Bill Windsor asks Supreme Court to declare Montana laws unconstitutional.
Bill Windsor is being prosecuted for alleged crimes of sending an email and having a website. These aren’t crimes.
Judge James A. Haynes has been given many opportunities to dismiss the unconstitutional charges, but he has failed to do so…
So Bill Windsor has filed a Petition for Supervisory Writ with the Montana Supreme Court on Friday. William M. Windsor is asking the Montana Supreme Court to declare that a few dozen things that Judge James A. Haynes has done or hasn’t done are unConstitutional.
Bill Windsor is also filing a Judicial Misconduct Complaint against Judge James A. Haynes and a Bar Complaint against Missoula County Attorneys Jennifer Clark and Kirsten Pabst. These are mighty juicy — may be a record for the most violations of the Montana Code of Judicial Conduct in history.
Here is Bill Windsor’s Supreme Court Petition:
PETITION FOR WRIT OF SUPERVISORY CONTROL
William M. Windsor (“Windsor”) files this Petition for Writ of Supervisory Control pursuant to Rule 14(a)(b) of the Montana Rules of Appellate Procedure.
THIS COURT SHOULD ACCEPT JURISDICTION
A. The matters at issue are purely legal questions.
(State v. Boucher, OP 15-0341 (Mont. 07/07/2015).)
This case involves various courts’ interpretations of Montana statutes 40-15-201, MCA and 40-15-302, MCA, which make unconstitutional certain provisions regarding the issuance and terms of ex parte temporary orders of protection. The facts in this case are not in dispute. This Petition only addresses pure questions of law that include matters of statewide importance as temporary orders of protection are sought daily all across the state.
Either the two statutes in question have been misinterpreted by the courts, or the statutes are plainly unconstitutional.
B. The District Court (“DC”) is proceeding under mistakes of law that are causing a gross injustice.
Supervisory Control is appropriate in this matter because the DC’s orders [Exhibits-14-19] are clear mistakes of law and are in direct conflict with precedents of the U.S. Supreme Court, this Court, and MCA, and if uncorrected, will cause insignificant injustice. (See San Diego Gas & Electric Co. v. Ninth Judicial District Court, DA 14-0326 (Mont. 07/18/2014).)
The mistakes of law in question are discussed in detail under the Argument section. The erroneous holdings include that as part of a TOP, a court can order an individual to refrain from all contact with over 1,700 unidentified “U of M Staff,” that the court can order a respondent to transfer his personal property to the Petitioner without compensation for the property, and that a temporary order of protection can properly restrain a Respondent for 546 days without a hearing.
C. The normal appeal process will be an inadequate remedy.
The trial in this case is set for January 5, 2016. The charges are based on unconstitutional restraints on Windsor’s liberty and deprivation of his property, and it will be a gross injustice to subject Windsor to a trial on such clearly meritless charges.
Windsor is facing a televised trial in which he could be convicted of one or two crimes. His conviction will be widely publicized. He will be sentenced, will go to jail, will be branded a criminal, will likely lose the ability to obtain a concealed handgun permit, and he might be blocked from purchasing guns. He will have to post bond or stay in jail. He will have to prepare and file an appeal pro se. He will have to incur debt to pay for transcripts and all other expense. Then he may have to go through the entire trial process again.
Windsor has no criminal record. His health has been significantly affected by what he has already endured over the last 13 months. He has been living in a hotel near Missoula for the seven months since he was finally released on bond. He hasn’t been home in a year. If he has to stay in our near Montana and go through an appeal and another trial, it will be expensive, and he can never get this time back. At his age, he might not even live through it.
Windsor is under a great deal of stress now trying alone to prepare for a trial that he thought would never happen because the law is so clear. The work of preparing over the next month will be especially stressful. The DC has just denied all but one of his planned defenses, so he is back to square one in preparing for trial.
It is simply manifestly unjust for Windsor to have to stand trial. It’s a moral wrong. If there is one thing that should not be tolerated in our legal and judicial system, it is the denial of a clear Constitutional right. There is no adequate remedy for the deprivation of such a right. Windsor will suffer an immediate injury with a trial, and an appeal will not remedy the harm caused. (State v. Montana Second Judicial District Court, DA 15-0449 (Mont. 10/13/2015).)
