FRANKLIN, Tenn., Dec. 14, 2021 — A county judge throws out prosecution of a journalist ordained by Tennessee’s chief supreme court justice, illustrating the power of the lesser magistrate doctrine for local officials to thwart evils in remote power centers.
The arrest of this investigative reporter Nov. 6, 2021, in Franklin, Tenn., at a judicial conference was permitted by top Tennessee judge Roger Page. Prior to his having me arrested and hauled away in a gurney, Justice Page got two legal briefs indicating the journalists intended to cover the event because state law and the Tennessee constitution forbid government in secret.
Judge M.T. Taylor in the general sessions court of Williamson County dismisses the criminal trespass charge for lack of probable cause even though he says repeatedly that the prosecution witness, a Franklin cop, had put on a “prima facie case” — a clear-on-its-face case invoking the provisions of criminal law.
The doctrine of the lesser magistrate is a biblical idea revived in 2013 by Matthew Trewhella, a Milwaukee abolitionist and pastor whose book The Doctrine of the Lesser Magistrates is becoming a sensation in Western Christendom showing how beleaguered localities can lawfully and under authority of Romans chapter 13 resist despots in faraway capitals.
“I’m not going to give you what you want,” Judge Taylor rules.
“I’m going to find there is no probable cause.”
So ends the 70-minute hearing Dec. 16 in the wealthy Nashville suburb of Franklin.
“The one-eyed giant of judicial secrecy just faltered, fumbled, and stumbled over the pebble of David Tulis,” NoogaRadio 96.9 FM mid-state bureau chief Christopher Sapp says afterward.
Arrest with no legal basis
Police officer William Orange testifies that he and other cops ordered Mr. Sapp and me to quit the conference room in which the judges were having a secret meeting. He got the hotel manager, Lisa Hegwood, to order me off the premises to justify his arresting and charging me. Police did not charge Mr. Sapp.
The journalists submitted detailed analyzes to Justice Page, mine received 17 days before the Saturday conference and Mr. Sapp’s two days before the conference. The Tulis “Memorial, remonstrance & petition invoking administrative authority to access AOC conference” was eight pages of law and citations; his was nine pages, with 33 footnotes.
The intervention of judge Taylor goes against the plans of the judicial department’s higher ups — against administrator of the courts head Deborah Tate, education manager John Crawford, general counsel Rachel Harmon and, behind them, the top judge. They relied on court policy to order my arrest while we argue to Judge Taylor that law trumps policy.
Judge Taylor’s defiance of the chief justice could be construed as favoring Justice Page — saving him from the humiliation of my getting a trial by jury. I had demanded such public airing of the case by right before Judge Taylor. Earlier in the day I’d asked the same before sessions judge Denise Andre.
I wonder if our harassment and my arrest were ordered by chief justice Page. I know for certain it was ordained by him and/or by Mrs. Tate. Our detailed legal demands were rejected without comment, not considered sufficient to gain us access pursuant to the bill of rights.
We are fighting to get public servants to obey black-letter law, and to stop the evil practice of excluding themselves from constraints of the constitution and the Tennessee Code Annotated.
Officer Orange testifies he was on “an unwanted subject call” to help the highway patrol to “remove unauthorized persons from the premises” from the hotel ballroom. Officers Orange and Sgt. Jeff Carson asked me to leave, and we asserted our right to remain inside the ballroom.
“Mr. Tulis maintained his right to be there throughout the entire encounter. *** Mr. Tulis, after he declined” the command to leave “— I told him I was going to give him another chance to stand up and walk out before we put him into custody. He declined and said that he can’t stand up, he can’t — he doesn’t have the strength to assist us with his unlawful arrest. At that time I told Mr. Tulis he was in custody, please stand up. He refused. I handcuffed him. He maintained he didn’t have the strength to help us.”
The testimony is elicited by assistant district attorney Chris Vernon.
Officer Orange testifies he called EMS to remove the 6-foot-2 writer from Soddy-Daisy with a bow tie. He directed two EMS workers to wheel me out on a stretcher to the lobby into an ambulance, wherein Officer Orange chatted with me and offered to let me sign a citation if I promised to leave Embassy Suites immediately.. He testifies he asked me to leave “four or five times.”
