[Property Rights] [Forensic Intelligence Hub-Page] [Jhéön & Associates, Stephen P. Dresch, Chairman]
MORE THAN A YEAR AFTER FINAL ARGUMENTS,
JUDGE HAS YET TO ISSUE OPINION; DEFENDANTS IN HIDING
Wednesday, January 08, 1997
The Honorable James R. Giddings
Circuit Court for the 30th Judicial Circuit
City Hall — Second Floor
Lansing, Michigan 48933
Ref: File No. 92-73245-AZ
Frank J. Kelley & Roland Harmes, Jr. vs.
Richard & Nancy Delene & Delene Contracting, Inc.
Officers and members of the Great Lakes Property Rights League, a private, nonprofit organization dedicated to the defense of rights of private property ownership as a central pillar of a free society, have monitored the above-referenced case for several years. Many of us have been aware of this matter since the commencement of proceedings in November 1992, and several have followed the situation since the Delenes first filed their state wetlands-permit application in 1990.
The purpose of this letter, authorized by the Board of Directors of the League, is two-fold: First, in the spirit of an amicus brief, we review briefly the origin, development and substantive issues of this case. Second, and more importantly, we question your delay in issuing a decision, now exceeding a year since final briefs were submitted, a delay which constitutes a substantive denial of the defendants’ due process rights.
In its origins (May 1990 to November 1992) this matter graphically confirms late U.S. Supreme Court Justice Felix Frankfurter’s characterization of administrative law as “that illegitimate exotic”:
Richard Delene filed an application for extension of an ongoing project initiated under permits from the U.S. Army Corps of Engineers. Questions were raised and answered. Time passed. An attorney opined that, in the absence of action on the application within 90 days of its filing, the permit had been awarded by act of law, and the applicant continued work on the project. The agency arbitrarily stipulated a date on which it deemed the application to have been “complete” and, just prior to the expiration of 90 days from that date, announced its denial of the permit. Various concessions were informally proposed to the landowner (invariably involving compromises of his property rights, e.g., the granting of State or public easements) in exchange for which he would receive his permits. Refusing to submit to bureaucratic extortion, the property owner rejected these proposals, and suit was filed against him, his wife and company.
Unfortunately, developments since this litigation commenced in November 1992 suggest that those qualities giving rise to Justice Frankfurter’s characterization of administrative law as an “illegitimate exotic” have penetrated into our judicial processes as well:
Non-, mis- and malfeasance by officers of the court, ostensibly representing the defendants, served very early to place those defendants in default, thus precluding any affirmative defense of their innocence, while incompetence and/or prevarication in the testimony and evidence arrayed against them, also constituting non-, mis- or malfeasance, have gone unchallenged and unsanctioned.
Throughout this entire process, it should be emphasized, no credible evidence of environmental damage or adverse environmental impact has been presented. On the one hand, we have the testimony and evidence of MDNR/MDEQ agents; the defendants have been prevented from exposing the questionable qualifications of these officials, the implausibility and internal contradictions of their evidence and the hidden agendas served by their testmony. On the other, we have the unanimously favorable evaluations not only of the many experts retained by the defendants, only one of whom has been able to testify in these proceedings, but also of the U.S. Soil Conservation Service, which recognized with an award the outstanding environmental contribution of the defendants’ project.
Contempt citations, arrest warrants and an armed assault on their home have led the defendants to flee the state in fear for their lives as well as liberties. For over four years the defendants have been effectively deprived of their property, their livelihood and their freedom, have been forced to incur staggering legal expenses and have been denied the most elemental opportunities for the pursuit of happiness, even attendance at a daughter’s wedding after an assistant attorney general notified their attorney that the event would be targeted for Richard Delene’s arrest.
In State of Michigan v. Bayshore Associates, Inc. (April 21, 1995) the Court of Appeals characterized the conduct of the DNR  as “that of a rogue agency wielding its extensive power to punish and harass a landowner for daring to insist on and asserting its constitutional and statutory rights.” Richard and Nancy Delene understand the Court’s observation only too well.
While more restrained in its language, a subsequent panel of the Michigan Court of Appeals, in K & K Construction, Inc., et al. v. Department of Natural Resources (June 4, 1996), resoundingly upheld the rights of property owners by awarding a total of $5,279,178 for the DNR’s refusal to grant a wetlands permit, resulting in the permanent taking of 27 acres and the temporary taking of 28 acres, and again the court emphasized the DNR’s duplicity in its dealings with the property owner and the court.
