COMMONWEALTH OF KENTUCKY V. WOODY HARRELSON
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1998-SC-1
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ON REVIEW FROM COURT OF APPEALS
97-CA-1887
LEE CIRCUIT COURT NO. 97-Xx-01
LEE DISTRICT COURT NO. 96-M-161
WOODY HARRELSON
APPELLEE
OPINION OF THE COURT BY JUSTICE WINTERSHEIMER
REVERSING
This appeal is from a decision of the Court of Appeals vacating the judgment of
the Lee Circuit Court which affirmed a ruling by the Lee District Court finding that the
definition of marijuana in KRS 218A.010( 12) is unconstitutionally overbroad. The Court
of Appeals remanded the case to the circuit court with directions to dismiss the appeal
on the ground that it was taken from a nonfinal order.
The major issue is whether the decision of the Lee District Court which held that
KRS 218A.010( 12) was unconstitutional is correct. Other questions presented are
whether the circuit court erred in affirming the judgment of the Lee District Court;
whether the circuit court erred in affirming a finding that a viable economic benefit could
be derived from the nonhallucinogenic parts of the marijuana; whether the entire matter
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should be dismissed for territorial procedural defects and whether the appeal was taken
from a nonfinal order of the district court.
The facts of this matter are not in dispute. On June 1, 1996, Woodrow Harrelson
planted four hemp seeds on a tract of land in rural Lee County. He was cited and
arrested for a violation of KRS 218A.1423(3), cultivation of marijuana, five or fewer
plants, a Class A misdemeanor. The charge was later amended to possession of
marijuana, KRS 218A.1422, also a Class A misdemeanor. He pled not guilty and
moved to dismiss the charge contending that the hemp seeds did not come within a
proper statutory definition of marijuana, or, if they did, that the statute was
unconstitutionally overbroad and vague.
Harrelson specifically challenged the constitutionality of the 1992 amendment to
KRS 218A.010(12), now subsection (14).
After a hearing on the question of
constitutionality, the district judge rejected the argument by Harrelson that the statute
was void for vagueness but agreed that the statute is unconstitutionally overbroad by
including the nonhallucinogenic parts of marijuana. The district court concluded that the
statute violated Section Two of the Kentucky Constitution as an arbitrary exercise of
state authority. He also found that an issue of fact remained concerning whether the
seeds planted by Harrelson were capable of germination or producing plants that
contain the hallucinogenic properties of marijuana. The matter was set for trial on that
question. The Commonwealth filed an interlocutory appeal from the ruling of the district
judge; the circuit court affirmed, and the Court of Appeals dismissed the appeal
reasoning that it was taken from a nonfinal order. This Court granted discretionary
review.
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I
By agreement of the parties, a hearing on the motion to dismiss was held in
Owsley County where both the Commonwealth and the defendant presented three
witnesses each. The first witness for the Commonwealth was Sgt. James Tipton, a 24
year member of the Kentucky State Police who currently works for Special Operations
as a Special Project Coordinator and member of the Governor’s Marijuana Strike Force.
It was not challenged that Sgt. Tipton had been involved in approximately one thousand
drug investigations and that he had investigated all types of drug crimes, including
marijuana. The witness held an undergraduate degree in police administration and was
a graduate of the F.B.I. National Academy and the Southern Police Institute. He taught
at the National Interagency Drug Institute in California as well as classes on drugs and
crime at Eastern Kentucky University. He testified in hundreds of cases and had been
permitted to give an expert opinion in both federal and state courts on marijuana and
cocaine. He testified that his experience with countries in which hemp was legalized
indicated that they were already having difficulties in the prosecution of marijuana cases
because violators use hemp as a defense arguing that they thought they were growing
lower-grade marijuana. He concluded that decriminalization of hemp would make it
easy for the violators and difficult for law enforcement.
Next, the Commonwealth called an extension professor for the University of
Kentucky who had been employed for 25 years, who had a B.S., M.S. and Ph.D. from
Perdue University in plant breeding and genetics. He testified about a plant called
kenaf, which is free of THC and which can be used for anything that wood is used for,
including making paper. The witness testified that kenaf produced higher quality
products than hemp because of its shorter fiber.
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Finally, the prosecution called a professor and chairman of the Department of
Agronomy at the University of Kentucky. This witness had received a bachelor and
masters degree in biology and soil science from Cornell University and a Ph.D. in soil
microbiology from Michigan State University. He had also authored a large portion of
the report of the Governor’s Task Force on Hemp and Alternative Fiber Products. His
testimony indicated that the opportunities for hemp as a crop in Kentucky were limited.
He stated that at one time hemp was a major cash crop in central Kentucky but that its
uses went by the wayside so it failed economically for market reasons.
