JEFFREY MATHENEY V. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
AS MODIFIED : APRIL 4, 2006
RENDERED : MARCH 23 ;.
8, PIUB(i
0suprMf
(Eaud Of
2002-SC-0920-MR
JEFFREY MATHENEY
V.
APPELLANT
APPEAL FROM HOPKINS CIRCUIT COURT
HONORABLE CHARLES W. BOTELER, JR., JUDGE
01-CR-123
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE ROACH
AFFIRMING
Appellant Jeffrey Matheney was convicted
by
a Hopkins Circuit Court jury of
manufacturing methamphetamine and of being a persistent felony offender in the
second degree . He was sentenced to twenty years imprisonment and appeals to this
Court as a matter of right . Appellant argues that since he did not possess all the
chemicals necessary to manufacture methamphetamine, his conviction must be
reversed pursuant to Kotila v. Commonwealth , 114 S.W.3d 226 (Ky. 2003). We
conclude that Kotila was wrongfully decided and affirm Appellant's conviction .
1. Kotila Issue
On March 4, 2001 Appellant, accompanied by his wife and children, traveled to
Madisonville, Kentucky. In Madisonville, Mrs. Matheney purchased two boxes of cold
medicine at the Dollar Store. Appellant then purchased two boxes of cold medicine at
the More for Less Store . The family then traveled to an auto parts store and purchased
three cans of Pyro (starting fluid) and then went to a hardware store and purchased a
gallon of Liquid Fire. They then traveled to another shopping center and purchased two
boxes of Sudafed . After this purchase, the family traveled to yet another shopping
center, where Appellant purchased two more boxes of Sudafed from a Rite Aid drug
store . The store manager of this Rite Aid recognized Appellant as the same individual
who had bought two boxes of Sudafed three weeks earlier and called the police to
report the purchases . A police officer confronted Appellant in the parking lot and
ultimately the Matheneys consented to a search of their car. The trunk contained 396
cold and allergy pills containing ephedrine or pseudoephedrine, a gallon of Liquid Fire
and three cans of Pyro . Appellant and his wife were arrested .
The evidence at trial established that the following chemicals are necessary to
manufacture methamphetamine: (i) ephedrine or pseudoephedrine; (ii) potassium,
lithium, or some other reactive metal ; (iii) anhydrous ammonia; (iv) ether; (v) acid; and
(vi) salt or potassium.' Appellant possessed only ephedrine (in the Sudafed and cold
pills), acid (Liquid Fire can serve as the requisite acid), and ether (starting fluid contains
ether). This case was tried before our decision in Kotila, thus the jury was not instructed
that Appellant had to possess all of the chemicals necessary for the manufacture of
methamphetamine . Counsel for Appellant did not object to the instructions, but
Appellant claims that the error constitutes palpable error.
From July 15, 1998, when manufacturing methamphetamine was first made a
crime in this Commonwealth, until June 20, 2005, KRS 218A .1432(1) simply provided :
A person is guilty of manufacturing methamphetamine when
he knowingly and unlawfully:
(a) Manufactures methamphetamine ; or
' This list of chemicals is consistent with the expert testimony in Kotila . Kotila
114 S .W.3d at 236.
(b) Possesses the chemicals or equipment for the
manufacture of methamphetamine with the intent to
manufacture methamphetamine .
The General Assembly has now amended KRS 218A.1432(1)(b) to read that a person
is guilty of manufacturing methamphetamine when he knowingly and lawfully "(b) with
intent to manufacture methamphetamine possesses two (2) or more chemicals or two
(2) or more items of equipment for the manufacture of methamphetamine ." 2005
Kentucky Laws ch. 150, § 9 (effective June 20, 2005).
In Kotila v. Commonwealth , 114 S.W.3d 226 (Ky. 2003), this Court held that the
version of KRS 218A.1432(1)(b) then in effect required possession of all the chemicals
or equipment necessary to manufacture methamphetamine . Essentially, this Court
found that the statute's use of the word "the" meant that a person could be convicted
under subpart (1)(b) of the statute only for possession of all the chemicals or equipment
(as opposed to "any" or "some" of the chemicals or equipment) for the manufacture of
methamphetamine. The Kotila majority based this conclusion on grammatical
construction and subsequent statutory enactments by the General Assembly. While
attempting to discern the General Assembly's intent by analyzing subsequent
legislation, the majority opinion conceded that the precise intent of the General
Assembly was ambiguous .
The majority also rejected the applicability of criminal attempt under KRS
506 .010 unless all the chemicals or equipment necessary to manufacture
methamphetamine were present . Justice Keller concurred in the Court's opinion
relating to KRS 218A.1432(1)(b) . However, he believed that KRS 506.010 applied to
"defendants who intend to manufacture methamphetamine and who undertake
`substantial steps' towards manufacturing methamphetamine by knowingly
-3-
accumulating materials necessary to do so, but who are apprehended before they can
complete the KRS 218A.1432(1)(b) Manufacturing Methamphetamine offense by
knowingly possessing all of the chemicals or all of the equipment necessary to
manufacture methamphetamine ." Kotila , 114 S .W.3d at 251 (Keller, J ., concurring in
part and dissenting in part) .
Chief Justice Lambert authored a dissent, which was joined by Justice
Wintersheimer. Chief Justice Lambert argued that if the General Assembly had
intended the statute to be construed as the majority did, "it would surely have used the
word `all' rather than the more general `the."' Kotila, 114 S .W.3d at 256 (Lambert, C.J .
dissenting) . One member of the Kotila majority has subsequently admitted that he "was
seduced by a metaphysical infatuation which led to an absurdity" and concluded that
Kotila "does violence to the concept of common sense." Fulcher v. Commonwealth , 149
S.W.3d 363, 381 (Ky. 2004) (Graves, J., dissenting) .
In Fulcher , despite the fact that the defendant possessed a plethora of equipment
and chemicals to make methamphetamine, the Court held that since there was no
evidence of sodium metal or lithium, the defendant did not possess all the chemicals
necessary to manufacture methamphetamine . In addition, since there were no mixing
bowls, stirring devices or pliers, the defendant also failed to possess all the equipment
necessary to manufacture methamphetamine .
This Court has struggled with the effects of Kotila from day one. This is clear
from the fact that the bright line rule of Kotila survived for only about six months. In
Varble v. Commonwealth , 125 S .W .3d 246, 254 (Ky. 2004), this Court upheld a
conviction under KRS 128A. 1432(1)(b) where all the chemicals except anhydrous
ammonia and all the equipment except for a filter were present . The Court held that
"the odor of anhydrous ammonia" and a 'filter of unspecifled nature and a dust filter
mask" were sufficient evidence to satisfy Kotila. Id . at 254. Chief Justice Lambert
remarked that the holding in Varble represented "a significant departure from the bright
line rule announced in Kotila ." Id . at 257 (Lambert, C.J., concurring) .
Additionally, with Justice Graves's express disavowal of Kotila in his dissent in
Fulcher, four members of this Court have cast votes that necessarily demonstrate their
disagreement with Kotila's holding regarding the application of KRS 506.010 (Criminal
Attempt) to methamphetamine manufacturing offenses . See Kotilla , 114 S.W.3d at 249
(Keller, J ., concurring in part and dissenting in part); id. at 256 (Lambert, C.J ., dissenting
in part, joined by Wintershiemer, J.); Fulcher v. Commonwealth , 149 S.W.3d 363, 381
(Ky. 2004) (Graves, J ., dissenting) .
Since Kotila was rendered, over two years ago, it has become increasingly clear
that Justice Graves was correct in that requiring possession of all the chemicals or
equipment to uphold a conviction under KRS 128A.1432(1)(b) defies common sense.
And though considerations of stare decisis would normally guide us to adhere to Kotila,
we simply cannot overlook the fact that the Court's reasoning in subsequent decisions
addressing KRS 218A.1432(1)(b) has already departed significantly from the bright-line
rule. Therefore, we go one step further and hold that Kotila's construction of KRS
218A.1432(1)(b) was incorrect.
We do not reverse Kotila lightly. As the dissent observes in its extensive
discussion, stare decisis is an important guiding principle in American jurisprudence .
On that point, we are in complete agreement . However, as this Court has noted
recently,
the doctrine of stare decisis does not commit us to the
sanctification of ancient or relatively recent fallacy . While we
recognize this Court should decide cases with a respect for
precedent, this respect does not require blind imitation of the
past or unquestioned acceptance ad infinitum . Rather, in
many ways, respect for precedent demands proper
reconsideration when we find sound legal reasons to
question the correctness of our prior analysis .
Morrow v. Commonwealth, 77 S .W.3d 558, 559 (Ky. 2002) (internal brackets, quotation
marks, and footnotes omitted), overruling Gray v. Commonwealth , 979 S .W.2d 454
(1998) . Morrow, like this case, concerned statutory construction of relatively recent
vintage .2 And when we found that construction wanting, we ruled, as we do here, that
stare decisis must give way.
We construe the language in KRS 218A.1432(1)(b) that states "the chemicals or
equipment for the manufacture of methamphetamine" to mean that one must possess
two or more chemicals or items of equipment with the intent to manufacture
methamphetamine to fall within the, statute . This construction is based on a common
2 We note that, although Morrow reversed the Court's construction of the statute
in question, Justice Cooper nonetheless joined its majority opinion .
Curiously, Justice Cooper's, dissent cites to his concurring opinion in Kentucky
Dept. of Corrections v. McCullough, 123 S .W .3d 130, 141 (Ky. 2003), another case
involving statutory construction, to demonstrate his fidelity to the doctrine of stare
decisis . Justice Cooper's entire concurring opinion in that case reads as follows :
Despite my continuing belief that Department of Corrections
v. Fur, Ky., 23 S.W.3d 615 (2000), was wrongly decided,
four Justices (including one who joined my dissent in Furr)
have reaffirmed it today, albeit sub silentio . Accordingly, and
mindful of stare decisis , I join the opinion of the Court,
primarily to ensure that the punitive damages analysis
receives a majority vote. I do so, however, with the hope that
in due time a majority of the Court will recognize and correct
the error made in Furr . See Scott v. Illinois , 440 U.S. 367,
374-75, 99 S .Ct. 1158, 1162-63, 59 L.Ed.2d 383 (1979)
(Powell, J., concurring) .
Id . at 141 (emphasis in last sentence added). The emphasized language, which the
dissent fails to include with its quotation of the rest of the concurrence, demonstrates a
willingness to disregard stare decisis, even when a question of statutory construction is
involved .
sense approach that gives proper import to the use of the plural "chemicals." Of course
any conviction must also satisfy the scienter requirement contained in KRS
218A.1 432(1)(b) . In light of this construction, we need not consider Appellant's
argument regarding palpable error, because no error occurred regarding the jury
instructions .
Appellant also argues that KRS 218A.1432(1)(b) is unconstitutionally void for
vagueness . Essentially, Appellant argues that if KRS 218A.1432(1)(b) is interpreted to
encompass possession of less than all the chemicals or equipment necessary for the
manufacture of methamphetamine, then a citizen is required to guess what
combinations would result in a violation of the statute. Appellant overlooks that the
statute allows conviction only when an individual possesses the requisite chemicals or
equipment with the intent to manufacture methamphetamine . This makes certain what
conduct is proscribed . "it would be difficult, if not impossible, for a person to
inadvertently purposely or knowingly take action in furtherance of the criminal
production or manufacture of dangerous drugs ." State v. Leeson , 82 P.3d 16, 19 (Mt.
2003) ; see also Kotila, 114 S .W .3d at 256 (holding that "the additional requirement that
the possession be with the intent to manufacture methamphetamine cures any
uncertainty as to the nature of the conduct proscribed") . Although in Leeson the
Supreme Court of Montana was interpreting a statute that listed certain chemicals,
Kotila correctly dismissed the argument that the statute should be required to list "all of
the possible combinations of chemicals and equipment used to manufacture
methamphetamine." Kotila , 114 S.W.3d at 249. Therefore, we conclude that KRS
218A.1432(1)(b) is not unconstitutionally vague .
11 . Prior Ephedrine Purchase
Appellant also claims he was denied due process when the trial. court admitted
evidence of a prior ephedrine purchase from the Rite Aid where he made his final
ephedrine purchase . The trial court allowed the evidence because it showed why the
Rite Aid manager called the police: she had recognized Appellant as a person who had
purchased an additional large quantity of cold/allergy pills only a few weeks before.
Appellant cites to Sanborn v. Commonwealth , 754 S .W .2d 534 (Ky. 1988), for the
proposition that this evidence was inadmissible because the Rite Aid manager's action
(in calling the police) was not an ultimate issue in the case . Sanborn, however, is
inapplicable to this case because its rule applies only to whether a potential hearsay
statement may be admitted for a non-hearsay purpose, e.g ., as a "verbal act."
Sanborn's basic thrust, in that respect, was to do away with the concept "investigative
hearsay" as a means to admit statements made to the police.
The evidence that Appellant objected to in this case, however, was not hearsay.
Rather, it was the direct testimony from the Rite Aid manager to explain why she called
the police. At most, this evidence might raise a KRE 404(b) issue in that it consists of a
description of a prior bad act committed by Appellant. And even though Appellant has
not raised this ground on appeal, we simply note that the Rite Aid manager's testimony
showed Appellant's intent to manufacture methamphetamine, thus it was admissible
under the exception in KRE 404(b)(1) .
III. Prosecutorial Misstatement
Appellant next alleges that the prosecutor misstated the law during closing
argument. Specifically he claims the prosecutor erred by stating :
[The General Assembly] put into the statute that people who
possess chemicals and/or equipment necessary to
manufacture, with intent that those chemicals and equipment
be used in manufacture are guilty [of violating KRS
218A.1432 1 b . Do not fall into the trap, and do not let the
defense counsel rewrite the law, to make me have to prove
that they' themselves were going to do the manufacturing or
that I have to prove they were going to manufacture the
product themselves . That is not a requirement of the law.
