Fieger v. Cox
| Decision Date | 27 February 2007 |
| Docket Number | Docket No. 267309.,Docket No. 266264. |
| Citation | 734 N.W.2d 602,274 Mich. App. 449 |
| Parties | Geoffrey N. FIEGER, Fieger, Fieger, Kenney & Johnson, P.C., John L. Barlow, John L. Barlow & Associates Advertising, Inc., and Nancy Fisher, Plaintiffs-Appellees, v. Michael A. COX, Individually and in his Official Capacity as Attorney General, Doug Baker, Terri Lynn Land, Individually and in her Official Capacity as Secretary of State, and Thomas Cameron, Defendants-Appellants. In re Geoffrey N. Fieger, Fieger, Fieger, Kenney & Johnson, P.C., John L. Barlow, John L. Barlow & Associates Advertising, Inc., and Nancy Fisher, Plaintiffs-Appellees. |
| Court | Court of Appeal of Michigan — District of US |
Morganroth and Morganroth, P.L.L.C. (by Mayer Morganroth); Rockind & Liss, P.L.L.C. (by Neil S. Rockind); Richard L. Steinberg, P.C. (by Richard L. Steinberg); and Schwartz, Kelly & Otarz-Schwartz, P.C. (by Michael Alan Schwartz), Southfield, Farmington Hills, Detroit, Farmington Hills, for the plaintiffs.
Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and Margaret A. Nelson and Heather S. Meingast, Assistant Attorneys General, for the defendants.
Before: BORRELLO, P.J., and SAAD and WILDER, JJ.
These consolidated appeals arise from an investigation conducted by defendants into plaintiffs' alleged criminal violations of the Michigan Campaign Finance Act (MCFA), MCL 169.201 et seq. We hold that plaintiffs improperly sought to challenge district court orders by initiating original civil actions for superintending control, mandamus, and injunctions and that the circuit court erred by failing to dismiss the cases.
The Attorney General investigated attorney Geoffrey Fieger for illegal interference with the election of a justice to our Supreme Court, as well as attempts to circumvent the campaign finance and reporting laws promulgated by our Legislature. These consolidated appeals involve equally serious questions regarding an attempt by Fieger and others to thwart the Attorney General's investigation through the manipulation of our court system. The chief law enforcement officer of Michigan, the Attorney General, pursuant to law, was asked by the chief election officer of our state, the Secretary of State, to investigate possible felony violations of the MCFA by plaintiffs, including attorney Geoffrey Fieger. Specifically, the Attorney General was asked to investigate Fieger and his associates for improperly attempting to influence the outcome of the 2004 Michigan Supreme Court election.
The MCFA is designed to ensure openness and honesty in our elections by mandating certain reporting requirements and by prohibiting corporations (including law firms operating as limited liability companies) or their lawyers or agents from making monetary contributions to influence elections. It was alleged that Fieger violated these laws by financing almost half a million dollars' worth of campaign advertisements to defeat a Supreme Court justice in the 2004 election while concealing his involvement.
By properly following statutorily mandated procedures, the Attorney General conducted the felony investigation by seeking warrants and subpoenas in the district court.1 Those investigative tools uncovered the suspected Fieger funding of the campaign ads to defeat a justice of the Supreme Court. After the investigation and subpoenas disclosed Fieger's involvement, instead of filing an appeal to challenge the district judge's issuance of the warrants and subpoenas, as the law requires, plaintiffs instead engaged in forum-shopping by filing two separate civil actions to obtain a judge more to plaintiffs' liking who would undo the district judge's work and stop the Attorney General's investigation. Plaintiffs violated Michigan statutes and court rules by circumventing well-established, standard litigation rules that required plaintiffs to appeal if they disagreed with the ruling of the district court. Indeed, by improperly filing separate actions in the circuit court, plaintiffs got a judge to improperly reverse the district judge's rulings and thwart the Attorney General's investigation. Clearly, the circuit judge should have refused to hear a matter that should have been appealed if plaintiffs were dissatisfied with the district court's orders. Instead, the circuit judge exceeded his authority and then improperly rewarded plaintiffs' forum-shopping, first, by wrongfully taking the case and, second, by improperly interfering with a legitimate and proper investigation by the Attorney General.
