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Fleenor admits Lee violating law in CV-19 disaster, but allows it

Judge Pam Fleenor, third from right, enjoys some socializing with fellow Republicans in Hamilton County. (Photo FB)

Chancery court judge Pamela Fleenor says she doesn’t have subject matter jurisdiction to make any ruling about Gov. Bill Lee’s disregard of Tenn. Code Ann. § Title 68-5-104 because the case should’ve been filed in Davidson County.

By David Tulis / NoogaRadio 92.7 FM

In a ruling entered Jan. 21 she says that the law requiring a determination to be made about a contagion, in referring to the health commissioner, doesn’t name the governor — and so he cannot be made subject to state law. She also rules against state of Tennessee on whose behalf I am the relating party, saying I fail to show sufficient injury and that my claims to be among hundreds of thousands of injured people makes me lack “a personal stake” and to be indistinguishable from them, and thus unable to show standing as per court rules.

She describes Gov. Lee’s motion to dismiss as one that “admits the truth of all the relevant and material factual allegations in the complaint” I filed Oct. 12, “but asserts that no cause of action arises from those facts.” The judge describes my affidavit about fraud by the governor as “undisputed material facts.

The state law that Gov. Lee ignores contains elements of discretion within it, she says, so a petition of mandamus seeking to compel him to obey the law as a whole cannot prevail. Mandamus is directed ministerially upon an official to do an act within his duty, not within his discretion. A ministerial duty is like that of a Christian minister: He has no option but to tell the truth revealed by the Word, and to neither add to it, nor take away from it, and to make all the parts of the Word cohere into a systematic, self-consistent whole. A ministerial act is nondiscretionary; a governor must obey the law period.

Her ruling comes 111 days after this investigative reporter filed the peremptory emergency petition in chancery, a court of equity, after making a major report on the fraud and violence imposed by a state lockdown of the people. 

Gov. Lee has been in open violation of the law 315 days as of Thursday, bringing hundreds of thousands of families, individuals, businesses, groups and ministries to their knees. His acts have cost the economy tens of billions of dollars and occasioned the biggest crash in employment in state history and the failure of innumerable shops, stores and services.

Discretion vs. duty

Judge Fleenor makes great effort to magnify the role of discretion in obeying a law, and so makes it impossible for her to see when a law is boldly ignored in its entirety. That’s what’s happened to 68-5-104 — the whole entirely ignored. In her ruling, she frames the discussion about mandamus and makes out that the statute as a whole can be ignored because, once inside it, discretion operates.

“In determining whether an act is ministerial, Tennessee courts look to whether the law defines the duties to be performed with such precision and certainty as to leave nothing to the exercise of judgement.”

In other words, the governor has a duty to go into the house in which, once inside, he is free to go into the parlour or into the kitchen. She is saying that because he has this option once inside the house, that he is under no duty to go into it in the first place.

Judge Fleenor looks at the statute in Title 68, misnaming it, and cites it in its entirety. She cites the “well established rule of statutory construction that we must assume that every word in the statute has meaning and purpose” and that officeholders are to “carry out the legislative intent without broadening or restricting a statute beyond its intended scope.” The rules of construction require “when a statute is clear, courts apply the plain meaning without complicating the task.”

Judge Fleenor pretends that somehow the governor is supposed to personally enforce and administer every law. In Article 3, section 10, the constitution charges that “He shall take care that the laws be faithfully executed,” not that he is supposed to fulfil them himself or that if the statute doesn’t name him he’s not responsible for it. This suggestion is, laughably, before us from the lips of Judge Pamela Fleenor.

The duty under the law “Thus applying the plain meaning of the statue without broadening it, T.C. A. 68- 5-104 addresses the duty of local health authorities and the commissioner –not the Governor. Nowhere in the statute is the Governor even mentioned. Thus Relator has failed to allege any precise ministerial duty set forth in T.C.A. 68- 5- 104 which the Governor is clearly required to perform. As such, the Court concludes as a matter of law that the motion to dismiss the mandamus for failure to state a claim against the Governor in his official capacity is well-taken.”

Subject matter jurisdiction

An important point in law is that a judge has no authority regarding a case if the moving party does not invoke a right or law sufficiently to give the judge subject matter jurisdiction. He moving party must have standing. 

