                                IN THE
            ARIZONA COURT OF APPEALS
                            DIVISION ONE


                    STATE OF ARIZONA, Appellant,

                                   v.

                 STANLEY K. KEMMISH, JR., Appellee.

                         No. 1 CA-CR 17-0417
                           FILED 3-15-2018


           Appeal from the Superior Court in La Paz County
                       No. S1500CR201600241
          The Honorable Samuel E. Vederman, Judge (retired)

                              AFFIRMED


                              COUNSEL

La Paz County Attorney’s Office, Parker
By Joshua C. Smith
Counsel for Appellant

Coolidge Law Firm P.L.L.C., Chandler
By Todd K. Coolidge
Counsel for Appellee
                           STATE V. KEMMISH
                           Opinion of the Court



                                OPINION

Judge Paul J. McMurdie delivered the opinion of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Jennifer B. Campbell
joined.


M c M U R D I E, Judge:

¶1            The State appeals the superior court’s order dismissing the
State’s indictment against Stanley K. Kemmish, Jr. We hold that under
Arizona Revised Statutes (“A.R.S.”) section 36-2804.03(C), a physician’s
recommendation letter issued pursuant to California’s Compassionate Use
Act is equivalent to a registry identification card issued to an Arizona
resident under Arizona’s Medical Marijuana Act (“Act”) and a visiting
qualifying patient, as defined by the Act, is entitled to possess and use
medical marijuana in Arizona. Accordingly, we affirm the superior court’s
dismissal of the indictment.

             FACTS AND PROCEDURAL BACKGROUND

¶2             On August 24, 2016, two Arizona Department of Public Safety
officers stopped Kemmish, a California resident, for failing to have required
headlamps. During the traffic stop, the officers noticed a marijuana odor
emanating from the vehicle and observed a white pipe with black residue
in plain view. The officers conducted a search of Kemmish’s vehicle, and he
admitted the pipe was his. He also told the officers he had medical-grade
marijuana in the vehicle that he purchased in California. The officers found
the marijuana and marijuana/THC wax in the vehicle. The officers asked
Kemmish whether he had a medical marijuana card. Kemmish told the
officers he had a document permitting him to purchase medical marijuana
in California, and showed the officers a physician’s recommendation letter
obtained pursuant to California’s Compassionate Use Act. The physician’s
recommendation letter stated that in the physician’s “professional opinion,
[Kemmish] would significantly benefit from the use of medical marijuana,”
and “approve[d] the use of cannabis as medicine.”

¶3           The State indicted Kemmish on one count of possession of
narcotic drugs (THC wax), one count of possession of marijuana, and one
count of possession of drug paraphernalia. Kemmish moved to dismiss the
indictment with prejudice, arguing that under the Act his physician’s


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                            STATE V. KEMMISH
                            Opinion of the Court

recommendation letter allowed him to possess the THC wax and marijuana
in Arizona. After oral argument, the superior court granted the motion and
dismissed the charges against Kemmish. The State timely appealed, and we
have jurisdiction pursuant to A.R.S. § 13-4032(1).

                               DISCUSSION

¶4            We review a superior court’s decision to grant a motion to
dismiss for an abuse of discretion, State v. Rodriguez, 205 Ariz. 392, 395, ¶ 7
(App. 2003), but review questions of statutory interpretation de novo, State
v. Gear, 239 Ariz. 343, 345, ¶ 11 (2016).

