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Authority to prosecute violation of criminal provisions of Campaign Finance Act

Michigan's Attorney General does not have the exclusive authority to enforce the criminal provisions of Michigan's Campaign Finance Act. The enforcement of such provisions may be prosecuted by the Attorney General or by county prosecuting attorneys.

Opinion No. 7040

December 9, 1999

Mr. Carl J. Marlinga
Prosecuting Attorney
Macomb County
One South Main, Third Floor
Mount Clemens, MI 48043

You have asked whether Michigan's Attorney General has the exclusive authority to enforce the criminal provisions of the Michigan Campaign Finance Act.

The Michigan Campaign Finance Act (MCFA), 1976 PA 388, MCL 169.201 et seq; MSA 4.1703(1) et seq, is an act to regulate campaign financing; to require campaign statements and reports; and to prescribe penalties and provide remedies. As originally enacted, the MCFA contained two sections specifically addressing the authority of the Attorney General and county prosecuting attorneys. Section 15(3) originally provided that:

If the secretary of state, upon investigation of a report filed under this act, determines that there is reason to believe a violation of the act has occurred, the secretary of state shall forward the results of that investigation to the attorney general for enforcement of the criminal penalties provided by this act.

(Emphasis added.)

Section 33(4) originally provided that:

If a person who is subject to this section is found guilty, the circuit court of that county, on application of the attorney general or the prosecuting attorney of that county, may prohibit that person from assuming the duties of a public office or from receiving compensation from public funds, or both.

(Emphasis added.)

To determine the Legislature's intent in adopting and amending statutes, one must look to their plain meaning. In Dussia v Monroe County Employees Retirement System, 386 Mich 244, 249, 191 NW2d 307 (1971), the court stated: "'It is a cardinal rule that the legislature must be held to intend the meaning which it has plainly expressed, and in such cases there is no room for construction, or attempted interpretation to vary such meaning.'"

A study of the legislative history of these two sections is instructive. Section 15 was amended by 1980 PA 465, 1989 PA 95, and 1996 PA 590. The first amendatory act, 1980 PA 465, required the Secretary of State to follow the procedures set forth in subsection (2) but made no change in that officer's duty to forward investigation results to the Attorney General for enforcement of criminal penalties. The second amendatory act, 1989 PA 95, rewrote section 15, assigned a new number (7) to the subsection regarding referrals to the Attorney General, and made referrals to the Attorney General permissive rather than mandatory. 1989 PA 95 became effective on June 21, 1989. Section 15(7) currently provides that:

When a report or statement is filed pursuant to this act, the secretary of state shall review the report or statement and may investigate an apparent violation of this act pursuant to the rules promulgated pursuant to this act. If the secretary of state determines that there may be reason to believe a violation of this act has occurred and the procedures prescribed in subsection (5) have been complied with, the secretary of state may refer the matter to the attorney general for the enforcement of any criminal penalty provided by this act, or commence a hearing under subsection (6) to determine whether a civil violation of this act has occurred.

(Emphasis added.)

On April 18, 1989, the Michigan Court of Appeals rendered its decision in Forster v Delton School Dist, 176 Mich App 582, 585; 440 NW2d 421 (1989), construing section 15 of the MCFA, and observed that:

The campaign financing act also provides for criminal penalties for knowing violation of the act, and enforcement for such knowing violation may be prosecuted by the Attorney General or local prosecuting attorneys.

Because the campaign financing act creates new rights and imposes new duties, the remedies provided in the act are the exclusive means by which the act may be enforced. Since the act provides an adequate remedy to enforce its provisions, no private right of action may be inferred.

(Emphasis added.)

The third amendatory act, 1996 PA 590, amended section 15 of the MCFA but made no change in subsection (7) regarding referrals. This amendment did, however, add a new subsection (9) to provide that:

There is no private right of action, either in law or in equity, pursuant to this act. The remedies provided in this act are the exclusive means by which the act may be enforced and by which any harm resulting from a violation of this act may be redressed.

Amendments to statutes which include language previously subjected to judicial construction are presumed to have been adopted in the light of the prior construction. Van Antwerp v State, 334 Mich 593, 604; 55 NW2d 108 (1952); People v Powell, 280 Mich 699, 703; 274 NW 372 (1937). If the Legislature disagreed with the Court of Appeals' 1989 interpretation of the MCFA, it could have amended the statute. From a plain reading of sections 15 and 33 of the MCFA, and giving meaning and effect to these provisions, it is clear that the Legislature did not intend to confer exclusive authority upon Michigan's Attorney General, to the exclusion of county prosecuting attorneys, regarding enforcement of the MCFA's criminal provisions.

The Legislature has provided that county prosecuting attorneys shall, in their respective counties, prosecute all civil and criminal matters in which the state or county may be interested. MCL 49.153; MSA 5.751. Nothing contained in the MCFA diminishes the authority of county prosecutors to prosecute crimes committed in their respective counties.

It is my opinion, therefore, that Michigan's Attorney General does not have the exclusive authority to enforce the criminal provisions of Michigan's campaign finance act. The enforcement of such provisions may be prosecuted by the Attorney General or by county prosecuting attorneys.

Attorney General