FROM FRANKLIN CIRCUIT COURT HONORABLE THOMAS D. WINGATE,
JUDGE ACTION NO. 17-CI-00651
For Appellants: Candace L. Curtis Daniel J. Canon Louisville,
For Appellee Governor Matt Bevin: M. Stephen Pitt S. Chad
Meredith Matthew F. Kuhn Carmine G. Iaccarino Heather L.
Becker Frankfort, Kentucky
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. 
CLAYTON, CHIEF JUDGE.
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.
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.
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
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
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.
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
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