New ObamaCare glitch soaks Kentuckians

Gov. Steve Beshear is trying to keep quiet a Kynect web site glitch resulting in payment of excessive federal subsidies in January and February which must now be removed, resulting in higher premium payments for ObamaCare customers. The biggest unanswered question now is where the money comes from to pay for two months of premium shortages.

The glitch resulted in customer premium payments plus improperly excessive federal subsidies going to the insurers for the first two months of ObamaCare. Reducing subsidy payments for March and beyond, as the Kentucky Health Benefit Exchange (KHBE) told victims will now happen, means higher payments for those who purchased ObamaCare plans. KHBE said customers will not be responsible for making up deficits in their accounts due to the overpayments in January and February. So, who pays?

It's possible the federal government will eat the costs of the KHBE mistake, but not very likely. Same goes for the insurance companies. That leaves state taxpayers. Is that what's happening? Are state taxpayers picking up the tab for Gov. Beshear's mistake without being told about it?

Please ask your state Senator and state Representative about this.

Beshear bludgeons more ObamaCare victims

The preferred narrative in Frankfort takes a hit this week as tens of thousands of Kentuckians get ObamaCare letters apologizing that a computer glitch overestimated their federal subsidies and demanding additional payments to keep their new health insurance.

That should be popular, especially for those just now learning about the limitations on their new policies. This disaster can't end soon enough.

Arkansas showing Kentucky how to deauthorize Medicaid expansion

Arkansas legislators took the ObamaCare bait last year on a version of ObamaCare Medicaid expansion, but seem to be thinking better of it this year when they are being asked to pour more state funds in. State officials say 100,000 Arkansans will be dropped from the program on July 1 if funding is not approved, and Kentucky should be paying very close attention.

Kentucky is currently spending unappropriated dollars on its ObamaCare Medicaid expansion, which was implemented illegally and remains mired in a legal challenge. If the Kentucky General Assembly session ends April 15 without funds allocated for the expansion, we will also be cancelling Medicaid cards in one fell swoop.

The ObamaCare disaster is sure to be a big issue in Kentucky legislative elections later this year.

Beshear blames ObamaCare failure on Republicans

Gov. Steve Beshear's bizarre attempt to force Kentucky into ObamaCare will look a lot stranger when its over, as it becomes clear that it was never going to work. For now, he continues to regale any clueless national media figures he can find with falsehoods about the federal takeover of healthcare.

"Look, let me tell you how I sold this to Kentuckians," Beshear told USA Today in an interview published this morning. "I told them, I said, 'Look, you don't have to like the president. You don't have to like me. Because this is not about the president or about me. It's about you.'"

Actually, his sales pitch was only three words long:



Beshear also told USA today he expects to have 300,000 Kentuckians signed up for ObamaCare by the end of open enrollment on March 31. We can only assume from this he intends to still be counting unpaid, cancelled applications as enrollments at least that long.

But the best part came when Beshear was asked about the disastrous results for the federal ObamaCare website operating in the dozens of states who were smart enough to opt out of the responsibility of setting up an exchange web site and bureaucracy as well as paying 100% of the costs starting in 2015.

"In their defense," Beshear said, "they (the federal government) had a much bigger audience than we did. ... I don't think they expected so many states to refuse to do their own exchanges."

Right, a "big audience" is what caused all the problems. In related news, not one single Democrat has filed a bill to ratify Beshear's executive order creating Kentucky's exchange. That won't change today. Failure to gain ratification by April 15 by the entire legislature will result in the nullification of the Kentucky Health Benefit Exchange pursuant to KRS 12.028(5).

Score one for Governor Fruit Tree

I'm no fan of former Kentucky Governor and current state Senator Julian Carroll. His long career of making government bigger and less accountable is a textbook case for limiting terms or taking other steps to eliminate elected office as a long-term career destination.

But no one will be hurt by Carroll's Senate Bill 154, which would name the Pawpaw tree as the state fruit tree. They are beautiful trees and the fruit is very good for you in addition to tasting great. Besides, Frankfort seems very unlikely to accomplish anything of substance this year other than agreeing to get Kentucky out of ObamaCare. So I say "bully for you, Governor Fruit Tree!"

