Omdahl v. West Iron County Board of Education

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

FILED JUNE 27, 2007

TORGER G. OMDAHL,

Plaintiff-Appellee,

v No. 131926

WEST IRON COUNTY BOARD OF
EDUCATION, ROBERT HAN, M.D.,
JAMES QUAYLE, DONALD AUTIO,
JAMES BURKLAND, ERIC
MALMQUIST, BETH VEZZETTI and
CHRISTINE SHAMION,

Defendants-Appellants.

BEFORE THE ENTIRE BENCH

TAYLOR, C.J.

At issue in this case is whether a pro se litigant, who is also an attorney,

may recover “court costs and actual attorney fees,” MCL 15.271(4), after he or she

brings a successful action under the Open Meetings Act. We conclude that

because an attorney is defined as an agent of another person, there must be

separate identities between the attorney and the client before the litigant may

recover actual attorney fees. Accordingly, we reverse the judgment of the Court
of Appeals that held to the contrary, and remand to the trial court for further

proceedings consistent with this opinion.

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

Torger Omdahl, an attorney proceeding in propria persona, sued his former

client, the West Iron County Board of Education, for violations of the Open

Meetings Act (OMA), MCL 15.261 et seq. The trial court granted judgment for

Omdahl, ruling that the board violated the OMA by failing to take minutes at two

closed sessions. However, the trial court denied Omdahl’s request for attorney

fees. Omdahl appealed.

The Court of Appeals, in a divided decision, reversed the denial of attorney

fees and costs. Omdahl v West Iron Co Bd of Ed, 271 Mich App 552, 553; 722

NW2d 691 (2006). The majority noted the general rule that a party proceeding in

propria persona is not entitled to an award of attorney fees. Id. However, MCL

15.271(4) of the OMA specifically mandated an award of actual attorney fees to a

prevailing plaintiff. Omdahl, supra at 554. The Court recognized a split of

authority in contexts other than the OMA regarding whether an attorney

proceeding in propria persona could collect attorney fees. Id. It found

unpersuasive the argument that allowing an attorney plaintiff proceeding in

propria persona to collect attorney fees would create a cottage industry that would

subsidize attorneys without clients. Id. at 555. The majority then stated:

[A]s Abraham Lincoln is quoted as saying, “a Lawyer’s time
and advice are his stock in trade.” 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. [Id. at 556-557.]

The majority declined to read “actual attorney fee” as requiring an actual

physical bill or the actual payment of a fee. Id. at 557-558. Rather, it concluded

that the actual attorney fee constituted the value of the professional time Omdahl

invested in the case. Id. at 559.

Judge Kelly dissented, stating that the statute referred to “actual” attorney

fees; “actual” was defined as “‘existing in act, fact, or reality; real’”; and Omdahl

did not demonstrate that the fees he sought existed in act, fact, or reality. Id. at

561, quoting People v Yamat, 475 Mich 49, 54 n 15; 714 NW2d 335 (2006)

(internal quotation omitted). She opined that it was inappropriate to rely on cases

addressing other statutes or court rules because the statute at issue in the instant

case unambiguously requires that the attorney fees actually be incurred. Omdahl,

supra at 562 (Kelly, J., dissenting). With respect to the quote from Abraham

Lincoln, Judge Kelly stated: “And although Abraham Lincoln recognized the

value of a lawyer’s ‘time and advice,’ the OMA does not provide for a recovery of

this time or effort.”

Defendant board of education sought leave to appeal in this Court, arguing

that (1) the plain language of MCL 15.271(4) required “actual attorney fees,” (2)

an attorney representing himself or herself could not claim actual attorney fees

because he or she was not obligated to reimburse himself or herself for services,

(3) the Court of Appeals impermissibly engaged in judicial legislation by not

applying the statute as clearly written, and (4) if the Court of Appeals published

opinion was allowed to stand it would wreak havoc not only in this case but on

future litigation involving statutory construction. This Court ordered oral

argument on whether the application for leave to appeal should be granted. 477

Mich 961 (2006).

