William M. Windsor
110 E Center Street #1213
Madison, SD 57042
Telephone: 770-578-1094
bill@billwindsor.com
MONTANA FOURTH JUDICIAL DISTRICT COURT
MISSOULA COUNTY
State of Montana,
Plaintiff,
v.
William Michael Windsor,
Defendant.
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Dept. No. 3
Cause No. DC-14-509
BRIEF ON VIOLATION OF
CONSTITUTIONAL RIGHTS AND
UNCONSTITUTIONAL STATUTES
COMES NOW William M. Windsor (“Windsor”) who files this “Brief on
Constitutional Rights and Unconstitutional Statutes,” and shows the Court as
follows:
INTRODUCTION
1.
William M. Windsor has raised Constitutional issues in multiple
motions to dismiss. The State has responded to say that he did not adequately
present arguments and support for this position. Rather than file the same
information in multiple replies, Windsor is filing this one Brief and referencing it
in the replies. This Court is asked to note that the Montana Supreme Court
(“MSC”) did not address or rule on these Constitutional issues.
MONTANA STATUTES AND CASE LAW VIOLATE THE
CONSTITUTIONAL RIGHT TO FREEDOM OF SPEECH
2.
Freedom of speech and press enjoy a near-sacred position in our
society. Just not in Missoula and Helena Montana.
3.
The First Amendment to the U.S. Constitution provides:
“Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or
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of the press; or the right of the people peaceably to assemble, and to petition
the Government for a redress of grievances.”
4.
Article 2 § 7 of the Montana Constitution equally protects Freedom of
Speech.
“The primary purpose of the First Amendment to the United States
Constitution is to encourage and protect an ‘unfettered interchange of ideas
for the bringing about of political and social changes. . . .’ New York Times
Company v. Sullivan (1964), 376 U.S. 254, 269, 84 S.Ct. 710, 720, 11
L.Ed.2d 686, 700. See Dorwart v. Caraway, 2002 MT 240, 312 Mont. 1, 58
P.3d 128.)
5.
Americans can’t say ANYTHING, but there is very little that is
restricted, except in Missoula and Helena Montana.
“There are certain well-defined and narrowly limited classes of speech, the
prevention and punishment of which have never been thought to raise any
Constitutional problems. These include the lewd and obscene, the profane,
the libelous, and the insulting or ‘fighting’ words-those which by their very
utterance inflict injury or tend to incite an immediate breach of the peace. It
has been well observed that such utterances are no essential part of any
exposition of ideas.” (State v. Nye, 283 Mont. 505 at 512, 943 P.2d 96 at 101
(Mont. 07/23/1997).)
6.
Freedom of speech is so universally recognized that it seems silly to
spend time and space listing cases. Gitlow v. New York, 268 U.S. 652 (1925): The
provisions of the First Amendment that protect the freedom of speech and the
freedom of the press apply to the governments of the states through the Due
Process Clause of the Fourteenth Amendment. Joseph Burstyn, Inc. v. Wilson,
343 U.S. 495 (1952): Motion pictures, as a form of artistic expression, are
protected by the First Amendment. Brandenburg v. Ohio, 395 U.S. 444 (1969):
The mere advocacy of the use of force or of violation of the law is protected by the
First Amendment. Only inciting others to take direct and immediate unlawful
action is without Constitutional protection. Cohen v. California, 403 U.S. 15
2
(1971): The First Amendment prohibits the states from making the public display
of a single four-letter expletive a criminal offense without a more specific and
compelling reason than a general tendency to disturb the peace. Hustler Magazine
v. Falwell, 485 U.S. 46 (1988): Parodies of public figures, including those intended
to cause emotional distress, are protected by the First Amendment.
7.
Windsor has been charged with five crimes, and the alleged acts are
all protected by Freedom of Speech.
8.
MCA Title 40 Chapter 15 and MCA 46-5-626 violate the right to
freedom of speech and are thus unconstitutional. No one is safe to speak in
Montana. If you speak a lot, it could get you life in the Montana State Prison.
MONTANA STATUTES AND THE EX PARTE TEMPORARY ORDER
OF PROTECTION (“EX PARTE TOP”) VIOLATE THE
CONSTITUTIONAL RESTRICTIONS ON FREEDOM OF THE PRESS
9.
The Free Press Clause of the First Amendment protects the right of
individuals to express themselves through publication and dissemination of
information, ideas, and opinions without interference, constraint, or prosecution by
the government. (“First Amendment: An Overview,” Wex Legal Dictionary /
Encyclopedia. Legal Information Institute of the Cornell University; McConnell,
Michael W. (November 2013), “Reconsidering Citizens United as a Press Clause
Case,” The Yale Law Journal, 123 2013-2014 (2 November 2013 Pages 266-529).
10.
This right was described in Branzburg v. Hayes as “a fundamental
personal right” that is not confined to newspapers and periodicals. (408 U.S. 665
(1972).) In Lovell v. City of Griffin, 303 U.S. 444 (1938), Chief Justice Charles
Evans Hughes defined “press” as “every sort of publication which affords a vehicle
of information and opinion.” (Lovell, at 452.) This right has been extended to
media including newspapers, books, plays, movies, and video games. (Adam
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Liptak (June 27, 2011). “Justices Reject Ban on Violent Video Games for
Children.” The New York Times).
11.
Judge John W. Larson wanted to pretend that Windsor was not a
member of the press, despite a career in radio, television, and magazine publishing.
Windsor’s website, LawlessAmerica.com, states on the top of every page “Lawless
America: Documentary Films, Magazine, Radio, TV.” But the Ninth Circuit has
made it clear that Windsor has Freedom of the Press First Amendment protection
merely from blogging. So, call him a blogger.
12.
Windsor is a member of the press. He publishes an online magazine,
publishes news videos, and has produced and directed a documentary film and the
pilot for a proposed weekly television show. When the EX PARTE TOP was
issued in the underlying case, Windsor was working as a member of the press. His
filming was registered with the Montana Film Commission, the City of Missoula,
and the University of Montana. And he was publishing and blogging.
13.
There was no admissible evidence in the record to contradict that
Windsor is a member of the press. In fact, the only mention in the Sean Boushie
evidence in the record in the Missoula Municipal Court (“MMC”) says that
Windsor “claims to be making a documentary….” [MSC, DA-13-0785,
Appellant’s Brief, Exhibit #1 P.9, ¶1.] The record proves that Windsor is a
member of the press. [MSC, DA-13-0785, Appellant’s Brief, Exhibit #3 – Exhibit
#131 thereto, P. 4, 5; Exhibit #3 P.5, ¶15; Exhibit #22, ¶¶134,160,166,167,168 and
exhibits thereto; Exhibit#24, ¶¶134,160,166,167,168 and exhibits thereto.]
14.
The Ninth Circuit held in Obsidian Finance Group, LLC and Kevin
D. Padrick v. Crystal Cox, 12-35238 (January 17, 2014) that First Amendment
Freedom of the Press protection is not limited to cases with institutional media
defendants. The Ninth Circuit held that a blogger is entitled to the same free
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speech protections as a traditional journalist. The court essentially said journalists
and bloggers are one and the same when it comes to the First Amendment.
15.
The Obsidian v. Cox case is relevant to the instant matter for another
reason. On November 18, 2011, there was a federal court hearing in Obsidian v.