The necessity for standing, I am realizing, is surely usable in traffic court and other criminal matters where the overweening state and the district attorney’s office abuse the rules of standing routinely without their lack being challenged by attorneys or defendants. How is it, in an alleged “traffic offense,” the state can show a particularized, concrete harm or injury when the accused traveled in his car on an “expired” driver license?

Judge Fleenor says she has no authority to do anything but dismiss the case since it should have been filed in Davidson County.  I refer to this rationale as a venue privilege granted to the governor’s commissioners, as the cases show that statute to operate. I sued the governor in Hamilton County because that’s where the damage took place, and also because chancery as a court of equity deals in wholes and not halves, it being a matter of equity that Gov. Lee injures people here, in cooperation with health boss Becky Barnes.

Judge Fleenor denies my motion in the alternative to have the case transferred to Davidson County pursuant to the Tennessee code and also the rules of court, as I argue in print and orally. She says that this problem prevents her from having any subject matter jurisdiction and that “any order, other than a dismissal, taken by a court that lacks subject matter jurisdiction to hear the action, is null and void.”

So, why is it that she writes a 15-page order, like a 15-foot-long tape ball, on issues that are ostensibly not before her and upon which she has no authority to address? She has laid before me the immense task of unrolling her tape ball and peeling back an accumulation of misreads and errors giving pretended legitimacy to her order, one by one, one by one. 

I am aggrieved; I do have a justiciable claim in equity for relief; I am particularly and concretely damaged, and her unjust judgment demands appeal.

A special interest in her ruling is her claim that I have not suffered particularised harm by the governor’s actions in overthrowing the Constitution and ignoring the statute.

By nature of the law, a petition for writ of mandamus requires the relator to be damaged by the refusal of the respondent party, the government official, to do a ministerial statutory duty.

I determined prior to filing that I had been injured in five ways by Gov. Lee and his state of emergency. Here is the affidavit that is part of a record.

The Governor argues that Relator lacks standing to raise these additional claims, because standing cannot be based on an alleged injury that a plaintiff has in common with all other citizens. Tennessee law provides that in determining whether the plaintiff has a personal stake sufficient to confer standing, the focus is on whether the complaining party has alleged an injury in fact, economic or otherwise, which distinguishes that party, in relation to the alleged violations, from the undifferentiated mass of the public.  *** Additionally a plaintiff must demonstrate a causal connection between the plaintiff’s injury in the challenged conduct.

‘No writ to issue the governor’

Judge Fleenor also says, “Because relator failed to submit an alternative writ, the court had no writ to issue to the governor. It is not the duty of the court to prosecute the case for the relator. Nor is it the duty of the court to guess which ministerial act relator seeks the governor to perform, as courts cannot create claims or defences for litigants where none exist.”

Judge Fleenor here is slapping me around, and chiding me for failing to do something I didn’t intend to do. I don’t want an alternative writ, but a peremptory writ, an order telling the governor to obey the law.

Her order follows closely the harsh reasoning of Janet Kleinfelter from the attorney general’s office. There is not a wink of sympathy with the relator and the people of Tennessee. Her eyes are full of Bill Lee, and she erects a barricade hedged with thorns around the malefactor.

Judge Fleenor harasses me — and you, by representation. She blames me for having “failed to submit an alternate writ” that is not part of my demand; she is little attuned to the requirements of equity. On the last two pages of my Oct. 2 petition I make specific demands of performance in a writ that orders Gov. Lee to obey the law. With her phrase that she “cannot create claims or defences” for a litigant shows her entire lack of heart for resolving a conflict between a person and an oppressor. She blames me, as it were, for recognizing her huge discretion to take a conflict and order a settlement to end the culpable mass irreparable harm under which we people suffer daily at the hands of an oath-breaking governor. 

My petition in State ex rel Tulis hugely empowers Judge Fleenor. It makes her the most important person in the state. It enables her in her office to bring an end to the greatest evil to come into our state since the war of 1861 and its division of North and South, free and slave, national government vs. states’ rights. She refuses to give relator the slightest ground in any of what she writes.

She is partial to the respondents, and favors them in all ways vital.

You can hear oral arguments here.

The Tulis Report is 1 p.m. weekdays, live and lococentric. At and on the commie platform, FB, at NoogaRadio 92.7 FM.

Time to fight


  1. Dave

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