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: Bipartisan Bill
Status: (Engrossed - Dead) 2020-03-12 - Referred To Committee On Judiciary [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.
