Michigan Supreme Court Lansing, Michigan

Marilyn Kelly,
Chief Justice

Michael F. Cavanag h

Elizabeth A. Weave r

Maura D. Corriga n Robert P. Young, Jr. Stephen J. Markma n Diane M. Hathaway,

J ustices 

# Order

July 2, 2010

140297 & (66) 140299

In re INVESTIGATIVE SUBPOENAS.

_____________ _______________ _____________
GRAND TRAVERSE COUNTY PROSECUTOR, Petitioner-Appellee,

v SC: 140297 COA: 284993 MEIJER, INC., Grand Traverse CC: Respondent-Appellee, 08-026516-PZ and

DICKINSON WRIGHT EMPLOYEES, Respondents-Appellants.

________________ _______________ __________/

In re INVESTIGATIVE SUBPOENAS.

_____________ _______________ _____________
GRAND TRAVERSE COUNTY PROSECUTOR, Petitioner-Appellee,

v SC: 140299 COA: 284993 MEIJER, INC., Grand Traverse CC: Respondent-Appellant, 08-026516-PZ and

DICKINSON WRIGHT EMPLOYEES, Respondents-Appellees.

________________ _______________ __________/

By order of April 16 , 2010 the parties were directed to file supplemental briefs. On order of the Court, the briefs having be en received, the applications for leave to appeal the November 19, 2009 judgment of the Court of Appeals are again considered, and they are GRANTED. The parties shall include among the issues to be briefed whether a county prosecu tor has the authority to investig ate and prosecute violations of the Michigan Campaign Fi nance Act, MCL 169.201 et seq

.I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

_______________________________________ __ Clerk July 2, 2010

d0629 2

Persons or groups interested in the determ ination of the issues presented in this case may move the Court for permissi on to file briefs amicus curiae.

M ARKMAN , J. ( concurring ).

I concur in the order granting leave to appe al. I write separately to request that the parties carefully address two threshold questions of justic iability. Here, the prosecutor originally sought authorization under MCL 7 67A.2(1) to issue subp oenas to investigate an alleged felony. Specifi cally, the prosecutor was inve stigating a violation of the Michigan Campaign Finan ce Act (MCFA), under MCL 169.254, which prohibits corporations and their agents from making election campaign contributions. In the meantime, the United States Supr eme Court issued its ruling in Citizens United v Federal

Election Comm’n , 558 US ___; 130 S Ct 876, 913 (2010), in wh ich it held that “the Government may not suppress political speech on the basis of the speaker’s corporate identity.” Thus, Citizens United introduces the issue whet her a violation under MCL 169.254 may be prosecuted at a ll and, as a result, whether the underlying issue in this case—the prosecutor’s authority to prosecute felony violati ons of the MCFA—is moot. Moreover, the Court of Appeal s held that a prosecutor has the authority to criminally

enforce other provisions of the MCFA which were not affected by Citizens United . The prosecutor has indicated that he now intends to pursue criminal misdemeanor violations of the MCFA. However, at least to this poin t, this case has involved an alleged felony and the prosecutor’s authority to investigate it; MCL 767A .2(1) does not authorize the issuance of subpoenas to investigate alleged misdemeanors. Therefore, the issue also arises whether the issue of a prosecutor’s au thority to investigate misdemeanor violations under the MCFA is ripe. Thus, I respectfully request that the parties address: (1) whether the issue regarding a prosecuto r’s authority to prosecute fe lonies under MC L 169.254 is moot; and (2) whether the issue regarding a prosecutor’s authority to prosecute misdemeanors under the MCFA is ripe.

C AVANAGH , J. ( dissenting ).

I would deny the application for leave to appeal as I concur with the Court of Appeals statement that “[t]he statutory language neither expr essly creates nor inherently implies any restriction applicable to the prosecutor’s power to investigate criminal violations provided for by the MCFA.” In re Investigative Subpoenas , 286 Mich App 201, 217; 779 NW2d 277 (2009).