In keeping with the American rule, attorney fees are generally not recoverable in Michigan courts as either costs or damages unless they are expressly authorized by contract, statute, court rule, or another recognized exception. The ability to add attorney fee remedies to statutes and court rules can be a powerful tool for the legislature to promote or discourage certain conduct. For example, the Open Meetings Act (OMA) requires certain meetings of certain public bodies to be open to the public. If a public body is not complying with the act and a person commences an action for injunctive relief to compel compliance or to enjoin further noncompliance and succeeds in obtaining relief, that person can recover costs and attorney fees. MCL 15.271(4) The statutory remedy of awarding attorney fees for injunctive relief sends a strong signal that the legislature wants to encourage transparent democracy, but more importantly discourage secrecy or corruption.
The attorney fees remedy permitted by the OMA should also apply to Michigan Election Laws governing ballot proposals in order to 1) encourage government participation in direct democracy and 2) discourage petty partisan politics. Take for example the Michigan Regulation and Taxation of Marihuana Act, 2018 IL 1, MCL 333.27951 et seq. (the “MRTMA”) The MRTMA legalized the possession and use of marihuana under Michigan law by adults 21 years of age and older, and also created a system to license and regulate businesses engaged in the cultivation, manufacture, transport, testing, and sale of marihuana products for commercial purposes. However, despite the fact that the MRTMA was passed with overwhelming popular support, few municipalities in Michigan have opted to allow commercial marihuana establishments to operate within their jurisdictions.
Perhaps in recognition of this prospective reality, the drafters of MRTMA included a specific provision allowing for the initiation of marihuana-related ordinances with a lower threshold for required signatures than would generally be mandated for local proposals to be placed on an electoral ballot. Pursuant to Section 6(1) of the MRTMA, MCL 333.27956(1), “[i]ndividuals may petition to initiate an ordinance to provide for the number of marihuana establishments allowed within a municipality or to completely prohibit marihuana establishments within a municipality…” Moreover, that section also provides that “such ordinance shall be submitted to the electors of the municipality at the next regular election when a petition is signed by qualified electors in the municipality in a number greater than 5% of the votes cast for governor by qualified electors in the municipality at the last gubernatorial election.” Id. Consequently, marihuana advocates and entrepreneurs have increasingly turned to this citizen initiative mechanism under MRTMA as a way to compel municipalities to allow marihuana-related businesses within their jurisdiction.
The Michigan Legislature should amend the MRTMA to provide attorney fees to plaintiffs who succeed in obtaining injunctive relief, such as a Writ of Mandamus to compel petition certification, when a public body unlawfully rejects petitions similar to the provision in the Open Meetings Act. Both acts share similar goals to incentivize transparency as well as government participation in direct democracy. The right of citizens to initiate laws and ordinances is a fundamental exercise of rights secured by the First Amendment and of the democratic principles underpinning our society. Proposing questions directly to the electorate is the last resort of individuals and associations seeking to circumvent legislative bodies who are unwilling, unable, or disinclined to adopt policies favored by a majority of the citizenry. To give citizens and their proposals a fighting chance, the legislature should provide these citizens relief if the opportunity to exercise direct democracy is impeded by petty partisan politics.