Traverse City Record-Eagle

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July 11, 2010

Justice: Meijer case may be 'moot'

BY BRIAN McGILLIVARY bmcgillivary@record-eagle.com

TRAVERSE CITY — The Michigan Supreme Court this month agreed to decide if a county prosecutor has the authority to investigate state campaign finance violations, but the court could declare the entire matter a non-issue.

Supreme Court Justice Stephen Markman instructed all sides — led by Grand Traverse County Prosecutor Alan Schneider on one side, and Meijer Inc. on the other — to fully address whether the court should hear the case, or if the matter is "moot" and doesn't need to be heard.

Briefs on that aspect of the case need to be filed before the end of August.

Based on previous briefs they've submitted, neither Meijer nor Schneider desires a moot ruling that again could direct them through the gamut of lower courts.

"They granted leave (to hear the appeal) so they ought to resolve it," Schneider said. "Either don't grant leave and let the appeals court decision stand, or resolve it."

Schneider obtained investigative subpoenas in 2008 to force testimony and documents from Meijer and its former law firm, Dickinson Wright PLLC. Investigative subpoenas are limited to felony investigations, in this case Meijer's use of corporate funds in a 2007 Acme Township recall election.

Meijer and Dickinson Wright then sought to quash the subpoenas, arguing state campaign finance law restricts enforcement solely to the secretary of state.

Thirteenth Circuit Court Judge Philip Rodgers agreed.

Schneider appealed, and the Michigan Court of Appeals last November reversed Rodgers in a published, binding opinion.

Meijer and Dickinson Wright appealed to the state Supreme Court. Meanwhile, in January the U.S. Supreme Court ruled it was unconstitutional to ban the use of corporate funds for political purposes.

Schneider still intends to investigate Meijer for violating one or more of the 27 criminal misdemeanors contained in the campaign finance act, most related to its failure to report expenditures. Without the felony charge, he can't use investigative subpoenas, the reason Meijer took the case to the Supreme Court in the first place.

"The Supreme Court sits to decide live cases, not moot issues," said Richard D. Friedman of the University of Michigan Law School. "If it's not going to change any outcome in this case on investigative subpoenas, the proper thing is to say it's moot."

In that case, the appeals court's November decision likely would stand because the question wasn't moot when that panel decided the case, Friedman said.

Schneider then could proceed with his probe.

Meijer could seek an injunction to stop the investigation if it could show the criminal probe caused it tangible harm and still argue Schneider lacked authority to investigate, he said. Meijer likely would lose at the trial court and appellate court because of the November decision, and the case eventually could wind up back at the Supreme Court.

"The particular issue is now moot, but the investigation is going on and the issue of prosecutorial authority is still alive, so they may say, 'Let's decide it now,'" Friedman said. "My guess is at this point they are not going to hold it moot, but they should."

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