MICHIGAN EDUCATION ASSOCIATION POLITICAL ACTION COMMITTEE v. SECRETARY OF STATE, 241 Mich. App. 432

Meter, J. Respondent appeals by leave granted from the circuit court’s order reversing a decision by an administrative hearing referee, who concluded that petitioner had violated a provision of the Michigan Campaign Finance Act (mcfa), MCL 169.201 et seq.-, MSA 4.1703(1) et seq. We reverse the trial court’s order and reinstate the administrative decision. I. FACTUAL BACKGROUND The parties do not dispute the relevant facts. After the 1992 general election, five candidates for the Michigan House of Representatives were involved in recounts.

Together, they incurred $20,711.54 in legal expenses for recount-related services provided by the law firm of Miller, Canfield, Paddock and Stone, PC. (Miller Canfield). As of July 12, 1994, Miller Canfield had not yet been paid for these services. On July 12, 1994, petitioner’s administrator, Allan Short, received a telephone call from the Office of the Speaker of the State House of Representatives. The individual placing the call, whose identity is unknown, requested that petitioner contribute a total of $20,711.54 to three political action committees (PACs).

Specifically, the individual requested a $16,598.87 contribution for the Rebuild the Majority Fund, a $2,800.99 contribution for the Democratic Grass Roots Committee, and a $1,311.68 contribution for the U.P. Victory Fund. After Short ascertained that the requested contributions, together, would not exceed the amount of money that petitioner had designated for contributions to House Democrats, he authorized the issuance of checks in the requested amounts.

Short testified that he did not know how the three PACs planned to use the money and that his only concern was that the contributions did not exceed the amount of money petitioner had designated for contributions to House Democrats. Petitioner made contributions in the requested amounts to the three PACs on July 12, 1994. That same day, the three PACs made various in-kind contributions to the candidate committees of the five House candidates involved in the recounts.

Specifically, the Rebuild the Majority Fund paid $16,598.87 to Miller Canfield for legal expenses incurred by four of the candidates, the Democratic Grass Roots Campaign paid $2,800.99 to Miller Canfield for legal expenses incurred by three of the candidates, and the U.R Victory Fund paid $1,311.68 to Miller Canfield for legal expenses incurred by one of the candidates. The total amount transferred to Miller Canfield by the PACS was $20,711.54, the same amount that petitioner contributed to the three PACS.

In April 1996, respondent filed a notice of alleged violation in which it contended, among other things, that petitioner violated subsection 44(1) of the mcfa, MCL 169.244(1); MSA 4.1703(44)(1), by transferring money to the three pacs with the agreement or arrangement that the PACs would then transfer the money to particular candidate committees. An administrative hearing regarding the alleged violation took place in July 1996.

Petitioner contended that it could not be held liable under subsection 44(1) of the mcfa because (1) funds donated for recounts are not “contributions” as defined by the MCFA, since recounts are not “elections” within the meaning of the act; and (2) respondent failed to show that petitioner had an agreement with the pacs to transfer the money to the candidate committees.

The hearing referee concluded that (1) recount-related donations are indeed “contributions” governed by the mcfa, because they influence the election of candidates, and (2) the “money trail” established that petitioner violated subsection 44(1) of MCFA by transferring funds to the pacs with the agreement or arrangement that the funds would then be transferred to the candidate committees. Petitioner sought review of the referee’s decision in the circuit court.

Following a June 1997 hearing, the court held that donations associated with recounts are not “contributions” under the MCFA because (1) the MCFA does not mention recounts, and (2) recounts do not involve influencing voters to vote in a particular way. The court further held that respondent failed to present any evidence that petitioner had an agreement or arrangement for the funds it transferred to the pacs to then be transferred to the candidate committees. Accordingly, the circuit court reversed the hearing referee’s decision. Respondent now appeals this reversal. H.

DONATIONS ASSOCIATED WITH RECOUNTS ARE “CONTRIBUTIONS” UNDER THE MCFA Respondent first argues that the circuit court erred in concluding that donations associated with recounts are not “contributions” as defined by the mcfa and are therefore not encompassed by the MCFA. Whether the MCFA governs recount-related donations is a question of statutory

interpretation. This Court reviews questions of statutory

interpretation de novo. Benedict v Dep’t of Treasury, 236 Mich App 559, 563; 601 NW2d 151 (1999). However, “[although it remains our responsibility to determine the meaning of the statute, we give ‘appropriate deference’ to the agency’s

interpretation.” Faircloth v Family Independence Agency, 232 Mich App 391, 406; 591 NW2d 314 (1998). We “ordinarily defer[] to the construction of a statute by the agency charged with applying it unless the

interpretation is ‘clearly wrong.’ ” Id.