Basically, the prosecutor argued that Appellant did not have to intend to manufacture
methamphetamine himself, but only that he intended that the chemicals and equipment
in his possession be used in the manufacture of methamphetamine; even if that act was
committed by someone else . There was no objection to this statement at trial.
Appellant admits that the issue is unpreserved but asks that we review it as palpable
error under CR 10.26 .
We first note that Appellant is correct that the prosecutor technically misstated
the law. The language of KRS 218A.1 432(1)(b) is clear that the requisite intent is
"inten[t] to manufacture methamphetamine," not intent that the chemicals and/or
equipment be used (by someone else) in the manufacture of methamphetamine . The
prosecutor's description of the law would only be appropriate if Appellant had been
prosecuted for complicity to manufacturing methamphetamine as allowed by KRS
502.020 or criminal facilitation under KRS 506 .080 .
To support his claim that reversal is required, Appellant points to Mattingly v.
Commonwealth , 878 S .W .2d 797 (Ky.App . 1993),3 where the Court of Appeals reversed
a conviction where during the trial the prosecutor misstated the law of the insanity
defense and the defendant had made a "very strong case for insanity." Id. at 800.
However, a misstatement alone, especially when it is not objected to at trial, does not
automatically require reversal .
3 Appellant mistakenly claims that Mattingly was rendered by this Court. In fact, it
was a decision of the Court of Appeals, review of which was denied by this Court.
-9-
A claim that the prosecutor misstated the law in closing argument is a claim of
prosecutorial misconduct. We follow the approach of the Court of Appeals for the Sixth
Circuit when reviewing alleged prosecutorial misconduct, thus
we reverse for prosecutorial misconduct in a closing
argument only if the misconduct is "flagrant" or if each of the
following three conditions is satisfied :
(1) Proof of defendant's guilt is not overwhelming ;
(2) Defense counsel objected ; and
(3) The trial court failed to cure the error with a
sufficient admonishment to the jury.
Barnes v. Commonwealth , 91 S.W.3d 564, 568 (Ky. 2002) (citing United States v.
Carroll, 26 F.3d 1380, 1390 (6th Cir.1994) ; United States v. Bess, 593 F.2d 749, 757
(6th Cir.1979)). Because Appellant did not object at trial, we need only evaluate
whether the prosecutor's misstatement was "flagrant ."
The prosecutor appears to have misstated the law only the one time noted
above . During the rest of his closing argument, when he referred to intent, he simply
stated that Appellant had to have possessed the chemicals "with intent"-without again
defining, correctly or incorrectly, that term. This single misstatement was also mitigated
by the fact that the trial court's jury instructions correctly reflected the law in that they
required the jury to find that Appellant possessed the chemicals or equipment "with the
intent to manufacture." Juries are presumed to follow the instructions of the trial court.:
Johnson v. Commonwealth , 105 S.W .3d 430, 436 (Ky. 2003); see also Scobee v.
Donahue , 291 Ky. 374, 164 S .W.2d 947, 949 (1942) ("It is to be assumed that the jury
. . . followed the evidence and instructions in their entirety."); United States v. Davis , 306
F .3d 398, 416 (6th Cir.2002) ("Juries are presumed to follow the instructions they are
given ."). And Appellant, whose defense was that he did not have the requisite intent,
obviously did not think that the prosecutor's misstatement was flagrant since he did not
-10-
object at trial . Given that the jury was correctly instructed by the trial court and that the
prosecutor backed off from his misstatement of the law as his closing argument
proceeded, we cannot say that his misstatement rose to the level of flagrant
misconduct.4
IV. School Employee Testimony
Appellant next claims that the prosecutor improperly shifted the burden of proof
by introducing nonprobative evidence to impeach his out-of-court statements about why
he possessed the cold and allergy pills, when he did not testify at trial. Again, there was
no objection at trial, and Appellant now asks us to review the matter for palpable error.
Specifically, Appellant objects to testimony offered about his children's use of
cold and allergy pills. When Appellant was arrested, he told the police that he had
bought the cold and allergy pills because he and his children have allergies and
because he would send the pills to school with his children. This statement was
introduced at trial. The school nurse and a guidance counselor at Appellant's children's
school testified that it would violate school policy to send the pills to school with the
children, that the school had been given no notice of any medical problems, including
allergies, of the children, and, most importantly, that the children's teachers would have
reported allergy pill use to the nurse but no such report had been made . Appellant
4 We also note that even if Appellant had shown flagrant misconduct, because
there was no objection at trial, we would also have to find that Appellant suffered
"manifest injustice" before we could grant any relief to which he might have been
entitled as to the unpreserved error. CR 10 .26. Given that the trial court's instructions
properly stated the law as to Appellant's intent and that there was substantial evidence
(in the form or possession of a substantial amount of ephedrine/pseudoephedrine and
other chemicals used in the manufacturing process, repeated trips to multiple retail
stores to buy pills containing ephedrine/pseudoephedrine) of Appellant's intent to
manufacture methamphetamine, we simply cannot say that Appellant suffered manifest
injustice .
argues that this evidence was more prejudicial than probative, showing only that
Appellant lied to the police and not that he had intent to manufacture
methamphetamine .
Despite Appellant's claim to the contrary, this evidence was offered and was
relevant to show his intent. In his reply brief, Appellant states that this goes only to
whether he possessed the pills for a lawful purpose, which is not a fact of consequence .
But proof that a person does not possess pills containing ephedrine/pseudoephedrine
for a claimed lawful purpose is circumstantial evidence that the person possesses those
pills for an unlawful purpose, namely for manufacturing methamphetamine, which in turn
is evidence of intent. As such, introduction of the evidence was not error, much less
palpable error.
V. Medical Testimony
Appellant also raises issue with similar testimony that was introduced to refute
his claim that he took the pills for his own allergies . Appellant told the police that he
took 12-16 allergy pills per day. This statement was introduced, and the prosecutor
then proceeded to refute it with medical testimony that such large, sustained
pseudoephedrine consumption would lead to "significant medical problems," including
extreme hypertension and an elevated heart rate . Appellant actually objected to this
testimony at trial and now claims that its introduction was improper impeachment on a
collateral matter.
The law in Kentucky has consistently prohibited impeachment on collateral facts .
See Metcalf v. Commonwealth , 158 S.W .3d 740, 744 (Ky. 2005); Purcell v.
Commonwealth, 149 S.W.3d 382, 397-98 (Ky. 2004); Neal v. Commonwealth , 95
S.W .3d 843, 849 (Ky. 2003) ; Slaven v. Commonwealth, 962 S.W.2d 845, 858 (Ky .
-12-
1997) . The medical testimony in question, however, was not about collateral facts.
Rather, it was circumstantial evidence of Appellant's intended unlawful use of the drugs
he had purchased because it showed that he had purchased far more than was
medically necessary or even advisable to use. The medical testimony was proper.
For the foregoing reasons, we affirm Appellant's conviction .
Lambert, C.J . ; Graves, Scott and Wintersheimer, JJ ., concur.
Graves, J., also concurs by separate opinion in which Scott, J., joins.
Cooper, J ., dissents by separate opinion .
Johnstone, J ., dissents and would affirm the Hopkins Circuit Court in accordance
with the legal analysis contained in Justice Cooper's dissenting opinion, but does not
join the dicta contained therein.
COUNSEL FOR APPELLANT:
Euva D. May
Assistant Public Advocate
Appellate Division
Department of Public Advocacy
100 Fair Oaks Lane
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE:
Gregory D . Stumbo
Attorney General
Gregory C. Fuchs
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204
Elizabeth A. Heilman
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204
AS MODIFIED : APRIL 4, 2006
RENDERED : MARCH 23, 2006
TO BE PUBLISHED
'SixprMt
d1ourf of
rnfurkg
2002-SC-0920-MR
JEFFREY MATHENEY
APPELLANT
APPEAL FROM HOPKINS CIRCUIT COURT
. HONORABLE CHARLES W . BOTELER, JR., JUDGE
01-CR-123
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
CONCURRING OPINION BY JUSTICE GRAVES
It is evident that the dissent feels passionately about the issues under
consideration . I respect the dissent and have given careful consideration . However, for
the reasons previously set forth in my dissenting opinion in Fulcher v. Commonwealth ,
149 S.W.3d 363, 381-82 (Ky. 2004) (Graves, J ., dissenting) and consistent with the
basic principles of chemistry explained in Commonwealth v. Hayward , 49 S.W.3d 674
(Ky. 2001), 1 concur with the majority's sound analysis and well reasoned disposition in
this case.
Unyielding polemics and polarizing arguments are not necessary for the
presentation of a rational explanation of the legal justification for the change in my vote
from Kotila v. Commonwealth , 114 S .W.3d (Ky. 2003).
1 agree with the dissent's learned explanation of the history and importance of the
doctrine of stare decisis . As the dissent points out, "stare decisis [is] the means by
which we ensure that the law will not merely change erratically, but will develop in a
principled and intelligible fashion ." Ante at 15 (quoting Vasquez v. Hillery , 474 U .S. 254,
265-66, 106 S.Ct. 617, 624, 88 L .Ed .2d 598 (1986)) . However, the dissent also
acknowledges the following historical fact: "American courts never adopted the
nineteenth century English rule that precedents are absolutely binding in all
circumstances . They instead reserved the right to overrule decisions that were absurd
or egregiously incorrect." Id . (quoting Thomas Healy, Stare Decisis as a Constitutional
Requirement , 104 W . Va. L. Rev. 43, 55 (2001)) .
In the context of U .S . Supreme Court jurisprudence, Justice Souter has
described the doctrine, in its current form, as follows :
Stare decisis is the preferred course because it promotes the
evenhanded, predictable, and consistent development of legal principles,
fosters reliance on judicial decisions, and contributes to the actual and
perceived integrity of the judicial process . Adhering to precedent `is
usually the wise policy, because in most matters it is more important that
the applicable rule of law be settled than it be settled right.' Nevertheless,
when governing decisions are unworkable or are badly reasoned, `this
Court has never felt constrained to follow precedent.' Stare decisis is not
a.n inexorable command ; rather it 'is a principle of policy and not a
mechanical formula of adherence to the latest decision .'
Payne v. Tennessee , 501 U .S . 808, 827-30, 111 S .Ct. 2597, 2609-11, 115 L .Ed .2d 720
(1991) (Souter, J ., joined by Kennedy, J., concurring) (citations and quotations omitted) .
In Kentucky, we have adhered to this prevailing understanding of the doctrine . See,
.,
.g
e Crayton v. Commonwealth , 846 S.W.2d 684, 689 (Ky. 1993) ("it is our duty to
continually re-examine our prior decisions to prevent perpetuation of error'') ; Corbin
Motor Lodge v. Combs, 740 S .W.2d 944, 946 (Ky. 1987) (precedent may be overturned
where the need is compelling) ; Daniel's Adm'r v. Hoofnel , 287 Ky. 834, 155 S .W .2d 469,
471 (1941) ("This wholesome rule (stare decisisl is not inflexible or so imperative as to
require perpetration of error . . . ."); McCormack v. Louisville & Nashville R.R., 156 Ky .
2
465, 161 S.W. 518, 520 (1913) ("Upon the principle of stare decisis , the decisions which
have been rendered by a court will be adhered to by such court in subsequent cases,
unless there is something manifestly erroneous therein . . . .").
Indeed, a brief sampling of our caselaw over a mere two year period reveals no
less than seven opinions purporting to overrule precedent previously established by this
Court. See Fletcher v. Commonwealth , 163 S .W.3d 852, 871 (Ky. 2005) (op . by J.
Cooper) ; Matthews v. Commonwealth , 163 S .W .3d 11, 26-27 (Ky. 2005)(op . by J .
Keller) ; Commonwealth v. Mobley, 160 S.W.3d 783, 787 (Ky. 2005)(op . by C.J.
Lambert) ; Stopher v. Conliffe, 170 S .W.3d 307, 310 (Ky. 2005) (op. by J. Keller) ; St.
Clair v. Commonwealth , 140 S .W .3d 510, 532, 570 (Ky. 2004) (op . of the Court) ;
Hampton v. Commonwealth , 133 S.W.3d 438, 442 (Ky. 2004) (op . by J . Graves); Ra ier
v. Philpot , 130 S .W.3d 560, 564 (Ky. 2004) (op . by J . Johnstone) ; see also, Regenstreif
v. Phelps, 142 S.W.3d 1, 2 (Ky. 2005) (op. by J. Keller)(overruling Court of Appeals
precedent); Messer v. Messer, 134 S .W.3d 570, 573 (Ky. 2004) (op. by J . Cooper)
(overruling Court of Appeals precedent) .
Mindful of its disfavored status, the majority carefully considered the merits of the
case and determined, as this Court has done at least seven times in the past two years,
that compelling reasons warranted a reversal of precedent. This was by no means a
display of "judicial activism," but rather an obligation to halt the perpetuation of
egregious error. In hindsight, it is understandable how such error arose .'
In General Electric Co . v . Joiner , Justice Breyer noted the "inherent difficulty" faced by
judges when evaluating science-related issues, and the steps that can be taken to help
compensate for the judge's "comparative lack of expertise" in the subject area . 522
U .S. 136, 147-50, 118 S .Ct. 512, 520-21, 139 L.Ed .2d 508 (1997) (Breyer, J .,
concurring) ("[J]udges are not scientists and do not have the scientific training that can
facilitate the making of such decisions ."). Despite this inherent difficulty, Justice Breyer
went on to emphasize, however, that "neither the difficulty of the task nor any
3
`
Unfortunately, in Kotila , the forensic chemist merely described the maladroit
process by which clandestine operators manufacture methamphetamine. Subsequent
to Kotila , my research of the chemical literature 2 revealed that methamphetamine may
be manufactured with only two chemicals, namely, a methamphetamine precursor
(usually ephedrine or psuedoephedrine) and a chemical reducing agent3. The other
chemicals mentioned in the testimony of Kotila are either catalysts to speed the reaction
and other chemical reagents or solvents to remove impurities and byproducts during the
synthesis . The auxiliary chemicals convert the crude undistilled methamphetamine
which is unsuitable for human consumption into refined methamphetamine which is
marketable for human consumption . Upon further examination in subsequent cases, it
became obvious that the scientific testimony utilized in Kotila was incomplete and that
such an inadequate understanding of the essential chemical elements of
methamphetamine synthesis resulted in an absurd and unworkable interpretation of the
applicable statute.