II. STANDARD OF REVIEW

The interpretation of a statute presents an issue of law that is reviewed de

novo. Lapeer Co Clerk v Lapeer Circuit Judges, 465 Mich 559, 566; 640 NW2d

567 (2002). Our primary purpose when construing a statute is to effectuate

legislative intent. In re MCI Telecom Complaint, 460 Mich 396, 411; 596 NW2d

164 (1999). Legislative intent is best determined by the language used in the

statute itself. Id. When the language is unambiguous, we give the words their

plain meaning and apply the statute as written. Id.

III. ANALYSIS

The OMA was enacted by the Legislature in 1968 to consolidate the

hodgepodge of statutes requiring governmental accountability and disclosure.

Booth v Univ of Michigan Bd of Regents, 444 Mich 211, 221; 507 NW2d 422

(1993); 1968 PA 261. The Booth Court explained that legislators perceived that,

by promoting openness of governmental deliberations, the act would cause

responsible decision making and minimize abuse of power. Booth, supra at 223.

Because the act initially failed to provide for an enforcement mechanism or

penalties for noncompliance, the act was repealed and reenacted by 1976 PA 267

to remedy the oversight and “promote a new era in governmental accountability.”

Booth, supra at 222. One of these newly enacted enforcement provisions was

MCL 15.271(4), which provided that a successful party could recover court costs

and actual attorney fees. It is this provision under which Omdahl claims he is

entitled to attorney fees even though he was a pro se litigant in the OMA action.

In determining whether a party is entitled to statutory attorney fees, the first

thing to consider is the statutory language itself. The relevant provision of the

OMA, MCL 15.271(4), states:

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.

Because Omdahl prevailed in his action against the board of education under the

OMA, the only question was whether there were “actual attorney fees” for

Omdahl to recover.

The meaning of these three words is central to the resolution of this case.

The word “actual” means “‘existing in act, fact, or reality; real.’” Yamat, supra at

54 n 15, quoting Random House Webster’s College Dictionary (1997).

“Attorney” is defined as a “lawyer” or an “attorney-at-law.” Random House

Webster’s College Dictionary (2001). The definition of “lawyer” is “a person

whose profession is to represent clients in a court of law or to advise or act for

them in other legal matters.” Id. And the definition of “attorney-at-law” is “an

officer of the court authorized to appear before it as a representative of a party to a

legal controversy.” Id. Clearly, the word “attorney” connotes an agency

relationship between two people.1 “Fee” is relevantly defined as “a sum charged

or paid, as for professional services or for a privilege.” Id.

The courts of this state as well as the federal courts have, in deciding cases

of this sort, focused on the concept that an attorney who represents himself or

herself is not entitled to recover attorney fees because of the absence of an agency

relationship.2

1
We have applied the plain and unambiguous meaning of the term
“attorney” by discerning the reasonable meaning of the term through relevant
dictionary definitions. The dissent claims that the definitions of “attorney” do not
explicitly require an agency relationship; however, the most reasonable
interpretation of the term does require such a relationship, and the dissent does not
cite a single instance in which “attorney” is defined in any context other than an
agency relationship. The dissent compounds its erroneous analysis by ignoring the
fact that the word “fees,” as used in the statute, is modified not only by the word
“actual,” but also by the word “attorney.”
2
We note in passing that these courts also relied on several public policy
grounds in reaching their conclusions. In Falcone v Internal Revenue Service, 714
F2d 646, 647-648 (CA 6, 1983), the Sixth Circuit Court of Appeals reasoned that
the attorney fee provision was intended to relieve plaintiffs of the burden of legal
costs, not to provide pro se plaintiffs a windfall for fees never incurred; the
provision was intended to encourage prospective plaintiffs to seek the advice of
detached and objective legal professionals; and the provision was not intended to
create a cottage industry for clientless attorneys. The Court of Appeals in Laracey
v Financial Institutions Bureau, 163 Mich App 437, 444-446; 414 NW2d 909
(1987), relied on the first and third grounds stated in Falcone, supra. In Kay v
Ehrler, 499 US 432, 437-438; 111 S Ct 1435; 113 L Ed 2d 486 (1991), the United
States Supreme Court also noted that the purpose of the provision was to
encourage prospective plaintiffs to seek the advice of detached and objective
counsel. And the Court of Appeals in Watkins v Manchester, 220 Mich App 337,
343-345; 559 NW2d 81 (1996), in addition to relying on Laracey, supra, and Kay,
(continued…)

