            FILE
       IN CLERICS OFFICE
                                                                     This opinlori was filed for record
                                                                     at ~:"oo O<Y"i on ~~t · \'?0-c~\::,
                                                                                                        "



                                                                         ~~~
IUPReME COURT, STATE OF WASHINO'roN




                                                                           ~upreme   Court Clerk


                   IN THE SUPREME COURT OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                                   )
                                                       )     No. 87078-1
                                     Respondent,       )
                                                       )
              v.                                       )     EnBanc
     --·   -------   ---------~-------------
                                                       )
WILLIAM ANDREW KURTZ,                                  )
                                                       )
                                     Petitioner.       )     Filed       SEP l 9 2013
_______________________________)

              MADSEN, C.J.-William Kurtz challenges the Court of Appeals decision

affirming his conviction for possession and manufacturing of marijuana. He argues that

the trial court erred in denying his request to raise a common law medical necessity

 defense. We hold that medical necessity remains an available defense to marijuana

prosecution and that the Washington State Medical Use of Marijuana Act (the Act), 1

 chapter 69.51A RCW, does not abrogate the common law. We reverse and remand for

 further proceedings.

                                                   FACTS

               In 2010, police executed a search warrant on petitioner William Kurtz's home and

 found marijuana and marijuana plants. The State charged Kurtz with manufacturing and

 1
  The Medical Use of Marijuana Act was changed to the Washington State Medical Use of
 Cannabis Act in 2011. RCW 69.51A.900.
            No. 87078-1


            possession of marijuana. At trial, Kurtz attempted to present medical authorizations in

            support of a common law medical necessity defense and a statutory medical marijuana

             defense. The State moved in limine to prevent these defenses, contending that neither

            was available to him.

                    After reviewing the case law, the trial court refused to allow Kurtz to raise either

             defense. The jury found Kurtz guilty and he appealed. The Court of Appeals affirmed

             the ruling as to the defenses but remanded on a separate issue relating to an improperly

-------- - calculated offender score. -Kurtzthen-petitionedthis court-for -re:view,- arguing that the

             common law medical necessity defense for marijuana continues to be an available

             defense, under case law and after the enactment of the Act.

                                                     ANALYSIS

                    Kurtz contends the trial court erred by not allowing him to present a common law

             medical necessity defense for his marijuana use. Specifically, he argues that the

             necessity defense was not abolished by this State's jurisprudence, nor was the defense

             superseded by the Act. The trial court's determination is a question of law which we

             review de novo. State v. Fry, 168 Wn.2d 1, 11, 228 P.3d 1 (2010).

                    The common law medical necessity defense for marijuana was first articulated in

             State v. Diana, 24 Wn. App. 908,916,604 P.2d 1312 (1979), by Division Three ofthe

             Court of Appeals. In Diana, the defendant argued a defense of medical necessity when

             he was charged with possession of marijuana. Following a discussion of the common

             law necessity defense, the court recognized a medical necessity defense could exist as a



                                                           2
            No. 87078-1


            defense to marijuana possession in very limited circumstances, relying in part on the

            legislature's passage of the "Controlled Substances Therapeutic Research Act," Laws of

            1979, 1st Ex. Sess., ch. 176. Diana, 24 Wn. App. at 915-16. The court remanded for the

            trial court to determine whether the evidence presented supported the defense? !d. at

            916. Specifically, the court instructed that medical necessity would exist in that case if

            "( 1) the defendant reasonably believed his use of marijuana was necessary to minimize

            the effects of multiple sclerosis; (2) the benefits derived from its use are greater than the

-- ~~ - ----harm-soughtto be prevented by the-controlled substanceslaw-;and(J)no-drug-is as----

            effective in minimizing the effects of the disease." !d. This medical necessity defense

            was subsequently recognized by Division One and Division Two. See State v. Pittman,

            88 Wn. App. 188, 196, 943 P.2d 713 (1997) (discussing Diana and determining that the

            absence of a legal alternative that is as effective as marijuana is an implicit element of the

            necessity defense); State v. Cole, 74 Wn. App. 571, 578, 580, 874 P.2d 878 (adopting the

            reasoning of Diana and concluding the trial court usurped the jury's role in how it

             analyzed evidence of a potential medical necessity defense), review denied, 125 Wn.2d

             1012, 889 P.2d 499 (1994).

                      The Court of Appeals subsequently called the necessity defense into question in

             State v. Williams, 93 Wn. App. 340, 347, 968 P.2d 26 (1998), review denied, 138 Wn.2d

             1002,984 P.2d 1034 (1999). The Williams court determined that an accepted medical

             use was an implicit element of the medical necessity defense, that the legislature was

             tasked with this determination, and that it had determined there was no accepted medical
             2
                 The charges in Diana were tried to the bench. Diana, 24 Wn. App. at 913.
                                                             3
           No. 87078-1


           use for marijuana when it classified marijuana as a schedule I substance. !d. at 346-4 7

           (citing Seeley v. State, 132 Wn.2d 776, 940 P.2d 604 (1997) (holding that the statute

           designating marijuana as a schedule I controlled substance does not violate the

           Washington Constitution)). Thus, Williams concluded there could be no common law

           medical necessity defense for schedule I substances, including marijuana, and interpreted

           Seeley as overruling Diana and Cole by implication. !d. at 34 7.

