TORGER G OMDAHL V WEST IRON COUNTY BD OF EDUC
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STATE OF MICHIGAN
COURT OF APPEALS
TORGER G. OMDAHL,
FOR PUBLICATION
July 13, 2006
9:00 a.m.
Plaintiff-Appellant,
v
WEST IRON COUNTY BOARD OF
EDUCATION, ROBERT HAN, M.D., JAMES
QUAYLE, DONALD AUTIO, JAMES
BURKLAND, ERIC MALMQUIST, BETH
VEZZETTI and CHRISTINE SHAMION,
Defendants-Appellees.
No. 262532
Iron Circuit Court
LC No. 04-003070-CZ
Official Reported Version
Before: Sawyer, P.J., and Kelly and Davis, JJ.
SAWYER, P.J.
The primary question presented in the case is whether an attorney who represents himself
or herself in a proceeding under the Open Meetings Act (OMA)1 and prevails is entitled to an
award of an attorney fee. Despite the general principle that a party appearing in propria persona
may not receive an award of attorney fees, we hold that where that litigant is an attorney he or
she is entitled to the award of attorney fees under the OMA if he or she is the prevailing party.
The trial court entered a judgment in favor of plaintiff, concluding that defendants
violated the OMA for failing to record the minutes of two closed meetings.2 Plaintiff, an
attorney who has proceeded pro se throughout this litigation, requested an award of attorney fees
and court costs pursuant to MCL 15.271(4). The trial court denied the request, and plaintiff
appeals. We reverse and remand with instructions to enter an award of attorney fees and costs.
1
MCL 15.261 et seq.
2
MCL 15.267(2).
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This case presents a question of statutory interpretation, which we review de novo.3 The
primary goal of statutory interpretation is to ascertain and give effect to the intent of the
Legislature.4
Plaintiff argues that he is entitled to an award of attorney fees pursuant to MCL 15.271(4)
because defendants violated the OMA. We agree. Under MCL 15.271(4), attorney fees and
court costs are to be awarded as follows:
If a public body is not complying with this act, and a person commences a
civil action against the public body for injunctive relief to compel compliance or
to enjoin further noncompliance with the act and succeeds in obtaining relief in
the action, the person shall recover court costs and actual attorney fees for the
action.
MCL 15.271(4) mandates the award of actual attorney fees if the person bringing the
OMA action "succeeds in obtaining relief." The question whether an attorney representing
himself or herself may receive an award of attorney fees under the OMA appears to be one of
first impression. In contexts other than the OMA, this Court has reached mixed results on
whether an attorney representing himself or herself may recover an attorney fee.
For example, in FMB-First Michigan Bank v Bailey,5 this Court reversed the trial court's
award of attorney fees under MCR 2.114 where the attorney-defendants represented themselves.
The Court noted that "[b]ecause an attorney is an agent or substitute who acts in the stead of
another, a party acting in propria persona cannot truly be said to be an attorney for himself."6
But the Bailey Court apparently overlooked our earlier decision in Wells v Whinery,7 wherein we
held that an attorney representing himself was entitled to attorney fees as part of his taxable
costs.
In Laracey v Financial Institutions Bureau,8 this Court has also held, in the context of the
Freedom of Information Act, that an attorney representing himself is not entitled to an award of
attorney fees. In so doing, the Laracey Court relied on the Sixth Circuit Court of Appeals
holding in Falcone v Internal Revenue Service,9 and in particular the rationale that to allow the
recovery of attorney fees to pro se plaintiffs would create a "cottage industry" for attorneys to
3
Griffith v State Farm Mut Automobile Ins Co, 472 Mich 521, 525-526; 697 NW2d 895 (2005).
4
Linsell v Applied Handling, Inc, 266 Mich App 1, 15; 697 NW2d 913 (2005).
5
232 Mich App 711, 726; 591 NW2d 676 (1998).
6
Id.
7
34 Mich App 626, 630; 192 NW2d 81 (1971).
8
163 Mich App 437, 446; 414 NW2d 909 (1987).
9
714 F2d 646 (CA 6, 1983).
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generate fees when they have no real personal concern in the dispute.10 We find that rationale
unpersuasive.
First, it imputes to the Legislature a motivation that may or may not be correct—we
simply do not know if the Legislature had an opinion regarding whether or not to "subsidize
attorneys without clients."11 If this was a significant concern for the Legislature, it presumably
would have addressed it by actually writing such restrictions into the statute. It is at least equally
as reasonable to conclude that the Legislature did not write such restrictions into the statute
because it intended to create the equivalent of "private attorneys general" to enforce statutes such
as FOIA and the OMA by allowing for the payment of an attorney fee. It must be remembered
that the evil addressed by these statutes is secrecy in government, not the earning of a fee by an
attorney. Creating such a "cottage industry" is actually more in keeping with the purpose of the
statute than prohibiting it. Governmental units can easily avoid the payment of such fees merely
by complying with the FOIA and OMA statutes, which is presumably the desired effect of those
statutes. Similarly, governmental units need not be concerned about attorneys pursuing meritless
OMA claims in search of fees because the cost of the government's defense against any frivolous
claims would be reimbursable under MCR 2.625(A)(2).
