Petition for Writ of Certiorari — Lawrence T. Newman, Petitioner v. Robert W. York

Supreme Court briefJul 11, 2019

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IN RE SUPERVISED ESTATE OF AL KATZ:

LAWRENCE T. NEWMAN

Petitioner,

v.

ROBERT W. YORK

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF INDIANA

PETITION FOR A WRIT OF CERTIORARI

LAWRENCE T. NEWMAN

Pro Se

4102 66th Street Circle West

Bradenton, FL 34209

(317) 397-5258

July 11, 2019

QUESTIONS PRESENTED

Whether the impositions of appellate

attorney fees twice by the Indiana Court of

Appeals and a third time by the Indiana

Supreme Court without any stated legal or

factual grounds violate the Fourteenth

Amendment's Due Process Clause and other

Constitutional provisions.

Whether the Indiana Supreme Court's

imposition of appellate attorney fees in the

absence of jurisdiction violates the

Fourteenth Amendment's Due Process

Clause and other Constitutional provisions.

RELATED CASES

Indiana Supreme Court

Case No. 49A05-1710-ES-2475

Supervised Estate of Al Katz

Lawrence T. Newman, Appellant,

v.

Robert W. York, Appellee

Date of entry of Order denying transfer:

April 12, 2019

Indiana Supreme Court

Case No. 18A-ES-01721

In re the Estate of Al Katz, Deceased

Lawrence T. Newman, Appellant

v.

Robert W. York, Internal Revenue Service,

and State of Indiana, Appellees

Date of entry of Order denying transfer:

June 18, 2019

ii

TABLE OF CONTENTS

Page(s)

PETITION FOR A WRIT OF CERTIORARI 1

OPINIONS BELOW

1

JURISDICTION

1

CONSTITUTIONAL PROVISIONS

INVOLVED

2

STATEMENT OF THE CASE

3

REASONS FOR GRANTING THE WRIT

11

The impositions of appellate

attorney fees twice by the Indiana Court

of Appeals and a third time by the

Indiana Supreme Court without any stated

legal or factual grounds violate the

Fourteenth Amendment's Due Process

Clause and other Constitutional provisions.

11

The Indiana Supreme Court's

imposition of appellate attorney fees in

the absence of jurisdiction violates the

Fourteenth Amendment's Due Process

Clause and other Constitutional provisions.

26

CONCLUSION

39

INDEX TO APPENDICES

APPENDIX A: Indiana Court of Appeals .... Al

Order dated September 12, 2018

APPENDIX B: Indiana Court of Appeals .... B1

Order dated November 19, 2018

APPENDIX C: Indiana Supreme Court

Order dated April 12, 2019

iv

Cl

TABLE OF AUTHORITIES

Page(s)

U. S. SUPREME COURT CASES

Alyeska Pipeline Service Company v.

Wilderness Society, 421 U.S. 240 (1975)

21

Bank of Columbia v. Okely, 4 Wheat. 122

(1819)

25

Blum v. Stenson, 465 U. S. 886 (1984)

20

Boddie v. Connecticut, 401 U.S. 371 (1971) 24

Caperton v. A. T. Massey Coal Co.,

556 U.S. 868 (2009)

36

Christopher v. Harbury, 536 U.S. 403 (2002) 24

Davis v . Wechsler, 263 U.S. 22 (1923)

23

Flight Attendants v. Zipes, 491 U.S. 754

(1989)

21

Fuentes v. Shevin, 407 U.S. 67 (1972)

22

Giaccio v. State of Pennsylvania,

382 U.S. 399 (1966)

15,16

Goldberg v. Kelly, 397 U.S. 254 (1970)

17

In re Murchison, 349 U.S. 133 (1955)

22

James v. City of Boise, 136 S. Ct. 685 (2016) 22

Joint Anti-Fascist Committee v. McGrath,

341 U.S. 123 (1951)

18,19

Logan v. Zimmerman Brush Co.,

455 U.S. 422 (1982)

23

Marbury v. Madison, 5 U.S. 137 (1803)

15

Marshall v. Jerrico, 446 U.S. 238 (1980)

25

Martin et ux. v. Franklin Capital Corp, et al, 21

546 U.S. 132 (2005)

Mathews v. Eldridge, 424 U.S. 319 (1976)

18,22

Morrissey v. Brewer, 408 U.S. 471 (1972)

18

Nelson v. Colorado, 581 U.S.

137 S. Ct. 1249 (2017)

26

Nitro-Lift, LLC v. Howard, 568 U.S 17

(2012)

22

Timbs v. Indiana, 586 U.S.

139 S. Ct. 682 (2019)

36,37

United States v. Burr, 25 F. Cas. 30

(No. 14,692d) (CC Va. 1807)

20

United States v. Reynolds, 235 U.S. 133

(1914)

vi

22

Washington v. Glucksberg, 521 U.S. 702

(1997)

25

Williams v. Pennsylvania, 136 S. Ct 1899

(2016)

35

Young v. U.S. ex rel. Vuitton, 481 U.S. 787 ... 37

(1987)

STATE COURT CASES

Ballaban v. Bloomington Jewish Cmty., Inc., 12,24

982 N.E.2d 329 (Ind.App. 2013)

Lloyd Johnson v. State of Indiana,

Cause No. 47504-0110-PC-478 (2001)

32,33

MacLafferty v. MacLafferty, 829 N.E.2d 93 20

(Ind. 2005)

Orr v. Turco Mfg. Co., Inc., 512 N.E.2d 151 12,24

(Ind. 1987)

State v. Pollitt, 220 Ind. 593, 45 N.E.2d 480 28

(1942)

Warren v. Indiana Telephone Co.,

217 Ind. 93, 26 N.E.2d 399 (Ind. 1940)

28,29,30

Wright v. Mount Auburn Daycare/Preschool, 20

831 N.E. 2d 158 (Ind.Ct.App. 2005)

vii

CONSTITUTIONAL PROVISIONS

U.S. Const. art. 6

15,22

U.S. Const. amend. I

2

U.S. Const. amend. V

2

U.S. Const. amend. VIII

2

U.S. Const. amend. XIV, Section 1

2

Ind. Const. art. 7, § 4

27

STATUTES

Ind. Code § 33-24-1-2

27,28

Ind. Code § 33-24-3-1

28

COURT RULES

Ind. Appellate Rule 4A(2)

30,31

Ind. Appellate Rule 56

32

Ind. Appellate Rule 58

32,38

Ind. Appellate Rule 66E

12

Ind. Trial Rule 53.1E(2)

8

viii

MISCELLANEOUS

Friendly, Indiscretion About Discretion, .... 20,21

31 Emory L. J. 747 (1982)

ix

PETITION FOR A WRIT OF CERTIORARI

Petitioner, Lawrence T. Newman, respectfully

requests that this Court issue a writ of certiorari to

review the judgments of the Indiana Court of Appeals

and of the Indiana Supreme Court imposing appellate

attorney fees against Newman without stating legal

and factual bases for said awards as required by law,

and, in the case of the Indiana Supreme Court,

without jurisdiction to make such award.

