Michigan Education Ass'n v. Secretary of State

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.

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 *237course 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----

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 *238consider 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.” 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.

*239As 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 district makes a “contribution” because, by administering the payroll deduction plan, it “provid[es] *240valuable services to the MEA-PAC in aid and furtherance of its political activities.” Ante at 209 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 dona*241tion 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 208 (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 or desired; intention.” The American Heritage Dictionary, Second College Edition (1982), def 2 (emphasis *242added). 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” and “[hjaving 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 “influencie] 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.

The majority also attempts to support its “contribution” analysis with a quotation from MCL 169.270.5 Ante at 222. But, in my view, that statute is intended to *243prevent 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.

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. *244As 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 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 *245majority’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 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 nomi*246nation 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 211. 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 MCL 169.206(2)(c) indicates that the exclusion only *247applies 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 212 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) would be 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 render 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 *248169.206(2)(c), administration of the plan is not an “expenditure” and the 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 *249the word “contributions” when considering “establishment” and “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 215 (emphasis altered); see, also, ante at 216 (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 contributions to a separate segregated fund, the school district’s *250conduct 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 202-203, and that 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 229-230, 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 *251defined in MCL 169.204 and MCL 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.”

HI. 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.

Marilyn Kelly, J., concurred with Cavanagh, J.

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.

MCL 169.211(6)(c).

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.

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 205. Rather, the MEA member “causes to exist or happen” the “contribution” when the MEA member voluntarily chooses to donate to the MEA-PAC. The school district merely transfers money *241from 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 an MEA member’s paycheck to the MEA-PAC at the MEA member’s direction.

MCL 169.270 states:

*243A 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.

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.”

MCL 423.209 states:

It shall he 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.

See, also, MCL 423.217(1) (protecting collective-bargaining agreements of public school employees).

Contrary to the majority’s claims, my interpretation does not permit political action committees to “commandeerD” government resources. Ante at 213 n 13. Obviously, a public body is always free to decline the MBA’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 213 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.

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 216 n 15.

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 217.