Taxpayers and Citizens in the Public Interest v. State

No. 23011 (245 N.W.2d 761) (Mich. Ct. App. August 3, 1976)

The Michigan Environmental Protection Act (MEPA) grants trial courts "broad and unfettered" discretion to award costs and expert witness fees. Plaintiff, an environmental group, sought to rescind a sale of "excess land" by the state highway department to a private corporation. After defendant prevailed, the lower court granted costs and expert witness fees to the corporation. The appeals court declines an omnibus treatment of the costs issue. Instead, the court holds that MEPA falls within a statutory exception to the normal Michigan rule of awarding costs to the prevailing party. Although MEPA does not mandate an apportionment of costs, trial courts must exercise their discretion to award costs within MEPA's requirement that the "interests of justice" be met. Finally, MEPA supersedes the judicial policy of denying costs awards in public-question cases as an abuse of discretion.

Counsel for Plaintiff
James M. Olson
Olson, Dettmer & Bowerman
520 S. Union St.
Traverse City MI 49684
(616) 947-2912

Counsel for Defendant Michigan Department of State Highways
Frank J. Kelley, Attorney General
Janis Meija, Asst. Attorney General
525 W. Ottawa St.
Lansing MI 48913
(517) 373-1110

Counsel for Defendant Northern Michigan Inns, Inc.
Harry T. Running
Running, Wise & Wilson
326 State St.
Traverse City MI 49684
(616) 946-2700

Consel for Defendant Traverse City
Dennis L. Huntley
410 National Bank Bldg.
Traverse City MI 49684
(616) 946-1990

Counsel for Amici Curiae
West Michigan Environmental Action Council
University of Michigan Environmental Law Society
Peter W. Steketee
500 People's Bldg.
60 Monroe Ave., NW
Grand Rapids MI 49502
(616) 451-8341

Before R. B. BURNS, P.J., and KELLY and HUGHES,^* JJ.

[7 ELR 20075]

R. B. BURNS, Presiding Judge.

Plaintiff, a citizen "environmentalist" organization, sued in equity to rescind the sale of "excess land" by defendant highway department to defendant Northern Michigan Inns. Defendants prevailed on the merits via summary judgment. Northern Michigan Inns then filed a motion for taxation of costs and for leave to pay and tax more than the ordinary fees for expert testimony (totaling $3,640.18). Plaintiff appeals the trial court's grant of this motion, and appeals the court's denial of plaintiff's similar motion.

Plaintiff and the Amici Curiae urge an omnibus treatment of the issues raised on appeal; we are requested to aid in "developing a common law of environmental quality", to avoid a "chilling impact on citizen-initiated invironmental litigation in Michigan", to "establish general standards or guidelines for the apportionment of costs in environmental lawsuits". Defendants, in turn, urge a simple affirmance.

The authority for an award of fees and costs, including taxable attorney fees and reasonable expert witness fees, is statutory. M.C.L.A. § 600.2405; M.S.A. § 27A.2405, M.C.L.A. § 600.2164; M.S.A. § 27A.2164. It is denoted in M.C.L.A. § 600.2401; M.S.A. § 27.2401 that "[e]xcept as otherwise provided by statute, the supreme court shall by rule regulate the taxation of costs". The controlling court rule is GCR 1963, 526.1:

"In any action or proceeding, costs shall be allowed as of course to the prevailing party, except when express provision therefor is made either in a statute or in these Rules, or unless the court otherwise directs, for reasons stated in writing and filed in the cause." (Emphasis added.)

Falling within the "except when express provision * * * in a statute" supervention is the appropriate section of the Environmental Protection Act (EPA), M.C.L.A. § 691.1203(3); M.S.A. § 14.528(203)(3): "Costs may be apportioned to the parties if the interests of justice require." (Emphasis added.)

Construed in concert, as they must be, these provisions yield one indisputable principle: the award of costs and fees in cases such as this is within the broad and unfettered discretion of the trial judge, a discretion that must, however, be recognized and exercised. We only look to see if such discretion has been exercised, and, if so, abused.

The trial court's opinion on defendant Northern Michigan Inn's motion reveals his mistaken belief that he had "a very limited area of discretion"; the court seems to consider the "prevailing party" language of GCR 1963, 526.1 to rise nearly to the authority of an order. Further, it appears that the court was unaware of the permissive apportionment provision of M.C.L.A. § 691.1203(3); M.S.A. § 14.528(203)(3). We must, therefore, remand for a reevaluation of the respective parties' motions for costs and fees by a valid exercise of the trial judge's previously unrecognized discretion.

However, we do not mean to imply a result. In this regard, plaintiff's contention that apportionment of fees is "mandated" by the EPA is clearly wrong. The trial judge must reach the result that "the interests of justice require". He may agree with Amicus Curiae that apportionment is an appropriate remuneration for a plaintiff that has borne the expense of performing "a valuable public service" by airing "important public issues"; he may agree with defendants concerning the often great expense necessary to "defend against unwarranted allegations".

It is not necessary or appropriate for this Court to lay down "rules" regarding "private attorneys general". We similarly reject as undesirable the concept that we must articulate "guidelines and principles" to structure the traditional flexibility of the exercise of equitable discretion. The trial judge gets sufficient guidance from the statutory directive that he serve "the interests of justice". Determinations as to fee and cost awards must of necessity be made through full consideration of the unique facts presented in each individual case. Again, our role is limited to a review to [7 ELR 20076] determine a possible abuse of that discretion.

One more point needs to be covered. Plaintiff argues in the alternative that no costs should have been awarded because a "public question" was involved. While it has been the frequent and traditional policy of our appellate courts to deny costs in "public question" cases, we specifically disavow the pronouncement of City of Berkley v. Holmes, 34 Mich.App. 417, 191 N.W.2d 561 (1971), that any such award constitutes "an abuse of discretion". Our policy is wholly superseded by M.C.L.A. § 691.1203; M.S.A. § 14.528(203)(3) for suits brought under the EPA; suits that, incidentally, inevitably involve public questions.

The cause is remanded. Costs to abide final results.

* SAM STREET HUGHES, former Circuit Court Judge, sitting on the Court of Appeals by assignment pursuant to Const.1963, art. 6, § 23 as amended in 1968.