OPINIONS BELOW

The order of the Indiana Court of Appeals

imposing appellate attorney fees dated September 12,

2018, is set forth in Appendix A. The order of the

Indiana Court of Appeals denying Newman's Petition

for Rehearing and imposing additional appellate

attorney fees dated November 19, 2018, is set forth in

Appendix B. The order of the Indiana Supreme Court

denying transfer and imposing additional appellate

attorney fees dated April 12, 2019, is set forth in

Appendix C.

JURISDICTION

This cause arises from the award of appellate

attorney fees to attorney Robert York, as Personal

Representative and attorney for the Estate of Al Katz.

The Indiana Court of Appeals imposed said fees on

Newman on September 12, 2018, denied rehearing

and imposed additional fees on Newman on

September 12, 2018, and the Indiana Supreme Court

denied transfer but assessed additional appellate

attorney fees on Newman on April 12, 2019.

1

Accordingly, the jurisdiction of this Court is

invoked under 28 U.S.0 § 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the following Constitutional

provisions, the pertinent portions of which are set

forth below:

Congress shall make no law ... abridging the freedom

of speech, or of the press; or the right of the people

peaceably to assemble, and to petition the

Government for a redress of grievances.

U.S. Const. amend. I.

No person shall ... be deprived of life, liberty, or

property, without due process of law ....

U.S. Const. amend. V.

Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments

inflicted.

U.S. Const. amend. VIII.

.... No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person

of life, liberty, or property, without due process of

law; nor deny to any person within its jurisdiction the

equal protection of the laws.

U.S. Const. amend. XIV, Section 1.

2

STATEMENT OF THE CASE

From 2003-2005, Petitioner Lawrence Newman

("Newman") worked as an associate attorney in the

law office of Robert York ("York") in Indianapolis,

Indiana. Newman was terminated by York in 2005

after York had demanded by ultimatum that Newman

and his wife, Dr. Beverly Newman, agree not to sue

the Indianapolis Jewish Community Center, where

Dr. Newman had witnessed serious child abuse by a

350-pound male counselor lying on top of a child

trapped on the floor against the wall, which Dr.

Newman immediately reported and for which the JCC

systematically retaliated against her and defamed her.

When Newman refused to cover up the child abuse,

York fired him. Several years later, York represented

one of Newman's former clients against Newman in a

fee dispute and thereafter was appointed as the

attorney and Personal Representative for the Estate

of Al Katz, Dr. Newman's father.

In late 2005 or early 2006, the Newmans were

also advised of on-going sexual abuse of Jewish

children close to the JCC, and they attempted to

depose the mother of a convicted serial child predator

in their Jewish community. The deposition subpoena

was quashed by trial court Judge Steve David, fining

Dr. Newman $60,000.00 for appealing his order to

quash, and later becoming Indiana Supreme Court

Justice, serving on the panel of four that issued the

subject Supreme Court Order.

In 2010, Dr. Newman's father, Al Katz, a

domiciliary of Indianapolis, passed away in Florida,

and Dr. Newman opened his Estate in the Marion

3

County, Indiana, Probate Court, which appointed her

as Personal Representative of the Al Katz Estate in

October 2010.

In January 2015, Dr. Newman was removed as

Personal Representative largely due to her disabilities

and the court appointed York as the successor

Personal Representative and Estate attorney and

retained him in said positions despite its knowledge of

York's decade-long and intense conflict of interest

with and hostility against Lawrence and Beverly

Newman. Further, York has been hired for years

upon appointment by the Indiana Supreme Court as a

hearing officer for the Court, a position for which his

compensation by the Supreme Court has been scores

of thousands of dollars.

As Estate Personal Representative, Dr.

Newman had filed four damage lawsuits in Florida

against persons and entities for their wrongdoings

against Al Katz while he was in Florida during the

last year of his life, which lawsuits were credibly

anticipated to provide hundreds of thousands of

awards/settlements

by

in

damage

dollars

insurance/surety bonds to the Estate, which had

otherwise been insolvent since its opening.

On May 11, 2015, York conducted a six-hour

hearing until 9:00 at night personally arranging for

four Florida-licensed opposing counsels in the Estate

damage lawsuits to represent their respective Florida

clients, who/which had caused injuries to Al Katz

while in Florida.

4

At the May 11, 2015, hearing, consistent with

York's express goals to influence the trial court to

blanket-terminate all of the Estate's damage lawsuits,

each of which was covered by bonds or insurance

amounting in Coto to at least many hundreds of

thousands of dollars, each opposing counsel, all of

whom were unlicensed to practice law in Indiana,

provided legal information and/or opinion relative to

Florida law, upon which the court terminated all of

the Estate's damage lawsuits. Prior to and following

the May 11, 2015, hearing, York for months gave and

received legal information and opinions to and from

said four Florida opposing counsels plus numerous

others as well, involving up to ten counsels in various

electronic communications, which actions constituted

unlicensed practice of law in Florida.

During the May 11, 2015, six-hour hearing

concluding at 9:00 PM, York described the Estate's

lawsuits as "spurious lawsuit claims," against the

interests of the Estate he was sworn to represent as

its fiduciary.

After the court ordered York to abandon the

four Florida lawsuits, York, an Indiana-licensed

attorney, never licensed in Florida, engaged in the

unlicensed practice of law in Florida by making four

separate filings in various Florida courts to effect the

dismissal of the Estate's lawsuits and further

committed the unlicensed practice of law by providing

to and receiving from numerous Florida counsels legal

assistance/opinions for many months. Despite his

serial unlicensed practice of law documented to the

trial court, York was never sanctioned by the court.

5

Although York filed a motion to withdraw as

Personal Representative and attorney in July 2015,

the court never acted upon it and permitted York to

continue to serve for over four years hence through

Thereafter York strenuously

the present day.

opposed the Newmans' repeated motions to have York

removed for cause, including his unlicensed practice

of law in Florida and with Florida counsels relative to

the Estate.

In violation of the rules applicable to all

Indiana personal representatives, the court permitted

York to administer the Katz Estate for over four years

without (1) York filing the mandatory annual request

for the Court to extend the time to close the Estate

and (2) without requiring York to file the mandatory

annual Estate interim accounting, even denying

Newman's motion to require an accounting by York,

which accounting has never been filed in well over

four years.

After the initial judge was recused for cause

and the Indiana Supreme Court appointed Judge

Rosenberg as successor judge, from 2013 through

2016, Newman filed hundreds of paid receipts and six

motions for payment of Estate administrative

expenses, totaling $104,441.01, and Newman

repeatedly sought to have the court hear and

determine said motions. Over $50,000.00 of said

administrative expense claims were for Newman to be

reimbursed for amounts he had voluntarily paid outof-pocket to financially support his father-in-law's

Estate, which had opened insolvent with only

approximately $400.00 in total liquid assets. Another

approximately $50,000.00 was claimed by Newman as

6

legal fees during the time he had represented Dr.

Newman as Personal Representative. Dr. Newman

never sought compensation for her years as Personal

Representative.

After Judge Rosenberg last set Newman's first

four expense motions for hearing on May 2, 2014,

Judge Rosenberg adjourned said hearing without

hearing Newman's motions and thereafter refused to

reset said hearing or otherwise hear any of Newman's

expense motions.

