Dep't of Envtl. Quality v. Morley, Docket No. 323019.

314 Mich.App. 306

885 N.W.2d 892

DEPARTMENT OF ENVIRONMENTAL QUALITY

v.MORLEY.

Docket No. 323019.

Court of Appeals of Michigan.

Submitted Dec. 2, 2015, at Lansing.

Decided Dec. 15, 2015.

Approved for publication Feb. 9, 2016, at 9:00 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Matthew Schneider, Chief Legal Counsel, and Daniel P. Bock, Assistant Attorney General, for plaintiff.

Braun Kendrick Finkbeiner PLC, Saginaw (by Frederick C. Overdier ) for defendant.

Before: SAAD, P.J., and STEPHENS and O'BRIEN, JJ.

PER CURIAM.

Defendant Jack O. Morley appeals as of right the final order of the circuit court granting judgment in favor of plaintiff, the Michigan Department of Environmental Quality (DEQ). We affirm.

The DEQ filed a complaint against defendant seeking an injunction and civil fines for defendant's dredging, filling, and draining, and maintaining a use on property alleged to be a wetland, contrary to Part 303 of the Natural Resources and Environmental Protection Act (NREPA), MCL 324.30301 et seq., which was in effect in 2009.¹ Following a bench trial, the trial court entered judgment in favor of the DEQ, ruling that 92.3 acres of defendant's 106.5–acre property was wetland and that defendant's activities violated Part 303. The court ordered him to remove 4.1 acres of fill material; restore that acreage to its prior condition; cease all Part 303 violations, including farming on all acreage designated as wetland; and pay the DEQ a statutory fine of $30,000.

Defendant first argues that the trial court erred by granting the DEQ's motion to strike his demand for a jury trial. We disagree.

Defendant preserved this issue by filing a demand for jury trial. Moody v. Home Owners Ins. Co., 304 Mich.App. 415, 444, 849 N.W.2d 31 (2014). Whether defendant was entitled to a jury trial for a complaint seeking an injunction and civil fines under Part 303 is an issue of constitutional law, which we review de novo. Elba Twp. v. Gratiot Co. Drain Comm'r, 493 Mich. 265, 277–278, 831 N.W.2d 204 (2013).

The Michigan Constitution provides that the “right of trial by jury shall remain....” Const. 1963, art. 1, § 14. “Thus the right to trial by jury is preserved in all cases where it existed prior to adoption of the Constitution.”

Conservation Dep't v. Brown, 335 Mich. 343, 346, 55 N.W.2d 859 (1952). Further, the “constitutional guaranty applies to cases arising under statutes enacted subsequent to adoption of the Constitution, which are similar in character to cases in which the right to jury trial existed before the Constitution was adopted.” Id. Because there is no historical right to a jury trial in Michigan when the relief sought is equitable in nature—as in this case, in which the DEQ sought declaratory relief—defendant was not entitled to a jury trial. Id. at 347, 55 N.W.2d 859 ; Gelman Sciences, Inc. v. Fireman's Fund Ins. Cos., 183 Mich.App. 445, 449–450, 455 N.W.2d 328 (1990). See also Wolfenden v. Burke, 69 Mich.App. 394, 399, 245 N.W.2d 61 (1976) (stating that there is no historical, constitutional guarantee of a jury trial where the relief sought was equitable in nature).

In general, MCL 324.30306 prohibits a person from depositing fill into, dredging soils from, maintaining any use or development on, or draining surface water from a wetland unless the DEQ issues a permit to do so. Under MCL 324.30316(1) and (4), a trial court may restrain a violation of MCL 324.30306, impose a civil fine, and order restoration of the affected wetland. Part 303 was enacted after ratification of the 1908 and 1963 Michigan Constitutions, and there is no evidence that a cause of action based on the activities listed in Part 303 was known to Michigan's legal system when the Constitution was adopted.² Because wetland protection is not a cause of action known to the common law, but is instead a new cause of action created by statute, there is no constitutional right to a jury trial, Brown, 335 Mich. at 349–350, 55 N.W.2d 859, even though the statute also provides for monetary damages, see Madugula v. Taub, 496 Mich. 685, 696–698, 853 N.W.2d 75 (2014) (holding that the defendant was not entitled to a jury trial for an action brought under the Business Corporation Act for alleged violations of the shareholder-oppression provisions of the act, even though the statute also provided for damages as a remedy).