The defendant, a television and motion picture actor, testified that he owned a
company in California that produced textile products in clothing derived from hemp. He
testified that the seeds planted were “French seeds” and that these were less than one
percent THC. He stated that his company had sales of $1.5 million in the United States
but that the hemp for their products had to be imported from Hungary and China and
that the price of hemp would be lower if it could be grown domestically.
On cross-examination, Harrelson admitted that he knew he was breaking the law
when he planted the seeds but that he was concerned about the cutting and
replacement of trees as well as the sale of hemp. Harrelson, who presented no
academic credentials, acknowledged that he had no experience in law enforcement and
that the police sergeant would be better qualified to determine if law enforcement would
be impeded from enforcing marijuana laws if hemp were legalized.
Another defense witness was a professor of biology who testified about the
economic uses of hemp at the present time
and the differences in appearance of hemp
and marijuana to the naked eye. He stated that if legalized, it would greatly reduce the
cutting of trees and be a tremendous asset to the agricultural base of Kentucky. He
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admitted on cross-examination that he did not have any training in agricultural
economics. The defense also presented a professor of pharmacology and toxicology at
the University of Louisville who testified that hemp was less potent than marijuana in its
THC level.
Upon the conclusion of the hearing and the filing of briefs by both parties-the trial
judge determined that the statute was constitutionally defective because of its
overbroad application by including nonhallucinogenic plant parts. The trial judge further
determined that the amendment to KRS 218A.O10(9)
had no rational basis for including
the nonhallucinogenic parts of the marijuana plants in the definition. The trial judge
determined that the statute violated Section Two of the Kentucky Constitution and that
the defendant had established a viable economic benefit of nonhallucinogenic parts of
marijuana. He further held that the statute was an intrusion into the economic benefit of
the product without a rational basis by the government. The Court severed the statute
in question as it related to the issue of including nonhallucinogenic plant parts of
marijuana as a controlled substance.
I. Appealable Order
The Court of Appeals erred in determining that the appeal to the circuit court was
taken from a nonfinal order. CR 54.01 states in part that a “final or appealable judgment
is a final order adjudicating all the rights of all the parties in an action or proceeding . ..I’
As noted in Commonwealth v. Taylor, Ky., 945 S.W.Zd 420 (1997): “The fundamental
rule is that for an order to be final and appealable, it must adjudicate all claims of the
parties at the time the order was entered.” Here, the principal question is a challenge to
the constitutionality of the statute. The issue was fully adjudicated and subject to
appeal.
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The factual issue which the district court reserved on was spurious. The district
court had no authority to add words to the statute and thereby create a question of fact
as to whether the marijuana possessed “was capable of germination or producing plants
which contained hallucinogenic properties of marijuana.”
In this case, the district court impermissibly added new wording to the offense of
the possession of marijuana because it indicated that it must now be proven that not
only did the defendant possess marijuana but that he possessed marijuana which was
capable of germination or producing plants which contained hallucinogenic properties of
marijuana. Existing Kentucky law does not require that a sample of marijuana be
produced at trial. Howard v. Commonwealth, Ky.App., 787 S.W.2d 264 (1990).
Consequently, by remanding this question for trial, the defendant would be required to
be tried under a statute which had been declared unconstitutional in part and to be tried
under a statute with additional language supplied by the district court and not by the
General Assembly. The judiciary lacks the authority to add new phrases to a statute to
provide a new meaning necessary to render the statute constitutional. Musselman v.
Commonwealth, Ky., 705 S.W.2d
476 (1986). The same is true when the judiciary
attempts to declare a statute unconstitutional. Where a statute is intelligible on its face,
the courts are not at liberty to supply words or insert something or make additions which
amount, as sometimes stated, to providing for a
casus omissus, or cure an omission.
Cf. Taylor at 423.
In cases involving
statutory interpretations, the duty of the court is to ascertain
and give effect to the intent of the General Assembly. We are not at liberty to add or
subtract from the legislative enactment or discover meanings not reasonably
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ascertainable from the language used. Cf. Commonwealth v. Frodae, Ky., 962 S.W.2d
864 (1998).
The fact that the district court reserved certain questions of law as to whether any
part of the seeds planted by Harrelson contained THC was never raised by the parties
and the action by the district court of severing the statute in this manner was beyond its
authority. Estes v. Commonwealth, Ky., 952 S.W.2d 701 (1997) held that the statute
must be tested “on the basis of what is said rather than what might have been said.”
Therefore the district court improperly added language to a statute which it found
unconstitutional. The district court did not have such authority and its order in this
regard was subject to appeal. The question here is a challenge to the constitutionality
of the statute. The rights of the parties were fully adjudicated and thus subject to
appeal.