On July 13, 2016, Judge Rosenberg and his

supervising judge both recused themselves for cause,

and the Indiana Supreme Court thereupon appointed

Judge James Joven, a legal colleague of Robert York

from the small town of Lawrence, Indiana, as

successor judge on July 20, 2016.

Although Judge Rosenberg had never heard or

determined any of Newman's six administrative

expense claims, Judge Joven erroneously and

repeatedly ruled that the court had previously denied

or dismissed Newman's claims without ever citing to

any actual court order so denying or dismissing

Newman's claims, notwithstanding Newman's

repeated documentation that no such order(s) had

ever been issued at any time by the court and

notwithstanding that Judge Joven himself had

previously listed as unheard and undetermined

Newman's claim for administrative expense attorney

fees.

Upon motion made by Newman, on August 27,

2017, Judge Joven was removed as judge by the Chief

7

Administrative Officer of the Indiana Supreme Court

under Rule 53.1 of the Indiana Rules of Trial

Procedure, effective August 27, 2017, for Judge

Joven's failure to timely rule on a pending motion;

notwithstanding said removal for cause, the Indiana

Supreme Court reappointed Judge Joven as Estate

judge by order dated September 12, 2017, and by said

order retroactively approved of all actions taken by

Judge Joven during the period of his loss of

jurisdiction between August 27, 2017, and September

12, 2017, which jurisdictional action by the Supreme

Court violated Ind. Trial Rule 53.1E(2).

On December 15, 2016, the Newmans filed a

lawsuit against York in the Florida courts relative to

damages caused to them by York's actions in Florida,

including his illegal filings in the Florida courts and

his legal assistance/opinions to opposing Florida

counsels. On March 30, 2017, Judge Joven issued an

Order compelling Newman to prove to Judge Joven

why York did not have absolute judicial immunity

from the Newmans' Florida lawsuit, even though no

motion relative to immunity had been filed before

Judge Joven and the Florida lawsuit was outside of

the Indiana trial court's jurisdiction. Although York,

through his Florida attorneys, had vigorously

defended against Newman's Florida lawsuit in the

Florida court since January 2017, he had never yet

raised the defense of absolute judicial immunity.

Within two weeks of Judge Joven's order, York filed

on April 12, 2017, in Judge Joven's court, York's

"Personal Representative's Application for

Temporary Restraining Order and for Further

Injunctive Relief Regarding Florida Lawsuit," first

raising the defense of absolute judicial immunity, and

8

thereafter, on May 18, 2017, York first raised the

defense of absolute judicial immunity in the Florida

court.

On August 28, 2017, Judge Joven issued an

injunction enjoining the Newmans from further

litigating their Florida lawsuit against York.

Newman, acting pro se, appealed the injunction

in the Indiana Court of Appeals, and filed his Brief of

Appellant in paper form on April 19, 2018, filed his

Corrected Brief in electronic form on May 14, 2018,

correcting specified defects identified by the Clerk

relative to the paper filing, and filed his Second

Corrected Brief on May 23, 2018, correcting new

additional defects identified by the Clerk relative to

the electronic filing.

York thereafter moved in the Court of Appeals

to strike Newman's appellate brief and further moved

to dismiss Newman's Appeal.

On September 12, 2018, the Court of Appeals

issued its order striking Newman's Second Corrected

Brief, dismissing Newman's Appeal with prejudice,

and granting appellate attorney fees to York, omitting

any factual or legal grounds for said striking,

dismissal, or assessment of attorney fees, ruling:

Appellee's request for appellate

attorney's fees is granted. This case is

remanded to the trial court to calculate

the amount of appellate attorney's fees

Appellee is entitled to recover.

9

On September 23, 2018, Newman filed his

"Verified Motion for Reconsideration of Order

Striking Second Corrected Brief of Appellant" in the

Court of Appeals, and on October 12, 2018, Newman

filed his "Verified Petition for Rehearing."

On November 19, 2018, the Court of Appeals

issued its Order: (1) denying Newman's Motion for

Reconsideration; (2) denying Newman's Petition for

Rehearing; and (3) granting additional appellate

attorney fees to York, omitting any factual or legal

grounds for both denials and for the dual impositions

of attorney fees:

Appellee's request for additional

appellate attorney's fees is granted.

This case is remanded to the trial court

to calculate the amount of appellate

attorney's fees Appellee shall recover

for responding to the Verified Motion

for Reconsideration of Order Striking

Second Corrected Brief of Appellant,

the Verified Petition for Rehearing,

and the Verified Motion to Strike

Appellee's Brief in Response to

Petition for Rehearing Due to

Untimeliness.

On December 19, 2018, Newman filed his

Petition To Transfer the Appeal to the Indiana

Supreme Court. On January 23, 2019, York filed a

motion to dismiss Newman's Petition To Transfer.

On April 12, 2019, the Indiana Supreme Court

issued an Order denying Newman's Petition To

10

Transfer jurisdiction, but nonetheless ordering

Newman to pay additional appellate attorney fees

"related to the transfer proceedings":

Being duly advised, the Court DENIES

the "Petition to Transfer of

Appellant." As to "Appellee Robert

York's Verified Motion to Dismiss

Petition to Transfer," the Court

DENIES the motion with the exception

of GRANTING the appellee's request

for attorney's fees .... related to the

transfer proceedings.

REASONS FOR GRANTING THE WRIT

1.

The impositions of appellate attorney

fees twice by the Indiana Court of Appeals and a third

time by the Indiana Supreme Court without any

stated legal or factual grounds violate the Fourteenth

Amendment's Due Process Clause and other

Constitutional provisions.

This case concerns first impression issues of

denials of due process in the imposition of appellate

attorney fees by the Indiana appellate courts. In the

first issue, both the Court of Appeals and the Supreme

Court imposed appellate attorney fees upon Newman

omitting any of the required findings of fact and law to

justify the award of said fees to comply with established

law. In a second novel issue, the Indiana Supreme

Court assessed appellate attorney fees against

Newman, having first denied jurisdiction over the case

by denial of transfer.

11

Accordingly, as the law in Indiana now stands,

appellate courts can impose attorney fees without

jurisdiction and without factual or legal basis, setting a

dangerous precedent of denial of due process rights.

In this case of first impression, due process was

abandoned by the Indiana appellate courts

contravening Indiana law that sets forth exacting

standards for the imposition of appellate attorney fees

against a litigant, which standards were not stated

grounds by the courts to impose such fees against

Newman, thereby denying him due process. In this

respect, Ind. Appellate Rule 66E provides in pertinent

part:

The Court may assess damages if an appeal,

petition, or motion, or response, is frivolous

or in bad faith. Damages shall be in the

Court's discretion and may include attorneys'

fees....

Long-standing caselaw sets forth the strict

standards which the Court of Appeals must follow in

assessing appellate attorney fees. As held in Ballaban v.

