The emergency state of Gov. Bill Lee has been in place 491 days, since March 12, 2020, and is scheduled to expire July 31.
Our lawsuit is one of two on appeal, the other filed by Gary Humble of Tennessee Stands, the activist group.
Depending on how they’ve been framed, the actions face the problem of mootness as time passes and the “justiciability” of the cause vanishes with the end of the emergency declaration that wrecked the state economy and established the precedent of constitutional abrogation “for cause.” My petition for writ of mandamus makes demands that account for the threat of mootness.
Totalitarian overreach worldwide to the so-called coronavirus is nearly certain to be repeated. The current campaign is falling into disrepair with revelations of fraud, deceit and state-caused bioterrorism. But precedent has been set in many American states and in many countries for absolute power.
In the U.S., courts have dissected and ruled illegal several regimes. U.S. district court judge William Stickman, for example, on Sept. 14, 2020, published a excellent ruling against Gov. Thomas Wolf. The “lockdown” seemed at least partly over by December. But in many states the tyranny continues with little abatement.
It is important to persist in the battle because an undisturbed state of emergency under Tenn. Code ann. § Title 58 is precedent, and the cathartic high given officials is not easily forgotten.
The law operates on a general principle that an unconstitutional act is not just voidable, but void. However, even an unconstitutional act gains constituency, favor and familiarity with people and officials, and takes a life of its own. Custom and usage make even illegal laws stronger than they are as void lines of type.
“The courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the challenged decree,” says the U.S. supreme court in a 1941 case.
“It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications.
The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects,—with respect to particular relations, individual and corporate, and particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations, deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination . These questions are among the most difficult of those which have engaged the attention of courts, state and federal, and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified. * * *
Flournoy v. First Nat. Bank of Shreveport, 197 La. 1067, 1083–85, 3 So. 2d 244, 249–50.
This statement shows the damaging effect of illegal acts such as Gov. Lee’s abrogation of constitution and law in Tennessee. Rights become “vested” in the erroneous law or eict. Rules, policies, orders and opinions arise while the illegal regime is in place, and create their own authorities premised on the illegal grant.
People vote for a candidate in hopes he will respect the law and obey his oath. The oath is intended to secure a governor’s compliance exactly for the trial of a “pandemic” or a “revolt” or a natural disaster, when he is tempted to throw aside the law and resort to brute force and mass action apart from constraint. Emergencies are the real test of a public servant.
Gov. Lee fails the test, as do other elected representative in state, county and city governments. Without known exception, the people representatives have sided with absolutism and authoritarianism. Their complicity has altered the DNA of the body politic. It has made us familiar with private opinion dressed up as directive, rule and policy.
I pray for favorable rulings in my case, State ex rel David Jonathan Tulis v. Bill Lee, governor, et al. But we’ve become a people different. We’ve become a government different, courageous — and novel.
Time to fight