ATTORNEY FOR APPELLANT
David T. Sholes
Michigan City, Indiana
ATTORNEY FOR AMICUS CURIAE INDIANA CIVIL LIBERTIES UNION
Kenneth J. Falk
Indianapolis, Indiana
ATTORNEYS FOR AMICUS INDIANA LEGAL SERVICES, INC.
Thomas M. Frohman
Jamie Andre
Bloomington, Indiana
ATTORNEY FOR AMICUS CURIAE LIFERS UNITED FOR PENAL PROGRESS, INC.
Stephen D. Brown
Michigan City, Indiana
ATTORNEYS FOR APPELLEE
David W. Stone
Anderson, Indiana
Georgianne F. Bolingerk
Marion, Indiana
ATTORNEYS FOR AMICUS CURIAE THE EVANSVILLE BAR ASSOCIATION
Rebecca T. Kasha
Jon Aarstad
Evansville, Indiana
ATTORNEYS FOR AMICUS CURIAE HENDRICKS COUNTY BAR ASSOCIATION
Jeffrey K. Baldwin
Danville, Indiana
Gregory W. Black
Plainfield, Indiana
__________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
DAVID T. SHOLES, )
)
Appellant (Respondent Below), )
) Indiana Supreme Court
v. ) Cause No. 27S02-0112-CV-655
)
CHRISTINE K. SHOLES, ) Indiana Court of Appeals
) Cause No. 27A02-9906-CV-445
Appellee (Petitioner Below). )
__________________________________________________________________
APPEAL FROM THE GRANT CIRCUIT COURT
The Honorable Thomas R. Hunt, Judge
Cause No. 27C01-9802-DR-84
__________________________________________________________________
ON PETITION FOR TRANSFER
__________________________________________________________________
December 21, 2001
BOEHM, Justice.
We grant transfer in this civil appeal to determine whether Indiana
Code section 34-10-1-2 requires appointment of counsel for civil litigants
who are without “sufficient means to prosecute or defend an action.” We
hold: (1) appointment of counsel under the statute is mandatory; (2)
counsel appointed under the statute must be compensated; and (3) Indiana
Trial Rule 60.5 gives trial courts the power to order payment of appointed
counsel, but (4) the same considerations governing other court-mandated
funding apply in determining whether mandate is appropriate, and (5)
counsel for whom mandate of compensation is not appropriate under Trial
Rule 60.5 cannot constitutionally be appointed under the statute. In sum,
in ruling on an application for appointed counsel in a civil case, the
trial court must determine whether the applicant is indigent, and whether
the applicant, even if indigent, has means to prosecute or defend the case.
If those criteria are met, and there is no funding source or volunteer
counsel, the court must determine whether the mandate of expenditure of
public funds is appropriate in that case.
Factual and Procedural Background
On February 10, 1998, Christine Sholes filed a petition for
dissolution of marriage from her husband David Sholes, who is serving a
life sentence in the Indiana State Prison. The trial court held a final
hearing on the petition on April 14, 1998, and entered a decree of
dissolution on April 16. Christine was awarded all marital property that
was not in David’s possession. In addition, the court entered a qualified
domestic relations order directing General Motors Corporation, David’s
former employer, to pay 100% of David’s retirement benefits to Christine.
Ten months later, on February 19, 1999, David, pro se, filed a “Verified
Motion to Proceed as Pauper.” No ruling on that motion appears in the
record. On March 3, David filed another “Verified Motion to Proceed as
Pauper” in connection with a request for a record of proceedings. The
court denied David’s request for a record and made no finding as to David’s
indigence.
On April 15, 1999, David filed a motion to set aside the judgment and
the trial court scheduled a hearing for April 29. On the day of the
hearing, David filed a “Verified Request for Appointment of Pauper
Counsel.” Though David did not explicitly rely on Indiana Code section 34-
10-1-2, he stated that he was “wholly without funds to pay for an attorney
due to his indigent status.” The trial court denied David’s request
without making any findings. On June 16, 1999, the trial court found “that
[David] is without sufficient funds or means” to pay for a transcript of
the record for purposes of his appeal, and ordered one prepared at public
expense.
The Court of Appeals reversed the trial court’s denial of David’s
motion to set aside the judgment. Sholes v. Sholes, 732 N.E.2d 1252 (Ind.
2000). In doing so, the court relied on Indiana Code sections 34-10-1-1
and 34-10-1-2. Those sections provide:
Sec. 1. An indigent person who does not have sufficient means to
prosecute or defend an action may apply to the court in which the
action is intended to be brought, or is pending, for leave to
prosecute or defend as an indigent person.
Sec. 2. If the court is satisfied that a person who makes an
application described in section 1 of this chapter does not have
sufficient means to prosecute or defend the action, the court shall:
(1) admit the applicant to prosecute or defend as an indigent person;
and
(2) assign an attorney to defend or prosecute the cause.
All officers required to prosecute or defend the action shall do their
duty in the case without taking any fee or reward from the indigent
person.
