Petition for Writ of Certiorari — Hoy v. Mentor Township, Michigan (No. 09-121)

4 “W SPP US

09. _

4 we 9-122 ppro 7 2009

OFFICE

IN THE OF THE CLERK

Supreme Court of the United States

| Gene Hoy,

Petitioner

We

MENTOR TOWNSHIP

Respondent.

On Petition For Writ Of Certiorari

To The MICHIGAN SUPREME COURT

PETITION FOR WRIT OF CERTIORARI

Gene Hoy

2586 Stitt Road,

In Propria Personc

P.O. Box 49]

Mio, Michigan 48647

989-826-6025

QUESTIONS PRESENTED FOR REVIEW

1. Did the Order to connect to the Big Creek-

Mentor Sewer Authority arising from

Michigan's Public Act 368 of 1978 completed

by Mentor Township's Ordinance and Local

Government officials’ actions together with

other Michigan Statutes comport with Federal

requirements of Due Process of Law?

2. Does the Michigan Public Act 368 of 1978

and the resulting ordinances and regulations

constitute an improper delegation of

legislative authority contrary to our

fundamental laws?

Parties To The Proceeding

Gene Hoy,

Petitioner in propria persona

P.O. Box 491

Mio, Michigan 48647

989-826-6025

Mentor Township,

An unchartered Michigan Municipal

Corporation,

Respondent

Gerard F. Brabant, P.C.

Attorney for Respondent

241 Lake St., P.O. Box 35

Roscommon, Mich. 48653

989-275-4365

(ii)

CONTENTS

Some facts to show the background for this

petition and to show the results of state officials

making use of unconstitutional statutes, court

rules, ond ordinances.

The identification of some of the statutes, court

rules, ordinances, and actions by local officials in

this case that viclate constitutional requirements:

TABLE OF AUTHORITIES

American Axle v Hamtramck, 461 Mich 352 (2000

Board of Education v Barnette, 319 U.S. 624

(1942)

Bolt v City of Lansing, 461 Mich 352, (2000)

Centerline v Chmelko, 164 Mich App 251 (1987)

Cleveland Board of Education v LaFleur, 414 U.S.

632 (1973)

Dearborn v Dail, 334 Mich 673, 55 NW 2d 201

(1952)

Delta County v Gladstone; 305 Mich 50, 8 NW 2c

908 (1943) | an 7

District of Columbia v Brooke, 214 U.S. 138 (1908)

Dolan v City of Tigard, 512. U.S. 374 (1994)

Duverney v Big Creek-Mentor Sewer, 468 Mich

1042 (2004)

Eyde Brothers Development Co. v Eaton Co.

Drain Com'r., 427 Mich 271, 398 NW 2d 297

(1986)

(ii)

Fennel v Common Council of Bay City; 36 Mich

186 (1877)

Hutchinson v Valdosta, 227: U.S. 303 (1912)

Liteky v United States, 510 U.S. 540 (1984)

Lockwood v Commissioner of Int. Revenue, 357

Mich 517 (1959)

Lucas v S..Carolina Coastal Council, 505 U.S. 1003

(1992)

Marshall v Jerrico; Inc., 446 U.S. 238. (1980)

Miranda v Arizona; 384 U.S. 436 (1966)

Panama Refining v Ryan 293 U:S.388 (1934)

Sailors v Board of Education. 387 U.S. 105 (1966)

Sitz v State Police, 193 Mich App 690 (1992)

Smith v Goguen, 415.U.S. 566 (1973)

Taylor v Gate Pharm., 468 Mich 1, 658 NW.2d

127 (2003}

Tumey v Ohio, 273 U.S.510 (1927)

Viandis v Kline, 412 U.S.441 (1972)

Wayne. County v Hathecock, 471 Mich 445 (2004'

Federalist Papers, 9, 47,51, 78

Federal Constitution

Michigan Constitution 1963

Michigan Public Health Code — P.A. 368 of 1978

Michigan P.A. 94 of 1933 — MCL141.133

Michigan Judicature Act — MCL 600.- .181; .555,

591, .2529, .5756; .8104, .8371, .8381, .8420

MCL. 49.159

18 USC 666

42 USC 144] ef seq.

(iv)

BASIS FOR JURISDICTION OF THIS COURT

The last court order was from the Michigan

Supreme Court dated January 27, 2009.

Rule 11 is not applicable

There have been no orders as of yet from this

court.

Rule 12.5 is not applicable.

Jurisdiction is granted this court by the

federal questions raised herein as to due

process of law, our form of government, and

federal statutes including 42 USC 1441 and

some others relating to federal grants and

loans. The information might relate to 18 USC

666 and others but is not argued here. |

believe the information herein shows that

federal rules, statutes, and rights have been

ignored at all levels of the Michigan court

system and that it deserves a better comment

than it has received so far. (The circuit court

judge labeled constitutional objections

“frivolous.”)

Some pans of the Federal Constitution include:

Preamble; Article t, sec. 10; Article Ill, sec. 2;

Article IV, Sec. 4; Article Vl; and Amendments

LIV, V, 1X, and XIV.

Summary

This action (to force government services On us

and labeling them “privileges”) started in the

circuit court for the County of Oscoda,

Michigan where “summary disposition” was

granted. There was no opportunity for a jury

trial. | brought a motion to set aside the

judgment but it was denied. The court thinks

constitutional objections are “frivolous” and

awarded costs to the township's private

attorney. An appeal was made to the Court

of Appeals. It was denied stating “no merit.”

An application was made for leave to appeal

in Michigan's Supreme Court. This was denied

because they didn't think the issues should be

reviewed by the court. They also denied a

motion to uphold Michigan's Freedom of

Information Act. | did a motion to reconsider —

that it was their job to uphold the constitution,

make the system fair, and gave solid

arguments why some statutes had been

improperly passed but their response on

January 27, 2009 was “...it does not appear

that the order was entered erroneously.” |

assume they meant their first denial. The

county has now given the townships the

money they demanded and will auction

citizen's property when they can't pay.

(vi)

IS THIS DUE PROCESS OF LAW?