II. Circuit Court Error
The circuit court erred in affirming the decision of the district court which held that
KRS 218A.010(12) was unconstitutional in part because the presumption of
constitutionality which applies to every statute was ignored by the trial court and the
circuit court. Harrelson did not overcome this presumption.
Originally, Harrelson challenged the constitutionality of the statute for vagueness
and overbreadth. At the Court of Appeals, based on the facts developed in this case,
Harrelson conceded that the statute is not vague as applied to him. He continues to
argue that the statute is too broad and that it is so arbitrary as to be unconstitutional in
violation of Section Two of the Kentucky Constitution.
In 1992, the General Assembly amended KRS 218A.010( 12) so as to eliminate
the following language from the definition of marijuana:
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It does not include mature stalks of the plant, fiber produced from the
stalks, oil or cake made from the seeds of the plant, any other compound,
manufacture, salt, derivative, mixture or preparation of the mature stalks
(except the resin extracted therefrom), fiber, oil or cake, or the sterilized
seed of the plant which is incapable of germination.
The remaining language of the statute provides a definition of marijuana in what
is now §14, as follows:
“Marijuana” means all parts of the plant cannabis sp., whether growing or
not; the seeds thereof; the resin extracted from any part of the plant; and
every compound, manufacture, salt, derivative, mixture, or preparation of
the plant, its seeds or resin or any compound, mixture, or preparation
which contains any quantity of these substances.
The legislature was well within its authority to designate and define all parts of the plant
cannabis sp. as a controlled substance.
It is obvious that the legislative intent was to eliminate the previous exemptions.
The literal language of the statute is both plain and unambiguous and must be given
effect as written. The words used in the statute are to be given their ordinary meaning.
Cf. Lvnch v. Commonwealth, Ky., 902 S.W.2d 813 (1995), which cited Griffin v. City of
Bowlina Green, Ky., 458 S.W.2d 456 (1970).
The 1992 amendment is a specific response to a serious and growing concern of
the public and the legislature regarding illegal drug activities in Kentucky. The section
was amended to assist law enforcement authorities in the investigation and prosecution
of illegal drugs at all levels. It cannot be seriously contended that the elimination of
illegal drug trade is not a beneficial or worthwhile goal of the law.
Harrelson complains that the action of the General Assembly in amending the
statute does not have a reasonable basis.
It is uncontroverted that a statute is presumed to be constitutional unless it
clearly offends the limitations and prohibitions of the Constitution. “The one who
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questions the validity of an act bears the burden to sustain such a contention.”
Stephens v. State Farm Mutual Auto Ins. Co., Ky., 894 S.W.2d 624 (1995).
The valid public interest in controlling marijuana is a public issue involving health,
safety and criminal activity. Kentuckv Milk Marketina & Anti-monoDolv Comn. v. Kroaer
Co., Ky., 691 S.W.2d 893 (1985) and Commonwealth v. Foley, Ky., 798 S.W.2d 947
(1990) state as follows:
Whatever is contrary to democratic ideals, customs, and maxims is
arbitrary. Likewise, whatever is essentially unjust and unequal or exceeds
the reasonable and legitimate interests of the people is arbitrary. No
board or officer vested with governmental authority may exercise it
arbitrarily. If the action taken rests upon reasons so unsubstantial, or the
consequences are so unjust as to work a hardship, judicial power may be
interposed to protect the rights of persons adversely affected.
It cannot reasonably be argued that the inclusion of nonhallucinogenic plant parts
in the definition of marijuana is in any way “essentially unjust and unequal,” nor does it
“exceed the reasonable and legitimate interests of the people.”
Here, there is sufficient testimony from law enforcement that there would be
serious difficulties for law enforcement in controlling marijuana trafficking if hemp were
legalized. There is no evidence of any kind in the record that the commercial business
interest of Harrelson has been compromised simply by the necessity of having to import
hemp from other countries. Harrelson admitted under oath that he was not qualified to
contradict the testimony of the police expert. This statute does not “clearly offend” the
limitations and prohibitions of the Constitution as outlined in Steohens, supra.
Reliance by Harrelson on his reference to great moral issues of the current times
is unpersuasive. The alleged moral concerns expressed in Commonwealth v. Wasson,
Ky., 842 S.W.2d 487 (1992) and Commonwealth v. Campbell, 133 Ky. 50, 117 SW.
383 (1909) are not evident here in view of the fact that the statute applies to the health,
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safety and well-being of the citizens of Kentucky without reference to so-called “moral”
issues.
We note with interest that the United States Court of Appeals for the First Circuit
in New Hampshire HemD Council. Inc. v. Marshall, 2000 W.L. 60420(1st Cir.N.H.),
decided on January 28, 2000, that industrial hemp plants were marijuana as defined by
the federal drug statute. The principal argument in that case was that the plants
produced for industrial products contain very little THC. The federal appeals court
concluded that the literal language of the federal law and enforcement concerns
supported the application of the federal statute.
