                                                                                 FILED
                                                                             Apr 26 2016, 8:47 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




ATTORNEY FOR APPELLANT                                      APPELLEE, PRO SE
MARION COUNTY ELECTION BOARD                                Gregory Bowes
Benjamin J. Church                                          Indianapolis, Indiana
Indianapolis, Indiana

ATTORNEY FOR APPELLANT MARION
COUNTY BOARD OF VOTER REGISTRATION
Andrew J. Mallon
Indianapolis, Indiana



                                                 IN THE
         COURT OF APPEALS OF INDIANA

Marion County Election Board and                            April 26, 2016
Marion County Board of Voter                                Court of Appeals Case No.
Registration,                                               55A04-1507-PL-820
Appellants-Defendants,                                      Appeal from the Morgan Circuit Court
                                                            The Honorable Matthew G. Hanson,
        v.                                                  Judge
                                                            Trial Court Cause No.
Gregory Bowes, Mark King, Paul                              55C01-1207-PL-1476
Ogden, Zach Mullholland, and
Brian Cooper,
Appellees-Plaintiffs.




Pyle, Judge.




Court of Appeals of Indiana | Opinion 55A04-1507-PL-820 | April 26, 2016                       Page 1 of 14
                                         Statement of the Case
[1]   Appellants/Defendants, the Marion County Board of Voter Registration

      (“MCVR”) and Marion County Election Board (“MCEB”), appeal the trial

      court’s award of attorney fees to Appellee/Plaintiff, Gregory Bowes (“Bowes”),

      an attorney who litigated a claim pro se under the Indiana Access to Public

      Records Act (“APRA”). Bowes also cross-appeals. At trial, the trial court

      concluded that Bowes could not recover attorney fees under APRA for his

      successful APRA claim because he had litigated the claim pro se. Nevertheless,

      the trial court awarded Bowes “expenses of litigation” reflecting an hourly rate

      for the amount of hours he had spent litigating his claim to compensate him for

      his lost opportunities and employment as an attorney.


[2]   On appeal, the MCVR argues that the trial court’s litigation expenses award

      was essentially an improper award of attorney fees and, alternatively, that the

      trial court erred in allowing Bowes to recover litigation expenses for his lost

      opportunities and employment. On cross-appeal, Bowes argues that the trial

      court erred in denying his request for attorney fees and abused its discretion in

      determining the amount of his litigation expenses. Because we conclude that

      Bowes was not entitled to recover attorney fees under APRA as a pro se

      attorney or litigation expenses for missed work and other opportunities for

      employment, we reverse the trial court’s decision. We remand with

      instructions for the trial court to vacate Bowes’ prior award of litigation

      expenses and to enter an award of $975.14 for his remaining court costs and

      litigation expenses.

      Court of Appeals of Indiana | Opinion 55A04-1507-PL-820 | April 26, 2016   Page 2 of 14
[3]   We reverse and remand with instructions.


                                                         Issues
               1. Whether the trial court inappropriately denied Bowes’ request
                  for attorney fees.

               2. Whether the trial court erred in awarding Bowes litigation
                  expenses for his missed work and other opportunities for
                  employment.

                                                          Facts
[4]   Bowes is an attorney in good standing in Indiana. On March 5, 2012, he

      submitted a request to the MCVR asking for access, pursuant to APRA, to

      electronic records containing information on Marion County voters.1 The

      MCVR responded to the request, stating that it could not provide copies of

      voter registrations because the MCEB had not yet adopted a uniform policy on

      the issue as required by the Indiana Code. The MCVR asserted, however, that

      its response did “not constitute a denial of public records access.” (App. 11).

      Instead, it was an “acknowledgment” that there was a condition required by

      statute that had to be fulfilled before the MCVR could respond more fully.

      (App. 11).




      1
       Specifically, he requested, among other information: “the last name, first name, middle initial or name,
      address, voter registration number, township precinct, suffix, telephone number, electronic email address,
      date of birth, registration date, status, gender, and primary election and general election voting history, for
      every currently registered voter in Marion County.” (App. 11).

