SYKES v. ANDERSON

OPINION

KAREN NELSON MOORE, Circuit Judge.

In 2004, the Michigan Court of Appeals overturned Kimberly Sykes's and Tevya Urquhart's convictions for the state crimes of "Larceny by Conversion" and "False Report of a Felony" on the grounds that their convictions were based on mere "speculation" and "layers of impermissible inferences." After their release from prison, Sykes and Urquhart ("the Plaintiffs") brought 42 U.S.C. § 1983 actions against several Detroit police officers, asserting claims of false imprisonment, malicious prosecution, and denial of due process. The Plaintiffs also brought suit against the City of Detroit on the grounds that the City failed to respond to citizen complaints and failed to train and supervise its employees. The district court dismissed the claims against the City of Detroit prior to trial but submitted the remaining claims to the jury. Ultimately, the jury returned a verdict in favor of the Plaintiffs on three claims against two individual officers ("the Defendants") and awarded the Plaintiffs over $2.5 million in compensatory and punitive damages. The Defendants now contest the district court's denial of their motion for judgment as a matter of law and appeal the damage award.

For the following reasons, we AFFIRM the judgment of the district court as to the Plaintiffs' claims of false arrest, malicious prosecution, and violations of due process; we REMAND the case for the sole purpose of having the district court articulate, in the first instance, an explanation for its denial of the Defendants' motion for remittitur; and we HOLD IN ABEYANCE the Plaintiffs' cross-appeals in Case Numbers 08-2090 and 08-2118, pending our review of the district court's explanation for the denial of the Defendants' motion for remittitur.

I. FACTS PROCEDURE

A. Background Facts

On March 7, 2002, Sykes, Urquhart, and a third individual, Kimberly Holmes, arrived at their place of employment, a, Sprint PCS store, in Detroit, Michigan shortly before 8:00 a.m. in order to open the store for business. As Urquhart disabled the alarm and the three women entered the store, two men approached and forced their way into the store's foyer despite Sykes's and Urquhart's attempt to close and lock the door behind them. Once inside, one of the men told the women to "shut the F up before somebody get[s] shot" and revealed a gun that he had been concealing under his shirt. Dist. Ct. Docket ("Doc") 25(5 (Urquhart Trial Test, at 151-52). The two men then marched the women at gun point through the employee door to the back of the store where they were ordered to lie on the floor. Urquhart testified that one of the robbers "proceeded to say [that] one of [them] better get the F up and open up the safe door." Doc. 257 (Urquhart Trial Test, at 21). Urquhart, who was three months pregnant at the time, was the only one who had the combination to open the safe. She was led at gunpoint to the room where the safe was located and was ordered to enter the room and remove the money contained inside the safe. In compliance with the armed robber's demand, Urquhart crossed the small room to the safe, "pulled out a money bag and [] slid it across [the floor] to the man at the door." Id. at 23. Retrieving the money bag, the armed man then ordered Urquhart to "shut up and get back on the ground," threatened to "come back and shoot" the women if they tried to do anything, and closed the door as he left. Id. at 26. The two robbers fled with approximately $27,000.

Within minutes of the perpetrators' exit, Holmes and Sykes approached the room containing the safe to check on Urquhart. When Urquhart rose from the floor to let Holmes and Sykes into the safe room, she was hysterical and crying uncontrollably. Sykes immediately called the police on her cellular phone. Still fearing that the robbers would return, the women decided to "barricade" themselves "under the table" in the safe room and wait for help. Id. at 33. During the ten-minute period that the women waited for the police to arrive, Urquhart remained inconsolable. At one point, she briefly emerged from under the table, crawling a few feet to a trash receptacle positioned next to the safe where she proceeded to spit up into the trash. Holmes also emerged from under the "safe haven" of the table sometime after Urquhart returned, crawled to the safe, opened the door, took out the remaining money bag, and then returned the money bag to the safe. Id. Images of the robbery were captured on the store's surveillance cameras with the exception of several dead spots, i.e., locations that were outside of the cameras' view, which included the hallway where the women initially were forced to lie down and the space underneath the table in the safe room.

When officers from the Detroit Police Department arrived on the scene, Defendant Sergeant Carol Nichols, the officer in charge, and Officer Terrence Sims began taking witness statements. Urquhart became increasingly agitated and extremely emotional when Sgt. Nichols attempted to interview her in the room where the robbery had just occurred and with the door closed. Sgt. Nichols testified that she found Urquhart's agitation suspicious and believed her to be "`full of crap,'" Doc. 260 (Nichols Trial Test, at 45) (quoting Nichols's deposition), although Sgt. Nichols did recognize that the interview took place in the same room where the pregnant Urquhart was held at gunpoint less than two hours earlier. Urquhart ultimately required medical treatment at the scene. Following Sgt. Nichols's conversation with Urquhart, Urquhart signed a written witness statement that Sgt. Nichols had drafted, providing Urquhart's account of the robbery. Both Sykes and Holmes also provided statements to the police at the scene, and, as with Urquhart, Sgt. Nichols found Sykes's statement suspicious, albeit for ever-changing reasons. Sgt. Nichols and Officer Sims also interviewed the store's Assistant Manager, Deshawn Mallory, who confirmed that he had placed two money bags in the safe the previous evening and that only one of them was missing.

During the ensuing police investigation, Sgt. Nichols began to suspect that the robbery was an inside job and that the three women had staged the crime. In addition to finding suspicious both Urquhart's agitation at being interviewed and Sykes's witness statement, Sgt. Nichols also had uncovered that Holmes was a frequent gambler at a local casino, which possibly supplied a motive. On March 11, 2002, Sgt. Nichols prepared a subpoena to serve on MotorCity Casino ("Casino"). Ten clays later, on March 21, 2002, the Casino faxed to Sgt. Nichols's attention at the police station Holmes's gaming records for the three days immediately following the robbery: March 8, March 9, and March 10. Those records indicated that Holmes's "player's card" was used to gamble $23,116 at the Casino over those three days. Importantly, however, the Casino cautioned in a disclaimer letter included with the gaming records that the amount of money wagered with a player's card was not reliable as to (1) the amount of money wagered or (2) the identity of the gambler. The Casino further disclosed that the records were estimates developed for marketing purposes and "would not establish in any reliable manner the dates of attendance, gambling activities, or winnings or losses of a player." Doc. 231-7 (Casino Letter at 2).

Sgt. Nichols never received the Casino records because she had been replaced as the officer in charge by Defendant Sergeant Derrick Anderson. It was thus Sgt. Anderson who retrieved the fax. Despite the disclaimer letter on the front of the records stating explicitly that the gaming records neither confirmed that Holmes had wagered the amount listed nor that Holmes was actually even present at the Casino, Sgt. Anderson conducted no further investigation. As the new officer in charge, Sgt. Anderson and his partner, Police Investigator Maurice McClure, obtained the original VHS video-surveillance tape from the Sprint PCS store and digitized the tape with the help of the Michigan State Police Technical Services Unit so that the images could be viewed in sequence. According to Sgt. Anderson, he viewed the tape numerous times.

The Sprint PCS store's security system is referred to as a "multiplex" time-lapse system. In essence, multiple cameras placed throughout the store take various still photographs within seconds of each other but do not record continuously, as a normal video camera would do. The tape must be "demultiplexed" in order to view a continuous stream of ordered images.

Based on the evidence that both he and Sgt. Nichols had gathered, on April 27, 2002, Sgt. Anderson prepared an Investigator's Report and sought authorization for an arrest warrant for Sykes, Urquha2-t, and Holmes from Assistant Prosecuting Attorney, Rita H. Lewis, at the Wayne County Prosecutor's Office. In addition to his written report detailing his investigation, Sgt. Anderson also submitted to Lewis the digitized surveillance tape from the Sprint PCS store, all of the witness statements, the Preliminary Complaint Report ("PCR"), and a list of potential witnesses. No one else in the Detroit Police Department reviewed Sgt. Anderson's request prior to its submission to Lewis, thereby allowing to go undetected several flagrant misrepresentations, exaggerations, and omissions of evidence that were key to determining whether probable cause existed to believe that the Plaintiffs had committed any crime. Lewis authorized the issuance of warrants for all three women, charging them with "Larceny by Conversion" and "False Report of a Felony." In her notes on why probable cause existed to arrest and charge the women, Lewis reproduced several of Sgt. Anderson's mis-representations of the evidence.