                   One month before the Williams opinion was published, the people passed Initiative

--~-   _____ 692,-whichwaslater.codified in chapter 69.5-lA-RC:W-as theAct~--'I'he-Act-d€dared-that - -

           the medical use of marijuana by qualifying patients is an affirmative defense to

           possession of marijuana. Former RCW 69.51A.040 (1999). 3 The Act also stated that

           "[t]he people of Washington state find that some patients with terminal or debilitating

           illnesses, under their physician's care, may benefit from the medical use of marijuana."

           Former RCW 69 .51A.005 (1999). 4 Williams cited Initiative 692 in a footnote, without

            analyzing what effect, if any, this initiative might have on its view that inclusion of

            marijuana as a schedule I controlled substance reflected a legislative determination that

            marijuana had no accepted medical use. 5 Williams, 93 Wn. App. at 347 n.l.




            3
              The legislature has since amended the statute to state that such a use "does not constitute a
            crime." RCW 69.51A.040.
            4
              This language has since changed to state that the legislature finds "[t]here is medical evidence
            that some patients with terminal or debilitating medical conditions may, under their health care
            professional's care, benefit from the medical use of cannabis." RCW 69.51A.005(1)(a).
            5
              In State v. Butler, 126 Wn. App. 741,747,750, 109 P.3d 493 (2005), the Court of Appeals
            concluded that Williams was still good law and that, in any event, the Act superseded any
            common law necessity defense.
                                                             4
             No. 87078-1


                    We first address whether the Court of Appeals in Williams correctly concluded

             that Seeley implicitly abolished the common law medical necessity defense. In Seeley,

             we considered whether the legislature's classification of marijuana as a schedule I

             substance under the Uniform Controlled Substances Act (UCSA), chapter 69.50 RCW,

             violated the Washington Constitution. Seeley, 132 Wn.2d at 786. Although the UCSA

             authorizes the board of pharmacy to schedule or reschedule substances considering,