On several occasions this court has

recognized the unfairness of a government

act that condemns something by an

irrebuttable presumption so as to evade due

process requirements of proving their case.

Since justice is supposed to have the

appearance of fairness according to Liteky v.

United States, 510 U.S. 540 (1994) and others,

this petition will describe some of the unfair

machinations of ine STATE OF MICHIGAN and

its creatures and will point out some of their

unconstitutional statutes that make it possible

under color of law. To make an irrebuttable

presumption into proof doesn't rnerely

change the “game” from innocent until

proven guilty, or even guilty until proven

innocent, but makes us guilty no maiter what

thereby converting public servants into

sovereign tyrants. The passing of “immunity”

statutes completes the picture so there is no

redress. Since this petition attacks state

statutes, it affects a large number of people

but, if someone reviews other states in the

union, expect to find equivalent statutes there

too so this is both a local and a national

problem. Further, federal funds were misused

in accomplishing some of the facts

complained of here. Ina

republic/government of laws with

representation, there aren't supposed to be

“sacred cows" superior to law. Does this

describe one?

Back in the 1970's a sewer system for Mio,

Michigan had been proposed, but was voted

down once or twice — overwhelmingly in 1977.

In 1978 the Michigan Legislature passed Act

368 which contains irrebuttable conclusive

presumptions and improperly delegates

legislative authority to several of its creatures

contrary to our fundamental laws. Since there

was no need for the sewer, local officials tried

secrecy, special meetings, and fraud. A letter

written by Doug Getty (then chief sanitarian of

the “health” department) to a friend in

NEMCOG started it. Since a sewer can only

deal with nitrate contamination and since

there wasn't any, the letter had to get

creative. There had been a bad pipe in the

well (rusted through) of a restaurant which

allowed surface water into the well providing

a colorable claim of “nitrate contamination

documented in..." This was colorable since

the new pipe fixed it. It was true that tnere

was contamination in a small portion of the

downtown business section (chemicals) but a

sewer Could not remedy that. Then, the state

provided deeper wells and forced some

people to use that and destroyed their private

wells. Most of what is now in the sewer district

has no contamination and the nitrate

contamination claim was fraud.

Undaunted, the local officials had “special

meetings,” one of which was at a Holiday Inn

30 miles away from the target. The general

public didn't show. Apparently the efforts

behind the scenes paid off because a USDA

form from 1992 showed “points” given to help

No

decide whether to proceed. Points were

given for low income, a rural area, etc., but no

points were given for need showing fraud and

complicity early on. In April, 1993 both

township supervisors wrote an “Office of

Federal Grants” claiming “critical needs” that

never existed and other lies. Apparently no

one checked these claims — or simply didn't

care. From the machinations by local officials,

HUD grants (CDBG) were obtained. The local

officials had to contract to forgo charging

“low or moderate income residents for the

connections but were allowed to charge

moderate income residents if they certified

that there wasn't sufficient grant money

available. The certification cannot be

obtained, but that it was done can be shown

by statements from one township supervisor

and the fact that there were no figures

describing “moderate income." Problems

with this include the fact that dividing the

809,500 dollars (total COBG monies given both

townships for paid connections) by the original

connection fee shows that more connection

fees were pre-paid than they have. No CDBG

funds were returned per a township

Supervisor's response to an FOIA request. Yet,

several low-interest loans (proving low-

income) are in effect that shouldn't exist. A

complaint by a concerned citizen resulted in

an inquiry. One township supervisor

investigated (himself) with the result that 4

residents got their money back. HUD did not

come in to check and will do no more.

Neither will the Office of Inspector General.

Apparently there is no “oversight, even when

proof is offered. One conclusion we can draw

from this is that the sewer venture has turned a

profit, but it also raises the question of what

your petitioner is being forced to pay for with

the additions to the property tax bills — but this

is getting ahead of the story.

While the game was in play, we, the general

public were assured that there would never

be any mandatory connections, that our

neighbors wanted and needed it, and that it

wouldn't cost anything because of the grants.

To prove people wanted it, a small survey was

made that showed most did want it. A couple

of people checked the results only to find they

were listed as being for it when they weren't.

One had never been contacted.

Lawsuits to try to stop the thing all failed. The

Duverney Case, 469 Mich. 1042, (2004) stalled

in the Michigan Supreme Court when they

refused to hear it (although 4 justices would

have) and the cost was very high. In 1994 the

game was well underway although the

majority of the public was unaware. It

entered a critical phase. On Jan. 18, 1994, in

the sports section of a local paper, local

officials ran a Notice of Intent for Revenue

Bonds. Ten % of the authority district must sign

petition for referendum. Jan. 25, 1994, only

those registered in the proposed sewer district

could sign a petition. March 15, 1994—no

vote requested. “The only thing standing

between us now is if the cost comes in higher

than we have money for." (Skip Bohlinger.}

On Feb 6, 1995, there was a meeting with

handouts and presentations and more

promises of no mandatory connections. This

was the first time the public got to see a map

showing proposed sewer system as of Feb. 6.

1995. On May 9, 1995, the design was

complete and the officials were waiting on

permits. Note that if they publish the

“required” notice per Act 94 of 1933 on Jan.

18, 1994 but the “electors” who will be

affected won't even know who they are until

May 9 of the next year, that’s not very sporting

since the act “requires” 10% or 15,000 of the

electors to petition for a vote within 45 days.

By not setting the “district,” all of both

townships would have had to petition (and be

psychic). It isn't due process either. Another

problem is that this P.A. 94 of 1933 (being MCL

141.133) conflicts with Michigan's Const. 63,

Art. 4, Sec. 29 where “The legislature shall pass

no local or special act in any case where a

general act can be made applicable, and

where a general act can be made applicable

shall be a judicial question.” Sec. 29 goes on

to require votes for local acts. It is obvious to

this citizen that any statute which requires an

ordinance to complete it, as was done here, is

necessarily a local act because each applies

to a small targeted area, each is unique, and

this one goes beyond what is authorized or

can be authorized. Petitioner notes that MCL

141.133 has been used (unfairly) as a weapon

and that it conflicts with Michigan's

constitution of 1963; the basic reason for

government in this country ("That to secure

these rights, Governments are instituted

among Men, deriving their just Powers from

the Consent of the Governed.” (Declaration));

and the “guarantee to every State in this

Union a republican form of government...”