Ind. Code §§ 34-10-1-1, -2 (1998). The Court of Appeals concluded that
David had presented sufficient evidence that he was indigent and that all
proceedings after David’s request for counsel must be vacated. Sholes, 732
N.E.2d at 1253.
Christine sought transfer. Because of the importance of the issues
presented, this Court issued an order inviting amicus curiae briefs, and
received responses from the Evansville Bar Association, Hendricks County
Bar Association, Indiana Legal Services, Inc., Indiana Civil Liberties
Union, and Lifers United for Penal Progress. We invited comment as to the
following issues: (1) Does Indiana Code section 34-10-1-2 require
appointment of counsel for civil indigent litigants; (2) if so, must the
attorney be paid; and (3) if the attorney is entitled to be paid, who is
responsible for the payment?
Though not identical, the arguments presented by amici may be
summarized as follows: (1) section 34-10-1-2 imposes a mandatory duty on
the courts to appoint counsel for civil litigants who meet the statute’s
requirements; and (2) section 34-10-1-2 does not forbid compensation to
appointed counsel.[1] The central issue, according to amici, is whether
the statute allows for payment of appointed counsel. They argue that if
compensation is not provided, then the statute is unconstitutional. Amicus
Hendricks County Bar Association also posits that appointments under the
statute would impose an unequal burden on counties that house the state’s
correctional facilities. Both Indiana Legal Services, Inc. and the Indiana
Civil Liberties Union contend that the counties are responsible for
compensating the appointed counsel.
We agree with the Court of Appeals that the statute does not confer
discretion on the trial court to deny counsel. And, as explained below,
amici are correct that the Indiana Constitution requires that appointed
counsel be compensated. However, in the absence of any legislatively
prescribed source of funding, a court’s ability to direct that counsel be
appointed is circumscribed by the doctrines surrounding the court’s ability
to order the expenditure of public funds. Ultimately, then, the decision
to appoint counsel for an indigent litigant in a civil case turns on the
court’s assessment of the nature of the case, the genuineness of the
issues, and any other factors that bear on the wisdom of mandating public
funds for that purpose.
I. Indiana Code Section 34-10-1-2 Requires Appointment of Counsel
The Court of Appeals concluded that the legislature, by failing to
amend section 34-10-1-2 in light of Holmes v. Jones, 719 N.E.2d 843 (Ind.
Ct. App. 1999), has approved of Holmes’ holding that the unambiguous
language of the statute requires appointment of counsel. Sholes, 732
N.E.2d at 1253. David argues that legislative acquiescence analysis is
unnecessary to the Court of Appeals’ holding because the legislature has
already expressed its intent in the original enactment of section 34-10-1-
2. We think David is essentially correct. Courts are obliged to respect
the plain language of a statute. Bartlett v. State, 711 N.E.2d 497, 501
(Ind. 1999). Indiana case law “presumptively treats ‘shall’ as mandatory .
. . ‘unless it appears clear from the context or the purpose of the statute
that the legislature intended a different meaning.’” Ind. Civil Rights
Comm’n v. Indianapolis Newspapers, Inc., 716 N.E.2d 943, 947 (Ind. 1999)
(quoting United Rural Elec. Membership Corp. v. Ind. & Mich. Elec. Co., 549
N.E.2d 1019, 1022 (Ind. 1990)). We see no basis in the statute to suggest
any unusual or stylized meaning of a commonly understood word. Moreover,
“when a statute is unambiguous, a court must apply the plain and obvious
meaning and not resort to other rules of construction.” Brownsburg Area
Patrons Affecting Change v. Baldwin, 714 N.E.2d 135, 139 (Ind. 1999). As a
matter of construction, we agree that the statute by its terms confers no
discretion on the trial court to deny counsel if its terms are met.
We reach this conclusion on the basis of the statute, not on any
notion of legislative acquiescence. As the Court of Appeals noted, the
legislature, in 2000, “not only had [the] opportunity to address [the
Holmes decision] but in three separate bills did so.” Sholes, 732 N.E.2d
at 1253.[2] A gridlock in a single session resulting in the failure of
these different approaches to amending the statute is not a firm indication
of legislative directive. The United States Supreme Court recently
observed that failed legislative proposals are a dangerous ground on which
to rest statutory interpretations “because a bill can be proposed or
rejected for any number of reasons.” Solid Waste Agency v. United States
Army Corps of Eng’rs, 531 U.S. 159, 160 (2001). We have found longstanding
and repetitive legislative inaction to be significant, Durham ex rel.
Estate of Wade v. U-Haul Int’l, 745 N.E.2d 755, 759 (Ind. 2001), but
rarely, if ever, is that acquiescence found in a single legislative
session’s failure to act to overturn a recent decision.
After the Court of Appeals issued its decision in this case, the 2001
session of the General Assembly again addressed section 34-10-1-2. Senate
Bill 104, as introduced, would simply have repealed both sections 34-10-1-1
and 34-10-1-2. Ultimately, both houses appeared to agree on discretionary
rather than mandatory appointment of counsel. However, the houses failed
to reach agreement on the means of funding appointed counsel. The
conference committee then recommended repealing the sections. However, the
session expired without action on the conference committee report, leaving
the statute again unscathed.
