Opposition Brief — Doug Dyson, Petitioner v. Tiffany Deakins, Whitley County Auditor, et al.

No. 24-100

In the

Supreme Court of the United States

DOUG ALAN DYSON,

Petitioner,

v.

TIFFANY DEAKINS,

WHITLEY COUNTY AUDITOR, et al.,

Respondents.

On Petition for a Writ of Certiorari

to the Court of A ppeals of Indiana

BRIEF FOR TIFFANY DEAKINS,

WHITLEY COUNTY AUDITOR, ET AL.,

IN OPPOSITION

Larry Barnard

Counsel of Record

Carson LLP

301 West Jefferson Boulevard,

Suite 200

Fort Wayne, IN 46802

(260) 423-9411

barnard@carsonllp.com

Counsel for Respondents

117016

A

(800) 274-3321 • (800) 359-6859

i

QUESTIONS PRESENTED

1.

Whether the trial court violated the organic law

and constitutional provisions to supplant its orders

superseding my rights to a judicial proceeding

according to the course of the common law and a

jury of my peers secured by the conditions stated in

the 1816 Enabling Act, passed at the First Session of

the Fourteenth Congress of the United States, U.S.

Statutes at Large III, 289-291.

2.

Whether the trial court deprived me of liberty and

property, without just compensation and due process

of law under the Fifth Amendment resulting in an

unlawful taking.

3.

Whether the trial court had subject matter jurisdiction

absent determining liability under Ind. Code § 6-1.12-4 as it relates to U.S. Const. Art. I, § 8, cl. 3 of my

fee simple absolute ownership private property held

in conventional ownership for my personal use.

4.

Whether Whitley County Auditor is bound by oath

and law to make proper tax identification under Ind.

Code § 36-2-9-18 (App.47a-48a) upon demand with the

payment of the stated fee.

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . iv

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

REASONS FOR DENYING THE PETITION . . . . . . 3

1.

The Court Does Not Have Jurisdiction

Over the Questions Presented . . . . . . . . . . . . . . . 3

2.

Petitioner Fails to Present Compelling

Reason for Review . . . . . . . . . . . . . . . . . . . . . . . . . 6

3.

Petitioner Fails to Present Points Requiring

Reconsideration with Accuracy, Brevity,

and Clarity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

4.

Petitioner’s Arguments are Substantively

Without Merit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

iii

TABLE OF APPENDICES

Page

A PPENDIX — MOTION TO DISMISS OF

T H E W H I T L E Y C I R C U I T C OU R T,

WHITLEY COUNTY INDIANA, FILED

OCTOBER 24, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

iv

TABLE OF CITED AUTHORITIES

Page

Cases

Basic v. Amouri,

58 N.E.3d 980 (Ind. Ct. App. 2016) . . . . . . . . . . . . . . . 8

Brushaber v. Union Pac. R. Co.,

240 U.S. 1 (1916) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Nashville C. & St. L. Ry. v. Browning,

310 U.S. 362 (1940) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Constitutional Provisions

U.S. Constitution Art. III §2 . . . . . . . . . . . . . . . . . . . . . 1, 3

U.S. Constitution Art. VI . . . . . . . . . . . . . . . . . . . . . . . 4, 5

U.S. Constitution amend. V . . . . . . . . . . . . . . . . . . . . . . . . 9

Statutes, Rules and Regulations

28 U.S.C. § 1257(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 4, 5

28 U.S.C. § 1651 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 4, 5, 6

Ind. Code. § 6-1.1-1-19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Ind. Code. § 6-1.1-2-2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Ind. Trial Rule 12(B)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

v

Cited Authorities

Page

Sup. Ct. R. 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Sup. Ct. R. 15.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Sup. Ct. R. 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 5

1

OPINIONS BELOW

The opinion of the Indiana Supreme Court is

unreported. The opinion of the Indiana Court of Appeals

is unreported. The opinion of the Whitley County Circuit

Court is unreported.

JURISDICTION

Petitioner has invoked jurisdiction of this Court under:

1.

U.S. Constitution Art. III §2;

2.

28 U.S.C. §1257(a);

3.