             among other factors, the effect of the substance under former RCW 69.50.201 (1998), the

~~~---~-----legislatme made~the initial classification of'marijuana~ as a-~schedule-I-substance. 6 ~Seeleyl -

              132 Wn.2d at 784. With that in mind, we determined that there was substantial evidence

             to support the legislature's action. !d. at 813. While acknowledging the existence of a

             medical necessity defense, we did not comment on its validity or overrule Diana. Id. at

              798. Rather, we simply stated, "The recognition of a potential medical necessity defense

              for criminal liability of marijuana possession is not relevant in this equal protection

              analysis." Id. Thus, we did not discuss the viability of the common law medical

              necessity defense as applied to marijuana.

                     In rejecting the medical necessity defense for marijuana, the Williams court stated

              that Seeley "makes it clear that the decision of whether there is an accepted medical use

              for particular dugs has been vested in the Legislature by the Washington Constitution."

              Williams, 93 Wn. App. at 347. This in incorrect. In fact, we stated that "the

              determination of whether new evidence regarding marijuana's potential medical use


              6
               The UCSA was amended in 2013 to reflect the new "Pharmacy Quality Assurance
              Commission." This was not a substantive change.
                                                             5
             No. 87078-1


             should result in the reclassification of marijuana is a matter for legislative or

             administrative, not judicial, judgment." Seeley, 132 Wn.2d at 805-06 (emphasis added).

             Nothing in Seeley suggests that by classifying marijuana as a schedule I controlled

             substance, the legislature also made a finding that marijuana has no accepted medical

             benefit for purposes ofthe common law medical necessity defense. 7 Cf State v. Hanson,

              138 Wn. App. 322, 330-31, 157 P.3d 438 (2007) (determining that the Act only provided

              an affirmative defense to a drug crime and was not inconsistent with the scheduling

~----- -------statute).--Indeed,-the legislature   defers ..to-the state . hoard_ofpharmac~_for_future_additions,

              deletions, and rescheduling of substances which strongly suggests that the question of

              medical efficacy is subject to change. Former RCW 69.50.201(a). To conclude that a

              determination of medical use for scheduling purposes constitutes a legislative value

              determination of a substance for purposes of a necessity defense would yield the

              anomalous result that the necessity defense could be abrogated and reinstated whenever

              the board of pharmacy chooses to reclassify a controlled substance. We reject the




              7
                In Williams, the court noted that substances are classified as schedule I if there "is (1) a high
              potential for abuse, (2) no currently accepted medical use in treatment in the United States, and
              (3) no accepted safety for use in treatment under medical supervision," under former RCW
              69.50.203(a) (1993). Williams, 93 Wn. App. at 345. However, the court failed to discuss former
              RCW 69.50.203(b), which allows the board of pharmacy to place a substance in schedule I
              without the aforementioned findings, if the substance is "controlled under Schedule I of the
              federal Controlled Substances Act by a federal agency as the result of an internationally treaty,
              convention, or protocol." Marijuana is under Schedule I ofthe federal Controlled Substances
              Act and is a substance under the Single Convention on Narcotic Drugs of 1961, to which the
              United States is a party. 21 U.S.C. 812(c) sched. I, (c)(lO); Single Convention on Narcotic
              Drugs, opened for signature Mar. 30, 1961, No. 6298, 18 U.S.T. 1407, 1967 WL 90243. Thus,
              the legislature's initial determination to classify marijuana as a schedule I substance does not
              necessarily rest on a determination that there is no accepted medical use.
                                                                6
            No. 87078-1


            contention that by scheduling a drug the legislature has also decided the efficacy of that

            substance for purposes of a medical necessity defense.

                    Our conclusion is bolstered by the passage of chapter 69.51A RCW, which

            evidences the legislature's belief that despite its classification of marijuana as a schedule

            I controlled substance there may be a beneficial medical use for marijuana. RCW

            69.51A.005(1)(a) states, "The legislature finds that ... [t]here is medical evidence that

            some patients with terminal or debilitating medical conditions may, under their health

--~----~- - --pwfessional's care,benefitfrom the-medicaL use-o.Lcannabis."~-Accordinglr,we agree~

            with Kurtz that neither the legislature's classification of marijuana as a schedule I

            substance nor our decision in Seeley regarding legislative classification of marijuana

            abrogates the medical necessity defense.

                    We now turn to the question of whether the Act supersedes the common law

            medical necessity defense for marijuana. In general, Washington is governed by

            common law to the extent it is not inconsistent with constitutional, federal, or state law.

            Potter v. Wash. State Patrol, 165 Wn.2d 67, 76, 196 P.3d 691 (2008) "However, we are

            hesitant to recognize an abrogation or derogation from the common law absent clear

             evidence ofthe legislature's intent to deviate from the common law." Id. at 76-77.

             When "the provisions of a later statute are so inconsistent with and repugnant to the prior

             common law that both cannot simultaneously be in force, the statute will be deemed to

             abrogate the common law." State ex rel. Madden v. Pub. Uti!. Dist. No. 1 of Douglas

             8