In Laracey v Financial Institutions Bureau, 163 Mich App 437, 441; 414

NW2d 909 (1987), the Court of Appeals considered whether an attorney acting in

propria persona could collect attorney fees under MCL 15.240(4) of the Michigan

Freedom of Information Act (FOIA). That act provided that the fees, to be

awardable, had to be “reasonable attorney fees.”3

The Court stated that an attorney proceeding in propria persona actually

had no attorney for the purpose of the attorney fee provision and thus no fees were

recoverable. Laracey, supra at 445. In doing so, it relied on the reasoning from

the Eleventh Circuit in Duncan v Poythress, 777 F2d 1508, 1518 (CA 11, 1985)

(Roney, J., dissenting):

For there to be an attorney in litigation there must be two
people. Plaintiff here appeared pro se. The term “pro se” is defined

(…continued)
supra, noted that pro se attorneys should not be able to recover for time that could
have been spent representing other clients when pro se plaintiffs who were not
attorneys also could suffer lost income or business opportunities as a result of time
spent in litigation. While this public policy reasoning may be of interest, we
decline to rely on it here because the statutory language can be applied plainly
without resort to public policy analysis; thus, the dissent’s claim that we have
relied on public policy to reach our decision in the instant case is unfounded.
3
MCL 15.240(4) provided:
If a person asserting the right to inspect or to receive a copy
of a public record or a portion thereof prevails in an action
commenced pursuant to this section, the court shall award
reasonable attorneys’ fees, costs, and disbursements. If the person
prevails in part, the court may in its discretion award reasonable
attorneys’ fees, costs, and disbursements or an appropriate portion
thereof. The award shall be assessed against the public body liable
for damages under subsection (5). [Emphasis added.]

as an individual acting “in his own behalf, in person.” By definition,
the person appearing “in person” has no attorney, no agent appearing
for him before the court. The fact that such plaintiff is admitted to
practice law and available to be an attorney for others, does not
mean that the plaintiff has an attorney, any more than any other
principal who is qualified to be an agent, has an agent when he deals
for himself. In other words, when applied to one person in one
proceeding, the terms “pro se” and “attorney” are mutually
exclusive. [Laracey, supra at 445 n 10, quoting Duncan, supra
(Roney, J., dissenting).]

The Court of Appeals thus determined that a plaintiff attorney proceeding in

propria persona is not entitled to attorney fees under FOIA.4

Building on Laracey, the Court of Appeals in Watkins v Manchester, 220

Mich App 337, 341-344; 559 NW2d 81 (1996), in construing the attorney fee

provisions in the case evaluation rules that gave “reasonable” attorney fees, held

that a defendant attorney who represents himself or herself is not entitled to an

award of attorney fees under MCR 2.403(O). While the statutory and court rule

language interpreted in Laracey and Watkins differed somewhat from the language

in the present statute in that the attorney fee was to be “reasonable” as opposed to

4
While the dissent criticizes the majority for relying on cases interpreting
the statutory language “reasonable attorney fees,” and claims that the difference
between actual attorney fees and reasonable attorney fees is significant, we note
that our focus in this case is on “attorney” not “actual.” In this respect, the
dissent’s attempt to distinguish Laracey fails. Laracey is relevant because both
Laracey and the instant case involve attempts by an attorney appearing in propria
persona to recover attorney fees. We find Laracey persuasive for the relevant
portion of its holding, which states that “both a client and an attorney are
necessary ingredients for an attorney fee award.” Laracey, supra at 446. Contrary
to Justice Weaver’s assertion, the term “reasonable,” as used in the statute in
Laracey, does not affect this analysis.

