- Wednesday, 25 November 2015 12:00
- William M. Windsor
A Rule 60 motion is used to set aside a void order — an order generated through fraud — an order that has no basis in law.
Rule 60 motions have been filed as many as 60 years after an order was issued, but Judge James A. Haynes couldn’t address the illegality of the August 23, 2013 Ex Parte Temporary Order of Protection, so he simply denied it without justification….
This is a favorite technique of corrupt judges all across America.
Here is Bill Windsor’s Rule 60 Motion:
William M. Windsor (“Windsor”) files a Motion to Set Aside Orders pursuant to MCA Rule 60(b)(4), MCA 3-1-113, and the Court’s inherent powers. This is the Brief in Support.
This Court and its predecessor have issued several orders that are void or invalid. On August 23, 2013, Judge Sam Warren of the Missoula Municipal Court (“MMC”) entered an ex parte temporary order of protection (“EX PARTE TOP”) in Case #OP-2013-00198. The statutory authority to issue a TOP in Montana allows a court to issue a TOP for “up to 20 days.” The EX PARTE TOP in this case was issued for 24 days. The issuing court exceeded its authority, and the order is void or invalid. It must be set aside pursuant to Montana Rules of Civil Procedure (“MRCP”) Rule 60(b)(4) and/or MCA 3-1-113.
On August 21, 2013, Sean Boushie filed an ex parte Petition for Temporary Order of Protection and Hearing (“Petition”) against Windsor in the MMC Case # OP-2013-00198.[OP-2013-00198 DOCKET #1.]
On August 21, 2013, the day Sean Boushie filed his application for a protective order, Windsor filed a University of Montana Police Report against Sean Boushie for stalking. Sean Boushie did not file anything, and Officer Nick Painter of the University of Montana Police advised Windsor that he spoke with Sean Boushie and told him to stay away from him and cease sending him emails or messages. [A true and correct copy of the videos filmed while I was on the University of Montana campus on August 21, 2013 are onhttp://www.youtube.com/lawlessamerica, and are referenced and incorporated herein as if attached hereto.] This was filming an expose story. There was no stalking.
On August 23, 2013, an Ex Parte Temporary Order of Protection (“EX PARTE TOP”) was granted to Sean Boushie by MMC Judge Sam Warren, pursuant to MCA 40-15-201.Judge Sam Warren issued the EX PARTE TOP without even speaking to Sean Boushie, much less Windsor.
The EX PARTE TOP states twice that it expires on 09/16/2013.
On August 23, 2013, the entry on the Docket in MMC Case # OP-2013-00198 reads, “Expiration Days: 24 Expiration Date 9/16/2013.” [OP-2013-00198 DOCKET.]
On August 23, 2013, the Docket in the MMC shows a hearing was scheduled for 09/09/2013 on Order of Protection, as does the EX PARTE TOP. [OP-2013-00198 DOCKET.]
On August 26, 2013, Windsor filed a 24-page sworn Motion for Modification of Temporary Order of Protection in the MMC in OP-2013-00198. This detailed many of the problems with the EX PARTE TOP. This motion was never addressed. In fact, it was withheld from the docket. [OP-2013-00198 DOCKET.]
On August 26, 2013, Windsor filed a 28-page sworn Answer to Petition for Protective Order of Boushie and Sworn Petition for Permanent Order of Protection in the MMC in OP-2013-00198. This detailed many of the problems with the EX PARTE TOP. Windsor swore that the petition contains many counts of perjury and massive hearsay. This motion was never addressed. In fact, it was withheld from the docket. [OP-2013-00198 DOCKET.]
On August 26, 2013, following the filings in the MMC, Windsor appealed the EX PARTE TOP to the District Court (“DC”) pursuant to MCA 40-15-302(1). This created DV-13-969 in the DC. (DV-13-969 DOCKET.) Windsor did not remove the case to the DC.
On October 3, 2014, the State filed an Information charging me with five violations of the EX PARTE TOP. The earliest alleged violation occurred on December 30, 2013, long after the EX PARTE TOP had expired. (See DC-14-509 Docket #s 1-2-3-4-5.]
I. A Court May Relieve a Respondent from an Invalid Order Pursuant to MRCP Rule 60 or, if necessary in the interest of justice, under its
This motion concerns an EX PARTE TOP that was issued on August 23, 2013. The EX PARTE TOP has become the basis for criminal charges against Windsor. But there are fundamental errors in the order that that involve the issuing court’s subject matter jurisdiction and violation of Windsor’s right to due process. For these reasons, this Court should deem the order void or invalid, or vacate the order.
“Voidness is defined in terms of lack of jurisdiction or violation of due process.” United Student Aid Funds, Inc. v. Espinosa, 559 U. S. 130 S. Ct. 1367, 176L. Ed. 2d 158, 170 (2010) (citing Moore’s).
“[A] void judgment is one so affected by a fundamental infirmity that the infirmity may be raised even after the judgment becomes final.” United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 130 S.Ct. 1367, 1377, 176 L.Ed.2d 158 (2010).
In Corban v. Corban, 161 Mont. 93, 96, 504 P.2d 985, 987 (1972), the MSC found that, “lack of jurisdiction over the subject matter can be raised at any time and a court which in fact lacks such jurisdiction cannot acquire it even by consent of the parties.”
