Response to Beshear's Motion to Dismiss (Medicaid lawsuit)

COMMONWEALTH OF KENTUCKY

FRANKLIN CIRCUIT COURT

DIVISION 1

CASE NO 13-CI-000605

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.

An email from Mary Lyons, Lexington

Printed with permission:

Just called Gov. "Chicken Biscuits" office and spoke with Katie Mueller re: the court hearing on Monday and told her I was the lady that called yesterday in re: to the Obummercare Medicaid Exchange and saw that he had a court hearing for Monday at 9:00 A.M. at the court house and she "wasn't aware of a court hearing." 

I told I just called to make sure that he was going to be at this hearing because as a Kentuckian I want to hear what he had to say about this and how it is going to affect many Kentucky taxpayers. She said she didn't know about his schedule and that he has legal counsel that would take care of it, but I pressed her and said that he needs to be there because he is the one being sued and Kentucky needs to know what he is up to. 

She said that it was his decision that they were going to accept this exchange regardless. I said, without the vote of the Legislature? She got real good and agitated and said she wasn't going to argue with me about it. I asked to speak to his secretary after she said she didn't have his schedule for Monday, so I could confirm that he was going to be there and she would not transfer me to "Chicken Biscuits" secretary. 

I said, as a Kentuckian taxpayer I have a right to know if the Gov. is indeed going to show up for a court hearing that is as important as this that will affect Kentucky for years. She repeated that the Exchange will be accepted and there is nothing we can do about. God only knows if Governor Chicken Biscuit will show. 

What a freaking coward! I am so glad you sued him. I hope to be there on Monday, if I don't have jury duty. I was chosen for jury duty for the month of June in Fayette County. I love jury duty, I consider them Divine Appointments. I pray that you will have a good day. Stand strong, don't get discouraged or anxious, trust God and obey and He will give the victory. Just keep in mind: GOD HAS EVERYTHING UNDER CONTROL, when we don't think He does. This is the one thing that brings me great joy every day I get up. GOD IS AN ON TIME GOD.

Small town lawyer blisters Kentucky Governor Steve Beshear

Plaintiffs in the Tea Party lawsuit to stop Kentucky Gov. Steve Beshear from setting up a state-run ObamaCare "exchange" without legislative approval have filed a motion for summary judgment, which would shut down the exchange.

Attorney Michael Dean, of Irvine, argued for the plaintiffs:

"It is clear that Governor Beshear may not, without legislative action, authority or appropriation, take it upon himself to reorganize state government, create government boards, offices and make appointments to them, promulgate administrative regulations, create budgets, incur debts, enter contracts, impose taxes or fees, accept federal funds and decide how they are to be spent, and commit state dollars to his enormous new bureaucratic undertaking."

"There being no genuine issues of material fact in dispute, as a matter of law the Executive Order and all action taking in furtherance therof and the administrative regulations promulgated thereunder are unconstitutional, and the court should so declare, and should enter a permanent injunction, barring implementation of the Executive Order, voiding all contracts, employment positions, and commitments, and freeze further payments and expenditure of funds by or for the purpose or benefit of the Exchange."

Mr. Dean had Governor Beshear's legal team chasing their tails and barking at the moon. It was more fun than watching Judge Judy catch some poor non-gubernatorial sap in a lie.

The summary judgment motion is scheduled to be heard in Judge Shepherd's courtroom at 9am on Monday June 24, 2013 at 669 Chamberlain Avenue in Frankfort. Everyone is invited to attend.

Freedom going viral in Kentucky

Kentucky Governor Steve Beshear's attempt to ram ObamaCare down the throats of an electorate who rejected Barack Obama resoundingly twice is, unsurprisingly, not going well.

Internal chaos at the Kentucky Health Benefit Exchange, the Department of Insurance, the Cabinet for Health and Family Services, and the Kentucky Democratic Party is masked only superficially by bureaucratic purring about how great ObamaCare is going to be and a remarkably incurious media who wrote hundreds of articles about incompetence in the last (Republican) gubernatorial Administration.

Two lawsuits have been filed to stop the twin state ObamaCare options -- a state run health insurance bureaucracy inauspiciously wrapped up in a web site created to make health insurance buying easier but instead ushering in an era of confusion and complexity not seen since the Byzantine Empire and an expansion of the disastrous Medicaid.

The first case, against the Beshear administration's blatantly illegal establishment of the exchange, nears a quiet end just as Beshear channels Star Wars' Grand Moff Tarkin: "Evacute? In our moment of triumph? I think you overestimate their chances" seconds before the Death Star explodes.

His case in the second lawsuit is even worse. Governor Beshear's motion to dismiss is scheduled for hearing in Judge Phillip Shepherd's courtroom on Monday June 17 at 9:00 am ET at the Franklin County Courthouse, 669 Chamberlain Avenue in Frankfort. His case dangles precariously on the bizarre -- and already once failed -- assertion that citizens can't question his illegal and unconstitutional acts and the idea that suit can't be brought to stop him from signing the state up for a Medicaid death spiral until he actually does it.

Tea Party activist David Adams, as plaintiff in the Medicaid case, will be arguing the case before the judge next Monday.

