COMMONWEALTH OF KENTUCKY
FRANKLIN CIRCUIT COURT
DIVISION I
CIVIL ACTION NO. 13-CI-1316
DAVID ADAMS PLAINTIFF
V. MOTION TO RECONSIDER
COMMONWEALTH OF KENTUCKY,
STEVEN L. BESHEAR, GOVERNOR, et al. DEFENDANTS
Plaintiff moves the Court to reconsider its order filed in this case January 14, 2014 to correct multiple errors. The fundamental mistake from which others flow is found in the following sentence in the Court’s ruling: “Absent an allegation of a constitutional defect in the statute or the administrative regulation, this Court cannot adjudicate differences of opinion over educational policy.” The constitutional defect in question is in violation of Section 183 of the Kentucky Constitution. It is not found in Senate Bill 1 (2009). The Court charges that Plaintiff “also attacks the content of Senate Bill 1 (2009).” But the Complaint never even mentions Senate Bill 1, nor any of its provisions. The Court states “Common Core standards were subsequently adopted by 704 KAR 3:303,” and that “Defendants have followed the legislative directive by enacting a core curriculum.” While these statements are true, neither were mentioned in the Complaint because they are immaterial to the case. Defendant Beshear is bound by Section 81 of the Kentucky Constitution which states “He shall take care that the laws be faithfully executed.” This, of course, includes the constitutional directive found in Section 183 that the Commonwealth’s common schools be managed efficiently. Other Defendants operate as agents of the legislature, to whom Section 183’s mandate applies explicitly. To claim that Defendants can’t be sued for violating the Constitution because they followed legal procedure to violate it stands reason on its head. We can do better.
The Court states: “Plaintiff argues that because the core standards were not yet drafted at that time, their efficiency could not be assessed, and thus they violated the Constitution.” This is not accurate. Complaint reads: “Subsequent obligations of the Commonwealth related to Common Core could not be known then and still cannot in order to reasonably determine the efficacy for their implementation.” (emphasis added). Plaintiff did not say premature adoption of the Common Core Standards violated the Constitution, but that violating Section 183’s mandate for efficient schools violates the Constitution. This is clearly not simply a matter of educational philosophy as precedent dictates the issue of inefficient schools is always ripe for adjudication. Judicial responsibility for protecting the rights of the people of the Commonwealth forbids the Court from failing to determine if the loss of state sovereignty fundamental to adherence to Common Core, any public costs associated with it and any private losses incurred as a result of mismanagement of the common schools as a result meet the standard set out in Rose v. Council for Better Education, Inc., 790 S.W.2d 186. The issue clearly needs to be tested again.
This, of course, gets us to the question of standing. The Court writes: “As the Kentucky Supreme Court has explained, a party seeking declaratory relief “must show that an actual, justiciable controversy exists; proceedings for a declaratory judgment must not merely seek advisory opinions to abstract questions.” Defendants claim they followed proper procedure to implement a core curriculum and the Court writes: “Defendants have followed the legislative directive by enacting a core curriculum, even though Plaintiff is in strong disagreement over the content of the core curriculum.” Again, the effort to adopt “a core curriculum” does not give license to violate Section 183 simply because an acceptable procedure was followed to adopt “a curriculum.” Taking an action that in and of itself violates the Constitution cannot be legitimized because it was done intentionally. The Court writes: “Plaintiff argues that the Common Core State Standards contained in Senate Bill 1 do not meet the definition of efficient, in violation of Section 183 of the Kentucky Constitution. However, the proper forum for him to air his grievances is through the legislative process or by addressing those concerns directly to the Department of Education, Council on Postsecondary Education, and the Education Professional Standards Board.” This passage makes two key errors. First, the Common Core State Standards are not “contained in Senate Bill 1.” This is vitally important to understand. The mandate, found in Senate Bill 1, to adopt a core curriculum is not the same as a mandate to adopt an unconstitutional one. Plaintiff, again, does not “attack” Senate Bill 1 or even reference it except tangentially. Conflating Senate Bill 1 and Common Core does not hold up under any scrutiny. The Commonwealth is surely capable of adopting a set of educational standards and a core curriculum without violating its Constitution. In this process, we simply haven’t gotten there yet. That is why Plaintiff in Complaint seeks as redress an order for the General Assembly to do so with “appropriate legislation.” Sending Plaintiff back to Defendants to “air his grievances” nullifies Plaintiff’s right to live in a free and fair Commonwealth in which the Constitution rules in conflicts and the judiciary steps in to clarify when government officials overstep their bounds as they have done in this instance.
This same line of reasoning continues with the Court writing: “The Courts of Kentucky have recognized since the adoption of Section 183 of the Kentucky Constitution, that the curriculum to be taught in the common schools must be “prescribed by the state board of education to be taught therein.” Major v. Cayce, 98 Ky. 357, 33 S.W. 93 (1895). It is up to the state Board of Education, not the courts, to decide such issues of educational policy.” Again, they can set policy but they cannot violate the Constitution.