This Court should accept jurisdiction to protect Windsor from participating in a needless trial. (First Bank v. Mont. Fourth Judicial Dist. Ct. (1987), 226 Mont. 515, 519, 737 P.2d 1132, 1134.)
This Court should accept jurisdiction for the sake of judicial economy. A trial may become needless and expensive. (San Diego Gas & Electric Co. v. Ninth Judicial District Court, supra.)
Urgency and emergency factors exist, not the least of which is the interest of the Missoula County taxpayers in avoiding the expenses related to trial. (Gallatin County v. Mont. Eighteenth Judicial Dist. Ct. (1997), 281 Mont. 33, 36-37, 930 P.2d 680, 683.)
A gross injustice will occur if Windsor is wrongly required to defend against the same criminal charges a second time. The mere allegation of an error, could result in gross injustice. (Lane v. Mont. Fourth Judicial Dist. Ct., 2003 MT 130, ¶18, 316 Mont. 55, ¶18, 68 P.3d 819,¶18.)
PRIOR CASES AND PROCEDURAL BACKGROUND
MMC Case #OP-2013-00198 – On August 21, 2013, Sean Boushie filed an ex parte Petition for Temporary Order of Protection and Hearing (“Petition”) against Windsor.
On August 23, 2013, the Missoula Municipal Court (“MMC”) issued a 24 day EX-PARTE TOP (the expiration date was 9/16/13) against Windsor and scheduled a hearing for September 9, 2013. [Exhibit-1.] Also see MMC Docket entry: “Expiration Days: 24 Expiration Date 9/16/2013.” [Exhibit-2.]
DC Case #DV-13-969 (“DC-1). Windsor appealed the EX-PARTE-TOP to the DC (he did NOT remove the Petition) on August 26, 2013, complaining that inter alia the deprivation of his personal property, the inclusion of the entire U of M Staff, and the prior restraints on his speech were unconstitutional.
The MMC erroneously concluded the notice of appeal deprived it of jurisdiction over the entire Petition, and cancelled the scheduled hearing.
But DC-1 was only acting in an appellate capacity, therefore it did not assume jurisdiction over the Petition, and it did not hold a hearing. On November 14, 2013, DC-1 affirmed and remanded the EX-PARTE-TOP to the MMC, without discussing the Constitutional arguments. [Exhibit-3.]
MSC Case #DA-13-0785. On November 25, 2013, Windsor appealed DC-1’s order to this Court (“MSC”). Again, the MMC erroneously concluded the notice of appeal to this Court deprived it of jurisdiction over the entire Petition and delayed scheduling a hearing on the Petition for the duration of the appeal.
When this Court reviewed DC-1’s order on appeal, it was under the mistaken impression that DC-1 had held a hearing on the Petition: “Here, following the hearing on the TOP, the District Court determined that…” [Exhibit-4, P.6.] This misunderstanding had a material impact on this Court’s inquiry into whether DC-1 abused its discretion.
On June 10, 2014, this Court affirmed DC-1’s order in Case #DV-13-969 finding inter alia that § 40-15-201(2)(b) allowed the court to restrain Windsor’s contact with the entire U of M staff and that § 40-15-201(2)(j), MCA permitted the court to order Windsor to give seanBoushie.com to Boushie. [Exhibit-4, p.8.]
There has never been a hearing on Boushie’s Petition in any court. This Court also overlooked Windsor’s Constitutional arguments on the appeal.
DC Case #DR-14-503 (DC-2). Following the MSC decision, the MMC decided it regained jurisdiction over the Petition. But on July 31, 2014, before the MMC could hold a hearing on the 342-day-old EX-PARTE-TOP, Boushie removed his Petition from MMC Case #OP-2013-00198, to DC-2 (Case #DR-14-503). On September 23 2014, DC-2 noted that there had never been a hearing on the Petition. [Exhibit-5, P.4.]
DC Case #DC-14-509 (DC-3). On October 3, 2014, the State charged Windsor with five violations of the EX-PARTE-TOP. [Exhibit-6.] Windsor raised constitutional concerns in DC-3 on January 16, 2015, April 3, 2015, May 4, 2015, and December 2, 2015, but the court denied that motions without explanation. Exhibits-11,12,13,17 are the motions, and they present the arguments in full. Exhibits-14,19 are the orders.