A.     Arizona and California’s Medical Marijuana Statutes.

¶5             Arizona voters enacted the Act, A.R.S. §§ 36-2801 to -2819, by
ballot initiative in 2010. Gear, 239 Ariz. at 344, ¶ 2. The Act “authorizes
medical use of marijuana and immunizes qualified patients . . . from
criminal prosecution in certain circumstances relating to the purchase and
possession of marijuana.” Parsons v. ADHS, 242 Ariz. 320, 324, ¶ 14 (App.
2017); see also A.R.S. § 36-2811(B). Under the Act, a qualifying patient may
apply to the Department of Health Services (“Department”) for a registry
identification card 1 by submitting a written certification issued by a
physician. A.R.S. § 36-2804.02(A). A written certification must specify the
patient’s debilitating medical condition, 2 be signed by the physician, and
state “that in the physician’s professional opinion the patient is likely to
receive therapeutic or palliative benefit from the medical use of marijuana
to treat or alleviate the patient’s debilitating medical condition or
symptoms associated with the . . . condition.” A.R.S. § 36-2801(18). A




1      A “registry identification card” is a “document issued by the
department that identifies a person as a registered qualifying patient,”
A.R.S. § 36-2801(14), and contains the cardholder’s photograph, name,
address, and birth date; the card’s issuance and expiration dates; and a
unique identification number, A.R.S. § 36-2804.04(A).

2       “Debilitating medical condition” is defined by the Act and is limited
to listed medical conditions or their treatments, unless the Department
approves an additional condition or treatment after receiving a petition
from the public. A.R.S. §§ 36-2801(3), -2801.01; see also Arizona Cannabis
Nurses Ass’n v. ADHS, 242 Ariz. 62, 64–65, ¶ 3 (App. 2017).



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                            STATE V. KEMMISH
                            Opinion of the Court

“qualifying patient” is a “person who has been diagnosed by a physician as
having a debilitating medical condition.” A.R.S. § 36-2801(13).

¶6            The Act also gives “visiting qualifying patients” 3 the same
presumptions and immunities as a qualifying patient with an Arizona
registry identification card. See A.R.S. § 36-2804.03(C); State v. Abdi, 236
Ariz. 609, 611, ¶ 11 (App. 2015). Section 36-2804.03(C) states:

       A registry identification card, or its equivalent, that is issued
       under the laws of another state . . . that allows a visiting
       qualifying patient to possess or use marijuana for medical
       purposes in the jurisdiction of issuance has the same force and
       effect when held by a visiting qualifying patient as a registry
       identification card issued by the department, except that a
       visiting qualifying patient is not authorized to obtain
       marijuana from a nonprofit medical dispensary.

(emphasis added).

¶7            California has enacted two statutory schemes for medical
marijuana possession. See Browne v. County of Tehama, 153 Cal. Rptr. 3d 62,
66–67 (App. 2013). In 1996, California voters adopted the Compassionate
Use Act. Cal. Health & Safety Code § 11362.5; Browne, 153 Cal. Rptr. 3d at
66. The Compassionate Use Act grants a “limited immunity from
prosecution” for possession or cultivation of marijuana by a person “who
possesses or cultivates marijuana for the personal medical purposes of the
patient upon the written or oral recommendation or approval of a
physician.” Cal. Health & Safety Code § 11362.5(d); People v. Mower, 49 P.3d
1067, 1076 (Cal. 2002).

¶8          In 2003, the California legislature passed the Medical
Marijuana Program, in part to clarify the Compassionate Use Act’s scope
and to promote its uniform application across counties. Cal. Health & Safety
Code §§ 11362.7 to 11362.9; Browne, 153 Cal. Rptr. 3d at 67. The Medical
Marijuana Program “created a voluntary program for the issuance of



3      A “visiting qualifying patient” is a person “[w]ho is not a resident of
Arizona or who has been a resident of Arizona less than thirty days [and]
[w]ho has been diagnosed with a debilitating medical condition by a person
who is licensed with authority to prescribe drugs to humans in the state of
the person’s residence . . . .” A.R.S. § 36-2801(17).



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                              STATE V. KEMMISH
                              Opinion of the Court

identification cards to qualified patients.” 4 Browne, 153 Cal. Rptr. 3d at 67;
see also Cal. Health & Safety Code § 11362.71(f) (“It shall not be necessary
for a person to obtain an identification card in order to claim the protections
of [the Compassionate Use Act].”). A “qualified patient” is a person entitled
to the Compassionate Use Act’s protections, “but who does not have an
identification card issued pursuant to [The Medical Marijuana Program].”
Cal. Health & Safety Code § 11362.7(f).

