A hearing is set Jan. 11 “by phone” in the Tennessee case seeking an immediate end to the so-called Covid-19 pandemic. The hearing is by phone because the script requires it; so grave is the crisis, the courts are closed.
By David Tulis / NoogaRadio 92.7 FM
The phone hearing over motions is “before” Judge Pamela Fleenor in chancery. She held a public hearing Dec. 2, and I had a meeting with her clerk and master Robin Miller Oct. 30, a meeting that was converted into a hearing by Mrs. Miller.
The proposed shutting of the court for the Jan. 11 hearing is one more wrong Gov. Lee, Becky Barnes and their colleagues in authority are imposing on state of Tennessee, one more prejudice that is marketing for the policy of pandemic, the theater of “fighting” Covid-19, as it is called. The Tennessee bill of rights forbids the courts be closed — ever.
But the entire CV-19 operation of state government and the independently run Hamilton County health department is premised on fraud, and so subject to mass errors that make these men and women liable for damage.
How Barnes, Lee are promoting fraud
But is not fraud a problem in the private and corporate sector — not government?
Fraud is an “intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right,” says Black’s Law Dictionary, 4th edition.
It is “a false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. Brainerd Dispatch Newspaper Co. v. Crow Wing County, 196 Minn. 194, 264 N.W. 779, 780.”
“Because school-age contacts and transmission are increasing in Hamilton County, it is very important that parents abide by the quarantine orders issued by the Health Department,” says Health Department Administrator Becky Barnes, “This also means quarantined students are not allowed to participate in any extracurricular activities, even if they are outside or wearing a mask.”
Fraud is “[a]ny kind of artifice employed by one person to deceive another. Goldstein v. Equitable Life Assur. Soc. of U. S., 160 Misc. 364, 289 N.Y.S. 1064, 1067.”
It is a “generic term, embracing all multifarious means which human ingenuity can devise, and which are resorted to by one individual to get advantage over another by false suggestions or by suppression of truth, and includes all surprise, trick, cunning, dissembling, and any unfair way by which another is cheated. Johnson v. McDonald, 170 Okl. 117, 39 P.2d 150.”
Bad faith and fraud are “synonymous, and also synonyms of dishonesty, infidelity, faithlessness, perfidy, unfairness, etc.” Joiner v. Joiner, Tex.Civ.App., 87 S.W. 2d 903, 914, 915.
Fraud is wrong not accidental
Fraud, according to Black’s, “consists of some deceitful practice or willful device, resorted to with intent to deprive another of his right, or some manner to do him an injury. As distinguished from negligence, it is always positive, intentional. Maher v. Hibernia Ins. Co., 67 N.Y. 292; Alexander v. Church, 53 Conn. 561, 4 A. 103; Studer v. Bleistein, 115 N.Y. 316, 22 N.E. 243, 7 L.R.A. 702; McNair v. Southern States Finance Co., 191 N.C. 710, 133 S.E. 85, 88.
“It comprises all acts, omissions, and concealments involving a breach of a legal or equitable duty and resulting in damage to another. Coppo v. Coppo, 163 Misc. 249, 297 N.Y.S. 744, 750.
‘Calculated to deceive’ by mouth, gesture
Fraud “includes anything calculated to deceive, whether it be a single act or combination of circumstances, whether the suppression of truth or the suggestion of what is false, whether it be by direct falsehood or by innuendo, by speech or by silence, by word of mouth, or by look or gesture. People v. Gilmore, 345 Ill. 28, 177 N.E. 710, 717.
“Fraud, in the sense of a court of equity, properly includes all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust, or confidence justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another. 1 Story, Eq.Jur. § 187; Howard v. West Jersey & S. S. R. Co., 102 N.J.Eq. 517, 141 A. 755, 757.
Constructive fraud ‘prejudicial to public welfare’
Fraud is either actual or constructive. Actual fraud consists in deceit, artifice, trick, design, some direct and active operation of the mind ; it includes cases of the intentional and successful employment of any cunning, deception, or artifice used to circumvent or cheat another; it is something said, done, or omitted by a person with the design of perpetrating what he knows to be a cheat or deception.
Constructive fraud consists in any act of commission or omission contrary to legal or equitable duty, trust, or confidence justly reposed, which is contrary to good conscience and operates to the injury of another.
It’s possible that the respondents in State ex rel Tulis could claim that there is no fraud, but only constructive fraud. Constructive fraud is a fraud apart from an intent to deceive or harm.
Neither Gov. Lee nor Mrs. Barnes have made any such protest.
Constructive fraud “is an act, statement or omission which operates as a virtual fraud on an individual, or which, if generally permitted, would be prejudicial to the public welfare, and yet may have been unconnected with any selfish or evil design. Or, according to Story, constructive frauds are such acts or contracts as, though not originating in any actual evil design or contrivance to perpetrate a positive fraud or injury upon other persons, are yet, by their tendency to deceive or mislead other persons, or to violate private or public confidence, or to impair or injure the public interests, deemed equally reprehensible with actual fraud. 1 Story, Eq.Jur. § 258. Code Ga.1882, § 3173 (Civ.Code 1910, § 4622) ; People v. Kelly, 35 Barb., N.Y., 457; Jackson v. Jackson, 47 Ga. 99; Massachusetts Ben. L. Ass’n v. Robinson, 104 Ga. 256, 30 S.E. 918, 42 L.R. A. 261; Allen v. United States Fidelity & Guaranty Co., 269 Ill. 234, 109 N.E. 1035, 1038.
