Omdahl v. West Iron County Bd. of Educ.
| Decision Date | 27 June 2007 |
| Docket Number | No. 131926.,131926. |
| Citation | 733 N.W.2d 380,478 Mich. 423 |
| Court | Michigan Supreme Court |
| Parties | Torger G. OMDAHL, Plaintiff-Appellee, 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-Appellants. |
Fisher & Omdahl (by Torger G. Omdahl), Iron River, for the plaintiff.
Basso & Basso Legal Services, LLC (by Sara J. Basso), Iron River, for the defendant.
Brad A. Banasik, for the Michigan Association of School Boards, the Michigan Municipal League, and the Public Corporation Law Section of the State Bar of Michigan, amici curiae.
Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and Thomas Quasarano, Assistant Attorney General, for the Attorney General, amicus curiae.
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.
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 N.W.2d 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, 722 N.W.2d 691. 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, 722 N.W.2d 691. 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, 722 N.W.2d 691.]
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, 722 N.W.2d 691. Rather, it concluded that the actual attorney fee constituted the value of the professional time Omdahl invested in the case. Id. at 559, 722 N.W.2d 691.
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, 722 N.W.2d 691, quoting People v. Yamat, 475 Mich. 49, 54 n. 15, 714 N.W.2d 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, 722 N.W.2d 691 (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, 724 N.W.2d 275 (2006).
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 N.W.2d 567 (2002). Our primary purpose when construing a statute is to effectuate legislative intent. In re MCI Telecom. Complaint, 460 Mich. 396, 411, 596 N.W.2d 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.
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 N.W.2d 422 (1993); 1968 P.A. 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, 507 N.W.2d 422. Because the act initially failed to provide for an enforcement mechanism or penalties for noncompliance, the act was repealed and reenacted by 1976 P.A. 267 to remedy the oversight and "promote a new era in governmental accountability." Booth, supra at 222, 507 N.W.2d 422. 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, 714 N.W.2d 335, 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
In Laracey v. Financial Institutions Bureau, 163 Mich.App. 437, 441, 414 N.W.2d 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, 414 N.W.2d 909. In doing so, it relied on the reasoning from the Eleventh Circuit in Duncan v. Poythress, 777 F.2d 1508, 1518 (C.A.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 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...
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