“You didn’t arrest him — you cited him?” Judge Taylor asks.
“Correct,” the officer says. This claim appears to be based on Tenn. Code Ann. § 7-63-104, arrest when offender refuses to sign agreement to appear. The claim is a presumption, because I was handcuffed and manhandled, and not free to leave. ‡
The judge blocks an effort to verify the officer’s signature on the one-page summons, not allowable in general sessions because it is part of discovery. Officer Orange says he spoke with an unidentified man from the AOC who described me as “an unauthorized person and that you needed to leave.” This man likely was John Crawford, education manager for the courts administrator.
I ask which party had authority to boot me — the hotel or the judges group. “Ultimately the hotel had authority,” Officer Orange testifies.
The judge objects, saying I am asking Mr. Orange to make a legal conclusion. My rebuttal is that the officer made such a conclusion in the arrest, and that his reasoning about law is part of the fact base in the case.
I bring to the judge’s attention the six-page contract between AOC and Embassy Suites. The judge says it is outside the officer’s scope of knowledge. Still, when asked if he considered the administrator of the courts and Embassy Suites as legally separate entities, he says, “I don’t know that it entered into my thinking at the time.”
I ask the cop whether he obtained city or county attorney advice prior to the arrest. “I did not — no,” Officer Orange says.
The arrest violated another Tennessee law at T.C.A § 40-7-103, requiring the officer to obtain a warrant first because the misdemeanor he was investigating was neither a public offense nor a threat of the breach of the peace.
Judge Taylor invites me to put on witnesses — or to testify myself. He warns me that if I testify I face legal jeopardy for statements “that can be used against us in prosecution of this matter,” and the criminal charge has “some time in incarceration.” I say I will testify. But a two-minute conference in the foyer with Mr. Sapp changes my mind.
Sapp advocates for liberty as witness
The ebullient Mr. Sapp, 52, father of five grown children, of Sparta, Tenn., says he is NoogaRadio midstate bureau chief and a reporter on the air. He wears a heavy leather jacket and jeans.
I unroll a first question about his role that Saturday morning, but the judge chides, “You’re not supposed to wind him up like a cheap Japanese toy and let him go.” He insists on precise questions to elicit facts.
“I was ‘trespassed’ *** from property that I believe that I had a constitutional and statutory right to attend,” Mr. Sapp says, warming up into his facts,
— and I think that I was wrongfully trespassed by the administrative offices of the courts who were looking to employ state troopers as well as local police officers to get us — me, specifically — out of the conference room. They did not want to continue the conference. I had a conversation with a trooper *** we were asked to leave, but we were not threatened to leave. It was only after we wished to stay that we were threatened with arrest if we did not leave. The officers were put between a rock and a hard place, between having to decide who was right on this matter, us or the administrative office of the courts.
The AOC had a contract with the hotel, Mr. Sapp says, indicating a copy of the document is in the judge’s hands. “In my opinion that was state of Tennessee property. When you were criminally trespassed, it was Mrs. Hegwood that testified that you were not allowed on the property. She had tried to tell me the same thing. *** You made assertions over and over again, as did I, that the ballroom belonged to the state of Tennessee, and Mrs. Hegwood did not have a contractual right to trespass us because, at that point, it belonged to the state of Tennessee. And the right person to have trespassed anybody would have been administrator of the courts.”
“You better start asking some questions,” Judge Taylor tells me, and then to Mr. Sapp, “or I’m going to ask you to step down.”
Mr. Sapp testifies he gave notice to Justice Page that he intended to be present, hand delivering a nine-page administrative demand letter to a clerk. It was given to the top judge because he is the “direct upline supervisor” of AOC head Deborah Tate, Mr. Crawford and general counsel Rachel Harmon. These officials told Mr. Sapp he could have no access to the conference, Mr. Sapp testifies.
“She couldn’t give me any authority why I couldn’t have access” to log-in credentials. “I told her, look, we have this Art.1 sect. 19 right to investigate this. We have open meetings act laws that are in this state. It is the public policy of this state that the formation of public policy will not be conducted behind closed doors. And I searched for any authority for whether no was really no.”
