BillCam

SB-0101, As Passed House, December 13, 2018

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.

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.

(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.

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.

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).

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.

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.

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.

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.