The Delene property on the Baraga Plains was assembled in a series of transactions involving a number of individual parcels. Those parcels of land principally at issue in this litigation were acquired specifically for, and have little value apart from, the wetlands’ habitat development which is at issue in this litigation. Although not undertaken for commercial gain or profit, the project, if completed, will greatly increase the market value of these parcels. Thus, as in K & K Construction, the actions of the Department of Natural Resources constitute a compensable taking under the Fifth Amendment of the Constitution of the United States and under Article 10, Section 2 of the Constitution of the State of Michigan of 1963.
Even if the Department were now to grant the permits, the Delenes would have been the victims of a prolonged and expensive temporary taking, which the Court of Appeals has also found to be compensable. If there is any substantive consistency (and justice) in the decisions of the Court of Appeals, the Delenes eventually will be compensated by the State for the trampling of their rights as citizens and private property owners -- that is, assuming that they live so long and have the resources to prosecute an appeal.
This brings us to the primary focus of this letter. We are not optimistic that your decision and final order will reflect our interpretation of these legal issues. However, your decision, even if it is adverse, is necessary if the defendants Richard and Nancy Delene are to have an opportunity to appeal. As long as the case languishes in your court, the defendants will continue to be deprived of their freedom and property and of any means of reclaiming either.
You have now had this matter before you for your final opinion for over a year, since the concluding hearing was held in November 1995 and final briefs were submitted in December 1995. We grant that this case raises weighty issues, but comparably weighty issues confront courts at all levels on a daily basis. The U.S. Supreme Court generally reaches decisions on even the most complex cases in less than one year. In the Detroit Tigers Fan Club suit to block unappropriated state Strategic Fund allocations to the construction of a new baseball stadium, a case of great interest to the political establishment of the state, you yourself were able to reach a decision on a serious constitutional question in a matter of days, moving that case on to the Court of Appeals.
Because your delay in the Delene case precludes the defendants’ access to the Court of Appeals, it constitutes an effective denial of substantive and procedural due process. Further, it encourages speculation that you are delaying only because you anticipate that, should this case reach the Court of Appeals, the defendants are likely to be vindicated; only by delaying, in the hope that the case will become moot or the defendants so financially depleted that they are unable to prosecute an appeal, will it be possible to avoid the overturning of a decision adverse to the defendants.
In Michigan and elsewhere, judicial actions which have the effect of denying a party due process are grounds for overturning a decision on appeal and for discimplinary action against the responsible judge.
Thus, in conclusion, we would note that we are reviewing alternative courses of action, including recourse to the Judicial Tenure Commission, which may be warranted should you persist in your refusal to discharge your responsibility to enter a final order in the matter of Kelley and Harmes v. Richard and Nancy Delene.
Stephen P. Dresch, President, Great Lakes Property Rights League
318 Cooper Avenue
Hancock, Michigan 49930
Tel./Fax (906)482-4899 — E-mail: email@example.com
James R. Piggush (P29221)
Donnelly W. Hadden (P14507)
1. Because the DNR was the plaintiff in these cases and is referenced by the courts, we continue to use this agency designation, although the wetlands’ and other regulatory environmental components of the DNR now constitute the Department of Environmental Quality. [Return to text.]
2. A third recent panel of the Michigan Court of Appeals also vindicated property rights in Miller Brothers v. Department of Natural Resources (1994). [Return to text.]
3. Those parcels were originally patented by the federal government to the state under the Swamp Lands Act of 1850. The Michigan Legislature authorized their transfer to private purchasers by Acts 31 P.A. 1858 and 106 P.A. 1857, mandating that the private purchasers discharge the State’s obligation to drain swamp and overflowed land, build levees and make them fit for cultivation. Act 106 P.A. 1857 further provided for prosecution for damages in the event of noncompliance with the reclamation mandate. All three of these acts remain in effect. [Return to text.]
4. In K & K Construction the Court of Appeals held that restrictions on development of wetlands did not inher in the title to the land. In this case, the issue is even clearer, in that development of wetlands was specifically required by the title. [Return to text.]
5. Note, in particular, Canon 3(A)(5) of the Michigan Code of Judicial Conduct. [Return to text.]
[Property Rights] [Forensic Intelligence Hub-Page] [Jhéön & Associates, Stephen P. Dresch, Chairman]