III. Clearly Erroneous
The circuit court erred in affirming the judgment of the district court because the
district court made a clearly erroneous finding that the Commonwealth had failed to
show a rational basis by the government for including hemp in the definition of
marijuana.
Initially, we must observe that the ruling here was in connection with a motion to
dismiss and not a bench or jury trial. The defense called no witnesses who could be
considered to be law enforcement officials. The prosecution’s police witness testified
about the problems that hemp would create for law enforcement. Defense witnesses
Harrelson and Dr. Pierce both admitted that the police officer would be better qualified
to determine if law enforcement would be impeded in enforcing marijuana laws if hemp
were legalized. The other defense witness never answered as to who would be better
qualified but did admit that he was involved in only a couple of criminal investigations.
Notwithstanding the testimony of the police official, the district court found and the
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circuit court affirmed that no rational basis had been shown for the legislature to include
hemp in the definition of marijuana. We disagree.
The test of the constitutionality of any statute is whether it is unreasonable or
arbitrary. Moore v. Ward, Ky., 377 S.W.2d
881 (1964). A statute is constitutional if a
reasonable and legitimate public purpose for it exists. The rational basis argument can
be paraphrased as “Is there a good reason to adopt a law?” The answer is a stunningly
simple “Yes.” The legislature has broad discretion to determine what is harmful to the
public health and welfare. See Walters v. Bindner, Ky., 435 S.W.2d
464 (1968). As
noted in Buford, supra, a succinct analysis of the problems with the illegal drug culture
can be found in Peoole v. Shephard, 169 Cal.App.2d 283, 337 P.2d 214 (1959), which
stated:
Anything which gives sustenance, solace, comfort or encouragement in
the selling of narcotics or in the agreeing to sell narcotics, can be
condemned and properly so, by the legislature. It is clear that the statute
in question was aimed at discouraging any traffic in narcotics and is
therefore within the police power of the state.
One of the major reasons for CR 52.01 is to have the record show the basis of
the decision of the trial court so that on appellate review, the appellate court may
understand more completely the entire controversy. Reichle v. Reichle, Ky., 719
S.W.2d 442 (1986). The reviewing court may test the accuracy of the findings and
conclusions and determine whether they are sufficiently comprehensive and pertinent to
the issues so as to provide a basis for a decision. The clearly erroneous standard is
sufficiently broad to permit a reviewing court to adopt a method of review which best fits
the questions involved and the particular facts in a specific case. The appellate court
should review each case according to what is most appropriate under the specific
circumstances.
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Although due deference is given to the findings of the trial court, the evidence
may be examined and the judgment may be reversed when the reviewing court is
convinced that the trial judge has committed error. Ken-Tex ExDloration Co. v. Conner,
Ky., 251 S.W.2d 280 (1952). Mere doubt as to the correctness of a finding would not
justify reversal, and the appellate court does not consider and weigh evidence de novo.
However, if a finding is without adequate evidentiary support or occasioned by an
erroneous application of the law, the reviewing court may regard it as clearly erroneous.
Cf. Bverly Motors. Inc. v. PhilliDs Petroleum, Ky., 346 S.W.2d 762, 765 (1961).
A reviewing court is always reluctant to disturb the findings of a trial court. See
Allen v. Arnett, Ky., 525 S.W.2d 748 (1975). When the trial court makes findings of fact,
a reviewing court will not disturb such findings unless clearly erroneous. However, if the
trial court predicates its findings on erroneous construction and application of statutes,
the clearly erroneous standard does not apply. Commonwealth v. Kentucky Products,
Inc., Ky., 616 S.W.2d 496 (1981).
Consequently, upon our review of the testimonial evidence presented in this
case, we must conclude that the district court was clearly erroneous when it determined
that there was no rational basis for the action of the General Assembly in including
hemp in the definition of marijuana.
An examination of the testimony of the police officer and the defense witnesses
does not amount to the resolution of a conflict. This is not a case where there was
sufficiently credible evidence on both sides of the issue. The findings of the district
court were not supported by substantial evidence.
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IV. Economic Benefit
The circuit court erred in affirming the clearly erroneous finding of the district
court that a viable economic benefit could be derived from the nonhallucinogenic plant
parts of marijuana, otherwise known as hemp. A careful examination of the record
indicates that there was sufficient evidence that all hemp has some THC in it. The
district court ruled that Harrelson had established a viable economic benefit from the
nonhallucinogenic plant parts of hemp and yet the ruling does not allow the planting of
hemp because the testimony of Harrelson’s witnesses stated that all hemp has some
form of THC. We must conclude that the decision by the district court that Harrelson
has shown that a viable economic benefit exists with hemp was clearly erroneous
because there was no evidence that hemp would ever be a successful domestic crop.