“actual,” the courts in both cases focused on the availability of any attorney fees

when the agency relationship was missing, which is also the situation here.

In Falcone v Internal Revenue Service, 714 F2d 646 (CA 6, 1983), the

Sixth Circuit similarly held that a pro se attorney may not recover attorney fees

under 5 USC 552(a)(4)(E) of the federal Freedom of Information Act where

attorney fees to be allowable had to be reasonable. In so concluding, the court

stated, “The fortuitous fact that such a FOIA plaintiff is also an attorney makes no

difference. Both a client and an attorney are necessary ingredients for an award of

fees in a FOIA case.” Falcone, supra at 648.

Similarly, the United States Supreme Court in Kay v Ehrler, 499 US 432,

435, 438; 111 S Ct 1435; 113 L Ed 2d 486 (1991), affirmed the Sixth Circuit in

holding that a successful in propria persona attorney may not recover attorney

fees under 42 USC 1988, where the fees were allowed if reasonable. It noted that

the use of the word “attorney” assumed an agency relationship and found it likely

that Congress intended to predicate an award under § 1988 on the existence of an

attorney-client relationship. Kay, supra at 435-436. After noting that the circuit

court interpreted the statute as assuming there was a “‘paying relationship between

an attorney and a client,’” the Court agreed “that the overriding statutory concern

is the interest in obtaining independent counsel for victims of civil rights

violations.” Id. at 435, 437.

In the instant case, the Court of Appeals reliance on the case that predated

Laracey and Watkins, Wells v Whinery, 34 Mich App 626; 192 NW2d 81 (1971),

was misplaced. While the issue in Wells was whether an attorney plaintiff who

represented himself could recover attorney fees under MCL 600.2522, that Court

neglected to directly consider whether an agency relationship existed, Wells, supra

at 630, and is unpersuasive, as Watkins concluded, Watkins, supra at 342.

Thus, with these definitions and the caselaw we have discussed in mind, it

being clear that there was no agency relationship between two different people,

there was no lawyer-client relationship as understood in the law. Therefore, there

were no “actual attorney fees” for Omdahl to recover under MCL 15.271(4).

IV. CONCLUSION

In sum, by its plain terms, the phrase “actual attorney fees” requires an

agency relationship between an attorney and the client whom he or she represents.

Therefore, there must be separate identities between the attorney and the client,

and a person who represents himself or herself cannot recover actual attorney fees

even if the pro se individual is a licensed attorney. Accordingly, we reverse the

judgment of the Court of Appeals and remand this case to the trial court for

proceedings consistent with this opinion.

Reversed and remanded to the trial court.

Clifford W. Taylor

Maura D. Corrigan
Robert P. Young, Jr.

Stephen J. Markman

STATE OF MICHIGAN

SUPREME COURT

TORGER G. OMDAHL,

Plaintiff-Appellee,

v No. 131926

WEST IRON COUNTY BOARD OF
EDUCATION, ROBERT HAN, M.D.,
JAMES QUAYLE, DONALD AUTIO,
JAMES BURKLAND, ERIC
MALMQUIST, BETH VEZZETTI and
CHRISTINE SHAMION,

Defendants-Appellants.

WEAVER, J. (dissenting).

I respectfully dissent from the majority’s holding that a pro se litigant who

is an attorney is barred from recovering “actual attorney fees” under MCL

15.271(4), the Open Meetings Act (OMA), because there must be separate

identities between the attorney and the client, within the confines of an attorney-

client agency relationship, before the attorney may recover actual attorney fees.