Mr. Sapp testifies Mrs. Harmon sent him Dorrier v. Dark, 537 S.W.2d 888, 892. (2) When he read the 1976 Tennessee opinion, he says,
I thought that it made my case even stronger, so I pulled the case file, looked at it, put my thinking cap on and I realized that under the Dorrier versus Dark holding, what the court said in that position right there was that any body that could be traced back to the state legislature was a public body, and we know from state statute that all three of the judicial conferences are a formation and creation of the state legislature themselves.
It is birthed out of an act of the state legislature. They are funded by public monies.
The conferences are required by law to meet on an annual basis. They have the authority to make policy recommendations to the state legislature. Whether they do at the conferences or not, we don’t know. And really I just wanted access to see what they actually do. I am told no. That just didn’t sit well with me. Are you supposed to believe the foxes are guarding the henhouse, and take their word for it that they’re not eating the hens and crushing eggs?
Judge Taylor begs the defendant to cut short the pontification — “Mr. Tulis, you are not doing what you were instructed to do.”
“I would say that the question is answered yes, in short, but the yes is answered with a long flagellum of legal reasoning and arguments — ”
Judge Taylor appears a stern schoolmaster. Arguments come at the end, not from the witness stand from one of the troublemakers. He also says, holding up the contract, that “nowhere does it exclude the owner of the premises from deciding who gets to come in.”
I point out this paragraph in the contract that’s crossed out.
“What about the paragraph that’s been deleted?” I demand. “The judges here, your honor, in their groupings appear to be offloading liability for any harm at the event.”
“That’s what lawyers do,” Judge Taylor says. “There’s nothing in here that you said — you said the man said the hotel had given up their right to make a decision about excluding anyone from the premises because of this lease with the judicial conference. The lease with the judicial conference for the use of that space doesn’t, in my estimation, doesn’t take away the hotel’s authority to exclude anybody they want to exclude from the premises for whatever reason they want to exclude them. It doesn’t say that.”
The judge says that even if property is leased the owner retains the right to exclude someone. But I have an answer to that.
“Yes, but this matter is a matter of great public interest because these are —”
“That may be.”
“This is a state function. This is like a court”
“That may very well be,” the judge interjects.
“That event was like this courtroom.”
“Members of the public have a right to attend, and the [press] has a right to report on.”
“What do you think goes on there?”
“The agenda had a legislative session, had a session on evidences, and it had another session on sovereign citizens.” (1)
“What do you think that is? It’s called educational programs, right? So, that’s not what goes on there?”
“Those events, and the reason these two reporters wanted to cover this event is that it is a public interest. It is a public venue. There is effective easement by the state upon the corporate property. There’s no crime that’s been committed by me.”
Judge Taylor is ready to decide against the journalist.
All I can tell you is they put on a prima facie case, the general has, that you have violated this statute at 39-14-405. The owner of the premises asked a member of the Franklin police department to ask you to leave that there’s an absolute defense to the violation of this act if in being asked to leave you do leave. And what ordinarily happens is when someone thinks they have the right that you believe you have, then once you are asked to leave, and you do leave, then you file a civil case to bring this into focus and ask the court to decide whether or not your being excluded from that was a violation of your constitutional rights. That’s the way these things ordinarily happen.
“Do you agree or disagree?” he says.
Sessions courts are a great deal of hum-drummery and routine, and often don’t let judges get into actual questions of law up close. Judge Taylor says the long proceeding is going to make him late getting home, and his mother for whom he cares is not going to be timely served her dinner. But he is willing to let himself go into the issues the defendant is raising.
Is being a belligerent claimant in person enough to get arrested the wisest approach to make reform. It appears kindly disposed, not wanting me to harm myself.
A former high school civics teacher, he recalls, Billy Bradshaw,
talked about people who want to assert their constitutional rights on some issues. If people want to assert constitutional right and they want to be able to assert a civil disobedience when they think a law is not a proper law — is that right? But hardly any of them want to go to jail over it. They want to be civilly disobedient, but they don’t want to go to jail. So, they’re looking for what you call a free pass. And the only way to get that is to go through the court system to decide whether this law is impermissible based on the facts that you asserted. You’re sorta going about it in the most obviously dangerous way of doing it. Right?”
He seems almost to be arguing that I am doing things the right way. I bring up Rosa Parks, who said she was “going to sit in the front of the bus because she was tired. She made them arrest her. *** She did the right thing, and her case won reprieve in the supreme court.”