In any event the economic benefits to be realized from hemp are not relevant to the
constitutionality of the statute in question as admitted by Harrelson in his brief.
V. Jurisdiction
The territorial jurisdictional argument raised is without merit. This case can be
factually distinguished from Wolfenbarger v. Commonwealth, Ky.App., 936 S.W.2d 770
(1997). Here, the Lee District Judge who presided over the motion was, unlike the
judge in Wolfenbaraer, supra, within his own district because he presides over Lee,
Owsley and Estill Counties. The same situation applies to the oral argument heard in
Estill County by the circuit judge because he is circuit judge for Estill County as well as
for Lee and Owsley. Thus, the district judge conducted the agreed upon proceedings
on the motion within his own district and the circuit judge presided over the case in his
own circuit.
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The General Assembly has criminalized the possession of marijuana because it
contains THC. Both marijuana and hemp are members of the cannabis sp. of plants
and hemp also contains THC, although arguably substantially lesser amounts than
marijuana. The legislature has properly classified THC as a Schedule I controlled
substance, KRS 218A.050(3), and has defined marijuana broadly enough to include
hemp within that definition. KRS 218A.010(14). The mere fact that hemp may contain
less THC than marijuana is of no consequence. Commonwealth v. Shivley, Ky., 814
S.W.2d 572 (1991) holds that the quantity of the controlled substance possessed is
immaterial to the criminality of the act and that “any amount” suffices. The statutory
system which criminalizes the possession of marijuana and includes hemp does not
violate Section 2 of the Kentucky Constitution.
In this matter a review of the testimonial evidence presented by both sides
convinces this Court that the decision of the district court was clearly erroneous and that
there was no substantial evidence to support that ruling. The Commonwealth was able
to demonstrate a rational basis for the inclusion of hemp with marijuana as a prohibited
substance under the statute.
The arguments of the defendant regarding the legalization of hemp are matters
more properly for the General Assembly and not the judicial branch of government.
The decisions of the Court of Appeals, the circuit court and the district court are
reversed and this matter is remanded to the district court for trial or other appropriate
action.
Lambert, C.J., Graves, Johnstone and Wintersheimer, JJ., concur. Cooper, J.,
concurs by separate opinion in which Stumbo, J., joins. Keller, J., concurs by separate
opinion.
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COUNSEL FOR APPELLANT:
A.B. Chandler III
Attorney General of Kentucky
P.O. Box 2000
Frankfort, KY 40601
Thomas P. Jones
Special Assistant Attorney General
PO Drawer 0
Beattyville, KY 41311
COUNSEL FOR APPELLEE:
R. Burl McCoy
Charles E. Beal II
Tonya S. Conner
McCoy & West
309 North Broadway
P.O. Box 1660
Lexington, KY 40592-I 660
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RENDERED: MARCH 23,200O
TO BE PUBLISHED
1998-SC-1048-DG
COMMONWEALTH OF KENTUCKY
APPELLANT
ON REVIEW FROM COURT OF APPEALS
97-CA-1887
LEE CIRCUIT COURT NO. 97-Xx-01
LEE DISTRICT COURT NO. 96-M-161
V.
WOODY HARRELSON
APPELLEE
CONCURRING OPINION BY JUSTICE COOPER
I disagree with the proposition that the mere fact that hemp resembles marijuana
provides a rational basis for criminalizing the possession of hemp. If that were true, the
legislature could criminalize the possession of sugar because it resembles powder
cocaine.
Nevertheless, the reason the General Assembly has criminalized the possession
of marijuana is that it contains hallucinogenic substances known as
Tetrahydrocannabinols (THC). Both marijuana and hemp are members of the
Cannabis species of plants and hemp also contains THC, though admittedly to a
substantially lesser extent than does marijuana. The legislature has classified THC as
a schedule I controlled substance, KRS 218A.050(3), and has defined “marijuana”
broadly enough to include hemp within that definition. KRS 218A.010(14). But even if
hemp were not included within the definition of marijuana, possession of any substance
containing THC would constitute possession of a controlled substance in the second
degree, which carries a potentially greater penalty than possession of marijuana.
Combare KRS 218A.1416 and KRS 218A.275 with KRS 218A.1422 and KRS
218A.276. We have held that the quantity of the controlled substance possessed is
immaterial to the criminality of the act and that “any amount” suffices. Commonwealth
v. Shivley, Ky., 814 S.W.2d 572 (1991). Thus, the fact that hemp contains less THC
than marijuana is immaterial to the criminality of its possession.