"If Gov. Beshear is smart he won't show up," Adams said. "But I'm going to spend the next few days talking up the need for him to defend this mess in person and not hide behind legal shenanigans in the shadows with his lawyers and flacks."

Affordable Legal Care Act, anyone?

A good attorney can be worth far more than his or her weight in gold and I know lots of good attorneys.

But I also know the limitations of a government run cartel and the legal profession is one. If you really need an attorney with legal expertise, go find one with the best available training and experience and pay him or her well. But that occasional need shouldn't necessitate clinging to a regulatory model we know does not serve willing providers and willing consumers very efficiently.

As such, I suggest changing Kentucky law to decriminalize the practice of law without government permission. Would just involve striking one line of statute:

KY Obamacrats seek bids for health exchange "navigators"

Kentucky's ObamaCare coordinators announced today they have issued a request for proposals for people to "help" health insurance consumers wade through the application process to sign up for government controlled health coverage.

The fact that we are wasting millions of dollars to send people around the state to explain a web site costing billions to implement a federal plan spending trillions doesn't inspire confidence on any level.

Not to mention the fact the whole state program was created illegally.

Protecting Kentucky's oath of office

A court hearing July 15 in Frankfort will challenge long-held tradition shielding legislative leaders from lawsuits when they ignore their oath of office.

"To the extent Kentuckians are aware of the oath of office at all, most of us just know the anachronistic prohibition on fighting duels but it also requires protection of the Constitution," said David Adams, plaintiff in two lawsuits challenging the legality of ObamaCare implementation in the Commonwealth.

"Legislative rules have been changed to tolerate lawlessness among legislative leaders and reward violations of the Constitution," Adams said. "We have an opportunity to bring this out in the open and fix it for the benefit of all Kentuckians, so that's the plan."

The hearing will take place during Judge Phillip Shepherd's July 15 motion hour starting at 9am ET at the Franklin County Courthouse, 669 Chamberlain Avenue in Frankfort.

Kentucky Governor gives up, hopes judge won't notice

Many Bluegrass State voters have had reason to wonder if Steve Beshear thinks we are all stupid. With a new court filing just released, members of the Commonwealth's judicial branch can now understand the feeling.

Asked repeatedly which sections of the Kentucky Constitution grant him authority to unilaterally reorganize state government to create an optional health benefit "exchange" under ObamaCare, Beshear has finally answered.

It is shockingly bad.

Beshear claimed the "Executive Order which is the subject of the Complaint is a valid exercise of state executive authority under Sections 69 and 81 of the Kentucky Constitution."

But, of course, it isn't.

Section 69 of the Constitution reads in its entirety: "The supreme executive power of the Commonwealth shall be vested in a Chief Magistrate, who shall be styled the "Governor of the Commonwealth of Kentucky.""

No, I'm not kidding.

Section 81 is no more helpful to the Governor's flagging case. It reads in its entirety: "Governor to enforce laws. He shall take care that the laws be faithfully executed."

Again, not kidding.

This is so bad it's almost not funny. Please, Governor, shut down this nonsense now.

Push coming to shove on Kentucky's welfare state mentality

Less than a week remains for Frankfort's three leading politicians to respond to the tea party lawsuit seeking to stop Kentucky's Medicaid expansion and the defendants have so far exercised their right to remain silent.

Governor Steve Beshear and House Speaker Greg Stumbo, as Obama Democrats, can't be expected to hold the rule of law in very high regard. As such, they may even be planning to run another goofy "citizens can't complain" legal gambit up the flagpole. Who knows?

Senate President Robert Stivers may have the more complicated situation. He says he opposes ObamaCare and, indeed, he voted earlier this year to force Gov. Beshear to gain legislative approval before expanding Medicaid, but only under ObamaCare.

This is possibly quite a substantial "but." KRS 205.520(3), which the Senate sought to amend with SB 39 in the 2013 General Assembly, is entirely unconstitutional. The statute grants limitless powers to the Cabinet Secretary of Health and Family Services to apply for federal dollars for "medical assistance." SB 39 would have left that power in place except for as it relates to the very unpopular ObamaCare law. But it violates Section 2 of Kentucky's Constitution in every case, not just this one.

So does Sen. Stivers want to keep this executive power intact so he or someone in his political party may continue to use it? We don't know yet. Frankfort Republicans have been known to get somewhat weak-kneed at the hint of federal dollars, but this case should give Sen. Stivers a chance to firm up his party's reputation on that front.

Sure hope he takes us up on it.

Beshear shows signs of Battered Democrat Syndrome

Kentucky Governor Steve Beshear has sent a letter to the Obama Administration begging them not to kill off the coal industry once and for all.

Click here to read the letter.

Too little, too late doesn't even begin to cover the psychosis evident in such an effort by the head of the Kentucky Democratic Party. Indeed, what the hell is he thinking?

Beshear campaigned vigorously for Obama's re-election and has flouted state law and the Constitution of the Commonwealth of Kentucky to cram Obama's fanatical agenda down our throats and now he wants to seriously make people believe that he is standing up to prevent his promised death blow to Kentucky coal.

Now is the time to melt the phone lines in Frankfort and Washington D.C. Call your representatives, call the Governor, call your federal representatives. The political class sleeps while Obama and the global warming hysterics turn the lights out in Kentucky and push us back into the 18th Century.

