ATTORNEY FOR APPELLANT
David T. Sholes
Michigan City, Indiana
ATTORNEY FOR AMICUS CURIAE INDIANA CIVIL LIBERTIES UNION
Kenneth J. Falk
ATTORNEYS FOR AMICUS INDIANA LEGAL SERVICES, INC.
Thomas M. Frohman
ATTORNEY FOR AMICUS CURIAE LIFERS UNITED FOR PENAL PROGRESS, INC.
Stephen D. Brown
Michigan City, Indiana
ATTORNEYS FOR APPELLEE
David W. Stone
Georgianne F. Bolingerk
ATTORNEYS FOR AMICUS CURIAE THE EVANSVILLE BAR ASSOCIATION
Rebecca T. Kasha
ATTORNEYS FOR AMICUS CURIAE HENDRICKS COUNTY BAR ASSOCIATION
Jeffrey K. Baldwin
Gregory W. Black
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
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 Davids
possession. In addition, the court entered a qualified domestic relations order directing
General Motors Corporation, Davids former employer, to pay 100% of Davids 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 Davids request for a record and made
no finding as to Davids 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 Davids 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
The Court of Appeals reversed the trial courts denial of Davids 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 Davids request for counsel must be vacated. Sholes, 732 N.E.2d at
1253. I. Indiana Code Section 34-10-1-2 Requires Appointment of Counsel
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 statutes requirements; and (2) section 34-10-1-2
does not forbid compensation to appointed counsel.
See footnote 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.
Hendricks County Bar Association also posits that appointments under the statute would
impose an unequal burden on counties that house the states 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
courts ability to direct that counsel be appointed is circumscribed by the doctrines
surrounding the courts 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 courts 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.
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 Commn 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.
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 Engrs, 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 Intl, 745 N.E.2d 755, 759 (Ind. 2001),
but rarely, if ever, is that acquiescence found in a single legislative sessions
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
This history is of some interest, because the conference committee report included a
synopsis of the committees 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 committees 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 courts 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.
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 defendants 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 defendants 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 defendants 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
applicants financial status. Rather, the court must examine the applicants 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 Commrs 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 todays sections 34-10-1-1
and 34-10-1-2. After rendering his services, the appointed attorney presented the circuit
courts 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.
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 Courts 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 persons 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).
today, several sources suggest an attorneys 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 Courts confidence in the bars 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 legislatures 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
dissents 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.
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 dissents 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
We adhere to this view and hold that the Constitution prevents requiring a
specific lawyer to accept employment without compensation in a specific case.
See footnote 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.
See footnote 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
If counsel is required to be appointed, the payment of counsel becomes a
reasonably necessary court-related cost, imposed as a result of the legislatures 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.
V. Sholes Request for Appointed 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.
After the trial court entered a decree of dissolution and distributed Christine and
Davids 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 Davids
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.
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.
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.
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
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
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."
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.
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
The Court of Appeals described the 2000 legislative action regarding section 34-10-1-2
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.
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.
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 courts sound discretion.
E.P. v. Marion County Office of Family and Children, 653 N.E.2d 1026, 1034
(Ind. Ct. App. 1995) (The trial courts determination of whether a litigant has
sufficient means to prosecute or defend an action is reviewed for an abuse
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.
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 Webbboth cases dealing with attorneysin making the distinction between services required
of all citizens and services that may not be required of only one
class of citizens.
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.
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.