Here, plaintiffs allegedly violated MCL 169.244(1); MSA 4.1703(44)(1), which states: A contribution shall not be made by a person to another person with the agreement or arrangement that the person receiving the contribution will then transfer that contribution to a particular candidate committee. [Emphasis added.] The term “contribution” is defined in MCL 169.204(1); MSA 4.1703(4)(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. [Emphasis added.] Election, in turn, is defined as follows: “Election” means a primary, general, special, or millage election held in this state or a convention or caucus of a political party held in this state to nominate a candidate.

Election includes a recall vote. [MCL 169.205(2); MSA 4.1703(5)(2).] Respondent contends that even though the MCFA does not employ the term “recount” in defining the term “election,” the MCFA nonetheless encompasses funds associated with recounts because (1) a recount is merely part of an election and thus has no need to be mentioned separately in the mcfa, and (2) including recounts within the purview of the MCFA accords with legislative intent. We agree. A.

THE APPROPRIATENESS OF JUDICIAL CONSTRUCTION We first note that in reviewing statutes, this Court’s primary goal is to ascertain and give effect to the intent of the Legislature. Adrian School Dist v Michigan Public School Employees’ Retirement System, 458 Mich 326, 332; 582 NW2d 767 (1998). If a statute’s language is clear and unambiguous, then judicial

interpretation is inappropriate. Id. If reasonable minds can differ regarding the meaning of a statute, however, judicial construction is warranted. Id. In the instant case, we find that reasonable minds can differ regarding whether a monetary gift associated with a recount is encompassed by the term “contribution” in MCL 169.204(1); MSA 4.1703(4)(1). Accordingly, judicial construction is appropriate. Id. B.

A RECOUNT AS PART OF AN ELECTION We reject petitioner’s argument that the exclusion of the term “recount” in the definition of “election” found in MCL 169.205(2); MSA 4.1703(5)(2) means that monetary donations or transfers associated with recounts cannot be deemed “contributions” under the MCFA. The terms listed in MCL 169.205(2); MSA 4.1703(5)(2) refer to different types of elections held in the state. Indeed, even a “recall vote” is a type of election, in that it amounts to a determination by the voters of whether an individual should be removed from office.

As stated in MCL 168.964; MSA 6.1964, “[t]he procedure governing the election on the question of the recall of an officer shall be the same, so far as possible and unless otherwise provided in this act, as that by which the officer is elected to public office.” By contrast, a recount is not a type of election held in the state; it is merely a procedure used to correct fraud or mistake in the counting or reporting of votes cast during a particular type of election, including a recall vote. See MCL 168.862; MSA 6.1862. Therefore, a recount, instead of being a type of election, is essentially part of an election.

Accordingly, the Legislature’s failure to include the term “recount” on a list of different types of elections in the mcfa does not indicate its intent to exclude monetary donations or transfers associated with recounts from the provisions of the MCFA. C.

A RECOUNT AS “INFLUENCING THE ELECTION OF A CANDIDATE” We further reject petitioner’s argument that monetary donations or transfers associated with recounts are not encompassed by the term “contribution” in MCL 169.204(1); MSA 4.1703(4)(1) because such donations are not made “for the purposes of influencing the nomination or election of a candidate.” Indeed, money used to facilitate a recount can directly influence the election of a candidate.

As opined by former Attorney General Frank Kelley in 1978, in a case involving a provision of the MCFA that prohibits certain corporate “contributions” made for the purpose of influencing the election of a candidate: The purpose of a recount is to determine whether the results of the first count of the ballots should stand or should be changed because of a fraud or mistake in the canvass of the votes or in the returns thereon made by inspectors. 1954 PA 116, § 862, MCLA 168.862; MSA 6.1862. There are costs involved in holding a recount just as there are costs involved in seeking office.