Cox regarding excluding Sean Boushie from court proceedings and from the
federal courtroom and building where the Cox trial would be. Sean Boushie is the
alleged victim in the instant matter. In this hearing, Judge Marco Hernandez
ordered that Sean Boushie was not allowed in the courthouse. Sean Boushie
previously threatened to kill Crystal Cox, and his hatred for Crystal Cox is what
caused him to start cyberstalking and threatening Windsor. Federal Judge Marco
Hernandez said this (Page 4 of this November 18, 2011 Obsidian v. Cox Hearing
Transcript):
“And the reason that issue was important to me is if Mr. Boushie had, in
fact, sent e-mails which were attached to Ms. Cox's information that she
provided to the Court, and if he in fact appears here in an effort to try to
intimidate, I believe that he is in violation of the law and committing a
crime. … Mr. Boushie, should he show up, will not be allowed to sit in my
courtroom. I’m likely to exclude him from the courthouse.”
16.
Every U.S. appeals court that has addressed this issue concluded that
the First Amendment applies equally to the institutional press and individual
speakers. (See Davis v. Schuchat, 510 F.2d 731, 734 n.3 (U.S. Court of Appeals
for DC 1975); Avins v. White, 627 F.2d 637, 649 (U.S. Court of Appeals for the
3rd Circuit 1980); Garcia v. Board of Education, 777 F.2d 1403, 1410 (U.S. Court
of Appeals for the 10th Circuit 1985); In re IBP Confidential Bus. Documents,
797 F.2d 632, 642 (U.S. Court of Appeals for the Eighth Circuit 1986); Flamm v.
American Assoc. of Univ. Women, 201 F.3d 144, 149 (U.S. Court of Appeals for
the 2nd Circuit 2000); Snyder v. Phelps, 580 F.3d 206, 219 n.13 (U.S. Court of
Appeals for the 4th Circuit), affirmed, 131 S. Ct. 1207 (2011); Obsidian Finance
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Group, LLC and Kevin D. Padrick v. Crystal Cox, U.S. Court of Appeals for the
Ninth Circuit, 12-35238 (January 17, 2014).) (See also Lovell v. City of Griffin,
303 U.S. 444, 452 (1938). (See also Von Bulow v. von Bulow, 811 F.2d 136 (2d
Cir. 1987); In re Madden, 151 F. 3d 125, 129 (3d Cir. 1998); Shoen v. Shoen, 5
F.3d 1289, 1295 (9th Cir. 1993); Cusmano v. Microsoft Corp., 162 F.3d 708 (1st
Cir. 1998); Mortgage Specialists, Inc. v. Implode - Explode Heavy Industries,
Inc., 999 A.2d 184 (N.H. 2010).)
“In the U.S. Supreme Court ruling in 1974 in Gertz v. Robert Welch Inc.,
Judge Andrew Hurwitz wrote for the three-judge panel. ‘The protections of
the First Amendment do not turn on whether the defendant was a trained
journalist, formally affiliated with traditional news entities, engaged in
conflict-of-interest disclosure, went beyond just assembling others’ writings
or tried to get both sides of a story.’ (Obsidian Finance Group, LLC and
Kevin D. Padrick v. Crystal Cox, U.S. Court of Appeals for the Ninth
Circuit, 12-35238 (January 17, 2014).)
17.
No matter how you cut it, William M. Windsor is protected by the
Freedom of the Press clause of the First Amendment. Therefore, statutes that the
State is using to claim Windsor committed crimes by publishing the words “Sean
Boushie” are unconstitutional and are not applicable in this matter.
18.
MCA 40-15-201, MCA 40-15-204, and MCA 45-5-626 must be
declared unconstitutional, and the EX PARTE TOP must be declared void.
MONTANA STATUTES AND THE EX PARTE TOP
VIOLATE THE CONSTITUTIONAL RESTRICTIONS ON
PRIOR RESTRAINT OF SPEECH
19.
The Prior Restraint Doctrine is a doctrine that has evolved concerning
First Amendment intrusions by governmental entities. The prohibition against
prior restraint derives from the First Amendment to the U.S. Constitution, which
provides: “Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or of the
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press; or the right of the people peaceably to assemble, and to petition the
government for a redress of grievances.”
20.
In short, the doctrine holds that the government may not prevent in
advance the exercise of a constitutionally-reserved right. If prior restraint is
allowed, it must be narrowly tailored to achieve a compelling government purpose.
Prior restraints have often been successfully challenged. See New York Times, Co.
v. United States, 403 U.S. 713 (1971); CBS, Inc. v. Young, 522 F.2d 234 (6th Cir.
1975); CBS, Inc. v U.S. District Court, 729 F.2d 1174 (9th Cir. 1984); U.S. v.
Noriega, 917 F.2d 1543 (11th Cir. 1990).
“There is heavy presumption that any prior restraint on publication of
information or ideas is constitutionally invalid. This doctrine has been firmly
established for 60 years, since the U.S. Supreme Court decided Near v.
Minnesota, 283 U.S. 697 (1931). Of all the protection accorded to the
media under the First Amendment, the prohibition against prior restraint is
perhaps the most secure. Chief Justice Warren Burger, in delivering the
opinion in Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976), reviewed
prior decisions of the Court and concluded that: The thread running through
all these cases is that prior restraints on speech and publication are the most
serious and least tolerable infringement on First Amendment rights. A prior
restraint . . . has an immediate and irreversible sanction. If it can be said that
a threat of criminal or civil sanctions after publication ‘chills’ speech, prior
restraint ‘freezes’ it at least for the time.
“Any system of prior restraints of expression comes to this Court bearing a
heavy presumption against its constitutional validity.” (Bantam Books v.
Sullivan, 372 U.S. 58, 70 (1963).)
Government ‘thus carries a heavy burden of showing justification for the
imposition of such a restraint.’ (Organization for a Better Austin v. Keefe,
402 U.S. 415, 419 (1971); New York Times Co. v. United States, 403 U.S.
713, 714 (1971).)
“Temporary restraining orders and permanent injunctions - i.e., court orders
that actually forbid speech activities - are classic examples of prior
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restraints. Alexander v. United States, 509 U.S. 544, 550, 113 S.Ct. 2766,
2771 (1993) (quotation omitted).
21.
The MSC recognizes the unconstitutionality of Prior Restraint.
“District Court failed to properly evaluate whether the terms of the
injunction constituted an unconstitutional prior restraint on free speech under
Nebraska Press Assn. v. Stuart, 427 U.S. 539, 96 S.Ct. 2791 (1976) and
Kuiper v. Dist. Ct. of the Eighth Jud. Dist., 193 Mont. 452, 632 P.2d 694
(1981). 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. (Kuiper v. District
Court, 193 Mont. at 458-59, 632 P.2d at 698 (citing Neb. Press, 427 U.S.
539, 96 S.Ct. 2791; In re Halkin, 598 F.2d 176 (D.C. Cir. 1979).)
22.
In the instant case, there were no findings made by Judge Sam Warren
of the MMC. There was no harm. The EX PARTE TOP was not narrowly-drawn
or precise, and there was no basis whatsoever to deny Freedom of Speech.
23.
The MSC addressed such issues in St. James Healthcare. The Court
determined that the injunction was overbroad, constituted a Prior Restraint, and
thus violated the First Amendment.
“ ‘[P]rior restraints on speech . . . are the most serious and the least tolerable
infringement on First Amendment rights.’ (Nebraska Press Assn v. Stuart
(1976) 427 U.S. 539, 559.) ‘Orders enjoining the right to speak on a
particular topic are disfavored and presumptively invalid. (Id. at p. 558.)
