State of Tennessee on relation demands the court strike respondent Becky Barnes’ motion to dismiss and memorandum in support because it is improper. In summary, the motion fails to account for continuing fraud and irreparable harm constituting default as ordered.
The purported motion to dismiss admits in a footnote to the substance of state of Tennessee’s grievances on relation without adequate answer, thereby inviting immediate summary judgment on the merits of relator’s affidavit and petition — an emergency and peremptory demand the honorable court has let sit 90 days on its desk, contrary to the principles of equity. That if the foregoing injustice is not found by the court, the relator reserves the right and the time to reply to any surviving parts of the motion to dismiss.
Relator demands the motion to dismiss be found improper in the record, in that:
➤ The filings are a demurrer to the facts and law cited in the affidavit of complaint, and since fraud is alleged, it is proper for the court to reject pleadings that seek procedural and technical evasions of the unrebutted facts in the record confessed by respondent: Namely, that respondent Barnes, is disobeying Tenn. Code Ann. § Title 68-5-104 under frivolous claim of “discretion,” prior to evidencing any lawful delegation of power or jurisdiction as a matter of law.
➤ Respondent’s motion cannot enter into the record upon whatever fabricated generalized shortcoming relator’s filings is claimed to contain in use of mandamus being irreparably and specifically harmed by respondent, her unavoided fraud is stark, front and center for the court to find — and to order it halted immediately by means of obedience to the black-letter law.
➤ The motion to dismiss coming under the color of a proper motion, is improper as it offers no evidence in any regard in support, by a wrongfully acting public official attempting to evade justice to have this court dismiss an action properly before it supported by two evidences of record — the sufficient and adequate verified petition and the affidavit of particularized irreparable harms, and against a procedural requirement the petition be taken true, before it.
➤ The Barnes brief attempts to ignore dealing with the adequacy of relator’s petition, and to rely on what is a supposed procedural defense. Still, on Page 12, in a footnote, respondent Barnes says,
That the Petitioner [sic] takes issue with Ms. Barnes’ reliance on medical opinions that recognize and support diagnoses of COVID-19 demonstrates that the actions taken by Ms. Barnes are discretionary, and as such are not subject to Writ of Mandamus relief. (see generally Petition).
This misstates the purpose which is not appropriate to a valid motion to dismiss, or relevant until respondent would have avoided the fraud and then evidences compliance with the law providing jurisdiction to make any decision.
These merits answered by respondent in what is to be a motion restricted to procedural matters, are nevertheless challenged in the alternative in the petition for abuse of lawful discretion, given respondent could have shown evidence of the compliance of the law, the dereliction of which this court is fully empowered to control as admitted by respondent in the motion delineating the extent mandamus can reach and which cannot be the subject matter of a valid motion to dismiss; that once respondent had shown compliance with law, alternatively to that showing where never producing evidence of prior compliance, the basis of reliance for any discretion relative to undue influence through rule predicted in the petition in anticipation of defenses being used in evasion of law, is a breach of legislative intent needing reformation by this court, demanded in the petition. A proper motion to dismiss advocated in good faith would apprehend this.
Also, on Page 2 of her brief, respondent surmises, without support and contrary to the actual assertions made in the petition, in context, or intention, “the petitioner is particularly adverse [sic] to wearing a mask, and this aversion appears to be at the heart of his grievance.” This, again, is the mitigation phase challenged relevant only after the respondent were to avoid her frauds and show jurisdiction, evidencing compliance with the legislative delegation for determined communicable disease and to control the non-compliant principle of contagion, enumerated pursuant to Tenn. Code Ann. § 68, which would exclude the state on relation or the relator.
These two points are admission of the merit and substance of relator’s petition, not a procedural avoidance, and thereby makes the motion to dismiss a complete, though inadequate, answer in defense, with all points in the petition ceded and agreed to and not objected as respondent maintains that violation of Tenn. Code Ann. § 68-5-104, is somehow an act of discretion, contrary to law, which cannot constitute a proper motion to dismiss more than an inadequate and insufficient answer, pursuant to the principles of equity, notwithstanding the fatal failure to answer to the frauds with the pleading proven and perfected in the petition being affidavit evidence of, or as procedure requires, taken true.