Armed with arrest warrants, Sgt. Anderson and Officer McClure arrested Sykes at her home on May 11, 2002. Following Sykes's arrest, Urquhart, now five-months pregnant, turned herself in to the police. A state court conducted a preliminary examination for Urquhart and Sykes on July 19 and July 23, 2002, at which time the state court determined that probable cause existed to bind the Plaintiffs over for trial. Sgt. Nichols was the only officer to testify at the hearing, and her testimony contained at least two false statements that bore upon whether there was sufficient evidence to prosecute. Urquhart and Sykes's case proceeded to trial before a jury on October 7, 2002, during which both Sgt. Nichols and Sgt. Anderson testified on behalf of the State. Because the prosecution's principal theory of the case relied heavily on Holmes's gambling habit, the State called Sgt. Anderson to testify about the gaming records that he had received from the Casino. Troublingly, Sgt. Anderson had failed to turn over the gaming records to the Plaintiffs' defense attorneys. Sgt. Anderson also never revealed — to either the prosecution or the defense — that the gaming records had been accompanied by a disclaimer letter, and in direct conflict with that letter, Sgt. Anderson testified that the records established conclusively that Holmes had gambled approximately the same amount of money taken in the robbery in the three days following the robbery.

A jury ultimately convicted Sykes and Urquhart on both counts. Sykes was sentenced to three months in jail and three years of probation, and she was ordered to pay restitution. People v. Sykes, No. 245079, 2004 WL 950129, at *1 (Mich.Ct. App. May 4, 2004). Urquhart was sentenced to five months in jail on each count and three years of probation. People v. Urquhart, No. 246001, 2004 WL 950062, at * 1 (Mich.Ct.App. May 4, 2004). Both were immediately imprisoned. More than one year after the Plaintiffs' convictions, Holmes pleaded nolo contendere, received probation, and was ordered to pay restitution. The Michigan Court of Appeals overturned the Plaintiffs' convictions on appeal. Detailing the meager quantity of evidence, the state appellate court held that the convictions were not supported by anything other than mere "speculation" and "impermissibly layered inferences." Sykes, 2004 WL 950129, at *2, *3; see Urquhart, 2004 WL 950062, at *2, *3.

B. District-Court Proceedings

Following her release from prison, Sykes filed suit in Wayne County Circuit Court in March 2005 against six police officers involved in the investigation of the robbery and the City of Detroit, alleging both state and federal-law violations in connection with her arrest and prosecution. The action was removed to federal court. Urquhart similarly filed suit in federal court in October 2005, and the cases were consolidated. Together, the Plaintiffs alleged violations of the Fourth and Fourteenth Amendments in light of their arrests and subsequent prosecutions, claiming that there was an absence of probable cause. They also argued that they were denied due process during their criminal trial because Sgt. Anderson with-held exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In their claim against the City of Detroit, the Plaintiffs asserted that the City was liable under 42 U.S.C. § 1983 for its failure properly to train, monitor, direct, discipline and supervise its officers, specifically referring to the City's policy of having the same individual write and approve an application for a warrant and its failure to respond adequately to citizen complaints against its police officers.

The Defendants filed their first motion for summary judgment in June 2006, which the district court denied "without prejudice to [the] defendants' right to seek summary judgment after [the] plaintiffs have had an opportunity to conduct full discovery." Doc. 48 (Dist. Ct. Order at 5). In June 2007, the Defendants filed their second motion for summary judgment. The district court denied the motion as untimely and also held that the City's motion failed on the merits because the City could not demonstrate an absence of material fact relative to its municipal-liability claim when it continually refused to comply with discovery orders related thereto. In November 2007, the case was reassigned from Judge Friedman to Judge Edmunds, Following the reassignment, Judge Edmunds sua sponte requested that the City of Detroit refile its motion for summary judgment on the municipal-liability issue that Judge Friedman had denied and then granted the City of Detroit's motion for summary judgment as to all the claims against it for failure to train or supervise its police officers and failure to respond to citizen complaints. Extensive motion practice subsequently resulted in the dismissal of several individually named police officers, and the case ultimately proceeded to trial on February 5, 2008, against the following parties on the following claims: (1) Sykes's claim of false arrest against Sgt. Anderson, (2) Sykes's and Urquhart's claims of malicious prosecution against Sgt. Anderson and Sgt. Nichols, and (3) Sykes's and Urquhart's claims of due-process violations against Sgt. Anderson, Sgt. Nichols, and Officer McClure.

Urquhart conceded that. her claim for false arrest was time barred.

Following trial, the jury found Sgt. Anderson liable for false arrest, malicious prosecution, and the violation of the Plaintiffs' due-process rights. The jury found Sgt. Nichols liable for malicious prosecution, but found in favor of Officer McClure. The jury awarded Sykes $1,063,000 in compensatory damages and $250,000 in punitive damages, and Urquhart received a compensatory-damage award of $1,020,000 and $250,000 in punitive damages. On March 20, 2008, the Defendants filed a motion for judgment as a matter of law under Federal Rule of Civil Procedure 50(b) and for remittitur of the jury's verdict, both of which the district court denied. The Defendants timely appealed, and each Plaintiff filed a timely conditional cross-appeal challenging the district court's grant of summary judgment in favor of the City of Detroit, as well as several of the district court's evidentiary rulings.

We hold these cross-appeals in abeyance.

II. ANALYSIS

On appeal, the Defendants challenge the district court's denial of their motion for judgment as a matter of law under Federal Rule of Civil Procedure 50(b). They specifically allege that the district court erred in rejecting their claims that (1) they were entitled to qualified immunity, (2) insufficient evidence supported the jury's verdict as to the false-imprisonment claim, (3) insufficient evidence supported the jury's verdict as to the malicious-prosecution claims, (4) insufficient evidence supported the jury's verdict as to the claims that the Plaintiffs' due-process rights were violated as a result of a Brady violation, (5) they were entitled to a new trial because the jury's verdict was unsupported by the evidence, (6) insufficient evidence supported an award of punitive damages, and (7) they were entitled to remittitur because the damages award was clearly excessive.

A. Qualified-Immunity Defense

The Defendants first argue that the district court erred in denying their Rule 50(b) motion on qualified-immunity grounds. As the Plaintiffs correctly contend, however, the Defendants have waived this claim by failing to raise the matter in their Rule 50(a) motion prior to the district court's submission of the case to the jury. Federal Rule of Civil Procedure 50(a) allows a party to bring a motion for judgment as a matter of law "at any time before the case is submitted to the jury." Fed.R.Civ.P. 50(a)(2). If the district court denies that motion and the case is submitted to the jury, "the movant may file a renewed motion for judgment as a matter of law" within ten days after the entry of judgment on the verdict. Id. 50(b). It is a "well-established proposition," however, "that a post-trial motion for judgment as a matter of law is not available at anyone's request on an issue not brought before the court prior to submission of the case to the jury." Ford v. County of Grand Traverse, 535 F.3d 483, 491 (6th Cir. 2008) (internal quotation marks omitted); see also Fed.R.Civ.P. 50(b) (providing explicitly that a Rule 50(b) motion is a "renewed" Rule 50(a) motion).

In the instant case, the Defendants moved orally for judgment as a matter of law under Rule 50(a), prior to the case's submission to the jury, asserting only that the evidence was insufficient to prove that the Defendants violated the Plaintiffs' Fourth and Fourteenth Amendment rights. Although the Defendants attempt to argue on appeal that their Rule 50(a) argument necessarily included a claim of qualified immunity because the sufficiency of the evidence is "inextricably intertwined" with qualified immunity, we have rejected such an argument. See Ford, 535 F.3d at 493. Instead, in Ford v. County of Grand Traverse, this circuit reaffirmed that while Rule 50 is not rigidly applied in all circumstances, a pre-verdict motion and a post-verdict motion must be similar enough to "provid[e] notice to the court and opposing counsel of any deficiencies in the opposing party's case prior to sending it to the jury," thereby fulfilling the stated purpose of the Rule. Id. at 492 (internal quotation marks omitted). Here, the Defendants' oral Rule 50(a) motion failed to provided the required notice. The Defendants never mentioned "qualified immunity," and they never referenced "clearly established law" or "objectively unreasonable actions," all of which are terms that might have put the court and the Plaintiffs on notice as to the Defendants' qualified-immunity claim.

To the extent that the instant case is distinguishable from Ford because the Defendants did raise their qualified-immunity argument in their first unsuccessful motion for summary judgment, that is a distinction without a difference. "[E]ven if a defendant raises qualified immunity at summary judgment, the issue is waived on appeal if not pressed in a Rule 50(a) motion." Parker v. Gerrish, 547 F.3d 1, 12 (1st Cir. 2008); see also Fed.R.Civ.P. 50. The Defendants' failure to make a pre-verdict motion for judgment as a matter of law under Rule 50(a) on the grounds of qualified immunity precluded them from making a post-verdict motion under Rule 50(b) on that ground. The qualified-immunity claim is waived.