This is how the two party political system conspires to destroy America. Pick just about any issue. You will find one party slashing and burning producers and consumers and the other party giving lip service while collecting "protection" money. The net effect is both vultures pick the carcass clean and then move on to another piece of meat.

Frankfort stepping up ObamaCare propaganda efforts Monday

The Kentucky Health Benefit Exchange (KHBE) plans to introduce misleading insurance rate information Monday damaging the quality of public discourse about health reform and attempting to prejudice citizens' legal efforts to stop Frankfort's illegal takeover of healthcare in the Commonwealth.

The KHBE attempts to irresponsibly and misleadingly conflate 2013 small group health premiums with 2014 individual market premiums inside the exchange to falsely suggest that Affordable Care Act coverage mandates do not increase premiums substantially.

"These people would sell their own mothers down the river to distract attention from the scandals in Washington D.C. and the many embarrassing failures in ObamaCare," said David Adams, Tea Party activist. "This bad behavior can only persist if the people aren't relentless in calling bureaucrats out when their lies are so transparent. That's what the Tea Party is for."

"Corporatist shills in both political parties have remained silent about how ObamaCare exchanges raise costs on consumers by further cutting provider payments, limiting provider networks and drug formularies and forcing people to buy coverages they don't want and can't use," Adams said. "Kentuckians deserve much better."

Shocking greed at KY Health Benefits Exchange

Paying an average salary of over $120,000 a year for state workers to run a health insurance web site supposedly created to save consumers money isn't sitting too well with some Kentuckians.

That's total annual compensation of over 15 million dollars for 119 employees and contractors of the Kentucky Health Benefit Exchange, created in Frankfort to implement much of the federal health reform law known as ObamaCare.

  

"It's a spending orgy, but all the average Kentuckian is getting is the privilege of purchasing the little blue pills," Tea Party activist David Adams said.

Adams filed a lawsuit against Gov. Steve Beshear in April to stop work on the exchange in Frankfort, which he says was created in violation of state law KRS 12.028 because the legislature did not approve its formation. This month, he sued Gov. Beshear, Senate President Robert Stivers and House Speaker Greg Stumbo for allowing Cabinet for Health and Family Services Secretary Audrey Tayse Haynes to expand Medicaid in accordance with a voluntary ObamaCare provision but in violation of the Constitution of the Commonwealth of Kentucky.

"Mad as hell radio" takes to the airwaves!

Today I will guest host for Matt Walsh on 630 AM WLAP radio in Lexington KY from 3pm ET to 6pm ET starting immediately after Rush Limbaugh.

You can listen online by clicking here. Please also call in with comments and questions to 859-280-2287.

Republicans who won't fight to win and the Democrats who love fighting them

A question I'm asked frequently these days is why Republican officials in Kentucky aren't publicly coming out in support of our legal efforts to shut down ObamaCare here. My best answer so far, really, has been that I'm not the one to ask about that.

I'm not giving that answer anymore.

The truth is our Republican establishment would rather lose on political gamesmanship than win on issues.

Unfortunately, certain Republican leaders like to talk a good game about fighting "tooth and nail" against Democrats but never seem willing to actually do enough to beat them in a substantial or lasting way, if at all.

TARP bailouts. Education "reform." Every debt ceiling "battle" in recent memory. "Sequester" spending increases. "Fiscal cliff" tax increases. Making Obama a "one term president."

We might as well go ahead and add ObamaCare to that list if we are going to do little more than make floor speeches against it and cast symbolic votes for repeal.

If stopping ObamaCare is really a top priority -- and it should be -- nothing should be off the table in terms of defeating it. If cutting off funding means shutting down the government until Democrats relent, any time in the last two years would have worked better than sitting back and hoping to use it as a campaign issue in the 2012 elections. Instead, we continue even now to fund the train wreck.

Worse, Sen. Mitch McConnell seems content to try this approach again in 2014 despite last year's failure. He could possibly have enough money for that to work for him in his election, but playing politics with our health care system now does little to nothing for more than a few individual insiders, Republicans as a group or the nation as a whole.

Candidates who advocate for real free market reforms in health care in 2014 must not only run through establishment Democrats who pretend to want to dismantle crony capitalism, but they will first have to contend with establishment Republican types playing exactly the same game.

Carrying on with this battle along the only path to success is a winner politically for the tea party made possible -- once again -- by absurd intransigence among the ranks of those following the political counsel of the senior Senator from Kentucky.

Open letter to President Barack Obama

President Barack Obama
The White House
1600 Pennsylvania Avenue
Washington D.C. 20500


Dear Mr. President,

We need your help with a unique problem in Kentucky.

As you probably know, the Bluegrass State is the only state in the nation to vote against you twice and then take steps to implement both a state-run exchange and the optional Medicaid expansion.

While that may not present much of a political problem per se, it could add to a logistical nightmare of the Affordable Care Act rollout because Kentucky literally is in no position to participate and there is no likelihood of that changing soon enough.

To be specific, under Kentucky law we can not participate in either the state-run exchange or the optional Medicaid expansion. I know you have been advised otherwise by Governor Steve Beshear, but he hasn't told you everything you need to know.