Bloomington Jewish Cmty., Inc., 982 N.E.2d 329,339-340

(Ind.App. 2013) (citing Orr v. Turco Mfg. Co., Inc., 512

N.E.2d 151 (Ind. 1987)), (emphasis added):

Our discretion to award attorneys' fees under

Ind. Appellate Rule 66(E) is limited to

instances when "an appeal is permeated with

frivolity,

meritlessness,

bad

faith,

harassment, vexatiousness, or purpose of

delay." In addition, while Ind. Appellate Rule

66(E) provides this court with discretionary

12

authority to award damages on appeal, we

must use extreme restraint when exercising

this power because of the potential chilling

effect upon the exercise of the right to appeal.

A strong showing is required to justify an

award of appellate damages and the sanction

is not imposed to punish mere lack of merit

but something more egregious.

....To prevail on a substantive bad faith

claim, the party must show that "the

appellant's contentions and arguments are

utterly devoid of all plausibility." Procedural

bad faith, on the other hand, occurs when a

party flagrantly disregards the form and

content requirements of the rules of appellate

procedure, omits and misstates relevant facts

appearing in the record, and files briefs

written in a manner calculated to require the

maximum expenditure of time both by the

opposing party and the reviewing court.

In short, to establish substantive bad faith, the

appeal must be permeated with "meritlessness, bad faith,

frivolity, harassment, vexatiousness, or purpose of delay."

To establish procedural bad faith, all three prongs of the

test must be met:

flagrant disregard of form and content rules;

omission and misstatement of material facts;

and

briefs are written in a manner to require

maximum expenditure of time by both the

opposing party and the reviewing court.

13

Critically, courts "must use extreme restraint" and

"a strong showing is required to justify an award of

appellate damages."

In Newman's case, neither the Court of Appeals nor

the Supreme Court justified its award of fees: no strong

showing was established; extreme restraint was not

documented; no finding was made that Newman had

violated all three (or even one) of the procedural bad faith

factors; and no finding was made that Newman had

violated any of the substantive bad faith factors. In short,

regrettably, the documented "flagrant disregard" of laws

and rules was by the Indiana courts themselves,

demonstrating a repetitive pattern of punitive actions

against Newman and an intentional "chilling effect upon

[his] exercise of the right to appeal."

In Newman's Petition To Transfer, he

specifically raised the issue of the appellate court's

refusal to articulate legal grounds for imposing

appellate attorney fees. Not only did the Indiana

Supreme Court decline to hold the Court of Appeals

accountable for its deprivation of Newman's due

process rights, it intensified the pattern of punitive

actions with intentional inescapable "chilling effect

upon [Newman's] exercise of the right to appeal" by

awarding its own appellate attorney fees after denying

jurisdiction over the case, likewise omitting evidentiary

justification, as required by law for imposing such fees.

This deprivation of cornerstone Constitutional rights to

due process and cornerstone jurisdictional law by the

state's highest court compels review by this court of

last resort.

14

The Court of Appeals' two-fold imposition of

appellate attorney fees upon Newman in the absence of

any legal grounds under settled law is a direct assault

upon Newman's due process rights under the

Fourteenth Amendment.

The United States Constitution is applicable to

the courts of the several states, including the state

courts of Indiana:

This Constitution, and the Laws of the

United States which shall be made in

Pursuance thereof; ... shall be the

supreme Law of the Land; and the

Judges in every State shall be bound

thereby, any Thing in the Constitution

or Laws of any State to the Contrary

notwithstanding.

U.S. Const. art. 6.

It is emphatically the province and duty of the

judicial department to say what the law is. Those who

apply the rule to particular cases, must of necessity

expound and interpret that rule. Marbury v. Madison, 5

U.S. 137 (1803).

First, there is no question that the appellate

attorney fees imposed upon Newman serve as a serious

deprivation of his property under the Fourteenth

Amendment. Civil costs imposed by a state court are

considered a deprivation of the property of the assessed

litigant. Giaccio v. State of Pennsylvania, 382 U.S. 399

(1966). "Both liberty and property are specifically

protected by the Fourteenth Amendment against any

15

state deprivation which does not meet the standards of

due process ...." Id.

Certainly one of the basic purposes of the Due

Process Clause has always been to protect a

person against having the Government

impose burdens upon him except in

accordance with the valid laws of the land.

Implicit in this constitutional safeguard is the

premise that the law must be one that carries

an understandable meaning with legal

standards that courts must enforce. Id.

In the instant case, the appellate courts found no

"necessity [to] expound and interpret" legal grounds for

their punitive excessive burdens imposed upon Newman.

Although Indiana law requires exacting standards

for imposing appellate attorney fees, neither the Court of

Appeals nor the Supreme Court referenced any standards,

nor did they indicate that they had considered, applied,

and followed such standards in imposing said fees.

Further, even if said courts had applied such

standards, their failure to articulate the standards and to

specify under which standard they found Newman to be

liable made it impossible for Newman to address said basis

in further appellate ligation, as in Newman's Petition for

Rehearing and his Petition To Transfer, as so asserted by

Newman in each of said filings, thus further depriving

Newman of his due process rights:

Further, the complete absence of such stated

grounds by the Court of Appeals for imposing

"punitive appellate attorney fees" violates

16

Newman's due process rights, as the total

absence of stated factual and legal grounds

for imposing appellate attorney fees severely

impedes Newman's ability to further appeal

the Court of Appeals decision on the merits

because Newman cannot know any factual

and legal grounds upon which the Court of

Appeals acted and consequently he cannot

articulate to higher courts errors in the

decision by the Court of Appeals.

In Goldberg v. Kelly, 397 U.S. 254 (1970), this Court

considered the issue of due process in the context of a predeprivation hearing for welfare recipients, ruling in

pertinent part:

... the decisionmaker's conclusion as to a

recipient's eligibility must rest solely on the

legal rules and evidence adduced at the

hearing .... To demonstrate compliance with

this elementary requirement, the decision

maker should state the reasons for his

determination and indicate the evidence he

relied on. Id., at 271.

Thus, it was not sufficient for the Indiana appellate

courts to have simply followed the proper "legal rules";

they were required to "state the reasons for [their]

determination[s] and indicate the evidence [they] relied

on." Having failed to do so, both the Court of Appeals and

the Supreme Court omitted "procedural protections" of

Newman's due process rights, denied said rights, and sent

a "chilling," unprecedented message to Indiana's citizens to

forego their rights to appeal in fear of unbearable financial

hardships incurred thereby. In other words, middle class

17

and lower class citizens, unable to bear large financial loss,

cannot consider seeking appeals in the Indiana court

system without trepidation and overpowering intimidation

emanating from the very judicial bodies funded by the

taxpayers to protect the rights of the taxpayers.

Procedural due process imposes constraints

on governmental decisions which deprive

individuals of "liberty" or "property" interests

within the meaning of the Due Process

Clause of the Fifth or Fourteenth

Amendment. Mathews v. Eldridge, 424 U.S.

319 (1976).

Due process rules are shaped by the risk of

error inherent in the truth-finding process as

applied to the generality of cases. Id., at 344.

Due process is flexible and calls for such

procedural protections as the particular

situation demands. Morrissey v. Brewer, 408

U.S. 471,481 (1972).

