The crude doings of government in Hamilton County and elsewhere are highlighted in its refusal to obey the Tennessee health law in a health contagion, to ignore the epidemic law in a supposed epidemic. I say crude because its powerful and self-directed actors are free to do as they please in trying to “mitigate” the year’s combo version of cold and flu — the so-called novel coronavirus, or CV-19.
By David Tulis / NoogaRadio 92.7 FM
The boldness of people such as Becky Barnes in ignoring the law is evident in their court filings, where they claim discretion. Discretion to obey — or not. In my Feb. 22 filing, I explain the basics about law. Discretion operates within obedience, not against it, not apart from it. You have discretion in compliance, in administration, but not to reject legislative enactments in statute that regulate your activity, and protect the people in their rights and liberties.
Mrs. Barnes and Gov. Bill Lee have overthrown the law, and have abrogated the constitution. That offends you, because you have no due process rights. The right to notice, hearing, trial, adjudication and means of appeal. Under administrative fiat and “directives,” there is no way to resist. People are getting used to living under edict and state fiat. On their side: Judge Pamela Fleenor in chancery court. On Jan. 21 she ruled against my petition for writ of mandamus, seeking to compel obedience. The relator in this case has a word or two for her, as follows from my detailed analysis in your defense.
The court deletes obedience and duty to law, and substitutes discretion as the means by which respondent(s) do their jobs.
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]
Barnes order, P. 3
The court works to remove three sections of the law from the dispute at hand over duties in Tenn. Code Ann. § 68-5-104(a)(1). Yes, (a)(2) applies to the commissioner. Section (b), regarding one who has escaped quarantine, classifies that as a misdemeanor. Section ( c), deals with placarding the house of a person under quarantine and the duty of city or county officials to give such a person subject to lawful police power “a copy of this law.”
The fact that relator cannot state a claim under section ( c) indicates relator has no adequate remedy at law, required to be found for relief in equity for the irreparable harm respondent is causing under color of the communicable disease statute without warrant. She is imposing police power, but apart from law; hence, relator has no means of appeal an unjust finding; neither does anyone else.
The court takes the reference of “such steps as may be necessary” in at (a)(1) and magnifies it so greatly that it obliterates the clear non-optional, non-discretionary and ministerial duties in the preceding lines, nevertheless to the sole purpose of quarantine to stop the contagious principle. One need not read too closely to see how limited this expression of discretion is intended to be.
The law begins by these words: “It is the duty of the local health authorities” (respondent, though her office is not named) to do several things:
- ➤ Receive a report of a local case (“on receipt of a report of a case”)
- ➤ Recognize the dangerous special nature of the case, if it is not a familiar illness (cholera, yellow fever, smallpox and other epidemic diseases such as TB), the condition which is to be “declared to be communicable, contagious”)
- ➤ Coordinate with the commissioner of health, who has identified and isolated the illness (“one which has been declared by the commissioner of health to be subject to isolation or quarantine”)
- ➤ “Determine the source or cause of the disease” (discern the isolate of, say, a novel coronavirus)
- ➤ Use police power, notice, postings, legal action and other means to “take such steps as may be necessary” on a case-by-case basis “to isolate or quarantine the case or premise upon which the case, cause or source may be found.”
- ➤ This process occurs “as may be required by the rules and regulations of the state department of health,” properly applied.
The “steps as may be necessary” to “isolate and quarantine the case or premise” are premised on preceding provisions regarding receipt of report, a case or suspected case, declaration of communicability, confirmation or establishment of a diagnosis, determination of source or cause.
The “one which has been declared by the commissioner of health to be subject to isolation or quarantine,” including any by respondent Gov. Lee, is not free from demonstrating a non-fraudulent exigency, the determination of which the general assembly provides no alternative to other than Tenn. Code Ann. § 68-5-104.
The court magnifies the phrase “as may be necessary” of a subsequent act to apply to ministerial, non-optional and non-discretionary acts, and upholds violation of law, upholds effectively the fraud admitted in the petition.
In the 102 words of (a)(1), there is both duty and discretion. The court would have relator, or the public, believe that if discretion operates anywhere in the law, upon a detail or a process, the entire law is thus optional, discretionary, not a duty, up to the personal opinion and preference of respondent Barnes, and that mandamus will not lie.
For respondent Barnes to be “vested with discretion,” she must be within the statute and obeying it, not disregarding and disobeying it, according to the cases. The petition shows respondent(s) are not vested, and given the frauds cannot be vested, and there is no record evidence avoiding the fraudulent evasion of duty and law.
Statutory construction rule contradicts order
The court hauls in the rules of statutory construction, which undermine its thesis of duty and discretion. The court refuses mandamus and equity because it contends discretion “vests” with an official on its own. It doesn’t. Authority vests when the official does his duty pursuant to the plain meaning of the black-letter law, with any one law working in coordination with all other statutes. Then, discretion operates.
Vest is defined as “to give an immediate, fixed right of present or future enjoyment” and “to accrue to; to be fixed; to take effect. To clothe with possession; to deliver full possession of land or of an estate,” Black’s. The court disputes the truism that an official is vested with authority, the lawful exercise of which allows discretion. Discretion is a byproduct from obedience; it comes after obedience, and in administration of law (in ministry in law, if you will).