Instead, I would hold that the plain language of the OMA, which makes no

reference to an agency relationship as a prerequisite to an award of attorney fees,

allows for a pro se litigant who is an attorney to recover “actual” attorney fees

under MCL 15.271(4).
I. FACTS AND PROCEDURAL HISTORY

Plaintiff Torger Omdahl, an attorney who represented himself in this

litigation, sued defendant West Iron County Board of Education and others for

violations of the Open Meetings Act (OMA). The complaint alleged that

defendants violated the OMA by engaging in an illegal closed session. After the

session, defendants voted to remove plaintiff from representation of the board in a

particular lawsuit and to fire plaintiff as the board’s attorney. Plaintiff claimed

that this closed session violated the OMA because it was held for the purpose of

firing him, not for the stated purpose of discussing a letter from plaintiff regarding

the case in which plaintiff was providing representation. Defendants moved for

summary disposition pursuant to MCR 2.116(C)(8), failure to state a claim.

The circuit court granted defendant’s motion, ruling that the challenged

meeting was legal on its face. However, the court allowed plaintiff 21 days to

amend his complaint. Plaintiff then added count III, “false reference to purpose

for closed session,” and defendants renewed their motion for summary disposition.

Plaintiff filed an amended complaint, adding a count alleging that defendants also

violated the OMA by failing to take minutes in the executive sessions in question.

In all three of plaintiff’s complaints, he requested an award of “actual attorney

fees, together with costs and disbursements.” The circuit court dismissed

plaintiff’s first three counts, retaining only the count relating to the failure to take

minutes. Defendants then filed an amended summary disposition motion under

MCR 2.116(C)(10).

At a hearing on the C(10) motion, the circuit court stated that defendants

should not be required to pay actual attorney fees because there was no attorney in

this case since plaintiff was appearing pro per. However, the judge stated that

defendants did violate the OMA by failing to keep minutes and ruled that they

must keep minutes at any future closed sessions. The judge explained that he

would not order any costs because the facts in the original complaint were the

subject of depositions, litigation, and motions and were heard and already

dismissed for having no basis.

Plaintiff appealed, and in a published opinion the Court of Appeals reversed

the denial of fees and costs and remanded with instructions to enter an award of

attorney fees and costs. Omdahl v West Iron Co Bd of Ed, 271 Mich App 552, 553;

722 NW2d 691 (2006). Judge Kelly, dissenting in part, would have affirmed the

award of costs but would have denied the award of attorney fees because they

were not “actually incurred.” Id. At 561 (Kelly, J. concurring in part and

dissenting in part). Defendants now seek review of that decision in this Court, and

plaintiff has responded. This Court ordered oral argument on whether the

application for leave to appeal should be granted. 477 Mich 961 (2006).

II. STANDARD OF REVIEW

For the purposes of this dissent, I agree with the standard of review

presented by the majority opinion, ante at 4:

The interpretation of a statute presents an issue of law that is
reviewed de novo. Lapeer Co Clerk v Lapeer Circuit Judges, 465
Mich 559, 566; 640 NW2d 567 (2002). Our primary purpose when

construing a statute is to effectuate legislative intent. In re MCI
Telecom Complaint, 460 Mich 396, 411; 596 NW2d 164 (1999).
Legislative intent is best determined by the language used in the
statute itself. Id. When the language is unambiguous, we give the
words their plain meaning and apply the statute as written. Id.

III. ANALYSIS

Contrary to the majority’s conclusion, the plain language and unambiguous

meaning of the OMA allow a litigant to recover “actual attorney fees,” regardless

of whether the attorney is a pro per litigant. Central to the disposition of this case

is the meaning and interpretation of the phrase “actual attorney fees” contained

within MCL 15.271(4), the part of the OMA dealing with awards of court costs

and attorney fees. MCL 15.271(4) states:

This Court, in determining the meaning of a statutory term, looks to the

common and ordinary meaning of the term. Veenstra v Washtenaw Country Club,

466 Mich 155, 160; 645 NW2d 643 (2002). The term “actual attorney fees”

requires the word “actual” to be interpreted. The simple definition of the word

“actual” is “existing in fact; real.” Black’s Law Dictionary (8th ed). Merriam-

Webster Online defines “actual” as “existing in act and not merely potentially”;

“existing in fact or reality”; “not false or apparent ”; “existing or

occurring at the time.”