However, courts have long recognized a prior restraint may be permissible
under certain limited circumstances.’ (Aguilar v. Avis Rent A Car System,
Inc. (1999) 21 Cal.4th 121, 143 (Aguilar); id. at p. 167 (conc. opn. of
Werdegar, J.); see Hobbs v. County of Westchester (2005) 397 F.3d 133,
149.)
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“To establish a valid prior restraint under the federal Constitution, a
proponent has the heavy burden to show the countervailing interest is
compelling, the prior restraint is necessary and would be effective in
promoting this interest, and less extreme measures are unavailable. (See
Hobbs v. County of Westchester, supra, 397 F.3d at p. 149; see also
Nebraska Press Assn v. Stuart, supra, 427 U.S. at pp. 562-568.) Any
permissible order restraining future speech, moreover, ‘must be couched in
the narrowest terms that will accomplish the pin-pointed objective permitted
by constitutional mandate and the essential needs of the public order. . . .
[T]he State may not employ 'means that broadly stifle fundamental personal
liberties when the end can be more narrowly achieved.’ (Carroll v. Princess
Anne (1968) 393 U.S. 175, 183-184.)
“…an injunction barring all speech might constitute an unconstitutional prior
restraint, Near v. Minnesota ex rel. Olson, 283 U.S. 697, 75 L. Ed. 1357, 51
S. Ct. 625 (1931), a reasonable place restriction narrowly tailored to serve a
significant state interest does not violate the First Amendment. See Heffron
v. International Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 654,
69 L. Ed. 2d 298, 101 S. Ct. 2559 (1981).
“The Supreme Court first enunciated the doctrine of prior restraint in Near v.
Minnesota ex rel. Olson, 283 U.S. 697, 75 L. Ed. 1357, 51 S. Ct. 625
(1931). In Near, the State successfully obtained a permanent injunction
against an allegedly malicious, scandalous and defamatory newspaper for
violation of a state statute prohibiting such publications. The Court struck
down the statute on the ground that it constituted an impermissible prior
restraint, which the Court characterized as ‘the essence of censorship.’ Near,
at 713. The Court indicated the important distinction between prior restraint
and subsequent punishment, noting that libel laws were the appropriate
means of regulating expression. Near, at 715.
“In Organization for a Better Austin v. Keefe, 402 U.S. 415, 29 L. Ed. 2d 1,
91 S. Ct. 1575 (1971), the Court struck down an injunction which prohibited
publication ‘of any kind’ that criticized the business practices of a real estate
broker. In Keefe, the Court compared the injunction in that case to the statute
in Near, noting that "[h]ere, as in that case, the injunction operates, not to
redress alleged private wrongs, but to suppress, on the basis of previous
publications, distribution of literature 'of any kind' in a city of 18,000."
Keefe, at 418-19.
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“In Police Dep’t v. Mosley, 408 U.S. 92, 95, 33 L. Ed. 2d 212, 92 S. Ct.
2286 (1972), the Supreme Court stated that ‘above all else, the First
Amendment means that government has no power to restrict expression
because of its message, its ideas, its subject matter, or its content.’ (Italics
ours.) Eight years later, in Carey v. Brown, supra, the Court indicated its
willingness to retreat from its absolute ban on content regulation. In
Consolidated Edison Co. v. Public Serv. Comm’n, 447 U.S. 530, 65 L. Ed.
2d 319, 100 S. Ct. 2326 (1980), decided the same year as Carey, the Court
affirmatively stated that ‘[w]here a government restricts the speech of a
private person, the state action may be sustained only if the government can
show that the regulation is a precisely drawn means of serving a compelling
state interest.’ Consolidated Edison, at 540.
“A litany of cases … all phrase the test similarly: content regulation,
including ‘an absolute prohibition on a particular type of expression[,] will
be upheld only if narrowly drawn to accomplish a compelling governmental
interest. United States v. Grace, supra at 177 (citing Perry Educ. Assn, at
46).” (See Carey v. Brown, 447 U.S. 455, 465, 65 L. Ed. 2d 263, 100 S. Ct.
2286 (1980); Consolidated Edison v. Public Serv. Comm, 447 U.S. 530,
540, 65 L. Ed. 2d 319 (1980); Widmar v. Vincent, 454 U.S. 263, 270, 70 L.
Ed. 2d 440 (1981); Perry Educ. Ass'n v. Perry Local Educators, 460 U.S.
37, 45, 74 L. Ed. 2d 794 (1983); Members of City Coun. v. Taxpayers for
Vincent, 466 U.S. 789, 80 L. Ed. 2d 772, 786 (1984).)” (Bering v. Share,
106 Wash. 2d 212, 721 P.2d 918 (Wa. 06/19/1986).)
24.
The Washington Supreme Court did a detailed analysis of Prior
Restraint in a protective order matter in the case of In re Marriage of Suggs, 93
P.3d 161, 152 Wash.2d 74 (Wash. 07/08/2004):
“The United States Supreme Court defines prior restraints as
‘{A}dministrative and judicial orders forbidding certain communications
when issued in advance of the time that such communications are to occur.’
M{elville B.} Nimmer, Nimmer on Freedom of Speech{: A Treatise on the
Theory of the First Amendment} sec. 4.03, p. 4-14 (1984). . . . Temporary
restraining orders and permanent injunctions -- i.e., court orders that actually
forbid speech activities -- are classic examples of prior restraints.
(Alexander v. United States, 509 U.S. 544, 550, 113 S. Ct. 2766, 125 L. Ed.
2d 441 (1993).) This antiharassment order is a prior restraint because it
forbids Suggs’ speech before it occurs; it forbids her from ‘knowingly and
10
willfully making invalid and unsubstantiated allegations or complaints to
third parties which are designed for the purpose of annoying, harassing,
vexing, or otherwise harming Andrew O. Hamilton and for no lawful
purpose.’ CP at 415 (capitalization omitted). [emphasis added.]
“Prior restraints carry a heavy presumption of unconstitutionality. Bantam
Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S. Ct. 631, 9 L. Ed. 2d 584
(1963). In Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S. Ct. 625, 75
L. Ed. 1357 (1931) the United States Supreme Court declared that prior
restraints are permissible only in exceptional cases such as war, obscenity,
and ‘incitements to acts of violence and the overthrow by force of orderly
government.’ 283 U.S. at 716.
“In this sensitive field, the State may not employ ‘means that broadly stifle
fundamental personal liberties when the end can be more narrowly
achieved.’ Shelton v. Tucker, 364 U.S. 479, 488{,81 S. Ct. 247, 5 L. Ed. 2d
231 (1960)}. ...
“See also Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 559, 95
S. Ct. 1239, 43 L. Ed. 2d 448 (1975) (‘It is always difficult to know in
advance what an individual will say, and the line between legitimate and
illegitimate speech is often so finely drawn that the risks of freewheeling
censorship are formidable.’).
“This antiharassment order very generally forbids Suggs from ‘knowingly
and willfully making invalid and unsubstantiated allegations or complaints
to third parties which are designed for the purpose of annoying, harassing,
vexing, or otherwise harming Andrew O. Hamilton and for no lawful
purpose.’ CP at 415 (capitalization omitted). Our consideration of what type
of speech the order restrains yields three options. Initially, the phrase
‘invalid and unsubstantiated complaints to third parties’ makes it appear as if
the order restrains libelous speech. Id. Second, the phrase ‘designed for the
purpose of annoying, harassing, vexing, or otherwise harming Andrew O.