And finally, the Court quotes Second Street Properties v. Fiscal Court of Jefferson County, 445 S.W.2d 716, (Ky. App. 1969) which states contesting the validity of a statute requires that a plaintiff must show individual harm. The Court writes: “Plaintiff has failed to allege any particularized injury distinct from that of the general public that he, nor any other person, has suffered or will suffer as a result of such legislative actions.” First, Plaintiff clearly and repeatedly alleges in Complaint a violation of the Constitution of the Commonwealth of Kentucky Section 183, which harms Plaintiff specifically by promoting waste and mismanagement of public resources and particularly by putting at risk the quality of education available to his children. Further, Plaintiff explicitly articulates declaratory relief under KRS 418.040, which is his right and duty as a citizen and taxpayer. In the V. CLAIMS FOR RELIEF section of Complaint, Plaintiff complains against “Defendants’ acceptance of Common Core State Standards,” and seeks specific court action, “namely reversal of such acceptance and implementation until such time as the General Assembly grants approval of same by appropriate legislation.” Reason dictates that Plaintiff would have no justiciable claim if he were not either a citizen, taxpayer or parent of public school students in Kentucky. He is all of these. Plaintiff asserts his rights under KRS 418.040 with more than a reasonable expectation those rights will be observed. The Court, in citing Second Street Properties, errs in reference to what must be particularized to demonstrate standing. The American Jurisprudence passage quoted by the Court precludes only suits by those who “suffer in some indefinite way in common with people generally.” The lack of clarity of that statement literally screams for context unless one considers constitutional rights and a desire to limit waste of public resources as “indefinite.” And the context is very enlightening. In Second Street Properties, the plaintiff attempted to question a tax that literally did not apply to him as he did not live in Jefferson County. Given this fact, the issue of particularization must be viewed differently than is suggested by the Court in its Order. From Second Street: “Before one seeks to strike down a state statute he must show that the alleged unconstitutional feature injures him. Grise v. Combs, D.C., 183 F.Supp. 705 (1960). It has recently been held that before a taxpayer may maintain an action against the state or one of its agencies to test the constitutionality of a statute or an administrative policy, he must show he has a unique right or interest that is being violated in a manner special and different from the rights of other taxpayers. Calvary Bible Presbyterian Church v. Board of Regents, 72 Wash.2d 912, 436 P.2d 189 (1967). Note this does not say that he has been violated in a manner distinct from all taxpayers, but merely “taxpayers,” as in those not so violated. InGrise, the plaintiff alleged a hypothetical threat and not one that injured anyone. That plaintiff lacked particularized injury in that none yet existed in the case of a state law that supposedly may have led to a tax. In the present action, the threat of Common Core is real and present as a violation of Plaintiff’s rights to live in a state whose officials follow its constitution to protect against an impermissible abdication of state sovereignty and taxpayer dollars and in doing so without proper legislative approval. In Calvary Bible Presbyterian, the plaintiffs were non-taxpayers challenging the expenditure of taxpayer dollars. Those plaintiffs lacked particularized injury in that they could not be harmed by an expenditure they would play no role in making. In the current action, again, Plaintiff is a Kentucky taxpayer, a Kentucky citizen and a parent of Kentucky public school students claiming rights guaranteed by the Kentucky Constitution. From the context of Second Street, Grise and Calvary Bible Presbyterian, it is clear that particularization of harm is tool for determining the existence of a resolvable dispute between legitimately adversarial parties. The current action is resolvable by this Court by clarifying duties of state officials to ensure efficient common schools and the parties are clearly adversarial. Ruling as the Court has done on the issue of a “particularized injury” and “failure to state a claim” is to suggest that Plaintiff could only seek redress if the Commonwealth were to implement a “We won’t educate David Adams’ kids Act” which is clearly not and never has been the purpose of standing requirements. And requiring state officials to follow the Constitution they have sworn to uphold could not be a more appropriate request.
The Court ruled on July 1, 2013 in Civil Action No. 13-CI-605: “the doctrine of standing protects against collusive lawsuits in which the parties are truly in agreement but are seeking to obtain judicial ratification of a policy or issue without subjecting the claim to the scrutiny of a genuinely contested lawsuit. In order for a case to be justiciable, it must involve concrete rights of parties who have a real stake in the outcome. See Flast v. Cohen 392 U.S. 83 (1968). But the doctrines of standing and ripeness were not meant to be used as a subterfuge to allow the judicial branch to avoid controversial decisions in matters in which there is a genuine case or controversy between parties that are truly adversarial.
“Here there can be little doubt the parties are truly adversarial, and there is a genuine controversy over the legality of the challenged Executive action. It is fundamentally the duty of the Court system to decide disputes over whether government officials have exceeded their statutory and constitutional powers. See Legislative Research Commission v. Brown 664 S.W.2d 907 (1984).”
Plaintiff respectfully requests the Court to reconsider its Order in the present case and to rule that this present action may proceed to seek clarification of rights and responsibilities with regard to the issues brought forth in the Complaint.
Respectfully submitted,
David Adams, Plaintiff