(representation and rule of law). To issue such

a notice without full disclosure, instead using

fraud to deceive the public into inaction can't

be considered due process, but, then, neither

can a court system that condones it. Note

that it didn't include representation either.

Those on both township and sewer boards are

allegedly representing the township

corporation, the sewer corporation,

themselves, the citizens of the township, and

the citizens in the sewer district. If no one is

supposed to be able to serve two masters,

how about several? The last one listed here

had no representation.

The sewer system was instalied, then it was

announced that people would be forced to

connect. Some, including Petitioner looked

for what the statute labeled “innovative and

alternative” systems, but the local health

department did everything possible to

discourage that with unreasonable

requirements and multiple fees. Some locals

had to go to court to install them. Tney only

allowed one — the most expensive commercial

one ~- and they made sure the sewer seemed

cheaper. Petitioner couldn't accept the

unreasonable terms of the alternative

requiring liens on properties, the signing of a

“Hold Harmiess Statement” so the “Health”

Department couldn't be sued. This choice

was also unconscionable. The District Health

6

Dept. required certification by third parties for

the alternatives thereby failing to provide any

real help (consideration), only fees and

regulations they made up. The proof the

public didn't want or need the sewer is the

large percentage of people sued to force

connections. To agree with or condone this

action is to deny a government of, by and for

the people. !f you don't believe that the

general public can or will act in their best

interests, you shouldn't be in public office - at

least not in this country.

We learned later that the expensive

alternative system had been approved back

in 1993 which should have made court action

unnecessary to use it. The alternative was

chosen by some out of fear of the monthly

rates. These alternatives were not

“innovative” and the cost was out of reach for

the low income citizens. | think | could make

an equivalent to the approved one for about

200 dollars (instead of thousands) but it isn't

needed and wouldn't be approved. The

legisiature’s P.A. 368 of 1978 “enables” local

Officials to bill any arnount they please (no

firewall) for their enforced sewer monopoly,

but the same act also “enables” the health

department to set rates too. Later, it was also

discovered that the townships had contracted

with USDA to force connections back in 1993

making their lies of “no mandatory

connections” willful, as well as violating due

process.

Petitioner tried to fight forced connections

along with some others but there was no

hope. The hearings were best described by

this court in the Miranda v. Arizona {384 US.

436 (1966) case by statements such as:

"this court has recognized that coercion

can be mental as well as physical, and that

the blood of the accused ts not the only

hallmark of an unconstitutional inquisition.”

And

“unfamiliar surroundings, the manuals

instruct...display an air of confidence in the

suspect’s guilt and, from an outward

appearance, to maintain only an interest in

confirming certain details.”

And

“It is obvious that such an interrogation

environment is created for no purpose other

than to subjugate the individual to the will of

his examiner. This atmosphere carries its own

badge of intimidation. To be sure, this is not

physical intimidation, but it is equally

destructive of human dignity.” Miranda,

supra.

There are other apt descriptions of

proceedings in their circuit court but the

question is, if it isn’t OK for the police to do this

to citizens, how can it be OK when a judge

does it? Nothing fair could come from it and it

didn't. Summary judgments were granted

despite what seemed to be good arguments.

Now Petitioner has since learned about

Michigan's Judicature Act where MCL 600.555

and 600.591 provide for local government's

funding of the circuit courts office expenses

and supplementing the judge's salary, AND

providing for a conflict of interest wnen we

must appear in their court against them. This is

not to mention the judges’ retirement system and

legislature's retirement systems. that may' be

financed by some of the.penalities. Still, the two.

conflicts of interest should disqualify the circuit

court judge from hearing any cases where the

local government is a party anc that would

include condemnation cas here. Note further that

both counties and townships share money so

when a citizen can't or won't pay the township's

demands, the county “pays” the township {one

local pocket to another) then goes after the

property.

The order was unconscionable, so: petitioner

brought a motion to set aside the judgment in

one township (Mentor). Of course it was denied.

Constitutional objections get labeled “frivolous”

in their circuit court and costs get awarded (fo

the home team). it has lost every appeal in

Michigan's court system (and at a heavy cost) so

this petition is the final step.

While this was proceeding, both townships weni

ahead to force connections based ori their

circuit court's order. Then Big Creek Township

discovered more properties that hadn't been

connected. They sued more of us including your

Petitioner. This case got anéw number anda

hearing date. Since the last strategy didn't work,

Petitioner paid the jury fee “as provided by law”

per Art. 1, sec. 14 of the Mich. Const. 63 (and

guaranteed by Art IV, sec. 4 of the Federal

Constitution) and prepared for the clash. It was

to no avail. Circuit “court” said we aren't starting

over, we're here to connect. He seemed to

have made his own irrebuttable presumption.

The jury trial was denied. The clerk of the court's

office won't refund the jury fee either but said I'd

have to petition the judge for it; that they didn’t

have it; that it went to the state(?); and that

maybe, if someone else ever requests a jury tricl,

they might give me that. This is another part of

the game | can’t understand:. Again, it’s an offer,

acceptance, then failure {of them) to provide

consideration (just like the sewer "service”).:

It gets “better.” To expect a citizen who is

attacked in coun by any part of government

to know what is happening.is unreasonable.

We were only taught certain thinas in the

government's schools, so things like discovery.

being limited to a certain time period didn't

help a bit since it was much later we learned

what to ask for: A motion to enforce the state

freedom of information act (FOIA) in the state's

Supreme Court was denied. But, then, alll

motions in circuit court nad been denied.