On October 29, 2015, three of the charges were dismissed because there was nothing in the TOP to support the charges. [Exhibit-14.]
QUESTIONS PRESENTED
I. Is 40-15-201, MCA, which describes the relief available in an ex parte TOP, unconstitutionally overbroad or vague? Suggested Answer: Yes.
II. Is 40-15-302, MCA, which automatically extends the term of a TOP during an appeal to a DC, unconstitutional because it results in deprivation of a Respondent’s right without a hearing for as long as 546 days? Suggested Answer: Yes.
ARGUMENTS
I. Is 40-15-201, MCA, which describes the relief available in an ex parte TOP, unconstitutionally overbroad or too vague?
As the courts in this case have interpreted 40-15-201, MCA, the statute is unconstitutional. While civil and criminal statutes allow courts to restrict an individual’s civil liberties under certain narrowly-defined circumstances, broad and ill-considered injunctions that unnecessarily restrict those liberties are intolerable. Such restraints were issued in this case.
A. It is unconstitutional to order a Respondent to transfer his personal property to a Petitioner who had no ownership interest in the property, without a hearing, without compensation for the property, and without clarifying how the transfer was to take place, in an ex parte TOP.
Application of 40-15-201, MCA to Windsor requires an understanding of several other statutes and how they all work together.
According to 40-15-101, “The purpose of this chapter is to promote the safety and protection of all victims of partner and family member assault, victims of sexual assault, and victims of stalking.” In this case, Sean Boushie claimed he was a victim of stalking as defined in 45-5-220, MCA, and therefore he was eligible for an order of protection against Windsor pursuant to 40-15-102(2)(a).
However, 45-5-220(2) states, “This section does not apply to a constitutionally protected activity.” Then 45-5-220(4) states, “Upon presentation of credible evidence of violation of this section, an order may be granted, as set forth in Title 40, chapter 15, restraining a person from engaging in the activity described in subsection (1).”
Taking all of the foregoing together, it is clear that when a petitioner seeks a protective order pursuant to 45-5-220, it is the court’s duty to determine whether any of the complained of activity is Constitutionally-protected. Since such activity is excluded from 45-5-220, any order issued by the court would be limited to restricting unprotected activity.
Windsor owns the URL for the website seanBoushie.com. Windsor created the site in 2013 to rebut the endless defamatory statements Boushie was publishing about Windsor on the Internet and to express his opinions about Boushie. The content is Windsor’s intellectual property. Boushie had no ownership interest of any kind in the site.
In the affidavit Boushie attached to his Petition for a TOP, he complained that, “Mr. Windsor also harasses and intimidates me on his websites, www.seanBoushie.com, and www.lawlessamerica.org, as well as several facebook accounts, billwindsor1, lawlessamerica, and lawlessamerica-montana.”
The MMC did not make any determination that the content of any of Windsor’s publications about Boushie qualified as unprotected speech.
Nevertheless, paragraph 14 of the EX-PARTE-TOP against Windsor orders: “The Court deems that the following additional relief is necessary to provide for the safety and welfare of the Petitioner or other individuals designated in this Petition: Release of www.seanBoushie.co to petitioner, Respondent shall not post Petitioners [sic] name on it.”
The order to transfer seanBoushie.co did not include a date for compliance or explain how Windsor was supposed to transfer the site to Boushie without violating the EX-PARTE-TOP’s provision to refrain from contact with Boushie. Windsor knew that he could not be deprived of his personal property without a hearing, and in light of the no contact order, Windsor concluded that the MMC did not expect the transfer to take place prior to a hearing and further instruction. Again, there has never been a hearing on Boushie’s Petition.[Exhibit-5, P.4.]
In its June 10, 2014 opinion, this Court found, “[t]he condition requiring Windsor to transfer SeanBoushie.com into Boushie’s name and to refrain from posting about Boushie on the site is also permissible within § 40-15-201(2)(j), MCA, under the circumstances.” [DA-13-0785, Order-June-10-2014.] [Exhibit-4, p.8.]