➤ Given respondent’s motion is upon the merits of relator’s affidavit of complaint, respondent’s filing is nonspecific and unparticularized as to:
— Any claim made and silent in answer to the fraud, which presence equity requires be addressed, summarily in favor of the state of Tennessee on relation.
— Any failure of the petition to invoke the authority of the chancery jurisdiction or to provide a basis for a reply which due process requires, which equity requires be addressed particularly with notice to the state on relation.
— How relator’s affidavit of specific irreparable harms caused by respondent does not warrant remedy where the constitution secures remedy to the relator for harm.
Failure to answer to the continuing fraud and irreparable harm specifically described in the verified petition with the pleading, seeks the court’s aid by delay to further the fraud and to continue the injustices on the state of Tennessee on relation which equity principles do not tolerate. For the court to expect a response to the substance of respondent’s motion nonparticularized as to the substance of the affidavit of complaint places an undue burden upon relator, unknown to equity principles, as it appears respondent is using an evasive tactics under color of lawful procedure.
Respondent Barnes has not acted in a way such that one must have discerning intelligence to ferret out the wrong and to detect fraud in its manifold and cunning disguises. Her disobedience is open, barefaced and relator has caught her in flagrante delicto. She is:
➤ In open violation of the terms of her employment under Tenn. Code Ann. § Title 68, chapter 2, part 6, to enforce policies “to the control of preventable diseases and the promotion and maintenance of the general health of the county”, issuing fraudulent public notices, not limited to:
➤ Being in open violation of Tenn. Code Ann.§ Title 68-5-104 in having failed to make a determination of the cause of the purported condition COVID-19 for which she has no confirmation or isolate;
➤ Being in open violation of the quarantine power in Tenn. Code Ann. § 68-5-201 on the requirement of the state commissioner and lesser officials to exercise quarantine power “with the least inconvenience to commerce and travel” and consistent with the constitutional protections secured to the people;
➤ Denying without lawful warrant due process rights of healthy men, such as the relator, and women in state of Tennessee to be free from the exercise of police powers absent lawful notice, probable cause, evidence epidemiological and otherwise, absent warrant, hearing or trial or other particularized claims against people whose activities she purports to control and regulate in the name of public health, or within the constraints of the communicable disease enactments of the legislature.
Barnes motion to dismiss alone confesses fraud
Says Gibson, “Fraud, in the sight of a Court of Equity, vitiates every contract or transaction into which it enters, at the election of the injured party and the court will not only undo what fraud has done, but will treat acts as done which fraud prevented from being done,” Gibson, 1955 ed. § 57, P. 71.
Relator demands the failure of respondent to answer the admitted fraud with the first pleading be disposed immediately. Respondent’s filing is improper, and perpetuates the fraud in the presence of this honorable court, inviting the court to prolong respondent’s egregious violation of state law past 90 days in which to continue the humiliation, embarrassment, and irreparable harm to state of Tennessee on relation and her people.
Respondent has not offered — and the court inexplicably has not demanded — word on obedience to the statute, nor efforts to come into compliance with it and the jurisdiction it provides before asserting the brass ring of “discretion,” which nevertheless is subject to this court for abuse contrary to the frivolous claims by motion. Relator’s initial inquiry — his demand letter Aug. 27, 2020, exhibit No. 3 — and subsequently caused lawsuit Oct. 2, 2020, are notices to her dereliction of clearly established law. Respondent, having the duty and obligation to heed, makes no positive affirmation that she has obeyed Tenn. Code Ann. § Title 68-5-104, gives no indication she is in process of starting to obey it today, makes no statement about plans to obey tomorrow.
