Common law rightsEmergencyInterpositionPanic 2020Political figures

Lee says executive orders closed courts, but they’re ‘constitutional’; Fleenor agrees

Gov. Bill Lee, in his defense against the State ex rel Tulis lawsuit, says the courts are OK to be closed during his fraudulent health panic. (Photo Robin Smith on FB)

MR. TULIS: — [T]hey are to be physically open in their buildings so that people, common people, rich people, poor people, people with phones, people without phones, can come and attend that — to watch the operation of justice and in your court of equity.

By David Tulis / NoogaRadio 92.7 FM

(This exchange is in a hearing over my lawsuit to end the Tennessee fraudulent state of emergency by compelling Gov. Bill Lee to obey Tenn. Code Ann. § 68-5-104, which he and others have fraudulent violated in playing their part in what Dallas physician and scientist Dr. Michael McCullough says is state-based bioterrorism. I argue that it is illegal and prejudicial to deny my case open public hearings in person. The state attorney defending Gov. Lee says phone conferences are sufficiently constitutional.)

And we have, in the opinion from the Supreme Court, Richmond Newspapers vs. Virginia, an excellent diagnosis of the problem of closed courts. If courts are closed, people can’t be sure that justice is being reached in criminal matters and also in civil matters. And I would say that the order to close your court today, Your Honor, is premised on the fraud, that record of this case entered October the 2nd in your court, fraud all around as regards the danger — the danger of this virus and the failure of the governor to obey 68-5-104. So, there’s not a cause — there’s not a lawful cause to have the court closed today, Your Honor.

That’s, that’s my argument for my motion, orally, written, that you got in writing, why this hearing needs to be in person.

THE COURT: Okay. Thank you. All right. Response. Ms.[Janet] Kleinfelter, I’ll start with you.

MS. KLEINFELTER: Yes, Your Honor. So, respectfully, there is not a constitutional claim here, whether we’re talking about under the First Amendment or Article I, Section 17 of the Tennessee Constitution. Both of those stand for the proposition that the courts are to be open to provide a remedy — to provide a cause of action if someone has been injured. The courts have never construed either provision to mean that the courts have to be physically open.

And in this instance, Your Honor, the court is operating under the order that has been put down by the Tennessee Supreme Court with respect to how courts are to be operated in light of COVID-19. And there is not a situation here where the courts have been closed, as evidenced by the fact that I believe there are at least four individuals who are neither parties nor counsel of record in this proceeding who are on the phone and have been able to participate in this proceeding.

So, there’s really not a constitutional claim here for the hearing to be held in person, physically in  person. And, factually, the hearing is as the court — this proceeding has not been closed by the court. Instead, the court is operating in accordance with the Tennessee Supreme Court’s order.

THE COURT: All right.

MR. TULIS: Question.

THE COURT: Sorry? Excuse me?

MR. TULIS: Question. Is it possible for people to join this hearing at any time in the course of moments or minutes that it lasts, or do they have to come in at the beginning —


MR. TULIS: — and are otherwise barred?

THE COURT: No. It’s open all day. All right. The court’s ready to rule now. The court is ruling on this preliminary motion filed by Mr. Tulis to vacate hearing order and for hearing under Constitution. What he — what Mr. Tulis stated as grounds in his motion is that he’s entitled to an in-person hearing because of the January 11, 2021 order of the Supreme Court which states that proceedings directly related to the COVID-19 public health emergency are among those exceptions to the suspension for in-person proceedings. What the court finds is that — and I’ll read it directly.

The following — this is the Supreme Court’s order entered December 22, 2020, which states: “The following are exceptions to the suspension of in-person court proceedings: “Proceedings directly related to the COVID-19 public health emergency.” The court discerns that these are matters where the government imposes a quarantine on someone or someone is brought before the court for violating that quarantine, because all of the exceptions to the suspension of in-person court proceedings are matters where someone’s rights are potentially restricted by the state or third-party, without due process, through an emergency order. In other words, they are hauled into court against their will. Here, the relator has not been hauled into court against his will; rather, the relator has initiated this, this petition. This is not a private hearing, as he states in his motion, this is a public hearing. Anyone can access my courtroom virtually by using the information that’s posted outside of my courtroom door, which is the  telephone number and the access code. As evidence of this, there are members of the public listening in to this.

This has been posted since March of last year. And it’s also posted at other parts on the third floor of the courthouse where my courtroom appears. And we have 25 people attend hearings telephonically on occasion. Also, for instance, if I have a 10:00 hearing and a 10:30 hearing and my 10:00 hearing goes over, the people on the 10:30 hearing sit and listen to the completion of the 10:00 hearing.

This is an open proceeding. This is — now, as to, as to specifically this hearing today, this is not an emergency hearing to which Mr. Tulis has been summoned into the court against his will. Neither the state nor any third party filed the action against Mr. Tulis. Relator filed this writ of mandamus on 11 October 2nd, 2020, and requested an expedited hearing. I set it as quickly as I could as soon as service was  obtained on the defendants and time for them to respond. The Governor filed a motion to dismiss, Ms. Barnes requested one week to file her motion to dismiss. So the court set both motions to dismiss to be heard telephonically on January 11, 2021, by order entered December 8th. Mr. — that was an open court, in-person proceeding. Mr. Tulis did not object at that time to the telephonic hearing, and then he files an objection to the telephonic hearing on January 4th. The reason I set it telephonically in December was out of discretion. It was because I was not  accepting any testimony; I did not have to observe the demeanor of the witnesses; I did not have to determine their credibility. This is merely argument on questions of law.

The court can consider this telephonically. However, now, after that order was entered the Supreme Court has entered a new order which states that — this is paragraph two of the order entered December 22, 2020: Proceedings — “All in-person proceedings in all state and local courts in Tennessee shall be suspended through the close of business on Friday, January 29, 2021, subject to certain exceptions.” So now we’re not allowed to have an in-person proceeding on this, it must be done telephonically.

So the court rules, as a matter of law, that Mr. Tulis is not entitled to an in-person proceeding on these motions to dismiss, on the — or on his petition for mandamus. Just a minute. I’m getting my page. So the motion for in-person proceeding filed by Mr. Tulis is denied. I find as a matter of law this is not the type of exception to the order that can be heard in person. Ms. Kleinfelter, as the prevailing party under the local rules, will you prepare that order for both respondents?

The Tulis Report is 1 p.m. weekdays at NoogaRadio 92.7 FM.

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