COMMONWEALTH OF KENTUCKY
FRANKLIN CIRCUIT COURT
DIVISION II
CIVIL ACTION NO. 14-CI-1337
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
859-537-5372
Plaintiff
CERTIFICATE OF SERVICE
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.
