MR. TULIS: In my argument to strike the [Becky] Barnes motion for dismissal and the brief attached, I assert again that it’s an improper motion, pretending to have a concern for procedure when the fraud that is in the record and not rebutted, which is disobedience of 68-5-104, is unaddressed, the fraud of disobedience to black letter law that applies to everybody, from the governor on down — everybody involved in health and public health is bound by that law.
[This post is from the Jan. 11, 2021, phone hearing in the case State ex rel Tulis vs. Bill Lee, governor, a bid to compel his compliance with state law in the management of an erstwhile epidemic.The argument before chancery court judge Pam Fleenor highlights the great power of mandamus, how it empowers her to compel nondiscretionary acts by an official.]
That law, in sum, is not, is not a matter of discretion.
And so what I’d like to do, Your Honor, is, in this discussion about the striking the Barnes motion, is to, is to defend the petition as sufficient. Because we’re hearing here that the petition is improperly using mandamus, that mandamus is not a remedy and that I don’t have standing.
So these are, these are all issues that are appropriate in a discussion about the Barnes brief and motion, which — and so I — and I would suggest, Your Honor, that the points — since these are similar defenses by two parties, that the — that you understand my — while my words are directed upon her motion, they really are directed to both respondents together.
I demand that her motion be stricken as improper because it fails to account for fraud. And that’s a violation of 68-5-104.
That’s not allowed in equity, it’s not allowed to have the party with a duty — a known, clear, legal duty to obey. And here we have the health administrator in Tennessee ignoring and having no proof of compliance of this statute which has about five demands upon her and her office.
This suit was filed when I determined, as a fact, that she had not one — once looked at this law, not once had any discussions about it, there are no reports under it, not a single item of evidence that she is obedient to this law, the key health law, the quarantine epidemic law in Tennessee, ignored by the respondent Barnes.
And so that is fraud, that is deception, that is damage, and we are — we are all damaged.
And I’m specifically damaged as well, and that will go to my discussion on standing, Your Honor. So what we have here with her brief is a demurrer and an evasion. A demurrer — we don’t have demurrers in Tennessee law, but that’s what this is, and it is an evasion for now 101 days.
To say that Mrs. Barnes is exercising discretion is simply frivolous.
It is a frivolous argument.
The motion is under color of a proper motion, and it is using this court — with each day that passes without a ruling for mandamus, it is, it is asking and demanding the court perpetuate the fraud of this whole top-down solution to the year’s virus of the, of the — I object to the court not demanding obedience immediately to 68-5-104 or evidence of coming into compliance.
Due process rights in Barnes’ obedience to law
The evidence is, Your Honor, that I insist that you ask for that they are in the process of obeying or they have plans to obey. Maybe starting tomorrow, Your Honor, that this official plans to start looking at the law to see what it has in there for her to do.
Because as I’m asserting, I have a due process right in her compliance of the statute. My due process right, as evidenced in my affidavit of damages, my — with my five points, those damages came to me because she ignored her duty. That statute is, figuratively speaking, a complexity thicket. And she has to go into that thicket and meet all of its obligations before she [can] do anything.
That statute is binding upon her.
There is no discretion.
As I’ll get to and talk about mandamus. There is no discretion, Your Honor, apart from obedience. Discretion does not operate contravening black-letter law, in the health law, the health statute, Title 58, binding a woman whose whole life as a nurse and a local official has been under that statute.
She knows that statute very well. And I would say that she’s — in her motion — she is not denying fraud and she is not — she’s not saying I’m misperceiving the job or that I’m misreading. There is some suggestion that somehow I’ve just misread it, somehow this law — I’m applying it and it really somehow doesn’t apply to her. And yet, and yet Mrs. Barnes accepts my affidavit of complaint, the petition, of 212 paragraphs, and she accepts — without rebuttal, without putting me on the stand about my injuries, she accepts the affidavit.
’Roaches feeding on a stinking cancerous tumor’
And that’s — in chancery, there need not be — there need not be testimony in this case, because the damages are particular and personal to me. And so the petition, Your Honor, is sufficient. That is my main point here. It is made in good faith. It accurately portrays the law, the duty and the obligation of this, of this official. It is proof of disobedience of legislative enactment.
The people, through the General Assembly, passed this law, and she is in stark disobedience of the people’s will through statute which applies to her. And my case, my claims are, I would say, a brilliant light on corruption, fraud, roaches feeding on a stinking cancerous tumor dragging across the calendar, of 334 days as of today, a rolling stock of constitutional violations and arbitrary and capricious acts by the boxcar, by the boxcar.
The Constitution is being violated multiple times. I’m leaving those points aside because I’m looking — I’m firing the people’s tracer bullets, Your Honor, at the locomotive pulling this ruling stock, and that’s this law and this official denying obedience and duty to this law. In her duty to obey this law, petitioner and the state on relation has their due process protections.
We have protections in her duty.
And I, as a representative of the public, in Tennessee and in Chattanooga and Hamilton County, I have a right and — I have, I have a claim in equity, in equity, upon Mrs. Barnes’ performance. I have a right, Your Honor, I have title, I have interest and equity to know also from this court any inadequacy so that I can exercise my right to amend my petition. And now as to the propriety of mandamus, this case is justiciable under mandamus and the actions sought.
I have a distinct injury. There’s no rebuttal.
There is a causal connection between the actions of the health director in Hamilton County and my injuries, dealing with the economy, the economic damages, and also the false threats of arrest.
