State ex rel. Tulis v. Lee

• Docket Number: E2021-00436-COA-R3-CV
• Decision Date: 23 May 2022
• Parties: STATE OF TENNESSEE EX REL. DAVID JONATHAN TULIS v. BILL LEE, GOVERNOR OF TENNESSEE ET AL.
• Court: Tennessee Court of Appeals

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STATE OF TENNESSEE EX REL. DAVID JONATHAN TULIS v. BILL LEE, GOVERNOR OF TENNESSEE ET AL.

No. E2021-00436-COA-R3-CV

Court of Appeals of Tennessee, Knoxville

May 23, 2022

Session February 15, 2022

Appeal from the Chancery Court for Hamilton County No. 20-0685 Pamela A. Fleenor, Chancellor

In this mandamus action, the petitioner/relator, acting on relation to the state, sought to have the trial court, inter alia, issue writs requiring the state governor and county health department administrator to comply with Tennessee Code Annotated § 68-5-104, which pertains to "[i]solation or quarantine." The relator named the governor and health department administrator as respondents in both their official and "personal" capacities. Upon the respondents' respective motions to dismiss the petition and following a hearing, the trial court entered separate orders granting the motions to dismiss as to each respondent, finding, as pertinent on appeal, that (1) the court lacked subject matter jurisdiction as to the claim against the governor in a mandamus action, (2) the court lacked subject matter jurisdiction as to the claim against the health department administrator because the relator lacked standing, and (3) the relator otherwise failed to state claims upon which relief could be granted. The trial court also granted the health department administrator's motion for a reasonable award of attorney's fees and costs in defending against the lawsuit in her personal capacity pursuant to Tennessee Code Annotated § 29-20-113. The relator filed motions to alter or amend, which the trial court denied following a hearing in orders certified as final pursuant to Tennessee Rule of Civil Procedure 54.02. The relator timely appealed. Concluding that (1) the trial court's lack of subject matter jurisdiction is dispositive as to the action against the governor in his official capacity, (2) the relator's lack of standing is dispositive as to the action against the county health administrator in her official capacity, and (3) the relator's actions against both respondents in their personal capacities failed to state claims upon which relief could be granted, we affirm the trial court's dismissal orders. We clarify, however, that the relator's lack of standing with respect to his claim against the county health administrator did not equate to a lack of subject matter jurisdiction in the trial court.

Tenn R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court

David Jonathan Tulis, Soddy-Daisy, Tennessee, Pro Se.

Herbert H. Slatery, III, Attorney General and Reporter Andrée S. Blumstein, Solicitor General; and Janet M. Kleinfelter, Deputy Attorney General, Public Interest Division, for the appellee, Bill Lee, Governor of Tennessee, in his personal capacity and in his official capacity.

Rheubin M. Taylor, County Attorney, and Sharon McMullan Milling, Assistant County Attorney, Chattanooga, Tennessee, for the appellee, Rebekah Barnes, Administrator, Hamilton County Health Department, in her personal capacity and in her official capacity.

Thomas R. Frierson, II, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and W. Neal McBrayer, J. joined.

OPINION

THOMAS R. FRIERSON, II, JUDGE

I. Factual and Procedural Background

The petitioner, David Jonathan Tulis ("Relator"), acting in relation to the State of Tennessee and proceeding pro se, initiated this action by filing a "Petition in equity and for writ of mandamus" in the Hamilton County Chancery Court ("trial court") on October 2, 2020. Relator named as respondents Tennessee Governor Bill Lee ("Governor Lee"), "in his personal capacity and in his official capacity," and Hamilton County Health Administrator Rebekah Barnes ("Administrator Barnes"), "in her personal capacity and in her official capacity" (collectively, "Respondents"). Relator's petition and attached affidavit spanned thirty-nine pages and included many broad allegations regarding governmental officials' handling of the Covid-19 pandemic, particularly measures implemented by Respondents. Under an opening section of his petition entitled, "Statement of the Case," Relator set forth his overall grievance:

This remedy is required immediately to stop the abuse of unwarranted Police Power committed by the respondents in dereliction of the duty imposed upon them pursuant to T.C.A. 68-5-104, or the Tennessee constitution, committing, or acting by omission to commit, unwarranted statewide restraint of life, liberty and property.