B.     Kemmish’s Physician’s Recommendation Letter is the Equivalent
       of a Registry Identification Card Issued by California Authorities
       as Recognized by California Law.

¶9             The State contends Kemmish’s physician’s recommendation
letter is not equivalent to an Arizona registry identification card, and the
superior court therefore erred by dismissing the indictment. Specifically,
the State argues “or its equivalent” should only be read as a provision for
state-issued cards in cases where other states do not refer to their medical
marijuana cards as “registry identification cards,” or their cards are issued
by an agency other than a department of health services. The State contends
that as Kemmish’s letter was not “issued” by the State of California, it is not
the documentary “equivalent” of an Arizona registry identification card
and is therefore not valid in Arizona. We do not interpret § 36-2804.03(C)
so narrowly.

¶10             “Our primary objective in construing statutes adopted by
initiative is to give effect to the intent of the electorate.” State v. Gomez, 212
Ariz. 55, 57, ¶ 11 (2006); State v. Matlock, 237 Ariz. 331, 334, ¶ 10 (App. 2015).
If a statute’s language is clear and unambiguous, it is the best indicator of
that intent, and we apply it as written without resorting to other methods
of statutory interpretation. State ex rel. DES v. Pandola, 243 Ariz. 418, 419, ¶ 6
(2018); State v. Jurden, 239 Ariz. 526, 530, ¶ 15 (2016); State v. Siplivy, 228 Ariz.
305, 307, ¶ 6 (App. 2011). However, if the language is ambiguous, we
attempt to determine the electorate’s intent by looking to the statutory
scheme and consider the statute’s context, historical background, effects
and consequences, and purpose and spirit. See State v. Ross, 214 Ariz. 280,
283, ¶ 22 (App. 2007). If we find ambiguity, “we may consider ballot

4      The Medical Marijuana Program also “expressly expands the scope
of the Compassionate Use Act beyond the qualified defense to cultivation
and possession of marijuana,” to provide defenses to additional crimes
related to marijuana. People v. Urziceanu, 33 Cal. Rptr. 3d 859, 882 (App.
2005).



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                             STATE V. KEMMISH
                             Opinion of the Court

materials and publicity pamphlets circulated in support of the initiative.”
Ruiz v. Hull, 191 Ariz. 441, 450, ¶ 36 (1998); see also Gear, 239 Ariz. at 345,
¶ 11 (citing the Act’s publicity pamphlet).

¶11            We are not persuaded the Act is ambiguous and will therefore
apply the statute’s plain language. The statute’s language provides all that
is required for a visiting qualifying patient to possess or use medical
marijuana in Arizona is to have a “registry identification card, or its
equivalent.” A.R.S. § 36-2804.03(C). “Equivalent” means: “(1) Equal in
value, force, amount, effect, or significance; (2) Corresponding in effect or
function; nearly equal; virtually identical.” Equivalent, Black’s Law
Dictionary (10th ed. 2014); cf. State v. Korzep, 165 Ariz. 490, 493 (1990) (giving
statutory language its “usual and commonly understood meaning unless
the legislature clearly intended a different meaning”). Therefore,
§ 36-2804.03(C) allows a visiting qualifying patient to possess or use
medical marijuana in Arizona if the patient has documentation that would
entitle him to do so under the medical marijuana laws of another state.
Whether another state’s medical marijuana law requires an identification
card, a physician’s letter, or some other documentation is immaterial, so
long as the documentation is sufficient under the law of the issuing state. If
the qualifying visiting patient is authorized by a medical marijuana law in
another state “to possess or use marijuana for medical purposes in the
jurisdiction of issuance,” the patient may possess and use medical
marijuana in Arizona. A.R.S. § 36-2804.03(C).

