Released: 11/19/2009   Panel: Jansen, Fort Hood, GLEICHER

Opinion - Authored - Published View Opinion

Criminal Procedure - Subpoena - Investigative
A prosecutor may petition a court in writing for authorization to issue a subpoena to investigate the commission of a felony.

Jurisdiction and Venue - Jurisdiction - Subject Matter - Determination - Review - Standard
The determination whether a trial court has subject matter jurisdiction is a question of law which is reviewed de novo on appeal.

Statutes - Construction - Review - Standard
Issues of statutory construction are reviewed de novo on appeal.

Elections - Campaign Finance Act - Purpose
The Michigan Campaign Finance Act is designed to ensure openness and honesty in elections by mandating certain reporting requirements and by prohibiting corporations or their agents from making monetary contributions to influence elections.

Elections - Campaign Finance Act - Committee - Treasurer - Necessity
The MCFA requires that candidates in certain elections form candidate committees, which include a designated treasurer and identify a financial institution as an official depository for campaign contributions. The committee treasurer must keep detailed accounts, records, bills, and receipts, and bears the responsibility for report preparation and filing.

Elections - Campaign Finance Act - Report - Elements
Under the MCFA, a candidate committee’s campaign statement must contain specific information about the total amount of contributions received during a reporting period, comprehensive detail about fund raising efforts, the identities of campaign contributors, and a list of all expenditures.

Elections - Campaign Finance Act - Contributions - Corporate - Prohibition - Exception
The MCFA generally prohibits independent corporate expenditures other than those made to ballot question committees.

Elections - Campaign Finance Act - Violation - Penalty
A person who fails to form a campaign committee or who commingles campaign committee funds in violation of the MCFA is subject to a civil fine of not more than $1000. A candidate, treasurer or other designated person who neglects to timely file mandatory campaign statements is guilty of a misdemeanor, punishable by a fine of not more than $1000 or imprisonment for not more than 90 days, or both. A person who knowingly violates the prohibition against the use of campaign funds for purposes other than qualified campaign expenditures is guilty of a felony punishable by a fine, imprisonment, or both.

Elections - Campaign Finance Act - Contributions - Corporate - Prohibition
Under the MCFA, generally a corporation may not make a contribution or expenditure or provide volunteer personal services which are excluded from the definition of a contribution.

Elections - Campaign Finance Act - Contributions - Corporate - Violation - Penalty
A person who knowingly violates the prohibition of the MCFA against corporate contributions is guilty of a felony punishable by a fine of not more than $5,000 or imprisonment for not more than three years, or both, or, if the person is not an individual, by a fine of not more than $10,000.

Elections - Secretary of State - Duty/Power - Supervisory Authority
Government - Secretary of State - Duty/Power - Elections
The Secretary of State is the chief election officer, and possesses supervisory control over local election officials in the performance of their duties.

Elections - Campaign Finance Act - Secretary of State - Duty
Under the MCFA, the Secretary of State bears responsibility for making available appropriate forms, instructions, and manuals required under the act, developing a filing, coding, and cross-indexing system for the filing of required reports and statements, preparing required forms, instructions, and manuals, and promulgating rules to implement the act. The SOS must make available an electronic filing and internet disclosure system permitting the electronic filing of committee statements or reports. When requested and adequately supported factually by the person submitting the request, the SOS must issue declaratory rulings concerning the MCFA.

Elections - Campaign Finance Act - Enforcement - Secretary of State
Under the MCFA, the SOS may investigate, enforce, and endeavor to prevent election campaign finance improprieties, and assess civil fines. If the SOS determines that there may be reason to believe that a violation of the act has occurred, he must endeavor to correct the violation or prevent a further violation by using informal methods such as a conference, conciliation, or persuasion, and may enter into a conciliation agreement with the person involved. Unless violated, a conciliation agreement is a complete bar to any further action with respect to matters covered in the conciliation agreement. If the SOS is unable to correct or prevent further violations by these informal methods, he may refer the matter to the Attorney General for the enforcement of a criminal penalty or commence a hearing as provided in the act.

Elections - Campaign Finance Act - Violation - Civil - Penalty
Under the MCFA, the SOS may commence a hearing to determine whether a civil violation of the act has occurred. If, after a hearing, the SOS determines that a violation of the act has occurred, he may issue an order requiring the person to pay a civil fine equal to the amount of the improper contribution or expenditure plus not more than $1,000 for each violation.