Beshear's $100,000 ObamaCare scandal

An unfortunate oversight in Kentucky law protects Gov. Steve Beshear from criminal prosecution for overstepping constitutional limits on his power, but in March when illegal payments to his ObamaCare executive director in Kentucky accrue to over $100,000 his civil liability will grow harder to ignore.

In court documents, Carrie Banahan, the head of our health benefits "exchange" said her position was created on June 19, 2013 by executive order of the Governor. But that's when Beshear's original ObamaCare order expired under KRS 12.028 and he illegally replaced it (see KRS 12.028(5)). Banahan actually started work at the exchange in May. It's clear she and Beshear see the problem with her employment status.

By next month, Banahan will have been paid a total of $100,000 for a government job that can't legally exist. Restitution should be the least of our expectations.

The need to see this fight through to completion should be obvious. If we go quiet now, precedent will allow governors to create bureaucracies, write laws, levy taxes and spend money without regard for legal processes in place for hundreds of years to protect the voice of the people. We can't go out like this. Please take a moment to contribute to the effort by clicking here and donating what you can to keep this resistance going. Our opponents will be delighted to see me begging for help, which is exactly what I am doing. But they will delight more if we quit. Let's deny them that pleasure.

Jailing all your Facebook friends

Every legislative session in Kentucky features a bill that is so absurd and so over-the-top everyone can agree it should be killed, shredded, burned, scattered and cursed loudly as a warning to future horrible bills to stay out of sight. This year, Gov. Beshear's budget bill is arguably that bill, but there was another introduced yesterday.

House Bill 412 would make it a crime to communicate electronically or otherwise "any comment, request, suggestion or proposal which is obscene, lewd, lascivious, filthy or indecent" or "permits any telecommunications or electronic communication device under his or her control to be used by another person for any purpose prohibited by this section." So essentially if someone posts a dirty joke to your Facebook page, you could both be going to jail.

I would like to be able to tell you this bill was filed by a Democrat, but I can't.

Huge week for ObamaCare in Kentucky

This is the last week Kentucky legislators can introduce a bill giving the people's approval for Kynect, the state-financed version of ObamaCare. Paying for the health insurance program would become the state's full responsibility on January 1, 2015.

"ObamaCare is the one word analogy for absurd big government overreach people will remember for decades to come," said David Adams, tea party activist. "Kentucky law and the Constitution forbid the Governor from forcing us into this just because he wants to and no one else in Frankfort seems willing to bail him out of his biggest mess."

Federal grants pay through the end of 2014 for much of the local bureaucracy created by the "Affordable Care Act." Implementation has been beset by years of political wrangling and corruption as well as multiple ongoing legal challenges.

"Kentucky law allows the governor to temporarily create new bureaucracies, write new laws and levy new taxes, but the same statute (KRS 12.028) clearly requires legislative approval or those temporary actions quickly expire," Adams said. "The Kentucky Supreme Court will be asked this spring to set this right. If they don't, they render the General Assembly completely obsolete. We have some pretty crappy politicians masquerading as judges in the Commonwealth, but I don't think we are that far gone."

If Kentucky fails to properly create Kynect, responsibility for the "health insurance exchange" reverts to the federal government, as do all government costs. Nearly three dozen other states have already declined to opt in to this very costly scheme and several legal challenges to the Obama Administration's attempt to unilaterally rewrite the law to prevent immediate collapse of a federally-run ObamaCare are making their way to the United States Supreme Court.

"Beshear and Obama need the Kentucky General Assembly to ratify ObamaCare right away or Kentucky officially joins a solid majority of resisting states whose success in killing it off is actually looking more likely all the time," Adams said. 

Beshear's unreported Valentine's Day massacre

Truth took a bloody beating yesterday when Gov. Steve Beshear put crayon to heart-shaped construction paper for his latest profession of undying love for ObamaCare.

His enrollment numbers in Kentucky's version of the increasingly illegal health scheme fail to address both cancellations of policies for nonpayment of premium and policy cards sent to bogus addresses. It is impossible to take these numbers seriously without an independently audited count of such failed "enrollments."

The biggest risk to the government takeover from an insurance perspective is the increasing likelihood that too few young, healthy adults will sign up for ObamaCare policies, sparking a death spiral of premium increases starting in the second year. Federal estimates from the beginning have been that the critical 18 to 34 demographic must make up forty percent of enrollments to keep the overall group of insureds inexpensive enough to assure stable premiums.

