DocketNumber： Docket 246823, 248593, 251390
Citation Numbers： 729 N.W.2d 914, 273 Mich. App. 342
Judges： Sawyer, P.J., and Bandstra and Smolenski
Filed Date： 3/14/2007
Status： Precedential
Modified Date： 8/24/2023
Court of Appeals of Michigan.
*915 Howard L. Shifman, P.C. (by Howard L. Shifman), and Kienbaum Opperwall Hardy & Pelton, P.L.C. (by Thomas G. Kienbaum, Noel D. Massie, and Patricia J. Boyle), Birmingham, Birmingham, for the 46th Circuit Trial Court.
Cohl, Stoker, Toskey & McGlinchey, P.C. (by Bonnie G. Toskey), Lansing, for Crawford County, the Crawford County Board of Commissioners, and Kalkaska County.
Johnson, Rosati, LaBarge, Aseltyne & Field, P.C. (by Christopher J. Johnson), Farmington Hills, for Otsego County.
Cummings, McClorey, Davis & Acho, P.L.C. (by Gregory L. Ulrich and Jana M. Berger), Livonia, for the Michigan Association of Counties.
Before: SAWYER, P.J., and BANDSTRA and SMOLENSKI, JJ.
PER CURIAM.
We issued an opinion in this matter on April 1, 2004, 46th Circuit Trial Court v. Crawford Co., 261 Mich.App. 477, 682 N.W.2d 519 (2004) (46th Circuit Court I). An appeal of that case was held in abeyance by the Supreme Court pending its decision in a related matter that has now been decided, 46th Circuit Trial Court v. Crawford Co., 476 Mich. 131, 719 N.W.2d 553 (2006) (46th Circuit Court II). In an order dated November 1, 2006, the Supreme Court vacated in part the judgment of this Court in 46th Circuit Court I and remanded the matter "for reconsideration of whether the 46th Circuit Trial Court is entitled to recover reasonable attorneys fees, in light of this Court's decision in" 46th Circuit Trial Court II. 477 Mich. 920 (2006).
In 46th Circuit Court I, supra at 490, 682 N.W.2d 519, we concluded that the inherent-power doctrine supplies a court with the authority to take whatever steps are reasonably necessary to fulfill the judicial function. Specifically, we concluded that this authority includes undertaking litigation to secure necessary funding, employing outside counsel to do that, and recovering reasonable attorney fees spent on that litigation. Id. at 490-491, 682 N.W.2d 519. "[T]he inherent power of a court includes those powers reasonably required for its practical exercise . . . [, including the power] to employ counsel and recover reasonable attorney fees arising out of such inherent power litigation." Employees and Judge of Second Judicial Dist. Court v. Hillsdale Co., 423 Mich. 705, 749, 378 N.W.2d 744 (1985) (Riley, J., dissenting). Nonetheless, we further reasoned that the determination of appropriate attorney fees in this context must be approached with "great caution," 46th Circuit Court I, supra at 496, 682 N.W.2d *916 519, and we outlined a procedure to be used in determining the issue, id. at 499-500, 682 N.W.2d 519. We reversed the lower court orders awarding attorney fees and remanded for determination of those fees in light of our decision. Id. at 505, 682 N.W.2d 519.
We find nothing in 46th Circuit Court II that would undermine this analysis or result. The Supreme Court reiterated our conclusion that the inherent-power doctrine provides the judiciary the authority to compel appropriations that are reasonable and necessary to allow the court to function serviceably in carrying out its constitutional responsibilities. 46th Circuit Court II, supra at 143-149, 719 N.W.2d 553. The Supreme Court determined that, under the facts of this case, the 46th Circuit Trial Court had failed to prove with clear and convincing evidence that the appropriation made by the legislative bodies was insufficient in this regard. Id. at 149-155, 719 N.W.2d 553. However, nothing in the Supreme Court's opinion suggests that a court may recover attorney fees expended to assert a claim for increased funding only if that claim is ultimately adjudged to be meritorious.
In our view, such a rule would severely undermine the inherent-power doctrine. A rule allowing reimbursement of attorney fees only if inherent-power litigation is successful would have an onerous chilling effect. The judiciary, only contemplating litigation because of a perceived budget shortfall, would be hard-pressed to employ outside counsel whose unreimbursed fees might exacerbate that shortfall.[1] As we have already noted, there is no reason in this case to conclude that the claim for additional funding was made in bad faith, and the claim was, at least, arguably meritorious. 46th Circuit Court I, supra at 492 n. 11, 682 N.W.2d 519.
Accordingly, on remand from the Supreme Court in Supreme Court Docket Nos. 126088, 126089, and 126090, we again conclude that the 46th Circuit Trial Court is entitled to recover reasonable attorney fees within the limitations set out in 46th Circuit Court I. Further, on remand from the Supreme Court in Supreme Court Docket Nos. 126846, 126847, and 126848, 477 Mich. 920 (2006), we have also reconsidered our July 7, 2004, order in light of this opinion, and we again affirm the June 11 and June 30, 2004, opinions and orders concerning attorney fees and costs entered by the lower court on remand from 46th Circuit Court I.
[1] We recognize that our decision is inconsistent with the usual rule that attorney fees are recoverable, if at all, only by a prevailing party. This case presents a unique circumstance, because the viability of one of our three branches of government is at issue. The judicial branch, which has no independent financial means to undertake litigation concerning funding, must be empowered to undertake that litigation when necessary to protect the judicial function.