                          STATE OF MICHIGAN

                           COURT OF APPEALS



DEPARTMENT OF ENVIRONMENTAL                                         UNPUBLISHED
QUALITY,                                                            May 10, 2018

               Plaintiff/Counter-Defendant-
               Appellee,

v                                                                   No. 338497
                                                                    Livingston Circuit Court
PATRICK JAY CONELY, doing business as                               LC No. 12-026969-CE
SUPERIOR SANITATION,

               Defendant/Counter-Plaintiff-
               Appellant.


Before: SHAPIRO, P.J., and M. J. KELLY and O’BRIEN, JJ.

PER CURIAM.

        Defendant appeals the trial court’s order finding him in civil contempt for failure to
comply with several orders. The orders were entered in plaintiff’s action against him under the
Natural Resources and Environmental Protection Act (NREPA), MCL 324.101 et seq., and
required him to cease unpermitted waste operations and implement several response activities.
For the reasons set forth below, we affirm.

                                            I. FACTS

        Plaintiff, the Department of Environmental Quality (DEQ), initiated an action against
defendant in July 2012, alleging several NREPA violations and public nuisance. Plaintiff
alleged that defendant engaged in “illegal, unpermitted or unlicensed operations at multiple
locations in Livingston County during the last 25 years” through his operation of Superior
Sanitation, a waste hauling business. Plaintiff sought a permanent injunction to enjoin
defendant’s conduct, and to require him to engage in several remedial actions. After roughly
two-and-a-half years of litigation, the trial court granted partial summary disposition in favor of
plaintiff in a series of orders that required defendant to cease all unpermitted waste operations,
apply for and obtain permits, implement several response activities, pay plaintiff’s incurred
response activity costs, and pay attorney fees in accordance with the NREPA.

       Thereafter, an inspection conducted at one of defendant’s waste sites in May 2015,
revealed that defendant continued to engage in active operations amounting to both new and


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previously raised violations of the NREPA. In October 2016, plaintiff initiated civil contempt
proceedings in an ex-parte motion seeking an order for defendant to show cause. Plaintiff
alleged that defendant had failed to comply with any of the conditions of the trial court’s orders,
and supported the allegations with an affidavit from its employee who had inspected defendant’s
waste sites. The court granted the motion and set the matter for a hearing. Defendant received
personal service of the order on November 4, 2016.

        After an unsuccessful attempt to remove the case to federal court,1 defendant appeared in
propria persona at the contempt hearing on November 17, 2016, which was held before a
visiting judge. Defendant explained that his noncompliance was due to his company “basically”
becoming defunct, lack of funds, his attorney having diabetes, and his wife having control of all
his assets due to a divorce proceeding. Defendant further claimed that his son was taking over
his business, that his assets were encumbered with tax liens, and that he was under financial
distress. However, he did not dispute that the impermissible operations continued; rather, he
asserted that he had no control over the individuals who were engaging in them.

        The visiting judge found that there had been a contempt of court, noting that “it’s pretty
clear the operations are going on and [defendant has] the power to stop it.” The court ordered
defendant to complete several specifically enumerated actions by January 9, 2017. The court
additionally ordered that defendant would be held in civil contempt, fined $500 per day up to the
maximum of $7,500 until he complied with the court’s orders, and receive a jail sentence of 30
days in the event of noncompliance by January 9, 2017.

        Defendant filed a motion for reconsideration, arguing that he did not receive adequate
due process in the contempt proceedings. A hearing was scheduled for January 12, 2017.
Plaintiff submitted a status report to the trial court on January 11, 2017, alleging that defendant
had “done absolutely nothing” to comply with the court’s orders. The report included four
affidavits from plaintiff’s employees. The affidavits revealed that defendant continued to engage
in impermissible waste operations, failed to submit a plan for responsive activities, and failed to