(accessed June 12, 2007).

Actual attorney fees are costs that are real, not merely speculative. The

word “actual” should not be construed so far as to require an exchange of a fee

from one entity to another, but rather to require that the attorney fee is calculable

or recorded and, more importantly, can be relied on. The attorney fees must be

more than speculative, they must be existing in fact.

In the present case, plaintiff was entitled to an award of both costs and

attorney fees under MCL 15.271(4) because defendants had violated the OMA,

and plaintiff was a person who had commenced the action to enforce the OMA

and had prevailed. Plaintiff requested attorney fees in all three of his complaints.

Plaintiff sought attorney fees from the outset of his claim, not as an afterthought.

He reasonably relied on the terms in the statute when requesting relief. The

attorney fees sought are not speculative, but exist in fact as legal services

rendered. Plaintiff is not setting up shop to recover attorney fees, but is seeking to

vindicate his rights under the plain language of the OMA, which contains a

mandatory fee scheme created by the statutory use of the term “actual attorney

fees.”

The majority argues that the plain language and unambiguous interpretation

of MCL 15.271(4) requires an agency relationship between an attorney and a

client in order to recover actual attorney fees. In support of this theory, the

majority cites various definitions of “attorney” and “fee,” surmising that an

attorney-client relationship is essential to the existence of “actual attorney fees.”

However, none of the definitions that the majority cites supports an interpretation

that an agency relationship is necessary to the existence of actual attorney fees that

are recoverable under the OMA.1 The majority states:

“Attorney” is defined as a “lawyer” or an “attorney-at-law.”
Random House Webster’s College Dictionary (2001). The
definition of “lawyer” is “a person whose profession is to represent
clients in a court of law or to advise or act for them in other legal
matters.” Id. And the definition of “attorney-at-law” is “an officer
of the court authorized to appear before it as a representative of a
party to a legal controversy.” Id. Clearly, the word “attorney”
connotes an agency relationship between two people. [Ante at 5-6.]

While it is true that an attorney most commonly represents others, there is

nothing in the definitions cited by the majority that prevents an attorney from

representing himself.2 While the definitions of “attorney” may imply a possible

1
Although the definition of the term “actual” in People v Yamat, 475 Mich
49, 54 n 15; 714 NW2d 335 (2006), which the majority uses is accurate, it is not
taken in context of the case at hand. In Yamat, a felonious driving case, “actual” is
used in the pertinent Michigan Vehicle Code provision defining “operate” as
“being in actual physical control . . . .” Id. at 56. In Yamat the term “actual” was
contrasted to the term “exclusive.” Id. at 56-57. In this case, the term “actual” is
in reference to attorney fees and contrasted to the term “reasonable.” Although the
simple definition is the same, the implicit meaning of the word in context allows
the word “actual” to be read to mean “not merely speculative.” In a mandatory fee
scheme, because discretion is not permitted when determining recovery, the fee
must be verifiable.

2
The majority reasons that an attorney representing himself or herself does
not have a client, thus precluding the existence of an agency relationship. This
reasoning creates an inconsistent hypothetical situation with no client and no
lawyer. However, an attorney is not precluded from applying his or her
specialized skills in a case where the attorney himself or herself is the client. The
old adage “an attorney who represents himself has a fool for a client,” illustrates
(continued…)

agency relationship, the definitions do not explicitly require one. As a result, a

plain and unambiguous interpretation of the OMA does not include a mandatory

agency relationship as a prerequisite to recovering attorney fees. Under the

statutory scheme, all that is required is that there exist “actual attorney fees.”

Plaintiff has shown that he has “actual” attorney fees as opposed to speculative

fees, and should be allowed to recover those fees under the plain and unambiguous

language of the OMA.

(…continued)

that an individual is not precluded—but discouraged—from playing both roles.