Redressability, that is very clearly in my favor as well. Mandamus, which is a one-sentence order directing her to obey the law, is redress. That solves my problem, that satisfies the State of Tennessee. Again, it is discretionary. If you look at Tusant v. Memphis, 2001, a very useful discussion, Your Honor, about mandamus. You can’t use it to force a course of discretionary power. It can’t be applied upon exercises of judgment, as these good attorneys have said. It’s not enforceable for an act, quote, done by an official who has lawful authority to determine whether or not he will perform the act. You can’t use mandamus to control an official judgment or discretion.
Mandamus does not lie where the right is, quote, doubtful, in Tusant v. Memphis. And also, you can’t use mandamus in, quote, any discretion concerning the doing of an act. [unquote] But, but mandamus must lie to enforce an official duty as defined in law. It is a purely ministerial act.
It is a summary — summary remedy, Tusant says. It is extraordinary — quote, extraordinary in its nature when the right has been clearly established.
And I say I have a clearly established right in her duty. It is a command to act or obey. It is not controlling discretion. Discretion is within obedience. That’s my main position here, is discretion is not apart from and in contravening obedience to the statute, Your Honor. It is within, within the statute, not apart or against it.
So, Tusant, quoted by the other side, rightly discusses the power of mandamus and its, and its obvious limits, which I’ve researched prior to coming before this court. Now, as far as — again, as far as the propriety of using mandamus, it is, justiciable, as I was saying. I have no other remedy. And in equity, when I’m being damaged I go to the remedy that serves, and that is mandamus. I am not asking, Your Honor, for anything that’s shocking or weird or freaky or bizarre. I’m asking for, a minimum, a minimum, in one sentence no doubt it could be done, that, that — the minimum is that Mrs. Barnes and Governor Lee obey the wholesome and good law and serve the public health.
Peremptory relief = 15 days at most
And in the interest of judicial economy, I would say mandamus is a great thing to get in your court. It may interfere with your routine child custody, probate and contract cases, Your Honor, but because it’s preemptory it throws all your, all your dockets out of way for 15 days or so but then it’s gone, it’s gone.
But that hasn’t happened. And I am — I find this a very dolorous circumstance. Mandamus, Chancellor Fleenor, exists exactly for this case. This case is a perfect mandamus case. And Barnes and Lee don’t say that mandamus won’t solve the problem regarding their duty and my right. They’re not saying it doesn’t work. And they don’t object that my demand won’t stop irreparable harm. My demand will stop irreparable harm. And this, Your Honor, empowers you and chancery court to bring and restore the status quo ante of our rights respective. And I would say that, that regarding — that your, your authority and your — as Gibson’s Suits in Chancery points out — the 1955 edition, I believe I have, that chancery handles in wholes and not in halves.
And I want to make this opportunity to demand that the writ issue.
And so, finally, Your Honor, finally, this suit is upon two respondents, Mrs. Barnes being the first one in this, in this part of our hearing. They are acting outside the law, they’re acting under color of law, either in their personal capacity or in somehow miscreant use of their office. I am not saying that the state has done anything unconstitutional. I’m not saying anything about the state. I am the state in this case.
I represent the State of Tennessee. I’m the relator. I’m not saying that any law is unconstitutional. I’m not attacking any law and I’m not attacking the state. I am the state.
Rather, Your Honor, rather, the State of Tennessee on relation says that Mrs. Barnes has violated the sovereign state’s legislative enactment. The state does have sovereignty. It cannot be sued. And Mrs. Barnes has violated the sovereign state’s legislative enactments through its people.
And that, Your Honor, is fraud.
That, Your Honor, is irreparable harm.
And they are continuing with the court’s leave. With each day that there’s no mandamus, the one sentence that says “obey the law,” we have irreparable harm.
I’m defending the law. Your Honor, I’m defending the law. The good, honest government services, it requires and it invites law and order, duty and honor, and representative constitutional government.
How enemy argues against standing
I am personally injured. There has been no rebuttal by Mrs. Barnes on my injuries. She — if she wants to put me on the stand about my injuries, she can do that, but I’ve got it all right there, five, five areas of damage. And the fact that we have many people damaged is a very dangerous position to take, Your Honor, and here’s why — one moment.
The case Spokeo, Inc. v Robins, 136 S.Ct. 1540, 194, that’s a 2016 case, it says that
The fact that an injury may be suffered by a large number of people does not of itself make that injury a nonjusticiable generalized grievance
under the requirement for Article III standing that the plaintiff suffer a particularized injury. There is particularized injury. And in this boilerplate law work that these two lawyers have done, they’re pretending that just because I represent the people as a whole and speak about them lovingly and caringly as suffering like me that suddenly I don’t have a damage. No, I have specific damages. And everybody, everybody who’s listening to this hearing and everybody else in this state are suffering individually in different ways. Just because we have infamy at-large doesn’t mean we don’t have infamy. And I am specifically damaged and personally damaged.
And they have a duty, Mrs. Barnes has a duty, Your Honor, that implies my right of relief today, my right of relief today, for the writ of mandamus. And I think — thank you, Your Honor. I think that covers my motion to strike.
THE COURT: Okay. Mr. Tulis, I have one question. Could you give me the cite of that Supreme Court case again, sir?
MR. TULIS: Yes, ma’am. It’s Spokeo, S-p-o-k-e-o, v. Robins, R-o-b-i-n-s.
THE COURT: All right.
MR. TULIS: And it’s 136 S.Ct. 1540, 194.
THE COURT: All right. Thank you. I appreciate that. All right. Ms. Milling, would you like to reply on behalf of your client? Ms. Milling, did you mute your mic? Because we can’t hear you.
Time to fight