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.