“But in the meantime she went to jail,” the judge says. “There are all kinds of wonderful people who are right. But you’ve got to be willing to pay the price for being arrested.”
“Well, I’m here because I’m willing to pay that price, sir. A member of the press. I know what I am doing. I wasn’t snookered into this.”
The judge says the contract doesn’t show that the hotel gave up its right to kick me off the premises.” Turning to Mr. Sapp, he says, ‘You’re a witness and he is supposed to be asking you questions, and he’s not doing that.”
Sapp: Not act of civil disobedience
Mr. Sapp testifies he was not arrested.
I was asked to leave. I refused to leave. I asked the officers plainly, what’s going to happen if I don’t leave. And they said, “Well, they’re not going to continue the conference as long as you sit here.” And I said, “Is there any jeopardy in me sitting here? I’m not creating a disturbance. I’m not being disorderly, I’m not being unruly. Why am I being asked to leave? I’m a member of the press. I have a constitutional right to be here. This is a public meeting. I have a constitutional and a statutory right to be here. This conference does not have a right, because it is a state-owned property at this point, does not have a constitutional right to ask me to leave.” This is what I asserted to the officer. The trooper told me, “They’re just not going to continue.” And, I said, “I’m going to sit here all day, then.” And she was like, “That’s OK with me.” And everyone was jumping around like chickens with their head cut off for about 20 minutes until Officer Orange and, there was one or two other officers that responded. And they came in, had all their battle rattle gear on, and they were like, “Mr. Sapp, you need to leave.” And I was like, “I’m happy to sit right here where I’m at.” It was not an act of civil disobedience. There was no law that kept us there. It was simply administrative office of the court policy. They said they were exempt (from the open meetings law).
Mr. Sapp insists on the power of law over the power of claims about law.
Abraham Lincoln once said, “If we were to call a tail a leg, how many legs does a dog have?” And most people would say five. But five is the wrong answer because a tail is still a tail. Because you call it a leg doesn’t make it a leg. And just because administrative offices of the court was contending that that was a place that they could *** ask us to leave from, we did not feel that it was. We felt like it was wholly inappropriate.
It was no different than if the secretary of state held elections in hotel ballrooms and excluded people he didn’t like, Mr. Sapp says, with Black Lives Matter activists or Trump supporters “trespassed” for being present. “That would be wholly improper.”
He says he had protected press rights to be at the conference, “just as much right to be at that conference as I would to a school board meeting, to attend a county commission meeting —”
“Did you say that?” I ask.
“I did state that. I had just as much right to attend that as to watch my state legislatures and my state representatives. This public body is not above the law. I have every respect in the world for judges and our high court. But they are not special to where they get to meet behind closed doors in secret, either. They do not exempt themselves. The public policy of the administrative offices of the court does not set aside our public meetings law — ”
“Did you say that?”
Judge tries to corner witness
“I know this law and this right exists for the press. It does exist for this instance, that is my contention. We maintain that.”
Your honor, either we have rights, or we don’t have rights. Article 11 section 16 exempts all the article 1 rights out of the general powers of government. The government can’t make a law to tell the press what to do. And under article 10 of the United States constitution, it says whatever is not given to the federal government is reserved to the states or to the people, and if the state exempts the right of the press out of the general powers of government, it’s left to Mr. Tulis and myself to determine what that right of the press is. That’s where we’re at.
“I know it’s a bold, cheeky position to take. And we walked into the lion’s den. I understand that.”
“As long as you’re up to that,” the judge says.
The judge here interrupts to ask Mr. Sapp if he has the right to sit in any public school classroom. Mr. Sapp says he hasn’t read the law about that question.
“Write or die,” Mr. Sapp says.
“I don’t know about that,” the judge retorts. “I don’t think this is a capital offense.”
“It’s not a capital offense, your honor. But it is misconduct and official oppression, we believe, on the part of members of the administrative office of the courts. We believe that those public servants took advantage of the situation. We have emails from John Crawford, who is a public employee, that had already determined that we were persona non grata. And he conspired with people in the executive branch of government, with the state troopers.”
