March 24, 2015, Introduced by Reps. Johnson, Cole, Lucido, Kelly, Glenn, Chatfield and Franz and referred to the Committee on Government Operations.
A bill to amend 1961 PA 236, entitled
"Revised judicature act of 1961,"
by amending sections 2421b, 2421c, 2421d, and 2421e (MCL 600.2421b,
600.2421c, 600.2421d, and 600.2421e), as added by 1984 PA 197.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 2421b. (1) "Costs and fees" means the normal costs
incurred
in being a party in a civil action after an the action
has
been
filed with the court , and
those provided by law or court
rule, and include all of the following:
(a) The reasonable and necessary expenses of expert witnesses
as determined by the court.
(b) The reasonable cost of any study, analysis, engineering
report,
test, or project which that
is determined by the court to
have
been necessary for the preparation of a the party's case.
(c)
Reasonable A reasonable and necessary attorney fees fee,
including
those a fee for purposes of any appeal.
(2) "Party" means a named plaintiff or defendant involved in
the
particular civil action. , but does not include any of the
following:
(a)
An individual whose net worth was more than $500,000.00 at
the
time the civil action was commenced.
(b)
The sole owner of an unincorporated business or any
partnership,
corporation, association, or organization whose net
worth
exceeded $3,000,000.00 at the time the civil action was
commenced
and which is not either exempt from taxation pursuant to
section
501(c)(3) of the internal revenue code or a cooperative
association
as defined in section 15(a) of the agricultural
marketing
act, 12 U.S.C. 1141j(a).
(c)
The sole owner of an unincorporated business or any
partnership,
corporation, association, or organization that had
more
than 250 full-time equivalent employees as determined by the
total
number of employees multiplied by their working hours divided
by
40, at the time the civil action was commenced.
(d)
As used in this subsection "net worth" means the amount
remaining
after the deduction of liabilities from assets as
determined
according to generally accepted accounting principles.
(3)
"Prevailing party" means as follows:either of the
following, as applicable:
(a)
In an a civil action involving several remedies, or
issues, or
counts which that state different causes of actions
action or defenses, the party prevailing as to each remedy, issue,
or count.
(b) In an action involving only 1 issue or count stating only
1 cause of action or defense, the party prevailing on the entire
record.
(4)
"State" means an agency or department of the this state,
1
or
more members of an agency or department of the this state,
or
any
official of the this state or of an agency or department of the
this
state acting in his or her official
capacity. , but State
does
not
include an institution of higher education established pursuant
to
under article 8 VIII of the state constitution
of 1963; the
department
of labor as administrator of licensing
and regulatory
affairs or any of its agencies in administering the worker's
disability
compensation act of 1969, Act No. 317 of the Public Acts
of
1969, being sections 418.101 to 418.941 of the Michigan Compiled
Laws,
1969 PA 317, MCL 418.101 to
418.941, the Michigan employment
security
act, Act No. 1 of the Public Acts of Extra Session of
1936,
being sections 421.1 to 421.72 of the Michigan Compiled Laws,
and
Act No. 176 of the Public Acts of 1939, being sections 423.1 to
423.30
of the Michigan Compiled Laws; 1936
(Ex Sess) PA 1, MCL
421.1 to 421.75, or 1939 PA 176, MCL 423.1 to 423.30; or the
department of corrections.
Sec.
2421c. (1) The A court that conducts a civil action
brought
by or against the this state as a party, except for a civil
infraction
action, shall award to a prevailing party other than the
this state the costs and fees incurred by that party in connection
with
the civil action. , if the court finds that the position of
the
state to the civil action was frivolous. To find that the
state's
position was frivolous, the court shall determine that at
least
1 of the following conditions has been met:
(a)
The state's primary purpose in initiating the action was
to
harass, embarrass, or injure the prevailing party.
(b)
The state had no reasonable basis to believe that the
facts
underlying its legal position were in fact true.
(c)
The state's legal position was devoid of arguable legal
merit.