This Court’s 2014 opinion on the issue notwithstanding, Windsor respectfully maintains that if 40-15-201, MCA permits a court to order a Respondent to transfer his property prior to a hearing, the statute is invalid under the Fourteenth Amendment since it works a deprivation of property without due process of law by denying the right to a prior opportunity to be heard before chattels are taken from the possessor. (Fuentes v. Shevin, 407 U.S. 67, 80-93 (1972).)
The right to due process is a “basic aspect of the duty of government to follow a fair process of decision making when it acts to deprive a person of his possessions. The purpose of this requirement is not only to ensure abstract fair play to the individual. Its purpose, more particularly, is to protect his use and possession of property from arbitrary encroachment …” Id.
The most significant due process protection is notice and the opportunity to be heard before the government may deprive an individual of liberty or property. (Mathews v. Eldridge, 424 U.S. 319, 333, 47 L.Ed.2d 18, 32 (1976); United States v. James Daniel Good Real Property, 510 U.S. 43, 53, 126 L.Ed.2d 490, 503 (1993).) “[S]ome form of hearing is required before an individual is finally deprived of a property [or liberty] interest.” Id.
Notice must be “reasonably calculated to inform parties of proceedings which may directly and adversely affect their legally protected interests.” STEAB v. Luna, MT 125 (2010), citing Mont. Power Co. v. Public Serv. Commn., 206 Mont. 359, 368, 671 P.2d 604, 609 (1983). Due process requires notice and the opportunity to be heard “at a meaningful time and in a meaningful manner.” Id.
1. The website is Windsor’s personal property and Windsor had to purchase the URL. There is no authority to suggest Boushie was entitled to receive the URL or to gain control of Windsor’s intellectual property, especially in the course of petitioning for a TOP.
2. Nothing about the website required immediate court action to provide for Boushie’s safety and welfare. According to Boushie, Windsor had numerous places to continue posting his opinions about Boushie. In that case, it was pointless to restrain Windsor from posting about Boushie on a single website.
3. The order was unconstitutional as a prior restraint on Windsor’s liberty and for deprivation of his property without a hearing.
4. The order failed to provide Windsor with a timeframe within which he was to comply.
5. Transfer of the site required Windsor to have contact with Boushie, even though other parts of the TOP restrained him from such contract. It was impossible for Windsor to determine exactly what the EX-PARTE-TOP did or did not allow. This was a violation of Windsor’s right to due process.
On October 3, 2014 the State charged Windsor with what was originally Count III, now Count 1: “On or about and between August 24, 2013 through October 2, 2014, the above-named Defendant committed the offense of violation of an order of protection… to wit: Defendant has not released control of the website www.seanboushie.com to Sean Boushie.”
Even the State doesn’t know when Windsor “violated” the vague order. The state originally charged Windsor with violating the order on October 2, 2014, the day before the information was filed. Then the State moved for permission to amend the information to say that Windsor violated the order by failing to comply the day after the TOP was issued. Finally, the State has amended the information to state that sometimes over the course of 404 days, Windsor violated the TOP by failing to release seanBoushie.com to Boushie. The State simply has no basis to bring a criminal charge against Windsor for failing to meet some arbitrary, unstated deadline.
“It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. …” (State v. Stanko, 292 Mont. 192, 974 P.2d 1132, 1998 MT 321 (Mont. 12/23/1998).)
Windsor had not transferred the site to Boushie as of February of 2015, and Boushie sought and obtained a dismissal of his Petition.
In its response to Windsor’s recent motion to dismiss this charge, which was originally Count III, now Count I, DC-3 expressed its concerns that Windsor may have a property interest in the site for which compensation may be due, that “release” of the website involves considerations of returning it to the web host who may have registered the domain name, that Windsor appears to have the defenses that this condition is overly broad since Boushie never sought this “release” in his application for an order of protection, and that Boushie may have abandoned this condition when be asked for and was granted dismissal of the 8/23/13 TOP. [Exhibit-14, P.10-11.]
This Court recognizes the unconstitutionality of Prior Restraint: Kuiper v. District Court, 193 Mont. at 458-59, 632 P.2d at 698 (citing Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976).) (See New York Times, Co. v. United States, 403 U.S. 713 (1971); Near v. Minnesota, 283 U.S. 697 (1931); and many others.)
This Court addressed prior restraint and overbroad terms in St. James Healthcare v. Cole, 178 P.3d 696, 341 Mont. 368, 2008 MT 44 (02/12/2008).