              As originally codified, this section stated, "The people of Washington state find that some
             patients with terminal or debilitating illnesses, under their physician's care, may benefit from the
             medical use of marijuana." Former RCW 69.51A.005.
                                                              7
            No. 87078-1


            County, 83 Wn.2d 219, 222, 517 P.2d 585 (1973) (citing State v. Wilson, 43 N.H. 415

            (1862)).

                   The Act contains no language expressing a legislative intent to abrogate the

            common law. To the contrary, a 2011 amendment to chapter 69.51A RCW added that

            "[n]othing in this chapter establishes the medical necessity or medical appropriateness of

            cannabis for treating terminal or debilitating medical conditions as defined in RCW

            69 .51A.O 10," suggesting the legislature did not intend to supplant or abrogate the

----~-- -~-~c_ommonJaw. __ RCW69.5lA.00_5(1)._ln_explaining.ihe __purpose_of_the_AcLthe_legislature


             stated that "[h]umanitarian compassion necessitates that the decision to use cannabis by

            patients with terminal or debilitating medical conditions is a personal, individual

             decision, based upon their health care professional's professional medical judgment and

             discretion." RCW 69.51.005(1 )(b). To hold that this Act limits existing defenses for

             medical necessity would undermine the legislature's humanitarian goals.

                    The State argues, however, that because the legislature spoke directly to the

             purpose of the common law necessity defense, it intended to abrogate the common law.

             The State relies on two United States Supreme Court cases for this rule of construction,

             City of Milwaukee v. Illinois, 451 U.S. 304,315, 101 S. Ct. 1784,68 L. Ed. 2d 114

             (1981), and Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 625-26, 98 S. Ct. 2010, 56

             L. Ed. 2d 5 81 (1978). These cases concern the test for determining whether federal acts

             displace federal common law and general maritime law and do not address the effect of

             legislative action on Washington's common law. Milwaukee, 451 U.S. at 315-17; Mobile



                                                          8
           No. 87078-1


           Oil, 436 U.S. at 625-26. As Milwaukee notes, "[f]ederal courts, unlike state courts, are

           not general common-law courts and do not possess a general power to develop and apply

           their own rules of decision"; rather federal common law is developed in only restricted

           instances. 451 U.S. at 312-13 (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78,58 S.

            Ct. 817, 82 L. Ed. 1188 (193 8)). The federal common law analysis proceeds on the

           principle that Congress, not federal courts, is to articulate the standards to be applied as a

            matter of federal law. !d. at 316. In contrast, common law is not a rarity among the

-~~-----~--states~andis_oftendevdopedthrough_thecourts,as_wasthe~case_with_medicaLnecessity


            for marijuana. Diana, 24 Wn. App. at 916. Indeed, Washington has several statutory

            provisions addressing the authority of common law. See, e.g., RCW 4.04.010; RCW

            9A.04.060. Because the federal and state schemes differ, federal cases are unhelpful. In

            addition, the "directly speaks" language on which the State relies is not a part of the test

            we outlined in Potter and we decline to apply it here.

                   The State also contends that each element of the medical necessity defense is

            addressed by the Act and establishes inconsistencies between the two. As to the

            requirement that a defendant provide medical testimony to support his belief that use of

            marijuana was medically necessary, the State notes that the Act similarly requires a

            defendant to obtain authorization for use from a qualifying physician. As to the

            balancing of harms requirement, the state contends this element is met by the Act's

            limitation on the quantity of marijuana that a patient may possess. Responding to the

            final requirement, that no drug is as effective at treatment, the State notes an individual



                                                          9
             No. 87078-1


             under the Act is not required to show there are no other drugs as effective. While some

             of these elements are indeed similar to the common law defense, they are not identical

             and are not clearly inconsistent. For example, the fact that the Act does not require proof

             that no other drug is as effective simply means the Act is broader in that respect. Other

             elements in the Act may overlap with the common law defense, but are not identical nor

             "so inconsistent with and repugnant to the prior common law that both cannot

             simultaneously be in force." Madden, 83 Wn.2d at 222.

_________________Ihe_State points_to other_aspe_cts__oLthe_AcLthat itviews_as _'_'_obvio_us ____ _ _ ___

             inconsistencies." Suppl. Br. ofResp't at 11. For example, the State hypothesizes that an

             individual who obtains authorization by an unqualified physician would not satisfy the

              Act but will be able to assert the common law defense. The State also posits that an

              individual who possesses a certain amount of marijuana may not have a defense under the

              Act but would under the common law. While correct, these examples do not show

              inconsistencies, but rather demonstrate that the common law may apply more broadly in

              some circumstances.

                     The State also asserts that the statutory language and initiative make it clear that

              the Act was intended to replace the common law defense with an affirmative defense for

              certain individuals with terminal or debilitating illnesses. The State relics on Washington

              Water Power Co. v. Graybar Electric Co., 112 Wn.2d 847, 855, 774 P.2d 1199, 779 P.2d

              697 (1989), where this court determined that the legislature intended to preempt common