B. Standard of Review for Rule 50(b)

Unlike their claim for qualified immunity, the Defendants have properly preserved their claims that the district court erred in denying their Rule 50(b) motion on the jury's findings of liability for (1) false arrest, (2) malicious prosecution, and (3) violations of due-process related to the suppression of evidence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

We review de novo the district court's denial of the Defendants' renewed motion for a judgment as a matter of law. Radvansky v. City of Olmsted Falls, 496 F.3d 609, 614 (6th Cir. 2007). We "apply[] the same deferential standard as the district court," and may grant the motion "only if in viewing the evidence in the light most favorable to the non-moving party, there is no genuine issue of material fact for the jury, and reasonable minds could come to but one conclusion, in favor of the moving party." Id. (internal quotation marks omitted). We must not, in conducting our review, "reweigh the evidence or assess the credibility of witnesses," id., and. our review is restricted to the evidence that was admitted at trial. 9B Charles A. Wright Arthur R. Miller, Federal Practice and Procedure § 2540 (3d ed. 2008) ("When reviewing a district court's grant or failure to grant judgment as a matter of law, a court of appeals only may consider evidence that was admitted at trial."); Tsehira v. Willinghain. 135 F.3d 1077, 1088 (6th Cir. 1998).

C. Unlawful-Arrest Claim

Sgt. Anderson challenges the jury's verdict as to his liability for the unlawful arrest of Sykes by arguing that no reasonable juror could have concluded that probable cause to arrest Sykes was lacking. We disagree. "A false arrest claim under federal law requires a plaintiff to prove that the arresting officer lacked probable cause to arrest the plaintiff." Voyticky v. Village of Timberlake, Ohio, 412 F.3d 669, 677 (6th Cir. 2005); see also Brooks v. Rothe, 577 F.3d 701, 706 (6th Cir. 2009). Because an arrest based on a facially valid warrant approved by a magistrate provides a complete defense, Voyticky, 412 F.3d at 677, Sykes, in order to prevail on a false-arrest claim, was required to prove by a preponderance of the evidence that in order to procure the warrant, Sgt. Anderson "knowingly and deliberately, or with a reckless disregard for the truth, made false statements or omissions that create[d] a falsehood" and "such statements or omissions [we]re material, or necessary, to the finding of probable cause." Wilson v. Russo, 212 F.3d 781, 786-87 (3d Cir. 2000) (internal quotation marks omitted); see Vakilian v. Shaw, 335 F.3d 509, 517 (6th Cir. 2003) (citing Wilson with approval and noting that in the § 1983 context "an officer or investigator cannot rely on judicial determination of probable cause if that officer knowingly makes false statements and omissions to the judge such that but for these falsities the judge would not have issued the warrant" (internal quotation marks and alteration omitted)); Hinchman v. Moore, 312 F.3d 198, 205-06 (6th Cir. 2002) ("Falsifying facts to establish probable cause to arrest and prosecute an innocent person is of course patently unconstitutional"). If the affidavit contains false statements or material omissions, we set aside the statements and include the information omitted in order to determine whether the affidavit is still sufficient to establish probable cause. Hill v. McIntyre, 884 F.2d 271, 275 (6th Cir. 1989) (citing Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)); Burleigh v. City of Detroit, 80 Fed.Appx. 454, 458 (6th Cir. 2003) (unpublished opinion) ("This alleged exaggeration of the facts need not detain us, however, if other undisputed facts support the state court's probable cause determination."); cf. United States v. Campbell, 878 F.2d 170, 171 (6th Cir. 1989).

"`Probable cause is defined as reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion.'" United States v. McClain, 444 F.3d 556, 562 (6th Cir. 2005) (quoting United States v. Ferguson, 8 F.3d 385, 392 (6th Cir. 1993) (en banc)). To determine whether Sgt. Anderson had probable cause to arrest Sykes, we consider the totality of the circumstances and whether the "facts and circumstances" of which Sgt. Anderson had knowledge at the moment of the arrest were "sufficient to warrant a prudent person . . . in believing . . . that" the seized individual "ha[d] committed . . . an offense." Hinchman, 312 F.3d at 204 (internal quotation marks omitted). "The belief of guilt must be particularized with respect to the person to be . . . seized." United States v. Romero, 452 F.3d 610, 616 (6th Cir. 2006) (internal quotation marks and alteration omitted).

In the instant case, a reasonable jury could have concluded that the evidence introduced at trial showed that Sgt. Anderson deliberately made false or misleading statements and omitted material information from his warrant application in order to manufacture probable cause. Most strikingly, Sgt. Anderson's warrant request made several assertions as to what the store's surveillance video revealed about the robbery that were plainly misleading, if not entirely false. For example, Sgt. Anderson asserted that although Urquhart "stated that she handed the perpetrator" a money bag from the safe, she did not, in fact, "hand[]" the money bag "to the perpetrator." Doc. 231-16 (Warrant Request at 3). Sgt. Anderson also claimed that "[t]he videotape . . . revealed that Ms. Urquhart never had contact with the perpetrator in the safe room or at any time during the robbery." Id. Although those statements are not obviously false, they certainly are misleading: the video shows Urquhart engage in movements indicating that she "slid," as opposed to "handed," the money bag to the perpetrator, which Sgt. Anderson did not acknowledge in his investigation materials; moreover, despite the fact that the perpetrator never made physical "contact" with Urquhart, the video clearly shows him standing in the doorway while Urquhart was forced to remove the money bag.

In addition to these misleading statements, some of Sgt. Anderson's claims were simply false. For instance, although the warrant request stated that "Holmes was . . . observed to remove [one] large money bag from the safe and toss it under the table where [the] defendant's [sic] Urquhart and Sykes were hiding" and that "Urquhart was also observed to exit from under the table and place an item (possibly the money bag) into the trashcan," the video shows no such thing. Id. First, the video does not show Holmes tossing anything under the table, let alone a bag of money, and, second, Sgt. Anderson inexplicably misrepresented the chronological order of the video by stating that Urquhart emerged from under the table to put something in the trash can after Holmes had removed the money bag from the safe. In fact, however, the video time stamps indicate that Urquhart emerged from under the table and crawled to the trash can well before Holmes opened the safe.

In addition to making these material misstatements, Sgt. Anderson inexplicably omitted perhaps the most probative evidence as to whether a robbery occurred — the presence of the two armed men. His notes make no mention of the fact that the videotape surveillance shows two men entering the store, thus corroborating Urquhart's and Sykes's statements and account of the robbery. Instead, Sgt. Anderson stated that the investigation revealed that "no robbery took place," and that "the defendant's [sic] met in the parking lot . . . [to conspire] to commit larceny" prior to work and then met "under a table in the safe room" to "divide[] the funds taken from the safe . . . by defendant Holmes." Id. But these conclusions are simply not supported by any of the information available to Sgt. Anderson at the time he submitted his warrant application. Confronted with this evidence, a reasonable jury could have concluded that Sgt. Anderson deliberately made numerous misleading, if not patently false, statements and omitted key information from the warrant application establishing that there really was a robbery.

Disregarding Sgt. Anderson's false and misleading statements and considering his material omissions, the evidence plainly supports the jury's finding that probable cause was lacking. At the time Sgt. Anderson submitted his investigatory report and warrant request to Assistant Prosecuting Attorney, Rita H. Lewis, at the Wayne County Prosecutor's Office, his investigation merely revealed the following: On the morning of the robbery, two men entered the Sprint PCS store behind Sykes, Urquhart, and Holmes and forced them toward the back. Although the robbers never fully entered the room with the safe, one of them stood in the doorway and had Urquhart open the safe and slide a money bag to him, and then ordered Urquhart to the ground. Following the robbery, Sykes called the police on her cellular phone, and the Plaintiffs sat under a table in the safe room, which was out of the camera's view, to wait for police. Holmes opened the safe at some point, and removed a money bag. The video does not readily show what she did with the money bag, but witness statements taken at the scene revealed that only one of the two money bags originally in the safe was missing, which necessitates the conclusion that Holmes replaced the money bag that she briefly handled following the robbery and could not have thrown it under the table. Sgt. Anderson also had discovered that Holmes liked to gamble, and that her player's card had been used in the days following the robbery to wager an amount that approximated the amount stolen. but he also knew that the fact that Holmes's player's card had been used was not evidence that Holmes, in fact, used it, or that the dollar amounts were accurate.

This evidence simply cannot support a finding of probable cause to believe that Sykes was involved in the robbery. Her behavior was entirely consistent with being the victim of a robbery and not incriminating in the least. As the Michigan Court of Appeals aptly concluded, there is simply no particularized evidence connecting Sykes to the robbery other than Sykes's mere presence at the scene of the crime, see Sykes, 2004 WL 950129, at *2, and mere presence is not sufficient to meet the probable-cause threshold. Harris v. Bornhorst, 513 F.3d 503, 515 (6th Cir.), cert. denied, ___ U.S. ___, 128 S.Ct. 2938, 171 L.Ed.2d 865 (2008) ("[I]t is well-established that an individual's mere presence at a crime scene does not constitute probable cause for an arrest."). Even if Sgt. Anderson was ultimately correct in his conclusion that the robbery was an inside job, there was absolutely no evidence indicating that Sykes herself had knowledge of the plan or otherwise committed a crime at the time he sought his warrant. "Speculation does not equate probable cause," United States v. McClain, 444 F.3d 556, 563 (6th Cir. 2005), and "no reasonabl[y] competent officer" would have concluded on these facts that probable cause existed. Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986).