“Before a trial court can enter a protective order restraining free expression, the court must find that three criteria exist: (1) The harm posed by dissemination must be substantial and serious. (2) The restraining order must be narrowly drawn and be precise. (3) There must be no alternative means of protecting the public interest which intrudes less directly on expression.In assessing the propriety of a protective order in each case, the trial court must consider and make necessary findings on each element of the standard.”
The MMC did not address the required criteria, and there were no findings. (See also In re Marriage of Suggs, 93 P.3d 161, 152 Wash.2d 74 (Wash. 07/08/2004).)
B. It is unconstitutional for a TOP to restrain an individual’s access to 1,700 individuals, describing them only as “U of M Staff,” particularly where none of the individuals in question petitioned the court for a TOP and there was no limitation on the type of contact.
Paragraph 2 of the TOP against Windsor states: “Respondent shall not harass, annoy, disturb the peace of, telephone, email , contact, or otherwise communicate directly or indirectly, with Petitioner and the following Protected Persons: Wynette L. Boushie, U of M. Staff.” (See Exhibit-1.)
There are 1,700 full-time U of M Staff and an unknown number of part-time, and it is impossible to be in Missoula without unknowingly having contact with some of the Staff. Further, no one from the U of M Petitioned for a TOP.
In its June 10, 2014 opinion, this Court found, “The condition barring Windsor from harassing or otherwise contacting Boushie’s wife or University of Montana staff is authorized by § 40-15-201(2)(b), MCA.” [DA-13-0785, Order-June-10-2014.] [Exhibit-4, p.8.]
This Court’s 2014 opinion on the issue notwithstanding, Windsor respectfully maintains the MMC had no authority to include the U of M condition in the TOP. First, Boushie did not produce credible evidence that Windsor’s contacts with U of M staff constituted unprotected activity or that the actions qualified as harassing, threatening, or intimidating activity. Second, Windsor’s contacts with the U of M did not present a safety issue for Boushie. Under these circumstances, Boushie’s concerns about Windsor’s activities with U of M staff were not an issue to be resolved under the guise of obtaining protection from an alleged “stalker.”
In sum, Boushie was not entitled to interfere with Windsor’s lawful activities simply by stating he felt harassed or intimidated by them. The prior restraints that were imposed on Windsor without any legal basis violated his Constitutional rights.
If, as this Court found, 40-15-201, MCA does permit a court to restrain a Respondent’s contact with over 1,700 people as described above, the statute is far too broad to be constitutional.
“The crucial question in addressing an overbreadth challenge is whether the statute sweeps within its prohibitions what may not be punished constitutionally.” O’Shaughnessy, 216 Mont. at 440, 704 P.2d at 1026; Grayned v. City of Rockford, 408 U.S. 104, 114-15, 92 S. Ct. 2294, 2302 (1972).
MCA 40-15-201 improperly invades Constitutionally-protected activities.
(See Lance, 222 Mont. at 99, 721 P.2d at 1263 (quoting Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503, 105 S. Ct. 2794, 2801-02 (1985).)
On December 26, 2013, Windsor filed a lawsuit against Boushie for defamation, in the Texas state court. In order to avoid violating the no contact with Boushie provision of the TOP, on or about the 6th day of February, 2014, documents from the civil suit were sent to Boushie via Denker-Eccles.
Legal service mail is speech protected by the First Amendment.
(See State v. Dixon, 2000 MT 82, ¶20, 299 Mont. 165, 998 P.2d 544; State of Montana v. Randall Jay Dugan, 2013 MT 38 (Mont. 02/19/2013).)
On October 3, 2014, the State charged Windsor with Count II in this case, “On or about the 6th day of February, 2014, the above-named Defendant committed the offense of violation of an order of protection… to wit: Defendant emailed Claudia Denker-Eccles, Associate Counsel for the University of Montana.” See Exhibit-15, Amended Information.
In its response to Windsor’s motion to dismiss this charge, which was originally Count V, DC-3 stated, “Frankly, the Court is having trouble connecting the allegations in Count V to anything related to protecting Sean Boushie. Moreover, the blanket reference to “U of M Staff” appears overly broad. The Court, should reserve ruling on the dismissal of Count V.” [Exhibit-14, P.10-11.]
