CV-19 abrogation of law puts Judge Fleenor in pinch

Chancery court in Hamilton County, Tenn., courthouse, left, is hearing a first-of-its-kind actions in the U.S., a petition that targets a state government’s very first mistakes in bowing to the CV-19 panic. (Photo David Tulis)

My claims against Gov. Bill Lee in wrecking the state economy and ruining thousands of private callings are before a judge in Hamilton County chancery court.

By David Tulis / NoogaRadio 92.7 FM

Chancery has as its goal equity and justice, and is a place where wrongs of legal nature are best set aright.

Judge Pam Fleenor

Considering the case is Judge Pam Fleenor, who is put into a most trying position in hearing my claim because the state’s lawless governor, Bill Lee, and the county’s cavalier health administrator, Becky Barnes, have created an extralegal and anti-constitutional framework of reality that has descended upon the courthouse like an hallucinogenic fog.

In this dreary and gray landscape, the bright lights of constitutional government are shrouded, and legislative rulemaking by the governor prevails under an erstwhile state of emergency begun March 12.

The rulemaking upon private activity and private men and women and their lives takes shape in business regulation, travel bans and medical device prescriptions en masse, namely the requirement to wear masks, or chin diapers. The rulemaking has abrogated the constitutional guarantee of open court buildings and open courtrooms.

Is it possible for Judge Fleenor to be impartial and to show herself impartial if she is under a July 9 administrative edict from her boss, chief justice Jeff Bivins, and four cohorts on the supreme court in Nashville? The Order Regarding Face Coverings No. ADM2020-00428 says all people in any building containing state court must wear face coverings.

The order claims an entirely novel authority beyond the judicary’s grand of power in the constitution, which states its authority is judicial (i.e., within cases)

Masked mugs or open faces?

I filed suit on behalf of state of Tennessee on Oct. 2, and served Gov. Lee with the document Tuesday Oct. 6. Mrs. Barnes got her service Oct. 5. I have heard nothing from the respondents in the case. On Monday I filed a motion with the court and am serving the respondents with the document today or tomorrow by certified mail.

Possibly, the entire matter can be settled by written argument, the state’s string of pre-case documents and a peremptory ruling. I claim that the state has admitted all my claims of violation of Tenn. Code Ann. § Title 68-5-104, which summarizes its duties in dealing with a contagious outbreak.

Given that the record of correspondence I had with Gov. Lee and with the health department is the evidence of fact, it is right and reasonable to argue that Judge Fleenor should rule peremptorily, on the spot, on the day. She should do so because it is an emergency, a disaster of the governor’s making, a vast wrong against the people, whose health is not being safeguarded under the current emergency regime, with its useless and fraudulently used PCR tests and its dangerous mandates and its trail of dysfunctional legislation by executive fiat at the hand of unelected officeworkers.

Chancellor Fleenor should act instantly because of the continuing irreparable harm the respondents are imposing on the people and the economy. Global economic losses are estimated in a recent study to pass F$16 trillion, with as much as F$2 billion lost alone in depression in Nashville alone.

Oral arguments under a crippling bias?

But if a hearing is called for oral arguments, what happens?

Does Judge Fleenor expect me, representing the people and the state, to come before her under wraps of my handkerchief or a standard baby-diaper type face mask? Is she — like Justice Bivins — expecting the relator and plaintiff to give appearance of submitting to the argument of the other side, and that before the arbiter and referee, Judge Fleenor?

I believe that no one except the state’s attorney should have a mask on. That is his argument. That argument and practice cannot be accepted by the judge by her wearing a face mask, regardless of what her boss says by his reckless administrative and extralegal fiat — regardless of what Gov. Lee says.

Equity won’t allow it, I believe. Equity and the high honor of her court won’t allow it, I believe, judging what I have read about equity in Gibson’s Suits in Chancery, a masterpiece of legal advice and history.

A ruling in favor of state of Tennessee (me) immediately sucks out from underneath all these state actors their substance and material insofar as CV-19 mitigation goes. The rationale for the mask instantly vanishes once she admits to violation of law and orders Title 69, the health provision, be obeyed, and the government ordered to start from scratch.

To hold her hearing under mask is to concede the authority of respondents, and to give the appearance of being under external sway in violation of Rule 2.4. It would be a prejudicial act, a pre-judgement against state of Tennessee (me) and my cause.

The rule at 2.8 deals with demeanor. That word is in a heading, so may not be considered substantive. But the category of demeanor still stands, based on the substance of the rule, and demeanor is something visible, a look, manner, expression and speech. With a mask on, her demeanor is impossible to read and would appear prejudicial. Must she doff it?

My petition asks a lot of Pam Fleenor. It undermines authority of her own boss, whose wrongs I mention in the complaint as exercising judicial administrative authority over parties not subject to the judiciary in any way (county clerks, sheriff’s departments, etc. in the same court buildings). This is unlawful, unconstitutional as well as inequitable.

Judicial rules — vs. mask rule

Her governing administrative rules appear in favor of an open court — open faces, open to the public, open to the press. A judge shall act in a way that “promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety” Rule 1.2. A judge shall “uphold and apply the law, and shall perform all duties of judicial office fairly and impartially” Rule 2.2. A judge shall require lawyers to “refrain from manifesting bias or prejudice, or engaging in harassment” based on familiar standards such as sex, gender, religion. 

A judge can’t let the people around her persuade her how to rule. She should be immune from mob movements or fads. She has to act independently and justly, based on the law of equity.

She cannot be “swayed by partisan interests, public clamor or fear of criticism” Rule 2.4. Just because a judge’s wife or husband, or children, or neighbors, may wear masks or religiously harass those who don’t does not give her reason to vote against my mandamus. Her social environs, in other words, don’t control when equity and justice must.

Judge Fleenor can’t — and won’t, I am confident — let “family, social, political, financial, or other interests or relationships *** influence the judge’s judicial conduct or judgment” Rule 2.4.

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One Response

  1. Dave

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