MI SB0190

Presiding officers may award costs and fees to prevailing parties in contested cases against agencies, unless the agency demonstrates by clear and convincing evidence that its position was substantially justifiable.

Three specific proceeding types are excepted from the above rule and require a higher standard: illegal gambling cases involving liquor licensees, child abuse and neglect registry cases, and licensing proceedings with summary suspensions, where costs and fees are only awarded if the agency's position was frivolous.

To establish a frivolous position, the presiding officer must find that the agency's primary purpose was harassment, the agency had no reasonable basis for its factual claims, or the legal position lacked arguable merit.

Prevailing parties seeking costs and fees must file a motion and present evidence of frivolousness (if applicable), prevailing party status, the amount sought with itemized statements from attorneys and expert witnesses, eligibility for the award, and entry of a final non-appealable order.

The presiding officer may reduce or deny awards if the party seeking them unduly prolonged the case; awards must be based on prevailing market rates but are limited to costs and fees the agency actually caused the party to incur.