CHATTANOOGA, Tenn., Feb. 22 — The court says state of Tennessee on relation is due no relief for harms admitted done because relator has no right by which he can claim a duty on the part of respondent Barnes to deliver honest government services.
The essential question is: Does respondent Barnes have discretion to obey the law, or does she have to obey state law? Relator rejects the court’s order that says discretion operates before compliance, not just after.
[Today this investigative reporter filed a motion demanding chancery court judge Pamela Fleenor rewrite her order dismissing his petition for mandamus against Becky Barnes, administrator of the health department. Judge Fleenor says the relator proves no injuries, has no standing, misuses mandamus, and is targeting someone who is free to ignore the law if it suits her. This post is part of his argument in a 34-page petition. — DJT]
Its dismissal order’s casuistry begins by describing mandamus very much in relator’s favor. “[W]here an official has the duty to do an act only after making determinations, evaluations or judgments, a writ of mandamus will not lie to do the act in any particular way,” citing Tusant v. City of Memphis, 56 S. W.3d 10, 18 Tenn. Ct. App. 2001. It goes on to say, “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 judgment” (emphases added).
Tusant doesn’t provide grounds for dismissal of relator’s petition, but for issuance of a writ of mandamus, other conditions having been met, to compel respondent Barnes to obey the law. The court supposes that if discretion is operative anywhere in obedience to a law, that mandamus will not lie. However:
Where the exercise of judgment or discretion is required, he may be compelled by the issuance of a mandamus to perform the duty, however his judgment regarding the details in the performance of the duty are to be left unfettered.
Tusant v. City of Memphis, 56 S.W.3d 10 (Tenn. Ct. App. 2001)
This above single sentence summarizes mandamus (duty) and its limit (no power upon details in the performance). The court’s summary of mandamus is starkly different: If discretion operates anywhere within the confines of obedience to a law, mandamus will not lie.
The authorities permit no such concept, because the court’s standard makes mandamus unworkable as a remedy, impossible to attain by any relator. Consequently, the action commenced by the state on relation does not regard lawful discretion, lawfully conducted, but targets unvested power to maintain any discretion, or the abuse of any discretion shown warranted. The respondent(s) failed to avoid the frauds, enumerated and evidenced in the petition, now admitted by respondent irreparably harming relator, reference the affidavit of irreparable harms, exhibit No. 1, without adequate remedy at law.
The court’s order for Barnes (one of two orders of dismissal in a single “cause”) reproduces the statute in full at Tenn. Code Ann. § 68-5-104; the case focuses on the duties in the 102 words in section (a)(1).
Officials ‘vested’ with authority
The concept of vesting is key for state of Tennessee on relation in making its demand for a proper understanding of the petition, the affidavits in support of the law, and of its intent — and so an alteration of the order.
A public official such as respondent Barnes is “vested” when she operates within the law and pursuant to the law, in obedience to provisions devolving upon her. The court’s order supports respondent Barnes’ actions to mitigate the erstwhile COVID-19 “pandemic” even though she is not vested to do any of them, which acts are promiscuously applied to the people at large, and not solely upon the sick and contagious in the law. Contrary to the court’s own acknowledgment as to its limits, the court’s order does substitute its will for that of the general assembly, and the people’s representatives’ theory about the law, despite that law’s clarity that saves it from needing to be subjected to a statutory construction analysis.
The court takes the law’s command to make a determination of a viral agent of contagion and construes it as an option, choice and preference of respondent, subject to the free will and opinion of the respondent.
As Tusant and other cases explain, mandamus lies not to compel Choice A when an official has an option between Choice A and Choice B. However, mandamus in Tennessee law will lie when the official has a duty to make a decision of either A or B, and compel him to decide according to his professional discretion within a vested duty.
A court will not substitute its judgment for that of an official vested with discretion unless the official has clearly acted arbitrarily and without regard to his duty in the exercise of that discretion. [emphasis added]
A court will not, by mandamus, disturb the decision and action of boards and officers vested in discretionary powers, except where they act in an arbitrary and oppressive manner, or act beyond their jurisdiction, or where they refuse to assume a jurisdiction which the law devolves upon them [emphasis added]
Tusant v. City of Memphis, 56 S.W.3d 10 (Tenn. Ct. App. 2001)
The Tusant case, as do others, clarifies the role of discretion in an equity petition that the dismissal order misconstrues, inconsistent with the intention of relator’s petition.
Where an official has the duty to do an act only after making determinations, evaluations or judgments, a writ of mandamus will not lie to do the act in any particular way.