      Court of Appeals of Indiana | Opinion 55A04-1507-PL-820 | April 26, 2016                             Page 3 of 14
[5]   Subsequently, Bowes requested an opinion on the matter from the Indiana

      Public Access Counselor (“PAC”). The PAC issued an advisory opinion on

      March 30, 2012. In the opinion, the counselor agreed that the MCVR could

      not respond to a public access request until the MCEB adopted a uniform

      policy as required by the Indiana Code. However, the PAC advised the MCEB

      to take action immediately to adopt a policy and emphasized that “the county

      election board may not refuse to adopt a policy as a way to avoid addressing a

      request for a copy of information.” (App. 11).


[6]   After the PAC issued its advisory opinion, Bowes and other plaintiffs filed a

      complaint with the trial court, alleging that the MCVR had violated APRA by

      refusing to produce requested public records.2 The trial court held a bench trial

      on the issue on April 8, 2014 and August 28, 2014, where Bowes represented

      the other plaintiffs and himself pro se. The trial court ruled that the MCVR had

      violated APRA and was required to produce the records the plaintiffs had

      requested. In addition, it held that Bowes was entitled to an award of attorney

      fees as the prevailing party under APRA, and it scheduled a subsequent hearing

      to determine a reasonable amount of fees to award him.


[7]   On June 12, 2015, the trial court held a hearing on the issue of attorney fees. At

      the hearing, Bowes testified that he was beginning his thirty-first year of practice

      and that he charged an hourly fee of $250. In addition, Bowes noted that he



      2
       Although there were multiple plaintiffs to the APRA claim, only Bowes is cross-appealing the issue of
      attorney fees.

      Court of Appeals of Indiana | Opinion 55A04-1507-PL-820 | April 26, 2016                        Page 4 of 14
       had prior experience with APRA. Specifically, he had worked for fourteen

       months advising the Indiana Department of Insurance about public records

       requests. He had also been elected County Assessor for Marion County and

       had been in charge of the agency’s response to public records requests. Finally,

       Bowes noted that he had taken several steps throughout the litigation to

       minimize the time and expense for all of the parties.


[8]    As exhibits, Bowes introduced evidence that one of the defendants’ attorneys,

       who had less experience than he, charged an hourly rate of $215 per hour. He

       also introduced: (1) computer records for his time spent on the action; (2) his

       receipt for the filing fee; and (3) an invoice for two depositions for which he

       paid.


[9]    In their closing arguments, the MCVR and Bowes disputed whether Bowes

       could receive an award of attorney fees, as well as the amount for a reasonable

       fee award. The MCVR argued that Bowes could not receive attorney fees

       under Indiana law as a pro se plaintiff, even though he was an attorney.

       Alternatively, it argued that Bowes’ requested award (his hourly rate multiplied

       by the hours he spent on the case) was too high because he had spent some of

       those hours on the other four plaintiffs to the action or in response to the other

       defendant, the MCEB.


[10]   Bowes countered that the trial court could award attorney fees. As for the

       amount of attorney fees, he noted that, even though his time records related to

       four plaintiffs besides himself, and a defendant other than the MCVR, the other


       Court of Appeals of Indiana | Opinion 55A04-1507-PL-820 | April 26, 2016   Page 5 of 14
       co-plaintiffs were “coat-tailing along with [his] case and it was really [his] case

       that was being litigated.” (Tr. 26). In total, Bowes requested “just short of

       [$]47,000” in attorney fees. (Tr. 27).


[11]   At the conclusion of the hearing, the trial court took the matter under

       advisement. On June 16, 2015, it entered an order denying Bowes’ request for

       attorney fees but awarding him $7,456.74 in “reasonable litigation expenses,”

       plus $975.14 for his undisputed filing fees and deposition costs. (App. 34). It

       denied the attorney fees request because it had reconsidered its prior

       determination that Bowes could recover attorney fees and agreed with the

       MCVR that it could not award attorney fees to a pro se attorney plaintiff under

       Indiana law.


[12]   Nevertheless, the trial court concluded that Bowes should be compensated for

       “missed work, other opportunities for employment[,] and [his] simple ability to

       do whatever he wanted other than fighting a government wrong.” (App. 33).

       Accordingly, the trial court construed Bowes’ hours of missed work as litigation

       expenses, which are recoverable under APRA. The court determined that

       Bowes had spent 35.35 hours of his time on his own behalf—rather than on

       behalf of his co-plaintiffs—in his claim against the MCVR, and it multiplied

       that number of hours by a rate of $211 per hour, which was the hourly amount

       the MCVR had paid its defense attorney. The MCVR now appeals, and Bowes

       cross-appeals.