“Here’s what I’m interested in,” the judge says. “This is an educational conference — ”
Competing ‘prima facie’ cases
“No — we don’t know that,” Mr. Sapp says. “That’s part of the reason we need access to that. They have a legislative committee meeting. What [does] that do? They’re not teaching judges how to be legislators.”
Judge Taylor says the state has made out a prima facie case of criminal trespass.
“And we’re making a prima facie case, based on common law, Dorrier v. Dark, and the case I gave over to Justice Page is a very salient and very arguably valid reading and understanding of the law.”
“That very well may be. But that’s not what I’m here to determine,” the judge says. “I’m here to determine if there is probable cause to believe that a crime was committed. But you’re not charged with anything.”
“I wish that I were. I wish I had the standing that Mr. Tulis does. I actually asked the officers, ‘Would you please put braces on me?’ That’s on the video, too. ‘Please give me one of those citations.’”
“We have a mental health court here,” Judge Taylor says, cracking a smile.
“I’m not about that. I’m about preserving our liberties and our civil rights. I just want the courts to do the right thing.”
I argue for liberty
“I was in this event by right,” I argue. Citing the officer’s testimony, the authority for the arrest was the manager.
“When you read the statute, you don’t have to be making a disturbance, to create a disturbance to be asked to leave,” the judge says.
“In a public place, at a public event, taxpayer funded, the AOC paid the night’s stay for the judges. The bill is about $50,000. The room we were in was where the conference was given. *** We breached security to get through. When the door opened and closed, the judges coming and going with their drinks, waiting for the next event —” Mr. Sapp and I entered.
the forbidden area, the no-go zone, private, members only, not allowed by them. I had penetrated security. We crashed the party. That’s how we’ve reported this case. ‘Journalists crashed the party, one arrested.’ That’s the way this happened.”
The judge reads from the statute T.C.A. § 39-14-405 that says criminal trespass is a person “on property *** without consent of the owner,” and Mrs. Hegwood represented the owner.
“The explanation we gave her, your honor, and John Crawford *** is that we were here by right. And that right supersedes her authority to throw us off, especially since we’re not in riot, or causing any kind of breach of the peace or public disturbance. There was not a public offense by me sitting at my computer.”
Was being in ballroom ‘civil disobedience’?
When the judge says I was carried out on a stretcher “as an act of civil disobedience,” I insist otherwise.
It can’t be a criminal trespass because I had a right to be there. If I have a right to be there, representing the public, then the right of the owner, the owner of the property, which is contracted out to another party by easement, effectively, means I have a right to be there. Under the open meetings act and under art. 1 section 19, I am right to be there. And I am going to make them wrong me to insist I am right. I am right to be there. I cannot be thrown out. I cannot be dragged out. I will not walk out. I will not voluntarily ambulate out of that room and miss what the judges are being told by a national speaker whom we could not even find out the identity of. In our open records under sham excuses we could not even find out his name. We want to see the check –
“You may find all that stuff out,” Judge Taylor says.
“Yes, we intend to. But here, we are not trespassers. We are not criminals. We’ve not intended – there’s no reference to intent in this document (the citation). Where is the intent? My intent is to be there rightly and truly, serving the public, exercising constitutional rights.”
“They changed a bunch of those common law statutes. The intent is inferred from the violation, in the offense. It used to require specific intent, but it doesn’t. Not since they changed. Intent is inferred.”
“When did that happen?”
“About 1980. They codified all the criminal laws.”
“I would say that we have given proper notice of our intent. The judge got a detailed analysis from me. 8 pages. It’s been published. He got it 17 days ahead of time. And Mr. Sapp also had one. I tend to not use footnotes. He had 33 footnotes. I like to have the law not in small type but in big type. The reasons of our being there are not irrelevant to this case. TCA 17-3-107, I remark on Page 3, about the conference,
It is the duty of the conference to give consideration to the enactment of laws and rules of procedure that in its judgment may be necessary to the more effective suppression of crime [public interest] and thus promote peace and good order in the state. To this end, a committee of its members shall be appointed to draft suitable legislation and submit its recommendations to the general assembly.