Motions for cheaper alternatives and to

eliminate permits: and fees (if mandatory —

why the permit?} were denied. Then someone

discovered thai the townships had ordinances

on file requiring them to advertise for sealed

bids for any contract over 20,000 dollars. The

Big Creek Township had voted to force

connections per their judge’s order at another

“special meeting.” A third party saw the

notice on the door of their new township hall that

there would be this “special meeting” that

evening and he told one other person besides

me. (Now we know why “special meetings.” )

Only two of us showed up. The forced

connections were disputed, then they voted

10

to do it over our objections. This apparently

shows how “special meetings” work. (and:are

“advertised”). After learning of the ordinance

on sealed bids, we remembered that the

estimate accepted by the lone bidder was

26,025. By his own admission, the township

supervisor (who had investigated himself

earlier) hadn't advertised for bids, but had

called only 3 contractors, of whom only one

would bid. The bidder, who had caused some

of the pollution in the district with his dry-

cleaning chemicals, had been fined for that

and apparently is still paying for doing so.. The

bids were not advertised as per the ordinance

either. This contractor's lone bid was accepted

which was about double the going rate based

on footage (per the Mentor township's

supervisor). The bill was irrational so, after some:

complaints, the contractor came up with

another bill. This wasn't rational either, what with

some bills going way up even though the private

septic tank wasn't smashed and measurements

billed being questioned. So, finally, Big Creek

Township Supervisor James, Randy Booth agreed

to go check them. By Being. as genérous as

possible, he still couldn't come close to the

footages billed. After checking a few of them,

he stopped. My complaint in the courtroom

about the fairness of the bills accomplished

nothing except a comment from the township's

attorney that we'd have to sue the township.

So, | filed suit in the district court to have the

contractor's fee removed from the property

taxes since if violated their own ordinances

and it was filed in district court because my

1]

portion of the bill indicated jurisdiction there.

They defaulted. The. judge wouldn't sign the

default but set Up a héaring. The township's:

attorney finally answered claiming immunity

for a governmental function, ameng other

things. “Case law” says. a sewer is a

proprietary function so they don't have.

immunity. (They had a private attorney rather

than a prosecutor.) The district court judge

didn't need any. arguments: He told me:|I had

No standing and proceeded to award “costs” to

the township's attorney of 649.28 dollars (a

phenomenal rate. per page:-— for his belated

response): Now the same state judicature act

has their district court financed by local

government too by MCL.600.8104. (and

maybe more). The hearing provided me: with

more evidence of how they treat citizens they

don't like because, while waiting to go in for

the “hearing,” a deputy approached me in

the hall, arrested me, and ledme away in

handcuffs for booking, finger printing, and all

he thought was appropriate. for my’ “crime.”

The charge was alleged trash at one. of my

properties since Doug Getty (of District Health

fame) had written some sort of ticket or

complaint — also pursuant to the P.A. 368 of

1978 called Public health code. Their district

judge did:a job on me that day ruling against

me on three issues. Their P.A. 368 makes a

splendid weapon to use on someone they

don't like. Their prosecutor (also supported by

local govemment — MCL 49.159) refused to

deal or drop: anything even though Mr. Getty

has since relented. The prosecutor said she

12

owed no one anything(?), that I'd cost the

county a lot of money, and that whether any

trash was there now or not and any prior

agreements Mr. Getty had reneged on didn't

matter. She would prosecute. This aiso

provides jail time — for health | suppose. It’s all

based on agency rules and a subjective

opinion rather than any threat to health — or

even who put stuff there. (It wasn't me.) This

court and others are reluctant to admit that

government officials sometimes act out of

spite instead of “to secure these rights,” but

Petitioner notes it is becoming epidemic. An

appeal to their circuit court is coming on the

contractor’s charges which won't be pleasant

either. Note that if a constitution is well written

it shouldn't matter who is in office because

they wouldn't have enough power to hurt

anyone. This samie judge granted a default

against me on an earlier issue. On still another

issue, when my witness and | contradicted the

officer's testimony on failure to signal, the

same judge ruled in favor of the officer saying

“he was just doing his job.” Then, another

district judge set up a “static conference”

over a “burning permit” “crime” which turned

out to be a surprise bench trial. Maybe |

should have asked as to when we were to

“statically confer.” This court should identify

the conflict of letting local officials have their

own courts - if not by the results. | currently

have multiple charges going and, no matter

the outcome, | am being punished.

It may be that this court has already

covered such games more than once.

13

Consider the words of Justice Kennedy from a

1994 case saying:

“In matters of ethics, appearance and

reality often converge as one. [cite given]

(“Justice must satisfy the appearance of

justice”); [cite given] (“justice should not

only be done but should manifestly and

undoubtedly be seen to be done"). | do

not see how the appearance of fairness

and neutrality can obtain if the bare

possibility of a fair hearing is all that the law

requires. Cf. Marshall v. Jerrico, Inc., 446

U.S. 238, 242 (1980) noting the importance

of “preserving both the appearance and

reality of fairness,” which “generates the

feeling, so important to a popular

government, that justice has been done...”

Liteky v United States, 510 U.S. 540, 565

(1994)

The contracts between the townships and

U.S.D.A. for grants and loans include “letters of

understanding.” The first from 1993 shows that

mandatory connections were a condition

apparently “enabling” a federal agency to do

indirectly what they couldn't do directly. The

changes in REU’s (Residence Equivalent Unit)

from the 1993 letter to the 1997 letter snowed

the total to go up by only 2 after 107 low

income residences were to be forced to

connect and one business omitted. A FOIA

request to get an explanation drew only

alleged confusion in response. So | tried a

motion to enforce the FOIA in the Michigan

Supreme Court, but it was denied. The

implications here are that if the number of

14

connectors go up alot but the total REU's

don't, someone got a break, and Michigan's

court of last resort doesn't care.

Michigan's Supreme Court makes rules (MCR

= Michigan Court Rule) and they allege in

MCR 1.105 that they are to “secure the just

[resolution]...and avoid the consequences of

error..." Then consider parts of MCR 2.116

“Summary Disposition” where we read:

“2.116(C)(1) The court lacks jurisdiction over

the person or property.” And “2.116(D)(1) The

grounds listed in subrule (c)(1), (2), and (3)

must be raised in a party's first motion under

this rule or in the party's responsive pleading,

whichever is filed first, or they are waived.”