Second, even if we presume that the Legislature did not want to subsidize clientless
attorneys, a broad rule such as that created in Laracey is hardly necessary to achieve that
purpose. Such a rule casts too broad a net. In the case at bar, there is no indication that plaintiff
sued defendants in search of a fee rather than to vindicate a personal claim.12
Third, again presuming that the Legislature wished to avoid rewarding the attorney who
finds the case instead of merely reimbursing the case that finds the attorney, denying fees to the
pro se attorney hardly accomplishes this goal. A purely fee-seeking attorney would merely need
to find a person willing to be named as the plaintiff in the suit, thus entitling the attorney to
collect a fee. Plaintiff in the case at bar could easily have avoided this entire issue had he merely
named a family member, friend, neighbor, or perhaps even his secretary as the plaintiff. A rule
that encourages such charades is absurd.
On the other hand, we do ask: Why should an attorney who chooses to represent himself
or herself not be awarded a fee upon prevailing? He or she had to invest his time and effort into
the case. And, as Abraham Lincoln is quoted as saying, "a Lawyer's time and advice are his
stock in trade."13 We see no reason why plaintiff should be expected to give away his stock in
trade merely because he is seeking to redress a wrong on his own behalf, and in which the public
always has an interest, instead of on behalf of a third party. Whether representing himself or a
client, he is investing the time. It is time he could have invested on behalf of another client who
would have paid a fee.
10
Laracey, supra at 446.
11
Id.
12
Id. at 446.
13
See Jones v Barnett, 236 Ark 117, 125; 365 SW2d 241 (1963) (Johnson, J., dissenting in part).
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What if plaintiff had hired another attorney to pursue this case? Presumably there would
be no debate that a fee paid the other attorney could be recovered. Perhaps instead of attorney
Omdahl naming his secretary as the plaintiff in this case as we suggested above, he merely
should have chosen to be represented by his law partner. For that matter, an interesting question
that plaintiff could have posed, but did not, is whether he truly did appear in propria persona in
this case. Although he so states on some documents, some of those same documents also claim
to be in the name of the firm. And other documents, such as the judgment, merely indicate that
plaintiff was represented by Fisher & Omdahl. And, according to the cover page on plaintiff 's
brief, Fisher & Omdahl is a PLLC, a separate legal entity. Perhaps Torger Omdahl is not entitled
to an attorney fee, but Fisher & Omdahl, PLLC, is entitled to one.
But we are not inclined to decide this case on the highly technical point of plaintiff 's firm
not generating a bill to plaintiff personally. To hold that plaintiff is not entitled to the recovery
of a fee merely because a physical bill was not generated would again result in the creation of an
absurd rule that exalts form over substance. Indeed, if that were the critical fact in resolving this
case, we would merely remand the matter to the trial court with instructions to require plaintiff to
present such a bill from his firm.
Finally on this point, we acknowledge that an argument might be made that, under the
language of MCL 15.271(4), only an "actual attorney fee" is recoverable and that there is none in
a case in which an attorney represents himself. That would be true only if an "actual attorney
fee" meant an actual, physical bill from a law firm or the actual payment of a fee by a client to
his or her attorney. We do not believe the term "actual attorney fee" can be read so narrowly.
Taking the second point first, that the client has had to actually pay the attorney, we are aware of
no rule that the fee may not be recovered until after the client has paid the bill. And as for
whether the attorney had to actually bill the client, we again dismiss such a requirement as
exalting form over substance. Such a requirement could easily be satisfied if Fisher & Omdahl
would generate a bill to Mr. Omdahl.
Rather, again turning to the wisdom of President Lincoln, an attorney's stock in trade is
his or her time. The actual attorney fee is the actual time invested by the attorney in the case
multiplied by his or her billing rate. As used in the statute, the term "actual" is in contrast to the
term "reasonable" (the term used under FOIA14). It reflects, we believe, not the Legislature's
concern with whether a bill has been generated, but with its intent that the full value of the
attorney's time be recompensed and not abridged by what a trial judge might deem reasonable.
That is, while a plaintiff in an FOIA case may not get his or her full attorney fee reimbursed by
the defendant because the attorney charged a fee subject to downward adjustment by a judge, the
plain meaning of the OMA provision is that the full attorney fee incurred is to be paid subject
only to a demonstration of time spent and customary billing practice.
For the above reasons, we conclude that, under the plain meaning of MCL 15.271(4),
plaintiff was entitled to recover attorney fees. He is a person who commenced a civil action to
enforce the OMA and he prevailed. Accordingly, MCL 15.271(4) directs that he "shall recover
14
MCL 15.240(6).
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court costs and actual attorney fees for the action." The amount of the actual attorney fees is the
value of the professional time that he invested in the case; that is, the actual number of hours
times his actual billing rate.
Furthermore, the trial court erred in not awarding him court costs pursuant to MCL
15.271(4). The statute plainly provides that a prevailing person is entitled to an award of court
costs incurred during the course of litigation. Even if we were to agree with defendants and the
trial court that no attorney fees are awardable because there was no actual attorney fee incurred,
clearly court costs were still incurred and there is no reason not to award them. In other words,
where court costs were paid, a cost award is merited. Indeed, under the statute it is mandatory.
The trial court concluded that defendants violated MCL 15.267(2), and plaintiff was
obviously a "person" under MCL 15.271(4) who incurred court costs. Further, plaintiff 's action
included his amended pleadings because the claim asserted in his amended pleadings arose out of
the conduct set forth, or attempted to be set forth, in the original pleading; therefore, those
amendments relate back to the date of the original pleading.15 Accordingly, regardless of the
initial difficulty plaintiff had in stating a claim for relief, plaintiff is entitled to all court costs that
he incurred as a result of the litigation.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction. Plaintiff may tax costs.
Davis, J., concurred.
/s/ David H. Sawyer
/s/ Alton T. Davis
15
See MCR 2.118(D).
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