A court will not, by mandamus, disturb the decision and action of boards and officers vested in discretionary powers, except where they act in an arbitrary and oppressive manner citation omitted, or act beyond their jurisdiction, or where they refuse to assume a jurisdiction which the law devolves upon them
Tusant v. City of Memphis, 56 S.W.3d 10 (Tenn. Ct. App. 2001)
The crux of the defendants’ contention is that mandamus can be used to compel a public official to perform only ministerial and not discretionary acts. *** In the legal sense an act is discretionary when an official has the lawful authority to determine of his own will whether or not he will perform the act. When the performance of an act is discretionary in the sense referred to above the only legal duty of the official is to exercise his discretion which he can do by either performing or declining to perform the act. When the performance of an act is truly discretionary, a writ of mandamus can only compel the official to exercise his discretion one way or another, it cannot dictate how the discretion is to be exercised. [emphasis added]
Bradley v. State ex rel. Haggard, 222 Tenn. 535, 539–40, 438 S.W.2d 738, 740 (1969)
Wisecrack relator fails to do Barnes’ job
State of Tennessee is compelled to act in chancery on relation because respondent Barnes and her executive branch superiors ignore the law; they harm the public health, safety and welfare with arbitrary and capricious health measures imposed on men, women and children not in any way subject to their authority apart from the lawful use of authority. Relator is concretely and specifically harmed by her actions, as exhibit No. 1 makes clear. He is harmed irreparably daily by her pretended control over the lives of tens of thousands of people in Hamilton County, whom she is defrauding by pernicious and bad faith acts done in her personal capacity under color of authority of the office as administrator of Hamilton County health department, which office is subject to state law.
The court denies relief because state of Tennessee’s relator failed to do the job assigned by the general assembly to respondent Barnes. The order describes the failure of a journalist and family man with no medical background to do sufficient detective work about cases to “allege what *** case” came before her in which she failed to diagnose or determine a case of the disease, as follows:
But Relator fails to allege what communicable disease case that Barnes received a report of where she failed to establish the diagnosis, or failed to determine the cause of the disease, or failed to take such steps to quarantine that person. Accordingly, Relator failed to state a claim for mandamus to compel Barnes to perform a specific ministerial act under T.C.A. 68-5-104. [Emphasis added]
Barnes order, P. 5
Relator wasn’t declared to be someone subject. But that hasn’t stopped respondent from irreparably harming relator under color of compliance with that statute the respondent denies being subject to.
Contrary to clearly established law, notwithstanding the tortured construction by the court, relator was not declared to be someone subject, yet respondent uses the color of authority of a communicable disease statute, that court has determined is not relevant to relator, to irreparably harm relator without adequate or complete remedy or prior notice, in dereliction of the duty the court admits is upon respondent, not the relator. The court also determines Tenn. Code Ann. § Title 68-5-104 is not relevant to relator. This is the actionable harm, relative to the affidavit, exhibit No. 1 in the petition, and justiciable.
Barnes had to find ‘non-fraudulent exigency’ in crisis
The petition properly interpreted evidences there is no communicable disease report respondent could have received, or which relator could allege, given the failure to produce any report required by the general assembly demanded prior to the commencement of the suit, and because any report would have been based in fraud if claiming to be pursuant to “COVID-19 pandemic,” or having relator’s name on it.
Contrary to the court’s assertion, the respondent, upon which this court finds the duties lie, is required to demonstrate the non-fraudulent exigency giving warrant to the power being used to irreparably harm relator, that this is lawfully vested; and which nevertheless is limited to quarantine, not to extend beyond as evidences in exhibit No. 1, the affidavit of irreparable harm. There is no stated authority the court relies upon to require relator to make a false statement to allege a report to a non-existent communicable disease, one merely purported to exist under color of authority through fraud.
The petition alleges respondent(s) ignored the entire statute, from A to Z, which would have protected relator. A giant fraud and misdeed are admitted in the record, including by the court, the evidence showing irreparable harm to relator without adequate remedy at law, the court faulting relator for not specifying a lesser wrong, through a duty not relevant to him; how this works is not explained at all or through any equity principle. It should not be expected to be explained, because equity, doing justice, will not allow it.
[N]owhere in his petition does Relator claim to be someone who was declared to be subject to isolation or quarantined. Nor does Relator seek a writ ordering Respondent Barnes to confirm his diagnosis that required Relator to be quarantined. The Court determines that Relator failed to allege that he sustained a concrete, injury in fact.
