NASHVILLE, Tenn., Nov. 2, 2020 — The Tennessee supreme court has accepted the filing of my petition for writ of mandamus to overturn the state of emergency as a lawless overthrow of the constitution and a stark violation of black-letter law.
By David Tulis / NoogaRadio 92.7 FM
“I’m happy to file your petition,” says court clerk Jim Hivner in a phone call. He is in the court’s Jackson office. I am in the lobby of the supreme court with Carl Dure, my witness, both of us donning bow ties and sports jackets.
I ask Mr. Hivner if the supreme court will look at my petition “ahead of anything else on the docket today?”
“Not necessarily,” Mr. Hivner says, “but they will review your petition today. They’ll have your petition today. *** Some of them will look at it today.”
“I understand you are also asking for a meeting with the justices today. I don’t know that that can happen. I don’t control the justices’ schedule. And they haven’t even seen your petition yet. So, typically, what happens is the petition gets filed and it’s reviewed by the court, and then something is scheduled. You want to schedule something with them? You will have to call their office if you want something immediate — attention on your matter. But I don’t schedule for them.”
I write a check for F$163.75 for the filing fee, received by clerk Lisa Marsh, and submit to her “an original copy” of the case against lawless lockdowns and government by emergency in Tennessee. It’s just under 90 pages. I file four extra copies so that the justices can get to work immediately ending an injustice that has cost the people of Tennessee many billions of dollars in losses.
Court sees misdoings in Chattanooga
The people of Tennessee in whose name I am pursuing justice are fed up with lollygagging by Hamilton County chancellor Pam Fleenor. She has rejected her duty more than 30 days by refusing to issue a writ of mandamus to end the state’s fraudulent health emergency in violation of — guess what? — the state health law.
On their behalf, I file mandamus to order the governor to obey the health law provisions that require state and local departments to make a determination of the cause and source of the purported contagion called Covid-19.
In ignoring their duty to “determine” what state law calls the “contagious principle” behind the CV-19 symptoms, they have overturned the rule of law, abrogated the constitution and subjected the people to arbitrary and capricious legislation by bureaucrats, mayors, “Karens” and health do-gooders of all sorts.
Clerk senses emergency, urgency
“What I’m asking for, Mr. Hivner, is an immediate hearing before any —” of the judges today, I say in the phone call. “Let me ask you this: Is anything on the docket ahead of a petition for writ of mandamus?”
“What do you mean, is anything ahead on the docket? A writ of mandamus will be reviewed promptly.”
“Well, this will be reviewed promptly.”
“Well, let me ask you this. Does a writ of mandamus be reviewed before any other business is done by the supreme court?”
Mr. Hivner promises me that at least one supreme court justice will look at my petition today.
“Yessir. It is a peremptory writ. It is nonoptional. It is compulsory. It is urgent. It is an emergency”
“I understand what a writ of mandamus is, Mr. Tulis.”
“I’m an attorney and I’ve practiced law for over 20 years, so I know what it is. I don’t need to be educated on it. We will make sure the supreme court gets it. But I don’t control their schedule.”
“I’m very grateful, Mr. Hivner, that you are letting me file this. I have a copy for the clerk and I have individual copies — I have 6X copies with me. I know there are five justices.”
“Very good, very good,” Mr. Hivner says.
“And I have 6X copies. So will will be stamped and the others are just for their personal information — however you want to do it. I have one per justice. And that is to facilitate the immediate — since there are several hundred pages here — for their immediate attention, sir.”
Before making his call to me he had been sent a digital version of the 80-plus pages scanned and emailed to him. Evidently judges not coming into their offices across the street from the state capitol building will view the petition in digital form.
‘Grateful for this promise’
“You need to understand,” Mr. Hivner says. “They’re not all in that Nashville building, sitting there waiting for it. But we will get it to them, and their staff, today, and they will have it available to them, and they will review it. I assure you, someone will look at it today.
“They’ll make a decision today whether they need to take immediate action on it,” Mr. Hivner says.
“I am very grateful for this promise,” I tell Mr. Hivner. “As it is peremptory, I am confident they will, in the interest of justice and equity, consider it very seriously today, as we have the governor in blatant violation of 68-5-104, and has been violating that law for 250 days, and that is untenable. The state of emergency is unlawful from the get-go. He has necessary things, as my affidavit of proof indicates, there are necessary things the governor has to do before there can be any kind of police action by the state against the 6.8 million people who I, in this matter, sir, represent. I represent the state in this matter. I am the state, on relation, in this matter. And so I am very grateful for your comment that my affidavit of fact will be considered.”
He asks if Chancellor Fleenor has ruled on my petition for mandamus.
“Let me ask you this, sir. Chancery court has probate. It has child custody, contract disputes. Let me ask you this— if I filed on Oct. 2 petition for writ of mandamus with Pamela Fleenor, and it still hasn’t issued — mandamus still has not emitted itself and come from her desk, do you think the state, with its mandamus, is at the head of her docket — d’you think?”
