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2 more justices ink fraudulent emergency decree March 2020, must recuse

Tennessee Justice Holly Kirby, right, joins in official misconduct with Gov. Bill Lee in his declaration of a state of emergency March 12, 2020, without any legal basis, warrant and without having a nonfraudulent exigency. I am demanding she disqualify for any role in hearing my petition for equity and writ of mandamus. (Photo AOC)
Tennessee supreme court justice Sharon Lee, right, speaks with a well-wisher at a social event, joined by chief Justice Roger Page. (Photo AOC)

On March 13, 2020, five Tennessee supreme court justices took part in a wicked and illegal act, and now sit on a court into which has come my petition for redress against acts done by Gov. Bill Lee to overthrow the government, in which they joined.

By David Tulis / NoogaRadio 96.9 FM

The illegal acts of Republican Gov. Lee began a day before, on March 12, 2020, in which he declared a “state of emergency” but without a lawful basis. My suit against him, filed Oct. 2, 2020, alleges that he disobeyed the infectious disease law at Tenn. Code Ann. § 68-5-104, and that all his acts must be declared void and fraud because he was never vested (by obedience) to have those powers.

He has admitted fraud in court, admitted violation of the law, and effectively admitted felony crimes (official misconduct, T.C.A. § 39-16-402).

As now-retiring attorney Herbert Slatery III did not prosecute him for felony and oppression, and instead defends Gov. Lee, it has been up to me to prosecute these wrongs and redress of them in the name of the state itself, representing the state and her 6.8 million people. The case does not demand damages for suffering and loss. It demands redress of wrongs by violation of law, the chief harm being to the law itself, and in consequence wrongs to the entire population of people, starting with me, as an exclusive and unique victim suffering harms unique to me and shared by no other person statewide.

To stop these four justices from pretending to be neuteral, unbiased and disinterested judges, I filed Aug. 1 a Motion for recusal & disqualification that insists judicial rules be obeyed and that these justices come off the bench to consider my petition for a hearing in the Tennessee supreme court.

This post includes my review of the authorities, and the roles of two justices — Sharon Lee and Holly Kirby — as participants in overthrow of constitutional government. They have created a defiant biosecurity administrative state, communist style in its pretended claim to be able to order people about en masse, a state not bound by the constitution nor black-letter law, as seen in my petition for equity an for writ of mandamus.

‘Comes now state of Tennessee, on relation’

Comes now state of Tennessee, on relation, in its petition for equity and writ of mandamus, demanding recusal of four honorable justices of this court who have an interest in this case or a personal connection with relator.

This motion is pursuant to Tenn. Supreme Court Rule 10B §1.01 and asserts the rights of the state, on relation, to have its petition heard by justices who have no bias against its cause or against his person. Petitioner has three grounds for recusal by the chief justice, Roger Page, two grounds against Justice Jeff Bivins, and one each against Justice Holly Kirby and Justice Sharon Lee.

This motion is filed in writing, timely in advance, supported by affidavit under oath, and states specific factual and legal grounds supporting disqualification. The motion seeking disqualification or recusal of the aforenamed justices is not being presented for any improper purpose whatsoever, nor is this motion presented to harass or cause unnecessary delay, or needlessly increase the cost of litigation. As has been true throughout all of the underlying proceedings, petitioner desires to have his constitutionally guaranteed rights of due process upheld and adhered to, and to be fairly heard, and to have his case ruled upon based upon facts and evidence, and according to constitutional provisions, statutory law, supporting authority, and by a fair and impartial tribunal.


The authorities that regulate this motion start with the state and federal constitutions, to which the justices have sworn obedience.

In the Tennessee constitution, the applicable provisions are art. 1, sect. 17. “That all courts shall be open; and every man, for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial, or delay,” and art. 6, sect. 7, that judges “shall not be allowed any fees or perquisites of office nor hold any other office of trust.”

Also in art. 6, sect. 11, regarding when judges must agree to step aside in any case in which they have an interest or partiality, or in which they are shown to be “incompetent” for cause or reason. 