Ernesto Miranda wouldn't have known that

and neither did |. Couple this with the idea

that if you say anything or just show up in

court, they claim jurisdiction and venue, then

there is another catch. The judge won't drop

anything sua sponte because of his conflict of

interest and we the people don't know how to

prove lack of jurisdiction — or even that it can

be done at the time. For example, an in rem

action to confiscate and destroy my property

(private septic — and leave the mess) is the

distinctive remedy of the admiralty and is

administered exclusively by the United States

courts per Art. Ill, sec. 2 of the Constitution

which should have stopped this thing. But |

didn't know that any more than other citizens

would have. With such a judge who claimed

“we're in equity” (but without a contract or

injury) | doubt it would have helped. The court

rule is unfair since jurisdiction should be

15

challengeable at any time. To be valid, a

contract has to offer consideration (and be

voluntary). The state's creatures here are

demanding lots of consideration but offering

none, save punishment if we don't specifically

perform.

Petitioner can't refute any of the arguments

in the Michigan Supreme Court because you

can't argue with logic that isn’t there. If it’s

supposed to be "quid pro quo," the fees were

paid (at each of the appellate levels) but

nothing was received. If stare decisis is

supposed to help us know what the law is,

how are the responses to my pleadings

helping my understanding?

As for motive, consider this speculation: Go

to

www.courts.michigan.gov/SupremeCourt/reso

urces/administrative/2003-59.pdf and read

the discussion on rule changes that seem to

put the final nail in the coffin of the Headlee

(tax limitation) Amendment — being Mich.

Const. 63, Art. IX, sections 25-34. It may be

true what Young, J claims about the

inconvenience to the court of appeals, but

that court had no inconvenience deciding this

case. It is also true what Weaver, J wrote

explaining the problems of “particulars” being

dumped on the citizen. This is not only

Unreasonable (fails due process), it Usually isn't

possible. The obvious and fair solution to these

problems is to put the burden on the moving

party where it belongs which will always be

the state or an administrative arm of the state.

They are supposed to be public servants and

16

should have to account to a principal when

challenged. Otherwise, they aren't doing their

fiduciary duty. Expediency isn’t an answer and

using rules to effectively destroy what Was left

of the tax limitation atterript isn't guaranteeing

a republican form of government. What the

Michigan Supreme Court upheld in Bolt v City of

Lansing, 459 Mich 152, 587NW.2d 264 (1998), they

took away with Duverney supra and these court

rules. These court rules should be ruled

unconstitutional.

The Bolf case supra stated that a fee must:

(1) serve aregulatory purpose; (2) be

proportionate to the necessary costs of the

service; and (3) be voluntary. Per the

information in this pleading, the “fees” don’t pass

these tests, making them (non-uniform) taxes:in

disguise. Since the Mich. Const. 63 in art lV, sec

32 requires any law that “imposes, continues, or

revives a tax” to “distinctly state the tax” and, by

Art IX, sec 3, taxes other than property taxes are

to be uniform which these “fees” aren't.

Corrigan, J. should have mentioned these in the

Duverney case with her comments. Not only am

| not benefiting by any of this but the "tap-in

fees" for my property in Mentor are 47.6% above

the identical “service” in Big Creek Township. (If

not uniform, have we reached arbitrary and

capricious yet?)

In this case, petitioner isn't presenting a lot of

data here (particularities) partly because of

high printing costs of what you're reading, more

costs to obtain the data (they charge. for it), The

word and page limitations, the possibility that

someone has already "cooked the books," and

17

problems with FOIA requests.

Even so, the. monthly bills have increased

considerably since the thing started. The portion

for debt is up 17.65%; the administration portion is

Up 25%; but the Operations and Maintenance

portion is up over 65% (O&M is where salaries go,

only they are labeled “non-compensation” for

board members). Then they've added a

“reserve fund" (to cover damages they cause?)

which would push O&M to a 77% increase if

included there. Seems their rate of inflation is

greater than the official one. Even so, the debt

rate shouldn't change since the loan didn't.

Whether the court rule changes had anything to

do with this case is soeculation, but here is

another motive — from the appellate branch's

Own writings.

Page 483 of a Wayne County v Hathcock case

reads:

"...we have concluded that this court's

Poletown opinion is inconsistent with our

eminent domain jurisprudence and advances

an invalid reading of our Constitution. Because

that decision was in error and effectively

rendered nugatory the constitutional...”

And

"...But because Poletown itself was such a

radical departure from fundamental

constitutional principles...to the 1963

Constitution, we must ovefrule Poletown in order

to vindicate our Constitution, protect the

people's property rights, and preserve the

legitimacy of the judicial branch...”

And further

".,.dcisregard for constitutional limits on the

18

exercise of the power of eminent domain and

the license that opinion appeared to grant to

state and local authorities.” Wayne County v

Hathcock, 471 Mich 445, 483-484 (2004).

It should be noted here that a portion of the

dissent on pg. 487 of the Hathcock case wams

“against the tendency to force from the

constitution, by ‘interested sublety and ingenious

refinement,’ meaning that was never intended

by the people who adopted it.” Wayne County..

supra. This is an excellent description of the

treatment given the Duverney case supra and

others by misapplying ihe Headlee

Amenament(s) with American Axle v

Hamtramck, 461 Mich 352 (2000) making the

(state) constitution a barrier of words easily:

destroyed with other words.

Another court explained their motive as:

“Poletown arose out of the economic crisis which

faced Detroit and its most significant economic

buttress, the automobile industry, in the 1970's

and early 1980's. In 1981, unemployment in the

City of Detroit reached eighteen percent.”

Centerline v Chmelko, 164 Mich App 251. (1987).

From this we might conclude that compelling

need can trump constitutional rights at times.

And that government's socialist activities don't

necessarily work since the unemployment rate in

the Detroit area is rumored to be even higher

now. But, it also provides motive for the

responses to appeals in this instant case leading

to a question: if the economy somehow gets

bad (ignoring cause) who has to suffer —

government or the public? In your Panama

Refining Co. case it was stated that:

19

“Emergencies create no power....when

expediency seeks to triumph over righteousness

and correct principles, then is when we need the

_ safeguards of our Constitution.” Panama

Refining Co., v Ryan, 293: U.S. 388, 394 (1934).