28 U.S.C. §1651;

4.

United States Supreme Court Rule 20; and

5. U.S. Constitution Art. VI.

STATEMENT

The Petition arises out of the Petitioner’s refusal to

pay property taxes. On September 18, 2023, the Whitley

County Auditor and the Whitley County Treasurer, in

their official capacity, filed their Joint Application for

Judgment and Order of Sale under Cause No. 92C012309-TS-864 for Petitioner’s property commonly known

as 3630 E. State Road 14, Columbia City, Indiana 46725

(“Petitioner’s Property”) due to Petitioner’s failure to

pay property taxes. Pet App. 18a. The Court granted the

application on September 18, 2023 ordering Petitioner’s

Property to be sold and that the proceeds be used to

satisfy the amount of delinquent property taxes.

2

On September 8, 2023, Petitioner filed his “Affidavit of

Formal Complaint and Defense” objecting to the tax sale

of his property on the basis that Petitioner’s Property is

not subject to taxation. Pet. Ap. 27a. On September 26,

2023, the Court held a hearing pursuant to Ind. Code 6-1.124-4.7 and issued an Order finding Petitioner’s objection

to the tax sale invalid. Pet. Ap. 7a. Following the Court’s

September 26, 2023 Order, Petitioner filed an “Affidavit of

Fact to Take Judicial Notice” requesting Whitley County

Circuit Court Judge, Judge Matthew Rentschler take

judicial notice of the U.S. Department of Justice, Civil

Rights Division’s website discussing the “Deprivation

of Rights Under Color of Law” and arguing the Whitley

County Auditor’s attempt to collect property taxes on

Petitioner’s Property was unlawful. On September 26,

2023, Petitioner filed a “Motion to Set a Hearing for

the Filed Affidavit of Fact to Take Judicial Notice”. On

October 24, 2023, Petitioner filed “Motions to Correct

the Errors upon the record, to set aside the Judgment

for Tax Sale, and to find the facts specially and state

its conclusions of law thereon” requesting the Whitley

County Circuit Court to set aside the Court’s September

18, 2023 Order ordering the tax sale. On October 27, 2023.

The Whitley County Circuit Court denied Petitioner’s

“Motions to Correct the Errors upon the record, to set

aside the Judgment for Tax Sale, and to find the facts

specially and state its conclusions of law thereon”.

In addition to filing the “Affidavit of Formal Complaint

and Defense” under cause number 92C01-2309-TS-864,

Petitioner also opened a new matter and filed the “Affidavit

of Formal Complaint and Defense” under cause number

92C01-2309-MI-824. On October 25, 2023, Respondents

filed a Motion to Dismiss Petitioner’s “Affidavit of Formal

3

Complaint and Defense” under Ind. Trial Rule 12(B)(6)

arguing Petitioner failed to state a claim for which relief

can be granted. Ap. 1a. The Whitley County Circuit Court

granted Respondent’s Motion to Dismiss on October 26,

2023. Pet. Ap. 5a.

On November 25, 2023, Petitioner filed his Notice of

Appeal in the Indiana Court of Appeals seeking review

of both 92C01-2309-TS-864 and 92C01-2309-MI-824. On

January 9, 2024, Petitioner filed his Brief of Appellant.

On February 7, 2024, Respondents filed their Motion

to Dismiss on the grounds that Petitioner violated the

Indiana Rules of Appellate Procedure and failed to

present a cogent argument, which the Indiana Court of

Appeals granted on March 4, 2024. Pet. Ap. 3a. On March

6, 2024, Petitioner filed a Motion to Reconsider, which the

Indiana Court of Appeals denied on March 19, 2024. Pet.

Ap. 9a.

On April 8, 2024, Petitioner filed a Petition to Transfer

to the Indiana Supreme Court, which the Indiana Supreme

Court denied on June 19, 2024. Pet. Ap. 1a. The Petition

for Writ of Certiorari followed on July 25, 2024.

REASONS FOR DENYING THE PETITION

1. The Court Does Not Have Jurisdiction Over the

Questions Presented.

