March 8, 2005, Introduced by Reps. Baxter, Kahn, Robertson, Gosselin, Hildenbrand, Nitz, Vander Veen, Stahl, Hummel, Sheen, Wenke, Emmons and Marleau and referred to the Committee on Judiciary.
A bill to amend 1961 PA 236, entitled
"Revised judicature act of 1961,"
by amending section 2421c (MCL 600.2421c), as added by 1984 PA 197.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 2421c. (1) The court that conducts a civil action brought
by or against the state as a party, except for a civil infraction
action, shall award to a prevailing party other than the 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 or if the state was the only appellant
in an appeal of the action. To find that the state's position was
frivolous,
the court shall must determine that at least 1 of the
following
conditions has been met
applies:
(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
seeking an award of costs and fees.
and
the amount thereof. The party seeking an award of To be
awarded
costs
and fees under sections 2421a to 2421f, shall a party must
establish all of the following:
(a) That the position of the state was frivolous or that the
state was the only appellant in an appeal of the action.
(b) That the party was the prevailing party.
(c) The amount of costs and fees sought including an itemized
statement from any attorney, 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 party.
(3) The court may reduce the amount of the costs and fees to
be awarded, 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 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 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 costs and fees awarded under this section shall only
be awarded to the extent and amount that the 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 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
to an agency or department required by law to commence a case 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 in comparison to
other
nonprevailing parties so as to make its liability that making
the agency or department liable for costs and fees under this
section would be unreasonable, unjust, or unfair.