By refusing to articulate their reasons for imposing

attorney fees, the Indiana appellate courts critically

deprived Newman of any realistic opportunity to challenge

their assessment of fees on the basis that said assessments

were not supported by either facts or law; since the courts

failed to give Newman any notice of the case against him:

The essence of due process is the requirement

that "a person in jeopardy of serious loss [be

given] notice of the case against him and

opportunity to meet it." Joint Anti-Fascist

18

Committee v. McGrath, 341 U.S. 123,171

(1951) (Frankfurter, J., concurring).

The Indiana appellate courts' three separate

refusals to state legal and factual grounds for imposing

fees were exactly the type of "secret, one-sided

determination of facts" decried by this Court nearly 70

years ago as denying the fairness required to provide due

process to a litigant:

[F]airness can rarely be obtained by secret,

one-sided determination of facts decisive of

rights.

Joint Anti-Fascist Committee v.

McGrath, 341 U.S. 123,170 (1951).

Unquestionably, the three separate "secret"

impositions of appellate fees placed Newman "in jeopardy

of serious loss [of property without] notice of the case

against him and opportunity to meet it."

Secrecy is the foundation for this probate case in

which York's management of Estate assets for well over

four years has been kept secret by the trial court's Order

against annual accountings by York; the purported orders

denying Newman's administrative expense motions have

never been identified by York or the trial court; transcripts

and recordings of purported hearings do not exist; and

York's unlicensed practice of law in Florida has been

secreted and concealed from the public and authorities.

Necessary due process protections demanded that

the Indiana appellate courts specify in their written

determinations both the particular procedures they used as

well as their specific findings of facts in imposing appellate

attorney fees. The courts' written determinations, bereft

19

of such procedures and findings, compel the logic that the

mandated legal procedures were not used and that the

necessary factual grounds for findings were not found to

exist. This is especially so since, given the opportunity via

Newman's Petition for Rehearing and his Petition To

Transfer, the respective courts nonetheless still declined to

justify the legal sufficiency of their respective

determinations in their subsequent Orders.

The proper standard of review of an attorney fee

award is abuse of discretion. Blum v. Stenson, 465 U. S.

886,896 (1984). Under applicable Indiana precedents, a

court abuses its discretion when its decision is clearly

against the logic and effect of the facts and circumstances

before it. Wright v. Mount Auburn Daycare/Preschool, 831

N.E. 2d 158,162 (Ind.Ct.App. 2005), trans. denied. An

abuse of discretion also occurs if the trial court

misinterprets or misapplies the law. Id. Further, a ruling

based on an error of law is reversible, and a court has no

discretion to reach the wrong result. MacLafferty v.

MacLafferty, 829 N.Ed. 2d 938,941 (Ind. 2005).

This Court has considered the issue of the

appropriate limits of a court's discretion, emphasizing the

necessity for a court to base any discretionary decision

upon sound legal principles and legal standards. "A

motion to [a court's] discretion is a motion, not to its

inclination, but to its judgment; and its judgment is to be

guided by sound legal principles." United States v. Burr,

25 F. Cas. 30, 35 (No. 14,692d) (CC Va. 1807) (Marshall

D.J.). Discretion is not whim, and limiting discretion

according to legal standards helps promote the basic

principle of justice that like cases should be decided alike.

See Friendly, Indiscretion About Discretion, 31 Emory L.

20

J. 747,758 (1982), Martin et 11X. v. Franklin Capital Corp,

et al, 546 U.S. 132 (2005).

In Flight Attendants v. Zipes, 491 U.S. 754,758

(1989), this Court correctly noted that "in a system of laws

discretion is rarely without limits."

This Court has long recognized the absolute need

for articulated standards for the imposition of an attorney

fee award, decrying the use of unrestrained and unchecked

discretion in imposing such fees, as in the "private attorney

general" rubric.

Finally, the Court suggests that the

policy questions bearing on whether to

grant attorneys' fees in a particular

case are not ones that the judiciary is

well equipped to handle, and that fee

shifting under the private-attorneygeneral rationale would quickly

degenerate into an arbitrary and

Alyeska Pipeline

lawless process.

Service Company v. Wilderness

Society, 421 U.S. 240,273 (1975),

J. Marshall, dissenting.

It is unthinkable that, under the rulings of this case,

"that like cases [in Indiana] should be decided alike,"

without legal grounds and without jurisdiction, and even

more unthinkable that such a legal precedent could spread

its destructive effects to judicial systems beyond the

borders of Indiana throughout the United States.

The Indiana appellate courts' dispensing of all

identified and acknowledged limits on their discretion is in

21

direct contravention to this Court's primacy in

determining the Constitutional dimensions of due process,

This Court, "by force of the

as discussed above.

Constitution" is "the ultimate arbiter" of constitutional

and federal law. United States v. Reynolds, 235 U.S.

133,148 (1914); see also U.S. Const. Art. VI, Cl. 2. State

courts are "bound by this Court's interpretation of federal

law." James v. City of Boise, 136 S. Ct. 685,686 (2016) (per

curiam); see also Nitro-Lift, LLC v. Howard, 568 U.S.

17,21 (2012), "It is this Court's responsibility to say what a

statute means, and once the Court has spoken, it is the

duty of other courts to respect that understanding of the

governing rule of law."

Indeed, this Court should speak in this case about

impositions of attorney fees that "quickly degenerate[d]

into an arbitrary and lawless process," and it is the duty of

the Indiana "courts to respect that understanding of the

governing rule of law" that prohibits secret rulings placing

those seeking to redress grievances "in jeopardy of serious

loss [of property without] notice of the case against [them]

and opportunity to meet it."

Indeed, the failures of the Indiana Court of Appeals

and of the Indiana Supreme Court to afford Newman the

most rudimentary aspects of due process are direct

affronts to the basic characteristics of due process long

established by this Court. "Due process guarantees a "fair

hearing in a fair tribunal." In re Murchison, 349 U.S.

133,136 (1955). It is fundamental that the right to notice

and an opportunity to be heard "must be granted at a

meaningful time and in a meaningful manner." Fuentes v.

Shevin, 407 U.S. 67, 80 (1972). Due Process requires "the

opportunity to be heard at a meaningful time and in a

meaningful manner." Mathews v. Eldridge, 424 U.S.

22

319,333 (1976). The "Due Process Clause grants the

aggrieved party the opportunity to present his case and

have its merits fairly judged". Logan v. Zimmerman. Brush

Co., 455 U.S. 422, 433 (1982).

In the present case, Newman was denied the

opportunity to have his case regarding the imposition of

appellate attorney fees heard "in a meaningful manner"

and to "have its merits fairly judged," because the Indiana

appellate courts acted in complete secrecy in their

imposition of said fees upon Newman. Notwithstanding

the lack of any record before the Supreme Court justifying

the Court of Appeals' imposition of fees in accordance with

established law, the Supreme Court effectively approved

and sanctioned the Court of Appeals' abandonment of due

process principles, and then further intensified Indiana's

deprivations of Newman's Constitutional rights by

punitively imposing its own fees upon Newman without

jurisdiction over the case and without stating bases

therefore and thus without its own consideration of due

process requirements.