       Court of Appeals of Indiana | Opinion 55A04-1507-PL-820 | April 26, 2016   Page 6 of 14
                                                     Decision
[13]   On appeal, the MCVR argues that, in essence, the trial court’s award for missed

       work and other opportunities for employment constituted an award of attorney

       fees rather than litigation expenses. It argues that the trial court erred in

       awarding the de facto attorney fees because attorney fees are not recoverable by

       pro se attorney litigants under APRA. Alternatively, the MCVR argues that the

       trial court erred in awarding Bowes litigation expenses for his missed work and

       other opportunities for employment.


[14]   On cross-appeal, Bowes argues that the trial court erred in denying his request

       for attorney fees. He also argues that, if we instead construe the litigation

       expenses as attorney fees, the trial court abused its discretion in awarding him a

       lesser amount of attorney fees than the almost $47,000 he had requested.

       Neither party disputes that Bowes was the prevailing party or that APRA

       governs whether he may receive attorney fees. Because we determine that the

       issue of whether Bowes may recover attorney fees is dispositive to the MCVR’s

       first issue on appeal and Bowes’ first issue on cross-appeal, we will address that

       issue first.


       1. Attorney Fees

[15]   In resolving the MCVR’s issue regarding whether Bowes, as a pro se attorney,

       may recover attorney fees, we first note that the trial court’s decision was based

       on its interpretation of legal precedent and APRA. Appellate courts review

       questions of law under a de novo standard. South Bend Tribune v. South Bend


       Court of Appeals of Indiana | Opinion 55A04-1507-PL-820 | April 26, 2016    Page 7 of 14
       Cmty. School Corp., 740 N.E.2d 937, 938 (Ind. Ct. App. 2000). This means that

       we owe no deference to a trial court’s legal conclusions. Id.


[16]   Indiana follows the “American Rule,” under which each party is ordinarily

       responsible for paying his or her own legal fees in the absence of a fee-shifting

       statutory or contractual provision. H & G Ortho, Inc. v. Neodontics Intern, Inc.,

       823 N.E.2d 734, 737 (Ind. Ct. App. 2005). Here, however, there is a statutory

       provision providing for the payment of attorney fees. APRA states that: “In

       any action under this section, a court shall award reasonable attorney’s fees,

       court costs, and other reasonable expenses of litigation to the prevailing party if

       . . . the plaintiff substantially prevails.” I.C. § 5-14-3-9(i). The MCVR argues

       that this provision does not apply because, even though Bowes was an attorney,

       he was also a pro se plaintiff, and generally pro se plaintiffs may not recover

       attorney fees. See Smith v. Maximum Control Facility, 850 N.E.2d 476, 479 n.6

       (Ind. Ct. App. 2006).


[17]   We agree with MCVR because, despite prevailing on the merits, Bowes is not

       entitled to recover attorney fees as there are none to recover. Even if a pro se

       litigant happens to be a lawyer, no attorney fees are earned unless independent

       counsel is engaged. As the United States Supreme Court recognized in Kay,

       “the word ‘attorney’ assumes an agency relationship,” one that cannot exist

       between an appellant and himself. Kay v. Ehrler, 499 U.S. 432, 435-36 (1991).

       The Kay Court highlighted the point by noting several definitions of the word

       “attorney,” all of which emphasize the agency aspect:



       Court of Appeals of Indiana | Opinion 55A04-1507-PL-820 | April 26, 2016   Page 8 of 14
               The definition of the word “attorney” in Webster’s Dictionary
               reads as follows:

                    “[O]ne who is legally appointed by another to transact
                    business for him; specif: a legal agent qualified to act for
                    suitors and defendants in legal proceedings.” Webster’s
                    New Collegiate Dictionary 73 (1975).

               Other dictionaries, both popular and specialized, also
               emphasize the agency relationship between an attorney and
               his client in their definitions of “attorney.” See, e.g.,
               American Heritage Dictionary 140 (Second College ed. 1982)
               (“A person legally appointed to act for another, esp. an
               attorney at law”); Black’s Law Dictionary 128 (6th ed. 1990)
               (“[A]n agent or substitute, or one who is appointed and
               authorized to act in the place or stead of another. An agent,
               or one acting on behalf of another”); 1 Compact Edition of
               the Oxford English Dictionary 553 (1981 ed.) (“One
               appointed or ordained to act for another; an agent, deputy,
               commissioner”).