Although `a subjective belief by the arresting officer cannot destroy probable cause where it exists," United States v. Harness, 453 F.3d 752. 754 (6th Cir. 2006) (internal quotation marks omitted), it is telling that the investigating officers admitted that they had nothing more than "inarticulable hunches" that the store employees were involved in the robbery. Doc. 260 (Nichols Trial Test, at 60); see also Doc. 261 (McClure Trial Test, at 85) (indicating that the officers' "conclusions [we]re just based on opinion, hunch, whatever you want to call it and that's what was presented to the prosecutor's office"); Doc. 237 (Anderson Trial Test, at 14-15) ("[It was] just my belief.").

In short, we affirm the judgment of the district court as to Sykes's claim of false arrest because probable cause was lacking at the time Sgt. Anderson submitted a warrant application for Sykes, and Sgt. Anderson cannot rely on the warrant's facial validity because it contains his deliberate material misrepresentations and omissions.

D. Malicious-Prosecution Claim

Sgt. Anderson and Sgt. Nichols next appeal their liability for malicious prosecution on two bases: (1) no reasonable jury could have concluded that they lacked probable cause to arrest the Plaintiffs, and (2) because Sgt. Anderson and Sgt. Nichols did not make the decision to prosecute, the Plaintiffs' claims fail for lack of causation.

1. Elements of a Malicious-Prosecution Claim

The Sixth Circuit "recognize[s] a separate constitutionally cognizable claim of malicious prosecution under the Fourth Amendment," which "encompasses wrongful investigation, prosecution, conviction, and incarceration." Barnes v. Wright, 449 F.3d 709, 715-16 (6th Cir. 2006) (internal quotation marks omitted). The "tort of malicious prosecution" is "entirely distinct" from that of false arrest, as the malicious-prosecution tort "remedies detention accompanied not by absence of legal process, but by wrongful institution of legal process." Wallace v. Kato, 549 U.S. 384, 390, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007) (internal quotation marks omitted). Neither the Supreme Court nor the Sixth Circuit has yet articulated the elements of a Fourth Amendment malicious-prosecution claim under 42 U.S.C. § 1983 with any specificity, Wallace, 549 U.S. at 390 n. 2, 127 S.Ct. 1091; Briner v. City of Ontario, 370 Fed.Appx. 682, 701 (6th Cir. 2010) (unpublished opinion), but because exploration of the showing required under federal law is necessary to resolve the instant case, we do so now.

To succeed on a malicious-prosecution claim under § 1983 when the claim is premised on a violation of the Fourth Amendment, a plaintiff must prove the following: First, the plaintiff must show that a criminal prosecution was initiated against the plaintiff and that the defendant "ma[d]e, influenced], or participate[] in the decision to prosecute." Fox v. DeSoto, 489 F.3d 227, 237 (6th Cir. 2007); see also McKinley v. City of Mansfield, 404 F.3d 418, 444 (6th Cir. 2005); Darrah v. City of Oak Park, 255 F.3d 301, 312 (6th Cir. 2001); Skousen v. Brighton High Sch., 305 F.3d 520, 529 (6th Cir. 2002). Second, because a § 1983 claim is premised on the violation of a constitutional right, the plaintiff must show that there was a lack of probable cause for the criminal prosecution, Fox, 489 F.3d at 237; Voyticky, 412 F.3d at 675. Third, the plaintiff must show that, "as a consequence of a legal proceeding," the plaintiff suffered a "deprivation of liberty," as understood in our Fourth Amendment: jurisprudence, apart from the initial seizure. Johnson, v. Knorr, All F.3d 75, 81 (3d Cir. 2007); see Gregory v. City of Louisville, 444 F.3d 725, 748-50 (6th Cir. 2006) (discussing the scope of "Fourth Amendment protections . . . beyond an initial seizure," including "continued detention without probable cause"); cf. Heck v. Humphrey, 512 U.S. 477, 484, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) ("[U]nlike the related cause of action for false arrest or imprisonment, [an action for malicious prosecution] permits damages for confinement imposed pursuant to legal process."). Fourth, the criminal proceeding must have been resolved in the plaintiffs favor. Heck. 512 U.S. at 484, 114 S.Ct. 2364 ("One element that must be alleged and proved in a malicious prosecution action is termination of the prior criminal proceeding in favor of the accused.").

The meaning of the term "participated" should be construed within the context of tort causation principles. Its meaning is akin to "aided." To be liable for "participating" in the decision to prosecute, the officer must participate in a way that aids in the decision, as opposed to passively or neutrally participating.

This circuit has never required that a plaintiff demonstrate "malice" in order to prevail on a Fourth Amendment claim for malicious prosecution, and we join the Fourth Circuit in declining to impose that requirement. See Brooks v. City of Winston-Salem, 85 F.3d 178, 184 n. 5 (4th Cir. 1996). The circuits that require malice have imported elements from the common law without reflecting on their consistency with the overriding constitutional nature of § 1983 claims. See Manganiello v. City of New York, 612 F.3d 149, 160-61 (2d Cir. 2010) (requiring a Fourth Amendment violation plus each element of the applicable state's law); McKenna v. City of Philadelphia, 582 F.3d 447, 461 (3d Cir. 2009) (requiring malice); Lassiter v. City of Bremerton, 556 F.3d 1049, 1054 (9th Cir. 2009) (same); Wilkins v. DeReyes. 528 F.3d 790, 799 (10th Cir. 2008) (same); Older v. City of Auburn, 618 F.3d 1240, 1256 n. 24 (11th Cir. 2010) (same). Common-law and § 1983 claims have different foundations. As the Supreme Court explained in Albright v. Oliver, "the constitutional tort 42 U.S.C. § 1983 authorizes stands on its own, influenced by the substance, but not tied to the formal categories and procedures, of the common law." 510 U.S. 266, 277 n. 1, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (Ginsburg, J., concurring); see also Carey v. Piphus, 435 U.S. 247, 258, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978) (requiring courts to "adapt[] common-law rules of damage" when adjudicating § 1983 cases because "the interests protected by a particular constitutional right may not also be protected by an analogous branch of the common law torts"); Pierce v. Gilchrist, 359 F.3d 1279, 1285-90 (10th Cir. 2004) (McConnell, J.) ("rejecting the view that a plaintiff does not state a claim actionable under § 1983 unless he satisfies the requirements of an analogous common law tort"). This court recognized the difference in Frantz v. Village of Bradford, in which we "h[e]ld that Albright precludes reliance on state law to define a § 1983 federal cause of action" and "reject[ed] the reasoning of courts which have relied on the state law elements of malicious prosecution." 245 F.3d 869, 874-75 (6th Cir. 2001), abrogated as recognized by Thacker v. City of Columbus, 328 F.3d 244, 259 (6th Cir. 2003); see also Darrah, 255 F.3d at 311-12 (confirming that this language in Frantz survived abrogation).

In the context of malicious prosecution, the Fourth Amendment violation that generates a § 1983 cause of action obviates the need for demonstrating malice. "For instance, if the harm alleged is a seizure lacking probable cause, it is unclear why a plaintiff would have to show that the police acted with malice." Gallo v. City of Philadelphia, 161 F.3d 217, 222 n. 6 (3d Cir. 1998). In fact, Fourth Amendment jurisprudence makes clear that we should not delve into the defendants' intent. "[T]he reasonableness of a seizure under the Fourth Amendment s-pollution-control-hearings-board#p77142 Wn.2d at 77. But because the legislature designated the DOE as the regulating agency for the state's water resources, Washington courts give "great weight" to the DOE's interpretation of relevant statutes and regulations. Port of Seattle v. Pollution Control Hearings Bd., 151 Wn.2d 568, 593, 90 P.3d 659 (2004).

Our fundamental objective in statutory interpretation is to give effect to the legislature's intent. Dep't of Ecology v. Campbell Gwinn, L.L.C., 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002). If a statute's meaning is plain on its face, then we give effect to that plain meaning as an expression of legislative intent. State ex rel. Citizens Against Tolls (CAT) v. Murphy, 151 Wn.2d 226, 242, 88 P.3d 375 (2004). We discern plain meaning not only from the provision in question, but also from closely related statutes and the underlying legislative purposes. Murphy, 151 Wn.2d 637 at 242. If a statute is susceptible to more than one reasonable interpretation after this inquiry, then the statute is ambiguous and we may resort to additional canons of statutory construction or legislative history. Campbell Gwinn, 146 Wn.2d at 12.