Hamilton and for no lawful purpose’ makes it appear as if the order restrains
harassing speech. Id. Finally, the combination of the two phrases – ‘invalid
and unsubstantiated complaints to third parties’ and ‘designed for the
purpose of annoying, harassing, vexing, or otherwise harming Andrew O.
Hamilton and for no lawful purpose’ -- makes it appear as if the order
restrains ‘harassment via libel,’ a unique hybrid of both harassing and
libelous speech. Id.
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“This confusion leads us to conclude that the antiharassment order is an
unconstitutional prior restraint on speech because it lacks the specificity
demanded by the United States Supreme Court for prior restraint on
unprotected speech. Indefinite wording is impermissible when the Court has
repeatedly stated that the line between protected and unprotected speech is
very fine. Such wording leaves us unable to ascertain what speech the order
actually prohibits. Moreover, it leaves Suggs with an order chilling all of
her speech about Hamilton because it is unclear what she can and
cannot say. Chilling is intolerable in the first amendment context and is
exacerbated by the fact that many of the incidents that Hamilton based his
antiharassment order on pertain to the efforts of Suggs and her husband to
address what they perceive is Hamilton's harassment. [emphasis added.]
“This antiharassment order does not have … specificity. The order’s ‘invalid
and unsubstantiated’ language is particularly problematic in this context
because what may appear valid and substantiated to Suggs may
ultimately be found invalid and unsubstantiated by a court. Id. Fearful
of what allegations may or may not ultimately be deemed invalid and
unsubstantiated, Suggs may be hesitant to assert any allegations,
including those she deems truthful. As a result, even her protected
speech would be chilled. … “We find that the antiharassment order is an
unconstitutional prior restraint on speech. We reverse the Court of Appeals
and vacate the order.” [emphasis added.]
25.
In this matter, the State claims Windsor was restricted (on an ex parte
basis) for 546 days from publishing the words “Sean Boushie;” publishing legal
documents online that contained “Sean Boushie;” sending a Tweet that contained
“Sean Boushie;” publishing on a website about “Sean Boushie;” and sending any
communications to University of Montana attorneys.
26.
Each of the five charges constitutes a Prior Restraint in violation of
the First Amendment to the U.S. Constitution and Article II Section 7 of the
Montana Constitution based upon MCA Title 40 Chapter 15 and MCA 45-5-626.
27.
The EX PARTE TOP was in violation of Prior Restraint if it says
these are restricted acts (which is what the State claims).
12
28.
It’s like saying, “we don’t know what you’re going to publish, but you
can’t.” And to make matters even more outrageous, Windsor has never published
anything false or defamatory about Sean Boushie. Windsor had never spoken with
Sean Boushie, had never called him, had never seen him in person, had never
emailed him anything but cease and desist notices. Never harassed him, never did
anything but try to get him to stop the harassment and threats, and simply reported
totally accurately about the wrongdoing of Sean Boushie and the University of
Montana. The crime in the instant matter is the many counts of perjury by Sean
Boushie and obstruction of justice, misprision of felonies, and other crimes by the
prosecutors and judges.
29.
MCA 45-5-626 must be declared unconstitutional. It is clearly
unconstitutional in allowing State prosecutors to charge Windsor with crimes for
publishing a person’s name, publishing about a person, Tweeting a name, and
emailing an attorney.
30.
MCA Title 40 Chapter 15 must be declared unconstitutional since
it is being interpreted by prosecutors and judges to deny freedom of speech by
claiming legally-required mail violates contact provisions of protective orders.
31.
MCA 40-15-115, et. seq. must be declared unconstitutional since it
is being interpreted by prosecutors and judges to make legally-required
communications violate contact provisions of protective orders.
32.
MCA 40-15-201 must be declared unconstitutional because it is
allowing Windsor to be criminally prosecuted for exercising the most fundamental
of Constitutional rights. Publishing the name of a human being is Constitutionallyprotected in at least 49 states, but in Montana, it is considered a crime.
33.
The EX PARTE TOP directly restrained Windsor’s media access to
certain sources of information (Sean Boushie, U of M staff). [MSC, DA-13-0785,
13
Appellant’s Brief, Exhibit #2 P. 1 ¶¶ 4, 5, 6; P.2 ¶14.] This constitutes a prior
restraint violating Windsor’s First Amendment rights.
34.
The effect of the EX PARTE TOP has been to stop Windsor from
freedom of speech and press. It suspended his television program and movie.
Windsor cannot contact people, could not finish his TV show or film, was afraid to
publish the name Sean Boushie. Windsor was effectively gagged.
MONTANA STATUTES AND THE EX PARTE TOP
VIOLATE THE DUE PROCESS CLAUSES OF THE CONSTITUTIONS
35.
The 5th and 14th Amendments to the U.S. Constitution contain a due
process clause as does the Montana Constitution, Article II Section 17. The U.S.
Supreme Court interprets the clauses to provide four protections: procedural due
process (in civil and criminal proceedings), substantive due process, a prohibition
against vague laws, and as the vehicle for the incorporation of the Bill of Rights.
36.
The Fifth Amendment provides: “[N]or shall any person… be
deprived of life, liberty, or property, without due process of law….”
37.
Section One of the Fourteenth Amendment provides: “[N]or shall any
State deprive any person of life, liberty, or property, without due process of law…”
38.
Procedural due process, based on principles of “fundamental
fairness,” addresses which legal procedures are required to be followed in state
proceedings. Relevant issues include notice, opportunity for hearing, confrontation
and cross-examination, discovery, basis of decision, and availability of counsel.
Substantive due process, while also based on principles of “fundamental fairness,”
is used to evaluate whether a law can fairly be applied by states at all, regardless of
the procedure followed.
39.
There are SIGNIFICANT fundamental fairness Constitutional
violations in the instant matter. For starters, nothing is fundamentally fair about an
EX PARTE TOP allegedly lasting for 546 days without a hearing. Nothing is
14
fundamentally fair about being charged with five crimes for allegedly Tweeting,
emailing, publishing a man’s name four times, and not giving away your personal
property because a pathological liar wrote on a petition for a TOP that you should.
40.
The most obvious requirement of the Due Process Clause is that states
must afford certain procedures (“due process”) before depriving individuals of
certain interests (“life, liberty, or property”).
41.
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).)
Due process requires notice and the opportunity to be heard before
governmental deprivation of such a liberty interest. Steab v. Luna, 2010 MT
125, ¶ 22, 356 Mont. 372, 233 P.3d 351. (In re Marriage of Sampley, DA
14-0555 (Mont. 05/05/2015).)
42.
William M. Windsor was denied both notice and an opportunity to be
heard for 546 days. The EX PARTE TOP was void because the most fundamental
right of due process was violated. His liberty was taken away on August 23, 2015,
and according to the State, so was his website property.
In Holden v. Hardy, 169 U.S. 366, 389, the necessity of due notice and an
opportunity of being heard is described as among the “immutable principles
of justice which inhere in the very idea of free government which no
member of the Union may disregard.” (See also Galpin v. Page, 18 Wall.
350, 368-369; Ozie Powell v. Alabama, Haywood Patterson v. Same,
Charley Weems and Clarence Norris v. Same, 53 S. Ct. 55, 287 U.S. 45
(U.S. 11/07/1932); Powell v. Alabama, 287 U.S. 45, 68, 53 S.Ct. 55, 64
(1932); United States v. Frazier, No. 01-14680 (11th Cir. 10/15/2004).)