       Id. at 435 n.6.

[18]   Moreover, our Indiana Supreme Court adopted additional language from Kay

       verbatim, noting the sound policy behind not awarding attorney fees to pro se

       litigants:

               In the end, we agree with the Court of Appeals that the
               overriding statutory concern is the interest in obtaining
               independent counsel for victims of civil rights violations. We do
               not, however, rely primarily on the desirability of filtering out
               meritless claims. Rather, we think Congress was interested in
               ensuring the effective prosecution of meritorious claims.

               Even a skilled lawyer who represents himself is at a disadvantage
               in contested litigation. Ethical considerations may make it
               inappropriate for him to appear as a witness. He is deprived of

       Court of Appeals of Indiana | Opinion 55A04-1507-PL-820 | April 26, 2016    Page 9 of 14
               the judgment of an independent third party in framing the theory
               of the case, evaluating alternative methods of presenting the
               evidence, cross-examining hostile witnesses, formulating legal
               arguments, and in making sure that reason, rather than emotion,
               dictates the proper tactical response to unforeseen developments
               in the courtroom. The adage that “a lawyer who represents
               himself has a fool for a client” is the product of years of
               experience by seasoned litigators.

               A rule that authorizes awards of counsel fees to pro se litigants—
               even if limited to those who are members of the bar—would
               create a disincentive to employ counsel whenever such a plaintiff
               considered himself competent to litigate on his own behalf. The
               statutory policy of furthering the successful prosecution of
               meritorious claims is better served by a rule that creates an
               incentive to retain counsel in every such case.

       Miller v. West Lafayette Cmty. Sch. Corp., 665 N.E.2d 905, 906-07 (Ind. 1996)

       (quoting Kay, 499 U.S. at 437-38).


[19]   Bowes argues that we should reconsider this language in Kay and Miller because

       an attorney litigant will not necessarily receive better representation by hiring

       independent counsel than by litigating pro se. He also argues that a pro se

       attorney would be in a much better position to evaluate the merits of a potential

       claim, therefore mitigating the Kay Court’s “goal of discouraging frivolous

       litigation.” (Bowes’ Br. 10). We are not persuaded by either of these

       arguments because Bowes has misconstrued the Kay Court’s goal. The Kay

       Court specifically stated that the overriding concern was for litigants to obtain

       “independent counsel,” not “better” counsel. Kay, 499 U.S. at 437. The court

       noted that “[e]ven a skilled lawyer who represents himself is at a disadvantage

       in contested litigation.” Id. As examples, the court noted that it could be
       Court of Appeals of Indiana | Opinion 55A04-1507-PL-820 | April 26, 2016   Page 10 of 14
       unethical for a pro se attorney to appear as a witness and that a pro se attorney

       could not receive the judgment of an independent third party. Id. Neither of

       these examples relates to the skill of the independent counsel. Further, with

       regards to Bowes’ second argument, the Kay Court explicitly stated that it was

       not relying on the “desirability of filtering out meritless claims.” 3 Id.


[20]   Regardless of Kay and Miller, Bowes notes that this court affirmed the award of

       attorney fees to a pro se attorney litigant in Ziobron v. Crawford, 667 N.E.2d 202

       (Ind. Ct. App. 1996), trans. denied. The factual context of Ziobron is dissimilar,

       however, and so it is easily distinguished from this case. In Ziobron, the

       appellant was an attorney who attempted to collect a debt for a client and was

       later sued by the debtor for violating the federal Fair Debt Collection Protection

       Act. Id. at 204-05. After the lawsuit was voluntarily dismissed, Ziobron sued

       for malicious prosecution among other claims, seeking to recover an award of

       attorney fees for defending himself against the allegedly frivolous lawsuit. Id. at

       207. We adopted the majority rule that an attorney representing himself would

       be able to recover an award of attorney fees for the time and trouble of

       defending against a frivolous lawsuit. Id. at 208.