“Well, I don’t know. That wasn’t my question. My question was, was whether she ruled on it or not.”
“She’s ruled against it — well, sir, every day that she doesn’t issue mandamus she is ruling against it. She’s ruled against it for 30 days, sir.”
“Well, I should’ve put it this way: Has she entered a written order, one way or another? That’s all I was asking.”
“No sir. I have offered her a decree pro confesso finding that the admissions of the malefactors in this matter — the malefactors — that they have already confessed everything, from the first EO on March 12, Mr. Hivner, was the beginning of the trails of confession by these people. The other defendant other than Gov. Lee is Rebekah Barnes of the Hamilton County health department. She has also admitted that 68-5-104 has been ignored — totally — totally — and —.
“I’m an investigative reporter, sir, and am looking at this as tremendous story. We have a lawless governor. We have a lawless Republican party. A lawless Democrat party. And altogether, everyone agrees, we cannot make any kind of determination on the source or the contagious principle of SARS-CoV2, so-called Covid-19. And that’s what this complaint is about. They’ve made no determination of anything the cause of the emergency. It hasn’t been done.
“And this is a flagrant — a flagrant — bold and courageous violation of statute, Mr. Hivner, and it’s urgent that the people whom I represent, and the state, whom I represent, Mr. Hivner, not suffer any longer under this regime. That the justices need to correct what has been done, Mr. Hivner.”
“Mr. Tulis, all I can do, I don’t have anything to do with the substantive matter itself. All I can do is handle the procedural aspects of it. And, as I said, we are going to accept your filing today, and we will distribute it to the court for the court’s review. *** I will make sure that my part of the process gets done, and then we’ll go from there. Is that fine with you?”
Cover letter = petition to justices
“I appreciate that, sir. But make note, there is a cover letter explaining the dereliction of duty by Chancellor Fleenor, and also the first document that’s in the large clip is, is an affidavit of me describing what happened at the Friday hearing. And the problem with Chancellor Fleenor’s clerk and master, whom I said had the authority —
“Let me just make sure that I understand. I am looking at an 89-page document itself. My understanding — and you correct me if I’m wrong — is that you are filing a petition for writ of mandamus.”
“Now, my understanding from looking at your document is that your first two pages of the document would serve as your petition. Because there’s nothing else in this 89-page stack of papers that reflects that it’s a petition to the supreme court. It’s basically your affidavit and copies of documents that you filed with chancery court, is that correct?”
“We are in a state of emergency, and the petition that has been filed in chancery court in Hamilton County has been denied daily. There’s not been an order. Mandamus has not issued.”
Replies Mr. Hivner: “I’m talking about documents as to what they are. I’m not asking about what their purpose is, I’m just asking which document you would refer to as your petition to the supreme court itself. You have to file a petition and ask the court to do something. I’m asking you, based on this 89-page page stack of documents, which pages do you consider to be your what I will refer to as your petition. *** I’m just trying to make sure I’m clear as to what you are referring to as the petition itself.”
“Well, the cover letter, sir, is a demand to meet with the justices right now. So I am here in Nashville to meet with them, or at least one of them as agent for the others, and I haven’t yet secured knowledge of which one is in the building whom I can talk to first while I’m here. But the cover letter —”
“I don’t know that any of them are in the building.”
“Well, I have not determined that for myself, sir. But the cover letter, sir, makes the demand for an audience. It also makes a demand — at the bottom.”
“So I am going to treat that as your petition.”
“Yessir. Because at the bottom it says, ‘I demand mandamus issue immediately,’ from the supreme court.”
“So, I’m going to treat that as your petition. I realize you are calling it a cover letter. But for my purposes I am going to call it your petition.”
“Yessir. That is the function of the cover letter. That is the petition to the court.”
New, separate case
“Very good. We are on the same page, then. Very good. Do you have questions about what is going to happen at this point?”
Mr. Hivner says I must serve Gov. Lee and Rebekah Barnes with copies of the entire file, including all new material. The filing Monday is a new case before a new court.
“You’re not appealing what happened in chancery court. You’re asking the supreme court to issue a writ of mandamus, and you’re filing a new petition in the supreme court. You still have to serve the other side. You understand that.”
“Yessir. They will be served today” by certified mail.
He says clerk Lisa Marsh will allow me to add a certificate of service, which I write by hand on a piece of yellow paper. After running off four copies, she inserts the yellow sheet into her original file.
These experiences Monday have put me in a thankful state of heart before God’s throne of grace, and in writing this story I have found myself thrown into fits of sobbing and relieving and pulsating expressions of heart in thanks to the Lord’s providential care for his children, among whom I count myself as one.
You do not stand alone.