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Michigan Appeals Court Finds
Lawyer is Owed Open Meetings Fees
Gongwer News Service, July 14, 2006
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Attorneys who represent themselves in successful Open Meetings
Act cases are entitled to an award of attorney fees from public
bodies, a divided Court of Appeals has ruled. But the dissent in
the 2-1 decision said the law was intended to only provide for
compensation of costs actually incurred, which is lacking in
cases where attorneys pursue documents on their own behalf.
In the first impression case interpreting the law (Omdahl v.
West Iron County Board of Education, COA docket No. 262532), the
majority said it was not persuaded by fears expressed in an
opinion dealing with the Freedom of Information Act that
allowing attorneys to recover fees for their own cases would
create a cottage industry for attorneys to generate fees when no
controversy exists.
"It must be remembered that the evil addressed by these statutes
is secrecy in government, not the earning of a fee by an
attorney. Creation of such a "cottage industry" is actually more
in keeping with the purpose of the statute than to prohibit 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," Judge David
Sawyer wrote in an opinion signed by Judge Alton Davis.
They also said the term "actual attorney fee" was not so
narrowly written to exclude work that is not physically billed.
"The actual attorney fee is the actual time invested by the
attorney in the case multiplied by his billing rate," the
majority said.
But Judge Kirsten Kelly said the clear language of the law does
not provide for recovery of time or effort, but only recognizes
fees actually incurred.
"While I agree with the majority's assertion that 'actual
attorney fee' does not necessarily or exclusively mean 'an
actual, physical bill from a law firm or the actual payment of a
fee by a client to his attorney,' I suggest that determining
whether 'actual attorney fees' were incurred would include a
consideration of both of these things, and may, in some
circumstances, include more," she said.
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