Beyond the interests of the parties directly involved in this appeal, these cases present an institutional conflict of considerable public significance.2 We cannot countenance the circumvention of the rule of law by any litigant (especially one who is an attorney) who seeks, with the participation of a circuit judge, to thwart a legitimate felony investigation through technical gamesmanship involving our judicial system. Indeed, to do so would encourage other litigants to do the same.
During the 2004 general election, various media outlets broadcast advertisements urging voters to vote "No" on the reelection of Michigan Supreme Court Justice Stephen Markman. The advertisements were identified as being sponsored by Citizens for Judicial Reform (CJR). CJR first came to the attention of the Department of State (DOS) in October 2004, when a complaint was filed with the DOS pursuant to MCL 169.215(5) that alleged that CJR had violated several provisions of the MCFA, including MCL 169.247, by failing to include mandatory disclaimer language in the television commercials, and MCL 169.224, by failing to file a statement of organization with the Secretary of State. After CJR filed its statement of organization, the Secretary of State investigated the complaint, as mandated by MCL 169.215(9), and resolved it informally, MCL 169.215(10), by notifying CJR of its obligations under MCL 169.247.
CJR next came to the attention of the DOS after CJR failed to file a report of its fall 2004 campaign activity by January 31, 2005, as required by MCL 169.233(3). According to MCL 169.216(6), a DOS "filing official shall determine whether a statement or report that is required to be filed under this act is in fact filed." As explained in the October 26, 2005, affidavit of Anne Corgan, director of the Legal and Regulatory Services Administration of the DOS, the DOS mailed to CJR in February 2005 a notice of its tardy report, and in early March 2005 sent CJR notice of the late filing fee it owed. Corgan averred that on March 16, 2005, after the late filing fee notice "was returned as undeliverable," she "requested the assistance of the Attorney General's Office in bringing CJR into compliance with the MCFA" because CJR had failed to file its report under MCL 169.233(3) and had not responded to the DOS notices. Corgan's notification of the Attorney General clearly complied with MCL 169.216(8), which provides that "[a]fter 9 business days and before 12 business days have expired after the deadline for filing the statement or report, the filing official shall report errors or omissions that were not corrected and failures to file to the attorney general." (Emphasis added.)
In late April 2005, CJR filed with the DOS an amended statement of organization that altered the identity of its treasurer, but continued to identify its "official depository" as "Peoples State Bank" in Hamtramck. After receiving Corgan's report concerning CJR's delinquent filing of its campaign statements required under MCL 169.233(3), a special agent of the Attorney General on April 25, 2005, obtained the first in a series of search warrants; the Attorney General had apparently gleaned the identity of CJR's official depository from its October 2004 statement of organization, and the 54-B District Court approved a warrant that authorized the Attorney General to search the "Keeper of the Records, People's State Bank," for CJR records. The district judge later authorized a second warrant to search People's State Bank for records relating to CJR's agent, J.L. Barlow & Associates, Inc., doing business as Client Media Buying.
On May 31, 2005, the DOS received CJR's overdue report of its campaign statement covering October 22, 2004, through December 31, 2004. The summary pages of CJR's campaign-related activities reflects that it received $457,163.65 in "Anonymous Contributions,"3 which comprised its entire receipts, and that it had made this same amount of expenditures. (Emphasis added.) The five-page itemized schedule portion of CJR's triannual report detailed that on October 24, 2004, it spent all of the "anonymous contributions" it had received to purchase 14 television commercials opposing the reelection of Justice Markman.
Thereafter, the district judge authorized a third warrant to search the Barlow firm's office for documents related to CJR; its treasurer; a Client Media Buying account; and Fieger, Fieger, Kenney & Johnson, P.C. During the search, several documents were seized, including CJR's triannual report and numerous documents with references to Geoffrey Fieger. Only after the Attorney General's investigation and the district court's discovery orders uncovered Fieger's involvement did Fieger opportunely file with the Oakland County Clerk a late independent expenditure report required by MCL 169.251, and that same day the clerk faxed the report to the DOS. The report listed that with regard to the campaign of Justice Markman, Fieger made seven payments to the Barlow firm and Client Media Buy to purchase political television advertising; the five payments to the Barlow firm listed totaled $153,126, and the two payments to Client Media Buy amounted to $300,560.35, for a total of $453,686.35.
In light of the conflicting information in CJR's triannual report and...
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