Sholes v. Sholes

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.