TRAVERSE CITY -- Alan Schneider won this round, but Grand Traverse County's prosecutor must wait to restart a criminal investigation of campaign finance violations committed by Meijer, Inc.
A Michigan Court of Appeals panel overturned a local court ruling in an opinion released late Friday and said Schneider has jurisdiction to investigate alleged felonies in two Acme Township elections.
Schneider's probe is delayed, though, because Meijer has 42 days to decide whether to file an appeal.
"Regardless of whether or not there is a stay, at least at this point we know we can go forward with an investigation," Schneider said. "I'm going to look at individuals involved in orchestrating the opposition to the recall, but it's too early to name names."
Meijer attorney John Pirich called the appeals court's unanimous opinion "erroneous," and said Meijer will consider appealing to the Michigan Supreme Court or asking the appeals court to reconsider.
"We'll conduct our own analysis, then decide what remedies we should pursue," Pirich said Saturday.
Meijer's acts exposed
Schneider asked state police in January 2008 to investigate possible felonies after details emerged of Meijer's secret role in financing a 2007 recall campaign that targeted the Acme Township Board of Trustees.
Meijer's actions came to light during then-township Treasurer Bill Boltres' lawsuit against the retailer.
That probe stalled in April 2008, when 13th Circuit Court Judge Philip Rodgers quashed Schneider's subpoenas for documents and testimony from Meijer officials and their former attorneys at Dickinson Wright PLLC.
Rodgers said Michigan's secretary of state had sole authority to investigate and resolve campaign finance violations.
Rodgers expressed frustration with a law that he said forced his hand and later said he hoped the appeals court overturned his decision.
Appeals Judges Elizabeth L. Gleicher, Kathleen Jansen and Karen M. Fort Hood granted his wish. They ruled the law's "plain legislative intent" was to create two distinct methods of enforcement -- civil for the secretary of state, and criminal for the state attorney general and county prosecutors.
"The secretary of state's broad powers to investigate, conciliate, and remediate election law infringement, and to assess civil fines, simply does not establish in the secretary exclusive jurisdiction with respect to the criminal provisions," Gleicher wrote for the three-judge panel.
Meijer officials in 2008 acknowledged violating state campaign finance laws in Acme in 2005 and 2007. Secretary of State Terri Lynn Land assessed Meijer $190,000 in fines and costs in an agreement that Attorney General Mike Cox subsequently said precluded a criminal investigation.
"Because the secretary of state possesses no legal authority to address criminal liability in a conciliation agreement, we reject that this statutory language bars the prosecutor from investigating felony charges," Gleicher wrote.
Case to resume in January?
Schneider said he believes the ruling's "depth of analysis" will stand up to further appeal.
"Judge Gleicher eliminated some of the extraneous arguments and got right to the point," Schneider said. "Unless it says prosecutors can't prosecute, then that's not what it means. It's almost complex in its simpleness, and I think it's going to be hard for any judges to disagree."
The decision went further than Schneider envisioned when it said the Land-Meijer conciliation agreement did not preclude a criminal investigation, as Cox had maintained.
"I didn't expect the court of appeals to take that issue up, but from my point of view it does save us a trip, because that would be an issue that would have been raised," Schneider said.
Schneider expects Meijer to ask the Supreme Court to continue the stay while it decides on the appeal. He'll oppose that move and said it's possible he could get back to work in January.
Development leads to lawsuits, settlements
Meijer's battle with Acme officials dates to 2004, when newly elected township board members and a local citizens group opposed a sprawling development dubbed the Village of Grand Traverse that was to be anchored by a Meijer store.
The Village project spawned lawsuits that eventually led to Boltres' suits against Meijer and the Village. Meijer paid Boltres an undisclosed sum to settle their suit in late 2007, and the Village this year also paid to settle with Boltres.
Also this year, Meijer paid five Acme township officials $1.5 million to settle lawsuits, and paid Concerned Citizens of Acme Township $75,000 for their promise to not sue the retailer.
Acme Trustee Ron Hardin, one of the five township officials who this year settled with Meijer, said he was pleased by the appeals court decision to reinstate Schneider's probe.
"If there is wrongdoing that needs to be criminally prosecuted, then he needs go forward," Hardin said. "Just because everybody else has walked away from this doesn't mean he shouldn't pursue it."
The investigation won't impact the township's review of the Village's recent application to build a Meijer store at M-72 and Lautner Road, Hardin said.
"The people putting this application forward are a different cast of people and I'm sure it would move forward, regardless of whether or not individuals at Meijer are charged with a crime," Hardin said. "Meijer is going to continue, the business will still exist."