Petitioners appeal by leave granted from a circuit court order vacating a hearing officer’s order that found respondent in violation of the Michigan Campaign Finance Act (mcfa), MCL 169.201 et seq. We affirm in part, reverse in part, and remand for further proceedings.
Respondent is a corporation that in 1994 sold political polling services to an independent political com *112 mittee 1 (the committee) for $61,651.50. At some point, resрondent sent the committee a bill for these services dated December 31, 1994. The committee acknowledged the debt for the first time in its July 1995 triannual campaign statement. Subsequently, the committee’s campaign statements filed for October 1995 and for April 1996 continued to show the debt. These statements also showed that the committee paid thousands of dollars on other debts, had other remaining outstanding debts in addition to the debt owed to respondent, and had a net operating balance. The July 1996 statement reported that the committee paid $256,588.40 on other debts, leaving a debt balance of $61,650.50, and had an end balance of $39,121.84. The October 1996 statement indicates no payments on debt, a debt balance of $61,651.50, and an end balance of $80,977.52. Since the original bill dated December 31, 1994, respondent had neither sent any other written demand to the committee for payment of the debt nor filed a lawsuit for collection of the debt; however, respondent had not “forgiven” the debt. Further, Allan Short, respondent’s director of government affairs, testified that he had been in contact with the committee on a monthly basis concerning payment of the debt, that respondent offered the committee the possibility of installment payments, and that respondent expected to be paid.
In May 1996, petitioners rеceived a complaint alleging that respondent may have violated the mcfa by making a corporate campaign contribution. Petitioners notified respondent of the complaint and there *113 after initiated administrative proceedings. Those proceedings culminated in a hearing officer’s issuing a final decision and order on October 13, 1997, finding that respondent had violated MCL 169.254(1) (subsection 54[1]) by making a contribution to the cоmmittee in the form of a forbearance. The hearing officer acknowledged that petitioner Secretary of State had no rules or standards to define “forbearance” under MCL 169.204(1) (subsection 4[1]). The hearing officer further stated that petitioners had not applied a consistent standard regarding the meaning of forbearance, having never commenced an enforcement action on the basis that a committeе has failed to pay a corporate debt for a period in excess of twenty-two months. Nevertheless, the hearing officer found respondent to be in violation of the MCFA according to the “plain and ordinary meaning” of “forbearance.” Specifically, the hearing officer quoted Black’s Law Dictionary and Webster’s New World Dictionary for the following definitions of “forbearance”:
“Refraining from doing something that one has a legal right to do. Giving of further time for repayment of obligation or agrеement not to enforce claim at its due date. A delay in enforcing a legal right. Act by which creditor waits for payment of debt due him by debtor after it becomes due.
“Refraining from action. The term is used in this sense in general jurisprudence, in contradistinction to ‘act.’
“Within usury law, term signifies contractual obligation of lender or creditor to refrain, during a given period of time, from requiring borrower or debtor to repay loan or debt then due and payable.” [2]
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“The act of forbearing, to refrain from; avoid or cease (doing, saying, etc.) Law the act by which a creditor extends time for payment of a debt or forgoes for a time his right to enforce legal action on the debt.” [3]
Having found that respondent violated subsection 54(1), the hearing officer imposed a statutory penalty pursuant to MCL 169.215(6) 4 of a civil fine equal to the amount of the improper contribution plus an additional $1,000, totaling $62,651.50.
Respondent appealed the hearing officer’s order to the circuit court. 5 The circuit court heard oral argument in October 1998, and in September 1999 issued its opinion vacating the hearing officer’s order. 6 In its decision, the circuit court determined that the hearing officer’s order must be vacated because “it is not authorized by law, is arbitrary and capricious, and is not supported by competent, material and substantial evidence on the whole record.”
Specifically, the circuit court concluded that the term “forbearance” as used in the mcfa is unconstitutionally vague, “not because it does not have definite and well-recognized meanings but, rather, that there is no way to discern which particular meaning or meanings the Legislature intended to employ in the MCFA.” The circuit court found five distinct definitions *115 in Black’s Law Dictionary (revised 6th ed) and twо distinct definitions in Webster’s New World Dictionary, Second College Edition (1980). According to the circuit court, the Secretary of State “failed to give corporations proper notice of its expectations of lawful corporate conduct in avoiding even the appearance of forbearance on debts owed by political committees.” 7 The circuit court concluded that the failure to adopt a rule further defining forbearance precludеd enforcement based on illegal forbearance and that, in the absence of administrative guidance, the hearing officer’s interpretation of forbearance was arbitrary and capricious. The circuit court also found that the hearing officer’s decision was based on insufficient evidence of respondent’s specific purpose to influence the electoral process, as subsection 4(1) requirеs, that the hearing officer never even posed the question whether respondent had the requisite intent, and that the testimony of Allan Short indicated that respondent had other reasons for not insisting on immediate payment of the debt. Because the hearing officer made no finding whether the “forbearance” was for “an illicit purpose,” the circuit court found that the mcfa was not enforced as written. Petitioners now appеal by leave granted the circuit court’s order vacating the hearing officer’s order.