Kentucky is not unique in criminalizing the possession of THC. The United
States Congress also classifies THC as a schedule I controlled substance, 21 U.S.C. §
812(c), Schedule l(c)(17); see also 21 C.F.R. § 1308.11, Schedule l(d)(27), and
provides criminal penalties for its possession. 21 U.S.C. § 841(a)(l) and (b)(l)(C).
Because there is a rational basis for criminalizing the possession of
hallucinogenic substances such as Tetrahydrocannabinols (THC), and because hemp
contains THC, I conclude that the statutory scheme which criminalizes the possession
of hemp does not violate section 2 of our Constitution. For that reason, I concur in the
result reached by the majority in this case.
Stumbo, J., joins this concurring opinion.
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RENDERED: MARCH 23,200O
TO BE PUBLISHED
1998-SC-1048-DG
COMMONWEALTH OF KENTUCKY
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS _
97-CA- 1887
LEE CIRCUIT COURT NO. 97-Xx-01
LEE DISTRICT COURT NO. 96-M-0161
WOODY HARRELSON
APPELLEE
CONCURRING OPINION BY JUSTICE KELLER
I agree with Justice Cooper’s concurring opinion that the Legislature cannot
criminalize the possession of hemp (cannabis sativa indica) consistently with Kentucky
Constitution $2 simply because it physically resembles marijuana (cannabis sativa
sativa) and may complicate drug enforcement efforts. In my opinion, the General
Assembly may prohibit or otherwise regulate hemp within its definition of marijuana,
KRS 218A.010(14), because hemp contains a quantity of tetrahydrocannabinols (THC).
We need not, however, rely upon other legislation enacted by the General Assembly or
the United States Congress to support the conclusion that the regulation of any quantity
of THC is properly within the General Assembly’s police power. Almost a century ago,
the predecessor to this Court examined the contours of Kentucky Constitution §2 and
the General Assembly’s police power with respect to the regulation of intoxicating
beverages, and concluded, with respect to “cider, ” “malt mead,” and “near beer,” that
the presence of a potentially harmful substance (alcohol) and not the concentration of
that substance determined whether it may be regulated.
In pre-prohibition Kentucky, the forces of temperance sought to regulate alcohol
within the context of Kentucky’s local option law, which allowed towns and localities to
prohibit or otherwise regulate the sale of alcoholic beverages:
The year 1891, under the new Kentucky Constitution,
witnessed the passage of an elaborate and detailed -local
option law by the legislature to ascertain the wishes of the
people locally concerning the sale of alcoholic beverages.
Instead of 20 legal voters as required in the law of 1873, the
number of legal voters who could call an election was made
dependent on at least 25 per cent of the votes cast in each
district at the last general election. A majority vote would
decide the outcome of the election.
. . .
The Kentucky Occupational license fees were closely
related to local control purposes. At first the retailing stage
only was taxed. The early single-tavern license evolved into
a retail license fee graduated in amount according to
whether the retailer also operated a tavern or was a
merchant only. Both state and local license fees were
authorized. The post-Civil War legislation continued the
classification of retail licenses revolving around the
distinction of whether food and merchandising activities were
associated with the retailing of spirits. In the decade of the
1880’s this classification was continued but was fused with
another classification graduated directly according to the
alcoholic proof of the beverage dispensed at retail.’
Pursuant to these local option statutes, various statutes and ordinances were passed
regulating the retailing of alcoholic beverages through measures ranging from outright
‘Obra F. Traylor, “Patterns of State Taxation of Distilled Spirits With Special
Reference to Kentucky,” 9 Quarterly Journal of Studies on Alcohol, pp. 585-592 (March,
1949).
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prohibitions* to limitations on the times when taverns may remain open3 and the age
and gender of those allowed on the premises.4
In 1901, our predecessor Court considered a challenge to an ordinance passed
by the City of Pikeville which regulated the sale of hard tide? with an occupational
license tax.6 The Court found the tax constitutional, as the power to regulate alcohol is
not dependent on the degree of a beverage’s intoxicating effect:
To what extent government may regulate or prohibit useful,
or even harmless, callings, as an invasion of the citizen’s
liberty in the “pursuit of happiness,” is not here involved. It is
generally conceded now, and certain in this state is it
established, that it is a proper exercise of the police power,
inherently incidental to government, to regulate by license or
otherwise, or even to prohibit, those callings hurtful to the
‘See. e.a., Powers v. Commonwealth, Ky., 13 S.W. 450 (1890) (upholding the
constitutionality of an act which made it unlawful for “any person or persons to sell,
barter, give, loan, or traffic in spiritous, vinous, or malt liquors, in any quantity
whatsoever, within the county of Rowan . . . .” u.)