No judge of the Supreme or Inferior Courts shall preside on the trial of any cause in the event of which he may be interested, or where either of the parties shall be connected with him by affinity of consanguinity, within such degrees as may be prescribed by law, or in which he may have been of counsel, or in which he may have presided in any Inferior Court, except by consent of all the parties. In case all or any of the judges of the Supreme Court shall thus be disqualified from presiding on the trial of any cause or causes, the court or the judges thereof, shall certify the same to the governor of the state, and he shall forthwith specially commission the requisite number of men, of law knowledge, for the trial and determination thereof. The Legislature may by general laws make provision that special judges may be appointed, to hold any courts the judge of which shall be unable or fail to attend or sit; or to hear any cause in which the judge may be incompetent.[Emphasis added]

The meaning of “he may be interested” is intended to be read broadly. The 1796 constitution provides this wording, albeit the provision originally is shorter. It says, “No Judge shall sit on the trial of any cause, where the parties shall be connected with him by affinity or consanguinity except by consent of parties.” The word “interested” is added in 1834. The provision says, “No Judge of the supreme or inferior courts, shall preside on the trial of any cause, in the event of which he may be interested, or where either of the parties shall be connected with him by affinity or consanguinity within such degrees *** [etc.]”  

Art. 10 Sect. 1 requires a swearing under oath to obey the law. “Every person who shall be chosen or appointed to any office of trust or profit under this Constitution, or any law made in pursuance thereof, shall, before entering on the duties thereof, take an oath to support the Constitution of this state, and of the United States, and an oath of office.”

As stated in supreme court rule 10, code of judicial conduct, “A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety,” Canon 1, and “shall comply with the law, including the Code of Judicial Conduct,” Rule 1.1, and “shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety” Rule 1.2. The rule cites impropriety and the “appearance” of it. “A judge shall perform the duties of judicial office impartially, competently, and diligently,” Canon 2, and “shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially,” Rule 2.2.

The rules prohibit a range of biases, prejudices and harassment, saying a judge “shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment,” which comment is followed by a long list of categories: “race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation,” Rule 2.3.

Other ethics commands focus on the process of self-removal or ouster of a judge. Rule 2.11, disqualification, says “(A) A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to the following circumstances: (1) The judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of facts that are in dispute in the proceeding.”

“[T]he underlying intent of the recusal rules is ‘to guard against the prejudgment of the rights of litigants and to avoid situations in which the litigants might have cause to conclude that the court had reached a prejudged conclusion because of interest, partiality, or favor’” Cain-Swope v. Swope, 523 S.W.3d 79, 87 (Term. Ct. App. 2016) (citing Groves v. Ernst-W. Corp, No. M2016-01529-COA-T10B-CV, 2016 WL 5181687, at *4-6 (Tenn. Ct. App. Sept. 16, 2016) (quoting State v. Austin, 87 S.W.3d 447, 470 (Tenn. 2002)). In Tennessee recusal is always in order when a judge has any doubts about his or her actual ability to preside impartially. Alley v. State, 882 S.W.2d 810, 820 (citing Lackey v. State,  578 S.W.2d 101, 104 (Tenn. Crim. App. 1978). Recusal is warranted “when a person of ordinary prudence in the judge’s position, aware of all the facts known to the judge, would find a reasonable basis for questioning the judge’s impartiality.” Alley, 882 S.W.2d at 820 (citing State v. Cash, 867 S.W.2d 741 (Tenn. Crim. App. 1993)). Applying these standards, a court must first ask whether, subjectively, it can be fair and impartial in the case, and if not, the court must recuse. Camp, 361 S.W.3d at 548. Once a court has determined that it can be impartial, the court should then examine the facts alleged by the movant and determine whether a reasonable person of ordinary prudence, knowing all of the facts known by the judge, would conclude that the judge is biased or prejudiced against a party. Alley, 882 S.W.2d at 820.

Background of the motion

The four justices in view in this motion have joined the fraud complained of in this lawsuit, that of declaring an emergency without there being a warrant, cause or nonfraudulent exigency before invoking police power and other prejudicial acts or omissions of the court, the petition taken true as equity principles require. The state, on relation, files a petition to review for injustice in this matter of the unusual and extraordinary cause of official fraud causing irreparable injuries and harms, without remedy to date, despite every equity principles or law to the contrary. 

