HAMILTON (FRANK D.) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: SEPTEMBER 24, 2010; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000949-MR
FRANK D. HAMILTON
v.
APPELLANT
APPEAL FROM KNOX CIRCUIT COURT
HONORABLE GREGORY A. LAY, JUDGE
ACTION NO. 08-CR-00141
COMMONWEALTH OF KENTUCKY
AND
APPELLEE
NO. 2009-CA-000950-MR
HEATHER R. COLE
APPELLANT
APPEAL FROM KNOX CIRCUIT COURT
HONORABLE GREGORY A. LAY, JUDGE
ACTION NO. 08-CR-00155
COMMONWEALTH OF KENTUCKY
OPINION
DISMISSING
** ** ** ** **
APPELLEE
BEFORE: CLAYTON AND COMBS, JUDGES; LAMBERT,1 SENIOR JUDGE.
COMBS, JUDGE: Frank Hamilton and Heather Cole appeal their convictions of
trafficking in buprenorphine in the Knox Circuit Court. After our review, we
dismiss the appeal.
Hamilton and Cole were both arrested for selling Suboxone, a
synthetic opiate that consists of buprenorphine and naloxone. They both offered
the same defense theory to the trial court: that Suboxone was improperly classified
as a Schedule III drug. Their cases were consolidated for the purpose of an
evidentiary hearing. Following the hearing, the trial court denied Hamilton and
Cole’s motion to dismiss the indictment. They then entered conditional guilty
pleas. This appeal follows.
The Appellants argue that the regulation classifying buprenorphine as
a Schedule III drug is invalid, thereby rendering their indictments invalid.
However, because they failed to name an indispensable party to this appeal, we are
unable to reach the merits and are compelled to dismiss.
Kentucky Revised Statute[s] (KRS) 218A.090 lists the drugs that are
included in Schedule III. Buprenorphine is not included. However, the statute
begins with the following words: “unless otherwise rescheduled by regulation of
the Cabinet for Health and Family Services (the Cabinet), the controlled substances
listed in this section are included in Schedule III.” (emphasis added). 902
Kentucky Administrative Regulation(s) (KAR) 902 55:025 Section 7 provides that
1
Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
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“a material, compound, mixture, or preparation which contains any quantity of
buprenorphine, or its salts” is designated as a Schedule III controlled substance.
The Appellants do not disagree that the Cabinet legitimately has the
authority to promulgate rules classifying controlled substances. See
Commonwealth v. Hollingsworth, 685 S.W.2d 546 (Ky. 1984). Rather, their
contention is that the Cabinet did not make sufficient findings before it did so.
KRS 218A.020 authorizes the Cabinet to add, delete, and reschedule
substances enumerated in the schedules by regulation. Subsections (1) and (2) list
factors for the Cabinet to consider in its determinations. Subsection (3) provides
that “[i]f any substance is designated, rescheduled, or deleted as a controlled
substance under federal law and notice thereof is given to [the Cabinet], [the
Cabinet] may similarly control the substance under this chapter by regulation.”
The Cabinet acted under the authority of this provision in 2002 when it reclassified
buprenorphine from a Schedule V substance to a Schedule III substance.
KRS 218A.020(3) also provides that “[the Cabinet] may similarly
control the substance under this chapter by regulation.” Appellants argue that the
Cabinet did not act under chapter 218A because it did not make the specific
findings mandated in KRS 218A.020(1) and (2) or KRS 218A.080.
The provision that the federal regulations may be adopted by regulation leads us to
KRS Chapter 13A. It sets forth the procedures that agencies must follow in order
to create or amend regulations. KRS 13A.090 directs that
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(1) The Commissioner’s authenticated file stamp upon
an administrative regulation or publication of an
administrative regulation in the Kentucky Administrative
Regulations Service or other publication shall raise a
rebuttable presumption that the contents of the
administrative regulation are correct.
(2) The courts shall take judicial notice of any
administrative regulation duly filed under the provisions
of this chapter after the administrative regulation has
been adopted.