The Court lacks jurisdiction over the Petition for Writ

of Certiorari. Petitioner has asserted the following five

grounds for jurisdiction:

1.

U.S. Constitution Art. III §2;

4

2.

28 U.S.C. §1257(a);

3.

28 U.S.C. §1651;

4.

United States Supreme Court Rule 20; and

5.

U.S. Constitution Art. VI.

However, none of the stated grounds confer jurisdiction

on the Court.

First, Art. III §2 of the United States Constitution

provides that the federal courts have jurisdiction over

cases arising from federal laws; however, the United

States Supreme Court only has appellate jurisdiction as

set forth by laws enacted by Congress. Therefore, Art.

III §2 of the United States Constitution does not confer

appellate jurisdiction on its own. Petitioner fails to identify

the specific federal law that confers appellate jurisdiction

on this Court over the Questions Presented.

Second, 28 U.S.C. §1257(a) provides the United States

Supreme Court has appellate jurisdiction over final

judgments or decrees by the highest court of a State if the

decision involved the validity of a treaty or statues of the

United States or the validity of a state statue is drawn into

question for being repugnant to federal law or involving a

title, right or privilege, set up by the constitution. In this

matter, the Indiana Supreme Court did not issue a final

judgment or decree regarding Petitioner’s substantive

rights. Rather, the Indiana Supreme Court declined to

reconsider the intermediate appellate court’s dismissal

of Petitioner’s appeal for failing to comply with the

appellate court’s procedural rules. Therefore, there is no

5

final judgment of the highest Court of Indiana involving

a requisite issue, so 28 U.S.C. §1257(a) does not confer

appellate jurisdiction on this Court over the Questions

Presented.

Third, 28 U.S.C. §1651 provides the United States

Supreme Court may issue all w rits necessary or

appropriate in aid of its respective jurisdiction and

agreeable to the usages and principles of law. On its face,

the language of 28 U.S.C. §1651 provides the United States

Supreme Court authority to issue all writs necessary or

appropriate in aid of its respective jurisdiction, but it does

not confer additional jurisdiction on the United States

Supreme Court. Therefore, without another mechanism

actually providing the Court with appellate jurisdiction

over the Petition for Writ of Certiorari, 28 U.S.C. §1651

does not confer jurisdiction on this Court over the

Questions Presented.

Fourth, Rule 20 of the Rules of the United States

Supreme Court sets forth the procedure for issuance by

the Court of an extraordinary writ by 28 U.S.C. §1651

stating the issuance should be “sparingly exercised.”

Sup. Ct. R. 20. However, Rule 20 cannot be reasonably

interpreted to confer any jurisdiction on the Court as the

rule is entirely procedural.

Finally, it is entirely unclear how “binding the Justices

of their oath’s by U.S. Const. Art. VI to support the

Constitution” confers jurisdiction on this Court over the

Questions Presented or any other matter.

For the reasons set forth above, the only ground for

jurisdiction that Petitioner invoked that is even fathomably

6

applicable is 28 U.S.C. §1651. However, even assuming

jurisdiction can be invoked by 28 U.S.C. §1651, Petitioner

fails to demonstrate why this is an instance when 28

U.S.C. §1651 should be “sparingly exercised.” Without a

demonstration as to why jurisdiction should be granted

under 28 U.S.C. §1651, the Court does not have jurisdiction

over the Petition for Writ of Certiorari and it should be

denied.

2. Petitioner Fails to Present Compelling Reason for

Review.

Even if the Court were to find Petitioner set forth

a viable basis for jurisdiction, the Petition for Writ of

Certiorari should be denied because none of the Questions

Presented are certworthy. As explained by Supreme

Court Rule 10, “[r]eview on a writ of certiorari is not

a matter of right, but of judicial discretion. Sup. Ct. R.

10. A petition for writ of certiorari will be granted only

for compelling reasons.” Rule 10 provides examples of

compelling reasons which include:

1.

When there is a split among circuit courts.

Petitioner has not presented a question for review that

demonstrates a split among circuit courts.

2. When there is a difference in decisions by a circuit

and the highest court of a state.

Petitioner has not presented a question for review that

there are different decisions between a circuit court and

the Indiana Supreme Court.

