53 N.E.3d 1203
Ind. Ct. App.2016Background
- Gregory Bowes, an Indiana attorney, requested electronic voter-registration records from the Marion County Board of Voter Registration (MCVR) under the Indiana Access to Public Records Act (APRA).
- MCVR declined to produce copies until the Marion County Election Board (MCEB) adopted a uniform policy as required by statute; the Public Access Counselor (PAC) issued an advisory urging the MCEB to adopt a policy promptly.
- Bowes and others sued; the trial court found MCVR violated APRA and ordered production of the records and initially indicated Bowes could recover attorney fees as the prevailing party.
- At the fee hearing Bowes (pro se) sought nearly $47,000 based on his hourly rate and time; the trial court later denied attorney fees because Bowes litigated pro se but awarded $7,456.74 as "reasonable litigation expenses" for missed work and other opportunity costs, plus $975.14 in filing/deposition costs.
- MCVR appealed the award of opportunity-cost litigation expenses as effectively attorney fees; Bowes cross-appealed denial of attorney fees and the amount awarded.
- The Court of Appeals held that (1) a pro se attorney may not recover attorney fees under APRA and (2) speculative opportunity costs (missed work/opportunities) are not recoverable as "expenses of litigation," reversing the award except for $975.14 in actual costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a pro se attorney prevailing under APRA may recover attorney fees | Bowes: as a licensed attorney and prevailing party, he should recover attorney fees | MCVR: pro se litigants (even attorneys) may not recover attorney fees; APRA's fee-shifting requires independent counsel | Held: Pro se attorney cannot recover attorney fees under APRA — no attorney-client agency exists when representing oneself (Kay and Miller controls) |
| Whether missed work/opportunity costs are recoverable as "other reasonable expenses of litigation" under APRA | Bowes: foregone income and lost opportunities constitute recoverable litigation expenses | MCVR: opportunity costs are speculative and not "expenses" for which recovery is permitted | Held: Opportunity costs are not recoverable; only actual, documented costs (filing, deposition) are recoverable — remand to award $975.14 |
Key Cases Cited
- Kay v. Ehrler, 499 U.S. 432 (U.S. 1991) (pro se attorneys cannot recover counsel fees because "attorney" presumes an agency relationship and independent counsel is statutorily preferred)
- Miller v. West Lafayette Cmty. Sch. Corp., 665 N.E.2d 905 (Ind. 1996) (adopts Kay rationale; public-policy reasons favor awarding fees only when independent counsel is retained)
- Ziobron v. Crawford, 667 N.E.2d 202 (Ind. Ct. App. 1996) (distinguished — pro se attorney fees were treated as damages for a tort, not statutory fee-shifting)