Campbell v. Criterion Group

• Decision Date: 12 March 1992
• Docket Number: No. 29A02-9103-CV-140,29A02-9103-CV-140
• Citation: 588 N.E.2d 511
• Parties: Rocky CAMPBELL, Jesse Parker, Carolyn Willis, and Marilyn Johnson, Appellants-Petitioners, v. CRITERION GROUP, El Dee Apartments, and Criterion Construction, Appellees-Respondents.
• Court: Indiana Appellate Court

Page 511

588 N.E.2d 511

Rocky CAMPBELL, Jesse Parker, Carolyn Willis, and Marilyn Johnson, Appellants-Petitioners, v. CRITERION GROUP, El Dee Apartments, and Criterion Construction, Appellees-Respondents.

No. 29A02-9103-CV-140.

Court of Appeals of Indiana Second District.

March 12, 1992.

Alan K. Mills, Lester H. Cohen, Barnes & Thornburg, Indianapolis, for appellants-petitioners.

Michael E. Simmons, Randall C. Helmen, Hume, Smith, Geddes & Green, Dean T. Barnard, Klineman, Rose, Wolf & Wallack, Indianapolis, for appellees-respondents.

BAKER, Judge.

ORDER

Today we must decide whether an indigent civil appellant is entitled to a record of proceedings prepared without cost to the indigent. We answer this question affirmatively.

BACKGROUND

This appeal comes to us from the Hamilton Circuit Court. Plaintiffs-appellants Rocky Campbell, Jesse Parker, Carolyn Willis, and Marilyn Johnson (collectively, Campbell) have petitioned this court to review the trial court's denial of their Motion for Leave to Proceed on Appeal In Forma Pauperis and for Preparation of the Record for Appeal at Public Expense.

Campbell's amended complaint alleges that on August 29, 1986, a fire broke out at the El Dee apartments, where he was a resident, and that defendant-appellee Criterion Group, Campbell's landlord, acted negligently with respect to Campbell's undamaged property, resulting in its loss. Record ¹ at 159. Summary judgment was entered against Campbell, who then moved to proceed on appeal in forma pauperis. Although Criterion did not dispute Campbell's status as indigent, the trial court denied Campbell's motion to proceed in forma pauperis. ² From this denial, Campbell appeals. ³

DISCUSSION

"[There] can be no equal justice where the kind of trial a man gets depends on the amount of money he has." So wrote Justice Black in the seminal case of Griffin v. Illinois (1956), 351 U.S. 12, 19, 76 S.Ct. 585, 591, 100 L.Ed. 891, which held that a state must provide trial transcripts prepared at public expense to its indigent criminal appellants when the state provided for an appeal as of right and required the appellant to provide a record to the reviewing court.

Indiana has long subscribed to the spirit and wisdom of this well-known principle. Over a century before Griffin was written, our Indiana supreme court addressed the issue of whether an indigent criminal appellant was entitled to a transcript prepared without cost to the appellant, and, if so, whether the court reporter required to prepare it was unconstitutionally denied just compensation. In ordering the court reporter to prepare a transcript for the indigent appellant, the court stated:

In arriving at our conclusions, we have felt constrained to give a liberal construction to our statutes in favor of the pauper, for we can scarcely conceive of a system of laws so inhuman and cruel that would consign the destitute and friendless to conviction and infamy, without affording full and ample means for investigation. Such a system would, in many cases, make poverty equivalent to crime; for without the means of procuring writs, witnesses and records, the innocent might, and frequently would be convicted; and that part of our constitution which provides that 'justice shall be administered freely, and without purchase, completely and without denial,' would be an empty boast, and worse than mockery to the poor.

Falkenburgh v. Jones (1854), 5 Ind. 296, 299.

The conscientious concern for Indiana's poor prompted Justice DeBruler to remark that "[f]rom the date of its admission to the Union down to this day, Indiana has been a leader in providing indigent persons with free access to her courts and in providing them with fair treatment while in court." Thompson v. Thompson (1972), 259 Ind. 266, 273, 286 N.E.2d 657, 661. In Thompson, our supreme court held that IND.CODE 33-1-9-2, which authorized the exemption of certain court costs for indigent civil litigants, included the cost of publishing a summons. IND.CODE 33-1-9-2 has since been replaced by IND.CODE 33-19-3-2, which reads as follows:

A person entitled to bring a civil action or to petition for the appointment of a guardian under IC 29-3-5 may do so without paying the required fees or other court costs upon filing in court, under oath and in writing, a statement:

(1) declaring that the person is unable to make payments or to give security for them because of the person's indigency;

(2) declaring that the person believes that the person is entitled to the redress sought in the action; and

(3) setting forth briefly the nature of the action.