We first address petitioners’ argument that the circuit court erred in holding that the mcfa’s prohibition against corporate political contributions in the form of forbearance is unconstitutionally vague. The constitutionality of a statute is a question of law that this
*116
Court reviews de novo.
Tolksdorf v Griffith,
“The ‘void for vagueness’ doctrine is derived from the constitutional guarantee that the state may not deprive a person of life, liberty, or property, without due process of law.”
State Treasurer v Wilson (On Remand),
A statute may qualify as void for vagueness if (1) it is overbroad and impinges on First Amendment freedoms, (2) it does not provide fair notice of the conduct it regulates, or (3) it gives the trier of fact unstructured and unlimited discretion in determining whether the statute has been violated. [Proctor, supra at 467, citing Ray Twp v B & BS Gun Club,226 Mich App 724 , 732;575 NW2d 63 (1997).]
See also
Hill v Colorado,
To determine whether a statute is void for vagueness, a court should examine the entire text of the statute and give the words of the statute their ordinary meanings.
People v Piper,
In addition to this general framework for analyzing whether a statute is unconstitutionally vague, a heightened level of scrutiny is required because the MCFA implicates free speech.
8
Our Supreme Court has stated, in the context of the similar overbreadth doctrine,
9
that when a statute restricts political expression, which occupies the core of First Amendment protection, it will be subjected to exacting scrutiny and will be upheld only if it is narrowly tailored to serve a compelling state interest.
In re Chmura,
In the present case, petitioners argue on appeal that the circuit court erred in holding that the prohibition against corporate political contributions in the form of forbearance is unconstitutionally vague. In response, respondent maintains that the circuit court correctly determined that “forbearance” is unconstitutionally vague because it has multiple meanings and no guidance is provided concerning what conduct is proscribed. Keeping the above principles in mind, we conclude that the circuit court erred in vacating the hearing officer’s order because there is no constitutional infirmity in the mcfa with respect to the term “forbearance” and its meaning with respect to corporate political contributions.
*119 Subsection 54(1) of the mcfa prohibits corporations from making a “contribution,” 10 as that word is defined in subsection 4(1) of the act:
“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.
The point of contention in the present case is the alleged vagueness of the word “forbearance.” Because the mcfa does not define “forbearance,” that word should be construed according to its ordinary meaning. MCL 8.3a;
11
Town & Country Dodge, Inc v Dep’t of Treasury,
Having reviewed the entire statute, paying particular attention to the subsections in question here, we find that the term “forbearance” as used in the mcfa is not unconstitutionally vague. A word used in a statute need not have but a single meaning to pass constitutional muster. Subsection 4(1) provides a litany of concepts that equate to a contribution for the purposes of the mcfa, and thus it is not difficult to glean from the statute that a broad interpretation of the word “forbearance” is intended. Here, it is abundantly clear from the context in which “forbearance” appears that the Legislature’s intent was to prevent a corporation from conferring something of monetary value for a prohibited purpose, which encompasses many dictionary definitions of the word forbearance. This intent is particularly clear in light of the words that forbearance is directly associated with in the definition of contribution.
State ex rel Wayne Co Prosecuting Attorney v Levenburg,
Further, we reject the circuit court’s conclusion that petitioners’ failure to promulgate or adopt a rule farther defining “forbearance” precludes enforcement based on illegal forbearance. First, we have concluded that use of the word “forbearance” in the MCFA is not unconstitutionally vague, and therefore further definition is not necessary, although not precluded. Moreover, although the Secretary of State has the power and duty to promulgate rules enforcing the statute and carrying out its provisions, MCL 169.215(l)(e), this Court has recognized that “an administrative agency need not always promulgate rules to cover every conceivable situation before enforcing a statute.”
