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Commonwealth v. Hamilton

Supreme Court of Kentucky

October 24, 2013

COMMONWEALTH of Kentucky, Appellant
Frank D. HAMILTON and Heather Cole, Appellees.

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Jack Conway, Attorney General of Kentucky, James Coleman Shackelford, Assistant Attorney General, for Appellant.

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Donn Randall Jewell, Travis Alan Rossman, for Appellees.


MINTON, Chief Justice.

Frank D. Hamilton and Heather Cole entered conditional guilty pleas to second-degree trafficking in a controlled substance, first offense. In particular, Hamilton and Cole were convicted for dealing in Suboxone, the trade name of a specific drug containing buprenorphine. Under Kentucky law, the Cabinet for Health and Family Services designated buprenorphine as a Schedule III controlled substance. The focus of this case is on Hamilton and Cole's efforts to challenge the Cabinet's reclassification of buprenorphine in 2002 from a Schedule V to Schedule III controlled substance, a change that came about as a result of a change in federal law.

Before the trial court, Hamilton and Cole made motions challenging the scientific evidence used in classifying buprenorphine as a Schedule III controlled substance and the findings purportedly required by the Cabinet before rescheduling buprenorphine. The trial court ruled that the General Assembly's delegation of legislative authority to the Cabinet, and in turn, the federal government, was proper; and, further, to the extent Hamilton and Cole wish to challenge the methods used by the federal Drug Enforcement Administration, the trial court found it lacked subject matter jurisdiction. Hamilton and Cole appealed the decision to the Court of Appeals, which found in their favor. In a terse opinion, the Court of Appeals remanded this case to the trial court with directions to name the Attorney General and the Cabinet as parties.

We granted discretionary review. We now reverse the opinion of the Court of Appeals. We hold that a trial court does have subject matter jurisdiction to rule on a challenge to the Cabinet's scheduling of a controlled substance following federal action. A trial court may take judicial notice of the federal regulation used by the Cabinet and make a determination whether the findings comport with the requirements of Kentucky law. And, contrary to the remand directive of the Court of Appeals, the Attorney General and the Cabinet are not necessary parties.


In 2008, a grand jury indicted Hamilton and Cole for trafficking in a synthetic opiate, Suboxone. Suboxone is the trade name for a drug containing two active ingredients, buprenorphine and naloxene. Under both Kentucky and federal law, buprenorphine is regulated as a Schedule III drug, having been changed by regulation from a Schedule V drug in 2002. Hamilton and Cole both mounted a defense centered on challenging the validity of Suboxone's Schedule III classification.[1]

Hamilton and Cole, as well as the Commonwealth, requested information from the Cabinet regarding Suboxone's rescheduling. But the Cabinet consistently responded that it possessed no records pertaining to the reclassification. Following various motions, including a motion to dismiss the indictment, the trial court ordered an evidentiary hearing to determine any issues with the Cabinet's classification of Suboxone. Before the hearing, Hamilton and Cole provided notice to the Attorney General of their intended challenge to Suboxone; but the Attorney General declined the invitation to participate in the

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proceedings. The record does not indicate any argument up to this point in the proceedings by Hamilton and Cole regarding the constitutionality of KRS 218.020(3).

At the evidentiary hearing, the parties stipulated that the Cabinet, in altering the classification of buprenorphine, relied upon the ability granted by the General Assembly to " similarly control" any substance that is " designated, rescheduled, or deleted as a controlled substance under federal law." [2] Hamilton and Cole briefly argued that the General Assembly's delegation of legislative authority to the Cabinet, as well as the federal government, was improper. But the thrust of their argument was that the Cabinet had not suitably followed any established adequate standards in promulgating the regulation reclassifying buprenorphine. Particularly, Hamilton and Cole strongly asserted that the Cabinet did not make the statutorily required findings pertaining to the effects of buprenorphine [3] and the reasoning for controlling it.[4]

Hamilton and Cole called two witnesses at the evidentiary hearing. Harry Plotnick, an Ohio-licensed attorney with a Ph.D. in toxicology, testified regarding the procedures employed by the DEA in designating buprenorphine a Schedule III drug. According to Plotnick, the DEA improperly characterized buprenorphine's potential for abuse, relied solely on European studies, and provided no tests involving Suboxone. At the time of the federal government regulation, Suboxone was not on the market in the United States. Additionally, Hamilton and Cole called Chris Johnson, a licensed pharmacist employed by the Cabinet. Hamilton and Cole repeatedly questioned Johnson about the Cabinet's findings relating to Suboxone. Although Johnson was knowledgeable about Suboxone, he was unable to shed any light on the findings made by the Cabinet or the procedure the Cabinet undertook when rescheduling buprenorphine.

