As sometimes happens, the dead can twitch. Still dead, some random electric impulse causes the body to flinch. Such is the case with Adams v Commonwealth where Don Quixote de Nicholasville (David Adams) did the only thing he could do to prolong his ill-fated case. He asked the judge to reconsider his decision.
On January 14th, in Kentucky's Franklin County Circuit Court, Judge Phillip
Shepherd struck down TEA Party activist David Adams' suit challenging
Kentucky's adoption of Common Core State Standards. The case was
dismissed with prejudice. The only option left Adams was a motion to reconsider, which almost never works.
Replies from the Defendants are due today, and I suspect the judge will deny Adams' motion soon after.
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
