*1 Stone, Anderson, Indiana, IV, they David W. hearing, yet did summary judgment Bosley, Schatz & Bolinger, F. Georgianne not do so. Indiana, Marion, Attorneys Bolinger, Affirmed. Appellee. RILEY, BAKER, J., concur. OPINION
SULLIVAN, Judge T. David Respondent-Appellant, Sholes (David), the trial court’s denial appeals judgment motion to set aside Petitioner-Ap- by action filed (Christine). pellee K. Christine reverse. SHOLES, Appellant- T. David is whether the dispositive issue Respondent, both David’s motion erred in court SHOLES, Appellee- K. Christine T.R. motion for continuance Petitioner. hearing. 1998, 10, February Christine filed On to David. petition marriage to dissolve her Appeals of
Court of Indiana. that service of The record discloses petition summons David was 14, mail, and by certified complished receipt was filed with court return 17,1998. the trial court held April On David, who hearing petition. final on the life serving was then and is now sentence in the Indiana parole without chance of Michigan City, State Prison attorney. appear person or issued April dissolving final mar- decree and order property. riage dividing marital subsequently prae- filed a belated 1999), set cipe (February a motion to 1999) (April judgment aside 1999). (May correct error for relief The trial court the motion set “60(B) (hereinafter, from decree motion”) April hearing recorded, held hearing, was not on that date. Prior to motion, requesting David filed motion transport from Indiana, Sholes, prison Both motions were Michigan City, T. hearing, Appellant denied. On Pro Se. Default Dissolution Decree.” for Relief from 1. David denominated this “Motion *2 a motion for a continuance of the not appointment, such was intro- denied, 7, 2000, This as duced. On the bill to passed motion. correct the Senate 42-8. It was then re- pertaining error to the trial court’s denial ferred to the of Representatives House of the other motions was also denied. to but received no committee quite further attention. A similar bill was Although Request in his Verified for introduced in the Representa- House of Counsel, Appointment Pauper 11, 2000, January tives on Bill as House (now specifically not cite I.C. 34-1-1-3 However, 1348. following referral to com- 2) (Burns 1.C. 34-10-1-1 and Code Ed. mittee, it too received no further attention. Repl.1998) authority for his to addition, Bill, another Senate No. appointment it is clear which would have eliminated the under indigency that oath he claimed county provide to counsel for appointment sought right. of counsel as his actions, indigents in civil was introduced clearly governed by matter January on and on that date was aby recent decision of another assigned to committee but died panel of this court in Holmes v. Jones body. (1999) Ind.App., 719 843. It is quite therefore clear our legis- Holmes, expressed the court its concerns lature consciously has to decided retain in implications with the statute which place obligation upon appoint courts to “places no on boundaries or limits the type indigent counsel for civil litigants in all or number of for which lawsuits situations. It our prerogative not can demand litigants court-appointed coun- look unambiguous policy behind that deci- Nevertheless, sel.” 719 N.E.2d sion, a decision made not once but three the court appropriately held that the clear separate times during legislative ses- and unambiguous language of the statuto- sion.2 ry provisions was no doubt intended clearly have meaning, that absent a forth, For the reasons set the decision otherwise, purpose provide manifested required of us is clear and unmistakable. given must be effect therefore We reverse and remand with court. instructions proceedings vacate all which were conducted stronger even pres- reason than was Appointment Sholes’ Verified Request Holmes, ent in we are constrained to hon- Pauper Counsel, appoint or the mandate of the giving proceed- counsel for Sholes and further court-appointed in all civil ings opinion. not inconsistent with Following actions. the Holmes Regular the Second Session the 111th J., VAIDIK, concurs. Indiana Assembly General convened and only opportunity HOFFMAN, had address the Sr. with opin- dissents separate matter but in three bills did so. ion. January Bill Senate HOFFMAN, Judge, dissenting Senior gave
which the courts discretion under exceptional circumstances to appoint coun- Under the circumstances of this sel indigents civil matters but did believe that trial court was within its readily acknowledge leg- may, the recent as it three bills referenced here- islative session was the biennial short session budgetary in would seem to have substantial during placed primarily focus is impact all counties within state and matters, upon budgetary and in which there is the nature of the would not session seem great competition legislative for time and re- legislative dilute the fact that lack given sources to be to more bills can policy tion was a conscious decision. reasonably' fully fairly considered. Be Instead, appeal. statutory appointment both the
