DAVID ADAMS PLAINTIFF
v.
COMMONWEALTH OF KENTUCKY, et al. DEFENDANTS
PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION
TO DISMISS
Comes now the Plaintiff, David
Adams, in opposition to Defendants’ Motion to Dismiss.
BACKGROUND
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.
ARGUMENT
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.
CONCLUSION
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.
This federal rule defines "tobacco use" as "use of tobacco on average four or more times per week within no longer than the past six months."