On July 17, 2012, Governor Beshear filed Executive Order 2012-587 purporting to create a "Kentucky Health Benefit Exchange," citing "the Constitution of the Commonwealth of Kentucky and KRS 12.028" as his authority for unilaterally taking this action.

Put some staffers on the task of verifying this supposed claim of authority by Governor Beshear. It will not take long to recognize the truth that it can't be done. It simply is not a valid exercise of executive power under Kentucky law. Further, a lawsuit already underway in state court will likely quite soon force Governor Beshear to request of your Administration the rushed creation of a federally run exchange.

A possible alternative, of course, is an extraordinary session of the Kentucky General Assembly to provide the Governor necessary authority to implement a state-run exchange, but current political realities should inform us that such would not be productive.

For these reasons, the people of Kentucky need your Administration to advise Governor Beshear to cease his illegal activity related to creation of the Kentucky Health Benefit Exchange.

Also, please be advised that another lawsuit to forestall acceptance of the Medicaid expansion has also reached state court. The case against this action is somewhat less obvious, but no less clear. KRS 205.520(3) confers unlimited powers upon the state secretary for health and family services to seek federal funds relating to "medical assistance." However, Section 2 of Kentucky's Constitution forbids exercise of absolute power in the state. The only legitimate way Governor Beshear can obligate Kentuckians to the costs associated with this activity is with legislative cooperation. Again, such is not at all likely to be forthcoming.

Any assistance you can give us in regard to advising Health and Human Services officials of Kentucky's inability to comply with these optional portions of the Affordable Care Act would be beneficial for all parties  involved and is greatly appreciated.


Sincerely,


David Adams
121 Nave Place
Nicholasville, KY 40356

Who is in charge around here, anyway?

Tea Party victory heard round the world

Franklin Circuit Judge Phillip Shepherd issued the following ruling today:

 We can only hope this will be the last time a state official claims he or she can't be sued by citizens for breaking the law and ignoring the Constitution he or she swore to uphold.

Storm the gates on Thursday, May 23

Governor Steve Beshear is continuing to violate state law by not ceasing operation of his illegal Kentucky Health Benefit Exchange despite its clear violation of KRS 12.028.

Please make plans to attend the next meeting of the Kentucky Health Benefit Exchange tomorrow, Thursday May 23, 2013 at 1:30 pm. The meeting will be held in the Exchange's palatial headquarters at 12 Mill Creek Park in Frankfort.

This one may be somewhat more interesting than the usual government meeting.

Medicaid expansion not what it appears to be

A new Pew Research survey suggesting a deep south split between Republican politicians opposing the ObamaCare Medicaid expansion and citizens who want it serves as a perfect example of the misinformation campaign to promote federal takeover of healthcare.

Results show some 62% of respondents in a handful of states who rejected the expansion think it would be a good idea to expand Medicaid just as Obama and some Democrats want.

But they gloss over a key point we should not miss.

The question is stated as follows: "I’m going to read you some elements of the health reform law. As I read each one, please tell me whether you feel favorable or unfavorable: the law will expand the existing Medicaid program to cover more low income uninsured adults."

This is misleading because many if not most of those caught up in the expansion will not be from the ranks of the uninsured. In fact, the law prohibits people in the health exchanges who qualify for Medicaid from purchasing private health insurance.

If more people understood that, those numbers wouldn't be nearly so high.

Herald Leader edits in error to ObamaCare story

Lexington Herald Leader reporter Jack Brammer attended yesterday's first hearing in the Adams v. Beshear case challenging the legality of the ObamaCare state-run health insurance exchange in Kentucky. He filed his report around midday, accurately and fairly depicting the morning's events as I read it.

Then it was brought to my attention in this morning's paper that his story contained a key factual error that, if believed, could damage our case to hold Gov. Beshear accountable, shut down the ObamaCare exchange and prevent future governors from attempting to abuse the lawmaking process.

The offending sentence reads as follows: "The exchange will be financed entirely with federal dollars until Jan. 1, 2015, after which Beshear has saiid iit will be wholly financed with revenue it generates."

This is not true.

The federal Affordable Care Act explicitly says each state with a state-run exchange must create and run a "Navigator" program as part of the exchange. It further explicitly says such programs can not be funded by federal money. To enact the required Navigator program during the open enrollment period starting October 1, 2013, state funds must be used.

The false statement is one Gov. Beshear keeps repeating, though not enough to make it true. As of 4pm Tuesday, the Herald Leader has failed to correct their error. That is a shame:

Text of Medicaid lawsuit

COMMONWEALTH OF KENTUCKY
FRANKLIN CIRCUIT COURT
DIVISION ___
CIVIL ACTION NO. 13-CI-______

David Adams PLAINTIFF,

v. COMPLAINT

COMMONWEALTH OF KENTUCKY, DEFENDANTS
OFFICE OF THE GOVERNOR, Steven L. Beshear,
OFFICE OF THE SENATE PRESIDENT, Robert Stivers,
OFFICE OF SPEAKER OF THE HOUSE, Gregory Stumbo,
CABINET SECRETARY HEALTH AND HUMAN SERVICES,
Audrey Tayse Haynes

Serve: Governor Steven L. Beshear
Office of the Governor
700 Capitol Avenue, Suite 100
Frankfort, KY 40601

Serve: Senate President Robert Stivers
Office of the Senate President
702 Capitol Ave
Annex Room 236
Frankfort KY 40601