DAIIE v Comm’r of Ins,
Petitioners also argue that the circuit court erred in concluding that the hearing officer’s decision was not supported by competent, material, and substantial evidence. With regard to an appellate court’s review of a circuit court’s review of an administrative agency decision, in
Boyd v Civil Service Comm,
that when reviewing a lower court’s review of agency action this Court must determine whether the lower court applied correct legal principles and whether it misapprehended or *123 grossly misapplied the substantial evidence test to the agency’s factual findings. This latter standard is indistinguishable from the clearly erroneous standard of review that has been widely adopted in Michigan jurisprudence. As defined in numerous other contexts, a finding 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.
“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.”
Miсhigan Ed Ass’n Political Action Committee v Secretary of State,
Here, the evidence presented before the hearing officer unquestionably established that respondent made a contribution in the form of a forbearance to the committee. No matter how respondent’s conduct is parsed, respondent gave something of value to the committee without receiving payment for it for an extended period. In faсt, the circuit court acknowledged that the circumstances in the present case are “certainly forbearance according to some definitions.” However, as the circuit court recognized, the inquiry with regard to whether a violation of the MCFA occurred does not end at this point. To meet the definition of a contribution pursuant to subsection 4(1), the forbearance must have been given for a specific purpоse. The relevant purposes, as defined in subsection 4(1), are for “influencing the nomination or election of a candidate, or for the qualification, passage, or defeat of a ballot question.” The hearing officer made no findings of fact concerning respondent’s purpose. According to the circuit court, this omission *124 was the “gravest flaw” of the hearing officer’s decision. The circuit court felt that there was no еvidence at all on this point, stating that “[t]he question [whether respondent had any political motive, let alone the specific purpose of influencing the electoral process] was not even posed much less resolved in [the] proceedings below.”
It might be inferred that the transfer of the polling information to the politically oriented committee could be for no purpose other than to influence in somе way an election or ballot question. However, the hearing officer never expressly stated whether he made such an inference. As a result, it is not apparent from the record whether the hearing officer neglected to consider this “purpose” requirement of subsection 4(1) or did in fact make such an inference before concluding that respondent violated subsection 54(1) by making a prohibited contribution. Thus, it appears that further factual findings are necessary. Because fact finding is within the province of the administrative agency, see
Gordon v Bloomfield Hills,
Affirmed in part, reversed in part, and remanded to the circuit court with direction to remand to the hearing officer for further proceedings consistent with this opinion. We do not retain jurisdiction.
Notes
The Michigan House Democratic Fund, fоrmerly known as Hope for the Future of Michigan.
2 This text, with the omission of case citations, is directly quoted from the hearing officer’s decision that in turn quotes Black’s Law Dictionary (rev 6th ed).
3 This text is directly quoted from the hearing officer’s decision that quotes Webster’s New World, Dictionary, Second College Edition (1980).
Now MCL 169.215(11).
The final decision and order of the Secretary of State is subject to judicial review pursuant to chapter 6 of the Administrative Procedures Act, MCL 24.301 to 24.306. MCL 169.215(6), now (12).
A final order consistent with the circuit сourt’s opinion was entered on January 27, 2000.
See MCL 169.215(l)(e) (the Secretary of State shall “[promulgate rules and issue declaratory rulings to implement this act . . . see also MCL 169.215(2).
The mcfa involves the regulation of conduct that the First Amendment protects.
Austin v Michigan Chamber of Commerce,
With regard to the distinction between vagueness and overbreadth, this Court has noted:
Although both the void-for-vagueness and overbreadth doctrines are concerned with curbing arbitrary and discriminatory enforcement, they are nonetheless distinct jurisprudential concepts. When freedom of speech is implicated, the doctrines even more closely parallel еach other, given that each is also concerned with the possibility that a statute or ordinance might impermissibly chill the freedom of expression. [Plymouth Charter Twp v Hancock,236 Mich App 197 , 199-200;600 NW2d 380 (1999) (citations omitted).]
We note that the United States Supreme Comt already held “that application of [subsection] 54(1) to the Chamber [of Commerce] is constitutional because the provision is narrowly tailored to serve a compelling state interest.”
Austin v Michigan Chamber of Commerce,
MCL 8.3a provides:
All words and phrases [in statutes] shall be construed and understood according to the common and approved usage of the language; but technical words and phrases, and such as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.
Having determined that the term “forbearance” as used in the mcfa is not unconstitutionally vague and that the lаck of rules further defining that term does not preclude enforcement based on forbearance, it follows that the hearing officer’s decision was neither arbitrary and capricious nor unauthorized by law on those bases. To the extent that respondent argues on appeal that petitioners arbitrarily enforced the mcfa in this case, we agree with the circuit court that respondent failed to demonstrate arbitrary enforcement.