Bill Text: MI HB4378 | 2015-2016 | 98th Legislature | Introduced

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Bill Title: Administrative procedure; contested cases; award of costs and fees to prevailing party in a case involving this state; remove certain restrictions. Amends sec. 123 of 1969 PA 306 (MCL 24.323).

Spectrum: Partisan Bill (Republican 7-0)

Status: (Introduced - Dead) 2015-03-25 - Printed Bill Filed 03/25/2015 [HB4378 Detail]

Download: Michigan-2015-HB4378-Introduced.html

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HOUSE BILL No. 4378

 

March 24, 2015, Introduced by Reps. Cole, Johnson, Lucido, Kelly, Glenn, Chatfield and Franz and referred to the Committee on Government Operations.

 

     A bill to amend 1969 PA 306, entitled

 

"Administrative procedures act of 1969,"

 

by amending section 123 (MCL 24.323), as added by 1984 PA 196.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 123. (1) The presiding officer that who conducts a

 

contested case shall award to a prevailing party, other than an

 

agency, the costs and fees incurred by the party in connection with

 

that the contested case. , if the presiding officer finds that the

 

position of the agency to the proceeding was frivolous. To find

 

that an agency's position was frivolous, the presiding officer

 

shall determine that at least 1 of the following conditions has

 

been met:

 

     (a) The agency's primary purpose in initiating the action was

 

to harass, embarrass, or injure the prevailing party.

 

     (b) The agency had no reasonable basis to believe that the

 

facts underlying its legal position were in fact true.

 

     (c) The agency's legal position was devoid of arguable legal

 

merit.

 

     (2) If the parties to a contested case do not agree on the

 

awarding of costs and fees under this section , and if a party

 

requests a hearing, the presiding officer shall hold a hearing

 

shall be held if requested by a party, regarding the awarding of

 

costs and fees. and the amount thereof. The party seeking an award

 

of costs and fees shall must present evidence establishing all of

 

the following:

 

     (a) That the position of the agency was frivolous.

 

     (a) (b) That the party is a prevailing party.

 

     (b) (c) The amount of costs and fees sought. including The

 

party shall present an itemized statement from any attorney , or

 

agent , or who represented the party and any 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 under

 

this section. Financial records of a party shall be are exempt from

 

public disclosure if requested by the party so requests at the time

 

the records are submitted pursuant to under this section.

 

     (d) (e) That a final order that is not subject to further

 

appeal other than for the judicial review of costs and fees

 

provided for in section 125 has been entered in the contested case

 

regarding the subject matter of the contested case.

 

     (3) The presiding officer 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 contested case.

 

     (4) The final action taken by the presiding officer under this

 

section in regard to costs and fees shall must include written

 

findings as to that the action and the basis for the findings.

 

     (5) Subject to subsection (6), the amount of costs and fees

 

awarded under this section shall must include those reasonable and

 

necessary costs actually incurred by the party and any costs

 

allowed by law or by a rule promulgated under this act. Subject to

 

subsection (6), 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, subject to the following:

 

     (a) The except that the expenses paid for an expert witness

 

shall must be reasonable and necessary as determined by the

 

presiding officer.

 

     (b) An attorney or agent fee shall not be awarded at a rate of

 

more than $75.00 per hour unless the presiding officer determines

 

that special circumstances existed justifying a higher rate or an

 

applicable rule promulgated by the agency provides for the payment

 

of a higher rate because of special circumstances.

 

     (6) The presiding officer shall only award costs and fees

 

awarded under this section shall only be awarded to the extent and

 

amount that the agency caused the prevailing party to incur those

 

costs and fees.

 

     (7) This section does not apply to any an agency in its role

 

of hearing or adjudicating a case. Unless an agency has discretion

 

to proceed, this section does not apply to an agency acting ex rel

 

on the information and at the instigation of a nonagency person who

 

has a private interest in the matter nor or to an agency required

 

by law to commence a case upon the action or request of another

 

nonagency person.

 

     (8) This section does not apply to an agency that has such a

 

minor role as a party in the case in comparison to other

 

nonprevailing parties so as to make its liability for costs and

 

fees under this section unreasonable, unjust, or unfair.

 

     Enacting section 1. This amendatory act takes effect 90 days

 

after the date it is enacted into law.