Serve: House Speaker Greg Stumbo
Office of the Speaker of the House
702 Capitol Ave
Annex Room 303
Frankfort KY 40601

Serve: Audrey Tayse Haynes
Cabinet For Health and Family
Services
275 East Main Street 5W-A
Frankfort, KY 40621



---------------------------------------------------------------------------------------------------------------------------

Plaintiff, David Adams, for his Complaint against Defendants, the Commonwealth of Kentucky, acting through the Office of the Governor (“Governor”), and Governor Steve Beshear, in his official capacity as Governor of the Commonwealth, Senate President Robert Stivers, in his official capacity as Senate President, House Speaker Greg Stumbo, in his official capacity as House Speaker and Audrey Tayse Haynes, in her official capacity as Secretary of the Cabinet for Health and Family Services respectfully states as follows:

I. NATURE OF ACTION

1. This is a civil action for declaratory and injunctive relief relating to Governor Beshear’s acceptance of the optional Medicaid expansion as part of the federal Patient Protection and Affordable Care Act, hereinafter PPACA. David Adams seeks injunctive relief in the form of a court order forbidding Governor Beshear and the General Assembly from acting to accept the Medicaid expansion as part of compliance with optional provisions of PPACA or under any circumstances without prior and proper legislative approval.

2. Time is of the essence in resolving this issue because the current Medicaid expansion is scheduled to take effect January 1, 2014 with enrollment starting October 1, 2013. Continued delay in limiting the state officials’ activities in this matter to within the scope of Kentucky law and the Constitution of the Commonwealth of Kentucky sets a terrible precedent for ignoring constitutional  limits on executive and legislative branch authority to protect Kentuckians’ rights to seek and pursue their safety and happiness as explicitly guaranteed by the Kentucky Constitution.

3. The judicial branch of the Commonwealth of Kentucky is the only remaining venue for redress available to David Adams.

4. As a result of the actions of Governor Beshear and the General Assembly, David Adams respectfully seeks an injunction against Governor Beshear’s acceptance of the PPACA Medicaid expansion or any other expansion of Medicaid eligibility until such time as he receives proper legislative approval as required by Kentucky law and the Kentucky Constitution.

5. To the extent that KRS 205.520(3) provides absolute authority to Secretary Haynes “to take advantage of all federal funds that may be available for medical assistance” it represents an unconstitutional usurpation of citizens’ rightful protections against absolute power found in Section 2 of the Constitution of the Commonwealth of Kentucky.

6. Attorney General Jack Conway is being served with a copy of this Complaint pursuant to KRS.418.075 in as much as the constitutionality of KRS. 205.520(3) is brought into question.

II. THE PARTIES

7. David Adams is a citizen of the Commonwealth of Kentucky.

8. Governor Steve Beshear is sued in his official capacity as Governor of the Commonwealth of Kentucky.

9. Senate President Robert Stivers is sued in his official capacity as Senate President of the Commonwealth of Kentucky.

10. House Speaker Greg Stumbo is sued in his official capacity as Speaker of the House of Representatives of the Commonwealth of Kentucky.

11. Cabinet Secretary Audrey Tayse Haynes is sued in her official capacity as Secretary of the Health and Family Services Cabinet.

III. JURISDICTION

12. Jurisdiction is proper pursuant to KRS 418.040 and Kentucky Constitution Section 112 (5).

IV. FACTUAL ALLEGATIONS AND BACKGROUND

A. Patient Protection and Affordable Care Act

13. On May 9, 2013 Governor Beshear announced his intention to accept the optional Medicaid expansion as part of PPACA. KRS 205.520(3) reads as follows: “Further, it is the policy of the Commonwealth to take advantage of all federal funds that may be available for medical assistance. To qualify for federal funds the secretary for health and family services may by regulation comply with any
requirement that may be imposed or opportunity that may be presented by federal law. Nothing in KRS 205.510 to 205.630 is intended to limit the secretary's power in this respect.”

14. KRS 205.520(3) was enacted in 1966 as House Bill 115. It has been amended repeatedly by subsequent actions of the legislature, but never eliminated or changed in such a way as to protect Kentucky citizens as guaranteed by the Kentucky Constitution.

15. This statute is unconstitutional in that it grants unchecked and absolute powers to the Secretary of the Health and Family Services Cabinet in violation of Section 2 of the Constitution of the Commonwealth of Kentucky which reads: “Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority.”

V. CLAIMS FOR RELIEF

16. David Adams seeks declaratory relief pursuant to KRS 418.040. David Adams seeks a judicial determination of the rights and duties of the parties with regard to an actual controversy arising out of Governor Beshear’s attempt to implement optional provisions of PPACA without receiving proper legislative approval and David Adams’ rights as a citizen to protection from “absolute and arbitrary” government power guaranteed by Section 2 of the Kentucky Constitution. Further, David Adams seeks a declaration that KRS 205.520(3) represents an unconstitutional usurpation of citizen rights by the executive and legislative branches of the government of the Commonwealth of Kentucky.