These costs may deter a person from seeking office, limit a candidate’s campaign or influence a candidate who has apparently lost an election by a close margin from seeking a recount unless the candidate in all three instances receives financial assistance. Thus, a financial contribution to pay for a recount may affect the outcome of an election as much as expenditures made to finance the election campaign. It may also be noted that the conduct of a recount frequently involves more than a simple technical procedure encompassing a second count of the votes cast.

Often a recount develops into an adversary administrative proceeding requiring the assistance of specialists in the area of election law, and can also end in extensive litigation.

Presumably part of the contribution will be used to finance payment for these services as well. [OAG, 1977-1978, No 5422, p 762 (December 29, 1978); emphasis added.] After noting that the Legislature, in order to keep corporations from unduly influencing elections, prohibited corporations, in certain instances, from contributing money to influence the election of candidates, the Attorney General further opined: Thus, the reasons ... for sustaining legislation that prohibits corporate contributions to political candidates for their election campaigns apply with equal vigor towards prohibiting contributions to finance the costs of a recount. * * * . . . [I]nasmuch as a financial contribution to pay the expenses of a recount [is] for the purpose of influencing an election, a corporation is prohibited from making such a contribution to a candidate. [Id. at 763] We recognize that opinions by attorneys general do not constitute binding authority on this Court.

See Macomb Co Prosecutor v Murphy, 233 Mich App 372, 382; 592 NW2d 745 (1999). Nevertheless, the opinions can constitute persuasive authority. Id. In the instant case, we agree with — and therefore adopt as our own — the Attorney General’s reasoning regarding the manner in which donations associated with recounts can influence the election of a candidate. Accordingly, we hold that “financial contribution^] to pay the expenses of a recount are for the purpose of influencing an election” and are therefore encompassed by the term “contribution” in MCL 169.204(1); MSA 4.1703(4)(1).

Petitioner could thus be held liable under MCL 169.244(1); MSA 4.1703(44)(1) if it donated money to the three pacs with the agreement or arrangement that the pacs would then transfer the money to candidate committees to pay the recount-associated expenses of the five candidates. D. LEGISLATIVE INTENT The legislative history of the MCFA supports our holding today. As stated earlier, this Court’s primary goal in interpreting statutes is to ascertain and give effect to the intent of the Legislature. Adrian School Dist, supra at 332.

The legislative analysis regarding the MCFA noted that bill addressed “a crisis of confidence in elected officials among voters today, and the growing influence of ‘big money’ in increasingly expensive political campaigns.” House Legislative Analysis, SB 1570, December 17, 1976, p 1. The “argument for”

section of the legislative analysis stated that the bill would “ensure the integrity of Michigan’s political campaigns and offices, thereby protecting the interests of the public at large, individual citizens, and candidates for political office,” and would “help reduce the undue and hidden influence of ‘big money’ in politics, and could work to restore public confidence in government.” Id. at 5. We conclude that including donations associated with recounts as “contributions” under the MCFA accords with the legislative intent to “help reduce the undue and hidden influence of ‘big money’ in politics” and to “restore public confidence in government.” Indeed, our

interpretation ensures that organizations attempting to influence elections by funding recounts will be subject to the same contribution limits and disclosure requirements that apply to organizations funding political campaigns. m. THE ADMINISTRATIVE DECISION WAS SUPPORTED BY SUBSTANTIAL EVIDENCE Next, respondent argues that the trial court erred in reversing the hearing referee’s decision that petitioner violated MCL 169.244(1); MSA 4.1703(44)(1) because the referee’s decision was supported by substantial evidence.

An administrative agency decision is reviewed by the circuit court to determine whether the decision was authorized by law and supported by competent, material, and substantial evidence on the whole record. Const 1963, art 6, § 28; Ansell v Dep’t of Commerce (On Remand), 222 Mich App 347, 354; 564 NW2d 519 (1997). Substantial evidence is any evidence that reasonable minds would accept as adequate to support the decision; it is more than a mere scintilla of evidence but may be less than a preponderance of the evidence. See Korzowski v Pollack Industries, 213 Mich App 223, 228; 539 NW2d 741 (1995).

This Court’s review of the circuit court’s decision is limited to determining whether the circuit court “applied correct legal principles and whether it misapprehended or grossly misapplied the substantial evidence test to the agency’s factual findings.” Boyd v Civil Service Comm, 220 Mich App 226, 234; 559 NW2d 342 (1996). In other words, this Court reviews the circuit court’s decision for clear error. Id. A decision is clearly erroneous when, “on review of the whole record, this Court is left with the definite and firm conviction that a mistake has been made.” Id. at 235.

