Michigan Education Ass'n v. Secretary of State

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 *252criticized just two short years ago.2 I would preserve 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 *253of the statute must first be examined.6 “As far as 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 he 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 definition of “contribution” under MCL 169.204(3)(a). The plain language of the statute does not prohibit any other activity. *254Therefore, 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).]

*255The 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 *256administers member 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 contributions to a separate segregated fund; the statute does not specify who has to make the contributions. The MEA members’ contribu*257tions 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 *258that 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 *259deduction system constitute a contribution because there is a 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 contribution. The second would require a net conveyance of value in order to *260be 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 products or services at full price, the entity is not *261making 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 MEA by the administration of a payroll deduction system do not constitute a “contribution.”

*262In 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 J 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 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:

*263(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 administration of a payroll deduction system by a public school is permitted under the MCFA.

H. CONCLUSION

I dissent from the majority’s decision to vacate this Court’s December 29, 2010, opinion. A public school *264may 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.

The MEA-PAC is a segregated fund under MCL 169.255.

Recall the words of now Chief Justice Young just two years ago:

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).]

The MCFA is found at MCL 169.201 et seq.

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).

Potter, 484 Mich at 411.

Id. at 410.

Sun Valley, 460 Mich at 237.

See id.

Herman v Berrien Co, 481 Mich 352, 366; 750 NW2d 570 (2008).

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).

Tryc v Mich Veterans’ Facility, 451 Mich 129, 136; 545 NW2d 642 (1996).

MCL 169.255(1) provides, in pertinent part:

A corporation organized on a for profit or nonprofit basis, a joint stock company, a domestic dependent sovereign, or a labor *256organization 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 169.206(2)(c).

Id.

Tryc, 451 Mich at 136.

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).

Random House Webster’s College Dictionary (1997).

McAuley v Gen Motors Corp, 457 Mich 513, 518; 578 NW2d 282 (1998).

Random House Webster’s College Dictionary (1997).

Random, House Webster’s College Dictionary (1997), def 2.