This Court has long ruled against local practices

which seek to defeat superior federal rights, such as the

federal Constitutional right to due process in all court

proceedings, which the Indiana appellate courts have

sought to override. "Whatever springes the State may set

for those who are endeavoring to assert rights that the

State confers, the assertion of Federal rights, when plainly

and reasonably made, is not to be defeated under the name

of local practice." Davis v. Wechsler, 263 U.S. 22, 24

(1923).

Due process rights are considered as so fundamental

that they are guaranteed in multiple clauses in the United

23

States Constitution. See Christopher v. Harbor); 536 U.S.

403,415 n.12 (2002) (holding the right to be "grounded in

the Article IV Privileges and Immunities Clause, the First

Amendment Petition Clause, the First Amendment

Petition Clause, the Fifth Amendment Due Process Clause,

and the Fourteenth Amendment Equal Protection and Due

Process Clauses."). See also id. at 415 (access to the courts

is a "fundamental right" that is a "separate and distinct

right to seek judicial relief for some wrong.").

Due process has been interpreted by this Court as

preventing the states from denying litigants use of

established adjudicatory procedures, when such an action

would be "the equivalent of denying them an opportunity

to be heard upon their claimed right[s]." Boddie v.

Connecticut, 401 U.S. 371,380 (1971). In the instant case,

the refusal of the Indiana appellate courts to document in

their respective subject Orders the legal and factual

grounds for their imposition of appellate attorney fees,

which documentation is an "established adjudicatory

procedure" under the strictures of Orr v. Turco Mfg. Co.,

Inc., 512 N.E.2d 151 (Ind. 1987) and Ballaban v.

Bloomington Jewish Cmty., Inc., 982 N.E.2d 329,339-340

(Ind.App. 2013), as cited above, violates Newman's due

process rights as denying him the right to be heard upon

his claimed right to protect his property from wrongful

state deprivation actions.

The Due Process Clause is particularly implicated in

this case as Newman seeks to protect his property from

unwarranted seizure by the Indiana courts, who have

acted to wrongfully deprive Newman of his property by

coercive court action of imposing appellate attorney fees

without affording Newman his fundamental due process

protections. "[T]he Due Process Clauses protect civil

24

litigants who seek recourse in the courts, either as

defendants hoping to protect their property or as plaintiffs

attempting to redress grievances." Logan v. Zimmerman

Brush Co., 455 U.S. 422,429 (1982).

The concepts of justice for the individual and

restraint of government inherent in the Due Process

Clause date back to the English Magna Carta, as described

in Bank of Columbia v. Okely, 4 Wheat. 122. 126 (1819),

"As to the words from Magna Charta . . . after volumes

spoken and written with a view to their exposition, the

good sense of mankind has at length settled down to this:

that they were intended to secure the individual from the

arbitrary exercise of the powers of government,

unrestrained by the established principles of private rights

and distributive justice.". In this respect, due process

rights are the type of "fundamental rights" that are both

"deeply rooted in this Nation's history and tradition" and

"implicit in the concept of ordered liberty." Washington v.

Glucksberg, 521 U.S. 702,720-21 (1997).

Indiana's requirements that appellate attorney fees

may be assessed only upon specific findings as set forth in

law is meant to assure judicial impartiality, which

impartiality is a basic norm in this country's legal order.

"The neutrality requirement helps to guarantee that life,

liberty, or property will not be taken on the basis of an

erroneous or distorted conception of the facts or the

law...." Marshall v. Jerrico, 446 U.S. 238,242 (1980).

In this case, justice for the individual and restraint

of government cannot be found amidst the "arbitrary and

lawless process" of secret punitive legal decision-making

by appellate courts, establishing dangerous precedent by

which "like cases should be decided alike."

25

Finally, irrespective of the Indiana baseline

requirements which must be met before imposing punitive

appellate attorney fees, the Due Process Clause in and of

itself can be viewed as requiring a baseline procedure for

protecting citizens' Constitutional rights, as discussed by

Justice Thomas in his dissent in the recent case of Nelson

v. Colorado (2017).

The Indiana appellate courts'

collective failure and refusal to state any factual or legal

basis for their imposition of fees, thereby acting in total

secrecy and without any baseline procedures, is an affront

to the Due Process Clause:

[T]he Due Process Clause may have originally

been understood to require only "that our

Government . . . proceed according to the 'law

of the land'—that is, according to written

constitutional and statutory provisions"—

before depriving someone of life, liberty, or

property .... I assume that the Due Process

Clause requires some baseline procedures

regardless of the provisions of [state] law.

Nelson v. Colorado, 581 U.S.

, 137 S. Ct.

1249, 197 L. Ed.2d 611 (2017) (J. Thomas,

dissenting).

2.

The Indiana Supreme Court's imposition of

appellate attorney fees in the absence of jurisdiction

violates the Fourteenth Amendment's Due Process Clause

and other Constitutional provisions.

In its Order denying transfer, the Indiana Supreme

Court assessed additional appellate attorney fees against

Newman. Because the Indiana Supreme Court did not

accept transfer, it lacked jurisdiction to issue an order

26

imposing fees upon Newman. The imposition of attorney

fees against Newman by the Indiana Supreme Court in the

absence of jurisdiction deprived Newman of his

Constitutional due process rights.

The jurisdiction of the Indiana Supreme Court is

established in Article 7, Section 4 of the Indiana

Constitution, which provides in pertinent part:

The Supreme Court shall have no

original jurisdiction except in

admission to the practice of law;

discipline or disbarment of those

admitted; the unauthorized practice of

law; discipline, removal and retirement

of justices and judges; supervision of

the exercise of jurisdiction by the other

courts of the State; and issuance of

writs necessary or appropriate in aid of

its jurisdiction. The Supreme Court

shall exercise appellate jurisdiction

under such terms and conditions as

specified by rules ....

Indiana statute further defines the limits of the

Supreme Court's jurisdiction, setting forth in Ind. Code

§ 33-24-1-2 in pertinent part as follows:

The supreme court has jurisdiction in

appeals coextensive with the state and has

jurisdiction as provided by the Constitution

of the State of Indiana.

The supreme court has exclusive jurisdiction

to:

27

admit attorneys to practice law in all

courts of the state; and

issue restraining orders and injunctions in

all cases involving the unauthorized practice

of the law;

under rules and regulations as the supreme court

may prescribe.

Indiana statute further sets forth the powers of the

Indiana Supreme Court to adopt its own rules specifying

the limits of its jurisdiction. Indiana Code § 33-24-3-1

provides in pertinent part:

The supreme court shall adopt and publish

rules in conformity with IC 33-24-1-2(b)

specifying the terms and conditions under

which the supreme court and the court of

appeals exercise jurisdiction.

The Indiana Supreme Court has recognized in its

own decisions that the Legislature, in creating courts

pursuant to its Constitutional authority, can, and

necessarily must, in that process define the scope of their

powers and authorities, including, of necessity, its own

jurisdiction.. State v. Pollitt, 220 Ind. 593, 45 N.E.2d

480,482 (1942).

