The overthrow of constitutional government is especially poignant in the state’s courts, a relief valve for the pressures in society that builds up from wrongs, crime and injustice.
By David Tulis / NoogaRadio 92.7 FM
Courts are the place God affords society (apart from resort to arms and violence) in which its members find relief from private — and public — injury. In court, grievances are settled, government put in its place, the people’s anger placated, peace restored.
The courts have done exactly what Gov. Bill Lee has done in the executive branch. They have overthrown public order .
Gov. Lee ignored lawful authority in the quarantine statute with its clear limits and has opted instead to base his entire claim of medical control over the population through the emergency law at Tenn. Code Ann. § Title 58, particularly a chapter pertaining to the governor. He avoids reference to lawful police authority over sick people, and turns to vague provisions he claims give him police power over the healthy — over the entire population.
The courts have joined in via Order Regarding Face Coverings No. ADM2020-00428. Chief Justice Jeff Bivins and four colleagues are exercising an authority that slops over the proper limit and scope to impose rules and demands upon the people in Tennessee, upon the citizenry.
The overthrow of lawful authority is evident at several points in the court system’s two-page order insisting that as of Monday all members of the public must wear face coverings — chin diapers and similar devices — to cover their faces. It says everyone in the court system, including judges, must wear the masks.
Judges seize control over county clerks, registers of deeds
A phone call to the administrator of courts in Nashville seeking comment from a spokeswoman was not returned three days later at press time.
The order pretends to have authority well beyond the judiciary and its functions.
The chin diaper rule applies to anyone who shall “enter a courthouse or other building in which court facilities are located.” How does that rule apply to people going to see the register of deeds? The county commission? Jim Coppinger, the mayor? The offices of clerk Bill Knowles?
It is not immediately clear whether these branches of local government realize they have been disestablished by the state judiciary, and that apart from any judicial action by the judges (court case).
The justices say their jurisdictional claims over entire groupings of county buildings “are in addition to those of any applicable executive orders issued by the Governor or authorized local officials. This order applies statewide.”
The breach in Tennessee under CV-19 is described, in another context, by a Reuters investigative report that emerged in three parts starting June 30 describing rampant corruption in the judiciary. The stories are “Thousands of U.S. judges who broke laws or oaths remained on the bench,” “With ‘judges judging judges,’ rogues on the bench have little to fear” and “The long quest to stop a ‘Sugar Daddy’ judge accused of preying on women.” In Tennessee, John Gentry has been fighting since January 2019 to reverse the refusal of the legislature to oversee the courts’ many rotten judges and shut down a useless judicial oversight group.
The CV-19 administrative rules that slop over upon the general public, upon people who are coming to the court for justice and relief from oppression.
Their order cites “the constitutional, statutory, and inherent authority,” and offers four authorities.
No power over citizenry
A review of the four authorities cited in their letter shows no authority over the citizenry and no authority to close the courts. Judge Bivins et al have closed the court system in violation of the state’s supreme law. It says at article 1, section 17,
That all courts shall be open; and every man, for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial, or delay. Suits may be brought against the state in such manner and in such courts as the Legislature may by law direct.
Courts are not open, people are denied remedy “by due course of law,” and “right and justice” are administered amid “denial, or delay.”
Judges will refuse to hear plaintiffs and defendants and bar them at the door of the building if they do not comply with mask and isolation rules. Video is appearing on YouTube of confrontations at the doors of public buildings, where officials deny entry to people with bare faces.
And we are what the law calls the “free people” of Tennessee? Here again is the rule from the high court:
Except as otherwise expressly provided herein, all persons who, for the purpose of conducting court-related business, enter a courthouse or other building in which court facilities are located shall wear a face covering over the nose and mouth. The face covering shall be worn at all times while inside the building.
Men and women, whether accused or accusers, who do not comply cannot get into the building. Members of the press who do not comply cannot get into the building.
People who won’t hide their faces and cannot make their hearings lose by default, or face prosecution if the matter is criminal under the failure to appear law. The closure of the court, therefore, criminalizes people who in good faith show up to the court but who do not get past security.
The 4 ‘authorities’
The judges cite four authorities, and none of them work.
➤ Does the constitution give authority? The judges cite the provision creating the courts.
Tenn. Const. Art. VI, § 1. The judicial power of this State shall be vested in one Supreme Court and in such Circuit, Chancery and other inferior Courts as the Legislature shall from time to time, ordain and establish; in the Judges thereof, and in Justices of the Peace. The Legislature may also vest such jurisdiction in Corporation Courts as may be deemed necessary. Courts to be holden by Justices of the Peace may also be established.
Answer: No. This provision says nothing about power to administer rules over citizens who are not subject to them through the judicial process — through cases themselves. Judicial authority inheres in cases properly brought into the jurisdiction of various courts as judicial matters.
Judicial authority is over that person’s matter before law, not over anything else that person represents, says or does (or wears).
➤ Statutory authority? The judges cite Tenn. Code Ann. §§ 16-3-501 to 16-3-504 that starts out by saying “the supreme court is granted and clothed with general supervisory control over all the inferior courts of the state.” These provisions deal with purely routine administrative matters — having a list of retiree judges as backups, protocols to be established for new judges and judicial temps.