1
  On November 15, 2016, defendant, acting in propria persona, filed a notice of removal to the
United States District Court for the Eastern District of Michigan, asserting federal jurisdiction
based on both diversity of citizenship and federal question, but the federal court promptly
granted plaintiff’s motion to remand the case back to the circuit court. See Dep’t of
Environmental Quality v Conely, unpublished order of the United States District Court for the
Eastern District of Michigan, entered November 17, 2016 (File No. 16-CV-14047), pp 2-3. The
federal district court noted that, considering the timing of defendant’s attempted removal and his
previous attempt to remove the case to federal court, see Dep’t of Environmental Quality v
Conely, unpublished order of the United States District Court for the Eastern District of
Michigan, entered September 4, 2013 (File No. 13-13673), “It thus appears that [d]efendant
improperly removed this case in an effort to avoid the contempt hearing, and the [c]ourt views
such gamesmanship as completely inappropriate and vexatious.” Dep’t of Environmental
Quality v Conely, unpublished order of the United States District Court for the Eastern District of
Michigan, entered November 17, 2016 (File No. 16-CV-14047), pp 2-3.



                                                -2-
apply for and obtain required permits. All of these acts and omissions constituted violations of
the court’s order of contempt. Following the January 12, 2017 hearing, the trial court denied
defendant’s motion for reconsideration. On April 28, 2017, after conducting an evidentiary
hearing to determine fines, fees, and damages, the trial court entered a final judgment awarding
plaintiff $3,642,374.27, representing $176,042.40 in incurred response activity costs; $2,000,000
in civil fines under MCL 324.11501 et seq.; $1,095,000 in civil fines under MCL 324.20101 et
seq.; $100,000 in civil fines under MCL 324.3101 et seq.; and $271,331.87 in attorney fees.
Defendant appeals, challenging only the propriety of the civil contempt proceedings.

                                         II. DISCUSSION

                                        A. DUE PROCESS

       On appeal, defendant first argues that his constitutional right to due process was violated
because he did not have adequate time to prepare a defense before the show-cause hearing was
held. We disagree.2

       No person may be deprived of life, liberty, or property without due process of law. US
Const, Am V; US Const, Am XIV; Const 1963, art 1, § 17. The fundamental requisite of due
process is the opportunity to be heard. Bullington v Corbell, 293 Mich App 549, 556; 809 NW2d
657 (2011). The concept of due process is flexible, “the essence of which is to ensure
fundamental fairness.” Reed v Reed, 265 Mich App 131, 159; 693 NW2d 825 (2005).
“Procedure in a particular case is constitutionally sufficient when there is notice of the nature of
the proceedings and a meaningful opportunity to be heard by an impartial decision maker.” Id.

        “When any contempt is committed other than in the immediate view and presence of the
court, the court may punish it by fine or imprisonment, or both, after proof of the facts charged
has been made by affidavit or other method and opportunity has been given to defend.” MCL
600.1711(2). In such a case, “on a proper showing on ex parte motion supported by affidavits,”
the court must either “(1) order the accused person to show cause, at a reasonable time specified
in the order, why that person should not be punished for the alleged misconduct; or (2) issue a
bench warrant for the arrest of the person.” MCR 3.606(A). Civil contempt sanctions “may be
imposed in an ordinary civil proceeding upon notice and an opportunity to be heard.” Int’l



2
  Defendant failed to properly preserve his due process claim on appeal. Although he first raised
his due process claim in a motion for reconsideration, however, “[w]here an issue is first
presented in a motion for reconsideration, it is not properly preserved.” Therefore, our review is
for plain error affecting substantial rights. Kern v Blethen-Coluni, 240 Mich App 333, 336; 612
NW2d 838 (2000). Forfeiture under the plain error rule is avoided where: “1) error must have
occurred, 2) the error was plain, i.e., clear or obvious; 3) and the plain error affected substantial
rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). “The third requirement
generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower
court proceedings.” Carines, 460 Mich at 763.



                                                -3-
Union, United Mine Workers of America v Bagwell, 512 US 821, 827; 114 S Ct 2552; 129 L Ed
2d 642 (1994). “Neither a jury trial nor proof beyond a reasonable doubt is required.” Id.

      In In re Contempt of Robertson, 209 Mich App 433, 438-439; 531 NW2d 763 (1995), this
Court summarized the requirements applicable to civil contempt proceedings for contempt
committed outside the presence of the court:

       [P]unishment for any contempt committed outside the presence of the magistrate
       may be imposed, as in other civil cases, only after proof of the facts charged are
       made by affidavit or other method and an opportunity has been given to defend.
       It is well established that when a contempt is committed outside the presence of
       the court, the law requires that the accused be advised of the charges against him,
       afforded a hearing regarding those charges, and given a reasonable opportunity to
       meet the charges by defense of explanation. These minimal due process
       safeguards require that an accused be given a reasonable time in which to prepare
       a defense to the contempt charge. . . .