Nearly 80 years ago, in Warren v. Indiana

Telephone Co., 217 Ind. 93, 26 N.E.2d 399 (Ind. 1940), the

Indiana Supreme Court recognized the Constitutional and

statutory limits of its own jurisdiction, that such limits are

subject to "strict construction," that the issue of its

jurisdiction must be considered "with due appreciation of

its gravity," that "When a court from which there may be

28

no appeal undertakes to speak with regard to its own

powers, it ought to exercise great caution and restraint,"

and that "In the final analysis, this court must be the judge

of its constitutional jurisdiction."

The Constitution of Indiana provides that:...

"The Supreme Court shall have jurisdiction,

co-extensive with the limits of the State, in

appeals and writs of error, under such

regulations and restrictions as may be

prescribed by law. It shall also have such

original jurisdiction as the General Assembly

may confer" (Article 7, § 4); "All courts shall

be open; and every man, 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" (Article 1,

§ 12); .... These provisions of the Constitution

are a part of the fundamental law of the state,

declared by the people themselves acting in

their sovereign capacity. Effingham v. Dye

(1913), 178 Ind. 336, 99 N.E. 1, Ann. Cas.

1915C 200. As such they are entitled to strict

Lafayette, Muncie, and

construction.

Bloomington R.R. Co. and Another v. Geiger

(1870), 34 Ind. 185. It has been said that the

language of each provision of the Constitution

is to be considered as though every word had

been hammered into place. State ex rel.

Hovey v. Noble (1888), 118 Ind. 350, 353, 21

N.E. 244.

29

This requires us to reconsider a great many

things that have been said by this court

respecting its own jurisdiction. We approach

the subject with due appreciation of its

gravity. When a court from which there may

be no appeal undertakes to speak with regard

to its own powers, it ought to exercise great

caution and restraint....

Uniformity in the interpretation and

application of the law is the keystone of our

system of jurisprudence....

In the final analysis, this court must be the

judge of its constitutional jurisdiction.

Id., 217 Ind. 93 at 107-112, 26 N.E.2d

399 (Ind. 1940).

In the instant case, Newman, "for injury done to

him in his .... property" has had no "remedy by due

course of law"; certain "provision[s] of the Constitution

[are] ... as though ... [only some words] had been

hammered into place"; and there is not "uniformity in

the ... application of the law .... [as] the keystone of our

system of jurisprudence."

Indeed, pursuant to its Constitutional and

statutory powers as enumerated above, the Indiana

Supreme Court has, by Rule, limited its jurisdiction

with respect to cases over which it has discretionary

review to only those cases to which it has granted

transfer. Pursuant to Rule 4A(2) of the Indiana Rules

of Appellate Procedure (emphasis added):

The Supreme Court shall have

discretionary jurisdiction over cases in

30

which it grants Transfer under Rule 56

or 57 or Review under Rule 63.

Thus, since the Indiana Supreme Court "shall

have discretionary jurisdiction over cases in which it

grants Transfer," it follows that the Indiana Supreme

Court has no jurisdiction over cases for which it denies

transfer, such as Newman's subject Appeal.

The Indiana Supreme Court itself

drafts/approves its own rules pursuant to its

Constitutional authority, and thus creates the rules to

which it must comply. The Indiana Supreme Court's

authority to draft rules applicable to itself in the

Indiana Rules of Appellate Procedure is documented in

its preamble to amendments of the Indiana Rules of

Appellate Procedure, in which it states in standard

form:

Under the authority vested in this

Court to provide by rule for the

procedure employed in all courts of this

state and this Court's inherent

authority

supervise

the

to

administration of all courts of this

state, the Indiana Rules of Appellate

Procedure are amended as follows ....

Since the Indiana Supreme Court drafts its own

rules of jurisdiction pursuant to its Constitutional

authority, violation of said rules is tantamount to a

violation of its Constitutional authority.

The applicable Indiana Rules of Appellate Procedure

regarding transfer of appellate jurisdiction from the

31

Indiana Court of Appeals to the Indiana Supreme Court

are as follows (emphasis added):

Rule 56. Requests To Transfer To The

Supreme Court

... Petition After Disposition by the Court of

Appeals; Filing Fee. After an adverse decision

by the Court of Appeals, a party may file a

Petition under Rule 57 requesting that the

case be transferred to the Supreme Court....

Rule 58. Effect Of Supreme Court Ruling On

Petition To Transfer

Effect of Grant of Transfer. The opinion or

memorandum decision of the Court of

Appeals shall be final except where a Petition

To Transfer has been granted by the

Supreme Court....

Upon the grant of transfer, the Supreme

Court shall have jurisdiction over the appeal

and all issues as if originally filed in the

Supreme Court.

Effect of the Denial of Transfer. The denial

of a Petition To Transfer shall have no legal

effect other than to terminate the litigation

between the parties in the Supreme Court.

As an example of the Indiana Supreme Court's

recognition that its assumption of jurisdiction in a case is

fully dependent upon its grant of transfer is its language

upon granting a petition to transfer, as set forth in Lloyd

Johnson v. State of Indiana, Cause No. 47SO4-0110-PC-478

(2001) (emphasis added):

32

We grant transfer of jurisdiction and

pursuant to Appellate Rule 58(A), vacate the

Court of Appeals' opinion and remand the

appeal to the Court of Appeals for further

proceedings consistent with this order.

The Indiana Supreme Court's disregard for a

bedrock Constitutional right of due process was

exacerbated by the fact that it lacked jurisdiction "over

the appeal and all issues" therein, including, inter alia,

imposing appellate attorney fees on Newman for any

reason. Presented with the opportunity to assume

jurisdiction over the Appeal by acceptance of Newman's

Petition To Transfer, the court opted to eschew

assumption of jurisdiction by denying Newman's

Petition, thereby estopping the Supreme Court from

taking any further additional action "over the appeal

and all issues" therein.

The actions of the Indiana Supreme Court in

imposing appellate attorney fees upon Newman after

denying its jurisdiction over his Appeal, by denying his

Petition To Transfer, are the culmination of a yearslong series of decisions in this probate case, now nine

years old, involving the insolvent estate of a Holocaust

Survivor, whose family, the Newmans, reported serious

and serial child abuse to Indiana authorities, including

now-Indiana Supreme Court Justice Steve David, who

fined Lawrence Newman's wife $60,000.00 for

appealing David's order quashing the deposition

subpoena of the mother of a convicted violent serial

sexual predator, who mutilated the doll of a childvictim and then set her dolls on fire. This predator's

family is very influential at the Indianapolis JCC as

well as the family of former Subway spokesman, Jared

33

Fogle, now in federal prison for sexual abuse of boys

and girls around the world.

Robert York, a prolific hockey coach who

competed for years around the world with young

children, fired Newman for refusing to secret

eyewitness accounts of serious child abuse at the JCC,

yet was hired by the Indiana Supreme Court, including

Justice Steve David, as a hearing officer for the

Supreme Court, paid scores of thousands of dollars of

taxpayer funds despite his intimidation of child abuse

reporters and his unlicensed practice of law in Florida,

over which unlicensed practice of law the Indiana

Supreme Court has Constitutional jurisdiction, that it

has never exercised against York.

