Bill Text: MI SB0245 | 2019-2020 | 100th Legislature | Introduced


Bill Title: Civil procedure; costs and fees; recovery of costs and fees in an action involving this state; remove certain restrictions. Amends secs. 2421b, 2421c, 2421d & 2421e of 1961 PA 236 (MCL 600.2421b et seq.). TIE BAR WITH: SB 0246'19

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced) 2019-03-21 - Referred To Committee On Oversight [SB0245 Detail]

Download: Michigan-2019-SB0245-Introduced.html

 

 

 

 

 

 

 

 

 

 

 

 

 

SENATE BILL No. 245

 

 

March 21, 2019, Introduced by Senators MCBROOM, HOLLIER, HORN, WOJNO and DALEY and referred to the Committee on Oversight.

 

 

 

     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 On stipulation of the parties or motion

 

under subsection (3), 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, unless this state demonstrates

 

that this state's position was substantially justifiable. However,

 

subsection (2) applies in any of the following:

 

     (a) An action involving illegal gambling and a licensee under

 

the Michigan liquor control code of 1998, 1998 PA 58, MCL 436.1101

 

to 436.2303, to which the liquor control commission is a party.

 

     (b) An action to which the department of health and human

 

services is a party that relates to either of the following:

 

     (i) The child abuse and neglect central registry.

 

     (ii) Child support or the establishment of paternity under

 

part D of subchapter IV of the social security act, 42 USC 651 to

 

669b.

 

     (c) An action related to the summary suspension of a license

 

that was required under section 92(2) of the administrative

 

procedures act of 1969, 1969 PA 306, MCL 24.292.

 

     (2) In an action described in subsection (1)(a) to (c), the

 

court shall only award costs and fees under subsection (1) if the

 

court finds that the position of the this state to in the civil

 

action was frivolous. To find that the this state's position was

 

frivolous, the court shall must determine that at least 1 of the

 

following conditions has been met:

 

     (a) The This state's primary purpose in initiating the action

 

was to harass, embarrass, or injure the prevailing party.

 

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

 

facts underlying its legal position were in fact true.

 

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

 

legal merit.


     (3) (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 the prevailing 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 If subsection (2) applies, that the position of the

 

this state was frivolous.

 

     (b) That the party was the prevailing party.

 

     (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.

 

     (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.

 

     (4) (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.

 

     (5) (4) Subject to subsection (5), (6), 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), (6),

 

the amount of fees awarded under this section shall must be based

 

upon on 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.

 

     (6) (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.

 

     (7) (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.

 

     (8) (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. 246

 

of the 100th Legislature is enacted into law.

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