She makes no positive statements about herself as subject to state law though claiming some magical powers under it, makes no explanation about her duty to comply, even if respondent Lee is not complying, and fails to point out with any particularity where the petition fails to properly invoke this court’s authority to stop her flagrant, fraudulent transgression of law.
Equity principles require more and neither does respondent Barnes make negative averments, statements or denials. Her shortcomings as an outlaw are several, evidenced by what she fails to offer as is her burden pursuant to principles of equity for a proper motion to dismiss responding to the affidavit evidencing fraud causing irreparable harm, under color of authority.
➤ Respondent Barnes does not exonerate her acts as health administrator under Title 68 for 290 days, nor aver they are honest government services, obedient, correct, proper and done in good faith — that these acts could not be fraud.
➤ Respondent Barnes does not say relator misunderstands or misperceives her actions, her job, procedures, policies and customs, that state on relation misperceives them, is subject to error or confusion, or that relator’s record is unsubstantiated, ignorant or ill informed — not that he is under any duty to “understand” her job whatsoever to observe that she is in violation of simple clearly enumerated legislative enactment.
➤ Respondent Barnes makes no rebuttal to relator’s affidavit of injury, nor asks to contest its facts, arguing rather that his injuries are not distinct since hundreds of thousands of other people are also injured, claiming so without a shred of evidence in support. She makes the frivolous defense of infamy as to being victim of respondent’s acting separately and in combination to violate Tenn. Code Ann. § Title 68-5-104, working not to support a proper motion to dismiss but to validate the propriety of mandamus relief to the state on relation and of this court of justice to stop the injustice.
Where, as in the petition, fraud is alleged, equity principles place the burden on a respondent to bring an answer immediately. Such duty is unmistakable in a peremptory emergency action such as mandamus. Without answering to the fraud with the first pleading the motion is improper. If respondent Barnes has been making a determination of the cause of the contagion, if she has been in contact with doctors, scientists and experts to isolate the infectious agent — it is her duty under Tenn. Code Ann. § 68-5-104, and it is part of relator’s due process rights on behalf of state of Tennessee, to have this material presented immediately, in 10 days or less, the public welfare requiring it, a proper and good faith motion to dismiss would include such evidence. But this still would not resolve the irreparable harm which no law provides license or discretion and no motion to dismiss is proper in evasion.
Fraud is asserted in the affidavit of complaint, taken for true, and the court is under the duty at equity to “cripple” and “hedge about” the movers of the fraud, to quote Gibson § 57, no matter how high ranking they are, and without delay. Equity principles require the fraud in evidence be answered. Respondent’s motion is improper and should be stricken from the record.
As it stands, respondent Barnes is relying on the color of procedural dodges to evade having to obey Tenn. Code Ann. § Title 68-5-104, and seeking to extend fraud and irreparable harm against state of Tennessee on relation. A court of justice doing justice would have swiftly seen through this tactic.
How motion to dismiss improper otherwise
The Barnes motion purporting to be a motion to dismiss is, additionally, improper on other grounds:
➤ Despite leave of the court, and to continue to preserve the unresolved objection by motion already before the court for want of due process, reason and authority, state of Tennessee objects to the Barnes motion and demands it be stricken because it was not timely filed. Respondent Barnes was personally served affidavit of complaint Oct. 5, Monday. Her 30 day toll to answer expired midnight Nov. 4, Wednesday. On Nov. 5, 2020, Thursday, the respondent asks for more time and files electronically with the court Nov. 5, 2020. That’s one day late. Relator continues the valid objection to the court’s granting her motion for enlargement without actual lawful foundation, and the court’s having accepted it in the record. Relator objects to the court’s participating with respondent Barnes in her flagrantly negligent violation of state law or the noble equity rules and principles governing chancery.
➤ Relator reserves the right to answer anything of respondent’s motion that survives this challenge, forced as relator might be into further delay by the court’s refusal to do equity and issue the writ of mandamus posthaste in an emergency. Respondent Barnes’ motion to dismiss admits fraud, admits violation of her duty, even if relator’s two affidavits of record were not taken as true. Respondent attempts to oust state law without any right and to throw state of Tennessee on relation out of chancery on frivolous and illegal grounds.
