Gov. Matt Bevin and Attorney General Andy Beshear want a Frankfort judge to dismiss a lawsuit calling for the legalization of medical marijuana in Kentucky.
In a motion filed Monday in Franklin Circuit Court, Bevin’s attorneys said medical marijuana is a “political question” that should be decided by the General Assembly, not a judge.
“Since at least 2014, the legislature has debated bills advocating for the lawful use of medicinal marijuana in every legislative session,” attorney Barry Dunn wrote for the governor’s office. “The General Assembly will consider legalizing medicinal marijuana again in the 2018 session. It is solely within the General Assembly’s constitutional powers to determine whether to make medicinal marijuana lawful.”
Also, Dunn wrote, the state Supreme Court has ruled that Kentuckians do not have a constitutional right to possess marijuana. And federal drug laws — which classify marijuana as a Schedule 1 controlled substance, like heroin — preempt state drug laws, he wrote.
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“Even if the court chooses to issue an injunction that rules Kentucky’s marijuana statutes violate its constitution, federal law bars the relief that the plaintiffs seek,” Dunn wrote. “Because federal law will continue to prohibit marijuana use regardless of this case, and because federal law preempts state law on this point, any opinion the court issues will be advisory only.”
In a separate motion, Beshear likewise asked Judge Thomas Wingate to dismiss the lawsuit filed by three Kentuckians who say they need the relief from chronic pain and other ailments that cannabis brings them.
Among Beshear’s arguments: The plaintiffs failed to show any likelihood that the attorney general would prosecute them for medical use of marijuana. Such criminal cases typically are handled at the local level by county attorneys or commonwealth’s attorneys, Assistant Attorney General Taylor Payne wrote.
Wingate has scheduled a hearing in the case for July 24 at 9 a.m.
Although Bevin and Beshear both seek dismissal of the lawsuit, their positions on the underlying issue differ. Bevin, a Republican, has said on several occasions that he would support legalization of marijuana for medical use, although not for recreational use. Beshear, a Democrat, said during his 2015 attorney general campaign that he would not consider even limited legalization unless the U.S. Food and Drug Administration authorized cannabis as a medicine.
Last month, Dan Seum Jr. and Amy Stalker of Jefferson County and Danny Belcher of Bath County sued Bevin and Beshear to overturn the state’s marijuana possession and trafficking laws for themselves “insofar as they seek to use cannabis for valid medicinal purposes.”
The plaintiffs claimed 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.” They said they use naturally grown marijuana for legitimate medical purposes at risk of going to jail while dangerous and addictive opioid painkillers are legally dispensed across the state.
Since 1996, 29 states and the District of Columbia have authorized the medical use of marijuana within their borders, including West Virginia, Ohio and Illinois. While the federal government still considers the drug to be illegal nationwide, Congress voted in May to give the U.S. Justice Department no money to prosecute medical marijuana cases in states where such use has been permitted.
All three plaintiffs said they unsuccessfully lobbied the General Assembly for years to loosen Kentucky’s laws on medical marijuana.
“When I’ve talked to legislators in Frankfort about this, their advice was for me to move away again, to go live in a state where it’s legal,” Stalker, who briefly lived in Colorado, where medical marijuana is legal, said last month. “But I grew up here. I love it here. My family is here. Is that really a choice I should have to make to stay healthy?”