The decision in Kotila is alchemy . The alchemists mixed philosophy and science
in the Middle Ages . Modern science has discredited alchemy. We have a duty to
comparative lack of expertise can excuse the judge from exercising the 'gatekeeper'
duties" that the Daubert Rule imposes . _Id .
2 According to Justice Breyer, some of the steps judges should take in order to
compensate for their "comparative lack of expertise" include "increased use of Rule 16's
pretrial conference authority to narrow the scientific issues in dispute, pretrial hearings
where potential experts are subject to examination by the court, and the appointment of
special masters and specially trained law clerks." _Id . at 149. In this case, my prior
training in Chemistry permitted me to review and comprehend the relevant chemical
literature pertaining to the disputed issue .
3The Merck Index , Thirteenth Edition, §5975 at 1063 (2001) [. . .Can be prepd by
reducing ephedrine or pseudoephedrine: Emde . Helv. Chim. Acta 12, 365 (1929) . . . .] ;
Uncle Fester, Secrets of Methamphetamine Manufacture, Chap. 15, p . 109 (6th Ed .
2002). (Uncle Fester is a pseudonym for this underground publication by Loompanics
Unlimited .)
accept scientific reality as it is impossible for an opinion of the Court to alter the fixed
and immutable principles of chemistry .
On balance, the majority opinion is scientifically and legally justified . It is by no
means a coup or usurpation over settled law, as Kotila's essential holding existed for a
mere six months before it began to be chipped away by subsequent decisions (with this
decision coming a mere thirty-two months after Kotila was rendered) . While I respect
the dissent's view that the Kotila holding should not be overruled, I wholeheartedly
believe that the contrary view taken by the majority is a just and appropriate course
within the bounds of proper judicial conduct. I consider it my duty to admit a mistake
when the opportunity and circumstances compel remediation . Accordingly, I
respectfully concur with the majority opinion .
Scott, J ., concurs "heartily" in the burial of Kotila v. Commonwealth , 114 S.W .3d 226
Ky. 2003). Thirty-one years in the courtrooms of Kentucky have taught me many things,
one of which, is "stare decisis" does not command the perpetuation of a wrong decision!
And when such a respected jurist as Justice Graves says it's wrong - he's right!
RENDERED : MARCH 23, 2006
TO BE PUBLISHED
,$uprrnzr 01.0urf of ~rufurhV
2002-SC-0920-MR
JEFFREY MATHENEY
V
APPELLANT
APPEAL FROM HOPKINS CIRCUIT COURT
HONORABLE CHARLES W. BOTELER, JR., JUDGE
01-CR-123
COMMONWEALTH OF KENTUCKY
APPELLEE
DISSENTING OPINION BY JUSTICE COOPER
In a startling display of judicial activism, a majority of this Court, without benefit of
briefing or oral argument and without either party suggesting that it do so, today
overrules Kotila v. Commonwealth, 114 S .W.3d 226 (Ky. 2003), the established
precedent interpreting the 1998 version of KRS 218A .1432(1)(b), and thereby rewrites
that criminal statute to substitute its own notion of public policy for that established by
the General Assembly. In the thirty months since it was decided, we have followed
Kotila's construction of former KRS 218A .1432(1)(b) or cited it as controlling authority in
eight published opinions and one unpublished opinion, and the Court of Appeals has
done so in one published opinion and ten unpublished opinions . The majority's only
apparent reasons for departing from the well-established doctrine of stare decisis is that
one Member of this Court has changed his mind (though the holding in Kotila was
largely premised upon a previous opinion written by that Member), and that two new
Members of the Court would not have joined the Kotila majority had they been Members
when it was decided . Also disturbing is the majority opinion's portrayal of this Court as
a collection of indecisive individual judges rather than as a collegial body. While some
Members of the Court have occasionally expressed reservations about various aspects
of Kotila , as various Members often do with respect to opinions with which they
disagree, a collegial Court speaks through its majority opinions and those opinions have
consistently followed Kotila - until today .
In this dissenting opinion, I will address (1) why today's majority opinion violates
principles of statutory construction ; (2) why it violates the doctrine of stare decisis ; (3)
why its new interpretation of former KRS 218A.1432(1)(b) renders the statute void for
vagueness ; and (4) why the General Assembly's 2005 amendment of the statute does
not affect our interpretation of the 1998 enactment .
I. STATUTORY CONSTRUCTION .
KRS 218A. 1 432(l), as enacted in 1998, provided :
A person is guilty of manufacturing methamphetamine when he knowingly
and unlawfully :
(a)
Manufactures methamphetamine ; or
(b)
Possesses the chemicals or equipment for the manufacture of
methamphetamine with the intent to manufacture
methamphetamine .
1998 Ky. Acts, ch . 606, § 59. This is the version of the statute that existed at the time of
Appellant's arrest and conviction. It is subsection (b) that was at issue in Kotila and that
is at issue in this case . Kotila addressed, inter alia, whether "the chemicals or
equipment" (emphasis added) meant "any ( i.e. , two or more) chemicals or equipment"
or "all of the chemicals or equipment" necessary to manufacture methamphetamine .
As noted in Kotila , 114 S.W.3d at 235, our first encounter with the offense of
manufacturing methamphetamine had been under a previous statutory scheme that
defined the offense of trafficking in a controlled substance by manufacture, inter alia, as
possession of an immediate precursor of a controlled substance with the intent to
convert it into a controlled substance. KRS 218A .010(3), (9), (11), (24) (pre-1998
version) ; Commonwealth v. Hayward , 49 S.W.3d 674, 674-75 (Ky. 2001). We held in
Hayward that under that statutory scheme, "[p]ossessing the primary precursor . . . .
ephedrine or pseudoephedrine, along with all the other necessary chemicals for the
manufacture of methamphetamine provided a legally sufficient basis for the jury to find
that Appellant was trafficking in methamphetamine ." Id . at 677 (emphasis added) . If, in
fact, the Member of this Court who has changed his mind about Kotila "was seduced by
a metaphysical infatuation which led to an absurdity," ante , at
(slip op . a t 4), then it
was a self-seduction, because that very same Member (Justice Graves) was the author
of Hayward .'
'
In his separate concurring opinion in this case, Justice Graves does not so much
disagree with the Kotila requirement of "all of the chemicals, etc.," as with the expert in
Kotila who testified that the manufacture of methamphetamine requires more than just
two chemicals . Justice Graves now reports in his concurring opinion, ante , at
(slip
op. a t 4), that he has consulted "chemical literature," specifically The Merck Index
§ 5975, at 1063 (13th ed. 2001), and Uncle Fester, Secrets of Methamphetamine
Manufacture (Loompanics Unltd. 6th ed. 2002), and determined that "methamphetamine
may be manufactured with only two chemicals, namely, a methamphetamine precursor
(usually ephedrine or pseudoephedrine) and a chemical reducing agent." Ante, at
(slip op. at 4). Having reviewed the same literature, .l find that (1) The Merck Index
§ 5975 reports that methamphetamine is a "[c]entral stimulant" that "[c]an be prepd [sic]
by reducing [1] ephedrine or pseudoephedrine," by "reducing the condensation product
of [2] benzyl [C6H5CH2 (univalent radical derived from toluene)] [3] methyl [CH3 (alkyl)]
[4] ketone [R,(CO)R2 (oxidized alcohol)] and [5] methylamine [CH3NH2 (hydrochloric
salt)]" (emphasis added) (five chemicals); and (2) Uncle Fester (Justice Graves was
gracious enough to direct me to copy of this "chemical literature") describes the
manufacture of methamphetamine by the ephedrine reduction or "Nazi" method almost
exactly as it was described in the Drug Enforcement Agency (DEA) videotape discussed
in Fulcher v. Commonwealth, 149 S.W.3d 363, 368 (Ky. 2004), except that Uncle Fester
Following Hayward and the first rule of statutory construction, i .e . , "the language
of the statute itself," United States v. Health Possibilities, P.S .C . , 207 F .3d 335, 338-39
(6th Cir. 2000), Kotila then applied an elementary principle of English grammar: The
word "the" is "[u]sed as a function word before a plural noun denoting a group to
indicate reference to the group as a whole." Kotila, 114 S.W .3d at 237 (quoting
Webster's Third New Int'I Dictionary of the English Lana . Unabridged 2369 (1993)) .
Noting that KRS 446 .080(4) directs us to construe our statutes "according to the
refers to this method as the "lithium metal in liquid ammonia reduction" method. As
described by Uncle Fester, manufacturing methamphetamine by this method requires
(1) ephedrine or pseudoephedrine, (2) anhydrous ammonia, (3) lithium, (4) toluene or
mineral spirits (e .,g_, Coleman camping fuel), (5) ether, and (6) salt. Uncle Fester,
supra, at 122-27. But even if that were not so, I would accept the DEA's opinion over
that of Uncle Fester (whoever he may be), especially since the DEA's opinion was
introduced at trial in Fulcher .
Courts decide cases based on evidence produced at trial, not extrajudiciallyobtained information that is not common knowledge . Colley v. Colley , 460 S.W .2d 821,
824 (Ky. 1970) ("The doctrine of judicial notice is confined to matters of common
knowledge . It is restricted to what a judge may properly know in his judicial capacity; a
judge is not authorized to make his individual knowledge of a fact not generally known
the basis of his action ." (Emphasis added.)); Cray v. Commonwealth , 264 S .W .2d 69,
70-71 (Ky. 1954) ("While it may be that the trial judge had information from an
undisclosed source . . . . such information does not constitute evidence, nor would the
judge be authorized to act upon such information as constituting a fact within his judicial
knowledge . . . . To hold otherwise would destroy the very purpose for which our courts
are established ."); Riley v. Wallace , 188 Ky. 471, 222 S .W. 1085, 1086-87 (1920) ("[I]t
matters not what is known to the judge if it is not known to him judicially . . . . Judge
Wallace did not know, indeed could not know from the record , of the alleged falsity of
the testimony given by Riley and Bealmear ." (Emphasis added.)) . The reason for this
rule is to provide parties the opportunity to rebut or cross-examine such evidence . KRE
201 (e) ("A party is entitled upon timely request to an opportunity to be heard as to the
propriety of taking judicial notice and the tenor of the matter noticed.") .
If methamphetamine can be manufactured with only two chemicals, that fact is
certainly not generally known, as no expert witness has yet expressed that opinion in
any of the cases thus far considered by this Court on this subject. Further, whether
there are other methods of manufacturing methamphetamine that would require fewer
chemicals than the "Nazi" method is irrelevant because the proof necessary in each
particular case will vary in accordance with which manufacturing method was being
used in that case . Specifically, the Commonwealth's expert witness in this case testified
that methamphetamine cannot be manufactured with only the three chemicals
possessed by Appellant at the time of his arrest, i .e. , pseudoephedrine, drain cleaner
(containing sulfuric acid), and automobile starter fluid (containing ether).
-4-
common and approved usage of language," we then concluded that "the chemicals or
equipment" meant "all of the chemicals or all of the equipment necessary to
manufacture methamphetamine." Id. Unlike today's majority opinion, Kotila was not
hastily decided; it was the culmination of a year of draft opinions and memoranda,
including one opinion that was actually rendered, then withdrawn on petition for
rehearing . It was ultimately rendered as an "Opinion of the Court" because it consisted
of sections written in part by four different Members of the Court as it was then
comprised, i .e . , Chief Justice Lambert and Justices Graves, Keller, and Cooper.
At the time of his arrest, Appellant was in possession of 396 Sudafed
pills
(containing pseudoephedrine, a methamphetamine precursor), a gallon of household
drain cleaner, and three cans of automobile starter fluid. The Commonwealth's expert
conceded at trial that these were not all of the chemicals needed to manufacture
methamphetamine ; and, in its brief to this Court, the Commonwealth conceded that this
case is "on all fours with Kotila," arguing only that the issue had not been properly
preserved for appellate review. Brief for Appellee, at 1 . Thus, the Commonwealth has
not even suggested that Kotila was wrongly decided or that it should be overruled, and
"it is hardly for this Court to 'second chair' the [Commonwealth] to alter [its] strategy . . .
[I]t is clear that a similar dispensation would not be granted a criminal defendant
however strong his claim ." Colorado v. Connelly , 474 U .S. 1050, 1052, 106 S.Ct. 785,
786-87, 88 L.Ed.2d 763 (1986) (Mem . of Brennan, J., in opposition to ordering briefing
on an issue not raised by the Government) . Here, the Court did not even order briefing
on the Kotila issue.
However, the Court did order oral argument in this case on two issues : (1)
whether Appellant's failure to object to the trial court's instruction on manufacturing
methamphetamine was reviewable as palpable error under RCr 10.26 ; and (2) whether
double jeopardy precluded a new trial on the lesser included offense of possession of
drug paraphernalia, KRS 218A.500(2), where, as here, the jury was not instructed on
that offense at the original trial . Cf. Kotila, 114 S .W.3d at 236 (failure to instruct the
jury on a particular offense amounts to a directed verdict of acquittal as to that offense) .
Following oral argument, a draft opinion was prepared and circulated resolving those
and the other issues that were, in fact, actually raised on appeal . It was only after the
draft was circulated that a new majority of the Court announced that it would decide the
case on an issue never raised, briefed, or argued . Because that majority prefers a
different result in this case than is required by the plain language of the statute, it simply
rewrites the statute to delete the troublesome word "the" and substitutes the more
convenient words "two or more ." Ante, at
(slip op. at 6-7) .
Contrary to the majority opinion's characterization of Varble v. Commonwealth ,
125 S.W.3d 246 (Ky. 2004), ante , at
way from Kotila.