See Anderson National Bank v. Luckett, 321 U.S. 233, 246; Hagar v.
Reclamation District, 111 U.S. 701, 708; and Mr. Justice Bradley, in
defining “due process of law” in Davidson v. New Orleans, 96 U.S. 97, 107,
15
“if found to be suitable or admissible in the special case, it will be adjudged
to be ‘due process of law,’ but if found to be arbitrary, oppressive, and
unjust, it may be declared to be not ‘due process of law.’” (Fong Yue Ting
v. United States. Wong Quan v. United States. Lee Joe v. United States, 13
S. Ct. 1016, 149 U.S. 698 (U.S. 05/15/1893).)
As the Supreme Court noted in Mullane v. Central Hanover Bank & Trust,
Co., “[t]he fundamental requisite of due process of law is the opportunity to
be heard.” 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950)
(quoting Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed.
1363 (1914)).
Indeed, we have stated time and again that reasonable notice of a charge and
an opportunity to be heard in defense before punishment is imposed are
“basic in our system of jurisprudence.” In re Oliver, 333 U.S. 257, 273
(1948). See, e. g., Joint Anti-Fascist Committee v. McGrath, 341 U.S., at
143, 164-165, 171-172, 178, 185 (concurring opinions of Black, Frankfurter,
DOUGLAS, and Jackson, JJ.); Cole v. Arkansas, 333 U.S. 196, 201 (1948);
Sniadach v. Family Finance Corp., 395 U.S. 337 (1969); Morgan v. United
States, 304 U.S. 1, 18 (1938); Grannis v. Ordean, 234 U.S. 385, 394 (1914);
Mullane v. Central Hanover Trust Co., 339 U.S. 306 at 313-314 (1950);
Kleiner v. First National Bank, 751 F.2d 1193 (11th Cir. 01/31/1985).)
A person’s right to reasonable notice of a charge against him, and an
opportunity to be heard in his defense - a right to his day in court - are basic
in our system of jurisprudence; and these rights include, as a minimum, a
right to examine the witnesses against him, to offer testimony, and to be
represented by counsel. (United States v. Frazier, No. 01-14680 (11th Cir.
10/15/2004).) (See also United States v. Owen, 415 F.2d 383 (8 Cir. 1969);
Chernekoff v. United States, (9 Cir. 1955) 219 F.2d 721; United States v.
Cummins, 425 F.2d 646, 649, (8 Cir. 1970); Gonzales v. United States, 348
U.S. 407, 75 S. Ct. 409, 99 L. Ed. 467 (1955).)
43.
Where an individual is facing a deprivation of life, liberty, or
property, procedural due process mandates that he or she is entitled to adequate
notice, a hearing, and a neutral judge.
44.
The EX PARTE TOP is being interpreted to grant Sean Boushie
ownership of one of Windsor’s television show websites. [MSC, DA-13-0785,
16
Appellant’s Brief, Exhibit #2 P.2 ¶14.] This was done without giving Windsor the
opportunity to respond, present evidence, or be heard. This violates due process.
45.
Windsor’s property has been taken from him without the required due
process. This also violates Montana Constitution Article II Section 17.
“Our state constitution also guarantees due process, 1972 Mont. Const., Art.
II, § 17, and equal protection of the laws, Mont. Const., Art. II, § 4.” (Mt’n
States v. Dept. Pub. Serv. 634 P.2d 181, 194 Mont. 277 (Mont. 09/08/1981).
46.
MCA 40-15-201(2) (4) must be declared unconstitutional. It says
“The court may, without requiring prior notice to the respondent, issue an
immediate temporary order of protection for up to 20 days....” But prosecutors and
the courts are interpreting this clause to mean that a TOP is not limited to 20 days.
In this case, the State says the EX PARTE TOP was valid for 546 days. This is a
gross violation of due process and infringement of Constitutional rights.
47.
MCA 40-15-202(1) must be declared unconstitutional. It says “A
hearing must be conducted within 20 days from the date that the court issues a
temporary order of protection.” Prosecutors and courts are interpreting this to
mean it allows the Constitutional right to due process to be violated. Without
notice or the opportunity to be heard, they are saying the EX PARTE TOP was
valid for 546 days, and they are charging felonies for violations. This statute
claims to recognize the due process issues involved with an ex parte TOP, but this
right was obliterated in the instant case. The necessity of immediate appellate
review of orders restraining the exercise of First Amendment rights was
emphasized in National Socialist Party v. Village of Skokie, 432 U.S. 43 (1977).
A “restraining order” is distinguishable from an “injunction,” in that a
restraining order is intended only as a restraint upon the defendant until the
propriety of the granting of an injunction, temporary or perpetual, can be
determined, and it does no more than restrain the proceedings until such
determination; such an order is limited in its operation, and extends only to
such reasonable time as may be necessary to have a hearing on an order to
17
show cause why an injunction should not issue. (See Wetzstein v. Boston &
M. Consol. Copper & Silver Min. Co., 25 Mont. 135, 63 P. 1043, 1044;
Guardian Life Ins. v. Bd. of Equal., 335 P.2d 310, 134 Mont. 526 (Mont.
02/03/1959); Maloney v. King, 25 Mont. 256, 64 P. 668; State ex rel.
Rankin v. Martin, 65 Mont. 323, 211 P. 210; Pack v. Carter, 9 Cir., 1915,
223 F. 638; State ex rel. Public Service Commission v. District Court, 103
Mont. 563, 63 P.2d 1032.)
48.
In State Ex Rel. Cook v. District Court Et Al, the MSC recognized
that a temporary restraining order, which is comparable to a TOP, becomes void
after a reasonable time. Clearly the EX PARTE TOP was void.
“Hence, treating the order as a temporary restraining order, it was effective
to preserve the status quo for a reasonable time necessary to enable notice to
be given for a hearing… but it could not be effective… without notice or
hearing. After the lapse of a reasonable time the restraining order had spent
its force, the same as if an order to show cause had issued and neither party
appeared at the time fixed for hearing. (Compare Ex parte Grimes, 20 Okla.
446, 94 P. 668.) To the extent that the order attempted to restrain
beyond a reasonable time it was void for want of jurisdiction. The
alleged contempt was committed, if at all, nearly five years after the
injunction was issued and long after its efficacy as a restraining order had
ceased.” (State Ex Rel. Cook v. District Court Et Al., 69 P.2d 746, 105
Mont. 72 (Mont. 06/16/1937).)
49.
MCA 40-15-204(7) must be declared unconstitutional. It says “An
amendment to a temporary order of protection or to an order of protection is
effective only after it has been served in writing on the opposing party.”
Prosecutors and courts are interpreting this to mean it allows the Constitutional
right to due process to be violated by claiming personal service is not required.
50.
MCA 40-15-204(9) must be declared unconstitutional. It requires a
precise statement to be on all protective orders. Prosecutors and courts are
interpreting this to mean it allows the Constitutional right to due process to be
violated by claiming this notice is not actually a requirement. They are also
claiming that orders may be amended by courts lacking jurisdiction.
18
51.
MCA 40-15-302 must be declared unconstitutional. Prosecutors
and courts are interpreting this to mean it allows the Constitutional right to due
process to be violated by allowing an ex parte TOP to remain in effect indefinitely
with the accused never being allowed the opportunity to be heard.
52.
MCA 40-15-204(7) must be declared unconstitutional. It says “An
amendment to a temporary order of protection or to an order of protection is
effective only after it has been served in writing on the opposing party.”
