Bill Text: MI SB0101 | 2017-2018 | 99th Legislature | Engrossed
Bill Title: Administrative procedure; contested cases; award of costs and fees to prevailing party in a case involving this state; remove certain restrictions; exempt parole hearings from administrative procedures act, and make general revisions to contested case provisions. Amends secs. 71, 72, 80, 87, 115, 122 & 123 of 1969 PA 306 (MCL 24.271 et seq.). TIE BAR WITH: SB 0100'17
Spectrum: Partisan Bill (Republican 1-0)
Status: (Vetoed) 2018-12-31 - Vetoed By Governor 12/28/2018 12/31/18 Addenda [SB0101 Detail]
Download: Michigan-2017-SB0101-Engrossed.html
SB-0101, As Passed Senate, September 14, 2017
SENATE BILL No. 101
February 2, 2017, Introduced by Senators ROBERTSON, COLBECK, SHIRKEY, BOOHER, HANSEN, JOHNSON and MACGREGOR and referred to the Committee on Elections and Government Reform.
A bill to amend 1969 PA 306, entitled
"Administrative procedures act of 1969,"
by amending sections 71, 72, 80, 87, 115, 122, and 123 (MCL 24.271,
24.272, 24.280, 24.287, 24.315, 24.322, and 24.323), section 71 as
amended by 1984 PA 28, section 80 as amended and section 123 as
added by 1984 PA 196, section 115 as amended by 1996 PA 489, and
section 122 as amended by 2011 PA 247.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 71. (1) The parties in a contested case shall
must be
given an opportunity for a hearing without undue delay.
(2)
The parties shall must be given a reasonable notice of the
hearing ,
which in a contested case.
The notice shall must include
all of the following:
(a) A statement of the date, hour, place, and nature of the
hearing.
Unless otherwise specified in the notice the hearing shall
must be held at the principal office of the agency.
(b) A statement of the legal authority and jurisdiction under
which the hearing is to be held.
(c) A reference to the particular sections of the statutes and
rules involved.
(d) A short and plain statement of the matters asserted. If
the agency or other party is unable to state the matters in detail
at the time the notice is given, the initial notice may state the
issues involved. Thereafter on application the agency or other
party shall furnish a more definite and detailed statement on the
issues.
(3) A contested case is commenced by giving notice to the
parties under subsection (2).
(4) (3)
A member of the legislature shall
is not be privileged
from
service of notice or other process pursuant to under this
chapter except on a day on which there is a scheduled meeting of
the house of which he or she is a member. However, a member of the
legislature
shall is not be privileged from service of notice or
other
process pursuant to under this chapter on a day on which
there is a scheduled meeting of the house of which he or she is a
member,
if such the service of notice or process is executed by
certified mail, return receipt requested.
Sec. 72. (1) If a party fails to appear in a contested case
after
proper service of notice, the agency, if no an adjournment
is
not granted, may proceed with the hearing and make its decision in
the absence of the party. Notice is properly served if it is mailed
to the party or the representative of record of the party at the
party or the representative's last known address of record.
(2) A party who has been served with a notice of hearing may
file a written answer before the date set for hearing.
(3)
The parties shall must be given an opportunity to present
oral and written arguments on issues of law and policy and an
opportunity to present evidence and argument on issues of fact.
(4) A party may cross-examine a witness, including the author
of a document prepared by, on behalf of, or for use of the agency
and offered in evidence. A party may submit rebuttal evidence.
Sec. 80. (1) A presiding officer may do all of the following:
(a) Administer oaths and affirmations.
(b)
Sign and issue subpoenas, in the name of the agency,
requiring attendance and giving of testimony by witnesses and the
production of books, papers, and other documentary evidence.
(c) Provide for the taking of testimony by deposition.
(d) Regulate the course of the hearings, set the time and
place for continued hearings, and fix the time for filing of briefs
and other documents.
(e) Direct the parties to appear and confer to consider
simplification of the issues by consent of the parties.
(f)
Act upon on an application for an award of costs and fees
under sections 121 to 127.
(2)
In order to To assure adequate representation for the
people
of this state, when if the presiding officer knows that a
party in a contested case is a member of the legislature of this
state,
and the legislature is in session, the presiding
officer
shall
continue the contested case shall be
continued by the
presiding
officer to a nonmeeting day.