There’s no “fixed right of present or future enjoyment” of an office in contradiction to obedience to law. Without duty being fulfilled, it is impossible to exercise discretion. Without duty and obedience, all acts of discretion are arbitrary and capricious, by definition.
Standing based on exhibit of personal, concrete harm
The court says relator lacks standing to ask for a mandamus or other equitable relief because he fails to show “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.” Relator will treat under separate headings other angles of attack on his standing that give the court subject matter jurisdiction.
The court says relator must “demonstrate a causal connection between the plaintiff’s injury and the challenged conduct” and that the court has authority to redress the injuries he has alleged, order, P. 7.
The court ignores relator’s material affidavit of injuries in Exhibit No. 1. That is because, evidencing undue influence, respondents ignore it, too. They seek to block relator’s march toward relief by mandamus or equity with barricades of persiflage, case citations and misrepresentations about Tennessee jurisprudence, and the intent or purpose of relator’s petition and evidence, which argument the court prejudicially adopts.
Rejecting affidavit evidence without express foundation or warrant, the court looks for harms of its own design, superimposes them upon relator and finds — voila — that he wasn’t harmed. The court says “nowhere 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 presumes in this line of thinking that the statute is operative. It presumes without evidence or a medical report in denial of any duty pursuant to Tenn. Code Ann. § 68-5-104 that authorities have declared relator is a carrier of a coronavirus, that authorities by notice or court case have ordered him by police power or court order to be isolated and quarantined.
The relator is constitutionally secured to be presumed innocent of all wrong-doing until a lawful showing by respondent(s) to the contrary. Relator is unaware that anyone has been quarantined under the law, and with the effect of law. The law at Tenn. Code Ann. § 68-5-104 is effectively nullified by respondent’s refusing to obey it. The relator has no adequate remedy for these breaches of law and of trust for the irreparable harm caused by respondent’s breach of court-determined, law-imposed duty.
The court amplifies its fictive artmaking. It says he fails to “seek a writ ordering Respondent Barnes to confirm” a diagnosis directing relator “to be quarantined.” The court says it “determines that Relator failed to allege that he sustained a concrete, injury in fact. Relator failed to allege that he was quarantined or escaped from quarantine, so as to demonstrate a right to relief under the statute. Further as he has alleged no right to relief under the statute then it follows there is no clear ministerial duty that Barnes must perform as a remedy” P. 7.
From this discussion the court says respondent Barnes has no duty to perform the statute she admits not obeying, and that because relator cannot show she misused her powers while administering the statute in the court’s theoretical narrative, that he has nothing to complain about. State of Tennessee on relation admits to being baffled.
The court’s in a bleak house in this narrative, with its prose seemingly borrowed from the leaves of Jarndyce and Jarndyce in Charles Dickens’ novel. The court’s story pretends that the law is in operation: “Relator failed to allege that he was quarantined or escaped from quarantine, so as to demonstrate a right to relief under the Statute.” The court pretends relator is seeking “a right of relief under the statute,” P. 7, as if the statute were in operation and its operation had caused a harm or violated his due process rights, or that the statute is the sole source of right for relief.
It is not. See petition ¶¶ 12, 13, 21, 51, 53, 86, 87, 98, 99, 131 —
132. Without fulfilling the statutory and constitutional obligations, given the unquestioned prerogative extended to the Executive, it can’t be known this isn’t a health crisis fraud perpetrated under color of science or medicine; the lack of bona fide evidence would indicate it is fraud and much worse.
133. An inexcusable deleterious fruit of refusal to obey T.C.A. § 68-5-104 is this: If there is an actual health crisis, respondents’ fraudulent reliance on misleading foreign presumption prevents the people from acquiring knowledge of the real contagion and how they might protect themselves.
Petition
— and also ¶¶ 201, 203, 207, 208.
If the statute were obeyed, he would have due process rights therein — the right to notice, hearing, trial and right of appeal out of sessions court, if found guilty of being a carrier of a contagious condition. See the tuberculosis statute at Tenn. Code Ann. § 68-9-201 ff for details on the legal process required for the state to seize a citizen for an alleged wrong. The court protocols intended to protect relator and all other citizens in a tuberculosis outbreak is the same that need to be operating today, under the novel flu that broke out in March 2020.
But the statute is not operative. Respondents have not harmed relator by invoking and using the statute, but by having refused to do so, denying any duty. If the statute were invoked, relator would have right of due process, a right to be heard in a timely manner, a right to rebuff claims rightly presented to him with notice, the right to face an accuser, the right to have a charge in writing, the right to have witnesses and the power to compel witnesses, and opportunity to respond as the general assembly provided.
As he does not have exercise of these rights, under vested police power exercised under constraint of law in Hamilton County, he is irreparably harmed and with no recourse except mandamus, to compel obedience, or other relief equity provides and demanded in the petition. In ignoring the law, public servant respondents put the entire population in quarantine apart from due process, which the lawful due process intended by the general assembly operates upon individual men and women, one at a time, for breaches of law, each person having a right to notice, a charge, trial and right of appeal under a quarantine or closure order, and contrary to the court’s order.
