requires that the monetary value conferred be determined definitely, with
certainty and assurance. The majority hypothetically opines that the intangible benefits
the union receives because of the payroll deduction system confers something of
ascertainable monetary value. The majority reasons that ascertainable monetary value is
self-evident from the fact that the defendant has bargained for the payroll deduction
system in its contract with the school district and has appealed the right to enforce the
provision in this Court. However, these actions do not definitely identify with certainty
the amount of monetary value that the payroll deduction system confers to the MEA.
Therefore, according to the terms of the statute, the intangible benefits conferred to the
19
Random House Webster’s College Dictionary (1997).
11
MEA by the administration of a payroll deduction system do not constitute a
“contribution.”
In this instance, the MEA plans to prepay the school district for all ascertainable
costs—those which are definitely and certainly identified—associated with the
administration of a payroll deduction system, and in fact asked the Secretary of State for
a declaratory ruling regarding the costs to be prepaid. Thus, the administration of the
payroll deduction system will not result in a net transfer of anything of ascertainable
monetary value as all costs will be ascertained and prepaid.
The majority also erroneously asserts that the payroll deduction system constitutes
an “in-kind contribution” under MCL 169.209(3) as a “contribution . . . other than
money.” Again, the majority identifies the hypothetical intangible benefits that the
administration of a payroll deduction system confers on the MEA as the impermissible
contributions. However, this argument ignores that an in-kind contribution must still be a
“contribution” as defined by the statute. The hypothetical intangible benefits are not
contributions because, as discussed, they do not have an ascertainable monetary value.
The MEA contemplates prepaying all costs associated with the administration of the
deduction system that can be ascertained. Accordingly, there is no contribution under the
MCFA, and a public school’s administration of a payroll deduction system is not
prohibited by § 57 on that ground.
C. VOLUNTEER PERSONAL SERVICES
The final issue is whether the administration of the system in question
impermissibly “provide[s] volunteer personal services that are excluded from the
12
definition of contribution under section 4(3)(a)” of the MCFA. As noted earlier, § 4(3)
provides:
Contribution does not include any of the following:
(a) Volunteer personal services provided without compensation, or
payments of costs incurred of less than $500.00 in a calendar year by an
individual for personal travel expenses if the costs are voluntarily incurred
without any understanding or agreement that the costs shall be, directly or
indirectly, repaid. [MCL 169.204(3).]
Although such services are thus not considered a contribution for purposes of the
rest of the MCFA, § 57 specifically indicates that public bodies cannot use public
resources to provide volunteer services that are not compensated. However, the
administration of the payroll deduction system at issue does not involve volunteer
services by public employees because the MEA intends to prepay for all services
rendered. Because volunteer services are not defined by the statute, again the proper
course of action is to look to the plain meaning of the terms to discern the legislative
intent. “Volunteer” is defined as “a person who performs a service willingly and without
pay.”20 Willingness to perform an activity is not enough to fall within the scope of this
subsection; the activity must also be performed without pay. In this case, the MEA fully
anticipates payment and plans to prepay for any administration costs. As a result, a
public school’s administration of a payroll deduction system does not “provide volunteer
personal services that are excluded from the definition of contribution under section
4(3)(a)” of the MCFA and is not prohibited by § 57 on this final ground. Therefore, the
20
Random House Webster’s College Dictionary (1997), def 2.
13
administration of a payroll deduction system by a public school is permitted under the
MCFA.
II. CONCLUSION
I dissent from the majority’s decision to vacate this Court’s December 29, 2010,
opinion. A public school may administer payroll deductions for its employees who remit
funds to the MEA-PAC because MCL 169.257(1) only prohibits a public body from
using public resources to do three things: (1) make an expenditure, (2) make a
contribution, and (3) provide volunteer personal services that are excluded from the
definition of “contribution” under MCL 169.204(3)(a). The administration of the system
at issue does not meet any of those criteria. Thus, the administration of the payroll
deduction system is permitted under the MCFA, and the Court of Appeals erred by
concluding that it is not. Accordingly, I dissent.
Diane M. Hathaway
14