902 KAR 55:025 Section 7 appeared with the Commissioner’s stamp in the
October 16, 2002, issue of the Kentucky Administrative Register. Therefore, it is
entitled to the rebuttable presumption of correctness created by KRS 13A.090.
If Appellants want to challenge this rebuttable presumption of
correctness, they must do so pursuant to KRS 13A.140, which sets forth the proper
procedure for such a challenge. Subsection one (1) instructs:
Administrative regulations are presumed to be valid until
declared otherwise by a court, but when an administrative
regulation is challenged in the courts it shall be the duty
of the promulgating administrative body to show and
bear the burden of proof to show:
(a) That the administrative body possessed the
authority to promulgate the administrative regulation;
(b) That the administrative regulation is consistent
with any statute authorizing or controlling its issuance;
(c) That the administrative regulation is not in
excess of statutory authority;
(d) That the administrative regulation is not
beyond the scope of legislative intent or statutory
authority;
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(e) That the administrative regulation is not
violative of any other applicable statute; and
(f) That the laws and administrative regulations
relating to promulgation of administrative regulations
were faithfully followed.
(Emphasis added).
In this case, the promulgating administrative body – the Cabinet – has
not had the opportunity to perform its statutory duty to defend the validity of the
challenged administrative regulation. The Appellants failed to designate the
Cabinet as a party to this appeal.
Appellants argue that 902 KAR 55:025 Section 7 is inconsistent with
the statutory authority authorized by KRS 218A.020. Therefore, as KRS
13A.140(b) mandates that the Cabinet bears the burden to defend the regulation, it
is an indispensable party. It is well established that failure to name an
indispensable party results in the dismissal of an appeal. Courier-Journal, Inc. v.
Lawson, 307 S.W.3d 617, 623 (Ky. 2010).
We also note the predecessor to our current Supreme Court has held
that “[o]nly the parties to an appeal are bound by the appellate court’s disposition
of the proceeding.” Levin v. Ferrer, 535 S.W.2d 79, 82 (Ky. 1975). In the case
before us, if 902 KAR 55:025 Section 7 were to be found inconsistent with
statutory law, the Cabinet would be responsible for amending the regulation.
Therefore, both logically and procedurally, it must be a party to the appeal.
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Accordingly, we dismiss this appeal for failure to name an
indispensable party.
LAMBERT, SENIOR JUDGE, CONCURS.
CLAYTON, JUDGE, DISSENTS AND FILES SEPARATE
OPINION.
CLAYTON, JUDGE, DISSENTING: Respectfully, I dissent. The
majority has dismissed the appeal for the failure of the Appellants to join the
Cabinet for Health and Family Services as an indispensable party. If the regulation
promulgated by the Cabinet was the subject of the action, I would concur with the
majority’s decision. However, I believe that it is the statutory requirements of
KRS 218A.020(3) and the resulting constitutional questions which are the actual
issues before this Court. Although the facial constitutionality of KRS 218.020(3)
is not challenged, the Appellants nevertheless raise constitutional questions. The
Appellants argue that the Cabinet has accepted the classification of
Suboxone/buprenorphine as a Schedule III controlled substance based upon the
federal Drug Enforcement Agency’s (DEA) regulation. The trial court determined
that it did not have subject matter jurisdiction to review the federal regulation. The
Appellants argue that the acceptance of the DEA’s classification is improper
without the Cabinet’s making findings as required in KRS 218A.080. Therefore,
they argue, if the trial court is correct and KRS 218A.020(3) does not require
findings, then the legislature has impermissibly delegated authority to a state
agency, the Executive Branch, without providing adequate standards as required by
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Section 28 of the Kentucky Constitution. According to the Appellants, the result
of the trial court’s decision is that judicial review is precluded. Since I believe that
this Court can address these constitutional questions, I would not dismiss the
appeal.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEE:
D. Randall Jewell
Barbourville, Kentucky
Jack Conway
Attorney General of Kentucky
James C. Shackelford
Assistant Attorney General
Frankfort, Kentucky
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