              law product liability claims through passage of the "Washington Product Liability Act"



                                                            10
            No. 87078-1


            (WPLA), chapter 7.72A RCW. However, there we noted that the scope ofthe statue

            defining product liability claims could not have been broader and there was evidence

            WPLA was intended to eliminate confusion surrounding product liability by creating a

            single cause of action. Wash. Water Powr Co, 112 Wn.2d at 853-54. Here, the Act is not

            so broad as to cover every situation of marijuana use that might arise. See, e.g., Fry, 168

            at 13 (holding that the defendant did not qualify under the Act because he did not have

            one of the listed debilitating conditions).

___________________ Moreover,.in_20 11 the1egislature.amended the Act.making_qualifying marijuana

            use a legal use, not simply an affirmative defense. RCW 69.51A.040. A necessity

            defense arises only when an individual acts contrary to law. Under RCW

            69.51A.005(2)(a), a qualifying patient "shall not be arrested, prosecuted, or subject to

            other criminal actions or civil consequences under state law based solely on their medical

            use of cannabis, notwithstanding any other provision of law." One who meets the

            specific requirements expressed by the legislature may not be charged with committing a

            crime and has no need for the necessity defense. Only where one's conduct falls outside

             of the legal conduct of the Act, would a medical necessity defense be necessary. The

             2011 amendment legalizing qualifying marijuana use strongly suggests that the Act was

             not intended to abrogate or supplant the common law necessity defense.

                    Finally, the State contends the legislature is assumed to be aware of the common

             law under Madden, 83 Wn.2d at 222, and would have expressly saved the common law

             defense if that was its intent. This argument inverts the requirements in Potter,· there



                                                          11
             No. 87078-1


             must be clear evidence of the legislature's intent to deviate from the common law, not

              clear evidence to preserve it.

                       When a question arises as to whether a statute abrogates the common law, there is

              likely to be overlap. See In re Estate ofTyler, 140 Wash. 679, 689, 250 P. 456 (1926)

              ("'No statute enters a field which was before entirely unoccupied."' (quoting HENRY

              CAMPBELL BLACK, HANDBOOK ON CONSTRUCTION AND INTERPRETATION OF THE LAWS

              233 (1896))). But under our holdings, the relevant question is whether the common law

__ _____ _ _ __and   statui~                                     clearlyinlended_to__deviate frmn_ the ___ _
                               are_inconsistentor_thelegislature _

              common law. Where, as here, there was no statement in the statute expressing such

              intent, and no inconsistencies between the two, we hold that the common law defense of

              medical necessity continues to be an available defense if there is evidence to support it.

                       The State argues, though, that even if the necessity defense is theoretically

              available, Kurtz could not rely on the defense because the Act provides a legal avenue for

              his marijuana use. As discussed, the Court of Appeals in Diana provided a three part

              summary of the marijuana necessity defense. Diana, 24 Wn. App. at 917. In

              summarizing the rule, Diana referred to two authorities: the Handbook on Criminal Law

              and the Model Penal Code (MPC). Diana, 24 Wn. App. at 913-14 (citing WAYNE R.

              LAFAVE & AUSTIN W. SCOTT, JR., HANDBOOK ON CRIMINAL LAW 3 81-83, 3 86 ( 1972);

              MODEL PENAL CODE§ 3.02 (Proposed Official Draft (1962))). Under the MPC, conduct

              an actor believes is necessary to avoid a harm or evil to himself or another is justifiable

              if:



                                                                 12
            No. 87078-1


                           (a) the harm or evil sought to be avoided by such conduct is greater
                    than that sought to be prevented by the law defining the offense charged;
                    and
                           (b) neither the Code nor other law defining the offense provides
                    exceptions or defenses dealing with the specific situation involved; and
                           (c) a legislative purpose to exclude the justification claimed does not
                    otherwise plainly appear.

             MODEL PENAL CODE § 3 .02( 1). The court cited the Handbook on Criminal Law for the

             principle that the defense is not applicable where a legal alternative is available to the

             accused. Diana, 24 Wn. App. at 913-14 (citing LAFAVE & SCOTT, supra, at 387). The

___________ Ilnited_SJatesS_upreme_Co_urLals_oad_dr_essednecessity and duressd_efense_,s and noted that _

             "[ u ]nder any definition of these defenses one principle remains constant: if there was a

             reasonable, legal alternative to violating the law, 'a chance both to refuse to do the

             criminal act and also to avoid the threatened harm,' the defenses will fail." United States

             v. Bailey, 444 U.S. 394,410, 100 S. Ct. 624,62 L. Ed. 2d 575 (1980) (quoting LAFAVE &

             SCOTT, supra, at 379). Thus, implicit in the marijuana necessity defense is whether an

             individual has a viable legal alternative to the illegal use of marijuana. In other words,

             the mere existence of the Act does not foreclose a medical necessity defense, but it can be

             a factor in weighing whether there was a viable legal alternative to a violation of the

             controlled substances law. The State's view that Kurtz must show '"no other law

             provides exceptions or defenses'" misstates the MPC, and adds language to the test that

             Diana adopted. 9 Suppl. Br. ofResp't at 14.


             9
