Smart v. Kemp
Ultra vires - ‘beyond the power.’
Preliminary Note
I agree with Catherine Austin Fitts, Edwin Vieira and others who believe that an Article V Constitutional convention is a very, very bad idea.
My view on this has changed in the last two years. In late 2019, reading anarchist Michael Malice while watching the Federal Reserve Bank/G-7 shenanigans at Jackson Hole and the endless Russiagate fraud, I endorsed a “burn it all down and start over” approach.
A lot of people did.
That’s why the globalist Blob (h/t Sage Hana) had to launch Covid when it did: to transmute rising popular understanding and rage rightly directed at the globalists, into popular confusion, ignorance and fear wrongly directed at a communicable human infection.
Seeing the monstrosities unleashed by the government when Constitutional restraints are loosed, I’ve come to understand that the Blob desperately needs to sever the strong bond between God-fearing American men and women and the 1787 US Constitution.
Especially the 1791 Bill of Rights, comprised of the first ten amendments protecting speech, press, assembly, association, religion, guns and other fundamental human rights from government abuse of power.
The Constitution was not designed to create a utopia or a Heaven on earth; only God can do that at the time and place of His choosing.
It was designed to prevent the human construction of Hell on earthly American soil.
The Blob needs to sever the bond between Americans and our Constitution, because the Blob needs to cut us off from all authorities — divine and human — that recognize inherent, inalienable rights to life, liberty, property and due process as held by individuals as individuals living under Creator-inspired rule of law.
To achieve its demonic goals, the Blob needs us to see those things as revocable privileges intermittently granted to members of a class or collective living under the arbitrary and capricious rule of corruptible men and women.
A Constitutional convention would benefit only the globalist Blob, and would hurt real human beings — in America and in the rest of the world that looks to Americans to stand up for human sovereignty — because the Blob that controls the current American government would also control the delegates, agendas and work products of any such convention.
We need to protect the constitutional rule of law as it was handed down to us by the Founding Fathers and their legitimate successors, including the 11th through 27th amendments passed between 1795 and 1992, and force the American government to uphold it in spirit and in letter.
Smart v. Kemp
As mentioned earlier today in the Q&A post, a reader sent me filings from Smart v. Kemp, a state case filed in Georgia in February 2021, challenging Governor Brian Kemp’s executive orders issued under the Covid-19 pretext as violations of the Georgia and US constitutions.
Governor Kemp announced a state of emergency and issued his first executive orders on March 14, 2020, shutting down small businesses and events, locking residents into and visitors out of care facilities, and directing people all across the state to stay home and stay away from other people. Further orders were renewed or issued throughout 2020.
Meanwhile, according to Ballotpedia, the state legislature passed a proposed constitutional amendment (HR1023) to waive sovereign immunity for government officials violating the constitutional rights of state residents. The amendment went on the general election ballot and was approved by voters Nov. 3, 2020, to go into effect Jan. 1, 2021.
An explainer piece published ahead of the election in the Augusta Chronicle reported:
A Georgia constitutional amendment could make it easier for a citizen to sue the government…Georgia governors have previously vetoed bills limiting sovereign immunity but can’t veto a proposed constitutional amendment…
If voters approve the amendment, Georgians could file [state] lawsuits asking a judge to decide whether the government is violating a law, rather than waiting to be harmed or filing a federal lawsuit.
February 2021 Complaint
On Feb. 1, 2021, a group of plaintiffs filed Smart v. Kemp, a complaint against Governor Kemp, in Georgia Superior Court.
They asked the court to declare Kemp’s orders unconstitutional and illegal under the state and federal constitutions; enjoin (block) further enforcement of the orders; and award monetary damages for the harms caused by Kemp’s orders.
The harms plaintiffs endured included closure of their businesses and loss of income, travel restrictions, obstructions to their freedom of assembly and association, and violation of their privacy rights against unwarranted search and seizure, through an order directing state health officials to provide private medical data about Georgia residents to the US Department of Health and Human Services.
Because of Kemp’s orders, some of the plaintiffs were blocked from operating their businesses (dance and martial arts schools, barber shops, wedding bands), depriving them of property without due process of law.
Other plaintiffs were blocked from visiting relatives in nursing homes and group homes, some of whom died waiting for the orders to be lifted, violating their right to freely assemble and associate.
Arguments
Plaintiffs argued that Governor Kemp’s orders amounted to exercise of legislative powers by the executive branch, violating the separation of powers clause of the Georgia Constitution.
They argued his acts violated the First, Fourth, Fifth, Ninth, Tenth and Fourteenth Amendments to the US Constitution (regarding assembly, association, travel, search and seizure, privacy, equal protection, due process and takings) along with the Dormant Commerce Clause of the US Constitution, which “prohibits state action that discriminates against interstate commerce.”
They further argued that, under Georgia law, individuals subject to quarantine are entitled to notice, hearings and judicial remedies as well, but Kemp’s orders unlawfully suspended those laws “in an attempt to ‘lightly quarantine’ the entire population of Georgia.”