Elections - Campaign Finance Act - Secretary of State - Duty - Enforcement
In enforcing the MCFA, the SOS may use informal methods such as a conference, conciliation, or persuasion, may commence a hearing to address potential civil violations, and may refer a matter to the AG for the enforcement of a criminal penalty. The SOS must first attempt an informal resolution of a violation, and may instigate a hearing or refer the matter to the AG only if the informal proceedings fail to correct the violation.

Statutes - Construction - Plain Meaning
In construing a statute, a court first considers the statutory language. It must discern and give effect to the Legislature’s intent as expressed in the words of the statute, according to their plain and ordinary meanings. If the statutory language is clear, the Legislature is presumed to have intended the meaning clearly expressed and no further judicial construction is required or permitted.

Statutes - Construction - Surplusage
In construing a statute, effect must be given to every word, phrase and clause. A court must avoid interpreting a statute in a manner which renders any statutory language nugatory or surplusage, and the act must be construed as a whole.

Prosecutor - Duty/Power
A prosecutor is a constitutional officer whose duties are as provided by law. Generally, a prosecutor must appear for the state or county, and prosecute or defend in all the courts of the county, all prosecutions, suits, applications and motions, whether civil or criminal, in which the state or county may be a party or interested. A prosecutor has broad discretion to investigate crimes, determine which charges to lodge, and initiate and conduct criminal proceedings.

Elections - Election Law - Violation - Secretary of State - Investigation
Under the Michigan Election Law, the SOS must investigate and report election law violations to the AG or prosecutor for prosecution.

Elections - Campaign Finance Act - Violation - Criminal - Prosecutor - Power
The MCFA authorizes the SOS to correct and prevent violations of the act, and to conduct hearings regarding civil infractions of the act, but it does not authorize the SOS to prosecute criminal violations. Instead, criminal proceedings may be instigated by the AG or a prosecutor. In this case, the petitioner, a county prosecutor, investigated campaign contributions made in violation of the MCFA. The petitioner obtained court authorization to issue investigative subpoenas against the respondents, but the respondents refused to comply with the subpoenas. In ensuing proceedings to enforce the subpoenas, the respondents moved to quash the subpoenas and dismiss the proceeding based on the lack of subject matter jurisdiction in the court, arguing that the SOS had exclusive power to investigate and enforce violations of the MCFA. The trial court agreed, and dismissed the proceeding. However, the prosecutor had the authority to investigate and prosecute criminal violations of the MCFA, and the trial court thus improperly dismissed the case.

Crimes - Civil Infraction
Civil infractions are not crimes and are not punishable by imprisonment or by penal fines.

Elections - Campaign Finance Act - Violation - Penalty - Civil - Effect
Under the MCFA, generally, a person who violates a provision of the act is subject to a civil fine of not more than $1000 for each violation, and the civil fine is in addition to, but not limited by, a criminal penalty prescribed by the act.

Statutes - Construction - In Pari Materia
Statutory provisions which are in pari materia are read together as a whole, so to give effect to the legislative intent as expressed in harmonious statutes. If two statutes lend themselves to a construction which avoids conflict, that construction should control.

Statutes - Construction - Legislative Intent
A court may read nothing into a clear statute which is not within the manifest intent of the Legislature as derived from the words of the statute itself.

Elections - Campaign Finance Act - Enforcement - Conciliation Agreement - Effect - Criminal Violation
Under the MCFA, a conciliation agreement between a violator and the SOS is a complete bar to any further action with respect to matters covered in the conciliation agreement. Conciliation agreements address civil violations of the act, and do not affect the authority of a prosecutor to pursue charges for criminal violations of the act. In this case, the respondents’ activities regarding a certain election apparently were subjected to investigation by the SOS, which culminated in a conciliation agreement which specified that it covered civil liability. The respondents argued that the agreement precluded any further proceedings, including criminal proceedings. However, the conciliation of the civil infractions did not affect the petitioner’s authority to investigate criminal violations.

