Sunday, June 16, 2013

Response to Beshear's Motion to Dismiss (Medicaid lawsuit)

CASE NO 13-CI-000605

DAVID ADAMS                                                                                   PLAINTIFF


COMMONWEALTH OF KENTUCKY, et al.                                       DEFENDANTS


Comes now the Plaintiff, David Adams, in opposition to Defendants’ Motion to Dismiss.


            In 1966 the Kentucky General Assembly passed HB 115 and the Governor signed it into law. The resulting statute from this action currently grants absolute authority to the Secretary for the Cabinet for Health and Family Services to obligate the Commonwealth to fulfill “any obligation that may be imposed … by federal law” to obtain federal funds. The statute, KRS 205.520(3), clearly violates the plain language of the Constitution of the Commonwealth of Kentucky Section 2, which reads in its entirety “Absolute and arbitrary power over the lives, liberty and prosperity of freemen exists nowhere in a republic, even in the largest majority.”

Defendants misconstrue much of the rationale for this current action by suggesting it “arises out of the Governor’s announcement that he intends to expand Kentucky’s Medicaid program.” The Governor’s May 9, 2013 press conference announcing his Administration’s unilateral action to apply for Medicaid expansion and thereby obligate taxpayers of the Commonwealth to “any requirement that may be imposed” with no regard for the practically limitless liability such action invites serves as a shocking exhibition of the unconstitutional statute in question, but does not by itself bring about this action. Nor, as Defendants suggest, does an official application to the federal government for an expansion of Medicaid trigger the concept of ripeness to grant this court jurisdiction in this action. The presence of an unconstitutional law triggers this action. Lending support to the urgency and legitimacy of this action is Defendant’s blatantly false claim in their motion that “even if the Commonwealth elects to expand Medicaid pursuant to the ACA, it may later elect to withdraw from such election, even before a potential reduction of its federal share to a level below 100%.”

This absurd falsehood by Defendants helps describe the utter lawlessness and lack of regard for individual rights which only enhance the need for this action.

In the alternative, there is no statute of limitations on the right of an individual to challenge an unconstitutional law. Indeed, nothing limits as to timing the rights of Kentucky citizens to challenge unconstitutional laws.


            Contrary to Defendants’ contention that Plaintiff’s constitutional challenge is not ripe because an action Plaintiff seeks to prevent has not yet occurred misses the entire point that KRS 205.520(3), which Defendants cite in their motion as their only authorization for that action, is already null and void.

Further, while it is unclear whether the United States Department of Health and Human Services would recognize a flawed application for Medicaid expansion due to insufficiency within state law as reason to reject the application, that is a chance Plaintiff should not have to take as a consequence of not previously challenging the constitutionality of KRS 205.520(3).

In the alternative, the case law cited by Defendants in their Motion to Dismiss fails to apply to this case by describing circumstances in which means of administrative redress had not yet been exhausted, thereby rendering those actions premature, no such administrative review exists in this case, specifically related to the unconstitutional construction of KRS 205.520(3). As such, Defendant’s Motion to Dismiss on the grounds this action is not yet ripe must be rejected.

            Defendants’ claims that this action presents an attempt to “elicit the Court’s opinion on the constitutionality of prospective executive actions” and should therefore be dismissed fails to persuade, again, because, the statute KRS 205.520(3) itself triggers this action and not some future executive branch activity.

Defendants’ citation regarding prohibition of advisory opinions does not apply to this case because, again, the existence of unchecked “absolute” power as created by KRS 205.520(3) fits perfectly within the jurisdictional boundaries of Section 112(5) of the Kentucky Constitution because this case is justiciable and not within the purview of some other court. This case is not hypothetical in the least, particular damage to Plaintiff as an individual and to citizens of the Commonwealth generally is not only self-evident as a function of the existence of unchecked power, but it can only be effectively addressed here.

Defendants also allege failure to demonstrate standing under KRS 418.040. On this, Defendants also fail on the basis of plain language contradicting their claims. KRS 418.040 states “In any action in a court of record of this Commonwealth having general jurisdiction wherein it is made to appear that an actual controversy exists, the plaintiff may ask for a declaration of rights, either alone or with other relief; and the court may make a binding declaration of rights whether or not consequential relief is or could be asked.”

In this, another citation provided by Defendants proves the alternative of their assertion. Quoting Veith v. City of Louisville, Defendants write “a court does not have jurisdiction to decide a question unless there is a real and justiciable controversy involving specific rights of particular parties.” Veith v. City of Louisville, 355 S.W. 2d 295, 297 (Ky. 1962). Existence of a “real and justiciable controversy” is debatable only if one adopts Defendants’ claim that this case is only about a hypothetical future event, which it clearly is not. Prior acts of the Kentucky Health Benefits Exchange reflect already that resources have been expended under the assumption Medicaid will be expanded under KRS 205.520(3). This presupposes administrative action by the Governor he now, through counsel, denies. Further, the very existence of KRS 205.520(3) independent of the Medicaid expansion has and continues to put at great risk the lives, liberty and property of Kentucky citizens in general and the Plaintiff in particular. As such, Defendants’ claim this action represents a mere advisory opinion and that it lacks particularized injury fails.

 Further, Defendants seek dismissal with prejudice of this action. They have in no way made the case for such final action on this matter, even if the case as presently written fails on some jurisdictional or technical grounds, which it does not. The attempt at such denial of rights as well as loss of personal funds already expended by Plaintiff in this matter suggests strongly not only particularization of this case, but the very controversial nature thereof also. For these reasons, Plaintiff asks the Court to reject Defendants’ Motion to Dismiss.

Defendants also claim service of Complaint was not provided upon Governor Beshear, Secretary Haynes and Attorney General Jack Conway. The court’s record of this case will reflect otherwise.


Defendants propose four justifications for their Motion to Dismiss Plaintiff’s Complaint. Defendants seek first and most substantially to dismiss this action on grounds of lack of ripeness. Rather than properly address the chronology provided in the Complaint, however, Defendants seek to turn this constitutional issue of real controversy and judiciability with clear general and particularized harm evident for citizens and taxpayers of the Commonwealth into a cat-and-mouse game in which citizens must wait for Governor Beshear to sign away more of our rights to our own “lives, liberty and property” without question. In short, Defendants wish to use this Court to stifle dissent long enough for them to make an end run around the Constitution in order to exercise powers denied them by the Kentucky Constitution. Plaintiffs request the Court reject Defendants’ Motion to Dismiss and also issue a temporary injunction under CR 65.04 against Defendants’ moving in any way to enact the Medicaid expansion at issue in this case.