“Now that is the legislative committee meeting on Friday. We couldn’t get even the minutes of that. How — how is that — how does that, under supreme court Rule 34 — how does that ‘impede’ or ‘harm’ or ‘frustrate’ the operation of the judiciary —”
“I don’t care about impeding or the operations of the judiciary,” Judge Taylor says. “What I care about is the business operating here in Williamson County asking you to not remain upon the premises, and the business owner’s representative asking you to leave, and you say you have the right to be there.”
Officials ‘suborn perjury’
I argue that I am victim of tort and crime.
Your honor, the fact that I have been wronged by tort by this company by a manager who may not have consulted her legal department in this, is a breach. And that is outside the scope of this hearing. But that is a clear wrong against me for this company to take a man in good attire in good English and good teeth, to force him out of the building for no reason, just because the client is unhappy at that person being there. That manager had nothing against me; she had nothing against me. She was lied to and she effectively suborned perjury to make my presence odious and a trespass to the judges. She was misled by them. She was misled by a statement made by somebody that I am committing a crime and committing a breach — I am breaking the trespass law by being there. She is a victim as much as I am. That is because there are people in the court system who want to maintain a kind of neo-feudal barony of judges upon the people. They are offended that I’m there.
The judge interrupts. “You are aware this is a courtroom and that it is at least one judge. You say that is my intent? That is what I want?”
“I’m not saying you, sir. I’m saying, as awhole, and the administrators.”
“The whole? You’re just going to whitewash us all at the same time?”
“There are exceptions. In our town, Tom Greenholtz, he is a criminal court judge in Hamilton County. He is supreme court material. He is a tremendous writer and a great legal mind, and I’ve told him, ‘You belong on the supreme court.’ We have good judges. But what I feel we have custom and usages which holds the judiciary above the people.”
I say I had intended to cover the sovereign citizen lecture. “Who are these sovereign citizens? Who are these people? Mr. Sapp and I decided, well, we’re going to cover this. We’re going to hear about these people not identified in any statute. Sovereign citizens are not identified in any law. There is a case in which I am involved as the relator about the governor. I mean we have a governor who is a sovereign citizen. So, I’m very interested in sovereign citizens and the overthrow of government.”
“You say our governor of this state is a sovereign citizen?”
Yessir. Because he ignored the health statue at 68-5-104, and the case is on appeal in Knoxville right now. The whole question of sovereign citizens is worth reporting on, and I was there to report it, and I had a right to be there. Again, we’re dealing in this case, your honor, with the motives — we’re looking at the fruit of the motives I’m suggesting, let’s just say speculating. This AOC, the renter of the space, knowingly and intentionally preying on Mrs. Hegwood, in ignorance, and she was misled. She was misled, your honor, to trespass me. Why did not Rachel Harmon trespass me? Why did not Deborah Tate trespass me? These people are — I’m trying to suggest the ill motive behind my arrest. Why not have a judicial official and a lawyer do it? Why a woman who doesn’t know anything about law tell me I am not wanted here and I have to leave? I had a right to be there.
“No, she is the representative of the owner of the property.”
“Serving the renter, serving lessor.”
“That is something that you presume.”
“Well, I was sitting there quietly. I was not causing trouble to any guest in that place. Not even the judges around me were upset. They were all taking pictures. No one complained.”
‡ Says Christopher Sapp: If Officer Orange testifies that he simply cited you rather than “arrest” you then this is not an accurate statement. You record him plainly stating that you were ”under arrest” at which point you were handcuffed and physically removed from the room. While you may have later received a “release citation” in lieu of continued custody, you were no less physically restrained and actually arrested by the officer. Citations given in lieu of an arrest simply means that you agreed to be cited to appear in court RATHER than be physically arrested, handcuffed and hauled before a magistrate for trial.
- Tenn. Code Ann. § 8-44-102(b)(1)(A) defines a ‘Governing Body’: “The members of any public body which consists of two (2) or more members, with the authority to make decisions for or recommendations to a public body on policy or administration.”
2. Dorrier v. Dark, 540 S.W.2d 658 (1976) “It is clear that for the purpose of this Act [TOMA], the Legislature intended to include any board, commission, committee, agency, authority or any other body, by whatever name, whose origin and authority may be traced [back] to State, City or County legislative action and whose members have authority to make decisions or recommendations on policy or administration affecting the conduct of the business of the people in the governmental sector.” [Emphasis Added]