Released: 11/19/2009   Panel: Fort Hood, Cavanagh, KF Kelly (PC)

Opinion - Per Curiam - Published View Opinion

Taxation - Sales - Deduction - Bad Debts - Installment Sales - Financing Service - Amendment - Applicability - Retroactivity
Effective October 1, 2007, the General Sales Tax Act was amended, and the amendment specifies that it is curative and must be retroactively applied to express the original intent of the Legislature that a deduction for a bad debt for a taxpayer is available exclusively to those persons with the legal liability to remit the tax on the specific sale at retail for which the bad debt deduction is recognized for federal income tax purposes. The amendment corrected the meaning of “taxpayer” as interpreted in a particular court decision, but was not intended to affect a refund required by a final order of a court of competent jurisdiction for which all rights of appeal had been exhausted or had expired if the refund was payable without interest and after September 30, 2009, and before November 1, 2009. In this case, the plaintiffs, companies in the business of financing automobile sales through the purchase of the installment sales contracts generated by the vehicle dealers, sought refunds on sales taxes paid at the time of acquisition of the contracts for those sales as to which the debts later became uncollectible, in conformance with an appellate court interpretation of the GSTA issued in 2006. The plaintiffs filed the refund claims on September 21, 2007, and December 20, 2007, but pursuant to corrective legislation enacted on October 1, 2007, the defendant Department of Treasury denied the refunds. The plaintiffs brought suit, but following motions for summary disposition, the trial court concluded that the statutory amendment specifically and retroactively applied to preclude the claims, and granted summary disposition for the defendant. On appeal, the plaintiffs argued that the statutory amendment preserved refunds for those entitled to refunds before the amendment. However, the plain statutory language required retroactive application of the amendment to preclude any refund as to which a final court order had been issued, under specified circumstances, and did not preserve the plaintiffs' refund claims.

Summary Disposition - Review - Standard
A decision on a motion for summary disposition is reviewed de novo on appeal.

Statutes - Construction - Review - Standard
Issues of statutory interpretation present questions of law subject to de novo review.

Statutes - Constitutionality - Review - Standard
The constitutionality of a statute presents a question of law subject to de novo review.

Statutes - Construction - Rules - Conflict - Legislative Intent
The language of the statute expresses the legislative intent. A clear statute is not subject to judicial construction, and a court may not speculate regarding the intent of the Legislature beyond the words expressed in the statute. Once the intention of the Legislature is discovered, this intent prevails regardless of any conflicting rule of statutory construction.

Statutes - Construction - Omissions - Presumption
A court may not assume that the Legislature inadvertently omitted from one statute the language that it placed in another statute; the omission of a provision should be construed as intentional.

Statutes - Construction - Legislature - Knowledge of Existing Laws
The Legislature is presumed to be aware of, and thus to have considered the effect on, all existing statutes when enacting new laws.

Statutes - Construction - Legislature - Knowledge of Existing Laws - Judicial Interpretation - Amendment/Reenactment
The Legislature is presumed to act with knowledge of judicial statutory interpretations. When statutory provisions are construed by a court and the Legislature reenacts the statute, it is assumed that the Legislature acquiesced to the judicial interpretation, and when the Legislature acts to change the language of the statute, it is strong evidence of the disapproval of the judicial interpretation.

Statutes - Construction - Surplusage
Every word of a statute should be given meaning and no word should be treated as surplusage or rendered nugatory if at all possible.

Statutes - Construction - Tax Laws - Exemptions - Burden of Proof
Statutes - Construction - Tax Laws - Exemptions - Strict
Taxation - Exemption - Construction - Strict
Tax exemptions are disfavored, and the burden of proving an entitlement to an exemption is on the party claiming the right to the exemption. The intent to grant an exemption must be clear and must be limited to the terms statutorily provided.

Statutes - Construction - Applicability - Retroactivity - Due Process
The retroactivity of a statute is governed by the intent of the Legislature. Generally, an amendment is given prospective application unless the Legislature expressly or impliedly identifies its intention to give the statute retroactive effect. However, constitutional due process principles act to prevent retrospective laws from divesting property rights or vested rights. A vested right is an interest which the government is compelled to recognize and protect of which the holder could not be deprived without injustice.

Statutes - Construction - Applicability - Retroactivity - Due Process - Vest Right
The determination whether a right has vested so as to preclude the retroactive application of a statutory amendment, policy considerations control. A vested right cannot be premised on the expectation that general laws will continue.

Due Process - Property - Vested Right - Tax Law
Taxation - Sales - Deduction - Bad Debts - Installment Sales - Financing Service - Amendment - Applicability - Retroactivity - Constitutionality - Due Process
A taxpayer does not have a vested right in a tax statute or in the continuance of any tax law. In this case, the plaintiffs argued on appeal that retroactive application of the amendment to the GSTA deprived them of vested rights in refunds in violation of due process. However, the plaintiffs had no vested rights in refunds, and retroactive application of the amendment did not deprive them of due process.