Tuesday, December 16, 2014

New and improved Kentucky ObamaCare lawsuit response for Dec. 17 hearing






DAVID ADAMS                                                                                           PLAINTIFF



V.                                RESPONSE TO DEFENDANTS’ MOTION

                                                            TO DISMISS




COMMONWEALTH OF KENTUCKY, ET AL.                                    DEFENDANTS





            Defendants having entered a CR 12.02(f) Motion to Dismiss to Plaintiff’s Complaint, Plaintiff respectfully responds as follows:

I.        ARGUMENT


            Defendants move for dismissal of Plaintiff’s Complaint by attempting to distract the Court from noticing the only meaningful fact in the present action: the current Executive Branch Budget does not fund the operation of a state-based health insurance exchange under ObamaCare (or the Affordable Care Act or ACA) and further specifically prohibits such expenditures as would perpetuate it.

            Governor Beshear has attempted to create some form of taxing and spending mechanism for implementing an optional state-based ObamaCare exchange in Kentucky using three separate and distinct Temporary Reorganization Executive Orders, one each in 2012, 2013 and 2014, which Defendants notably fail to mention in their Motion to Dismiss. KRS 12.028(5) mandates “subject matter of each executive order relating to reorganization shall be presented in the General Assembly in a separate bill.” This did not happen with Executive Order 2012-587, which attempted to create “Office of the Kentucky Health Benefit Exchange,” necessitating its expiration and withdrawal and further, according to statute, forbidding its replacement prior to the next succeeding General Assembly. This prohibition was ignored by Governor Beshear, who immediately upon its expiration issued Executive Order 2013-418. This second Order sought to create the “Office of the Kentucky Health Benefit Exchange” and House Bill 505 was subsequently introduced in the 2014 General Assembly. Near the same time, the Governor’s budget request sought appropriations for “Kentucky Health Benefit Exchange.” The bill was rejected by the General Assembly and the 2013 Executive Order subsequently expired. Again, Governor Beshear ignored the plain language of KRS 12.028(5) which states “If the General Assembly fails to enact a temporary reorganization plan, the Governor, the Kentucky Economic Development Partnership as created in KRS 154.10-010, and other elected state executive

officers shall not effect the plan prior to the next succeeding session of the General Assembly.”

            Executive Order 2014-561 as issued on June 30, 2014 abolished Kentucky Access, the supposed taxing and funding mechanism for “Kentucky Health Benefit Exchange” and placed it inside something called “Kentucky Health Benefit and Health Information Exchange” for which the General Assembly provided no funding in the Executive Branch Budget for Fiscal Years 2014-15 and 2015-16, stating in the budget itself “no executive order related to the ACA has been codified by the General Assembly,” “no provision within this Act shall be deemed, adjudged, or constructed as being a recognition, finding or admission of the General Assembly’s approval of the operation of the ACA in Kentucky,” and “The Governor is expressly prohibited from expending any General Fund resources on any expenditure directly or indirectly associated with the Health Benefit Exchange.” It could not be any more clear that the General Assembly has repeatedly and forcefully denied approval for state spending and taxation to support ObamaCare in Kentucky.

            Denying Defendant’s Motion to Dismiss and further granting Plaintiff’s Prayer for Relief in Complaint is completely consistent with recent case law. “The mere existence of a statute that can be implemented only if funded does not mandate an appropriation.” See Fletcher v. Commonwealth (Ky. 2005) 163 S.W. 3d 852. “The purpose of Section 230 of the Kentucky Constitution, the statutes, and CR 54.04 is ‘to prevent the expenditure of the State’s money without the consent of the Legislature.’” See Kentucky Retirement Systems v. Foster (Ky. App. 2010) 338 S.W.3d 788 quoting Ferguson v. Oates 314 S.W. 2d 518, 521 (Ky. 1958) “It is a purpose consistent with the governmental separation of powers and reinforces the proper role of the judiciary.”

No funding exists for “Kentucky Health Benefit and Health Information Exchange” in the Executive Branch Budget Bill. Kentucky Access, the supposed funding and taxing mechanism for continued operation of ObamaCare in Kentucky is attached to the same unfunded entity created by Executive Order 2014-561 and, in any event, its contents are not available to be spent on further operation of ObamaCare in Kentucky because its reason for existing, per KRS 304.17B-005, “implementing an acceptable alternative mechanism within the meaning of 42 U.S.C. sec. 300gg-44(a)(1)” has been accomplished with passage of the “Affordable Care Act.” “The surplus remaining after the object of a levy has been accomplished must be treated as part of a general fund.” See Fannin v. Davis (Ky. 1964) 385 S.W.2d 321. Again, legal authority for such General Fund expenditures as Defendants seek does not exist, by explicit direction of the General Assembly. Further, State Group Health Insurance Funds for state employees exist in General Funds, whose forbidden appropriations present an inescapable problem for state employees charged with implementing “the ACA.”

Lastly, Defendants claim Plaintiff’s request for injunctive relief is deficient because it fails to comply with CR 65.04, which governs motions for temporary injunctions. Plaintiff has not yet filed such a motion, but will comply with requirements of same at such time.


                                                                              Respectfully submitted,


                                                                              David Adams

                                                                              121 Nave Place

                                                                              Nicholasville KY 40356







This certifies the forgoing was served this 17th day of December, 2014 by personal delivery upon Patrick R. Hughes, Dressman Benzinger LaVelle PSC, 207 Thomas More Parkway, Crestview Hills, Kentucky 41017-2596.