Creating an extraordinary disaster, on or about March 12, 2020, Gov. Bill Lee declared a communicable disease health emergency, with Rebekah Barnes' office issuing Directive No. 1 of the Hamilton County health department, effective July 10, 2020, and taking various actions for flulike symptoms, given the name "COVID-19" disease, without benefit of due process or the fulfillment by respondents, though they have a public legal non-discretionary duty, pursuant to T.C.A. § 68-5-104, to determine or find evidence for the infectious agent, contagion or communicable source for the disease, the existence of which is merely presumptive, not actual.

It is commonly known there is no test for the presumptive contagion or infectious agent of COVID-19 despite official misrepresentations or assurances to the contrary. Respondents act without bona fide demonstrable exigence or jurisdiction and by their unwarranted and unconstitutional premature actions or arbitrary and capricious, even deadly, purported mitigation measures are causing irreparable harm and injustice, wreaking havoc on the relator, fellow Tennesseans and the state of Tennessee.

This remedy is to stop the abuse of unwarranted police power committed by the respondents in dereliction of the duty imposed upon them through T.C.A. 68-5-104.

The relator through this petition and verified complaint demands the respondents' wrongful acts done under color of authority be halted, emptied of all force and effect and be declared void ab initio; in addition, that they be found a fraud and waste upon the public treasury that respondents have a duty to protect. The relator demands the court do anything else it deems serves the ends of justice to relieve the relator, fellow Tennesseans and state of Tennessee of the ongoing wrongs and oppression.

Given there is no adequate remedy at law, this evidence-supported extraordinary remedy of imperative and public cause demands this court quash all relevant emergency orders or administrative actions, official acts existing without the benefit of an objective determination for the infectious agent of contagion or communicable source.

(Paragraph numbering omitted.)

We note that the issuance of a writ of mandamus is an extraordinary remedy, State ex rel. Weaver v. Ayers, 756 S.W.2d 217, 220 (Tenn. 1988), and that "[t]he general rule regarding the issuance of a writ of mandamus is that the writ is not issued to control or coerce discretionary power by a board or officer, but will lie to enforce the performance of an official duty and to compel the exercise of power," Tusant v. City of Memphis, 56 S.W.3d 10, 18 (Tenn. Ct. App. 2001). The statute primarily relied upon by Relator to allege that Respondents were in dereliction of duty, Tennessee Code Annotated § 68-5-104 (2013), addresses "[isolation or quarantine" and provides:

(a)(1) It is the duty of the local health authorities, on receipt of a report of a case, or suspected case, of disease declared to be communicable, contagious, or one which has been declared by the commissioner of health to be subject to isolation or quarantine, to confirm or establish the diagnosis, to determine the source or cause of the disease and to take such steps as may be necessary to isolate or quarantine the case or premise upon which the case, cause or source may be found, as may be required by the rules and regulations of the state department of health.

(2) The commissioner is authorized and directed to promulgate and publish such rules and regulations as may be necessary to prevent the spread of contagious or communicable diseases in order to protect the public health and welfare.

(b) Any person isolated or quarantined in accordance with any statute or rule or regulation promulgated and published in accordance with statutes relating to isolation or quarantine, who willfully escapes from such isolation or quarantine, commits a Class B misdemeanor.

(c) Whenever any one of the local health authorities, either municipal or county as the case may be, isolates, quarantines or placards any person or house for communicable diseases, it is the duty of the health official to deliver or cause to be delivered to the head of the household a copy of this law or such portion of this law as may pertain to the particular case under consideration.

The statute was initially enacted in 1905. Relator appears to primarily contend that Respondents have not been able to produce information concerning "a case" of Covid-19 and its "source or cause" as set forth in subsection (a)(1) of the statute. See Tenn. Code Ann. § 68-5-104(a)(1).

In his petition, Relator "demand[ed]" that the trial court:

. Find that respondents are acting outside the scope of their lawful authority under statute and the Tennessee constitution, causing irreparable harms to relator, fellow Tennesseans and the state of Tennessee;

. Set aside or quash, or as appropriate, any and all orders and or decrees imposed upon the people and businesses in Hamilton County and statewide relative to any COVID-19 or related subject matter;

. Direct respondents, or their Office, to faithfully follow the law or face contempt asserted by either the court sua sponte or on relation of the relator, where derelict of law;

. Require responde

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