Beshear claims 32 percent of insurance purchasers are under 35. Not only does this indicate clearly that the target is being missed by a long shot, but it also shows more Beshear manipulation of facts in that he is counting everyone under 35 and not just those 18 to 35. From an insurance perspective, this makes a huge difference. Clearly, the "young invincible" demographic hasn't fallen for the advertising featuring cats or "pajama boy."

Kentucky's brain dead media continues to flat line the EEG monitor.

Kentucky Common Core appeal filed

While waiting for a Franklin Circuit judge to reconsider his ruling against our case to get Kentucky out of Common Core, court rules necessitated filing an appeal to the Kentucky Court of Appeals.

The court's adverse ruling on the issue of standing was so far off on the law that the opportunity to ask the court to give it another look was too good to pass up. The problem was that if the judge rejected the motion to reconsider, then the opportunity to appeal would have expired today.

By 4pm today, the court still had not responded with a new order on the motion, so we filed a notice of appeal. The actual appeal brief will be filed in about a week.

Matt Bevin, apologize to McConnell

The sun came up this morning despite a federal judge ruling yesterday that Kentucky's definition of marriage amendment violates the U.S. Constitution. Senate candidate Matt Bevin would do well to make sure the sun does not set tonight without him apologizing for his quick attack on Sen. Mitch McConnell after the ruling became known.

Matt pointed out the judge who made the ruling served years ago as McConnell's general counsel and got his current job with the Senator's endorsement. This clearly scored a few points with some people who already don't like McConnell. So, in a sense, it's "Mission Accomplished."

But that's far from the end of the story and here I think Matt can show clearly how different a candidate he really is.

McConnell started attacking Matt wildly, unfairly and falsely before Matt even got into this race. He has continued that approach because that is who Mitch is, that is what Mitch does and Mitch has nothing else.

Matt has a lot more than that and is more than that. Matt Bevin doesn't need to attack Mitch because of a decades old connection to this judge. It was an easy attack to make in the heat of battle but it does literally nothing to expand Matt's appeal or further diminish the shriveling, shrieking McConnell.

Show everyone the bigger man that you are, Matt, and apologize to McConnell for yesterday's attack. And then roast him for caving once again on the debt ceiling.

Kentucky will survive same sex marriage

I will be on WEKY 1340 AM Richmond tomorrow at 1:30 pm talking about the federal court ruling today tossing out part of Kentucky's constitutional prohibition on gay marriage. I think it's a huge mistake to portray this as some kind of travesty of justice.

U.S. District Judge John Heyburn said that for Kentucky to refuse to recognize same sex marriages performed elsewhere violates the 14th Amendment of the U.S. Constitution. And it does. The 14th amendment forbids states from denying any person equal protection under its laws. Case law gives some leeway to the states when there is a "legitimate government interest" in violating the rights of some, and Gov. Steve Beshear asserted that interest in this case, but couldn't back it up.

That's the key point.

Treating people unequally under the law also violates Section 2 of the Kentucky Constitution, which is another legal provision Beshear has a lot of trouble understanding. Creating and maintaining strong nuclear families is clearly in society's best interests, but defining and enforcing it by government mandate is not. We need to face the fact that freedom can be messy and uncomfortable without being ruinous. This ruling did not cover performance of same sex marriages in Kentucky, only the recognition of those performed elsewhere. But the next ruling will surely address that. Supporting traditional marriage is still a right, it's just not something we can resolve with the force of law. Protecting freedoms must be the focus of legal efforts and to the extent that it is, social issues such as this can be dealt with in ways that make us stronger. That is our real challenge going forward.

Heads up

I'm going to Frankfort to the Administrative Regulation Review Subcommittee for their illegal hearing on Beshear's ObamaCare Medicaid expansion for the purpose of raising hell.

It's in room 149 of the Capitol Annex at 1:30 pm. Join me?