II. Is 40-15-302, MCA, which automatically extends the term of a TOP during an appeal to a DC, unconstitutional because it results in deprivation of a Respondent’s liberty or property without a hearing for as long as 546 days and because it is vague?
“[t]he notice of hearing and the opportunity to be heard ‘must be granted at a meaningful time and in a meaningful manner.’” (Armstrong v Manzo, 380 U.S. 545, 552, (1965).)
Windsor has maintained throughout this case that the TOP expired by operation of law long before the alleged violations occurred. However DC-3 interpreted MCA 40-15-302 to mean that no matter how long an appeal to a DC or the MSC may take, while the TOP is on appeal, no court has jurisdiction to hold a hearing on the petition. As a result, according to the DC, if a respondent chooses to appeal a TOP, he can be subjected to the TOP without a hearing for as many months as the appeals may take. In this case, DC-3 found that a temporary order of protection properly restrained Windsor for 546 days without a hearing. “This court easily concludes the 8/23/13 TOP was continually valid until it was dismissed in February of 2015.” [DC-14-509-Docket-153.] [Exhibit-14.]
If DC-3 is right, the statute authorizes an unconstitutional restraint on liberty and unconstitutional deprivation of property for a long period of time.
Extending a TOP for 546 days violates § 40–15–202(1), MCA, which “[r]equires a court to conduct a show cause hearing before issuing a permanent order of protection wherein the respondent is permitted to testify and introduce evidence. See Keller v. Trull, 2007 MT 108, ¶12, 337 Mont. 188, 158 P.3d 439. It is a manifest abuse of discretion for a court to issue a permanent order of protection without first conducting the statutorily mandated hearing. In re Marriage of Coogler, 2004 MT 122, ¶ 24, 321 Mont. 243, 90 P.3d 414.”
CONCLUSION
For all of the reasons stated above, the charges against Windsor should be dismissed.
RELIEF SOUGHT
William M. Windsor prays that this Court enter an order:
granting the Petition for Supervisory Writ; granting a Stay of further proceedings; and providing any other relief that this Court feels is appropriate.
This 11th day of December, 2015,
_________________________
William M. Windsor
CERTIFICATE OF compliance
I hereby certify that this document is proportionately spaced, using Times Roman typeface, 14 point, and the word count is 3,999 words excluding the sections that are not to be counted.
Submitted this 11th day of December, 2015,
_________________________
William M. Windsor
CERTIFICATE OF SERVICE
I hereby certify that I have served the following by depositing said copies into the U.S. mail, postage prepaid, addressed to the following: Fourth Judicial District Court, Missoula County Courthouse, 200 West Broadway, Missoula, Montana 59802 and Judge James A. Haynes, Fourth Judicial District Court, Missoula County Courthouse, 200 West Broadway, Missoula, MT 59802.
Submitted this 11th day of December, 2015,
_________________________
William M. Windsor
5013 S Louise Ave #1134, Sioux Falls, SD 57108
Email: bill@billwindsor. com, Phone: currently confidential
Bill Windsor will be doing a special filming after the trial in Missoula. He wants to try to get as many victims as possible to come to the trial. Then a group session will be filmed followed by filming of individual stories. So, if you are in Montana or have friends there, please ask them to participate. January 5-6, 2016.
Bill Windsor has been suspended from Facebook for 30 days for publishing something that he didn’t publish. So, for all the news, come here.
Image copyright tenthamendmentcenter.com
For a quick update on Bill Windsor’s saga and his trial, see this summary on LawlessAmerica.com.
If you want to reach Bill Windsor, his home address is 5013 S Louise Ave #1134, Sioux Falls, SD 57108. That mail gets forwarded to him once a week. His email is Pro-Se-1@outlook.com . His phone is currently confidential, but it is not answered; messages are checked by dialing in to Verizon from a state far, far away, and Bill receives an email with the name, number, and one sentence summary of each message.
For the Lawless America videos, see www.YouTube.com/lawlessamerica. Bill Windsor’s Facebook page is www.facebook.com/billwindsor1 Bill Windsor’s Twitter account is www.twitter.com/lawlessamerica. And click here for the Lawless America Facebook page that has just magically reappeared.
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