Monday, December 16, 2013

Don Quixote's Day in Court


This morning in Kentucky’s historic Franklin County Circuit Courtroom E, Judge Phillip Shepherd heard motions, including a couple from Adams v Commonwealth (13-CI-01316). 

Tea Party activist David Adams is suing the Commonwealth through a curious collection of defendants: 
  • Governor Steve Beshear, why not? 
  • The Senate President Robert Stivers, but not Speaker of the House Greg Stumbo?! Does Adams really expect the court to invade the Separation of Powers doctrine and order the General Assembly to do something when no one from the House is even before the court?  Moreover, Stivers has objected to being named, which is significant. In Rose, Bert Combs followed the federal model of suing Congress by suing the leadership of both houses. And in Rose, the legislative leaders went along with the plan. That's not happening here. In Rose, Chief Justice Robert Stephens was most concerned about the court's ability require anything of the General Assembly when only the Speaker of the House and the President Pro Tempore of the Senate were actually before the court. He advised Debra Dawahare after the case, that if he was the attorney, and even if it took a month, he’d serve every member of the legislature.
  • Roger Marcum and the State Board of Education, but not Commissioner Terry Holliday?!
  • Council on Postsecondary Education President Bob King.
  • Cassandra Webb and the Education Professional Standards Board.

Adams wants the Franklin County Circuit Court to tell the Kentucky legislature that it must stop implementation of Common Core State Standards because he doesn't like Common Core. He knows that the court won't do that. So his solution is to claim that the state system of schools is inefficient, and use the Rose case to stop implementation until such time as Kentucky has an efficient system of schools. Despite Rose being a school finance case, he makes no claims about the underfunding of the schools as a means of showing the systems inefficiency. Adequate funding is a specific constitutional requirement under Rose. Neither does he seem to examine the curriculum sections of the decision where the court discussed specific competencies required of the state curriculum.

As predicted, Plaintiff Adams was immediately challenged on his standing before the court through a Motion to Dismiss. Senate President Robert Stivers also apparently objected to the General Assembly being sued through his office alone, and asked to be removed as a defendant.

(I should note at the outset, that due to recent renovations to the courthouse, I was unable to obtain copies of the defendant’s responses to Adams’ suit in advance. And Adams apparently responded to those motions this morning. Due to my lack of official documentation, my reporting will be lacking in some detail – a situation I hope to correct in the near future.)

Representing the state this morning was Kentucky Department of Education Assistant General Counsel David Wickersham. In September, Senate President Robert Stivers hired former attorney to Governor Ernie Fletcher, David Fleenor, who appeared for Stivers.

On his Motion to Dismiss, Wickersham stated in court that the basis for the motion was “the absence of a real and justiciable controversy” and that the General Assembly and the Kentucky Department of Education acted within their legal capacities to implement curriculum standards. What Adams was really doing was “asking the court to adjudicate a political question,” Wickersham said.

In response, Adams stated that “following the constitution is not a political question” and he went on to proclaim Kentucky’s history of allowing taxpayer standing.

“Section 183 is very clear that the General Assembly shall provide for an efficient system of common schools by appropriate legislation...and leaves it to the general assembly to do whatever it wants to at that point,” Adams said.

Is your objection to the adoption of the administrative regulation establishing the core curriculum? Judge Shepherd asked.

“Which does not include Senate Bill 1,” Adams affirmatively said, “and that is a distortion of a fact in this case, that Senate Bill 1 mandated the acceptance of Common Core. I’m dying for them to prove that.”

Shepherd questioned Adams’ claim of standing based on his being a citizen, taxpayer, former student, and the parent of current public school students.

Adams: “I can’t imagine being anymore [attached to] rights and a desire to see our schools operated efficiently. It’s a tremendous part of our budget. It’s a tremendous part of all of our public discourse.”

Shepherd: “Is your complaint directed more at the substance of the Core Curriculum, or the process by which it was adopted?”

Adams: [long pause] “…It’s both. It’s absolutely both...”

Shepherd:  “So, your argument is that the adoption of the Core Curriculum is inconsistent with the constitutional obligations of the state?”

Adams: “Sure. When you go into the substance of the Common Core standards, we are in every sense of the word, giving up our sovereignty as local-controlled schools, when you look at those; that process…the defendants claim that Senate Bill 1 mandates Kentucky’s Common Core standards. That’s just absolutely false.” 

Shepherd: “What’s the nature of your constitutional argument?”

Adams: “That Section 183 requires that the General Assembly provide an efficient system of common schools, and that that has not happened, and is not happening, and the acceptance of Common Core only makes it worse.”