Common Core case continues

COMMONWEALTH OF KENTUCKY

FRANKLIN CIRCUIT COURT

DIVISION I

CIVIL ACTION NO. 13-CI-1316

 

 

DAVID ADAMS                                                                                           PLAINTIFF

 

 

V.                                            REPLY TO DEFENDANTS’ RESPONSE

                                                TO PLAINTIFF’S MOTION TO RECONSIDER

 

COMMONWEALTH OF KENTUCKY,

STEVEN L. BESHEAR, GOVERNOR, et al.                                          DEFENDANTS

 

 

            Defendants Beshear, Marcum, King and Webb devote an inordinate amount of space in their latest brief to seeking dismissal of Plaintiff’s Motion to Reconsider on technical grounds. Defendants rely on an incomplete reading and understanding of the rules of service. CR 5.03 states clearly of proof of service: “Proof may be by certificate of a member of the bar of the court or by affidavit of the person who served the papers, or by any other proof satisfactory to the court. (emphasis added)

            Plaintiff broadcast the Motion to Reconsider in its entirety on the internet on sites monitored by agents and attorneys of Defendants before and after serving it upon the Clerk. The Court’s Order entered January 29, 2014 in response to the Motion to Reconsider is evidence enough that Defendants were made aware of the Motion, otherwise the Court would be in violation of the CR 5.03 requirement that such evidence “shall be filed before action is to be taken thereon by the court or the parties.” The Court is well within its rights to determine sufficiency of service and a complete reading of the Rules makes clear that sufficient care was taken to do so.

            The remainder of Defendants’ Response was devoted to continuing to demonstrate their lack of understanding of the facts and legal arguments in this case. Defendants state “mere possibility of harm is insufficient to provide standing,” indicating a failure to grasp that their own violation of the Kentucky Constitution is by itself real harm, victimizing citizens dependent on its protections, of which Plaintiff is one, which is sufficient for standing. Plaintiff alleged violation of the Kentucky Constitution by Defendants and the Court made key legal errors in avoiding examination of that harm, which was addressed at length in Motion to Reconsider. Defendants compounded the errors in their Response by making a demonstrably false statement: “The Court properly determined that the adoption of Common Core State Standards as the Kentucky core Academic Standards, via regulation and pursuant to Senate Bill 1 (2009), did not violate Section 183.” The Court made no such ruling. Instead, the Court ruled mistakenly that Plaintiff could not bring his complaint to the Court to test the constitutionality of state officials’ actions with state taxpayer dollars and authority granted with limitations defined in the Kentucky Constitution by and on behalf of Kentucky taxpayers. The Court stated “Absent an allegation of a constitutional defect in the statute or the administrative regulation, this Court cannot adjudicate differences of opinion over educational policy.” While this statement, if applied to Rose v. Council for Better Education, Inc., 790 S.W.2d 186 (Ky. 1989), may have forbidden that landmark case from advancing, it also is not the same as conferring constitutional imprimatur upon Defendants’ actions. Setting aside complaints not made by Plaintiff and resolving the question of official violations of Section 183 that occurred and their real, negative impact on Plaintiff as alleged in the Complaint deserve far more serious consideration than have been given in this setting. Plaintiff respectfully requests the Court to reconsider its January 14, 2014 Order in this matter.

 

                                                                                               

                                                                                                Respectfully submitted,

 

                                                                                                __________________

                                                                                                David Adams

                                                                                                121 Nave Place

                                                                                                Nicholasville KY  40356

                                                                                                Plaintiff

 

CERTIFICATE OF SERVICE

 

This certifies the forgoing was served this 10^th day of February, 2014 via U.S. Mail upon:

 

David Wickersham

Assistant General Counsel

Kentucky Department of Education

Capitol Plaza Tower

500 Mero Street

First Floor

Frankfort KY 40601

 

 

Travis Powell

General Counsel

Council on Postsecondary Education

1024 Capitol Center Drive, Suite 320

Frankfort KY 40601

 

 

Alicia Sneed

General Counsel

Education Professional Standards Board

100 Airport Road, Third Floor

Frankfort KY 40601

 

 

 

                                                                                                            __________________

                                                                                                            David Adams

Fall of the House of Beshear

Left-wing talking point manufacturer ProPublica picked out four states who have made particular messes of their ObamaCare exchanges and wrote an article about them. The only fact that matters in an otherwise non-groundbreaking article is that Kentucky is not included in their story.

The many ongoing technical failures in Kentucky's "health exchange," though steadfastly ignored by Kentucky media, easily would qualify ours a state worthy of mention in a short list of failures. The main reason it is not is that Kentucky Gov. Steve Beshear -- to his credit, from a marketing perspective -- declared victory early, often and very loudly regardless of the chaotic events surrounding ObamaCare implementation in Kentucky.