‘See McNuItv v. Toopf, 116 Ky. 202, 75 SW. 258 (1903) (upholding the
constitutionality of an ordinance “prohibiting the selling, dispensing or giving away of
any spiritous, vinous or malt liquors, between the hours of IO:30 o’clock p.m. and 5
o’clock a.m.” ld.); Commonwealth v. McCann, 123 Ky. 247, 94 S.W. 645 (1906)
(upholding a statute providing: “Any person who shall, on Sunday, keep open a
barroom or other place for the sale of spiritous, vinous, or malt liquors, or who shall sell
or otherwise dispose of such liquors, or any of them, shall be find not less than $10.00
nor more than $50.00 for each offense.” u.)
4See Commonwealth v. Price, 123 Ky. 163, 94 S.W. 32 (1906) (upholding an
ordinance of the city of Madisonville which made it unlawful for any infant or female to
go into or be in or drink intoxicating liquors in any saloon or place for sale of such
liquors . . . . “ or for any tavern owner to allow an infant or female to remain on the
premises for more than five minutes. u.)
‘Fermented apple juice, also known as “hop jack,” containing an average of
between two (2) and eight (8) percent alcohol, less alcohol by concentration than most
pre-prohibition ales or lagers. See Papazian, The New Complete Joy of Home
Brewing, 2nd Edition, pp. 8-9,161-165 (Avon Publishing, 1991);
6Town of Pikeville v. Huffman, Ky., 65 S.W. 794 (1901).
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morals, the health, or the peace of society. Embraced in
such is the making, vending, and use of intoxicants. Those
liauors comina within the accepted definitions of “spiritous,
vinous. and malt” are the most aenerallv treated of in such
leaislation. But the vet-v fact that the leaislature exercises
and deleaates . . . power. under the head of “police
reaulations.” to reaulate . . . such, is a sufficient basis for a
similar exercise of the same power in like reaulation of the
sale of other intoxicants. whether of areater or less
intoxicatina effect: for. after all. it is the fact that the
proscribed article is hurtful to health or peace or morals and
not the extent of its hurtful capacitv. that iustifies thegovernmental interference. So, if the fact is that a given
article in its nature is objectionable on any of the grounds
named, it is properly within the police power of the state, and
of the municipality when so delegated, to regulate is use by
exacting a license therefor, or even to prohibit it. Cider is “a
strong drink,” a beverage; in no sense a necessity more than
is beer or wine. It is as distinctly a beverage as either beer
.or wine. True, it is not as intoxicating, but its classification
as a beverage is as distinct as either of the others, and not
the less certain.’
Opportunistic brewers, seeking to reclaim a market niche closed by the forces of
temperance, trumpeted the relative beneficence of malt beverages’ and attempted to
slip under the radar of statutes regulating “intoxicating liquors” by brewing beverages
with lower alcohol contents9 In Bradford v. Jones,” the Court addressed an ordinance,
‘u. (emphasis added).
“‘The noblest philosophy of life, since extremes must, perforce exist, is
compromise. Temperance, then, is the truest medium between total abstinence and
excess; and malt liquors, above all, are the medium between ardent spirits and water.”
1876 Brewers’ Industrial Exhibition Essavs on the Malt Liauor Question 16 (Francis Hart
& Co. 1876).
‘In the first decade of the 20th Century, the courts of various jurisdictions
examined these low-alcohol beverages under various trade names in the context of
statutes regulating “intoxicating beverages.” a, e.n. Commonwealth v. Henry, 110
Va. 879, 65 SE. 570 (Va. 1909) (“Malt Beverage” and “Small Brew,” which contained
less than 2.25 percent alcohol); State v. Farao Bottling Works Co., 19 N.D. 396, 124
N.W. 387 (N.D. 1910) (“Purity Malt,” which contained 1.75 percent alcohol by volume);
Sawver v. Botti, 147 Iowa 453, 124 N.W. 787 (Iowa 1910) (“Justus beer” which
contained less than 0.5 percent alcohol by volume); Gourlev v. Commonwealth, 140 Ky.