¶12           The parties stipulated in the superior court that Kemmish was
a “visiting qualifying patient.” The parties also agreed Kemmish’s
physician’s recommendation letter was obtained pursuant to the
Compassionate Use Act and was valid at the time of the stop. The parties
further agreed the letter permitted Kemmish to possess and use medical
marijuana in California. In its order dismissing the indictment, the superior
court found Kemmish’s physician’s recommendation letter was the
equivalent of an Arizona registry identification card. Based on these
stipulated facts, and our interpretation of § 36-2804.03(C), the superior
court did not err by dismissing the indictment.

¶13            The State argues that treating a physician’s recommendation
letter as equivalent to a registry identification card puts § 36-2804.03(C) into
conflict with the rest of the Act because the Act “adopted a clear policy
requiring state oversight,” and a physician’s recommendation letter is not
issued by a state agency. The State contends an identification card issued
pursuant to California’s Medical Marijuana Program would be the
equivalent of a registry identification card, as the process for obtaining an


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                            STATE V. KEMMISH
                            Opinion of the Court

identification card through both programs is “nearly identical” and both
include applying for and receiving a card through a state agency. The State
maintains that the Compassionate Use Act is broader than the Act, “does
not involve any of the same oversight,” and there “are no safeguards to
prevent abuse.”

¶14            To support its argument that the Act requires state oversight,
the State relies on the Act’s provisions requiring a registry identification
card to be issued by the State and on the publicity pamphlet circulated with
the proposition. Specifically, the State points to an argument “for” the
proposition by the Arizona Medical Marijuana Policy Project’s campaign
manager saying, “[u]nlike California, where it’s possible to get a doctor’s
recommendation to use marijuana for almost any condition, only patients
with a limited number of serious and debilitating conditions . . . will be able
to acquire medical marijuana in Arizona. Patients will also have to register
with the state . . . .” Ariz. Sec’y of State, 2010 Publicity Pamphlet 84 (2010),
http://apps.azsos.gov/election/2010/Info/PubPamphlet/english/e-
book.pdf.

¶15            Even though we recognize that the Act requires state
oversight for Arizona medical marijuana patients, concluding that another
state’s physician’s recommendation letter is equivalent to a registry
identification card does not place § 36-2804.03(C) into conflict with that
policy. See In re Stephanie N., 210 Ariz. 317, 320, ¶ 17 (App. 2005) (“[R]elated
statutes must be interpreted consistently and harmoniously with one
another.”). While the Act requires Arizona medical marijuana patients to
obtain a registry identification card to legally purchase and use medical
marijuana in this state, the legislation does not impose a similar
requirement in § 36-2804.03(C) for out-of-state medical marijuana patients.
See Collins v. Stockwell, 137 Ariz. 416, 420 (1983) (we “will not read into a
statute something that is not within the manifest intent of the Legislature as
gathered from the statute itself”). Under the Act, visitors, and Arizona
residents here less than 30 days, may possess and use marijuana purchased
under the medical marijuana laws of another state. The superior court did
not err by finding Kemmish’s physician’s recommendation letter is “equal
in force, effect or significance to an Arizona registry card in Arizona.” See
Equivalent, Black’s Law Dictionary (10th ed. 2014).

¶16           The State further argues its interpretation of § 36-2804.03(C)
is supported by this court’s decision in State v. Abdi. In Abdi, we stated “[t]he
Act gives a qualifying patient issued a registry identification card by
another state the same presumptions and immunities when she visits
Arizona.” 236 Ariz. at 611, ¶ 11. Because we referred in Abdi to the Act’s