The four justices participate in the failure to meet police power prerequisites for demonstrating a nonfraudulent exigency, in violation of T.C.A. § 68-5-104 in which health officials, overseen by respondent governor whose duty at Tenn. const. art. 3, sect. 10, is to “take care that the laws be faithfully executed,” including T.C.A. § 68-5-104 requiring him or his agents to make a determination as to the origin, cause and source of a local illness or sickness spreading beyond outbreak in a county as a seeming epidemic within the state of Tennessee. The following are grounds for “which the judge’s impartiality might reasonably be questioned.”

The four justices’ partiality is anticipated in the state of Tennessee’s petition, on relation, for equity and writ of mandamus Oct. 2, 2020 (paragraph numbers omitted).

As many astute commentators have observed, as this court should today, since the beginning of this national self-inflicted disaster and embarrassment all along, COVID-19 has never been about a health crisis. 

While it claims no such power by separation of powers evasion, the judicial branch of this state, on its own motion, failed in its inherent power and duty to check that a co-equal branch of the government had followed the law, the conduct or omission of which created the disaster and irreparable harms to the state of Tennessee and its people, wrought by respondents under color of a pandemic without warrant.

The judicial branch has taken part in the panic and mass illegality. Chief Justice Jeff Bivins’ July 9 “executive order” about face masks in governmental buildings that happen to contain courts creates an unprecedented and arbitrary power that is not judicial and not internally administrative to that branch, a power imposing an command on parties such as county commissions and clerks in a shared building who are not involved in any judicial case and whose offices are not within the judicial branch, further infringing political or other fundamental rights of the general public accessing their government instrumentalities. 

The judicial branch failed to identify the dereliction of the executive branch to obey legislative enactments, such as the duty imposed by 68-5-104. 

Because of these governmental trust breaches, nothing from any government official can be trusted. 

The four justices breach Rule 2.11 because they have personal knowledge concerning respondent Lee, having taken up an alliance with him in breach of the constitution. The rule says recusal is required when “[t]he judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of facts that are in dispute in the proceeding.”

Tennessee justices compromised

Justice Holly Kirby and Justice Sharon Lee

Facts regarding Justice Holly Kirby and Justice Sharon Lee

Justice Holly Kirby and Justice Sharon Lee must disqualify themselves from hearing this case because they signed the March 13, 2020, order closing the courts without ascertaining a nonfraudulent exigency for the respondent governor’s actions nor the judicial department’s, and they did not evidence dissent from the March 17, 2021, mandate against relator’s appeal for correction of maladministration in chancery in a cause unprecedented and extraordinary in gravity and consequence.


THEREFORE, signing fraudulent orders and having knowledge of facts outside the case make these two honorable two justices, like the others, subject to recusal to avoid obstruction of constitutional law. Recusal is due when “the judge’s impartiality might reasonably be questioned,” touching also on the justices’ independence, bias, or the appearance of impropriety, etc., in the prejudicial handling of this matter to date, upon an administrative complaint mistreated as an appeal without a lower court order. The court’s mandate denies administrative relief and deprives state on relation a remedy without explanation and denies a power known to the justices when relator files his first of three grievances Nov. 3, 2020, demanding intervention administrative and judicial “when, in the judgment of the court, there is no other plain, speedy, or adequate remedy” Tenn. Code Ann. § 27-8-101. 

Court has original jurisdiction

That power is the supreme court’s actual common law original jurisdiction, and the power of certiorari to remove a case from a trial court for abuse. The court knows or should know its original jurisdiction survives the updating of the 1796 constitution in 1834, when the phrase is added to art. 6, sect. 2, that the court’s jurisdiction is appellate only, and exists in a saving clause in the constitution consistent with plenary equity powers. 

The first constitution envisions certiorari on a two-way street. The superior court can “issue writs of Certiorari to remove any cause into the superior court on sufficient cause,” and a lower court “shall have power in all civil cases to issue writs of Certiorari to remove any cause *** into their Court on sufficient Cause supported by oath or affirmation.”

The 1796 constitution gives the high court power to assume original jurisdiction of a lower court case, by an oath of the party. And it gives the lower court, by oath or affirmation, power to send a case such as State ex rel Tulis under affliction in chancery straight to the supreme court.

Art. 5, Sect. 6th The Judges of the Superior Courts shall have power in all civil cases, to issue writs of Certiorari to remove any cause or a transcript thereof from any inferior Court of Record into the Superior on sufficient Cause supported by oath or affirmation. 