              Contempt proceedings for contempts committed outside the immediate
       view and presence of the magistrate must be initiated through an ex parte motion
       supported by an affidavit of facts showing the alleged contemptuous conduct.
       The rules of evidence apply at the hearing regarding the contempt charges. The
       standard of proof is more stringent than in other civil actions: proof of contempt
       must be clear and unequivocal. [Citations omitted.]


        Defendant relies on Robertson for the general proposition that because his alleged
contempt was committed outside the presence of the court, he was entitled to a reasonable time
to prepare and offer a defense. In Robertson, 209 Mich App at 435-436, a magistrate presiding
over a workers’ compensation proceeding held an expert witness in contempt for failing to
appear when he was under subpoena. The court conducted a summary proceeding, “[w]ithout
holding a hearing to determine the reason” for the witness’s failure to appear. Id. at 439. This
Court explained that summary proceedings were improper when the alleged contempt occurred
outside of the immediate presence of the court because “[a]ll the facts necessary to find contempt
were not . . . within the personal knowledge of the judge . . . .” Id. at 441. Rather, a hearing was
required. Id. at 438-439.

        In this case, however, defendant was afforded a show-cause hearing and had the
opportunity to be heard. Plaintiff properly initiated the contempt proceedings via ex parte
motion to show cause, supporting it with an affidavit, and the trial court properly scheduled a
hearing for which defendant received personal service. MCL 600.1711(2); MCR 3.606(A)(1).
Defendant received personal service of the order on November 4, 2016, and he filed a 50-page
notice of removal to federal district court on November 15, 2016. Defendant’s claim that he did
not have adequate time to prepare a defense is belied by the fact that he spent most of his time
preparing his in-depth notice of removal.

     Defendant’s assertion that he was served “only days” before the court’s hearing on
November 17 is misleading because he was, in fact, personally served on November 4, i.e., 13



                                                -4-
days before the hearing to show cause. Defendant has failed to establish that he received
inadequate notice to allow him to prepare a defense. Defendant was afforded almost two weeks
to prepare his defense before the show-cause hearing was held. It appears that rather than defend
against the contempt proceedings in the circuit court, defendant elected to pursue what he should
have reasonably known to be a frivolous removal to federal district court.

        Accordingly, defendant has failed to establish his claim that he was denied his
constitutional right to due process of law.

        B. PRESENCE OF A VISITING JUDGE AT THE SHOW-CAUSE HEARING

        We also reject defendant’s argument that it was error for a visiting judge to preside over
the show-cause hearing.3 Defendant relies on Cross Co v UAW Local No 155, 377 Mich 202,
212; 139 NW2d 694 (1966), for the proposition that “[t]he judge who presided over the
proceedings in the context of which the indirect contumacious conduct occurred should preside
over the contempt proceedings.” In Cross, the Michigan Supreme Court briefly discussed
whether “there is an overriding element of public policy that would require trial of a contempt
proceeding by another judge.” Id. In holding that there is no requirement to transfer a contempt
matter to a visiting judge, the Court explained:

       In some cases transfer might be appropriate, but the matter is one for the sound
       discretion of the judge handling the original proceeding. Can the charge of
       contempt be readily separated from that proceeding? To what extent is there
       danger the judge may find himself acting as an inquisitor rather than as an
       impartial judge? Will the contempt proceeding be unduly delayed by transfer? Is
       another judge readily available? These are a few of the questions to be weighed
       and considered. [Cross, 377 Mich at 212 (citations omitted).]


        The Cross discussion does not support defendant’s claim of error since the Court’s
questions there pertained to whether the lower court should have transferred the contempt matter.
Moreover, the Cross Court expressly stated that the decision “is one for the sound discretion of
the judge handling the original proceeding.” Cross, 377 Mich at 212.