➤ The unparticularized misinterpreted cherry-picking by the respondent of certain parts of the verified petition and ignoring the affidavit of harm, or by misrepresentation and mischaracterizing the law and without giving due regard to the law or the evidence of record prevailing against all respondent’s assertions, does not mean unmentioned relevant and material parts are insufficient or inadequate or which can form the basis for respondent’s challenge; the sufficiency or adequacy is the obligation and duty, called “discretion,” of the “sovereignty” of this court to be determined immediately, facially, upon filing, limited by lawful foundation, reason and authority, with adequate and sufficient timely notice to the relator, reviewable for abuse.
Due process requires chancery provide timely notice to afford this willing and able relator immediate qualification as any seeking relief to stop irreparable harm, whether as a matter of constitutional securities, of right, or upon leave of the court, in the interest of justice, even in absence of any fraud, honoring a party’s constitutional right to adequate remedy. Relative the equity principles, a chancery party evidenced by verified petition to be committing fraud causing irreparable harm is duty-bound to respond immediately in avoidance to maintain clean hands in good faith. Three months hence, this required answer together with the pleading has not been made, contrary to equity principles, or constitutional securities, such as due process or right to adequate remedy.
If intending justice, equity principles required chancery, to the benefit of all parties, to hasten before the respondent with notice to the relator for purpose of any amendment in what manner the vast power of this court is not available, or not sufficient to arrest verified irreparable harms, for possible transfer, or notwithstanding infirmity, upon its own motion pursuant to its inherent power, that justice be done, without formality, respecting the law, the verified petition, the verified evidence of record, or the intention of relator.
Some ninety days after filing the petition, prejudicially, belatedly, misinterpreting the verified petition, the law of the case, ignoring the evidence of record, state on relation faces a purported motion to dismiss improperly in the record, which pared to its essence, beyond its insufficiency or failure to answer for respondent’s frauds, is conclusions of law without actual evidence or proper application in support, nor in concurrence with this court’s own determination accepting the petition in responding to it.
Respondent’s evasive attempt is, in fact, in violation with this court’s agreement to the sufficiency and adequacy of the verified petition. If the court deems it did not agree in its acceptance of the verified petition being sufficient and adequate, it improperly infringed on relator’s constitutional right to a timely remedy for harm done him, particularized in verified affidavit of record evidence.
Even if the unsupported motion to dismiss were somehow deemed proper by this court as previously stated herein, respondent’s motion to dismiss is, nevertheless, improper and untimely answer. The evasive motion does not explain how the verified petition invoking the power of chancery to stop fraud and irreparable harm caused by the respondent requires more formality or which can ever be an excuse in aid of the admitted wrongful respondent merely providing color of specificity by purported authentic motion, which due process requires be sufficiently particularized, that relator may amend the petition of verified irreparable harm if such formality is ruling. And at best, even despite the unanswered fraud, such a motion merely asks the court to finally, after such a long and prejudicial delay, review the petition for sufficiency, specifically. The additional problem for respondent is the attempt is done not upon the strength of respondent’s title, right, or interest in evidence, but some unspecified weakness, if any, in the relator.
This is a violation of yet another principle of equity, if allowed by this court; or that, pursuant to the vast discretion equity principles provide this court to do justice, or on its own motion once apprised of irreparable harm, the motion speaks to amending the petition, not one supporting dismissal; or where denying the state on relation an opportunity to reply to the motion after these questions of the propriety of respondent’s motion attempting to trespass upon the record and the case, or to commit fraud upon the court, are settled. The question still remains, respectful of equity principles, what’s the lawful foundation for delay, or not amounting to material prejudice to the state on relation.