7

3. When the highest court of a state is deciding an

important question of federal law in a way that conflicts

with the highest court of another state or with a circuit

court.

Petitioner has not presented a question for review

involving the Indiana Supreme Court deciding an

important question of federal law.

4. When the highest court of a state or a circuit

court has decided a federal question, that has not been,

but should be settled by the United States Supreme Court,

or when the highest court of a state or a circuit court have

decided a federal question that conflicts with relevant

decisions of the Supreme Court.

Again, Petitioner has not presented a question for

review involving the Indiana Supreme Court deciding an

important question of federal law.

Instead of presenting a question for review that

involves a split in decisions or an important question of

federal law, Petitioner’s Questions Presented seek the

Court to review a state trial court’s application of law

and a state auditor’s application of state law. None of

the Questions Presented ask the Court to interpret an

important question of federal law. In fact, the Indiana

Supreme Court has not even issued a substantive ruling

in this matter. Rather, the Indiana Supreme Court denied

the Petitioner’s Petition to Transfer the Indiana Court

of Appeal’s Order of Dismissal dismissing his appeal on

procedural grounds. The only court that has issued a

substantive decision regarding this matter is the Whitley

County Circuit Court. Therefore, Petitioner fails to

8

provide a compelling reason for review, and the Petition

for Writ of Certiorari should be denied.

3. Petitioner Fails to Present Points Requiring

Reconsideration with Accuracy, Brevity, and

Clarity.

The Petition for Writ of Certiorari should be denied

because Petitioner failed to present the points requiring

reconsideration with accuracy, brevity, or clarity. Supreme

Court Rule 15.4 states “[t]he failure of petitioner to

present with accuracy, brevity, and clarity whatever is

essential to the ready and adequate understanding of

the points requiring consideration is a sufficient reason

to deny a petition.” Sup. Ct. R. 15.4. The Petition for Writ

of Certiorari can hardly be described as accurate, brief,

or clear and in contrast, is largely incoherent drawing

upon sources such as the Magna Carta and the Northwest

Ordinance of 1787. Similar to Supreme Court Rule 15.4,

Indiana case law is well established that the failure of an

appellant to make a cogent argument is treated as a waiver

of the argument. Basic v. Amouri, 58 N.E.3d 980, 984

(Ind. Ct. App. 2016). In fact, one of the reasons the Indiana

Court of Appeals dismissed Petitioner’s Appellant’s Brief

was due to his failure to make a cogent argument. Pet.

Ap. 3a. Like Petitioner’s Appellant’s Brief filed with

the Indiana Court of Appeals, the Petition for Writ of

Certiorari is largely incoherent. Because Petitioner

failed to present the points requiring reconsideration

with accuracy, brevity, or clarity, the Petition for Writ of

Certiorari should be denied.

9

4. Petitioner’s Arguments are Substantively Without

Merit.

It is well settled that states have the right to tax real

property. See, e.g., Nashville C. & St. L. Ry. . Browning,

310 U.S. 362, 368 (1940). Yet at the heart of all four of

Petitioner’s Questions Presented is one issue – whether

Whitley County can lawfully tax Petitioner’s Property.

It is Petitioner’s position that Petitioner’s Property is tax

exempt. Therefore, Petitioner argues that Whitley County

subjecting his property to a tax sale is an unlawful taking

in violation of his Fifth Amendment Rights.

However, Plaintiff ’s argument is without merit

because Plaintiff ’s property is not tax exempt. Under

Indiana law, it is clear that tangible property located

within Indiana is subject to taxation unless otherwise

provided by law. Ind. Code. § 6-1.1-2-2. Further, Indiana

law explicitly defines tangible property to include real

property. Ind. Code. § 6-1.1-1-19. Therefore, unless

otherwise provided by law, the Property is subject to

taxation.

Petitioner argues Petitioner’s Property is tax exempt

for two reasons. First Petitioner argues Petitioner’s

Property is tax exempt because the Property is not

encumbered by a mortgage, is not the subject of a lease,

and is not the subject of an installment contract. However,

whether property is encumbered by a mortgage, is the

subject of a lease, or is the subject of an installment

contract has no bearing on its tax status.