The Commonwealth argued to the trial court that the gravamen of Hamilton and Cole's position was that KRS 218A.020(3) is unconstitutional. And the Commonwealth asserted that Hamilton and Cole were in the wrong forum to challenge the methodology used by the DEA to classify buprenorphine. By the Commonwealth's reasoning, Hamilton and Cole could not challenge the methodology used by the DEA in state court because only a federal court would have subject matter jurisdiction over the actions of a federal agency. But the Cabinet, according to the Commonwealth, acted wholly within its power in adopting the federal schedule of buprenorphine.

The trial court denied Hamilton and Cole's motion to dismiss the indictment. In denying the motion, the trial court ruled that the General Assembly's delegation of authority to the Cabinet was proper and constitutional. According to the trial court, KRS 218A.020(3) expressly allows the Cabinet to adopt the federal scheduling of a controlled substance. But the trial court did rule that it was without subject matter jurisdiction to the extent Hamilton and Cole sought to challenge the procedures used by the DEA. The trial court held that Hamilton and Cole, if they wished to challenge the DEA, must do so in federal court before proceeding in the criminal case. Following the trial court's ruling, Hamilton and Cole entered conditional

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guilty pleas and their sentences were probated.

The Court of Appeals reversed the trial court and remanded for a hearing on the constitutionality of KRS 218A.020(3). According to the Court of Appeals, the trial court's ruling called the constitutionality of KRS 218A.020(3) into question because it effectively allowed the Cabinet, based on federal law, to change Kentucky law, thereby preventing this state's judiciary from reviewing the regulation's validity. The Court of Appeals found the statute's constitutionality an issue despite not being argued at the trial court. Surprisingly, the Court of Appeals found that the Attorney General and the Cabinet must be added as necessary parties to the action on remand.

The Commonwealth appealed the decision of the Court of Appeals. And we granted discretionary review to clear up the confusion engendered by the General Assembly's delegation to the Cabinet. We now reverse the Court of Appeals and remand to the trial court.


On appeal, the Commonwealth challenges various aspects of the decision by the Court of Appeals. First, the Commonwealth claims the Court of Appeals correctly found Hamilton and Cole failed to notify the Attorney General of a constitutional challenge, as statutorily required, but erred in remanding the case rather than simply not reviewing the issue or exercising palpable error review. Second, the Commonwealth agrees with the Court of Appeals that the Cabinet should have been added as a party but argues the proper remedy was to dismiss the appeal rather than to remand the case. Finally, the Commonwealth argues KRS 218A.080 is constitutional; and the trial court correctly concluded it does not have the authority to strike down a federal regulation. Hamilton and Cole dispute each of these claims with the exception that the parties agree the Attorney General should not be added as a party to this action. We engage in de novo review of the issues presented.

We exercise discretion and decide not to review the issue of proper notification to the Attorney General for a constitutional challenge. In our view, the Court of Appeals erred in relying on this ground in its opinion, especially in light of its failure to cite any legal support for its holding. Hamilton and Cole, from the initiation of proceedings in this case, have sought to challenge the Cabinet's regulation and findings. The genesis of the issue of constitutionality in this litigation is unclear. It may have arisen in response to the Commonwealth's initial argument at the evidentiary hearing that the trial court does not have subject matter jurisdiction over the federal regulation in issue; and, as a result, Hamilton and Cole must go to federal court for the relief they seek. But the trial court also ruled on the constitutionality of KRS 218A.080(3). And Hamilton and Cole have mentioned it repeatedly.

Our decision today does not require us to decide the constitutionality of KRS 218A.080(3) because we find that the trial court had subject matter jurisdiction to rule on Hamilton and Cole's initial argument regarding the validity of the regulation. As a result, Hamilton and Cole may obtain relief in the trial court on the validity of buprenorphine's classification. Of course, if constitutionality is raised at the trial court, KRS 418.075— as well as CR 24.03, made applicable to criminal proceedings through RCr 13.04— mandates the Attorney General be notified. The record below indicates the Attorney General was not notified of any constitutional challenge before the trial court's judgment was entered.

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Normally, this Court refuses review when KRS 418.075 is not satisfied.[5] And if constitutionality arises on remand, the Attorney General is not a necessary party as the Court of Appeals erroneously determined. As we discuss below, notice to the Attorney ...

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