Attorney fee awards do encourage those who otherwise would not be able to

afford counsel to bring claims, knowing they will recover fees and costs.

However, encouraging the retention of counsel does not necessarily preclude self-
representation by a qualified attorney who has the requisite specialized skills to

adequately represent himself or herself.

Moreover, the caselaw cited by the majority to not award attorney fees to
attorneys who are pro se litigants applies only to statute-specific holdings and does
not apply to the award of “actual attorney fees” as mandated by the OMA. See
Laracey v Financial Institutions Bureau, 163 Mich App 437, 441; 414 NW2d 909
(1987) (nonbinding Michigan Court of Appeals case analyzing the award of
attorney fees with regard to state Freedom Of Information Act claims); Falcone v
Internal Revenue Service, 714 F2d 646, 647-648 (CA 6, 1983) (Federal Sixth
Circuit Court of Appeals case analyzing attorney fee awards with respect to the
federal FOIA); Watkins v Manchester, 220 Mich App 337, 341-344; 559 NW2d 81
(1996) (Michigan Court of Appeals case analyzing the award of discretionary
“reasonable” attorney fees with respect to MCR 2.403[O]); Kay v Ehrler, 499 US
432, 435, 438; 111 S Ct 1435; 113 L Ed 2d 486 (1991) (United States Supreme
Court case holding that an attorney proceeding in propria persona may not
recover discretionary “reasonable” attorney fees under 42 USC 1988). The
present case is the only Michigan case that contemplates an award of “actual
attorney fees” under the OMA.

The majority cites Laracey v Financial Institutions Bureau, 163 Mich App

437, 441; 414 NW2d 909 (1987), to assert that an agency relationship is necessary

for recovering attorney fees under the OMA. The majority’s reliance on Laracey

is misplaced. In Laracey the Court of Appeals considered whether an attorney

acting pro per could collect attorney fees under MCL 15.240(4) of the Michigan

Freedom of Information Act (FOIA). Use of the word “actual,” as opposed to

“reasonable,” is significant in the context of attorney fees recoverable under the

OMA versus FOIA. Under MCL 15.240 of FOIA, the term “reasonable attorneys’

fees” is utilized. MCL 15.240 states:

(6) If a person asserting the right to inspect, copy, or receive a
copy of all or a portion of a public record prevails in an action
commenced under this section, the court shall award reasonable
attorneys’ fees, costs, and disbursements. If the person or public
body prevails in part, the court may, in its discretion, award all or an
appropriate portion of reasonable attorneys’ fees, costs, and
disbursements.

The term “actual attorney fees” in MCL 15.271(4) of the OMA creates a

mandatory fee scheme under the OMA, while the term “reasonable attorney fees”

in MCL 15.240 of FOIA creates a discretionary fee scheme under FOIA.3 Despite

the fact that the OMA and FOIA are often read in harmony to further the purpose

of both acts, the statutory fee schemes are different and should be interpreted

distinctly.

3
See also Manning v City of East Tawas, 234 Mich App 244, 253; 593
NW2d 649 (1999).

In interpreting the term “actual” under the OMA, the Court of Appeals

reasoned:

As used in the statute, the term “actual” is in contrast to the
term “reasonable” (the term used under FOIA). 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 a 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. [Omdahl, supra at 558-559.]

The Court of Appeals interpretation of “actual attorney fees” relies on the plain

and unambiguous meaning of the statutory language of MCL 15.271(4) to

conclude that attorney fees are actual if they are not speculative.

On the other hand, the majority’s reliance on Laracey depends on

everything except for the plain language of the OMA to assert that the existence of

an agency relationship is necessary to recover attorney fees. First, because of the

difference in the fee schemes outlined in the OMA versus FOIA, any analogy

between the interpretations of one scheme to the other is misplaced. The majority

cannot use Laracey and its progeny to interpret the OMA because the fee schemes

are fundamentally different. The OMA fee scheme should only be interpreted on

the basis of the plain language found in the OMA.

