November 9, 2004, Introduced by Reps. Bradstreet, Acciavatti, Tabor, Hummel, Garfield, Pumford, Drolet, Casperson and Hoogendyk 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:
1 Sec. 2421c. (1) The court that conducts a civil action
2 brought by or against the state as a party, except for a civil
3 infraction action, shall award to a prevailing party other than
4 the state the costs and fees incurred by that party in connection
5 with the civil action, if the court finds that the position of
6 the state to the civil action was frivolous or if the state was
7 the sole appellant from a lower court. To find that the state's
8 position was frivolous, the court shall determine that at least 1
9 of the following conditions has been met:
10 (a) The state's primary purpose in initiating the action was
1 to harass, embarrass, or injure the prevailing party.
2 (b) The state had no reasonable basis to believe that the
3 facts underlying its legal position were in fact true.
4 (c) The state's legal position was devoid of arguable legal
5 merit.
6 (2) If the parties to an action do not agree on the awarding
7 of costs and fees under sections 2421a to 2421f, a motion may be
8 brought regarding the
awarding and amount of costs and fees. and
9 the amount thereof. The party seeking an award of costs and fees
10 under sections 2421a to 2421f shall establish all of the
11 following:
12 (a) That the position of the state was frivolous or that the
13 state was the sole appellant from a lower court.
14 (b) That the party was the prevailing party.
15 (c) The amount of costs and fees sought including an
16 itemized statement from any attorney, agent, or expert witness
17 who represented the party showing the rate at which the costs and
18 fees were computed.
19 (d) That the party is eligible to receive an award of costs
20 and fees under sections 2421a to 2421f. For good cause shown a
21 party may seek a protective order regarding the financial records
22 of that party.
23 (3) The court may reduce the amount of the costs and fees to
24 be awarded, or deny an award, to the extent that the party
25 seeking the award engaged
in conduct which that unduly and
26 unreasonably protracted the civil action.
27 (4) Subject to subsection (5), the amount of costs and fees
1 awarded under this section shall include those reasonable costs
2 actually incurred by the party and any costs allowed by law or by
3 court rule. Subject to subsection (5), the amount of fees
4 awarded under this section shall be based upon the prevailing
5 market rate for the kind and quality of the services furnished,
6 except that an attorney fee shall not be awarded at a rate of
7 more than $75.00 per hour unless the court determines that
8 special circumstances existed justifying a higher rate or an
9 applicable law or court rule provides for the payment of a higher
10 rate.
11 (5) The costs and fees awarded under this section shall only
12 be awarded to the extent and amount that the state caused the
13 prevailing party to incur those costs and fees.
14 (6) This section does not apply to an agency or department
15 in establishing a rate; in approving, disapproving, or
16 withdrawing approval of a form; nor in its role of hearing or
17 adjudicating a case. Unless an agency had discretion to proceed,
18 this section does not apply to an agency or department acting ex
19 rel on the information and at the instigation of a nonagency or
20 nondepartmental person who has a private interest in the matter
21 nor to an agency or department required by law to commence a case
22 upon the action or request of another nonagency or
23 nondepartmental person.
24 (7) This section does not apply to an agency or department
25 that has such a minor role as a party in the case in comparison
26 to other nonprevailing parties so as to make its liability for
27 costs and fees under this section unreasonable, unjust, or
1 unfair.