The Michigan's Lockwood case expresses

similar sentiment with: “We come face to

face, then, with what has been termed "the

most pressing rule. for constitutional

construction;" namely that “the provisions for

the protection of life; liberty, and property are

to be largely and liberally construed in favor of

the citizen." Lockwood v Commissioner of

Revenue, 357 Mich-517,:557 (1952). This case

goes on to give the reasons for the rule as that:

"itis a constitution that we are construing, our

basic charter of govemment: Here the people

have erected their safeguards, not only against

tyranny and brutality but against the oppression

of temporary majorities: and the rapacious’

demands of government itself..." Lockwood

supra, pg. 557.

Thus. it seems the court systems know of

government tendencies — and the: Michigan

Court System is.a part of government. Since the

State of Michigan is now having financial

difficulties, apparently its aopellate system has

done its share to help that problem here, but

not to secure rights or liberties. Page 451 of the

Viandis case mentions that "...the Constitution

recognizes higher values than soeed and

efficiency." Then it goes on to condemn the

state's “conclusive presumption...under the

Due Process Clause where there are other

reasonable and practicable means of

20

establishing the pertinent facts on which the

State's objective is premised.” Viandis v Kline,

412 US. 441, 451 (1972). There are other ways

of determining whether there is a problem

with a private septic such as proving it with the

warrant requirements of stating with

particularity the probable cause. There are

lots of inspectors, also known as citizens,

residents, renters, etc.

The Cleveland Brd of Education v LaFleur

case states: “Thus, the conclusive

presumption embodied in these rules, like that

in Vilandis, is neither “necessarily [nor]

universally true,” and is violative of the Due

Process Clause.” Cleveland Board of

Education v LaFleur, 414 U.S. 632, 646 (1973).

This case points out that permanent

irrebuttable presumptions violate both the Fifth

and the Fourteenth Amendments; notes the

absence of any individualized determination

(on pg. 644); notes that “the Due Process

Clause” required a more individualized

determination (pg. 645); and considers the

(lack of} wisdom on several pages. Cleveland

supra.

In this instant case, there have been some

individualized treatments but it is due to lack

of equal protection rather than any real

problem. Section 12752 of P.A. 368 of 1978

(MCL 333.12752) is obviously an irrebuttable

conclusive presumption being run on the

general public. Section 12751 of the same act

contains another irrebuttable presumption in

that we must conclude that private septics

are bad (condemned in rem) when their

2]

—

sewer comes within 200 feet of a “structure.”

This is convenient (for them), expedient, ven

self-serving and profitable but it doesn't

comport with due process. It also shows they

don't believe their own claim by not inflicting

the alternative on all beyond 200 feet.

The Dolan case discusses an “essential

nexus" between the “legitimate state interest"

and the permit conditions on pg. 386. The

permit conditions offered petitioner was — you

must pay up. The Dolan case continues with:

“The absence of a nexus...converted a valid

regulation of land into an out-and-out plan of

extortion.” Dolan v City of Tigard, 512 U.S. 374,

387 (1994). This case goes on to state “No

precise mathematical calculation is required,

but the city must make some sort of

individualized determination that the required

dedication is related both in nature and

extent to the impact of the proposed

development.” Dolan, supra at pg. 391.

Efforts to prove lack of need in circuit court

was rebuffed with comments claiming it was a

political problem. “If you don't like it, vote

them out.” With a small targeted group split

by two townships, that’s not a solution — nor is it

due process. A complaint about costs was

met with the comment: “Well sell some of

your houses then.” A protest as to time drew

the response that there was more than one

bulldozer or backhoe in the county. Proofs of

no need shouldn't have been necessary, but

they were included with pleadings to

Michigan's Supreme Court. These were

ignored.

Since Due Process requirements cover other

amendments, it is interesting to note that the

Sitz case found the Michigan Constitution to

afford “greater rights than those found in the

federal constitution.” Sitz v State Police, 193

Mich App 690, 698 (1992). The effectiveness of

that imposition (of stops) was condemned on

pg. 698 as being only 1 in 126.

Petitioner hopes the Federal Constitution will

afford greater rights than Michigan's court

system has by finding tne offending statutes,

ordinances and court ruies unconstitutional.

23

IS THIS IMPROPER DELEGATION OF AUTHORITY 2

The separation of powers is an established

fact of our republican form of government

being discussed ct length in the Federalist

Papers including no’s 47 and 51 by Madison

and no's 3 and 78 by Hamilton as well as

others. The separation of powers in Michigan

is confirmed by Mich. Const. 63, Art. Ill Sec. 2

as: “The powers of government are divided

into three branches, legislative, executive and

judicial. No person exercising powers of one

branch shall exercise powers propery

belonging to another branch except as

expressly provided in this constitution.” This

was in effect prior to 1963 since the Dail case

stated: “if there is any ambiguity, the doubt

shouid be resolved in favor of the traditiona!

separation of governmental powers."

Dearborn v Dail, 334 Mich 673, 55 NW.2d 201,

208 (1952) The Dail case ends with removing

the justices of the peace froin the township

boards since they were tainted with the

judicial branch and repugnant to the

constitution. It con*inues by stating that “the

only legal members of the township board of

Dearborn Township are the supervisor, the

township clerk, the township treasurer.”

Dearborn v Dail, supra, pg. 210. This raises

some issues since the 3 legal members are all

administrative which is executive. MCL 213.21

defines “state agencies” as “all

unincorporated boards, commissions and

agencies of the state given by law the

management and control of public business

24

and property, and the office of governor or a

division thereof.”

The Sailors case helps illustrate this by stating:

“Political subdivisions of States — counties,

cities, or whatever — never were and never

have been considered as sovereign entities.

Rather, they have been traditionally regarded

as subordinate governmental instrumentalities

created by the State to assist in the carrying

out of state governmental functions.” Sailors v

Board of Education, 387 U.S. 105, 107-108

(1966). Since they aren't sovereign, they can't

have all the three branches of powers. The

“assist in carrying out...functions” is executive.