This Court has held that an invalid and void order can be attacked in any proceeding where they come into issue. Pennoyer v. Neff, 95 US 714 (1877).
This court has authority to review and correct the infirmities of the order in spite of the passage of time.
A. Rule 60.
First, under MRCP Rule 60, this Court has the authority to declare orders void or invalid.
Rule 60(b)(4) allows a party to seek relief from a final judgment that “is void,” but only in the rare instance where a judgment is premised either on a certain type of jurisdictional error or on a violation of due process that deprives a party of notice or the opportunity to be heard. (United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 261, 130 S.Ct. 1367, 1371, 176 L.Ed.2d 158 (2010).)
MRCP Rule 60(b)(4) allows an order to be set aside because it is void or invalid.
“…the question of the validity of a judgment is a legal one.” (Hicklin v. CSC Logic, Inc., 283 Mont. 298, 301, 940 P.2d 447, 449 (1997); Export Group v. Reef Indus., Inc., 54 F.3d 1466, 1469 (9th Cir. 1995); (In re Guardianship and Conservatorship of Anderson, 218 P.3d 1220, 353 Mont. 139, 2009 MT 344 (Mont. 10/20/2009).)
Windsor must be relieved from this order pursuant to MRCP Rule 60(b)(4). (Elliot v. Piersol, 1 Pet. 328, 340, 26 U.S. 328, 340 (1828).)
B. Inherent Authority
Even if the Court can’t grant the relief requested here under MRCP Rule 60, it can grant the relief under its inherent authority. There exists an age-old and well-established principle that every court has power to do what is necessary for the administration of real and substantial justice.
MCA 3-1-113. Means to carry jurisdiction into effect.When jurisdiction is, by the constitution or any statute, conferred on a court or judicial officer, all the means necessary for the exercise of such jurisdiction are also given. In the exercise of this jurisdiction, if the course of proceeding is not specifically pointed out by this code, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this code.
“…a court could exercise its inherent power only when the established methods for addressing the court’s needs failed or when an emergency arose that was not remedied by the established methods.” (Hillis v. Sullivan (1913), 48 Mont. 320, 137 P. 395.)
“our inherent power and paramount obligation to interpret Montana’s Constitution and to protect the various rights set forth in that document.” (State v. Finley(1996), 276 Mont. 126, 915 P.2d 208.)
The fundamental flaws in the EX PARTE TOP warrant this Court’s exercise of its inherent authority to declare the order void or invalid.
Courts of equity have the inherent power to grant the relief that justice requires. (Tiffany v. Uhde (1950), 123 Mont. 507, 512-13, 216 P.2d 375, 378.)
II. The Temporary Order of Protection was VOID from inception.
Montana courts are authorized to issue an Ex Parte Temporary Order of Protection pursuant to MCA 40-15-201. The statute limits the term of an ex parte TOP as follows:
The court may, without requiring prior notice to the respondent, issue an immediate temporary order of protection for up to 20 days if the court finds, on the basis of the petitioner’s sworn petition or other evidence, that harm may result to the petitioner if an order is not issued before the 20-day period for responding has elapsed. 40-15-201(4), MCA.
In the instant case, the Municipal Court issued a 24 day TOP against Windsor. (DOCKET #1 – August 23, 2013.)
The statute clearly limits a court’s authority to issue a TOP for a period in excess of 20 days. The mandate that the courts adhere strictly to the letter of statutory law is inflexible. InState v. Evert, 93 P.3d 1254, 322 Mont. 105, 2004 MT 178 (Mont. 07/06/2004) the Montana Supreme Court explained:
The laws of the State of Montana are written to ensure that justice is served and the well-being of society and individuals is safe-guarded. Contrary to the County Attorney’s pronouncement to the District Court that “we don’t hold firm to the technicalities of the statute or the Supreme Court rulings,” adherence to the legislative enactments and the decisions of this Court is not a matter of convenience or prosecutorial preference. No court or officer of the court has the prerogative of circumventing or modifying the procedures established by law. Id.
Based upon a plain reading of the unambiguous limitations of MCA 40-15-201 the EX PARTE TOP is an extra-judicial order that exceeded the court’s authority. Such an order cannot be made valid by any court.
Courts are constituted by authority and they cannot go beyond that power delegated to them. If they act beyond that authority, and certainly in contravention of it, their judgments and orders are regarded as nullities. They are not voidable, but simply void, and this even prior to reversal. Vallely v. Northern Fire & Marine Ins. Co., 254 U.S. 348, 41 S.Ct. 116 (1920).
III. Orders issued by the MMC and the DC are void orders and became moot.
If this Court agrees that the EX PARTE TOP had a fundamental flaw and it should be vacated, all other orders related to the order become moot.
The statutory authority to issue a TOP in Montana allows a court to issue a TOP for “up to 20 days.” The EX PARTE TOP in this case was issued for 24 days. The issuing court exceeded its authority, and the order is void or invalid. It must be set aside pursuant to MRCP Rule 60(b)(4), and all other orders become moot.
WHEREFORE, William M. Windsor prays that this Court will order that the EX PARTE TOP was void or invalid and is set aside pursuant to MRCP Rule 60(b)(4) or the Court’s Inherent Authority; and grant such other relief as the Court feels is appropriate.
Submitted this 12th day November, 2015,
William M. Windsor
110 East Center Street #1213, Madison, SD 57042, 770-578-1094, firstname.lastname@example.org