(slip op. at 4), that case did not depart in any
It simply held that the elements of the offense described in- KRS
218A.1432(1)(b), like the elements of any criminal offense, can be proven by
circumstantial evidence . Id. at 254. Thus, the presence of an odor of anhydrous
ammonia emanating from two air tanks and of empty blister packs that had contained
500 Sudafed tablets was circumstantial evidence that Appellant had possessed
anhydrous ammonia and Sudafed. Id. at 250, 254. This circumstantial evidence,
coupled with direct evidence of Appellant's concurrent possession of all of the other
chemicals necessary to manufacture methamphetamine, was held to be sufficient
Appellant's offense was committed before the 2002 General Assembly's enactment
of KRS 218A .1437 (unlawful possession of a methamphetamine precursor) . 2002 Ky.
Acts, ch. 170, § 1 .
6
evidence to sustain a conviction under KRS 218A.1432(1)(b) . Id. at 254 . It is an
elementary principle of criminal jurisprudence that any fact at issue can be proven by
circumstantial evidence. Baker v. Commonwealth , 307 S .W.2d 773, 775 (Ky. 1957)
("Indirect and circumstantial evidence may be the basis of establishing the necessary
elements of an offense ."); Denham v. Commonwealth , 239 Ky. 771, 40 S .W.2d 384, 386
(1931) ("The corpus delicti may be established by circumstantial evidence as any other
fact in the case." (Quotation omitted .)). No Member of this Court who participated in the
numerous discussions, both oral and written, that ultimately culminated in the Kotila
opinion ever claimed that the elements of the offense could not be proven by
circumstantial evidence. The reason that issue was not addressed in Kotila was
because no circumstantial evidence was presented in that case .
It. STARE DECISIS .
In addition to Varble , this Court continued to follow or cite Kotila as the controlling
construction of the 1998 version of KRS 218A.1432(1)(b) in one unpublished opinion,
Marshall v. Commonwealth , Nos. 2002-SC-0026-MR & 2003-SC-0068-TG, 2004 WL
314654, at *1 (Ky. Feb . 19, 2004), and in the following published opinions authored by
six different members of the court (in chronological order) : Beaty v. Commonwealth ,
125 S.W .3d 196, 212 (Ky. 2003) (op. by Cooper, J.) ; Taylor v. Commonwealth , 125
S.W.3d 216, 220 (Ky. 2004) (op. by Wintersheimer, J .) ; Johnson v. Commonwealth , 134
S.W.3d 563, 568 (Ky. 2004) (op . by Johnstone, J .); Pate y. Commonwealth , 134 S.W.3d
593, 597 (Ky. 2004) (op. by Keller, J .) ; Fulcher v. Commonwealth , 149 S .W.3d 363, 370
(Ky. 2004)
(op. by Cooper, J.); Clemons v. Commonwealth , 174 S .W.3d 489, 490 (Ky.
2005) (op. by Lambert, C.J .); Robinson v. Commonwealth , 181 S .W.3d 30, 36 (Ky .
2005)
(op. by Scott, J .). Likewise, in Elkins v. Commonwealth , 154 S.W.3d 298, 299
(Ky. App . 2004), and in ten additional unpublished decisions (which I will not specifically
cite but which are reviewable on Westlaw among the total of 71 authorities citing Kotila
since it was rendered on June 12, 2003), the Court of Appeals recognized Kotila as the
controlling interpretation of former KRS 218A.1432(1)(b) . This is in addition to
numerous plea agreements3 and jury instructions that have been premised upon Kotila
since it was decided . The significance of this plethora of authorities that have cited
and/or relied on our holding in Kotila is grounded in the ancient principle of stare decisis.
"Stare decisis et non auieta movere : To adhere to precedents, and not to
unsettle things which are established ." Black's Law Dictionary 1406 (6th ed . 1990) ;
Ballard County v. Ky. County Debt Comm'n, 290 Ky. 770,162 S.W.2d 771, 773 (1942).
"While, perhaps, it is more important as to far-reaching juridical principles
that the court should be right than merely in harmony with previous
decisions, in the light of higher civilization, later and more careful
examination of authorities, wider and more thorough discussion and more
mature reflection upon the policy of the law, it nevertheless is vital that
there be stability in the courts in adhering to decisions deliberately made
after ample consideration ."
Ballard County , 162 S.W.2d at 773 (quoting 14 Am . Jur. P . § 61, at 284-85) .
I am reminded of a conversation many years ago with a prominent practicing
attorney, who later served with distinction as a Kentucky Circuit Court Judge. I asked
him why he always appealed every case as far as the appellate process would allow.
He replied, "I know what the law is today, but who knows what it will be tomorrow?" In
fact, the most significant moment in the legal profession is not when the Supreme Court
renders a seminal decision . It is when a client inquires of an attorney : "These are my
3 Prosecutors have advised me at various conferences that both before and after Kotila
was rendered, they would allow a defendant who possessed less than all of the
chemicals or equipment necessary to manufacture methamphetamine to plead to the
lesser offense of possession of drug paraphernalia, KRS 218A.500(2), or, if the offense
was committed after July 15, 2002, unlawful possession of a methamphetamine
precursor, KRS 218A.1437 .
facts; what is your advice?" Without stability and predictability in the law, an attorney
may become a skilled litigator but will never become an informed counselor . If for no
other reason, therein lies the importance of stare decisis . However, there are many
other reasons.
The doctrine of stare decisis , or of adhering to the law of decided cases, has
gradually evolved over hundreds of years . Thomas Healy, Stare Decisis as a
Constitutional Requirement , 104 W . Va. L. Rev. 43, 55 (2001). The doctrine has its
roots in medieval England, id . at 55-56, and reached its final form in the United States
during the latter part of the nineteenth century . Frederick G. Kempin, Jr., Precedent and
Stare Decisis: The Critical Years, 1800 to 1850 , 3 Am. J . Legal Hist. 28, 50-51 (1959).
A. Stare Decisis in the Courts of England .
In the mid-thirteenth century, Henry de Bracton, in his famous treatise discussing
approximately 500 cases, first suggested the value of precedents in the law: "If new
and unusual matters arise which have not before been seen in the realm, if like matters
arise let them be decided by like, since the occasion is a good one for proceeding
a
similibus ad similia ." 2 Henry de Bracton, On the Laws and Customs of England 21 (G .
Woodbine ed . 1968) . However, Bracton's use of cases was "not based on their
authority as sources of law, but upon his personal respect for the judges who decided
them, and his belief that they raise[d] and discuss[ed] questions upon lines which he
consider[ed] sound." Theodore F.T. Plucknett, A Concise History of the Common Law .
181 (1929). Bracton's "use of decided cases accustomed lawyers . . . to discussing
cases, and this [was] a significant step in the development of a case law system ."
James W. Tubbs, The Common Law Mind : Medieval and Early Modern Conceptions 20
(2000).
Bracton's example might have fostered the publication of the Year Books,
Plucknett, supra, at 182, a digest of court cases compiled during the approximate period
from 1283 to the mid-sixteenth century . Healy, supra, at 58. The Year Books, although
not supporting a system of binding case law, Tubbs, supra, at 180, did affect "the
conception and application of precedent ." Carleton Kemp Allen, Law in the Making 202
(7th ed. 1964) . In the fifteenth century, when written pleadings replaced oral pleadings,
the Year Books began to focus on the substantive issues in cases, thus fostering the
notion of binding precedent. Harold Potter, Potter's Historical Introduction to English
Law and its Institutions 276 (A.K.R . Kiralfy ed., 4th ed. 1958) ; T. Ellis Lewis, The History
of Judicial Precedent IV, 48 L .Q . Rev. 230, 231-32 (1932). "Judges also became
increasingly conscious of the way their decisions would shape the law." Healy, supra ,
at 60 . An early use of the concept of precedent was recorded in the year 1469, when a
judge named Yelverton stated : "[F]or this case has never been seen before, and
therefore our present judgement will be taken for a precedent hereafter." Allen, supra,
at 19$-99 . Despite "regard for previous decisions," judges during this period looked to
prior cases primarily to "save trouble," i.e. , for convenience, and to avoid "considering a
question de novo if it had recently been decided ." Plucknett, supra, at 302. They did
not view precedents as a restraint on their judicial authority. Allen, supra , at 199-200.
In the mid-sixteenth century, the Year Books were replaced by a series of law
reports named for their authors . Potter, supra , at 271, 273. The law reports "document
the gradual emergence over the next two centuries of the view that precedents are not
only instructive guides that help maintain consistency, but are authoritative statements
of the law that should be followed in most cases." Healy, supra, at 62 . Sir Edward
Coke, who served as Chief Justice of the Court of Common Pleas and later as Lord
- 1 0-
Chief Justice of the King's Bench, was particularly influential in this development .
Plucknett, supra, at 163-66.
Coke believed "ardently in the force of example and tradition in all things legal
. . . [and] he had great faith in precedent." Allen, supra, at 207. In an early example of
the declaratory theory of law, Healy, supra , at 62, he stated that the Year Book cases
were "the best proof [of] what the law is." Allen, supra, at 207. Coke helped secure a
central role for precedent by (1) authoring a thirteen-volume treatise, "The Reports,"
which was "the most thorough collection of cases that had ever appeared;" and (2)
citing Year Book cases to challenge the King's authority to exercise jurisdiction over
legal issues . Healy, supra, at 62-63 . Coke's reports were extremely influential and, as
they "facilitated the citation of authorities in Court . . . . the practice became much more
frequent ." Lewis, supra, at 235. Coke's challenge to the King's authority culminated in
his famous decision in Prohibitions del Roy, 77 Eng . Rep. 1342 (K.B. 1607), wherein he
responded to James I's argument that "the law was found upon reason" and "that he
and others had reason as well as the judges" by holding that "causes which concern the
life . . . or fortunes of his subjects are not to be decided by natural reason but by the
artificial reason and judgment of law, which . . . requires long study and experience ." Id.
at 1343 ; Catherine Drinker Bowen, The Lion and the Throne: The Life and Times of Sir
Edward Coke 305 (1957). Coke's invocation of "artificial reason" claimed "a special
place for precedent in the decision-making process because the long study and
experience he spoke of was essentially the learning of cases ." Healy, supra, at 64 .
After Coke's death in 1633, the theory and practice of stare decisis was in
considerable flux. Allen, supra , at 209 . Some judges "expressed an obligation to follow
decisions they disliked," while others "continued to assert the right to disregard
precedents they thought incorrect." Healy, supra, at 66-67. This "mixed attitude toward
precedent" in the seventeenth and eighteenth centuries stemmed from (1) a medieval
belief in the so-called "natural law," and (2) the poor quality of early reports . Id. at 6768 .
The jurisprudential "natural law" theory was premised upon the notion that there
is "a Law that transcends . . . individual laws . . . . ultimately derived from God ." Kevin
Ryan, Lex Et Ratio: Coke, the Rule of Law, and Executive Power, Vt. B.J ., Spring 2005,
at 9, 10. This "higher" law was used to evaluate actual positive laws . Id. Belief in the
"natural law" necessitated the use of the declaratory theory of the law in deciding cases.
Healy, supra, at 67-68 . Under the declaratory theory, law existed as a Platonic ideal,
and "cases were mere evidence of the law as opposed to comprising the law itself."
Christian F. Southwick, Unprecedented : The Eighth Circuit Repaves Antiquas Vias with
a New Constitutional Doctrine ," 21 Rev. Litig. 191, 236 (2002). Since a prior case was
only evidence of the law, "no judge could ever be absolutely bound to follow it, and it
could never be effectively overruled because a subsequent judge might always treat it
as having some evidential value ." Rupert Cross & J . W . Harris, Precedent in English
Law 30 (4th ed. 1991) .
The declaratory theory was a tidy compromise between the dictates of
natural law and the growing pressure to follow precedent. Because
judges regarded decisions as evidence of the law, they could justify their
adherence to precedent by pointing to the weight of the authorities on a
given issue . At the same time, they could evaluate past decisions as they
would any other evidence. Thus, they frequently claimed that a decision
was bad evidence of the law because it was unjust, inconvenient, or
absurd .
Healy, supra , at 68 (footnotes omitted) . Today, this approach might accurately be
described as "result-oriented ."
- 1 2-
The poor quality of law reports before the nineteenth century also made it difficult
to adopt a system of binding precedent . W.S. Holdsworth, Case Law, 50 L.Q. Rev. 180,
187-88 (1934); Lewis, supra, at 230. Judges issued their opinions orally, and the bar
relied upon law reporters to record them. Robert J. Martineau, The Value of Appellate
Oral Argument : A Challenge to the Conventional Wisdom , 72 Iowa L. Rev. 1, 7-8
(1986) . However, the reports were unreliable and imprecise . Lewis, supra, at 244.
Judges could not rely on reports of questionable authority when making decisions and
sometimes refused to follow precedents they could not verify. Holdsworth, supra, at
187-88.
More accurate law reports began to appear in the mid-eighteenth century, Potter,
supra, at 274; Lewis, supra, at 230, but conflicting views about the force of precedent
persisted . David Lieberman, The Province of Legislation Determined : Legal Theory in
Eighteenth-century Britain 86-87 (1989) . The views of Blackstone and Lord Mansfield
provide examples of this conflict. Southwick, supra, at 246-47 . Blackstone was a
leading proponent of stare decisis :
For it is an established rule to abide by former precedents, where the
same points come again in litigation : as well to keep the scale of justice
even and steady, and not liable to waver with every new judge's opinion ;
as also because the law in that case being solemnly declared and
determined, what before was uncertain, and perhaps indifferent, is now
become a permanent rule, which it is not in the breast of any subsequent
judge to alter or vary from, according to his private sentiments : he being
sworn to determine not according to his own private judgment, but
according to the known laws and customs of the land; not delegated to
pronounce a new law, but to maintain and expound the old one .