Sect. 7th The Judges or Justices of the inferior Courts of law shall have power in all civil cases to issue writs of Certiorari to remove any cause or a transcript thereof from any inferior Jurisdiction into their Court on sufficient Cause supported by oath or affirmation. 

Tennessee constitution, 1796

In 1834 the people limit extraordinary intervention by this phrase, “The jurisdiction of this Court shall be appellate only,” art. 6, sect. 2.

The savings clause in today’s constitution recognizing its inherent original jurisdiction is in italics: “The jurisdiction of this court shall be appellate only, under such restrictions and regulations as may from time to time be prescribed by law; but it may possess such other jurisdiction as is now conferred by law on the present Supreme Court,” art. 6, sect. 2.

Duo denied urgent remedy demand

This organic power of original jurisdiction is developed in certiorari jurisprudence. “The extraordinary power is not applicable to just any case. The writ of certiorari derives from Article 6, Section 10 of the Constitution of Tennessee, but the practice with respect to how and when it may be obtained is set out in statutory provisions enacted by the General Assembly of Tennessee. Today, the statutory provisions regarding the writ are found at Tennessee Code Annotated section 27–8–101, et seq.

The remedy of certiorari is not available as of right, but is only to be granted under unusual or extraordinary circumstances. The writ may also not take the place of an appeal when an express provision for an appeal is available; although, there are some circumstances such a fraud, contrivance by the opposing party or the court, or the willful or negligent act of the court clerk that will excuse the failure to pursue an available appeal and permit review by way of certiorari.” State v. Hartwell, 124 S.W.3d 629, 631 (Tenn. Crim. App. 2003) (internal citations omitted). The petition of the state, on relation is an “unusual or extraordinary circumstance,” and notwithstanding any evasion in any denial by counsel to the respondents-in-fraud for want of timely avoidance as to those frauds, an admission.

“[T]he Supreme Court is a direct creature of the Constitution and constitutes the supreme judicial tribunal of the state and is a court of last resort. All other courts are constitutionally inferior tribunals subject to the actions of the Supreme Court. Its adjudications are final and conclusive upon all questions determined by it.” Barger v. Brock, 535 S.W.2d 337, 340 (Tenn. 1976).

The justices who read petitioner’s administrative grievances against the trial court know they have authority to unilaterally order the record up from the trial court, sua sponte, to deliver justice for the frauds and official breaches claimed, the petition taken true, and pursuant to this constitutional original jurisdiction can make any orders required to do justice, forthwith. Instead, the court mistreats the administrative complaint as a writ of error or review without a dispositional order doing so as well without any stated foundation as equity requires, the fraud on the court preserved by timely objection. Given cooperation of Justice Kirby and of Justice Lee in fraud, the objective appearance of impartiality having vanished, petitioner demands they disqualify themselves under the rules, so he might get a fair hearing from unbiased justices not partaking in the extrajudicial subject matter fraud and breaches of law and able to dispose justly the issues of this case.

The justices of the entire court, regarding this matter, have denied constitutional remedy to the state, on relation, without lawful due process, and must recuse themselves because they cannot be trusted to provide what the people ordained to themselves in protection against official tyranny.

Governor to name ‘men, of law knowledge’

Wherefore, premises considered, law, justice and the perception of justice being done requires, in the minimum, of the members of the honorable court:

  1. That those disqualified give notice of recusal and that the court adhere to Tenn. const. art. 6, sect. 11, which states: “In case all or any of the judges of the Supreme Court shall thus be disqualified from presiding on the trial of any cause or causes, the court or the judges thereof, shall certify the same to the governor of the state, and he shall forthwith specially commission the requisite number of men, of law knowledge, for the trial and determination thereof.”
  2. Given this authority, petitioner demands the court certify to the governor those justices disqualified, and demand that he forthwith — meaning immediately, if not sooner — fulfull his duty to commission the requisite number of men or women “of law knowledge” to hear relator’s petition for certiorari and cause.

By my signature above and properly notarized affidavit under oath, I, David Jonathan Tulis, relator for grievances of state of Tennessee, do hereby make oath and affirm that all statements included in this motion for recusal and disqualification upon Justice Roger Page, Justice Jeff Bivins, Justice Holly Kirby and Justice Sharon Lee are true and correct to the best of my knowledge, information and belief. 

David’s demand for recusal

Petition asks for hearing of appeal

Time to fight




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