Prosecutors and courts are interpreting this to mean it allows the Constitutional
right to due process to be violated by claiming personal service is not required.
53.
MCA 40-15-201(2)(j) must be declared unconstitutional. It allows
“directing other relief considered necessary to provide for the safety and welfare of
the petitioner or other designated family member.” Montana prosecutors and
courts are using this clause to claim that Constitutional rights may be made crimes.
54.
MCA 40-15-202(1) must be declared unconstitutional. It says “A
hearing must be conducted within 20 days from the date that the court issues a
temporary order of protection.” Prosecutors and courts are interpreting this to
mean it allows the Constitutional right to due process to be violated. Without
notice or the opportunity to be heard, they are saying the EX PARTE TOP was
valid for 546 days, and they are charging felonies for violations. This clause is
overbroad.
55.
Windsor was also denied discovery that was needed under the
exceptional circumstances in this case. But the courts denied this right. This is
unconstitutional as a denial of the rights to due process. The courts have cited
Lear v. Jamrogowicz as authority that discovery is not allowed in orders of
protection matters. The denial of discovery violates Montana Constitution Section
24 - Rights of the accused and Montana Constitution Section 16 - The
administration of justice and the due process clause of the U.S. Constitution.
19
Windsor has been denied due process as his motions were ignored. Motions
completely and totally ignored are shown in MSC Appeal No. DA-13-0785,
Appellant’s Brief, Exhibit #’s 3, 15, 16-B, 17, 22, 24.
MONTANA STATUTES AND THE EX PARTE TOP
VIOLATE THE VAGUENESS DOCTRINE OF THE CONSTITUTIONAL
DUE PROCESS GUARANTEE
56.
The vagueness doctrine, an aspect of the due process requirement of
notice, holds that a law is facially invalid if persons of “common intelligence must
necessarily guess as at its meaning and differ as to its application.” The Court has
indicated that a higher degree of clarity is demanded when the law in question
threatens fundamental First Amendment Rights. (See Coates v. City of Cincinnati,
402 U.S. 611 (1971); Keyishian, et al v. Board of Regents of the University of the
State of New York, et al, 385 U.S. 589 (1967).)
57.
Unconstitutional vagueness is a concept derived from the due process
doctrine found in the Fifth and Fourteenth Amendments to the United States
Constitution. No one must risk criminal prosecution merely because he or she
cannot reasonably understand what conduct is prohibited under the law.
58.
A statute is void for vagueness and unenforceable if it is too vague for
the average citizen to understand. There are several reasons a statute may be
considered vague; in general, a statute might be called void for vagueness reasons
when an average citizen cannot generally determine what persons are regulated,
what conduct is prohibited, or what punishment may be imposed. Criminal laws
that do not state explicitly and definitely what conduct is punishable for example
are void for vagueness.
“As generally stated, the void-for-vagueness doctrine requires that a penal
statute define the criminal offense with sufficient definiteness that ordinary
people can understand what conduct is prohibited and in a manner that does
not encourage arbitrary and discriminatory enforcement. Although the
20
doctrine focuses both on actual notice to citizens and arbitrary enforcement,
we have recognized recently that the more important aspect of the vagueness
doctrine ‘is not actual notice, but the other principle element of the doctrine-the requirement that a legislature establish minimal guidelines to govern
law enforcement.’ Where the legislature fails to provide such minimal
guidelines, a criminal statute may permit ‘a standardless sweep [that] allows
policemen, prosecutors, and juries to pursue their personal predilections.’
Kolender v. Lawson (1983), 461 U.S. 352, 357-58, 103 S. Ct. 1855, 1858,
75 L. Ed. 2d 903, 909 (citations omitted; alteration in original). (See also
Grayned v. City of Rockford, 408 U.S. at 108-09, 92 S. Ct. at 2298-99, 33 L.
Ed. 2d at 227-28.)
“In Montana, we have established the following test for whether a statute is
void on its face for vagueness: ‘A statute is void on its face if it fails to give
a person of ordinary intelligence fair notice that his contemplated conduct is
forbidden.’ State v. Woods, 221 Mont. 17, 22, 716 P.2d 624, 627 (1986);
Joslyn, 208 Mont. at 505, 678 P.2d at 668. No person should be required to
speculate as to whether his contemplated course of action may be subject to
criminal penalties. State v. Conrad, 197 Mont. 406, 412, 643 P.2d 239, 243
(1982). State v. Crisp (1991), 249 Mont. 199, 202, 814 P.2d 981, 983.
“It is a basic principle of due process that an enactment is void for vagueness
if its prohibitions are not clearly defined. Vague laws offend several
important values. First, because we assume that man is free to steer between
lawful and unlawful conduct, we insist that laws give the person of ordinary
intelligence a reasonable opportunity to know what is prohibited, so that he
may act accordingly. Vague laws may trap the innocent by not providing fair
warning. Second, if arbitrary and discriminatory enforcement is to be
prevented, laws must provide explicit standards for those who apply them. A
vague law impermissibly delegates basic policy matters to policemen,
Judges, and juries for resolution on an ad hoc and subjective basis, with the
attendant dangers of arbitrary and discriminatory application.” (State v.
Stanko, 292 Mont. 192, 974 P.2d 1132, 1998 MT 321 (Mont. 12/23/1998).)
“The U.S. Supreme Court gave the following explanation of the vagueness
doctrine, as it pertains to the Due Process Clause of the United States
Constitution: The basic principle that a criminal statute must give fair
warning of the conduct that it makes a crime has often been recognized by
this Court. As was said in United States v. Harriss, 347 U.S. 612, 617, 74
S.Ct. 808, 811, 98 L.Ed. 989, ‘The constitutional requirement of definiteness
21
is violated by a criminal statute that fails to give a person of ordinary
intelligence fair notice that his contemplated conduct is forbidden by the
statute. The underlying principle is that no man shall be held criminally
responsible for conduct which he could not reasonably understand to be
proscribed.’ (Bouie v. City of Columbia (1964), 378 U.S. 347, 84 S.Ct.
1697, 12 L.Ed.2d 894.)
59.
MCA Title 40 Chapter 15 and MCA 45-5-626 must be declared
unconstitutional due to violation of due process as vague. NONE of the alleged
violations that Windsor has been charged with violate MCA Title 40 Chapter 15,
and NONE of the alleged violations would constitute stalking under Texas or
Montana law. MCA 45-5-626 is linked to MCA Title 40 Chapter 15, which is
linked to the stalking statute, MCA 45-5-220. Freedom of speech is recognized as
one of the most fundamental rights enjoyed by all Americans. MCA 45-5-220 says
that Constitutionally-protected acts do not constitute stalking. A TOP is
unconstitutional if it purports to deny Constitutionally-protected rights. So, to
understand what crimes he might be charged with, Windsor had to refer to the EX
PARTE TOP, which says it is based on MCA 40-15-201, which says it exists to
prohibit stalking, and the stalking statute says it does not prohibit Constitutionallyprotected acts. So, 45-5-626 does not provide fair warning that publishing a man’s
name, sending an email, or having a website would be considered crimes. In
addition, nothing in MCA 45-5-626 says that an EX PARTE TOP that says a
hearing MUST BE held within 20 days could be considered valid when no hearing
was ever held. MCA 45-5-626 states that it applies to “an order of protection
under Title 40, chapter 15.” To understand what is prohibited, one must refer to
MCA Title 40 Chapter 15. It states that a TOP is good for 20 days and a hearing
MUST be held. The statute is clearly vague if the terms of Title 40 Chapter 15
don’t actually apply.