Healy, supra, at 70 (emphasis added) (quoting 1 William Blackstone, Commentaries
*69) . Blackstone limited this assertion by adding that judges were not bound by
precedents that were "evidently contrary to reason," Southwick, supra, at 249 (quoting 1
Blackstone, supra , at *69), or "flatly absurd or unjust." Allen, supra, at 229 (quoting 1
-13-
Blackstone, su ra, at *70). Though Blackstone often expounded the declaratory theory
of the law, writing that "the decisions of courts of justice are the evidence of what is
common law," Southwick, supra, at 251 n.319 (quoting 1 Blackstone, supra, at *71), he
was "one of the first writers to speak of the rule of precedent as one of general
obligation, and he left far less room for discretion than his predecessors." Healy, supra,
at 70. Mansfield, by contrast, often did not follow precedent. Allen, supra , at 211 ;
Lieberman, supra, at 122-33 . He "did not hesitate to reverse erroneous points of
practice . . . when found to be absurd or inconvenient ." Allen, supra , at 216 n .1
(emphasis added) (quotation omitted) .
The conflict between Blackstone and Mansfield "reached its climax in Perrin v.
Blake ," Healy, supra , at 71, a case concerning the Rule in Shelley's Case, which had
been promulgated by Coke. Lieberman, supra, at 135-42. Mansfield, ruling from the
King's Bench, declined to follow the Rule, arguing that it defied reason to subvert the
intention of a clearly written will . 98 Eng . Rep . 355 (K.B. 1770) ; Healy, supra, at 71 .
However, Blackstone, ruling from the Exchequer Chamber on appeal, reversed
Mansfield's decision and held that a court did not have the power to disturb the rule. 10
Eng. R.C. 689 (Exch . Ch . 1771) ; Lieberman, supra , at 136, 138-39. Thus, "[b]y the
beginning of the nineteenth century, [English] courts began to regard a line of decisions
as absolutely binding," and "by the latter half of the nineteenth century, [they] asserted
an obligation to follow all prior cases, no matter how incorrect." Healy, supra, at 72.
B. Stare Decisis in American Courts.
Adoption of the rule of stare decisis in the United States occurred gradually
between 1800 and 1850. Kempin, supra, at 50. During the pre-revolutionary period,
"despite some fidelity to past cases, colonial courts did not feel bound by precedents
-14-
and were more likely to search for principles in the law than for a decision on all fours
with the case at hand." Healy, supra, at 78 . The declaratory theory of the law still held
sway after independence, and adherence to it "significantly retarded the solidification of
binding precedent." Southwick, supra , at 263.
The Framers' view of precedent is evidenced by the writings of Alexander
Hamilton and James Madison . Hamilton believed that "[t]o avoid an arbitrary discretion
in the courts, it is indispensable that they should be bound down by strict rules and
precedents, which serve to define and point out their duty in every particular case that
comes before them." Thomas R . Lee, Stare Decisis in Historical Perspective : From the
Founding Era to the Rehnquist Court , 52 Vand . L. Rev. 647, 663 (1999) (quoting The
Federalist No. 78, at 471 (Alexander Hamilton) (Clinton Rossiter ed., 1961)) . In
contrast, "Madison conceived of a rule of stare decisis that was tempered by
countervailing policies and exceptions ." Id . at 664. He wrote that judicial precedents
had "binding influence" "when formed on due discussion and consideration, and
deliberately sanctioned by reviews and repetitions ." Letter from James Madison to
Charles Jared Inggersoll (June 25, 1831), reprinted in Marvin Meyers, The Mind of the
Founder : Sources of the Political Thought of James Madison 391 (1981) (emphasis
added) . However, Madison did not claim that an individual decision, i .e . , one not
sanctioned by reviews and repetitions, was binding on subsequent judges. Healy,
supra, at 87.
James Kent's views on stare decisis were similar to those of Madison . Lee,
supra , at 665-66 . Influenced by the declaratory theory of the law, he wrote that: "A
solemn decision upon a point of law, arising in any given case becomes an authority in
a like case, because it is the highest evidence which we can have of the law applicable
- 1 5-
to the subject ." Id. at 666 (quoting 1 James Kent, Commentaries on American Law 475
(O. W. Holmes, Jr. ed., 12th ed ., Boston, Little, Brown, & Co. 1896)) . "The founding-era
doctrine of precedent thus was in an uneasy state of internal conflict." Id.
However, "[t]he American commitment to stare decisis gradually strengthened
during the nineteenth century, due mainly to the emergence of reliable law reports and a
positivist conception of law." Healy, supra, at 87. Legal positivists "conceived of the
common law in terms of judge-made law, not as mere evidence of the law's content."
Southwick, su ra, at 253. Logically, "prior decisions were conceived of as positive law
[that] carried the force of law," and, thus, "[p]Ositivism . . . laid the foundations for
binding precedent." Id. at 253-54 . However :
American courts never adopted the nineteenth century English rule that
precedents are absolutely binding in all circumstances . They instead
reserved the right to overrule decisions that were absurd or egregiously
incorrect. However, during the "formative period of the doctrine . . . from
1800 to 1850," they accepted that prior decisions were presumptively
binding and that mere disagreement alone is not sufficient to justify
departure from the past.
Healy, supra , at 88 (emphasis added) (footnotes omitted) (quoting Kempin, supra , at
50). Thus, by around 1850, "the foundation for binding precedent in America was
complete, and the law persistently moved in that direction thereafter." Southwick,
supra, at 274.
The United States Supreme Court gives heed to the doctrine of stare decisis
even when individual Justices may disagree with precedent. Caleb Nelson, Stare
Decisis and Demonstrably Erroneous Precedents , 87 Va. L. Rev. 1, 2-3 (2001).
[Staare decisis [is] the means by which we ensure that the law will not
merely change erratically, but will develop in a principled and intelligible
fashion . That doctrine permits society to presume that bedrock principles
are founded in the law rather than in the proclivities of individuals, and
thereby contributes to the integrity of our constitutional system of
government, both in appearance and in fact.
- 1 6-
Vasguez v. Hillery , 474 U .S . 254, 265-66,106 S.Ct. 617, 624, 88 L.Ed.2d 598 (1986).
See also Mathews v. United States, 485 U.S . 58, 66-67, 108 S .Ct . 883, 888-89, 99
L.Ed.2d 54 (1988) (Brennan, J., concurring) ("I write separately only because I have
previously joined or written four opinions dissenting from this Court's holdings that the
defendant's predisposition is relevant to the entrapment defense . . . . Were I judging on
a clean slate, I would still be inclined to adopt the view that the entrapment defense
should focus exclusively on the Government's conduct. But I am not writing on a clean
slate; the Court has spoken definitively on this point. Therefore, I bow to stare decisis
. . . ."); Scott v. Illinois , 440 U .S. 367, 374-75, 99 S.Ct. 1158, 1162, 59 L .Ed .2d 383
(1979) (Powell, J ., concurring) ("Despite my continuing reservations about the
ALgersinger rule, it was approved by the Court in the 1972 opinion and four Justices
have reaffirmed it today . It is important that this Court provide clear guidance to the
hundreds of courts across the country that confront this problem daily. Accordingly, and
mindful of stare decisis , I join the opinion of the Court.") .
In the United States, "stare decisis is generally understood to mean that
precedent is presumptively binding. In other words, courts cannot depart from previous
decisions simply because they disagree with them ." Healy, supra at 52 (emphasis
added) ; see also Nelson, su ra, at 8 ("The doctrine of stare decisis would indeed be no
doctrine at all if courts were free to overrule a past decision simply because they would
have reached a different decision as an original matter ." (Emphasis added.)) . However,
judges may "disregard precedent if they offer some special justification for doing so."
Healy, supra, at 52 ; see also, Dickerson v. United States , 530 U .S. 428, 443-44, 120
S.Ct. 2326, 2336, 147 L.Ed.2d 405 (2000) ("The meaning of Miranda has become
reasonably clear and law enforcement practices have adjusted to its strictures . .
-17-
While stare decisis is not an inexorable command, . . . the doctrine carries such
persuasive force that we have always required a departure from precedent to be
supported by some special justification ." (Citations and quotations omitted .)) ; Hubbard
v. United States, 514 U .S . 695, 716, 115 S.Ct. 1754, 1765, 131 L .Ed.2d 779 (1995)
(Scalia, J., concurring) (stating that the decision to overrule must be supported by
"reasons that go beyond mere demonstration that the overruled opinion was wrong
(otherwise the doctrine would be no doctrine at all)") ; Planned Parenthood v . Casey ,
505 U.S . 833, 864, 112 S.Ct. 2791, 2814, 120 L.Ed.2d 674 (1992) (O'Connor, Kennedy,
and Souter, JJ ., plurality opinion) (stating that "a decision to overrule should rest on
some special reason over and above the belief that a prior case was wrongly decided") .
The Supreme Court accepts stare decisis in great part for prudential reasons: it
promotes judicial economy, stability, and legitimacy . Lee, supra , at 652; Southwick,
supra , at 212-13 ; cf. Payne v. Tennessee , 501 U.S . 808, 827, 111 S.Ct. 2597, 2609,
115 L .Ed .2d 720 (1991) ("Stare decisis is the preferred course because it promotes the
evenhanded, predictable, and consistent development of legal principles, fosters
reliance on judicial decisions, and contributes to the actual and perceived integrity of the
judicial process .").
[T]he labor of judges would be increased almost to the breaking point if
every past decision could be reopened in every case, and one could not
lay one's own course of bricks on the secure foundation of the courses laid
by others who had gone before him .
Benjamin Cardozo, The Nature of the Judicial Process 149 (1921) . A general rule of
adherence to precedent "expedites the work of the courts by preventing the constant
reconsideration of settled questions ." Robert yon Moschzisker, Stare Decisis in Courts
of Last Resort, 37 Harv. L. Rev. 409, 410 (1924) .
- 1 8-
[T]he Court has sometimes suggested that the goal of stability
encompasses reliance interests that extend beyond the commercial
context, including the preservation of "the psychologic need to satisfy
reasonable expectations," or even the retention of governmental action
undertaken in reliance on precedent.
Stare decisis is also thought to preserve the Court's legitimacy . . . .
[S]tare decisis contributes to the integrity of our constitutional system of
government, both in appearance and in fact, by preserving the
presumption that bedrock principles are founded in the law rather than in
the proclivities of individuals .
Lee, supra, at 653 (quotations and footnotes omitted) ; see also Moragne v. States
Marine Lines. Inc. , 398 U .S . 375, 403, 90 S.Ct. 1772, 1789, 26 L.Ed .2d 339 (1970)
("Very weighty considerations underlie the principle that courts should not lightly
overrule past decisions . Among these are the desirability that the law furnish a clear
guide for the conduct of individuals, to enable them to plan their affairs with assurance
against untoward surprise ; the importance of furthering fair and expeditious adjudication
by eliminating the need to relitigate every relevant proposition in every case ; and the
necessity of maintaining public faith in the judiciary as a source of impersonal and
reasoned judgments .").
C. Deference to Statutory Construction Precedents .
One of the "most basic question[s] that any system of precedent must answer is
whether a prior decision is entitled to deference when it is later thought to be in error."
Lee, supra, at 654. The answer often depends on the statutory or constitutional nature
of the decision . Lawrence C . Marshall, "Let Congress Do It" : The Case for an Absolute
Rule of Statutory Stare Decisis, 88 Mich . L. Rev. 177, 181 (1989) ; see also Harmelin v.
Michigan , 501 U.S . 957, 965, 111 S .Ct. 2680, 2686, 115 L .Ed .2d 836 (1991) ("We have
long recognized, of course, that the doctrine of stare decisis is less rigid in its
application to constitutional precedents . . . .") ; Glidden Co. v. Zdanok, 370 U.S . 530,
- 1 9-
543, 82 S .Ct. 1459, 1469, 8 L.Ed.2d 671 (1962) (noting "this Court's considered practice
not to apply stare decisis as rigidly in constitutional as in nonconstitutional cases") . The
United States Supreme Court gives "great weight to stare decisis in the area of statutory
construction," Neal v. United States , 516 U .S. 284, 295, 116 S.Ct. 763, 768-69, 133
L.Ed .2d 709 (1996) ("Once we have determined a statute's meaning, we adhere to our
ruling under the doctrine of stare decisis . . . ."), and holds that the doctrine "is at its
weakest when [it] interpret[s] the Constitution because our interpretation can be altered
only by constitutional amendment or by overruling our prior decisions ." Agostini v.
Felton , 521 U .S. 203, 235, 117 S.Ct. 1997, 2016, 138 L.Ed.2d 391 (1997).
The U .S . Supreme Court views statutory precedent as "per se entitled to great
weight ." Lee, su ra, at 732 (citing Johnson v. Transp . Agency, 480 U .S . 616, 629 n.7,
107 S.Ct. 1442, 1450 n .7, 94 L.Ed .2d 615 (1987) ; Toolson v. New York Yankees, Inc. ,
346 U .S. 356, 357, 74 S.Ct. 78, 79, 98 L.Ed. 64 (1953) (per curiam)) . Indeed, "[i]n no
less significant a case than Erie Railroad v. Tompkins [304 U .S . 64, 58 S .Ct . 817, 82
L. Ed. 1188 (1938)], the Court indicated that it would have been unwilling to overrule
Swift v. Tyson [41 U.S. 1 (1842)], 'if only a question of statutory construction were
involved ."' Marshall, supra , at 181 (footnotes omitted) (quoting Erie R.R., 304 U.S. at
77, 58 S.Ct. at 822) . "Because 'Congress, not th[e] Court, has the responsibility for
revising its statutes,' the Rehnquist Court has often expressed a heightened reluctance
to overturn statutory precedent." Lee, supra , at 705 (quoting Neal , 516 U .S. at 296, 116
S .Ct. at 769). Other modern U.S. Supreme Court cases evidencing the Court's
deference to statutory precedents include Square D. Co. v. Niagara Frontier Tariff
Bureau . Inc . , 476 U .S. 409, 424,106 S.Ct. 1922, 1931, 90 L.Ed.2d 413 (1986) ; NLRB v.