[21]   Although another panel of this Court awarded attorney fees in Ziobron, we first

       disagree with the Ziobron Court’s characterization of Ziobron’s potential



       3
         Bowes also argues that “forcing an attorney litigant to engage another attorney” may violate the Indiana
       Rules of Professional Conduct. (Bowes’ Br. 10). However, that argument is not on point because Kay and
       Miller do not force attorney litigants to hire independent counsel—they merely provide that pro se attorney
       litigants may not recover attorney fees for choosing not to hire independent counsel.

       Court of Appeals of Indiana | Opinion 55A04-1507-PL-820 | April 26, 2016                        Page 11 of 14
       compensation as “attorney’s fees.” See id. at 208. Again, use of the word

       “attorney” indicates an agency relationship between lawyer and client, which

       did not exist in Ziobron. Also, the Ziobron Court noted in Ziobron that the fees

       were not awarded as the result of a fee-shifting statute but instead “represent[ed]

       the damages Ziobron [had] allegedly suffered as the victim of a tort.” Id. Most

       importantly, however, the rationale underlying Kay and Miller did not apply in

       Ziobron. The main reason stated in Kay for denying awards of “attorney’s fees”

       to pro se litigants was to encourage victims of civil-rights violations to obtain

       independent counsel. Ziobron involved no such lofty considerations, as it was

       merely a simple claim of malicious prosecution. There is no statutory policy to

       encourage the successful prosecution of meritorious malicious prosecution

       claims, and there is no obvious and compelling public policy at play. So, while

       it is true that Ziobron dealt with the potential award of “attorney fees” to a pro

       se lawyer-litigant, we do not find that Ziobron applies here. Instead, as in Kay

       and Miller, we conclude that a pro se attorney may not receive an award of

       attorney fees under APRA.


       2. Litigation Expenses

[22]   Next, MCVR argues that the trial court erred in awarding Bowes litigation

       expenses for his missed work and other opportunities for employment. As

       stated above, APRA provides that “[i]n any action under this section, a court

       shall award reasonable attorney’s fees, court costs, and other reasonable expenses of

       litigation to the prevailing party if … the plaintiff substantially prevails.” IND.

       CODE § 5-14-3-9(i) (emphasis added). Based on this provision, the trial court

       Court of Appeals of Indiana | Opinion 55A04-1507-PL-820 | April 26, 2016   Page 12 of 14
       awarded Bowes $147.00 for his filing fee, $828.14 for his deposition costs, and

       $7,456.74 for his “missed work, other opportunities for employment[,] and [his]

       simple ability to do whatever he wanted other than fighting a government

       wrong.” (App. 33). The MCVR does not dispute that Bowes is entitled to his

       award for his filing fee or deposition costs. It contends, however, that Indiana

       law does not recognize missed work, missed opportunities for work, or the

       missed ability to participate in activities other than the litigation to be either

       litigation expenses or costs. Bowes responds that such opportunity costs do

       qualify as recoverable litigation expenses.


[23]   While the parties do not direct us to any Indiana cases directly on point,

       “expense” may be defined as “the amount of money that is needed to pay for or

       buy something [or] something on which money is spent[.]” www.merriam-

       Webster.com/dictionary/expense (last visited, April 7, 2016). There is no dispute

       that Bowes actually spent (or received a bill for) $828.14 for deposition costs,

       which would make that an expense. In contrast, Bowes paid no money when

       he forewent potential business opportunities in order to pursue this litigation.

       Quite simply, such speculative opportunity costs are not “expenses” as the term

       is commonly understood. Bowes cites to no authority to suggest otherwise.

       Accordingly, we reverse that portion of the trial court’s award of litigation

       expenses related to Appellant’s opportunity costs in pursuing this litigation and




       Court of Appeals of Indiana | Opinion 55A04-1507-PL-820 | April 26, 2016    Page 13 of 14
       remand with instructions to award Appellant $975.14 in court costs and

       litigation expenses.4


[24]   Reversed and remanded with instructions.


       Baker, J., and Bradford, J., concur.




       4
         Because we conclude that Bowes may not recover an award for his missed work and other opportunities,
       either as attorney fees or litigation expenses, we need not address whether the trial court’s award for litigation
       expenses was a de facto award of attorney fees or whether the trial court abused its discretion in determining
       the amount of fees to award Bowes.

       Court of Appeals of Indiana | Opinion 55A04-1507-PL-820 | April 26, 2016                            Page 14 of 14
