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August 28, 2003Clous: It's no ordinary civil suitByRecord-Eagle staff writer TRAVERSE CITY - Attorneys in the Bill Clous wetlands case struggled Wednesday to come up with ground rules and a schedule for what's billed as an unprecedented civil case. Clous faces penalties of up to $10,000 per day for willful violation of the state's soil erosion control law - damages estimated at over $600,000 - for alleged violations at an East Bay Township property he owns at Hammond and Three Mile roads. At a status conference hearing, District Judge Thomas J. Phillips acknowledged difficulty in determining how to proceed. The problem is that a soil erosion control violation is a civil infraction - the same legal class as a ticket for speeding or a barking dog - while the possible penalties Clous faces are larger than what's at stake in most circuit court lawsuits. In a high-dollar circuit court civil suit, lawyers take months to complete discovery - a legal mechanism for the sides to collect information from each other. Discovery involves interviewing witnesses in depositions, documents turned over under court order, and interrogatories, or questionnaires witnesses must complete. A typical hearing in district court over a civil infraction lasts about a half hour with a decision issued by a judge immediately, Phillips explained at the hearing. "This sounds like it might be different than the normal civil infraction," Phillips told Prosecutor Dennis LaBelle, who brought the case against Clous, and Matthew Vermetten, who represents the developer. Because court rules don't allow discovery in civil infraction cases, Phillips urged the parties to agree on what would be allowed. After some discussion, Vermetten agreed to file a motion to dismiss the case, which will spark another hearing where the sides can argue over the law involved. If Phillips upholds the civil infraction at that hearing, LaBelle and Vermetten then must agree on what kind of discovery would be allowed and an evidentiary hearing would follow in which the sides would present witnesses and evidence. After that hearing, Phillips would rule on whether there has been a violation. In a civil infraction case the defendant does not have the right to a jury trial. Should the case come to a hearing, LaBelle said he planned to call at least 12 witnesses. Vermetten said he planned to call 21 or 22 witnesses to prove what he said would be a simple defense - that the soil erosion control law does not apply to Clous' East Bay property because of an agricultural exemption. Wednesday's hearing did not offer the sides a chance to argue facts or law, but the tension brewing between LaBelle and Vermetten occasionally boiled to the surface. "Mr. Vermetten wants to claim that all 360 acres, including some 40 to 60 acres of wetlands, have been used for agriculture" over the years, LaBelle said. "That's not true," Vermetten retorted, but Phillips steered the hearing toward its purpose - to determine how to proceed. The state's Department of Environmental Quality also is investigating Clous for alleged wetlands violations at the East Bay property.
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