Shepherd: “In what sense does the adoption of the common core curriculum, specifically, infringe on that right?”

Adams:  “It gives away local control. It signs over our rights to control and manage our school system to an interesting collection of characters that are tangential to the federal government. It’s really a mess. And this is a discussion for the meat of this case. I think it will be very, very interesting to get out into the open.”

Shepherd: “Are you arguing that the state Board of Education does not have the power to adopt the Core Curriculum?

Adams: “They have the power to manage the school system, under the auspices of the General Assembly, and the General Assembly has a requirement to make sure that the schools are operated without waste, mismanagement, and political influence, and in this they have failed.”

Shepherd: “I guess I’m just trying to…I’m struggling to…If the legislature has given the state school board the authority to adopt curriculum – their choice of common core curriculum is really secondary -  they have the power to adopt a curriculum. Then does everybody who doesn’t like that curriculum have the right to come in and sue over it? The curriculum you like…might offend a lot of other people…I guess somebody has to be able to make the decision and I’m struggling a little bit with what the role of the court ought to be in refereeing that sort of a situation.”

Adams: “Sure. That is the $64,000 question.” Then Adams referred to a piece of Justice Liebson’s dissent in the Rose case where the judge expressed a concern that suing the state might become a new cottage industry – something that did not come to pass. “That was in 1989. It hasn’t materialized yet. I had a tough time parking this morning, but I did not have a long line to get in here.”

Judge Shepherd then took up Senate President Stivers’ motion to be dismissed from the case…and a question about the means Adams chose for suing the state.

Shepherd: “The court is confronted with this issue of whether it was appropriate to name legislative leaders in a lawsuit challenging…legislation…I may be right or wrong on that, but whoever loses will have a chance to appeal…And I see where you named Senator Stivers, but I do not see the Speaker of the House.”

Adams: “That’s right. That’s um [pause] strategy.” Specifically, and very importantly, Section 183 puts the onus on the General Assembly to act. If you go back to the Rose case, the Governor didn’t even appeal saying, ‘This isn’t really even about me, it’s about the legislature.’ There was a question about whether they should call in all of the legislature – to serve notice to 138 people. The Supreme Court decision said it doesn’t matter how you got them here, we got them here, and they were able to, by that means.

Shepherd: “Of course, I think in the Rose case the leaders of the legislature consented. They didn’t object. Senator Stivers is objecting, so I’ll probably have to rule on the appropriateness of naming him as a defendant. But you’re asking for specific relief against the legislature, and you want me to order the legislature to override this decision, or take some action with regard to curriculum.” 

Adams: “I want the legislature to follow the constitution. If we look at the body politic as a four legged stool – with the three branches of government and individuals, the unwashed masses, the legislature and the executive branch are already out of the equation in terms of repairing this issue. They are in collusion to put us in this common core mess…” 

Earlier, David Adams posted this on his Facebook page: “Defendant Stivers argues at length that Plaintiff cannot force any legislator to take a specific legislative action, force the judiciary to micromanage operations of the legislature or question the Senate President without making a claim of bad faith. But Defendant errs with each of these claims in an attempt to persuade the Court to ignore the unconstitutionality of his actions, which is central to this case. Section 183 of the Kentucky Constitution requires the General Assembly to provide for an efficient system of common schools by appropriate legislation. The executive and legislative branches have colluded with other Defendants to force Kentucky school systems into the Common Core State Standards scheme and it is the function of the Court to apply the standards of efficiency to their actions and constrain them when they fail. As in Rose, the Court might discuss how best to hold legislators or the legislature accountable for violating such a clear constitutional mandate, but possesses no discretion to ignore the Constitution. As such, Plaintiff requests the Court reject Defendant Stivers’ motion.

All in all, Adams' presentation today can be seen as a set of assertions that did little to help the judge define how the constitution has been violated, how Adams has been damaged by Common Core State Standards, or to state a single example of what's wrong with the standards themselves. He wants to declare, without evidence, that shady dealings are going on that threatens state sovereignty without making any tenth amendments claims. 

In my humble opinion, this case is rubbish and should be dismissed for its blatant attempt to involve the court in a political effort, for the plaintiff's lack of standing, and for its failure to state a justicible claim.

1 comment:

Anonymous said...

The guy is wasting our time and money. I suspect that even those who may hold reservations about common core, implementation of SB1 or KDE recent initiatives, find Mr. Adam's judicial show a detractor from their own points which might have some merit.