Amy Stalker says she had more control over her own health when she lived in Colorado, where marijuana can be legally prescribed as medicine. Stalker now lives in Kentucky, where medical use of marijuana is banned.
By John Cheves
August 22, 2017 4:55 PM
A Franklin Circuit Court judge on Tuesday asked attorneys for the state why Kentucky should not make medical marijuana available to patients who believe it might help them, given that “we’ve pretty much decriminalized” the drug around much of the nation and even in parts of the state.
Judge Thomas Wingate is considering motions by Gov. Matt Bevin and Attorney General Andy Beshear to dismiss a lawsuit filed in June by three Kentuckians who want the legal right to use marijuana as medicine in the state where they live. Wingate said he expects to hand down a decision on the motion in the near future.
Since 1996, 29 states and the District of Columbia have authorized the medical use of marijuana within their borders. But Kentucky’s General Assembly has rejected several bills to legalize the drug for medicinal purposes.
During Tuesday’s hearing, Wingate noted that attitudes about marijuana have softened. The penalties for marijuana possession vary widely inside the state depending on the attitudes of local law enforcement, he said. Someone might face a $100 fine — if that — in one county but a stiff jail sentence in another, he said.
Wingate asked Taylor Payne, an attorney for Beshear, to justify the state’s absolute ban on marijuana given that his own experience as a judge has shown him many examples of men abusing women while drunk on alcohol, a legal product, but never while high on marijuana.
“So what do you say toward that?” Wingate asked.
“I think that’s an issue for the legislature to address,” Payne replied.
And that was a key point for Bevin and Beshear’s legal teams: The legislature, not a judge, should be the one to decide if Kentucky is ready to loosen its marijuana laws. In every state that has legalized medical marijuana so far, elected lawmakers made that call, not the courts, said Barry Dunn, a lawyer for Bevin.
The Kentucky General Assembly is likely to get another bill on medical marijuana in 2018, Dunn said.
“Let it continue to percolate around there and see what happens,” Dunn said.
Attorneys for the state also said the courts already have decided this issue. They cited a 2000 decision by the Kentucky Supreme Court in a case involving actor Woody Harrelson, who had argued that Kentucky’s marijuana laws were overly broad and should not be used to prevent him from planting hemp seeds in Lee County.
In that case, the Supreme Court found there was “valid public interest in controlling marijuana” and added that “reliance by Harrelson … on great moral issues of the current times is unpersuasive.”
However, the plaintiffs — Dan Seum Jr. and Amy Stalker of Jefferson County and Danny Belcher of Bath County — say they have lobbied the General Assembly to change the law for years without success. (Seum’s father is a Republican state senator.) They claim the state’s cannabis ban violates their rights under the Kentucky Constitution to privacy and to be free of the “absolute and arbitrary power” of the state over their “lives, liberty and property.”
Dan Canon, a Louisville attorney who represents several people suing to overturn Kentucky’s ban on medical marijuana, says the Kentucky Constitution guarantees a right to privacy and to be free of arbitrary police powers.
“Our clients have been to the legislature. They’ll continue to go to the legislature,” attorney Candace Curtis told Wingate. “But you’re the only person who can look at the facts of this case and say, ‘Look, this law is arbitrary and it does violate their right to privacy.’”
Smoked or ingested, cannabis has been used as medicine for most of recorded history. It was a legal remedy in the United States as recently as the mid-20th century. In 1970, however, as the war on drugs began, the U.S. government classified marijuana as a Schedule 1 controlled substance, the designation intended for drugs, such as heroin, that are supposed to have a high potential for addiction and no medical value.
In their suit, the plaintiffs explain that they have used marijuana for years to help them with a variety of ailments.
Seum is a school football coach who suffers from back pain. Belcher is a Vietnam War veteran who suffers from post-traumatic stress disorder, alcoholism and a compression fracture in his spine. And Stalker said she has a long history of health problems due to irritable bowel syndrome and bipolar disorder and the powerful pharmaceutical drugs that were prescribed to her to treat those conditions.
Stalker briefly lived in Colorado, where medical marijuana is legal, and had a valid prescription for it there. But she returned to Kentucky to care for her mother.