(3)
In order to To assure adequate representation for the
people
of this state, when if the presiding officer knows that a
party to a contested case is a member of the legislature of this
state who serves on a legislative committee, subcommittee,
commission, or council that is scheduled to meet during the
legislative session while the legislature is temporarily adjourned,
or that is scheduled to meet during the interim between legislative
sessions
after the legislature has adjourned sine die, or when if
the partisan caucus of which the legislator is a member is
scheduled to meet, the presiding officer shall continue the
contested
case shall be continued to a nonmeeting day.
(4)
In order to To assure adequate representation for the
people
of this state, when if the presiding officer knows that a
witness in a contested case is a member of the legislature of this
state, and the legislature is in session, or the member is serving
on a legislative committee, subcommittee, commission, or council
that is scheduled to meet during the legislative session while the
legislature is temporarily adjourned or during the interim between
legislative sessions after the legislature has adjourned sine die,
or
when if the partisan caucus of which the legislator is a
member
is scheduled to meet, the contested case need not be continued, but
the presiding officer shall postpone the taking of the legislator's
testimony,
as a witness, shall be postponed to the earliest
practicable nonmeeting day.
(5) The presiding officer shall notify all parties to the
contested case, and their attorneys, of any continuance granted
pursuant
to under this section.
(6) As used in this section, "nonmeeting day" means a day on
which there is not a scheduled meeting of the house of which the
party
or witness is a member, nor a legislative committee meeting
or public hearing scheduled by a committee, subcommittee,
commission,
or council of which he or she the
party or witness is a
member,
nor or a scheduled partisan caucus of the members of the
house
of which he or she the
party or witness is a member.
Sec. 87. (1) An agency or presiding officer may order a
rehearing
or reconsideration in a contested case on its the
agency's or officer's own motion or on the request of a party.
(2)
Where If the agency or
presiding officer finds for
justifiable reasons that the record of testimony made at the
hearing
is found by the agency to be inadequate for purposes of
judicial
review, the agency or presiding
officer, on its the
agency's or officer's own motion or on the request of a party,
shall order a rehearing.
(3)
A request for a rehearing shall must
be filed within the
time fixed by this act for instituting proceedings for judicial
review.
A rehearing shall must be noticed and conducted in the same
manner as an original hearing. The evidence received at the
rehearing
shall must be included in the record for agency
reconsideration and for judicial review. A decision or order may be
amended or vacated after the rehearing.
Sec. 115. (1) Chapters 4 and 6 do not apply to proceedings
conducted under 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.
(2) Chapters 4 and 8 do not apply to a hearing conducted by
the
department of corrections pursuant to under chapter IIIA of Act
No.
232 of the Public Acts of 1953, being sections 791.251 to
791.256
of the Michigan Compiled Laws.the
corrections code of 1953,
1953 PA 232, MCL 791.251 to 791.256, or to proceedings before the
parole board established under section 31a of the corrections code
of 1953, 1953 PA 232, MCL 791.231a.
(3) Chapter 8 does not apply to any of the following:
(a) A contested case or other proceeding regarding the
granting or renewing of an operator's or chauffeur's license by the
secretary of state.
(b) Proceedings conducted by the Michigan employment relations
commission.
(c)
Worker's disability compensation proceedings under Act No.
317
of the Public Acts of 1969.the
worker's disability compensation
act of 1969, 1969 PA 317, MCL 418.101 to 418.941.
(d) Unemployment compensation hearings under the Michigan
employment
security act, Act No. 1 of the Public Acts of the Extra
Session
of 1936, being sections 421.1 to 421.75 of the Michigan
Compiled
Laws.1936 (Ex Sess) PA 1, MCL
421.1 to 421.75.
(e)
Family independence agency public Public assistance
hearings
under section 9 of the social welfare act, Act No. 280 of
the
Public Acts of 1939, being section 400.9 of the Michigan
Compiled
Laws.1939 PA 280, MCL 400.9.
(4) Chapter 6 does not apply to final decisions or orders
rendered
under article 15 of the public health code, Act No. 368 of
the
Public Acts of 1978, being sections 333.16101 to 333.18838 of
the
Michigan Compiled Laws.1978
PA 368, MCL 333.16101 to 333.18838.
