Your Get Out of Jail Free Card! Free Sample Pleading Writ of Habeas

Many of you may have already heard about the poor mother, Katina Tengesdal of Fargo North Dakota, who has been jailed for 8 days because she refuses to give up her constitutional right to determine who her child will associate with. Judge Doug Herman has jailed Mrs. Tengesdal for asserting her constitutional rights as defined by both the United States Supreme Court and his own North Dakota State Supreme Court. This is such an appalling abuse of power that we feel compelled to post this open letter to Mrs. Tengesdal and any of her friends and family who may be helping her or her recently appointed public defender attorney. We have provided the Supreme Court opinions, basic argument, and legal process by which she can free herself. Her attorney is not a family law attorney so may be unaware of these opinions. Below you will find the argument and shell of a writ for habeas corpus. This is the legal document that can be filed with the Appellate Court to get them to remove you from jail when falsely imprisoned.

If you want to know more about this you can read the article and see the television news coverage on WDAY News 6 with Kevin Wallevand. You can also learn about it on WDAZ News 8 ABC. And hear more about this today on “The Jay Thomas” radio show from 2-5 p.m. central time.

Mrs. Tengesdal, the information below is a significant part of what your attorney needs to free you from jail. Ask your attorney to file the properly formatted appellate document with your appellate court and make the arguments below with the cited cases. This supports what you are doing and your constitutional right to do so:

[IN APPELLATE COURTS THERe IS TYPICALLY A COVER PAGE REQUIRING SPECIFIC DETAILS OF THE CASE. THERE ARE OFTEN FORMS THAT THE APPELLATE COURT WILL PROVIDE THAT COVER SPECIFIC ADMINISTRATIVE DETAILS REGARDING THE CASE. THIS VARIES FROM STATE TO STATE AND EVEN SOMETIMES FROM APPELLATE DISTRICT TO APPELLATE DISTRICT]

 [IF STILL INCARCERATED THE FILING MUST BE A WRIT OF HABEAS CORPUS, IF NO LONGER INCARCERATED THE FILING MUST BE A WRIT OF MANDAMUS. THIS IS THE RULE IN TEXAS AND IS LIKELY THE RULE IN ALL STATES, HOWEVER, THIS SHOULD BE CONFIRMED THROUGH LOCAL RESEARCH OF APPELLATE CASES]

WRIT OF HABEAS CORPUS

Now comes _________________ , Relator herein, and requests that the Appellate Court release her from confinement at _____________________ , that the Court find the contempt order ___________________________ , void on constitutional grounds, that the underlying order ___________________ granting grandparent visitation be found void, and that the Trial Court be enjoined from further depriving Relator of her fundamental constitutional rights. Relator asserts:

1)            Trial Court abused its discretion and violated Relator’s constitutional right to due process by denying a fundamentally fair process for asserting her rights.

2)            Trial Court abused its discretion and violated Relator’s parental right to make decisions for her minor child.

3)            Trial Court abused its discretion when ordering grandparent visitation.

4)            Trial Court abused its discretion when ordering contempt on its void order

5)            That the Nebraska Statute ___________________ used in this case is unconstitutional on its face and as implemented in this instance.

Relator would show the following in support thereof.

I

Fundamental Liberty Interests

Fit parents have a fundamental constitutional right to determine who their child associates with. State judges cannot normally infringe upon that right even if the judge believes he can make a better decision. See Troxel v. Granville, 530 US 57 – Supreme Court 2000, (As we have explained, the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a “better” decision could be made.)

Under the North Dakota Constitution Article 1 Section 1 and section 12, parent’s rights are of the highest order and constitutionally protected. The North Dakota Supreme Court requires that any challenges to parental rights be reviewed under strict scrutiny. This means that the North Dakota statute must be presumed invalid, that the State must prove a compelling interest before it can intervene in parental rights, further laws governing that intervention must be narrowly tailored to the compelling interest, and the outcome of that intervention must be the least restrictive outcome possible. See Hoff v. Berg, 595 NW 2d 285 – ND: Supreme Court 1999, which is cited by the United States Supreme Court in Troxel v. Granville:

The pursuit of happiness guaranteed by N.D. Const. art. I, § 1, includes “the right to enjoy the domestic relations and the privileges of the family and the home … without restriction or obstruction … except in so far as may be necessary to secure the equal rights of others,” which is protected and insured by the due process clause of N.D. Const. art. I, § 12. State v. Cromwell, 72 N.D. 565, 9 N.W.2d 914, 919 (1943). This Court has often addressed the constitutional nature of parents’ rights in making decisions in the course of raising their children. Parents have a fundamental, natural right to their children which is of constitutional dimension. In re L.F., 1998 ND 129, ¶ 9, 580 N.W.2d 573; Kleingartner v. D.P.A.B., 310 N.W.2d 575, 578 (N.D.1981). The right is paramount. In re R.D.S., 259 N.W.2d 636, 638 (N.D.1977). A parent’s paramount and constitutional right to the custody and companionship of their children is superior to that of any other person. Patzer v. Glaser, 396 N.W.2d 740, 743 (N.D.1986); Hust v. Hust, 295 N.W.2d 316, 318 (N.D.1980); Boeddeker v. Reel, 517 N.W.2d 407, 409 (N.D.1994). “Keeping State intervention in the matter of child rearing to a minimum, consistent with necessity, is essential to the American ideal.” In re R.D.S., 259 N.W.2d at 639.

