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Seum v. Bevin

Court of Appeals of Kentucky

March 8, 2019

DAN SEUM, AMY STALKER, AND DANNY BELCHER APPELLANTS
v.
GOVERNOR MATT BEVIN AND ATTORNEY GENERAL ANDY BESHEAR APPELLEES

          APPEAL FROM FRANKLIN CIRCUIT COURT HONORABLE THOMAS D. WINGATE, JUDGE ACTION NO. 17-CI-00651

          Brief For Appellants: Candace L. Curtis Daniel J. Canon Louisville, Kentucky

          Brief For Appellee Governor Matt Bevin: M. Stephen Pitt S. Chad Meredith Matthew F. Kuhn Carmine G. Iaccarino Heather L. Becker Frankfort, Kentucky

          Brief For Appellee Attorney General Andy Beshear: Andy Beshear Attorney General of Kentucky Taylor Payne Assistant Attorney General Lexington, Kentucky

          BEFORE: CLAYTON, CHIEF JUDGE; KRAMER, JUDGE; AND HENRY, SPECIAL JUDGE. [1]

          OPINION

          CLAYTON, CHIEF JUDGE.

         Dan Seum, Amy Stalker and Danny Belcher appeal from a Franklin Circuit Court order dismissing their petition for declaratory and injunctive relief against the Governor of Kentucky, Matt Bevin, and the Attorney General, Andy Beshear. The appellants argue that Kentucky Revised Statutes (KRS) 218A.1421 and KRS 218A.1422 are unconstitutional insofar as they criminalize the possession and sale of marijuana for medical purposes.

         The three appellants in this case use marijuana to treat various physiological and psychological conditions. Seum uses the drug for the treatment of a pharmaceutical opioid addiction and chronic back pain; Stalker uses the drug to treat pharmaceutical benzodiazepine addiction, bipolar disorder and irritable bowel syndrome; and Belcher uses the drug to treat war injuries, posttraumatic stress disorder and alcoholism.

         The appellants filed a petition for declaratory and injunctive relief against the Governor and the Attorney General in their official capacities challenging the constitutionality of KRS 218A.1421 and KRS 218A.1422. These statutes provide that a person "is guilty of trafficking in marijuana when he knowingly and unlawfully traffics in marijuana[, ]" KRS 218A.1421, and "is guilty of possession of marijuana when he or she knowingly and unlawfully possesses marijuana." KRS 218A.1422. The appellants argued that by failing to exempt marijuana for medical use, the statutes are unconstitutionally arbitrary and violate their right to privacy.

         The appellees filed individual motions to dismiss the petition. The appellants filed responses and the appellees filed replies. Following a hearing, the circuit court entered an order dismissing the petition on the grounds the appellants' claims were nonjusticiable political questions and the constitutionality of Kentucky's marijuana laws was settled in Commonwealth v. Harrelson, 14 S.W.3d 541 (Ky. 2000). This appeal followed.

         The appellants argue they have raised a justiciable claim that Kentucky's statutes criminalizing the trafficking and possession of marijuana are an arbitrary exercise of legislative power over their lives and thereby violate Section 2 of the Kentucky Constitution and the privacy protections of Sections 1 and 2 of the Kentucky Constitution.

         Our standard of review is as follows:

A motion to dismiss for failure to state a claim upon which relief may be granted admits as true the material facts of the complaint. So a court should not grant such a motion unless it appears the pleading party would not be entitled to relief under any set of facts which could be proved . . . . Stated another way, the court must ask if the facts alleged in the complaint can be proved, would the plaintiff be entitled to relief? Since a motion to dismiss for failure to state a claim upon which relief may be granted is a pure question of law, a reviewing court owes no deference to a trial court's determination; instead, an appellate court reviews the issue de novo.

Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010), reh'g denied (Aug. 26, 2010) (internal quotation marks and ...


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