(5)
Chapters After August 14,
1996, chapters 2, 3, and 5 do
not apply to the municipal employees retirement system and
retirement board created by the municipal employees retirement act
of
1984, Act No. 427 of the Public Acts of 1984, being sections
38.1501
to 38.1555 of the Michigan Compiled Laws, on and after
August
15, 1996.1984 PA 427, MCL
38.1501 to 1555.
(6)
Until the expiration of 12 months after the effective date
of
the amendatory act that added this subsection,April 1, 1998,
chapters 2, 3, and 5 do not apply to the establishment,
implementation, administration, operation, investment, or
distribution
of a Tier 2 retirement plan established pursuant to
under section 401(k) of the internal revenue code of 1986, 26 USC
401,
under the state employees' retirement
act, Act No. 240 of the
Public
Acts of 1943, being sections 38.1 to 38.69 of the Michigan
Compiled
Laws. Upon the expiration of 12 months after the effective
date
of the amendatory act that added this subsection,1943 PA 240,
MCL 38.1 to 38.69. After March 31, 1998, rules and guidelines
promulgated
or processed under for the
purposes described in this
subsection are not effective and binding unless promulgated and
processed in accordance with this act.
(7)
Until the expiration of 12 months after the effective date
of
the amendatory act that added this subsection,April 1, 1998,
chapters 2, 3, and 5 do not apply to the establishment,
implementation, administration, operation, investment, or
distribution
of a Tier 2 retirement plan established pursuant to
under section 403(b) of the internal revenue code of 1986, 26 USC
403,
under the public school employees
retirement act of 1979, Act
No.
300 of the Public Acts of 1980, being sections 38.1301 to
38.1437
of the Michigan Compiled Laws. Upon the expiration of 12
months
after the effective date of the amendatory act that added
this
subsection,1980 PA 300, MCL
38.1301 to 38.1437. After March
31,
1998, rules and guidelines promulgated
or processed under for
the purposes described in this subsection are not effective and
binding unless promulgated and processed in accordance with this
act.
(8)
Until the expiration of 12 months after the effective date
of
the amendatory act that added this subsection,April 1, 1998,
chapters 2, 3, and 5 do not apply to the establishment,
implementation, administration, operation, investment, or
distribution
of a Tier 2 retirement plan established pursuant to
under the internal revenue code of 1986, 26 USC 1 to 9834, under
the
Michigan legislative retirement system act, Act No. 261 of the
Public
Acts of 1957, being sections 38.1001 to 38.1080 of the
Michigan
Compiled Laws. Upon the expiration of 12 months after the
effective
date of the amendatory act that added this
subsection,1957 PA 261, MCL 38.1001 to 38.1080. After
March 31,
1998, rules and guidelines promulgated or processed under
for the
purposes described in this subsection are not effective and binding
unless promulgated and processed in accordance with this act.
Sec. 122. (1) "Contested case" means a contested case as
defined in section 3, but does not include a case that is settled
or in which a consent agreement is entered into or a proceeding for
establishing a rate or approving, disapproving, or withdrawing
approval of a form.
(2) "Costs and fees" means the normal costs incurred, after a
party has received notice of an initial hearing under section 71,
in being a party in a contested case under this act, and include
all of the following:
(a) The reasonable and necessary expenses of expert witnesses
as determined by the presiding officer.
(b) The reasonable cost of any study, analysis, engineering
report, test, or project that is determined by the presiding
officer
to have been necessary for the preparation of a the party's
case.
(c)
Reasonable A reasonable and necessary attorney or agent
fees
fee, including those a fee for
purposes of any appeal.
(3)
"Party" means a party as defined in section 5. ,
but does
not
include any of the following:
(a)
An individual whose net worth was more than $500,000.00 at
the
time the contested case was initiated.
(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 contested case was
initiated
and that is not either exempt from taxation pursuant to
section
501(c)(3) of the internal revenue code, 26 USC 501, or a
cooperative
association as defined in section 15(a) of the
agricultural
marketing act, 12 USC 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 contested case was initiated.
(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.
(4) "Presiding officer" means an agency, 1 or more members of
the
agency, a person an
individual designated by statute to
conduct
a contested case, or a hearing officer designated and authorized by
the agency to conduct a contested case.
(5) "Prevailing party" means either of the following, as
applicable:
(a) In an action involving several remedies, or issues or
counts
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.
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 Senate Bill No. 100
of the 99th Legislature is enacted into law.