22
60.
The purpose of the Montana protective order statutes is set out at
MCA 40-15-101: “The purpose of this chapter is to promote safety and protection
of all victims of partner and family member assault, victims of sexual assault, and
victims of stalking.” Windsor submits that his due process rights have been
violated as he is charged for doing simple, Constitutionally-protected things that do
not violate the stalking or protective order statutes, or the purpose of the statutes.
61.
The EX PARTE TOP must be declared void due to vagueness. None
of the charges against Windsor appear to be restricted, but Windsor faces seven
years in the Montana State Prison.
62.
MCA 40-15-201 and MCA 40-15-202 must be declared void for
vagueness. This law says a court may issue an immediate temporary order of
protection for up to 20 days. MCA 40-15-202 provides: “A hearing must be
conducted within 20 days from the date that the court issues a temporary order of
protection.” But in the instant matter, the EX PARTE TOP has been said to have
been valid for 546 days, and no hearing was ever held. These statutes do not give a
person of ordinary intelligence fair notice that actions taken months and years after
the TOP was issued could be considered crimes. These statutes do not give a
person of ordinary intelligence fair notice that a TOP could remain effective if a
hearing was never held.
MONTANA STATUTES AND THE EX PARTE TOP
VIOLATE THE DOCTRINE OF SUBSTANTIAL OVERBREADTH IN THE
CONSTITUTIONAL DUE PROCESS GUARANTEE
63.
The Supreme Court has developed the doctrine of substantial
overbreadth to deal with facial challenges to due process. The doctrine recognizes
that almost any law regulating speech, even when the vast majority of prohibited
speech is not protected by the First Amendment, will seem to potentially reach
some speech that is protected by the First Amendment. The precise reach of a
23
statute is sometimes difficult to determine and persons who draft statutes can’t be
expected to anticipate every possible application of a law that must necessary be
written in somewhat general terms. To strike down every law that had even one
potentially impermissible application to protected speech would leave legislators
powerless to deal with what might be serious threats to the public welfare or
safety.
64.
In recognition of the difficulty legislators face, the Supreme Court
announced in Broadrick v Oklahoma, 413 U.S. 601 (1973) that to invalidate a law
on its face it must find “the overbreadth of the statute must not only be real but
substantial as well, judged in relation to the statute's plainly legitimate sweep.”
65.
MCA 40-15-201 and MCA 40-15-204 must be declared
unconstitutional. The overbreadth of these statutes allows judges to deny
fundamental Constitutional rights.
MONTANA STATUTES REGARDING SUCCESSIVE PENALTIES
MUST BE DECLARED UNCONSTITUTIONAL
DUE TO VIOLATIONS OF THE EIGHTH AMENDMENT PROTECTION
AGAINST CRUEL AND UNUSUAL PUNISHMENT
66.
The Eighth Amendment reads: “Excessive bail shall not be required,
nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
67.
It is excessive to charge Windsor or anyone else with felonies on a
“first offense” when the applicable statute purports to make a first offense a
misdemeanor. The charging by the State creates a punishment that is excessive
and defeats the intent of the statute that was designed to have remedial steps. It is
also cruel and unusual punishment to charge Windsor for five alleged violations
over nine months that he knew nothing about.
68.
MCA 45-5-626 seems crystal clear. It requires two convictions
before a third and subsequent offense may be considered a felony.
24
69.
In Montana, the first two convictions for violation of a protective
order are misdemeanors. After that, they are felonies. Windsor has not been
convicted of anything, so all five charges must be treated as misdemeanors.
“in order for there to be a conviction, a sentence must be imposed.” (State v.
Tomaskie, 2007 MT 103, ¶ 12, 337 Mont. 130, ¶ 12, 157 P.3d 691, ¶ 12.)
70.
The protective order statute, MCA Title 40 Chapter 15, was created to
stop a pattern of conduct. Increased penalties for “subsequent offenses” were
developed to provide a deterrent to continued illegal conduct. “Subsequent” is
defined as “occurring or coming later or after.” Charging five violations at one
time is not what the legislature intended. These charges are not subsequent; they
were simultaneous. The charging of all five alleged violations at one time without
notice violates William M. Windsor’s rights against double jeopardy.
71.
“Simultaneous” is defined as “happening at the same time.” The
charging documents erroneously claim Counts II, III, IV, and V were subsequent,
but they were all charged simultaneously.
72.
MCA 46-11-410(2)(e) provides that William M. Windsor cannot be
convicted of more than one offense as the protective order statutes are designed to
prohibit a continuing course of conduct. Windsor may only be charged with one
count of violation of a protective order.
73.
None of the five charges are valid, but it is clear that Montana law and
due process do not allow three of the five simultaneous alleged violations to be
charged as felonies by citing them as subsequent offenses.
74.
MCA 46-1-202(7) defines “conviction” as a judgment or sentence
entered upon a guilty or nolo contendere plea or upon a verdict or finding of guilty
rendered by a legally constituted jury or by a court of competent jurisdiction
authorized to try the case without a jury. This means Windsor is innocent of all
five charges, and his innocence means all charges must be treated as
25
misdemeanors. But, the State and Judge Karen Townsend are claiming this is not
the case. Their position violates the Eighth Amendment.
75.
Presumption of innocence is widely held to follow from the Fifth,
Sixth, and Fourteenth Amendments of the U.S. Constitution, but the State and
Judge Karen Townsend’s charging in this case violates a Constitutional right.
Coffin v. United States, 156 U.S. 432 (1895) established the presumption of
innocence of persons accused of crimes. See also In re Winship, 397 U.S. 358
(1970), a decision that establishes that in a criminal prosecution, every essential
element of the offense must be proved beyond reasonable doubt. See, e.g.,
Apprendi v. New Jersey, 530 U.S. 466, 477 (2000); Sullivan v. Louisiana, 508
U.S. 275, 278 (1993). Every defendant in a criminal action is innocent until
proven guilty, and it is the burden of the State to prove the guilt beyond a
reasonable doubt. State v. Proctor (1969), 153 Mont. 90, 454 P.2d 616
76.
The State’s charges have violated Windsor’s right to be considered
innocent unless proven guilty.
77.
Under MCA 46-11-410(2)(e), Windsor cannot be convicted of more
than one offense if that offense is defined to prohibit a continuing course of
conduct. The term “repeatedly” in the stalking statute is the same as the phrase
“continuing course of conduct” in MCA 46-11-410, so he should have been
charged with one count of violation of a protective order instead of five.
78.
Windsor’s charges of two misdemeanors and three felonies for the
repeated commission of one offense (violation of a protective order) violate the
statutory definition of “same transaction,” as well as the spirit and intent of MCA
45-5-626(3). MCA 46-1-202(23)(b) defines “same transaction” as “conduct
consisting of a series of acts or omissions that are motivated by . . . a common
purpose or plan that results in the repeated commission of the same offense….” By
definition, the term “same transaction” encompasses the repeated commission of
26
one offense. Under MCA 46-11-410(2)(e), a defendant may not be convicted of
more than one offense if “the offense is defined to prohibit a continuing course of
conduct” which a “same transaction” offense plainly does. Moreover, a defendant
may not be convicted of more than one offense if “one offense is included in the
other” (MCA 46-11-410(2)(a), which is the case here because of the definition of
“same transaction.” “A]mbiguity concerning the ambit of criminal statutes should
be resolved in favor of lenity.” Rewis v. United States, 401 U.S. 808, 812, 91 S. Ct.