This history is of some interest, because the conference committee
report included a “synopsis” of the committee’s recommendation, which
describes the proposal to repeal the statute as eliminating “the general
duty of a county to provide an attorney to an indigent person involved in
civil litigation.” This seems to reflect the understanding of the General
Assembly that section 34-10-1-2, as it stands today, imposes a mandatory
duty of appointment on courts if an indigent applicant is without
sufficient means to prosecute or defend a civil action. Although both
houses appeared to desire a change in the statute, amendatory legislation
died in the last days of a difficult session despite the conference
committee’s agreement. We cannot construe this history as either a
legislative acquiescence in the Holmes holding or a rejection of the view
that the statute is to be read literally. This leaves us where it found
us: “shall” means shall.
Finally, Christine argues that “shall” must be interpreted as “may,”
because a policy of appointing counsel for indigent litigants creates the
“absurd” result of giving “all indigents an absolute right to appointment
of pauper counsel.” As explained in Part II, this is not true in all
cases, even under the literal terms of the statute. And, for the reasons
given in Part IV, the trial court’s judgment in assessing the need for
counsel at public expense is preserved by constitutional considerations.
II. Statutory Procedure for Appointment of Counsel
The procedure for the trial court to determine when counsel must be
appointed is: (1) the litigant is to apply to the trial court for leave to
proceed “as an indigent person”; and (2) if the trial court finds that the
applicant is both indigent and without sufficient means to prosecute or
defend the action, the trial court shall appoint counsel for the applicant.
Section 34-10-1-1 places the burden upon the party seeking to proceed
“as an indigent person” to demonstrate that he or she is indigent and
without “sufficient means.” However, section 34-10-1-2 does not require
the applicant to make an independent, formal request for appointed counsel.
Rather, once the trial court finds that the applicant is indigent and
without “sufficient means to prosecute or defend” the action, it must sua
sponte appoint counsel. Though the considerations of indigence and
“sufficient means” are similar in some situations, they are not
identical.[3]
A. Indigence
In Moore v. State, 273 Ind. 3, 7, 401 N.E.2d 676, 678-79 (1980), this
Court discussed at length several factors to be considered when determining
whether a party is indigent:
First, it appears clear that the defendant does not have to be totally
without means to be entitled to counsel. . . .
The determination as to the defendant’s indigency is not to be made on
a superficial examination of income and ownership of property but must
be based on as thorough an examination of the defendant’s total
financial picture as is practical. The record must show that the
determination of ability to pay includes a balancing of assets against
liabilities and a consideration of the amount of the defendant’s
disposable income or other resources reasonably available to him after
the payment of his fixed or certain obligations.
B. Sufficient Means to Prosecute or Defend
Whether the applicant has “sufficient means” goes beyond a mere
snapshot of the applicant’s financial status. Rather, the court must
examine the applicant’s status in relation to the type of action before it.
Cf. Campbell, 605 N.E.2d at 159 (“[T]he standard governing a finding of
indigency is closely related to the purpose for which the status is
sought.”). If the action is of the kind that is often handled by persons
of means without counsel, the court may find that even an indigent
applicant has “sufficient means” to proceed without appointed counsel. For
example, many forms of small claims actions are typically prosecuted and
defended pro se even by persons of means. Similarly, cases that have their
own ability to fund counsel are another general category where appointed
counsel may be inappropriate. The marketplace for lawyer services can
value cases often handled on a contingent fee basis. The same is true of
litigation governed by fee shifting statutes. In these cases, an indigent
may well be found to have sufficient means to prosecute or defend the
action.
We do not mean to create blanket categories of cases in which counsel
should never be appointed. Rather, the court should look to the particular
issues presented in the action and make a determination of whether the
indigent applicant requires appointed counsel. A routine landlord-tenant
dispute may present such straightforward issues that the ordinary litigant
requires no counsel. In such a dispute, the indigent applicant has
“sufficient means” to prosecute or defend the action without appointed
counsel. On the other hand, the same dispute might present complexities or
involve such significant precedent that proceeding pro se would
disadvantage the ordinary litigant, and appointed counsel may be
appropriate.
III. Appointed Counsel Must Be Compensated
Section 34-10-1-2 speaks of appointed attorneys doing their “duty.”
It therefore seems to assume that attorneys may be required to work without
compensation. This view of the statute is reflected by the dissent, which
relies on Bd. of Comm’rs v. Pollard, 153 Ind. 371, 55 N.E. 87 (1899). In
Pollard, this Court attempted to answer the following questions: “Did the
appointment of [an attorney] by the Howard circuit court create a charge
against the county, and was the order of the court allowing [the attorney]
compensation for professional services rendered by him to a poor person in
a civil action authorized by law?” The Howard County circuit court
appointed an attorney to represent an indigent plaintiff, based on a
statute almost identical to today’s sections 34-10-1-1 and 34-10-1-2.