Time to fight
You continue to suggest that these corporate employees are “in authority” with regard to the People of Tennessee.
“One more wrong Gov. Lee, Becky Barnes and their colleagues in authority are imposing on state of Tennessee, one more prejudice that is marketing for the policy of pandemic, the theater of ‘fighting’ Covid-19, as it is called.”
That entire concept is the “constructive fraud,” since only the People of Tennessee have ALL power of the Republic State.
If it is said that a fraudulent criminal element is “in authority,” isn’t that just carrying a fraud forward?
Notice is the first action of due process. Maybe it is time for the second.
Notification of legal responsibility is “the first essential of due process of law”. See also: U.S. v. Tweel, 550 F.2d.297.”Silence can only be equated with fraud where there is a legal or moral duty to speak or when an inquiry left unanswered would be intentionally misleading.”
Knowing failure to disclose material information necessary to prevent statement from being misleading, or making representation despite knowledge that it has no reasonable basis in fact, are actionable as fraud under law.”
Rubinstein v. Collins, 20 F.3d 160, 1990
a] “Party in interest may become liable for fraud by mere silent acquiescence
and partaking of benefits of fraud.”
Bransom v. Standard Hardware, Inc., 874 S.W.2d 919, 1994
Ex dolo malo non oritur actio. Out of fraud no action arises; fraud never gives a right of action.
No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act.
As found in Black’s Law Dictionary, Fifth Edition, page 509.
“Fraud destroys the validity of everything into which it enters.” Nudd v. Burrows, 91 U.S 426.
“Fraud vitiates everything.” Boyce v. Grundy, 3 Pet. 210
“Fraud vitiates the most solemn contracts, documents and even judgments.” U.S. v. Throckmorton, 98 US 61
When a Citizen challenges the acts of a federal or state official as being illegal, that official cannot just simply avoid liability based upon the fact that he is a public official. In United States v. Lee, 106 U.S. 196, 220, 221, 1 S.Ct. 240, 261, the United States claimed title to Arlington, Lee’s estate, via a tax sale some years earlier, held to be void by the Court. In so voiding the title of the United States, the Court declared:
“No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives.
“Shall it be said… that the courts cannot give remedy when the citizen has been deprived of his property by force, his estate seized and converted to the use of the government without any lawful authority, without any process of law, and without any compensation, because the president has ordered it and his officers are in possession? If such be the law of this country, it sanctions a tyranny which has no existence in the monarchies of Europe, nor in any other government which has a just claim to well-regulated liberty and the protection of personal rights.”
See Pierce v. United States (“The Floyd Acceptances”), 7 Wall. (74 U.S.) 666, 677 (“We have no officers in this government from the President down to the most subordinate agent, who does not hold office under the law, with prescribed duties and limited authority”); Cunningham v. Macon, 109 U.S. 446, 452, 456, 3 S.Ct. 292, 297 (“In these cases he is not sued as, or because he is, the officer of the government, but as an individual, and the court is not ousted of jurisdiction because he asserts authority as such officer. To make out his defense he must show that his authority was sufficient in law to protect him… It is no answer for the defendant to say I am an officer of the government and acted under its authority unless he shows the sufficiency of that authority…”); and Poindexter v. Greenhow, 114 U.S. 270, 287, 5 S.Ct. 903, 912
WHEREAS, officials and even judges have no immunity (See, Owen vs. City of Independence, 100 S Ct. 1398; Maine vs. Thiboutot, 100 S. Ct. 2502; and Hafer vs. Melo, 502 U.S. 21; officials and judges are deemed to know the law and sworn to uphold the law; officials and judges cannot claim to act in good faith in willful deprivation of law, they certainly cannot plead ignorance of the law, even the Citizen cannot plead ignorance of the law, the courts have ruled there is no such thing as ignorance of the law, it is ludicrous for learned officials and judges to plead ignorance of the law therefore there is no immunity, judicial or otherwise, in matters of rights secured by the Constitution for the United States of America. See: Title 42 U.S.C. Sec. 1983.
“When lawsuits are brought against federal officials, they must be brought against them in their “individual” capacity not their official capacity. When federal officials perpetrate constitutional torts, they do so ultra vires (beyond the powers) and lose the shield of immunity.” Williamson v. U.S. Department of Agriculture, 815 F.2d. 369, ACLU Foundation v. Barr, 952 F.2d. 457, 293 U.S. App. DC 101, (CA DC 1991).
“Personal involvement in deprivation of constitutional rights is prerequisite to award of damages, but defendant may be personally involved in constitutional deprivation by direct participation, failure to remedy wrongs after learning about it, creation of a policy or custom under which unconstitutional practices occur or gross negligence in managing subordinates who cause violation.” (Gallegos v. Haggerty, N.D. of New York, 689 F. Supp. 93 (1988).
“The law requires proof of jurisdiction to appear on the record of the administrative agency and all administrative proceedings.” Hagans v. Lavine, 415 U. S. 533
“If you’ve relied on prior decisions of the Supreme Court you have a perfect defense for willfulness.” U.S. v. Bishop, 412 U.S. 346