The glaring omissions of law and logic in the

trial and appellate court actions in this probate case,

setting dangerous precedent, inexorably point to a bias

in the Indiana courts in favor of Robert York against

Newman.

Said biased and punitive actions by the Indiana

courts include, inter alia: (1) appointment of Robert

York and his acceptance in January 2015 as successor

Personal Representative and attorney for the Estate of

Al Katz, notwithstanding his decade-long severe

conflicts of interest and documented history of actions

against and deep conflicts with the Newmans; (2) the

trial court's retention of York despite the Newmans'

immediate notification to the court of York's long-term

history of deep conflicts with the Newmans and

subsequent repeated motions for removal of York for

cause; (3) the trial court's refusal to remove York from

his Estate positions after York had filed a motion to

34

withdraw in July 2015 as Personal Representative and

Estate attorney; (4) the trial court's refusal to require

York to file an annual accounting of his management of

the Estate in 2015, 2016, 2017, 2018, or 2019, in

violation of Indiana statutes and court Rules, which

require such accountings to be filed every year; (5) the

refusal of the trial court, Court of Appeals, and

Supreme Court to take any disciplinary actions against

York for his documented unlicensed practice of law in

Florida in making multiple filings on behalf of the

Indiana Estate in various Florida courts without a

license to practice law in Florida or pro hac vice

admission and for the unlicensed practice of law by

York and four opposing Florida-licensed counsels,

representing their Florida clients, at the May 11, 2015,

hearing at which York and the Florida opposing

counsels provided legal information and opinions

regarding Indiana and Florida law; (6) the repeated

failure and refusal of the Indiana Court of Appeals to

state factual and legal bases for assessing appellate

attorney fees against Newman; (7) the Indiana

Supreme Court's imposition of appellate attorney fees

upon Newman without jurisdiction to do so, as it had

denied transfer of jurisdiction; and (8) the failure and

refusal of the Indiana Supreme Court to state factual

and legal bases for imposing appellate attorney fees

upon Newman in favor of York, a long-time appointee

by said court as attorney disciplinary hearing officer for

the Indiana Supreme Court.

Both the appearance and the reality of impartial

justice are necessary to the public legitimacy of judicial

rulings and therefore to the rule of law itself. Williams

v. Pennsylvania, 136 S. Ct 1899,1910 (2016).

35

In Caperton v. A.T. Massey Coal Co., 556 U.S.

868,876 (2009), this Court stated that due process

requires an objective inquiry into judicial bias, and

where there is an objective risk of actual bias on the

part of the factfinder, it is a due process violation.

This case additionally invokes the protections of

the Eighth Amendment, which prohibits "excessive

fines imposed." The Indiana courts' lack of legal and

factual grounds for imposing appellate attorney fees

upon Newman render such fees "excessive" in any

amount. The 2019 case of Timbs v. Indiana, 586 U.S.

, 139 S. Ct. 682 (2019), incorporates the Eighth

Amendment against the states, emphasizing the

clause's purpose as one that "limits the government's

power to extract payments ... as punishment for some

offense." In this case, Newman has never been notified

by any court as to the nature of his "offense" which

allows the courts to "extract payments" from him.

Under the Eighth Amendment,

"[e]xcessive bail shall not be required,

nor excessive fines imposed, nor cruel

and unusual punishments inflicted."

.... Directly at issue here is the phrase

"nor excessive fines imposed," which

"limits the government's power to

extract payments, whether in cash or

in kind, 'as punishment for some

offense." .... Indiana explains that its

own Supreme Court has held that the

Indiana Constitution should be

interpreted to impose the same

restrictions as the Eighth Amendment

.... Exorbitant tolls undermine other

36

constitutional liberties .... Protection

against excessive punitive economic

sanctions secured by the Clause is, to

repeat, both "fundamental to our

scheme of ordered liberty" and "deeply

rooted in this Nation's history and

tradition." .... Id.

This Court has stated that "some errors are so

fundamental and pervasive that they require reversal

without regard to the facts and circumstances of the

case." Young v. U.S. ex rel. Vuitton, 481 U.S. 787,810

(1987). An error is fundamental if it undermines

confidence in the proceeding. Id., at 812-813.

This probate proceeding is so fundamentally and

pervasively ridden with errors, so biased on the parts of

the factfinders, and so deficient in judicial impartiality

that it threatens, especially as the current rule of law

for the State of Indiana, "the public legitimacy of

judicial rulings and therefore ... the rule of law itself."

The current rule of law in the State of Indiana,

as established by this case, is that:

no evidence is necessary to punitively

impose or "extract payments" of

overwhelming appellate attorney fees on a

party;

no legal grounds are necessary for a court

to impose appellate attorney fees;

no jurisdiction is required for a court to

impose appellate attorney fees;

no appellate court, reminded via a motion

for rehearing to comply with established

37

e.

law, must correct its own errors in order

to obey the law;

bias can form the sole basis for "excessive

punitive economic sanctions" imposed by

courts for "punishment for some

[unidentified] offense," thereby punitively

imposing enormous insurmountable

financial penalties on parties seeking

redress of grievances and protection of

property rights under the U.S.

Constitution

and

the

Indiana

Constitution.

There can be no due process, redress of

grievances, protection of property rights, access to the

courts, and equal treatment under the law when

taxpayers are intimidated repeatedly by imposition of

punitive appellate fees without legal grounds or

jurisdiction, against the public good.

In the present case, the imposition of "excessive

punitive economic sanctions" upon Newman by the

Indiana Supreme Court in the complete absence of any

jurisdiction to do so, having denied transfer of appellate

jurisdiction of the case, is an error that is "so

fundamental and pervasive" that it "undermines

confidence in the proceeding" and requires reversal by

this Court. Of critical import is the fact that, under

Rule 58B of the Indiana Rules of Appellate Procedure,

set forth above, the Supreme Court's denial of transfer

ends the present litigation in the Indiana courts, and

Newman has no recourse in the Indiana courts to

correct the "fundamental and pervasive" errors of the

Indiana Supreme Court except in this Court by grant of

Newman's Petition for Writ of Certiorari.

38

CONCLUSION

Under current Indiana rule of law, after the

subject decisions of the Indiana Court of Appeals and

the Indiana Supreme Court, a litigant can be assessed

"excessive punitive economic sanctions ... as

punishment for some [unidentified] offense" as

impositions of° overwhelming appellate attorney fees

without any justification given by the appellate

courts, notwithstanding contrary law and

Constitutional due process requirements, and the

Indiana Supreme Court likewise can assess appellate

attorney fees in the absence of jurisdiction, a direct

affront to due process principles. Such a perverse

state of the law will irreparably damage "the rule of

law itself' if it is allowed to intimidate our middle and

lower classes from redressing their grievances in the

appellate system.

The Petition for Writ of Certiorari should be

granted to correct the "fundamental and pervasive"

errors of the Indiana appellate courts that have made

the rule of law in Indiana unbearable and

unthinkable for middle class and lower class citizens,

in particular, to safely seek redress of their grievances

and protection of their property rights through the

appellate courts.

Respectfully submitted,

Lawrence T. Newman

4102 66th Street Circle West

Bradenton, FL 34209

(317) 397-5258

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