After rendering his services, the appointed attorney presented the circuit
court’s compensation order to the Howard County treasurer, who refused to
pay.
Although this Court had the opportunity to hold that attorneys may be
required to provide free services, it clearly decided otherwise: “An
attorney at law cannot, in this state, be compelled by an order of a court
to render professional services without compensation.” Id. While the
Court approved holding the county responsible for paying for an appointed
attorney for indigent criminal defendants, it reached a different
conclusion for civil attorneys. The Court took the view that, in civil
cases, not only did the statute contemplate no compensation, courts also
had no power to order it. Id. at 374, 55 N.E. at 88. Notably, the Court
did not address the issue of what to do when no lawyer is available to
provide free service in a civil case. Instead, it expressed its confidence
that “[t]he eager desire of young practitioners to take part in the
exciting contests of the bar” would result in enough volunteers stepping
forward to accept appointments under the statute. Id.
Although Pollard refused to hold that the statute required payment in
civil cases, it also refused to press attorneys into uncompensated service.
Twice in Pollard, this Court clearly stated that attorneys may not be
forced to work without compensation. No doubt is left by the Court’s
admonition that “the attorney cannot be compelled to perform the services .
. . and, if he does render them at the request of the court, he does so
voluntarily.” Id. at 375, 55 N.E. at 88.
An attorney may of course choose to accept an appointment without
compensation. But if no volunteer attorney is available, Article I,
Section 21 of the Indiana Constitution provides that “[n]o person’s
particular services shall be demanded, without just compensation.” We find
no support for the proposition that attorneys’ services were historically
viewed as somehow outside the ban on conscripting “particular services.”
Shortly after the 1851 Constitution was adopted, this Court held a statute
requiring appointment of counsel unconstitutional to the extent it required
“the services of an attorney at law to prosecute or defend without fee.”
Blythe v. State, 4 Ind. 525, 525 (1853). Similarly, in Webb v. Baird, 6
Ind. 13, 18 (1854), this Court stated, “An attorney of the Court is under
no obligation, honorary or otherwise, to volunteer his services.” The
reasoning in Webb rested in large part on the notion that the legal
profession, under the 1851 Constitution, was “reduced to . . . a common
level with all other provisions and pursuits.” Id. at 16. This presumably
referred to the populist provision inserted into Article VII, Section 21,
that “[e]very person of good moral character, being a voter, shall be
entitled to admission to practice law in all courts of justice.” After
repeated assaults by the legal profession, that provision was finally
repealed in 1932, and the modern system of judicial supervision and
licensing of the bar was instituted. See In re Todd, 208 Ind. 168, 193
N.E. 865 (1935) (holding Article VII, Section 21 was stricken from the
Indiana Constitution in the 1932 general election).[4] Even today, several
sources suggest an attorney’s duty to assist the poor. For example, the
Indiana Oath of Attorneys requires every attorney to undertake that “I will
never reject, from any consideration personal to myself, the cause of the
defenseless or oppressed.” Indiana Rule of Professional Conduct 6.1
provides, “A lawyer should render public interest legal service . . . by
providing professional service at no fee or a reduced fee to persons of
limited means.” And the Indiana Rules of Professional Conduct Preamble
recites, “A lawyer should be mindful . . . of the fact that the poor, and
sometimes persons who are not poor, cannot afford adequate legal
assistance, and should therefore devote professional time . . . in their
behalf.”
Over a century ago, Pollard expressed this Court’s confidence in the
bar’s willingness to supply service on a voluntary basis. We continue to
share the hope that a number of attorneys will voluntarily accept the
appointments required by section 34-10-1-2, but we do not adhere to the
view that volunteer resources are sufficient to the task. Pro bono
commissions and pro bono service providers are now in place to address this
need, but every indication is that they cannot realistically be expected to
provide counsel for every litigant. As amicus Indiana Civil Liberties
Union put it, “[T]here is no doubt that even including the possibility of
pro bono representation, . . . existing providers cannot come close to
meeting the need for civil legal assistance for indigent litigants.” Nor
can we rely solely on the philanthropic spirit of the bar to guarantee the
proper implementation of the legislature’s mandate.
Finally, requiring attorneys to serve involuntarily and without
compensation is an impermissible resolution of this impasse. Because one
must be licensed to engage in the practice of law, the privilege of a
license arguably brings with it an obligation to provide free legal
services under section 34-10-1-2. However, notwithstanding the dissent’s
claims to historical practice, this Court in Blythe (1853), Webb (1854) and
Pollard (1899) has consistently rejected the notion that an attorney may be
compelled to serve without compensation.[5] Moreover, even after the legal
profession became a highly regulated institution, this Court reiterated its
view that attorneys cannot be involuntarily impressed into public service.