Consistent with respondent’s ongoing fraud upon and with the inexplicable indulgence and delay of the court relative or contrary to expected equity principles, the motion to dismiss is not proper where respondent mischaracterizes or fraudulently negatives the character of the relator, or mistreats the petition as a complaint at law, or as one for damages, or one in bankruptcy, or as a debtor trying to tap the treasury.
The purported motion to dismiss cites disembodied disparate passages from the petition not taken as a whole, in context or through the intention of the state on relation to stop irreparable harm. The relator finds no other reason that it does this than to evade justice. Compounding these unsupported, and unsupportable re-imaginings of the required justiciability elements, respondent mistreats the petition as if it were an action at law; when properly treated, the petition objectively fulfills every element for chancery jurisdiction.
The respondent, through fraudulent mistreatment of the cause of the state on relation under color of a motion to dismiss, did not move this court upon the action of the relator in chancery, but a non-existent action at law. The court has provided no foundation to the contrary of this trespass on the case to date and could not with the evidence before it, or by the applicable equity principles. The failure of this court to stop the irreparable harm now admitted by respondent in attempting, under color of a motion to dismiss, to evade justice is indicative of, or parallel to, the same unexcused failure of the respondent to stop an infectious agent for which it failed to provide a foundation in attacking and oppressing the people of Tennessee.
The respondent’s generalized, unparticularized brief is improper and attempts to show that relator “raises absolutely no claims on which he can prevail against Mrs. Barnes as a matter of law,” that relator lacks standing on several grounds, despite the elements meeting “standing” stated in the petition supported by the affidavit of particularized fundamental, irreparable harms, and misrepresents the remedy of mandamus as a means not able to compel obedience — because respondent Barnes has no duty to obey the law — is not properly a motion to dismiss or one of which the relator can yet reply or respond in amendment; foremost, in not dealing with the petition being an affidavit finding and evidencing fraud, respondent Barnes waives the right to continue her unavoided, admitted fraud, through any rule of procedure, such as the motion to dismiss.
“Frauds are viewed with great horror and indignation by courts of Equity, as destructive of that honorable confidence necessary for human intercourse, and as constituting a sort of treason against society itself,” Gibson notes. “The subtle character of these violations, the great difficulty in making the proof, the absolute necessity, oftentimes, for probing the conscience of the alleged offender by searching interrogatories, the discerning intelligence required to ferret out the wrong and to detect fraud in its manifold and cunning disguises, the strong sense of equity necessary for the correction of secret acts of bad faith, and the inadequacy of the common law remedies to meet the manifest demands of justice, made it necessary for parties who had been defrauded to apply to a Court of Conscience in order to obtain complete redress; and to this fact the Chancery Court largely owes its existence and its jurisdiction; and the altars of this Court have always been the favorite refuge of parties seeking relief against those who have defrauded them.” See 1 Sto. Eq. Jur. § 158; 1 Po, Eq. Jur. §§ 31-37.
For the foregoing, such a motion ought not be tolerated in any record of chancery.
In the event justice is done and the motion is stricken for being improper in the record, being against equity principles, relator demands a peremptory and emergency ruling against respondents, for default and by default judgment upon his prior motion to this court, or as equity requires justice be done, in final summary judgment, notwithstanding rights provided to a defaulted party.
In the event the motion is not stricken as improper yet deemed inadequate answer for failing to avoid the frauds, or otherwise being against equity principles, or for failure of sufficient or adequate timely answer, relator demands a peremptory and emergency ruling against respondents, through summary judgment in favor of the state on relation and to enforce immediate obedience to Tennessee law in the public interest pursuant to the petition demands.
If the court insists the state of Tennessee on relation must continue to suffer irreparable harms at the hands of the admitted wrong-doing respondent, the relator demands the right to respond to the foundation with particularity of the motion to dismiss or any remaining part, the adequate time for which appears to be 21 days, not accounting as the long-suffering relator has found necessary before this court for further objections to foundationless orders, despite the demands of equity principles.
Relator demands that in any ruling against his interest and that of state of Tennessee, that the honorable court provide the foundation, or written reasoning in fact and law.
Time to fight