17. David Adams seeks injunctive relief pursuant to rights protected by Section 2 of the Kentucky Constitution. David Adams seeks a judicial determination that Governor Beshear does not possess the authority to unilaterally accept the optional Medicaid expansion under PPACA or under any circumstances without proper legislative approval and that the expansion of Medicaid eligibility under PPACA is therefore null and void in the Commonwealth.

VI. PRAYER FOR RELIEF

WHEREFORE, David Adams prays for relief as follows:
1. David Adams requests the court enter a judgment declaring the legislature erred in granting the executive branch authority to accept optional federal mandates without limit, erred in not rescinding this authority granted in violation of Section 2 of the Constitution of the Commonwealth of Kentucky and that Governor Beshear did not and does not have the authority to accept optional federal mandates without legitimate legislative approval and that since no proper authority existed or exists for expansion of Medicaid related to PPACA or under any circumstances and that Governor Beshear may not elect to expand Medicaid or otherwise seek or accept federal funds without specific and legitimate legislative authority, including the Medicaid expansion relating to PPACA.



Respectfully submitted,


David Adams
121 Nave Place
Nicholasville, KY 40356
859-537-5372
Plaintiff




CERTIFICATE OF SERVICE


This certifies the forgoing was served this ____ day of  __________, 2013 via U.S. Mail upon:


Serve: Governor Steven L. Beshear
Office of the Governor
700 Capitol Avenue, Suite 100
Frankfort, KY 40601

Serve: Senate President Robert Stivers
Office of the Senate President
702 Capitol Ave
Annex Room 236
Frankfort KY 40601

Serve: House Speaker Greg Stumbo
Office of the Speaker of the House
702 Capitol Ave
Annex Room 303
Frankfort KY 40601

Serve: Audrey Tayse Haynes
Cabinet For Health and Family
Services
275 East Main Street 5W-A
Frankfort, KY 40621

Attorney General Jack Conway
Office of the Attorney General
700 Capitol Avenue Ste. 118
Frankfort KY 40601



_________________________________

David Adams

One rock for Goliath

On Monday May 20, the first public hearing of my lawsuit against Kentucky Gov. Steve Beshear takes place in Frankfort. What follows is a quick post to explain what's up.

ObamaCare remains ubiquitous as the biggest scandal of the present Administration in Washington D.C., even as Benghazi, IRS/Tea Party and spying on the Associated Press catch fire. The federal takeover of our healthcare system dwarfs all other conflagrations.

A key gambit in the federal effort involved getting the states to buy in and, essentially, do a lot of the dirty work for the feds in terms of on-the-ground implementation and financing of "health reform."

The strategy also seems to clearly involve giving federal officials someone else to blame when ObamaCare fails to meet its rosy expectations. The transparency of this strategy hasn't fooled very many people. In fact, of all the states only Kentucky rejected Obama's bid for re-election in 2012 but swallowed his health plan whole.

That means Kentucky has taken the bait to create a health insurance "exchange," an option under ObamaCare and has agreed to expand Medicaid, also an option as part of the United States Supreme Court ruling.

Governor Beshear implemented the exchange with a July 2012 executive order which was proper for a temporary reorganization of state government, but required subsequent legislative approval under KRS 12.028(2), which was never received.

When the 2013 General Assembly ended without the required legislative oversight having taken place, further development of the Kentucky Health Benefit "ObamaCare" Exchange became illegal.

When Gov. Beshear refused to follow the law, I filed suit against him in Franklin Circuit Court. Again, the first hearing is Monday. The public is invited to attend. We will be in Judge Phillip Shepherd's courtroom in the Franklin County Courthouse at 669 Chamberlain Avenue at 9:00 am on Monday May 20. Please join us and invite friends. The more eyeballs we have on this process, the better.

Also on Monday, I will file a second suit to halt Gov. Beshear's unilateral expansion of Medicaid in Kentucky. He cites KRS 205.520(3) as giving his Administration authority to do this without input from the people. And it does give him that authority. Here is the problem, though: passed in 1966 as HB 115, this piece of statute is unconstitutional under Section 2 of the Kentucky Constitution.

In short, when the legislature gave such authority to the governor they failed to recognize this form of absolute power was not theirs to give. It belongs to the people and we are going to Frankfort to get it back.

When Gov. Beshear railed against our effort to hold him accountable, telling us to "get over it," some of us were reminded of the last words of Goliath found in 1 Samuel 17:44: "And the Philistine said to David, Come to me, and I will give thy flesh unto the fowls of the air, and to the beasts of the field."

Has panicked Beshear shifted legal strategy again?

When Gov. Steve Beshear filed his executive order creating the Kentucky Health Benefit Exchange last July, he claimed without credibility the "Constitution of the Commonwealth of Kentucky and KRS 12.028" gave him the authority to unilaterally establish the key portion of ObamaCare.

It is extremely clear that neither our foundational document nor the statute he cited provide Beshear with the power to permanently reorganize government and create a new bureaucracy, appropriate funds, raise taxes (or fees) or write new laws without legislative approval.

Then on May 2, 2013, Beshear claimed in a court filing that mere taxpayers could not question his actions because the taxes he created to meet the state's financial obligations in the exchange "plainly do not impose a tax." This claim was obviously plainly false, which he was forced to admit today:

Then Gov. Beshear spoke to CNHI reporter Ronnie Ellis, who asked him again about his authority to create the exchange. Beshear told him a Kentucky law allows him to "maximize" federal funds.