Plaintiffs’ core argument was that the Governor was not, at any time, legally permitted to issue or enforce any law, or create any order that violated the Georgia Constitution, and that he had demonstrably done those things anyway.
The orders were still in effect at the time that they filed the case, so they asked the Georgia Superior Court judge to declare the violations unlawful, stop the government’s enforcement of them, and order the government to compensate the plaintiffs for the harms inflicted.
April 2021 Answer and Motion to Dismiss
In April 2021, Kemp filed an answer admitting that he had issued the orders but denying that they were unlawful or unconstitutional, and moved to dismiss, on grounds of lack of subject matter jurisdiction, failure to state a claim on which relief can be granted, and Kemp’s lack of capacity to be sued.
On that last point, Kemp’s attorneys cited the newly amended Georgia Constitution, requiring that any action “shall be brought exclusively against the state and in the name of the State of Georgia,” while plaintiffs had named as the defendant “Governor Brian Kemp” in his individual and official capacity.
August 2021 - Mootness Arguments
Sometime in Summer 2021, Kemp suspended the emergency orders, and then filed a brief arguing the claims for declaratory and injunctive relief should be dismissed as moot. Kemp acknowledged that he could declare a new emergency, but argued that just because he could “does not mean that he will or that the matter could not be adjudicated if he did…The mere possibility of such does not permit Plaintiffs (or this Court) to avoid the mandatory application of the mootness doctrine.”
Alert readers will recognize this play; Pennsylvania Governor Tom Wolf ran it in Summer 2021 to obtain a dismissal of Butler v. Wolf on mootness grounds, without constitutional scrutiny, from the Third Circuit Court of Appeals in August 2021.
Sept. 2021 Order Granting Kemp’s Motion to Dismiss
The reader who sent me the filings commented that she had the impression the judge — Judge Kelly Lee Ellerbe — wanted to deny Kemp’s motion to dismiss and allow the case to move forward, based on how the order was written.
I agree, and speculate that she was threatened and forced to rule against plaintiffs.
I think that because of how the 18-page opinion was written. Judge Ellerbe succinctly recounted the facts and legal premises argued by plaintiffs. That’s standard.
But she also adopted plaintiffs’ descriptive, conclusory clauses such as “at his personal whim,” “pervasive” and “systemic.” That’s unusual.
In her own legal analysis, like virtually all other judges in all other cases I’m aware of, she simply refused to address the constitutional claims.
Her first analysis addressed the issue of monetary damages, and found that the Georgia state Constitution doesn’t authorize plaintiffs to recover compensation from government defendants, so she dismissed those claims.
Second, she addressed the subject of qualified immunity: whether Kemp’s alleged constitutional violations, even if true, were trumped by his right to qualified immunity from suit as a government official.
She cited the 11th Circuit’s two-prong test, placing the first burden on the government official to demonstrate that the alleged constitutional violations occurred while he was acting in the scope of his discretionary authority, and if so, placing the second burden on the plaintiff to establish — through citations to “controlling and materially similar case law” or precedents, such that that the defendant could have and did receive “fair warning” that his acts “violated a clearly established statutory or constitutional right.”
Judge Ellerbe wrote, "Plaintiffs appear to assert that violating someone's constitutional rights is never within the scope of a government official's authority or power."
This is a plainly true statement.
Then she cited Holloman v. Harland, 2004 Eleventh Circuit case, as a controlling precedent setting up an absurd result.
“To pass the first step of the discretionary function test for qualified immunity, the defendant must have been performing a function that, but for the alleged constitutional infirmity, would have fallen within his legitimate job description.”
Here’s what that means.
The defendant has to demonstrate that, if he had not been doing something unlawful, what he was doing would have been lawful.
Which is also a plainly true statement.
Except Kemp was doing something unlawful, which meant what he was doing was unlawful.
Nonetheless, Judge Ellerbe concluded: "the issuance of executive orders concerning public health falls within Defendant's authority" and therefore in issuing the orders — plainly unconstitutional as they were — Kemp met his first-prong burden and demonstrated that he was “acting within the scope of his discretionary authority.”
Then because plaintiffs didn’t cite any case law showing that Covid-era executive orders are clearly unlawful — because the scope of the orders are unprecedented everywhere and all the other federal and state judges are working from the same globalist Blob playbook — she found they failed to meet their burden under the second prong of the qualified immunity test.
The executive orders have been so breathtakingly intrusive that there are no precedents in American history for them, the argument goes, so plaintiffs cannot possibly point to a clear precedent that they’re unlawful.
Kemp was entitled, Judge Ellerbe found, to qualified immunity precluding recovery of damages under federal laws.
This is how they’re doing it.
This is how the courts are saying without saying that the constitutions have been suspended: there is one exception to the otherwise inviolable principle that the government can't violate the People’s constitutional rights, and that exception is during public health emergencies as determined and declared by the government itself, violating the Constitution so hard no one has ever seen anything like it.