                                       7
                           STATE V. KEMMISH
                           Opinion of the Court

definitions, the State argues we were “presumably familiar with the
definition of registry identification card” and the above statement
“indicates that the Abdi court operated under the assumption that A.R.S.
§ 36-2804.03(C) only applied if a visiting qualifying patient possessed a
state issued medical marijuana card.” However, the issue in Abdi was
whether the Act provides a defense against a charge of marijuana
possession to an out-of-state caregiver. Id. at 612, ¶ 13. Because
§ 36-2804.03(C) “expressly applies only to visiting patients . . . [and] makes
no reference to a ‘visiting designated caregiver,’” the court held it did not
provide a defense to out-of-state caregivers. Id. at 611, ¶ 12. The court did
not consider the meaning of “equivalent” as used in § 36-2804.03(C), or
whether a patient who possessed a physician’s recommendation letter is
entitled to the defense. Thus, Abdi does not “implicitly reject” the superior
court’s ruling or make it “clear that to be the equivalent of an [Arizona]
registry identification card, the documentation relied upon by a visiting
qualifying patient must be issued by a state agency,” as the State contends.

¶17            The State also argues holding a physician’s recommendation
letter to be equivalent to a registry identification would afford
non-residents greater rights than Arizona residents, and therefore the
superior court’s ruling “works an absurd result.” See Bussanich v. Douglas,
152 Ariz. 447, 450 (App. 1986) (a result is absurd “if it is so irrational,
unnatural, or inconvenient that it cannot be supposed to have been within
the intention of [persons] with ordinary intelligence and discretion”). The
State argues, “it is illogical to hold that Arizona residents in enacting the
[Act] . . . would have voted to afford residents of California greater
protections than what they were voting to grant themselves.” Although
Kemmish’s physician’s recommendation letter was not issued by a state
agency, the parties agreed Kemmish would have been able to obtain a
registry identification card under the Medical Marijuana Program had he
applied and paid a fee. Further, Kemmish is only entitled to the limited
immunities to possession and use of medical marijuana afforded by the Act,
and not to any other defenses he may be entitled to under California’s
Compassionate Use Act or Medical Marijuana Program. Kemmish is also
only permitted to possess, in Arizona, the amount of marijuana authorized
by the Act, and is not permitted to purchase medical marijuana in Arizona.
See A.R.S. § 36-2804.03(C) (“[A] visiting qualifying patient is not authorized
to obtain marijuana from a nonprofit medical marijuana dispensary.”).
Accordingly, we are not convinced interpreting a physician’s
recommendation letter as the equivalent of a registry identification card
affords non-residents greater rights than Arizona residents.




                                      8
                           STATE V. KEMMISH
                           Opinion of the Court

¶18             We emphasize the parties stipulated that Kemmish meets the
definition of a “visiting qualifying patient” and that his physician
recommendation letter was issued pursuant to California’s Compassionate
Use Act and allowed him to possess and use medical marijuana in
California. Thus, Kemmish’s physician’s recommendation letter is
equivalent to an Arizona registry identification card for the purposes of
§ 36-2804.03(C). We recognize, however, the State’s concerns that the
Compassionate Use Act does not involve the same oversight as the Act
because it permits medical marijuana use and possession with an oral
recommendation from a physician, see Cal. Health & Safety Code
§ 11362.5(d), and because it allows California residents to obtain medical
marijuana to treat more conditions than the Act allows Arizona residents to
obtain medical marijuana to treat. Compare Cal. Health & Safety Code
§ 11362.5(A) (a physician may recommend medical marijuana for the
treatment of delineated illnesses “or any other illness for which marijuana
provides relief”) (emphasis added), with A.R.S. § 36-2801(3) (the Department
must approve the addition of a debilitating medical condition or treatment
to the Act’s limited definition). However, Kemmish had a written
physician’s recommendation and the parties agreed he would qualify for
an Arizona registry identification card. Thus, we leave for another day
whether an oral recommendation is sufficient documentation under
§ 36-2804.03(C). We similarly express no opinion on whether a visiting
patient diagnosed with a medical condition that is not defined as a
“debilitating medical condition” under the Act, but permits him to possess
and use medical marijuana in another state, is permitted to possess and use
medical marijuana in Arizona.

                              CONCLUSION

¶19           The superior court did not abuse its discretion by finding
Kemmish’s physician’s recommendation letter equivalent to a registry
identification card and dismissing the indictment. Accordingly, we affirm.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA



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