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I
with a potential fine of $5 for noncompliance, enacted by the town of Jellico designed to
regulate malt beverages containing alcohol under the heading of “soft drinks”: “Any
person or persons, or firms, or corporations, who shall engage in the business of selling
soft drinks shall pay a license tax to the town treasurer of the town of Jellico of fifty
dollars per annum, payable quarterly.“” Bradford, a restauranteur, sought a writ to
prohibit the local police judge from imposing the fine against him on the grounds that
the license fee was unreasonable, arbitrary, and oppressive. The court held the
ordinance a valid exercise of the town’s delegated police power to the extent it
regulated beverages containing a quantity of alcohol:
The words “soft drinks” are not defined by statute or by the
ordinance; but in recent years they have come to have a
well-known and popular use in this state, and are commonly
understood to mean nonintoxicating beverages that are sold
in places where there were formerly sold intoxicating liquors,
and may be said to have come into use with the abolition of
the barroom and other places where liquor was sold by
licensed dealers. While including lemonade, soda water,
mineral waters, and other innocent and harmless beverages
that are and have been for years sold all over the country,
they are generally used in reference to “malt mead,” “near
beer,” and other alcoholic decoctions invented to take the
place of intoxicating drinks. “Soft drinks” that contain any
per cent. of alcohol are regarded as hurtful to the morals and
health of the community, and their sale might well come
within the control and regulation of the police power. But
such “soft drinks” as lemonade, soda water, and mineral
waters that are pure and wholesome, and contain no
alcohol, are not detrimental to the public good, and their sale
does not need police regulation or control.
221, 131 S.W. 34 (1910) (“Malt Mead”); Ex Parte Townsend, 144 S.W. 628 (Texas Ct.
Crim. App. 1911) (“Haiwatha,” which contained less than 2 percent alcohol).
‘“142 Ky. 820, 135 S.W. 290 (1911).
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It might be arbitrary and oppressive to fix the license fee
for selling useful and pure mineral or health-giving waters at
a sum that would virtually prohibit their sale, when it would
not be arbitrary and oppressive to fix a license fee at a
prohibitive figure for the sale of beverages that are not
wholesome or necessary. l2
The Court had a second opportunity to examine an attempt to regulate lowalcohol content beverages, in Tolliver v. Blizzard,13 when it heard a constitutional
challenge after the City of Olive Hill sought to regulate the sale of”soft drinks” by
permitting the sale of only those “soft drinks” specified by ordinance:
That it shall be unlawful for any person or persons,
corporations or firms, on and after the 17’h day of May, 1910.
To sell or conduct or operate a place for the sale, barter or
loan, by retail or wholesale, of any proprietary or soft drinks,
except lemonade, milkshake, soda water labeled pop and
coca-cola, within the city limits of Olive Hill, Carter county,
Kentucky.14
Tolliver, a restauranteur who sold, in addition to the nefarious “Malt Mead,” lemon sours
and sodas, challenged the ordinance. The Court dismissed the city council’s argument
that the statute was necessary to prevent some people from camouflaging alcoholic
beverages within innocuous ones and declared the statute unreasonable and void:
The test in every case is: Is the prohibition of the sale
of a particular article necessary to prevent the infliction of a
public injury? It is not sufficient that the public sustains harm
from a certain trade or employment as it is conducted by
some engaged in it. Because many men engaged in the
calling persist in so conducting the business that the public
‘?cJ. at 291.
“143 Ky. 773, 137 S.W. 508 (1911).
14U. The ordinance provided for a five dollar ($5) licensing fee and a fine of
between twenty five ($25) and one hundred ($100) dollars for noncompliance. In
addition, it stated that “[alny or all other proprietary or so-called soft drinks, except what
is mentioned in this ordinance, are by this ordinance prohibited from being sold in said
city.” u. at 510.
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suffers, and their actions cannot otherwise be effectually
controlled, is no justification for a law which prohibits an
honest man from conducting the business in such a manner
as not to inflict injury upon the public. Therefore the power
of prohibition may not be invoked as to certain harmless
drinks, merely because certain persons, under the guise of
selling such drinks, may sell intoxicating liquors.
. .[i]et us examine the ordinance. It specifies certain soft
drinks which may be sold. The sale of all other soft drinks is
prohibited. Among the number might be enumerated
several soft drinks that are absolutely harmless. It will not
do to say that the city council is the arbiter of public taste. It
cannot prescribe what harmless drinks shall, or shall not, be
sold. Its power to prohibit is confined to those drinks which
are harmful or deleterious to the public health and morals.
The ordinance before us is not restricted in its application. It
prohibits the sale of many harmless drinks, and is so broad
in its scope and so discriminatory in its character as to
constitute an unlawful interference with the liberty of the
citizen, which includes, not merely the right to acquire
property, but the right to buy and sell it. That being true, we
conclude the ordinance is unreasonable and void.15
It is established jurisprudence in this Commonwealth, therefore, that the
legislature’s power to regulate a particular article under its police power rests on the
presence, in whatever concentration, of a harmful substance. As hemp contains a
quantity of THC, and Mr. Harrelson did not overcome the statute’s presumption of
constitutionality and prove that THC is harmless, the state may validly prohibit its
possession. Accordingly, I would reverse the decisions of the Court of Appeals, the
circuit court, and the district court and remand this matter to the district court for further
proceedings consistent with this opinion.
15M. at 511.
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