               The dissent contends that the legislature rejected§ 3.02(1) of the MPC, and so it was
             inappropriate for courts to adopt and apply the necessity defense. Dissent at 7. The dissent's
             argument is speculative at best. Although the judiciary committee proposed adding a
             "justification" defense that closely mirrored§ 3.02(1), there is no legislative history explaining
                                                              13
             No. 87078-1


                    Here, the trial court did not consider whether the evidence supported a necessity

             defense as outlined in Diana , including whether Kurtz had a viable legal alternative.

             Instead, the record suggests that the trial court denied the common law defense

             concluding it was unavailable after Butler and denied the statutory defense because Kurtz

             did not obtain timely medical authorizations. Accordingly, we reverse the Court of

             Appeals and remand to the trial court to determine whether Kurtz presented sufficient

             evidence to support a medical necessity defense, including whether compliance with the

_______ _ ___ Act was_ a viableJegaLalternatLv_e_for Kurtz. lfthe_ eYidence supports the_ne_cessity

             defense, Kurtz is entitled to a new trial.




             why that provision was not adopted. JUDICIARY COMM. OF WASH. LEGIS. COUNCIL, LEGISLATIVE
             COUNCIL'S JUDICIARY COMMITTEE, REVISED WASI-IINGTON CRIMINAL CODE, at ii (Dec. 3, 1970).
             "[W]hen the Legislature rejects a proposed amendment ... we will not speculate as to the reason
             for the rejection." Spokane County Health Dist. v. Brockett, 120 Wn.2d 140, 153, 839 P.2d 324
             (1992) (citing Wilmot v. Kaiser Aluminum & Chem. Corp., 118 Wn.2d 46,63-64, 821 P.2d 18
             (1991)). In the absence of any statutory language or history, we should not assume that the
             legislature rejected the necessity defense when it chose not adopt§ 3.02(1). Further, the
             dissent's assertion that Diana and this opinion rely heavily on§ 3.02(1) is inaccurate. The
             defense adopted in Diana was based derived from several sources, including§ 3.02(1). Diana,
             24 Wn. App. at 914-15 (citing, e.g., LAFAVE & SCOTT, supra, at 381-83, 386; United States v.
             Holmes, 26 F. Cas. 360 (C.C.E.D. Pa. 1842); United States v. Ashton, 24 F. Cas. 873 (C.C.D.
             Mass. 1834); People v. Lovercamp, 43 Cal. App. 3d 823, 118 Cal. Rptr. 110 (1974)).
                      When the legislature is otherwise silent, courts may look to the common law, which shall
             supplement all penal statutes. RCW 9A.04.060. As discussed in this opinion, the United States
             Supreme Court has recognized a common law necessity defense. United States v. Bailey, 444
             U.S. 394, 410, 100 S. Ct. 624, 62 L. Ed. 2d 575 (1980) (discussing the common law necessity
             defense). Therefore, even if we were to conclude, as the dissent suggests, that the legislature
             rejected§ 3.02(1) of the MPC, the common law necessity defense as formulated in Diana has not
             been rejected by the legislature.
                                                            14
No. 87078-1


                                     CONCLUSION

      We hold that the common law medical necessity defense for marijuana remains

available following the Medical Use of Marijuana Act. We remand to the trial court for

further proceedings consistent with this opinion.




                                             15
No. 87078-1




WE CONCUR:




              16
State v. Kurtz




                                     No. 87078-1



       OWENS, J. (dissenting) -- While I sympathize with William Kurtz's

unfortunate situation, I am compelled to dissent because the common law defense of

necessity is predicated on a lack oflegal alternatives. Washington voters have

provided a comprehensive statutory scheme for the use of medical marijuana, enacted

by initiative in 1998. Because individuals in this state have a legal way of using

medical marijuana, the previously articulated common law defense of medical

necessity for marijuana use is no longer appropriate. Therefore, I respectfully dissent.

       The common law necessity defense has existed for hundreds of years for

defendants who were forced to violate the law to avoid a greater harm. WAYNE R.

LAFAVE & AUSTIN W. SCOTT, JR., CRIMINAL LAW 444 (2d ed. 1986). To assert the
                State v. Kurtz
                87078-1
                Owens, J., Dissenting


                necessity defense, a defendant must reasonably believe the unlawful action was

                necessary to avoid harm. State v. Diana, 24 Wn. App. 908,914,604 P.2d 1312

                (1979); LAFAVE & SCOTT, supra, at 446. In addition, the harm the defendant sought

                to avoid must outweigh the harm caused by a violation of the law. Diana, 24 Wn.

                App. at 914; LAFAVE & SCOTT, supra, at 446-47. Finally, and most importantly for

                our analysis of this case, the defense cannot be asserted when "a legal alternative is

- ---   ~- ~-   -uvailab le~to~the-accused. ''--Biana,   24Wn~ App~at-913=-14; bAFAVE~&-SeoTT-,~s-upra,~


                at 448-49.

                        A common example of the necessity defense is a prisoner who escapes from a

                prison on fire. See People v. Whipple, 100 Cal. App. 261, 279 P. 1008 (1929). Such a

                prisoner could theoretically defend against a charge of prison escape by arguing that

                there was no legal alternative to avoid severe injury or death. I d. at 263 (noting a

                prominent 1736 treatise on criminal law that states, "' [i]f a prison be fired by accident,

                and there be a necessity to break prison to save his life, this excuseth the felony.'" 1

                MATTHEW HALE, THE HISTORY OF THE PLEAS OF THE CROWN 611 (1736), available

                at http://archive.org/details/historiaplacitor01hale). In contrast, a prisoner who

                 escapes from prison because he claims the conditions amounted to brutal and

                 inhumane treatment cannot assert the defense of necessity when there is no record that

                 he attempted to address prison conditions through lawful means. Id. at 262, 265.




