Tuesday, February 25, 2014

Anti-Common Core Case On Appeal

Case: 2014-CA-000267 – an appeal of 13-CI-01316
Appellant: David Adams
Appellee: Commonwealth of Kentucky
We should be within a couple of weeks now. David Adams’ has promised an appeal of his anti-Common Core case, which was thoroughly pummeled by Franklin County Circuit Court Judge Phillip Shepherd. What brilliant strategy could Adams find at this late date which might persuade the Court of Appeals to take up his case? And if the Court accedes, how on Earth could Adams win?

The Court of Appeals is not a guaranteed avenue of redress in all situations. Every court has its own job to do. For example, the lower court must ask itself: If the facts alleged in the complaint can be proved, would the plaintiff be entitled to relief? Further, a court cannot decide speculative rights or duties, which may or may not arise in the future, but only rights and duties about which there is a present actual controversy presented by adversary parties, and in which a binding judgment concluding the controversy may be entered.” See: Veith v. City of Louisville, 355 S.W.2d 295, 297 (Ky. 1962).

I’m having trouble imagining how the court in this case might direct the, governor, or legislature, or any of their subordinate agencies to change what our duly elected representatives chose to do when deciding curriculum for the state’s schools. Even if they could, I don’t see how David Adams is harmed by Common Core, which is necessary for him to establish standing before the court. The almighty tax payer argument has proven to be insufficient. And worse for him, he provided no evidence in the lower court that might sustain him now.

Adams might not even be invited to appear. According to the Appellate Practice Handbook motion practice before the Court of Appeals is different from similar practice before the circuit court in that the parties do not appear at a set motion hour. It is therefore extremely important that the written motion and objections be carefully prepared to present the parties’ positions. Only in rare cases does the motion panel hear oral presentations on motions. See: CR 76.34(5).

In his Motion to Reconsider in the circuit court Adams struggled to come up with any new arguments. His motion was no more than a restatement of the arguments the court had already rejected, and the court rejected them again.  

Motions requesting any type of substantive relief are assigned to three-judge panels of the Court. In appropriate cases, a party can request an oral argument before the panel on a substantive motion, although such requests are rarely granted. Any document submitted to the Court of Appeals must be served on all other parties to the appeal – something Adams had trouble with in the circuit court. Courts have rules. Adams doesn’t seem to like rules.

In general, a lower court judgment is considered final and appealable only if that judgment disposes of all of the claims presented in a circuit court lawsuit. The circuit judge must also find that there is no just reason to delay enforcement of the judgment. Both findings are required to make the judgment final and the failure to adequately recite both findings will prevent the Court of Appeals from acquiring jurisdiction. Peters v. Hardin County Board of Education, 378 S.W.2d 638 (Ky. 1984).

Court records show that Adams’ notice of appeal was received along with his $175 fee on February 13th. His Facebook records show that he asked his supporters for $200, so I gets he gets to keep the extra 25 bucks.

A prehearing conference procedure was inserted into Kentucky’s appellate procedure to give the Court of Appeals an opportunity to bring the parties to a discussion in the hope of settling or simplifying some appeals. Since the procedure was begun, the conferences conducted by attorneys employed by the Court have resulted in the settlement of about 37 percent of the cases in which conferences were held. Evidence suggests that having an on-going case against Common Core is more important to Adams than actually winning the case. It’s hard to see how a prehearing conference will resolve anything here.

In the end, the Court of Appeals may dispose of a case by affirming or reversing the entirety of the judgment or it may affirm as to some issues and reverse as to others. The Court of Appeals may vacate the circuit court decision if the circuit court omitted some essential step in reaching its decision. The Court of Appeals may also remand the case to the circuit court for further proceedings if necessary.

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