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.
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