                                                                 2
             State v. Kurtz
             87078-1
             Owens, J., Dissenting


                     Thus, the necessity defense is specifically predicated on a defendant's lack of

              legal alternatives. The United States Supreme Court has made this clear for the

              defenses of necessity and duress: "if there was a reasonable, legal alternative to

              violating the law ... the defenses will fail." United States v. Bailey, 444 U.S. 394,

              410, 100 S. Ct. 624,62 L. Ed. 2d 575 (1980). As the Court of Appeals has stated, the

              requirement to show a lack of legal alternatives is "[n]ot only ... consistent with

------------ existiTI:g--Wlrshtngtun--case-law; it-is·marrdatedby-common-sense-;''-- State-v;-Pittman-;88--------

              Wn. App. 188, 196, 943 P.2d 713 (1997).

                     When the Court of Appeals created the medical necessity defense for marijuana

              use in 1979, there was no provision for legal medical use of marijuana to treat the

              defendant's multiple sclerosis. Diana, 24 Wn. App. at 915. Accordingly, the Court of

              Appeals created a three-part medical necessity defense, including a requirement that

              defendants present evidence that there was no legal alternative to using marijuana

              illegally to treat their symptoms. Id. at 916. Specifically, defendants had to show that

              no legal drug was as effective as marijuana in minimizing the effects of their disease.

              !d. Defendants that made such a showing could assert the medical necessity defense

              because they had no legal alternative to use marijuana for medical purposes.




                                                            3
            State v. Kurtz
            87078-1
            Owens, J., Dissenting


                   But in 1998, the people of this state passed Initiative Measure 692 (the

            Washington State Medical Use of Marijuana Act, 1 chapter 69.51A RCW), which

            provided a legal alternative for individuals to use marijuana for medical purposes.

             Consequently, the crucial underpinning to the necessity defense-the lack of legal

             alternatives-no longer existed for medical marijuana use. This change is particularly

             evidenced by Diana's requirement that defendants show that no legal drug was as

------------effeetive-as-marijuana-in-minimizing-the-effeetsof-theirdisease-;-bogieally;-1-do-not--

             see how Kurtz can show that no legal drug is as effective as marijuana when

             marijuana itself is now allowed for medical purposes. The specific necessity defense

             designed by the Court of Appeals for medical marijuana use has become moot by its

             own terms.

                   Courts consistently reiterate that defendants asserting the necessity defense

             must show that they lacked legal alternatives. The Court of Appeals has held that a

             person eluding a pursuing police vehicle to help a friend in danger cannot assert the

             necessity defense when there is a legal alternative: seeking that police officer's

             assistance. State v. Gallegos, 73 Wn. App. 644, 651, 871 P.2d 621 (1994). In

             Gallegos, the court reviewed the case of a man who believed his female friend was in

             danger and began speeding toward her location. !d. at 646. When he was pulled over


             1
              The Medical Use of Marijuana Act was renamed the Washington State Medical Use of
             Cannabis Act in 2011. RCW 69.51A.900.


                                                         4
           State v. Kurtz
           87078-1
           Owens, J., Dissenting


            by a police officer en route, he yelled to the officer that he was okay and that the

            officer should follow him. !d. He then sped off. !d. When he was later charged with

            attempting to elude a pursuing police vehicle, the court held that he could not assert

            the necessity defense because he had a legal alternative-he could have explained the

            situation to the officer and asked for help for his friend. Id. at 651. This was a

            reasonable legal alternative that would have averted harm to his friend without

~-~--- --violating~the-law-against-eluding-a-pursuing-police-officer~-    -- -   ~--~~-----   ----   -----~~----------



                   The Alaska Supreme Court has held that stealing highway construction

            equipment to free a stranded vehicle is unnecessary when there is a legal alternative:

            calling a tow truck. Nelson v. State, 597 P .2d 977, 980 (Alaska 1979). In Nelson, an

            Alaska man "borrowed" highway construction equipment to free his truck that was

            stuck in nearby mud. Id. at 977-78. His unsuccessful attempt to free his truck

            resulted in significant damage to the construction equipment, and he was charged with

            destruction of personal property and joyriding. Id. at 97 8. He attempted to assert the

            necessity defense, explaining that he believed his truck was in danger of tipping over

            and being damaged. Id. at 980. The court held that he could not assert the necessity

            defense because he had several legal alternatives to unlawfully using the construction

            equipment, noting that multiple people had stopped and offered assistance to the

            defendant, including rides or offers to telephone state troopers or a tow truck. Id.




                                                         5
State v. Kurtz
87078-1
Owens, J., Dissenting


       Similarly, the Ninth Circuit Court of Appeals has held that trespassing on a

military base to warn fellow trespassers of impending danger from a military test

exercise is unnecessary when there is a legal alternative: informing the military about

the presence of the other trespassers. United States v. Mowat, 582 F.2d 1194, 1208

(9th Cir. 1978). In Mowat, a group of individuals were charged with trespassing for

entering an island military base to protest military actions. Id. at 1197. One of the



