Campbell v. Criterion Group, 29S02-9212-CV-1034

• Decision Date: 30 December 1992
• Docket Number: No. 29S02-9212-CV-1034,29S02-9212-CV-1034
• Court: Indiana Supreme Court
• Parties: Rocky CAMPBELL, et al., Appellant (Plaintiff Below), v. CRITERION GROUP, et al., Appellee (Defendant Below).

Page 150

605 N.E.2d 150

Rocky CAMPBELL, et al., Appellant (Plaintiff Below), v. CRITERION GROUP, et al., Appellee (Defendant Below).

No. 29S02-9212-CV-1034.

Supreme Court of Indiana.

Dec. 30, 1992.

Alan K. Mills, Lester H. Cohen, Indianapolis, for appellant.

Dean T. Barnhard, Indianapolis, for appellee.

Legal Services Organization of Indiana, Inc., Norman P. Metzger, Kenneth J. Falk, John Jay Boyce, Indianapolis, amici curiae.

City-County Legal Division, Mary Ann G. Oldham, Andrew P. Wirick, Indianapolis, amici curiae.

SHEPARD, Chief Justice.

We accept transfer in this case to consider important questions about the authority of Indiana courts to permit pauper appeals in civil cases and the method by which such appeals may be brought.

Procedural History and Facts

A number of named and unnamed plaintiffs instituted an action for damages against Criterion Construction, Criterion Group and El Dee Apartments. The original complaint alleged that plaintiffs' personal property had suffered damage by reason of negligence and conversion on the part of some or all of the defendants. A complex of motions, hearings and orders ensued in the Hamilton Circuit Court, the net effect of which continues to be a matter of contention between the parties in a separate appeal.

It suffices to observe that the trial court's orders effected the dismissal of some parties and summary judgment as to others and that among the parties so affected were plaintiff-appellants Rocky Campbell, Jesse Parker, Carolyn Willis, and Marilyn Johnson (collectively, "Campbell"). Campbell, proceeding pro se, timely filed a Praecipe for Record on Appeal along with a Verified Motion to Proceed on Appeal as a Poor Person ("Verified Motion"). The Verified Motion included statements about his indigency and a prayer for relief from all appellate "fees, security, or other costs."

Certain defendants filed an objection to the Verified Motion. Thereafter, the trial court denied the Motion without opinion. Campbell petitioned the Court of Appeals for review of the trial court's denial of his Verified Motion and asked for an order directing that the record of proceedings, including the transcript of evidence, be prepared at public expense. The Court of Appeals granted appellant's petition to proceed on appeal in forma pauperis and also held that an indigent civil appellant is entitled to a record of proceedings prepared without cost to the indigent. Campbell v. Criterion Group (1992), Ind.App., 588 N.E.2d 511.

The Criterion Group's petition for transfer assigns six errors. We consolidate these into two questions: (1) Was Campbell's Verified Motion to Proceed on Appeal as a Poor Person properly denied by the trial court? and, (2) If allowed to proceed in forma pauperis, is Campbell entitled to have the record of proceeding, or a portion thereof, prepared at public expense?

I. Denial of Campbell's Motion to Proceed as a Poor Person

Criterion Group and its co-defendants argue that there exists in Indiana no legal authority vesting in our courts the power to permit the appeal of a civil action in forma pauperis. Campbell disputes this assertion but cites no decision of this Court, statute or rule of procedure which expressly rebuts it. The decision of the Court of Appeals in this case contains an excellent history of the right to appeal and Indiana's accommodation of indigents. 588 N.E.2d at 513-516. We incorporate that history herein. Ind. Appellate Rule 11(B)(3). Because of the importance of the question to indigent litigants and, consequently, to the bench and bar, we treat the issue more fully here.

Our analysis will proceed along three lines: applicable statutes; the common law power of courts; and constitutional and procedural authority.

A. Is There Statutory Authority for Pauper Appeals?

Campbell posits that Ind.Code Ann. Sec. 34-1-1-3 (West 1983) provides authority for civil appeals in forma pauperis. ¹ This section of our code has its origin in a 1495 act of the British Parliament which provided, in part, that every poor person with a cause of action might seek a writ, writs original and writs of subpoena, according to the nature of their cause, "paying nothing ... for the seal ..., nor to any other person for the writing of the same writ or writs." 11 Henry 7, ch. 12. The statute also directed courts to "appoint all other officers requisite and necessary to be had for the speed of the said suit ... which shall do their duties without any reward." Id. This provision was copied early on by pioneer Hoosier legislators eager to establish for our state a respected and humane system of justice. ² Their intention in adopting this statute, they wrote, was to ensure "that impartial justice shall be administered to all citizens as well to the poor as to the rich." ³ Though this early language was occasionally amended, its thrust remained intact until the 1852 recodification and revision of the civil code. 2 Ind.Rev.Stat. 1852, Part II, ch. 1, art. 2 Sec. XV (p. 30). Thereafter, suits in forma pauperis suits were regulated by section XV of the reorganized civil code, which provided:

[A]ny poor person, not having 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 a poor person. The court if satisfied that such person has not sufficient means to prosecute or defend the action, shall admit the applicant to prosecute or defend as a poor person, and shall assign him an attorney to defend or prosecute the cause, and all other officers requisite for the prosecution or defence [sic], who shall do their duty therein without taking any fee or reward therefor from such poor person.