1056, 1059, 28 L. Ed. 2d 493 (1971) (internal citation omitted). “[W]here there is
ambiguity in a criminal statute, doubts are resolved in favor of the defendant.”
State v. Goodwin, 249 Mont. 1, 23-24, 813 P.2d 953, 967 (1991). The spirit and
intent of MCA 45-5-626(3) must not be ignored. This provision outlines the
penalties associated with conviction of an order of protection for a “first offense,”
and then proceeds to describe the increased punishment for “conviction for a
second offense,” and “conviction for a third or subsequent offense.” The manner in
which the statute is constructed - separating one conviction from another - clearly
suggests that the penalties are to be imposed upon successive convictions and not
simultaneous convictions arising out of “the same transaction.”
79.
Montana statutes were established to permit repetition of
misdemeanors to be charged as felonies to use the higher charge as a deterrent.
Statutes were not intended as a way to sandbag a person who doesn’t even know he
has allegedly committed a misdemeanor and may next be charged with a felony.
There must be notice before escalated penalties may be imposed in the case of
alleged violation of a protective order as the protective order is designed to stop
recurring behavior.
80.
The charging in this case perverts the order of protection process.
27
81.
The Bill of Rights limits punishment to be proportionate to the wrong
punished. The charging in this case violates the Eighth Amendment as it is
excessive to charge Windsor this way.
82.
It is cruel and unusual punishment to charge Windsor for five alleged
violations over nine months that he knew nothing about. And it is cruel and
unusual punishment to charge Windsor with crimes for allegedly tweeting,
publishing a name, sending an email, and owning a website.
83.
Article II Section 25 of the Montana Constitution states: “No person
shall be again put in jeopardy for the same offense previously tried in any
jurisdiction.” But the State is putting Windsor in jeopardy five times for the same
alleged offense. The Fifth Amendment to the U.S. Constitution provides the same
protection. “[N]or shall any person be subject for the same offence to be twice put
in jeopardy of life or limb….” (See Brown v. Ohio, 432 U.S. 161 (1977).)
84.
Montana’s correctional and sentencing policy is to protect the public,
reduce crime, and increase the public sense of safety by incarcerating violent
offenders and serious repeat offenders. MCA 46-18-101(2)(b). Similarly,
Montana has a compelling state interest in discouraging repeat offenders through
escalating criminal penalties. (Hulse v. Dep't of Justice, 1998 MT 108, ¶ 34, 289
Mont. 1, ¶ 34, 961 P.2d 75, ¶ 34.)
85.
When the Legislature enacted MCA 45-5-626, it made a distinction
between first-time offenders and repeat offenders that is not an arbitrary distinction
because it fits with Montana’s public policy to discourage repeat offenders and
increase the public’s sense of safety. But since prosecutors and judges are applying
the statute in violation of the Constitution, it must be declared unconstitutional.
86.
There is plenty of authority to declare these statutes unconstitutional.
Marbury v. Madison, 5 US 137: “The Constitution of these United States is the
supreme law of the land. Any law that is repugnant to the Constitution is null and
28
void of law.” Boyd v. U.S., 116 U.S. 616: “The court is to protect against any
encroachment of Constitutionally secured liberties.” Miranda v. Arizona, 384
U.S. 436: “Where rights secured by the Constitution are involved, there can be no
rule making or legislation, which would abrogate them.” Norton v. Shelby
County, 118 U.S. 425: “An unconstitutional act is not law; it confers no rights; it
imposes no duties; affords no protection; it creates no office; it is in legal
contemplation, as inoperative as though it had never been passed.” Miller v. U.S.,
230 F.2d. 486, 489: “The claim and exercise of a Constitutional right cannot be
converted into a crime.”
87.
MCA 45-5-626 must be declared unconstitutional. Prosecutors and
courts are interpreting this to mean it allows cruel and unusual punishment. In the
instant matter, Windsor has been indicted for felony bond jumping in Texas, but he
should have never been charged with a felony.
MONTANA STATUTES MUST BE DECLARED UNCONSTITUTIONAL
DUE TO VIOLATIONS OF THE SECOND AMENDMENT
RIGHT TO KEEP AND BEAR ARMS
88.
The right to keep and bear arms is a fundamental right protected by
the Second Amendment to the United States Constitution, which applies to the
states through the Fourteenth Amendment.
89.
The Second Amendment says: “A well regulated Militia, being
necessary to the security of a free State, the right of the people to keep and bear
Arms shall not be infringed.”
90.
The Second Amendment protects an individual right to possess a
firearm unconnected with service in a militia and to use it for traditionally lawful
purposes such as self-defense within the home. (District of Columbia v. Heller,
554 U.S. 570 (2008).)
29
91.
In McDonald v. Chicago, the U.S. Supreme Court found that the
Second Amendment is incorporated through the Fourteenth Amendment and is
thus enforceable against the states. (McDonald v. Chicago, 561 U.S. 742 (2010).)
92.
The issuance of the EX PARTE TOP denied Windsor’s Constitutional
rights to bear arms. [MSC Appeal # DA-13-0785, Appellant’s Brief, Exhibit #1;
Exhibit #2 P.2, ¶10; Exhibit #22, ¶162; Exhibit #24, ¶162.] This is also a violation
of Montana Constitution Article II Sections 3 and 12.
93.
MCA 40-15-201(f) provides that an ex parte TOP may prohibit the
respondent from possessing or using the firearm used in the assault. MCA 40-15201(j) provides that an ex parte TOP may include other relief considered necessary
to provide for the safety and welfare of the petitioner or other designated family
member. There was no assault in this case. Windsor did not have a gun; Sean
Boushie manufactured that story to get a TOP. The statute allows a gun to be
taken only in an assault, but MCA 40-15-201(j) is being used to deny the right to
bear arms. This is unconstitutional. Sean Boushie and his wife have an arsenal of
weapons and concealed handgun permits. Windsor has nothing.
94.
MCA 40-15-201(j) must be declared unconstitutional.
MCA 40-15-201, MCA 40-15-204, AND THE EX PARTE TOP
MUST BE DECLARED VOID BECAUSE THEY DENY
CONSTITUTIONALLY-PROTECTED RIGHTS
95.
The rights discussed above are all Constitutionally-protected rights,
but the EX PARTE TOP has denied them.
96.
The EX PARTE TOP was issued alleging stalking. MCA 45-5-220
states that stalking does not apply to Constitutionally-protected activity. Yet MCA
Title 40 Chapter 15 authorizes Constitutionally-protected rights to be denied on an
ex parte basis. This violates the First Amendment, the Fifth Amendment, and the
Fourteenth Amendment.
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97.
A statute that denies Constitutionally-protected rights is void, so MCA
40-15-201, MCA 40-15-204, and MCA 45-5-626 are unconstitutional and void.
98.
Windsor also challenges the application of these laws.
WHEREFORE, William M. Windsor prays that the charges against him be
dismissed; and for such other relief as the Court feels is appropriate.
This 29th day of September 2015,
_________________________
William M. Windsor
CERTIFICATE OF SERVICE
I hereby certify that I served the foregoing Brief by email to Jennifer Clark
at jsclark@co.missoula.mt.us and Christopher Daly.
This 30th day of September 2015,
________________________
William M. Windsor
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