But that's neither the main point nor the end of the story.

The story actually ended on the day it began. That was July 17, 2012 when Beshear created Kentucky Health Benefit Exchange by executive order pursuant to KRS 12.028. This statute clearly requires the Governor to gain subsequent legislative approval for such a government re-organization as this. This he has utterly failed to do and the matter is currently before the Kentucky Supreme Court. Worse, when his first executive order expired last year without legislative approval, he illegally reissued it.

The 2014 Kentucky General Assembly has taken none of the necessary steps to ratify Beshear's illegal executive action, nor are they at all likely to. Even the state's biggest ObamaCare cheerleaders in the legislature have had two years to file a bill for ratification, but not one of them has acted. What the heck are they waiting for?

Matthew Chapter 7 in the Bible warns of what happens to a house built on a foundation of sand. It describes rain, floods and wind knocking down the house and says "great was the fall of it." The Kentucky General Assembly ends on April 15 and when it does without giving authority or funding for Beshear's little funhouse of big government dreams, the stories of epic failure will write themselves with or without the media sycophants who have kept Beshear's parade going far too long.

Kentucky ObamaCare gets even sillier

Governor Steve Beshear has no place to run to on ObamaCare. Legislators can't give him long overdue approval or the money to throw us into the underfunded monstrosity. His scheme has only gotten this far because one Frankfort judge fell for the spin late last year.

The game has nearly run its course. Proof of that is a very silly "news" article out today by Ronnie Ellis of CNHI News. In it, Ellis attempts to refute "Republican" claims that ObamaCare would cost 280,000 Kentuckians the health insurance they had. You can click here and read the article. In it, Kentucky Department of Insurance spokeswoman Ronda Sloan suggests the 280,000 figure is not only inaccurate, but impossible.

Funny thing about that.

If you click here on the November 2 article that unveiled the 280,000 victim figure, you find that none other than Ronda Sloan was originally the source for that number.

These people have fooled too many for too long and it can't end soon enough. Please support the effort to shut down the propaganda, defeat the unconstitutional power grab and start the serious work of restoring market capitalism to healthcare in Kentucky. Click here and donate what you can.

Kentucky's questionable ObamaCare stats worsen

Kentucky Gov. Steve Beshear's latest ObamaCare sign-up claims suggest there have been no policy cancellations at all in the first month of the federal healthcare takeover. Such a claim simply holds no water.

A CNN report Thursday suggested large chunks of ObamaCare pre-enrollments nationwide never paid their January premiums. Kentucky ObamaCare officials said any policies without a January premium payment would be canceled as of three weeks ago, but the Governor's press releases do not reflect any.

As of today, Beshear claims 44,160 Kentuckians are covered by ObamaCare insurance policies. Two weeks ago, that number was 39,771. On December 31, he said 31,672 were "enrolled." And these numbers ignore, of course, the 280,000 Kentuckians forced off their coverage in 2013 by ObamaCare.

The Governor's office has refused to answer multiple requests for information this month about policies canceled for non-payment.

Kentucky's ObamaCare nullification bill

Thanks to Kentucky state Rep. Tim Moore for filing a simple solution to the ObamaCare mess. Today he filed House Bill 306.

The bill adds the following language to Kentucky's Insurance Code:

Notwithstanding any existing state-mandated health insurance benefit, any individual or group in Kentucky may negotiate with any insurance provider in this state or another state the terms of a health benefit plan that meets the individual's or group's needs.

(2)     Any individual or group may join together with others to create a pool in order to pursue advantageous premium rates.

ObamaCare zealots in the House will throw a fit when they see this, but it is sorely needed. The worst part, from their perspective, is the "meets the individual's or group's needs." Please ask your state representative to co-sponsor this bill.

Kentucky Democrats not rescuing Beshear

The 2014 Kentucky General Assembly has only 21 more days to introduce House bills and still don't have one ratifying Gov. Beshear's illegal executive order creating and funding the state-run ObamaCare "exchange." There has been absolute silence in Frankfort about this, as the press corps has been too busy cheerleading Beshear's national ObamaCare tour.

There is no way to pull Beshear's fanny out of this fire. Reporters sitting around hoping for another sex scandal to materialize might as well start looking into Beshear's Waterloo.

Latest Common Core lawsuit motion

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