claiming that he entered the military base to warn his friends about an impending

bombing of the island. Id. at 1208. The court held that "the assertion of the necessity

defense requires that optional courses of action appear unavailable" and that the

defendant could not assert the defense because he "made no attempt to secure consent

to enter the island, nor did he take the simple step of notifying the officials on the

island who could have notified [his friends]." Id.

       These cases are unified by the principle that the necessity defense is

unavailable to defendants who fail to avail themselves of reasonable legal alternatives.

The necessity defense is not an unlimited license to violate the law to avoid a potential

harm. Rather, the defense exists to protect defendants who truly have no legal

alternatives.

       Of course the overall common law necessity defense continues to protect

defendants who are forced to violate the law to avert a greater harm. But the narrow


                                             6
           State v. Kurtz
           87078-1
           Owens, J., Dissenting


           medical necessity defense developed in Diana specifically for individuals with a

           medical need to use marijuana no longer makes sense in a state that specifically

           provides a legal method for the medical use of marijuana. I would hold that a

           defendant wishing to assert a necessity defense would have to prove the broader

           elements that have developed over hundreds of years-including the lack of legal

           alternatives-not the narrow medical necessity test developed in a context that no

~ -~--~--longer-exists;~In-Ifurtz~s-case;the-record-shows-thathewas-later-able-to-ubtain--          -- --- ---

           appropriate authorization to legally use medical marijuana for his serious condition.

           He had a legal alternative to violating the law and thus does not qualify for the

           necessity defense.

                  In addition, both Diana and the majority opinion rely heavily on section 3.02 of

           the Model Penal Code (MPC) (Proposed Official Draft (1962)), despite the fact that

           the legislature considered and rejected that exact provision. A brief review of the

           legislature's consideration of the MPC is instructive. In 1967, the Washington State

           Senate delegated the responsibility of recommending revisions to the criminal code of

           1909 to the Judiciary Committee of Washington's Legislative Council. JUDICIARY

           COMM. OF WASH. LEGIS. COUNCIL, LEGISLATIVE COUNCIL'S JUDICIARY COMMITTEE,

           REVISED WASHINGTON CRIMINAL CODE at ii (Dec. 3, 1970). In 1970, the judiciary

           committee published a proposed draft of the revised criminal code that adopted MPC

           section 3.02's necessity defense, calling it a "justification" defense. !d. at ii, 64.


                                                         7
State v. Kurtz
87078-1
Owens, J., Dissenting


However, when the legislature adopted the criminal code of 1965, it did not include

the justification defense. LAWS OF 1975, 1st Ex. Sess., ch. 260, at 828-30. Since

MPC section 3.02 was explicitly proposed by the judiciary committee and then

rejected by the full legislature, it seems inappropriate for the courts to subsequently

adopt and apply that exact test.

       Furthermore, I find no way to avoid the conclusion that the Medical Use of



law when '"the provisions of a ... statute are so inconsistent with and repugnant to

the prior common law that both cannot simultaneously be in force."' Potter v. Wash.

State Patrol, 165 Wn.2d 67, 77 196 P.3d 691 (2008) (alteration in original) (quoting

State ex rel. Madden v. Pub. Uti!. Dist. No.1, 83 Wn.2d 219,225, 517 P.2d 585

(1973)). In this case, the Medical Use of Marijuana Act created a defense to charges

of use or possession of marijuana if the defendant can show that he or she was using

the marijuana for medical purposes-the exact issue addressed by the common law

defense. Because the Medical Use of Marijuana Act addresses the very concern

addressed by the common law, the two cannot coexist. The Medical Use of Marijuana

Act sets out a comprehensive structure for the defense, including the qualifying

conditions or diseases, the amount of marijuana allowed, and documentation of a

physician's recommendation. As a result of these detailed requirements, the statutory

defense is much narrower than the common law defense. The common law did not


                                             8
            State v. Kurtz
            87078-1
            Owens, J., Dissenting


            require any communication with a physician nor did it place a limit on the amount of

            marijuana at issue. Therefore, the provisions of the Medical Use of Marijuana Act's

             defense are so inconsistent with the prior common law that both cannot

             simultaneously be in force. It does not make sense that the state would create a

             significantly narrower and more detailed statutory defense if it did not mean to replace

             the broader common law defense.

--------------------Moreover,aHowing-thecommon-law-defense-to-coexist-with-the--statutory- -- ------ - -

             defense would frustrate the purpose of the Medical Use of Marijuana Act. When

             determining whether a statute is exclusive, this court has repeatedly indicated that it

             must strive to uphold the purpose of the statute. See, e.g., Potter, 165 Wn.2d at 87;

             see also Wash. Water Power Co. v. Graybar Elec. Co., 112 Wn.2d 847, 855, 774 P.2d

             1199, 779 P.2d 697 (1989). In passing the Medical Use of Marijuana Act voters set

             up a structure to allow medical   marijuan~,   but they specifically limited the defense to

             individuals using medical marijuana under a doctor's supervision. If the court were to

             uphold the broader common law defense without the requirement of a doctor's

             supervision, the court would frustrate the purpose of the voters that specifically added

             that requirement for the medical use of marijuana.

                    I respectfully dissent.




                                                            9
State v. Kurtz
87078-1
Owens, J., Dissenting




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