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
39
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