But in statute, also, there is nothing that grants this power over the public and to direct its members to wear or do anything. One rule tends the other way — against any sort of lockdown. The administrator of courts should “[t]ake affirmative and appropriate action to correct or alleviate any condition or situation adversely affecting the administration of justice within the state.” The CV-19 emergency orders themselves are the source of adversity upon justice; it’s not the virus.
The judges try to evoke a possibly mystical or mythical origin of their absolutist power. The code says “this part *** shall constitute a broad conference of full, plenary and discretionary power upon the supreme court” and that this part of the law is “declaratory of the common law as it existed at the time of the adoption of the constitution of Tennessee and of the power inherent in a court of last resort.”
The reference to common law is in favor of the liberty analysis, not of Judge Bivins’ moves.
In Black’s Law Dictionary, 4th ed., “INHERENT POWER. An authority possessed without its being derived from another. A right, ability, or faculty of doing a thing, without receiving that right, ability, or faculty from another. See, also, ‘Power.’”
The court seems to justify its edicts for reasons with the simple frame: “We are the supreme court, which means we’re supreme, and can do whatever we feel compelled to do.”
Indeed, theologically, the court’s power comes from God himself. God ordains government to be judicial ethical, to be a passive body that awaits for wrongs or crimes to rise up in society, so that it might suppress wickedness with the sword and protect the good and innocent. All government, all lawmaking, all politics — are ultimately about courts and the verdict over whether laws and contracts are just. So, yes, the court can claim God himself as their authority.
But the limit in Tennessee, in these authorities, remains, and these authorities cited do not grant the mask power claimed in the directive upon the entirety of public doings in the court buildings.
It has no authority over any of what the constitution calls the “free people” (Tennessee bill of rights, section 24, right to bear arms) who “form[ed] themselves into a free and independent state by the name of the state of Tennessee.” What operates today is State of Tennessee, a corporation distinct from “state of Tennessee.”
The best way to understand how lawful authority operates is this: The authority of the court is over things judicial (cases), just as the governor’s authority is over things executive (agencies).
But we’re not finished; more authority
➤ Third, the court cites itself as authority — an opinion Moore-Pennoyer v. State, 515 S.W.3d 271, 276-77. I’ll omit discussion of this opinion on grounds that it cannot of itself grant an authority, though it discusses existing authority.
➤ Fourth, the justices cite an internal rule or policy at Rule 49: Continuity of Operation Plan for the Tennessee Courts. The concept of “continuity of operations” borrows from plans for emergency government preparatory to an extinction-level cataclysm such as a nuclear holocaust or meteor impact event. Such plans exist for the federal government to shelter the essential actors of federal control in underground bunkers to wait out the disaster and regain control afterward.
Tennessee’s constitution forbids martial (military) law — prohibits a military takeover of the government or the people in the state and does not envision any such event that would abolish democratic government to save it..
The court’s policy at https://www.tncourts.gov/rules/supreme-court/49 provides details the judges omit in their “order regarding face coverings.”
If a “disaster *** incapacitates” appellate courts in Nashville, Knoxville and Jackson, the top judge has authority “to enter an order activating and promulgating a disaster plan.” Provisions would touch on extended deadlines, alternate filing methods, successions of judges are unavailable and means of disseminating court news — all under a 30-day limit.
The law at Tenn. Code Ann. § 28-1-116 says if such an order is entered, statutes of limitations and repose are extended.
Rule 49 deals with continuity of operations, allows the judges to extend deadlines, provide alternative filing methods for core papers and deals with the question of what happens when a disaster affects certain areas or particular counties.
In the definitions are three levels of disaster and for definitions of the term emergency. These details are not used in the Judge Bivins directive. Judge Bivins does not commit to any of these definitions nor does he evoke any of these definitions or determine what level of disturbance the court is operating under today.
I put the definitions below, in a footnote. CV-19 and a flu season are not among them.
Definitions in statute
- 58-2-101. Chapter definitions.
- (5) “Disaster” means any natural, technological, or civil emergency that causes damage of sufficient severity and magnitude to result in a declaration of a state emergency by a county, the governor, or the president of the United States. “Disaster” is identifiable by the severity of resulting damage, as follows:
- (A) “Catastrophic disaster” means a disaster that will require massive state and federal assistance, including immediate military involvement;
- (B) “Major disaster” means a disaster that will likely exceed local capabilities and require a broad range of state and federal assistance; and
- (C) “Minor disaster” means a disaster that is likely to be within the response capabilities of local government and to result in only a minimal need for state or federal assistance; ***
- (7) “Emergency” means an occurrence, or threat thereof, whether natural, technological, or manmade, in war or in peace, that results or may result in substantial injury or harm to the population, or substantial damage to or loss of property; provided, that natural threats may include disease outbreaks and epidemics;
- (17) “Manmade emergency” means an emergency caused by an action against persons or society, including, but not limited to, enemy attack, sabotage, terrorism, civil unrest, or other action impairing the orderly administration of government;
- (19) “Natural emergency” means any emergency caused by a natural event, including, but not limited to, a storm, a flood, a drought, or an earthquake; Tenn. Code Ann. § 58-2-101. Definitions