Second, Petitioner argues that the Property is “zip

exempt,” so it lacks tax-situs as it is outside the jurisdiction

10

of the state and it cannot be taxed. However, this argument

has no legal basis. Therefore, Petitioner failed to state

any facts to support his claim that Petitioner’s Property

is tax exempt.

Finally, the Cour t has previously considered

Petitioner’s argument that taxation violates the due

process clause of the Fifth Amendment and held “it is . . .

well settled that [the Fifth Amendment] is not a limitation

upon the taxing power conferred upon Congress by the

Constitution . . . ” Brushaber v. Union Pac. R. Co., 240

U.S. 1, 24 (1916).

Therefore, Petitioner’s Property is clearly subject to

taxation in Indiana. For these reasons, further review is

not warranted.

CONCLUSION

The Petition for Writ of Certiorari should be denied.

Respectfully submitted,

Larry Barnard

Counsel of Record

Carson LLP

301 West Jefferson Boulevard,

Suite 200

Fort Wayne, IN 46802

(260) 423-9411

barnard@carsonllp.com

Counsel for Respondents

APPENDIX

i

TABLE OF APPENDICES

Page

A PPENDIX — MOTION TO DISMISS OF

T H E W H I T L E Y C I R C U I T C OU R T,

WHITLEY COUNTY INDIANA, FILED

OCTOBER 24, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

1a

Appendix

APPENDIX — MOTION

OF THE WHITLEY

CIRCUIT COURT, WHITLEY COUNTY, INDIANA,

FILED OCTOBER 24, 2023

IN THE WHITLEY CIRCUIT COURT,

STATE OF INDIANA, COUNTY OF WHITLEY

CAUSE NO.: 92C01-2309-MI-824

DOUGLAS ALAN DYSON,

Plaintiff,

vs.

WHITLEY COUNTY AUDITOR,

TIFFANY DEAKINS,

Defendant.

Filed October 24, 2023

MOTION TO DISMISS

Comes now Defendant, Whitley County Auditor,

Tiffany Deakins (“Deakins”), by counsel, pursuant to

Rule 12(b)(6) of the Indiana Rules of Trial Procedure,

and respectfully requests the Court dismiss Plaintiff’s

Complaint, and in support thereof, alleges and states as

follows:

1. Under Indiana law, all real property within

the jurisdiction of Indiana is subject to taxation unless

otherwise exempt. Ind. Code § 6-1.1-2-1.

2a

Appendix

2. Plaintiff claims the property he owns at 3630

East State Road, Columbia City, Indiana 46725 (the

“Property”) is tax exempt; however, Plaintiff fails to plead

any facts to support his claim the Property is tax exempt.

3. Therefore, the Court should dismiss of Plaintiff’s

Complaint pursuant to Rule 12(b)(6) of the Indiana Rules

of Trial Procedure.

4. Additionally, in Plaintiff’s Complaint, Plaintiff

names Deakins individually.

5. It is well established under Indiana law that

government employees are immune from liability for the

performance of discretionary functions. Ind. Code § 3423-3-3(a)(7).

6. Deakins’ initiation of the tax sale on the Property

is clearly within Deakins’ discretion as the Whitley County

Auditor.

7. Therefore, Deakins is immune for her decision to

initiate the tax sale on the Property.

8. As Plaintiff fails to assert Deakins violated his

rights in any other way, Plaintiff fails to state a claim

for which relief can be granted against Deakins, and the

Court should dismiss Plaintiff’s Complaint under Rule

12(b)(6) of the Federal Rules of Civil Procedure.

3a

Appendix

WHEREFORE, Defendant, Whitley County Auditor,

Tiffany Deakins, by counsel, respectfully requests that

the Court dismiss Plaintiff’s Complaint and for all other

just and proper relief in the premises.

Respectfully submitted,

/s/ Amanda C. Delekta

A ndrew D. Boxberger #23515-02

A manda C. Delekta #37621-02

Carson LLP

Fort Wayne, IN

Attorneys for Defendant

Whitley County Auditor,

Tiffany Deakins