Defendant argues that because the DEQ's claims against him would also be a misdemeanor punishable by a fine if the state proved intent, the state was required to prove to a jury that defendant purposefully or voluntarily deposited or permitted the placement of fill material in a known regulated wetland. In addition to providing for a civil lawsuit, Part 303 also provides that a person who violates MCL 324.30306 is guilty of a misdemeanor and subject to a fine. MCL 324.30316(2) and (3). However, the DEQ only filed a civil action against defendant; it did not seek to criminally prosecute him. Therefore, it is irrelevant that the statute provides for criminal liability.³

We also reject defendant's argument that federal law rather than state law governs whether a defendant is entitled to a jury trial. The United States Constitution guarantees the right to a jury trial in civil trials, U.S. Const. Am. VII, and the Bill of Rights applies only to the federal government, except where the Fourteenth Amendment applies fundamental, substantive rights to the states, McDonald v. City of Chicago, 561 U.S. 742, 759–760, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). See also Hardware Dealers' Mut. Fire Ins. Co. of Wis. v. Glidden Co., 284 U.S. 151, 158, 52 S.Ct. 69, 76 L.Ed. 214 (1931) (holding that “[t]he Fourteenth Amendment neither implies that all trials must be by jury, nor guarantees any particular form or method of state procedure” and that “a state may choose the remedy best adapted, in the legislative judgment, to protect the interests concerned, provided its choice is not unreasonable or arbitrary, and the procedure it adopts satisfies the constitutional requirements of reasonable notice and opportunity to be heard”). Further, our Supreme Court has recognized that “[t]he Constitution of the United States does not confer a federal constitutional right to trial by jury in state court civil cases.” McKinstry v. Valley Obstetrics–Gynecology Clinic, PC, 428 Mich. 167, 183, 405 N.W.2d 88 (1987). Accordingly, Michigan law controls whether defendant was entitled to a jury trial in the instant civil action brought under Part 303, and Part 303 does not provide for a jury trial for any violation of the statute. Therefore, we conclude that defendant's reliance on Tull v. United States, 481 U.S. 412, 422, 107 S.Ct. 1831, 95 L.Ed.2d 365 (1987), in which the Court held that the United States Constitution provides a right to a jury trial in actions brought under the federal Clean Water Act when a monetary fine is an element of the relief requested, is misplaced because the federal law requirement does not apply to actions alleging violations of Part 303.

Defendant next asserts that the trial court erred by admitting certain testimony and evidence. We conclude otherwise.

We review for an abuse of discretion a trial court's decision to admit evidence. Barnett v. Hidalgo, 478 Mich. 151, 158–159, 732 N.W.2d 472 (2007). “An abuse of discretion occurs when the decision results in an outcome falling outside the range of principled outcomes.” Id. at 158, 732 N.W.2d 472. We review for plain error affecting substantial rights those evidentiary issues that were not preserved by objection below. Hilgendorf v. St. John Hosp. and Med. Ctr. Corp., 245 Mich.App. 670, 700, 630 N.W.2d 356 (2001).

Defendant argues that DEQ witnesses were erroneously allowed to establish wetland jurisdiction, as defined by MCL 324.30301(1)(m), without a proper foundation. Because he did not preserve this issue by objection below, our review is limited to plain error affecting substantial rights. Id.

MRE 702 allows opinion testimony by an expert if “(1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” The trial court has the fundamental duty of ensuring that all expert opinion testimony is reliable. Gilbert v. DaimlerChrysler Corp., 470 Mich. 749, 781, 685 N.W.2d 391 (2004). Accordingly, “the court may admit evidence only once it ensures, pursuant to MRE 702, that expert testimony meets that rule's standard of reliability.” Id. at 782, 685 N.W.2d 391. See also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147–149, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (holding that the trial court's basic gatekeeping obligation applies to all expert testimony, including technical and other specialized knowledge).

Defendant argues that the trial court ignored the portion of the definition of wetland, as set forth in MCL 324.30301(1)(m), that a wetland “is commonly referred to as a bog, swamp, or marsh” because there was no direct expert testimony about the definition of those words. This claim is without merit. The categorization of the property as wetland was supported by the results from the site inspection in September 2009 and the expert conclusions by DEQ expert witnesses Kip Cronk, Cathy Sleight, Justin Smith, Todd Losee, and Chad Fizzell that defendant's property contained 92.3 acres of wetland. Further, there is no evidence on the record that supports defendant's assertion that the trial court failed to recognize the lack of evidence related to the Part 303 wetland definition regarding the property being commonly referred to as a bog, swamp, or marsh. Sleight testified that as set forth in Part 303, the term “wetland” commonly refers to a bog, swamp, or marsh, and Losee referred to the statutory definition of wetland when he opined that portions of the property were marsh and portions were swamp. Moreover, Losee, who was...