Second, although the majority claims otherwise, its entire analysis that an

agency relationship is required in order to recover actual attorney fees is based on

a public policy analysis, instead of on a plain interpretation of the unambiguous

statutory language of the OMA. The rationale for denying pro se lawyer litigants

from recovering attorney fees under FOIA is inconsistent and should not be

applied to the OMA. In Laracey, the Court determined that the award of attorney

fees was intended to relieve a plaintiff’s legitimate claim to legal costs. Laracey,

supra at 444. The Laracey Court reasoned that this would afford lawyer litigants a

windfall for all the costs that were incurred. Id. at 445. Further, the Court

reiterated the trial court’s determination that a lawyer litigant’s opportunity cost

has no greater significance than the lost opportunity costs of laymen who proceed

pro se. Id. at 441. This argument falls short in the present case and should have

no applicability because it is an analysis that is based on public policy.

By insisting that an agency relationship exist for attorney fees to be paid

under the OMA, the majority cites a multitude of considerations: the OMA fee

provision was intended to relieve plaintiffs of the burden of legal costs, not to

provide pro se plaintiffs a windfall for fees never incurred; the provision was

intended to encourage prospective plaintiffs to seek the advice of detached and

objective legal professionals; and the provision was not intended to create a

cottage industry for clientless attorneys. All these considerations are public policy

considerations that can be found nowhere within the text of MCL 15.271(4).

While some of these considerations may be valid, they are issues that need to be

flushed out, discussed, and legislated by the appropriate branch of government: the

Legislature, not the Court. Nowhere in the plain language of the OMA is there a

requirement that an agency relationship exist in order to recover attorney fees.

MCL 15.271(4) expressly provides the criteria that must be met in order to

recover court costs and attorney fees in an OMA suit: (1) a public body is not

complying with the OMA, (2) a person commences a civil action against the

public body for injunctive relief to compel compliance or enjoin further

noncompliance, and (3) that person succeeds in obtaining relief in the action. In

this case, the board violated the OMA by failing to take and keep minutes.

Plaintiff commenced a suit against the board. Plaintiff was successful in obtaining

relief when the circuit court held that the board was acting in violation of the

OMA and ordered the board to comply with the OMA in the future. Clearly, each

requirement of the statute is met.

The Court of Appeals has previously held that costs and fees are mandatory

under the OMA when the plaintiff obtains relief in an action brought under the act.

Kitchen v Ferndale City Council, 253 Mich App 115; 654 NW2d 918 (2002).

Although the statute uses the words “actual attorney fees,” it contains no

restriction indicating that certain plaintiffs do not have “actual,” not speculative,

fees. Presumably, plaintiff has kept records of the fees he incurred in pursuing this

litigation. Also, as previously stated, he has requested these fees from the

commencement of this lawsuit. There is no statutory provision or caselaw

dictating that plaintiff should be denied attorney fees simply because by profession

he is an attorney and was able to represent himself.

IV. CONCLUSION

The Court of Appeals in this case was correct when it stated that the term

“actual attorney fee” was not to be read narrowly, was meant to be read in contrast

to the term “reasonable,” and reflected the Legislature’s concern not with whether

a bill was generated for attorney fees, but with its intent that the full value of the

attorney’s time be recompensed. Omdahl, supra at 558. There is no question that

plaintiff has incurred actual attorney fees under the OMA. The majority’s holding

that an agency relationship is a prerequisite to the existence of “actual attorney

fees” under the OMA goes beyond the clear and unambiguous language of the

OMA. Therefore, I dissent from the majority opinion in this case and would

instead hold that the plain language of the OMA, which makes no reference to an

agency relationship as a prerequisite to an award of attorney fees, allows for a pro

se litigant who is an attorney to recover “actual” attorney fees under MCL

15.271(4).

Elizabeth A. Weaver

Kelly, J. I concur in the result reached by Justice Weaver.

Marilyn Kelly

Cavanagh, J. I would deny leave to appeal.

Michael F. Cavanagh