This language is now substantially embodied in section 34-1-1-3. Whether the original British statute, or its many American successors, authorized appeals in forma pauperis has been a matter of much dispute. ⁴ The crux of the debate is whether an error upon which a writ would lie is an "action" as contemplated by the statute. A number of prominent commentators, including Lord Coke, urged upon courts a distinction between writs and actions. And, as nice as it is, it was on this distinction that the federal in forma pauperis statute, which expressly permitted the plaintiff to "prosecute to conclusion" his action, was found not to contemplate pauper appeals. What is meant by "conclusion," the U.S. Supreme Court said, "is the termination of the suit or action in the court where it is commenced." Bradford v. Southern Ry., 195 U.S. 243, 248, 25 S.Ct. 55, 57, 49 L.Ed. 178 (1904). ⁵

In arriving at its decision, the Supreme Court cited approvingly the opinion in Bristol v. United States, 129 F. 87, 88 (7th Cir.1904), where the Seventh Circuit said: "Surely an erroneous ruling by the trial court cannot be held to furnish a 'cause of action,' as that phrase is commonly understood." Likewise, the Supreme Court of New York, commenting on a statute similar to ours, earlier opined that "no book holds the ... words cause of action to be identical with a writ of error or cause of a writ of error." Moore v. Cooley & Blackman, 2 Hill 412, 413 (N.Y.Sup.Ct.1842).

Nonetheless, some states with statutes like ours did allow civil pauper appeals early on. In Philips v. Rudle & Carmicheal, 1 Yerger 121 (Tenn.1826), a Tennessee court rejected the contention that their pauper statute (which the court characterized as co-extensive with 11 Henry 7, ch 12) applied only to plaintiffs suing out writs at the commencement of a suit. Instead, the court said, the act extended to the suing out of writs of error, or obtaining appeals in the nature of writs of error. See also Wilson v. Melcroft Coal Co., 226 Ky. 744, 11 S.W.2d 932 (1928). These opinions appear to be based on what might loosely be termed public policy grounds.

For our part, we observe that at its inception, the statute 11 Henry 7, ch. 12 had application only in the common law courts, Daniell, ante at 35, where a system of writs formed the sole method of review. 2 Pollock and Maitland, History of English Law 664-66 (1968 Reissue) (2d ed.). This system had its origin in the writ of false judgment by which a disappointed litigant could accuse a judge of rendering a corrupt judgment. Id. at 666. ⁶ A debate would then occur in king's court, not between the litigants but between the complainant and the trial court. Id. at 667.

Originally, judges of the king's courts could not themselves be accused of false judgment. Id. at 668. Seeking to bridge this gap, early common law lawyers formulated what came to be known as the writ of error. The key to the writ was its fiction that one might complain against a judgment without directly accusing the royal judge who had rendered it. Id. The object of the proceeding was not the issue between the parties, rather it constituted a trial of the final judgment at law which had been rendered by the court below. 4 C.J.S. Appeal and Error Sec. 12 (1957). Consequently, the suing out of a writ of error was generally held to signal the commencement of a new suit, albeit one which did not constitute an action. Id. at Sec. 11(c).

In Indiana, the legislature has substituted the appeal for the writ of error. Pittsburgh, C.C. & St.L. R.R. v. Hoffman (1928), 200 Ind. 178, 162 N.E. 403. The appeal was unknown to common law courts, City of Indianapolis v. Hawkins (1913), 180 Ind. 382, 103 N.E. 10, but is of Roman origin and was introduced to our jurisprudence through the civil law-based equity, ecclesiastical and admiralty courts. Edson R. Sunderland, Problems of Appellate Procedure, 3 Notre Dame Law. 50, 50 (1927); 4 C.J.S. Appeal and Error Sec. 18a (1957). An appeal is not the commencement of a new suit, like a writ of error, but is a step in the original cause. Id. at Sec. 20b. ⁷ This helps explain why the equity, ecclesiastical and admiralty courts considered the prosecution of a suit in forma pauperis to...