We give effect to all statutory language, considering statutory provisions in relation to each other and harmonizing them to ensure proper construction. King County v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 142 Wn.2d 543, 560, 14 P.3d 133 (2000). We avoid construing a statute in a manner that results in "unlikely, absurd, or strained consequences." Glaubach v. Regence BlueShield, 149 Wn.2d 827, 833, 74 P.3d 115 (2003). Instead, we favor an interpretation consistent with the spirit or purpose of the enactment over a literal reading that renders the statute ineffective. Glaubach, 149 Wn.2d at 833. In statutory construction, "includes" is a term of enlargement, while "means" is a term of limitation. Queets Band of Indians v. State, 102 Wn.2d 1, 4, 682 P.2d 909 (1984).

In 1945, the legislature enacted the WPCA. Laws of 1945, ch. 216. The purpose of the WPCA is "to maintain the highest possible standards to insure the purity of all waters of the state." RCW 90.48.010. In defining "waters of the state," RCW 90.48.020 provides that the phrase "shall be construed to include lakes, rivers, ponds, streams, inland waters, underground waters, salt waters and all other surface waters and watercourses within the jurisdiction of the state of Washington." RCW 90.48.030 grants the DOE "the jurisdiction to control and prevent the pollution of streams, lakes, rivers, ponds, inland waters, salt waters, water courses, and other surface and underground waters of the State of Washington."

RCW 90.48.080 further provides that

[i]t shall be unlawful for any person to throw, drain, run, or otherwise discharge into any of the waters of this state, or to cause, permit or suffer to be thrown, run, drained, allowed to seep or otherwise discharged into such waters any organic or inorganic matter that shall cause or tend to cause pollution of such waters according to the determination of the department, as provided for in this chapter.

The legislature authorized the DOE to enforce the WPCA by the issuance of orders and imposition of penalties for violations of RCW 90.48.080 and "orders adopted or issued pursuant to . . . [this] chapter[]." RCW 90.48.120, .140, .144(3).

Furthermore, RCW 90.48.035 authorizes and requires the DOE to promulgate

rules and regulations as it shall deem necessary to carry out the provisions of this chapter, including but not limited to rules and regulations relating to standards of quality for waters of the state and for substances discharged therein in order to maintain the highest possible standards of all waters of the state in accordance with the public policy as declared in RCW 90.48.010.

In accordance with the legislative mandates of RCW 90.48.010 and .035, the DOE developed water quality standards for protection of Washington's ground water and surface water. WAC 173-200-010; WAC 173-201A-010. The DOE's water quality standards define "surface waters of the state" to include "lakes, rivers, ponds, streams, inland waters, saltwaters, wetlands and all other surface waters and water courses within the jurisdiction of the state of Washington." WAC 173-201A-020. These water quality standards define "wetlands" as

The DOE's water quality standards are similar to those of the federal government. The federal Clean Water Act (CWA) prohibits the discharge of pollutants into navigable waters. 33 U.S.C. § 1311(a). The CWA defines "navigable waters" as "waters of the United States, including the territorial seas." 33 U.S.C. § 1362(7). Federal regulations promulgated by the United States Army Corps of Engineers (Corps) and Environmental Protection Agency (EPA) define "waters of the United States" as including "[a]ll interstate waters including interstate wetlands." 33 C.F.R. § 328.3(a)(2); 40 C.F.R. § 122.2(b). Thus, the DOE's water quality standards, like the Corps' and EPA's regulations, identify wetlands as "waters of the state" or "waters of the United States."

areas that are inundated or saturated by surface water or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.

WAC 173-201A-020 (emphasis added). Both surface and ground water are "waters of the state."

RCW 90.48.020.

RCW 90.48.010 expresses the legislature's intent that the DOE protect "all waters of the state." The legislature indicated the broad scope of this intent by its choice of the enlarging term "include" which modifies the phrase "all other surface waters" in its definition of "waters of the state." RCW 90.48.020. RCW 90.48.035 authorizes and requires the DOE to issue regulations it determines are necessary to protect the quality of "waters of the state." Accordingly, the DOE issued regulations that reflected its determination that wetlands contain "surface water or ground water," that this brings wetlands within the definition of "surface waters of the state" and, therefore, that wetlands must be protected under the WPCA. WAC 173-201A-020. Thus, the plain language of the WPCA clearly indicates that the DOE acts within its statutory authority over "waters of the state" when it regulates wetlands.

B. Other Statutes

PTI next contends that interpreting the WPCA as granting the DOE jurisdiction over wetlands conflicts with legislative grants of jurisdiction over wetlands to local authorities in chapter 36.70A RCW, the Growth Management Act, and chapter 90.58 RCW, the Shoreline Management Act of 1971, and argues that chapters 90.74, Aquatic Resources Mitigation, and 90.84 RCW, Wetlands Mitigation Banking, express the legislature's intent to limit the DOE's jurisdiction over wetlands. PTI also contends that the DOE's interpretation of wetlands as "surface waters of the state" ignores statutory language recognizing wetlands as land, not water. We disagree.

The legislature enacted the WPCA in 1945; it enacted the Shoreline Management Act in 1971, Laws of 1971, 1st Ex. Sess., ch. 286; it enacted the Growth Management Act in 1990, Laws of 1990, 1st Ex. Sess., ch. 17; it enacted chapter 90.74 RCW in 1997, Laws of 1997, ch. 424; it enacted chapter 90.84 RCW in 1998, Laws of 1998, ch. 248. PTI argues that these later statutes repeal or amend the earlier-enacted WPCA. But the law does not favor repeal by amendment or implication, and there is no repeal or amendment by implication when statutes can be harmonized. Misterek v. Wash. Mineral Prods., Inc., 85 Wn.2d 166, 168, 531 P.2d 805 (1975).

Here, none of the statutes cited by PTI contains an express prohibition of the DOE's jurisdiction over wetlands under the WPCA. Further, none of the statutes implicitly conflicts with the DOE's jurisdiction over wetlands as "waters of the state" under the WPCA. PTI correctly states that RCW 90.58.030(f) includes wetlands within its definition of "shorelands" under the Shoreline Management Act of 1971. But accepting PTI's contention that RCW 90.58.030(f) requires us to consider all wetlands only as land or "shorelands" would ignore the DOE's mandate to protect "all waters of the state," including "other surface waters," under the WPCA. RCW 90.48.010, .020.

Additionally, as a matter of common sense, the fact that one may consider wetlands as both land and water is inherent in the nature of wetlands. PTI's interpretation would lead to an absurd result.

Likewise, no statutory conflicts arise from an interpretation of shared jurisdiction between the DOE and local authorities over wetlands in this case. The Growth Management Act requires local authorities to create comprehensive plans for land use and development that must include measures protecting "critical areas" such as wetlands. RCW 36.70A.030, .070 (5)(c)(iv). The legislature's requirement that local authorities create critical areas regulations as part of their comprehensive plans does not demonstrate an intent to divest the DOE of wetlands jurisdiction under other statutes. Further, as noted by our Supreme Court, the legislature delegated enforcement power under the Shoreline Management Act of 1971 to the DOE to issue cease and desist orders, require corrective action, or issue penalties if a party undertakes development on a shoreline without a permit. Samuel's Furniture, Inc. v. Department of Ecology , 147 Wn.2d 440, 449, 54 P.3d 1194 (2004); RCW 90.58.210(1), (2). Here, PTI acted without a permit of any kind. Thus, even assuming that the SMA applied here, the DOE's exercise of authority to issue penalties under the WPCA was harmonious with its authority to issue penalties under the SMA. For all these reasons, we hold that the DOE's jurisdiction over wetlands under the WPCA in this case is harmonious with these statutes.

PTI also contends that RCW 90.48.260 limits the DOE's wetlands jurisdiction to its role in issuing water quality certification permits as part of the federal CWA. But RCW 90.48.144(3), the WPCA's penalty provision, provides in pertinent part:

[E]very person who . . . [v]iolates the provisions of RCW 90.48.080, or other sections of this chapter or chapter 90.56 RCW or rules or orders adopted or issued pursuant to either of those chapters, shall incur, in addition to any other penalty as provided by law, a penalty in an amount of up to ten thousand dollars a day for every such violation.

The plain text of RCW 90.48.144(3) indicates that the DOE possesses authority under RCW 90.48.080, independent of any other statute, to regulate waters of the state, including wetlands.

Vagueness

PTI next contends that the WPCA is unconstitutionally vague as applied to placing fill material into wetlands because (1) the statute provides no notice that it includes wetlands as "waters of the state" and (2) it provides no notice that "pollution" includes fill placement. Appellant's Br. at 32-35. It further contends that WAC 173-201A-300, the water antidegradation policy, provides no notice that it applies to the filling of wetlands. Again, we disagree.