International Longshoremen's Ass'n , 473 U .S . 61, 84, 105 S.Ct. 3045, 3058, 87 L. Ed.2d
- 20-
47 (1985) ; Illinois Brick Co. v. Illinois , 431 U.S . 720, 736, 97 S.Ct. 2061, 2070. 52
L. Ed.2d 707 (1977); and Edelman v. Jordan, 415 U.S. 651, 671, 94 S.Ct. 1347, 135960, 39 L.Ed.2d 662 (1974) . See also Allied-Bruce Terminix Cos . v. Dobson , 513 U .S.
265, 283-84,115 S.Ct . 834, 844,130 L.Ed .2d 753 (1995) (O'Connor, J ., concurring)
(reiterating her view that the majority had been wrong in deciding the same issue in a
previous case but joining the majority in this case "because there is no 'special
justification' to overrule [it]" (quoting Arizona v. Rumsev , 467 U.S . 203, 212, 104 S.Ct.
2305, 2310-11, 81 L.Ed.2d 164 (1984))) ; Patterson v. McLean Credit Union, 491 U .S.
164,173-74,109 S .Ct. 2363, 2370-71,105 L.Ed .2d 132 (1989) .
This very case exemplifies why courts give heightened deference to statutory
construction as opposed to constitutional construction . This Court rendered Kotila,
construing former KRS 218A.1432(1)(b), in June 2003. Two years later, the General
Assembly, whose job it is to make the laws, amended the statute, exactly as envisioned
by the U .S. Supreme Court in Neal . 516 U .S. at 296, 116 S.Ct. at 769 ("Congress, not
th[e] Court, has the responsibility for revising its statutes .") . Today, however, with no
"special justification" to do so, Rumsev, 467 U .S. at 212, 104 S .Ct. at 2310-11, the
majority of this Court revises our construction of former KRS 218A.1432(1)(b) and
retroactively applies that construction to Appellant - in direct contradiction of the
doctrine of stare decisis .
D . Stare Decisis in Kentuckv.
Kentucky is generally recognized as one of the earliest of the individual states to
adopt the doctrine of stare decisis . See Kempin, supra , at 46-47; Southwick, supra, at
263; Nelson, supra, at 68 n .224.
- 21 -
[W]hatever might be the opinion of the court, was the question new, this
court can not depart from the former adjudications and conceives the
matter ought to be at rest.
It has been often said, that it is not so important that the law should
be rightly settled, as that it should remain stable after it is settled. This is
true, for attempts to change the course of judicial decision, under the
pretext of correcting error, are like experiments by the quack on the
human body. They constantly harass and often jeopardize it.
South's Heirs v. Thomas' Heirs, 23 Ky. (7 T.B. Mon.) 59, 62-63 (1828) . Less than three
months later, our predecessor court further expounded on the importance of stability in
the law, viz :
If we were convinced that on this point the law was settled wrong
originally, we should not feel ourselves at liberty to depart from it; aware,
that it is of greater importance to society, that the rule should be uniform
and stable, than that it should be the best possible rule that could be
adopted . In the supreme court of a state, as this is, possessing, with but
few exceptions, appellate judicial power co-extensive with the state, the
influence which its decisions must have, is evident. Its mandates are
conclusive, and even its dicta are attended to in all the inferior courts . No
sooner is a decision published, than it operates as a pattern and standard
in all other tribunals, and a[s] a matter of course, all other decisions
conform to it. If in this court, a settled course of adjudication is overturned,
then the trouble and confusion of reversing former causes succeeds in the
inferior tribunals ; and even the credit and respect due to this court is
shaken, by the phenomenon that A has lost his cause on the same ground
that B gains his. And not only do these consequences follow, but some
still more serious may ensue. For perhaps no court may strike the vitals of
society with a deeper wound than a capricious departure in this court from
one of its established adjudications . We ought, therefore, to be cautious
not to leave a course well understood ; and nothing but the imperious
demands of justice could justify it. Here there is no such demand upon us.
Tribble v . Taul , 23 Ky.. (7 T.B. Mon .) 455, 456-57 (1828) (emphasis added) .
There is a substantial body of case law in Kentucky following that rule. Here (in
chronological order) are a few of our most significant cases decided since Tribble :
Morgan's Heirs v . Parker, 31 Ky. (1 Dana) 444, 444 (1833) ("This court having,
by two decisions, settled the identity of an object called for in an entry, will, in
subsequent cases, upon the same evidence, adhere to the former decisions - though
-22-
the opposing evidence may seem to the present judges to preponderate .") ; Blankenship
v. Bartleston & Co. , 6 Ky. Op. 158, 158 (1872) ("It is better that the law should remain
permanent so far as judicial action is concerned, although settled originally upon
doubtful principles, than that it should be subject to constant fluctuations according to
the views and opinions which might be entertained by the court as constituted, at the
time the same question might at some subsequent time arise .") ; Commonwealth v.
Louisville Gas Co. , 135 Ky. 324,122 S.W. 164,166 (1909) ("Had we doubt of the
correctness of that construction, we should not feel at liberty to depart from it after it has
been 'so long and definitely settled, and the business of the state has become adapted
to it."); Jackson's Adm'r v. Asher Coal Co . , 153 Ky. 547, 156 S.W. 136, 137 (1913)
("When a statute is fairly open to two constructions, either one of which will carry out its
purpose, and this court, upon full consideration, adopts one of these constructions, it
should be adhered to, especially when, as in this instance, it has become a settled part
of the law.") ; M cCormack v. Louisville & Nashville R .R., 156 Ky. 465,161 S .W. 518, 520
(1913) ("in Cooley's Constitutional Limitations it is said that, when a rule has been once
deliberately adopted and declared, it ought not to be disturbed unless by a court of
appeal or review, and never by the same court, except for very urgent reasons, and
upon a clear manifestation of error; and that if the practice were otherwise, it would be
leaving us in a perplexed uncertainty as to the law. Upon the principle of stare decisis,
the decisions which have been rendered by a court will be adhered to by such court in
subsequent cases, unless there is something manifestly erroneous therein, or the rule
or principle of law established by such decisions has been changed by legislative
enactment ." (Citations omitted .)).
See also Herndon v. Brawner , 180 Ky. 807, 203 S.W. 727, 729 (1918) ("[U]nder
the doctrine of stare decisis we should not now depart from that [statutory] construction,
for after all the completed statute is the construction given to it by the highest court
within the jurisdiction where it prevails . . . . . ); Bd. of Comm'rs v. Ky. Utils . Co. , 267 Ky.
99, 101 S.W.2d 414, 416 (1936) ("It is our duty to consider the ordinances antedating
that of 1935 as we interpreted them in those cases, and not as if they were now
presented to us for the first time.") ; Daniel's Adm'r v. Hoofnel , 287 Ky. 834, 155 S.W.2d
469, 471 (1941) ("Regardless of what the views of the court as now constituted may be
as to the soundness of the construction originally given the Constitution in
Commonwealth v. Haly, supra, we are of the opinion that the construction should be
adhered to under the doctrine of stare decisis . The maxim or phrase is: 'Stare decisis et
non quiet mover,' to stand by precedents and not disturb settled points. This
wholesome rule is not inflexible or so imperative as to require perpetration of error, but
departure from the policy it declares can be justified only upon substantial grounds .") ;
City of Louisville v. Presb. Orphans Home Soc'y of Louisville , 299 Ky. 566,186 S .W.2d
194, 199 (1945) ("[Stare decisis] is a judicial creation and within judicial control, but it
serves a necessary purpose, stabilization of the law, and should not be abandoned or
substantially impaired . Its salutary effect as a stabilizing influence on the law must be
preserved ."); Commonwealth v. Blair, 592 S.W.2d 132,133 (Ky. 1979) ("Judicial
consistency must be observed in order to maintain a responsible and efficient court
system .") .
See also Corbin Motor Lodge v. Combs, 740 S .W.2d 944, 946 (Ky. 1987)
("Unless the need to change the law is compelling, the majority of this court is of the
opinion that stability in the law is of sufficient importance to require that we not overturn
- 24-
established precedent which itself is based upon a reasonable premise ."); Schillin~v .
Schoenle, 782 S.W .2d 630, 633 (Ky. 1990) ("Appellate courts should follow established
precedent unless there is a compelling and urgent reason to depart therefrom which
destroys or completely overshadows the policy or purpose established by the
precedent.") ; Yeoman v. Commonwealth, Health Policy Bd . , 983 S.W.2d 459, 469 (Ky.
1998) ("Unlike some jurisdictions, stare decisis has real meaning to this Court. Given
the fact that Smith was decided in 1994, we can find no reason that is adequate to
overcome the burden imposed by stare decisis. . . . Since the issue was resolved so
recently by this Court in Smith, we find no compelling reason to suddenly change our
decision in this matter."); Kv. Dept. of Corr . v. McCullough , 123 S .W .3d 130, 141 (Ky.
2003) (Cooper, J. (joined by Graves, J.), concurring) ("Despite my continuing belief that
Department of Corrections v. Furr, Ky. ; 23 S .W .3d 615 (2000), was wrongly decided,
four Justices (including one who joined my dissent in Furr) have reaffirmed it today,
albeit sub silentio. Accordingly, and mindful of stare decisis , I join the opinion of the
Court . . . .").
We have recognized exceptions to the rule of stare decisis when "a question . . .
has been passed upon on a single occasion," so that the "decision can in no just sense
be said to have been acquiesced in," Montgomery County Fiscal Ct. v. Trimble , 47 S.W.
773, 776 (Ky. 1898) (overruling Belknap v. City of Louisville, 99 Ky. 474, 36 S .W. 1118
(1896)), or to have been "deliberately sanctioned by review and repetition," Letter from
James Madison to Charles Jared In, ersoll , su ra. See also Morrow v. Commonwealth ,
77 S .W.3d 558, 559-60 (Ky. 2002) (overruling Gray v. Commonwealth , 979 S.W.2d 454
(Ky. 1998) ; Thomas v. Commonwealth , 864 S.W .2d 252, 260 (Ky. 1993) (abrogating
Dunbar v. Commonwealth, 809 S.W.2d 852 (Ky. 1991)) .4 We have also departed from
the principle of stare decisis when, because of the passage of time and changes in
societal norms, the previous rule is no longer supportable . D & W Auto Supply v. Dept
of Revenue , 602 S.W.2d 420, 424 (Ky. 1980) ; see also Bentley v. Bentley , 172 S .W .3d
375, 378 (Ky. 2005) (advent and prevalence of liability insurance removed justification
for doctrine of parental immunity) ; Hilen v. Hays, 673 S .W.2d 713, 717 (Ky. 1984)
(following majority of states in adopting the more equitable comparative negligence
doctrine in place of rule that contributory negligence is a complete bar to recovery) .
Neither of those exceptions exists here . Nor was the construction that Kotila
placed on the 1998 version of KRS 218A.1432(1)(b) "wholly illogical and entirely
unsupported by reason," Stoll Oil Ref. Co. v. State Tax Comm'n, 221 Ky. 29, 296 S.W.
351, 352 (1927), or "manifestly erroneous," McCormack , 161 S .W. at 520. In fact, it
4
The string-cite in Justice Graves's concurring opinion of cases in which we have
overruled prior precedent, ante , at
(slip op. at 3), supports this principle, as none of
those cases overruled an aspect of a prior case that had been relied upon in the holding
of an intervening decision . See Stopher v. Conliffe, 170 S.W.3d 307, 310 (Ky. 2005)
(purporting to overrule in part Foley v. Commonwealth , 17 S .W.3d 878 (Ky. 2000),
though misconstruing the holding in Foley) ; Fletcher v. Commonwealth , 163 S.W.3d
852, 871 (Ky.' 2005) (overruling Miller v. Quertermous , 304 Ky. 733, 101 S.W.2d 389
(1947), which was also a constitutional precedent, not a statutory precedent, thus
entitled to less deference under stare decisis) ; Matthews v. Commonwealth , 163
S .W.3d 11, 26-27 (Ky. 2005) (overruling in part Young v. Commonwealth , 968 S.W.2d
670 (Ky. 1998)) ; Commonwealth v. Mobley , 160 S .W.3d 783, 787 (Ky. 2005) (overruling
in part Mash v. Commonwealth , 769 S.W.2d 42 (Ky. 1989)) ; St. Clair v. Commonwealth ,
140 S.W.3d 510, 532, 570 (Ky. 2004) (overruling Schweinefuss v. Commonwealth , 395
S.W.2d 370 (Ky. 1965), and overruling in part Thompson v. Commonwealth , 862
S.W.2d 871 (Ky. 1993) (previously cited only in dictum in Hodge v. Commonwealth , 17
S.W .3d 824, 852 (Ky. 2000))) ; Hampton v. Commonwealth , 133 S.W .3d 438, 442 (Ky.
2004) (overruling Commonwealth v. Hillebrand , 536 S.W .2d 451 (Ky. 1976), insofar as it
incorrectly interpreted Ashe v. Swenson , 397 U .S. 436, 90 S .Ct. 1189, 25 L.Ed .2d 469
(1970) ( Hillebrand cited only in dictum in Ignatow v. Ryan, 40 S .W.3d 861, 864 (Ky.
2001), and Benton v . Crittenden, 14 S.W.3d 1, 5 (Ky. 1999))) ; Rapier v. Philpot , 130
S .W .3d 560, 564 (Ky. 2004) (overruling in part Swatzell v. Commonwealth , 962 S.W.2d
866 (Ky. 1998)) ;cf. Regenstreif v. Phelps, 142 S.W.3d 1, 2 (Ky. 2004) (overruling Bass
v. Williams , 839 S .W.2d 559 (Ky. App. 1992)) ; Messer v. Messer, 134 S.W .3d 570, 573
(Ky. 2004) (overruling John v. John, 893 S.W.2d 373 (Ky. App. 1995)) .
- 2 6-
was supported by basic principles of statutory construction and an elementary principle
of English grammar . Finally, there is no "compelling and urgent reason" to depart from
that construction. Schilling,, 782 S.W .2d at 633 . Lower courts and law enforcement
agencies have adjusted to it, Dickerson v. United States , 530 U .S . at 443, 120 S.Ct. at
2336 ; prosecutors and defendants have implemented plea agreements in reliance upon
it ; and trial courts have instructed juries in accordance with it.