The casé goes on to state that the ‘number,

nature and duration of the powers conferred

upon [them]... and the territory over which

they shall be exercised rests in the absolute

discretion of the state.” Sailors, supra.

Agencies are part of the executive.

Article IV, sec. 1 of the Michigan Constitution

1963 vests the legislative power in a senate

and house of representatives like article |

section | of the Federal Constitution grants

legislative powers to Congress. Art !V of the

Michigan Const. section 8 prohibits members

of the legislature from holding other positions

including those on a local board. For the local

township or county boards to legislate as was

done here violates several portions of the

Michigan Constitution including Art IV, sections

7, 22, 23, 24, 26, 29, 30, and 33 among others

which is enforceable by Art. IV, sec. 4 of the

Federal Constitution.

The only legislative powers a local unit can

have would be in adopting a charter, thus

making it “organized.” “The legislature

cannot delegate its power to make a law, but

it can make a law to delegate a power to

determine some fact or state of things upon

which the law makes, or intends to make. its

own actions depend.” Taylor v Gate

Pharmaceuticals, 468 Mich 1, 658 NW.2d 127

(2003); Locke’s Appeal, 72 Pa 491, 498-499

(1873). Pages 7 and 8 of the Taylor case give

a fair description of the nondelegation

doctrine. The footnote no. 9 on pg. 10 of the

Taylor case claims that the existence of

“sufficient standards” or “principles” to be

acceptable. The standards in the !egislature's

Public Health Code (P.A. 368) are lacking.

MCL 333.12753 declares: “Structures in which

sanitary sewage originates lying within the

limits of a city, village or township shall be

connected to an available public sanitary

sewer in the...fownship if required by the ...or

township." Thus, this is one of those broad

sweeping grants of “authority” where anything

goes. In another case, this court noted:

“There are village tyrants as well as village

Hampdens, but none who acts under color of

law is beyond reach of the Constitution.”

Board of Education v Barnette, 319 U.S. 624,

638 (1942). Tne same page continues by

noting that the Bill of Rights was to withdraw

certain subjects from controversy and the acts

of officials. It also said: “One's right to tife,

liberty, and property....and other fundamental

rights may not be submitted toa vote; they

26

depend on the outcome of no eiections.” Brd

of Education v Barnette, supra. It continues on

the next page, 639, to speak of principles

producing a philosophy that the individual

was the center of society and “his liberty was

attainable through mere absence of

governmental restraints.” If contains the idea

that a government governs best when it

governs least which is certainly what both the

framers of the federal constitution intended

and those who approved Michigan's

Constitution.

Michigan's Public Health Code, MCi

333.12754 “authorizes” local officials to

compel specific performance without a

contract (apparently inflicting a unilateral

contract) and MCL 333.12756 implies that

local officials may impose a “tap-in fee” and

define “hardship.” Remember that setting

rates is legislating but note too that allowing

locals to “define hardship” is both legislating

and an admission that this thing would cause

hardship.

Then MCL 333.12757 seems to put a “fig leaf"

on this obscenity by delegating legislative

powers to the local health department to

regulate an “innovative and alternative”

system, inspect same (apparently bypassing

warrant requirements), set fees (legislate), and

authorize local officials to charge sewer

“availability fees" (more legislating — for

services not rendered). The local officials had

no problem implying the delegation to charge

tap-in fees but denied the “compost toilet”

specifically mentioned in MCL 333.12751(b).

27

Whether anyone has a compost toilet in the

sewer district is unknown. The sections known

as MCL 333.12751 through 333.12758 are

unconstitutional and should be declared so.

The Public Health Code (P.A. 368 of 1978)

improperly delegates legislative powers to the

local health department (LHD) and its

“governing eniity” — the District Health Board

(county commissioners). MCL 333.2441 allows

the LHD to adopt rules and regulations fo be

approved by its governing entity, said

regulations to de “at least as siringent as the

standard established by state law applicable

to the same or similar subject matter.” This

apparently allows local officials to exceed

state laws resulting in no representation but it

goes on to provide criminal punishments of

fines and incarceration if charged with one of

these agency's “regulations.” This makes a

fine weapon and money-maker for them but it

violates the constitutions.

At this point, it might he'p to point out that

the legislature and judges in Michigan have a

money-maker going here for them too with

their enviable retirement systems financed by

court activities. The MCL numbers are

600.2529, 600.8381, 600.181, 600.8420, -

600.8371, and 600.5756 which should go some

ways toward explaining the treatment

mentioned in the Due Process section of this

pleading (the questions overlap). This court

has looked on other similar games with

disfavor such as in Tumey v Ohio, 273 U.S. 510

(1927). So why shouldn't the legislature be for

the defining of as many criminal/civil

infractions as possible so they and the judges

can each take their cul?! Convictions are

thus more likely. These games probably aren't

meant to be public knowledge either. | can

think of no “intelligent principles” to support

the foregoing. This court has said: “Statutory

language of such a standardless sweep allows

policemen, prosecutors, and juries to pursue

their personal predilections. Legislatures may

not so abdicate their responsibilities for setting

the standards of the criminal law.” Smith v

Goguen, 415 US. 566, 575 (1973). Your

Petitioner is hoping that this is repeated soon.