Neither the Board nor the superior court entered a conclusion of law that PTI violated the antidegradation policy. The Board did conclude that PTI violated the DOE's wetland regulations "as contained in WAC 173-22." AR at 1232.

Washington courts have applied the void for vagueness doctrine to prohibitory land use regulations. See Burien Bark Supply v. King County, 106 Wn.2d 868, 871, 725 P.2d 994 (1986). We review a statute's constitutionality de novo. Putman v. Wenatchee Valley Med. Ctr., 166 Wn.2d 974, 978, 216 P.3d 374 (2009). We presume a statute's constitutionality. Haley v. Med. Disciplinary Bd., 117 Wn.2d 720, 739, 818 P.2d 1062 (1991). A challenger bears the burden of proving beyond a reasonable doubt that a statute is unconstitutionally vague. Haley, 117 Wn.2d at 739.

We consider a statute void for vagueness if its terms are "so vague that persons `of common intelligence must necessarily guess at its meaning and differ as to its application'." Haley, 117 Wn.2d at 739 (quoting Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S. Ct. 126, 70 L. Ed. 322 (1926)). But because "[s]ome measure of vagueness is inherent in the use of language," Haley, 117 Wn.2d at 740, we do not require "impossible standards of specificity or absolute agreement." City of Spokane v. Douglass, 115 Wn.2d 171, 179, 795 P.2d 693 (1990). Mere uncertainty does not establish unconstitutional vagueness. Douglass, 115 Wn.2d at 179. Given this, a statute meets a vagueness challenge "[i]f persons of ordinary intelligence can understand what the ordinance proscribes, notwithstanding some possible areas of disagreement." Douglass, 115 W.2d at 179.

Furthermore, undefined terms in a statute do not automatically render it unconstitutionally vague. Douglass, 115 Wn.2d at 180. For clarification, citizens may need to resort to other statutes or court opinions, which we consider "`[p]resumptively available to all citizens'." Douglass, 115 Wn.2d at 180 (alternation in original) (quoting State v. Smith, 111 Wn.2d 1, 7, 759 P.2d 759 (1988)).

First, as we discussed above, RCW 90.48.020 includes "all other surface waters" in its definition of "waters of the state." WAC 173-201A-020 defines wetlands as "areas that are inundated or saturated by surface water or ground water" and includes wetlands within the definition of "surface waters of the state." These statutes and regulations were presumptively available to PTI. Thus, the WPCA's application to wetlands is not unconstitutionally vague.

Second, the WPCA defines pollution in pertinent part to include the

alteration of the physical, chemical or biological properties, of any waters of the state, including change in temperature, taste, color, turbidity, or odor of the waters, or such discharge of any liquid, gaseous, solid, radioactive, or other substance into any waters of the state as will or is likely to create a nuisance or render such waters harmful, detrimental or injurious to the public health, safety or welfare, or to domestic, commercial, industrial, agricultural, recreational, or other legitimate beneficial uses, or to livestock, wild animals, birds, fish, or other aquatic life.

RCW 90.48.020. The common definition of "alter" is "to cause to become different in some particular characteristic (as measure, dimension, course, arrangement, or inclination) without changing into something else." Webster's Third New International Dictionary 63 (2002).

Here, both the DOE and Parametrix wetland specialists determined that the vegetation that existed before PTI placed the fill on the site was no longer present under the fill material. Further, the fill material compressed the soil beneath it by a minimum of two feet. People of ordinary intelligence would understand both facts as alterations of the physical properties of a wetland. Likewise, such acts, by destroying the vegetation essential for the wetlands' water quality and hydrologic functions, fall within the common understanding of discharge of a solid detrimental to the "legitimate beneficial uses" of this wetland. RCW 90.48.020. Thus, the definition of "pollution" under the WPCA is not vague as applied to placement of fill material into wetlands. RCW 90.48.020.

RCW 90.54.020(1), which declares fundamental principles for "[u]tilization and management of the waters of the state," provides in pertinent part that "[u]ses of water for . . . preservation of environmental and aesthetic values . . . [are] beneficial."

Finally, the DOE's antidegradation policy provides that it is "guided" by chapters 90.48 and 90.54 RCW. WAC 173-201A-300(1). RCW 90.54.020(3)(b) provides in pertinent part that "[n]otwithstanding that standards of quality established for the waters of the state would not be violated, wastes and other materials and substances shall not be allowed to enter such waters which will reduce the existing quality thereof." Furthermore, the antidegradation policy states that it applies "to human activities that are likely to have an impact on the water quality of a surface water" and that part of its purpose, which applies to "all waters and all sources of pollution," is to "ensure existing and designated uses are maintained and protected." WAC 173-201A-300(2)(c), (2)(e)(i).

Again, these other statutes and regulations were presumptively available to PTI. For the reasons we discussed above, a person of ordinary intelligence would understand them and the antidegradation policy, when read together, as applying to the filling of wetlands. Thus, we hold that the antidegradation policy is not unconstitutionally vague as applied to PTI.

A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

In the unpublished portion of this opinion, we reject PTI's contention that Order 4095, Penalty 4096, and the Board's hearing procedures violated PTI's due process rights. We also reject PTI's contentions that substantial evidence does not support the Board's findings and that the Board's conclusions of law were erroneous.

Due Process A. DOE's Order and Penalty

PTI contends that (1) Order 4095 and Penalty 4096 did not provide sufficient notice of the factual and legal bases for the DOE's action against PTI, (2) the DOE failed to comply with the notice requirements of RCW 90.48.120(1), and (3) Penalty 4096 did not notify PTI that its previous history of violations was included in calculation of the penalty. The DOE argues that Order 4095 and Penalty 4096 expressly stated the action's legal and factual basis, that due process does not require specification of what permits were required, that Order 4095 and Penalty 4096 were issued properly under RCW 90.48.120(2), and that Penalty 4096's reference to RCW 90.48.144(3) sufficiently notified PTI that its previous history of violations would be considered in penalty calculations. We agree with the DOE.

The United States Constitution prohibits government deprivations of "life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. A fundamental due process requirement is "`notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.'" City of Redmond v. Arroyo-Murillo, 149 Wn.2d 607, 617, 70 P.3d 947 (2003) (quoting Mullane v. Cent. Hanover Bank Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 94 L. Ed. 865 (1950)).

First, PTI, citing Mansour v. King County, 131 Wn. App. 255, 128 P.3d 1241 (2006), argues that Order 4095 and Penalty 4096 failed to cite the statutory and factual bases for the penalty assessed against it. But in Mansour, the challenged order did not cite the ordinance relied on by the state agency at the administrative hearing. 131 Wn. App. at 271. Likewise, the order did not refer to the subject of the hearing, a dog, as "`vicious,'" a necessary finding for invoking the ordinance relied on by the agency at the hearing. Mansour, 131 Wn. App. at 271. Accordingly, Division One of this court concluded this lack of notice failed to meet due process requirements.

In contrast, here, both Order 4095 and Penalty 4096 cited RCW 90.48.080 and WAC 173-201A-300, the statute and regulation the DOE relied on at the hearing. Further, both the order and penalty stated that PTI's violations arose from its discharge of fill material into wetlands, waters of the state, at its Smith Island facility. The order and penalty both provided notice of the factual and statutory bases for the penalty. Thus, we hold that they satisfied due process requirements.

PTI repeatedly contends that the DOE issued and the Board affirmed the penalty solely on PTI's failure to obtain a "404 permit" from the Corps. Appellant's Br. at 10. But the record reflects that references were made to 404 permits at the hearing for purposes other than establishing the penalty's basis. Further, the Board affirmed the penalty based on its analysis of the DOE's authority under chapter 90.48 RCW and PTI's failure to obtain any form of permit. Finally, the Board's finding PTI cited in support of its contention states only that PTI avoided significant costs by filling wetlands without obtaining appropriate permits, including a 404 permit. PTI's contentions fail.

As part of its argument, PTI contends that the texts of the statutes and regulations cited in the order and penalty failed to provide notice of the charges against it. Essentially, PTI repeats its vagueness argument, which we reject.

PTI also contends that Order 4095 and Penalty 4096 violated its due process rights because they did not specify what permits PTI failed to obtain before discharging pollutants into waters of the state. But RCW 90.48.080 prohibits, without exceptions, the discharge of pollution into waters of the state. The order and penalty clearly identified this as the gravamen of its allegations against PTI. Such notice adequately allowed PTI to prepare defenses, such as proving that the alleged actions did not occur, that the alleged actions did not violate RCW 90.48.080, or that circumstances (such as possession of a permit) exempted its alleged actions from liability under RCW 90.48.080. Thus, the penalty and order provided notice that satisfied due process requirements.