The court breaks down the law to suggest its provisions are misused by relator. On P. 5, “[S]ubsection ( b) states that a person who willfully escapes from a quarantine commits a Class B misdemeanor. Thus the Court determines as a matter of law that subsection (b) does not apply to Respondent.” The court provides no foundation to explain its premise that the general assembly intend that this statute applies in parts, not a unified whole.
The court goes on: “Further subsection ( c) states that when a local health authority quarantines someone, it is the duty of the health official to deliver to the head of the household a copy of this law. Relator did not allege that Respondent Barnes failed to deliver to the head of any household of a quarantined person, a copy of this statute. Thus Relator likewise did not state a claim under this subsection.”
The court’s analysis presupposes that the law is operational. It supposes that if it were operational, it would have injured relator, and since relator reports no harm from the operation of the law, he has no grounds for complaint. The respondent’s brief, P. 7, weaves a yarn about “petitioner” who “has alleged no injury relative to the application Tenn. Code Ann. ¶ 68-5-104.” He hasn’t been diagnosed, quarantined, can’t identify any other person quarantined, and “complains primarily about wearing [a] mask,” which latter she says is “neither contemplated nor controlled by the law..
This suggestive sequence of suppositions bends the court’s memo into an alternate dimension of reality into which relator’s imagination has scarce enough wits to enter. Truly, a reflexive quantum leap.
The relator cannot be expected to allege misdeeds of a law not in operation. Theoretically, were the statute honestly being administered, relator could have had an encounter with a local health authority about its provisions; he would then have had right to notice, etc., and the protection of his due process rights. But since the law isn’t operational, its provisions haven’t harmed him. He is not subject to the law, has no duty under it — not charged in its administration.
Relator is failing to state a claim, as the court sees it, arising from operation of a law that respondent Barnes refuses to put into operation.
Twisted reasoning by judge
Demonstrating a non-fraudulent communicable disease exigency is not the duty of the relator. Despite determining the statute does not apply to relator, and agrees he fulfills an element for standing, the court misinterprets what mandamus relief is to do and misappropriates the law, misapplying the duties relative to relief and the intention of the petition. The petition doesn’t seek to correct a specific discretionary nonministerial act but to stop an official not vested with lawful authority from irreparably harming relator without adequate remedy.
In its analysis about the parts of the law, the court keeps looking for something that doesn’t exist, but is supposed to, before relator was to be affected, and then only reasonably within the communicable disease statute delegation, and then with opportunity of adequate remedy, not as the petition adequately alleges through fraud under color of a communicable disease, to irreparably harm relator (see exhibit No. 1, affidavit of individual harm) without remedy.
The court asks more of the statute than is intended by the legislature. There is no right to relief under the statute for someone wrongfully infringed, under its color. The standard to avoid harm is the statutory direction directed to the respondent to avoid liability. The right to remedy, is an equity principle and the Tennessee constitution — not the statute which the court agrees the respondent has the duty to fulfill and also determining it is not relevant to the relator.
The court cannot have it both ways, that the relator is magically responsible to the statute at the same time determining it is not relevant to him, at the same time saying the respondent has no duty whatsoever, in its zeal to cover for the unavoided fraud of the respondent in irreparably harming relator without lawful warrant, or demonstrating a non-fraudulent exigency, or in the alternative, petition ¶¶ 45, 50-52, exercise of non-abusive discretion were the respondent to have avoided her fraud under color of state law.
Respondent Barnes, her public health department and her “intrinsically linked” collaborator in fraud, respondent Lee openly admit to defying the statute. Respondent Barnes, in having no isolate for the conditions identified as COVID-19 or SARS-CoV2, in having made no determination as to the “contagious principle” (phrase from Tenn. Code Ann. § 68-1-202) of the purported condition, evidenced by no initiating medical report, is defrauding the relator and the public and injuring public health with purported mitigation methods outside her authority, even if it were vested, disgorged against the public in her personal capacity, that may or may not slow the spread of the set of symptoms dubbed COVID-19.
Relator’s petition is filed under authority of the Tennessee constitution for equity relief and pursuant to the mandamus statute at Tenn. Code Ann. § Title 29, chapter 25, serviceable to the people of Tennessee to quash acts causing irreparable harm caused by respondent without adequate remedy at law. In its quantum leap, the court violates its rule, cited in order P. 2, to “construe the complaint liberally, giving the plaintiff the benefit of all reasonable inferences.”
Ignoring a main body of material evidence for standing, such as the petition and Exhibit 1, is wrongful, violating at least the rules of evidence, equity principles and state of Tennessee’s due process rights on relation, and relator objects and so demands an amended order.
Time to fight
Sorry, an attorney has set forth that the governor has “Sovereign Immunity”, so he can do whatever may please “his highness” since he enjoys a standing vastly superior, and above yours.
You should be thankful that he shows a little “mercy” regarding you.
After all, you are taking up a lot of time of his “chancery” court. Which you have yourself offered as the Kings conscience.