In Knox County Council v. State ex rel. McCormick, 217 Ind. 493, 509-10, 29
N.E.2d 405, 412 (1940), this Court explicitly addressed the dissent’s
“licensed profession” argument:
It is true that members of the bar feel it to be their ethical duty
not to withhold their counsel . . . to those who are not able to
adequately pay, but such ethical obligations are voluntary and cannot
be required . . . . In these modern times practitioners of the
professions and of many arts, sciences, trades, and businesses are
required to be licensed. . . . If a law should be enacted requiring
every person licensed by the state to render services . . . to paupers
gratuitously, much difficulty would be found in justifying a decision
holding the law unconstitutional as depriving the green grocer or the
restaurant operator of his goods, or as depriving the physician, or
the barber, or the plumber, or the electrician, or the mechanical
engineer of his services, without compensation, while adhering to a
rule that licensed attorneys’ services may be taken without
compensation.
We adhere to this view and hold that the Constitution prevents requiring a
specific lawyer to accept employment without compensation in a specific
case.[6] The obligation to provide pro bono service is one of the
profession as a whole and Article I, Section 21 prevents a court from
imposing it disproportionately on any single attorney.
IV. Payment from Public Funds
For the foregoing reasons, if section 34-10-1-2 sought to impose
service without a fee, that section would be unconstitutional. However,
the terms of section 34-10-1-2 do not require an attorney to serve without
compensation. Section 34-10-1-2 denies the appointed attorney a “fee or
reward from the indigent person.” Ind. Code § 34-10-1-2 (1998). There is
no statutory prohibition disallowing payment to the appointed attorney from
other sources. Although the Court in Pollard concluded that no mechanism
existed for courts to order payment of the appointed civil attorney by the
county, it has since been firmly established that courts have “the inherent
power and authority to incur and order paid all such expenses as are
necessary for the holding of court and the administration of its duties.”
Knox County Council v. State ex rel. McCormick, 217 Ind. 493, 511, 29
N.E.2d 405, 413 (1940) (citation omitted). This authority includes the
power “to appoint and require payment of such personnel as the functions of
the court may require.” Noble County Council v. State ex rel. Fifer, 234
Ind. 172, 187, 125 N.E.2d 709, 717 (1955).
Today, the source of that power is found in Indiana Trial Rule 60.5.
That rule sets forth the procedure by which courts may seek funds “which
are reasonably necessary for the operation of the court or court-related
functions.” Ind. Trial Rule 60.5.[7] In many cases, it is “the duty of
the county council to make the proper appropriation to meet such expense.”
Dunn v. State ex rel. Corydon, 204 Ind. 390, 395, 184 N.E. 535, 536 (1933);
see also Fifer, 234 Ind. at 187-88, 125 N.E. at 717 (court has authority to
require county council to pay salary of court appointed probation officer);
McCormick, 217 Ind. at 512, 29 N.E.2d at 413 (court has power to require
county council to pay for appointed attorneys in criminal cases).
If counsel is required to be appointed, the payment of counsel becomes
a “reasonably necessary” court-related cost, imposed as a result of the
legislature’s directive. However, the legislative directive to appoint
counsel is only one of several factors that a trial court must weigh before
requiring payment of appointed counsel under Trial Rule 60.5. This Court
explained that balancing, and the reason for it, in Overbeck v. Barton, 471
N.E.2d 1105, 1106 (Ind. 1984) (citation omitted):
It may not be overlooked . . . that our system of government does not
repose the authority in judges to set salaries for court officials and
employees. That duty and responsibility is with others. . . . In
exercising such extraordinary authority, due and full consideration
must be given to the possible adverse impact upon any specific
governmental interests.
An order to pay funds should not be issued by a trial court if “any
specific fiscal or other governmental interests [would be] severely and
adversely affected by the payment.” In re Court Reporter Salaries in Knox
Circuit and Superior Courts, 713 N.E.2d 280, 282 (Ind. 1999). In the
context of appointed counsel for criminal defendants, any governmental or
fiscal consequences of paying the counsel are necessarily trumped by the
constitutional requirements that (1) counsel be appointed and (2) counsel
be compensated for the work. As this Court stated in McCormick, 217 Ind.
at 498, 29 N.E.2d at 407:
[W]here one who is without means is charged with crime, the question
of whether he shall have counsel appointed for him has not been left
to the discretion of the court or the Legislature. It has been
determined by the people in their Constitutions, national and state,
that he shall have counsel . . . .
Because we have systems providing publicly funded counsel for criminal
defendants, no mandate is required. But if there were no such provision,
courts would be required by the Constitution to exercise their power under
Trial Rule 60.5 to direct payment of counsel.
In most civil cases, however, we have only a statutory directive, and
there is no constitutional requirement that counsel be appointed for
indigent litigants. As explained in Part II, before appointing counsel,
the trial court is to consider the type of case presented to determine
whether even an indigent applicant has “sufficient means” to proceed
without appointed counsel. In addition, the trial court is obliged to
consider whether any specific fiscal or other governmental interests would
be severely and adversely affected by a Trial Rule 60.5 order requiring
payment of any appointed counsel.