       Defendant further contends that because no evidence was presented at the show-cause
hearing, but merely argument of counsel, the visiting judge “was not the proper person to hear
this Show Cause hearing” and that an evidentiary hearing was required. We disagree. MCL
600.1711(2) allows the trial court to impose contempt sanctions “after proof of the facts charged
has been made by affidavit or other method and opportunity has been given to defend,” i.e.,
“upon notice and an opportunity to be heard,” Bagwell, 512 US at 827. Additionally, MCR

3
  This issue is unpreserved because defendant did not raise it in the court below. People v
Metamora Water Serv Inc, 276 Mich App 376, 382; 741 NW2d 61 (2007) (“For an issue to be
preserved for appellate review, it must be raised in the lower court.”). Therefore, our review is
for plain error affecting substantial rights. Kern, 240 Mich App at 336.



                                               -5-
3.606(A)(1) provides the trial court with authority to “order the accused person to show cause, at
a reasonable time specified in the order, why that person should not be punished for the alleged
misconduct,” when the contempt is committed outside of the tribunal. Defendant has therefore
failed to establish that he was entitled to a formal evidentiary hearing. Nonetheless, before
issuing its final judgment, the court subsequently held two hearings, including an evidentiary
hearing to determine fines, attorney fees, and damages. Accordingly, defendant has failed to
identify either plain error or resulting prejudice.

                               C. CONFRONTATION CLAUSE

       Defendant claims that his Sixth Amendment right to confrontation was violated because
he did not have the opportunity to cross-examine the affiant who inspected the properties and
whose testimony supported initiation of the contempt proceedings. We disagree.

        The Sixth Amendment of the United States Constitution provides, “In all criminal
prosecutions, the accused shall enjoy the right to . . . be confronted with the witnesses against
him . . . .” US Const, Am VI. “The Confrontation Clause does not apply to civil proceedings.”
Hinky Dinky Supermarket, Inc v Dep’t of Community Health, 261 Mich App 604, 607; 683
NW2d 759 (2004), citing In re Brock, 442 Mich 101, 108; 499 NW2d 752 (1993). With respect
to the implications of a civil contempt proceeding, the United States Supreme Court has
explained that, unlike criminal contempt penalties,

       civil contempt sanctions, or those penalties designed to compel future compliance
       with a court order, are considered to be coercive and avoidable through
       obedience, and thus may be imposed in an ordinary civil proceeding upon notice
       and an opportunity to be heard. Neither a jury trial nor proof beyond a reasonable
       doubt is required. [Bagwell, 512 US at 827.4]

        The proceedings here are civil, not criminal. Although in some circumstances civil
contempt proceedings may be appropriately characterized as criminal in nature where the
sentences imposed are “in the nature of punishment for offenses committed, not to enforce the
performance of an act,” Cross, 377 Mich at 210, the possible penalties imposed here—i.e., fines
and a jail sentence in the event of noncompliance by a certain date—largely concerned the
enforcement of defendant’s performance of several acts. Though the court’s orders both forbade
certain acts that defendant continued to engage in (i.e., continued waste operations), and
compelled specific action that defendant did not take (i.e., implement response activities),
defendant has not articulated a basis for concluding that his contempt proceedings were the
equivalent of a criminal prosecution. Defendant’s continued actions were indeed punished with


4
  See also Santibanez v Wier McMahon & Co, 105 F3d 234, 242 (CA 5, 1997) (Sixth
Amendment considerations do not apply to a civil contempt action because the amendment only
applies to criminal proceedings.). Although the opinions of lower federal courts are not binding
authority, but they may be considered for their persuasive value. Abela v Gen Motors Corp, 469
Mich 603, 606-607; 677 NW2d 325 (2004).



                                               -6-
contempt powers, but the discontinuance of those acts was a necessary prerequisite to the
affirmative acts he was required to take because he could not begin response activities until he
ceased the impermissible waste operations. Thus, the penalties were imposed to enforce the
performance of action that coincidentally involved inaction.

       Therefore, defendant has failed to establish that his Sixth Amendment right to witness
confrontation was violated during the court’s civil contempt proceedings.

       Affirmed.



                                                           /s/ Douglas B. Shapiro
                                                           /s/ Michael J. Kelly
                                                           /s/ Colleen A. O'Brien




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