It is beyond question in this jurisdiction that parents have a fundamental constitutional right to parent their children which is of the highest order…. Only a compelling state interest justifies burdening the parent’s fundamental right to enjoy a relationship with his or her child, and the state must bear the burden of demonstrating the necessity for doing so in this instance.

In re Adoption of K.A.S., 499 N.W.2d 558, 564-65 (N.D.1993).

These cases are grandparent’s rights cases just as this case is and both the United States Supreme Court and the North Dakota Supreme Court have ruled that Judges may not intervene in these instances. The Trial Court therefore abuses its discretion when it finds in contempt and incarcerates ______________ for failing to follow its VOID order granting grandparent visitation.

II

Due Process and Fundamental Fairness

The United States Supreme Court has found that before a Court may incarcerate an individual for contempt, that individual must be afforded fundamentally fair procedures to comply with the due process requirements of the Fourteenth Amendment. In some cases that means that the accused if indigent must be afforded an attorney to defend them. Mrs. __________________ was denied access to an attorney and the procedures provided by the Trial Court failed to reach the minimum standard for a fundamentally fair procedure. Relator was not informed that she had a fundamental constitutional right to make decisions concerning her child.

The Judge in this instance assumed that the Statute in question _______________ was constitutional and that he had authority to find Relator in contempt without first proving the statute constitutional and proving beyond a reasonable doubt that Relator violated a constitutional statute. See Turner v. Rogers, 131 S. Ct. 2507 – Supreme Court 2011, (The record indicates that Turner received neither counsel nor the benefit of alternative procedures like those we have described. He did not receive clear notice that his ability to pay would constitute the critical question in his civil contempt proceeding. No one provided him with a form (or the equivalent) designed to elicit information about his financial circumstances. The court did not find that Turner was able to pay his arrearage, but instead left the relevant “finding” section of the contempt order blank. The court nonetheless found Turner in contempt and ordered him incarcerated. Under these circumstances Turner’s incarceration violated the Due Process Clause.)

Just as in Turner, fundamental fairness is the minimum bar and that bar has not been met in this instance.

When the Trial Court finally got around to appointing a public defender for Relator and scheduled a hearing on her confinement on, ______________date_________ the Trial Court then failed to hold the hearing on the record with Relator present but instead held a closed door meeting with attorneys. At a minimum due process requires the right to be heard on the record, to call witnesses, and to cross examine witnesses. Relator was denied any semblance of due process in these proceedings and remains incarcerated without benefit of a hearing where she is represented by counsel on the record such that the Appellate Court might review the record.

In this instance the Trial Court grossly violates its discretion and acts outside its constitutional authority in holding Relator in contempt and confining her.

III

Conclusion

As a fit parent Relator has every right to determine with whom her child associates and, without proving a compelling state interest to counter her decision that her child will NOT be allowed to visit the grandparents except under supervision. Relator acts completely within her constitutional authority in this instance while the Trial Court acts completely outside of its constitutional authority. For these reasons listed above Relator prays the following:

PRAYER

____NAME____________ , Relator, prays that this writ be in all things granted, that Relator is within her constitutional authority to restrict visitation with grandparents, that the Trial Court is without authority in this instance to intervene in Relators rights, that Relator be immediately released from confinement, and that the contempt order and the underlying order granting grandparent visitation be found void and a nullity.

 

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[CERTIFICATE OF SERVICE]

DISCLAIMER:

[WE ARE NOT ATTORNEYS AND ARE NOT POSTING THIS AS A PROPERLY OR LEGALLY FORMATTED DOCUMENT. THIS IS INTENDED AS RESEARCH THAT IS OF VITAL PUBLIC INTEREST NECESSARY TO STOP JUST THE KIND OF INJUSTICE COMMITTED HERE. THIS IS PROVIDED AS A RESEARCH PRODUCT FOR YOUR ATTORNEY TO USE. THIS IS ALSO A POLITICAL STATEMENT TO JUDGE DOUG HERMAN, LETTING HIM KNOW THAT ABUSES OF POWER CAN AND WILL BE CHALLENGED IN THE PUBLIC FORUM.]