Christine is correct that appointment in some cases is, to use her
word, “absurd.” Although most lawsuits represent genuine disputes, some
litigants present wholly frivolous cases. Others pursue cases where the
amount of money or principles of law are insignificant. Courts are
occasionally presented with vendettas and simple sporting exercises.
Public funding of counsel in those cases is a waste of public funds. But
apart from the amount of public waste involved, appointment of counsel at
public expense would severely impair the credibility of the judicial
branch. Although the legislature directs appointment of counsel,
apparently on the mistaken assumption that attorneys could be required to
“do their duty,” the appointment and attendant mandate of funds are
judicial functions reserved to the courts. As this Court recently
observed, “[I]t has been held in a variety of contexts that the legislature
cannot interfere with the discharge of judicial duties, or attempt to
control judicial functions, or otherwise dictate how the judiciary conducts
its order of business.” State v. Monfort, 723 N.E.2d 407, 411 (Ind. 2000).
The ultimate credibility of the judicial process must be considered in any
exercise of judicial power. Rule 60.5 calls for exercise of judicial
judgment, and that judgment cannot be directed by another branch of
government consistent with the separation of powers required by Article III
of the Indiana Constitution. If no uncompensated attorney is willing to
serve and the trial court finds itself unable to order payment, then, for
the reasons set forth in Part III, the statutory obligation to appoint
counsel fails as an unconstitutional order to attorneys to work without
compensation.
V. Sholes’ Request for Appointed Counsel
After the trial court entered a decree of dissolution and distributed
Christine and David’s marital property, David filed two motions “to proceed
as pauper.” No determination of either appears in the record. However,
confronted with such a motion, the trial court should have determined
whether David was indigent and without sufficient means to litigate the
dissolution action. An affirmative finding on both questions would result
in a statutory mandate that counsel be appointed to David. It is for the
trial court to determine whether David has a colorable bona fide dispute
over issues warranting the expense of counsel. At that point, if no pro
bono service provider is available, the trial court would have to consider
whether it has the power, under Trial Rule 60.5, to order payment of
counsel, or whether the statutory mandate of section 34-10-1-2 fails in
light of overriding considerations that would prevent expenditure of public
funds for appointed counsel.
Therefore, we remand with instructions (1) to vacate all proceedings
conducted after David’s February 19, 1999 “Motion to Proceed as Pauper,”
(2) determine whether David is indigent and without sufficient means, and
(3) if so, determine whether counsel may be appointed consistent with Trial
Rule 60.5.
VI. Conclusion
We grant transfer and reverse and remand to the trial court for
proceedings consistent with this opinion.
SHEPARD, C.J., and SULLIVAN, and RUCKER, JJ., concur.
DICKSON, J., concurs and dissents with separate opinion.
In The
INDIANA SUPREME COURT
DAVID T. SHOLES, )
)
Appellant (Respondent Below), )
)
v. ) 27S02-0112-CV-655
)
CHRISTINE K. SHOLES, )
)
Appellee (Petitioner Below). )
)
________________________________________________
APPEAL FROM THE GRANT CIRCUIT COURT
The Honorable Thomas R. Hunt, Judge
Cause No. 27C01-9802-DR-84
________________________________________________
On Petition To Transfer
December 21, 2001
DICKSON, Justice, concurring and dissenting.
I agree with the majority's position in parts I (finding that Ind.
Code § 34-10-1-2 requires appointment of counsel) and II (regarding the
procedure for the appointment of counsel under Ind. Code § 34-10-1-1 and §
34-10-1-2). However, I respectfully dissent from part III of the
majority's opinion, which holds that counsel appointed under these
provisions must be compensated. I also disagree with section IV of the
majority's opinion to the extent that it relies on the majority's holding
in section III.
The history of the challenged statute can be traced back almost to
statehood. An 1818 statute provided that every poor person who has a cause
of action or is a defendant in any suit shall pay nothing for subpoenas and
other legal processes, and that the court:
shall assign to him or her counsel, learned in the law, and appoint
all other officers requisite and necessary to be had for the speed of
the said suit, who shall do their duties without any reward for their
service, help and business in the same; and if any counsel so assigned
as aforesaid, shall take or receive any fee or reward therefor, either
directly or indirectly, he shall forfeit and pay the sum of five
hundred dollars, to the use of the party aggrieved, to be recovered by
action of debt, with costs of suit.
Laws of Ind. 1818, ch. XIV, § 20 (emphasis added). By 1843, the applicable
provision required that upon determination that an applicant is a poor
person, the court "shall admit him to prosecute or defend as a poor person,
and shall assign him counsel and attorneys, and all other officers
requisite for prosecuting or defending his suit, who shall do their duty
therein without taking any fee or reward therefor." Rev. Stat. of Ind.
1843, ch. 40, § 68 (emphasis added).