Second, Order 4095 specified that it was issued under RCW 90.48.120(2), which provides in pertinent part:

Whenever the department deems immediate action is necessary to accomplish the purposes of this chapter or chapter 90.56 RCW, it may issue such order or directive, as appropriate under the circumstances, without first issuing a notice or determination pursuant to subsection (1) of this section. An order or directive issued pursuant to this subsection shall be served by registered mail or personally upon any person to whom it is directed.

Here, the DOE, through Anderson, notified PTI of its determination that PTI's filling of wetlands violated state law. Four months later, PTI had failed to address the violation by producing the requested wetland delineation. RCW 90.48.120(2) allows the DOE to issue an order without prior notice when it determines that "immediate action is necessary." We hold that the DOE correctly invoked RCW 90.48.120(2).

PTI cites General Electric Co. v. United States Environmental Protection Agency, 53 F.3d 1324 (D.C. Cir. 1995), in support of its argument. But in that case, the penalty violated due process because the penalized party first learned through the penalty of the agency's interpretation of the statute giving rise to the violation. Gen. Elec., 53 F.3d at 1328. Here, the DOE's pre-enforcement contacts with PTI provided sufficient notice of its interpretation of the relevant statutes and regulations.

Finally, RCW 90.48.144(3) provides in pertinent part that "[t]he penalty amount shall be set in consideration of the previous history of the violator and the severity of the violation's impact on public health and/or the environment in addition to other relevant factors." Penalty 4096 stated that the DOE issued it under RCW 90.48.144(3), which plainly states that penalties consider the previous history of violators. Furthermore, during a deposition prior to the hearing, PTI's counsel asked a DOE employee, "Now when you consider past violations, what past violations are you talking about in this case?" Clerk's Papers at 460. Thus, we hold that Penalty 4096 provided sufficient notice under due process requirements of penalty calculation factors.

B. Hearing Procedures

PTI contends that the Board violated its due process rights by requiring the parties to abide by previously set time limits and by granting the DOE's motion to strike PTI's over-length hearing brief. We disagree.

Trial courts possess considerable latitude in managing their schedules to ensure the orderly and expeditious disposition of cases. Idahosa v. King County, 113 Wn. App. 930, 937, 55 P.3d 657 (2002). Thus, we review trial court rulings regarding the amount of time allowed for argument and the striking of briefs for abuse of discretion. Paxton v. City of Bellingham, 129 Wn. App. 439, 449, 119 P.3d 373 (2005) (time for argument); Murphy, 151 Wn.2d at 239 (striking briefs). We also review a trial court's refusal to admit surrebuttal evidence for abuse of discretion. State v. Luvene, 127 Wn.2d 690, 709-10, 903 P.2d 960 (1995). A trial court abuses its discretion when it bases its decision on unreasonable or untenable grounds. T.S. v. Boy Scouts of Am., 157 Wn.2d 416, 423, 138 P.3d 1053 (2006).

Here, the record reflects that the Board repeatedly granted additional time for PTI to present its case without any indication from PTI that the time granted was insufficient. PTI raised its claims of insufficient time only at the close of the hearing. PTI was not entitled to a surrebuttal and the Board did not abuse its discretion by denying PTI's motion for additional time.

PTI cites two cases from other states, In re Marriage of Goellner, 770 P.2d 1387 (Colo. App. 1989) and In re Marriage of Glenn, 18 Kan. App. 2d 603, 856 P.2d 1348 (1993), in support of its arguments. Even if we considered these cases, they are distinguishable. Unlike the mother in Goellner, PTI presented its full case-in-chief within the allotted time. 770 P.2d at 1389. Likewise, in Glenn, there was no indication that the trial court had allocated a specific amount of time to each party, and the trial court abruptly ended the hearing during the father's presentation of his case. 86 P.2d at 1350. These cases are not persuasive.

Likewise, in the 11 months between the pre-hearing order's entry and the filing deadline for hearing briefs, PTI did not file any dispositive motions or motions requesting permission to file an over-length brief. The Board did not abuse its discretion in striking PTI's over-length hearing brief and allowing it to file a new brief conforming with page limits.

Findings and Conclusions

PTI assigns error to nearly all of the Board's findings of fact and conclusions of law. The DOE counters that PTI impermissibly seeks to relitigate the credibility of evidence and that substantial evidence otherwise supports the Board's findings. We agree with the DOE.

PTI does not assign error to findings of fact 1, 4, 5, 26, and 30. These unchallenged findings of fact are verities on appeal. Hilltop Terrace Homeowners' Ass'n v. Island County, 126 Wn.2d 22, 30, 891 P.2d 29 (1995).

We review the Board's findings of fact for substantial evidence in light of the whole record. RCW 34.05.570(3)(e). Substantial evidence is evidence that is sufficient to persuade a fair-minded person of the truth or correctness of the matter. Cent. Puget Sound Growth Mgmt. Hearings Bd., 142 Wn.2d at 553. We overturn an agency's factual findings only if they are clearly erroneous and we are "`definitely and firmly convinced that a mistake has been made.'" Port of Seattle, 151 Wn.2d at 588 (quoting Buechel v. Dep't of Ecology, 125 Wn.2d 196, 202, 884 P.2d 910 (1994)). "[W]e do not overturn an agency decision even where the opposing party reasonably disputes the evidence with evidence of `equal dignity.'" Ferry County v. Concerned Friends of Ferry County, 121 Wn. App. 850, 856, 90 P.3d 698 (2004) (quoting Honesty in Envtl. Analysis Legislation (HEAL) v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 96 Wn. App. 522, 526, 979 P.2d 864 (1999)). And we do not weigh the credibility of witnesses or substitute our judgment for the Board's judgment regarding findings of fact. Port of Seattle, 151 Wn.2d at 588.

Application of the law to the facts is a question of law we review de novo. Port of Seattle, 151 Wn.2d at 588; see also Franklin County Sheriff's Office v. Sellers, 97 Wn.2d 317, 329-30, 646 P.2d 113 (1982) (explaining that mixed questions of law and fact are subject to de novo review, meaning the court must determine the correct law independent of the agency's decision and then apply the law to established facts de novo). We accord substantial weight to the agency's interpretation of the law it administers, particularly when the issue falls within the agency's expertise. Haley, 117 Wn.2d at 728; US West Commc'ns, Inc. v. Wash. Utils. Transp. Comm'n, 86 Wn. App. 719, 728, 937 P.2d 1326 (1997).

A. Findings of Fact

PTI largely focuses its arguments on the credibility of various expert witnesses who testified before the Board. But credibility determinations are for the Board, not us, so we do not consider these arguments. RCW 34.05.570(3)(e).

PTI, without specifying related findings and conclusions, generally appears to challenge findings of fact 16, 17, 18, 20, and 21 on the basis that substantial evidence does not support that PTI violated RCW 90.48.080 by discharging (1) pollution into (2) waters of the state.

First, evidence in the record establishes that the fill compacted the ground beneath it by a minimum of two feet and that the vegetation that existed before the fill was no longer present under the fill. Testimony established the beneficial effects of this vegetation. These facts demonstrate an alteration of the physical characteristics of the site constituting pollution under RCW 90.48.020. Substantial evidence supports the Board's findings and conclusions that PTI's actions could constitute pollution.

Second, WAC 173-22-035 requires that investigators perform delineations according to Washington State Wetland Identification and Delineation Manual standards and criteria adopted as mandatory in WAC 173-22-080 and as applied using the remainder of the manual. The DOE presented evidence that the site's wetlands were year-round, not seasonal. And the manual states that the atypical situations methodology applies to sites affected by unauthorized activities, such as alteration or removal of vegetation and placement of fill material over hydric soils. Thus, the atypical situations methodology, as opposed to the problem area methodology, applied. Substantial evidence supports that the DOE and Parametrix used the atypical situations methodology in their investigations and delineations and discovered the presence of all three wetlands indicators at the site. Thus, substantial evidence supports the Board's findings and conclusions that the DOE proved that PTI polluted wetlands, which are waters of the state.

As we have already noted, PTI's wetlands expert testified that the problem area methodology applied to seasonal wetlands.

Substantial evidence, such as a previous wetland study of the site and photographic evidence, supports finding of fact 2, concerning the historically documented presence of wetlands and draining efforts on Smith Island.

Substantial evidence, such as the Parametrix report and Anderson's investigations, supports finding of fact 3, concerning PTI's expansion of its Smith Island activities and filling approximately 12 acres of the site with untested fill material.

PTI challenges finding of fact 6, which generally concerns PTI's documents that identified the Smith Island site, prior to PTI's acquisition, as wetlands. But "RAP 10.3 requires an appellant to present argument to the reviewing court as to why specific findings of fact are in error and to support those arguments with citation to relevant portions of the record." In re Disciplinary Proceeding Against Whitney, 155 Wn.2d 451, 466, 120 P.3d 550 (2005). PTI provides no argument or citation to support its challenge to this finding. Because PTI insufficiently briefed this challenge, we decline to review it and conclude that these findings are verities. Whitney, 155 Wn.2d at 467.