Assuming that in this latest move Gov. Beshear is referring to KRS 205.520(3), he is saying the Secretary of Health and Family Services is using her own authority and not his "to take advantage of all federal funds that may be available for medical assistance."

This would be an interesting move, essentially conceding the main point of the lawsuit but still trying to take an end run around the legislature to create the exchange. That would drop Gov. Beshear from the suit and make Secretary Audrey Haynes the focus as well as powers delegated to her which are unconstitutional and stupid.

I'd love to argue the merits of that point in court.

The state-run health benefit exchange is the mother of all unfunded mandates. To justify setting it up as a means to maximizing the receipt of federal funds is not only wrong-headed in this case, the authority wasn't the General Assembly's to give away. That authority belongs to the people and is protected by Section 230 of the Kentucky Constitution. If that is to be the new focus of the lawsuit, so be it.

Beshear launches "Get Over It" tour Wednesday

Kentucky Governor Steve Beshear, fresh off stirring up ObamaCare opponents by telling them to "get over it" when asked about the upcoming government created trainwreck in healthcare, has called another press conference for tomorrow Wednesday May 15, 2013 to rub your noses in it further.

Governor Beshear says he will be in the State Capitol room 110 tomorrow at 11:00 to continue telling worried healthcare consumers how stupid they are not to believe that the federal takeover of healthcare will magically work out for everyone despite all the mounting evidence to the contrary.

Hope to see you there.

Looks a lot like a Kentucky death panel

Kentucky's Medicaid program is in a state of chaos and Governor Beshear has called a Thursday press conference to announce he intends to make it much worse in a big hurry.

If you think this doesn't matter to you, you are wrong.

First, you may be forced into Medicaid despite drastic shortages of willing providers, horrific mismanagement of the program in Kentucky and despite your better judgment.

If your income is below 138% of the federal poverty level and you have health insurance through your employer, your days may literally be numbered.

Under ObamaCare and with the Medicaid expansion Beshear craves, state General Fund losses will swell. That impacts all of us.

And if you qualify for Medicaid, you can expect to be forced to join it, even if you have been working your tail off at a job offering low wages but decent health coverage. That's because the "health insurance exchange" many will be forced into will refuse to sell you health insurance under any circumstances.

This video comes from a Chamber of Commerce speech given Wednesday by Kentucky Health Benefit Exchange Deputy Director William Nold:

And one key fact they really don't want you to know is that anyone previously eligible for Medicaid but on private coverage now does not get the temporary 100% match from the federal government. Bad coverage and unaffordable is not exactly a winning combination. Thanks again, Governor.

Judge slaps down Lexington Police, Prosecutor

Fayette Circuit Judge Pamela Goodwine struck a blow for the rule of law Tuesday by ruling against local law enforcement thugs in their nine month torment of a Lexington business.

Goodwine dismissed bizarre claims of the Fayette County Attorney that police can simply barge into a local business and illegally confiscate a quarter of a million dollars of property.

Goodwine ordered police to return the property stolen last August from Ginny Saville, owner of Botany Bay on Winchester Rd. Much of it was destroyed in the summertime smash and grab operation by police and the rest probably hasn't fared well stuffed in a warehouse all this time.

Lexington taxpayers will be held responsible for these illegal actions of Lexington Police in an upcoming civil lawsuit. Local politicians have made this worse by resisting to take necessary actions to ensure police operate within the confines of the law, mostly because local media doesn't call any of them on their nonsense.

Sadly, no one thinks he will be a victim of extreme official misconduct such as this until it happens. This is a perfect example of why we must protect the Liberty of all people, all the time. Spend even an hour in a local courtroom and you are fairly likely to see how the system feeds on victims who never thought it could happen to them either.

Summing up Adams v. Beshear so far

Kentucky Governor Steve Beshear wants to win his fight for assuming the ObamaCare unfunded mandate without addressing funding or mandates.

We should not let him do it.

In open court next Monday, Beshear's lawyers will claim mere taxpayers can't stop his recklessness because no one can demonstrate "prejudice to their rights as taxpayers or a loss to the Commonwealth." But that just isn't true.

The Kentucky Health Benefit Exchange will be funded "from revenues generated by the Exchange" according to Beshear's executive order creating said exchange. That means starting October 1, 2013 Kentuckians will start paying money to buy health insurance that they haven't had to pay before. This change was created without legislative action of any kind. That violates Sections 27, 28 and 230 of the Kentucky Constitution.

By itself, this action violates the rights of taxpayers to not have their pockets picked without legislation first being properly enacted. If that isn't prejudicial to their rights, what is?

Worse, the Exchange executive director told the Associated Press in January that tobacco settlement funds currently set to go elsewhere would be re-directed toward Exchange expenses. These funds could theoretically be appropriated in the next budget when federal funds run out, but one would have to expect ObamaCare to suddenly not be politically poisonous for that to happen. Fat chance.

Further, "losses to the Commonwealth" have already begun with the accrual of pension benefits for Exchange employees in one of the worst funded state retirement systems in the nation. Those losses are not speculative, nor are the inevitable cost overruns in the exchange that will fall in the next budget biennium, but can only be prevented by stopping the Governor in this one.