During the ensuing 183 years since the statute's precursor, only one
case has addressed whether a lawyer is entitled to payment of fees by the
court or county. In 1899, this Court held that a county may not be
compelled to compensate a lawyer appointed to represent a poor person in a
civil action. In that case, Board of County Commissioners v. Pollard, 153
Ind. 371, 55 N.E. 87 (1899), this Court considered a statute essentially
the same as the one under consideration today. The Court looked to the
language of the statute and refused to "add to the statute the
qualification that the fees of the attorney shall be allowed by the court,
and paid by the county. Such a construction would, in our opinion, open
the door to grave abuses, and might subject the revenues of the county to
serious drains." Pollard, 153 Ind. at 374, 55 N.E. at 88. Pollard has
never been overruled.1
In finding that appointed attorneys are entitled to compensation, the
majority relies on language in the Indiana Constitution: "[n]o person's
particular services shall be demanded, without just compensation." Ind.
Const. art. 1, § 21. In Bayh v. Sonnenburg, 573 N.E.2d 398, 411 (Ind.
1991), however, this Court explained that Section 21 applies only to
"particular services," and that when the constitutional convention debated
the meaning of the word "particular" as used in that provision, "[i]t is
clear that the framers did not intend this clause to create new rights to
compensation for services provided to the state that had gone historically
uncompensated." Bayh, 573 N.E.2d at 413. In fact, the delegates
considered and rejected using the word "personal" instead of "particular,"
several arguing that "its breadth would prevent the State from requiring
citizens to perform certain duties previously provided gratuitously."
Bayh, 573 N.E.2d at 412-13. When the phrase "particular services" was
placed in our Constitution, attorneys who served as court-appointed
representatives of indigent civil clients were not compensated. There is
nothing in the history surrounding the adoption of our Constitution that
suggests that Section 21 was intended to change the then-prevailing
practice. Because, as Bayh emphasizes, Section 21 was not intended to
create new rights to compensation, and because, when Section 21 was
adopted, attorneys appointed to represent poor persons in civil cases were
not entitled to compensation, we should not now expansively construe
Section 21 to provide unintended new constitutional rights. The
representation of a civil litigant is not a "particular service" that
requires compensation under Article 1, Section 21 of the Indiana
Constitution.
The majority opinion manifests concern that the entitlement of
lawyers to compensation should be equated with that of grocers, physicians,
barbers, plumbers, electricians, mechanical engineers, etc. The special
obligation of providing free legal service to indigent clients, however, is
directly related to what makes lawyers different. In addition to rendering
professional services with an expectation of fair compensation, lawyers are
also officers of the court. This obligation to the public is an inherent
aspect of being a lawyer. It comes with the territory. Construing the
challenged statute to require lawyers to render services without
compensation does not lessen the protections of Article 1, Section 21 that
prohibit the government from demanding services of persons in other
professions and occupations without just compensation.
Reflecting language used in its earlier incarnations dating back to
1818, Indiana Code § 34-10-1-2 requires that attorneys, as officers of the
court, "do their duty in the case." Contemporaneous with the adoption of
the present Indiana Constitution, the General Assembly enacted a statute
listing the duties of an attorney, including: "Never to reject, from any
consideration personal to himself, the cause of the defenceless or
oppressed." Rev. Stat. of Ind. 1852, vol. 2, pt. 2d, ch. 1, art. XLV, §
DCCLXXI (J.J. Bingham 1870). This duty has remained to this day and is
expressly included in our present Oath of Attorneys. Ind.Admission and
Discipline Rule 22. Upon admission to the practice of law, every Indiana
attorney takes an Oath to "never reject, from any consideration personal to
myself, the cause of the defenseless or oppressed." Id. In addition, the
Preamble to the Indiana Rules of Professional Conduct states, "A lawyer
should be mindful . . . of the fact that the poor, and sometimes persons
who are not poor, cannot afford adequate legal assistance, and should
therefore devote professional time . . . in their behalf." Indiana
Professional Conduct Rule 6.1 declares: "A lawyer should render public
interest legal service. . . . [B]y providing professional service at no fee
or a reduced fee to persons of limited means . . . ."
I strongly disagree with the majority's apprehension regarding the
willingness and capacity of Indiana lawyers to voluntarily meet the need
for indigent legal services. The lawyers and judges of this state have
created, funded, and are implementing a unique and comprehensive new
program to place indigent clients with volunteer lawyers. This plan,
embodied in Indiana Professional Conduct Rule 6.5, expressly seeks "[t]o
ensure statewide access to high quality and timely pro bono civil legal
services for persons of limited means." Prof.Cond.R. 6.5(a)(3). This
Court adopted Professional Conduct Rule 1.15(d), creating Indiana's IOLTA
program (Interest on Lawyers' Trust Accounts) for the purpose of providing
funds to administer the Indiana voluntary pro bono program. I have full
confidence that Indiana's lawyers, especially with the administrative
assistance of the pro bono program created and funded under these rules,
can and will fulfill their obligation to provide the necessary free legal
services.