PTI challenges findings of fact 7, 8, 9, 10, 11, and 27 on the basis that they "address alleged other bad acts, have no bearing on this case, do not demonstrate that PTI had notice that [the DOE] might impose penalties under WPCA and were introduced into the record without prior notice in violation of due process." Appellant's Br. at 2-3. These findings address Snohomish County's enforcement actions against PTI for its fill activities at the Smith Island site. PTI also contends that substantial evidence does not support these findings.

We addressed PTI's notice and due process arguments above. Regarding substantial evidence, PTI provides no argument or citation to support its challenge to these specific findings. Because PTI insufficiently briefed these challenges, we decline to review them and conclude that these findings are verities. Whitney, 155 Wn.2d at 467.

PTI challenges finding of fact 12, generally concerning wetland delineations and when permit approvals require them. But PTI appears to present no argument or citation to the record supporting its challenge. We decline to review it and treat this finding as a verity. Whitney, 155 Wn.2d at 467.

PTI challenges finding of fact 13 on the basis that it contains an erroneous definition of hydrophytic vegetation because such vegetation grows in hydric soils, not water, and requires the presence of wetland hydrology and because hydrophytic vegetation is not an indicator of wetland or aquatic processes. But this finding states the definition of hydrophytic vegetation contained in WAC 173-22-030(7), which provides that such vegetation may grow in water. And hydric soil is an indicator of the existence of a wetland. Substantial evidence supports this finding.

WAC 173-22-030(7) provides:

"Hydrophytic vegetation" means the sum total of macrophytic plant life growing in water or on a substrate that is at least periodically deficient in oxygen as a result of excessive water content. When hydrophytic vegetation comprises a community where indicators of hydric soils and wetland hydrology also occur, the area has wetland vegetation.

PTI challenges finding of fact 14 based on the Board's finding that Anderson noted the "prolonged inundation of soils" at the site. Appellant's Br. at 53. It also challenges the finding that Anderson visited the site on April 2, 2007. But Anderson testified that during his site visit he observed "obvious redoximorphic features, which indicate prolonged inundation or saturation" during his site visit. TP (Feb. 20, 2008) at 186. Substantial evidence supports this finding. But the record indicates that Anderson visited the site only on October 27, 2006, and August 8 and September 24, 2007. Substantial evidence does not support this finding. Regardless, this incorrect date does not establish that the rest of the Board's findings are "clearly erroneous" and we do not overturn them. Port of Seattle, 151 Wn.2d at 588. Likewise, despite this incorrect date, substantial evidence ultimately supports the DOE's order. RCW 34.05.570(3)(e).

PTI challenges finding of fact 15 on the basis that no evidence in the record establishes that Anderson specializes in hydrology identification and the wetland rating system. But Anderson testified that he has undergone advanced hydrology and wetland rating system training and has performed over 100 wetland delineations. Substantial evidence supports this finding.

PTI challenges finding of fact 16 on the basis that the Board erroneously concluded that Anderson performed a wetland delineation of the site. But this finding states only that Anderson investigated the site, not that he performed a delineation of it. Substantial evidence supports the finding that Anderson investigated the site using the atypical situations methodology contained within the state wetland delineation manual.

PTI challenges finding of fact 17 on the basis that that Anderson visited the site on April 2, 2007. As we noted, substantial evidence does not support this portion of the finding. PTI also challenges this finding on the basis that the Board erroneously found that Anderson performed a wetland delineation of the site. This finding does state that Anderson performed a delineation of the site, which substantial evidence does not support. Again, though, this is not enough to render the remainder of the Board's findings clearly erroneous and undermine our conclusion that substantial evidence supports the DOE's order. Finally, PTI also challenges this finding on the basis that wetland delineations must be performed during the growing season and the site's growing season was not year-round. But the manual states that investigators must use their professional judgment to determine if the growing season is in progress, the growing season occurs when the predominant plants of the area are growing, and that the growing season in coastal areas may be year-round. Anderson testified that the growing season at the site was year-around. Substantial evidence supports this finding.

PTI challenges finding of fact 18 on the basis that the Board found the existence of wetlands on the site because investigators discovered one or more wetland indicators present on the site. But the finding only lists the three wetland indicators and states that investigators found "one or more" of these indicators on the site. AR at 1219. This finding does not state that the Board concluded wetlands existed on the site based on less than all three of the factors. Substantial evidence supports this finding.

PTI challenges finding of fact 19 on the basis that reed canary grass and salmonberry do not disclose the presence of a wetland because they are facultative species which also grow in non-wetland areas. But Anderson testified that reed canary grass is hydrophytic vegetation. And Kelley's report indicated that reed canary grasses usually occur in wetlands with a probability between 67 and 99 percent. Substantial evidence supports this finding. PTI also challenges this finding on the basis that no evidence supports that the unfilled area amongst the fill was representative of the area beneath the fill. But under the atypical situations methodology, investigators look at reference sites to determine what vegetation was covered by fill. One such reference site is the unfilled wetland. Substantial evidence supports this finding.

PTI challenges finding of fact 20 on the basis that oxidized rhizospheres are not primary indicators of hydric soils. But PTI mischaracterizes this finding. The finding states that when wetlands are filled, some primary wetland indicators may no longer be present, and investigators must rely on indicators such as oxidized rhizospheres and soil survey data indicating hydric soils. And indicators of the existence of a wetland include observations of surface water or saturated soils and the listing of the soil as a hydric soil. One Corps delineation manual lists oxidized rhizospheres as a primary indicator of wetland hydrology. Substantial evidence supports this finding.

PTI challenges finding of fact 21 on the basis that, because legal human activity altered the hydrologic regime and required use of the problem area delineation methodology, the Board incorrectly relied on oxidized rhizospheres and evidence of prior hydrology to satisfy the hydrology wetland criterion. But as we discussed, substantial evidence supports the Board's findings requiring use of the atypical situations methodology. That methodology allows evidence of hydrology prior to alteration to satisfy the criterion. And oxidized rhizospheres are an indicator of wetland hydrology. WAC 173-22-080(10)(b)(vii). Substantial evidence supports this finding. PTI also challenges this finding on the basis that the Wetlands Inventory maps do not establish hydrology. But the manual identifies the Wetlands Inventory as a data source and the atypical situations methodology allows usage of historical records. Substantial evidence supports this finding.

PTI challenges finding of fact 22, generally concerning the Parametrix report's identification of wetlands and conclusion that PTI had filled wetlands at the site. But PTI appears to present no argument or citation to the record supporting its challenge. We decline to review it and treat this finding as a verity. Whitney, 155 Wn.2d at 467.

PTI appears to challenge finding of fact 23 on the basis that the Board erroneously relied on a preliminary Parametrix report. But the Board determined that the report was credible and that no credible evidence that the report was preliminary existed. We do not determine credibility issues. Substantial evidence supports this finding.

PTI challenges finding of fact 24 on the basis that the capillary fringe for the site's soil was greater than 12 inches. But the DOE presented testimony that the capillary fringe of the site's soil, Puget silty clay loam, is between 14 and 22 inches. Substantial evidence supports this finding.

PTI challenges finding of fact 25, generally concerning the Board's conclusion that the evidence supports that PTI unlawfully filled and damaged wetlands on the site. But as we discussed above, the evidence supports the Board's conclusion.

PTI challenges findings of fact 28 and 29, but appears to present no argument or citation to the record supporting its challenge. We decline to review them and treat these findings as verities. Whitney, 155 Wn.2d at 467.

Conclusions of Law

PTI presents argument and citation supporting its challenges of only conclusions of law 3, 8, 18, and 21. We therefore decline to review PTI's challenges to conclusions of law 1, 4, 5, 6, 7, 9, 10, 11, 12, 13, 16, 17, 19, and 20.

PTI challenges conclusion of law 3 on the basis that the purpose of the wetland delineation manual is to provide methods to allow investigators to make an accurate delineation at any time during the year. But WAC 173-22-080(1) states exactly that. Evidence in the findings supports the Board's conclusion.

PTI challenges conclusions of law 8 and 18 on the basis that filling wetlands with soil does not constitute pollution under RCW 90.48.020. But as we discussed above, it does. We agree with the Board's conclusion.

Finally, PTI challenges conclusion of law 21 because the Board upheld Penalty 4096, which imposed liability on PTI as well as on Dave Forman, an individual. But PTI sought to include this as a new assignment of error before the superior court through an eratta sheet reflecting corrections to its trial brief. RCW 34.05.554 bars parties from raising issues that they failed to raise below. Furthermore, Forman did not appeal the penalty. Forman has waived the issue and PTI may not raise it here. PTI's challenge fails. Affirmed.

PENOYAR, C.J. and SWEENEY, J., concur.