The issue of timing is also critical to the Governor's motion to dismiss to be heard on May 13. If all the harm is only potential harm in the next budget cycle, then he might have a point. But that is not the case. Despite his insistence that there are no new taxes in the Exchange, the truth is that new insurance taxes will be charged to consumers starting this October 1. The Exchange executive director has said at different times that operational costs would be met solely through a redirected existing insurance tax or through a combination of a new exchange tax and redirected tobacco settlement funds or no taxes whatsoever -- his current, not at all believable story.

Governor Beshear has much more work to do to make the case for the Kentucky Health Benefit Exchange. The legislature must hold him accountable, as must the courts and taxpayers. The Constitution already has.

Beshear contradicts Obama in clumsy court filing

Kentucky Governor Steve Beshear doubled-back on President Barack Obama's admission that ObamaCare is a tax today in a filing with Franklin Circuit Court asking for dismissal of the case against him for illegally implementing federal reforms in the state.

"Since the Executive Order at issue herein plainly does not impose a tax," Beshear claimed in his motion, the case must rest on a finding of unconstitutional "official acts" which he says citizens aren't allowed to question in court.

The Governor goes on to call the expenditure of state funds to run the Kentucky Health Benefit Exchange "speculative" although by agreeing to set up the exchange, Beshear has made a firm commitment to the federal government to make those expenditures.

There will be a hearing at the Franklin County Courthouse 669 Chamberlain Avenue Frankfort at 9 am ET on Monday May 13.

What it feels like to be lost at sea

If you haven't dealt directly with a health insurance company in recent years, you may soon be in for a rude awakening. Through repeated attempts the last few months to glean fairly straightforward information about health coverage from the five companies licensed to sell in Kentucky, I've found that they appear to be hiding  any employees capable of doing much more than writing your name down and saying "I don't know."

After another trip through the fabulous five just now, I found the ignorance has taken on a distinct arrogance as well. I've heard others suggest health insurers under complete government control would be like the DMV, but I've never been treated nearly as disdainfully in all my years chasing down answers to drivers license issues.

Gilligan was never so lost on the abandoned island as these people seem to be. And wrapped in the protective arms of federal and state government control, there is no reason to expect consumers to have any kind of weight to throw around with "health insurance companies" under ObamaCare.

Yesterday was the deadline for insurance companies to apply to state health benefit exchanges to sell insurance through them beginning January 1, 2014. Earlier today, I asked all five companies in Kentucky (Anthem, Humana, Assurant, Golden Rule and John Alden) if they even applied and couldn't even get a single answer to that. I asked the Kentucky Health Benefit Exchange which companies met the deadline and, of course, got no aswer from them either.

They can't keep it a secret for long. But that deer in the headlights look? Unfortunately, you may need to get used to that.

Kentucky "health" liberals offer you a free lunch

You know the old saying about a free lunch. Everyone knows it. The left-wing zealots at Kentucky Voices for Health hope enough of us are willing to blindly set aside the "there's no such thing as" part of this truism just one more time for the sake of ObamaCare.

If anyone you know has been holding back waiting for something to give a damn about in politics, now is their time.

Governor Steve Beshear says he will announce his decision to accept the optional Medicaid expansion part of ObamaCare and "Kentucky Voices for Health" is pushing for a yes with this online advertisement.

The idea that Gov. Beshear can provide health coverage for 400,000 Kentuckians "with a signature" should be so transparently absurd in a modern society as not to merit a response. Unfortunately, that's not the world we live in.

These people should be forced to identify 600,000 uninsured Kentuckians. Further, they should be forced to identify even 150,000 uninsured Kentuckians (probably more like it) who would benefit from being forced into an already overburdened, unaffordable and inefficient Medicaid system.

The truth is most of the new Medicaid recipients under ObamaCare will come from the ranks of the already privately insured.

And the costs will not be at all easy to ignore for anyone when they hit.

My greatest frustration is talking to people who don't believe a single word coming out of President Obama's mouth but have somehow swallowed whole the  outrageous lie that ObamaCare and all its provisions are inevitable and that we should just stop fighting because we can't win.

The truth is we can win and as Democratic Senators who championed ObamaCare four years ago drop like flies, we are winning. These "free lunch" politicians deserve to have their heads handed to them and we can do it in a big way if just a few of us stand up now.

Please call your State Representative and Senator and tell them you do not support Gov. Beshear in his desire to accept the ObamaCare Medicaid expansion "free lunch." Ask them to relay your sentiments to the Governor. Then please call the Governor himself at 502-564-2611 and tell him the same thing.

And then please directly ask ten friends to do the same. Thank you...

Emailing Frankfort's "health" bureaucrats

The Kentucky Health Benefit Exchange "ObamaCare" website helpfully solicits citizen comments and questions on their web site. They don't, however, appear to be too keen about answering them.

Take, for example, an email I sent to them on April 24 at 2:25 pm. My question was fairly simple: "How many navigators will Kentucky hire and at what cost?" One week later, no response.

So just now, I sent another asking "Exactly how will KHBE fund the Affordable Care Act Navigator program and how many navigators will there be in Kentucky? How much longer do you expect to be able to keep this quiet?"

I've also been copying certain members of the Kentucky media with my questions. The first mainstreamer who breaks this story out will have a good one.