I believe that lawyers who accept appointments to represent indigent
civil litigants under Indiana Code § 34-10-1-2 are not entitled to demand
compensation from either their clients or from the government. From
Indiana's earliest days as a state, our laws have required its judges to
appoint lawyers for indigent civil litigants, and for the lawyers appointed
to do their duty without compensation. Article 1, Section 21 of the
Constitution was crafted with this understanding. Then as now, attorneys
understand and agree that they are expected to "do their duty in the case"
which includes to "never reject, from any consideration personal to myself,
the cause of the defenseless or oppressed." We should not undermine these
principles.
-----------------------
[1] Amicus Lifers United for Penal Progress contends that section 34-10-1-2
does not require compensation for appointed counsel, but the remaining
amici all argue that payment is required.
[2] The Court of Appeals described the 2000 legislative action regarding
section 34-10-1-2 as follows:
On January 10, 2000, Senate Bill 414, which gave the courts discretion
under exceptional circumstances to appoint counsel for indigents in
civil matters but did not require such appointment, was introduced.
On February 7, 2000, the bill passed the Senate 42-8. It was then
referred to the House of Representatives and assigned to committee but
received no further attention. A quite similar bill was introduced in
the House of Representatives on January 11, 2000, as House Bill 1348.
However, following referral to committee, it too received no further
attention. In addition, another Senate Bill, No. 258, which would
have eliminated the general duty of a county to provide counsel for
indigents in civil actions, was introduced on January 10, 2000, and on
that date was assigned to committee but died in that body.
Sholes, 732 N.E.2d at 1253.
[3] Several cases discussing the implication of sections 34-10-1-1 and 34-
10-1-2 generally state the analysis as focusing on whether the applicant is
“indigent.” See, e.g., Campbell v. Criterion Group, 605 N.E.2d 150, 159
(Ind. 1992). We understand those cases to have incorporated the
“sufficient means” analysis within their general discussion of indigence.
Both matters are left to the court’s sound discretion. E.P. v. Marion
County Office of Family and Children, 653 N.E.2d 1026, 1034 (Ind. Ct. App.
1995) (“The trial court’s determination of whether a litigant has
sufficient means to prosecute or defend an action is reviewed for an abuse
of discretion.”).
[4] In the 1932 general election, more voters cast ballots for political
candidates than on the amendment of Article VII, Section 21. Article XVI
of the Indiana Constitution states that final approval of a constitutional
amendment is conditioned on ratification by a majority of the “electors of
the State.” In Todd, the petitioner argued that, because the number of
votes in favor of the constitutional amendment did not equal a majority of
all votes cast in the election, the amendment to Article VII, Section 21
was ineffective. Therefore, according to the petitioner, any imposition of
a bar exam by the legislature or this Court was unconstitutional. The
petitioner based his contention on prior holdings of this Court that “a
proposed amendment which is submitted to the electors at a general election
fails of adoption unless it is approved by a majority of all the voters who
vote at the general election.” Todd, 208 Ind. at 172, 193 N.E. at 866. In
Todd, this Court changed course and held that “majority of said electors,”
as stated in Article XVI, means a majority of the votes cast either for or
against the particular amendment, not a majority of all votes cast in the
election. Id. at 205, 193 N.E. at 880.
[5] The dissent relies on Bayh v. Sonnenburg, 573 N.E.2d 398 (Ind. 1991),
which explained that the phrase “particular services,” as used in Article
I, Section 21 was not meant to create new rights to compensation where none
had previously existed. However, in the very next passage, Bayh
specifically cites to Blythe and Webb—both cases dealing with attorneys—in
making the distinction between services required of all citizens and
services that may not be required of only one class of citizens.
[6] The dissent argues that the reasoning in McCormick is inapplicable
because it concerned the payment of legal fees for a criminal case, not a
civil case. We do not think that the obligations placed upon the legal
profession are somehow more expansive in the civil context, where the
source of the appointment is a statute, than in the criminal context, where
appointment of counsel for those who cannot afford it is constitutionally
mandated. If anything, the distinction cuts in the other direction.
[7] Trial Rule 60.5(A) states:
Courts shall limit their requests for funds to those that are
reasonably necessary for the operation of the court or court-related
functions. Mandate will not lie for extravagant, arbitrary or
unwarranted expenditures nor for personal expenditures (e.g., personal
telephone bills, bar association memberships, disciplinary fees).
Prior to issuing the order, the court shall meet with the mandated
party to demonstrate the need for said funds.
Trial Rule 60.5(B), in relevant part, states:
Whenever a court . . . desires to order either a municipality, a
political subdivision of the state, or an officer of either to
appropriate or to pay unappropriated funds for the operation of the
court or court-related functions, such court shall issue and cause to
be served upon such municipality, political subdivision or officer an
order to show cause why such appropriation or payment should not be
made.
1 The majority notes Knox County Council v. State ex rel McCormick,
217 Ind. 493, 29 N.E.2d 405 (1940), but this case did not involve a claim
for legal fees in a civil case. Rather, it involved two attorneys
defending a poor person charged with murder. The Knox Circuit Court had
granted them attorney fee allowances, but the County Auditor refused make
payment. McCormick, like the cases upon which it relies, does not decide
whether attorneys in civil cases must be compensated. These cases do not
overrule Pollard.