(2) If the parties to an action do not agree on the awarding
of
costs and fees under sections 2421a to 2421f, a motion may be
brought
regarding the awarding of party
may move the court to award
costs
and fees. and the amount thereof. The moving party
seeking an
award
of costs and fees under sections 2421a to 2421f shall must
establish all of the following:
(a)
That the position of the state was frivolous.
(a) (b)
That the party was the prevailing
party.
(b) (c)
The amount of costs and fees sought
including an
itemized
statement from any attorney , who
represented the party
and
any agent , or expert witness who represented the party showing
the rate at which the costs and fees were computed.
(c) (d)
That the party is eligible to
receive an award of
costs and fees under sections 2421a to 2421f. For good cause shown,
a party may seek a protective order regarding the financial records
of
that the party.
(3) The court may reduce the amount of the costs and fees to
be awarded under this section, or deny an award, to the extent that
the
party seeking the award engaged in conduct which that unduly
and
unreasonably protracted the civil action.
(4) Subject to subsection (5), the amount of costs and fees
awarded
under this section shall must
include those reasonable
costs actually incurred by the party and any costs allowed by law
or by court rule. Subject to subsection (5), the amount of fees
awarded
under this section shall must
be based upon the prevailing
market
rate for the kind and quality of the services furnished. ,
except
that an attorney fee shall not be awarded at a rate of more
than
$75.00 per hour unless the court determines that special
circumstances
existed justifying a higher rate or an applicable law
or
court rule provides for the payment of a higher rate.
(5)
The court shall only award costs and fees awarded under
this
section shall only be awarded to the extent and amount that
the
this state caused the prevailing party to incur those
costs and
fees.
(6) This section does not apply to an agency or department in
establishing a rate; in approving, disapproving, or withdrawing
approval
of a form; nor or in its role of hearing or adjudicating a
case. Unless an agency had discretion to proceed, this section does
not apply to an agency or department acting ex rel on the
information and at the instigation of a nonagency or
nondepartmental
person who has a private interest in the matter nor
or
to an agency or department required by
law to commence a case an
action upon the action or request of another nonagency or
nondepartmental person.
(7) This section does not apply to an agency or department
that
has such a minor role as a party in the case action in
comparison
to other nonprevailing parties so as to make its
liability for costs and fees under this section unreasonable,
unjust, or unfair.
Sec. 2421d. If the court awards costs and fees to a prevailing
party upon judicial review of the final action of a presiding
officer
in a contested case pursuant to under
section 125 of Act
No.
306 of the Public Acts of 1969, being section 24.325 of the
Michigan
Compiled Laws, the
administrative procedures act of 1969,
1969 PA 306, MCL 24.325, the court shall award those costs and fees
provided
for in section 123 of Act No. 306 of the Public Acts of
1969,
being section 24.323 of the Michigan Compiled Laws, if the
court
finds that the position of the state involved in the
contested
case was frivolous.the
administrative procedures act of
1969, 1969 PA 306, MCL 24.323.
Sec. 2421e. (1) The director of the department of technology,
management, and budget shall report annually to the legislature
regarding
the amount of costs and fees paid by the this state
during
the preceding fiscal year pursuant to under sections 2421 to
2421d. The report shall describe the number, nature, and amount of
the awards; the claims involved; and any other relevant information
which
that would aid the legislature in evaluating the scope
and
impact of the awards. Each agency or department of this state shall
provide the director of the department of technology, management,
and budget with information as is necessary for the director to
comply with the requirements of this section.
(2) If costs and fees are awarded under sections 2421 to 2421d
to a prevailing party, the agency or department over which the
party prevailed shall pay those costs and fees.
(3) Sections 2421a to 2421d do not apply to a civil action
which
that is settled
, or a civil action in which a
consent
agreement
is entered into. , or to a civil action based in tort.
Enacting section 1. This amendatory act takes effect 90 days
after the date it is enacted into law.
Enacting section 2. This amendatory act does not take effect
unless Senate Bill No.____ or House Bill No. 4378 (request no.
00851'15) of the 98th Legislature is enacted into law.