SB-0190, As Passed Senate, May 31, 2016

SUBSTITUTE FOR

SENATE BILL NO. 190

     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 On stipulation of the parties or motion

under subsection (3), 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, unless the agency demonstrates by clear

and convincing evidence that the agency's position was

substantially justifiable. However, subsection (2) applies in any

of the following:

     (a) A proceeding 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) A proceeding to which the department of health and human

services is a party that relates to the child abuse and neglect

central registry.

     (c) A licensing proceeding with respect to a summary

suspension of the license that was required under section 92(2).

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

presiding officer shall only award costs and fees under subsection

(1) if the presiding officer finds that the position of the agency

to in the proceeding was frivolous. To find that an agency's

position was frivolous, the presiding officer shall must determine

that at least 1 or more of the following conditions has been met:is

applicable:

     (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.

(3) (2) If the parties to a contested case do not agree on the

awarding of costs and fees under this section, the prevailing party

may file a motion for costs and fees. On a motion under this

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

agency was frivolous.

     (b) That the party is a prevailing party.

     (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.

     (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.

     (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.

(4) (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.

(5) (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.

(6) (5) Subject to subsection (6), (7), 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), (7), 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. , subject to

the following:

     (a) The However, 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.

(7) (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.

(8) (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.

(9) (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.

     Enacting section 2. This amendatory act does not take effect

unless all of the following bills of the 98th Legislature are

enacted into law:

     (a) Senate Bill No. 189.

     (b) Senate Bill No. 886.