As for justifying this sewer game, Michigan's

Attorney General tried in an opinion building

on District of Columbia v. Brooke, 214 U.S. 138

and Hutchinson v Valdosta, 227 U.S. 303. The

Brooke case quotes a previous decision as:

“...must be considered in the light of the

conclusion, so offen announced by this court,

that the United States possess complete

jurisdiction, both of a political and municipal

nature, over the District of Columbia.” D. of

Columbia v Brooke, supra at pg. 142. It is

neither fair nor on point to take “case law"

from a location without rights secured by a

constitution (and maybe not even

unalienable rights either) and without

representation and apply it to a living,

breathing citizen of a state. But, neither is it

proper to take rules intended for an artificial

entity and apply them to such a citizen - yet it

is done. Michigan's Atiorney General Opinion

goes on to talk of “experimental legislation”

(I’m not making this up) to “justify” the 200 foot

29

cutoff and continues to pronounce statutes

making it unlawful to discharge “any raw

sewage of human origin, directly or indirectly

into any of the waters of the state..." Note

that a privately-owned septic system doesn't

discharge raw sewage nor does it discharge

anything into state waters because the state

doesn't own the groundwater. See Schenk v

City of Ann Arbor, 196 Mich 75, 83, 163 NW 109

(1917) which states that the owner of the land

owns the percolating water which is part of

the soil. The owner may use said water so long

as it doesn't harm anyone else. The natural

resources of Michigan are state-owned

properties which a careful reading of Mich.

Const. 63, Art. 1X, sec. 35 will show. The state's

“protection” game may be profitable for

them but it's unconstitutional.

Some of the results of their unconstitutional

acts are these: The sewer lines were put in

under the streets without a vote or need and

without just compensation to property owners

who supposedly own to the middle of the

road. The Michigan Supreme Court gave

local officials the use of the land under road

right of way in Eyde Brothers Dev. ‘Co. v Eaton

Co. Drain Com'r. 427 Mich 271, 398 NW.2d 297

(1986). (So the Supreme Court can now

second guess the intent of the grantors -

unlikely since the road only goes down a foot

or SO.)

The townships condemned some, but not all

private septics, had a contractor smash them,

and left the debris on the private property in

aninremaction. Tne townships also received

30

easements to run their pipes across private

property (trespass) to connect unwilling

customers like Petitioner to their sewer system

from their court system. This‘way they can

confiscate sewage to sell later as fertilizer and

charge for taking the easements instead of

providing any compensation.

The townships allowed some citizens to pay

the tap-in fee but not connect so they still Use

their (threatening) private: septics and their

monthly bills are zero. This isn't supposed to be

public knowledge and an FOIA request to find

out their number will cost money.

The increases in tap-in fees each year might

be unjust enrichment for services not

rendered, or it might be punishment for trying

to assert a right, or maybe both. Petitioner

believes that the contractor's overcharges are

spite or punishment. There are multiple

monthly flat rates but the total of their number

can't be shown here, again due to FOIA

problems. If you call 989-652-4053 and ask for

Joe, he can tell you he was forced to pay the

connection fee for a cabin with no water, no

septic, no sewage, and nothing to connect. It

was cheaper than going to their court.

If you call 989-826-5925 and ask for Sandy;

she might tell you how their sewer backed up

and flooded part of her house so that their

“customers” can live in fear of it. But, she

might not if there is a “gag order” on the

event. Then you might call 734-641-7947 and

ask for Robert who can tell you how his family

pooled resources to rent dumpsters and destroy

their house to get out of the extortion.

3]

Some. houses have changed hands and more

are forsale. | know of a couple that sold due.

to. the sewer and inciuded a letter proving. one

of these with the appeal to: the Mich. Supreme

Court. You may assume the additionai fees

are responsible for more houses changing

hands in addition to the bad economy. This

violates: the intent of 42 USC 1441 et seq..

Several “customers” have had problems with

lines freezing in the winter that they didn't

have before and at least.one of those

forceably connected will have problems in

the future if Use is ever attempted because

some of the pipes are above ground. (But the

snow covered them for the winter.) Note too

that their sewer is really just a larger private

(proprietary) septic, more apt to overflow in

larger quantities: and is closer to the river it is:

alleged to protect. The county will go .after

the people's homes later when théy can't pay

- another in rem action. It should be noted

here that the waters being “protected” here

aren't navigable and that the federal

constitution grants jurisdiction to all

admiralty/in rem cases to the. federal courts in

Art 3, sec 2 to promote uniformity: So how

could this be properly delegaied?:

In another relevant case; a footnote talks

about a “test for required compensation

being whether a legislature: has recited a

harm-preventing justification for its action.” It

continues by pointing out that "Since sucha

justification can be formulated in practically

every case, this amounts: to a test of whether

the legislature has a stupid staff. We think the

Takings Clause requires Courts to do more than

insist on artful harm-preventing

characterizations.” Lucas v South Carolina

Coastal Council, 505 U.S. 1003, 1026 n.12

(1992). Butin this instant case, local officials

got some help — not just from the legislature's

wording but from the staff of another

contractor who may have advised the fraud

and whose company left out the anti-

backflow valves to maybe get another

lucrative contract later. (Sandy doesn't know

this.)

The Lucas case continues with a maxim "sic

Utere tuo ut alilenum non laedas” which

describes the use of private septics in the

sewer district. The lucas case also states that a

"State, by ipse dixit, may not transform private

property into public property without

compensation...” Lucas, supra at pg. 1031.

The state didn't bother to require proof of

nuisance and they admit private septics

aren't nuisances per se since they only

become a “threat” when a government

sewer comes within 200 feet of them.

But there's another Mich. Attorney General

opinion (#6232) that tells the truth about

delegation as follows; “In Fennel v Common

Council of Bay City, 36 Mich 186, 190 (1877),

the court stated: “The term law, as defined by

the elementary writers, emanates from the

sovereignty and not from its creatures.”

And

“The legislative power of the state is vested in

the state legislature, and their enactments are

the only instruments that can in any proper

33

sense be called laws.” Delta County v City of

Gladstone, 305 Mich 50; 8 NW. 2d 908 (1943).”

But you already know that. | believe that the

foregoing is meritorious but it needs an order

from this court to make it effective. Would you

kindly grant certiorari?

CONCLUSIONS

Some of Michigan's statutes are

unconstitutional by violating due process and

improperly delegating authority.

Some of Michigan's court rules are

unconstitutional since they violate due process

requirements.

The Big Creek and Mentor Townships’

ordinances violate constitutional requirements

of due process and constitute an improper

delegation of authority, then call the results a

“privilege.”

Petitioner and others have been harmed by

these acts. This is ongoing.

The petition for a writ of certiorari should be

granted.

Respectfully suomitted,

April 26, 2009