E. Conclusion .
The ancient doctrine of stare decisis , coupled with the related doctrines of res
9ud~
icata and collateral estoppel, ensure that we are governed by the rule of law, not
men. Vazguez v. Hillary , 474 U .S. 254. 265-66 . 106 S.Ct. 617, 624, 88 L.Ed.2d 598
(1986) ("[Stare Decisisl permits society to presume that bedrock principles are founded
in the law rather than in the proclivities of individuals, and thereby contributes to the
integrity of our constitutional system of government, both in appearance and in fact.");
Welch v. Tex . Dept. of Hwvs & Public Transp ., 483 U .S. 468, 494,107 S.Ct. 2941,
2957, 97 L.Ed .2d 389 (1987) ("[T]he doctrine of stare decisis is of fundamental
importance to the rule of law.") ; see also Harris v. United States , 536 U .S . 545, 556, 122
S .Ct. 2406, 2414, 153 L.Ed.2d 524 (2002) (same). This Court as newly constituted now
holds Jeffrey Matheney guilty of a Class B felony under the same statute and facts for
which others similarly situated have been found guilty only of a Class A misdemeanor or
a Class D felony . In my view, subjecting Appellant to a higher penalty ceiling than other
similarly-situated defendants who committed the same conduct, merely because a
change in the membership of this Court occurred before his appeal became final, has
Fourteenth Amendment implications . Cf. Williams v. Illinois , 399 U.S. 235, 244, 90
S.Ct. 2018, 2023-24, 26 L.Ed.2d 586 (1970) ("[T]he Equal Protection Clause of the
-27-
Fourteenth Amendment requires that the statutory ceiling placed on imprisonment for
any substantive offense be the same for all defendants irrespective of their economic
status .") . It is also as true today as it was in 1828 that "the credit and respect due to
this court is shaken, by the phenomenon that A has lost his cause on the same ground
that B gains his." Tribble , 23 Ky. (7 T.B. Mon.) at 456.
It is particularly ironic that today's majority opinion is authored by one who
strongly criticized this Court for straying from what he perceived to be the rule of law,
which he argued was embodied in the United States Supreme Court's decision in
Bowers v. Hardwick, 478 U.S. 186,106 S.Ct. 2841, 92 L.Ed .2d 140 (1986), overruled
by Lawrence v. Texas, 539 U.S . 558, 578,123 S.Ct. 2472, 2483, 156 L.Ed .2d 508
(2003). John C . Roach, Rule of Men, 81 Ky. L.J. 483, 484 (1992-93) .
[N]o matter how little authority, how little precedent, and how little textual
constitutional support exists, certain justices on the Kentucky Supreme
Court are willing to usurp the rule of law, as enacted by Kentucky's duly
elected legislators and as embodied by the framers in the Kentucky
Constitution, in order to effect any result that seems correct to the justices
despite rational and undeniable proof to the contrary .
Id. at 483 .
[T]here is not much left of the Kentucky Constitution and honest judicial
interpretation in Kentucky. Four men have decided to usurp the rule of
law and have substituted for it their "reasoned judgment" despite
overwhelming evidence against their conclusion . One can only wonder
what the reign of this "rule of men" has in store.
Id. at 510. Yes, one can only wonder.
111. VOID FOR VAGUENESS .
In addition to ignoring basic principles of statutory interpretation and the central
importance of stare decisis in the rule of law, the majority construes former KRS
218A .1432(1)(b) in a manner that renders it unconstitutionally vague . To satisfy the
- 28-
void-for-vagueness doctrine, a criminal statute must define an offense with sufficient
clarity that persons of ordinary intelligence "can understand what conduct is prohibited
and in a manner that does not encourage arbitrary and discriminatory enforcement ."
Kolender v. Lawson , 461 U.S. 352, 357-58, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903
(1983) ; Vill. of Hoffman Estates v. Fligside, Hoffman Estates, Inc . , 455 U.S . 489, 498,
102 S.Ct. 1186, 1193, 71 L.Ed.2d 362 (1982) ; Smith v. Goguen , 415 U .S. 566, 572-73,
94 S .Ct. 1242, 1246-47, 39 L.Ed .2d 605 (1974); Grayned v. City of Rockford , 408 U .S.
104, 108-09, 92 S .Ct. 2294, 2298-99, 33 L.Ed .2d 222 (1972) ; Papachristou v. City of
Jacksonville , 405 U .S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972); Connally v.
Gen. Constr. Co. , 269 U .S. 385, 391, 46 S .Ct. 126, 127, 70 L.Ed . 322 (1926); State Bd.
for Elem. and Secondary Educ. v. Howard , 834 S .W .2d 657, 662 (Ky. 1992) ; Wilfong v .
Commonwealth , 175 S.W.3d 84, 95-96 (Ky. App. 2004) . "The 'void for vagueness'
doctrine, therefore, attempts to ensure fairness by requiring an enactment to provide :
(1) 'fair notice' to persons and entities subject to it regarding what conduct it prohibits ;
and (2) sufficient standards to those charged with enforcing it so as to avoid arbitrary
and discriminatory application ." Lexington Fayette County Food & Bev. Ass'n v.
Lexington -Fayette Urban County Govt, 131 S .W.3d 745, 754 (Ky. 2004) . See also
Martin v. Commonwealth , 96 S .W .3d 38, 59 (Ky. 2003). Though both inquiries are
important, "the more important aspect of the vagueness doctrine is not actual notice, but
. . . the requirement that a legislature establish minimal guidelines to govern law
enforcement ." Kolender , 461 U .S. at 358, 103 S.Ct. at 1858 (citation and quotation
omitted) .
One of the claims made in Kotila was that the trial court's statutory interpretation
of "the chemicals or equipment" to mean "any two or more of the chemicals or
- 29-
equipment" (the interpretation adopted by today's majority opinion) rendered the statute
"void for vagueness" because it purported to criminalize the possession of ordinary
household items that could be purchased at any department store . 114 S .W.3d at 249.
Kotila held that the constitutional challenge was defeated by the statutory construction
that "the chemicals or equipment" means "all of the chemicals or equipment ."
As we noted in Commonwealth v. Hayward , supra , "there is no reason
other than the manufacture of methamphetamine for having a combination
of pseudoephedrine, lye, rock salt, iodine crystals, red phosphorus,
toluene, sulfuric acid, and hydrochloric acid in one place ." 49 S.W.3d at
676. The same is true with respect to the chemicals and equipment
necessary to manufacture methamphetamine by the ephedrine reduction
method. . . .
. . . (Tlhe requirement that the defendant possess all of the
chemicals or all of the equipment constituting the right combination
virtually eliminates the possibility of arbitrary or subjective enforcement.
Finally, . . . the additional requirement that the possession be with the
intent to manufacture methamphetamine cures any uncertainty as to the
nature of the conduct proscribed . We conclude that KRS 218A.1432(1)(b)
is not unconstitutionally vague.
Id . at 249 (emphasis added) . The improbability of possession of the exact combination
of chemicals or equipment necessary to manufacture methamphetamine is heightened
by the fact that at least one necessary chemical (anhydrous ammonia) and at least one
necessary item of equipment (storage container for anhydrous ammonia, often a
modified propane tank) are not ordinary household items .
The majority opinion concludes that the statute's intent requirement alone
satisfies the vagueness doctrine . Ante , at
(slip op. at 7). While the intent
requirement does satisfy the "notice" inquiry by curing any uncertainty in the mind of the
defendant as to the nature of the conduct proscribed, Kotila, 114 S.W.3d at 249, the
majority's conclusion that the intent requirement overcomes the vagueness challenge
because it "makes certain what conduct is proscribed," ante , at
- 30-
(slip op. at 7),
completely ignores the more important inquiry into whether the statute encourages
arbitrary and discriminatory enforcement .
Where . . . there are no standardsgoverning the exercise of the discretion
granted by the ordinance, the scheme permits and encourages arbitrary
and discriminatory enforcement of the law. It furnishes a convenient tool
for "harsh and discriminatory enforcement by local prosecuting officials,
against particular groups deemed to merit their displeasure ."
Papachristou , 405 U .S . at 170, 92 S.Ct. at 847 (emphasis added) (quoting Thornhill v.
Alabama , 310 U.S. 88, 97-98, 60 S .Ct. 736, 742, 84 L. Ed . 1093 (1940)) . A statute
"confers on police a virtually unrestrained power to arrest and charge persons with a
violation [if it] . . . fails to establish standards by which the officers may determine
whether the suspect has complied " with its proscription . Kolender, 461 U.S . at 360-61,
103 S.Ct. at 1860 (emphasis added) (citations and quotations omitted) .
The purpose of the second inquiry of the vagueness doctrine is to establish
minimal guidelines to preclude subjective and discretionary enforcement by law
enforcement officers. City of Chicago v. Morales, 527 U.S . 41, 61-62, 119 S.Ct. 1849,
1861-62, 144 L.Ed .2d 67 (1999) . To hold that an intent requirement governing the
conduct of the accused is a standard limiting the exercise of an arresting officer's
discretion is pure sophistry, for the discretion is not exercised by the party upon whom
the intent requirement is imposed . Holding that the intent requirement alone resolves
the vagueness issue is especially disingenuous in light of the consistent holdings of this
Court that the element of intent in a criminal case can be proven by mere inference from
the prohibited conduct, itself . Stopher v. Commonwealth , 57 S.W.3d 787, 802 (Ky.
2001) ("[I]ntent may be inferred from actions because a person is presumed to intend
the logical and probable consequences of his conduct, and a person's state of mind
may be inferred from actions preceding and following the charged offense ."); Hudson v.
- 3 1-
Commonwealth , 979 S .W .2d 106, 110 (Ky. 1998) ; Parker v. Commonwealth , 952
S.W.2d 209, 212 (Ky. 1997) . We have held that an inquiry into intent is "a subjective
matter," Hudson , 979 S.W .2d at 110, and that "neither the inference nor the
presumption of intent [is] mandatory ." Id. This standard requires no additional factual
showing beyond the conduct from which the inference arises, a very low threshold
indeed. Under the majority's construction, the statutory requirement of intent to
manufacture methamphetamine may be inferred from mere possession of two or more
of the chemicals or items of equipment necessary to do so .
Here, Appellant possessed Sudafed tablets, a gallon of drain cleaner, and three
cans of starter fluid . Under the majority's construction of KRS 218A.1432(1)(b), the
Commonwealth need prove nothing more to establish guilt. Although Appellant
possessed a large quantity of Sudafed, one box would have sufficed under the
majority's analysis . In fact, under that analysis, Appellant could have been convicted
under KRS 218A.1432(1)(b) for possessing only the drain cleaner and the starter fluid.
Because this threshold is so low, and the conduct from which intent may be inferred
(possession of common household products) is so universal, the potential for arbitrary
and discriminatory enforcement by law enforcement officers, prosecutors, or even juries
is readily apparent . "[The void-for-vagueness doctrine] requires legislatures to set
reasonably clear guidelines for law enforcement officials and triers of fact in order to
prevent 'arbitrary and discriminatory enforcement."' Go uen, 415 U.S. at 572-73, 94
S .Ct. at 1247 (emphasis added) . A criminal statute may not "permit a standardless
sweep [that] allows policemen, prosecutors, and juries to pursue their personal
predilections ." Id. at 575, 94 S.Ct. at 1248 (emphasis added) .
As for the chemicals prong of KRS 218A.1432(1)(b), possession of any two
among ether (e.g_, starter fluid), sulfuric acid (p ._q. , drain cleaner), salt, denatured
alcohol (e.g_, camping fuel), methanol (e .g., antifreeze), a lithium battery, or
antihistamine tablets, Fulcher v. Commonwealth , 149 S .W .3d 363, 368-69 (Ky. 2004),
accompanied by an inference of intent from such mere possession, is grounds for arrest
and conviction under the majority's construction of the statute . Anyone who has ever
driven a carbureted vehicle (often requiring starter fluid) while carrying a cell phone
(likely powered by a lithium battery) possessed items sufficient to sustain probable
cause for an arrest under this construction . Likewise, anyone who has ever gone
camping (salt and camping fuel), or done mechanical work in an open garage (starter
fluid, antifreeze, and/or driveway salt), has provided probable cause for an arrest.
If the chemicals are not common enough for concern, the majority's construction
of KRS 218A .1432(1)(b) also permits arrest and conviction for possession of any two of
the following items of "equipment" (creating, of course, the requisite inference of intent) :
coffee filters, cotton balls, a heat-resistant bowl (e.g., Pyrex or Corningware), a non
metallic stirring tool, a glass jar, nearly any type of plastic vessel (e a gas container,
.,
.g
plastic ketchup bottle, or dishwashing detergent bottle), a plastic funnel, plastic tubing or
rubber hose, or pliers . Fulcher , 149 S .W.3d at 368-69 . For the unimaginative, a few
household functions that would satisfy possession of the two-or-more pieces of
"equipment" requirement : operating a coffee maker (filters and a heat resistant coffee
pot) ; maintaining a recycling bin (empty ketchup bottle and a glass jar) ; baking cookies
(wooden spoon and plastic mixing bowl); cleaning an aquarium (rubber hosing and a
5 Lithium batteries may be used to power infinite household electronics, from laptop
computers to camcorders to cell phones to DVD players. See , e
.,
.g
http ://www.zapworld .com .
- 33-
plastic bucket) ; pickling vegetables (glass jar and a plastic funnel) . "The statute does
not require that the equipment was actually used to manufacture methamphetamine but
only that it could be so used ." Varble v . Commonwealth , 125 S.W.3d 246, 254 (Ky.
2004).
Additionally, possession may be proven by circumstantial evidence. Id. (holding
requirement of possession of precursor satisfied by defendant's possession of empty
Sudafed "blister packs" and possession of anhydrous ammonia satisfied by odor of
ammonia emanating from discolored air tank). See also United States v. Morrison , 207
F.3d 962, 966 (7th Cir. 2000) (odor of ammonia in cooler and evidence of recent
purchase of drain cleaner held sufficient) . Presumably, a sales receipt showing the
purchase of, e .g_, salt, a wooden spoon, or lithium batteries would suffice to prove both
possession and intent .