Barnes order, P. 7
The court says relator has no “injury in fact” because he cannot show that the law was operational under respondent Barnes, and that he was harmed by that operation and denied his rights. (The court should take judicial notice: The law was not, is not, being observed and obeyed.)
Without any evidence of any report required by the general assembly, the court ought not anticipate the relator could be someone declared to be subject or affected by the statute. This is one of the actionable principal trespasses of respondent(s). If jurisdiction were vested in the respondent(s), the required report generated with the name of the relator, the adequate remedy provided by the general assembly would be an application for writ of habeas corpus, not available to this relator not evidenced to be subject to the law.
Relator’s affidavits, or exhibits, not disclosed in its order, answer the court’s objection.
Before filing his action, relator had demanded information about the first communicable disease case of which respondent Barnes received a report, petition ¶¶ 27 – 30, about which she made report to respondent Lee’s commissioner of health as provided for in 68-5-104. His quest came up empty. Exhibits Nos. 3 and 4 show that respondent had no evidence that it had a first case. The exhibits show she did not determine the “source or cause of the disease,” its agent of contagion. That relator doesn’t identify the “communicable disease case that Barnes received a report of where she failed to establish the diagnosis” is not any lack that can be ascribed to relator, as if he were under a duty.
Exhibit No. 3 is a letter to the health department in which relator asks about compliance with five duties under the statute, section (a)(1), and demands evidence of their obedience to determine if respondent Barnes is vested with authority for her purported epidemic and mitigation project that now includes a program giving DNA-altering vaccine the respondent’s department rushed into public use. Exhibit No. 4 is the one-page letter from Dr. Paul Hendricks (“I can answer your questions in general terms,” he says. [“Fraus latet in generalibus. Fraud lurks in general expression,” warns Gibson at § 58, maxims and sayings relating to fraud]). See petition ¶¶ 36-41.
Multiple prejudices by Fleenor
This exhibit, which the court prejudicially fails to disclose or in context of the relator’s intention, shows that the department admits being in violation of the law, as respondent Barnes provides not one iota of evidence of compliance with the statute at any point of (a)(1). Respondent Barnes’ subordinate confirms there is not a first case that meets the definitions under 68-5-104, and that Hamilton County does not have any public health condition that merits being called an epidemic to vest any body with any authority.
The court’s analysis, speculating into a fourth dimension, an alternative reality imagining the intention and purpose of the petition, is unreasonable and prejudicial. The court, charged with doing equity, appears in its order on a search-and-destroy mission to remove every trace of it, none left even for the gleaners, in a cause irreparably harming 6.8 million souls nearly 350 days through fraud, relator particularly, as established in Exhibit No. 1.
The court examines the four main parts of Tenn. Code Ann. § 68-5-104 minutely. Yet it seems to not comprehend it. Where the court decoheres the law, it actually coheres into a whole. The law reads,
(a)(1) It is the duty of the local health authorities, on receipt of a report of a case, or suspected case, of disease declared to be communicable, contagious, or one which has been declared by the commissioner of health to be subject to isolation or quarantine, to confirm or establish the diagnosis, to determine the source or cause of the disease and to take such steps as may be necessary to isolate or quarantine the case or premise upon which the case, cause or source may be found, as may be required by the rules and regulations of the state department of health.
§ 68-5-104. Isolation or quarantine
The phrase “as may be necessary” indicates the acts are subject to review for abuse. Once the respondent can show the non-fraudulent exigency that as a matter of law is not to the discretion of the respondent to show to enforce discretionary acts. And where the relator cannot be shown to have caused an initiating report, then every act against the relator is arbitrary and capricious, for want of lawful warrant for the police power claimed.
At (2), as follows: “The commissioner is authorized and directed to promulgate and publish such rules and regulations as may be necessary to prevent the spread of contagious or communicable diseases.” This provision at (2) cannot happen until (1), above it, relevant to “the duty of the local health authorities, on receipt of a report of a case,” occurs. To allow respondent Barnes to evade her duty in (1) in the legislatively required process does not “apply the plain meaning without complicating the task,” Eastman Chemical Co. v. Johnson, 151 S. W.3d 503, 507 (Tenn. 2004).
The Barnes defense is “intrinsically linked” to that of the governor, the respondent says in a motion for enlargement, as are the duties of these public servants under law.
The order to dismiss is an argument by the court that officials are free to ignore state law when it suits them, or the court.
Time to fight