Judge Ellerbe finally denied plaintiffs request for declaratory and injunctive relief — refusing to declare Kemp’s actions unlawful and block their enforcement — on grounds that plaintiffs named the wrong defendant.
She cited to the Georgia constitutional amendment that went into effect Jan. 1, 2021, such that the plaintiffs should have sued the “State of Georgia,” instead of “Governor Brian Kemp” acting in his official capacity.
Plaintiffs had tried to argue that Kemp was properly named as defendant, because the Georgia Supreme Court had previously ruled (in 2017) that “a suit against a state officer in their official capacity amounts to a suit against the state itself.”
But Judge Ellerbe said that 2017 precedent didn’t count, because the 2020 constitutional amendment was passed after 2017, and explicitly requires dismissal when any state official is named other than the “State of Georgia.”
That seems to be an implicit court admission that the state legislators, governor and judges have been working together to block constitutional challenges and accountability, to kill cases before they’re even filed.
I’ll add one caveat: it’s possible that plaintiffs could re-file the same case naming “State of Georgia” as the defendant, and thereby reach a different result.
Doubtful, but possible.
November 2021 - Plaintiffs appealed
Last November, the plaintiffs appealed Judge Ellerbe’s ruling to the Georgia Court of Appeals. They argued that the judge erred in multiple ways, including failing to review and rule on the basic unconstitutionality of Kemp’s actions; wrongly finding Kemp held immunity on damages; and wrongly finding that he held immunity barring declaratory and injunctive relief (stopping the unconstitutional orders).
They summed up their core argument:
“Issuing the Covid Orders was explicitly outside of Defendant Kemp’s authority, pursuant to the Georgia Constitution, defeating [his] claims of immunity…
The rights which individual people have upon birth, that are not to be restricted or interfered with by the government, are too numerous to comprehensively list. The Constitution does not create rights, but exists to protect those that already exist.”
In December, Kemp’s attorneys filed their appellate brief, arguing that Judge Ellerbe’s rulings were legally sound under the unprecedented circumstances of Covid-19.
In March 2022, the Court of Appeals also refused to address plaintiffs’ constitutional claims at all, affirmed the lower court’s rulings and dismissed the appeal on mootness grounds.
Plaintiffs are currently appealing to the Georgia Supreme Court.
Analysis
The reader who sent the filings thinks that the State of Georgia is operating two governments: one in public and one in the shadows.
I agree.
The same thing is happening in Washington DC. The public government is pretending to be constitutionally-valid but has no actual governing power. The shadow government wields the power, but is constitutionally invalid.
For that matter, the same thing is happening in the Divine realm: Satan as pretender has been trying to occupy the throne reserved for Our Lord Jesus Christ.
Regarding human courts of law, as I started suggesting in mid-May and wrote a bit more a few days ago, I think it’s a good idea for plaintiffs and attorneys to try draw out public admissions from judges and other government officials about the dual government.
I think people need to file cases narrowly focused on ultra vires claims — from the Latin for “beyond power.”
Such caseswould need to focus on and lay out the whole monstrous series of public health emergency statutes and regulations, and how each is unconstitutional, to directly challenge the legitimacy of the statutory framework.
It's extremely unlikely that judges and government defendants will actually admit to the dual government, and the primacy of the illegitimate one, without a larger critical mass of angry, vocal ordinary people.
Raising the issue and asking the questions are mostly useful for raising more public awareness and getting closer to the critical mass tipping point.
Their continued, obstinate judicial inaction, is a form of action; forcing them to dig their silent heels more deeply into the fraud makes the shadow government more visible to observers.
The treason and other crime prosecutions could run parallel to the civil cases, charging the Congress members who voted for the invalid laws with treason for their casting votes to nullify the Constitution.
Could brave judges break the stalemate?
I think a single federal judge with enormous faith in God could do it.
I think 20 or so state judges with regular faith in God could do it, especially if they coordinated to issue their orders simultaneously.
I’m 99% certain they’re all being threatened with death to themselves and their families for noncompliance, which is why they need deep faith, to get the grace and courage, to issue the rulings invalidating the Congressional laws.
It’s not hard for the Blob to get to them.
There are less than a thousand federal judges in the whole country, counting SCOTUS, circuit courts of appeals, district courts and a few on the Court of International Trade.
They’re socially isolated by class, education and professional status from ordinary people who can support their acts of courage and integrity.
They’re socially surrounded by Blob-loyal elites who won’t.
And they currently rely for physical protection on the same government that wants to kill them and everyone else who refuses to go along with the dystopian techno-financial plans for a BioNet of Things.
Yes, the judges could do it. Working with God.
Good work Katherine, thank you for all you do.
I agree with you wholeheartedly, it would take Faith and courage to rule and protect our constitutional rights. It's tough when a judge has family. Any of one of us might risk our lives for this cause. One thing worse than my death would be the death or suffering of my loved ones for my actions. And yet I know they, their soul, would ultimately be fine.