discretion constitutional continu- David asserts the motion for us issue that is before counsel. This respectfully dissent. ance. appeal. for the qualify In order to *3 presumption against appoint is There statute, pursuant pauper of counsel litigant’s physi the ment of counsel where indigent. he person must show stake, therefore, as liberty at cal is not and It is within and 34-10-1-1 Ind.Code rule, litigant has a an determine the court’s discretion to trial appointed counsel process due pauper person requesting whether the when, loses, may deprived if he he “only requisite showing. has made the counsel liberty.” E.P. v. Marion physical of his (Ind. Johnson, 111 415 In N.E.2d re Children, County Family and 653 Office of Ct.App.1981). 1026, 1031(Ind.Ct.App.1995). This Here, David wait- the discloses that record however, overcome, presumption may be 60(B) day hearing to file ed until the of the process of so where other elements due counsel. was request pauper his determining whether an indi In require. alleged indigency of both his aware may court-ap gent litigant be entitled court-appointed counsel well be- need of (1) pointed courts must evaluate he his the time that fore (2) stake, gov at the private interests circumstances, the tri- motion. Under the interest, risk that ernment’s in deter- al court was within its discretion an procedures will lead to errone timely that David did not meet mining Id. The then balance ous decision. courts showing indigent. he of burden other and against these elements each in this case also discloses The record against presumption. them Id. weigh day waited until that David in private property The interests disso- to file his motion for contin eases, important, certainly lution while are of motion grant or denial uance. parental rights than the less substantial in the sound discretion a continuance rests (hold- in at 1031-32 E.P. See id. discussed court, trial and it will be reversed of the rights that such do not override ing only for an abuse of that discretion. ap- presumption that there no (Ind. Hoehn, v. 716 N.E.2d Hoehn pointed litigant’s physi- counsel unless Ct.App.1999). stake). liberty Additionally, cal general proposition, believe that As orderly non-party interest in the State’s trial court does not abuse its discretion significant marriages is a grant it continuance when refuses property rights. to those counter-balance of the More E.P., filed on the acknowledge Finally, as stated in specifically, I observe that David states as any the benefit litigating case without part his “Verification Affidavit of may the risk of an of counsel increase “wholly indigent he is Indigency” that at 1032. erroneous decision. Id. Howev- hiring private attorney.” incapable of er, proper- balancing private David’s (R. 77). light this verified statement interests, counter-balancing ty State’s court, it an abuse of interests, risk an and the increased deny the continuance as the discretion to weighing them erroneous grant thereof would not transform David’s presumption that there is against ability private to hire incapability into the liti- appointed counsel unless stake, counsel. liberty is at I conclude that gant’s process appoint- does not due Furthermore, did not case. this ment appoint pauper counsel un- fact, majority raises sponte Because the sua der 34-1-10-1 and 2. application of Ind.Code 34-1-10-2 propriety he raise the such the does not appropriate point it is out the deficiencies of the statute. through WARRICK COUNTY and finding indigency, states Board of Commissioners W. assign ... an attorney trial court “shall Rector, Larry Pike, Ap Barr and Jack or prosecute (Empha- defend the cause.” pellant-Plaintiff, supplied). sis The statute also states that attorney prosecute “required, to or de- fend action do [his her] WASTE MANAGEMENT EVANS OF any taking the case without fee or reward VILLE, Management Waste of Evans person.” (Emphasis from the indigent ville, Inc., Corporation, a Delaware supplied). The statute the trial *4 Bryce Behrman, Appellees-Defen court no discretion to refuse to make such dants. the use assignment, word “assign” “request” rather some term, non-binding other attorney assigned cause no dis- of Appeals Court of Indiana. assignment cretion to or no refuse
possibility being paid by is, course, possibility client. There
of compensation for such services from Jones,
public sources. See Holmes v. (Ind.Ct.App.1999)
N.E.2d 843
In requiring such service without com-
pensation, I believe the statute runs afoul Constitution, specifically
of the Indiana Ar-
ticle providing person’s that “[n]o demanded, just
service shall be without
compensation,” provid- and Article
ing that “[t]here be neither slavery servitude, involuntary
nor within the ” I State.... am aware that there is case attempts interpret
law that the statute
in a manner not violate does our constitution. e.g., See Board Commis- Pollard, County v.
sioners Howard
Ind.
predecessor containing wording
similar to that 34-10-
1-2). However, I believe that this case plain
law ignores of the lan-
guage used in the plain statute.
language, statute is violation of our
constitution. the majority
erred in sua sponte applying the statute to facts this case.
I would affirm the trial court on this
issue.