Proponents of this construction would aptly respond that no one would
reasonably infer intent from these aforementioned scenarios in which possession of two
chemicals or items of equipment is present . However, the "arbitrary enforcement"
,
prohibition of the vagueness doctrine is premised upon not only discouraging arbitrary
convictions but also upon discouraging "arbitrary and erratic arrests," Papachristou, 405
U .S. at 162, 92 S.Ct. at 843, i .e . , wrongful subjection to the inconvenience or
harassment of arrest, interrogation, and indictment based solely on the possession of
two or more universally-owned household products . Perhaps no reasonable juror would
convict on the basis of such evidence alone . But if the accused happens to be a
convicted felon - of any felony - he or she faces the compounded dilemma of choosing
whether to invoke the Fifth Amendment right against self-incrimination or explaining at
trial an innocent reason for possession of two universally-owned household items with
- 34-
an equally innocent intent to use them for a purpose other than the manufacture of
methamphetamine, but subjecting that testimony to impeachment by the introduction of
evidence of the prior conviction. KRE 609(a) . No doubt, a jury, however
inappropriately, could infer intent from possession plus either (a) the defendant's failure
to offer an innocent explanation, or (b) the defendant's status as a convicted felon.
Less than two years ago, we declared a provision of a no-smoking ordinance
void for vagueness because it prohibited the presence of "ashtrays and other smoking
paraphernalia" from no-smoking areas, without further defining "smoking
paraphernalia ." Lexington Fayette County Food & Bev. Ass'n , 131 S .W .3d at 753-56 .
Unlike the enactments at issue in Hoffman Estates and Posters 'N'
Things rv. United States , 511 U .S. 513,114 S.Ct. 1747, 128 L .Ed.2d 539
(1994)], Section 14-99(3) gives no guidance beyond the words "smoking
paraphernalia ." Although it is likely a fair assumption that the ordinance is
intended to require the covered entities to remove direct "smoking
paraphernalia" such as cigarettes and cigars, but not breath mints and air
freshener, "[I]ying between those extremes . . . is a vast middle ground
which is subject to characterization as lawful or unlawful in the discretion,"
Foley rv. Commonwealthl , supra [798 S.W.2d] at 950, of the enforcing
authorities . Because the entities subject to the ordinance have no means
to reasonably predict the scope of "smoking paraphernalia" that they must
remove, Section 14-99(3) is void-for-vagueness .
Id. at 756. In Hoffman Estates , the ordinance required a business to obtain a license if
it sold any items that were "designed or marketed for use with illegal cannabis or drugs,"
but was accompanied by . "[a] series of licensing guidelines . . . [that] define[d] 'Paper,'
'Roach Clips,'' Pipes,' and 'Paraphernalia ."' 455 U .S. at 492,102 S .Ct. at 1190 . The
Court found the ordinance "sufficiently clear," id. at 500, 102 S .Ct. at 1194, but noted
that "[w]e agree with the Court of Appeals that a regulation of 'paraphernalia' alone
would not provide much warning of the nature of the items regulated ." Id. at 500 n .17,
102 S .Ct. at 1194 n .17. In Posters 'N' Things, the Court considered a challenge to the
Mail Order Drug Paraphernalia Control Act, 21 U .S .C . § 857, which contained a lengthy
-35-
definition of drug paraphernalia, 511 U .S. at 517 n.6, 114 S .Ct. at 1750 n.6, similar to
that found in KRS 218A.500(1), which the Court found "establishe[d] objective
standards for determining what constitutes drug paraphernalia ." Id. at 518, 114 S .Ct. at
1750. Ironically, today's majority opinion cites only one case, State v. Leeson, 82 P.3d
16 (Mont. 2003), in support of its holding that its construction of KRS 218A.1432(1)(b)
does not render that statute void for vagueness . Yet, the statute construed in Leeson
described in minute detail the chemicals and equipment the possession of which was
proscribed :
Section 45-9-131, MCA, defines some of the terms used in § 45-9132, MCA (2001):
(2) "Equipment" or "laboratory equipment" means all products,
components, or materials of any kind when used, intended for use,
or designed for use in the manufacture, preparation, production,
compounding, conversion, or processing of a dangerous drug as
defined in 50-32-101 . Equipment or laboratory equipment includes
but is not limited to:
(a) a reaction vessel ;
(b) a separatory funnel or its equivalent;
(c) a glass condensor ;
(d) an analytical balance or scale; or
(e) a heating mantle or other heat source .
(3) "Precursor to dangerous drugs" means any material, compound,
mixture, or preparation that contains any combination of the items
listed in 45-9-107(1), except as exempted by 45-9-108 .
Section 45-9-107, MCA, provides a list of "precursors to dangerous
drugs," a term used in both §§ 45-9-131 and -132, MCA (2001) :
(1) A person commits the offense of criminal possession of
precursors to dangerous drugs if the person possesses any
material, compound, mixture, or preparation that contains any
combination of the following with intent to manufacture dangerous
drugs :
(a) phenyl-2-propanone (phenylacetone) ;
(b) piperidine in conjunction with cyclohexanone ;
(c) ephedrine;
(d) lead acetate;
(e) methylamine ;
- 36-
(f) methylformamide;
(g) n-methylephedrine
(h) phenylpropanolamine ;
(i) pseudoephedrine;
(j) anhydrous ammonia ;
(k) hydriodic acid;
(I) red phosphorus;
(m) iodine in conjunction with ephedrine,
pseudoephedrine, or red phosphorus;
(n) lithium in conjunction with anhydrous ammonia .
Id. at 18-19.
By contrast, KRS 218A .1432(1)(b) stands alone as the only statute in the United
States criminalizing the possession of chemicals or equipment for the manufacture of
methamphetamine without identifying the chemicals or equipment the possession of
which would constitute criminal conduct. The closest statute to ours is Ark. Code Ann. §
5-64-403(c) which criminalizes the possession of drug paraphernalia with intent to use it
in the manufacture of methamphetamine . However, "drug paraphernalia" is defined in
detail in Ark. Code Ann . § 5-64-101 ; thus, the Arkansas scheme is more like KRS
218A .500 than KRS 218A .1432(1)(b) . Kotila noted that there are at least three methods
by which methamphetamine can be manufactured, each requiring possession of a
different combination of chemicals or equipment, thus making identification of specific
chemicals or equipment in the statute unwieldy if not impossible . 114 S .W .3d at 249 .
The only fact that saved KRS 218A.1432(1)(b) from being void for vagueness under the
arbitrary or subjective enforcement inquiry was the statutory requirement that the
defendant possess all of the chemicals or all of the equipment constituting the right
combination necessary to manufacture methamphetamine . Id .
The majority opinion's construction of KRS 218A. 1432(1)(b) also affects the
double-jeopardy problem anticipated in dictum in Kotila. The Commonwealth argued in
Kotila that the words "the chemicals or equipment" meant "any two or more chemicals
3 7-
or equipment," the construction now adopted by the new majority of this Court . We
pointed out in Kotila that, under that construction, if one of the chemicals possessed by
the defendant was anhydrous ammonia, evidence of the defendant's possession of
anhydrous ammonia in an unapproved container with the intent to manufacture
methamphetamine would prove both that offense, as defined in KRS 250.489(1) and
KRS 250.991(2), and manufacturing methamphetamine under KRS 218A .1432(1)(b) .
Kotila , 114 S .W .3d at 239. But if KRS 218A.1432(1)(b) required possession of
anhydrous ammonia and all of the other chemicals necessary to manufacture
methamphetamine, the latter requirement distinguished the two offenses, thus avoiding
double jeopardy . Id. at 239-40 . In retrospect, when viewed in light of the ramifications
of today's majority opinion, that dictum is probably incorrect.
The defendant in Kotila , like Appellant Matheney, did not possess any quantity of
anhydrous ammonia . However, because the expert witness in Kotila testified that
anhydrous ammonia is a chemical necessary to manufacture methamphetamine by the
ephedrine reduction ("Nazi") method, possession of anhydrous ammonia was a
necessary element of the offense under the Kotila interpretation of KRS
218A .1432(1)(b), i .e . , "all of the chemicals" would necessarily include anhydrous
ammonia . Likewise, "all of the chemicals" would necessarily include a
methamphetamine precursor, such as the Sudafed tablets possessed by Appellant at
the time of his arrest, possession of which is also proscribed by a separate statute, KRS
218A.1437, a Class D felony. Under the majority opinion's analysis, proof that a person
possesses both a methamphetamine precursor and one additional but otherwise
innocuous household product, gk drain cleaner, would permit convictions of violating
.,
both KRS 218A.1437 and KRS 218A.1432(1)(b) . Thus, the vagueness analysis with
- 38-
respect to arbitrary enforcement also implicates the double jeopardy analysis because,
potentially, the police could arrest a defendant in. his home on a warrant for possession
of a methamphetamine precursor with intent to manufacture methamphetamine, then,
e.g., "discover" a can of drain cleaner in plain view, and charge the defendant with
violating both KRS 218A.1437 and KRS 218A.1432(1)(b), enhancing one offense from a
Class D felony to two offenses, separate Class D and Class B felonies. If so, the
double-jeopardy analysis in the Kotila dictum could not withstand constitutional scrutiny
in the context of'today's construction of KRS 218A .1432(1)(b) if one of the two or more
chemicals used to convict of that offense is a methamphetamine precursor or
anhydrous ammonia, because possession of either of those chemicals would be both a
separate offense and a necessary element of the offense of manufacturing
methamphetamine, thus a lesser included offense . KRS 505.020(2)(a) .
Statutes so vague as to enable law enforcement officials to arrest on such broad
or nebulous terms "bear[] the hallmark of a police state ." Shuttlesworth v. City of
Birmingham , 382 U .S . 87, 90-91, 86 S .Ct. 211, 213,15 L. Ed.2d 176 (1965). "It would
certainly be dangerous if the legislature could set a net large enough to catch all
possible offenders, and leave it to the courts to step inside and say who could be
rightfully detained, and who should be set at large . This would, to some extent,
substitute the judicial for the legislative department of the government." United States v.
Reese ,, 92 U.S. (2 Otto) 214, 221, 23 L.Ed . 563 (1875) . In overruling Kotila and
misconstruing KRS 218A .1432(1)(b), the majority does just that: sets a net large
enough to catch or arrest virtually every citizen of the Commonwealth, premised solely
upon the possession of two or more unenumerated, universally-owned household
products and "leave[s] it to the courts to step inside and say who [may] rightfully be
- 39-
detained ." The majority opinion's misconstruction of KRS 218A.1432(1)(b) renders the
statute void for vagueness .
IV. 2005 AMENDMENTS .
As noted by the majority opinion, the 2005 General Assembly amended KRS
218A.1432(1)(b) to read :
(1)
A person is guilty of manufacturing methamphetamine when he
knowingly and unlawfully :
(b) With intent to manufacture methamphetamine possesses two
(2) or more items of equipment for the manufacture of
methamphetamine .
2005 Ky. Acts, ch . 150, § 9. Thus, the present version of the statute now reads exactly
the same as the majority opinion's interpretation of the previous version . However, the
majority opinion fails to mention that the 2005 General Assembly also enacted a new
section of KRS 218A .010 that reads :
(14)
"Intent to manufacture" means any evidence which demonstrates a
person's conscious objective to manufacture a controlled substance
or methamphetamine. Such evidence includes but is not limited to
statements, a chemical substance's usage, quantity, manner of
storage, or proximity to other chemical substances or equipment
used to manufacture a controlled substance or methamphetamine .
2005 Ky. Acts, ch . 150, § 7(14) (emphasis added) .
It is unnecessary to decide now whether the heightened evidentiary requirement
for proof of intent to manufacture in new KRS 218A.010(14) overcomes the facial
constitutional vagueness of the amended version of KRS 218A.1432(1)(b) . Appellant
was arrested and convicted under the previous statutory scheme which did not include
the heightened evidentiary standard for proof of intent. Yet, the majority opinion today
construes the previous version of KRS 218A.1432(1)(b) as having the same meaning as
the amended version without the possible saving provision in KRS 218A.010(14) .
-40-
Obviously, the General Assembly has recognized the constitutional infirmity of the
amended version of KRS 218A.1432(1)(b), standing alone, and hopes that the
enactment of new KRS 218A.010(14) will provide the cure . The fact that the General
Assembly did not enact a statute similar to KRS 218A.010(14) when it originally enacted
KRS 218A.1432(1)(b) in 1998 indicates a different legislative intent then than now.
Unfortunately, unlike the General Assembly, the majority of this Court, in addition to
ignoring the doctrine of stare decisis , has failed to recognize that the 2005 version of
KRS 218A.1432(1)(b), standing alone, is void for vagueness and has thereby
interpreted the preexisting statutory scheme so as to render it unconstitutional .
Accordingly, I dissent.
6 Of course, if it is wrong and the amended version of KRS 218A.1432(1)(b) is
subsequently declared void for vagueness under the arbitrary enforcement inquiry of
that doctrine (KRS 218A.010(14) purports to address only the notice inquiry), the
General Assembly will have succeeded in deleting altogether the "possession of
chemicals or equipment" basis for a conviction of manufacturing methamphetamine .
-41-
'
*uJarmf
011TUti
of ~mfurkv
2002-SC-0920-MR
JEFFREY MATHENEY
V.
APPELLANT
APPEAL FROM HOPKINS CIRCUIT COURT
HONORABLE CHARLES W. BOTELER, JR., JUDGE
01-CR-123
COMMONWEALTH OF KENTUCKY
APPELLEE
ORDER AMENDING OPINION
On the Court's own motion the opinion rendered March 23, 2006, in the
above styled case is hereby amended with the substitution of a new page one and three
of the Concurring Opinion by Justice Graves and a new page one of the majority
opinion attached hereto .
The correction of this page does not change the holding of this opinion .
ENTERED: April
`I
, 2006.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.