We conclude that the circuit court clearly erred in concluding that the agency’s decision was not supported by substantial evidence. The facts to which petitioner stipulated at the hearing showed that petitioner contributed $20,711.54 to three pacs on July 12, 1994. The stipulated facts additionally showed that on that same day, the three pacs made a total contribution of $20,711.54 to Miller Canfield to help retire the recount-related expenses of the five House candidates.

In our opinion, this “money trail” was sufficient to support a reasonable inference, under the “substantiai evidence” standard, that petitioner entered into an agreement or arrangement with the three pacs to pay the candidates’ legal bills. We agree with the following findings made by the hearing referee: Clearly, the documentation of the money trail evidences some sort of scheme, design, or master plan.

The documents show that there was obviously a coordinated effort to move a large amount of [petitioner’s] money through the three caucus pacs, resulting in specific payments made on behalf of the five candidate committees which still had outstanding 1992 legal debts, all of which were extinguished on the same day. In other words, a reasonable inference can be drawn from the evidence that a scheme or plan existed.

Further, that the cover letters used by the three caucus pacs when filing their July 1994 triannual reports were virtually identical, is additional circumstantial evidence of a concerted plan to use [petitioner’s] money to benefit five particular candidates. We emphasize the standard of review to be employed by the circuit court: whether the agency’s decision was supported by more than a “mere scintilla” — but not necessarily by a preponderance — of the evidence. See Korzowski, supra at 228.

Black’s Law Dictionary (6th ed), p 1345, defines “scintilla” as “the least particle.” Random House Webster’s College Dictionary (1997), p 1159, defines “scintilla” as “a minute particle; spark; [or] trace.” Here, the path of the money and the identical cover letters were more than a “minute particle” of evidence that petitioner entered into an unlawful agreement with the three PACs. Indeed, it is not unusual that the identity of the participants in and the goals or objectives of unlawful agreements are founded on circumstantial evidence. See People v Justice (After Remand), 454 Mich 334, 347; 562 NW2d 652 (1997).

Moreover, even if the circuit court would have arrived at a contrary conclusion if it had been in the hearing referee’s place, the court was nonetheless bound to affirm the referee’s decision as long as the decision was sufficiently supported. Kotmar, Ltd v Liquor Control Comm, 207 Mich App 687, 689; 525 NW2d 921 (1994). Because the hearing referee’s decision that petitioner violated MCL 169.244(1); MSA 4.1703(44)(1) was indeed supported by substantial evidence, we find that the circuit court clearly erred in reversing the referee’s decision regarding this violation. Reversed. Hoekstra, P.J., concurred.

Petitioner’s reliance on federal law in arguing that expenses associated with a recount are not “contributions” under the mcfa is misplaced, because (1) the statute at issue in the instant case is a state statute and is therefore not governed by federal law; and (2) federal regulations specifically exempt recounts from the provisions of the Federal Campaign Finance Act, see 11 CFR 100.7(20) and 11 CFR 100.8(20), and there are no analogous Michigan regulations.

We note that recently-introduced legislation, if it had been adopted, would have rendered the Attorney General’s opinions advisory only, as opposed to binding, with respect to state agencies. See HB 4924. This legislation, however, was not adopted by the Legislature, and such opinions therefore remain binding on state agencies.

Although not applicable to the instant case, we note that the rationale for inteipreting “contributions” under the mcfa as including donations' associated with recounting votes for a candidate applies with equal force to donations associated with recounting votes for a ballot question under MCL 169.204(1); MSA 4.1703(4)(1). Respondent also argues that the trial court erred in reversing the referee’s decision that petitioner violated an additional

section of the mcfa. It is unclear to us whether the trial court’s order of reversal encompassed this additional violation. Nevertheless, respondent waived this argument by failing to raise it in its application for leave to appeal. See O’Connor v Comm’r of Ins, 236 Mich App 665, 673; 601 NW2d 168 (1999). We reject petitioner’s argument that the hearing referee improperly shifted the burden of proof to petitioner during the administrative hearing. The record shows that the hearing referee merely concluded that petitioner failed to rebut the prima facie case that respondent established.