This statute "intended to exempt a class of persons from paying court costs and other necessary expenses of litigation, which they are unable to pay because of their poverty." Id. at 662.

Falkenburgh and Thompson are but a sampling of the care Indiana has provided its poor citizens in the courtroom. Also illustrative is IND.CODE 34-1-1-3, which provides both civil and criminal indigents ⁴ with cost-free service of attorneys and "other officers":

Any 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 the cause, and shall assign him an attorney to defend or prosecute the cause, and all other officers requisite for the prosecution or defense, who shall do their duty therein without taking any fee or reward therefor from such poor person.

IND.CODE 33-1-4-1 codifies the principles of Falkenburgh and Griffin, and authorizes the preparation of a "longhand manuscript or transcript of the evidence" without cost to the criminal appellant. ⁵ See also IND.CODE 33-1-7-5. Moreover, trial courts have discretion to expend public funds on behalf of indigent litigants for purposes of hiring expert witnesses, investigators, and secretaries, among others. Spranger v. State (1986), Ind., 498 N.E.2d 931, cert. denied, 481 U.S. 1033, 107 S.Ct. 1965, 95 L.Ed.2d 536.

Surprisingly, however, despite the convictions expressed by Judge Hovey in Falkenburgh and by Justice DeBruler in Thompson, no Indiana case or statute has yet been construed to authorize the preparation of the record of proceedings without cost to indigent civil appellants. The time has come.

Our holding is compelled by constitutional and statutory provisions. Article 7, Sec. 6 of the Indiana constitution gives litigants in Indiana courts an absolute right to one appeal in all cases:

Jurisdiction of the Court of Appeals. The Court shall have no original jurisdiction, except that it may be authorized by the rules of the Supreme Court to review directly decisions of administrative agencies. In all other cases, it shall exercise appellate jurisdiction under such terms and conditions as the Supreme Court shall specify by rules which shall, however, provide in all cases an absolute right to one appeal and to the extent provided by rule, review and revision of sentences for defendants in all criminal cases. ⁶

(Emphasis added.) Our supreme court has promulgated an extensive set of rules of appellate procedure to guide those litigants who choose to exercise their absolute right to an appeal. Foremost among these rules is the requirement that the appellant provide the reviewing court with a record of the proceedings. Ind. Appellate Rule 7.2(A); Anderson v. Indiana State Employees' Appeal Comm. (1977), 172 Ind.App. 529, 360 N.E.2d 1040 (duty to supply record sufficient to permit intelligent decision of issues falls upon appellant). The record of the proceedings consists of a copy of the praecipe (and, when used, a copy of the Motion to Correct Error), copies of all papers filed or offered to be filed with the clerk of the trial court during the course of the action, a copy of the order book entries, and the transcript of the evidence and proceedings at trial. Ind.App. Rule 7.2(A).

As every appellant knows, however, the cost of preparing the required record of the proceedings can be exorbitant. Indiana law authorizes court reporters and clerks to prepare these documents and charge various amounts, ⁷ and it is not at all uncommon for the records to be hundreds or thousands of pages long, and to cost hundreds or even thousands of dollars. ⁸ Indeed, the cost of a record can exceed the costs ⁹ of an appeal. In the case of an indigent appellant, then, the expense in preparing a record of the proceedings could and in most instances would be simply prohibitive.

Given the fact our supreme court's rules require records of the proceedings to decide an appeal, the doors to our appellate courtrooms are effectively closed to indigent appellants. Yet Article I, Sec. 12 of our constitution requires Indiana courts to remain open and to administer justice freely and without purchase:

All courts shall be open; and every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay.

The "fundamental constitutional right of access to the courts" demanded by Article I, Sec. 12 is rendered an empty boast by the denial of records of the proceedings prepared on behalf of indigent appellants without cost to them. Engle v. State (1984), Ind., 467 N.E.2d 712, 715 (Article I, Sec. 12 requires prison officials to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with law libraries or adequate assistance from persons trained in the law).

In our opinion, the above constitutional provisions together with IND.CODE 34-1-1-3 entitle indigent civil appellants to records of the proceedings prepared without expense to them. Under IND.CODE 34-1-1-3, the court "shall"...